Agenda of Ordinary (Planning) Meeting

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 8.1

Staff Reports - Sustainable Environment and Economy

Report No. 8.1 PLANNING - Update on Resolution 19-209 Development Application 10.2018.483.1 Rural Tourist Accomodation Eight (8) Cabins and Swimming Pool at 58 Montecollum Road Wilsons Creek

Directorate: Sustainable Environment and Economy

Report Author: Ben Grant, Planner

File No: I2019/974

Summary:

Council resolved at the Planning Meeting held 16 May 2019 the following:

19-209 Resolved that determination of application 10.2018.483.1 be deferred for the following reasons:

1. To review the road upgrade consent condition to consider ensuring the most regularly damaged segments are upgraded;

2. The submission by Tweed Byron Aboriginal Land Council be given due diligence and assessed;

3. A redesign be submitted of common entertaining area to minimise potential for gatherings and events and for noise attenuation; and

4. That staff review the number of cabins on the site and clustering arrangements of the cabins.

This report presents to Council a response to the matters contained in the resolution.

Following the 16 May Planning Meeting, the applicant has amended the proposal by reducing the size of the pool deck by 30% and by reducing the number of cabins from eight to seven. These amendments will serve to limit the total number of guests that can congregate around the pool at any one time, thereby minimising the potential for excessive noise being generated by a large group.

Council’s Development Engineer carried out a Road Safety Audit of Montecollum Road and reviewed the existing road upgrade conditions. The Audit concluded that sealing the full length of the road is not warranted, but correcting the gravel road formation of the first 450m along with the provision of a passing bay at 200m is recommended given the increased maintenance that will be required as a result of the development.

The site was inspected by an officer from Tweed Byron Local Aboriginal Land Council (TBLALC) and a Cultural Heritage Sites Inspection report has been provided to Council. The report did not identify any tangible cultural material or objects in the vicinity of the proposed development, but noted that Coolamon Scenic Drive and Montecollum Road were pathways between Koonyum Range and the coast. Ground disturbing works will need to proceed with caution in accordance with the recommended procedures for unexpected cultural heritage finds.

Staff have reviewed the clustering arrangement of the cabins and concluded that the design is reasonable given the characteristics of the site and that no amendments are required. Each cabin is 19m apart on average, and no more than 67m apart at the most. As discussed further in the report, the development is considered to comply with the Prescriptive Measures and Objectives of DCP 2014, Part D3.3.4.

Based on the additional information provided, amended plans and updated conditions, it is recommended that Development Application 10.2018.483.1 be approved subject to the attached 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 10.2018.483.1 for Rural Tourist Accommodation Seven (7) Cabins and Swimming Pool, be granted consent subject to the following conditions listed in Attachment 7 (#E2019/52983).

Attachments:

1 Attachment 1 – 10.2018.483.1 – Road Safety Audit, A2019/20128

2 Attachment 2 – 10.2018.483.1 – TBLALC Cultural Heritage Sites Inspection Report, E2019/52482

3 Attachment 3 – 10.2018.483.1 – Due Diligence Code, E2019/52891

4 Attachment 4 – 10.2018.483.1 – Drawing A09 Issue B – Amended pool deck plans, E2019/52479

5 Attachment 5 – 10.2018.483.1 – Diagram A – Illustration of separation distances between cabins, E2019/52477

6 Attachment 6 – 10.2018.483.1 – Diagram B – Layout plan illustrating clustering of cabins on the site, E2019/52478

7 Attachment 7 – 10.2018.483.1 Amended conditions of consent (19/07/2019), E2019/52893

8 Attachment 8 - 10.208.483.1 - Plans, E2019/54626

9 Attachment 9 - Engineering Assessment Report (Submission) - Ingen Consulting, E2019/55504

REPORT

Council considered Report No. 6.1 PLANNING – 10.2018.483.1 Rural Tourist Accommodation Eight (8) Cabins and Pool at the Planning Meeting of 16 May 2019 and resolved as follows:

19-209 Resolved that determination of application 10.2018.483.1 be deferred for the following reasons:

1. To review the road upgrade consent condition to consider ensuring the most regularly damaged segments are upgraded;

2. The submission by Tweed Byron Aboriginal Land Council be given due diligence and assessed;

3. A redesign be submitted of common entertaining area to minimise potential for gatherings and events and for noise attenuation; and

4. That staff review the number of cabins on the site and clustering arrangements of the cabins.

This report presents to Council a response to the matters raised in the resolution. These matters are discussed below:

Reason 1 – To review the road upgrade consent condition to consider ensuring the most regularly damaged segments are upgraded

Road upgrades

Council’s Development Engineer carried out a Road Safety Audit of Montecollum Road on Friday 12 July 2019. The investigation considered geometric features, road surface type and condition, roadside hazards and driver sightlines. Please refer to Attachment 1.

Montecollum Road extends east from Cedar Road to the subject site over a distance of approximately 800m, comprising gravel and sealed sections. The first 450m has a 4.0m wide formed gravel pavement and is in reasonable condition. The second section, approximately 350m in length, has a 5.0m sealed pavement in reasonable condition, but with some pot holes and corrugations. The road extends beyond this point but is not maintained by Council.

Overall, the condition of the Council maintained section of Montecollum Road is reasonable and does not show significant pavement structural defects. Surface defects such as pot holes and slight corrugations are due to a lack of maintenance.

Montecollum Road is a Local Access Rural Road with a capacity of 150 vehicles per day. The road currently services seven rural properties generating an estimated 63 vehicles per day and 5.95 vehicles per peak hour. The proposed development is estimated to generate an additional 36 vehicles per day and 4.1 peak hour trips. The total volume of traffic post-development is expected to be 99 vehicles per day and will therefore not exceed the capacity of the road.

In relation to road upgrades, the traffic generated by the proposed development is likely to increase the frequency of maintenance required along the gravel section of Montecollum Road. Sealing the road is not warranted, but correcting the gravel road formation for the first 450m is recommended with passing bays at 200m.

Council’s Development Engineer noted:

“The volume of development traffic will not create adverse impact main section of Montecollum Road east of Cedar Road; however, the development will increase the frequency of maintenance requirement to provide an acceptable level of service. The gravel road must be upgraded to correct the road formation prior to the issue of occupation certificate”.

The following amendment to Condition 15 is recommended (changes in bold):

15) Consent required for works within the road reserve

Consent from Council must be obtained for works within the road reserve pursuant to Section 138 of the Roads Act 1993. Three (3) copies of engineering construction plans must accompany the application for consent for works within the road reserve.

Such plans are to be in accordance with Council’s current Design & Construction Manuals and are to provide for the following works:

Road Upgrade

The following sections of Montecollum Road must be upgraded:-

1. The first 450m from Cedar Road;

2. From the end of the existing sealed section (approximately 800m from Cedar Road) and up to 10m past the proposed driveway servicing Cabin 1 to Cabin 6.

The upgrade must included the following:-

1. Generally in accordance with Council’s standard drawing R13 for a rural crowned road with a formation of 4m carriageway with roadside drainage and table drains in accordance with Section D1.22 of NRLG D1 Geometric Road Design.

2. Provision shall be made to provide passing bay at 200m spacing. The passing bay shall be 20m long x 6m wide carriageway.

3. Provision of sealed surface at all access points, longitudinal grades 10º or greater, 10m before and after the dwelling house in Lot 3 DP621548.

Driveway (rural & residential areas without kerb & gutter)

A driveways (2x) servicing the Cabins shall be upgraded in accordance with Council’s current “Northern Rivers Local Government Development Design & Construction Manuals and Standard Drawing R14”.

Reason 2 – The submission by Tweed Byron Aboriginal Land Council be given due diligence and assessed

Cultural Heritage Sites Inspection Report

A Cultural Heritage Sites Officer from the Tweed Byron Local Aboriginal Land Council (TBLALC) visited the property on 31 May 2019. A Cultural Heritage Sites Inspection report was provided to Council on 5 June 2019 (refer to Attachment 2).

The report did not identify any tangible cultural material or objects in the vicinity of the proposed development, but noted that Coolamon Scenic Drive and Montecollum Road were pathways between Koonyum Range and the coast.

The Report made the following recommendations:

· “In regard to Aboriginal Cultural Heritage, insofar as it relates to proposed development of the site that is the subject of this report, in TBLALC’s opinion there is nothing at this stage to halt or delay work on this site.

· TBLALC generally recommends that the Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW (‘the Code’), published by the DECCW OEH, being the basic standard of assessment, should be referred to. A copy of the Code will be included with this report.

· Note that this report provides a useful part of supporting documentation for proceeding in accordance with the Code”.

An assessment of the application has been carried out in accordance with the Due Diligence Code of Practice as noted in the TBLALC recommendation (refer to Attachment 3). On the basis of the information provided, it is considered that the proposed development is unlikely to have a significant impact on Aboriginal cultural heritage and further investigation or impact assessment is not warranted. All ground disturbing works should proceed with caution in accordance with the recommended procedures for unexpected cultural heritage finds.

The following conditions are recommended:

3) Discovery of Aboriginal relics

If any Aboriginal archaeological relics or items are exposed during construction works, the Developer or Contractor shall immediately cease works, notify the NSW Office of Environment and Heritage (OEH) or its successor, and obtain any necessary permits and/or approvals to continue the work under the National Parks and Wildlife Act 1974. The Developer or Contractor shall comply with any further request made by the OEH to cease work for the purposes of archaeological assessment and recording.

4) Procedures for unexpected finds

The following procedure must be applied in the case of unexpected finds (including even suspected Aboriginal cultural heritage objects):

a) Stop all work on-site immediately. Do not further disturb the object(s) or the site in any way.

b) Place a protective barrier around the site.

c) The NSW Office of Environment and Heritage (OEH), or its successor, and Tweed Byron Local Aboriginal Land Council (TBLALC) must be contacted as soon as possible for information, advice, assessment and guidance.

d) In the event that human skeletal material is encountered NSW Police must be contacted immediately, a buffer zone surrounding the area should be setup and all activities must cease within this buffer zone until such time as the necessary approval is given to continue work within the buffer zone.

Reason 3 – A redesign be submitted of common entertaining area to minimise potential for gatherings and events and for noise attenuation

Reduction in deck size

The applicant has amended the proposal by reducing the size of the pool deck by 30%. The amended deck has dimensions of 14.5m by 5m and an area of 72.5m². Refer to Figure 4.

17072019131919-0001 Figure 4: Amended plans illustrating the pool facilities. The deck has been reduced in size by 30%.

The smaller deck will reduce the number of guests that can congregate around the pool at any one time, minimising the possibility of large groups generating excessive noise. As the proposed development offers no central facilities buildings or large entertainment areas, there is limited potential for the development to be used as a venue or function centre.

Reason 4 – That staff review the number of cabins on the site and clustering arrangements of the cabins

Clustering arrangements

The requirement for rural tourist accommodation to be arranged in a ‘cluster’ pattern is established by Byron Development Control Plan 2014, Part D3.3.4, Prescriptive Measure 2 (h) (iii), as shown below:

D3.3.4 Rural Tourist Accommodation and Farm Stay Accommodation

h) The siting of rural tourist accommodation must be such that:

iii) rural tourist accommodation is to be arranged in a ‘cluster’ pattern and located on average no further than 80 metres apart with adequate vegetation screening between for privacy and amenity purposes.

The assessment report considered by Council on 16 May interpreted this control as requiring all cabins to be located in a single ‘cluster’ with an average diameter of 80m. The proposed arrangement of cabins over a distance of 150m was therefore considered to be a variation to the Prescriptive Measures and was assessed as such. The assessment report concluded that the design was, nonetheless, reasonable given the characteristics of the site and satisfied the Performance Criteria and Objectives of Part D3.3.4.

Following a review of Prescriptive Measure 2 (h) (iii), it is evident that this interpretation was overly conservative. The intention of the clause is not to restrict cabins to a single 80m cluster, but rather, to ensure that cabins are arranged in groups with an average separation distance of 80m between each building. Further discussion with senior staff has revealed that the clustering provisions in Part D3.3.4 were directly drawn from the guidelines in the Byron Rural Settlement Strategy 1998 (BRSS) and were intended to reflect these existing provisions. The BRSS provides:

7. The siting of holiday cabins must be such that:

d) all holiday cabins are to be arranged in a ‘cluster’ pattern unless a dispersed arrangement can be clearly demonstrated to be an ecologically superior solution. In the context of rural tourist facilities, a ‘cluster’ is defined as a group of three (3) or more cabins located an average of 80 m and no more than 160 m apart from each other with adequate vegetation screening between cabins (i.e. to ensure privacy) and with the layout of developments in the cluster having regard to the physical characteristics of the land and the need to provide access to the cabins for the provision of accident or fire emergency and other services such as sewerage disposal system, water supply and electricity.

As demonstrated in Figures 5 and 6, the proposed development complies with the clustering provisions established by Prescriptive Measure 2 (h) (iii). Each cabin is 19m apart on average, and no more than 67m apart at the most. The development footprint is contained within an area of 1.6 hectares (5% of the site) with the remaining land available for agriculture and/or environmental restoration.

17072019131740-0001

Figure 5: An illustration of the separation distances between each cabin. The development has a 19m average separation distance between cabins, with a maximum separation of 67 between cabins 6 and 7.

17072019131836-0001

Figure 6: A layout plan illustrating the development footprint in relation to the site. The cabins are clustered around the main dwelling over an area of 1.6 hectares, or 5% of the site area.

The arrangement of cabins is therefore assessed as reasonable given the characteristics of the site and accords with the provisions of DCP 2014. No changes are recommended.

Number of cabins

The applicant has agreed to reduce the number of cabins from eight to seven. The removal of a cabin will likely see a reduction in the potential impacts of the development in relation to noise, traffic and rural amenity. Amended plans have not been provided, however, the reduction can be given effect through the following condition of consent:

6) Amendments

The Principal Certifying Authority shall be satisfied that the plans have been amended as follows:

· “Cabin 1” shall be deleted from the plans.

Such plans and specifications shall be provided for approval as part of the construction certificate application.

Late submission

Council received a late email submission in relation to the condition of Montecollum Road on 29 July 2019. The submission included a report from Ingen Consulting that provides an evaluation of traffic safety issues associated with the proposed development. The submission author noted that the report was sent to all councillors prior to the Planning Meeting on 16 May. It was requested that the report be taken into consideration. Please refer to Attachment 9. The report states that Montecollum Road is in poor condition and is generally unsafe due to the following reasons:

· Limited passing opportunities and sight distances;

· Poor pavement condition;

· Dense roadside vegetation blocking sightlines;

· Power poles and trees close to edge of pavement;

· Inappropriate speed controls;

· Insufficient sight distances at the intersection of Montecollum and Cedar Road;

· Unclear priority arrangements at the intersection of Montecollum and Cedar Road.

The report concludes that the proposed development is likely to increase road safety risks as a result of driver behaviour from tourist who are unfamiliar to the area, and from increased traffic volumes along the single lane stretches of road. The submission has been reviewed by Council’s Development Engineer and there remains a general concern as to traffic safety and the ability for vehicles to pass each other on the narrower sections of the road. As detailed in the report, this issue has been addressed through an additional condition that requires the first 450m of Montecollum Road to be upgraded along with a passing bay to be provided at 200m spacing. This requirement, in conjunction with the existing road upgrade conditions, is considered sufficient to improve traffic safety to an appropriate level commensurate with the impact of the development.

Conclusion

The additional information and amendments to the application have adequately addressed the reasons for deferral in the Council resolution. The proposed development is considered to be in accordance with the relevant planning controls that apply to the site and is unlikely to result in significant adverse impacts on the natural or built environment.

It is recommended that development application 10.2018.483.1 for Rural Tourist Accommodation Seven (7) Cabins be granted consent subject to the conditions appended to this report (E2019/52893).

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 8.4

Report No. 8.4 PLANNING - DCP 2014 Minor Amendments Submissions Report 24.2018.65.1

Directorate: Sustainable Environment and Economy

Report Author: Sam Tarrant, Planning Support Officer

File No: I2019/909

Summary:

This report presents the public exhibition outcomes for a proposed ‘housekeeping’ amendment to Byron DCP 2014 (various chapters) in accordance with Council Resolution 19-091. The amendments are of a minor nature and seek to resolve a number of anomalies and inconsistencies when assessing development applications.

The proposed amendment was placed on exhibition from 1 May to 16 June 2019. During this time two submissions were received from the public. Staff also reviewed the amendment and proposed a number of small changes. The submission and proposed changes are discussed in the body of this report.

The Chapters for adoption and the submissions are attached to this report

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Council:

1. Adopt the DCP 2014 Chapters, with the changes as a result of the public exhibition period which are detailed in the body of this report and included in Attachments 1 to 10 (#E2019/29634, #E2019/31383, #E2019/29557, #E2019/29556, #E2019/29415, #E2019/29404, #E2019/29393, #E2019/29392, #E2019/29357, #E201928932).

2 Notify the public as required by the Environmental Planning and Assessment Regulation 2000.

Attachments:

1 Draft Byron Shire DCP 2014 Chapter D6 Subdivision, E2019/29634

2 Draft Byron Shire DCP 2014 Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access, E2019/31383

3 Draft Byron Shire DCP 2014 Chapter D2 Residential Accomodation and Ancillary Development in Rural Zones, E2019/29557

4 Draft Byron Shire DCP 2014 Chapter D3 Tourist Accommodation, E2019/29556

5 Draft Byron Shire DCP 2014 Chapter B9 Landscaping, E2019/29415

6 Draft Byron Shire DCP 2014 Chapter D1 Residential Accomodation in Urban, Village and Special Purpose Zones, E2019/29404

7 Draft Byron Shire DCP 2014 Chapter E8 West Byron Urban Release Area, E2019/29393

8 Draft Byron Shire DCP 2014 Chapter B14 Excavation and Fill, E2019/29392

9 Draft Byron Shire DCP 2014 Chapter E5 Certain Locations in Byron Bay and Ewingsdale, E2019/29357

10 Draft Byron Shire DCP 2014 Chapter B3 Services, E2019/28932

11 Submissions, E2019/51633

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

REPORT

At the 26 March 2019 planning meeting Council resolved 19-091 to prepare and exhibit the minor housekeeping amendment of the Byron DCP 2014 and report any submissions at the end of the exhibition period. A total of 20 amendments were proposed across a number of chapters and were exhibited from 1 May to 16 June 2019. The draft housekeeping amendment was accessible on Council’s website and notification was posted in the Echo on two occasions. During the six week exhibition period two submissions were received. Both submissions are attached.

One of the submissions related to item 13 (affecting Chapters D2 and D3) which was exhibited as below:

“Reason for Proposed Amendment

To create clearer guidelines for environmental reparations for Rural Tourist facilities, Eco Tourist Facilities and other rural development, including Multiple Occupancy and Community Titled Development. Currently, the primary document for this is the Rural Settlement Strategy 1998. As this document is now 20 years old, Council staff have suggested that some more specific guidelines be built into the DCP to ensure consistency.

Description of Proposed Amendment

Require a vegetation management plan and the planting of 900 trees per cabin (or equivalent determined action) to be included in any development application for rural tourist facilities. In addition, clarify the requirements for environmental reparations for multiple occupancies and community titled properties. Please refer to the attachment for specific details relating to Vegetation Management Plan requirements.”

The submission argued that other aspects of the Byron Rural Settlement Strategy 1998 should be placed into the DCP and the 900 trees per cabin and vegetation management plan should apply to more rural tourist uses. The addition of many of the requirements from the Byron Rural Settlement Strategy would likely require a further amendment and may be more appropriate in other DCP chapters. Staff agree that a more detailed review of the Residential Accommodation

and Ancillary Development in Rural Zones and Tourism Accommodation DCP chapters will be required. Other issues brought up in this submissions are addressed in the below table.

At Council’s planning meeting on 20 June 2019 Council resolved (19-284) to review and amend Byron Local Environmental Plan 2014 and Byron Development Control Plan 2014 in relation to rural tourism/holiday cabins.

Based on the above resolution it is proposed that item 13 be removed from the DCP minor amendments and the entire chapter be reviewed as part of the rural tourism and holiday cabin DCP review. This will allow for a more holistic approach to rural tourism and environmental offsets.

The two submissions had comments on a number of items and are addressed in the table below.

Submission issue number	Issue raised	Staff comment
1.	The housekeeping amendments contains changes that have implications that are not of a minor nature and should not be titled as such	Noted. Staff periodically review Development Control Plans to assist with the assessment of Development Applications and to address minor inconsistencies, as a group amendment. These changes are grouped together in one amendment for efficiency. All aspects of the amendments are advertised. Staff will consider not using the term ‘minor’ for future group amendments. No changes from exhibited drafts are recommended.
2.	B4.2.3 2) Current requirements for dwelling houses and dual occupancy do not require vehicles to enter and exit the site in a forward direction and current wording is sufficient. Providing turning bays in residential lots significantly reduces the site area available for open space or building footprint.	The exhibited proposed amendment is only a minor rewording to change “exemption” to “may seek a variation”. This change is providing clarity to ensure traffic safety is considered when designing driveways and is considered reasonable. No change from exhibited draft is recommended.
3.	B4.2.3 6) A driveway width of 4 meters is excessive for dual occupancy development. Current standards allow 3 meter driveway widths so the increase to 4 meters is not justified.	The 4 meter driveway handle is to allow room for services such as bins, letterboxes and landscaping. The 4 meter width ensures there is enough space for these services and a 3 meter wide driveway. No change from exhibited draft is recommended.
4.	D1.2.2 The proposed increase to 1.5 meter setbacks is unnecessary when Council has a building height plane to protect neighbours views/privacy /overshadowing	The proposed increase is considered reasonable as it protects the adjoining neighbours amenity and privacy. It will help prevent secondary dwellings/dual occupancies from impacting on neighbours on other properties. *Recommendation*: make additional changes to clause D1.2.2 to clarify that 1.5 meter setbacks and the building height plane apply to single storey buildings.
5.	D1.2.8 I support this amendment in relation to providing alternative parking	Noted.
6.	D1.2.9 There is no need for the energy efficiency additions in the DCP as the BASIX requirements provide a state wide approach. The additional costs for retrofitting existing buildings based on these new controls is completely unreasonable for small scale projects. Promoting other means for reducing greenhouse gas emissions such as providing cycleways etc. would be more appropriate.	These requirements are only for dwellings that are exempt from BASIX requirements. It is considered reasonable to ensure that all new buildings are striving for high energy efficiency standards. Council actively promotes other methods for reducing emissions including providing active transport options. No change from exhibited draft is recommended.
7.	D1.4.3 I support this amendment in relation to secondary dwellings being prohibited on strata lots as it aligns with the SEPP	Noted.
8.	D2 and D3 – Item 13 The requirement for 900 trees per holiday cabin has not been well thought through and it is unreasonable to require the planting of so many trees especially on small property’s or when no trees have been removed in building the cabins. It would also have potential bush fire safety impacts. The VMP requirement to be submitted with development applications goes unfairly beyond the detail of information required for submitting a development application as prescribed within the Act. This control needs to be properly considered and refined before being put into the planning controls	Agreed, both submissions have noted that this amendment requires further thought. *Recommendation: to remove Item 13 (from Chapters D2 and D3) and address this in the review of Chapter D3 Tourist accommodation, as per resolution (19-284*).
9.	D2.7.2 I support this amendment in providing clarity but the prescriptive controls for fencing design is not a relevant DCP control	This amendment has been placed into the performance criteria and not the prescriptive controls. The inclusion of fencing in the performance controls is to provide guidance for fencing types and not considered unreasonable No change from exhibited draft is recommended.
10.	D3.3.2 I support the increase in bedroom numbers and guest numbers within a bed and breakfast establishment	Noted, this is to keep consistency with the LEP.
11.	D6.4.1 I support the removal of table D6.1 as some of the requirements don’t make any sense. The requirement for 6 meter frontage for hatchet shaped lots is excessive and a poor use of land creating an inefficient subdivision layout. Also the lot size requirement for hatchet shaped lots is too restrictive as they do not require large boundary setbacks as the building envelope is well away from the street frontage. It would be more appropriate to allow lot size for hatchet lots (excluding the handle) to be a percentage of the prescribed minimum lot size as there are a number of these lots that have a lot size that is well beyond that needed for a dwelling construction. These comments are made in recognition of efficient use of land.	*Recommendation*: change clause D6.4.1 to reflect that the 6 meter frontage requirement is only for each Torrens title lot to facilitate services such as bins, landscaping and fencing. *Recommendation*: an additional sentence has been added to strengthen clause D6.4.1 by clarifying that relying on rights of carriageway with no road frontage is not supported. Clause D6.4.1 does not amend the minimum lot size requirement as this is set out in Byron LEP 2014. This provision applies to Torrens lots only, there may still be opportunity to vary frontage in strata title subdivision.
12.	The guidelines for the VMP and BCMP are not on Council’s website despite the clause saying they are	The guidelines are available on Council’s website at https://www.byron.nsw.gov.au/Services/Building-development/Plans-maps-and-guidelines/Other-Guidelines
13.	There is ambiguity in rural tourist accommodation and farm stay in their definitions and what measures apply to each in the DCP.	This will be considered in the review of Chapter D3 Tourist accommodation as per resolution (19-284). No change from exhibited draft is recommended.

Staff also reviewed the proposed amendments and noted two minor changes that should be made prior to the adoption of some of the DCP Chapters. The proposed changes and reasoning are presented in the table below

Item #

Provision (s)

Reason for and Description of Proposed Amendment

B4.2.3 7)

Reason for Proposed Amendment

To clarify the intent of fencing the access of hatchet shaped lots to ensure that adjoining existing dwellings are not unfairly impacted, without requiring fencing of the driveway to occur at the subdivision stage when there is no impact to any neighbours.

Recommendation: Amend B4.2.3 7) by inserting “with different ownership”

D2.6 9b)

Reason for Proposed Amendment

To clarify that dual occupancies and secondary dwellings are not permitted in community title or multiple occupancy development. We only included this amendment in community title but did not include it in multiple occupancy when the change should apply to both.

Recommendation: Amend D2.6 9b) to read “Dual occupancies and secondary dwellings are not permitted unless otherwise specified in the multiple occupancy approval or in Schedule 1 of Byron LEP 2014”

The amended Chapters are attached for adoption. Changes as a result of the submissions and staff comments are identified in red in Chapter B4, D1, D2 and D6.

Options

1. Proceed with the adoption of the proposed DCP Chapters as a result of the public exhibition period and staff comments (attached)

2. Proceed with the adoption of the proposed DCP Chapters with any changes Council sees fit.

Next steps

If Council adopts the amended DCP Chapters they will be published on Council’s website and come into force on the day that notice is given in the local newspaper.

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	4.5	Work to improve community resilience in our changing environment	4.5.1	Develop and implement strategies for our community's needs	4.5.1.1	Scope and prepare a comprehensive Development Control Plan (DCP) review

Legal/Statutory/Policy Considerations

The amendment of development control plans is governed by Environmental Planning and Assessment Regulation 2000 (Part 3 – Development Control Plans).

Financial Considerations

As this is a Council initiated DCP amendment, the processing costs will be borne by Council. If Council chooses not to proceed then the matter does not incur any additional costs.

Consultation and Engagement

As discussed in the report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 8.8

Report No. 8.7 PLANNING - Development Application 10.2019.20.1 Multi Dwelling Housing, Five (5) Dwellings - Lot 14 DP 792128 Bangalow Road, Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Rob Van Iersel, Major Projects Planner

File No: I2019/1076

Proposal:

DA No:	10.2019.20.1
Proposal description:	Multi dwelling housing comprising five (5) two-bedroom dwellings, with plunge pools, associated landscaping and civil works, including relocation of existing sewer main.
Property description:	LOT: 14 DP: 792128
	Bangalow Road BYRON BAY
Parcel No/s:	60550
Applicant:	Ardill Payne & Partners
Owner:	Mr I A Andreou
Zoning:	R2 Low Density Residential / PART DM Deferred Matter (2(a) Residential & 7(a) Wetlands under BLEP 1988)
Date received:	8 January 2019
Integrated / Designated Development:	☐ Integrated	☐ Designated	☒ Not applicable
Concurrence required	No
Public notification or exhibition:	Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: Original Proposal: 7/2/19 to 6/3/19 Amended Proposal: 20/6/19 to 3/7/19 - Submissions received: Original - 21 objections Amended - 9 objections
Concurrent approvals (S68/138):	Not applicable
Variation request	☐ Clause 4.6	☐ SEPP 1	☒ Not applicable
Issues:	· Relocation of sewer and associated easements; · Potential impacts on coastal wetland values · Stormwater & flooding · Privacy for neighbouring properties · No covered car parking spaces

Summary:

The property is located immediately to the west of the existing residential lots that front Bangalow Road in Byron Bay. While the property has a total area of approx. 3.5ha, only a relatively narrow part of the land is cleared, located along the property’s eastern edge. The cleared area, which is zoned R2 Low Density Residential, has an area of approx. 2,000m². The remainder of the site is heavily vegetated coastal wetland, backing onto the rail corridor on the western boundary, and is zoned 7(a) Wetlands under BLEP 1988.

The application originally proposed seven (7) stand-alone, single-storey, two bedroom dwellings within the cleared part of the property, accessed from an existing driveway from Bangalow Road.

The application proposed the relocation of an existing local sewer main to be clear of the proposed dwellings, with updated connections to the rear of the adjoining residential properties. As originally designed, the development did not provide for sufficient easement widths over the residential connections.

The bush fire hazard assessment undertaken for the development specifies a requirement for a 17m wide APZ from the eastern elevation of the dwellings, to be maintained clear of ground fuel. In the northern part of the property, the 17m APZ encroached within the mapped Coastal Wetland boundary. Pursuant to the Coastal Management SEPP, this meant that the application would be ‘designated development’. The Biodiversity Conservation Act would also require a full BDAR assessment as the Coastal Wetland area is also included in the Biodiversity Value Map.

In response to these issues, the applicant amended the development proposal, to remove two (2) dwellings and redesign the floor plan of one of the remaining dwellings, such that there is now no encroachment of the APZ (or any other aspect of the development) into the mapped Coastal Wetland. The amended proposal now includes five (5) detached small dwellings, with floor areas of 42m² – 46m². Each dwelling contains a central open plan living/ kitchen/ dining area, opening to the west to an external courtyard. Laundry facilities can be incorporated into the kitchen layout. Bedrooms are located either side of the central living area, each with an ensuite. Each dwelling includes an outdoor private courtyard containing a small plunge pool.

Two (2) external car parking spaces (uncovered) are provided for each dwelling, with visitor spaces (including a PWD space) provided adjacent to the site entrance. Council’s water and sewer engineer has reviewed the amended proposal and is now satisfied that appropriate easements will be available over the relocated sewer main and the reinstated residential connections to neighbouring properties.

The application includes the clearing of five (5) trees within the cleared part of the land (i.e. outside of the coastal wetland) and the pruning of an existing tree that straddles the property boundary. Council’s Consulting Ecologist has reviewed the application and is satisfied that the proposed development will not result in detrimental impacts on the coastal wetland, subject to a detailed Vegetation Management Plan that will require weed control and native planting, specifically to bolster the wetland edge.

Objections from the owners of adjoining residential land are based on a number of concerns, primarily relating to privacy impacts, stormwater/ flooding risks, and potential for dwellings to be ‘holiday let’. In terms of privacy, the boundary between the development site and most of the adjoining properties is not currently fenced, and these owners have for a number of years looked out across the grassed part of the site toward the vegetated wetland. This has provided an additional level of amenity for those owners. However, the land is privately owned and has been zoned for residential development since at least 1993.

The dwellings are proposed to be set 1.5m from the adjoining property boundaries. They are all single storey and the elevations facing the boundary (eastern elevations) have been designed with smaller narrow window openings that each include external window boxes, specifically to minimise the ability for residents to look into the rear yards of the adjoining properties. Overall, while the development will undoubtedly alter the existing amenity of the adjoining residents, it is considered that residential development of the land is a reasonable expectation of the site’s zoning and that the design of the 5 dwellings has adequately minimised the potential for overlooking into neighbours yards.

In relation to stormwater and flooding, the flat grades of the subject property result in pooling of stormwater following rain events. Significant rain events result in stormwater flows from the catchment to the east of the property flowing through the adjoining properties onto the land. In terms of flooding, the dwellings will comply with the flood planning level applicable to the site, which results in the dwelling being elevated on piers, approx. 500mm above existing ground level.

Council’s Development Engineer has reviewed the stormwater management plan and is satisfied that minor regrading works will be achievable in order to address the issue of ponding in a manner that does not exacerbate existing stormwater issues on adjoining land. These regrading works will also be able to convey flood flows from the adjoining eastern catchments in a manner that does not result in any additional flood impacts on neighbours.

In response to ‘holiday let’ concerns, the applicant has stated that this is not the intention of the development and agrees to the imposition of a condition prohibiting holiday letting or other tourism uses of the dwellings.

The application is consistent with all relevant statutory requirements and is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That, pursuant to Section 4.16 of the Environmental Planning and Assessment Act 1979, development application 10.2019.20.1, for multi dwelling housing comprising five (5) two-bedroom dwellings, be approved subject to the conditions contained in Attachment 3 (#E2019/54343).

Attachments:

1 Attachment 1 Submissions received, E2019/54465

2 Attachment 2 Application Plans, E2019/54353

3 Attachment 3 Recommended Conditions of Consent, E2019/54343

REPORT

Assessment:

1. INTRODUCTION

1.1. History/Background

5.1993.175.1	Residential flat building	Refused 07/04/97
10.2000.204.1	Dwelling	Refused 12/09/00
10.2001.478.1	New dwelling and tree removal	Approved 12/12/01

1.2. Description of the proposed development

This application seeks approval for five (5) detached small dwellings, with floor areas of 42m² – 46m². Each dwelling contains a central open plan living/ kitchen/ dining area, opening to the west to an external courtyard. Laundry facilities can be incorporated into the kitchen layout.

Bedrooms are located either side of the central living area, each with an ensuite. Each dwelling includes an outdoor private courtyard containing a small plunge pool.

Typical Floor Plan

Two (2) external car parking spaces (uncovered) are provided for each dwelling, with visitor spaces (including a PWD space) provided adjacent to the site entrance. Access is available from an existing driveway access within a ‘stub road’ that is a part of the Bangalow Road Reserve. This ‘stub road’ also provides access to an existing dwelling on Lot 13 DP 792128, by way of an existing Right of Way across the development property (see aerial photo below).

The application includes the clearing of five (5) trees within the cleared part of the land (i.e. outside of the coastal wetland) and the pruning of another tree located directly on the property boundary, partly within a residential property to the east.

The proposal includes the relocation of an existing 150mm diameter sewer main and the reinstatement of existing connections from that main to adjoining properties. The existing main is proposed to move to the west, to be located beneath the internal driveway, to a depth of around 2m. Sufficient width is available for easements over both the relocated main and the reinstated connections.

1.3. Description of the site

Land is legally described as	LOT: 14 DP: 792128
Property address is	Bangalow Road BYRON BAY
Land is zoned:	R2 Low Density Residential / PART DM Deferred Matter
Land area is:	3.48ha
Property is constrained by:	Acid Sulfate Soils (Class 5)
	Bush Fire Prone Land
	Flood Prone Land
	High Environmental Value Vegetation
	Key Fish Habitat
	Koala Potential Habitat

The property is located immediately to the west of existing residential lots that front Bangalow Road in Byron Bay. While the property has a total area of approx. 3.5ha, only a relatively narrow part of the land is cleared, located along the property’s eastern edge. The cleared area, which is zoned RU2 Low Density Residential, has an area of approx. 2,000m².

The remainder of the site is heavily vegetated coastal wetland, backing onto the rail corridor on the western boundary. Access into the property is via a ‘stub road’, which is part of the Bangalow Road reserve. This access also serves adjoining Lot 13, via a ROW across the subject land.


Edge of Coastal Wetland (looking north)	‘Stub Road’ (looking east from property boundary to Bangalow Road)

The site is currently vacant. A Right of Carriageway 5m wide exists along the northern boundary of the adjoining Lot 13, providing for access to that land. No other easements or restrictions apply.

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer	No engineering objections, subject to recommended conditions of approval (see Doc #A2019/2449). See summary of issues below
S64 / Systems Planning Officer	Plans of proposed relocation of sewer main, including reinstatement of connections to adjoining properties, have been reviewed and are acceptable, subject to conditions, particularly requiring appropriate easements. See Doc # A2019/2458
Contributions Officer	Contributions payable.
Ecologist	No objections, subject to conditions. See Doc # A2019/43052 and summary below.

Development Engineer:

· Access:

Conditions are recommended to ensure that adequate access arrangements can be provided. S138 Roads Act approval will require RMS concurrence.

The ‘stub road’ must be upgraded to Council’s current standard and be made available prior to the issue of the occupation certificate.

Provision must be made to provide a turn-around area at the end of the stub road to facilitate the movement of a standard garbage truck.

· Traffic:

The proposal will generate 25 vehicle trips per day and 2.5 peak hour trips. This increased traffic constitutes minimal impact on the existing road network. Conditions recommended requiring upgrade of the ‘stub road’ and appropriate treatment at Bangalow Rd intersection.

· Car parking:

There is over supply of car parking spaces. However, there are no covered car spaces provided.

· Stormwater:

The Stormwater Management Plan proposes landscaped depressions as detention areas and surcharge flows into vegetated areas to the west. The site is proposed to be regraded to drain north-west and into the existing drain running along the northern boundary, draining west.

The external catchment, coming from the exiting dwellings in the east, will be captured via a swale drain (Q5) and drained to the north and to the south. The external catchment (Q100) coming from the road will be contained via an easement.

Conditions are recommended requiring detailed design of the drainage system prior to issue of a Construction Certificate.

Ecologist:

The major components of the development have been designed to avoid direct impacts to the wetland area, including the proposed relocation of the existing Council sewer line. The initial proposal impinged upon the Coastal Wetland and Biodiversity Values mapped area in the west of the site, through the necessity to remove vegetation for maintenance of an APZ that extended into this area.

Updated Architect plans (Shane Thomson Architects Development Approval Plan: May 2019) include the deletion of the 2 northern dwellings, which results in an APZ that does not intrude into the Coastal Wetland and Mapped Biodiversity Values area.

The development proposes the loss of 5 native trees: 4 Swamp Turpentine Lophostemon suaveolens and 1 Cheese Trees Glochidion fernandi, and 2 exotics: Mango and Cockspur Coral Tree. Since the development is proposed in a cleared area dominated by exotic flora, but adjoining native forest, impacts of the proposal are likely to include disturbance to shy fauna in the coastal swamp forest during construction, and the ongoing impacts of increased human presence adjacent to the coastal swamp forest.

This can include the development of tracks into the forest, dumping of garden waste and plant clippings, and increases in nutrient loads. Newly constructed buildings produce a risk of window strike for birds, which can be avoided by screening all windows in new dwellings. The need to maintain an Asset Protection Zone adjacent to the coastal swamp forest boundary also produces an ongoing edge effect likely to promote the growth of exotic weed species.

A Vegetation Management Plan is needed to control and direct vegetation works to establish and maintain the APZ, and reduce growth of weeds on the edge of the forest. The edge of the Coastal Wetland needs to be clearly defined to prevent accidental incursions during APZ maintenance. Weed removal in the Coastal Wetland edge is encouraged, but the removal of native species in the wetland contrary to the purpose of the Biodiversity Values mapping and is to be strictly avoided. Conditions of consent are recommended in this regard.

3. SECTION 4.14 – BUSH FIRE PRONE LAND

Both the original and amended development applications were referred to the NSW Rural Fire Service, which provided conditions reflected in the Recommendation of this Report below.

The 17m APZ is available from the western elevation of the dwellings to the mapped Coastal Wetland boundary. While establishment and maintenance of the APZ will not require any tree removal, it may require some pruning where the trees are located outside the APZ but with parts of the canopy overhanging into the 17m APZ.

This will not require the total removal of all overhanging canopy. Guidelines associated with Planning for Bushfire Protection 2006 indicate that the canopy should not overhang within 2-5 m of dwellings, which is achieved at the site. The guidelines also suggest that only branches within 2m of the ground would need to be pruned.

Accordingly, the APZ maintenance will not have significant impacts on the wetland vegetation.

EFFECT OF 10/50 RULE ON SIGNIFICANT VEGETATION

The property is located in a designated 10/50 vegetation entitlement clearing area. However, the 10/50 exemption cannot be used to clear vegetation in this case as the property includes land mapped as Coastal Wetland under the Coastal SEPP.

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 44—Koala Habitat Protection	☒	☐
Consideration: The site contains a small number of Swamp Mahogany trees, but not in sufficient numbers to be considered as potential koala habitat. Council’s ecologist concurs that the site is not considered core koala habitat.
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: There is no known history of land use that would suggest a contamination risk.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004	☒	☐
Consideration: BASIX Certificates provided.
State Environmental Planning Policy (Coastal Management) 2018	☒	☐
Consideration: See details below.
State Environmental Planning Policy (Infrastructure) 2007	☒	☐
Consideration: The property is adjacent to a Classified Road. The proposed development is consistent with the requirements of clause 101 of the SEPP.

SEPP (Coastal Management) 2018:

*Provision*	*Comments*
10. Development on certain land within coastal wetlands and littoral rainforests area
(1) The following may be carried out on land identified as “coastal wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map only with development consent: (a) the clearing of native vegetation within the meaning of Part 5A of the Local Land Services Act 2013, (b) the harm of marine vegetation within the meaning of Division 4 of Part 7 of the Fisheries Management Act 1994, (c) the carrying out of any of the following: (i) earthworks (including the depositing of material on land), (ii) constructing a levee, (iii) draining the land, (iv) environmental protection works, (v) any other development.	The amended development proposal does not include any physical development within the part of the property that is identified as coastal wetland.
11. Development on land in proximity to coastal wetlands or littoral rainforest
(1) Development consent must not be granted to development on land identified as “proximity area for coastal wetlands” or “proximity area for littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on: (a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or (b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.	The Stormwater Management Plan submitted with the amended application demonstrates that run-off from the development will be managed in a way that does not impact the adjacent wetland.

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

LEP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act because it applies to the subject land and the proposed development. The LEP 2014 clauses that are checked below are of relevance to the proposed development:

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

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

(a) The proposed development is defined in the LEP 2014 Dictionary as multi dwelling housing;

(b) The land is within the R2 Low Density Residential / PART DM Deferred Matter according to the Land Zoning Map, with the proposed development wholly within the area zoned R2;

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

Zone Objective

Consideration

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

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

The proposed development assists in meeting local housing needs by providing smaller two-bedroom dwellings in close proximity to the Byron Bay Town Centre.

Concern has been expressed that the dwellings will be holiday let. The proponent categorically denies this and advises that he is happy to accept a condition of approval preventing tourism use of the dwellings.

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 2014 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

4.2B Byron Local Environmental Plan 1988 (LEP 1988)

LEP 1988 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act because it applies to the subject land and the proposed development.

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

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

(b) The DM part of the land is partly within the 2(a) Residential Zone and partly within the 7(a) Wetlands Zone, according to the map under LEP 1988;

(c) No part of the development is located within the area zoned 2(a). Only a small part of the internal driveway (max approx. 2m of width) and a proposed garbage bin store are located in the area zoned 7(a) Wetland (both are outside of the mapped Coastal Wetland). The garbage store can be conditioned to be relocated, onto a grassed area to the north, out of the 7(a) zone and out of the coastal wetland. Condition could also require narrowing of the driveway in this location to avoid encroachment into 7(a).

Given that, there are no provisions of LEP 1988 that are directly applicable to the subject application.

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

None applicable.

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

DCP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP& A Act because it applies to the land to which LEP 2014 applies. The DCP 2014 Parts/Chapters that are checked below are of relevance to the proposed development:

Part A	☒
Part B Chapters:	xB2\| xB3\| xB4\| xB5\| ☐B6\| xB7\| xB8\| xB9\| ☐B10\| ☐B11\| ☐B12\| xB13\| ☐B14
Part C Chapters:	☐C1\| xC2\| ☐C3\| ☐C4
Part D Chapters	xD1\| ☐D2\| ☐D3\| ☐D4\| ☐D5\| ☐D6\| ☐D7\| ☐D8
Part E Chapters	☐ E1\| ☐E2\| ☐E3\| ☐E4\| ☐E5\| ☐E6\| ☐ E7

Chapter D1 Residential Accommodation in Urban, Village and Special Purpose Zones

DCP requirement/summary	Proposed/ Comments	Complies
D1.2.1 Building Height Plane Prescriptive measures	All dwellings comply with Height Plane.	Yes
D1.2.2 Setbacks from Boundaries Prescriptive measures: Street frontage – Classified Road: 9m Side & rear – 1.5m (plus BHP) Between buildings on site – 3m	Setbacks from boundaries comply. Separation between buildings does not comply – 2.0m provided instead of 3.0m. The siting of the dwellings ‘behind’ existing development, it will not be visible from the public road. Given this, and the constraints of the site, it is considered that the variation to the required separation between dwellings is acceptable.	Yes (setbacks) No (separation between buildings)
D1.2.4 Character & Visual Impact No prescriptive measures. Performance measures:
Site, building and landscaping design must address climate	Appropriate design response	Yes
The street face of a building, together with any open space between it and the street, must contribute to the general attractiveness of the streetscape by means of good design, appropriate materials and effective landscaping	Site is distant from street frontage and won’t be visible from Bangalow Road	Yes
Development should be designed to minimise loss of privacy	Appropriate response – windows on the eastern elevation (facing rear yards of adjoining properties) minimised and screened	Yes
There must be a reasonable degree of integration with the existing built and natural environment, balanced with the desirability of providing for variety in streetscapes	Appropriate response to a narrow constrained site	Yes
Long, straight wall areas will be discouraged and must be broken up visually by a combination of building materials and/or changes in the wall plane	No unbroken long walls	Yes
The provision of verandahs, balconies, pergolas and other protective outdoor elements will be encouraged for visual, climatic and energy efficiency reasons	Decks are located on western elevation. While not ideal for sun, the orientation maximises internal site views of vegetation and avoids privacy impacts in relation to neighbouring rear yards to the east	Yes
Well-designed overhanging eaves should be provided where feasible to protect against heavy rainfall and summer sun, while allowing winter sun penetration	Minimal eaves	No
All building materials must be compatible in character with their surrounding environment. Any metal roof must have a colorbond or equivalent finish and no roof may be highly reflective. White or light-coloured roofing may be approved where it is demonstrated that it is not likely to be visually intrusive. Details of building materials and surface colours must be submitted for assessment with a development application	Acceptable	Yes
D1.2.5 Fences	No details provided. Can be addressed at Construction Certificate	Yes
D1.2.7 Pedestrian and Cycle Access	Consistent with Performance measures	Yes
D1.6 Multi Dwelling Housing
D1.6.1 Private Open Space Prescriptive Measures: Each dwelling must have access to an individual courtyard at ground level having a minimum area of 30m² and a minimum length and width each of 4 metres. The courtyard must be designed to facilitate access to winter sunshine and must be landscaped to Council’s satisfaction.	Compliant individual courtyards provided	Yes
D1.6.3 Landscaping Refer to B9 Landscaping: B9.4.2 Common Landscaped Area Required – 5 x 50m² (small dwellings) = 250m²	The developed site will have in excess of 250m² outside of the mapped Coastal Wetland area. If that vegetated area were included in the calculation, the common area is in the order of 3ha.	Yes
D1.6.4 On-Site Car Parking Refer to B4 Car Parking B4.2.12 Parking Schedules Required – 1 space per 1 or 2 bedroom unit; 1 visitor space per 4 units; 1 covered space per dwelling	Required: 5 spaces; 1 visitor space – total 6 spaces (5 covered) Proposed (5 x 2 bedroom units) – 11 spaces; none covered. In the context of the site, located well off the street behind other properties, the requirement for covered spaces can be waived. Carports could easily be erected in the future if required by residents	Yes – quantum of spaces; No – no covered spaces
D1.6.5 Sound Proofing	Can be conditioned	Yes
D1.6.6 Clothes Drying Facilities Prescriptive measures: 7.5 metres of line per dwelling, located in suitably screened external drying areas	Not shown. However, suitably screened external drying areas are available to all dwellings	No
D1.6.7 Equity of Access and Mobility Refer to B13 Access and Mobility A minimum of 10% of units (rounded up) should be adaptable housing	5 dwellings proposed – 1 required to be adaptable. Not shown on plans, however, can be conditioned	No - can be conditioned
Access/ Continuous accessible path of travel within the site	1 accessible car parking space provided. Internal pathway is shared with internal driveway	Yes
Car parking	1 accessible space provided.	Yes

Chapter C2 Areas Affected by Flood

DCP requirement/summary	Proposed/ Comments	Complies
C2.2 General Assessment Criteria
Council will not consent to any development on land at or below the flood planning level if there is sufficient suitable area on that land above the flood planning level on which to carry out the development	Whole of property is mapped as flood prone land.	Yes
Where the development is on land below the flood planning level, floor levels of any buildings must be constructed at or the above the flood planning level. Council will not support filling beneath the building footprint of the proposed development unless it is demonstrated that it will not adversely impact on the floodplain. Filling outside the Byron Shire building footprint generally will not be permitted, other than for driveways and/or pedestrian pathways immediately adjoining the walls of the building	Dwellings are raised such that floor level is at the relevant Flood Planning Level. There is no filling proposed. Minor site regarding works will be required to construct driveway and to provide for appropriate stormwater management.	Yes
C2.3.2 Minimum Floor Levels The finished floor level of habitable rooms must be above the relevant level defined by the flood planning matrix	The applicable 2100 Flood Planning Level is RL 3.1m AHD. The finished floor level of the dwellings is proposed at RL 3.12m AHD.	Yes

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

Given that no aspects of the development are proposed within the deferred area, there are no provisions of DCP 2010 that are directly applicable to the subject application.

4.5 Any Planning Agreement or Draft Planning Agreement?

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

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

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

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. However the 5 dwellings will provide additional housing stock which is generally in demand in Byron Bay.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

Conditions of consent proposed to control construction activities including sedimentation and erosion control measures, hours of work, construction noise and builders waste

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

Council Policy	Consideration
Building over pipelines and other underground structures Policy	Relocation of sewer main and house connections has been considered and is satisfactory in regard to this Policy.

4.9 The suitability of the site for the development

The assessment outlined above demonstrates that, although the property is significantly constrained, it is suitable to the development as proposed, given that the proposal has been designed to address the constraints in a manner that will minimise impacts.

4.10 Submissions made in accordance with this Act or the regulations

The development application was originally publicly exhibited from 7/2/19 to 6/3/19. 21 objections were received. The amended proposal was publically exhibited from 20/6/19 to 3/7/19. A further 9 submissions were received. All submissions are addressed below.

*Issue*	*Comment*
*Original Proposal:*
Insufficient information – stormwater and sewer main relocation.	This information was omitted from original exhibition. This was subsequently remedied, exhibition period extended and neighbours advised.
Proposed landscape works and the requirement for a bush fire APZ that encroaches within the mapped Coastal Wetland constitutes ‘designated development’ in accordance with clause 10 of SEPP (Coastal Management) 2018.	Applicant was subsequently amended to remove 2 dwellings to ensure that no works directly impact on mapped Coastal Wetland. Whole of APZ is therefore outside of the mapped area.
Garbage bin store and driveway are located within 7(a) zone and therefore prohibited.	Condition recommended to relocate bin storage and driveway edge out of the 7(a) zone.
Loss of privacy – dwellings proposed 900mm from adjoining boundary; occupants will look directly into rear yard of adjoining properties. Rear yards of these adjoining dwellings are their only useable open space, given that they front a busy main road.	Amended proposal includes relocation of all dwellings to provide 1.5m separation from adjoining boundary. Dwelling design also addresses privacy issues by limiting windows on eastern side of the dwellings to three narrow openings, each with ‘window boxes’ to further limit views from within the dwellings into adjoining yards.
Drainage and flooding – property is low lying and subject to frequent inundation resulting in prolonged ‘pooling’ of stormwater. Stormwater from external catchment to the east flows westward through adjoining properties – development will ‘dam’ this, exacerbating existing stormwater issues for adjoining residents. Stormwater Management Plan does not contain sufficient information to demonstrate that stormwater will not impact adjoining wetland.	See stormwater/ flooding comments above from Council’s Development Engineer.
Concern that dwellings will be used for short-term holiday letting, based on dwelling design (small and no separate laundries shown).	Proponent advises that this will not be the case; and agrees to imposition of a condition of approval requiring that no dwellings can be used for holiday accommodation.
Additional noise at rear of adjoining properties – extra cars and people	Noise is not anticipated to be in excess of what would be expected given the residential zoning of the land.
Traffic impacts associated with access onto Bangalow Rd in close proximity to busy intersections	See traffic comments above from Council’s Development Engineer.
Encroachment into wetland – flora and fauna impacts – koalas have been sighted in the wetland	The proposed development does not physically encroach on the wetland vegetation. Council’s Consulting Ecologist notes that Koalas are likely to use the western (wetland) part of the site, but the development site is unlikely to be used. A condition is recommended requiring a detailed Vegetation Management Plan to ensure weed management within the wetland and additional planting to bolster the eastern edge. This will mitigate indirect impacts and ensure minimal impact on Koalas or their habitat.
Relocation of sewer line will result in impacts on acid sulfate soils	An Acid Sulfate Soils Management Plan will be required prior to construction and excavation, ensuring that impacts will be managed/ mitigated.
Construction of buildings on what is currently cleared grassland will increase fire risks	Bush fire risks have been review by RFS, who have provided conditions to be incorporated into approval.
The Cheese Tree at the rear of 50 Bangalow Road (shown as being removed) straddles the boundary. Land owner authority is required for removal of that tree.	Tree no longer proposed to be removed. Lopping of some branches will be required to allow construction of adjoining dwelling. Condition recommended requiring arborists report to confirm that extent of lopping will not cause the tree to die.
No covered car parking spaces proposed – inconsistent with DCP requirement.	The requirement for at least one covered space is aimed, in part, at reducing the visual impact of car parking. In this location, set well away from Bangalow Road, it is considered that the DCP requirement to have one covered space per dwelling can be waived. Car ports could easily be erected in the future if required by residents.
Impacts of headlights/ privacy associated with existing house adjoining Lot 13.	Condition recommended to provide for headlight shielding at southern end of internal driveway.
*Amended Proposal:*
Amended proposal does not address acid sulfate soils risks	Risks can be managed through appropriate construction techniques. Condition recommended requiring Construction Management Plan that specifically addresses ASS risks.
Amended proposal does not adequately address stormwater issues, particularly overland flows from adjoining properties	See Development Engineer comments above.
Amended proposal does not reduce privacy impacts on adjoining properties	See comments above.
Impact of construction on trees at the edge of the wetland – pruning of branches/ foliage that encroaches into bushfire APZ and impact of sewer relocation on root zone	See comments above from Council’s Consulting Ecologist – Vegetation Management Plan will strengthen the forest edge.
Pruning of tree that ‘straddles’ boundary of adjoining land, to allow construction of dwelling 5, has not been quantified and has the potential damage the tree to an extent that kills it	Condition recommended requiring arborists report to confirm that extent of lopping will not cause this tree to die.
Amended proposal still appears to be aimed at short term holiday let	See above – condition recommended prohibiting tourism or holiday letting use.
Amended proposal still results in too many cars using the existing ‘stub road’ to access Bangalow Road, where right turns are exceedingly difficult	See comments above from Development Engineer.
Adjoining lot is accessed via a Right of Way from the western end of the ‘stub road’, across the subject land. Application indicates potential for a future access gate. Adjoining land owner does not agree to installation of gate	Condition recommended specifying that free and unfettered access is to remain for Lot 13, with any proposed gate structure located accordingly.
Amended proposal still includes aspects within the boundary of 7(a) zone	See comments above.
Cumulative impact from whole of proposal will be detrimental to environmental values of the site	Proposal has been designed to address site constraints/ values and minimise impacts.

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. CONCLUSION

The proposed development is a satisfactory response to the site’s constraints and the applicable planning controls that apply to the land. Potential environmental impacts on the wetland to the west have been ameliorated by way of the amended plans and the reduction in the number of units from 7 to 5. The application is recommended for approval subject to conditions of consent.

7. 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 the provisions of Byron Local Environmental Plan 2014.

The proposed development complies with relevant State Environmental Planning Policies

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

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

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

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

The proposed development is considered suitable for the proposed site.

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

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

How community views were addressed

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

Report No. 8.8 PLANNING - Exceptions to Development Standards 1 April to 30 June 2019

Directorate: Sustainable Environment and Economy

Report Author: Noreen Scott, EA Sustainable Environment and Economy

File No: I2019/1084

Theme: Sustainable Environment and Economy

Development and Certification

Summary:

This report is provided as a requirement of the NSW Department of Planning Circular PS17-006, for reporting on exceptions to development standards for applications made under clause 4.6 of the Standard Instrument LEP and Clause 6 of SEPP 1.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Council note the report on exceptions to development standards for the period 1 April to 30 June 2019.

REPORT

This report is provided as a requirement of the NSW Department of Planning Circular PS17-006, for reporting on exceptions to development standards for applications made under Clause 4.6 of the Standard Instrument LEP and Clause 6 of SEPP 1.

SEPP 1 applies to development applications submitted under Byron Local Environmental Plan 1988. Clause 4.6 applies to development applications submitted under Byron LEP 2014.

The period of reporting is for the 1 April 2019 to 30 June 2019 for the following DAs:

DA No	10.2018.305.1
Development	Subdivision to create 32 residential lots, a public reserve, drainage basin, earthworks, environmental enhancement works and associated civil infrastructure
Property:	77 Tuckeroo Avenue MULLUMBIMBY
Lot and DP:	Lot 162 DP1251169
Zoning:	1(a) General Rural Zone
Development Standard being varied	Clause 11 - Subdivision in rural areas for agriculture etc.
Justification	The 1(a) zone only applies to three small fragments of a residual parcel. Strict adherence to the 40 hectare standard would hinder an approved staged residential subdivision. Strict compliance is both unreasonable and unnecessary in this particular instance.
Extend of variation	29%
Concurrence	Concurrence issued by the Department of Planning and Environment.
Determination Date	11 April 2019
Determined by	Council

DA No.	10.2018.469.1
Development	Subdivision of two (2) lots into three (3) lots
Property:	89 Parkway Drive and 15 Magnolia Place EWINGSDALE
Lot and DP:	LOT 182 DP 1105787 and LOT 34 DP1123445
Zoning:	R5 Large Lot Residential
Development Standard being varied:	Clause 4.1 Minimum lot size
Justification	There are a reasonable number of lots in the locality that are under the minimum lot size; and development on Lot 34 has been restricted to the west of the site leaving a large undeveloped area to the east which is suitable for creation of an additional lot.
Extent of variation	9.95%.
Concurrence	Assumed concurrence
Determined Date	11 April 2019
Determined By	Staff

DA No.	10.2018.508.1
Development	Multi dwelling housing comprising of six (6) dwellings, one (1) swimming pool, associated earthworks and strata subdivision
Property:	7 Keats Street BYRON BAY
Lot and DP:	LOT 6 DP 7117
Zoning:	R2 Low Density Residential
Development Standard being varied:	Clause 4.3 Floor Space Ratio
Justification	The proposed development does not conflict with the objectives of the development standard and or zone; is adequately serviced and will not negatively impact on character or amenity.
Extent of variation	4%
Concurrence	Assumed concurrence
Determined Date	15 May 2019
Determined By	Staff

DA No.	10.2017.588.1
Development	Mixed use development
Property:	4 Marvel Street BYRON BAY
Lot and DP:	Lot B DP 325834
Zoning:	B2 Local Centre
Development Standard being varied:	Clause 4.3 Height of Buildings and Clause 4.4 Floor Space ratio
Justification	Refer to LEC judgement https://www.caselaw.nsw.gov.au/decision/5d1173efe4b08c5b85d8a6e0
Extent of variation	Height: The maximum permissible height under the LEP is 11.5m. The amended application proposes to exceed this height for: the lift overrun to 13.87m (a 20.61% exceedance); to the top of the roof over the rooftop deck to 12.67m (a 10.17% exceedance); and up to 12.09m to the top of the pool deck (a 5.13% exceedance). FSR: The proposed development with an FSR of 1.33:1 exceeds the maximum FSR of 1.3:1, a 3.3% exceedance.
Concurrence	N/A
Determined Date	27 June 2019
Determined By	Commissioner of Land and Environment Court NSW under assumed concurrence of the Secretary of Planning

STRATEGIC CONSIDERATIONS

Community Strategic Plan and Operational Plan

CSP Objective		L2	CSP Strategy		L3		DP Action		L4	OP Activity
Community Objective 4: We manage growth and change responsibly	4.1			Support the visions and aspirations of local communities through place-based planning and management		4.1.3		Manage development through a transparent and efficient assessment process	4.1.3.1	Assess and determine development applications

Legal/Statutory/Policy Considerations

The report is provided as a requirement of NSW Department of Planning circular PS 17-006.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 8.9

Report No. 8.9 PLANNING - Development Application 10.2019.129.1 Subdivison Two Lots at 480 -544 Coolamon Scenic Drive Coorabell

Directorate: Sustainable Environment and Economy

Report Author: Ivan Holland, Planner

File No: I2019/1122

Proposal:

DA No:	10.2019.129.1
Proposal description:	Subdivision two (2) lots
Property description:	LOT: 3 DP: 579176, LOT: 4 DP: 579176
	480 Coolamon Scenic Drive COORABELL, 544 Coolamon Scenic Drive COORABELL
Parcel No/s:	13160, 13150
Applicant:	Balanced Systems Planning Consultants
Owner:	Ms J M Rochelli
Zoning:	7(d) – Scenic/Escarpment / RU1 – Primary Production
Date received:	15 March 2019
Integrated / Designated Development:	☒ Integrated	☐ Designated	☐ Not applicable
Concurrence required	Yes. Provided by Department of Planning & Environment
Public notification or exhibition:	- Level 0 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications
Variation request	☐ Clause 4.6	☒ SEPP 1	☐ Not applicable
Delegation to determination:	Acting - Director Sustainable Environment and Economy
Issues:	· Proposed lots are less than minimum lot size (clause 11 – LEP 1988). · Proposed Lot 4 is less than the minimum lot size (clause 4.1 – LEP 2014).

Summary:

This application seeks approval for Subdivision comprising a boundary adjustment between two (2) lots. The proposal is to increase the size of Lot 3 from 4047m² to 7822m² by reducing the size of Lot 4 from 29.87 ha to 29.49 ha. Both lots have existing dwelling entitlements and the purpose of the adjustment is to facilitate the ongoing management of land for bushfire protection purposes on the smaller parcel.

Notwithstanding, variations have been submitted to the minimum lot size requirements (40 ha) under both Clause 4.6 of Byron LEP 2014 and SEPP 1 Development Standards. The variations to the development Standards are supported in this instance and strict compliance with the 40 ha minimum lot size controls under both Byron LEP 2014 and 1988 is unreasonable and unnecessary having regards to the circumstances of the proposal.

The proposal raises no planning or environmental issues and is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

RECOMMENDATION:

Pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application no. 10.2019.129.1 for Subdivision two (2) lots, be granted subject to the conditions of approval in Attachment 2 (# E2019/53236).

Attachments:

1 Proposed plans, E2019/53326

2 Recommended conditions, E2019/53236

Assessment:

1. INTRODUCTION

1.1. History/Background

Council’s records show the following development approval history for the properties:

Lot 3

· Home industry (DA 5.1998.37.1) - approved 20/4/1998;

· Studio (10.2004.118.1) – approved 12/8/2004; and

· Dwelling house alterations & additions, swimming pool (DA 10.2010.358.1) – approved 23/11/2010.

Lot 4

· Dwelling (DA 5.1993.460.1) - approved 22/3/1994;

· Two-storey dwelling, including garage and studio (DA 10.2003.326.1) – refused 27/11/2003;

· Dwelling alterations & additions, shed and garage (DA 10.2004.136.1) – approved 7/7/2004;

· Modifications to DA 10.2004.136.1) - approved 4/7/2005 and 15/12/2006;

· Swimming pool (DA 10.2007.337.1) – approved 23/7/2007;

· Dwelling house alterations & additions (DA 10.2009.35.1) – approved 1/7/2009; and

· Farm shed (DA 10.2017.354.1) – approved 25/7/2017.

1.2. Description of the proposed development

This application seeks approval for Subdivision (Boundary Adjustment) Two (2) Lots. The proposal is to increase the size of Lot 3 from 4047m² to ~7822m² at the northern extent of the lot by reducing the size of Lot 4 from 29.87 ha to ~29.4925 ha (see Appendix B of application). The boundary to be adjusted and the associated area to be exchanged is entirely within land zoned 7(d) under LEP 1998.

1.3. Description of the site

Land is legally described as	LOT: 3 DP: 579176, LOT: 4 DP: 579176
Property address is	480 Coolamon Scenic Drive COORABELL, 544 Coolamon Scenic Drive COORABELL
Land is zoned:	7(d) – Scenic/Escarpment / RU1 – Primary Production
Land area is:	Lot 3 - 4047 m², Lot 4 – 29.87 ha
Property is constrained by:	Bushfire prone land (category 1, category 2 and buffer)
	High Environmental Value vegetation (Lot 4 only – three isolated patches of Rainforest)

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer	No objections subject to conditions. Refer to Doc # A2019/9036
Rural Fire Service (100B/4.14/4.14)	General terms of approval provided. Refer to Doc # E2019/29143
Department of Planning & Environment	The Secretary issued concurrence for the application in terms of the SEPP 1 Objection. Refer to Doc # E2019/50231

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

Online tool was accessed on 11/7/2019 – 480 Coolamon Scenic Drive (Lot 3) and 544 Coolamon Scenic Drive (Lot 4) are 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 1—Development Standards	☒	☐
Consideration: The application included a SEPP 1 Objection request (Appendix D) to the minimum lot size development standard (clause 11, LEP 1988) as required by clause 6. As the variation sought is greater than a 10% change to a numerical standard, the Secretary’s concurrence may not be assumed (Circular – PS18-003). However, the Secretary of the Department of Planning & Environment has provided concurrence for the variation to the development standard (E2019/50231) and consent may be granted pursuant to clause 7.
State Environmental Planning Policy No 44—Koala Habitat Protection	☒	☐
Consideration: Although lot 4 is greater than 1ha (clause 6), there is no potential Koala habitat mapped on either property (lot 3 or Lot 4).
State Environmental Planning Policy No 55—Remediation of Land	☒	☐
Consideration: The proposed boundary adjustment raises no issues in terms of contamination from past land uses.

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

LEP 2014 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP&A Act because it applies to the subject land and the proposed development (northern ~200m of Lot 4). The LEP 2014 clauses that are checked below are of relevance to the proposed development:

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

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

(a) The proposed development is defined in the EP&A Act (Section 6.2) as Subdivision;

(b) The land is within the RU1 – Primary Production according to the Land Zoning Map;

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

Zone Objective	Consideration
• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.	The proposed subdivision will result in the reduction of Lot 4 by ~1.3% which will have a minimal impact on the primary production capacity of this lot.
• To encourage diversity in primary industry enterprises and systems appropriate for the area.	The proposed subdivision will not impact on the diversity or opportunity for diversity in primary industry in the area.
• To minimise the fragmentation and alienation of resource lands.	The proposed subdivision will not result in further fragmentation or alienation of land as Lot 4 (the only affected lot of sufficient size to be used for commercial agriculture) will be reduced in size by only ~1.3%.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.	The proposed subdivision is not likely to result in actual or potential land use conflict as no new neighbours or land uses are authorised by the subdivision.
• To encourage consolidation of lots for the purposes of primary industry production.	Not applicable.
• 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.	Not applicable.
• To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.	The proposed subdivision will not have an impact on significant scenic landscapes or the scenic quality of the locality.

At ~7822m² (proposed Lot 3) and ~29.4925 ha (proposed Lot 4), both proposed lots are less than the minimum lot size for RU1 zoned land being 40 ha (clause 4.1). However, consent may be granted for the proposed subdivision under clause 4.1C(3) if it “…consists of an adjustment of boundaries between existing lots where the size of one or more of the resulting lots will be less than the minimum subdivision lot size” and a series of criteria are met. The proposed subdivision is considered to be an adjustment of boundaries as:

· No significant changes will be made to the configuration of any existing allotments;

· The resulting parcels of land will bear some resemblance to the lots which existed before the subdivision; and

· The applicant argues that the proposed changes to the boundaries are to enable the owners/occupiers of Lot 3 better capacity to manage bush fire risk (section 1.2 of the SEE) (Johnson v Coffs Harbour City Council [2018] NSWLEC 1094).

Further, the proposed subdivision is considered to be consistent with the additional criteria set out under clause 4.1C(3) in that:

· the subdivision will not result in the creation of any additional lots or the opportunity for additional dwellings as it is restricted to an adjustment of current lot boundaries (sub a);

· the subdivision will not result in further fragmentation or alienation of land (sub b) as Lot 4 (the only affected lot of sufficient size to be used for commercial agriculture) will be reduced in size by only ~1.3%,

· the subdivision is not likely to result in actual or potential land use conflict (sub c) and no new neighbours or land uses are authorised by the subdivision, and

· the subdivision is not likely to affect the rural character, environmental heritage and scenic quality of the land (sub d) particularly as no additional lots, land uses or the opportunity for additional dwellings will be created by the subdivision.

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

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

(a) The proposed development is defined in the EP&A Act (Section 6.2) as Subdivision;

(b) The land is within the LEP1988 Property Zone 7(d) – Scenic/Escarpment 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 protect and enhance the scenic qualities of the Shire of Byron which enhance the visual amenity by controlling the choice and colour of building materials, position and bulk of buildings, access roads and landscaping,	The proposed development, being a subdivision, will not have a visual impact.
(b) to prohibit development within the zone that is likely to have a visually disruptive effect on the scenic quality and visual amenity of the Shire,	The proposed development, being a subdivision, will not have a visual impact.
(c) to enable development for certain purposes where such development would not have a detrimental effect on the scenic quality and visual amenity of the Shire,	The proposed development, being a subdivision, will not have a visual impact.
(d) to minimise soil erosion from escarpment areas and prevent development in geologically hazardous zones, and	The proposed development, being a subdivision, will not disturb soil.
(e) to enable the careful control of noxious plants and weeds by means not likely to be significantly detrimental to the native ecosystem.	The proposal, of its self, will not have an impact on the control of noxious plants and weeds.

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

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

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

Clause 11 Subdivision in rural areas for agriculture etc

Both the proposed lots are less than the minimum lot size of 40 ha prescribed for Zone 7(d) land.

As noted above, the application included a SEPP 1 Objection request. The Secretary of the Department of Planning & Environment has provided concurrence for the requested variation to the development standard (E2019/50231) for the reasons detailed below.

Clause 11 Subdivision in rural areas for agriculture etc

Clause 11 states that Council shall not consent to the subdivision of land unless the area of each of the allotments to be created is not less than the minimum area for the zone of the subject land and, “in the opinion of the council, each allotment is of satisfactory shape and has a satisfactory frontage”.

Both the current and proposed lots are less than the minimum lot size of 40 ha prescribed for Zone 7(d) land and therefore do not meet the minimum lot size requirement. The DA is supported by an objection pursuant to SEPP 1.

The identified requirements needed in order to uphold a SEPP 1 objection, are addressed in the circumstances of this particular case as follows (Wehbe v Pittwater Council [2007] NSWLEC 827):

Is the requirement a development standard?

The minimum subdivision lot size requirement is a development standard as defined by section 1.4 of the EP&A Act 1979, because it is a provision of an environmental planning instrument in relation to the carrying out of development, being a provision by or under which requirements are specified and standards are fixed in respect of the area of any land.

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

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

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

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

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

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

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

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

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

For the current development application, compliance with the development standard is unreasonable and unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard. Clause 11 does not provide any stated objectives. However compliance with the development standard is unreasonable and unnecessary because the underlying objectives of the development standard are achieved for the following reasons:

a) No additional lots will be created;

b) Further opportunities for additional dwellings will not be created;

c) No additional dwelling entitlements will be created; and

d) The current lots are under the minimum lot size, with no change proposed to this scenario. .

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

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

No proposed instruments were identified that are applicable to this application.

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

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

Servicing and access/traffic aspects of the proposal have been adequately considered in the engineering referral.

D6 - Subdivision

It is considered that no benefit would be obtained from requiring a consideration of the subdivision design guidelines (D6.2.1) for the proposed subdivision, being a relatively minor adjustment of the boundary between two rural lots with no changes to dwellings, access, wastewater disposal, water supply, stormwater management or vegetation. As discussed above the proposal seeks a variation to the lot size requirements with the following additional comments provided in terms of the DCP Controls

What Section and prescriptive measure does the development not comply with?

Does the proposed development comply with the relevant Objectives of this Section?

Does the proposed development comply with the Performance Criteria of this Section?

D6.3.1 Lot Size, Shape and Configuration

The proposed lots are less than the minimum area specified in Byron LEP 2014 on the lot size map contrary to Prescriptive Measure 1.

Yes

The proposed lots are similar to the current lots and will:

· Not prevent the orderly and economic use and development of the land (Objective 1).

· Not impair the ability to use and manage the lots for agricultural and rural purposes (Objective 2).

Yes

The proposed lots are similar to the current lots and will not increase the risk of land use conflict (P.C. 1).

The proposed development is demonstrated to meet the relevant Objectives of DCP 2014.

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

DCP 2010 is an applicable matter for consideration in the assessment of the subject development application in accordance with subsection 4.15(1) of the EP& A Act because its purpose is to provide planning strategies and controls for various types of development permissible in accordance with LEP 1988. The DCP 2010 Chapters/Parts that are checked below are of relevance to the proposed development:

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

The proposed subdivision does:

· not impact on agriculture as the affected land is vegetated with trees and no additional dwelling entitlements will be created (B2.6);

· does not require the removal of native vegetation (B2.7);

· not impact on roads as current access to the subject lots will remain the same (B3.2-4, B4.6); and

· provide a range of allotment sizes (B3.6) and maintains road frontages (B3.7).

The proposal raises no other issues under the DCP 2010 or DCP 2014.

4.5 Any Planning Agreement or Draft Planning Agreement?

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

4.6 Environmental Planning & Assessment Regulation 2000 Considerations

The proposal raises no issues under the Regulations.

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.

No Council Policies were identified that are applicable to the proposed development.

4.9 The suitability of the site for the development

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

4.10 Submissions made in accordance with this Act or the regulations

The development application was not publicly notified.

4.11 Public interest

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

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

7. 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.