Agenda of Planning Meeting

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.2

Report No. 6.2 PLANNING - 10.2018.305.1 Subdivision to Create Thirty-Two (32) Lots (Tallowood Ridge - Stage 7) at 77 Tuckeroo Avenue Mullumbimby

Directorate: Sustainable Environment and Economy

Report Author: Ben Grant, Planner

Noreen Scott, EA Sustainable Environment and Economy

File No: I2019/240

Proposal:

DA No:	10.2018.305.1
Proposal description:	Subdivision to create thirty-two (32) residential lots, a public reserve, drainage basin, earthworks, environmental enhancement works and associated civil infrastructure
Property description:	LOT: 109 DP: 1239902
Property description:	77 Tuckeroo Avenue MULLUMBIMBY
Parcel No/s:	269119
Applicant:	Bayview Land Development Pty Ltd
Owner:	Gainsplay Pty Ltd
Zoning:	R2 Low Density Residential, RU1 Primary Production, RU2 Rural Landscape, 1(a) (General Rural Zone)
Date received:	25 June 2018
Integrated Development:	Yes – Bush Fire Safety Authority required under s100B Rural Fires Act 1997. A controlled activity approval is also required under section 90 of the Water Management Act 2000. This applicant has not elected to obtain this approval through the integrated development process
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 12/7/18 to 25/7/18 - 2 Submissions received during the exhibition period - Additional meetings and discussions with local residents during the assessment process with staff.
Delegation to determination:	Council
Issues:	· Bush Fire Prone Land. BFSA received from RFS with conditions. · Flood liable land. · Retention of large existing Teak tree. · Earthworks · Consistency with concept approval · The application includes a SEPP No.1 objection to Clause 11(1) regarding the 40 hectare minimum lot size for land within Zone 1(a) General Rural. Concurrence has been granted by the Department of Planning and Environment. · Long term management of residual areas of vegetation

Summary:

This development application seeks approval for a residential subdivision at the Tallowood Ridge Estate, approximately 1km west of Mullumbimby. The development involves the creation of 32 residential lots, dedication of a public reserve, a detention basin, civil infrastructure and environmental restoration works.

The Tallowood Ridge estate is subject to a staged development consent (known as the Concept Approval) that was approved by the NSW Land and Environment Court in 2010. The Concept Approval envisages the development of a residential estate comprising approximately 240 lots, roads, open space, rehabilitation areas and associated infrastructure over seven stages. Stages 1 to 6 have been approved to date, with subdivision works for Stage 6 currently under construction. Each new phase of development beyond Stage 1 is required to align with the plans and conditions of consent in the Concept Approval.

In September 2017, an amendment to LEP 2014 was made that rezoned an additional 12 hectares of rural land to west of the Tallowood Estate to R2 Low Density Residential. The significance of the rezoning is that allows further residential development beyond Stage 7. This development application proposes a subdivision of land within the Stage 7 area outlined in the Concept Approval and also includes further subdivision into the newly zoned residential land to the west. As such a modification is proposed to Management Zone 9 consistent with the residential zoning with a reduction in area by approximately 4000 m2, whilst further riparian plantings are proposed within Management Zones 1 and 2 to offset this area of approximately 5200 m2.

The long term management and ownership of residual areas of vegetation along the southern boundary of the Tallowood Estate has been raised by residents within the Estate. At present this remains in private ownership. The applicant has not proposed to dedicate this area to Council or to any other government Agency at this point in time. For Council (and any other Public Authority) to consider acceptance of these areas along the southern boundary as a nature reserve in a future stage, the financial impost on Council will need to be considered.

The proposed development is considered to be generally consistent with the Concept Approval and aligns with Council’s future planning intent for the area. The subdivision has been assessed as complying with the relevant planning controls and is unlikely to result in significant adverse impacts on the natural or built environment. The development application is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

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

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, development application 10.2018.305.1 for subdivision to create thirty-two (32) residential lots, a public reserve, drainage basin, earthworks, environmental enhancement works and associated civil infrastructure, be granted consent subject to the conditions of approval listed in Attachment 3 #E2019/22528.

Attachments:

1 Proposed Plans 10.2018.305.1 - Stage 7, E2019/22557 , page 73 ⇩

2 Extracts from Concept Approval 10.2009.314.11, E2019/22560 , page 79 ⇩

3 conditions of consent, E2019/22528 , page 81 ⇩

4 submission received, E2018/68592 , page 99⇩

REPORT

269619

Assessment:

1. BACKGROUND

1.1. Tallowood Ridge Staged Development Application

Development Application No. 10.2009.314.1 (Tallowood Ridge) was refused by Council on 12 November 2009. Prior to the determination, an appeal was lodged with the NSW Land & Environment Court against the deemed refusal of the application. Consent orders were eventually made granting consent to the development application including the first stage comprising 29 residential allotments. The approval is a staged development consent (known as the Concept Approval) that envisages a subdivision comprising approximately 240 residential lots, roads, open space, rehabilitation areas and associated infrastructure over seven stages.

Development beyond Stage 1 is outlined in a document known as the ‘Future Stages Concept Proposal’ that contains plans and written statements which aim to direct future development of the subdivision including phasing, land use, roads, open space and restoration of natural areas. Each future stage of the estate must not be inconsistent with the overall layout for the site envisaged in the Concept Approval and the conditions of consent. Stages 1 to 6 have been approved to date, with bulk earthworks and civil works for Stage 6 currently under construction.

Since its approval, the Concept Approval has been modified ten times to account for changes in the phasing of the subdivision and to address various matters that have arisen during the development of the estate. The Stages Plan showing the each intended phase of the estate is shown in figure 1 below.

Figure 1: Staging plan for the Concept Approval (10.2009.314.11).

1.2. Previous Development Applications Relating to the Site

Separate development applications for each stage have been approved and modified as follows:

Stage 1

Development Application 10.2009.314.1

Stage 1 Tallowood Ridge Estate including Future Stages Concept Approval. Modified 10 times with the most recent modification being 10.2009.314.11 for modifications to Land Use Plan 2.1B. Earlier modifications altered staging, roads and pathways, open space and recreation areas, contributions, infrastructure and land uses.

Stage 2

Development Application 10.2011.117.1

Stage 2 Tallowood Ridge Estate for urban subdivision comprising 28 residential allotments and associated civil infrastructure and access roads. Granted consent on 4 April 2012. The consent was modified twice, with the most recent approval being s96 application 10.2011.117.3 to remove a number of conditions applied in error.

Stage 3

Development Application 10.2013.549.1

Stage 3 Tallowood Ridge Estate for subdivision to create thirty-one (31) residential allotments, one (1) residual allotment, roads, a stormwater detention basin, landscaping and related infrastructure works. Granted consent on 6 February 2014. Subsequently modified three times with the latest alteration being 10.2013.549.3 to defer the construction of the sports field and access road plus the inclusion of a new tennis court and half basketball court.

Stage 4A

Development Application 10.2015.79.1

Stage 4A Tallowood Ridge Estate for subdivision to create thirteen (13) residential allotments, public reserves and associated infrastructure works. S96 application no. 10.2015.79.2 to modify engineering conditions, and the timing of environmental restoration works and other matters was granted approval on 26 February 2016.

Stage 5

Development Application 10.2015.686.1

Stage 5 Tallowood Ridge Estate for Subdivision to create twenty-four (24) residential allotments, a public reserve, a residual allotment, associated roads and infrastructure. Granted consent on 25 August 2016. Stage 5 was modified 3 times, with the most recent modification being 10.2015.686.6 to include plans omitted in error. Previous modifications corrected minor errors in relation to rehabilitation works and the timing of contributions, amongst others.

Stage 4B

Development Application 10.2016.161.1

Stage 4B Tallowood Ridge Estate for Subdivision to create fifteen (15) residential lots, dedication of a public reserve and extend existing Corella Crescent road reserve. Granted consent on 31 August 2017. Section 96 application no. 10.2016.161.2 for modification of bush fire asset protection zones was approved on 2 July 2018.

Stage 6

Development Application 10.2017.402.1

Stage 6 Tallowood Ridge Estate for subdivision to create eighteen (18) residential Lots, a public reserve, a residual lot and associated infrastructure works. Granted consent on 26 July 2017. S4.55 application no. 10.2017.402.2 for the inclusion of a temporary crossing and a stockpile for stage 6 earthworks was approved on 21 December 2018. A further modification (10.2017.402.3) to remove the creek crossing and reinstate the former conditions is currently under assessment.

A further application may be lodged to amend this consent to make Lot 130 which contains a large tallowwood tree as a public reserve.

1.3. Tallowood Ridge Rezoning and Future Stages

On 22 September, 2017, an amendment to Byron Local Environmental Plan 2014 was gazetted that rezoned an additional 12 hectares of rural land to west of Tallowood Ridge to R2 Low Density Residential. It also back-zoned existing R2 land into the RU2 Rural Landscape zone to protect forested areas near the southern ridgeline and a riparian corridor that traverses the site. Other changes include rezoning the sports fields to RE 1 Public Recreation zone and the introduction of a 400m² minimum subdivision lot size for the western part of the estate.

The current application will see the completion of the Concept Approval (Stage 7), and the commencement of a new phase of development to subdivide the residential land to the west. Future stages will not be bound by the Concept Approval although the existing consent conditions for environmental restoration works associated with earlier stages and the Biodiversity Conservation Management Plan will remain in force.

The subdivision layout has been designed to allow future expansion of the estate. An indicative road layout for the new areas beyond stage 7 is shown in figure 2 below.

Figure 2: concept road network layout for Tallowood Ridge future stages

1.4. Site and surrounds

The Tallowood Ridge Estate is located approximately 1km west of Mullumbimby and comprises seven residential precincts, six of which have been approved to date, with bulk earthworks and civil works for stage six currently under construction. The site has an area of approximately 33 hectares and is located between Tuckeroo Avenue and Clays Road.

The land is within the R2 Low Density Residential zone, RU1 Primary Production zone and RU2 Rural Landscape zone under LEP 2014. Three small corners of the site are a deferred matter and fall within the 1(a) (General Rural Zone) under LEP 1988. The southern ridgeline is forested but the majority of the site is cleared except for grass cover. The site contains bushfire prone land, flood prone land and potential acid sulfate soils.

Surrounding land uses consist of rural-residential lots to the south and rural land to the north and west. Urban land developed in the earlier stages of the estate lies to the east of Stage 7.

Figure 3: View across the proposed subdivision area, looking south-west. Tuckeroo Avenue will be extended across the creek line.

1.5. Description of the proposed development

This development application seeks approval for a thirty-two (32) lot residential subdivision including, earth works, dedication of a public reserve, stormwater detention basin and associated civil infrastructure.

The proposed subdivision has the following key elements:

(1) Subdivision

· Thirty-two (32) residential lots, ranging in size from 504m² to 1331m².

· Two (2) lots for drainage and civil infrastructure containing a stormwater detention basin and a sewage pump station intended to service the proposed subdivision and future development of the recently zoned residential areas to the north-west.

· One (1) lot of 10,600m² containing part of the riparian corridor adjacent of the sports fields near to Clays Road. The lot will be dedicated to Council as a public reserve and is intended to be rehabilitated and revegetated with riparian species as part of Stage 7. Linking with the other riparian areas identified as Management Zones 1,2,3 and 4 which have been planted out and previously dedicated to Council.

· A residue lot of 28.5 hectares comprising the balance of remaining rural and residential zoned lands in the existing parcel. The long term ownership of the residual land which comprises habitat along the southern boundary of the Tallowwood Estate is yet to be determined.

Table 1: Lot size and shape for Stage 7

Proposed subdivision – Stage 7
Lot	Area (m²)	Shape	Lot	Area (m²)	Shape
161	1077	Regular	179	1059	Regular
162	637	Regular	180	961	Regular
163	647	Regular	181	819	Regular
164	657	Regular	182	815	Regular
165	1014	Corner	183	834	Regular
166	1267	Corner	184	865	Regular
167	504	Regular	185	870	Regular
168	603	Regular	186	989	Regular
169	598	Regular	187	529	Regular
170	609	Regular	188	545	Regular
171	638	Regular	189	615	Regular
172	1229	Corner	190	624	Regular
173	1249	Corner	191	627	Regular
174	1682	Regular	192	825	Corner
175	1161	Fan	193*	4320	Irregular
176	966	Fan	194**	767	Irregular
177	1341	Fan	195***	15,477	Irregular
178	716	Regular	Residue	28.5ha	Irregular

* Lot for drainage basin

** Lot for sewerage pump station

*** Lot for stage 7 riparian area

(2) Roads and pathways

· An extension to Tuckeroo Avenue will act as the main collector road connecting Stage 7 to the rest of the estate. Two additional roads (proposed roads 2 and 3) will branch off to the north and south, providing access to the remaining Stage 7 lots. Temporary turning circles will be required at the dead-end sections until such time as they are extended to service future subdivisions in the adjoining residential zoned land.

· A 2.5m wide concrete pedestrian pathway will extend along the northern side of the extension to Tuckeroo Avenue.

(3) Civil infrastructure and stormwater detention basin

· A sewage pumping station located approximately 30 metres from the bank of a creek line which runs past the existing sports fields to the north.

· A stormwater detention basin located to the north of the Tuckeroo Avenue extension and adjacent to the riparian corridor.

(4) Landscaping and street lighting

· Street trees and lighting is proposed within the in the Tuckeroo Avenue road reserve. The applicant has indicated that detailed landscaping plans will be submitted for approval with the construction certificate application.

(5) Earthworks

· Bulk earthworks comprising 23,000m³ of cut and 9,230m³ of fill which will be sourced on-site. The majority of the earthworks will be between 1m to 1.5m in depth. Excavation to a depth of 3m on the higher part of the site is proposed to create lots 177 – 181.

Figure 5: Location plan identifying the extent of the proposed subdivision (outlined in pink).

Figure 6: Site plan extract detailing the proposed road network and subdivision layout.

2. CONCEPT APPROVAL ASSESSMENT

In accordance with Section 4.24 of the Environmental Planning and assessment Act 1979 the proposed development must not be inconsistent with staged development consent 10.2009.314.11 which is in force at the time of writing this report. Section 4.24 (2) specifies:

4.24 Status of staged development applications and consents

(2) While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site.

An assessment has been undertaken against the various sections of the Future Stages Concept Plan and Statement Environmental Effects that form part of the Concept Approval. The proposed development is considered to be generally consistent with these provisions as detailed below.

Concept Approval Documents

Complies

Comment

Section 2 – Design principles

Section 2 includes an indicative land use plan for the Tallowood Ridge Site. The plan broadly reflects the development guidelines for the location of residential land, open space and roads under the former DCP No. 11 Mullumbimby which was in force prior to the granting of consent by the Court.

Refer to Land Use Plan 2.1C in Attachment 1.

Yes

The proposed subdivision seeks the following variations to Land Use Plan 2.1C:

· Residential lots 175 and 176 located within the a rural zone (nominated RU2 Rural Landscape Area).

· Residential Lots 161-172 and 187-192 located within the nominated ‘Buffer zone–Agriculture’.

The above mentioned variations are the result of a recent rezoning by Council which created additional R2 zoned land within these areas.

The agricultural buffer zone is no longer applicable as this land has been rezoned for residential use. Further the land is not being used for any agricultural activities such as grazing or horticulture.

The variations are considered to be generally consistent with the Concept Approval and are the result of recent zone changes to LEP 2014.

Section 4 – The location of development considering the natural features of the site

This section identifies the natural features of the site and identifies areas for conservation and rehabilitation.

Refer to Rehabilitation Plan 4.3B in Attachment 1.

Yes

Rehabilitation Plan 4.3B delineates areas for ‘development’ and ‘rehabilitation’. A major riparian corridor with an area of 10,600m2 which traverses the site will be replanted and reconstructed as part of the Stage 7 development.

Section 6 – Phasing of development

This section sets out the phasing and area of each stage and associated environmental restoration works.

Refer to Stages Plan 6.1B in Attachment 1.

Yes

Stage 7 + future stages

The footprint of Stage 7 extends outside the area nominated within staging plan 6.1B. Lots 166, 167-168 and 187-188 are within management zone 9 of the BCMP.

The Future Stage Concept Proposal document provides flexibility for future stages, noting that the actual development footprint for each stage could vary by up to 10%. The extent of the variation in this case exceeds this figure.

The applicant has put forward a view that the proposed subdivision constitutes the completion of stage 7, and also incorporates subdivision of the newly zoned land to the north-west as an additional element contained within the same development application.

As discussed in section1.4 of this report, development beyond stage 7 is not subject to the limitations of the Concept Approval. The proposed development footprint is considered to be permissible on the basis that it is consistent with Council future planning for the area.

Encroachment into management zone 9 nominated in the BCMP is addressed in more detail in the section addressing condition 59 below.

Section 9 – Subdivision pattern

The section sets out a vision for lot sizes in the estate. Lot sizes are intended to be predominately 600m².

Yes

The proposed subdivision pattern for Stage 7 consists of large allotments ranging in size from 504m² to 1331m² and is consistent with the subdivision pattern envisaged in the concept approval.

It is worth noting that Council recently amended the LEP 2014 lot size map for this part of the estate to allow a minimum subdivision lot size of 400m².

Section 14 – Provision of public facilities and services

When the Concept Approval was originally approved Land Use Map 2.1 did not include a commercial area for a neighbourhood shop as this was considered to be economically unviable.

Later amendments to Concept Approval on 13 April 2016 included a notation for a ‘potential neighbourhood shop site’ within the Stage 7 area, on the corner of Tuckeroo Avenue and Proposed Road 2.

Yes

Stage 7 includes residential lots in the area nominated for a potential neighbourhood shop. A neighbourhood shop would be a permissible use in the R2 zone and there is scope for the development of a shop within the estate if the demand arises in the future.

Following a review of the approved concept plan details it is considered that the proposed subdivision is generally consistent with the phasing and conditions of consent. Conditions of the Concept Approval that are relevant to this assessment are specified below:

Conditions of consent	Complies	Comment
Condition 5 Phasing of development The development must be carried out in 7 separate stages in accordance with the approved plans and conditions of consent Stage 7 subdivision and Stage 7 Plantings and restoration areas are to be carried out at the same time. Refer to Plan 6.1 in Attachment 1.	Yes	The proposal will see the commencement of the Stage 7 subdivision and Stage 7 plantings in accordance with condition 5. Additional subdivision of the newly zoned residential land is also proposed.
Condition 6 Modification to Future Concept Proposals (c) The access to Brushbox Drive per ‘DCP 11 Mullumbimby’, shown on Plan 8.1 of the ‘Future Concept Proposals’ document, is limited to bikeway construction only. Construction of vehicular access from the subdivision to Brush Box Drive may be considered within an alternative location (such as the end of Brushbox Drive) as part of Stage 7.	Yes	Plan 8.1 was modified to remove any road to Brushbox Drive. This occurred primarily for environmental reasons to minimise disturbance of the shelter belt. A shared bike way or pedestrian path linking the estate to Brush Box Drive is considered to be a desirable outcome. This connection will be outside the stage 7 area and is better dealt with as part of future stages. Such a pathway linking through to Brushbox Drive can be provided on cleared land to the west of Stage 7. This provision is currently embedded in DCP 2014 Chapter E3 Mullumbimby, Parts E3.6, prescriptive measure 2. Council will be required to give consideration to this DCP provision when considering future stages.
Condition 8 - Buffer to agricultural land A 50 metre buffer must be maintained between the 2(a) Residential Zone and the agricultural land located to the north. A fence is to be erected and maintained 50 metres inside the 1(a) General Rural Zoned part of the land at locations as shown on Plan 2.1 Land Use Plan of the ‘Future Stages Concept Proposal’ document as part of the development of stage 7.	N/A	The agricultural buffer zone shown on Plan 2.1C has now been rezoned to R2 Low Density residential. This condition is no longer applicable given the zones have been substantially changed since the Concept Approval was granted consent in 2010.
Condition 59 Biodiversity Conservation Management Plan The BCMP must incorporate a landscaped open space network that links the ‘shelter belt’ ‘existing native vegetation stands’ and ‘riparian zone planting’ areas. The provisions of the BCMP are to be adhered to at all times.	Yes* Modified BCMP	A modified BCMP has been submitted which provides for enhanced rehabilitation of existing riparian corridors in exchange for a reduction in the extent of management zone 9. In this regard the applicant has commenced planting an additional area within the riparian corridor nominated as Stage 2 and 3 amounting to a further 5000 m2 of plantings. Refer to Section 4.12 of this report for further discussion of the environmental impacts.

3. REFERRALS AND CONSULTATION

	Summary of Issues
NSW Rural Fire Service	A Bush Fire Safety Authority has been issued under Section 100B of the Rural Fires Act 1997.
NSW Department of Planning & Environment	Concurrence issued in relation to the SEPP 1 objection to vary the 40 hectare minimum subdivision lot size in clause 11 of LEP 1988.
Department of Primary Industries – Office of Water	The Department was contacted for comment but did not provide a response. A Controlled Activity Approval is required to construct the culvert and extension of Tuckeroo Avenue. A condition is recommended requiring the approval to be obtained prior to the issue of a construction certificate.
Bundjalung (Arakwal)	No objections subject to conditions of consent. Additional monitoring conditions are recommended for any subdivision works in proximity to the areas of significance previously identified in the Everick (2009) report.
Tweed Byron Land Council	No objections subject to conditions of consent. Support given to the improved monitoring conditions recommended by TBLALC.

4. ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

4.1 Section 4.46 – Integrated Development

Rural Fires Act 1997

The site is identified as Bushfire Prone Land. The proposed residential subdivision requires a Bush Fire Safety Authority under s100B of the Rural Fires Act 1997 and constitutes integrated development pursuant to s4.46 of the Environmental Planning and assessment Act 1979 (the Act).

The application was referred to the NSW Rural Fire Service seeking General Terms of Approval (GTAs) for the integrated development application. GTAs and a Bush Fire Safety Authority have been issued and are included as part of the recommended conditions at the end of this report.

Asset protection Zones have been identified on the subdivision plan which are located within each lot.

Water Management Act 2000

The access to the new residential area will require the construction of a culvert across a creek line to facilitate an extension of Tuckeroo Avenue. The work requires a Controlled Activity Approval (CAA) to be obtained under section 91 of the Water Management Act 2000.

The applicant has provided a written submission clarifying that the CAA will be applied for separately should consent be granted to the development application. A condition is recommended requiring the CAA to be obtained prior to the issue of a construction certificate for the subdivision works.

4.2 Section 4.15 Evaluation

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.

4.3 Section 4.15.1(1)(a)(i) the provisions of any environmental planning instrument

State Environmental Planning Policy No 1—Development Standards

A SEPP 1 objection to Clause 11 of Byron Local Environmental Plan 1988 has been lodged with the application in relation to the minimum lot size for part of the residue lot. This is addressed in Section 4.5 of the report, under Byron LEP 1988.

State Environmental Planning Policy No 44—Koala Habitat Protection

Parts of the site are considered to represent potential koala habitat. Previous survey results indicate the site is unlikely to be regarded as core habitat, but is known to be used for movement and dispersal. No adverse impacts on local koala populations are expected as a result of Stage 7 given there is no clearing of vegetation and no works proposed within the within the shelter belt and the southern ridgeline.

State Environmental Planning Policy No 55—Remediation of Land

The land was historically used for agricultural purposes including cattle grazing. No potentially contaminating land uses known to have operated on or near the site in recent times. The land is not within the proximity of any cattle dip sites and is not listed on Council’s Contaminated Lands Register.

A preliminary site investigation of the Stage 7 area was undertaken for the original staged development application no.10.2009.314.1; analysis of soil samples found the site to be suitable for residential use. Based on all the available information the land is considered to be suitable for the proposed development in its current state and does not require remediation.

Any unexpected contamination identified during subdivision works (buried tanks, building waste, asbestos etc.) is to be dealt with in accordance with an Unexpected Findings Protocol (UFP). The UFP is to be submitted to Council for approval prior to the issue of a construction certificate.

State Environmental Planning Policy (Coastal Management) 2018

All of the proposed residential allotments, roads, civil infrastructure and ancillary works are located outside the coastal zone. The Coastal SEPP does not apply to these elements of the proposed development.

The lower part of the residue lot near to Coral Avenue is within the coastal use mapped area and the coastal environment mapped area and the SEPP applies to this land. Given there is no physical works occurring in this location, nor any change to the land use or boundary alignments, it is concluded that the development will not have an adverse impact on the coastal environment and is satisfactory having regard to the relevant matters for consideration under the SEPP.

State Environmental Planning Policy (Rural Lands) 2008

The residue lot will retain a dwelling entitlement and the Rural SEPP is applicable to this element of the proposed subdivision. The preferred and predominant land uses in the surrounding area are residential and rural-residential uses and this is consistent with the future planning intent for the area. The remaining rural land in the residue lot has limited agricultural capability and the potential for land use conflict between urban and rural land uses is considered to be low.

4.4 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. The LEP 2014 clauses that are checked below are of relevance to the proposed development:

Part 1	☒1.1\| ☒1.1AA\| ☒1.2\| ☒1.3\| ☒1.4\| ☒Dictionary\| ☒1.6\| ☒1.7\| ☒1.8\| ☒1.8A\| ☒1.9\| ☒1.9A
Part 2	☒2.1\| ☒2.2 \| ☒2.3 \|☒Land Use Table \| ☒2.4 \| ☒2.5 \| ☒2.6 \| ☒2.7 \| ☒2.8
Part 4	☒4.1\| ☒4.1D\| ☒4.3\| ☒4.4 \| ☒4.5
Part 5	☒5.10\| ☒5.16
Part 6	☒6.1\| ☒6.2\| ☒6.3\| ☒6.6\| ☒ 6.7

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 Subdivision (including ancillary works and civil infrastructure);

(b) The land is within the R2 Low Density Residential zone, RU1 Primary Production zone and RU2 Rural Landscape zone according to the Land Zoning Map. Three small portions of the site are identified as a deferred matter and these areas revert to the 1(a) (General Rural Zone) under LEP 1988.

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

R2 Low Density Residential Zone

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

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

The proposed subdivision will provide additional land for housing in the Mullumbimby area. Large lot sizes will provide opportunities for the development of a low density residential environment consistent with the zone objectives.

RU2 Rural Landscape Zone

· 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.

The only physical works occurring in the RU2 land will be the extension of Tuckeroo Avenue and the riparian restoration works identified in the Concept Approval and the BCMP. Residential development on other parts of the site is contained within the R2 zone. The proposed subdivision will not have a significant effect on the rural character of the or the scenic qualities of the locality.

RU 1 Primary Production Zone

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

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

· To minimise the fragmentation and alienation of resource lands.

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

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

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

A portion of RU1 zoned land is contained within the residue lot near the intersection of Clays Road and Plover Parkway. No physical works or reconfiguration of the zone boundaries is proposed for this area. The proposed subdivision is adequately separated from this land by sports fields and a riparian corridor in the RU2 zone.

Clause 4.1 Minimum subdivision lot size

The minimum lot size in the R2 Low Density Residential zone on the subject land is 400m². The remainder of the site is zoned RU1 Primary Production, RU2 Rural Landscape and 1(a) (General Rural) zone. A 40 hectare minimum lot size applies to these areas.

As illustrated in the table below, the proposed lots in the R2 zone vary in size from 504m² to 3600m² and comply with the minimum lot size standard. The residue lot and riparian lot do not comply with the minimum lot size, an issue which is discussed further below. Special provisions are afforded to split zoned sites under clause 4.1D to facilitate the subdivision of the residue lot which is less than 40 hectares.

Table 2: Compliance with the Lot Size Map

Lot type	Zone	Min Lot Size	Proposed Lot Size	Compliance
32 Residential Lots	R2	400m²	504m²–1267m²	Yes
1 Drainage Lot	R2	400m²	3600m²	Yes
1 Infrastructure Lot	R2	400m²	930m²	Yes
1 Riparian Lot	RU2	40 hectares	1.16 hectares	No
1 Residue Lot	RU1, RU2, 1(a)	40 hectares	28.5 hectares	No

Clause 4.1D Exceptions to minimum subdivision lot sizes for certain split zones

Clause 4.1D allows the subdivision of split zoned sites which do not meet the minimum lot size standards specified under clause 4.1. The purpose of this provision is to ensure that subdivision occurs in a manner that promotes suitable land use and development.

Clause 4.1D Exceptions to minimum subdivision lot sizes for certain split zones

(1) This clause applies to each lot (an original lot) that contains:

(a) land in a residential, business or industrial zone, and

(b) land in Zone RU1 Primary Production, Zone RU2 Rural Landscape or Zone SP3 Tourist.

(2) Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if:

(a) one of the resulting lots will contain:

(i) land in a residential, business or industrial zone that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and

(ii) all of the land in Zone RU1 Primary Production, Zone RU2 Rural Landscape or Zone SP3 Tourist that was in the original lot, and

The proposal is considered to comply with the provisions of this clause because all of the rural zoned land will be contained within the residue lot, with the exception of 1.547 hectares that is to be dedicated to Council as a public reserve. The excision of land to create public reserve is exempt development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

Clause 5.10 Heritage Conservation

The site is known to contain an area of significance previously identified in a cultural heritage assessment undertaken by Everick consultants in 2009. The report identified the Mooibul Spur, part of which forms the southern boundary of the site, as being part of the cultural landscape. The Spur presents a likely access way used by Aboriginal people, between the Koonyum Ranges in the west and the Brunswick River to the east.

The report recommended that this natural feature be preserved by retaining as many trees as possible along the southern ridgeline. Any disturbance resulting from roads or sub-surface infrastructure is to be subject to a post clearance inspection to look for Aboriginal Objects that may have not been identified during past surveys.

Tweed Byron Local Aboriginal Land Council and Arakwal Aboriginal Corporation were notified as part of the advertising procedure for the current application. Specific comments were provided noting that any disturbance near the ridgeline should be supervised during the subdivision works, rather than being inspected in a post-clearance survey as recommended in the report.

A moderate amount of excavation will be undertaken to create lots 177–181, but this work will occur below the ridgeline and will not involve the removal of vegetation.

The development is considered to be consistent with the recommendations of the Everick report and is unlikely to result in adverse impacts on the cultural landscape. Conditions for the monitoring of excavation works in accordance with the recommendations of the TBLALC and Arakwal are included in the recommendations of this report.

Clause 6.1 Acid sulfate soils

The site is not included on the Acid Sulfate Soils Map; however, acid sulfate soils have been identified during the construction of previous stages in the lower lying areas. The main concern for stage 7 relates to the construction of a culvert to facilitate the extension of Tuckeroo Avenue.

Council’s Environmental Health Officer has recommended a condition requiring an acid sulfate soils investigation and management plan (ASMP) to be prepared and submitted for approval with the construction certificate. Should any acid soils be discovered, the ASMP will include provisions for neutralising and managing the soils on site during the construction phase.

Clause 6.2 Earthworks

Bulk earthworks comprising 23,000 cubic metres of cut and 9,230 cubic metres of fill is proposed in stage 7. Fill will be sourced internally from the site, ensuring infiltration characteristics will match the existing soil properties. The majority of the cut and fill will vary between 1m to 1.5m in depth, although a deeper section of excavation to approximately 3m is proposed to create lots 177-181. Deeper excavation will be graded with relatively smooth transitions to prevent the need for retaining walls.

A vegetated, eroded gully is located to the west of Stage 7 within the RU2 zone. As a result of filling to create residential lots, water flows from the gully will be diverted into a piped drainage system that will discharge into a bio retention basin near the Stage 7 riparian corridor. Council’s Development Engineer reviewed the proposal and noted that it was an acceptable solution and would not result in excessive peak flows or flooding of downstream properties.

Erosion and sediment runoff is a concern given the amount of material to be disturbed and the proximity of the development to creeks which drain into the Brunswick River. A condition is recommended for a detailed sediment and erosion control plan to be prepared and submitted for approval as part of the construction certificate application.

Clause 6.3 Flood planning

Parts of the subject site are identified in the North Byron Flood Study as flood prone land. Lower lying land near the Brunswick River and along the creek lines is identified as being subject to inundation during a 1 in 100 year ARI flood event. The flood planning level for the site is 7.67m AHD.

Residential lots in Stage 7 are located well above the flood planning level. Areas of concern relate to the bulk earthworks for the drainage basin and culvert needed to facilitate the extension of Tuckeroo Avenue.

The applicant submitted a flood study which identified only a minimal impact on the movement of floodwaters to downstream properties. The flood modelling for the proposed development does not identify any significant increase in the extent and level of flooding compared to the modelling for Stage 6 which has been accepted by Council as part of development application no. 10.2017.402.1. On the basis of the information supplied, the subdivision is considered to be compatible with the flood hazard of the land and satisfies the matters for consideration under this clause.

Clause 6.6 Essential services

The subdivision is capable of being serviced by reticulated sewage, water, electricity and telecommunications including NBN subject to conditions of consent. In relation to vehicular access, each lot is capable of being serviced with a driveway that connects to the public road network; no internal access driveways need to be constructed to service individual allotments as part of the subdivision works.

4.5 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 LEP 1988 clauses that are checked below are of relevance to the proposed development:

Part 1	☒1\| ☒2\| ☒2A\| ☒3\| ☒4\| ☒5\| ☒LEP 1988 Dictionary\| ☒7
Part 2	☒8\| ☒9
Part 3	☒10\| ☒11\| ☒24\| ☒38\| ☒38A\| ☒40\| ☒45\| ☒63

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

(a) The proposed development is defined in the LEP 1988 Dictionary as Subdivision (including ancillary works and civil infrastructure);

(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 No 1 (a) (General Rural)

(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,

(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.

Only a few small corners of the residue lot are within the 1(a) zone under LEP 1988. These areas are not near Stage 7 and will not be materially affected by the subdivision works. The proposed development will not have any adverse environmental impacts on land in the 1(a) zone and is consistent with the zone objectives.

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

There are no proposed instruments that are of relevance to the subject application.

4.7 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 DCP 2014 Parts/Chapters that are checked below are of relevance to the proposed development:

Part A	☒ Preliminary
Part B Chapters:	☒B2\| ☒B3\| ☒B4\| ☒B5\| ☒B6\| ☒B7\| ☒B8\| ☒B9\| ☒B11\| ☒B12\| ☒B13\| ☒B14
Part C Chapters:	☒C2\| ☒C3
Part D Chapters	☒ D6
Part E Chapters	☒ E3

These checked Parts/Chapters have been taken into consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act. The proposed development complies with all sections of these Parts/Chapters (in some cases subject to conditions and/or to the satisfaction of other assessing officers), except in relation to certain prescriptive measures which are considered further (having regard to the DCP 2014 Section A1 Dual Path Assessment) as follows

Part B14.2 Excavation and Fill in all zones

Prescriptive measure B14.2(1) provides that excavation and filling must be limited to a depth of 1 metre. The proposed excavation and fill generally varies from 1m to 1.5m except for proposed lots 177-181 which involve excavation to a depth of 3m and for the construction of the stormwater basin. Notwithstanding this non-compliance, the proposed earthworks are considered to satisfy the objectives and performance criteria of Part B14.2.

Objectives

1. To ensure that towns, villages, commercial, industrial, residential and rural areas maintain overall compatibility with the Shire’s natural features and its historical built character.

2. To control the extent, character, bulk and scale of earthworks so that both individual and cumulative earthworks over time do not detract from the existing and desired future character of their immediate locality, and the surrounding area.

3. To promote the use of earthworks to create landscapes and streetscapes that make a positive contribution to the existing and desired future character of their immediate locality and the surrounding area.

Performance Criteria

1. Development proposals must demonstrate that proposed earthworks will be compatible with the low rise, low to medium density form, scale and desired future character of their locality and immediate surrounds. Proposals must demonstrate that excavation and fill will be limited to ensure that:

a) Adverse visual impacts, bulk and scale of both the proposed earthworks and the resultant overall development are minimised;

b) Overshadowing of adjoining private and public land is avoided;

c) The scale and character of the resultant landform and buildings will remain compatible with their surrounds and with the desired future character of the locality;

d) Resultant drainage characteristics and systems both on the site and in the locality will be consistent with Chapter B3 Services and with Water Sensitive Urban Design Principles.

e) The need for engineering and support works is minimised;

f) Risk of geotechnical instability and/ or landslip is minimised.

2. Where earthworks are designed to facilitate and/ or improve thermal sustainability and insulation in buildings and developments rather than as structural or landscape elements, development proposals must demonstrate the particular benefits to be gained from those earthworks.

3. Earthworks must be designed to ensure that the community /pedestrian scale and character of commercial areas will be retained and reinforced.

4. Where filling is proposed to mitigate flooding and stormwater issues, details are to be submitted with the application demonstrating the fill will not have a significant adverse impact on the flow characteristics of flood waters or detrimentally increase the level of flooding or stormwater on other properties or development.

Given the undulating terrain and steep topography near lots 177-181, it is difficult to avoid earthworks exceeding 1m in depth. Overall, the visual impact from the proposed earthworks is not expected to be objectionable given the deeper areas of cut will be transitioned gradually to natural ground level to negate the need for retaining walls. Dwelling sites will sit below the tree line and will not detract from the scenic or environmental values of the southern ridgeline. The resulting land form and pattern of development will not be dissimilar to the earlier stages of the estate.

A flood study has been submitted demonstrating that no adverse impacts on downstream properties will occur as a result of the earthworks, including the filling of the lower parts of the site to construct the culvert and stormwater detention basin. In relation to geotechnical stability and stormwater, the use of existing material from the site will ensure infiltration characteristics match the existing soil profile. The stormwater basin is also proposed to detain stormwater to ensure it is treated and controlled before entering the local water course to the east which eventually drains to the Brunswick River. A variation to the numerical requirements under the DCP is supported in this instance

The proposed development is considered to comply with the relevant objectives and performance criteria for each relevant chapter of Byron DCP 2014. Consideration of the requirements in Chapter D6 Subdivision and Chapter E3 Mullumbimby is detailed below.

D6.2 Subdivision Design Guidelines	Compliance	Comment
1. Site Design	Yes	Most of the proposed lots have a northerly aspect and will offer reasonable access to views and breezes for future dwellings.
2. Climate Control and Aspect	Yes	Stage seven is situated on a north-facing slope; most of the allotments have a north-south orientation. The subdivision will facilitate good solar access and provide flexibility for the siting and design of future dwellings. Lots 173-177 have an east- west orientation, however, these parcels have been provided large lot sizes to allow the siting of a house that may not be parallel to the boundaries.
3. Hazards	Yes	The application has suitably addressed environmental hazards including flooding and bushfire. Lots 161 – 186 along the southern and eastern side of the subdivision will be burdened with asset protection zones on the title of each lot to ensure adequate separation distances to vegetation on the ridgeline and creek.
4. Vegetation removal	Yes	No vegetation removal is proposed.
5. Riparian Buffers and land fronting watercourses	Yes	Significant bush regeneration works are being undertaken throughout the riparian corridor which lies east of the stage seven area.
6. Landscaping	*Yes Condition	A condition is recommended for street trees to be provided
7. Roads	Yes	The subdivision will maintain the existing road hierarchy by extending Tuckeroo Avenue as the main thoroughfare throughout the estate. It is anticipated that the Stage 7 road network will interlink with future residential subdivisions on the recently rezoned land to the north-west.
8. Street Lighting	*Yes Condition	Conditions are recommended for street lighting to be provided in accordance with the provisions of DCP 2014. New lighting is to match the existing infrastructure design throughout the estate.
9. Public open space and public reserves	Yes	A pedestrian pathway in Tuckeroo Avenue will connect Stage 7 back to playgrounds and sports fields approved in earlier stages.
10. Stormwater Management	Yes* Condition	Stormwater is able to be adequately managed. Conditions are recommended.
11. Utility Services	Yes	Electricity and telephone services, including NBN, can be supplied to each lot.
12. Provision of Potable Water Supply	Yes	Reticulated water and sewer services are able to be provided to each lot.
13. Sewer	Yes
14. Geotechnical Report	Yes* Condition	Geotechnical report to be provided for the construction certificate application.

D6.3.3 Road Design and Construction	Compliance	Comment
15. The design of such works must comply with the Northern Rivers Development and Design Manual. Construction must be carried out in accordance with those requirements.	Yes	The road design complies with the Northern Rivers Development Design Manual.
16. Additional standards may apply in bushfire prone areas as per the requirements of the NSW Rural Fire Service.	Yes	The Bush Fire Safety Authority requires a temporary turning circle with a 12m outer radius to be provided at the termination of road 1 and 2. Road design must comply with section 4.1.3(1) of ‘Planning for Bush Fire Protection 2006’, except that a perimeter road is not required.

D6.3.4 Sewage Management	Compliance	Comment
1. Where Council deems that reticulated sewer service is available and feasible, each allotment created must be connected to Council's sewerage reticulation system.	Yes	Reticulates sewer service is available to the proposed subdivision. A new pump station is proposed to facilitate the proposed and future development.

D6.4.1 Lot Size and shape

Compliance

Comment

1. Lot sizes must not be less than the minimum area specified in Byron LEP 2014 on the lot size map.

Yes

All proposed allotments exceed the 400m² minimum lot size.

2. For lots that are not typical rectangular shaped lots, Table D6.1 indicates Council's preferred minimum lot sizes in urban subdivisions:

Table D6.1 – Preferred Minimum Lots Sizes – Urban Subdivision

Type of lot	Min. lot area
General lot	See lot size map
Corner lot	650m²
Hatchet-shaped lot	800m²
Hatchet shaped lot adjacent to public reserve	650m²
Fan-shaped lot (minimum frontage 7m)	650m²

Yes

The proposed lots are generally regular in shape, with the exception of three fan shaped parcels near the creek line which all have large areas ranging from 966m² to 1682m². Larger lot sizes are provided to allow a dwelling to be sited that is not parallel to the boundaries.

Lot 175 contains a native tree with hollows and potentially providing habitat. Conditions of consent recommended requiring the tree to be protected in terms of a no build easement around the tree with the lot increased in size and area to 1251m² to provide a suitable footprint around the tree for a future residential dwelling.

4. Lots must provide an appropriate shape and area to accommodate an unconstrained building envelope with minimum dimensions of 12 metres by 15 metres.

Yes

All proposed allotments have unconstrained building envelopes with minimum dimensions of 12m by 15m.

D6.4.2 Access Design

Compliance

Comment

1. Applications must demonstrate that vehicle access can be provided to each lot created by the subdivision in accordance with Chapter B3 Services. In certain circumstances, due to topography and other constraints, the driveway will need to be designed and constructed at the subdivision stage.

Yes

Vehicular access is able to be appropriately provided for each individual lot. No access driveways will need to be constructed as part of the subdivision works.

2. Additional standards may apply in bushfire prone areas as per the requirements of the NSW Rural Fire Service.

Yes

NSW RFS did not specify any requirements for driveways or internal access.

E3.6 Urban Design in Precinct 5

Compliance

Comment

1. The shelterbelt will have a minimum width of 20 metres and shall be planted with species locally indigenous to Byron Shire (refer to the Native Species Planting Guide to Byron Shire) along the southern boundary of Precinct 5 (Mullumbimby Urban Area Map) within the adjacent road reserve (See Figure E3.1 for design details). Existing native vegetation within the road reserve and within Precinct 5 is to be integrated with planted species.

Yes

Stage 7 does not encroach into the shelter belt. Replanting and bush regeneration works for this application are concentrated primarily around the riparian corridor which bounds the Stage 7 precinct to the east.

2. No vehicle access or roads to be provided from or constructed within the shelterbelt other than a potential link connecting Brushbox Drive within Precinct 7 to the proposed distribution road, as indicated in the Mullumbimby Urban Area Map. A shared bike/ pedestrian pathway in the shelterbelt will be considered on merit.

Yes

No vehicular access or roads through the shelter belt are proposed as part of stage seven.

Discussions between Council and the applicant have reached a consensus that a shared bikeway or footpath between Tallowood Estate and Brushbox drive would improve connectivity and is a desirable outcome for the community.

The most suitable location for a bike path or footway is further west of stage seven.

It is considered appropriate to pursue potential linkages as part of future development applications for the subdivision of the remaining residual residential land.

4.8 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 DCP 2010 Chapters/Parts that are checked below are of relevance to the proposed development:

Chapter 1 Parts:	☒A\| ☒B\| ☒C\| ☒F\| ☒G\| ☒H\| ☒K\| ☒ N
Chapters:	☒11\| ☒17

These checked Chapters/Parts have been taken into consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act. The proposed development is demonstrated to meet the relevant Objectives of DCP 2010.

Note. DCP 2010 only applies to three small corners of the residue lot that fall within the 1(a) (General Rural Zone). No residential lots or subdivision works are proposed in these areas.

4.9 Any Planning Agreement or Draft Planning Agreement?

There are no planning agreements associated with the stage seven subdivision application or with the original concept approval for the site.

4.10 Environmental Planning & Assessment Regulation 2000 Considerations

No clauses were identified for considerations that are relevant to this proposal.

4.11 Any coastal zone management plan?

There is no applicable coastal zone management plan.

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

Natural environment

Residential Lots 166, 167, 168, 187, 188 extend in part into the riparian area of Management Zone 9 which was intended to be restored. Further Road 2 does not comply with the NSW Water Guidelines for riparian corridors on waterfront land, which requires a 10 metre buffer to the banks of a Class 1 Water Course. In this regard Council has rezoned this part of Management Zone 9 R2 Low Density Residential with a site specific LEP amendment to Byron LEP 2014. The area in question will be developed for 5 residential lots with water from this ephemeral watercourse redirected by way of a piped network into the stormwater drainage basin. This comprises approximately 0.4 Hectares.

An additional offset is proposed to the north of Management Zones 1 and 2 comprising an area of approximately 0.52.hectares to embellish the riparian plantings in this location. The applicant has already commenced plantings in this area as this offset. It is considered this is a reasonable outcome with the offsets proposed. The BCMP is to be amended to reflect this and conditions of consent are recommended.

In terms of the NSW Guidelines for Riparian Corridors on Waterfront Land this will be a matter for consideration by DPI Water with the issue of the Controlled Activity approval under the Water Management Act 2000. In the event they require a buffer to the bank of this ephemeral water course, there is sufficient room for Road 2 to be relocated south into Lots 183 – 186 to facilitate this.

As to the ongoing management of Management Zone 9, this will remain as part of the residual lot owned by the developer. There are no plans at present for this to be dedicated to Council. The area is to be embellished by way of weed removal and the like, whilst the applicant has proposed to install a pool fence around this area to limit access considering safety issues in terms of the slopes of this small gully. It is noted the gully will not hold water permanently, but will drain to the local network of streams to the east of Stage 7 via the stormwater drainage basin.

There is some concern that Council will need to manage part of Management Zone 10 for bushfire asset protection zone (APZ’s). However all APZ’s are located within residential properties and not within Management Zone 10. The RFS have recommended that Easements be created for these APZ’s. In terms of Management Zone 10 this is part of the residual lot presently in the ownership of the developer and is not proposed to become a public reserve as part of the development application. The future ownership of Management Zone 10 and other residual vegetated area along the southern boundary will need to be resolved in the future.

Impacts on native vegetation have been considered with the development designed to limit impacts on native flora and fauna with the subject development located on cleared land and paddock. As discussed above additional planting in Management Zone 1 and 2 amounting to approximately 5200m2 of pasture area are to be planted out. This will embellish the existing riparian areas already planted with a further 2593 plants. The applicant has already commenced these plantings.

Two trees (a teak and foambark) within Lot 175 to be protected by way of covenant whilst the lot was increased in area from 1161 to 1251 m² to provide a suitable footprint for a dwelling on the property. The teak tree contains hollows which has some value as habitat for native fauna for nesting purposes. It is recommended that a section 88B instrument be placed on the title of the lot, setting out an exclusion zone around the TPZ to ensure future land owners are aware that the tree is to be retained. Conditions are also proposed during the construction phase to also protect the tree.

It is noted Management Zone 9 does not link or connect with vegetation further to the south severing any connection with the Mooball Spur. The main area of Management Zone 9, consisting of a small gully with remnant vegetation, will be embellished and is to be protected from further development. Not withstanding large areas of riparian land have and are being embellished to provide the connectivity between Mooball Spur (upland) and the Brunswick River (Lowland). This includes Management Zones 1, 2, 3 and 5 through to Management Zone 7.

Stormwater drainage and downstream water quality

Stormwater treatment and detention will be provided by a bio retention basin located adjacent to the Stage 7 riparian area. Gross pollutant traps will be installed at the head wall inlet at the southern end of the basin. The basin will also detain stormwater prior to it entering the local network of creeks which have been rehabilitated with riparian plantings prior to it entering the Main Arm of the Brunswick River. Significant work has already been undertaken in previous stages to embellish and repair existing riparian drainage lines throughout the estate with the plantings in Management Zones 1 through to 5 with additional works proposed in Management Zone 6.

Council’s Development Engineer concluded that the stormwater drainage and treatment system complies with Council’s stormwater quality standards subject to conditions of consent.

Concern was raised about the level and depth of earthworks proposed for the drainage basin in terms of Councils cut and fill requirements under DCP 2014 generally restricting works to 1 metre cut or fill. In this regard for the basin to be effective, works are proposed to construct earth walls around 2.7 metres high with a 1:3 batter. It is considered this is an appropriate engineering solution to manage stormwater and in accordance with Councils design specifications, whilst the cut and fill planning controls are predominantly orientated at earthworks for residential dwellings and the like. The drainage basin is suitably sited to collect urban stormwater runoff prior to entering the local network of streams. A suitable buffer is provided to the adjacent creek which has already been partly planted out with riparian species as part of Management Zone 4 and further plantings are required in Management Zone 6. These Management Zones/ Riparian areas are to be dedicated to Council as part of the subdivision process. In terms of earthworks the construction of the stormwater basin to be effective will necessitate a variation to the DCP controls which is supported in this instance as discussed previously in this report.

It is considered that stormwater will exit the development via an appropriate stormwater treatment train and that proposal will have minimal impact on the Brunswick River and its habitats. Appropriate conditions of consent are included in the recommendation to apply during the construction phase including the installations and maintenance of sedimentation and erosion control devices and a stormwater drainage basin.

Built environment

Urban Design and Landscaping

The landscaping and urban design for Stage 7 is intended to be similar to stages 1-6 of Tallowood Ridge. Submission of detailed landscaping plans will be required as part of the construction certificate application. Conditions are recommended for the landscaping, street lighting and urban design treatments to be consistent with earlier stages of the estate.

Access, Transport and Traffic

Tuckeroo Avenue will operate as the main collector road for Stage 7 and future stages. A 2.5m concrete path is proposed within the Tuckeroo Avenue Road reserve to provide pedestrian and bicycle access to the rest of the estate including the sports fields and recreation areas.

The existing and proposed road network has sufficient capacity to handle the anticipated level of traffic generated by Stage 7. Roads 1, 2 and 3 will require a local street type construction with 7-9m wide carriageway within 15-17m wide road reserves.

Council’s Development Engineer noted that the intersection of Azalea Street/Jubilee Street and Left Bank Road/Tuckeroo Avenue will require upgrading to an “AU” type auxiliary right turn and “CH” type channelized right turn..

Amenity

The majority of the proposed residential lots have a favourable north-south aspect, providing opportunities for views and breezes. It is anticipated that the subdivision is capable of providing a high level of amenity for future residents. In relation to the amenity of existing residents during the construction phase, suitable conditions are recommended to control hours of work, noise levels and construction traffic.

Hazards

There is a potential risk of bush fire from the vegetation along the southern ridgeline and the creek line to the east which is being regenerated. The application was supported by a bushfire risk assessment report which recommended asset protection zones over the rear of lots 161 and 173 to 186 by way of a section 88B instrument. This measure was endorsed by the RFS and is reflected in the conditions of the Bush Fire Safety Authority; except that the APZ for lots 183 to 186 must be increased to 21m.

In relation to flooding, all of the proposed residential lots are above the flood planning level of 7.67m AHD. Council’s Development Engineer did not raise any concerns in this regard and noted that the applicants flood study had demonstrated that the flood risk to downstream properties as a result of the proposed earthworks was minimal.

Construction impacts

A condition is recommended for a Traffic Control Plan to be prepared and implemented during construction of the Stage 7. The Traffic Control Plan must be prepared by a suitably qualified and RTA accredited Work Site Traffic Controller and adhered to at all times.

Conditions are recommended to control the level of noise during construction and the hours of work. Comprehensive sediment and erosion controls are to be implemented during the bulk earthworks and maintained until such time as the site is stabilised with grass cover or other suitable vegetation

Social and economic impacts in the locality

Approval of the development application may result in short term benefits to the local economy through additional employment in the construction industry. No significant long term economic or social impacts are expected.

4.13 The suitability of the site for the development

The site has been zoned for residential use and is part of a staged development consent for the development of the Tallowood Ridge Estate. The sites attributes are conducive to the proposed subdivision having regard to aspect, slope, drainage, bushfire, flooding and the availability of services. Certain environmental issues such as bushfire, drainage and environmental restoration are able to be managed through the imposition of conditions of consent.

The site is considered to be suitable for the proposed development.

4.14 Submissions made in accordance with this Act or the regulations

In accordance with Part A14 of Byron DCP 2014, the development application was advertised and notified for a period of fourteen days from 12 July 2018 until 25 July 2018. A total of four (4) written submissions were received from the public. Council officers also met with residents to discuss various concerns in person. The relevant issues raised have been summarised and addressed below.

Submission – Issue	Comment
Impact on Aboriginal pathway
· Concerned about the ancient Aboriginal walking track along the ridgeline from Koonyum Range to the ocean which lies through the Tallowood Estate and which was outlined in the original DA as of special significance and which should be protected.	Previous cultural heritage investigations for the site identified the southern ridgeline as being a likely pathway with cultural significance to the Arakwal and Tweed Byron LALC. A moderate amount of excavation will be required to create lots 177-181, which sit below the southern ridgeline, although the higher vegetated parts of the southern ridge itself will be unaffected. Tweed Byron LALC and Arakwal Aboriginal Corporation did not raise any objections to the proposed subdivision. Additional conditions for supervision and monitoring of any excavation near the ridgeline were recommended.
Public consultation
· Request that there be community consultation relating to this Stage 7, and the time for making submissions extended beyond the allocated 14 days.	Council has considered all public submissions made during the assessment. It is further noted that the matters discussed between staff and residents has also been given due consideration.
Impact on ridgeline and shelterbelt
· The community has been concerned over the impact of the Tallowood Ridge development on the High Conservation Value vegetation along the ridge line. This concern was supported by the Land and Environment Court proceedings to protect, enhance and ensure access to the "shelter belt". · The ridgeline has been identified as an area that would have been used as an important pathway for Aboriginal people. This area also contains important koala feed trees and is known to be used by koalas and is identified as a priority area in the Shire's Koala Plan of Management.	The stage seven residential area is situated below the ridgeline and will not have an adverse impact on the visual, environmental or culturally significant values of this important feature of the landscape. No works or clearing is proposed on the ridgeline as part of this DA. Works in the shelter belt for enhancement were carried out in earlier stages of the Tallowood Estate
Impacts on flora and fauna
· Brunswick Valley Landcare has identified the area as an important wildlife corridor along the Mooball spur and has lobbied for it to be included as a locally significant corridor for over a decade as per the Byron Biodiversity Conservation Strategy objectives.	Noted. The proposed subdivision does not intrude into the wildlife corridor or require the removal of any vegetation. It is also noted, the development of the Tallowood Estate has enhanced the wildlife corridor providing a vegetated link between the riparian areas of the Main Arm of the Brunswick River and the Mooball Spur.
Public access to the shelterbelt
· There is no public access to bushland on the southern ridgeline. This was meant to occur in earlier stages. It does not need a formal track just an access point to the proposed reserve to avoid it being landlocked by houses.	Acknowledged. Access to the bushland on the southern ridgeline, either formally or informally, is a good outcome for the community. However, creating a public access point in or near the Stage 7 lots near the southern ridgeline is not considered to be desirable given the land here is steep and heavily forested. A more suitable location would be further west of Stage 7 requiring limited clearing of vegetation to accommodate this pedestrian / bikeway link through to Left Bank road via Brushbox Drive.
Consistency with BCMP and Concept Approval
· Stage 7 will encroach into management zone 9 and is not consistent with the BCMP. · Residential development was meant to have a 50m buffer from RU2 land to the west	Acknowledged. An amended BCMP has been supplied which includes additional riparian zone plantings and restoration areas to offset the reduction of management zone 9. The agricultural buffer is no longer applicable because this land has been rezoned to R2 Low Density Residential.
Tree removal and isolation in earlier stages
· Land identified as a public reserve in earlier stages, including old growth vegetation, has been transferred into private residential lots.	Council has been in discussion with the applicant regarding the Large Tallowwood tree on Lot 130 in Stage 6 to be dedicated to Council. An application to amend that consent is required which the applicant is considering subject to further discussions with Council. This lot would then become a “pocket park” for the residents in stage 5 and 6. Notwithstanding, Council can not be expected to manage all old growth vegetation across the landscape having regards to the financial burden this places upon Councils budget and the rate payer. Where such vegetation does end up in private lots, better controls and conditions are required to protect trees such as the easements proposed for Lot 175.
· Creation of a public reserve for remaining vegetated areas along the southern boundary of the Tallowood Estate	The long term ownership of the residual land which comprises habitat along the southern boundary of the Tallowwood Estate is yet to be determined but it currently remains in private ownership. As discussed above, should the land be proposed to be dedicated to Council, this will place a financial burden on council in terms of management in the long term. Should this be proposed in future stages of the Tallowood Estate the financial impost on Council will need to be carefully considered.

4.15 Public interest

The proposed subdivision is considered to be generally consistent with the approved concept plan and the future planning intent for the site. The proposal 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.

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

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 and 2014.

The proposed development complies with relevant State Environmental Planning Policies

The proposed development complies with relevant provisions of Development Control Plan 2010 and 2014

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

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

How community views were addressed

The DA was notified/advertised in accordance with Development Control Plan 2014. Submissions were received and issues raised as discussed in the body of this report.

7. CONCLUSION

The proposed subdivision is considered to be generally consistent with the Concept Approval and aligns with Council’s future planning intent for the area. The subdivision has been assessed as complying with the relevant planning controls under Byron LEP 2014 and DCP 2014 and is unlikely to result in significant adverse impacts on the natural or built environment. The development will add a further 32 residential lots to current supply, adding to the existing Tallowwood Estate. The development application is recommended for approval subject to conditions of consent.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.2 - Attachment 3

Parameters of consent

Development is to be in accordance with approved plans

The development is to be in accordance with plans listed below:

Plan No.	Description	Prepared by	Dated:
Plan 2.1	Site Plan – Stage 7DA	-	June 2018
1002-DA82 Issue D	Subdivision Layout Plan	CivilTech	15/03/2019
1002-DA83 Issue D	Subdivision Layout with Arial Photo	CivilTech	15/03/2019
1002-DA85 Issue D	Bulk Earthworks Plan	CivilTech	15/03/2019
1002-DA86 Issue D	Roadworks Plan	CivilTech	15/03/2019
1002-DA87 Issue D	Stormwater Drainage and Catchment Plan	CivilTech	15/03/2019
1002-DA88 Issue C	Road 1 Long Section and Typical Section	CivilTech	30/11/2018
1002-DA89 Issue C	Road 1 Cross Sections	CivilTech	30/11/2018
1002-DA90 Issue C	Road 2 Long Section and Typical Section	CivilTech	30/11/2018
1002-DA91 Issue C	Road 2 Cross Sections	CivilTech	30/11/2018
1002-DA92 Issue C	Road 3 Long Section and Cross Sections	CivilTech	30/11/2018
1002-DA93 Issue C	Stormwater Basin and Culvert Typical Sections	CivilTech	30/11/2018
1002-DA94 Issue D	Sewer Reticulation Plan	CivilTech	15/03/2019
1002-DA95 Issue C	Water Reticulation Plan	CivilTech	30/11/2018
1002-DA96 Issue C	Schematic Services Plan	CivilTech	30/11/2018
1002-SK33	External Catchment Stage 7, 8 & 9 Sheet 1 Rev A	CivilTech	February 2019
Ref No 1002	Stormwater Management Assessment Tallowood Ridge Stage 7, 8 & 9	CivilTech	November 2018

The development is also to be in accordance with any changes shown in red ink on the approved plans or conditions of consent.

The approved plans and related documents endorsed with the Council stamp and authorised signature must be kept on site at all times while work is being undertaken.

Discovery of Aboriginal Relics

Upon discovery of any Aboriginal relics within the meaning of the National Parks and Wildlife Act 1974, the developer shall immediately notify the NSW Office of Environment and Heritage (OEH), Tweed Byron Local Aboriginal Land Council and the Byron Bay Aboriginal Corporation (Arakwal) and must immediately cease works within the vicinity until such time as the necessary permits have been obtained from OEH to continue the work. The developer must comply with any further request made by OEH to cease work for the purposes of archaeological assessment and recording.

No tree removal

This development consent does not authorise any native tree to be ringbarked, cut down, lopped, removed or damaged, or caused to be ringbarked, cut down, lopped, removed or damaged.

Integrated Development Approval

Integrated Development Approval is issued under Section 100B of the Rural Fires Act 1997, being a Bush Fire Safety Authority, subject to conditions listed in schedule 3 at the end of this consent. It is a requirement that the Applicant meet the terms of this integrated approval as part of the operation of this development consent.

The following conditions are to be complied with prior to issue of a Construction Certificate for subdivision works

Water Management Act 2000

A Controlled Activity Approval under the Water Management Act 2000 for the proposed works within an adjacent to existing watercourses must be obtained from the NSW Natural Resource Access Regulator. A copy of the approval must be provided to the Principal Certifying Authority prior to the issue of the a Construction Certificate for the development. The Construction Certificate Application to comply with any requirements of this approval.

Landscaping plan

A detailed landscaping plan for the Bioretention basin and the road reserves must be prepared by a suitably qualified landscape architect / architect /ecologist who has appropriate experience and competence in landscaping and submitted to the Principal Certifying Authority as part of the Construction Certificate application.

The landscaping plan must indicate the following as a minimum:

a) The planting style, diversity and species selection shall be in accordance with Section 5.8 and Tables 28 and 29 of bioretetention Technical Design Guidelines, Version 1.1 (Water by Design, 2014).

https://waterbydesign.com.au/download/bioretention-technical-design-guidelines

b) To prevent weeds from flourishing above the filter media, the planting density shall be double the rate specified Table 29 of the Bioretetention Technical Design Guidelines.

c) Plants in the Bioretention basin shall be selected to withstand significant periods of inundation and must be dense enough to mitigate the growth of weeds on top of the Bioretention basin filter area.

a) Landscaping treatments throughout the public road reserves including provision of street trees of the same or similar species as those used in earlier stages of the Tallowood Ridge Estate (e.g. Tuckeroo).

b) Street trees must be a minimum of 45 litres in size to provide an early established character to the development.

c) A minimum of one street tree per 15 metres of residential lot street frontage.

d) proposed location for planted shrubs and trees – trees should be located clear of infrastructure and service pits.

e) botanical name of shrubs and trees to be planted

f) mature height of trees to be planted

g) location of grassed and paved areas, and

h) location of trees identified for retention in the development application plans.

Such plans and specifications must be approved as part of the Construction Certificate.

Biodiversity Conservation Management Plan (BCMP)

Prior to the issue of the Construction certificate, a modified BCMP shall be submitted to Council for approval including the following amendments:

1. Additional Plantings to Management Zones 1 and 2 between the northern boundary of Lot 93 DP 1216681 and the edge of the existing riparian plantings.

2. Management Zone 9 to be reduced in area consistent with the subdivision plans comprising fencing to limit access to the area.

Tree Protection Zones to be shown and earthworks amended where necessary

The plans submitted for approval with the Construction Certificate must accurately show the Foam Bark and Teak trees to be preserved within Lot 175. The plans must also illustrate an overlay of the Tree Protection Zones for each of the trees formulated in accordance with AS 4970-2009 – Protection of Trees on Development Sites.

The Principal Certifying Authority shall be satisfied that no excavation or fill is proposed within any of the nominated Tree Protection Zones (TPZ). The earthworks plans submitted for approval with the Construction Certificate must be amended where necessary so that all of the proposed earthworks are occurring outside the nominated TPZ’s. Where changes to the extent of the earthworks are necessary to comply with this requirement, levels should transition gradually to natural ground level to avoid steep areas of cut and/or the use of retaining walls.

Engineering Construction Plans

Three (3) copies of engineering construction plans and specifications must accompany the Construction Certificate application demonstrating compliance with Council's standards for the required engineering works.

Each set of drawings must be accompanied by a Certification Report which must be signed by a suitably qualified Civil Engineer or Registered Surveyor. The Certification Report will comprise the certificate and check lists set out in Annexure DQS-A of the Northern Rivers Local Government Development & Design Manuals.

The information shown on the drawings must be logically collected on discrete sheets generally in accordance with Annexure DQS-B and the Sample Drawings of the Northern Rivers Local Government Development & Designs. The drawings are to provide for the following works:

a) Azalea St & Jubilee St Intersection upgrade

The intersection shall be upgraded to provide a Channelised Right Turn Treatment in accordance with Figure A3 of Austroads Guide to Road Design.

b) Left Bank Road & Tuckeroo Avenue Intersection upgrade

The intersection shall be upgraded to provide a Channelised Right Turn Treatment in accordance with Figure A3 of Austroads Guide to Road Design.

c) Full Width Road Construction

Full width road, kerb & gutter, drainage and footpath/bike path construction for all proposed roads on the approved plan.

d) Turn Around Areas

Turn around areas shall be provided in accordance with Condition 6 of RFS General Terms of Approval with reference no DA18/6185 DA 18070213785 PC dated 28 August 2018.

e) Service Conduits

Service conduits to each of the proposed new allotments laid in strict accordance with the service authorities’ requirements.

f) Street Name Signs

Street name signs and posts to all proposed new roads.

g) Stripping and Stockpiling

Stripping and stockpiling of existing topsoil on site, prior to commencement of earthworks, and the subsequent re-spreading of this material together with a sufficient quantity of imported topsoil so as to provide a minimum thickness of 80mm over the allotments and footpaths and public reserves, upon completion of the development works.

h) Inter-allotment Drainage

Inter-allotment drainage to an approved public drainage system for each of the proposed new allotments where it is not possible to provide a gravity connection of future roofwater to the kerb and gutter.

i) Cross Culverts under Road 1

A fully detailed design and construction plan shall be submitted with the CC. The cross culvert must be designed to accept the full catchment including the external catchment in accordance with Northern Rivers Local Government Development & Design Manuals.

The cross culvert shall be designed to cater for a 1 in 100 year ARI event without afflux and a minimum freeboard of 300mm from the design ARI event to the underside of the culvert.

j) Stormwater Drainage

Stormwater is to be collected and discharged in accordance with Council’s standards, currently Northern Rivers Local Government Development Design & Construction Manuals. A full and detailed stormwater management plan for the site must be provided for Council's records at the time of lodging detailed engineering plans for construction certificate approval. The drawings and management plan must be accompanied by a Design Submission Checklist as set out in APPENDIX C of the Northern Rivers Local Government Handbook of Stormwater Drainage Design, which must be signed by a suitably qualified Civil Engineer or Registered Surveyor. The drawings and management plan are to include, but not be limited to, the following items:

a) Catchment plan including all contributing external catchments (included in the drawing set);

b) The external catchment must be designed to cater for a 100year ARI including a positive relief outlet. This system must be contained within a reserve or an easement.

c) Detailed hydrological and hydraulic design calculations based on the methods outlined in the Queensland Urban Design Manual (QUDM) and Australian Rainfall & Runoff (AR&R) 1987. A summary of the calculations must be included on the drawings consistent with the Sample Drawings of the Northern Rivers Local Government Development & Design Manuals.

d) Fully detailed design & construction plan of the major and minor drainage systems including the detention system generally in accordance with the approved plan;

e) Stormwater management structures/facilities that have minimum impact on Council’s maintenance program. All maintenance activities must be specified in a maintenance plan (and associated maintenance inspection forms) to be developed as part of the design procedure and included in the stormwater management plan.

k) Stormwater Outlets

An energy dissipating pit with a suitably installed locked grated outlet to all pipes or any other drainage structures. Grates must be of galvanised weldlock construction.

l) Stormwater Quality

Stormwater quality must be suitable for discharge in accordance with Council's standards, currently Chapter B3 Services of Development Control Plan 2014 and Northern Rivers Local Government Development Design & Construction Manuals. The proposed water quality management devices and treatment train must have minimum impact on Council’s maintenance program. All maintenance activities must be specified in a maintenance plan (and associated maintenance inspection forms) to be developed as part of the design procedure and submitted with the construction certificate documentation.

A fully detailed design of all Stormwater Quality Improvement Devices (SQIDs) in accordance with Stormwater Management Assessment Tallowood Ridge Stage 7, 8 & 9 prepared by CivilTech Consulting Engineers dated 17 November 2018 shall be submitted for assessment and approval as part of the CC. The following shall be included and verified for the proposed Bioretention Basin but not limited to:-

d) Extended Detention Depth of 1.0m, this depth is the difference in level from the top of the filter layer up to the invert level of the outlet pipes (5 x 450mm RCP);

e) Filter Depth of 1.2m, this depth is the thickness of the filter media excluding the thicknesses of the drainage layer and transition layer;

f) Design & Sizing of the subsoil drainage pipes including the slots;

g) Provision of coarse sediment forebay.

h) Landscaping – the plants in the Bioretention basin should be selected to withstand significant periods of inundation and must be dense enough to mitigate the growth of weeds on top of the Bioretention basin filter area.

i) Maintenance Access

j) Maintenance Plan (identify all maintenance plant and equipment but not limited to)

m) Access to Stormwater Structures

Satisfactory access to all drainage discharge points and filter controls for maintenance purposes.

n) Street Lighting

The provision of street lighting to the satisfaction of Byron Shire Council and Essential Energy. Such lighting must be strategically positioned to minimise spill impacts on future dwellings within the subdivision and existing dwellings within adjacent properties.

The Plans to comply with the requirement of the Controlled Activity Approval under the Water Management Act 2000.

10.

Sewerage and Water Mains

An approval is to be obtained under Section 68 of the Local Government Act 1993 to carry out water supply and sewerage works.

Sewerage and water mains are to be extended to service all residential allotments in the subdivision. All Council gravity sewerage mains are to be a minimum 150 mm diameter and water mains are a minimum 100mm diameter.

Water supply and sewerage works are to comply with Council's latest Standards and Policies including but not limited to:

· Development Design and Construction Manuals, Northern Rivers Local Government, 2009;

· Development Servicing Plan for Water Supply Services, Byron Shire Council, 2011;

· Development Servicing Plan for Sewerage Services, Byron Shire Council, 2011;

· Fire Flow Design Guidelines, Water Directorate, 2011;

· Water and Sewer Equivalent Tenement Policy (13/005), Byron Shire Council, 2013;

· Pressure Sewerage Policy (12/014), Byron Shire Council, 2012.

· Private Sewer Pump Station Policy (12/015), Byron Shire Council, 2012.

Upgrade SPS2010 storage capacity to at least 50 kL and upgrade each individual submersible sewerage pump in SPS2010 such that the flow rate is equal to at least 12.1 L/s at maximum head.

11.

Erosion and Sedimentation Control Plan

The plans and specifications to accompany the construction certificate application are to include a sediment and erosion control plan to indicate the measures to be employed to control erosion and loss of sediment from the site. The sediment and erosion control plan is to be designed in accordance with the requirements of the NSW Department of Housing Manual (1989), Managing Urban Stormwater, Soils and Construction.

A suitably experienced person must prepare the sediment and erosion control plan. Suitably experienced people include those certified by:

· The Institution of Engineers, Australia, for engineering and hydrology matters.

· The International Erosion Control Association for soil conservation matters.

· The Australian Society of Soil Science for collection or analysis of soil data.

The plan must incorporate (without being limited to) information on general site management, material handling practices, soil stabilisation, water control, sediment control, wind erosion control and access measures.

12.

Long Service Levy to be paid

Long Service Levy in accordance with the requirements of the Long Service Corporation is required to be paid prior to issue of the Construction Certificate. This is a State Government Levy and is subject to change.

These payments may be made online at www.longservice.nsw.gov.au or at Council’s Administration Office, Station Street, Mullumbimby. Where paying to Council, cheques are to be made payable to ‘Byron Shire Council’.

For further information regarding the Long Service payment please refer to the website above.

13.

Street Name Application to be lodged

Street / road names for the subdivision must be submitted for Council approval prior to issue of the Construction Certificate.

An application for approval of a street name must be in writing (letter or email) and is to include:

a) at least 2 names for each proposed road in preferential order;

b) the location and extent of the road;

c) background/history of the selected name/s;

d) details on why the selected name is considered to be appropriate;

e) details on how the selected name conforms with Council’s Street Name Policy and the NSW Address Policy;

f) a locality plan;

g) a layout plan showing proposed road/s and selected name/s suitable for publishing in the local newspaper; and

h) payment of fees in accordance with Council’s adopted schedule of fees and charges.

14.

Fibre-ready Facilities and Telecommunications Infrastructure

Prior to the issue of the Construction Certificate in connection with a development, the developer (whether or not a constitutional corporation) is to provide evidence satisfactory to the Certifying Authority that arrangements have been made for:

(i) the installation of fibre-ready facilities to all individual lots and/or premises in a real estate development project so as to enable fibre to be readily connected to any premises that is being or may be constructed on those lots. Demonstrate that the carrier has confirmed in writing that they are satisfied that the fibre ready facilities are fit for purpose; and

(ii) the provision of fixed-line telecommunications infrastructure in the fibre-ready facilities to all individual lots and/or premises in a real estate development project demonstrated through an agreement with a carrier.

(Note real estate development project has the meanings given in section 372Q of the Telecommunications Act).

15.

Unexpected Findings Protocol - Contamination & Remediation

An Unexpected Findings Protocol (UFP) shall be prepared and submitted to Council for approval prior to the issue of Construction Certificate. The UFP shall be prepared by a suitable qualified person experienced in matters relating to Contamination of Land and Remediation.

16.

Acid Sulfate Soils Management Plan must be submitted to Council for approval

Acid Sulfate Soils Management Plan must be submitted to Council for approval by prior to the issue of a Construction Certificate for subdivision works. The ASMP must detail measures to be undertaken for the management the disturbance of acid sulfate soils during construction works including:

a. Construction of the Culvert as shown on Cut / Fill Depth Plan Drawing No. 1002-DA85 (Sheet 5of 16) prepared by CivilTech Consulting Engineers dated 5/6/18.

Investigations and management of ASS must be undertaken by a suitably qualified environmental consultant in accordance with the Acid Sulfate Soil Manual (ASSMAC, 1998).

Note: The ASSMP must be dated subsequent to the date of the consent and approved by Councils EHO involved with the subdivision development. .

17.

Site Waste Minimisation and Management Plan

Chapter B8 of Byron Shire Development Control Plan 2014 (DCP 2014) aims to facilitate sustainable waste management in a manner consistent with the principles of Ecologically Sustainable Development. Prior to the issue of a Construction Certificate, a Site Waste Minimisation and Management Plan (SWMMP) must be submitted outlining measures to minimise and manage waste generated during demolition, construction and the ongoing operation and use of the development. The SWMMP must specify the proposed method of recycling or disposal and the waste management service provider.

A template is provided on Council’s website to assist in providing this information www.byron.nsw.gov.au/files/publication/swmmp - pro-forma-.doc

18.

Certification of fill to be provided to Council

Copy of documentation certifying that fill contained on the subject site is from a source that is clean and uncontaminated must be provided to Council prior to the issue of a Construction Certificate for the development.

The following conditions are to be complied with prior to commencement of subdivision works

19.

Trees to be retained and fenced

Trees to be retained are to be protected by a Tree Protection Zone (TPZ) exclusion fence. The fence is to be constructed in accordance with Sections 3.2 and 4.3 of AS4970-2009 Protection of trees on development sites. The fence must:

a) be located outside the dripline of the tree so as to minimise disturbance to tree roots;

b) have a minimum height of 1.8 metres;

c) be constructed of wire mesh panels, plywood, steel star pickets or similar, with a maximum distance of 2metres between star pickets;

d) have a minimum of 3 strands of steel wire or similar;

e) have high visibility barrier mesh (eg orange), shade cloth or similar, attached to the outside of the fence and continuing around its perimeter;

f) include at least one Tree Protection Zone (TPZ) sign in accordance with Section 4.4 of AS4970-2009.

Activities that are excluded within the TPZ (as per section 4.2 of AS4970-2009) include excavation, construction activity, grade changes, surface treatment and storage of material. The Tree Protection Zone (TPZ) exclusion fence is to be maintained for the duration of the site clearing, preparation, construction and landscaping works.

20.

Erosion and sediment measures

Erosion and sedimentation controls are to be in place in accordance with the approved Erosion and Sediment Control Plan.

No soil or fill material is to be placed within the dripline of a tree so as to cause changes in surface level by more than 50mm from the existing level and such soil is not to be compacted. Such soil fill must not be finer than that being covered in situ, e.g. clay must not be placed over loam soil.

Note: Council may impose on-the-spot fines for non-compliance with this condition.

21.

Acid sulfate soils management

All treatment and storage facilities associated with the approved Acid Sulfate Soils Management Plan must be in place prior the commencement of subdivision works.

22.

Subdivision Work

Subdivision work in accordance with the development consent must not be commenced until a construction certificate has been issued, a principal certifying authority has been appointed and at least 2 days’ written notice for the intention to commence works has been made, in accordance with the requirements of the Environmental Planning and Assessment Act and Regulations. The written notice for the intention to commence works must also include names and contact details of the certifying engineer and principal contractor.

Note. Subdivision work means any physical activity authorised to be carried out under the conditions of this development consent for the subdivision of land, including earthwork, road work, stormwater drainage work, landscaping work, tree/vegetation removal, erosion and sediment control, traffic control, etc.

23.

Metered Stand Pipe required

Prior to the commencement of any civil works requiring water from Council water main, a metered Stand Pipe for temporary water supply must be supplied and installed by Council. Contact Council’s Water and Recycling Department to arrange for this requirement on 02 6626 7081.

Note: Council may impose on-the-spot fines for non-compliance with this condition.

The following conditions must be complied with during subdivision works

24.

Construction noise

Construction noise is to be limited as follows:.

a) For construction periods of four (4) weeks and under, the L10 noise level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 20 dB(A).

b) For construction periods greater than four (4) weeks and not exceeding twenty‑six (26) weeks, the L10 noise level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 10 dB(A).

25.

Construction times

Construction works must not unreasonably interfere with the amenity of the neighbourhood. In particular construction noise, when audible from adjoining residential premises, can only occur:

a) Monday to Friday, from 7 am to 6 pm.

b) Saturday, from 8 am to 1 pm.

No construction work to take place on Saturdays and Sundays adjacent to Public Holidays and Public Holidays and the Construction Industry Awarded Rostered Days Off (RDO) adjacent to Public Holidays.

Note: Council may impose on-the-spot fines for non-compliance with this condition.

26.

Public safety requirements

All care is to be taken to ensure the safety of the public in general, road users, pedestrians and adjoining property. Council is not held responsible for any negligence caused by the undertaking of the works.

27.

Council Specification

All works to be constructed to at least the minimum requirements of the “Northern Rivers Local Government Design and Construction Manual”

28.

Approved Plans to remain on site

A copy of the approved Construction Certificate including plans, details and specifications must remain at the site at all times during the construction of the subdivision.

29.

Placement of services near trees

All care is to be taken to manually excavate around or under any lateral structural support roots of any tree so as minimum root disturbance where services are to be laid within the dripline of a tree.

30.

No filling around trees

No soil or fill material is to be placed within the dripline of a tree so as to cause changes in surface level by more than 50mm from the existing level and such soil is not to be compacted. Such soil/fill must be finer than that being covered in situ, e.g. clay must not be placed over loam soil.

31.

Public safety requirements

32.

Acid sulfate soils management

All soil disturbance and excavation works must be carried out in accordance with the approved Acid Sulfate Soils and Water Management Plan.

33.

Builders rubbish to be contained on site

All builders rubbish is to be contained on the site in a ‘Builders Skips’ or an enclosure. Footpaths, road reserves and public reserves are to be maintained clear of rubbish, building materials and all other items.

34.

Prevention of water pollution

Only clean and unpolluted water is to be discharged to Council’s stormwater drainage system or any watercourse to ensure compliance with the Protection of Environment Operations Act.

35.

Maintenance of sediment and erosion control measures

Sediment and erosion control measures must be maintained at all times until the site has been stabilised by permanent vegetation cover or hard surface.

36.

Protection of Native Trees

All trees nominated to be retained by notation or condition as a requirement of the development consent shall be maintained and protected during demolition, excavation and construction on the site in accordance with AS 4970-2009 – Protection of Trees on Development Sites.

37.

Monitoring of excavation works

No ground disturbing works near the southern ridgeline in the areas identified in the Cultural Heritage Assessment Report prepared by Everick dated June 2009 as the ‘post clearing inspection areas’, is to occur unless a representative from Tweed Byron Local Aboriginal Land Council and Byron Bay Aboriginal Corporation (Arakwal) is present to monitor the ground disturbing works while they are being undertaken.

The following conditions must be complied with prior to issue of a Subdivision Certificate

38.

Subdivision Certificate application required

An application for a Subdivision Certificate must be made on the approved form. The Subdivision Certificate fees, in accordance with Council's adopted schedule of fees and charges, must accompany such application.

NOTE: The application MUST be one complete concise package addressing ALL conditions of consent relevant to the subdivision with a clear explanation how each condition has been complied with, together with supplying ALL the relevant information /documents/ certificate and/or plans that is required by that condition. Failure to provide the abovementioned information in one package will likely result in the application being refused or rejected and returned to you.

39.

Plan of Subdivision

The final plan of subdivision must be in accordance with the approved plan/s. A Deposited Plan Administration Sheet (original plus one (1) copy), two (2) copies of the plan of subdivision and any necessary section 88B instrument (original plus one (1) copy) are to be submitted with the application for a subdivision certificate.

An additional copy of the final plan of subdivision is to be submitted showing the location of all buildings and/or other permanent improvements including any fences, internal access driveways/roads, and where relevant effluent disposal areas and the 1 in 100 year flood and flood planning level extents on land within or adjacent to a flood planning area. Where the building/s or improvements are close to boundaries, offset distances are to be included on the additional copy of the plan. This plan must be endorsed by a Registered Surveyor. Any encroachments affecting new boundaries or the road reserve must be removed or relocated wholly within the allotment. The new boundaries must not cause any existing building/s to contravene the Building Code of Australia.

Final plan of subdivision to indicate lots 193, 194 and 195 to be transferred to Council.

40.

Certificate of Compliance – Water Management Act 2000

Water and sewer services are to be provided to the land in accordance with an approval granted under Section 68 of the Local Government Act 1993.

Payment of developer charges to Byron Shire Council for water supply and sewerage.

A copy of the Certificate of Compliance under Section 307 of the Water Management Act 2000 is to be obtained from Byron Shire Council prior to the issue of a Subdivision Certificate.

Application forms are available from Council’s administration building or online at http://www.byron.nsw.gov.au/files/Forms/Section_305_Certificate.pdf to be submitted for a Certificate of Compliance.

41.

Developer Contributions to be paid

Contributions set out in the schedule below are to be paid to Council prior to the release of a subdivision certificate. Contributions are levied in accordance with the Byron Shire Developer Contributions Plan 2012 (as amended). The Plan may be viewed on line at http://www.byron.nsw.gov.au/ or during office hours at the Council Offices located at Station Street, Mullumbimby. These contributions are to fund public amenities and services as listed in the schedule. Additional details on the specific amenities are to be found in the Byron Shire Developer Contributions Plan 2012 (as amended).

The contributions as set out in the schedule may either be paid in full or they may be paid in stages on a proportional basis dependent on the number of lots to be released in the subdivision certificate.

The contributions in the schedule are current at the date of this consent. The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. The schedule contains a date for which the schedule remains valid, after this date you will have to contact Council for an updated schedule.

Note: The local and LGA wide open space and recreation contributions has been reduced to zero due to land previously dedicated in DA 10.2009.314.10 and the works and land dedication specified in DA 10.2009.151.4 Stages 1 and 2.

42.

Certificates for engineering works

The submission of all test certificates, owners manuals, warranties and operating instructions for civil works, mechanical and/or electrical plant, together with a certificate from a suitably qualified engineer certifying that all works have been constructed in accordance with the approved plans and Council’s current “Northern Rivers Local Government Design and Construction Manuals and Specifications”.

43.

Works-As-Executed Plans

Following completion of works and prior to issue of the subdivision certificate, Work-as-Executed Drawings, together with a Work-As-Executed Certification Report, in accordance with Council’s requirements are to be submitted to Council. Two categories of Work-as-Executed Drawings are to be submitted to Council, being Amended Design Work-as-Executed Drawings and Summary Work-as-Executed Drawings.

Amended Design Work-as-Executed Drawings, being certified copies of all approved design plans with as constructed departures, deletions and additions clearly noted and detailed on the plans, are to be submitted to Council in the following formats:-

(a) One (1) paper copy at the same scale and format as the approved design plans, but, marked appropriately for as constructed information and with original signatures; and

(b) An electronic copy of above in PDF format and provided to Council on CD, DVD or via email.

Summary Work-as-Executed Drawings are to be prepared on a background plan of lot layout and kerb lines with a set of separate plans for stormwater drainage, sewerage, water supply and site works. The site works drawing/s shall include the 1 in 100 year flood and flood planning level extents and levels, where relevant. Such drawings are to be submitted to Council in the following formats:-

a) One (1) paper copy of each drawing with original signatures and in accordance with Council’s requirements.

b) Electronic copy of the above in AutoCAD DWG or DXF format and provided to Council on CD, DVD or via email. The AutoCAD (DWG or DXF) files are to be spatially referenced to MGA Zone 56.

c) Electronic copy of above in PDF format and provided to Council on CD, DVD or via email.

Note: Council’s requirements are detailed in Council’s adopted engineering specifications, currently the Northern Rivers Local Government Development Design and Construction Manuals, and on Council’s website.

44.

Water service and meter to be connected to each lot, dual occupancy and strata subdivisions

An approval under Section 68 of the local Government Act 1993 to carry out water supply work and sewerage work must be obtained. Water metering to be in accordance with Byron Shire Councils Water metering Requirements

Any new water service and meter will be at applicants cost”.

Each Dwelling/ Unit/ Shop capable of being subdivided under Torrens, Community or Strata title shall have a separate meter

45.

Certificate for services within easements

The submission of a certificate from a registered surveyor certifying that all pipelines, structures, access driveways and/or services are located wholly within the relevant easements.

46.

Section 88B Instrument

A Section 88B Instrument and one (1) copy are to be submitted with the application for a subdivision certificate. The final plan of subdivision and accompanying Section 88B Instrument are to provide for:

a) Dedicated Public Road Access

Dedication of suitable public road accesses to all proposed allotments.

b) Inter-allotment Drainage Easements

The creation of easements for drainage of water, with a minimum width of 1.5 metres, over all inter-allotment drainage pipelines and structures located within the proposed allotments.

c) Drainage Easements

The creation of easements for drainage of water over all drainage pipelines and structures located within the proposed allotments in accordance with Council’s policy.

d) Drainage Reserve

The dedication of drainage reserve over the drainage treatment devices and constructed access.

e) Restricting Development – On-site Stormwater Detention

Restricting residential development of each vacant allotment until the proprietor has constructed or made provision for the construction of an on-site stormwater detention system to the requirements of Byron Shire Council.

f) Sewer Easements

The creation of easements for drainage of sewage over all sewage pipelines and structures located within the proposed allotments in accordance with Council’s Building Over Pipelines Policy 4.20.

g) Easement for Services

The creation of suitable easements for services over the access handle(s) of proposed Lot(s)

47.

Restriction for preservation of native trees(Teak and Foambark) on Proposed Lot 175

The final plan of subdivision and accompanying Section 88B Instrument are to provide for the following restriction on the use of land:

The Owner of the Lot Burdened must prohibit the following within the area denoted on the Plan as being subject to the Restriction on Use:

a) The destruction or removal the native trees indicated.

b) Any act or omission which may adversely affect the native trees;

c) The removal, introduction or disturbance of any soil, rock, or sand within the marked area;

d) Any structures, including dwellings, sheds, car ports and swimming pools.

48.

Plantings, restoration and Landscaping works.

Prior to the issue of a subdivision certificate, the developer must demonstrate to Council’s satisfaction the following matters:

(a) Additional Plantings within management Zones 1 and 2 to be completed in accordance with the BCMP.

(b) The Stage 7 Plantings and Restoration Works within Management Zone 6 have been carried out in accordance with the BCMP.

(c) Management Zone 9 to be enhanced in accordance with the BCMP. An Appropriate pool fence to be erected around the Management Zone to limit pedestrian access

(d) Management Zone 8 to be weeded in accordance with the BCMP

(e) Additonal Plantings to be completed in Management Zone 4 adjacent to the culvert on road 1 (Tuckeroo Avenue)

(f) The Boundaries of Management zones 5, 6 and 7b to be fenced as required in the BCMP.

(g) Maintenance and Monitoring Reports as required under the BCMP to be submitted to Council.

(h) All landscaping works as required under this consent have been completed

49.

Erection of Street Signs

The subdivider is to supply and erect street signs for the approved street names in accordance with this development consent and the Construction Certificate approval.

50.

CCTV Inspection and Report

CCTV inspection must be undertaken on all completed underground pipe systems, including the sewerage reticulation,in accordance with Council’s specification. Both a hardcopy and electronic copy of the report (submitted in CD or DVD medium in a format suitable to Council) of the CCTV inspection must be provided to Council for consideration prior to the release of the Subdivision Certificate, Occupation Certificate, Final Inspection for Section 68 Approvals, "Off-maintenance" or Release of Security Bond.

51.

Electricity Supply Certificate

Written evidence from an electricity supply authority is to be submitted with the application for a subdivision certificate stating that satisfactory arrangements have been made for the provision of underground electricity supply throughout the subdivision.

52.

Fibre-ready Facilities and Telecommunications Infrastructure

Prior to the issue of the Subdivision in connection with a development, the developer (whether or not a constitutional corporation) is to provide evidence satisfactory to the Certifying Authority that arrangements have been made for:

1. the installation of fibre-ready facilities to all individual lots and/or premises in a real estate development project so as to enable fibre to be readily connected to any premises that is being or may be constructed on those lots. Demonstrate that the carrier has confirmed in writing that they are satisfied that the fibre ready facilities are fit for purpose; and

2. the provision of fixed-line telecommunications infrastructure in the fibre-ready facilities to all individual lots and/or premises in a real estate development project demonstrated through an agreement with a carrier.

(Note real estate development project has the meanings given in section 372Q of the Telecommunications Act).

53.

Geotechnical Report (Lot Classification)

A certificate from a practicing Geotechnical Engineer must be provided in conjunction with a Lot Classification Report prepared in accordance with Australian Standard AS2870.1. Such certificate must certify that all vacant allotments have a building site of adequate size and shape on each lot that is not subject to slip or subsidence.

54.

Maintenance Bond

A maintenance bond of 5% (minimum bond amount of $1,000.00) of the value of the works constructed is to be lodged with Council. A copy of the contract construction cost of the subdivision works is to be submitted with the bond. The maintenance period is 6 months in accordance with Council’s current Design & Construction Manuals for roads, water, sewer, stormwater and general landscaping. A five year maintenance period to apply to the riparian plantings in Management Zone 6.

The applicant is responsible for the maintenance of Bio-retention and Detention Basins until the completion all stormwater works in the contributing upstream catchment and the 12 month maintenance period of the Bio-retention and Detention Basin commences upon Council’s acceptance of all contributing upstream stormwater works On-Maintenance.

The period will commence from the date of issue of the Subdivision Certificate. The security may be provided, at the applicant's choice, by way of cash bond or a satisfactory bank guarantee. An application in writing for the release of the bond must be made at the satisfactory completion of the maintenance period.

55.

Record of Infrastructure

A record of infrastructure coming into Council ownership, upon registration of the final plan of subdivision, is to be submitted to Council. The information is to be submitted in the form of Council’s Standard Form titled “Asset Creation Record”. This form is available from Council’s Local Approvals Section.

56.

Acid sulfate soils

The works engineer must certify to the Principal Certifying Authority that all works have been carried out in accordance with the approved Acid Sulfate Soils Management Plan. Documentary evidence must be provided confirming the destination of all Acid Sulfate soils removed from the site.

SCHEDULE 2 PRESCRIBED CONDITIONS

The prescribed conditions in accordance with Division 8A of the Environmental Planning and Assessment Regulation apply as are of relevance to this application:

Clause 98 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 http://www.legislation.nsw.gov.au/ - /view/regulation/2000/557/part6/div9

Clause 98A Erection of signs

Clause 98B Notification of Home Building Act 1989 requirements

Clause 98E Condition relating to shoring and adequacy of adjoining property

Refer to the NSW State legislation for full text of the clauses under Division 8A of the Environmental Planning and Assessment Regulation 2000. This can be accessed at http://www.legislation.nsw.gov.au.

SCHEDULE 3 INTEGRATED DEVELOPMENT APPROVAL – NSW RURAL FIRE SERVICE

The New South Wales Rural Fire Service (NSW RFS) has considered the information submitted. General Terms of Approval, under Division 4.8 of the ‘Environmental Planning and Assessment Act 1979’, and a Bush Fire Safety Authority, under Section 100B of the 'Rural Fires Act 1997', are now issued subject to the following conditions:

Asset Protection Zones

The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building. To achieve this, the following conditions shall apply:

1. At the issue of subdivision certificate and in perpetuity, the entire area of each residential lot shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'.

2. A restriction to the land use pursuant to section 88B of the Conveyancing Act 1919 shall be included over Lots 161 and 173 to 186 (inclusive) to prohibit the construction of a dwelling or Class 10 building within 10 metres of a dwelling, in the area identified as APZ (asset protection zone) on the plan titled ‘Subdivision Layout Plan’ prepared by CivilTech (ref: 1002-DA82, Issue A), dated 5 June 2018, except that the APZ on Lots 183 to 186 shall be 21 metres.

3. A restriction to the land use pursuant to section 88B of the Conveyancing Act 1919 Shall be included over the residue lot requiring the provision of a temporary asset protection zone (APZ) in the following locations:

· north of Lots 161 to 166 (inclusive) for 9 metres;

· west of Lots 166 and 186 for 8 metres; and

· west of Lots 167 and 187 for 9 metres.

The APZ shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. The restriction to land use for a temporary asset protection zone may be extinguished upon the commencement of development over the affected areas.

Water and Utilities

The intent of measures is to provide adequate services of water for the protection of buildings during and after the passage of a bush fire, and to locate gas and electricity so as not to contribute to the risk of fire to a building. To achieve this, the following conditions shall apply:

4. Water, electricity and gas are to comply with section 4.1.3 of 'Planning for Bush Fire Protection 2006'.

Access

The intent of measures for public roads is to provide safe operational access to structures and water supply for emergency services, while residents are seeking to evacuate from an area. To achieve this, the following conditions shall apply:

5. Public road access shall comply with section 4.1.3(1) of ‘Planning for Bush Fire Protection 2006’, except that a perimeter road is not required and Roads 1 and 2 are greater than 200 metres in length.

6. A temporary turning circle with a minimum 12 metre outer radius shall be provided at the termination of Road 1 and 2. Both roads are to be clearly sign posted as a dead end.

Landscaping

7. Landscaping to the site is to comply with the principles of Appendix 5 of 'Planning for Bush Fire Protection 2006'.

SCHEDULE 4 NOTES

Schedule of Development Contributions

The following contributions are current at the date of this consent. The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. The current contribution rates are available from Council offices during office hours. Payments will only be accepted by cash or bank cheque.

Water payments under the Water Management Act 2000

Charges will be calculated based on the additional water and sewerage load that the proposed development generates, shown in Equivalent Tenements (ET) by the following table:

ADDITIONAL WATER & SEWER LOAD OF DEVELOPMENT
(ET Policy No:13/005)

Water	32 ET
Sewer	32 ET

NB: Information regarding Development Servicing charges can be found on the Byron Shire Council website (http://www.byron.nsw.gov.au/development-contributions-plans-section-94-and-64). These charges will enable you to calculate the total contribution charges payable when you are ready to pay them. Developer charges will be calculated in accordance with the Development Servicing Plan applicable at the date of payment.

Construction Certificate required:

This development consent is issued under the Environmental Planning and Assessment Act 1979 and does not relate to structural aspects or specifications of the building under the Building Code of Australia. All buildings and alterations require the issue of a Construction Certificate prior to works commencing. Application forms are available from the customer services counter or Council’s website www.byron.nsw.gov.au

Principal Certifying Authority:

Work must not commence until the applicant has:-

a. appointed a Principal Certifying Authority (if the Council is not the PCA); and

b. given Council at least two days notice of the intention to commence the erection of the building. Notice must be given by using the prescribed ‘Form 7’.

c. notified the Principal Certifying Authority of the Compliance with Part 6 of the Home Building Act 1989.

Occupation Certificate required:

The building must not be occupied until the Principal Certifying Authority has issued an Occupation Certificate.

Protection of the Environment Operations Act 1997:

It is an offence under the provisions of the Protection of the Environment Operations Act 1997 to act in a manner causing, or likely to cause, harm to the environment. Anyone allowing material to enter a waterway or leaving material where it can be washed off-site may be subject to a penalty infringement notice (“on-the-spot fine”) or prosecution.

Penalties apply for failure to comply with development consents

Failure to comply with conditions of development consent may lead to an on the spot fine (generally $600) being issued pursuant to section 127A of the Environmental Planning & Assessment Act 1979 or prosecution pursuant to section 125 of the Environmental Planning & Assessment Act 1979.

Plumbing Standards and requirements.

All Plumbing, Water Supply, Sewerage and Stormwater Works shall be installed in accordance with the Local Government Act 1993, Plumbers Code of Australia and AS/NZS 3500 Parts 0-5, the approved plans (any notations on those plans) and the approved specifications. Any plumbing inspections required under a Section 68 Approval are to occur in accordance with that approval.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.3

Report No. 6.3 PLANNING - 26.2017.4.1 Submissions Report Planning Proposal - Lot 22 DP 1073165, 156 Stuart Street, Mullumbimby

Directorate: Sustainable Environment and Economy

Report Author: Isabelle Hawton, Planner

Steve Daniels, Project Officer - Planning Reforms

File No: I2019/241

Summary:

On 23 November 2017 Council resolved to support a planning proposal for Council owned land located at the southern edge of Mullumbimby, described as (part) Lot 22 DP 1073165, 156 Stuart Street, Mullumbimby. The Department of Planning issued a Gateway Determination on 30 May 2018 to proceed to public exhibition following the completion of site studies.

The planning proposal aims to:

· Rezone part of Lot 22 (approximately 22 hectares of 29.2 hectares) from RE1 Public Recreation zone to R1 General Residential zone to permit residential development with an emphasis on affordable and diverse housing, and make further consequential amendments to planning controls for the site.

· Reclassify the land from Community to Operational land.

· Include local provisions to encourage diverse and affordable housing on this and other key sites to be identified on a map in Byron LEP 2014.

In accordance with the Gateway Determination, the planning proposal was placed on public exhibition from 31 October 2018 to 12 December 2018 and an independently chaired Public Hearing was held on the 6 February 2019. Attached to this report is a copy of submissions received (Attachment 1) along with the independent report from the Public Hearing (Attachment 2). Public consultation in addition to the above statutory requirement was also undertaken.

Submissions received from State agencies included submissions from the New South Wales State Emergency Service (SES) (Attachment 3) and the NSW office of Environment and Heritage (OEH) (Attachment 4).

Key issues raised in public submissions, state agency submissions, public hearing submissions and informal community consultation predominately centred on onsite and offsite flood impacts that may occur as a result of development. Inconsistencies between the flood modelling for the site and actual levels experienced during the 2017 flood event were highlighted. Concerns were also raised around traffic impacts and access options to and from the site generally, as well as during flood events. The loss of future recreational land was raised as an additional concern. A detailed summary and response to the issues raised is provided in the body of this report.

Following the consideration of submissions, it is recommended that Council:

· Prepare a further flood study and a structure plan for Lot 22 DP 1073165 and the three surrounding properties that make up the Mullumbimby Accessible Housing Area; and

· Receive a further report to consider the future of the Planning Proposal once the additional studies have been completed.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Council:

1. Prepare a further flood study and a structure plan for Lot 22 DP 1073165 and the three surrounding properties that make up the Mullumbimby Accessible Housing Area.

2. Receive a further report to consider the future of the Planning Proposal for Lot 22 DP 1073165 once the additional studies have been completed.

Attachments:

1 Submissions to Planning Proposal - including Petition / Submission From Mullumbimby Residents Association, E2019/3430 , page 120 ⇩

2 Report from Independent Chair for Public Hearing, E2019/11728 , page 239 ⇩

3 Submission from SES State Emergency Services, E2018/107186 , page 277 ⇩

4 Submission from NSW Office of Environment and Heritage, S2018/13913 , page 284 ⇩

5 Planning Proposal Lot 22 Mullumbimby (Exhibition version) - pdf of E2018/76218, E2018/76692 , page 291⇩

6 Form of Special Disclosure of Pecuniary Interest, E2012/2815 , page 351⇩

REPORT

Background

On 23 November 2017 Council considered a planning proposal to rezone and reclassify Council owned land located at the southern edge of Mullumbimby, described as (part) Lot 22 DP 1073165, 156 Stuart Street, Mullumbimby, for the purpose of permitting residential development with an emphasis on affordable and diverse housing.

Lot 22 is an irregular shaped lot that is split by a railway line and has part of its boundary to Saltwater Creek. Lot 22 includes Mullumbimby community gardens (however this area is not proposed to be rezoned) and has a total area of approximately 29.2 hectares. Approximately 22 hectares is affected by zone changes in the planning proposal. The balance of the zones within the subject land is to remain unchanged (see Figure 1 for details).

Figure 1: Lot 22 DP 1073165, 156 Stuart Street, Mullumbimby

Mullumbimby Accessible Housing Area

Lot 22 is one of three other properties identified in the Draft Byron Shire Residential Strategy as the Mullumbimby Accessible Housing Area. The surrounding property owners expressed an interest in providing 30% of their developable land for accessible housing. The area is outlined in blue in Figure 2 below.

The draft Residential Strategy, which was endorsed at the 13 December 2018 Council meeting for further refinements prior to public exhibition, includes an action to prepare a structure plan:

Prepare a structure plan for the Mullumbimby Accessible Housing Area setting out a visual framework for:

a) protecting the environment

b) managing flooding and stormwater

c) securing movement corridors (vehicular, cycling and walking)

d) the scale, pattern and broad location of new housing, including providing accessible housing

e) supporting liveable neighbourhood principles.

Figure 2: Mullumbimby Accessible Housing Area

Following consideration of the 23 November 2017 Council report, Council resolved (17-597) to:

1. Agree to initiate the planning proposal to amend Byron LEP 2014 (Attachment 1) for the reasons outlined in this report.

2. Forward the planning proposal to the NSW Department of Planning and Environment for a Gateway determination.

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

The Department of Planning requested that changes be made to the initial planning proposal at the first request for Gateway. As a result a subsequent report to Council on 19 April 2018 presented a list of options for the planning proposal to proceed. The options were as follows:

1. Amend the planning proposal to remove the proposed affordable housing provisions; or

2. Withdraw the planning proposal until such time as Byron Council has pursued its inclusion into SEPP 70; or

3. Request the Department to proceed to issue a Gateway determination for the planning proposal as submitted, though it is likely that any Gateway determination will contain a condition requiring the removal of the affordable housing provisions from the proposal.”

18-217 Resolved that Council:

1. Request NSW Department of Planning and Environment proceed to issue a Gateway determination for the planning proposal as submitted by Council and accept that this will include a condition requiring the removal of the affordable housing provisions from the proposal.

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

3. Request staff to prepare a report for Council outlining the information and process to consider amending SEPP 70, LEP 2014 and the Byron Development Contributions Plan in relation to affordable housing provisions.

The planning proposal was subsequently amended and aims to:

§ Insert R1 General Residential as a new zone in Byron LEP 2014

§ Rezone approximately 22 hectares of the existing RE1 Public Recreation zone to R1 General Residential

§ Apply a minimum lot size of 200 m² to the R1 General Residential zone area

§ Reclassify part of Lot 22 DP 1073165 from Community to Operational to reflect the changes to the zoning of the land and prospective change of land use

§ Insert a Key Sites Map in Byron LEP 2014 and identify part Lot 22 DP 1073165 on that map

§ Insert new local provisions into Byron LEP 2014 to encourage diverse and affordable housing on key sites identified on the Key Sites Map.

The amended planning proposal was forwarded to the Department of Planning & Environment in accordance with Res 18-217 and a Gateway Determination was issued on 30 May 2018 to proceed to public exhibition, following the completion of site studies.

Gateway Determination

The Gateway Determination required that Council:

· Amend the planning proposal to remove sections where it was proposed to introduce prescriptions for a portion of affordable housing on the site.

· Amend certain maps in the Planning Proposal, including the Key sites Map.

· Conduct additional site studies including further investigation of potential contamination of the land, further ecological assessments, an aboriginal cultural heritage assessment and an acid sulfate soils study.

Council staff commissioned these studies prior to the public exhibition period. All supporting studies were made available on Council’s website for the duration of the exhibition period.

In addition, the Draft Byron Shire Open Space and Recreation Needs Analysis were exhibited alongside the Planning Proposal for Lot 22 as required by the Gateway Determination.

Consultation Undertaken

Before and during the exhibition period, which ran from 31 October 2018 to 12 December 2018, Council staff provided a range of opportunities for community feedback including:

· Meetings with key stakeholder groups in the lead up to the formal exhibition period – meetings were held with Mullumbimby High School, Mullumbimby residents association, Community Alliance Byron Shire and Mullumbimby Chamber of Commerce. Many others were invited to set up meetings with Council staff, but elected not to.

· Online videos that were published through YouTube and Facebook.

· Facebook posts, newspaper advertisements, posters advertising the drop in sessions on key notice boards.

· Letters to adjoining residents inviting them to have their say.

· Three drop in sessions held over three days in the Council chambers where residents had the opportunity to chat to a Council staff member or record their feedback.

· A stall at the Mullumbimby Farmer’s Market held on the 30 November 2018 where Council chatted with nearly 30 members of the public

In addition, a public hearing chaired by an independent facilitator was held on 6 February 2019 in accordance with clause 40A of the Local Government Act 1993.

Sixty submissions were received from the public during the public exhibition period along with a petition from the Mullumbimby Residents Association (Attachment 1). Submissions were also received from the SES (Attachment 3) and the Office of Environment and Heritage (Attachment 4). The key issues raised in these submissions and at the public hearing are addressed in the following tables.

Key Issues Raised

Submissions Received During the Public Exhibition Period

	Submission Theme: FLOODING 39 of the 60 individual submissions received related to flooding
Item #	Issues Raised	Council Staff Response
1.	Many residents expressed distrust in the flood modelling as it did not match their ‘lived’ experience – particularly of the March 2017 floods.	Noted. To date the flood study provided by BMT WBM has been used to inform the planning proposal, however it is agreed that the scope of the modelling can be further refined to more accurately inform future development of the site. Residents have indicated that the floods they have experienced are more severe than those described in the Planning Proposal. Residents have also raised concerns about; the flow state of Saltwater Creek, the effectiveness of culverts under the railway line which effectively act as a dam, and the impact of the new Kings Creek bridge on the flow characteristics of Kings Creek during flood events. These factors are said to impact on flood levels and the ability of flood waters to recede from the urban area of Mullumbimby. It is recommended that a flood study be prepared that holistically considers the entirety of the Mullumbimby Accessible Housing Area (made up of Lot 22 and the other accessible housing sites). The flood study should also consider the most appropriate approach to lot layout, building design and stormwater management given the flooding characteristics of the locality and the catchment. Such large scale flood planning may present an opportunity to improve the current flood risk in Mullumbimby by resolving choke points, creating additional flood storage, and engineering stormwater flows away from the town. The study may also help to inform the North Byron Flood Mitigation / Risk Management Plan. Council’s Flood Engineer supports the recommendation that a more comprehensive flood study be undertaken and that the rezoning of Lot 22 be placed on hold until such time as this occurs.
2.	A substantial number of submissions suggested that the flood modelling was flawed, and that any decision about the site should be postponed until the North Byron Flood Mitigation/Risk Management Plan has been finalised.	Noted. Please see response to Item 1.
3.	Residents also expressed concern over the ability for future residents of the site to access insurance. Some suggested this might also have implications for potential residents taking out mortgages.	Noted. More detailed planning and flood modelling will be required as a part of the process and this matter may be considered at that time. In addition, the future tenure model is yet to be considered and as such it is too early to comment on mortgage implications.
4.	Many neighbouring property owners were concerned that flooding might negatively affect their property, and the urban area of Mullumbimby as a whole.	To date, the proposal has relied on the flood studies provided by BMT WBM which show a decrease in projected flood levels experienced in the urban area to the north of Lot 22. This report recommends that Council undertake a further flood study (please see response to Item 1).
5.	A number of submissions were also concerned that the PP did not adequately address the future impacts of climate change – especially relating to sea level rise and extreme weather events.	Council’s Flood Engineer has reviewed the Flood Study undertaken as a part of the Planning Proposal. The Flood Engineer suggests that the site is on the limit of flood increases due to sea level rise. This will need to be considered in the flood study recommended for the Mullumbimby Accessible Housing Area.
6.	Some submissions suggested that the movement of water across the site was high velocity and would result in a dangerous scenario for future residents. SES also noted the possibility that flows across the site might be high velocity however this could not be determined based on the available information.	Council’s Flood Engineer recommends that verification of flow rates should be considered as part of any future flood study. It is recommended that the information and experiences shared by local residents during the exhibition period be considered in preparation of a flood study for the Mullumbimby Accessible Housing Area.
7.	A high number of residents did not support affordable housing being built on flood prone land.	Rezoning of flood prone land for urban purposes can occur in instances where the inconsistency with Section 9.1 Ministerial Direction 4.3 - Flood Prone Land can be justified. The feasibility of developing the site for future housing will be informed by the recommended flood study for the Mullumbimby Accessible Housing Area (Please see response to Item 1 for further detail).

	Submission Theme: ACCESS AND MOVEMENT 24 of the 60 individual submissions received related to access and movement
Item #	Issues Raised	Council Staff Response
8.	Some submissions were concerned about the Traffic Implications for Mullumbimby Town Centre as a result of the increased population density.	The site is located in walkable distance to the town centre, high school, services and parklands – reducing the reliance on private vehicle transport. The draft Residential Strategy identifies a possible new connection road along the southern perimeter of the Mullumbimby Accessible Housing Area, which could redirect a considerable amount of “through-traffic” away from the Town Centre. The Our Mullumbimby Masterplan process is also underway and will consider how to address traffic and congestion issues in the main town. This report recommends that a structure plan be prepared for the Mullumbimby Accessible Housing Area prior to further consideration of the planning proposal. The structure plan would provide a multi model solution for access and movement in the area, and would be integrated with work underway on the Our Mullumbimby Masterplan.
9.	Some submissions were concerned that any access via Stuart Street would impact on the amenity of the community gardens, sports fields and skate park.	Any access via Stuart Street would involve an upgrade of both the access over Saltwater Creek and the informal parking area alongside the community gardens. It would result in a more attractive, safer road to access the sports fields and the community gardens. However it is noted that the best access options to and from the site are yet to be determined. Refer also to comments in item 8 above.
10.	Some submissions were concerned that any access via Stuart Street would require a bridge upgrade that would be paid for by tax payers.	Noted, however further information is required before access and movement to and through the site is confirmed. Stuart Street is one of a number of access options at this stage. A bridge upgrade would likely be required if this route were chosen however the financial implications would be subject to future consideration by Council. Refer also to comments in item 8 above.
11.	Some submissions were concerned that access through Byron Street might negatively affect the Netball Courts, and eliminate the high school oval which sits partially over the road reserve.	Byron Street has been identified as one of a number of access options for the site, however planning staff consider that Byron St offers the least desirable access option due to the nature of the intersection with Jubilee Ave. The high school oval currently encroaches on the road reserve extending south from Byron St; however the netball courts are located outside of the road reserve. It is noted that the high school oval is an important asset for the community. This report recommends that a structure plan be prepared for the Mullumbimby Accessible Housing Area. The best access options for Lot 22 can be determined as part of this process.
12.	Some submissions in support of the proposal suggested that any development on the site should move away from private vehicle transport and look to other solutions.	Noted. Should the site be rezoned, such considerations will be dealt with at the development application stage.
13.	A small number of submissions suggested that Council should not be building new infrastructure (roads etc.) if it cannot maintain its current infrastructure.	Noted. It is unclear what models of governance and operational delivery will be employed on the site and this will determine the financial implications for Council moving forward. Notwithstanding this, a key direction in Council’s Draft Residential Strategy is for the majority of our shire’s future housing to be located in urban towns and villages, mainly to ensure more efficient use of land and infrastructure.

Submission Theme: LOSS OF RECREATIONAL LAND 24 of the 60 individual submissions related to the loss of recreational land
Item #	Issues Raised	Council Staff Response
14.	Many submissions expressed concern over the loss of recreational zoned land and the loss of potential future sports fields for a growing community. NB: There appeared to be a great deal of confusion over the adjacent location of the sportsfields containing the skate park, cricket pitch and tennis courts. Many residents thought that this land, Lot 389 DP728162, was included in the proposal to rezone and reclassify Lot 22.	Noted. Consideration of the provision of open space is based on the results of the Open Space and Recreation Strategy that was adopted by Council in 2018. This study identified Lot 22 as surplus to the needs of Mullumbimby, and thus potentially suitable for development in the form of affordable housing. It is important to note that no land currently used for passive or active recreation is proposed to be rezoned or reclassified. In addition, the R1 zoning of the site does not preclude the inclusion of sports fields in any future development, and open space may be a large part of any development on site. It should also be noted that not all of the site is proposed to be rezoned and reclassified. The remaining 7ha of RE1 Public Recreation zoned community land may provide an option for delivering additional open space or sporting facilities, if required in the future.
15.	Many submissions expressed concern over the accuracy of the Open Space and Recreational Needs Strategy and the methodology of the document. Primarily, there was concern that rural residents were not included in the calculations to project future requirements.	Noted. The methodology used to produce the Open Space and Recreational Needs Study is standard practice for this kind of study. Council employed expert consultants who are well experienced at undertaking these types of studies. Inclusion of rural land is not standard practice for these calculations.

	OTHER ISSUES RAISED
Item #	Issues Raised	Council Staff Response
16.	Some submissions were excited about the potential for the site to become an exemplar site including elements of sustainable design and architecture into any future development.	Noted. Council is in conversations with the DPE to this effect.
17.	Some submissions suggested that the site be restored to biodiversity habitat, not housing.	Noted. Considering the housing crisis in the Shire and the real need for accessible and diverse housing, it is considered that addressing this issue is a priority for the community. The freshwater wetland at the North of the site has been excluded from the Planning Proposal due to the environmental sensitivity of the area. There may be an opportunity to allow for habitat restoration in this area and throughout the site as a result of any future development opportunities.
18.	One submission expressed concern over the development becoming an ‘enclave’ of drug addiction and crime	Noted. The objectives of the R1 zone as proposed are: · To provide for the housing needs of the community · To provide for a variety of housing types and densities · To enable other land uses that provide facilities or services to meet the day to day needs of residents · To provide a secure supply of affordable housing stock that meets the needs of low to middle income residents. · To enable provision of non-residential land uses that are compatible with and do not place demands on services beyond the level reasonably require for, residential development. The proposal is aiming to provide a diverse range of housing, including key workers in the low to middle income bracket, and is not intended to be social housing.
19.	One submission voiced concern about the potential road for the Mullumbimby Accessible Housing Area passing through the section of the site not proposed for rezoning as was initially shown in the Draft Residential Strategy.	Noted. There are a number of potential locations for access to the site and these will be considered when preparing the structure plan recommended in this report.
20.	Some submissions suggested that Council is not a developer and should not be undertaking such projects at the taxpayers cost.	Noted. Affordable housing is one of the most pressing needs of our community and is identified in both the Community Strategic Plan and the customer satisfaction survey as one of the issues that most concerns our residents. Council is yet to decide on the governance and operational delivery of this project but feasibility would be a key consideration.
21.	Some submissions expressed distrust in the Council’s ability to deliver housing that was truly affordable.	Noted. Council is exploring a number of governance and operational delivery mechanisms to ensure future housing on sites such as Lot 22 remains affordable ‘in perpetuity’ for low to middle income earners.
22.	A number of submissions expressed their support in Council’s endeavour to deliver affordable housing.	Noted.

Agency Submissions

In accordance with the Gateway Determination, Council referred the matter to the Office of Environment and Heritage, the SES and the Local Aboriginal Land Council. The submissions received from the SES and OEH are summarised below. Council staff did not receive comment from the Local Aboriginal Land Council after Gateway.

	SES Submission
Item #	Issues Raised	Council Staff Response
23.	Concerns that in a flood larger than a 1% AEP flood event smaller than a PMF, the site will be inundated and the dwellings may be impacted, even with fill. It will therefore be unsafe for people to remain	Noted. Please see response to Item 1.
24.	Safe flood evacuation access to an area outside the floodplain may not be available somewhere in the 1% and 2% flood. Further information would need to be provided to determine at what point egress is no longer possible.	Noted. Further work is required to determine flood evacuation options. It is also noted that this is a relevant issue for much of the Mullumbimby urban area and is not confined solely to the Lot 22 site. This report recommends that a comprehensive Flood Study and Structure Plan be prepared for the Mullumbimby Accessible Housing Area. Flood evacuation options can be considered as part of this process. .
25.	Inconsistency with S9.1 Directions	Noted. Please see response to Item 7.

	Office of Environment and Heritage
Item #	Issues Raised	Council Staff Response
26.	It was suggested that Council further consider and justify the potential presence of EECs in the planning area	Noted. At this point the Planning Proposal has been informed by the two ecological studies that have not found evidence of EECs. Further review may be considered at the development application stage if deemed necessary.
27.	Ensure any areas that contain EECs are zoned E2	Noted
28.	Provide further information around proposed rehabilitation works- perhaps by updating the plan of management to include these works	Noted. The plan of management will be reviewed if a rezoning and reclassification process occurs in line with any Council decisions. Areas proposed for rehabilitation can be considered during the development of a structure plan for the Mullumbimby Accessible Housing Area, which may include supporting DCP provisions.
29.	Consider a Constraints map	Noted. This may be considered for inclusion in the Planning Proposal after the integrated flood study and structure plan have been prepared.
30.	Provide further detail and commitment to review the zoning of the land when E zones can be applied.	Noted. An E zone review is underway throughout the shire. This process is ongoing concurrently with this Planning Proposal and will deal with the deferred matter zones on the site in due course.
31.	Undertake further flood modelling for additional design flood events	Noted. It is recommended that this advice be heeded in the form of a holistic flood study for the entirety of the Mullumbimby Accessible Housing Area with further detail and taking into account local knowledge and known patterns of flow based on historic incidences.
32.	Address all aspects of the floodplain development manual including flood safety and access.	Noted. More work needs to be undertaken to ascertain the flood hazard. Council’s Flood Engineer suggests that the area may have high velocity flow. If this is confirmed by further flood studies, options for evacuation in a flood event can be considered as part of the recommended structure plan for the Mullumbimby Accessible Housing Area sites.
33.	Consider the broader catchment and relationship to the North Byron Floodplain Risk Management Study and Plan	Noted. It is recommended that further flood studies consider the broader catchment beyond the Mullumbimby Accessible Housing Area sites and their relationship to the North Byron Floodplain Risk Management Study and Plan. As stated in item 1, the combined study will help to inform the North Byron Flood Mitigation / Risk Management Plan.
34.	Consider amending the planning proposal to align the boundary no less than 40m from Saltwater creek	Noted. A 40m buffer will be considered as a part of the structure planning process for Lot 22.
35.	Require further investigation of Aboriginal cultural heritage at DA Stage	Noted. It is anticipated that further consultation with relevant indigenous groups and authorities will be undertaken if the proposal progresses.

Petition

Along with many individual submissions, Council also received a petition from Mullumbimby Residents association (Attachment 1) that was signed by 351 residents and noted at the Council meeting 28 February 2019. The petition raised issues that are discussed below.

Item #	Key Issues raised	Council Staff Response
36.	Concern that the studies (flooding and ecology) were inconsistent with one another, and with anecdotal experience from the 2017 floods.	Noted. Please see response for Item 1.
37.	Disputing the accuracy of the Flood study	Noted. Please see response for Items 1 and 2.
38.	Concerns that the proposal should be put on hold until the North Byron Floodplain Risk Management Study and Plan has been finalised.	Noted. Please see Item 2.
39.	A technical omission in the flood study that did not account for filling in Orchid place, Mullumbimby	Noted. Please see Item 1. Specifically this omission can be passed on when further studies are conducted.
40.	Concern that the flood study does not account for sea level rise associated with climate change, despite the fact that the proposal suggests that it is in the tidal part of the Brunswick river and will therefore be affected.	Noted. Please see Item 5.
41.	Suggestions that the experiences and records of local residents, and the submissions for the North Byron Shire Floodplain Risk Management Study and Plan should be taken into account for any future flood study.	Noted. Please see Items 1 and 2.
42.	Concerns over evacuation risk to any future residents and emergency evacuation personnel	Noted. Please see response to Item 24.
43.	Concerns over the damp nature of the microclimate for any future housing on the site	Noted. It should be clarified that the freshwater wetland to the north of the site is not included in the proposal for reclassification and rezoning. Further studies may require an expansion of the area retained for habitat for drainage and ecology. In addition, it is assumed that any future development on the site will be accompanied by extensive engineering which will ensure a healthy drainage capacity for the developed areas of the site, resulting in an engineered solution to damp conditions.
44.	External fill should not be allowed on site as it will rule out the possibility of affordable housing on the site and be contrary to the direction of the “Byron Shire Council Residential Strategy” 2003.	Noted. Ideally any regrading of the site will not require fill to be imported, however these matters can be considered in detail at the development application stage.
45.	Consultation is required with NSW Government in regards to Kings Creek which passes through the site as it is considered a part of Cape Byron Marine Park.	Noted. State agency consultation has been consistent with the Gateway Approval
46.	Concern that any future access via Stuart street will be costly to tax payers and will increase traffic congestion in the CBD. Also notes that an exclusion zone will need to be considered for the fuel storage at the Co-op.	Noted. Please see response to Items 8 and 10.
47.	There is no undeveloped land for open space in close proximity to Mullumbimby	Noted. Please see response to Item 14. There is opportunity to provide for open space and recreational land uses on Lot 22 within the proposed R1 General Residential zone. Other parts of site that are not proposed for rezoning such as the residual portion east of the railway tracks, the community gardens site and the freshwater wetland will remain as passive recreation spaces.
48.	Northern hinterland rural residents should be included in the calculations	Noted. Please see response to Item 15.
49.	The proposal will adversely affect the amenity of existing recreation grounds	Noted. See item 9.
50.	It is recommended that a masterplan be developed before any rezoning of Lot 22 is considered to ensure needs of sporting groups are accommodated now and into the future.	Noted. The Open Space and Recreational Needs study has identified Lot 22 as surplus recreational lands. This report recommends that the planning proposal be supported by a structure plan. Suitable opportunities for open space provision will be considered as part of this process.

Public Hearing

The Planning Proposal seeks to reclassify the land from Community to Operational land, therefore, a formal Public Hearing was required pursuant to clause 40A of the Local Government Act 1993.

The hearing was held on Wednesday 6 February 2019. The hearing was presided over by an independent chair, Ms Emma Bromfield of Locale Consulting. A number of people provided verbal and visual submissions to the hearing, as summarised in the Report of the Hearing (Attachment 2).

The Report recommends that Council consider not proceeding further with the proposal to reclassify the land until:

· The flood modelling and associated impacts have been reviewed in light of the information that was provided at the hearing, and through submissions to the exhibition of the planning proposal, including being independently peer reviewed; and

· Council has established a process for considering the broader strategic planning issues that are apparent through the proposed creation of the Mullumbimby Accessible Housing Area in the draft Residential Strategy and related planning activities.

A brief summary of submissions made at the public hearing, and staff response to the issues raised is summarised below:

Public Hearing
Item #	Key Issues raised	Council Staff Response
51.	Some speakers expressed concern over the lack of apparent strategic focus for broader Mullumbimby	Noted. The potential development of Lot 22 has been assessed against the site suitability criteria used to inform the draft Byron Shire Residential Strategy. Preparation for public exhibition of the draft strategy is underway. The report recommends that a comprehensive Flood Study and Structure Plan be prepared for the Mullumbimby Accessible Housing Area. It is considered that the completion of this body of work prior to any potential rezoning of Lot 22 will provide a broad strategic context for the rezoning of this site.
52.	Some speakers suggested that an engineering solution could be possible to reduce flooding at Lot 22 and other sites in the Mullumbimby Accessible Housing Area	Council staff agree that an engineering solution could be possible to address flooding issues and that further work is required to determine if this is the case. Please also see response to Item 1 for further detail.
53.	Some speakers queried the validity of the flood study	Noted. Please see item 1.
54.	Some speakers expressed their support for affordable housing and reiterated their personal need for more land for housing key workers.	Noted. Council is looking at several mechanisms for alleviating housing stress in the area.
55.	Some speakers noted the incongruity between the Council’s climate emergency and the lack of consideration of climate change in the Planning Proposal.	Noted. Please see item 5.
56.	Some speakers expressed concern over any future residents’ ability to access insurance	Noted. Please see item 3.
57.	Some speakers questioned Council’s ability to deliver affordable housing.	Noted. Please see item 21.
58.	Some speakers were concerned over the loss of recreational lands	Noted. Please see item 14.
59.	Some speakers expressed their desire for the site to be an innovative exemplar site.	Noted. Please see item 16.
60.	Some speakers suggested that private land that is higher to the North of Mullumbimby be used instead for affordable and diverse housing.	Noted. Council has undertaken an assessment of land it currently owns in order to identify sites for possible future housing. Of the land identified, Lot 22 was the preferred option due to its proximity to Mullumbimby town, and the relative advantages of the site.
61.	Some speakers where concerned about the access to the site in a flood event.	Noted. See item 24.
62.	Some speakers were concerned about the poor environmental state of Saltwater Creek.	Noted. Council officers are aware of this issue and are investigating.
63.	Some speakers were concerned that the Flood Study did not reflect their lived experience.	Noted. See item 1.
64.	Some speakers noted concerns relating to traffic and access.	Noted. See items 8 – 13.

As required by the Act, a report on the hearing, prepared by the independent chair, was provided to Council on 15 February 2019, and published on Council’s website within 4 days of receipt. A hard copy was also made available at Council offices. Those who made verbal submissions were notified on receipt of the report by email when it was published.

Options Moving Forward

Option 1 (Recommended)

· Prepare a further flood study and a structure plan for Lot 22 DP 1073165 and the three surrounding properties that make up the Mullumbimby Accessible Housing Area

· Receive a further report to consider the future of the Planning Proposal once the additional studies have been completed.

Option 2

· Forward the Planning Proposal in its current state to the Department of Planning & Environment for finalisation.

· Prepare detailed site studies in association with a Masterplan for Lot 22

Option 3

· Abandon the Planning Proposal and look for other suitable Council sites for affordable and diverse housing.

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	4.2	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

This planning proposal intends to amend the Byron LEP 2014. Relevant legal and statutory considerations have been addressed above.

Financial Considerations

Council will bear a portion of the costs of the combined flood study that will consider the development of Lot 22 in association with the other accessible housing sites that make up the Mullumbimby Accessible Housing Area.

It is proposed that Council bear the full cost of a structure plan for the Mullumbimby Accessible Housing Area.

This additional work is considered a necessary financial commitment given the issues raised during the public exhibition period in relation to Lot 22, and given that Lot 22 is a Council owned site that makes up a portion of the Mullumbimby Accessible Housing Area.

The estimated cost for this work is $80,000. This amount has been included in the draft 2019/20 Budget from the Property Development Reserve pending Council’s consideration of this report.

Consultation and Engagement

Details pertaining to community consultation and engagement are provided above.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 6.7

Report No. 6.7 PLANNING - 10.2018.480.1 Stage 1: Strata Subdivision to Create Two (2) Lots including One (1) Vacant Lot, Stage 2: Construction of New Dwelling House on Vacant Strata Lot to Create Dual Occupancy (Detached) with Expanded Dwelling Module at 8 Cemetery Road Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Karina Vikstrom, Planner

File No: I2019/439

Proposal description:	Stage 1: strata subdivision to create two (2) lots including one (1) vacant strata lot (including removal of seven (7) trees and compensatory plantings), Stage 2: construction of new dwelling house on vacant strata lot to create dual occupancy (detached) with expanded dwelling module.
Property description:	LOT: 21 DP: 838192
	8 Cemetery Road BYRON BAY
Parcel No/s:	195230
Applicant:	Matt Walker Town Planning
Owner:	Mr P R Shine & Ms C M Coorey
Zoning:	2(a) Residential Zone (BLEP1988)
Date received:	25 September 2018
Integrated / Designated Development:	☒ Integrated	☐ Designated	☐ Not applicable
Concurrence required	No
Public notification or exhibition:	- Level 1 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 12/10/18 to 25/10/18 - Submissions received: Nil
Delegation to determination:	Council
Issues:	· Building Height Plane Encroachment · Vegetation removal · Car parking associated with existing dwelling

Summary:

The current application has been referred for determination by the elected Council as it relates to land jointly owned by a Councillor. The town planning assessment has been completed by an independent Town Planning consultant contracted to Council. The applicant is seeking consent to construct a dual occupancy in a staged arrangement with a vacant lot created as stage 1 and the house constructed in stage 2 on the vacant lot.

The application is generally compliant with the applicable LEP and DCP controls and, other than for the ownership status of the property, would normally be approved subject to conditions under delegated authority. It is noted the proposed dual occupancy dwelling encroaches into the Building Height Plane along the eastern elevation. However, given the development footprint on the adjoining landholding, no adverse privacy, overshadowing or amenity impacts are envisaged (subject to an additional privacy screen being provided).

The back yard of the property contains a number of mature landscape trees. The application involves retaining at least five (5) existing trees (including two (2) large specimens). The application also proposes the removal of seven trees to achieve suitable building envelopes in the rear half of the property. In this instance, the trees in question appear to have been planted for landscape and amenity purposes. All of the trees are at the rear of the property and are not prominent features in the landscape. In addition, the vegetation is not identified within Council mapping as being of high conservation value or within a wild life corridor.

Given the above it is considered that a reasonable balance has been achieved within the application with respect to retention and removal of vegetation at the rear of the site. Suitable conditions have been applied requiring the planting of at least six (6) compensatory trees prior to the completion of the Strata subdivision. Suitable conditions have also been applied requiring the involvement of a qualified Arborist to undertake the tree removal works and also to form part of the team responsible for the design and installation of works in the vicinity of the trees to be retained.

Extensive discussions have occurred between the proponent’s engineering consultant and Council’s engineers relating to driveway access and stormwater management. These matters have been resolved to the satisfaction of Council’s engineers, subject to suitable conditions being applied. The application is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, development application no. 10.2018.480.1 for Stage 1: strata subdivision to create two (2) lots including one (1) vacant lot (including removal of seven (7) trees and compensatory plantings), Stage 2: construction of new dwelling house on vacant strata lot to create dual occupancy (detached) with expanded dwelling module, be granted consent subject to the conditions of approval listed in attachment 2 #E2019/21459.

Attachments:

1 Plans, E2019/20720 , page 412 ⇩

2 Conditions of consent, E2019/21459 , page 425 ⇩

195230

Assessment:

1. INTRODUCTION

1.1. History/Background

Application	Description	Determination Date	Determination
10.2012.560.1	Installation of an insulated patio roof and construction of a deck	30/01/2013	Approved
10.2014.405.1	Use of works (insulated patio roof and deck)	05/08/2014	Approved
10.2014.428.1	Roof over Patio	18/08/2014	Withdrawn
10.2017.223.1	Secondary Dwelling	25/10/2017	Withdrawn
10.2018.480.1	Stage 1: Strata Subdivision to Create Two (2) Lots including One (1) Vacant Lot, Stage 2: Construction of New Dwelling House on Vacant Strata Lot to Create Dual Occupancy (Detached) with Expanded Dwelling Module

1.2. Description of the proposed development

This application seeks approval for a staged development involving a number of inter-related matters:

Stage 1: Strata Subdivision of Lot 21 DP 838192 to create two (2) Lots as follows:

· Proposed Strata Lot 1 will be approximately 626m² and contain the existing dwelling at the front of the property; and

· Proposed Strata Lot 2 will be approximately 586m² in size and comprise a vacant Strata Lot. Proposed Lot 2 will be accessed via a right of carriage over the adjoining Lot 2 DP880389.

Stage 1 will include vegetation management works involving the removal of 7 trees, and the provision of required infrastructure service connections to the reticulated network in Cemetery Road, also via the right of carriage over the adjoining allotment.

Stage 2: Involves the construction of a new dwelling house on the Vacant Strata Lot (Lot 2) to create a Dual Occupancy (Detached) with expanded dwelling module. The proposed dwelling will be a two storey structure comprising the following:

· Ground level: The main dwelling will contain an open plan dining / living / kitchen, laundry, bathroom, media room and utilities. A generous deck area will be provided along the western frontage. A double carport will also be provided. In addition, an expanded dwelling module will be provided in the north east corner of the property containing one bedroom, living space, ensuite bathroom and deck.

· Upper level: The upper level of the ‘main dwelling’ will comprise 3 bedrooms, bathroom and office / spare room. An upper level balcony will be provided for the length of the northern frontage (above the lower level deck).

Construction materials will comprise fibre cement sheeting, colorbond roofing, steel sliding doors and window frames and select hardwood posts to the decks.

Extracts from the Plan Set are provided below.

Development Layout

Western Elevation, Proposed Dual Occupancy & Expanded Dwelling Module

Eastern Elevation, Proposed Dual Occupancy & Expanded Dwelling Module

1.3. Description of the site

Land is legally described as	LOT: 21 DP: 838192
Property address is	8 Cemetery Road BYRON BAY
Land is zoned:	DM Deferred Matter (BLEP2014) 2(a) Residential Zone (BLEP1988)
Land area is:	1212 m²
Property is constrained by the following:
Easement	The rear portion of the site is constrained by a 5m wide easement for water supply. The easement traverses the rear of the property on a diagonal and represents a significant limitation on the available building envelope. The easement will separate the proposed ‘main dwelling’ on proposed Lot 2 from the expanded dwelling module.
Bushfire prone land	The land is mapped as containing a small area of Category 1 bushfire vegetation, with the remainder of the property being located within the buffer to that vegetation. Accordingly, the application was classified as ‘Integrated Development’ and referred to the NSW RFS as part of the assessment process.
Acid Sulfate Soils	The land is mapped as comprising a combination of Class 2 and Class 5 ASS.

The rear of the property comprises landscaped grounds with assorted trees and plantings. A small cabin / cubby house is located at the rear of the land which will be demolished to accommodate the development. The following plates illustrate the existing improvements on the site. The existing driveway access for the adjoining property which is to be utilised by proposed Lot 2 is also illustrated in the plates below. This driveway is relatively narrow and is currently finished with a gravel all weather surface.

Air View of Site

Location of Proposed Dwelling on Lot 2

Cabin / Cubbyhouse to be demolished

Driveway for Access to Lot 2.

Driveway to Unit Development Adjoining Site

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer	· Road network is suitable for proposed development. No upgrades required. · Shortfall of one carparking space for existing dwelling. Condition to be applied requiring provision of additional space adjacent to existing. · Driveway width adequate. Condition to be applied requiring sealing of driveway. · Condition to be applied requiring easement to facilitate driveway access and service connections to proposed Lot 2. · Site note subject to flooding, geotechnical or coastal hazard risks.
S64 / Systems Planning Officer	· Headworks charges to apply · Condition proposed to ensure the Water Supply Authority (Rous Water)sign off on the Encroachment into the easement for the new dwelling
Contributions Officer	S7.11 contributions to apply

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

Council mapping does not identify the land as containing significant vegetation. A review of the NSW RFS Website on 23 January 2019 confirmed that the parcel of land is located in a designated 10/50 vegetation entitlement clearing area.

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 subject land is currently utilised for residential purposes and the current development application does not alter this land use.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐
Consideration: A BASIX Certificate accompanied the development application.
State Environmental Planning Policy (Vegetation in non-rural areas) 2017	☒	☐
Consideration: The application involves the removal of seven trees comprising: 1 x Candlenut, 1 x Poinciana, 1x Quandong, 3 x Rhus Taitenis and 1x Mango. Refer to assessment relative to the Byron DCP regarding this matter.

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

The subject land is identified as ‘DM Deferred Matter’ within BLEP 2014 mapping. As such, it does not apply to the current development application.

4.2B Byron Local Environmental Plan 1988 (LEP 1988)

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

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

(a) The proposed development is defined as a ‘dual occupancy’ pursuant to Clause 17;

(b) The land is within the LEP1988 Property Zone 2(a) Residential 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 make provision for certain suitable lands, both in existing urban areas and new release areas, to be used for the purposes of housing and associated neighbourhood facilities of high amenity and accessibility,	N/a. Zoning framework already established for the land.
(b) to encourage a range of housing types in appropriate locations,	The current proposal will increase the available supply of housing within Byron Bay.
(c) to enable development for purposes other than residential purposes only if it is compatible with the character of the living area and has a domestic scale and character, and	N/a
(d) to control by means of a development control plan the location, form, character and density of permissible development.	The development is consistent with the development control plan provisions for the project.

Clause 17 Dual Occupancy

Clause 17 enables dual occupancies to be permitted on land zoned 2(a) Residential subject to complying with the following provisions:

Provision	Consideration
Arrangements satisfactory to it have been made for the provision of a water supply to each dwelling and for the disposal of sewage and stormwater from each dwelling	Complies: Council’s engineers are satisfied that suitable arrangements are in place relating to these matters.
The area of the allotment on which the dwellings are or will be erected is not less than 800 square metres	Complies: Allotment has an area of 1212m²
Unless the floor space ratio of any building on the land will not exceed 0.5:1.	Complies: Proposed FSR is in the order of 0.35:1

The remaining checked 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 clauses of LEP 1988 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

Clause 63 Development on land identified on the Acid Sulfate Soils Planning Map

The land is mapped as comprising a combination of Class 2 and Class 5 ASS. This triggers a requirement for development consent to be obtained for the following:

· Class 2 – Works below the natural ground surface

· Class 5 –Works within 500 metres of adjacent Class 1, 2, 3 or 4 land below 5 metres AHD likely to lower the watertable below 1 metre AHD on the adjacent Class 1, 2, 3 or 4 land

Only a small portion of the expanded dwelling module is to be located within the Class 2 land. Works within this portion of the site will involve footings associated with the structure. Suitable conditions have been applied requiring an Acid Sulfate Soils Management Plan to be prepared prior to issue of a Construction Certificate for Stage 2.

Clause 45 – Infrastructure services

There has been significant negotiation between Council Engineers and the applicant relating to the provision of service infrastructure (particularly stormwater disposal). These matters have been resolved to the satisfaction of Council’s Engineer and suitable conditions have been applied.

With respect to ‘soft’ infrastructure, it is noted that the development plans to not provide for a mail box to Cemetery Road to service proposed Strata Lot 2 (at the rear of the property). A suitable condition has been applied requiring this to be provided along the Cemetery Road frontage, with this to be provided as part of Lot 2.

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

No draft Planning Instrument is applicable to the site.

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

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

In addition, the following particular comments are made with respect to elements of the DCP of particular relevance to the proposal.

Chapter 1 Part A General

A5 Tree Preservation and Vegetation Management

Tree	Consideration
1 x Mango	This is a fruit tree and accordingly no approval is required to remove this tree under Item 2(a) of the TPO
3 x Rhus Taitenis	Consent is required for the removal of these tree. Whilst a rainforest species, this tree is not native to the local area, with the natural range being within the Northern Territory, Cape York and North East Queensland. (Note: This is not the same species as the Rhus tree identified on the List of Undesirable Trees within the TPO)
1 x Candlenut	Consent is required for the removal of this tree.
1 x Poinciana	Consent is required for the removal of this tree. This is not a native tree.
1x Quandong	Consent is required for the removal of this tree

In this instance, the trees in question appear to have been planted for landscape and amenity purposes. All of the trees are at the rear of the property and are not prominent features in the landscape. In addition, the vegetation is not identified within Council mapping as being of high conservation value or within a wild life corridor. Given the above it is considered that a reasonable balance has been achieved within the application with respect to retention and removal of vegetation at the rear of the site. Suitable conditions have been applied requiring the planting of at least six (6) compensatory trees as part of Stage 1 of the project.

Suitable conditions have also been applied requiring the involvement of a qualified Arborist to undertake the tree removal works and also to form part of the team responsible for the design and installation of works in the vicinity of the trees to be retained.

Chapter 1 Part C Residential Development

C2 – General Provisions

Provision	Consideration
C2.2 – Height of Buildings Buildings are to comply with BLEP1988	Complies.
C2.3 – Buffer Areas	Not applicable.
C2.4 – Coastal Erosion Zones	Not applicable
C2.5 – Building Height Plane	Comment: Refer comment below.
C2.6 – Setback from Street, Side and Rear Boundaries	Complies
C2.7 – Extent of Earthworks	Complies – Only minimal earthworks are proposed to facilitate the development.
C2.8 - Screening the underfloor space of buildings	Not applicable

C2.5 – Building Height Plane

As illustrated in the Plates below, the eastern elevation of the proposed ‘main dwelling’ on Lot 2 will encroach into the building height plane along the eastern elevation. In most circumstances, an encroachment of this scale is unlikely to be supported. However, in this instance the characteristics of the site and the development pattern on the adjoining land are such that the encroachment is considered reasonable in the circumstances. The reasons are as follows:

1. The adjoining property to the east of the development site contains an established town house development. The portion of the adjoin site in proximity to the proposed dwelling comprises car parking and driveway access. Accordingly, any overshadowing (in the late afternoon) is not expected to adversely impact on private open space or living areas on the adjoining property.

2. The upper level windows of the proposed dwelling are both highset and have privacy screening. As such, overlooking from the windows is unlikely to occur. It is recommended that screening also be required to the eastern end of the upper level deck. Suitable conditions have been included to facilitate this outcome.

3. No objections were received from adjoining property owners.

Plan extract – Building Height Plane Encroachment

Plan extract – Eastern Elevation

Air view illustrating relationship with adjoining property

C3 – Design Principles

Provision	Consideration
C3.1 – Visual Impact	Complies. The proposed development is considered to be a suitable addition to the locality.
C3.2 – Building Design in Rural Areas	Not applicable
C3.3 – Development On or Near Ridgetops	Not applicable
C3.4 – Development in Scenic Zones	Not applicable
C3.5 Element – Minimum Lot Sizes and Street Frontages	Complies. The subject land complies with the required 800m2 minimum lot size and 15m frontage.
C3.6 Element –Fences	No changes are proposed to the existing front fence to Cemetery Road.

C5 – Dual Occupancy

Provision	Consideration
C5.1 - Carparking 2 spaces required per dwelling	The application originally provided for only one car parking space to service the existing dwelling (retaining the existing arrangement for the dwelling). The owner advises that this situation has been satisfactory to their requirements to date. Given that the proposal seeks to establish a new development outcome for the site, it is reasonable that the project provide a second space in accordance with the DCP requirements (particularly having regard to the potential for ownership changes in the future). The applicant has agreed to this requirement and a suitable condition has been applied.
C5.2 - Character and Private Open Space	Complies: Each dwelling has been provided with suitable and compliant areas of private open space.
C5.3 - Density Control Maximum density of 0.5:1 and 25% absorbent surfaces.	Complies.
C5.4 - Sound Proofing	Not applicable
C5.5 – Private Open Space 90m2 POS required for each dwelling	Complies.
C5.6 – Adjoining and Adjacent Development	Comment: The proposed dual occupancy building provides a reasonable interface with nearby properties. The upper level eastern elevation is located in a position where it could potentially overlook common driveway and circulation space in the adjoining unit development. The design responds to this potential privacy intrusion by providing high-level, screened windows along this elevation. A condition of consent has been applied requiring the eastern end of the upper level deck to also have privacy screening.
C5.7 – Attached Dual Occupancies	Not applicable

4.5 Any Planning Agreement or Draft Planning Agreement?

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

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

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

4.7 Any COASTAL ZONE MANAGEMENT PLAN?

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

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

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

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

Council Policy	Consideration
Building over pipelines and other underground structures Policy	Conditions to apply in relation to the Water easement
Provision of Driveways Policy	Complies. Suitable arrangements have been made for driveway access to the property to the satisfaction of Council’s engineer.
Water and Sewer Equivalent Tenement Policy	Complies. Conditions applied requiring payment of S64 contributions.

4.9 The suitability of the site for the development

Issue

Comment

Services

- Water/ Sewer/ Stormwater

- Ph/ power

- Access

As outlined above, Council’s engineer satisfied that suitable arrangements are in place, or can be conditioned, relating to service infrastructure.

Hazards

- ASS

- Bushfire

The bushfire and Acid Sulfate Soil characteristics of the land have been considered within this assessment and are able to be managed in a satisfactory manner, subject to the application of suitable consent conditions.

4.10 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. No submissions were received.

4.11 Public interest

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

6. REASONS FOR DECISION, HOW COMMUNITY VIEWS WERE ADDRESSED

Statement of Reasons

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

The proposed development complies with relevant State Environmental Planning Policies

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 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 2010. No submissions were received.

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

How community views were addressed

The DA was notified/advertised in accordance with Development Control Plan 2010. No submissions were received.

7. DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Has a Disclosure Statement been received in relation to this application	Yes
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: One of the landowners is a Councillor on Byron Shire Council.

Given the above, the town planning assessment has been completed by an independent town planning consultant on contract to Byron Shire Council.

8. CONCLUSION

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

DA No.	Applicant	Property Address	Proposal	Exhibition Submission/s	Reason/s Outcome
10.2009.261.2	Mr B J Mackney	17 Byron Creek Road COOPERS SHOOT	S4.55 (1A) Modification to a Boundary Adjustment Subdivision	Level 0	Staff Delegation
10.2014.753.3	Newton Denny Chapelle	30 Tanner Lane TYAGARAH	S4.55 to Amend Condition 101 regarding Traffic Management Plan	Level 2 28/2/19 to 13/319 2 submissions	Staff Delegation
10.2017.402.3	Bayview Land Development Pty Ltd	77 Tuckeroo Avenue MULLUMBIMBY	S4.55 to Delete Conditions regarding temporary creek crossing – no longer proposed	Level 0	Staff Delegation