Image of Byron Shire Lighthouse. Image of Byron Shire Council logo.Agenda

Ordinary (Planning) Meeting


 Thursday, 10 November 2022


Agenda Ordinary (Planning) Meeting

held at Conference Room, Station Street, Mullumbimby

commencing at 9.00am

 

Public access relating to items on this agenda can be made between 11:00am and 11:30am on the day of the meeting. Requests for public access should be made to the General Manager or Mayor no later than 12:00 midday on the day prior to the meeting.

 

Mark Arnold

General Manager

 


CONFLICT OF INTERESTS

What is a “Conflict of Interests” - A conflict of interests can be of two types:

Pecuniary - an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.

Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Code of Conduct for Councillors (eg. A friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).

Remoteness – a person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to a matter or if the interest is of a kind specified in the Code of Conduct for Councillors.

Who has a Pecuniary Interest? - a person has a pecuniary interest in a matter if the pecuniary interest is the interest of the person, or another person with whom the person is associated (see below).

Relatives, Partners - a person is taken to have a pecuniary interest in a matter if:

·                The person’s spouse or de facto partner or a relative of the person has a pecuniary interest in the matter, or

·                The person, or a nominee, partners or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.

N.B. “Relative”, in relation to a person means any of the following:

(a)  the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descends or adopted child of the person or of the person’s spouse;

(b)  the spouse or de facto partners of the person or of a person referred to in paragraph (a)

No Interest in the Matter - however, a person is not taken to have a pecuniary interest in a matter:

·                If the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body, or

·                Just because the person is a member of, or is employed by, the Council.

·                Just because the person is a member of, or a delegate of the Council to, a company or other body that has a pecuniary interest in the matter provided that the person has no beneficial interest in any shares of the company or body.

Disclosure and participation in meetings

·                A Councillor or a member of a Council Committee who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council or Committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.

·                The Councillor or member must not be present at, or in sight of, the meeting of the Council or Committee:

(a)     at any time during which the matter is being considered or discussed by the Council or Committee, or

(b)     at any time during which the Council or Committee is voting on any question in relation to  the matter.

No Knowledge - a person does not breach this Clause if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.

Non-pecuniary Interests - Must be disclosed in meetings.

There are a broad range of options available for managing conflicts & the option chosen will depend on an assessment of the circumstances of the matter, the nature of the interest and the significance of the issue being dealt with.  Non-pecuniary conflicts of interests must be dealt with in at least one of the following ways:

·                It may be appropriate that no action be taken where the potential for conflict is minimal.  However, Councillors should consider providing an explanation of why they consider a conflict does not exist.

·                Limit involvement if practical (eg. Participate in discussion but not in decision making or vice-versa).  Care needs to be taken when exercising this option.

·                Remove the source of the conflict (eg. Relinquishing or divesting the personal interest that creates the conflict)

·                Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as of the provisions in the Code of Conduct (particularly if you have a significant non-pecuniary interest)

RECORDING OF VOTING ON PLANNING MATTERS

Clause 375A of the Local Government Act 1993 – Recording of voting on planning matters

(1)  In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:

(a)  including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but

(b)  not including the making of an order under that Act.

(2)  The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.

(3)  For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.

(4)  Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.

(5)  This section extends to a meeting that is closed to the public.

OATH AND AFFIRMATION FOR COUNCILLORS

Councillors are reminded of the oath of office or affirmation of office made at or before their first meeting of the council in accordance with Clause 233A of the Local Government Act 1993. This includes undertaking the duties of the office of councillor in the best interests of the people of Byron Shire and the Byron Shire Council and faithfully and impartially carrying out the functions, powers, authorities and discretions vested under the Act or any other Act to the best of one’s ability and judgment.


BYRON SHIRE COUNCIL

BUSINESS OF Ordinary (Planning) Meeting

1.    Public Access

2.    Apologies

3.    Attendance by Audio-Visual Link / Requests for Leave of Absence

4.    Declarations of Interest – Pecuniary and Non-Pecuniary

5.    Tabling of Pecuniary Interest Returns (Cl 4.9 Code of Conduct for Councillors)

6.    Adoption of Minutes from Previous Meetings

6.1       Ordinary (Planning) Meeting held on 13 October 2022

7.    Reservation of Items for Debate and Order of Business

8.    Mayoral Minute

9.    Notices of Motion

9.1       Bring Julian home; drop the charges.......................................................................... 8

10.  Petitions

11.  Submissions and Grants

12.  Delegates' Reports

13.  Staff Reports

Sustainable Environment and Economy

13.1    PLANNING - 10.2020.483.1 Staged Development: Stage 1: Farm Cafe, Stage 2: Tourist & Visitor Accommodation Comprising Six (6) Cabins, Swimming Pool. 12

13.2    PLANNING - 10.2020.513.1 Alterations and Additions to Existing Motel including Five (5) Additional Guest Rooms, Restaurant/Bar, Swimming Pool and Car Parking Spaces at 84 Harbour Way BRUNSWICK HEADS.............................................................. 43

13.3    PLANNING - 10.2021.212.1 Temporay Use - Rural Function Centre at 36 Keys Road, Coorabell....................................................................................................................... 71

13.4    PLANNING - DA 10.2022.36.1 - Tourist and Visitor Accomodation Comprising 12 Holiday Cabins and Ancillary Recreation Building............................................... 113

13.5    PLANNING - Report of the Planning Review Committee held 6 October 2022 144

13.6    PLANNING - 10.2021.752.1 - Demolition of Existing Dual Occupancy and Ancillary Structures, New Dual Occupancy (Attached), Two (2) Swimming Pools, Removal of Two (2) Trees and Strata Subdivision - 140 Alcorn Street, Suffolk Park.......... 146

13.7    PLANNING - Quarter 3 SEPP Variations July to September 2022................... 168

13.8    PLANNING - 10.2021.425.1 Community Title Subdivision Twenty (20) Lots, Multi-Dwelling Housing comprising of Twenty (20) Dwelling Houses......................... 172

13.9    Revised Constitution of Climate Change and Resource Recovery Advisory Committee...................................................................................................................................... 189

13.10  PLANNING - 10.2021.619.1 Demolition of Existing Structures and Construction of Multi Dwelling Housing comprising of Four (4) Dwellings and Strata Subdivision at 99 Station Street - Mullumbimby................................................................................... 192    

 

14Questions With Notice

Nil   

 

Questions with Notice: A response to Questions with Notice will be provided at the meeting if possible, that response will be included in the meeting minutes.  If a response is unable to be provided the question will be taken on notice, with an answer to be provided to the person/organisation prior to the next Ordinary Meeting and placed on Councils website www.byron.nsw.gov.au/Council/Council-meetings/Questions-on-Notice

Councillors are encouraged to ask questions regarding any item on the business paper to the appropriate Director prior to the meeting. Any suggested amendments to the recommendations should be provided to Councillor Support prior to the meeting to allow the changes to be typed and presented on the overhead projector at the meeting.

 


BYRON SHIRE COUNCIL

Notices of Motion                                                                                                                 9.1

Notices of Motion

 

Notice of Motion No. 9.1    Bring Julian home; drop the charges 

File No:                                                    I2022/1532

 

  

 

I move that Council:

1.      recognises Julian Assange is an Australian citizen and a journalist with WikiLeaks who aided in exposing possible war crimes and civilian casualties in the release of documents which included Afghanistan War logs in 2010 and Guantanamo Bay files in 2011, supplied to WikiLeaks by Chelsea Manning, a former United States Army intelligence analyst.   

2.      acknowledges Mr Assange genuinely believed his actions were for the purpose of: 

          a)      government accountability, transparency and integrity; and 

          b)      the broader public interest and for the interest of justice. 

3.      notes that since the publication of those documents, Mr Assange has been forced into isolation or imprisoned over the course of 10 years (including 4 years in His Majesty’s Prison Belmarsh) resulting in the serious deterioration of his health and mental wellbeing. 

4.      recognises Mr Assange’s impending prosecution by the United States of America constitutes a serious attack on the fundamental democratic freedoms of the press.

5.      questions: 

          a)      the legitimacy of prosecuting Mr Assange in the United States through       that country’s Espionage Act of 1917 (carrying a penalty of up to 175          years imprisonment); 

          b)      whether that Act applies to non-US citizens either living and / or working             in other countries, at the time of any alleged offending; and

          c)      whether, by approving the extradition, the UK Government isn’t violating             the US-UK Extradition Treaty and international law which states that                             extradition should not be for political purposes. 


 

6.      calls on the Mayor to write: 

          a)      to President of the United States, Joe Biden, expressing Council’s desires                    that President Biden (i) show clemency by intervening in the extradition               and prosecution of Mr Assange, and (ii) instruct the US Attorney-General           and the US Department of Justice to withdraw all charges on medical and              humanitarian grounds; 

          b)      to the Prime Minister of Australia, the Right Honourable Anthony                             Albanese, and to Minister for Foreign Affairs, the Honourable Senator                   Penny Wong, requesting them to write to the President of the United                         States and to the US Ambassador to Australia, Ms Caroline Kennedy,               expressing Australia’s concerns regarding Mr Assange’s prosecution. 

7.      notes a poll conducted by the Sydney Morning Herald in January 2022 which     showed 71% support for Mr Assange being returned to Australia. 

 

 

Signed:  Cr Duncan Dey

Councillor’s supporting information:

Council resolved in February 2020 to write to the then Foreign Affairs Minister, asking our federal government to step in and to uphold Julian’s rights as we would were he locked up in Iran, Egypt, Cambodia or Indonesia rather than by our supposed allies.  The Resolution 20-059 reminded us that Julian was a resident of the Northern Rivers from 1979 to 1983.  Through Wikileaks he has exposed misbehaviour by authorities who prefer secrecy, by making their own secrets public.  He did not compose any of these leaked documents. 

I have no doubt that, were we to lock up a prominent American on trumped up charges, the USA would send in a Black Ops team and extract their citizen by force. 

The fact of Australia not campaigning publicly for Assange’s rights, and later for his welfare, is an indictment of our lack of respect for our own sovereignty. 

Even though local government is Australia’s 3rd tier of government, we still care about free speech and citizens' rights.  Councils have the closest relationship with citizens.  We conduct citizenship ceremonies, welcoming some who are refugees from countries where human rights are ignored. 

Citizens of Australia expect their rights to be upheld and protected by their government. 

It remains time to Bring Assange Home.  It’s time to tell our allies to Drop the Charges. 

Staff comments

by Esmeralda Davis         , Director Corporate and Community Services, Corporate and Community Services:

It is open to Council to receive and debate the Motion and to resolve as moved or in some alternate form.  Councillors should consider their individual roles and responsibilities and those of the governing body, outlined below.

If the motion is supported, staff can prepare the required correspondence.

Financial/Resource/Legal Implications:

The role of a Councillor is set out in section 232 of the Local Government Act.

232   The role of a councillor

(1)  The role of a councillor is as follows—

(a)  to be an active and contributing member of the governing body,

(b)  to make considered and well informed decisions as a member of the governing body,

(c)  to participate in the development of the integrated planning and reporting framework,

(d)  to represent the collective interests of residents, ratepayers and the local community,

(e)  to facilitate communication between the local community and the governing body,

(f)  to uphold and represent accurately the policies and decisions of the governing body,

(g)  to make all reasonable efforts to acquire and maintain the skills necessary to perform the role of a councillor.

(2)  A councillor is accountable to the local community for the performance of the council.

The role of the governing body is set out in section 223 of the Local Government Act.

223   Role of governing body

(1)  The role of the governing body is as follows—

(a)  to direct and control the affairs of the council in accordance with this Act,

(b)  to provide effective civic leadership to the local community,

(c)  to ensure as far as possible the financial sustainability of the council,

(d)  to ensure as far as possible that the council acts in accordance with the principles set out in Chapter 3 and the plans, programs, strategies and polices of the council,

(e)  to develop and endorse the community strategic plan, delivery program and other strategic plans, programs, strategies and policies of the council,

(f)    to determine and adopt a rating and revenue policy and operational plans that support the optimal allocation of the council’s resources to implement the strategic plans (including the community strategic plan) of the council and for the benefit of the local area,

(g)   to keep under review the performance of the council, including service delivery,

(h)   to make decisions necessary for the proper exercise of the council’s regulatory functions,

(i)    to determine the process for appointment of the general manager by the council and to monitor the general manager’s performance,

(j)    to determine the senior staff positions within the organisation structure of the council,

(k)   to consult regularly with community organisations and other key stakeholders and keep them informed of the council’s decisions and activities,

(l)    to be responsible for ensuring that the council acts honestly, efficiently and appropriately.

(2)  The governing body is to consult with the general manager in directing and controlling the affairs of the council.

Is the proposal consistent with any Delivery Program tasks?

No

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          13.1

Staff Reports - Sustainable Environment and Economy

 

Report No. 13.1     PLANNING - 10.2020.483.1 Staged Development: Stage 1: Farm Cafe, Stage 2: Tourist & Visitor Accommodation Comprising Six (6) Cabins, Swimming Pool

Directorate:                         Sustainable Environment and Economy

Report Author:                   Patricia Docherty, Planner

File No:                                 I2022/893

Proposal:

Proposal description:

Staged Development: Stage 1: Farm Cafe, Stage 2: Tourist & Visitor Accommodation Comprising Six (6) Cabins, Swimming Pool

Property description:

LOT: 2 DP: 869145

911 Binna Burra Road FEDERAL

Parcel No/s:

215720

Applicant:

Peaberry Farm

Owner:

Original owners when DA was lodged: Mr P G & Mrs A L McLisky & Hopeview Pty Ltd

New owners: Evenjest Pty Limited, Jack James Jonathon Dods, Matilda Isabel Dods & Charlotte Hope Dods (written consent received 16 September 2022)

Zoning:

RU1 Primary Production

Date received:

23 September 2020

Integrated / Designated Development:

    Integrated

    Designated

    Not applicable

Concurrence required

Yes – CNR No.12895

Public notification or exhibition:

-    Community Significant Development Pre-Lodgement Consultation & Level 2 advertising under Council’s Community Participation Plan.

-    Exhibition period:  5/10/20 to 18/10/20

-    Submissions received: 16

-    Submissions acknowledged: Yes     No          N/A

Estimated cost

$2,761,000.00

Delegation to determine

Council

Issues

·    Proposed Roundabout and consideration against the Federal Main Street Concept Design (to be adopted) 

 

Summary:

The DA proposes a Staged Development with Stage 1 being a Café and Stage 2 comprising 6 Tourist & Visitor Accommodation Cabins. 

The site is legally described as Lot: 2 in Deposited Plan: 869145, 911 Binna Burra Road, Federal and is also known as Peaberry Farm. The site comprises approximately 14.58 hectares and is zoned RU1 Primary Production. It is situated opposite Federal Drive, the main street of Federal Village. The site is adjacent to Stony Creek which runs along the southern boundary.

The site is constrained by electricity infrastructure, bushfire and some high environmental value land.  The proposed layout has been amended during assessment to address site constraints and to ensure that the required asset protection zone avoids existing native vegetation and proposed vegetation management areas. The Rural Fire Service (RFS) have issued Bushfire Safety Authority.

Part of the site is mapped within a cattle dip site buffer and the application included a preliminary site investigation which confirms that in accordance with the NSW EPA (1995) guidelines it can be concluded that the investigation area is uncontaminated.

A former dairy bales building nominated for proposed use as store / staff lunchroom has been fitted out and there is no record of these works being approved.  It is recommended that a Building Information Certificate be required as a deferred commencement condition and that the use of this building formalised in stage one for the purposes of a staff room and store associated with the café.

During assessment, Essential Energy raised safety concerns about a metal shed located within the easement of high voltage overhead power lines and it is recommended as a deferred commencement that demolition of the container be undertaken prior to the consent becoming operational.

A detailed written vegetation management plan (VMP) is to be approved at Stage 1 and is to be consistent with the indicative management areas included in the amended plans submitted for approval with this application. Stage 2 for the rural tourist cabins requires the implementation of a (VMP)

The applicant initially proposed a large roundabout, with road widening indicated on the original plans, but the community want intersection upgrades to be driven by the ongoing Federal Main Street Concept Design project.

The draft Federal Main Street Concept Design that was exhibited November 2021 is the latest official version. It is understood the Concept Design is to be presented to Council in December 2022.

In this regard the community raised objections about a larger roundabout as proposed (and built at the applicant’s expense) which could accommodate buses and garbage trucks to undertake a “u” turn legally at the intersection to return northwards back up Federal Drive.

The DA Plans have been amended by the applicant to indicate a much smaller roundabout but a widened road reserve to accommodate a larger round about if needed.

The recommended condition of consent for Roads Act approvals has been worded to reflect the views of the community and roundabout, footpath and other works in the road reserve must be generally consistent with the endorsed Federal Main Street Concept Design and a Road Safety Audit.

The application appropriately addresses the relevant constraints applying to the site and is recommended for approval in accordance with the amended development assessment plans enclosed at Attachment 1 and subject to the deferred commencement conditions in Attachment 2 of this report.

NOTE TO COUNCILLORS:

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


 

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2020.483.1 for Staged Development: Stage 1: Farm Cafe, Stage 2: Tourist & Visitor Accommodation Comprising Six (6) Cabins, Swimming Pool, be granted Deferred Commencement in accordance with recommended conditions of consent attached to this report.

Attachments:

 

1        DA10.2020.483.1 Combined Amended Plans 15.09.2022, E2022/90506  

2        DA10.2020.483.1 Recommended Conditions of Consent, E2022/91178  

3        Confidential - DA10.2020.483.1 combined submissions report to Planning meeting 13 October 2022, E2022/92043  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                       

Figure 1:  Locality Plan

Assessment:

INTRODUCTION

History/Background

Council records of Development Applications for the current lot are as follows:

The construction of the existing dwelling on the site predates Council development approval records. The site has a dwelling entitlement being the result of an approved council subdivision under DA96/215.  The site has an agricultural history as a Dairy farm, and macadamia and coffee orchards.

Description of the proposed development

This application seeks approval for Staged Development:

Stage 1: Farm Café including the following:

·    cafe building with a maximum capacity of 60 patrons

·    site entry & associated works

·    cafe car parking –23 formalised sealed spaces including 2 accessible parking; and 6 formalised grassed spaces

·    associated driveways & pathways

·    wastewater system 01

·    water tanks

·    change of use existing shed to maintenance facility

·    use of fit out & change of use of existing farm building (dairy bails) to store/staff lunchroom

·    approval of detailed vegetation management plan

·    associated landscaping works

Stage 2: Tourist & Visitor Accommodation Comprising Six (6) Cabins, Swimming Pool including the following:

·    construction of 6 one bedroom cabins (1 accessible)

·    demolition of southern timber & metal shed

·    visitor accommodation car parking – 8 total including 1 accessible

·    associated driveways & pathways

·    pool cabana

·    water tanks

·    wastewater system 02

·    implementation of detailed vegetation management plan

·    associated landscaping works

The proposed layout has been adjusted during assessment to address site constraints, power lines and to ensure the required asset protection zone does not impact on existing native vegetation or the proposed vegetation management areas. 

The complete set of amended plans for consideration are in Attachment 1 of this report.  Part extracts below:

Figure 2: Site Plan   

The former dairy bales building nominated for proposed use as store / staff lunchroom has been fitted out and there is no record of these works being approved.  It is therefore recommended that a Building Information Certificate be required as a deferred commencement condition and that the use of this building formalised in stage one for the purposes of a staff room and store associated with the café.

Essential Energy raised safety concerns about a metal shed located within the easement of overhead power lines and it is recommended as a deferred commencement that demolition of the container be undertaken prior to the consent becoming operational.

Stage 2 requires the implementation of a vegetation management plan which will need to be prepared in detail and a condition of consent is recommended to specify what the VMP must include and is to be consistent with the indicative management areas included in the plans attached to this report.

The applicant initially proposed a large roundabout, with road widening and dedication at the applicants expense etc indicated on the original plans. Community submissions indicate that intersection upgrades should be driven by the ongoing Federal Village master planning process. As such Plans have been amended to indicate a smaller roundabout. The recommended condition of consent for Roads Act approvals has been worded to reflect the views of the community.

 

 Figure 3: Site Detail

 

Figure 4: Café Restaurant Floor Plan

 

Figure 5: Photomontage of Café Restaurant


  

Figure 6: Cabins Type A Left & B Right

 

 Description of the site

A site inspection was carried out on 28 January 2021 and 8 July 2022. 

The site is legally described as Lot: 2 DP: 869145, 911 Binna Burra Road, Federal and is also known as Peaberry Farm. The site comprises approximately 14.58 hectares and is zoned RU1 Primary Production. It is situated opposite the main street of Federal Village. The site is adjacent to Stony Creek which runs along the southern boundary.

 

Land is legally described

LOT: 2 DP: 869145

Property address

911 Binna Burra Road FEDERAL

Land is zoned:

RU1 Primary Production 

Land area is:

14.58 hectares

Property is constrained by:

 

Bushfire prone land; High Conservation Value; High Environmental Value  Cattle Dip Buffer; Electricity infrastructure

 

Is a BDAR required due to the location of the proposed development?

Yes  No

 

Are there any easements in favour of Council affecting the site?

Yes  No

 

Is there a Vegetation Management Plan which might affect the proposal?

Yes  No

 

Is there a Voluntary Planning Agreement which might affect the proposal?

Yes  No

 

Figure 7 Subject Site from Federal Drive

Figure 8: View to village from the subject site.

 

SUMMARY OF REFERRALS

Referral

Issue

Environmental Health Officer

No objections subject to conditions. Conditions prohibiting live or amplified music and limiting hours of operation to the same has been included. The proposal is supported with an On-site sewage management system (OSMS) report that demonstrates the land can accept and dispose of effluent onsite without negative environmental impacts.  Conditions to apply

Development Engineer

No objections subject to conditions.

Infrastructure Services

Comments subject to condition for works in road reserve. 

Building Surveyor

No objections subject to deferred commencement condition for a Building Information Certificate for the shed/ workers lunch room.

S64 / Systems Planning Officer

No objections or conditions.

Contributions Planner

No objections subject to conditions S7.12 Levy.

Natural Resource Planner

As required by Section D3.3.4 of the Byron Shire DCP 2014, rural tourism development must include an ecological restoration effort comprising 900 local native tree plantings or equivalent assisted natural regeneration per cabin. For the present proposal this equates to 5,400 native plantings or equivalent area (at Stage 2). A preliminary VMP concept plan was included in the application which proposed a combined strategy of assisted natural regeneration (removal of weeds including mature camphor laurel trees) and revegetation by direct planting. Restoration would be undertaken in two management zones: a vegetated gully in the north-east of the site and the northern riparian zone of Stony Creek which runs along the southern boundary. The approach and VMP in general is supported. A detailed VMP will be conditioned to be approved prior to Stage 1 of the development (the café) with primary works to be completed prior to issue of CC for the tourist cabins (Stage 2). Conditions to apply. 

Resource Recovery

No objections subject to conditions.

Rural Fire Service (100B)

See comments below.

Essential Energy

See comments below.

Jali Local Aboriginal Land Council

Referred 29 September 2020. No objections or response received.

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 includes a special fire protection purpose (tourist cabins) and was referred to the NSW Rural Fire Service in accordance with Section 100B of the Rural Fires Act 1997.

The original proposed plans have been amended and cabins have been re-sited to ensure the required APZ does not intersect any existing vegetation mapped as high environmental value or otherwise identified for future vegetation management for ecological restoration purposes.

The latest amended plans have been considered by Council’s Ecologist and the RFS.  The RFS approved the amended layout under the Bushfire Safety Authority required for the tourist accommodation on the site in accordance with S100B of the Rural Fires Act 1997.  The RFS integrated approval is at Schedule 4 in Attachment 2 - Recommended conditions of consent.

 

SECTION 4.15C – MATTERS FOR CONSIDERATION

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.

State Environmental Planning Policies (SEPP)

Consolidated SEPPs 2021

Considerations

Satisfactory

Unsatisfactory

Resilience and Hazards SEPP 2021

Chapter 4: Remediation of Land

A preliminary site investigation report was provided and concludes:

The investigation indicated with a high level of confidence that the site of the proposed development has primarily an agricultural land use history. Historic buildings on the site were targeted for possible contamination sources, however results were below the guideline limits. Soil contamination analysis shows levels of contaminations detected below adjusted NEPM (1999) health investigation levels. In accordance with the NSW EPA (1995) guidelines it can be concluded that the investigation area is uncontaminated.

It is considered that no further investigation is warranted and that the site is suitable for the proposed use.

Primary Production SEPP 2021

Chapter 2 Primary production and rural development

Consideration: The proposed development is suitably clustered in a location close to existing buildings that does not undermine the overarching purpose of the site for agricultural use and avoids impacts on native vegetation and biodiversity.   The remainder of the site is available for agricultural purposes and the proposed use would not restrict viability of the site for agriculture.   It is noted that at the time Chapter 2 of this SEPP was made, Schedule 1 State significant agricultural land (Section 2.8) was blank.

It is further noted that the site is identified as state significant farmland on the Northern Rivers Farmland Protection Project Final Map 2005 (Section 117(2)Direction), prepared by the NSW Government.

 

Source: map-queensland-northern-rivers-farmland-protection-project-final-map-section-117-2-direction-2-of-4-2005.pdf (nsw.gov.au)

The site is also mapped on the draft State Significant Agricultural Land (SSAL) Map exhibited from 1 Nov 2021 till 31 Jan 2022:

SSAL | Social Pinpoint (mysocialpinpoint.com)

The proposed development is not inconsistent with the relevant aims and objectives of the SEPP, as follows—

(a)  to facilitate the orderly economic use and development of lands for primary production,

(b)  to reduce land use conflict and sterilisation of rural land by balancing primary production, residential development and the protection of native vegetation, biodiversity and water resources,

(c)  to identify State significant agricultural land for the purpose of ensuring the ongoing viability of agriculture on that land, having regard to social, economic and environmental considerations...

(e)  to encourage sustainable agriculture

 

It is considered that Byron Shire LEP 2014 permits the proposed uses and Council, being the consent authority has approved such development where it does not undermine the viability of land for primary production.

 

Transport and Infrastructure SEPP 2021

Chapter 2 Infrastructure:

Consideration:  The DA was referred to Essential Energy in accordance with Section 2.48 of the SEPP. The site is constrained by low voltage and high voltage powerlines traversing the site.  During assessment, Essential Energy raised safety concerns about a metal shed located within the easement of high voltage overhead power lines and it is recommended as a deferred commencement that demolition of the container be undertaken prior to the consent becoming operational.  Plans were also amended to ensure all structures and on-site sewage management systems will meet Essential Energy clearance requirements.

 

SEPP (Building Sustainability Index: BASIX) 2004

Consideration: The plans for the tourist cabins were accompanied by a BASIX certificate.

 

4.2         Byron Local Environmental Plan 2014 (LEP 2014)

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

(a)     The proposed development is defined in the LEP 2014 Dictionary as restaurant or cafe and tourist cabins which area a type of tourist and visitor accommodation, both ancillary to farm;

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

(c)     The proposed development is permissible with consent; and

(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 café/restaurant and 6 cabins are clustered near to Binna Burra Road, minimising the development footprint and located near existing structures to avoid the loss of viable agricultural land within the site.

The proposal is unlikely to generate land use conflict due to its low scale and suitable distances to adjoining agricultural land and residences.

The proposal does not involve subdivision and will not fragment land used for primary production purposes.

The development provides for small scale tourist accommodation and a new café restaurant while avoiding and enhancing existing biodiversity within the site.

The application proposes a combined ecological restoration strategy of assisted natural regeneration (removal of weeds including mature camphor laurel trees) and revegetation by direct planting. Restoration is to be undertaken in two management zones: a vegetated gully in the north-east of the site and the northern riparian zone of Stony Creek which runs along the southern boundary

In terms of visual impact, the proposed development is not on a scenic escarpment or ridgeline.  The Cafe building will be visible from parts of Binna Burra Road and the intersection at Federal Drive.  The proposed development will not impact on views to a significant vista and will be screened by vegetation amongst cabins and  proposed along Binna Burra Road.

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

•  To minimise the fragmentation and alienation of resource lands.

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

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

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

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

The remaining checked clauses have been taken into consideration in the assessment of the subject development application in accordance with Section 4.15 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).

In accordance with Byron LEP 201, the proposed development is legally defined as follows:

restaurant or cafe means a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, whether or not liquor, take away meals and drinks or entertainment are also provided.

tourist and visitor accommodation means a building or place that provides temporary or short-term accommodation on a commercial basis, and includes any of the following—

(a)  backpackers’ accommodation,

(b)  bed and breakfast accommodation,

(c)  farm stay accommodation,

(d)  hotel or motel accommodation,

(e)  serviced apartments,

but does not include—

(f)  camping grounds, or

(g)  caravan parks, or

(h)  eco-tourist facilities.

Clause 4.3 Height of Buildings

All buildings are substantially below the 9 metre maximum height of building permissible on this land. The tallest building is the café restaurant which is 5.54 metres to the roof ridge and approximately 7 metres to the top of each of the two proposed chimneys. The cabins are single storey and less than 4 metres ground floor level to roof.  The cabins will be of variable heights due to siting and topography but substantially lower than the permissible 9 metres.

Clause 6.2 Earthworks

The proposal will involve minor earthworks primarily related to construction of the pool, car parking and café restaurant.  Council’s Development Engineer has assessed the proposal and recommends in the conditions of consent that A certificate from a professional Engineer experienced in soil mechanics is to be provided to the Principal Certifying Authority, certifying that the design of the civil engineering works, including retaining walls and/or cut & fill batters, has been assessed as structurally adequate, the civil engineering works will not be affected by landslip or subsidence either above or below the works; and adequate drainage has been provided.

 

Clause 6.5 Drinking Water Catchments

The site is in a Drinking water catchment.  The proposal has been assessed by Council’s Environmental Health Officer and Council can be satisfied that the relevant matters have been considered to protect drinking water catchments, including the distance between the development and waterways that feeds into the drinking water storage, the on-site use, storage and disposal of any chemicals on the land, the treatment, storage and disposal of waste water and solid waste generated or used by the development, and that appropriate measures are required to avoid, minimise or mitigate the impacts of the development. Conditions of consent are recommended to avoid impacts of development on the quality and quantity of water entering drinking water storages.

Clause 6.6 Essential Services

Council can be satisfied that services including the supply of water, the supply of electricity, the disposal and management of sewage, stormwater drainage, and suitable vehicular access, that are essential for the development are either already available or that adequate arrangements have been made to make them available (e.g. on-site sewage management).

Clause 5.8 Rural and Nature Based Tourism

Note. In this clause:

small scale means a scale that is small enough to be generally managed and operated by the principal owner living on the property.

tourism development includes, but is not necessarily limited to, development for any of the following purposes—

(a)  bed and breakfast accommodation,

(b)  camping grounds,

(c)  farm stay accommodation,

(d)  eco-tourist facilities,

(e)  home industries that provide services, or the sale of goods, on site to visitors,

(f)  information and education facilities,

(g)  restaurants or cafes,

(h)  rural industries that provide services, or the sale of goods, on site to visitors.

 

It is considered that the proposed development is consistent with the objective of this clause to ensure that tourism development in rural and natural areas is small scale and does not adversely impact on the agricultural production, scenic or environmental values of the land.

Council being the consent authority can be satisfied that:

·    There is adequate vehicular access to and from Binna Burra Road that is not a classified road, taking into account the scale of the development proposed including a 60 patron café restaurant and 6 one bedroom tourist cabins.

·    The development is small scale and low impact being single storey development, setback from the road and clustered together on a part of the site near existing structures and avoiding riparian areas and other sensitive areas of biodiversity on the site.

·    The development is of a scale and form that is complementary to the rural and environmental attributes of the land and its surrounds including setbacks to the road, watercourses.

·    The development is suitably clustered to avoid any adverse impact on the capacity of the land for agricultural production or significant features of the natural environment. Conditions of consent relating to operation is recommended to address any potential amenity impacts.

·    A lawfully erected dwelling house is situated on the land

·    The proposal is capable of being generally managed and operated by the principal owner living on the property and will not require construction of a separate additional ancillary caretakers or managers residence.

 

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

No Draft Environmental Planning instruments apply. 

 

4.4 Byron Shire Development Control Plan 2014 (DCP 2014)

Chapter B3 Services

B3.2.1 Provision of Services: Rainwater tanks are proposed to provide potable water supply.  Conditions are recommended to ensure sufficient water supply including the need for adequate storage for the purposes of firefighting.  A condition is recommended that requires a quality assurance program for drinking water to be supplied to NSW Health prior to occupation of the development.

B3.2.2 On-site Sewage Management: has been assessed by Council’s Environmental Health Officer. Separate systems are proposed for the café restaurant and the cabins.  Conditions of consent are recommended for the installation, inspection and operation of the system including the need for trade waste approvals as part of a S68 approval, prior to issue of a construction certificate.

B3.2.4 Sedimentation and Erosion Control Measures: The site adjoins a waterway and is located within a drinking water catchment. A sediment and erosion control plan is therefore required in accordance with B3.2.4.  Condition of consent is recommended.

 

Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access

B4.2.1 Traffic Impact: Parameters of the Proposal (derived from the applicant’s  Engineering Services Report) is as follows:

1.      11.5 hour traffic count accounted 1,973 vehicles (6:30AM to 6:00PM);

2.      Peak hour volume of 269 trips between 8:00AM & 9:00AM;

3.      Peak hour volume of 242 trips between 3:00PM to 4:00PM:

4.      21 U-turn movements at the intersection in a 12 hour period;

5.      142 average daily traffic generated by the development; and

6.      22 peak hour trips.

Based on this information and other Council traffic data, it is concluded that a roundabout at the intersection of Binna Burra / Federal Drive is the safest treatment.  This is triggered due to pre-existing safety concerns and not specifically the volume of traffic arising from the proposed development. The scale and detailed design of a new roundabout will be subject to a safety audit and must be consistent with Federal Main Street Concept Design.

The applicant initially proposed a large roundabout, with road widening indicated on the original plans but the community want intersection upgrades to be driven by the ongoing Federal Main Street Concept Design project.

The DA has been under assessment for two years, to give additional time for the draft Federal Main Street Concept Design and related community consultation to be considered.  The purpose of the delay in bringing the DA to Council for determination was to provide integration between the DA and the Federal main street design including the intersection of Federal Drive and Binna Burra Road.

The draft Federal Main Street Concept Design that was exhibited November 2021 is the latest official version. The Final Federal Main Street Concept Design is expected to be presented to Council in December 2022.

Plans have been amended by the applicant to ensure that the proposed realigned edge of the property boundary and the land to be dedicated to Council for widened road reserve is approved as part of the DA and clarifies that the extent of works is subject to further detailed design.

The boundary alignment on plans is based on the original large roundabout, thereby providing sufficient room for a smaller, more refined design including improved footpaths to occur in future. As such, there is no detailed road design included in the recommendation.

The recommended condition of consent for Roads Act approvals has been worded to ensure the roundabout, footpath and other works in the road reserve must be generally consistent with the endorsed Federal Main Street Concept Design and a Road Safety Audit.

B4.2.3 Vehicle Access and Manoeuvring Areas: The proposal will utilise the existing access generally in the location of the current driveway.  Other access options have been considered to be unsuitable due to topography and the need to avoid existing watercourses and vegetation or excessive earthworks. There is satisfactory space for onsite manoeuvring of all vehicle types likely to use the site including cars and trucks.  All vehicles will enter and leave the site in a forward direction.

B4.2.5 Car Parking Requirements: 23 car spaces are required for the café restaurant and 6 car spaces are required for the tourist cabins. The proposal provides 23 formalised sealed spaces including 2 accessible parking; and 6 formalised grassed spaces for the café restaurant and 8 formalised sealed spaces including 1 accessible parking or the cabins.

B4.2.8.1 Bicycle Parking: The café restaurant requires 1 space per 25m2 of GFA x 166m2 GFA = 6.6 spaces say 7 spaces and the tourist cabins are not required to provide bicycle parking.  There is ample space to provide 7 bicycle parking spaces to meet the DCP requirement and the proposal is supported, subject to conditions of consent.

B4.2.8.2 Coach Parking:  Neither the café restaurant nor the tourist cabins require coach parking under the DCP. There is an excess in parking numbers in the café and ample space within the site for coach parking if ever required to cater for a bus. 

B4.2.9        Loading Bays: DCP requires 1 small rigid vehicle (SRV) for each of the uses and the proposal provides loading space for a medium rigid vehicle.  It is considered by Councils development engineer that the loading bay between the uses can cross utilised.

Chapter B5 Providing for Cycling

See above. B4.2.8.1 Bicycle Parking

Chapters B6 Buffers and Minimising Land Use Conflict

The proposed development is located near to Binna Burra Road and has adequate buffers from adjoining farmland and residences. The site is bound by road and watercourses an all sides.  The development is unlikely to cause conflict with surrounding agricultural uses or sterilise any neighbouring land from future agricultural development.

Chapter B8 Waste Minimisation and Management

See Referrals section above and recommended conditions of consent to manage all waste streams including organise / food waste.

Chapter B9 Landscaping

The applicant has prepared sufficient landscaping details in the site plans submitted for assessment.  Screen and buffer landscaping between cabins is shown on plans. See attachment 1. 

Chapter B13 Access and Mobility

The café has been designed to be accessible including provision of two accessible spaces.  One of the tourist cabins (Cabin 3 on plans) including an accessible car space will provide for access and disability.

Chapter B14 Excavation and Fill

Earthworks are required and has been considered by Council’s Development Engineer to satisfactory and subject to conditions of consent. See consideration of LEP 2014 Clause 6.2 above.

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

Note.

Visually prominent development means any development located on a visually prominent site or development in a location that has the potential to impact the visual or scenic character of a visually prominent site.

Visually prominent site means land that is wholly or partly within the coastal zone; and land in Zone RU1 Primary Production, RU2 Rural Landscape with a height of 60m AHD or greater.

The applicant submits that the: proposal is not located within a visually prominent location. The main location where the proposal can be viewed is from Binna Burra Road, looking west. The VMP includes native plantings along the eastern boundary to improve the privacy of the visitor cabins on the site, that will also improve any visual amenity issues from the Binna Burra road location.

Consideration: The site is zoned RU1 Primary Production. According to Council mapping information, the site is at approximately 164 m AHD, which is a similar level to the southern section of Federal Drive and lower AHD than the rest of the Village, the nearby park and visible adjacent sites. 

Figure 9: Contours (Council Geocortex Mapping)

The Cafe will be constructed on a part of the site which gently slopes to the east and is vacant except for nearby overhead powerlines and sheds. The location of the buildings is supported in accordance with Clause 5.8 of Byron LEP 2014 and Chapter D3 Byron DCP discussed elsewhere in this section of the report. The proposal is mainly only visible from Binna Burra Road and the intersection of Federal Drive.

The single storey Cafe building when viewed from public places is gable roof form and is in keeping with the rural character of the area.  The building height is substantially below the 9 metres maximum building height, being 5.54 metres to the roof ridge and approximately 7m to chimney tops. The proposal meets the required setbacks for a development of its type and proposed materials are muted tones that will not be visually intrusive. The café is screened from the existing dwelling on the site by vegetation and the cabins are to be suitably screened. Existing vegetation creates a visual buffer and additional planting is proposed.  The proposal does not impact unreasonably on any significant views from another property.

The proposed development is not likely to create adverse visual impacts due to its low scale, clustered siting, height, topography of the site and the proximity to the nearest dwellings and public spaces and existing and proposed vegetation. The proposed development is not on a scenic escarpment or ridgeline and will not impact on views to a significant vista as may be the case in other parts of the Shire (e.g. Cape Byron, Mount Chincogan). It is considered that the development does not adversely impact on scenic character and visual quality. 

Chapter C4 Drinking Water Catchments

The land is in a drinking water catchment and has been addressed under LEP 2014 Clause 6.5.  See above.

Chapter D3 Tourist Accommodation

D3.2.1 Location and Siting: The siting and design of the 6 proposed cabins is clustered in a location that close to all other structures including the existing dwelling and proposed café and will not conflict with important ecological characteristics and conservation values of the site, and respects the natural systems and values of its location and surrounds. The proposed location of the cabins are minimising the potential for any land use conflicts and buffers to existing dwellings and farmland in the area.

D3.2.3 Character and Design in Rural Zones: the proposed cabins are compatible in character and amenity with the surrounding rural and natural landscape, and with development in the locality. Due to clustering with existing buildings close to Binna Burra Road most of the site will be available for agricultural use and environmental restoration. The proposed cabins are low scale, single storey structures and raise no issues in terms of the DCP provisions.

Section D3.3.4 of the Byron Shire DCP 2014, rural tourism development must include an ecological restoration effort comprising 900 local native tree plantings or equivalent assisted natural regeneration per cabin. For the present proposal this equates to 5,400 native plantings or equivalent area (at Stage 2). The application proposes a combined strategy of assisted natural regeneration (removal of weeds including mature camphor laurel trees) and revegetation by direct planting. Restoration is to be undertaken in two management zones: a vegetated gully in the north-east of the site and the northern riparian zone of Stony Creek which runs along the southern boundary. Conditions of consent to apply.

The provisions of Chapter D2 Residential Accommodation and Ancillary Development in Rural Zones apply to all tourist accommodation development in zones RU1 in the same way they apply to residential accommodation in Rural Zones. Tourist accommodation is required to comply with Section D1.2.2 – Setbacks from Boundaries;  All tourist cabins substantially exceed the minimum 15 metre setback required to Binna Burra Road.

 

Chapter D4 Commercial Development

The proposed use of the farm café is a type of commercial use and is permissible with consent in the RU1 Zone.

D4.2.9 Restaurants/ Cafes in Rural Areas applies to enable restaurant or café development that preserves the rural amenity, character and environment of the locality;  to mitigate and manage any land use conflicts; to limit the impacts of a restaurant or café on the broader environment; and to provide an avenue for supplementary income on rural holdings.  The proposal has been assessed and is considered to meet the following requirements (in some cases subject to recommended conditions of consent):

·    a seating capacity for a maximum of 60 patrons including any outdoor garden seating.

·    located so that it may benefit from an existing road

·    all weather car-parking provided on site in accordance with Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access.

·    landscape plan submitted with the application in accordance with Chapter B9 Landscaping to primarily provide adequate landscaping and screen plantings when viewed from a public road or a dwelling on other land in the locality.

·    Liquid trade waste to be managed and effluent will be disposed of via an on-site sewage management system, designed to cater for increased water usage associated with the restaurant including multiple sittings throughout the day, peak loads and a separate Liquid Trade Waste approval pursuant to Section 68 of the Local Government Act, 1993 is required subject to conditions of consent.

There are no specified DCP setbacks for the proposed café in the RU1 zone and therefore the development controls for the use in the context of a rural zone on the edge of the R5 Village have been considered.

D4.2.5 Street Setbacks:  Commercial/ retail type premises in the RU5 Zones to have regards to the setbacks of adjoining and surrounding development. The proposal provides for 13-14.6 metre setback to the proposed realigned boundary.  Commercial setbacks on the opposite corner of the intersection are zero and built to the street boundary.  The proposed setbacks are therefore considered to be satisfactory with regards to commercial setbacks in the locality.

Note. Chapter E6  Federal Village: The site is not located in the Federal Village Map (Map E6.1) and Chapter E6 does not apply to the proposed development.

 

 

4.5                    Environmental Planning and Assessment Regulation 2000 considerations

 

Applicable to the proposal:

Considered the control as it relates to the proposal:

If this control is applicable, does the proposal comply?

Clause 92 - Additional matters that consent authority must consider

 

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 93 Fire safety and other considerations

 

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 94 - Consent authority may require buildings to be upgraded

 

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 94A - Fire safety and other considerations applying to erection of temporary structures

 

Yes   No

Yes  No

NA 

Yes  No

NA 

* Non-compliances and any other significant issues discussed below

 

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

4.6.1

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.

Conditions of consent to apply to operating hours, number of patrons, amplified music and lighting to mitigate potential amenity impacts on surrounding development

Social Environment

No. The proposal will not have a significant social impact on the locality.

Economic impact

Yes – The proposal will have positive economic impacts through the construction of the development and in the long terms with operating the café and tourist accommodation in terms of ongoing hospitality employment. 

Construction Impacts

The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

 

4.7                    The suitability of the site for the development

The development is sited to avoid site constraints including overhead power lines, water courses and suitable for the proposed development subject to conditions of consent.

 

4.8                    Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited

There were 16 submissions made against the development application:

Issue

Consideration

Character

Small rural village outlook and amenity

Rural setbacks – café restaurant should be set back further from the road

Impacts of commercial development on RU1 zoned.

Immediate and massive impact on the village.

Inappropriate for a small village and the entrance is dangerous.

It looks like a full-on resort.

Roundabout is far too large an entrance to a small village and will dramatically change the rural nature of Federal.

In favour of a roundabout, but it doesn't need to be anything like as large as proposed.

 

The proposed character, scale, siting and setbacks are considered in full under the relevant and applicable  LEP and DCP provisions above.

 

Advertised plans provided setbacks that comply with the DCP.  These have been further increased in the latest amended plans.

Pressure of development on village infrastructure including the roads already at capacity.

Rubbish bins overflow after the weekends and visitors are leaving refuse laying around in the park and playground.

Parking is stressed in the village centre where our children catch the bus

Impacts locals and wildlife increasing amount of roadkill in recent times.

The proposed development provides little benefit to Federal locals.

The proposal provides for on-site parking and management of all services to accommodate the development.

 

Proposed upgrades to the road will be subject to a safety audit and are to be consistent with the master planning process including the to be endorsed Federal Main Street Concept Design and a Road Safety Audit.

 

The roundabout pre-empts the recent Council initiated “Federal Village Project Community led Governance and Place Plan” which will look at all traffic, parking and pedestrian issues affecting the village and will yield a comprehensive management plan from the ground up as opposed to this developer led imposition.

Urge Council to put a hold on this and any other commercial development in Federal until the new Masterplan is accepted.

This application should not be approved by Council until such time as a well thought out plan is developed by the Council initiated “Federal Village Project Community led Governance Plan & Plan’ which will look at all traffic, parking and pedestrian issues affecting the village.

Roundabout and traffic, alternative access, existing entrance should be closed and moved, impacts on adjoining properties.  Particularly properties on the western leg where driveways will be obstructed by two traffic islands, a pedestrian crossing and a culvert. The DA shows the intent to direct all the pedestrian traffic from both the café and the cabins to the southern outskirts of the development and toward my property. ‘guests’ looking directly into property as they traverse the path day and night.

Welcome opportunities for traffic calming in the village, a roundabout here may slow vehicles briefly but would likely cause traffic to accelerate towards the narrow corner near the Federal Children's Centre.

Large articulated vehicles use this junction and the roundabout would have to accommodate these. The loss of the stop sign at the intersection may make it less safe for pedestrians.

 

The application has been under assessment for 2 years and this has given ample time for the concept plan and recent exhibition draft of the masterplan to be further developed. 

Notwithstanding Council must assess development in accordance with the relevant matters for consideration including public submissions.  This does not include a concept or masterplan, which may amend planning controls in future.

The roundabout works must be consistent with the endorsed Federal Main Street Concept Design and a Road Safety Audit.

 

Vegetation Management Plan does not include the intermittent stream that runs out of the Park. This sadly neglected gully will look even worse once the proposed plantings around the dam and along Stoney Creek are complete. The plantings need to be extended.

The Vegetation Management Plan does not include the intermittent stream that runs out of the Park under Binna Burra Road. This sadly neglected gully will look even worse once the proposed plantings around the leaky dam and along Stoney Creek are complete. The plantings can be extended into this riparian zone simply by planting trees at the widest allowable centres.

The Vegetation Management Plan provides insufficient details and is not in accordance with Councils guidelines.

Claim vegetation management works are to be undertaken with the local Landcare group... no such agreement exists.

The applicant’s Statement of Environmental Effects pg. 16, submits their future intent that: “The ecological works is to be conducted in consultation with the local Landcare group”.  The involvement of the local Landcare team will be a matter for the individual parties.  A vegetation management plan (VMP) is not required to be implemented until Stage 2 for rural tourist development.  The detailed VMP is still to be approved by Council prior to a construction certificate for Stage 1, including an implementation plan.  The indicative vegetation restoration / management areas are shown in the amended plans at Attachment 1 (DA.1.10) and avoid all bushfire asset protection zones. The application was prepared by a qualified and experienced environmental planner who works with bush regenerators on ecological restoration in the Shire.

Design and Energy

The proposed buildings do not meet the objectives of the DCP in relation to design for climate, sustainability nor respect for the surrounding built environment. They should have open gabled roofs with eaves that match the form of the restaurant. Parapet roofs with box gutters do not work in this climate due to extremely heavy rainfall events, blow-in leaf matter building up and blocking flow and the need for continuous careful maintenance. The aesthetic of this development is a city apartment one.

• The restaurant: The roof of the kitchen has the same problem. It can be changed to an open gable meeting the restaurant ridgeline at the same pitch and width, while the amenities can be moved south under the same roof form. A more discrete entry from the loading bay to the kitchen stores can be incorporated in this redesign. I also suggest that the cold store is not big enough. The loading bay is not well sited.

• Solar energy: Attachment E2020/78046 shows that the Combined Certificate of the NatHERS reports on the tourist accommodation together give an average rating of only 4.7 out of a possible 10. Only solar hot water has been included in the Basix Certificates. A change to open gabled roofs to be used for solar energy collection would greatly improve the rating and bring the development into the 21st century.

There is no reference to Section J of the National Construction Code Volume 1 in relation to the energy efficiency requirements for the Restaurant.

 

A Section J report relates to compliance with the National Construction Code (NCC) and is a requirement for certification prior to construction certificate (CC).

Council Building Inspector confirms that a Section J report is required for CC for class 2-9 buildings as it deals with lighting/AC/ water and thermal.

It will be addressed at CC stage and should not be required or approved at DA stage.

A condition of consent is recommended for solar power to be incorporated into the design prior to cc. This can be roof mounted or bracket mounted on roofs or at ground level.

There is ample room on the site and buildings to accommodate this.

The design has been assessed objectively against the applicable development control plan requirements.

 

Outcomes of pre lodgement consultation - inadequate response to issues raised:

Noise - weakening of the commitment to only operating the restaurant during daylight hours. At the consultation stage the developer (their representative) said daytime trading only...now it is "initially day time only" ...

No mention of the commitment made at Community Consultation to provide onsite management presence of the overnight cabins as a condition of DA approval.

Community had suggested a pathway around the property be incorporated to allow for more exercise and environmental enjoyment for village inhabitants. The developers seemed to agree during the consultation phase but have now explicitly rules it out in their application. Reportedly based on liability.

Vegetation Management Plan is both minimal and needs to be more enforceable. The developer has proposed the minimum works and less than they indicated at their public consultations, for instance they have omitted the intermittent stream which flows int the property from Federal Park which was a focus of discussions at the consultations and would connect their environmental works with the communities.

No attempts to minimise their carbon foot print or even look to aim for self-sufficiency in energy use.

A number of issues raised are beyond the powers of the DA including:

Council cannot require a private land holder to provide a public path through their property.

Issues related to noise have been assessed and strict operational requirements are recommended including operational hours, maximum patrons, limits on live or amplified music.

An onsite management residence is provided and a condition of consent imposed to require this to be provided at all times.

Vegetation management is addressed above.

Solar power addressed above.

The café restaurant will require a Section J report in erms of sustainability prior to CC and the cabins have been accompanied by a BASIX and NatHERS assessments.

Future intent of the site: The owners have been for some time looking to develop a housing sub-division and I have been one of many community members engaged with them.

Council can only consider the proposed development that is permissible with consent on the site.  Any subdivision for housing will require a planning proposal to be prepared to rezone the land and amend the Byron LEP 2014.  This is not a matter for consideration and is beyond the powers of this DA.

All submissions have been shared with Council’s Place Planning Team for ongoing consideration in the ongoing Federal Main Street Concept Design and master plan process and Infrastructure Services for any future works in the road reserve subject to a Road Safety Audit and ongoing implementation of the be endorsed Federal Main Street Concept Design.

4.9                    Public interest

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

5.    DEVELOPER CONTRIBUTIONS

5.1                    Water & Sewer Levies

The site is not connected to reticulated water supply systems or sewerage systems and is not serviced by Rous Water or Council.  It has no entitlement for water or sewerage and there is no nexus to charge water and sewer levies under the Water Management Act.

5.2                    Developer Contributions

Section 7.12 Contributions will be payable.

6.    DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes No

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes No

7.    CONCLUSION

The proposed development is satisfactory having regard to 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, including deferred commencement conditions in Attachment 2 of this report.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          13.2

Report No. 13.2     PLANNING - 10.2020.513.1 Alterations and Additions to Existing Motel including Five (5) Additional Guest Rooms, Restaurant/Bar, Swimming Pool and Car Parking Spaces at 84 Harbour Way BRUNSWICK HEADS

Directorate:                         Sustainable Environment and Economy

Report Author:                   Ivan Holland, Planner

File No:                                 I2022/847

Proposal:

DA No:

10.2020.513.1

Proposal description:

Alterations and Additions to Existing Motel including Five (5) Additional Guest Rooms, Restaurant/Bar, Swimming Pool and Car Parking Spaces

Property description:

LOT: 10 DP: 805193

84 Harbour Way BRUNSWICK HEADS

Parcel No/s:

65950

Applicant:

Planners North

Owner:

26 Swales Pty Ltd & 2222 Pty Ltd

Zoning:

B4 Mixed Use

Date received:

8 October 2020

Integrated / Designated Development:

    Integrated

    Designated

    Not applicable

Public notification or exhibition:

-    Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications

-    Exhibition period: 20/10/20 to 2/11/20

-    Submissions received: Nine (9)

Planning Review Committee:

12/11/2020

Variation request

Clause 4.6

 

 

Summary:

This application seeks approval for alterations and additions to the existing motel including provision of six (6) additional guest rooms (17 rooms currently, 23 proposed).  The alterations and additions will result in an approximate doubling the current building through extension predominantly to the west and construction of an additional, third level (Level 2) containing guest rooms with roof terraces, a powder room, lobby and access to a roof terrace area.  This application also seeks approval for a restaurant on the ground floor and with associated terrace areas.  The proposed development includes a new swimming pool and formalisation of car parking spaces on Council land in addition to onsite car parking.  The proposal includes a chimney that exceeds the building height limit for which a request to vary the development standard has been provided.

The proposed development is deficient in car parking spaces and does not incorporate adequate landscaping.  However, the fundamental issue with the development application is that the proposal is not compatible with the streetscape and character of the locality particularly as:

·    It has three storey elements with all adjoining, neighbouring and surrounding buildings being a maximum of two stories.

·    Much of the development is finished with parapet walls, while most surrounding buildings have pitched/gable roofs.

·    Proposed building materials (i.e., coloured concrete and dry stone masonry) are not evident on any adjoining or neighbouring buildings.

The proposed development does not “reflect a low-scale, tourist-beach image” and is out of character with the “low key, family-friendly, coastal village character, streetscape and scale of Brunswick Heads”.

A significant re-design is required to address the incompatibility of the proposal with streetscape and character requirements for Brunswick Heads and consequently it is recommended that this development application be refused for the reasons outlined below.

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 (EP&A Act), Development Application No. 10.2020.513.1 for Alterations and Additions to Existing Motel including Five (5) Additional Guest Rooms, Restaurant/Bar, Swimming Pool and Car Parking Spaces at 84 Harbour Way, Brunswick Heads, be refused for the following reasons:

1.         The development application is not satisfactory having regard to subsection 4.15(1)(a)(iii) of the EP&A Act as the development application did not adequately assess the likely traffic impacts of the development contrary to the requirements of Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access of the Byron Shire Development Control Plan 2014 (BDCP 2014).

2.         The development application is not satisfactory having regard to subsection 4.15(1)(a)(iii) of the EP&A Act as the proposed development does not provide adequate car parking contrary to the requirements of Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access of the BDCP 2014.

3.         The development application is not satisfactory having regard to subsection 4.15(1)(a)(iii) of the EP&A Act as the proposal does not include safe and convenient cycling access and end-of-trip facilities and did not address promotion and/or facilitation of cycling contrary to the requirements of Chapter B5 Providing for Cycling of the BDCP 2014.

4.         The development application is not satisfactory having regard to subsection 4.15(1)(a)(iii) of the EP&A Act as the proposed development does not provide adequate landscaping, including but not limited to adequate screening and landscaping setback of the street front of the development and shade trees for car parking, contrary to the requirements of Chapter B9 Landscaping of the BDCP 2014.

5.         The development application is not satisfactory having regard to subsection 4.15(1)(a)(iii) of the EP&A Act as the bulk, scale and design of the proposed development is incompatible with, and likely to adversely impact on, the streetscape and character of the locality, contrary to the requirements of Chapters D3 Tourist Accommodation, D4 Commercial and Retail Development.

6.         The development application is not satisfactory having regard to subsection 4.15(1)(a)(iii) of the EP&A Act and is inconsistent with the bulk, scale and character provisions contained within Chapter E4 Brunswick Heads of the BDCP 2014.

7.         The development application is not satisfactory having regard to subsection 4.15(1)(b) of the EP&A Act as the proposed development will have an adverse impact on the built environment due to its design, bulk, scale and being incompatible with the ‘low scale’, ‘coastal village character’ and streetscape of Brunswick Heads.

8.         The development application is not satisfactory having regard to subsection 4.15(1)(c) of the EP&A Act as the site is not suitable for the development having regard to the scale and design of the development proposed and incompatibility with the streetscape and character of the locality.

9.         The development application is not satisfactory having regard to subsection 4.15(1)(d) of the EP&A Act as nine (9) submissions were received by Council in opposition to the development that raise concerns about the proposal including those outlined in the other reasons for refusal.

10.      The development application is not satisfactory having regard to subsection 4.15(1)(e) of the EP&A Act as the development application is not in the public interest due to the issues outlined in the other reasons for refusal particularly incompatibility with the streetscape and character of the locality.

 

Attachments:

 

1        DA 10.2020.513.1 - Amended development plans, E2022/102534  

2        DA 10.2020.513.1 - Redacted submissions, E2022/79565  

3        DA 10.2020.513.1 - Development renders, E2022/102533  

4        DA 10.2020.513.1 - Planning agreement for pubic art, E2022/50510  

 


 

Assessment:

 

1.         INTRODUCTION

 

1.1.          History/Background

Council’s records indicate the following development approval history for the property:

·    BA 6.1989.2781.1 – for alteration – approved 10/4/1990.

·    DA 5.1991.406.1 – for tourist facility – approved 14/2/1992.

·    BA 6.1996.2110.1 – for fence – approved 2/4/1996.

·    DA 5.1996.444.1 – for sign – approved 24/1/1997.

·    DA 10.2002.344.1 – for motel – restaurant and renovations/additions – withdrawn 10/12/2002

The plans have been amended various times throughout the assessment process. Although the design of the development has improved through that process, the amendments including the latest plans fail to adequately address the fundamental issues that are wrong with the design relating to height, bulk, scale, character, lack of car parking and the like as discussed in the body of the report below.

 

1.2.          Description of the proposed development

This application seeks approval for Alterations and Additions to the Existing Motel including:

·    Demolition of the northeast corner and much of the east and west façade of the current building, and the swimming pool;

·    Alterations and additions to the external and internal layout of the motel including:

o Six (6) additional guest rooms (17 rooms currently, 23 proposed),

o Approximately doubling the current building through extension predominantly to the west,

o Extension of the western end of Level 1 to the south for cabanas,

o Construction of an additional level (Level 2) containing five guest rooms with roof terraces, a powder room, lobby and access to a roof terrace area.

·    A Restaurant and associated terrace areas (ground floor) with roof terrace areas above (Level 2);

·    A new Swimming Pool; and

·    Alteration of the 18 car parking spaces and construction of 5 addition car parking spaces within the property and use of Council land to provide an additional 11 car parking spaces.

 

 

1.3.          Description of the site

 

Land is legally described

LOT: 10 DP: 805193

Property address

84 Harbour Way BRUNSWICK HEADS

Land is zoned:

B4 Mixed Use

Land area is:

2478 m2

Property is constrained by:

 

·    Flood Liable Land

·    Acid Sulfate Soils Class 4

Is a BDAR required due to the location of the proposed development?

Yes  No

Are there any easements in favour of Council affecting the site?

Yes  No

Is there a Vegetation Management Plan which might affect the proposal?

Yes  No

Is there a Voluntary Planning Agreement which might affect the proposal?

Yes  No

 

A site inspection was carried out on 18 August 2022

Photo 1 – View southwest to subject property from Harbour Way.  Current motel is white building.

Photo 2 – View south along Tweed Street from opposite the subject site.

Photo 3 – View west to subject property from Harbour Way.  Current motel is white building.

Photo 4 – View east to subject property from Fawcett Street/Lane.  Corner of motel is in left foreground.

Photo 5 – View northwest to subject property from Fawcett Street/Lane.

Photo 6 – View southeast along Fawcett Street/Lane.  Corner of motel (white building) is in left foreground.

Photo 7 – View east to motel/subject property from Fawcett Street/Lane.

 

 

2.         SUMMARY OF REFERRALS

 

Referral

Issue

Environmental Health Officer

No objections subject to conditions.

Development Engineer

Not supported – insufficient parking.

S64 / Systems Planning Officer

No objections subject to conditions.

S94 / Contributions Officer

No objections subject to conditions.

Infrastructure Services

Consent to use and occupy Council owned land has been provided

Essential Energy (CNR-42294)

No objections, general comments only.

 

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 not bush fire prone land.

 

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

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

 

4.1       State Environmental Planning Instruments

 

Satisfactory

Unsatisfactory

State Environmental Planning Policy No 55—Remediation of Land

Consideration: The property is not mapped in Council’s GIS as a contaminated land parcel. Council’s Environmental Health Officer (EHO) requested a preliminary site contamination investigation however this wasn’t provided by the applicant.  Should the application be approved, the EHO has recommended a deferred commencement condition to require a preliminary contaminated land assessment to be carried out and actioned if required.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Consideration: A motel is not BASIX affected development and as such a BASIX Certificate is not required.

State Environmental Planning Policy (Coastal Management) 2018

Consideration: The property is within the mapped coastal environment and coastal uses areas.  The development is not expected to cause adverse impacts on the coastal environment (cl.13) or coastal use area (cl 14) matters.

State Environmental Planning Policy (Infrastructure) 2007

Consideration: The proposed development is within 5m of mapped powerlines and as such was referred to Essential Energy for comment pursuant to clause 2.48 (CNR-42294).  Essential Energy had no safety concerns and provided general comments only.

 

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

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

(a)     The proposed development is defined in the LEP 2014 Dictionary as hotel and motel accommodation and food and drink premises (see Note);

(b)     The land is within the B4 Mixed Use according to the Land Zoning Map;

(c)     The proposed development is permitted with consent; and

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

Zone Objective

Consideration

To provide a mixture of compatible land uses.

 

The application does not propose to change the primary use of the property/development but does propose the introduction of a restaurant.

To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

The development is located to take advantage of walking, cycling and public transport by being located on a main street of Brunswick Heads and close (~330m) to the village.

Note:  The food and drink premises is permitted within the zone as a sub-category of commercial premises.

hotel or motel accommodation means a building or place (whether or not licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis and that—

(a)  comprises rooms or self-contained suites, and

(b)  may provide meals to guests or the general public and facilities for the parking of guests’ vehicles,

but does not include backpackers’ accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation.

food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following—

(a)  a restaurant or cafe,

(b)  take away food and drink premises,

(c)  a pub,

(d)  a small bar.

4.3   Height of buildings

Most of the building will be at, or below, the 9m building height limit.  A chimney, associated with the bar, that will exceed the 9m building height limit by 900mm (Note: the plans show the chimney at 1.51m above the building height limit).  A request to vary this development standard in relation to the chimney was lodged with the application and is considered below.

4.4   Floor space ratio

The applicant provided plans showing the breakdown of gross floor area as follows:

·    ground floor – 426m2

·    level 1 – 509m2

·    Level 2 – 170m2

The total proposed gross floor area of 1105m2 results in a floor space ratio (FSR) of 0.46:1 for the proposed development, being under the limit of 0.5:1 for the property.

5.21   Flood planning (previously clause 6.3)

The entire site is mapped as flood prone.  The floor level of existing building is 3.110m A.H.D.  The proposed ground floor level remains at 3.110m A.H.D. and complies with the flood planning level (FPL) requirements in DCP 2014.  However, based on the recent flooding in Byron Shire, Council’s Development Engineer considers it to be desirable for new development to adopt the current FPL of 3.42m A.H.D. to further protect the new commercial area.

6.1   Acid sulfate soils

The property is mapped as class 4 acid sulfate soils (ASS).  Works are likely to extend ~1m below ground (as such, a consent is not required under this clause) and based on GIS mapping it is unlikely for proposed works to disturb ASS. However, a soil investigation conducted nearby discovered ASS at less than 1m below ground level and as such the excavation for the swimming pool may encounter ASS.  Conditions would be recommended to address this possibility.

6.2   Earthworks

Sections provided with the application indicate up to 1m of fill under buildings at the east of the site (i.e., bar, restaurant and kitchen/reception) and either side of the swimming pool and 700mm of excavation for the swimming pool.  It is considered the earthworks can be adequately managed with conditions.

6.6   Essential services

An approved motel is currently being operated on the property.  Consequently, essential services are available for the development.  In relation to stormwater management arrangements can be put in place to adequately managed stormwater including a bioretention swale and 6000L water tank for on-site detention.

Conclusion

The relevant, clauses have been taken into consideration in the assessment of the subject development application in accordance with Section 4.15 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) but for building height (cl.4.3). A request to vary the building height standard, in relation to the chimney, was lodged with the application and is considered below.

Clause 4.6 Exceptions to Development Standards

Applicant has sought a variation to Height of buildings for a chimney, associated with the bar, that will exceed the 9m building height limit by 900mm or 10% (Note: the plans show the chimney at 1.51m above the building height limit, or a 17% variation).

The applicant has submitted a written request that strict compliance with the development standard is unreasonable or unnecessary and that there are sufficient environmental grounds to vary the controls as follows:

1. The building bulk and scale is not impacted by the proposed variation.

2. The proportion of the roof affected by the variation is very minor, comprising 3.61m2 of the roof protruding above the 9 metre height limit.

3. Strict compliance will have little impact on the building as viewed from the streetscape and surrounding area.

4. There is no disruption to planned views, loss of privacy or visual intrusion occasioned by the numerical excess in the BLEP14 specified building height.

5. In terms of overshadowing, the proposal has no material impact. The proposed shadow impact will result on the subject site only.

6. The design has an FSR of 0.42:1, which is significantly less than the 0.5:1 permitted for the proposed development.

The chimney component is a minor element of the proposal and if the application was to be approved, a variation could be supported.

 

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 relevant to this application.

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

B1 Biodiversity

There are no ‘red flag’ areas mapped on the property (B1.2.1).  The SEE states that “the proposed development does not require the removal of native vegetation”.

B3 Services

Council’s Development Engineer is satisfied adequate stormwater management can be provided for the development including during construction (see comments under cl.6.6 of LEP 2014 above).  The property has connections to reticulated wastewater and water which can be utilised for the proposed development.

B4 Traffic Planning, Vehicle Parking, Circulation and Access

The development generates numerically a total of 34 car parking spaces, The application has proposed 23 spaces onsite and 11 car parking spaces in Fawcett Street Where development relies on constructing and formalising onstreet parking to support a development, Council provisions enable that variation to be sought with the caveat that an additional 25% of spaces are provided in the public domain to provide a benefit to the general community. The provisions under Section B4.2.7 state:

“Council will consider proposals to increase on street parking capacity for the provision of some or all customer car parking spaces by increasing on street parking capacity where there is a material public benefit, and where:

a) The net increase in formalised (ie paved &/or linemarked) on street parking is 25% greater than the number otherwise required on site;”

The proposal as such requires the provision of 14 spaces in the public domain. The application based on the current plans in effect seeks a variation to the provisions within the DCP which enable a variation to standard provisions of providing all parking onsite. This cant be supported and in essence is an overdevelopment of the site. The proposal also includes a lack of detail relating to traffic impacts. The Application is recommended for refusal.

B5 Providing for Cycling

The updated plans provides a bicycle parking area at the southeast corner of the site, fronting Tweed Street with capacity for several bicycles (9-10 bicycle parking spaces are required for the development – Table B4.1).  Details of safe and convenient cycling access and end-of trip facilities (e.g., parking/storage, showers and lockers) are required for the development (B5.2.2 and B5.2.4). 

B7 Mosquitoes and Biting Midges

Conditions would be recommended in terms of effective screening to all windows, doors and openings of the motel accommodation. 

B8 Waste Minimisation and Management

The applicant provided an amended Site Waste Minimisation & Management Plan (Tim Fitzroy & Associates, 10/7/2022) in response to concerns raised by Council’s Resource Recovery Team.  Their review of the amended plan found it to be generally acceptable, subject to conditions of consent.

·    It is proposed to use a small rigid vehicle (SRV) to service the commercial bins however the vehicle shown in the turning diagram is a medium rigid vehicle (MRV).

·    Development plans should show the area where bins will be presented when being serviced.

·    Prior to occupation, the need for a letter from licensed commercial waste provider confirming they will be servicing the development.

·    Details of measures to minimise and manage potential impacts on local amenity (e.g., noise) from numerous commercial waste collections proposed in the plan.

The above amendments/additions to the plan can be required by a condition of approval.

B9 Landscaping

A concept landscape plan (Richards & Spence) was provided with the initial application, but this did not include the rationale behind the proposed landscaping.  The concept landscape plan includes retention of existing vegetation but is not consistent with several landscape design principles (B9.3.1) particularly:

·    avoiding planting trees within 3m of buildings.

·    no information on the expected size and spread of trees to be planted when mature.

·    proposed landscaping does not utilise plant species locally indigenous to the area.

·    minimal/negligible vegetative buffers to adjoining residential development.

It appears that at least 10% of the site will be landscaped however the Tweed Street façade has significant bulk and scale and is not adequately screened by vegetation (see East Elevation) contrary to B9.6.1.  Most of the Tweed Street façade of the development has a landscape garden bed less than (~1.5-1.6m) the required minimum width of 2m (B9.6.1).

The proposed formal car parking in Council’s Fawcett Street road reserve does not include shade trees every 2-5 parking spaces however existing vegetation to the north will provide shading (B9.9.1).

B14 Earthworks

As noted above, the proposal includes up to 1m of fill, under buildings and adjacent to the swimming pool, and up to 700mm of excavation for the swimming pool.  The proposed earthworks are consistent with relevant requirements.  The impact, if any, of the proposed filling on flooding is considered under Chapter C2 below.

C2 Areas Affected by Flood

Council’s Development Engineer is satisfied the development meets relevant flood planning requirements (see comments under cl.5.21 of LEP 2014 above).

D3 Tourist Accommodation

Character and design are considered under D4 below as required by D3.2.4.

D3.3.6 Hotel or Motel Accommodation

It is acknowledged that design changes were made to improve the visual impact of the development including:

·    Additional roof garden along the northern façade.

·    Additional roof garden on west façade.

·    garden area to replace one carpark along western boundary.

·    reduction in height of southern screen wall to dining terrace.

·    further setback of first floor above restaurant with garden in setback area.

·    Use of an open balustrade for the eastern façade of the ‘Yoga’ roof terrace.

·    use of gable and skillion roofs in certain locations as opposed to solid, full height parapets and flat rooves with terrace frames.

However, the proposed development is not compatible with streetscape and character of the locality as (See artist’s impressions below):

·    Elements of the proposed building are three stories with all adjoining, neighbouring and surrounding buildings being a maximum of two stories.

·    Most of the development is finished with parapet walls, rather than gable rooves which common on surrounding buildings.

·    Proposed building materials (i.e., coloured concrete and dry stone masonry) are not evident on any adjoining or neighbouring buildings.

In relation to amenity, the design of the development has been modified to minimise noise impact on adjoining properties through:

·    provision of a 2m high masonry fence along the northern boundary.

·    privacy screens on the northern stair wells (first and second floors).

·    reduction in roof terrace area along the northern façade with 2.15m high solid balustrades.

·    further setback of guest room 23 from the western façade with garden terrace in the setback area.

·    further setback of western screen wall for the swimming pool and additional screening vegetation.

·    use of a guest room as a manager’s residence (no further detail of management of the motel/restaurant/bar was provided).

In relation to solar access, shadow diagrams were provided with the application that show the proposed development will not result in shading of neighbouring properties between 9am and 3pm in summer. However the development to the west at 12 Pandanus court with have additional overshadowing winter in the morning hours.

External pedestrian access is provided between the accommodation units and other facilities including car parking, however:

·    the ground floor pedestrian access between the accommodation units and car parking is shared with the driveway.

·    the ground floor access to/from carparks 17 to 24 relies on the Fawcett Street road reserve.

The motel rooms do not have cooking facilities however the development includes a restaurant with on-site kitchen.

Artist’s render: View – East/Tweed St façade

Artist’s impression: West / Fawcett St facade


 

D4 Commercial and Retail development

Commercial and retail development provisions are largely considered above (e.g., parking, access) and the development is generally consistent with design and character objectives and criteria (D4.2.1) with the exception being that the development does not “reflect a low-scale, tourist-beach image”.

However, as detailed above, the proposed development conflicts with the design detail and appearance requirements (D4.2.2) as:

·    the development is not compatible with the existing character of the precinct.  The scale, bulk and design on the development is not compatible with the current streetscape.

·    large components of the building design, roof profile and materials are not compatible with the surrounding design themes.

Upper storey levels of the development are not consistently set back from the street frontage (D4.2.5).

Hours for operation of the swimming pool, restaurant and bar are specified in the noise impact assessment as 7am – 10pm and could be further conditioned to manage impacts if the DA was to be approved.

D8 Public Art

The proposal triggers the requirement to provide public art.  The applicant has provided Council with a voluntary planning agreement for the provision of a financial contribution for the purposes of Council providing public art.

E4 Brunswick Heads

The character narratives for Brunswick Heads provide the context for development in terms of design, height, bulk, scale and streetscape. The subject property fits within Pocket A. The following comments from the DCP are of relevance:

Fisherman’s cottages and residential watch towers provide a legacy from the past. The various styles and blend of external materials including fibro, rendered brick and weatherboard. Existing homes and new development in this area will need to maintain a consistency with the domestic scale, rhythm and defining features of existing houses. Large buildings typical of the 1970’s flat development and cubist forms are inappropriate where they do not exhibit details appropriate to the existing mix of predominantly small-scale traditional dwellings. These are typically single storey, with low pitched roofs, setbacks that minimise their impact and front doors and verandahs facing the street typical of a traditional seaside village atmosphere.

And

Tweed Street has seen a change in function from highway to gateway to Brunswick Heads. The native Cyprus pines, streetscape and building form of this street hints entrance to a smaller coastal village set amongst estuaries and wetlands. Developments should connect with the street and look beyond just the basic provision of housing and transport aspects of Tweed Street to focus on the ways to creating an inviting, interesting and memorable vista:

·    through the retention of low set pitched roof housing

·    use of verandahs, porches and vertical windows and doors addressing the street

·    pockets of parking interspersed with paths, open space, seating and vegetation to encourage walkability and a slowing of vehicles

·    well blended planting of local indigenous trees and vegetation to create a visual connection to the estuaries and wetlands as well shade, shelter and ecological benefits

The subject site also fronts the northern Gateway to the town centre described as

Gateways: enhance as welcoming gateway feel to a seaside village - retaining wetland and esplanade vista, low scale & low intensity atmosphere and encouraging integrated street scaping.

Existing development surrounding the site is dominated by one and two storey development with a clear absence of three storey buildings, other than the art deco flats at 12 Fawcett Street (Broadview flats). In this regard, the design cue for Brunswick Heads is one and two storey buildings.

Specific criteria for the character, bulk and scale of development in the mixed-use areas are provided under Clauses E4.3.1 for the Business and Mixed Use Areas as follows:

a)      Land zoned B2 and B4 (along Tweed Street between Mullumbimbi and Booyun Streets) provides a safe, low traffic speed, pedestrian/cycle friendly environment that encourages outdoor dining and community activity in the street. Land zoned B4 along Tweed Street north of Mullumbimbi Street and south of Booyun Street provides a transition area between town centre business zones and residential areas. Development in this area uses setbacks, planting and design elements to contribute positively to village amenity and create a pedestrian/cycle friendly streetscape.

b)      New commercial and retail development is consistent with the requirements of Chapter D4 Commercial and Retail Development. Development is designed to enhance the low key, family-friendly, coastal village character, streetscape and scale of Brunswick Heads. Shop-top housing is encouraged.

c)      New development respects the north coast climatic conditions and adopts sustainable design principles. It incorporates footpath awnings and sun and rain protection for pedestrians. Landscaping is provided in accordance with the requirements of Chapter B9 Landscaping. Development respects heritage items and where relevant is consistent with Chapter C1 Non-Indigenous Heritage. It is compatible in design and character with its neighbours.

d)      No excavated parking basements will be permitted and additional vehicle footpath crossings will be discouraged in the B2 zone.

e)      Development applications must demonstrate that:

i) the character, bulk, scale, density, streetscape and landscape treatment of proposed development will be compatible with and will enhance the low-key, family-friendly, coastal village character, scale and streetscape of Brunswick Heads, its built environment and its surrounds;

ii) the proposed development will be consistent and compatible with the relevant characteristics and criteria described above in: 1. Natural Environment, 2. Residential Areas and 3. Business and Mixed Use areas inclusive.

iii) building materials, textures, finishes and colours will be compatible with and enhance the coastal village character and scale of Brunswick Heads, its built environment and its surrounds;

iv) where applicable the proposed development is consistent with the requirements of other provisions of this DCP, including but not limited to Chapters B9 Landscaping, C1 Non-Indigenous Heritage, D1 Residential Development in Urban and Special Purpose Zones and D4 Commercial and Retail Development.

Having considered the character narratives above, the proposal, whilst improved from that initially lodged, is not compatible with the low-key, family-friendly, coastal village character, scale and streetscape of Brunswick Heads, its built environment and its surrounds.

The proposed development provides a minimal setback to the northern and Fawcett Street boundaries which is exacerbated by the three storey elements along these facades.  Despite the improvements to design, the building is still expected to result in a dominating/overbearing presence on the streetscape.  There is a lack of landscaping, progressive setback of floors, compatible materials and design elements to adequately ‘soften’ the presentation of the proposed development.  It is not clear why development of a third storey has persisted considering it only comprises one complete guest room, four guest room lofts, and a series of roof terraces. As designed, the proposal is not considered to be in accordance with relevant provisions of Chapter E4 for Brunswick Heads.


 

4.5       Environmental Planning & Assessment Regulation 2000 Considerations

 

Clause

This control is applicable to the proposal:

I have considered this control as it relates to the proposal:

If this control is applicable, does the proposal comply?

92

Yes

Yes

A condition would apply if approved to ensure demolition to be undertaken in accordance with the relevant Australian Standard

93

No

N/A

N/A

94

Yes

Yes

Conditions would apply of approved  requiring partial upgrade to conform with building code recommended

94A

No

N/A

N/A


 

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

 

Impact on:

Likely significant impact/s?

Natural environment

No. The proposal will not have a significantly adverse impact on the natural environment of the locality.

Built environment

Yes.  As discussed above under the provisions of Byron DCP 2014, the proposed development is not compatible with streetscape and character of the locality and will adversely 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.

Construction Impacts

The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

 

4.7       The suitability of the site for the development

The site is not considered to be suitable for the development owning to the proposed built form being incompatible with streetscape and character of the locality. It is considered the proposal is an overdevelopment of the site in terms of height (number of storeys) and with insufficient car parking provided to cater for the development. 

 

4.8       Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited. Nine submissions were received objecting to the development.

Key issues raised in submission

Consideration

Impacts on privacy

Noted

Noise impacts

Noise impact assessment provided.

Modifications have been made to the plan to minimise the noise impacts of the development on neighbouring residential properties. These are discussed above.

No night management

Modifications have been made to the proposal to convert one of the guest rooms to a manager’s residence.  However, no further detail of the management of the development has been provided.

Density/character – overdevelopment

Three storeys and the solid and elevated fences/walls along the Tweed Street façade are out-of-character.

As discussed above under D3.3.6, D4 and E4 the proposed development is not compatible with streetscape and character of the locality.  Several submitters requested the building be restricted to 2 storeys to better fit with the existing streetscape character.

Use of vegetation rather than walls/solid fences for the restaurant and bar was also suggested.

Building height

The development complies with the building height limit but for a chimney.  As detailed above, a request to vary the building height limit for the chimney has been lodged and assessed.

Proximity of development to neighbours

Noted – the proposal is only 1.5 metres from the adjacent neighbour’s boundary

Car parking – impact on character of Fawcett Street, use of Council land for parking

Council’s Infrastructure Services Team provided approval for the request to use Council land for formalised car parking proposed by the development.

Car parking however remains deficient and is a reason for refusal

Flooding – impact on neighbouring properties from increase in site coverage, and impervious areas

Council’s Development Engineer is satisfied the development meets relevant flood planning requirements.

Floor space ratio calculation

The development complies with the relevant floor space ratio for the property.

Impact of lighting of neighbouring residential properties

Noted

 

4.9       Public interest

The proposed development is contrary to several planning requirements particularly relating to car parking, character and visual impacts without adequate justification.

Council resolved (Resolution 22-554) on 13/10/2022 to amend Chapter E4: Brunswick Heads of Byron DCP 2014 to give better effect, direction and clarity to the character narratives for the town. The draft provisions in red from that report under Section E4.3.1 Character, Bulk, and Scale of Development state:

 

Although not a technical matter for consideration like a proposed LEP amendment under Section 4.15 of the EPA Act 1979, the proposed development includes third storey elements and roof top areas making it inconsistent with these plan changes.  At the time of finalising this assessment report the DCP Amendments were being prepared to go on exhibition. In the event of an appeal to the Land and Environment court, assuming these provisions are finally adopted by Council would become matters of contention. 

Consequently, approval of the proposal would not be in the public interest, noting the various other issues and matters discussed above in the body of the report.

5.         DEVELOPER CONTRIBUTIONS

If the development is approved developer contributions would be levied including water and sewer headworks charges.

6.         CONCLUSION

The proposed development is deficient in car parking spaces and does not incorporate adequate landscaping.  However, the fundamental issue with the development application is that the proposal is not compatible with the streetscape and character of the locality particularly as:

·    It has three storey elements with all adjoining, neighbouring and surrounding buildings being a maximum of two stories.

·    Much of the development is finished with parapet walls, while most surrounding buildings have pitched/gable roofs.

·    Proposed building materials (i.e., coloured concrete and dry stone masonry) are not evident on any adjoining or neighbouring buildings.

The proposed development does not “reflect a low-scale, tourist-beach image” and is out of character with the “low key, family-friendly, coastal village character, streetscape and scale of Brunswick Heads”.

A significant re-design is required to address the incompatibility of the proposal with streetscape and character requirements for Brunswick Heads and consequently it is recommended that this development application be refused.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          13.3

Report No. 13.3     PLANNING - 10.2021.212.1 Temporay Use - Rural Function Centre at 36 Keys Road, Coorabell

Directorate:                         Sustainable Environment and Economy

Report Author:                   Patricia Docherty, Planner

File No:                                 I2022/892

Proposal:

Proposal description:

Temporary Use - Rural Function Centre

Property description:

LOT: 7 DP: 1091198

36 Keys Road COORABELL

Parcel No/s:

239749

Applicant:

Newton Denny Chapelle

Owner:

Rockinghorse Unity Pty Ltd

Zoning:

Part C2 Environmental Conservation / Part RU2 Rural Landscape

Date received:

3 May 2021

Integrated / Designated Development:

    Integrated

    Designated

    Not applicable

Concurrence required

Yes – CNR No.21804

Public notification or exhibition:

-    Community significant development and Level 2 advertising under Council’s Community Participation Plan.

-    Exhibition period: 12/5/21 to 1/6/21

-    Submissions received: 35 (28 Oppose & 7 Support)

-    Submissions acknowledged: Yes     No          N/A

Variation request to Development Standards under an EPI (e.g. clause 4.6)

Not applicable

 

Delegation to determine

Council

Issues

Number of submissions: 28 Object & 7 Support

It is noted that 7 written submissions include the support of longstanding adjoining neighbours that have no concerns about the proposal and welcome the introduction of regulations to manage and monitor events in rural areas.  3 of these submissions of support are from individuals who also declared their interest in the events industry. 

Notwithstanding, 28 written objections include submissions received from neighbouring residents and from the wider area of Federal, Coorabell and Goonengerry.  Objections raise concerns about the following potential impacts that are relevant matters for consideration:

·    Noise from outdoor events - impact on residents' rights to quiet enjoyment of their property & amphitheatre effect of topography.

·    Light impacts on rural dark sky and concerns events will illuminate valley in direct view of living and sleeping areas. 

·    Wildlife habitat - ecological assessment insufficient

·    Trial period:

Some suggest trial will occur at a time when Lots in Coorabell Springs (105 Keys Road) will still be vacant – period should be longer than 12 months as breaches and noise issues will be undetected - too late to have an impact on the trial

Others request that trial period should be shorter than 12 months to address non-compliance sooner

·    Traffic, safety & access including concerns about:

o private road surface

o guests will drive their private cars to the venue, parking on side of private road (Keys Road) and not use required mini-bus

o concerns about impeding Right of way/easement on Keys Road

o traffic will impact Coorabell Road safety, Federal Village and wider road network

o multiple truck movements to bring temporary structures to site

·    Lack of amenities

·    Proximity to Wilsons River & drinking water catchment - water quality

·    Compliance & monitoring of events

·    Cumulative uses on lot

·    Not "small scale and/or low impact‘

·    Insufficient community engagement & concerns the pre consultation document is a misrepresentation

·    Frequency of events not temporary

·    Venue will alter the character of the local area

·    NSW State Government agritourism legislation

Objections raised the following matters beyond the powers of the DA (ultra vires) and as such are not relevant matters for consideration in the particular circumstances of this temporary use proposal:

·    Affordable Housing

·    Concerns that the property will be sold

·    Financial liability of wear and tear on a shared private road

·    Should not be approved until the Federal Village Masterplan is completed

·    Previous compliance action not directly related to the proposal including concerns about unauthorised helicopters

·    Visual impact – not applicable to exempt development of temporary structures that do not require development consent

 

Relevant matters for consideration in this report are assessed as being satisfactory in the professional opinion of the relevant Council planner, ecologist, engineer and environmental health officer.  The recommendation for approval in this report has been made with regards to the likely impacts of the temporary use of part of the site for a rural function centre and subject to compliance with recommended conditions of consent including a trial period and substantiated complaints procedure.


 

Summary:

The DA proposes Temporary Use as a Rural Function Centre, which is permissible with consent under Clause 6.11 of Byron Local Environmental Plan (LEP) 2014. Plans are in Attachment 1 of this report.

Clause 6.11 Temporary use of land in Zone RU2 for purpose of function centre under Byron LEP 2014 permits temporary use of land for the purpose of a function centre:

·    that is compatible with the primary production potential, rural character and environmental capabilities of the land, and

·    for the occasional holding of events in rural areas that does not adversely impact the rural amenity, agricultural production, scenic or environmental values of the surrounding lands.

The temporary use clause allows for development consent to be granted within Zone RU2 Rural Landscape for the purpose of a function centre for a maximum period of 3 years from the date of consent.

Council being the consent authority must be satisfied that:

·    the development is not for the purpose of a convention centre, exhibition centre or for music festivals, and

·    the development is small scale and low impact, and

·    the development will not generate noise, traffic, parking or light spill that will significantly impact on surrounding residential areas, and

·    the development will not impair the use of the surrounding land for agriculture or rural industries, and

·    no more than 1 event will be held at the function centre on any one weekend, and

·    no more than 20 events will be held at the function centre in any period of 12 months, and

·    no more than 150 guests will be permitted to attend an event at the function centre at any one time.

The temporary structures proposed to be used for each event do not require development consent and the installation of temporary structures associated with the use of the property as a function centre will be in accordance with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, in force at time of each event.

Council staff have assessed the proposal with regards to potential impacts of the development including use of surrounding land for agriculture and rural industries and amenity of residential areas, ecological considerations and environmental health matters.  The DA was referred to the NSW Police and Rural Fire Service and their recommended conditions of consent have been included in the recommendation of this report.

Community consultation has been undertaken at pre lodgement stage by the applicant as required for community significant development as required by the Byron Shire Community Consultation Plan and was documented by the applicant.  The applicant’s pre consultation  document submitted with the DA is available for Councillors consideration at Attachment 3.  Formal public exhibition has occurred at Level 2 in accordance with the Byron Shire Community Participation Plan and relevant matters for consideration made in the public submissions have been considered. Full public submissions are available for Councillors consideration in Attachment 4.

It is considered that, subject to compliance with recommended conditions of development consent, the proposed temporary use of the land for a rural function centre meets the requirements of Byron LEP 2014 Clause 6.11 and other matters for consideration in accordance with the NSW Environmental Planning and Assessment Act 1979.

The application appropriately addresses the relevant constraints applying to the site, and is recommended for approval subject to the conditions listed in the Recommendation of this Report at Attachment 2.

 

NOTE TO COUNCILLORS:

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

 

  

 

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2021.212.1 for Temporary Use - Rural Function Centre, be granted consent subject to the conditions of approval in Attachment 2 of this report 

Attachments:

 

1        DA10.2021.212.1 Plans Temporary Rural Function Centre, E2022/95559  

2        DA10.2021.212.1 - Recommended conditions of consent, E2022/97931  

3        Confidential - DA10.2021.212.1  submisson received, E2022/100493  

4        Confidential - DA10.2021.212.1 Pre-lodgement Community Consultation_PAN-90848, E2021/63920  

5        DA10.2021.212.1 LUCRA revised final V4.0_AI-351741, E2022/30642  

 


 

Report

Figure 1:Locality Plan

Assessment:

1.   INTRODUCTION

History/Background

There has been a number of subdivision/boundary adjustments to enable creation of functional rights of way to service a number of properties.

Previous development history of the site is as follows:

Historial Parcel No. 37450 / LOT: 1 DP: 738086

Current Parcel:

 

The rural tourist facility and holiday cabins comprising dwelling/manager's residence, recording studio and associated infrastructure for 'Garage Band Holidays', to be constructed in four stages was approved 29 March 2012.  The approved plans are as follows:

 

Figure 2: Approved Plan DA 10.2011.538.1

 

The following two separate DA’s are currently under assessment, noting that DA 10.2022.305.1 was lodged following compliance investigation recently being undertaken:

Description of the proposed development

The application was lodged pursuant to Clause 6.11 of Byron Local Environmental Plan 2014 and seeks approval for the temporary use of the land for the purpose of a rural function centre for up to 20 events in any 12 months, with not more than 1 event on any given weekend and to operate for a 3 year period.

Functions on the site will involve three distinct phases:

• Phase 1 - Bump-in (1-2 days prior to function);

• Phase 2 – Function day; and

• Phase 3 – Bump-out (within 2 days of function).

The application states that up to 150 guests will be at each function and that whilst guests will move through various parts of the landscaped grounds in the vicinity of the dwelling and studio, it is expected that the main focus of the temporary use will be confined to the tennis court and cleared level area north-west of the tennis court as detailed in NDC Plans 2 and 3 (see Figures 2 and 3 below).

Figure 3:Site Overview

Figure 4:Site Layout Detail

Figure 4 illustrates where vehicles associated with the function will park. More than six spaces are available for private vehicles in close proximity to the studio to be utilised by the wedding party and guests. All other vehicles remaining on site during the function will park in the overflow area located east of the driveway access or within the existing designated staff parking area.

The proposed temporary function centre will operate in accordance with an Events Management Plan (EMP), which requires for all functions to engage an approved wedding or event planner who will be responsible for overseeing the operation of the function in accordance with the EMP.   The application states that future clients will be required to sign contracts to ensure each event operates in compliance with the EMP.

The EMP requires that vast majority of guests to the functions will be required to travel to or from the event via mini bus (coaster or the like). A small number of guests for whom this transport is not suitable (older persons or parents with young children) may access the site via taxi. The wedding party is permitted to access the site via private vehicle. All access associated with the operation of the function centre is to be obtained from the internal driveway which connects to Keys Road.

Functions will be held on a ‘pop-up’ basis, with all infrastructure required to support the event being transported to the site as required and includes items such as marquees, furnishings, catering equipment and portable toilets.

Functions will typically be held in the afternoon on weekends, with a focus on weddings. Wedding ceremonies typically commence no earlier than midday and then the reception follows.

The application states that the dwelling on the land will not be accessed by function guests (other than any guests staying in the dwelling).  A condition of consent is recommended to prohibit any guests staying in the main dwelling house / on-site manager’s residence (approved under DA 10.2011.538.1).   All amplified music must cease no later than 10:00pm and all attendees will be off-site no later than 11:00pm (other than those staying overnight on the premises in the approved tourist accommodation). Other functions (such as corporate events) will occur on a similar basis, with the exception of the ceremony component.

Description of the site

A site inspection was carried out on 8 July 2022

Land is legally described

LOT: 7 DP: 1091198

Property address

36 Keys Road COORABELL

Land is zoned:

C2 Environmental Conservation / PART RU2 Rural Landscape 

Land area is:

27.03 hectares

Property is constrained by:

 

Bushfire prone land; High Conservation Value; High Environmental Value. 

 

Is a BDAR required due to the location of the proposed development?

Yes* No

 

Are there any easements in favour of Council affecting the site?

Yes  No

 

Is there a Vegetation Management Plan which might affect the proposal?

Yes  No**

 

Is there a Voluntary Planning Agreement which might affect the proposal?

Yes  No

A Biodiversity Development Assessment Report (BDAR) was required due to parts of the site mapped on the Biodiversity Values Map in the vicinity of the old Tennis Courts and towards the edge of the C2 zoned land.  This is addressed by Council’s Natural Resources Planner in the Ecological Assessment under Section 2 of this report.

There is a VMP underway on the lot associated with the approved Multiple Occupancy on the eastern side of Keys Road.

Figure 5:  Zoning Map

Figure 6: Site photo - location of proposed larger temporary structures.

Figure 6: Tennis Court – location of proposed smaller temporary structures

Figure 7: Conservation Zone edge – not impacted by the proposal.

A BDAR was provided in response to a Council request for further information and has been assessed by Council’s Natural Resources Planner, summarised in Section 2 below.

2.   SUMMARY OF REFERRALS

 

Referral

Issue

Environmental Health Officer

No objections subject to conditions.

Development Engineer

No objections subject to conditions.

Building Surveyor

No objections subject to conditions.

S64 / Systems Planning Officer

No objections or conditions.

Natural Resource Planner

No objections subject to conditions.

Resource Recovery

No objections subject to conditions.

Rural Fire Service (4.14)

No objections subject to conditions.

Police

See Comments below.

 

NSW Police Requirements

In accordance with Development Application protocols established between New South Wales Police - Tweed Byron Police District & Byron Shire Council to facilitate Crime Prevention through Environmental Design (CPTED) principles. Tweed Byron Police District wish to make comment in relation to the above development application.

 

The ‘Proposal’ is for a pop-up events & functions centre to be situated on a rural property at 36 Keys Road, Coorabell NSW. Event/Function Frequency The ‘Statement of Environmental Effects’ proposes a maximum of 20 functions/events per year, also limits functions/events to 1 per weekend.

 

Whilst seeming modest Police are cautious of the development’s potential to negatively impact its neighbours with the proposed activities being untested/untried in a remote/rural setting. Should Council approve this development it is asked that conditions stipulating event/function frequency be imposed.

 

Condition: The sale, supply and/or consumption of liquor shall be prohibited, unless an appropriate ‘Liquor Licence’ is in force.

 

Condition: ‘Events/Functions’ shall be limited to a maximum of twenty (20) per year & not more than one (1) event/function per week.

 

Condition: A register specifying the event/function type, date, trading hours & expected patron numbers shall be kept on the premise at all times. This register must be immediately produced to Council Inspector and/or Police Officer on request.

 

Condition: The Proponent must provide Council and Local Police District Commander with written notice of any event/function at least seven (7) days prior. This notice must specify event/function type, date, trading hours & expected patron numbers.

 

Hours of Operation

The ‘Statement of Environmental Effects’ indicates events/function will commence midday 12:00pm & conclude by 10:00pm (‘commence no earlier than midday, all amplified music ceases no later 10:00pm’). Again, Police are cautious of the negative impacts (particularly noise & traffic) the proposal presents. Should Council approve this development it is asked that a condition stipulating the hours of operation be imposed.

 

Condition: ‘Hours of Operation’ shall be 12:00pm until 10:00pm seven (7) days, hours of operation shall be reviewable after twelve (12) months of operation.

 

Venue Capacity

The ‘Statement of Environmental Effects’ indicates patron capacity shall be limited to one hundred & fifty (150). Police are not opposed to this capacity, however asks that Council ensures adequate amenities/toilets, car parking spaces etc are available to cater for such patron numbers.

 

Condition: ‘The maximum number of patrons permitted on the venue at any one time shall not excess one hundred & fifty (150).’

 

Entertainment & Noise Emissions

 

‘Statement of Environment Effects’ indicates entertainment/amplified music shall ceases no later than 10:00pm. Considering the development’s locality (isolated/rural setting) & potential to disturb the quiet and good order. Police suggest conditions denoting permitted types/styles of entertainment & standard noise pollution conditions be imposed.

 

Condition: Entertainment shall be restricted by type - the type of entertainment permitted shall be restricted to acoustic soloists & duos and/or low background amplified music only.

 

Condition: ‘The LA10* noise level emitted from the premises shall not exceed the background noise level in any Octave Band centre Frequency (31.5Hz - 8kHz inclusive) by more than 5dB between 07:00am and 12:00 midnight at the boundary of any affected residence.

 

Notwithstanding compliance with the above, the noise from the premises shall not be audible within any habitable room in any residential premises between the hours of 12:00 midnight and 07:00 am.’


 

Building Inspector

Council's Building inspector has commented:

No details on the size of the any temporary structures associated with this proposal. Assumed the temporary structures will be limited to the exempt development provisions of the Codes SEPP in force at time of each event otherwise a separate DA/CDC will be required for the temp structures.

Response: Applicant confirmed that any proposed structures, being a marquee, portable toilets and possibly a platform / stage, will meet the exempt provisions of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). In particular, Subdivision 1, Subdivision 6 and Subdivision 8 of Division 3 - Temporary Uses and Structures Exempt Development Code of the Codes SEPP.

Natural Resources Planner Ecological Assessment

Flora

The following broad vegetation classes/types are mapped across the site:

·    Subtropical rainforest – isolated patches in varying conditions across the site.

·    Derived camphor laurel forest – much of this has been cleared since the mapping was undertaken, and some has been regenerated to early stage native subtropical rainforest.

·    Planted sclerophyll – noted as including Eucalyptus microcorys.

The site contains patches of high value lowland rainforest and several individuals of the threatened plant species Hicksbeachia pinnatifolia. There is also at least one individual of Acalypha species ‘Big Scrub’. This species has not yet been formally named but should be listed as threatened. A comprehensive vegetation survey was not carried out on the site.

Much of the camphor laurel-dominated areas have been cleared since the mapping was undertaken. Some, but not all, of this area has been subject to bush regeneration works associated with the existing VMP.

Land on the site is identified on the Biodiversity Values Map, including part of the proposed temporary function area (Figure 8 in this report).

Fauna

Threatened fauna species recorded in the surrounding area include many Phascolarctos cinereus (koala) and Ptilinopus magnificus [a type of fruit dove].

Figure 8: Biodiversity Values Map

Figure 9: High Environmental Value mapping.

The proposal was assessed using the streamlined (small area) module of the Biodiversity Assessment Method. The BDAR stated that the proposal does not require any clearing of native vegetation but elsewhere refers to clearing of approximately 1900 m2. It states this is in an area which has been previously cleared and it is presumed that this was part of the derived camphor laurel forest that was cleared in recent years. This appears to be supported by the plot data but the plot location and area of cleared land are not mapped in the BDAR. Despite this lack of information, it appears that the proposal as described in Illustration 9.1 (shown in Figure 10 in this report below) is within already established garden areas with a mown understorey or existing tennis court. It therefore appears there would be minimal direct biodiversity impacts.

Figure 10: Proposal footprint (as depicted in BDAR)

 

The most notable biodiversity impacts would likely be the increased traffic movements during functions which could potentially result in additional vehicle strike on fauna, as well as the increase in artificial noise and light impacts. The BDAR proposed the following mitigation measures:

It is recommended that all these measures are implemented. It is understood that the Traffic Management Plan conditioned in the Engineering Referral will include requirements for low speed limits in the site. The Environmental Health Referral included a recommended condition for an Events Management Plan to include the Noise Management Plan.

Additionally, there is a separate DA currently under assessment for an additional dwelling site and conversion of an approved MO to a CT, which will include a condition for a new five-year Vegetation Management Plan (VMP). Although beyond the powers of this particular DA, the separate VMP is considered to constitute an improvement to the biodiversity values of the site (including by improving habitat connectivity within the broader landscape) and provides some compensation for the cumulative impacts of development on the site, including the proposed temporary function activities.

The BDAR was also referred to the Biodiversity and Conservation Division of the NSW Department of Industry and Environment (DPIE) who provided the following recommendations:

Recommended conditions, to the extent where applicable to the temporary function use are included in the attachment to this report.  The VMP is a separate matter and is being addressed under the separate application for community title subdivision and modification to the approved multiple occupancy on the same lot:

 

The most notable biodiversity impacts would likely be the increased traffic movements during functions which could potentially result in additional vehicle strike on fauna, as well as the increase in artificial noise and light impacts. The BDAR proposed mitigation measures. 

 

State Environmental Planning Policy (Koala Habitat Protection) 2020

The BDAR included a section addressing the Koala SEPP 2020 (note: this SEPP has been consolidated into the Biodiversity and Conservation SEPP 2021). It determined that no potential koala habitat is present on the site:

 

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 2019’. 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

 

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.

State Environmental Planning Policies (SEPP)

Consolidated SEPPs 2021

Considerations

Satisfactory

Unsatisfactory

Biodiversity and Conservation SEPP 2021

Consideration:

The BDAR included a section addressing the Koala SEPP 2020 (note: this SEPP has been consolidated into the Biodiversity and Conservation SEPP 2021). It determined that no potential koala habitat is present on the site:

 

Resilience and Hazards SEPP 2021

Consideration:

Chapter 4 Remediation of Land

Preliminary Contaminated Land investigation reports provided with previous DA’s concludes remediation and validation are required and a satisfactory validation report has been provided (Council Record # E2022/40719) 

 

 

Primary Production SEPP 2021

Consideration: The proposed development is suitably clustered in a location close to existing buildings that does not undermine the overarching purpose of the site for agricultural use and avoids impacts on native vegetation and biodiversity.   The remainder of the site is available for agricultural purposes and the proposed use would not restrict viability of the site for agriculture.   It is noted that at the time Chapter 2 of this SEPP was made, Schedule 1 State significant agricultural land (Section 2.8) was blank.

It is further noted that the site is identified as regionally significant farmland* on the Northern Rivers Farmland Protection Project Final Map 2005 (Section 117(2)Direction), prepared by the NSW Government.

Source: map-queensland-northern-rivers-farmland-protection-project-final-map-section-117-2-direction-2-of-4-2005.pdf (nsw.gov.au)

*site marked with an X above.

The site is also mapped* on the draft State Significant Agricultural Land (SSAL) Map exhibited from 1 Nov 2021 till 31 Jan 2022:

 

Source: SSAL | Social Pinpoint (mysocialpinpoint.com)

*site marked with an X above.

The proposed development is not inconsistent with the relevant aims and objectives of the SEPP, as follows—

(a)  to facilitate the orderly economic use and development of lands for primary production,

(b)  to reduce land use conflict and sterilisation of rural land by balancing primary production, residential development and the protection of native vegetation, biodiversity and water resources,

(c)  to identify State significant agricultural land for the purpose of ensuring the ongoing viability of agriculture on that land, having regard to social, economic and environmental considerations...

(e)  to encourage sustainable agriculture

 

It is considered that Byron Shire LEP 2014 permits the proposed uses and Council, being the consent authority can be satisfied that the temporary use does not undermine the viability of land for primary production subject to the development operating in compliance with recommended conditions of consent.

 

 

 

4.2                    Byron Local Environmental Plan 2014 (LEP 2014)

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

(a)     The proposed development is defined in the LEP 2014 Dictionary as function centre (subject to provisions under Clause 6.11 Temporary use of land in Zone RU2 for purpose of function centre);

(b)     The land is within the Part C2 Environmental Conservation / Part RU2 Rural Landscape according to the Land Zoning Map;

(c)     The proposed development is permissible with consent in accordance with Clause 6.11 Temporary use of land in Zone RU2 for purpose of function centre; and

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

Zone Objective RU2 Rural Landscape

Consideration

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

The temporary use is not inconsistent with the objectives of the zone. 

The temporary use of the land for occasional events will be subject to conditions of consent and management measures to ensure the use will be consistent with the rural character of the land and is consistent with Clause 6.11 of the Byron LEP 2014 to allow holding of events in rural areas that does not adversely impact the rural amenity, agricultural production, scenic or environmental values of the surrounding lands.

Note. All temporary structures are Exempt development that do not require development consent and these structures do not form part of the development consent being sought from Council, being the consent authority.

•  To maintain the rural landscape character of the land.

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

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

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

The remaining checked clauses have been taken into consideration in the assessment of the subject development application in accordance with Section 4.15 of the EP&A Act. The proposed development complies with all clauses of LEP 2014 including Clause 6.11 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

6.5 Drinking Water catchments

The proposal will not have an adverse impact on the drinking water catchment from effluent disposal runoff, solid and liquid waste generations, or from the storage and use of chemicals.

6.6 Essential Services

The proposal has adequate access to the local road network and all necessary services to service the development.

6.11   Temporary use of land in Zone RU2 for purpose of function centre

(1)  The objectives of this clause are to ensure that—

(a)  development is compatible with the primary production potential, rural character and environmental capabilities of the land, and

(b)  development for the occasional holding of events in rural areas does not adversely impact the rural amenity, agricultural production, scenic or environmental values of the surrounding lands.

(2)  Despite any other provision of this Plan, development consent may be granted for development on land within Zone RU2 Rural Landscape for the purpose of a function centre for a maximum period of 3 years from the date of consent.

(3)  Development consent must not be granted to development for the purpose of a function centre on land within Zone RU2 Rural Landscape unless the consent authority is satisfied that—

(a)  the development is not for the purpose of a convention centre, exhibition centre or for music festivals, and

(b)  the development is small scale and low impact, and

(c)  the development will not generate noise, traffic, parking or light spill that will significantly impact on surrounding residential areas, and

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

(e)  no more than 1 event will be held at the function centre on any one weekend, and

(f)  no more than 20 events will be held at the function centre in any period of 12 months, and

(g)  no more than 150 guests will be permitted to attend an event at the function centre at any one time.

 

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

To some extent the proposed agritourism provisions under the exempt and complying development codes which will come into force on December 1 2022 could apply in the RU2 zone to enable events or functions which meet the definition of farm experience premises for 100 guests as exempt or complying development up to 52 times a year.

As the events patron capacity exceeds 100, development consent would be required in this instance.

 

4.4 Byron Shire Development Control Plan 2014 (DCP 2014)

Chapter B1 Biodiversity

The Biodiversity Development Assessment Report (BDAR) submitted by the applicant included a section addressing Chapter B1 of the DCP, noting that the proposal does not meet some of the prescribed ecological setbacks, including for the following ecologically significant areas:

·    Threatened Ecological Communities (TECs)

·    Over-cleared vegetation types and over-cleared landscapes

·    Areas within a fauna habitat corridor

A variation was requested for these non-compliances, with the following justification:

The variation was assessed by Council’s Natural Resources Planner and is considered to be generally reasonable provided the mitigation measures provided in the BDAR are implemented.  The BDAR proposed the following mitigation measures:

It is recommended that all these measures are implemented. It is understood that the Traffic Management Plan conditioned in the Engineering Referral will include requirements for low speed limits in the site. The Environmental Health Referral included a recommended condition for an Events Management Plan to include the Noise Management Plan (which is contained within the Land Use Conflict Assessment to be approved under recommended condition of consent no.1.  A copy of the LUCRA is in Attachment 5 of this report.

Chapter B3: Services

The site is serviced by road access and power.   All events will require the installation of portable toilets for ablution purposes. All catering and food preparation will be brought on the site for each event.  A NSW Health approved private water supply quality assurance program (or drinking water management system) must be approved. The existing on-site sewage management systems (OSMS’s) are not to be used for any other purpose than that approved i.e. waste water generated by the proposal has to be managed offsite.

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

Council Development Engineer has assessed the proposed temporary use:

The site has ample space to accommodate parking without spilling outside the development site. The site currently has a well establish access and internal circulation roadway. The site has ample space to accommodate coach parking site. There is ample space within the site to accommodate a forward entry and exit. There is ample space within the site to accommodate a forward entry and exit of an MRV Vehicle for loading of equipment.

The conclusion in the submitted Road Efficiency Assessment and Road Safety Assessment is considered satisfactory “the risk level at the intersection will not increase as a result of the proposed development”

Parking is assessed as follows:

Parking Provision

•        8 spaces provided in accordance with AS2890.1:2004.

•        informal parking area situated at the opposite side of the road

•        Staff Parking

•        2 x bus turnaround area

Parking Analysis

No of Persons = 150

Minibus

      = 22-person capacity x 6 trips

      = 132 people

Private Vehicle

      = 8 cars x 1.5 capacity

      = 12 people

Taxi

      = 5 trips x 1.5 capacity

      = 8 people

Total = 152

There is ample area for overflow parking on the opposite side of the road within the lot.

 

Chapter B5: Buffers and Minimising Land Use Conflict

A revised Land use conflict risk assessment dated 28 March 2022 provided by the applicant in response to a Request for Further Information by Council is considered to be satisfactory and the LUCRA including management measures is recommended for approval in condition 1 of this report. The revised LUCRA considers impacts of lighting.

Chapter B8: Waste Minimisation and Management

All waste generated by catering is to be removed from the site by caterer.

Chapter C4: Development in a Drinking Water Catchment

The proposal will not result in any major earthworks or activities likely to affect the nearest watercourse (Wilson River).  It is an offence under the provisions of the Protection of the Environment Operations Act 1997 to act in a manner causing, or likely to cause, harm to the environment. Anyone allowing material to enter a waterway or leaving material where it can be washed off-site may be subject to a penalty infringement notice (“on-the-spot fine”) or prosecution.  Erosion and sediment controls are recommended as part of the conditions of consent including the temporary structures must not redirect the flow of any surface water or ground water, or cause sediment to be transported, onto an adjoining property, and other standard erosion and sediment controls are recommended to apply,  as required.

Chapter D9 Rural Function Centres

Section D9.4 Provisions

 

D9.4.1 Site Suitability

Objective

1. To ensure that rural functions and/ or events are held on sites that are suitable to such activities, particularly in relation to the ability to avoid or manage disturbance to the amenity of the neighbourhood.

Performance Criteria

1. Use of the property for functions and/ or events will not result in offensive or intrusive noise at neighbouring residences.

2. The local road network has the capacity to accept the additional traffic associated with function and/ or event use at the site without compromise to safety or efficiency.

3. Functions or events at the site will not result in land use conflicts with neighbours, particularly in respect of local farming activities.

 

Consideration of Prescriptive Measures:

Development consent must not be granted for a function centre unless the consent authority is satisfied that:

 

All comply in some cases subject to compliance with recommended conditions of consent.

1. the proposal is supported by a site specific acoustic assessment, prepared by a suitably qualified person, quantifying existing background noise levels and noise levels predicted for functions and/ or events in relation to all nearby dwellings, and demonstrating that the use of the property for functions and/ or events will not result the generation of offensive noise, as defined in the Protection of the Environment Operations Act 1997

Complies. 

Noise Impact Assessment Proposed Rural Function Centre Lot 7 DP1091198 No 36 Keys Road, Coorabell Revised Final V2.0 prepared by Tim Fitzroy & Associates, dated 13 April 2021 (Council Record #E2021/63918)

2. a Traffic Impact Assessment has been prepared, addressing traffic numbers, impact on local roads, access and on-site parking, demonstrating that the use of the site for a function centre will not result in unacceptable adverse impacts on the safety or efficiency of local traffic or the amenity of the neighbourhood

Complies.

Traffic Impact Assessment for the proposed Rural Function Centre, prepared by Rytenskild (Ref: 20286), dated 10 December 2020. (Council Record #E2021/63916)

 

3. a Land Use Conflict Risk Assessment has been prepared demonstrating that the use of the site for a function centre will not result in any land use conflict in relation to adjoining or nearby farming activities or preclude future farming activities

Complies.

Land Use Conflict Risk Assessment Proposed Rural Function Centre Lot 7 DP1091198 No 36 Keys Road, Coorabell Revised final, prepared by Tim Fitzroy & Associates, dated 28 March 2022 (Council Record #E2022/30642)

Identifies: The area comprises predominantly rural lifestyles properties. The closest commercial agribusiness containing cattle beef grazing is located some 240 metres to the north east of the closest point of the proposed rural function centre.

Conditions apply related to biosecurity requirements to be included in every contract for events.

4. no clearing of native vegetation is required for the development;

Complies.

No clearing of vegetation is required.

Note. The site is mapped on the Biodiversity Values Map. The applicant provided a Biodiversity Development Assessment Report Temporary Rural Function Centre: 36 Keys Road, Coorabell 4252-1001 Version 1, prepared by David Havilah Biodiversity Accredited Assessor (BAAS18129) of GeoLink Consulting Pty Ltd  dated 15/06/2022 (Council Record #E2022/55667)

 

5. the function centre is not located in or immediately adjacent to areas of high Aboriginal cultural heritage significance.

Complies.

The SEE states that An AHIMS Search completed in November 2020 did not identify any items of Aboriginal Cultural Heritage on or in the vicinity of, the subject site. A more recent  AHIMS search confirms site including a buffer of 1 km is not known to be located in or immediately adjacent to areas of high Aboriginal cultural heritage significance. 

D9.4.2 Management of Functions and Events

Objective

1. To ensure that functions and events held on approved sites do not disturb the amenity of the neighbourhood.

Performance Criteria

1. Use of the property for functions and/ or events will not result in offensive or intrusive noise at neighbouring residences.

 2. Functions and/ or events at the site will not result in land use conflicts with neighbours, particularly in respect of local farming activities.

 

Consideration of Prescriptive Measures

 Applications for development consent for a temporary use of land for a function centre must include an Events Management Plan, which contains (as a minimum) provisions that:

Draft Events Management Plan provided minimum provisions. A Final EMP is required to be approved by council prior to the first event.

1. provide for all function/ event guests (other than the bridal party) to be transported to and from the site by bus, suitable to the road network to be utilised for transportation to the site; and

Complies. Condition recommended.

Noted All guests are to arrive by mini bus (with provision to be made for a small number of guests to arrive via taxi (such as elderly and/or families with small children).

2. ensure that all amplified music will cease no later than 10:00pm; and

Complies. Condition recommended.

3. ensure that all attendees will be off-site no later than 11:00pm, other than those staying overnight on the premises; and

Complies. Condition recommended.

4. outline measures that will be in place to ensure predicted noise levels are not exceeded at nearby dwellings; and

Complies. Noise impact assessment also provided.  Noise management included in LUCRA. Condition recommended.

5. provide for the monitoring of noise generated at functions and/ or events and annual compliance reporting to Council; and

Noise management included in LUCRA. Complies. Condition recommended.

6. provide for the notification of nearby residents, including contact details for an appropriate management person who must be on-site and contactable during each function and/ or event and provision of a sign, located so that it can be viewed from a public space outside of the property notifying the name and contact phone number of the management person; and

Complies.  Condition recommended.

7. ensure that adequate arrangements are in place to manage wastewater and general waste for each function and/ or event; and

Complies. Portable toilets to be installed at each event.

8. manage the potential noise/ amenity impacts associated with any persons staying overnight at the site at the conclusion of the function/ event; and prohibit the use of fireworks, helicopters and/or other comparable activities known to cause disturbance to livestock and/or farming activities.

Complies.  Overnight guests only to comply with any approved tourist accommodation.  Conditions recommended to address this and prohibit the use of fireworks, helicopters and/or other comparable activities known to cause disturbance.

In deciding whether to grant consent for a temporary function centre, the consent authority must consider:

1. the maximum number of functions and/ or events permitted in any calendar year; and

2. the potential loss of farming on the property, particularly where part or all of the site is mapped as State and / or Regionally Significant Farmland; and

3. the potential impact on areas of environmental value, whether on the property the subject of the function centre or on adjacent and nearby land, including koala habitat; and

4. whether a trial period is appropriate; and

5. the need for a biosecurity management plan.

A condition of approval will be applied for all development consents for a function centre in Zone RU2 specifying that development consent would cease if three substantiated complaints were received in relation to functions and/ or events at the site within a twelvemonth period

 Complies:

1.   No of events limited to 20 per calendar year. Condition of consent requires: Events/Functions shall be limited to a maximum of twenty (20) per year & not more than one (1) event/function per week. No more than one (1) event will be held at the function centre on any one weekend (Friday to Sunday). Only one (1) function can occur at any given time

2.   The site is mapped on the 2036 North Coast Regional Plan as Important Farm land and on council mapping as regionally significant farm land (farmland Protection S117.. The proposal does not involve any permanent works that would impede the potential  use of the land for farming. The LUCRA submitted with the application has considered the potential impacts of the development. (Attachment 5 of this report) The proposal will not result in loss of farming.

3.   There are parts of the property mapped as C2 Environmental Conservation  No vegetation is required to be removed as a result of the proposed temporary use. No works are proposed on land mapped C2 and there will be no direct or indirect impacts on vegetation or habitats.  There is no Koala Habitat or potential Koala Habitat likely to be affected by the development.

4.   A review period of 12 months is recommended in the conditions of consent.

5.   There is no need for a biosecurity management plan. Detailed conditions of consent require patrons to remain within the vicinity of the approved development and must not enter another property The nearest operating farm is 220 metres from the property according to the submitted Land Use Conflict Risk Assessment.

Other

 Condition of consent is recommended that development consent would cease if three substantiated complaints were received in relation to functions and/ or events at the site within a twelve month period.

 

 

 

 

 

4.5  Environmental Planning and Assessment Regulation 2000

 

Applicable to the proposal:

Considered the control as it relates to the proposal:

If this control is applicable, does the proposal comply?

Clause 92 - Additional matters that consent authority must consider

 

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 93 Fire safety and other considerations

 

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 94 - Consent authority may require buildings to be upgraded

 

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 94A - Fire safety and other considerations applying to erection of temporary structures

 

Yes   No

Yes  No

NA 

Yes  No

NA 

* Non-compliances and any other significant issues discussed below

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

4.6.1

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.

Construction Impacts

The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

4.7 The suitability of the site for the development

The site is a serviced, unconstrained property and is suitable for the proposed development subject to recommended conditions of consent.

4.8 Submissions made in accordance with this Act /Regs

The development application was publicly exhibited.  There were 35 submissions made on the development application:

-     7 For

-     28 Against

Issues raised are addressed in the body of this report and in the attached recommended conditions of consent. Summarised below:

Issue raised

Consideration

Noise from outdoor events - impact on residents' rights to quiet enjoyment of their property & amphitheatre effect of topography.

Noise assessment and management measures in the LUCRA recommended for approval must be complied with at all times. 

Light impacts on rural dark sky and concerns events will illuminate valley in direct view of living and sleeping areas

Light management measures have been addressed and recommended conditions of consent require each event to manage lighting to avoid impacts on residents, agricultural activities and wildlife habitat.

Wildlife habitat - ecological assessment insufficient

A detail Biodiversity Development Assessment has been prepared and assessed as satisfactory by Council’s Natural Resources Planner.

Trial period:

Some suggest trial will occur at a time when Lots in Coorabell Springs (105 Keys Road) will still be vacant – period should be longer than 12 months as breaches and noise issues will be undetected - too late to have an impact on the trial,

Others request that trial period should be shorter than 12 months to address non-compliance sooner

The recommended trial period is in accordance with Byron DCP 2014 and supported by NSW Police and Council staff. Conditions recommended.

Traffic, safety & access including concerns about:

·    private road surface

·    guests will drive their private cars to the venue, parking on side of private road (Keys Road) and not use required mini-bus

·    impeding Right of way/easement on Keys Road

·    traffic will impact Coorabell Road safety, Federal Village and wider road network

·    multiple truck movements to bring temporary structures to site

The traffic impacts including safety, frequency and types of vehicles have been assessed by Council’s development engineer and are considered to be satisfactory subject to compliance with recommended conditions of consent.

Lack of amenities

All ablution facilities must be brought onto the site for each event and removed for off site waste to be removed.  Conditions recommended.

Proximity to Wilsons River & drinking water catchment - water quality

The site of exempt temporary structures is more than 130 metres distance to the river and not in proximity to the riparian zone. Erosion and sediment controls are recommended as part of the conditions of consent including temporary structures must not redirect the flow of any surface water or ground water, or cause sediment to be transported, onto an adjoining property, and other standard erosion and sediment controls are recommended to apply,  as required.

Compliance & monitoring of events

Noise and anti-social behaviour complaints are a matter for NSW Police.

Otherwise, people can ring council’s general number and lodge non-life threatening compliance complaints.

If the complainant considers the issue to be an urgent (life threatening) event they can flag this on the out of hours number at Council and calls are directed accordingly.

Non urgent compliance complaints can be submitted to pes@byron.nsw.gov.au

Council enforcement staff will investigate any non-compliance of events .

Cumulative uses on lot

The site history of approvals detailed in the background section to the report has been considered.  The occasional temporary use is not considered to be incompatible with the approved uses on the lot, subject to conditions of consent.

Not "small scale and/or low impact‘. Frequency of events not temporary

The Byron LEP and DCP prescribes controls that must e met to be considered small scale and low impact.  The proposal is in accordance with the applicable strategic planning policies and controls to permit temporary use of the site for a rural function centre up to 20 times per year for a maximum 150 patrons.

Insufficient community engagement & concerns the pre consultation document is a misrepresentation.

The applicant undertook pre lodgement consultation as required under Byron Shire Community Participation Plan for Community Significant Development.  This is documented in Attachment 3 of this report.  All public submissions are also attached to this report for Councillors consideration (Attachment 4).

Venue will alter the character of the local area

The proposal does not require consent for proposed temporary structures as these are exempt development.  The temporary use of the site for occasional events is not considered to alter the rural character of the site or surrounding areas.

NSW State Government agritourism legislation

This is considered in section 4.3 of this report.  In summary, agritourism provisions under the exempt and complying development codes which will come into force on December 1 2022 could apply in the RU2 zone to enable events or functions which meet the definition of farm experience premises for 100 guests as exempt or complying development.

It is understood however that uses must be undertaken on land that is a primary production business as defined under the Income Tax Assessment Act 1997 (Cth), or which is rated ‘farmland’ by the council under the Local Government Act 1993. The site is not rated farmland and the events patron capacity exceeds 100, therefore development consent is required.

In general, it is considered that events that occur under these provisions are much more likely to result in the potential impacts raised by the community. Exempt and complying developments are beyond the powers of Council, are not required to be publicly exhibited or assessed by Council and will be subject to minimal restrictions to manage potential impacts.

 

Objections raised the following matters beyond the powers of the DA (ultra vires) and as such are not relevant matters for consideration in the particular circumstances of this temporary use proposal:

·    Affordable Housing

·    Concerns that the property will be sold

·    Financial liability of wear and tear on a shared private road

·    Should not be approved until the Federal Village Masterplan is completed

·    Previous compliance action not directly related to the proposal including concerns about unauthorised helicopters

·    Visual impact – not applicable to exempt development of temporary structures that do not require development consent

 

Relevant matters for consideration in this report are assessed as being satisfactory in the professional opinion of the relevant Council planner, ecologist, engineer and environmental health officer.  The recommendation for approval in this report has been made with regards to the likely impacts of the temporary use of part of the site for a rural function centre and subject to compliance with recommended conditions of consent including a trial period and substantiated complaints procedure.

 

4.9                    Public interest

The proposed development is unlikely to prejudice or compromise the public interest or create an undesirable precedent subject to compliance with recommended conditions of consent including a trial period and substantiated complaints procedure.

5.   DEVELOPER CONTRIBUTIONS

5.1                    Water & Sewer Levies

No Section 64 levies will be required. The site is not connected to Council water and sewer.

5.2                    Developer Contributions

Cost of works (capital investment value) is less than $100,000.  Therefore, no Section 7.12 Levy will be payable.

6.   DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes No

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes No


 

7.   CONCLUSION

The DA proposes Temporary Use - Rural Function Centre.

The proposed development is satisfactory having regard to 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 the conditions of consent.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          13.4

Report No. 13.4     PLANNING - DA 10.2022.36.1 - Tourist and Visitor Accomodation Comprising 12 Holiday Cabins and Ancillary Recreation Building

Directorate:                         Sustainable Environment and Economy

Report Author:                   Ben Grant, Planner

File No:                                 I2022/1296

Proposal:

DA No:

10.2022.36.1

NSW PP

PAN-191829

Proposal description:

Tourist and Visitor Accommodation comprising of Twelve (12) Cabins and Ancillary Recreation Building

Property description:

LOT: 2 DP: 1007622

72 Lawlers Lane BANGALOW

Parcel No/s:

229440

Applicant:

Town Planning Studio Pty Ltd

Owner:

Mr R Mamone

Zoning:

RU1 Primary Production / PART RU2 Rural Landscape

Date received:

14 February 2022

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: 1 March 2022 to 14 March 2022.

-    Submissions received: Twenty (20) objections.

-    Submissions acknowledged: Yes     No          N/A

Estimated cost of works

$1,338,000

Delegation to determine

Council

 

Summary:

This development application seeks consent for twelve (12) tourist and visitor accommodation cabins (five with swimming pools), ancillary recreation building, earthworks, roads, associated infrastructure, and environmental enhancement works on a rural property at 72 Lawlers Lane, Bangalow.

The application was notified and advertised for a period of 14 days between 26 April 2022 to 9 May 2022 in accordance with the Byron Shire Community Participation Plan. Twenty (20) submissions were received during the notification period objecting to the proposed development. The application is referred to the Council for determination due to number of submissions received and the perceived public interest in the proposal.

The proposed development raises a number of significant issues, primarily relating to the scale of the development and potential impact on the character and amenity of the surrounding area.

In summary, key issues include:

·        Inconsistency with Clause 6.8 of Byron LEP 2014 which provides that rural tourism can only be approved if it is small scale and low impact. Small scale is defined in the LEP as “a scale that is small enough to be generally managed and operated by the principal owner living on the property”.

·        Inconsistency with Byron DCP 2014, Chapter D3 Tourist Accommodation, Parts D3.2.3 and D3.3.4. In particular, Part D3.2.3 calls up Chapter 7 Byron Rural Settlement Strategy 1998 which limits holiday cabins to a maximum of 6 per property. This maximum number of cabins is a long-standing convention of Councils and a recent proposal at Montecollum for 8 cabins was reduced back to 6 cabins following a S8.2 review of determination.   

·        Inconsistency with Byron DCP 2014 Chapter B10 in relation to the maximum depth of excavation.

·        Potential amenity and land use conflict issues associated with noise and spray drift.  

For reasons discussed further in the body of this report, the proposal is considered to be excessive in scale and fails to comply with Council’s standard approach to limit rural tourist accommodation to no more than six holiday cabins per property. The applicant was invited to amend the development application but did not take up that opportunity.

Twelve tourist accommodation cabins, in combination with a large recreation building (and a potential future function centre), is inconsistent with what Council recognises as small-scale rural tourism. The development application is therefore recommended for refusal on the grounds listed in the Reasons for Refusal in the recommendation below.

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:

It is recommended that pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2022.36.1 for Tourist and Visitor Accommodation comprising Twelve (12) Cabins and Ancillary Recreation Building, be refused for the following reasons:

1.      The application is not satisfactory having regard to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979 because the proposed development is incompatible with the Objectives of the RU2 Rural Landscape zone given the proposal is not small scale and will adversely affect the rural landscape character of the land.

2.      The application is not satisfactory having regard to Section 4.15 (1)(a)(i) of the Environmental Planning and Assessment Act 1979 as the proposed development does not comply with the requirements of Clause 6.8 Rural and nature-based tourism development in Byron Local Environmental Plan 2014. The proposed development is not considered to be low scale or low impact and is not complementary to the rural and environmental attributes of the land given the excessive scale and density of the proposal. 

3.      The application is not satisfactory having regard to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, because the proposed development fails to satisfy the Performance Criteria and Objectives of Byron DCP 2014, Parts D3.2.3 and D3.3.4.

4.      The application is not satisfactory having regard to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, because the proposed development fails to satisfy the Performance Criteria and Objectives of Byron DCP 2014, Part B14.2 Excavation and fill in all zones and Clause 6.2 Earthworks of Byron LEP 2014. The depth and extent of earthworks is likely to detract from the existing and future character, and amenity of the surrounding rural area.

5.      The application is not satisfactory having regard to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposed development fails to satisfy Byron DCP 2014, Chapter B8 Waste Minimisation and Management. Insufficient information has been provided to demonstrate how waste can be stored and collected from the development in an efficient and orderly manner.

6.      The application is not satisfactory having regard to Section 4.15(b) of the Environmental Planning and Assessment Act 1979, insufficient information has been provided to demonstrate that the development is capable of operating without adversely affecting the amenity of the area as a result of noise.

7.      The Application is not satisfactory having regard to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979 as the development is not in the public interest because the proposed development is inconsistent with the provisions of Byron Local Environmental Plan 2014 and Byron Development Control Plan 2014 which have been the subject of extensive community consultation. Approving the application in such circumstances is likely to set an undesirable precedent.

Attachments:

 

1        DA10.2022.36.1 Reasons for refusal, E2022/100889  

2        DA10.2022.36.1 Architectural Plans, E2022/101796  

3        Confidential - DA10.2022.36.1 Submissions, E2022/102072  

 

 

Report

Assessment:

1.   INTRODUCTION

1.1     History relevant to the development application

A search of Council records identified the following determinations for the property:

·        10.2000.61.1 – Development Consent for a dwelling and shed Issued 20 April 2000.

·        10.2003.81.1 – CDC for a swimming pool issued 10 June 2003.

1.2     Compliance actions

Several moveable dwellings were transported to the property in April 2021. The landowner advised Council that the buildings would be used as part of a forthcoming development proposal. No further action was taken at the time.

1.3     Further information

Council requested further information in relation to landscaping, public art, visual impact, water supply and other matters relating to the scale of the development on 24 June 2022. Additional information was received addressing some of these matters on 11 August 2022.

1.4     Description of the proposed development

This application seeks approval for twelve (12) tourist and visitor accommodation cabins (five with swimming pools), ancillary recreation building, earthworks, roads, associated infrastructure, and environmental enhancement works. The Statement of Environmental Effects states on page (8) that the landowner may potentially seek a separate approval for the use of the recreation building as a rural function centre in the future.

The following is proposed in detail:

(1)     Twelve rural tourist cabins

Construction of twelve (12) tourist cabins located in a circular cluster around a central facility building. Each cabin will be single storey with a floor area of ~40m2 and will contain one-bedroom, open plan kitchen/dining room plus a combined bathroom/laundry. Five of the cabins of the northern side of the facility will have swimming pools.

 

(2)     Central facility building

A central recreation building that is intended to be ancillary to the tourist and visitor accommodation. The building has a floor area of 512m2 and contains a large central recreation space with toilet facilities and storage spaces on the eastern and south-western wings. As noted in the SEE, the building has been designed to potentially cater for rural functions and events in the future subject to development consent being obtained.

 

(3)     Earthworks, roads, and ancillary infrastructure

A new internal access road and bus turnaround facility will be constructed to provide vehicular access, along with earthworks, ancillary infrastructure, and a new on-site sewage management facility.

 

(4)     Environmental enhancement works

A Vegetation Management Plan has been submitted to restore approximately five hectares of Camphor laurel dominated forest to subtropical rainforest and control exotic and invasive species.

Map

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Figure 1: Site plan extract illustrating the development layout.

Diagram, engineering drawing

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Figure 2: North elevation of central facility building.

Diagram

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Graphical user interface

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Figure 3: Elevations of the proposed cabins.

 

 

 

Diagram

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Figure 4: Floor plan of proposed cabin with swimming pool.

1.4   Description of the site

A site inspection was carried out on 28 April 2022

Land is legally described

LOT: 2 DP: 1007622

Property address

72 Lawlers Lane BANGALOW

Land is zoned:

RU1 Primary Production / PART RU2 Rural Landscape

Land area is:

36.07 hectares

Property is constrained by:

 Bushfire Prone Land, High Environmental Value Vegetation

 

Is a BDAR required due to the location of the proposed development?

Yes  No

 

Are there any easements in favour of Council affecting the site?

Yes  No

 

Is there a Vegetation Management Plan which might affect the proposal?

Yes  No

 

Is there a Voluntary Planning Agreement which might affect the proposal?

Yes  No

 

The site is a 36-hectare property located 2km south of Bangalow township, situated in a rural area characterised by grazing land, orchards, and rural dwellings on lots with varying size and area.

The western half of the property is covered by a mixture of Camphor Laurel dominated regrowth rainforest, while the westerns side contains cleared pasture.

Existing development comprises a single storey dwelling house, sheds, and a swimming pool. The site is surrounded by several macadamia and fruit orchards and a handful of residential dwellings on small lots between 1 to 2 acres in size.

An aerial view of a city

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Figure 4: Aerial image of the site.

Photo 1: View of the site, looking north-west.

A picture containing grass, outdoor, sky, tree

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Photo 2: View of the site, looking north-east towards Bangalow.

A dirt road lined with trees

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Photo 3: View of Lawlers Lane.

A picture containing grass, outdoor, tree, sky

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Photo 4: Existing mobile buildings to be used as cabins.

 

2.   SUMMARY OF REFERRALS

Referral

Issue

Environmental Health Officer

Council’s Environmental Health Officer commented that additional information was required in relation to noise impacts and waste management if the application was to be approved.

Development Engineer

Council’s Development Engineer commented that the proposal was acceptable on engineering grounds. Should the application be approved, conditions are recommended to seal Lawlers Lane for 20 metres past the property boundary to reduce the effect of dust and noise on nearby residences.

Rural Fire Service (s4.14)

Referral returned with no comment. The proposal was not located on bushfire prone land at the time of lodgement and a Bush Fire Safety Authority is not required.

3.   SECTION 4.46 INTEGRATED DEVELOPMENT

At the time of lodgement, the western half of the property was identified as bush fire prone land on the Byron Shire Bushfire Prone Land Map. The eastern half of the property containing the proposed development and existing dwelling house was not identified as bushfire prone land.

As lodged, the proposal does not require a Bush Fire Safety Authority given the cabins, access road and all associated infrastructure are not directly located on bush fire prone land. The application was referred to the NSW RFS for advice under s4.15 of the Act however the RFS returned the referral and declined to comment.

Further consideration of bushfire hazard is addressed in Section 4.6 of this report.

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.

State Environmental Planning Policies (SEPP)

Considerations

Satisfactory

Unsatisfactory

State Environmental Planning Policy (Resilience and Hazards) 2021

Chapter 4 Remediation of land

Council’s Environmental Health Officer commented that the site was previously assessed for contamination during the assessment of DA 10.2000.61.1. Based on the previous assessment it is concluded that the site is suitable for the proposed tourism use in its current state and does not require remediation. It is noted however that soil testing around the envelope of the development has not been undertaken.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Chapter 3 Koala habitat protection 2020

Section 4 of the Vegetation Management Plan included a flora survey to determine the vegetation communities present on the site.

A field survey identified only one vegetation community, being Camphor Laurel dominated regrowth rainforest. The upper, middle, and lower stratum of the tree component of this vegetation community comprise less than 15% koala feed tree species listed in schedule 1 of the SEPP.

In accordance with ss. 3.6 and 3.7 of this policy, the site is not considered to be a potential or core koala habitat.

4.2A     Byron Local Environmental Plan 2014 (LEP 2014)

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

(a)     The proposed development is defined in the LEP 2014 Dictionary as tourist and visitor accommodation and central recreation facility being ancillary to tourist and visitor accommodation.

(b)     The land is zoned part RU1 Primary Production and part RU2 Rural Landscape. The proposed development is located entirely in the RU2 zone.

(c)     The proposed development is permitted with consent; and

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

 

Zone Objective RU2 Rural Landscape

Consideration

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

The proposed development does not achieve the zone objectives for the following reasons:

·     The proposed development does not involve ‘small scale’ rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality.

·     The design and siting of the proposal does not protect the scenic landscape and scenic qualities of the locality.

·     The proposed development may inhibit agricultural operations of neighbouring macadamia orchards due to insufficient buffers needed for spray drift.

To maintain the rural landscape character of the land.

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

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

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

Part 4 – Principal Development Standards

Provision

Compliance

Comment

4.3 Height of Buildings

Yes

A maximum height of 9m is permitted.

A height of 4m is proposed for the cabins.

A height of 8.98m is proposed for the central facility building.

Part 6 – Local Provisions

Provision

Compliance

Comment

6.2 Earthworks

 

Yes, subject to conditions of consent

The site is separated from downstream watercourses by approximately 500m and the proposed earthworks are unlikely to have a detrimental impact on soil stability or drainage patterns in the area.

Not withstanding the level of earthworks proposed is excessive and

Clause 6.5 Drinking water catchments

 

Yes

The development and associated wastewater system will be located approximately 600m from Byron Creek and will not have an adverse impact on the quality or quantity of water entering the drinking water storage.

Clause 6.6 Essential services

 

Yes, subject to conditions

Adequate services can be made available to the development subject to conditions of consent. The proposed vehicular access is adequate for the development.

Clause 6.8 Rural and nature-based tourism development

 

No

The proposed development does not comply with the requirements of Clause 6.8 for the following reasons:

·     The development is not small scale and low impact. Twelve tourist accommodation cabins, in combination with a large recreation building (and a potential future function centre), cannot be reasonably managed by the principal owner living on the property.

·     The scale of the development could potentially constrain agricultural operations on neighbouring properties, particularly fruit and macadamia orchards that need large buffers to spray pesticides.

·      The excessive scale and density of the development, combined with the extensive excavation and filling required for the building pads, access road and bus turn-around bay will result in a built form that is not complementary to the rural character or environmental attributes of the land.

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

There are no draft EPIs that apply to the proposal.

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

Chapter B1 Biodiversity

Provision

Compliance

Comment

B1.1.5 Biodiversity Planning Principles

B1.2.1 Development Envelope Controls

Yes

The proposed development is located on cleared land, with nearby vegetation comprising mostly Camphor laurel and other non-native weed species. The development footprint is clear of any ecological ‘red flagged areas’ such as threatened ecological communities, wetlands, or old-growth forest.

A vegetation management plan has been provided in accordance with the requirements of Part B1.2.5.

Chapter B3 Services

Provision

Compliance

Comment

B3.2.1 Provision of Services

Water supply

Yes, subject to conditions

Potable water for the cabins will be provided via 3 20kL rainwater tanks located in the subfloor of the central facility building. If Council resolves to approve the application, it is recommended that at least 120kL of tank storage be provided.

B3.2.2 On-site Sewage Management

Yes

The application proposes tertiary wastewater treatment via three separate AWTS systems and a Taylex ABS 5000 system for the proposed amenities building.

The proposed irrigation field will be located ~60m from the nearest gully and ~ 600m from Byron Creek.

The site is capable of accommodating wastewater from the proposed tourist facility.

Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access

Provision

Compliance

Comment

B4.2.1 Traffic Impact

Yes, subject to conditions

Council’s Engineer assessed traffic generation at a rate of 0.4 Peak Hour Trips (PHT’s) and 3 Daily Vehicle Trips (DVT’s) per holiday cabin. Total traffic for the development is estimated to be 36 DVT’s and 4.8 PHT’s.

The use of the recreation building for any separate purpose was not assessed.

Traffic generated by the proposal is likely to have a low impact on the surrounding road network (in terms of its capacity to accommodate increased traffic) but could generate direct environmental impacts from increased dust and noise, particularly on the unsealed section of road at the western end of Lawlers Lane.

Council’s Development Engineer noted that the unsealed section of Lawlers lane should be upgraded to meet the requirements of the Northern Rivers Local Government Design and Construction Guidelines which specifies a 6.0m wide seal and 1.0m wide shoulder.


 

Chapter B6 Buffers and Minimising Land Use Conflict

Provision

Compliance

Comment

B6.2.2 Conflict Risk Assessment (CRA)

Yes

A Land Use Conflict Risk Assessment (LUCRA) has been submitted in accordance with the provisions of Part B6.2.2.

Findings of the report are discussed below.

B6.2.4 Buffers

Yes, subject to conditions

The proposed cabins will have a 90m buffer from a neighbouring stone fruit plantation to the east.

In accordance with B69.2.4, a LUCRA was submitted due to non-compliance with the 200m recommended buffer between horticulture and rural tourist accommodation.

Spray drift from the neighbouring stone fruit orchard was identified as the main potential land use conflict and was given a risk rating of 9 out of 25 on the risk ranking matrix (i.e., medium risk). Other issues such as noise, dust and odour were given low risk ratings of between 1 and 4 out of 25.

To manage the risk of spray drift, the report recommends the following precautionary measures be employed, including:

·     Retain vegetation on the eastern boundary.

·     Undertake additional planting on the eastern boundary.

·     Use first flush divertors on all tanks if roof water is collected.

·     Use a filtration system for all drinking water.

·     Use a drinking water quality assurance program to be prepared and approved by Council of NSW health for the site.

·     Establish neighbourly communication.

Council’s Environmental Health Officer generally agreed with the finding of the report noting that the main risk for guests is contamination of drinking water and this would need to be addressed through the use of first flush devices and water filtration systems.

It is further noted that reducing the scale of development and/or location development further from neighbouring farms would be a preferred outcome for managing land use conflict in this location.

Chapter B9 Landscaping

Provision

Compliance

Comment

B9.2.2 Landscape Plans for Development Applications

Yes, subject to conditions

A concept landscaping plan was submitted with the applicant’s further information on 11 August 2022.

Chapter B8 Waste Minimisation and Management

Provision

Compliance

Comment

B8.4.3 Tourist Accommodation and Commercial and Retail Development

Further information required

A waste management plan was submitted with the application.

Council’s Environmental Health Officer commented that further information was required in relation to the amount of general and recyclable waste generated by the proposed development as well as details of the waste storage container points and how waste collection vehicles will service the site.


 

Chapter B14 Excavation and Fill

Provision

Compliance

Comment

B14.2 Excavation and Fill in all Zones

 

 

 

No

Prescriptive measure B14.2(1) limits excavation and fill to a maximum depth of 1m.

The civil engineering plans indicate that ~1700m2 of excavation is proposed up to 2.6m in depth for the access road and bus turn around bay.

The depth and extent of earthworks is likely to detract from existing and design future character of the surrounding rural area and is therefore inconsistent with the Performance Criteria and Objectives of Part B14.2. 

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

Provision

Compliance

Comment

C3.2.1 Visual Impact Assessment

No

A Visual Impact Assessment was provided in the applicant’s further information.

The VIA addressed most of the requirements of Part C3.2.12 but did not include any photomontages or illustrations of the proposed development in situ as required by Prescriptive Measure 4.

Such information is necessary to properly understand the potential  impact of the proposal on the surrounding landscape.


 

Chapter D3 Tourist Accommodation

Provision

Compliance

Comment

D3.2.1 Location and Siting

 

Yes

The subject property comprises a mix of cleared farmland and regrowth vegetation including Camphor laurel and native rainforest species.

The proposed development is not located near any ecologically sensitive areas or areas with high environmental values.

D3.2.3 Character and Design in Rural Zones

 

No

The proposed development fails to satisfy the Performance Criteria and Objectives of Part D3.2.3 for the following reasons:

1.    The scale and density of development is inconsistent with the character and amenity of the surrounding rural and natural landscape, and with development in the locality.

2.    The development is not low scale and is inconsistent with the relevant Aims, Guiding Principles, Best Practice Guidelines and Performance Standards contained in Chapters 7 and 8 of the Byron Rural Settlement Strategy 1998.

In particular:

 

·      The proposal is inconsistent with the overall objective for Chapter 7 which seeks to encourage a ‘low scale’ form of rural tourist accommodation.

·      The proposal is inconsistent with Guideline 2 which provides that no more than six (6) holiday cabins may be constructed within the site area.

·      The proposal does not incorporate centralised carparking but instead provides Individual carparking for each cabin off a loop road.

·      Insufficient information has been provided to demonstrate that the proposal will not detract from the rural character of the surrounding landscape. A Visual Impact Statement was provided however there are no photomontages or illustrations of the development to properly assess the impacts of the proposal.

D3.3.4 Rural Tourist Accommodation and Farm Stay Accommodation

·       

No

The proposed development fails to satisfy the Performance Criteria and Objectives of Part D3.3.4 for the following reasons:

1.   The proposal detracts from the rural and natural character of the locality.

2.   The development is not low scale and is not designed and located to be compatible with the surrounding rural environment.

Chapter D8 Public Art

Provision

Compliance

Comment

D8.2.1 Provision of Public Art

Yes

The applicant submitted a Planning Agreement for public art with their further information. Conditions would apply f the application was to be approved.

 


 

4.5     Environmental Planning & Assessment Regulation 2000 Considerations

Clause

Compliance

Comment

Clause 61 Additional matters that consent authority must consider

N/A

No demolition is proposed.

Clause 62 Consideration of fire safety

N/A

A change of use is not proposed.

Clause 64 Consent authority may require upgrade of buildings

Yes

The existing dwelling does not require upgrading.

 

4.6     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

The scale and density of the development, combined with the extensive excavation and filling required for the building pads, access road and bus turn-around bay will result in a built form that is not complementary to the rural character or environmental attributes of the land.

Social Environment

No. The proposal will not have a significant social impact on the locality.

Economic impact

No. The proposal will not have a significant economic impact on the locality.

4.7     The suitability of the site for the development

The site characteristics are not suitable to support a rural tourism development of the scale proposed. The site may be capable of supporting a smaller tourist development of six cabins or less subject to conditions of consent.

4.8     Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited and notified for a period of 21 days in accordance with Byron DCP 2014. There were 12 submissions made on the development application. Issues raised in the submissions have been summarised and assessed in the table below.

Issue

Comment

Traffic generation and road condition

Lawlers Lane does not cope with the existing level of traffic and is in constant need of repair.

The increased traffic along Lawlers Lane, particular from buses would adversely affect the condition of the lane and would affect safety for road users. There is also a problem of dust contamination of water tanks of surrounding homes.

Visitors may park on the verge outside the property and in front of neighbouring properties.

The turn off from Hinterland Way into Lawlers Lane occurs between two blind bends and is already dangerous. Often cars will tailgate as you are required to brake heavily from 80kph to 30 kph to make the 90-degree turn.

Council’s Development Engineer recommended that the unsealed portion of Lawlers Lane, up to the property boundary, by upgraded and sealed to reduce environmental impacts on surrounding residences from noise and dust should the application be approved

Noise

Any noise from the development will be exacerbated by the topography of the land, its situation within the Bangalow valley and the sensitive peaceful nature of the surrounding area.

The use of the central facility building as a recreation or function centre will produce a substantial increase in noise.

Noise from said development, especially stage 2 with weddings and other events will badly impact neighbours and (especially) at night as noise travels throughout the lane and surrounds.

Inevitably, people will spill over from the recreation facility back to the cabins with pool side parties running long into the night. This will be difficult to enforce as Council and police are not available late at night or on weekends in rural areas of the Shire. Having a manger on site will not stop that scenario eventuating.

Noted

Visual impact

12 cabins and a function centre seem excessive relative to the size of the land and its elevated location above a scenic valley. The buildings will be highly visible across the valley.

 

Acknowledged. The proposed development will be visible in views from Lismore Road and the southern end of Bangalow.

Security and safety

Issues around security and trespass have not been addressed.

Trespassing is considered a low risk given the location of the cabins and lack of clear access to neighbouring land.

Excessive scale – overdevelopment of site

Twelve cabins and a function centre is an overdevelopment of the site. The existing dwelling is also used for short-term rental accommodation.

The proposal of 12 cabins, together with those staying in the existing house, could potentially result in as many 30 persons arriving in Lawlers Lane on the weekend. This is greater than the number of people that actually live in the lane. If a wedding is held this number could swell to as many has 150 persons.

An enterprise of this scale is neither considered small, low impact or complementary to the rural environment and locality and as a result is non-complying. It is inconsistent with the provisions of LEP Clause 6.8.

Agreed. The scale of the proposal does not comply with the requirements of LEP Clause 6.8 which requires development to be small scale and low impact.

The proposal is inconsistent with Councils standard requirements for a maximum of Six cabins.

Previous unauthorised activity

The site has allegedly been used for unauthorised weddings and there were noise complaints.

No evidence of previous compliance actions was identified in Council’s records in relation to weddings. It is acknowledged however that the property is currently advertised online for weddings and tourist accommodation.

Drinking water catchment

The headwaters of Byron Creek are near this property. A development of this scale poses a risk of contamination to the water catchment.

The proposal involves ecological restoration of the riparian corridor feeding into Byron Creek. The proposed OSMS has adequate separation distance from the creek to avoid adverse impacts on the drinking water storage.

Impacts on wildlife

Koalas have been observed on this property using it as a movement corridor. Koalas recently listed as endangered species.

The impact on animals and birdlife will be severe due to the amount of noise, people, cars and lights. At present we see wallaby, koalas, many species of birds, echidna, lizards, snakes, brush turkeys and bandicoot.

Koalas are known to existing within the Bangalow area however this property is not identified as potential or core koala habitat.

Undesirable precedent

An excessive development of this scale would set an undesirable precedent. The maximum amount of past approved cabins is 7 and this proposal is nearly double this figure.

 

Agreed. Approving the application in its current form is likely to set an undesirable precedent.

Rural amenity

Lawlers Lane is a quiet, rural environment. The proposal is considered likely to have a significant adverse impact on the rural amenity of the locality due to increased traffic and noise.

Noise and dust impacts from traffic are a concern. Council’s Development Engineer commented that the Lawlers Lane should be sealed to the property entrance should the application be approved.

Public interest

A development of this scale that does not comply with the planning rules is not in the public interest and should be rejected.

Approving the proposal in its current form would be likely to set an undesirable precedent and is not in the public interest.

Buffers and land use conflict

There is only 90 meters between the eastern most cabin and the custard apple plantation which requires spray. Lawlers Lane has many and varied agricultural pursuits which have been operating in the lane for many years. These pursuits employ numerous people in the area and provide income to the area. It would be wrong for an approval to be given which curtails these activities.

We air spray up to 6-7 times per year using highly poisonous insecticides and fungicides. This is an unavoidable and essential part of maintaining a pest and disease-free orchard even though we are now utilising regenerative farm practices. Spraying is conducted preferably in the evenings between sundown and about midnight (to protect pollinators) and we are careful to manage drift of the sprays and sound. 

 

We note the planning guidance states that dwellings should not be approved within 200m from an orchard which is sprayed. With respect this guideline does not take into account the high powered air spraying machinery and spray patterns utilised to spray trees which are up to 15m tall.

Council’s Environmental Health Officer did not raise specific objections to the proposal in relation to land use conflict but noted that first flush devices and water treatment would be required for the facility should it be approved.

Inconsistent with strategic vision for rural tourist accommodation

The proposed development does not reflect the vision of the Byron Shire council as
communicated in their Residential Strategy dated Dec 2020, as it contravenes:

a.    Policy 4 “Make our neighbourhoods local” - by proposing a large resort style development in a rural/residential area

b.    Priorities guiding the strategy’s development by “managing tourism in a way that has a positive impact for locals”.

Proposed planning controls will limit bedrooms to eight and cabins to four. This proposal is inconsistent with the intended strategic planning for the area.

It is acknowledged that the proposal is inconsistent with Council’s likely future planning controls for rural tourist accommodation. Refer to Part 4.6 of this report for further discussion.

 

Further Council is drafting controls to further limit cabins back to a maximum of four.

Characterisation

The recreation facility for which approval is sought seems to be a precursor to a further application to run this facility as a wedding venue. That possibility is disclosed in the proposal and gives clear insight into the Applicant’s future intentions.

 

The SEE states that the recreation building may potentially be used as a wedding venue/function centre in the future subject to obtaining approval for such a use.

Location

The resort is located on a ridge above Bangalow town, which is ~4 km away and therefore too far to walk, especially up the steep incline that is the Hinterland hwy.

There is no public transport and Ubers and taxis are already very difficult to get.

Acknowledged. The facility will only be accessible by bus or private vehicle.

 

4.9     Public interest

The proposal is substantially non-compliant with Council’s planning controls for rural tourist accommodation which have been the subject of significant community consultation. Approval of the development application in its current form would be contrary the public interest.

Consideration of Council resolution 20-691

At the Planning Meeting of 10 December 2019, Council resolved (20-691) to prepare new planning controls for rural tourist accommodation as follows:


 

20-691 Resolved that Council:

1.       Requests staff to prepare a planning proposal to amend Byron Local Environmental Plan 2014 and a draft amendment to Byron Development Control Plan 2014, to accord with the recommendations of the Review of Planning Controls for Rural Tourist Accommodation in Attachment 1 (E2020/94209).

2.       Authorises staff to submit the planning proposal to the Department of Industry and Environment for Gateway determination.

3.       Pending gateway determination, undertakes public exhibition of the planning proposal and development control plan amendment and consult with government agencies as required by the gateway determination; and

4.       Receives a report outlining the public exhibition outcomes.

5.       Supports the use of the amendments in point 1 as drafted by staff as guiding principles for assessment of Rural Tourist Accommodation until such time as the amendments are finalised.

6.       Requests staff to complete a review of the current developer contributions regime as it applies to Rural Tourist Accommodation and receive a report on the outcomes.

Point 5 of the resolution requires Council planning staff to use to the recommendations of the Council report as a guideline in the assessment of development applications for rural tourist accommodation. A summary of the proposal against the report recommendations is given below.

Recommendation

Proposal

Maximum 4 accommodation buildings and 8 bedrooms.

Inconsistent. The proposal is for 12 cabins with 12 bedrooms in total.

Minimum lot size 20 hectares

Consistent. Lot size is ~36 hectares.

Clearer controls for clustering of cabins

Generally consistent. The proposed cabins are arranged in a cluster pattern with an average diameter of approximately 80m.

Traffic Impact Statement for >3 cabins.

Inconsistent. A Traffic Impact Statement was not provided. Council’s Development Engineer commented that the unsealed portion of Lawlers Lane would need to be sealed and upgraded to reduce dust and noise impacts.

Improved requirements for water supply and rainwater storage.

Consistent. The proposal includes rainwater harvesting and storage for the cabins.

Single driveway per development

Complies. The site is accessed by a single driveway.

The proposal is inconsistent with two of the key amendments outlined in the Council report, particularly in relation to the scale and density of development. Given the scale of the proposal and the extent of non-compliances with the current planning framework, approval of the application in its current form would be contrary to the public interest.

5.   DEVELOPER CONTRIBUTIONS

5.1     Water & Sewer Levies

The site is not connected to reticulated water or sewer services. Section 64 levies are not required.

5.2     Developer Contributions

The development is commercial in nature and has a cost of more than $100,000. Section 7.12 Contributions will be payable should the application be approved.

6.   DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes No

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes No

 

2.   CONCLUSION

The proposal is considered excessive in scale and fails to comply with Council’s adopted planning controls that generally limit rural tourist accommodation to no more than six holiday cabins per property. Twelve tourist accommodation cabins, in combination with a large recreation building (and a potential future function centre), is of a scale that cannot be reasonably managed by the principal owner living on the property and is likely to have an adverse impact on the character and amenity of the surrounding area if approved.

The development application is therefore recommended for refusal on the grounds listed in Attachment 1.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          13.5

Report No. 13.5     PLANNING - Report of the Planning Review Committee held 6 October 2022

Directorate:                         Sustainable Environment and Economy

Report Author:                   Shannon Burt, Director Sustainable Environment and Economy

Noreen Scott, EA Sustainable Environment and Economy

File No:                                 I2022/1424

Summary:

This report provides the outcome of the Planning Review Committee (PRC) held on 6 October 2022.

NOTE TO COUNCILLORS:

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

  

 

RECOMMENDATION:

That Council endorses the outcomes of the Planning Review Committee meeting held on 6 October 2022.

 

Report

The Planning Review Committee meeting was held on 6 October 2022.  The meeting commenced at 12.10pm and concluded at 12.35pm.

Councillors: M Lyon (Mayor), A Hunter, A Pugh, P Westheimer S Ndiaye, D Dey.

Apologies: Nil

Staff: Shannon Burt (Director Sustainable Environment and Economy)

Conflict of Interest: None declared

The following development applications were reviewed with the outcome shown in the final column.

DA No. /

Applicant

Property Address /

Proposal

Consultation /

Submissions

Reason/s /

Outcome

10.2021.699.1

Mrs L Hancock

441 Federal Drive

FEDERAL

Use of Structure as a Secondary Dwelling

Level 1

8/12/21 to 11/1/22

 

4 submissions against

Staff Delegation

DA No. /

Applicant

Property Address /

Proposal

Consultation /

Submissions

Reason/s /

Outcome

10.2022.372.1

Planners North

61 Bayshore Drive

BYRON BAY 

Small Festivals - Craft Beer & Cider comprising two (2) year trial period with a maximum of three (3) festivals in each twelve (12) month period

Level 2

13/10/22 to 26/10/22

Staff Delegation

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          13.6

Report No. 13.6     PLANNING - 10.2021.752.1 - Demolition of Existing Dual Occupancy and Ancillary Structures, New Dual Occupancy (Attached), Two (2) Swimming Pools, Removal of Two (2) Trees and Strata Subdivision - 140 Alcorn Street, Suffolk Park

Directorate:                         Sustainable Environment and Economy

Report Author:                   Dylan Johnstone, Development Investigations Lead

File No:                                 I2022/1436

Proposal:

DA No:

10.2021.752.1

NSW PP

PAN-168854

Proposal description:

Demolition of Existing Dual Occupancy and Ancillary Structures, New Dual Occupancy (Attached), Two (2) Swimming Pools, Removal of Two (2) Trees and Strata Subdivision

Property description:

LOT: 14 SEC: 5 DP: 11632

140 Alcorn Street SUFFOLK PARK

Parcel No/s:

1860

Applicant:

Ms R Heath

Owner:

Mr D N & Ms M A Randerson

Zoning:

R2 Low Density Residential

Date received:

25 November 2021

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: 09/12/21 to 12/01/22

-    Submissions received: 3

-    Submissions acknowledged: Yes     No          N/A

Other approvals

N/R

W & S (68)

OSMS (68)

ST (68)

RA (138)

Other:

 

Variation request to Development Standards under an EPI (eg clause 4.6)

Clause 4.6 – LEP 2014 Clause 4.1E Minimum lot size for Dual Occupancy (attached)

 

Delegation to determine

Council

Issues:

·    Clause 4.6 variation to minimum lot size for Dual Occupancy Clause 4.1E LEP 2014

·    Existing consent rights

Summary:

This development application seeks consent for the demolition of existing dual occupancy (attached) and ancillary structures, new dual occupancy (attached), two (2) swimming pools, removal of two (2) trees and strata subdivision. The application proposes a variation to a development standard in accordance with clause 4.6 Byron LEP. The development standard to be varied is the minimum lot size of 800 square metres for a dual occupancy (detached) in zone R2 Low Density Residential prescribed by clause 4.1E. The subject lot has an area of 698 square metres which represents a 12.75% variation and any variation greater than 10% must be determined by Council.

The application was advertised and notified between 9 December 2021 to 12 January 2022 in accordance with the Byron Community Participation Plan and three (3) submissions were received from the public, primarily about redeveloping the site for a larger dual occupancy, overshadowing, car parking, colour scheme and privacy. The proposal however is considered acceptable subject to conditions of consent including lowering one of the dwellings by 600 mm and the use of a matt colour scheme to limit reflectivity.

The application is recommended for approval subject to the conditions listed in Attachment 4.

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:

Demolition of Existing Dual Occupancy and Ancillary Structures, New Dual Occupancy (Attached), Two (2) Swimming Pools, Removal of Two (2) Trees and Strata Subdivision, be granted consent subject to the conditions in Attachment 4 (#E2022/101359).

Attachments:

 

1        DA10.2021.752.1 - Plans, E2022/101458  

2        DA10.2021.752.1 - Variation request, E2022/101354  

3        Confidential - DA10.2021.752.1 - Submissions, E2022/102042  

4        DA10.2021.752.1 - Recommended conditions, E2022/101359  

 

Map

Description automatically generated with low confidence

                               

Assessment

1.      INTRODUCTION

History/Background

BA 68/2065        Two flats (Dual Occupancy)                         Approved           31/12/1968

BA 72/2129        Storage shed             Approved           27/10/1972

10.2008.744.1 – Demolition of existing dual occupancy development and the erection of a new dual occupancy development with associated tree removal and strata subdivision - approved by Council 09/04/09

Note 10.2008.744.1 included an objection to the development standard set by Clause 17(5)(b) of Byron LEP 1988 that the area of an allotment for a Dual Occupancy must be no less than 800m2. This application also included an objection to the maximum floor space ratio (FSR) of 0.5:1 permitted by Clause 17(6) of LEP 1988 (the application proposed a FSR of 0.54:1). Both of these objections to development standards were approved at the Ordinary Council meeting on 9 April 2009.

Elevations of previously approved Dual Occupancy under DA10.2008.744.1

New Proposal not dissimilar to previous approval.

 

Description of the proposed development

This application seeks approval for Demolition of Existing Dual Occupancy and Ancillary Structures, New Dual Occupancy (Attached), Two (2) Swimming Pools, Removal of Two (2) Trees and Strata Subdivision

The application proposes demolition of an existing single storey dual occupancy development built in the late 1960’s and existing ancillary structures located in the rear yard.

The proposed new Dual Occupancy (attached) consists of two two-storey dwellings containing three bedrooms each.

The construction materials include colour bond roofing, a combination of metal (white metal cladding for one dwelling and black metal cladding for the second dwelling) and timber batten wall cladding constructed on concrete slab floors.

Artist Impression of the proposal

Each dwelling includes a swimming pool and spa in the rear yard.

The application also proposes the removal of two trees (a juvenile fig and a dead tuckeroo)  to facilitate the development. The trees appear to be landscaping trees that have been planted and are not mapped as having any ecological significance.

The application includes Strata subdivision of the finished dual occupancy therefore the development consent, if approved, will be for a staged consent with the strata title not to be undertaken prior to the issue of an occupation certificate.

Description of the site

The subject site has an area of 698m2 and is located on the western side of Alcorn Street, Suffolk Park. The lot is a regular rectangular configuration with a 17m road frontage. The site is relatively flat and abuts a landlocked Council road reserve to the west.

The site contains an existing dual occupancy that was constructed in the late 1960’s in accordance with approval BA 68/2065. Existing vegetation consists of planted landscaping.

Surrounding development to the north, south and west is residential in nature with a mix of dwelling houses and dual occupancy. There are no known covenants or restrictions on use affecting the property currently.

The land is subject to coastal erosion risk and acid sulfate soils but is not mapped as bushfire prone or flood prone land.

Figure 1: Aerial photo with land zoning overlay. Subject property identified by yellow polygon

A picture containing outdoor, tree, sky, ground

Description automatically generated

Figure 2: Existing Dual Occupancy viewed from Alcorn Street looking West

Land is legally described

LOT: 14 SEC: 5 DP: 11632

Property address

140 Alcorn Street SUFFOLK PARK

Land is zoned:

R2 Low Density Residential

Land area is:

698.1 m2

Property is constrained by:

 

Acid Sulfate Soils Class 3

Coastal Erosion Precinct 3    

 

Is a BDAR required due to the location of the proposed development?

Yes  No

 

Are there any easements in favour of Council affecting the site?

Yes  No

 

Is there a Vegetation Management Plan which might affect the proposal?

Yes  No

 

Is there a Voluntary Planning Agreement which might affect the proposal?

Yes  No

2.     SUMMARY OF REFERRALS

Referral

Issue

Development Engineer

No objections subject to conditions.

S64 / Systems Planning Officer

No objections subject to conditions.

S7.11 / Contributions Officer

No objections subject to condition for developer contributions.

Essential Energy

No objections subject to recommendations.

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 2019’. The site was not identified as bush fire prone land at the time of lodgement of the application.

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 Policies (SEPP)

Considerations

Satisfactory

Unsatisfactory

SEPP No 55—Remediation of Land

Comment: A Preliminary Contaminated Land Assessment was submitted to support DA 10.2008.744.1 which was approved by Council on 09/04/09. This report confirmed that all contaminants of concern are below threshold limits and, as such, the land is suitable for the proposed development. No further information is required.

SEPP (Building Sustainability Index: BASIX) 2004

Comment: BASIX Certificate required for:

·    New dwellings

·    Alterations > $50,000.00

·    Pools > 40,000 kl

A Multi Dwelling BASIX certificate has been provided consistent with the SEPP. Proposal complies.

 

SEPP (Coastal Management) 2018

Clause 11 – Development on land in proximity to coastal wetlands or littoral rainforest

Comment:  The subject site is located within 100 metres to littoral rainforest which sits opposite the site on the beach front The application proposes only residential works. All stormwater from the development is to be appropriately managed and disposed of. The proposal is consistent with the provisions of Clause 11 of the Coastal Management SEPP.

Clause 13 – Development on land within the coastal environment area

Comment: The application does not propose any significant vegetation removal or impacts on the coastal environment and coastal processes. The proposal does not impact on foreshore access or any known item or place of aboriginal cultural heritage, and is located on the landward side of Alcorn Street, as opposed to the beachfront. The proposal is consistent with the provisions of Clause 13 of the Coastal Management SEPP.

Clause 14 – Development on land within the coastal use area

Comment: The subject site is located within the coastal use area. The dual occupancy is consistent with the provisions of Clause 14 of the Coastal Management SEPP, and raises no issues.

 

SEPP (Infrastructure) 2007

Comment: The application proposes development within 5m of an exposed overhead electricity power line

In accordance with Clause 45(2) the application was referred to Essential Energy whose comments have been adopted as recommended conditions and/or advisory notes where appropriate.

 

4.2 Byron Local Environmental Plan 2014 (LEP 2014)

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

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

(b)     The land is within the R2 Low Density Residential according to the Land Zoning Map;

(c)     The proposed development is permitted with consent; and

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

 

Zone Objective

Consideration

encourage a range of housing types

 

The proposed Dual Occupancy (detached) adds to the range of housing types in the locality

ensure non-residential uses have a domestic scale and character.

The proposal is for residential use only

 

Clause 4.3 Height of Buildings

Building height is measured as the vertical distance from ground level (existing) to the highest point of the building. LEP 2014 permits a maximum building height of 9.0m in the subject location.

Submitted plans have demonstrated that the proposed maximum building height is 7.69m.

 

Clause 4.4 Floor Space Ratio

Submitted plans have demonstrated that the proposed development has a FSR of 0.49:1 which complies with the maximum 0.5:1 permitted.

Recommended conditions include the requirement for basement storage areas to have a 2.1m ceiling height to prevent their use for habitable purposes.

 

Clause 4.6 Exceptions to Development Standards

The applicant has sought a variation to Clause 4.1E by proposing a Dual Occupancy (attached) on a lot with an area of 698m2 which does not comply with the minimum 800m2 development standard.

The applicant has submitted a written request that strict compliance with the development standard is unreasonable or unnecessary and that there are sufficient environmental grounds to vary the controls as follows:

·    Compliance with the numerical standard is considered unnecessary in the circumstances, given the site has twice been approved for and currently contains a dual occupancy development. This demonstrates that the site has previously been determined to be suitable for accommodating this form of density and in effect, has an ‘existing use right’ for this development type.

 

·    This is further demonstrated when considering the relevant considerations established under Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe) at [42] – [48]. We note these considerations also form the ‘five part test’ referred to under the NSW Planning Department’s ‘Varying development standards: A Guide, 2011’.

 

·    Despite not meeting the minimum lot size, the proposed development maintains the dual occupancy density without variations to other LEP standards including height of buildings and floor space ratio, while also achieving the DCP standards. As such, it is considered unnecessary in the circumstances to enforce the minimum numerical standard given the proposed development achieves the development standards and objectives of the zone.

 

 

It is considered that strict compliance with the development standard is unreasonable and unnecessary in the circumstances of the case and that there are sufficient environmental grounds to vary the development standard for the following reasons:

The site contains an existing dual occupancy building which was approved by Council in 1968. The Objective of the Minimum lot size clause (4.1E) for dual occupancy dwellings is to achieve planned residential density. As the subject site is currently occupied by a Dual occupancy, enforcing compliance with the development standard is unreasonable as it would not acknowledge the existing and historic approved use of the site for two dwellings; and is unnecessary, as the proposal will maintain the existing density of the allotment, and strict application of the standard would not reduce the existing yield of the site.

The development proposes to replace an existing approved dual occupancy at the subject site. The existing dual occupancy contravenes the minimum lot size development standard and the proposed redevelopment will provide for the housing needs of the community via an improved use of the site while maintaining the low density residential character of the locality.

There are sufficient environmental planning grounds to justify the contravention of the standard as the variation allows for the continued use of the site as a dual occupancy and providing for the housing needs of the community within a low density residential environment.

Further the proposal is in the public interest having regards to the objectives of the development standard being “to achieve planned residential density in certain zones” as the site already contains an approved dual occupancy and therefore does not increase the existing density within the R2 Low Density Residential Zone.

The concurrence of the Planning Secretary is not required. Concurrence may be assumed by Council (but not a delegate of Council) under Planning Circular PS 20-002.

It is recommended that the development standard can be varied in this instance.

 

a)   The development is satisfactory having regard to the requirements outlined in clause 4.6;

b)   The development is satisfactory having regard to applicable Department of Planning, Infrastructure and Environment Circulars;

c)   The development is satisfactory having regard to relevant caselaw;

d)   The DA demonstrates  that compliance is with the development standard is unreasonable and unnecessary;

e)   The DA demonstrates that there are sufficient environmental planning grounds to justify contravening the standard;

f)    The DA demonstrates that that the development in the public interest;

g)   The DA demonstrates that the development is consistent with the objectives of the standard and the zone;

h)  The DA demonstrates how the development produces a better planning outcome than one that strictly complied with the development standard; and

i)    The DA demonstrates what it is about the grounds of the request that are particular to the proposed development on this site, and that there has to be something particular to the development on this site to justify the variation.

Clause 6.1 Acid Sulfate Soils

The land is mapped as Class 3 acid sulfate soils and works more than 1 metre below the natural ground surface require a preliminary assessment. The application proposes excavation works to a depth of 2.0m for the proposed swimming pools and basement storage areas. A preliminary assessment was submitted with application 10.2008.744.1 (DM822285) which included borehole sampling to a depth of 3.0m. Sampling demonstrated that there was no actual or potential acid sulfate soil located within the borehole. Therefore no further assessment is required.

Clause 6.6 Services

Sewer – A sewer main is located in the rear laneway (Council road reserve) and recommended conditions will ensure that an appropriate buffer distance is maintained between the pipeline and construction works and an easement is created to protect Council’s sewer infrastructure.

Stormwater drainage – All stormwater drainage for the development must be conveyed by a gravity system to the kerb and gutter at the street frontage and recommended conditions will ensure this is provided.

 

Water – The site is serviced by reticulated water supply.

 

Electricity – the site is provided with overhead mains electricity.

 

Vehicular access – the site has access via frontage to Alcorn Street.

 

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

Not applicable.

 

4.4    Byron Shire Development Control Plan 2014 (DCP 2014)

B1 Biodiversity

The application proposes the removal of two trees to facilitate the development. The two trees (one located in the front setback and one located in the rear yard) are planted landscaping trees and are not mapped as having any ecological significance. Recommended condition for landscaping will include the requirement for appropriate compensatory replanting.

 

B3 Services

Sewer – A sewer main is located in the rear laneway (Council road reserve) and recommended conditions will ensure that an appropriate buffer distance is maintained between the pipeline and construction works and an easement is created to protect Council’s sewer infrastructure.

Stormwater drainage – All stormwater drainage for the development must be conveyed by a gravity system to the kerb and gutter at the street frontage and recommended conditions will ensure this is provided.

Water – The site is serviced by reticulated water supply.

Electricity – the site is provided with overhead mains electricity.

Vehicular access – the site has access via frontage to Alcorn Street.

B4 Traffic Planning, Vehicle Parking, Circulation and Access

Each dwelling provides a double garage which complies with the car parking requirements of DCP 2014. Planning and engineering staff have determined that on-street car parking is available within close proximity to the development and as such formal visitor car spaces are not required onsite.

Proposed garages are each located with a minimum front setback of 7.2m allowing space in front of the garages to accommodate any informal spill over car parking.

B9 Landscaping

Submitted landscaping plans demonstrate that each proposed dwelling has a minimum landscaped area of 90m2 with 25% of the site consisting of deep soil areas. Recommended conditions will require appropriate landscaping of the site.

 

D1.2.1 Building Height Plane

Plans submitted with the application demonstrate compliance with building height plane requirements of the DCP. Notwithstanding the proposal due to its height still overshadows the neighbouring dwelling to the south. Conditions of consent recommended to reduce the height of the southern dwelling by 600 mm to limit the overshadowing. 

 

D1.2.2 Setbacks from Boundaries

The proposal provides the following building setbacks from boundaries:

Eastern (front) boundary to Alcorn Street

·    Each of the proposed dwellings are setback a minimum 7.265m from the front boundary which complies with the required 4.5m minimum.

Northern boundary

·    The proposed northern dwelling is setback a minimum 2.463m from the northern boundary while the proposed swimming pool / spa is setback 1.5m from the northern boundary. This complies with the required 900mm setback to the dwelling and 1m required setback for swimming pools and spas.

Western boundary

·    The proposed swimming pools are both located 1.3m from the western boundary which complies with the required 1m setback for swimming pools and spas.

Southern boundary

·    The proposed southern dwelling is setback a minimum 2.463m from the southern boundary while the proposed swimming pool / spa is setback 1.5m from the northern boundary. This complies with the required 900mm setback to the dwelling and 1m required setback for swimming pools and spas.

 

D1.2.5 Fences

The application proposes fencing on the northern, southern and western boundaries to a maximum height of 1.8m. It is also proposed to have a blockwork fence and timber gate (both 1.8m high) behind the front building line with a minimum setback of 7.265m from the front boundary. All fencing complies with DCP requirements.


D1.5 Dual Occupancy and Semi-Detached Dwellings

D1.5.1 On-Site Car Parking

The application proposes a double garage for each dwelling which complies with the requirement to provide two (2) car parking spaces for each dwelling.

 

D1.5.2 Character

Building articulation along the lower and upper levels and use of different materials and finishes ensure long solid walls are avoided and contribute to the locale’s character and architectural detailing.

The use of different colour and roof lines for each dwelling also helps break up the appearance between the dwellings along the Alcorn Street frontage.

Private open space areas have been designed for ease of access of occupants while not significantly impacting upon the amenity of adjoining land. All outdoor living spaces are delivered on the ground, with the exception of small balconies facing Alcorn Street which help to deliver passive surveillance of the public areas.

Visual privacy to adjoining parcels is retained through provision of generous setbacks, orientation of spaces towards the onsite private open space areas and incorporation of timber battens to shield first floor windows.

 

D1.5.3 Adjoining and Adjacent Development

Visual privacy to adjoining parcels is retained through the design, scale and form of the proposed development, providing generous setbacks, landscaping and use of fixed timber battens on all upper floor windows.

The shadow diagrams submitted demonstrate that there will be some overshadowing on the adjoining dwelling to the south. Recommended conditions include the requirement for the roof ridge of the proposed southern dwelling to be lowered by 600mm to minimise overshadowing impacts.

 

D1.5.4 Private Open Space

Plans submitted with the application demonstrate the provision of private open space located behind the front building setback having a minimum area of 30m2 and a minimum length and width each of 4m for each dwelling.

 

D1.5.5 Landscaping

Submitted landscaping plans demonstrate that each proposed dwelling has a minimum landscaped area of 90m2 with 25% of the site consisting of deep soil areas. Recommended conditions will require appropriate landscaping of the site.

 

 

D1.5.6 Sound Proofing

The Building Code of Australia requirements ensure that appropriate sound proofing is provided between the proposed dual occupancy (attached).

 

What Section and prescriptive measure does the development not meet?

Does the proposed development meet the Element Objectives of this Section? Address.

Does the proposed development meet the Performance Criteria of this Section? Address.

B14 Excavation and Fill

The application proposes excavation to a depth of 2.0m for the proposed swimming pools and basement storage areas in each dwelling. Excavation of 2.0m depth for the swimming pools complies with the prescriptive measures of “B14.2 – Excavation and Fill in all Zones” for swimming pools however the basement storage areas do not comply with the maximum 1.0m depth for general excavation.

The proposal satisfies the Objectives of 14.2 as the basement excavation works do not present any compatibility issues with the historical built character of the area and does not detract from the existing and desired future character of Alcorn Street or Suffolk Park. As the proposed basement storage areas will not be visible, there will not be any impact on the landscape and streetscape.

 

The proposed development complies with the Objectives of the Section because:

The proposal satisfies the Objectives of 14.2 as the basement excavation works do not present any compatibility issues with the historical built character of the area and does not detract from the existing and desired future character of Alcorn Street or Suffolk Park. As the proposed basement storage areas will not be visible, there will not be any impact on the landscape and streetscape.

 

 

 

The proposed development complies with the Performance Criteria of this Section because:

The proposal satisfies the Performance Criteria as the basement storage areas will not have any adverse visual impacts, will not overshadow or impact on the privacy of any adjoining land, does not present any risk of geotechnical instability / landslip and any resulting stormwater will be appropriately disposed of.

 

 

E1.3.9 Development and servicing of land affected by predicted coastal hazards

The land is currently, and proposed to continue to be largely serviced, from Alcorn Street being the seaward side of the land. The site is serviced by electricity, water and stormwater from Alcorn Street while sewer infrastructure is provided via a pipeline located in a disused Council road reserve adjoining the western boundary of the site.

This doesn’t comply with the prescriptive measure that all services must be provided from the landward side of the development such that the building is between the services and the erosion escarpment.

The proposed development complies with the Objectives of the Section because:

The site is currently serviced from the street as are all properties along the western side of Alcorn Street. Given that the land is already serviced from the seaward side of the land, the proposed development will not increase potential impacts of coastal hazards on public utility services.

Recommended conditions will ensure that any consent granted must cease if at any time the coastal erosion escarpment comes within 50 metres of the building subject of the consent. The development the subject of the consent must be demolished and removed immediately if this scenario eventuates.

The proposed development complies with the Performance Criteria of this Section because:

The site is currently serviced from the street as are all properties along the western side of Alcorn Street. Given that the land is already serviced from the seaward side of the land, the proposed development will not increase potential impacts of coastal hazards on public utility services.

Recommended conditions will ensure that any consent granted must cease if at any time the coastal erosion escarpment comes within 50 metres of the building subject of the consent. The development the subject of the consent must be demolished and removed immediately if this scenario eventuates.

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


 

4.5    Environmental Planning and Assessment Regulation 2021 considerations

 

Applicable to the proposal:

Considered the control as it relates to the proposal:

If this control is applicable, does the proposal comply?

Clause 92 - Additional matters that consent authority must consider

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 93 Fire safety and other considerations

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 94 - Consent authority may require buildings to be upgraded

Yes   No

Yes  No

NA 

Yes  No

NA 

Clause 94A - Fire safety and other considerations applying to erection of temporary structures

Yes   No

Yes  No

NA 

Yes  No

NA 

4.6   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.

Construction Impacts

The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

4.7    The suitability of the site for the development

The site is a serviced, generally unconstrained property and is suitable for the proposed development subject to conditions of consent.

4.8    Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited

There were 3 submissions made on the development application:

Issue - Objections

Comment

The lot is not large enough
to have a dual occupancy approved.

 

The site contains an existing dual occupancy building which was approved by Council in 1968. The Objective of the Minimum lot size clause (4.1E) for dual occupancy dwellings is to achieve planned residential density. As the subject site is currently occupied by a Dual occupancy, enforcing compliance with the development standard is unreasonable as it would not acknowledge the existing and historic approved use of the site for two dwellings; and is unnecessary, as the proposal will maintain the existing density of the allotment, and strict application of the standard would not reduce the existing yield of the site.

 

Impact of the development on the streetscape and amenity of neighbours with two driveways, two garages side by side, infrastructure for two dwellings, four car spaces rather than two and increased waste and services to the street.

It is not appropriate in this location and would set an undesirable precedent in terms of impacts on amenity and streetscape. 

The site already contains an approved dual occupancy with each dwelling containing two bedrooms. Therefore. the proposal for 2 x 3 bedroom dwellings presents a minimal impact in terms of increased demand for services and vehicular movements.

The application proposes generous front boundary setbacks of a minimum 7.265m which far exceed the required 4.5m setback to minimise visual impact on the streetscape.

It is considered the proposal will not have a detrimental impact on the streetscape nor set an undesirable precedent.

 

The two new dwellings will have a much larger footprint than the existing one and will have an even larger upper storey. The units will have 82.5m2 ground floors and 87.2m2 upper floors or a total of 169.7x2 = 339.4m2.

The gross floor area of the proposed dual occupancy (detached) was calculated to be 344m2. The land has an area of 698m2 giving a floor space ratio of 0.49:1. This complies with the maximum permitted 0.5:1.

The development footprint is considered satisfactory.

The plans show large windows on the upper floor that will overlook adjoining land and will substantially affect neighbouring privacy. Suggest that, at least, the proposed sills are raised to increase privacy.

The original plans proposed operable timber screen battens over the second storey windows on the north and south elevations. Staff raised the issue of privacy with the applicant who has since amended the design so that the proposed timber screen battens are now fixed. Staff consider that this amendment, combined with 3.7m side setbacks, has now minimised any potential privacy issues presented by second storey windows.

Overshadowing impacts on existing development on adjoining land

Recommended conditions include the requirement for the roof ridge of the proposed southern dwelling to be lowered by 600mm to minimise overshadowing impacts.

Visual impact of white metal cladding

Recommended conditions include the requirement for colours and finishes to be matte / non-reflective.

Parking – request that proposed driveways are wide enough to accommodate 2 x visitor parking spaces

Each dwelling provides a double garage which complies with the car parking requirements of DCP 2014. Formal visitor car spaces are not required onsite. With a minimum front setback of 7.2m to each garage further informal overflow parking is available in the driveway of each dwelling for at least one vehicle each.

 

4.9    Public interest

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

 

5.      DEVELOPER CONTRIBUTIONS

5.1    Water & Sewer Levies

Section 64 levies will be payable.

5.2    Developer Contributions

Section 7.11 Contributions will be payable.

 

6.      DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes No

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes No

 

7.      CONCLUSION

The DA proposes Demolition of Existing Dual Occupancy and Ancillary Structures, New Dual Occupancy (Attached), Two (2) Swimming Pools, Removal of Two (2) Trees and Strata Subdivision. The proposed development is satisfactory having regard to the relevant environmental planning instruments and planning controls applicable to the site. The application is recommended for approval.

 

 

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          13.7

Report No. 13.7     PLANNING - Quarter 3 SEPP Variations July to September 2022

Directorate:                         Sustainable Environment and Economy

Report Author:                   Chris Larkin, Manager Sustainable Development

File No:                                 I2022/1487

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:

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

 

  

 

RECOMMENDATION:

That Council adopts the report on exceptions to development standards for the period July to September 2022.

 

 


 

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 July to September 2022 Quarter for the following DAs:

 

Quarter 3 – July to September 2022

 

DA No.

10.2021.754.1

Property:

17 Argyle Street, Mullumbimby

Development Category

Residential - New second occupancy

Environmental planning Instrument

Byron LEP 2014

Zoning:

R2 Low Density Residential

Development Standard being varied:

Clause 4.1E - 800m2 minimum lot area for dual occupancy (detached)

Justification Summary

Clause 4.6 Variation - Environmental planning grounds supported due to minimal variation required (<1%), not possible to achieve compliance, no significant environmental benefit to requiring compliance, achieves broader residential density and lesser size of the variation compared to the smallest room size in the dwelling.

Extent of variation

0.9%

Concurring Authority

Council (Delegation)

Determined Date

29/7/22

 

 

DA No.

10.2021.511.1

Property:

865 Broken Head Road, Broken Head

Development Category

Residential - New second occupancy

Environmental planning Instrument

Byron LEP 2014 / Byron LEP 1988

Zoning:

·    Split Byron LEP 1988 1a (General Rural) Zone

·    Byron LEP 2014 RU2 Rural Landscape / PART DM Deferred Matter

Development Standard being varied:

40 (2) (b) height of upper floor

Justification Summary

Clause 64A Variation for minor part of the upper most floor of one dwelling exceeding 4.5 metre development standard by 900mm (20%) - LEP 1998 Clause 40 Height.

 

It is noted the proposal complies with the overall 9 metre height standard under the BLEP 1988 and had the E Zoning review for the property been finalised the subject proposal in terms of height would have been considered as complying under the BLEP 2014.

 

No environmental planning impacts and meets objectives of zone and development standard.

Extent of variation

20%

Concurring authority

Council

Determined Date

11/08/2022

 

 

DA No.

10.2021.553.1

Property:

155 Main Arm Road, Mullumbimby

Development Category

Residential - New second occupancy

Environmental planning Instrument

Byron LEP 2014

Zoning:

RU1 Primary production

Development Standard being varied:

Clause 4.2D of Byron LEP 2014 – dual occupancy (detached) dwellings to be within 100m of each other

Justification Summary

Clause 4.6 Variation - Environmental planning grounds supported due to siting to reduce risk of flooding/ inundation with building on elevated part of site and separated from intermittent stream/ drainage line on a flood affected site.

Extent of variation

7%

Concurring authority

Council (Delegation)

Determined Date

29/08/2022

 

 

DA No.

10.2021.683.1

Property:

1156 Main Arm Road, Mullumbimby

Development Category

Tourist

Environmental planning Instrument

·    Byron LEP 2014

·    Byron LEP 1988

Zoning:

·    RU2 Rural Landscape

·    1(a) General Rural, 7(k) Habitat

Development Standard being varied:

Clause 40 of Byron LEP 1988

Justification Summary

Clause 4.6 Variation - Environmental planning grounds supported due to siting to reduce risk of flooding/ inundation with building on elevated part of site and separated from intermittent stream/ drainage line on a flood affected site.

Extent of variation

24%

Concurring authority

Council

Determined Date

08/09/2022

 

Strategic Considerations

 

Community Strategic Plan and Operational Plan

 

CSP Objective

CSP Strategy

DP Action

Code

OP Activity

4: Ethical Growth
We manage growth and change responsibly

4.1: Manage responsible development through effective place and space planning

4.1.1: Development assessment - Manage development through a transparent and efficient assessment process

4.1.1.1

Assess and Determine DA's accordance with the relevant legislation

 

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                          13.8

Report No. 13.8     PLANNING - 10.2021.425.1 Community Title Subdivision Twenty (20) Lots, Multi-Dwelling Housing comprising of Twenty (20) Dwelling Houses

Directorate:                         Sustainable Environment and Economy

Report Author:                   Ivan Holland, Planner

Noreen Scott, EA Sustainable Environment and Economy

File No:                                 I2022/1491

Proposal:

Proposal description:

Community Title Subdivision Twenty (20) Lots, Multi-Dwelling Housing comprising of Twenty (20) Dwelling Houses and Tree Removal One (1) Tree

Property description:

LOT: 1 DP: 1261870, LOT: 2 DP: 1261870, LOT: 3 DP: 1261870, LOT: 4 DP: 1261870, LOT: 5 DP: 1261870, LOT: 6 DP: 1261870

24 - 34 Bayside Way BRUNSWICK HEADS

Parcel No/s:

270091, 270092, 270093, 270094, 270095, 270096

Applicant:

Planners North Pty Ltd

Owner:

Mr J E & Mrs G M Mills

Zoning:

R3 Medium Density Residential

Date received:

25 July 2021

Integrated / Designated Development:

    Integrated

    Designated

    Not applicable

Public notification or exhibition:

-    Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications

-    Exhibition period: 6/8/21 to 2/9/21

-    No Submissions received.

Delegations

Council

Issues:

·    Removal of a mature gum tree

Summary:

The DA proposes Community Title Subdivision Twenty (20) Lots, Multi-Dwelling Housing comprising of Twenty (20) Dwelling Houses and Tree Removal One (1) Tree. 

Proposed dwelling houses will be two storey with three or four bedrooms, with indoor and outdoor living spaces and a double garage with a combination of gable and skillion roofs. The community title lots are to range in size between 190m2 and 394m2 with the residual land to be contained in a community lot that includes the shared access road/driveway, parking and vehicle manoeuvring areas. Considering the medium density zoning of the land and the size of the property the proposed yield of 20 dwelling is acceptable.

The application addresses the relevant constraints applying to the site and raises no issues other than a mature gum tree is proposed to be removed. However, the tree adds to the streetscape, appears healthy and it is recommended that it be retained with the siting of proposed dwelling 1 to be amended to increase the setback to this tree.  All other trees on the property are to be retained.

The application is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

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

  

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2021.425.1 for Community Title Subdivision Twenty (20) Lots, Multi-Dwelling Housing comprising of Twenty (20) Dwelling Houses, be granted consent subject to the conditions of approval in attachment 3.

Attachments:

 

1        DA10.2021.425.1 - Consolidated plans of development, E2022/101339  

2        DA10.2021.425.1 - Subdivision layout, E2021/97038  

3        DA10.2021.425.1 - Recommended conditions, E2022/101320  

 

 

Assessment:

1.   INTRODUCTION

History/Background

Council’s records indicate the following development approval history for the property:

Application No.

Description

Determination

Determination date

DA 10.2015.795.1

Staged Development Comprising:

a)  Concept proposal for a subdivision to create 47 Residential lots and associated Urban Infrastructure; and

b)  Stage 1 Development proposal for a Subdivision to create Forty (40) Residential Lots, One (1) Residue Lot, Public Roads and Associated Urban Infrastructure.

Approved

23/2/2017

DA 10.2015.795.2

S4.55 to Delete Condition 35(c) Relating to Right of Footway

Approved

22/5/2019

DA 10.2015.795.3

S4.55 to Modify Numbering of Conditions of Consent

Approved

12/6/2019

The subject lots were created under the above 2015 development consent.

The applicant was requested to provided further information on 30 July 2021 in relation to access and mobility, solar access impacts and public art. Additional information was provided on 8 September 2021 which included a public art plan which was subsequently referred to the Public Art Panel.

The applicant was requested to provided further information on 16 May 2022 being a traffic impact assessment, a stormwater concept plan and amended plans that demonstrate compliance with the requirements for on-street parking, access and footpath extension and reconstruction. Additional information was provided on 13 July 2022.

Description of the proposed development

This application seeks approval for (see Figure 1):

·    A twenty (20) lot community title subdivision, with community land to be in a single community lot, and consolidation of the current six (6) Torrens Title lots;

·    Vehicular access, utilities and drainage for the subdivision and proposed dwelling houses;

·    Multi-dwelling housing comprising twenty (20) detached dwelling houses with one dwelling house to be located on each community title lot;

·    Removal of one (1) tree; and

·    The modification of the concept approval (DA 10.2015.795.1) that includes the development site to ensure consistency with this development, should it be approved.

Community title lots are to range in size between 190m2 and 394m2 with most lots being less than 265m2.  The residual land will be contained in a community lot, being 1625m2 in area, and including the shared access road/driveway, parking and vehicle manoeuvring areas.

Proposed dwelling houses will be two storey with three or four bedrooms, at least two bathrooms, indoor and outdoor living spaces and a double garage with a combination of gable and skillion roofs.

The application includes a construction staging plan (CSP1) that proposes construction of the development in four (4) stages.

 

Description of the site

Land is legally described

LOT: 1 DP: 1261870, LOT: 2 DP: 1261870, LOT: 3 DP: 1261870, LOT: 4 DP: 1261870, LOT: 5 DP: 1261870, LOT: 6 DP: 1261870

Property address

24 – 34 Bayside Way BRUNSWICK HEADS

Land is zoned:

R3 Medium Density Residential (see Figure 2)

Land area is:

6580.7 m2 (combined)

Property is constrained by:

Bushfire prone land

Acid Sulfate Soils Class 3

 

Is a BDAR required due to the location of the proposed development?

Yes  No

 

Are there any easements in favour of Council affecting the site? (see Figure 3)

Yes  No

 

Is there a Vegetation Management Plan which might affect the proposal?

Yes  No

 

Is there a Voluntary Planning Agreement which might affect the proposal?

Yes  No

 

 

A picture containing outdoor, grass, sky, tree

Description automatically generated

View southwest over development site from Bayside Way

A field with a fence and trees in the background

Description automatically generated with low confidence

View northwest over development site from Bayside Way

A picture containing tree, sky, outdoor, grass

Description automatically generated

View west over development site from Bayside Way. Photo shows existing vegetation along western boundary of site

A picture containing grass, tree, sky, outdoor

Description automatically generated

View west over northern end of development site from Bayside Way. Photo shows mature tree vegetation adjacent to western boundary of site

 

2.   SUMMARY OF REFERRALS

 

Referral

Issue

Environmental Health Officer

No objections subject to conditions.

Development Engineer

No objections subject to conditions.

S64 / Systems Planning Officer

No objections subject to conditions.

S7.11/ Contributions Officer

No objections subject to conditions.

Rural Fire Service (100B)

General terms of approval and Bush Fire Safety Authority issued.

Essential Energy

No objections subject to conditions and general comments.

Department of Primary Industries – Office of Water/ Natural Resources Access Regulator (NRAR)

General terms of approval issued for controlled activity.

Tweed Byron Land Council

No response received.

 

3.   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.

State Environmental Planning Instruments (SEPP)

Considerations

Satisfactory

Unsatisfactory

SEPP (Resilience and Hazards) 2021

Chapter 2 Coastal management

Consideration: The development site is located within the mapped coastal environment area.  The property is largely grassed, has previously been approved for subdivision into six lots, is separated by Bayside Way from high environmental value vegetation and is over 350m from Simpsons Creek.  As such, adverse impacts on the listed matters are not expected (cl.2.10).

Chapter 4 Remediation of land

Land contamination was assessed within DA 10.2015.795.1  The Preliminary Groundwater Sampling and Testing Report (Coffey, 29 July 2016) concluded that there was no evidence of groundwater contamination and no link between the observed elevated metals concentrations in the groundwater and current horticultural practices involving application of fertilisers.  As noted above, the property has previously been approved for subdivision into six lots.  Consequently, the site is considered suitable for the proposed development with respect to contamination (cl.4.6).

SEPP (Building Sustainability Index: BASIX) 2004

Consideration: The proposal is BASIX affected development and a BASIX Certificate was provided with the application.

SEPP (Transport and Infrastructure) 2021

Chapter 2 Infrastructure

Elements of the proposed development (particularly at the north of the site) are proximate to electricity transmission and distribution infrastructure and consequently the application was referred to Essential Energy for comment (cl.2.48).  Essential Energy responded with conditions and general comments.

SEPP (Biodiversity and Conservation) 2021

Chapter 4 Koala habitat protection 2021

The subject property is located within the koala planning area covered by the Byron Coast Comprehensive Koala Plan of Management (BCCKPoM) and consequently, determination of the development application must be consistent with the BCCKPoM (cl.4.4, 4.8 and Schedule 2).

The subject property is greater than 1ha but does not contain any mapped koala habitat and consequently the BCCKPoM does not apply (See Figure 10 Development Assessment Flowchart).

4.2A Byron Local Environmental Plan 2014 (LEP 2014)

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

(a)     The proposed development is defined in the EP&A Act 1979 as subdivision of land and in the LEP 2014 Dictionary as multi dwelling housing;

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

(c)     The proposed development is permitted with consent; and

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

Zone Objectives – R3

Consideration

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

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

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

The development has the potential to provide for the housing needs of the community through the introduction of twenty new dwellings.

The dwellings proposed do not provide a variety of housing types with all proposed dwellings being detached, relatively similar in size and style.  None of the dwellings are proposed as affordable housing.

4.1  Minimum subdivision lot size

The minimum lot size for the development site is 450m2 however this condition does not apply to community title subdivisions.

4.1E  Minimum lot sizes for certain residential accommodation

The minimum lot size for the multi dwelling housing in the R3 zone development is 800m2 . This application seeks to consolidate the current lots as part of the development with the combined lot size being 6580.7 m2.

4.3  Height of buildings

The maximum building height for the development site is 9m.  Based on the drawings provided, the proposed dwellings range in maximum height from 6.5m to 7.7m (Dwelling 2).

4.4  Floor space ratio

The maximum floor space ratio (FSR) for the development site is 0.6:1.  The application states that the FSR for the development is 0.41:1 which has been confirmed using the provided floor areas.

6.1  Acid sulfate soils

Majority of the site is mapped as overlying category 3 acid sulfate soils.  In response to a Council information request on 22/8/22, the application submitted an Acid Sulfate Management Plan (Planners North, August 2022, Ref. 1241.4161). Council’s Environmental Health Officer is satisfied that the mitigation and management measures proposed in the plan are adequate subject to recommended conditions.

6.2  Earthworks

The dwelling cross-sections provided indicate that earthworks will be largely limited to footings.  Earthworks will also be required for construction of infrastructure (e.g., driveway and services).  Management of earthworks is expected to be straightforward owing to the required earthworks being minor and the site being largely level.  Nevertheless, conditions have been recommended relating to the relevant listed matters particularly management of potential impacts of the earthworks and construction phase stormwater runoff.

6.6  Essential services

The property is expected to have access to necessary essential services as it is in an established residential area and has previously been approved for a subdivision into six lots.  Council’s Engineers are satisfied the development can be adequately serviced subject to recommended conditions.

6.7  Affordable housing in residential and business zones

This clause requires that prior to granting consent to development on land zoned Zone R3 Medium Density Residential, the consent has considered— the need for providing, maintaining, or retaining affordable housing, and the need for imposing conditions relating to providing, maintaining, or retaining affordable housing including, but not limited to, imposing covenants and the registration of restrictions about users.

While the proposal does not provide for affordable housing as defined by the clause, it instead seeks to respond to this clause through provision of new supply and diversity of housing stock. It is understood that the dwelling houses will be offered for purchase and or long-term rental over short term holiday letting. To ensure this outcome, a condition has been recommended to preclude use of the dwellings for short-term rental accommodation and/or holiday letting.

Without an appropriate legislative mechanism in place, Council is unable to require anything further of a proponent currently. To this aim, staff are reviewing this clause to encompass wording in line with the on exhibition Affordable Housing Contribution Scheme - Byron Shire Council (nsw.gov.au) to provide greater guidance on the application of Byron LEP 2014 - Clause 6.7.

Clause 4.6 Exceptions to Development Standards

Not applicable.

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 apply to this development application.

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

B1: Biodiversity

The subdivision (including required bush fire asset protection zones) is setback ~20m from land mapped as having biodiversity values, high environmental value vegetation and being Koala habitat (see Note).  The mapped habitat is to the north and east of the site and in both cases is separated from the site by Bayside Way.  In practical terms, the development complies with the required setbacks to ecological ‘red flag’ areas (B1.2.1).

Note: The mapping indicates the vegetation is closer than 20m to the site, but this appears to be due to the mapping following the canopy rather than the ground – see figure below.

The development site is not located in a designated 10/50 vegetation clearing entitlement area (online tool accessed 13/10/22).

The application seeks to remove a single mature gum tree located at the north of development site (see site visit photos).  Although the tree is not within any mapped ‘red flag’ areas (B1.2.1), no reason/s have been provided for the removal of this tree and being a mature gum tree which appear healthy, its retention is recommended.  If to be retained, the location and/or layout of Dwelling 1 should be altered to increase the setback to this tree.  All other trees on the property (see proposed Lots 1, 15-17) are to be retained.

B3: Services

The property is expected to have access to necessary essential services as it is in an established residential area with reticulated services and has previously been approved for a subdivision into six lots (see also cl.6.6 LEP 2014 above).  In general terms, stormwater from the development will be discharged into drainage channel located to the south of the site and existing pipe culvert to the north with stormwater from impervious areas (mainly road pavement) being treated prior to discharge.

B4: Traffic Planning, Vehicle Parking, Circulation and Access

The application proposes works in the Bayside Way road reserve including a turning lane in the traffic island and six indented parking spaces on the western side.  The subdivision incorporates a through road that provides vehicular access to the dwelling garages and for waste collection and incorporates visitor parking and manoeuvring areas.  Council’s Development Engineer is satisfied the development has adequate parking, circulation and access and will have an acceptable impact on traffic.

B5: Providing for Cycling

There currently isn’t a designated cycleway along Bayside Way however this development will not prevent installation of a bike path in the future.  The application states that all-weather bicycle storage will be in the garages of the proposed dwellings (B5.2.4)


 

B8: Waste Minimisation and Management

The application did not include a waste minimisation and management plan however, Council’s Development Engineer is satisfied that the proposed driveway is adequate for Council’s waste collection vehicle to enter and exit the site in a forward direction. 

B9: Landscaping

The proposed development triggers the requirement for a landscaping plan is required and was provided with the development application (B9.2).  The landscaping plan is generally consistent with the design principles (B9.3) and specific requirements for multi dwelling housing (B9.4) but for:

·    existing trees appear to be within 3m of buildings;

·    retention of existing trees (see comments under Chapter B1);

The application states that the dwellings have an average of 106.9m2 of landscaped area, being greater than the 90m2 per dwelling minimum) however such details are not included on the landscape plan to enable this claim to be verified.

The landscape plan includes the provision of street trees including the relocation of existing street trees impacted by the proposed changes to the Bayside Way traffic island (B9.11).

B13: Access and Mobility

In response to Council’s further information request, the applicant confirmed that “at least two (10%) of the dwellings within the development must be “adaptable housing” meaning the housing is designed in such a way that it can be modified easily in the future to become accessible to both occupants and visitors with disabilities or progressive frailties. In answer to this request, please find attached updated drawings for Dwellings 8 and 18. These house designs have been modified involving, inter alia, widening the garage to 6.5m; providing appropriate wheelchair access to the dwelling via the front door and to Bedroom 1 in compliance with AS14-8.1; as well as plan updating has occurred with some minor dimensional changes to Bedroom 1 to ensure the bedroom, ensuite and laundry enjoy satisfactory access. Further, the kitchens for Dwellings 8 and 18 have been modified to comply with AS299”.

The modified proposal is consistent with the relevant access and mobility requirements (B13.2.2)

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

General Provisions

The proposed multi dwelling housing complies with the relevant general provisions (D1.2) but for setbacks and fencing as follows (see Note):

·    The setback of Dwelling 12 to the Council reserve to the south which at 200mm is well below the minimum required setback of 900mm (D1.2.2).  The setback encroachment does not conflict with the relevant objectives owing to the neighbouring land being a reserve, and a variation is supported to this boundary being a drainage reserve.

·    The distance between the dwellings on the site is less than the required minimum of 3m.  The reduced setbacks between dwellings reduces privacy but maximises useable private open space at the rear of the dwellings; and

Multi Dwelling Housing

The proposed dwelling complies with the multi dwelling housing provisions (D1.6) subject to the following comments:

·    The application states that the dwellings each have a ground level courtyard with a minimum area of 30m2 and 4m in length/width

·    A design verification statement was provided (D1.6.10) with the application.

D6: Subdivision

The development application does not include a detailed consideration of the relevant design guidelines (D6.2.1) in relation to the proposed community title subdivision.  Many of the proposed lots do not have the preferred north-south axis to minimise overshadowing but living areas are generally oriented north to maximise solar access.

The proposed lots are less than the minimum lot size specified in LEP 2014 however have sufficient area for the dwelling, private open space, solar access and vehicle access, subject to recommended conditions (D6.4.1). Other relevant matters such as stormwater management, water, sewer, vegetation/landscaping and access, are discussed above.

D8: Public Art

The proposed development triggers the requirement for a public art and a public art plan (Planners North, September 2021) was provided following Council’s request for further information (D8.2.1).  The public art plan was referred to Council’s Public Art Panel who sought further details from the applicant on the proposal.  In response, the applicant offered to enter into a planning agreement in lieu of providing the public art. A condition has been recommended to require a planning agreement be entered into.

E4 – Brunswick Heads

The development site is located within Pocket B of Brunswick Heads.  The proposed development is consistent with the character narrative in that the dwellings are “two storey medium density homes”.  The area is said to comprise  “typically brick and tile homes”, however, the use of fibre cement cladding and metal roof sheeting is proposed for the dwellings.  The setback of the dwellings to Bayside Way is consistent and the fencing along this boundary is not consistent with the following character narrative comment “Most houses have either no or low front fences and variable front setbacks and streets continue the feeling of openness and community” (E4.2).

EPA Act 1979 - Integrated development

The proposal is integrated development (s.4.46 of the EP&A Act) in that authorisation under the Rural Fires Act 1997 (s.100B) is required in respect of bush fire safety of subdivision of land that could lawfully be used for residential or rural residential purposes.  RFS issued general terms of approval (GTAs) and a bush fire safety authority for the development on 17 September 2021 (ref: DA2021081100335-Original-1).

The proposal is integrated development (s.4.46 of the EP&A Act) in that an activity approval is required under the Water Management Act 2000.  NRAR issued GTAs for the activity on waterfront land on 27 September 2021 (ref: IDAS-2021-10143).

4.6 Environmental Planning & Assessment Regulation 2000

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 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.

Construction Impacts

The development will generate minor impacts during its construction. Conditions of consent recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

4.8 The suitability of the site for the development

The site is capable of being serviced, has manageable constraints and is suitable for the proposed development.

4.9 Submissions made in accordance with the Act/ Regulations

The application included a report (Planners North, July 2021) detailing the pre-lodgement community consultation undertaken prior to the lodgement of the development application (A13.4 of DCP 2014 and Community Participation Plan).  Issues raised included density, privacy, noise, community facilities, capacity of Bayside Way/Tweed Street intersection, stormwater/flooding and solar access. 

The development application was further exhibited by Council. No submissions were received.

4.10 Public interest

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

4.   DEVELOPER CONTRIBUTIONS

5.1                    Water & Sewer Levies

Section 64 levies will be payable.

5.2                    Developer Contributions

Section 7.11 Contributions will be payable.

5.   DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

Disclosure details

Response

Has a Disclosure Statement been received in relation to this application?

If Yes, Provide Disclosure Statement register reference: 91.

Yes No

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed.

Yes No


 

6.   CONCLUSION

The DA proposed development is satisfactory having regard to 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.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                          13.9

Report No. 13.9     Revised Constitution of Climate Change and Resource Recovery Advisory Committee

Directorate:                         Sustainable Environment and Economy

Report Author:                   Julia Adams, Sustainability Team Leader

File No:                                 I2022/1508

Summary:

The Climate Change and Resource Recovery Advisory Committee has not been able to make quorum at either of the last two meetings for this calendar year.

Two changes are proposed to the Constitution which are expected to assist with achieving meeting quorum. These are:

·    the number of Councillors required for a quorum be amended from two to one, and

·    that COREM not be included in the Committee’s membership as COREM is yet to respond to either of Council’s two invitations to participate.

The revised Climate Change and Resource Recovery Advisory Committee’s Constitution is provided for Council’s consideration and endorsement.

  

 

 

RECOMMENDATION:

That Council adopts the Climate Change and Resource Recovery Advisory Committee constitution at Attachment 1 (E2021/148037).

 

Attachments:

 

1        DRAFT Constitution Climate Change & Resource Recovery Advisory Committee 2022, E2021/148037  

 


 

Report

Following Resolution 22-026 which resolved that the proposed Resource Recovery Advisory Committee and the Climate Change Advisory Committee be combined, a new Constitution was developed.

This Constitution was further informed by Resolution 22-098, which appointed Zero Emissions Byron representative and five community representatives to the Committee. Council also resolved that Resilient Byron and Community Owned Renewable Energy Mullumbimby (COREM) be given another opportunity to nominate a representative.

Resilient Byron has now nominated their representative and COREM is yet to respond to either of Council’s invitations. In order to confirm membership numbers and therefore quorum, it is recommended that the COREM representative not be included as a committee member.  The attached draft Constitution has been amended accordingly.

It is also recommended, that the number of Councillors required for a quorum be amended from two to one, which is in line with other Committees.  The wording at Point 7 has changed to:

A quorum is to constitute at least half the number of members plus one (resulting half numbers go down), one of which is to be a Councillor.”

The final meeting for 2022 is scheduled for 17 November 2022.

The draft constitution is included in Attachment 1 for Council’s consideration.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective

CSP Strategy

DP Action

Code

OP Activity

1: Effective Leadership
We have effective decision making and community leadership that is open and informed

1.1: Enhance trust and accountability through open and transparent leadership

1.1.2: Governance - Ensure legislative compliance and support Councillors to carry out their civic duties

1.1.2.3

Provide administrative support to Councillors to carry out their civic duties

 

 

 

Recent Resolutions

·        22-026

·        22-098

Legal/Statutory/Policy Considerations

Not applicable.

Financial Considerations

Not applicable.

Consultation and Engagement

Not applicable.

 


BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy                        13.10

Report No. 13.10   PLANNING - 10.2021.619.1 Demolition of Existing Structures and Construction of Multi Dwelling Housing comprising of Four (4) Dwellings and Strata Subdivision at 99 Station Street - Mullumbimby

Directorate:                         Sustainable Environment and Economy

Report Author:                   Steven Denize, Planner

File No:                                 I2022/1511

Proposal:

DA No:

10.2021.619.1

NSW PP

PAN-149131

Proposal description:

Demolition of Existing Structures and Construction of Multi Dwelling Housing comprising of Four (4) Dwellings and Strata Subdivision

Property description:

LOT: 26 SEC: 4 DP: 2772, LOT: 27 SEC: 4 DP: 2772

99 Station Street MULLUMBIMBY

Parcel No/s:

122830, 122840

Applicant:

Planners North

Owner:

East Assets P1 Pty Ltd

Zoning:

R2 Low Density Residential 

Date received:

18 October 2021

Integrated / Designated Development:

    Integrated

    Designated

    Not applicable

Public notification or exhibition:

-    Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications

-    Exhibition period: 28 October 2021 to 10 November 2021

-    Submissions received: Yes, seven (7) submissions of objection were received. See summary and discussion / response below.

-    Submissions acknowledged: Yes     No          N/A

Planning Review Committee:

7 April 2022 the PRC determined that the application should be determined by Council

Delegation to determine

Council

Issues:

Heritage – Mullumbimby Conservation Area (MCA)

Minor breaches of BDCP 2014 Prescriptive Measures for front setback and building height plane. 

Recommendation:

·        Pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2021.619.1 for Demolition of Existing Structures and Construction of Multi Dwelling Housing comprising of Four (4) Dwellings and Strata Subdivision, be granted consent subject to the conditions of approval at the end of this report

Summary:

This application seeks approval for the demolition of an existing 132m2 dwelling and ancillary structures, including an open carport and single story shed. Post demolition it is proposed to establish, and strata title subdivide a multi dwelling housing development consisting of 4 dwelling units contained in two duplex style structures as follows;

-    Single storey ‘duplex’ accessed from Station Street. Unit 1 (adaptable unit) of 136.4m2 with 2 bedrooms. Unit 1A of 76.08m2 with 2 bedrooms.

-    Two (2) storey ‘duplex’ accessed from McGoughans Lane. Unit 3 of 129.85m2 with 3 bedrooms. Unit 4 of 129.85m2 with 3 bedrooms.

The proposed duplex style Multi-Dwelling Housing buildings are centrally located on the 1304m2 site. The two ‘duplex’ structures are set 4.8m apart at ground level and separated by internal privacy fencing. Generous and usable outdoor living / private open space areas are provided at ground level. These spaces are a combination of deck and lawn. The buildings are slab-on-ground construction, finished in a simple mix of heritage appropriate materials and colours i.e., weatherboard, brick, corrugated iron roofs and panel lift doors.

On-site parking is provided in 4 single garages, one internal to each unit. Two stacked spaces, and one visitor space adjoining McGoughans Lane are proposed. The site is generally flat minimising the requirements for earthworks.

The site is zoned R2 Low Density Residential and is within the Mullumbimby Conservation Area, which is predominantly characterised by dwelling houses, specific ‘heritage listed’ dwellings and emergent low density ‘in fill’ housing development.

Submissions received identified a lack of heritage appropriate design, excessive height and building bulk, negative impact on the streetscape, traffic and parking issues, privacy, and overshading effects, impacts of demolition, lack of green space and tree removal, lack of demand for the housing typology proposed and the development being generally inappropriate for Mullumbimby.

Council officers identified similar concerns, and in particular Councils Heritage Advisor initially concluded that; “Amended plans for a development of less intensity should be sought which respects the pattern of single storey-built form to Station Street, with limited driveway intrusion, and is harmonious with the established pattern of development, setbacks, and landscaping. A design which retains a projecting gable form or use of gabled forms is appropriate but should avoid heritage replication, and include careful consideration of window design and proportions”

The matter was raised with the applicant the plans were amended and a more appropriate development has been proposed. Notable changes were the reduction in height of the ‘duplex’ structure adjoining Station Street from two to single storey, reduced bedroom numbers, reduced hard surface areas replaced by landscaping including the retention and /or relocation of existing trees and the integration of more heritage appropriate elements. Councils Heritage Advisor reviewed these changes and concluded;  “It is considered that the amended plans dated 29 June 2022 second issue have addressed the concerns raised and that the proposed development has now satisfactorily addressed the heritage impacts on site, setting, height, bulk and scale and landscaped areas. Approval is supported subject to conditions”

Details of other amendments are discussed in the assessment below. 

Subject to redesign, in response to feedback from redacted submissions and Council officers and given the size of the development site the proposed development is comparatively restrained as evidenced by general compliance with the relevant development controls. Containing the 4 dwellings within 2 duplex style structures allows the development to ‘read’ as two dwellings and be centred on the site thus allowing for setbacks from all boundaries and appropriate landscaped and permeable area.

Rather than negatively impacting the character, density, and amenity of Mullumbimby this development will make a positive contribution to the towns amenity and sustainability by introducing a mix of low medium density housing typologies which are flood risk responsive and located within easy walking distance of many of the town’s amenities such as schools, the CBD, and a range of government services etc.   

The application is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

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

 

  

 

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2021.619.1 for Demolition of Existing Structures and Construction of Multi Dwelling Housing comprising of Four (4) Dwellings and Strata Subdivision, be granted consent subject to the conditions of approval in Attachment 1.

Attachments:

 

1        DA10.2021.619.1 Conditions of Consent, E2022/102242  

2        DA10.2021.619.1 Proposed Plans for approval, E2022/99502  

3        DA10.2021.619.1 - Submissions_Redacted, E2022/102701  

4        DA10.2021.619.1 Original DA Plans, E2021/131747  

 


 

         

Report

Assessment:

History/Background

Building consent for the exiting dwelling on site was granted 15 January 1981; BA 81/2015.

Description of the proposed development

This application seeks approval for demolition of an existing 132m2 single level unoccupied dwelling in derelict condition and ancillary structures including an open carport and single story shed. Post demolition it is then proposed to establish, and strata title subdivide a multi dwelling housing development consisting of 4 dwelling units contained in two duplex style structures as follows;

-     Low set single storey duplex accessed from Station Street. Unit 1 (adaptable unit) 136.4m2, 2 bedrooms. Unit 1A 76.08m2, 2 bedrooms.

-     Two (2) storey duplex accessed from McGoughans Lane. Unit 3 129.85m2, 3 bedrooms. Unit 4 129.85m2, 3 bedrooms.

See site plan below

 

 

 

The development site is zoned R2 Low Density Residential under the Byron Shire Council Local Environment Plan 2014. (BLEP 2014). Both proposed duplex structures comply with the BLEP 2014 9m height limit. The single storey duplex structure fronting Station Street complies with the Byron Shire Development Control Plan 2014 (BDCP 2014) Building Height Plane (BHP) control. The two-storey duplex fronting McGoughans Lane presents eve and associated roof BHP breaches. See elevation details below. 

 

 

The site will be landscaped, and a landscaping plan has been provided. This plan shows the retention or relocation of as many existing trees as practicable. Required on-site parking is provided in single car garages within each dwelling, stacked ‘on drive’ parking adjoining McGoughans Lane and one (1) visitor space located in the north-western corner of the site accessed from McGoughans Lane.

A draft strata plan of subdivision has been provided.

A Heritage Impact Assessment Report has been provided.

A full drawing / application document set is appended to this assessment report.

Revised plans provided in response to redacted submissions and Council feedback 

Plans initially received with application showed;

-     two (2) more bedrooms i.e. 4 x 3-bedroom units, and

-     two (2) storey development fronting onto Station Street, thus more BHP breaches, and 

-     visitor and disabled parking accessed off Station Street hence a wider ‘concreted’ front setback adjoining Station Street and wider vehicle crossing points,

-     a maximum building height of the 9.1m exceeding the 9m permitted by the BLEP 2014, and

-     no detailed Heritage Impact Assessment provided.   

After a review of redacted submissions and feedback from Councils Heritage Consultant, Planner and Development Engineer the current revised plan set, and information was provided.

Description of the site

The subject site is described as Lots 26 and 27 of Section 4 in DP2772. The development site is a combination of 2 lots. Each lot has an area of 652m2 giving the site has an overall area of 1304m2. The site is rectangular with street and lane frontages of 20.12m and an east / west longitudinal dimension of 57.5m. Access to the site is via Station Street from the east and McGoughans Lane from the west.

The site contains a single storey fibro dwelling house which is derelict and unoccupied, single storey timber shed and an open carport closer to McGoughans Lane. The site is generally flat with a reduced level of approximately 3.9m AHD.

See existing site plan below;

 

There are a number of established trees on the site with the balance of the site being unkept grass. The northern boundary of the site is fenced with a 1-metre-high galvanised post and wire fence. The southern boundary features a close boarded unpainted timber paling fence approximately 1m in height 6m into the site from its Station Street. This same fence then steps up to 1.8m along most of the southern boundary before returning into a 1.8m high galvanised wire and post fence which then extends along the sites McGoughans Lane boundary.

The site is approximately 250m from Mullumbimby’s Burringbar Street CBD, via McGoughans Lane.  

 

Plan above shows R2 Low Density Residential zoning, existing development / vegetation on site and location of adjoining dwellings

 

Several site visits have been made since the application was lodged and changes to design etc made.

Land is legally described

LOT: 26 SEC: 4 DP: 2772 and LOT: 27 SEC: 4 DP: 2772

Property address

99 Station Street MULLUMBIMBY

Land is zoned:

R2 Low Density Residential 

Land area is:

1304m2 development site area

Property is constrained by:

 

Flood Liable Land Acid Sulfate Soils Class 4         

 

Is a BDAR required due to the location of the proposed development?

Yes  No

 

Are there any easements in favour of Council affecting the site?

Yes  No

 

Is there a Vegetation Management Plan which might affect the proposal?

Yes  No

 

Is there a Voluntary Planning Agreement which might affect the proposal?

Yes  No

 

 

1.   SUMMARY OF REFERRALS

 

Referral

Issue

Development Engineer

No objections subject to conditions.

S64 / Systems Planning Officer

No objections subject to conditions.

S7.11 / Contributions Officer

No objections subject to conditions.

Councils Heritage Advisor

No objections subject to conditions.

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

Issues:

Councils Heritage Consultant reviewed the initial application, all subsequent amendments and submissions received, and concludes as follows;

As regards the initial application; Amended plans for a development of less intensity should be sought which respects the pattern of single storey built form to Station Street, with limited driveway intrusion, and is harmonious with the established pattern of development, setbacks and landscaping. A design which retains a projecting gable form or use of gabled forms is appropriate but should avoid heritage replication, and include careful consideration of window design and proportions.

After a review of redacted submissions, feedback from Councils Heritage Advisor, Planner and Development Engineer the applicant provided amended plans