CSP Objective	CSP Strategy	DP Action	Code	OP Activity
4: Ethical Growth	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 development assessments in accordance with the relevant legislation
5: Connected Infrastructure	5.3: Invest in renewable energy and emerging technologies	5.3.1: Future needs - Plan for the infrastructure needs of the current and future population	5.3.1.5	Report regulatory traffic matters and items requiring comment through the Local Traffic Committee for recommendation to Council for approval
5: Connected Infrastructure	5.2: Connect the Shire through integrated transport services	5.2.4: Parking - Manage parking through effective controls that support Movement and Place Plans and are coordinated with other initiatives such as park and ride	5.2.4.6	Implementation of Paid Parking Scheme in Brunswick Heads

BYRON SHIRE COUNCIL

Staff Reports - General Manager 13.1

Staff Reports - General Manager

Report No. 13.1 Improving the visibility of significant Development Applications

Directorate: General Manager

Report Author: Annie Lewis, Media and Communications Coordinator

File No: I2024/953

Summary:

At the meeting on 18 April 2024 staff were directed to prepare a report that considers how to improve the visibility of significant Development Applications (DAs) and other events happening at Council and in Byron Shire (Resolution 24-178).

Acknowledging the community interest in some DAs, staff (Planning and IT) are currently working on a cost-effective way to promote DAs of community significance to interested people. This includes assessing how Councils in other areas are sharing this sort of information. It is likely that any new Byron Shire Council initiative will involve the distribution of information directly to subscribers’ email addresses.

RECOMMENDATION:

That Council investigates options for the establishment of a subscription service to alert subscribers to DAs in a particular area or Shire-wide.

Report

Improving the visibility of DAs of public interest

Since 2020 Council has not been required to advertise public notices in a newspaper circulating or distributed in the Byron Shire Local Government area. This includes development applications (DAs) on exhibition, after the NSW Government changed legislative requirements relating to advertising in print media.

People interested in DAs are directed to Council’s website and the DA Tracker portal which provides information about:

· DAs submitted including supporting documents

· DAs determined

· Search for current and history DAs

· A map indicating DAs for properties around the shire.

When Council did advertise DAs in the Byron Shire Echo, aside from the DA number, address and description of the DA, members of the public were directed to Council’s website for details/more information.

Note: Council continues to advertise projects and matters of interest in the Echo with the spend from 1 July 2023 to 10 April 2024 being more than $35,000.

The DA Tracker page is consistently one of the most highly accessed pages on the entire website. For example:

· In the last 12 months (to May 29, 2024) the DA Tracker page was the second most popular page on the website with 45, 243 page views. Second only to the homepage with 182,894 page views. This suggests customers are not finding this page difficult to find.

· In the 90 days to 29 May, the DA Tracker was the second most popular page with 11,630 page views. In comparison to the third most popular content page of ‘Where can I park?’ with 5,951 page views (51% less views).

· In the last 12 months, the Google search query ‘byron da tracker’ is the fourth most popular search query for Council. The term da tracker features six times in the top 25 search queries. The click through rate is 94%.

Council’s E News, which is distributed fortnightly to a subscriber base of approximately 17,000 people, highlights a click-through link for those interested in this information.

The analytics of the E News show it has an average open rate of approximately 50% (8,500 people every fortnight) with the DA link consistently one of the most popular pages.

The website and the E News are the most effective and cost-efficient ways to distribute information about DAs to the community.

As part of this report staff were asked to consider how to reach the greatest number of community members to advise them of a range of matters. These matters are addressed below.

DAs that are likely to be of public interest

DAs that are likely to be of public interest, for the purposes of this report, refer to DAs that are regarded as ‘community significant development’.

These are defined by gross floor area, development assessed by the Northern Regional Planning Panel, larger subdivisions and residential accommodation, pubs, function centres etc. A full definition can be found on Council’s website. Property Development Guidelines - Byron Shire Council (nsw.gov.au)

In addition, some other development in the Byron Shire can be regarded as controversial, staff are now looking at an effective, directed way of alerting people interested in DAs on exhibition. This will likely take the form of a regular email sent directly to people who subscribe to this service.

As was the case when Council did advertise DAs in the Echo, people will be directed to the website for more information.

Planning staff are liaising with IT staff on options available and looking at how some other Councils in NSW are approaching this.

In the meantime, the Comms team can elevate the ‘DAs on exhibition’ tab in the E News to a higher position in the newsletter and provide a link to the DA Tracker on Facebook every two weeks, coinciding with the E News publication.

The DA Tracker link is and always has been available from the homepage of the website.

Public notices or similar from State and Federal agencies such as Planning Panels

Relevant public notices or other information from the NSW and Australian governments is promoted via Council’s website and, sometimes via other mediums such as social media. Often this is at the request of staff in the SEE, IS or CCS directorates. Promotion of DAs being assessed by the Planning Panel would be captured in a future initiative to promote community significant DAs.

Whether or not NSW and Federal governments embark on wide-ranging engagement campaigns is not something Council can control. Generally important issues/matters of community interest are promoted to Council and this information is shared via social media, E News etc, then shared with the community.

Items usually put on the Your Say page of Council’s website

Staff currently use a range of methods to promote consultations on Council’s Your Say page including:

· Print advertising (e.g. Echo, Bangalow Herald)

· Radio advertising when appropriate (BayFM)

· E News

· Social media

· Stakeholder emails and letters

· Pop-up information sessions (Markets and Street Stalls).

· Info sessions (Council chambers/Council building).

Comms staff approach every consultation with the aim of getting as much engagement as possible. Some projects garner more public interest than others.

Engagement rates via Your Say are generally very good, defined by the number of views divided by the number of responses to a survey or other engagement activity. We also measure the number of informed participants (interacted with a web page, downloaded a document, received an email or letter, attended a pop-up session) and aware participants (number of page visits, number that saw an ad, impressions on social media).

As per IAP2 guidelines. A measure of success is not necessarily only the number of responses received. Not everyone who views a consultation may want to participate, they may only want to be informed.

Analytic information from the Your Say page shows:

· In the last 10 months to 29 May 2024, the Your Say section (across multiple project pages) has received 47,238 page views.

· From mid-2023 to May 2024 we have consulted with the community on over 40 active Your Say projects.

Most popular projects during this time include:

o Burringbar-Street-Draft-Concept-Design (3,473 page views).

o Short-term-rental-accommodation-Planning-Proposal (3,104 page views)

o Have-your-say-on-future-housing-options-in-Byron-Shire (2,241 page views)

Councillors, and community organisations are always encouraged to share information with their networks as well. Where relevant, letterbox drops are often done.

The community reach of the above methods is extensive. At some point though, people must be responsive to reading and hearing about Council projects.

Other significant issues that affect Byron Shire residents and businesses and items of public significance.

The primary focus of promotion and communication activities is on Council-related issues. It is not appropriate for Council resources to be used to promote activities that do not relate to the organisation.

Staff receive regular requests from a range of public and private interests to promote a wide range of issues (commercial and not-for-profit) to improve the reach of their campaigns in a cheap and cost-effective manner by using Council’s existing databases.

It is important for our channels to not be diluted or devalued by third-party content and for this reason activities that are not related to, sponsored by or supported by Council are generally promoted or advertised. This approach is in line with many other NSW Councils.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
1: Effective Leadership	1.2: Engage and involve community in decision making	1.2.1: Community-led decision making - Engage with community to inform Council decision making	1.2.1.1	Provide opportunities for the community to have input, comment and feedback to Council on projects and matters of interest
1: Effective Leadership	1.2: Engage and involve community in decision making	1.2.2: Communication - Provide timely information to the community about Council projects and activities through traditional and digital media	1.2.2.1	Keep the community informed of Council projects via a combination of media releases, social media and E News
4: Ethical Growth	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	4.1.1.3	Exhibit development applications as required by the Community Participation Plan

Recent Resolutions

· Resolution 24-178

Legal/Statutory/Policy Considerations

N/A

Consultation and Engagement

· SEE

· IT

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.2

Staff Reports - Corporate and Community Services

Report No. 13.2 Council Investments - 1 June 2024 to 30 June 2024

Directorate: Corporate and Community Services

Report Author: James Brickley, Manager Finance

File No: I2024/1039

Summary:

This Report includes a list of investments and identifies Council’s overall cash position for the period 1 June 2024 to 30 June 2024 for information.

This Report is prepared to comply with Section 212 of the Local Government (General) Regulation 2021.

RECOMMENDATION:

That Council notes the report listing Council’s investments and overall cash position as of 30 June 2024.

Report

Council has continued to maintain a diversified portfolio of investments. As of 30 June 2024, the average 90-day bank bill rate (BBSW) for the month was 4.45%. Council’s performance for June 2024 was 4.66%. A higher BBSW indicates that Council earned a better return on its short-term investments compared to the market average.

The table below identifies the investments held by Council as at 30 June 2024.

Schedule of Investments held as at 30 June 2024

Purch Date	Principal ($)	Description	CP*	Rating	Maturity Date	Fossil Fuel	Type	Int. Rate	Current Value ($)
15/11/18	1,000,000.00	NSW Treasury Corp (Green Bond)	N	AAA	15/11/28	N	B	3.00%	949,090.00
28/03/19	1,000,000.00	National Housing Finance & Investment Corporation	Y	AAA	28/03/29	N	B	2.38%	919,720.00
21/11/19	1,000,000.00	NSW Treasury Corp (Sustainability Bond)	N	AAA	20/03/25	N	B	1.25%	981,070.00
27/11/19	500,000.00	National Housing Finance & Investment Corp	Y	AAA	27/05/30	N	B	1.52%	424,399.50
15/06/21	500,000.00	National Housing Finance & Investment Corp	Y	AAA	01/07/31	N	B	1.99%	500,383.64
06/09/21	1,000,000.00	Northern Territory TCorp	N	Aa3	15/12/26	N	B	1.40%	1,000,000.00
16/09/21	1,000,000.00	QLD Treasury Corp (Green Bond)	N	AA+	02/03/32	N	B	1.83%	794,580.00
30/10/23	850,000.00	Bank Australia Ltd	P	BBB+	30/10/26	N	FRN	5.84%	854,272.82
21/02/24	500,000.00	Bank Australia Ltd	N	BBB+	21/02/28	N	FRN	6.04%	504,696.51
27/11/23	1,000,000.00	Westpac Tailored	P	AA-	27/11/24	N	TD	5.40%	1,000,000.00
04/12/23	2,000,000.00	Bank of QLD	P	A-	04/10/24	N	TD	5.10%	2,000,000.00
12/01/24	5,000,000.00	NAB	P	AA-	10/07/24	Y	TD	5.10%	5,000,000.00
12/01/24	5,000,000.00	Heritage Bank	P	BBB	11/07/24	N	TD	5.00%	5,000,000.00
07/02/24	1,000,000.00	Auswide Bank	N	BBB-	07/08/24	N	TD	5.15%	1,000,000.00
06/03/24	2,000,000.00	Beyond Bank	P	BBB	04/09/24	N	TD	5.05%	2,000,000.00
07/03/24	2,000,000.00	Judo Bank	P	BBB-	05/09/24	N	TD	5.20%	2,000,000.00
14/03/24	1,000,000.00	Bank of QLD	N	A-	16/09/24	N	TD	5.17%	1,000,000.00
04/04/24	1,000,000.00	Judo Bank	N	BBB-	04/07/24	N	TD	5.00%	1,000,000.00
08/04/24	2,000,000.00	NAB	N	AA-	08/07/24	Y	TD	5.00%	2,000,000.00
10/04/24	2,000,000.00	Judo Bank	N	BBB-	10/07/24	N	TD	5.00%	2,000,000.00
12/04/24	5,000,000.00	Judo Bank	N	BBB-	11/07/24	N	TD	5.00%	5,000,000.00
18/04/24	1,000,000.00	NAB	N	AA-	17/07/24	Y	TD	5.00%	1,000,000.00
19/04/24	1,000,000.00	Judo Bank	N	BBB-	18/07/24	N	TD	5.00%	1,000,000.00
29/04/24	1,000,000.00	NAB	N	AA-	29/07/24	Y	TD	5.00%	1,000,000.00
08/05/24	2,000,000.00	Judo Bank	N	BBB	07/08/24	N	TD	5.05%	2,000,000.00
13/05/24	5,000,000.00	MyState Bank	P	BBB	13/11/24	N	TD	5.20%	5,000,000.00
20/05/24	1,000,000.00	MyState Bank	N	BBB	19/08/24	N	TD	5.05%	1,000,000.00
20/05/24	1,000,000.00	Judo Bank	N	BBB	19/08/24	N	TD	5.10%	1,000,000.00
22/05/24	1,000,000.00	MyState Bank	N	BBB	21/08/24	N	TD	5.05%	1,000,000.00
29/05/24	1,000,000.00	MyState Bank	N	BBB	27/08/24	N	TD	5.10%	1,000,000.00
05/06/24	5,000,000.00	Bank of QLD	N	A-	05/12/24	N	TD	5.20%	5,000,000.00
05/06/24	5,000,000.00	NAB TD	N	AA-	02/12/24	Y	TD	5.10%	5,000,000.00
05/06/24	5,000,000.00	Police Bank	P	BBB	04/12/24	N	TD	5.20%	5,000,000.00
06/06/24	2,000,000.00	Beyond Bank	N	BBB	05/09/24	N	TD	5.05%	2,000,000.00
18/06/24	2,000,000.00	NAB	N	AA-	16/09/24	Y	TD	5.00%	2,000,000.00
21/06/24	2,000,000.00	NAB	N	AA-	19/09/24	Y	TD	5.00%	2,000,000.00
27/06/24	1,000,000.00	Auswide Bank Ltd	N	BBB-	27/09/24	N	TD	5.05%	1,000,000.00
N/A	30,055,881.78	CBA Business Saver	P	AA-	N/A	Y	CALL	4.35%	30,055,881.78
N/A	545,010.80	CBA Business Saver – Tourism Infrastructure Grant	N	AA-	N/A	Y	CALL	4.35%	545,010.80
N/A	10,210,751.11	Macquarie Accelerator Call	N	A	N/A	Y	CALL	4.20%	10,210,751.11
Total	113,161,643.69						AVG	4.66%	112,739,856.16

Note 1.	CP = Capital protection on maturity

	N = No Capital Protection
	Y = Fully covered by Government Guarantee
	P = Partial Government Guarantee of $250,000 (Financial Claims Scheme)

Note 2.	Fossil Fuel ADI
	N = No investment in Fossil Fuels
	Y = Investment in Fossil Fuels
	U = Unknown Status


Note 3.		Type	Description
		B	Bonds	Principal can vary based on valuation, interest payable via a fixed interest, payable usually each quarter.
		FRN	Floating Rate Note	Principal can vary based on valuation, interest payable via a floating interest rate that varies each quarter.
		TD	Term Deposit	Principal does not vary during investment term. Interest payable is fixed at the rate invested for the investment term.
		CALL	Call Account	Principal varies due to cash flow demands from deposits/withdrawals. Interest is payable on the daily balance.

Environmental and Socially Responsible Investing (ESRI)

An additional column has been added to the schedule of Investments to identify if the financial institution holding the Council investment has been assessed as a ‘Fossil Fuel’ investing institution. This information has been sourced through www.marketforces.org.au and identifies financial institutions that either invest in fossil fuel related industries or do not. The graph below highlights the percentage of each classification across Council’s total investment portfolio in respect of fossil fuels only.

The notion of Environmental and Socially Responsible Investing is much broader than whether a financial institution as rated by ‘marketforces.org.au’ invests in fossil fuels or not. Council’s current Investment Policy defines Environmental and Socially Responsible Investing at Section 4.1 of the Policy which can be found on Council’s website.

Council may from time to time have an investment with a financial institution that invests in fossil fuels but is nevertheless aligned with the broader definition of Environmental and Socially Responsible investments. When this occurs, the investment will be marked as no fossil fuels given the investment purpose.

During the month of November 2023 as an example, Council undertook an investment with Westpac Bank as a tailored deposit. The investment proceeds are utilised for environmental purposes as this investment in Climate Bond Ceritifed.

With the lifting of the NSW Treasury Corporation loan borrowing covenant on Council’s investments, growth has recommenced in acquiring investments not aligned with fossil fuels. Council’s portfolio reached its lowest point in August 2023 at 15% and as at 30 June 2024, the portfolio has increased to 43%.

Investment Policy Compliance

The below table identifies compliance with Council’s Investment Policy by the proportion of the investment portfolio invested with financial institutions, along with their associated credit ratings compared to parameters in the Investment Policy. The parameters are designed to support prudent short and long-term management of credit risk and ensure diversification of the investment portfolio. Note that the financial institutions currently offering investments in the ‘ethical’ area are still mainly those with lower credit ratings (being either BBB or not rated at all i.e., credit unions).

The investment portfolio is outlined in the table below by investment type for the period 1 June 2024 to 30 June 2024:

Investment policy compliance
% should not exceed the following			ACTUAL

AAA to AA	A1+	100%	49%	Meets policy
A+ to A-	A1	60%	16%	Meets policy
BBB to NR	A2,NR	40%	35%	Meets policy

Dissection of Council Investment Portfolio as at 30 June 2024

Principal Value ($)	Investment Linked to:	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
65,000,000.00	Term Deposits	65,000,000.00	0.00
30,055,881.78	CBA Business Saver	30,055,881.78	0.00
545,010.80	CBA Business Saver – Tourism Infrastructure Grant	545,010.80	0.00
10,210,751.11	Macquarie Accelerator	10,210,751.11	0.00
7,350,000.00	Bonds/Floating Rate Notes	6,928,212.47	(421,787.53)
113,161,643.69	Total	112,739,856.16	(421,787.53)

Council’s overall ‘cash position’ is not only measured by funds invested but also by the funds retained in its consolidated fund or bank account for operational purposes. The table below identifies Council’s overall cash position for the month of June 2024 as follows:

Dissection of Council’s Cash Position as at 30 June 2024

Item	Principal Value ($)	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
Investments Portfolio
Term Deposits	65,000,000.00	65,000,000.00	0.00
CBA Business Saver	30,055,881.78	30,055,881.78	0.00
CBA Business Saver – Tourism Infrastructure Grant	545,010.80	545,010.80	0.00
Macquarie Accelerator	10,210,751.11	10,210,751.11	0.00
Bonds	7,350,000.00	6,928,212.47	(421,787.53)
Total Investment Portfolio	113,161,643.69	112,739,856.16	(421,787.53)
Cash at Bank
Consolidated Fund	5,333,478.02	5,333,478.02	0.00
Total Cash at Bank	5,333,478.02	5,333,478.02	0.00
Total Cash Position	118,495,121.71	118,073,334.18	(421,787.53)

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
1: Effective Leadership	1.3: Ethical and efficient management of resources	1.3.1: Financial Management - Ensure the financial integrity and sustainability of Council through effective financial management	1.3.1.6	Maintain Council's cash flow

Legal/Statutory/Policy Considerations

In accordance with Section 212 of the Local Government (General) Regulation 2021, the Responsible Accounting Officer of Council must provide Council with a monthly report detailing all monies it has invested under section 625 of the Local Government Act 1993.

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

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

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

Financial Considerations

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

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.3

Staff Reports - Sustainable Environment and Economy

Report No. 13.3 PLANNING -DA 10.2021.348.2 - Modification to mixed use development including changes to design and number of parking spaces and increase from two storey to three storeys in on-site car parking structure 156-158 Jonson Street BYRON BAY

Directorate: Sustainable Environment and Economy

Report Author: Patricia Docherty, Team Leader Planning Services - Commercial Industrial & Tourism

File No: I2024/995

Proposal:

Proposed modification:	Modification to mixed use development including changes to design and number of parking spaces and increase from two storey to three storeys in on-site car parking structure
Original Development:	Alterations to existing building and change of use to mixed use development including shop, office premises and construction of a two-storey carpark
Type of modification sought:	4.55(2) Other modifications
Property description:	LOT: 51 DP: 844054, LOT: 9 DP: 818197, LOT: 1 DP: 1289363 and part of Lot 1 DP1267388 (Mitre 10)
Property description:	158 Jonson Street, 156 Jonson Street (Part of 148 Jonson Street) BYRON BAY
Parcel No/s:	237062, 157320, 271330 and part of 270371
Applicant:	Ardill Payne and Partners
Owner:	156 Jonson St Pty Ltd
Zoning:	B2 Local Centre SP2 Infrastructure (Car Park) C2 Environmental Conservation C3 Environmental Management
Date received:	10 April 2024
Original DA determination date:	11 August 2022
Integrated Development:	No
Public notification or exhibition:	- Level 2 advertising under the Byron Shire Council Community Participation Plan. - Exhibition period: 24 April 2024 to 8 May 2024 - Submissions received: 16 submissions of objection
Planning Review Committee:	6 June 2024
Delegation to determination:	Council
Issues:	The proposed modification is not substantially the same development as originally approved. The proposal presents poor design outcomes compared to the approved design of the ‘Harris Farm Markets,’ commercial mixed use development and associated car park. The proposal: · disconnects the car park from the approved commercial building and removes level, accessible connectivity between floor levels for shoppers and tenants. · increases the height of the multi deck car parking from two to three storeys, thereby increasing the number of car park levels adjacent to the adjoining residential land while increasing the number of car parks by 25 spaces. · removes the approved roof cover on the car park required by current consent (condition 16B) for photovoltaics solar panels and their reintroduction would appear likely to encroach or exceed the 9 metre height limit. · deletes provision of an entry plaza and replaces it with back of house loading areas on the south side of the commercial use between the car park that provides for potential access to the future ‘rail trail’ (required by current consent (condition 16A). · substantially reduces the proposed commercial floor area on the upper level of the mixed use building. · raises issues related to access and manoeuvrability of vehicles, trucks and loading including an increase in space needed on the road reserve for the manoeuvring of vehicles. · encroaches further into the unmade road reserve to the south end of Jonson Street and likely increase in loss of vegetation. · raises acoustic impacts compared to that approved due the increase in number of parking levels with immediate frontage to adjoining residential land. · raises uncertainty about the functionality and orderly development with vague reference to the adjoining former Mitre 10 site with a proposed walkway between ‘future’ buildings but there is no detail to support this. No development application for the adjoining separate site has been received to provide greater clarity and important context. The applicant was advised that the proposed modification is not supported and was given the opportunity to withdraw the application. The applicant did not withdraw the application prior to the agenda being published.

Summary:

Council approved alterations to the existing building and change of use to mixed use development including shop (Harris Farm Market), office premises and construction of a two-storey carpark on 11 August 2022. The cost of development was estimated to be $13,658,873.

The existing factory/warehouse building, formerly used by the Wicked Weasel Ladies Swimwear company, was approved to be fitted out for use as a Harris Farm Markets grocery store at ground level with an ancillary office, back of house cool room and bakery and separate office tenancy intended for use as a co-working space on the upper level.

This consent provided for the existing building to be connected by level access at both levels of a two-storey car park south of the existing building containing 227 car parking spaces and 16 motorcycle spaces (equivalent 231 spaces under Byron DCP 2014). The original consent required a roof and photovoltaic solar panels on the second level of the car park and a gate to be provided to the rail corridor for future access to the ‘rail trail.’

The existing building is located on a battle axe lot with vehicular access from the south end of Jonson Street and frontage to Butler Street Bypass. Part of the car park site is located on a recently excised parcel of surplus rail land now registered with NSW land registry services and transfer of ownership completed. All three lots, including the mixed-use building and car park are required to be consolidated into one lot in the original consent by the original consent.

The approval requires road upgrades to the southern end of Jonson Street, removal of vegetation on land zoned SP2 (Car Park) and environmental regeneration of the adjoining conservation zoned land, which will be subject to implementation of a vegetation management plan.

The proposed modification is not substantially the same development as originally approved. The modification to the layout, configuration, height and floor space of the mixed use development including changes to design and number of parking spaces and increase from two storey to three storeys in on-site car parking structure is substantially different to the original approved development. The proposal presents poor design outcomes compared to the approved design of the ‘Harris Farm Markets,’ commercial mixed use development and associated car park under the original consent and is not considered to present a clear public benefit to support such changes.

The proposed modification is not supported with consideration for the functionality of the site in the local centre zone, design excellence and its compatibility with adjoining land uses and zones.

The proposal is not satisfactory having regard to relevant matters for consideration and the section 4.55 application is recommended for refusal on the grounds listed in the Recommendation 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:

It is recommended pursuant to Section 4.55 of the Environmental Planning & Assessment Act 1979, that Application No. 10.2021.348.2, for modification to mixed use development including changes to design and number of parking spaces and increase from two storey to three storeys in on-site car parking structure, be refused for the following reasons:

1. Pursuant to section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development does not comply with Clause 6.6 Essential Services of Byron Local Environmental Plan 2014.

2. Pursuant to section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development does not comply with Clause 6.13 Design Excellence of Byron Local Environmental Plan 2014.

3. Pursuant to section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development does not provide sufficient information to demonstrate that the reconfigured car park will comply with Clause 4.3 Height of buildings of Byron Local Environmental Plan 2014 with full consideration for the roof and photovoltaic panels that would need to be reinstated in accordance with the original consent.

4. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development does not comply with Chapter B3 Services of Byron Development Control Plan 2014.

5. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development does not comply with Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access of Byron Development Control Plan 2014.

6. Pursuant to Section 4.15 (1) (b) of the Environmental Planning and Assessment Act 1979 the proposed development is likely to result in adverse environmental impacts on both the natural and built environments, and economic and social impacts in the locality because the proposal is not substantially the same development compared to that approved in the original consent.

7. Pursuant to Section 4.15(1)(d) and of the Environmental Planning & Assessment Act 1979 the proposed development is not in the public interest with regards for relevant matters for consideration raised in properly made submissions received by Council in accordance with Section 4.55(2)(d).

8. Pursuant to Section 4.15(1)(e) of the of the Environmental Planning and Assessment Act 1979 the proposed development is not in the public interest for the reasons outlined above.

9. Pursuant to Section 4.55(2)(a) of the Environmental Planning and Assessment Act 1979 it is not satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.

Attachments:

1 10.2021.348.2 Redacted Submissions, E2024/59495

2 10.2021.348.2 - Architectural Plans, E2024/29766

3 10.2021.348.1 Orginal Consent - Stamped Approved DA Plan set - Marked in red, E2022/51263

4 10.2021.348.1 Original Consent - Notice of Determination and Statement of Reasons - Approval, A2022/29280

Report

Figure 1: Locality Plan

Assessment:

1. INTRODUCTION

1.1. History/Background

The subject site comprises an existing building, vacant land and an excised part of the former rail Corridor.

DA10.2021.348.1 for Alterations to Existing Building and Change of Use to Mixed Use Development including Shop, Office Premises and Construction of a Two-Storey Carpark was approved at a meeting of Council on 11 August 2022.

1.2. Description of the proposed development

This application seeks approval for a modification to mixed use development including changes to design and number of parking spaces and increase from two storey to three storeys in on-site car parking structure. The proposed modification is not substantially the same development as originally approved. The proposal presents poor design outcomes compared to the approved design of the ‘Harris Farm Markets,’ commercial mixed use development and associated car park. In particular, the proposal:

· disconnects the car park from the approved commercial building and removes level, accessible connectivity between floor levels for shoppers and tenants.

· increases the height of the multi deck car parking from two to three storeys, thereby increasing the number of car park levels adjacent to the adjoining residential land while increasing the number of car parks by 25 spaces.

· removes the approved roof cover on the car park required by current conditions of consent for photovoltaics and their reintroduction would appear likely to result in an exceedance over the 9 metre height limit.

· deletes provision of an entry plaza on the south side of the commercial uses between the car park building that provides for potential access to the future ‘rail trail’ and replaces it with back of house loading areas.

· reduces the proposed commercial floor area on the upper level of the mixed use building.

· raises issues related to access and manoeuvrability of trucks and loading including an increase in space needed on the road reserve for the manoeuvring of trucks that will further encroach into the vegetated road reserve to the south end of Jonson Street.

· raises acoustic impacts compared to that approved due the increase in parking levels with immediate frontage to adjoining residential land.

· vaguely references the adjoining former Mitre 10 site with a proposed walkway between ‘future’ buildings but there is no detail to support this. There is no certainty about the functionality and orderly development of these aspects of the proposal. No development application for the adjoining separate site has been received to provide greater clarity and important context.

Diagram

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Figure 2: Approved Site Plan and Section/Elevation to Jonson St

Figure 3: Proposed Site Plan and Car Park Elevations to Jonson Street

Figure 4: Approved 3D Perspective

Figure 5: Proposed Modification 3D Perspective

The applicant was advised on 5 July 2024 that the modification application is not supported and provided the opportunity to withdraw the application before being reported to Council with a recommendation for refusal. The feedback presented to the applicant was detailed as follows:

This modification has been carefully reviewed by council staff in relation to the design review process, engineering, acoustic matters etc.

Following discussion with senior staff (Director and Manager), you are advised that the 4.55 application is not supported.

The design quality of the modification compared to the originally approved development raises issues, including the following:

· Aspects of the site that will rely on a DA for the adjoining ‘future co-working site / Mitre 10’ site that has not been lodged with council:

o Lack of detail, clarity, and certainty about orderly development in relation to delivery of key elements that rely on the adjoining site.

§ Concerns the Laneway between ‘future’ co working site and Harris Farm could be even less than the 4 metres shown on the plans.

§ Actual site boundary and relationship and interface is uncertain and cannot be addressed in the modification.

§ No certainty to establish if there needs to be a right of way etc. up front to address functionality and access between the lots.

· Poor design and planning outcomes:

o Orientation of the car park and dominance of the proposed loading dock turns its back on the rail corridor.

§ Disconnection and removal of approved gate access future rail trail for bikes, pedestrians.

§ Loss of public [SIC should read: plaza/communal] spaces adjacent to the rail corridor and within the site.

o Loss of permeable, accessible connectivity between the floor levels Harris Farm building / commercial activities and car park.

o Loss of commercial floor space on the mezzanine.

o Acoustic impacts from additional level of parking adjacent to residential.

o Unacceptable impacts to support a nominal net increase of 14 car spaces.

· Comments provided in the panel advice 22.2023.5.1 have not been addressed.

o Bike parking is poorly and disparately sited – advice for it to be on northern part of the site with good access to town etc has not provided. EV charging there are too few.

o Photovoltaics on the roof of the car park not provided – to comply this will result in further height variation that is not addressed in the application.

· All things considered, there is a lack of public benefit to support a variation to height.

· Public submissions of objection raise relevant matters for consideration that cannot be overcome by conditions of consent.

At the time of writing this report, the applicant had not withdrawn the application.

1.3. Description of the site

Figure 6: Zoning

Land is legally described	LOT: 51 DP: 844054, LOT: 9 DP: 818197, LOT: 1 DP: 1289363 and part of Lot 1 DP1267388 (Mitre 10)
Property address	158 Jonson Street, 156 Jonson Street (Part of 148 Jonson Street) BYRON BAY
Land is zoned:	B2 Local Centre; SP2 Infrastructure (Car Park); C2 Environmental Conservation; C3 Environmental Management
Property is constrained by:	Flood Liable Land; Bushfire prone land; Acid Sulfate Soils Class 2; and 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

The existing building is located on a battle axe lot with vehicular access from the south end of Jonson Street and frontage to Butler Street Bypass. The proposed car park is to be located on land to the south of the existing building also with access from Jonson Street. The site adjoins coastal wetlands and is adjacent to residential land.

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Figure 7: Site photos view from Jonson Street Road Reserve looking north and south

2. SECTION 4.15 – 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.

2.1. State Environmental Planning Instruments

The original assessment considered the provisions of the relevant SEPP’s applicable to the land and the proposed development, as follows:

Considerations	Satisfactory	Unsatisfactory
Biodiversity and Conservation SEPP 2021 Consideration: Chapter 2 Vegetation in non-rural areas. Chapter 2 of the B&C SEPP doesn’t apply because it only relates to vegetation clearing not ancillary to development. All vegetation clearing and compensation was assessed in Council’s ecology assessment and conditions of consent to provide for vegetation management and restoration. No clearing is proposed on land Zoned C2 or C3. Chapter 4 Koala habitat protection The subject land is within the koala planning area as defined under the Byron Coast Comprehensive Koala Plan of Management (CKPoM) as approved under Section 4.17 of the B&C SEPP. As the subject land is less than 1 ha in area, the CKPoM does not apply to the proposal.	☒	☐
Resilience and Hazards SEPP 2021 Consideration: Chapter 2 Coastal management The proposal involves works on land within the proximity area to coastal wetlands as mapped under Chapter 2 of the R&H SEPP. The proposal is not expected to impact the biophysical, hydrological, and ecological integrity of the adjacent coastal wetland. It is therefore considered that the proposal complies with Section 2.8 of the R&H SEPP. Note. A small strip in the southern extent of the parcel is identified on the biodiversity values map. This area corresponds to a coastal wetland mapped under the R&H SEPP. No development is proposed on this part of the site. The mapped coastal wetland extends beyond the parcel to the south. There are also large areas of land identified on the biodiversity values map to the west and north. The remainder of the site is mapped as a proximity area for coastal wetland. Chapter 4 Remediation of land The applicant has undertaken preliminary assessment in accordance with the R&H SEPP. The findings have been assessed by Council’s Environmental Health Officer in their referral assessment referred to in Section 2.1 of this report. The proposed development can be supported subject to conditions required to be net included in the recommendations of this report.	☒	☐
Transport and Infrastructure SEPP 2021 Consideration: Chapter 2 Infrastructure The DA was referred to Essential Energy in accordance with Division 5 Electricity transmission or distribution, Subdivision 2 Development likely to affect an electricity transmission or distribution network S2.48 Determination of development applications—other development. The DA was referred to Transport for NSW in accordance with Division 15 Railways Subdivision 2 Development in or adjacent to rail corridors and interim rail corridors—notification and other requirements, S 2.97 Development adjacent to rail corridors. The DA was referred to Roads and Maritime Services in accordance with Division 17 Roads and traffic, Subdivision 2 Development in or adjacent to road corridors and road reservations, S2.118 Development with frontage to classified road and S 2.121 Traffic-generating development.	☒	☐

2.2. 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 Mixed use development comprising shop and office and Car park;

(b) The land subject to the proposed development is within the E1 Local Centre and SP2 Infrastructure (Car Park) zone; according to the Land Zoning Map;

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

Zone Objective E1	Consideration
• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.	The proposed modifications would result in poor design and planning outcomes compared to that approved for the detailed reasons outlined in this report. The proposed modification is not substantially the same development. I would result in loss of commercial space. Removal of the on-site plaza and other spaces that provided for vibrant and active spaces within the site reduces connectivity between commercial uses, parking and public land. The approved mixed use development in its original form comprising shop and office uses provides retail and employment spaces and will serve the needs of the community in proximity to available public transport routes. It will provide for upgrades for pedestrians and cycle facilities to encourage walking and cycling to and from the site. The proposed modification to the approved development is inconsistent with the objectives of the E1 Zone and is not supported.
• To encourage investment in local commercial development that generates employment opportunities and economic growth.
• To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.
• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.
• To maximise public transport patronage and encourage walking and cycling.

Zone Objective SP2 Infrastructure (Car Park)		Consideration
• To provide for infrastructure and related uses.		The original approved development provides for car parking that is compatible with and not inconsistent with the objectives of the SP2 Infrastructure (Car Park) zone. The approved car park provides for accessible level car parking to and from the approved commercial (Harris Farm and mixed use) building. The proposed modification raises issues that detract from the approved provision of car parking and would diminish the connectivity for shoppers and tenants of the adjoining site approved under the same consent.
• To prevent development that is not compatible with or that may detract from the provision of infrastructure.

Note.

No development works are proposed on land zoned C2 Environmental Conservation or C3 Environmental Management. There will be a vegetation management plan applicable to these parts of the site for the purposes of biodiversity restoration in perpetuity. This is consistent with the objectives of the C2 and C3 Zone.

C2 Objectives of zone

· To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

· To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

C3 Objectives of zone

· To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

· To provide for a limited range of development that does not have an adverse effect on those values.

· To encourage passive recreation and environmental education where there is no detrimental effect to land.

Environmental protection works are permissible without consent in the C2 and C3 zone.

Clause 4.3 and 4.4 development standards including height and floor space ratio (FSR)

Existing building approval

The existing building is subject to a maximum height of building development standard of 11.5 metres max. and floor space ratio (FSR) development standards (1.3:1).

The overall maximum height of the existing building noting that the ridge of the existing skylight loft is 12.685 metres high. Otherwise, general height to the main roof ridge is 11.3 metres. The approved extension of the building on the northern façade retains the existing height and does not exceed the maximum permissible 11.5 metres. The approved additional skylights on the south section of the roof exceed the maximum permissible 11.5 m and are permitted under the provisions of Clause 5.6 Architectural Roof Features. (See below). Other originally approved new roof works are approximately 8.1 metres and do not exceed the maximum permissible 11.5 m on this part of the site.

The approved FSR of the building is 0.46:1, which is below the permissible 1.3:1 under Clause 4.4 of Byron LEP 2014, calculated based on gross floor area (GFA) and site area, as follows:

Ground Floor = 2,693m²; First Floor = 1,580m²; Total GFA = 4,273m², Land Size= 9,121m². FSR= 0.46:1

Proposed modification to existing building

The overall total maximum height of the existing building does not change. The modification proposes to reduce the gross floor area to 3,035 m², which is a loss of 1,238 m² commercial floor area.

Approved car park

The car park site is subject to a maximum height of building of 9 metres max. but not subject to FSR development standards.

The maximum height of the car park is 8.1 metres according to elevation drawings and below the maximum permissible 9 metres.

Proposed modification to car park

The proposed modification results in a building just under the 9 metre height limit and adds an additional level of parking (2 to 3 storeys). The proposed modification removes the roof and photovoltaic solar panels approved under the original consent.

The reinstatement of these features would appear to result in a building that is closer to or may exceed the height of building limit of 9 metres.

Figure 8: Approved car park elevations

Figure 9: Proposed modification to car park elevations

Clause 5.21 Flood Planning

Much of the site is mapped as flood prone land (see below). Conditions of consent in relation for flood compatible materials and services requirements were included in the original consent conditions.

Figure 10: Extract of flood mapping

Clause 6.1 Acid Sulfate Soils

This clause provides that, where applicable, development consent must not be granted for the carrying out of works unless an acid sulfate soils management plan (ASSMP) has been prepared in accordance with the Acid Sulfate Soils Manual.

Minimal excavation is approved other than for footings and services and no basement car park is proposed. A preliminary ASSMP provides that Acid Sulfate Soils can be adequately managed. Relevant conditions were included in the original consent to ensure management of acid sulfate soils prior to and during works on the site.

Clause 6.13 Design excellence—Byron Bay town centre

The original approved development and proposed modification was referred to the Design Excellence Panel in accordance with Clause 6.13 Design Excellence.

This clause applies to development involving the erection of a new building or alterations to an existing building on land identified as “Design excellence” on the Design Excellence Map. The lot containing the existing building is located on land identified on the Design Excellence map.

The objective of this clause is to ensure that development exhibits design excellence that contributes to the natural, cultural, visual and built character values of Byron Bay town centre.

Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence. Council being the consent authority must consider whether—

(a) the building incorporates sustainable design principles, including in relation to the following—

(i) sunlight,

(ii) natural ventilation,

(iii) wind,

(iv) reflectivity,

(v) visual and acoustic privacy,

(vi) safety and security,

(vii) resource, energy and water efficiency, durability and adaptability, and

(b) a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, and

(c) the proposed development responds well to the environmental and built characteristics of the site and achieves an acceptable relationship with other buildings on the same site and on neighbouring sites, and

(d) the form and external appearance of the development will improve the quality and amenity of the public domain, including by encouraging social activity and casual surveillance in public places, streets and laneways, and

(e) the configuration and design of public access and communal recreational areas within the residential areas—

(i) incorporate exemplary and innovative treatments, and

(ii) promote a sociable village atmosphere, and

(f) the development minimises street clutter and provides ease of movement and circulation of pedestrian, cycle, vehicular and service access, and

(g) the development coordinates shared utility infrastructure and waste management to minimise disruption at street level in public spaces, and

(h) the development appropriately addresses the following matters—

(i) heritage issues and streetscape constraints,

(ii) minimisation of bulk and massing, and modulation of, buildings,

(iii) pedestrian, cycle, vehicular and service access and circulation requirements.

In addition, development consent must not be granted to the following development unless the Byron Design Excellence Panel has endorsed the development as exhibiting design excellence—

(b) alterations or additions to an existing building that—

(ii) change the use of 500 square metres or more of gross floor area of the building,

In this clause—

Byron Design Excellence Panel means a panel, consisting of 2 or more persons, established by the consent authority for the purposes of this clause.

Council resolved on 7 November 2021 to promulgate a design excellence panel under clause 6.13 of the BLEP to ensure optimum compliance is achieved by new development with the Byron Bay Town Centre Planning controls.

Resolved 21-485 that Council appoints the Director Sustainable Environment and Economy and Mr Rod Simpson (Wilson & Simpson) as the members of the Byron Design Excellence Panel for the purposes of development application assessment under Byron Local Environmental Pan 2014 - Clause 6.13 Design Excellence – Byron Bay Town Centre.

This clause only applies to the existing building and does not include the car park land.

A Design Excellence Panel referral was made on the original development. The majority of the recommendations made by the panel were included in the approved conditions except for the consideration of the future treatment of the western façade with art, which is not visible from the public domain at any point until such time as the rail trail is activated.

The proposed modification raises design issues with regards to the development for the reasons outline in this report, including:

· disconnection - removes level, accessible connectivity between floor levels for shoppers and tenants.

· height of the multi deck car parking from two to three storeys, increasing the acoustic impacts of the development on nearby dwellings.

· removes the approved roof cover and photovoltaics on the car park - reintroduction likely to result in an exceedance over the 9 metre height limit.

· reduces the proposed commercial floor area on the upper level of the mixed use building.

· lack of certainty about the functionality and orderly development of the shared laneway on the mitre 10 site and no development application has been received to provide greater clarity and important context.

Clause 6.6 Essential Services

This clause requires that:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

Development consent must not be granted unless Council, being the consent authority can be satisfied that the proposed provides suitable vehicular access. The approved development was satisfactory with regards all essential services, in some cases with requirements for conditions of consent and mark us on approved plans. The proposed modification presents significant issues with regards access, loading and traffic. Full details are outlined in Section 2.4 with regards non-compliance.

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

The proposal is not affected by any draft Environmental Planning Instruments.

2.4 Byron Shire Development Control Plan 2014 (DCP 2014)

The following comments prepared by Council’s Development Engineer presents a significant non-compliance with Chapter B3 Services and Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access DCP 2014. In particular, the proposed modification raises issues with regards access for trucks and cars:

1. Roadworks – noncompliance to the prescriptive measures section B3.2.1 (7) & (9) of Chapter B3 of BDCP2014

· The proposed road configuration failed to meet the industrial road standard in Northern Rivers Local Government Design and Construction Guidelines (NRLG).

· The proposed road design removed the pedestrian and cyclist connectivity on the south side of Jonson St.

· The proposed roadworks failed to meet condition 32 of DA10.2021.348.1.

· The proposed design of the cul-de-sac and the development access adversely impact the entry of cars into the development due to acute angle at the forcing cars to manoeuvre into the exit lane and SRV vehicle manoeuvring will encroach into the motorbike parking spaces.

· The cul-de-sac head does not meet the minimum size cul-de-sac head in accordance with Table D1.12 of Chapter D1 – Geometric Road Design in NRLG.

· Due to the inadequate size of the cul-de-sac head, the head can cater up to an SRV vehicle with vehicles larger than an SRV entering the site will manoeuvre over the bottom section in the chevron of the central island.

·	·	·
· B85 Vehicle	· SRV Vehicle	· MRV Vehicle

2. Access – noncompliance to the section B4.2.3 of Chapter B4 of BDCP2014

· Cars entering the site utilises both the entry and exit lanes of the access. This poses safety issues.

· Commercial vehicles drive over the central chevron island of the cul-de-sac and the entry and exit lanes of the access.

3. Loading Bay – noncompliance to the section B4.2.9 and Table B4.2 of Chapter B4 of BDCP2014

· Unclear where the where in the plan the 4 × designated loading bays.

· The service area does not show the following: -

a) The service area must be a physically defined location, screened from public view, and not used for purposes other than servicing, loading, and unloading.

b) Service area layout must facilitate its efficient use and must effectively discourage on-street loading and unloading.

c) Requirements for storage and collection of waste must be taken into account in service area design.

d) All service vehicles must be able to enter and leave the site in a forward direction, i.e. adequate manoeuvring space is required on site.

e) Internal roadways must be of a size adequate for the largest vehicle anticipated to use the site.

f) Service vehicle movements should be separated from car movements.

4. Traffic

In comparison, the original DA proposed a supermarket whereby it consist of different shops operated by different shop operators and sharing common areas, the current DA proposed a grocery store operated by a single operator. The different uses utilise different traffic generation rates…

· Traffic generation must also include the additional trips generated by the size of the parking building due to the oversupply of parking. This has not been considered.

· The Transport Technical Note indicated that a 2023 traffic survey has been undertaken however this survey was not included in the technical note.

There is insufficient information in the technical note to verify the accuracy of the impact of the proposal in the surrounding road network.

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

Impact on:	Likely significant impact/s?
Natural environment	The proposal as modified, is likely to have a significantly adverse impact on the natural environment of the locality including potential loss of additional trees on the unmade road reserve to provide more space for manoeuvring of trucks to enter the site, based on assessment by Council Development Engineer.
Built environment	The proposal as modified, is likely to have a significantly adverse impact on the built environment of the locality including loss of approved commercial space, loss of common plaza and potential future access for shoppers to the rail trail. The reliance on elements of the modification on a future application on an adjoining site represents lack of certainty of orderly development.
Social Environment	The proposal as modified, is likely to have a significant social impact on the locality including the increase on car park levels and resultant increased acoustic impacts on adjoining residents.
Economic impact	The proposal as modified, is likely to have a significant economic impact on the locality due to a substantial loss of approved commercial floor space compared to that approved and uncertainty about the orderly delivery of parts of the site that would rely on a future development application that has not been received or assessed.

The approved development complies with Council’s development-related policies.

2.5 The suitability of the site for the development

The site is a serviced, property and the approved development suitably addresses the constraints of the site and is suitable for the proposed development. The proposed modification raises issues with regards to essential access for vehicles.

2.6 Submissions made in accordance with this Act or the regulations

The application was publicly exhibited. There were 16 submissions made on objection to the application, including relevant matters for consideration, as follows:

· Acoustic impact along western boundary of Seadrift lot.

· Greater landscaping buffering of noise and light needed

· Impact on wildlife

· Safe pedestrian access from Browning/Jonson/Butler streets

· Paper Road gate should be replaced

· Increase in traffic

2.7 Public interest

The proposed modification compared to the originally approved development is not substantially the same as that approved and is likely to compromise the public interest and create an undesirable precedent for the reasons outlined in this report.

3 CONCLUSION

An application has been received to modify a mixed use development including changes to the design and number of parking spaces and an increase from two storey to three storeys in the on-site car parking structure. The proposal presents poor design outcomes compared to the approved design of the ‘Harris Farm Markets,’ commercial mixed use development and associated car park.

The proposed modification is not substantially the same development as originally approved.

The proposed modification is not supported with consideration for the functionality of the site, design excellence and its compatibility with and impacts on adjoining land uses and zones.

Planning Authority	Application Description and link	Status
Northern Regional Planning Panel	Coastal Protection Works \| Planning Portal - Department of Planning and Environment (nsw.gov.au) Link to DA tracker for DA 2023.287.1 information and documents here: Byron Shire Council - Application Tracker	Under assessment
Northern Regional Planning Panel	Community Title Subdivision \| Planning Portal - Department of Planning and Environment (nsw.gov.au) Link to DA tracker for DA 2023.454.1 information and documents here: Byron Shire Council - Application Tracker (nsw.gov.au)	Under assessment

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.5

Report No. 13.5 PLANNING - 26.2021.7.1 - Submissions Report - Planning Proposal - 55 Settlement Road, Main Arm

Directorate: Sustainable Environment and Economy

Report Author: Dylan Johnstone, Development Investigations Lead

File No: I2024/972

Summary:

On 9 November 2023 Council considered a Planning Proposal to amend Byron Shire LEP 2014 by granting a dwelling entitlement for the land, so that development consent can be sought for the use of an existing unauthorised dual occupancy (detached) on the land.

The Department of Planning, Housing & Infrastructure issued a Gateway determination on 18 January 2024 and the Planning Proposal was placed on public exhibition for a minimum period of 28 days from 6 June to 4 July 2024. Agency consultation was undertaken in accordance with the Gateway determination.

No public submissions were received, and two (2) agency submissions were received. The agency submissions are included in Attachment 3.

A formal Planning Agreement (Attachment 2), for a monetary contribution equal to developer contributions captured by the Byron Shire Developer Contributions Plan 2012 and Section 7.11 of the Environmental Planning and Assessment Act 1979, was drafted by the Applicant’s legal representative and exhibited concurrently with the Planning Proposal.

This Report recommends that the Planning Proposal be forwarded to the Department of Planning, Housing & Infrastructure for finalisation and that delegation be granted to the General Manager to execute the Planning Agreement associated with the Planning Proposal.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Council:

1. Adopts the Planning Proposal in Attachment 1 (E2024/79738), as amended to address the NSW SES submission issues outlined in Table 1 of this report.

2. Forwards the Planning Proposal to the NSW Department of Planning, Housing and Infrastructure requesting finalisation.

3. Grants delegation to the General Manager to execute the Planning Agreement associated with the Planning Proposal in Attachment 2 (E2024/63743).

Attachments:

1 26.2021.7.1 Planning Proposal Post Exhibition Version, E2024/79738

2 26.2021.7.1 Planning Agreement, E2024/63743

3 26.2021.7.1 Agency submissions combined, E2024/81564

4 26.2021.7.1 Gateway Determination, E2024/8270

5 Special Disclosure of Pecuniary Interest form, E2012/2815

Report

Background

On 9 November 2023 Council considered a Planning Proposal to amend Byron Shire LEP 2014 by granting a dwelling entitlement for the land so that development consent can be sought for the use of an existing unauthorised dual occupancy (detached) on the land.

Action No. 22 of the Byron Shire Rural Land Use Strategy 2017 (BSRLS) recommends investigation into a strategic framework for resolving dwelling entitlement issues. This action provides the strategic basis for the subject Planning Proposal. This BSRLS was endorsed by the NSW Department of Planning and Environment (DPE) in July 2018.

Following consideration of the 9 November 2023 Council report, 23-515 Resolved that Council:

1. Proceeds with the planning proposal as attached to this report (Attachment 1 –E2023/105727) to amend LEP 2014 to permit a dual occupancy (detached) with consent on the subject land;

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

3. Pending a positive Gateway determination and completion of further studies (if required) and a draft Planning Agreement by the applicant, undertakes public exhibition of the planning proposal in accordance with the determination requirements;

4. Considers a submissions report post-exhibition that includes any recommended changes to the planning proposal for final adoption.

Planning Proposal

The Planning Proposal seeks to amend Byron Shire LEP 2014 by granting a dwelling entitlement for the land (Lot 5 DP 585928) so that development consent can be sought for the use of an existing unauthorised dual occupancy (detached) on the land. Specifically, the Planning Proposal seeks to add the land to Division 1 of Part 6 – Additional local provisions of LEP 2014 to permit a dual occupancy (detached) with consent (similar to existing LEP clause 6.15).

A “Plain English” version of the proposed Byron LEP 2014 Part 6 – Additional local provisions clause is as follows:

What Land Does it Apply to?

Lot 5 DP 585928, 55 Settlement Road, Main Arm.

What Additional Development will be Permitted?

A dual occupancy (detached) will be permitted with development consent.

Gateway Determination

A Gateway determination (Attachment 4) was issued by the DPE on 18 January 2024. The Gateway determination required:

· Amendment to the planning proposal to:

o include discussion on Aboriginal cultural heritage,

o reflect upgrades to driveway access, internal driveway and Settlement Road outlined in the submitted Traffic Safety and Bushfire Assessments,

o include additional information regarding flooding, such as a map that illustrates inundation of the site and further details regarding access (including the type of flood event that will affect the access as well as the duration that the road is inaccessible); and

· Updating of the following reports to include both dwellings on the land:

o Preliminary Site Contamination

o On-Site Wastewater Management System Review

o Traffic Safety Assessment

o Land Use Conflict Risk Assessment

o Ecological Assessment

o Bush Fire Assessment Report

· The Ecological Assessment must be amended to address the required upgrades to the driveway access, internal driveway and Settlement Road outlined in the submitted Traffic Safety Assessment and Bushfire Assessment

· Public exhibition for a minimum of 20 working days

· Consultation with agencies

· A 9 month time frame for completing the LEP from the date of the Gateway determination.

Planning Agreement for Infrastructure Contributions

The Planning Proposal seeks to amend LEP 2014 so that a dual occupancy (detached) is permitted with consent on the subject site.

If a dual occupancy (detached) is permitted on the site, this will create additional demands on rural roads, community facilities, open spaces etc. Such demands are captured by the Byron Shire Developer Contributions Plan 2012 which requires a monetary contribution in accordance with the Plan and Section 7.11 of the Environmental Planning and Assessment Act 1979.

Ordinarily contributions would be paid at the time of subdivision for creating a lot with a dwelling entitlement equivalent to one Standard Dwelling Unit (SDU). However, for the purposes of this Planning Proposal, there is no clear mechanism within the Contributions Plan for applying developer contributions.

To address this the submitted Planning Proposal included a letter of offer to enter into a Planning Agreement with Council. The offer proposes payment of a monetary contribution equivalent to two SDUs for the existing dual occupancy (detached).

Council staff have no justification to require additional contributions over and above the demand normally generated for a rural dual occupancy under the terms of the Contributions Plan 2012.

A formal agreement was drafted by the Applicant’s legal representative and exhibited concurrently with the Planning Proposal.

The Planning Agreement (Attachment 2) has been reviewed and it is recommended that the Planning Agreement be executed by the General Manager.

Public Exhibition

In accordance with the Gateway determination, the Planning Proposal was placed on public exhibition for a minimum period of 28 days from 6 June to 4 July 2024. The Planning Agreement was exhibited concurrently with the Planning Proposal.

No public submissions were received.

The Planning Proposal was also referred to the following agencies for comment:

· NSW Rural Fire Service

· NSW State Emergency Service

· Tweed Byron Local Aboriginal Land Council

· Arakwal Corporation

No comments were received from Tweed Byron Local Aboriginal Land Council or Arakwal.

A copy of the agency submissions from SES and RFS are included in Attachment 3.

Agency submissions

The key issues raised by SES and RFS and staff response to these are summarised below.

Table 1 – Summary of Agency Submission Issues and Staff Response

	NSW SES Submission (Attachment 3)
Item #	Issues Raised	Council Staff Response
1.	Recommend a site-specific flood impact and risk assessment is undertaken to adequately understand the flood risk at this site. The assessment should include: · the riverine, flash and overland flood risk up to and including the PMF on site and surrounding access/egress routes; · climate change considerations; and · time to onset, duration of inundation, depth, velocity and hydraulic hazard of any flooding on the site and access roads to understand the impact and risk of flooding and isolation.	Maps indicating inundation of the site for the 100 year and PMF floods, together with maps indicating inundation of Settlement Road for the 100 year and PMF floods, were included in the exhibition version of the Planning Proposal. It is proposed to amend the Planning Proposal to include details of the flood depth, velocity and hydraulic hazard for internal access on the site, and at locations in Settlement Road and Main Arm Road, together with commentary on climate change considerations. The amended Planning Proposal (Attachment 1) includes the above amendments in item 4.1 of the Section 9.1 Directions from page 25. The planning proposal also notes that Council does not have any available flood information regarding the time to onset, and duration, of the inundation at the locations referenced above. Although vehicular access within the site becomes unsafe during the 100 year and PMF events, and access along Main Arm Road becomes unsafe from at least the 20 year event, the existing dwellings are not inundated by the PMF and therefore residents of the dwellings are able to shelter during a flood event without the need to evacuate. Given that this is not a new urban release area and the two (unauthorised) dwellings already exist on the site, neither of which are inundated by the PM, it is considered that the Planning Proposal does not present “an intolerable increase in risk to life, health or property.”
2.	If the development proceeds, we also recommend that the flood risks at the site, including isolation, are communicated to all future occupants and site users. Council may also find the following Guidelines, originally developed for the Hawkesbury Nepean Valley and available on the NSW SES website useful: · Reducing Vulnerability of Buildings to Flood Damage · Managing Flood Risk Through Planning Opportunities.	Any future development consent granted for the use of the existing dual occupancy (detached) can include a condition / advisory note warning of the flood risks, including isolation, associated with the site.
	Recommendation Adopt the Planning Proposal in Attachment 1 (E2024/79738), as amended to address the NSW SES submission issues outlined in Table 1 of this report (as specified above).

	NSW Rural Fire Service (RFS) Submission (Attachment 3)
Item #	Issues Raised	Council Staff Response
1.	Future dwelling(s) development application(s) to comply with the recommendations of the submitted bushfire report prepared by Bushfire Certifiers dated 23rd May 2024 (Rev A).	Noted. A future development application that seeks consent for the use of the existing dual occupancy (detached) will be assessed in accordance with Planning for Bush Fire Protection 2019.
	Based on the above, no changes are required to the Planning Proposal with regard to bushfire.

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	4.1.4: LEP & DCP - Review and update the Local Environmental Plan and Development Control Plans	4.1.4.1	Assess requests to amend Local Environmental Plans and/or Development Control Plans including maps in accordance with legislative requirements.

Recent Resolutions

· 23-515 dated 9 November 2023

Legal/Statutory/Policy Considerations

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

Financial Considerations

If Council chooses to proceed with the Planning Proposal, it will be at the proponent’s expense as a landowner-initiated Planning Proposal. Council will require full cost recovery of the remaining stages. If the applicant chooses not to pay then the Planning Proposal will not proceed.

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

Consultation and Engagement

Details pertaining to community consultation and engagement are provided above. Consultation has been undertaken in accordance with the Gateway determination.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.6

Report No. 13.6 PLANNING - DA 10.2024.20.1 - Use of land and existing shed for Landscaping Material Supplies - 1178 Myocum Road Myocum

Directorate: Sustainable Environment and Economy

Report Author: Dylan Johnstone, Development Investigations Lead

File No: I2024/973

Proposal:

DA No:	10.2024.20.1
Planning Portal ref	PAN-409472
Proposal description:	Use of Land and Existing Shed for Landscaping Material Supplies
Property description:	LOT: 342 DP: 755692
Property description:	1178 Myocum Road MYOCUM
Parcel No/s:	238148
Applicant:	Town Planning Studio Pty Ltd
Owner:	Mr M K Archibald
Zoning:	RU1 Primary Production
Date received:	15 February 2024
Public notification or exhibition:	- Level 2 advertising under DCP 2014 Part A14 – Public Notification and Exhibition of Development Applications - Exhibition period: 27/02/24 to 11/03/24 - No Submissions received
Planning Review Committee	4 April 2024 – application to be determined by Council
Estimated Cost	$65,000
Delegation to determine	Council
Issues:	· Existing shed built without approval · Business operating on-site without consent · Large sand stockpile on site that does not form part of the current development application · Visual impact of shed

Summary:

The application seeks consent again for the use of an existing landscaping material supplies business operating from the site. The application also seeks consent for the construction of an amenities building and for the use of an existing shed as an ancillary component of the development.

The existing landscaping material supplies business and existing shed have been carried out without the necessary development consent. The application has been submitted in response to compliance action taken by staff for unauthorised development. A previous deferred commencement consent was issued by Council under DA10.2020.568.1 – Use of Land and Existing Shed for Landscaping Material Supplies on 09 September 2022, however the applicant has not complied with any conditions of consent and the consent has now lapsed.

The proposal is permissible with consent, but a number of elements on the site need to be finalised under deferred commencement consent conditions. This includes removal of concrete batching plant and equipment, unauthorised signs, illegal fill material on site (being a large sand mound), obtaining a building information certificate for the shed and carrying out the landscaping as per the submitted landscape plan.

Subject to recommended conditions of consent, including deferred conditions, the proposal is considered acceptable and is recommended for approval. In the event that the consent conditions are not complied with further compliance action will result.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That, pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2024.20.1 for use of land and existing shed for landscaping material supplies, be granted consent subject to the recommended conditions of approval in Attachment 2 #E2024/75212.

Attachments:

1 10.2024.20.1 - Plans, E2024/75961

2 10.2024.20.1 - Conditions of consent, E2024/75212

Map

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Assessment:

1. INTRODUCTION

History/Background

History of development applications

10.2004.567.1 – Removal of one tree from the site - Approved 07/02/05

10.2017.694.1 - Subdivision (Boundary adjustment between two (2) Lots) - Approved 20/02/18

10.2018.259.1 – Use of site as a landscaping material supplies business – Council officers identified various issues with this application. The application was subsequently withdrawn on 09/07/19.

10.2020.568.1 – Use of Land and Existing Shed for Landscaping Material Supplies – Approved (Deferred Commencement) 09/09/22.

Background

The land is currently used for “landscaping material supply” activities. This use is unauthorised. It includes the stockpiling of sand and gravel which have been placed on the site since late 2016 without Council approval.

Over time the site has had stockpiles of sand and gravel of various sizes (and other landscape and construction materials) on it. The sand stockpile was up to approximately 6m in height which is being gradually removed as material is sold. The plans and historical photos also show a gravel stockpile which has largely been removed. The stockpiles do not form part of the Development Application. The application proposes that that landscape material be placed in purpose-built landscape bays as part of this Development Application.

Enforcement Officers have been in contact with the owners regarding the unauthorised activities. In response the applicant lodged DA 10.2018.259.1 which was subsequently withdrawn to enable the applicant to address outstanding issues identified by Council officers as part of a new development application.

A Notice of Proposed Stop Use Order was issued to the landowner on 21 January 2020 to stop the use of the site for the purpose of landscaping material supplies, remove unapproved signage and to remove all stockpiles of landscaping supplies. Development application 10.2020.568.1 was lodged in response to the Notice.

A shed had also been constructed on the site without the required approvals between the issuing of the above Notice and lodgement of development application 10.2020.568.1.

Consent 10.2020.568.1 was granted on 9 September 2022 and included deferred commencement conditions requiring a Building Information Certificate for the existing shed, removal of illegal fill, removal of unauthorised signs, removal of concrete batching plant, and establishing approved landscaping.

All of these deferred conditions were required to be complied with within 12 months of the date of the consent.

None of the deferred commencement conditions were completed within this timeframe and, in accordance with the Deferred Commencement Consent, the consent subsequently lapsed.

The subject application has been submitted in response to Council’s Community Enforcement staff issuing a Notice of Proposed Order dated 2 November 2023 to stop use of the landscaping material supplies business.

An aerial photograph of the site is provided in Figure 1 below and various images of the site in Figures 2 – 4. These images were produced during the assessment of 10.2020.568.1.

Figure 1 – Aerial Photograph

A picture containing outdoor, sky, nature, wave

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Figure 2 – Photograph (May 2022) – Existing Stockpiles with a concrete batching plant in the background.

A picture containing outdoor, sky, grass, tree

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Figure 3 – Photograph (May 2022) – View of shed from Myocum Road

A picture containing sky, outdoor, road, cloudy

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Figure 4 – Photograph (May 2022)– View of shed – Photograph taken from within the site

Description of the proposed development

This application seeks approval for Use of Land and Existing Shed for a Landscaping Material Supplies business and construction of an amenities building. The proposal includes:

· The storage and sale of sand, gravel, soil and mulch of various sizes and mixes. The application indicates that between 1,000 and 2,000 cubic metres of landscape materials will be moved in and out of the site per annum. Landscaping products will include:

- 10mm, 20mm & 30mm aggregate

- White Sand

- Metal dust

- Road Base

- Sand/gravel mixes

- Garden Soils

- Garden Mulches

The proposed site layout plan is shown on Figure 5.

· The construction of 46 storage bays. These will be divided by 200mm thick concrete tilt slabs with a height of 1.3 metres. The material to be stockpiled within each bay will have a height of up to 3.0 metres.

· Use of an existing shed that has been constructed on the site. The shed measures 14 m x 7m (floor area 98m²) and is 4.27 metres high (refer to photographs above). The shed will be used to store landscape materials that require protection from the weather. The applicant indicates that: The landowner has recently constructed a steel framed shed within the site in consideration of the ‘exempt development’ provisions from State Environmental Planning Policy (Exempt & Complying Development Codes) 2008.

The construction of the shed was not ‘exempt development’ and required development consent. This issue will be discussed later in this report.

· Provision of landscaping along the site frontage, adjacent to the shed and along part of the eastern boundary (refer to Figure 6).

· Construction of a unisex amenities building with one (1) WC and a handbasin. It is elevated off the ground and has an overall total height of 4.01 m (2.4 x 3.2 m overall size) plus a deck and stairs, with provision for a future disabled access ramp if required.

· An on-site wastewater management system (OSMS) which includes:

- Water Conserving Devices to be installed on the hand basin and tank water supply of 4L/person/day equating to 20 L/day total.

- Composting toilet a dry composting toilet (Clivus Multrum) for collection and treatment of all wastewater flow.

- An Evapotranspiration/ Absorption Bed (ETA) Disposal Area (15m²).

· Both retail sales from the site and a bulk delivery service. Stored material is to be delivered by a heavy rigid vehicle to customers off site. The application estimates that the development will generate approximately 50 trips per day comprising 4 staff trips, 20 retail customer trips, 20 wholesale and delivery trips and 6 trips for landscape materials supply to the site.

· Driveway design to allow a 19 m articulated (semi) vehicles and regular service with 12.5 heavy rigid vehicles.

· Hours of operation 7am-5pm Monday to Friday and 7am-2pm Saturday

The application indicates that the business will be almost entirely operated by the landowner. A staff member will be hired to deliver sand and gravel material depending on demand.

The adjoining property to the east also contains a landscape materials supply business. The application indicates that: The proposal differs to the adjoining landscape supplies business in that it also provides a bulk delivery service. Orders will be received by the business owner by telephone. The delivery vehicle is loaded following receipt of an order and material is transported to customers off site. The proposed business is capable of handling larger orders than the adjoining landscape supplies business (between 5 and 10 cubic metres per delivery) – catering for both residential and commercial customers. The site will also be open for retail sales to members of the public who attend the property using their own vehicle.

Figure 5 – Site Layout Plan (Source: Greg Alderson & Associates) -This plan covers part of the site – refer to Figure 1 for the aerial photograph which shows the extent of the site

Graphical user interface

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Figure 6 – Indicative Landscape Plan

Description of the site

Figure 7: LEP 2014 zone map of the site

A site inspection was carried out on 26 February 2024

Land is legally described	LOT: 342 DP: 755692
Property address	1178 Myocum Road MYOCUM
Land is zoned:	RU1 Primary Production
Land area is:	4.047 ha
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

Figure 8: Existing shed and landscaping materials viewed from Myocum Road looking North

A construction site with a pile of gravel

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Figure 9: Existing landscaping materials and machinery looking East

A car parked in front of a building

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Figure 10: Existing shed and advertising signage looking Northeast

Figure 11: Existing shed (foreground) and existing sand stockpile and concrete batching plant (background) looking North

2. SUMMARY OF REFERRALS

Referral	Issue
Environmental Health Officer	No objections subject to conditions.
Development Engineer	Flooding – See discussion below.
Building Certifier	No objections subject to conditions.

Issues

Development Engineer:

Flooding: A flood report was submitted with the application which provided the following comments in conclusion:

The hydraulic model created as part of the NBFS has been updated to include the existing concrete blocks on the property (Wards Landscaping) to the east of the site. The 5-, 20- and 100-year ARI flood events have been simulated with the revised model.

The proposed development has been incorporated into the hydraulic model and has been assessed for the 5-, 20- and 100-year ARI flood events and maps representing flood impacts have been created. The flood impact assessment shows that there are some minor offsite changes to peak flood level in the range 10 to 20mm predicted on lot number DP 3/1067849. The extent of this impacts is largest in the 20-year ARI flood event and they extend approximately 40 metres onto this property.

Staff have noted that no assessment has been made of the site in the current condition as advised by the applicant:

It is important to note that no assessment of the site in the current (i.e. present day) condition has been prepared, as on advice from Michael Archibald (owner), the site will be modified to remove materials and equipment that exists outside of the proposed development extent.

It is likely that the flood extent and flood level will increase should an assessment be made to the current condition.

Therefore, the retention of the large areas of stockpiled fill are not supported as they are non-compliant with clause 5.21(2) of LEP 2014 and Chapter C2 of DCP 2014. However, compliance can be achieved by removal of fill material from the site which is recommended as a deferred commencement condition.

Access: The existing driveway access is to be upgraded. The proposed access is to be constructed to meet the requirements of AS2890.2 Figure 3.1, with a minimum width at the boundary line of 12.5m to cater for all vehicle sizes up to and including 19m Articulated Vehicles and 12.5m Heavy Rigid Vehicles.

The submitted Traffic Impact Assessment prepared by Greg Alderson & Associates dated 25 August 2021 recommends the provision of a Basic Right (BAR) and Basic Left (BAL) intersection in accordance with Figure 7.1 (BAR) and Figure 8.2 (BAL) of Austroads Guide to Road Design Part 4A, Council's Northern Rivers Local Government Development Design & Construction Manuals and Standard Drawings.

On-site manoeuvring is satisfactory to enable a 19m long vehicle to enter and leave the site in a forward direction.

Parking: The site is in a rural setting which contains a very large area to cater for customer parking and commercial vehicles. On-street spillage of parking is not anticipated.

Traffic: Sight distances are in excess of the requirements of AS2890.

It is recommended that BAL(Basic-Left-turn) treatment be provided for left turn treatment.

It is recommended that BAR treatment be provided for the right turn treatment.

Stormwater Management: The flows coming from the site are proposed to be controlled using the principles in NSW Blue Book.

Engineering conditions of consent to apply

Environmental Health Officer:

Contaminated land: The site is considered to be suitable for the intended commercial use. Should the land use increase in sensitivity (e.g. residential) a subsequent detailed contaminated and assessment will be required.

Conditions are recommended restricting the importation of landscape materials into the site to be certified clean and free of contamination.

Figure 11 – Proposed location of toilet and OSSM

On-site sewage management: The On-site Wastewater Management Report No. 19043_ww prepared by Greg Alderson & Associates dated 24 August 2018 demonstrates that wastewater generated from the development can be adequately managed via an On-site Sewage Management Facility. Councils Environmental Health Officer noted the location of the proposed facilities (approximately 130m from the existing/unapproved shed as shown on Figure 11).

The applicant has previously advised that it is preferred to leave the toilet building in the proposed location. Although it is remote from the shed, workers will be working over the entire landscape yard. This is considered satisfactory as it is essentially a decision of the owner as to where to locate the toilet to best suit their operational requirements, as long as it does not create adverse external impacts.

Waste management: A detailed Environmental Management Plan (EMP) will be required and this can be imposed as a consent condition.

Land Use Conflicts: The Land Use Conflict Risk Assessment (LUCRA) prepared by Joe Davidson Town Planning dated 21/09/2020 concludes that there is LOW likelihood of land use conflicts arising from the proposed development in relationship with the surrounding land uses. Neighbouring land uses include sugar cane farming, cattle grazing, a golf course and existing landscape materials supplies business with residence.

The LUCRA does not include potential noise generated by traffic associated with the operational phase. Generally operational noise can be managed by the imposition of consent conditions limiting hours of operation and an EMP.

Other impacts: Dust generation can be managed by limiting the volume of materials contained on the subject site and storing material within suitable containers (such as the bays proposed).

In terms of construction and operation of the landscape supplies, an Environmental Management Plan (EMP) must be submitted to Council for approval prior to any works commencing. The EMP must be prepared by a suitably qualified professional and contain details of measures to be undertaken to ensure that construction and operation of the development do not result in any on and off-site impacts that could interfere with neighbourhood amenity by reason of noise, vibration, smell, fumes, smoke, dust, wastewater or otherwise. All works must be in accordance with NSW WorkCover Authority requirements.

The EMP must be approved as part of the application for a construction certificate for building works.

Building Surveyor:

The change of use from a shed to a commercial building will require a Building Information Certificate as the building is not considered exempt development. This is required to be addressed by way of a deferred commencement consent condition.

The proposal also seeks consent to install an accessible bathroom which will require a construction certificate.

The building is required to be upgraded to its new Class in accordance with BCA. The building should fully comply with the BCA for its new building class. A construction certificate will be required for the construction of the new facilities. A clause 93/94 upgrade with full compliance with the BCA shall be supplied to the Principal Certifying Authority.

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 location of the existing shed is not bushfire prone land however the proposed amenities building and vehicular access to the site are located on bush fire prone land.

In accordance with Section 8.3 of ‘Planning for Bush Fire Protection 2019’ the following access requirements are relevant to the proposal:

To provide safe access to/from the public road system for firefighters providing property protection during a bush fire and for occupant egress for evacuation.

The existing driveway access is to be upgraded. The proposed access is to be constructed to meet the requirements of AS2890.2 Figure 3.1, with a minimum width at the boundary line of 12.5m to cater for all vehicle sizes up to and including 19m Articulated Vehicles and 12.5m Heavy Rigid Vehicles.

The above requirements are recommended as conditions to ensure that access is in accordance with ‘Planning for Bush Fire Protection 2019’.

The proposed amenities building is a class 10a structure and, in accordance with Section 8.3.2 of ‘Planning for Bush Fire Protection 2019’, there are no bush fire protection requirements.

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
Resilience and Hazards SEPP 2021 Consideration: Chapter 2 Coastal management - This chapter applies to land within the coastal zone. Coastal management areas comprise: · the coastal wetlands and littoral rainforests area – The subject land is not mapped as coastal wetlands or littoral rainforest. The land is not within a ‘proximity’ area to coastal wetlands or littoral rainforest. · the coastal vulnerability area – no areas mapped at this time · the coastal environment area – the subject site is within the coastal environment area · the coastal use area – the subject site is within the coastal use area. Part 2 Division 3 – Coastal Environment Area – Section 2.10 requires that: (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following— (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone. (2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that— (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. The proposal is considered satisfactory in relation to the relevant considerations as: · Conditions will be placed on any consent requiring the management of soil and water in accordance with relevant engineering standards. · No native vegetation will require removal. · The site is not adjacent to the foreshore and there is no public open space that the proposal will affect. · An Aboriginal Heritage Information Management System search indicates that there are no Aboriginal sites or places recorded or declared within 50m of the site. Part 2 Division 4 – Coastal use area – Section 2.11 requires that: (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority— (a) has considered whether the proposed development is likely to cause an adverse impact on the following— (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and (b) is satisfied that— (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. The proposal is considered to be consistent with Section 2.11 provisions of the SEPP. Part 2.2 Division 5 relates to development in coastal zone generally and requires that the consent authority must be satisfied that development will not increase risk of coastal hazards and any certified coastal management programs that apply to the land. The location of the site is sufficiently distant from the active coastal zone and there are no coastal management programs applying to the land. Chapter 4 – Remediation of land The development will not result in an increased sensitivity of land use. Councils Environmental Health Officer has recommended that an Unexpected Findings Protocol (UFP) be prepared to ensure management of any unexpected findings are managed appropriately. Conditions are recommended requiring the importation of landscape materials into the site to be certified clean and free of contamination.	☒	☐

Considerations

Satisfactory

Unsatisfactory

Resilience and Hazards SEPP 2021

Consideration:

Chapter 2 Coastal management - This chapter applies to land within the coastal zone. Coastal management areas comprise:

· the coastal wetlands and littoral rainforests area – The subject land is not mapped as coastal wetlands or littoral rainforest. The land is not within a ‘proximity’ area to coastal wetlands or littoral rainforest.

· the coastal vulnerability area – no areas mapped at this time

· the coastal environment area – the subject site is within the coastal environment area

· the coastal use area – the subject site is within the coastal use area.

Part 2 Division 3 – Coastal Environment Area – Section 2.10 requires that:

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

The proposal is considered satisfactory in relation to the relevant considerations as:

· Conditions will be placed on any consent requiring the management of soil and water in accordance with relevant engineering standards.

· No native vegetation will require removal.

· The site is not adjacent to the foreshore and there is no public open space that the proposal will affect.

· An Aboriginal Heritage Information Management System search indicates that there are no Aboriginal sites or places recorded or declared within 50m of the site.

Part 2 Division 4 – Coastal use area – Section 2.11 requires that:

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

The proposal is considered to be consistent with Section 2.11 provisions of the SEPP.

Part 2.2 Division 5 relates to development in coastal zone generally and requires that the consent authority must be satisfied that development will not increase risk of coastal hazards and any certified coastal management programs that apply to the land.

The location of the site is sufficiently distant from the active coastal zone and there are no coastal management programs applying to the land.

Chapter 4 – Remediation of land

The development will not result in an increased sensitivity of land use. Councils Environmental Health Officer has recommended that an Unexpected Findings Protocol (UFP) be prepared to ensure management of any unexpected findings are managed appropriately.

Conditions are recommended requiring the importation of landscape materials into the site to be certified clean and free of contamination.

☒

☐

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 landscaping material supplies which is: landscaping material supplies means a building or place used for the storage and sale of landscaping supplies such as soil, gravel, potting mix, mulch, sand, railway sleepers, screenings, rock and the like;

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

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

Zone Objective	Consideration
To encourage sustainable primary industry production by maintaining and enhancing the natural resource base	The proposal includes landscape bays which could be removed in the future if the land was to revert to agricultural uses. The business occupies part of the site with the remainder being available for agricultural uses. The proposal will not have any significant impact on the agricultural viability of the site. The proposal will not result in the fragmentation or alienation of resource lands. Subject to compliance with conditions, the proposal is not anticipated to create any significant land use conflict. The shed is rural in character, similar to what would be found in other rural locations in the shire. Presently, the shed is highly visible when driving along Myocum Road. Landscaping is proposed along the site frontage and adjacent to the shed. With the establishment of this landscaping the proposal will not have a significant impact on the existing scenic value of the locality.
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

Clause 4.3 Height of buildings

The height limit for the site is 9 metres. The existing shed and proposed amenities building comply with this requirement.

Clause 5.21 Flood planning

A flood report was submitted with the application which provided the following comments in conclusion:

Staff have noted that no assessment has been made of the site in the current condition as advised by the applicant:

It is likely that the flood extent and flood level will increase should an assessment be made to the current condition.

Therefore, the proposal has not demonstrated compliance with clause 5.21(2) of LEP 2014. and Chapter C2 of DCP 2014. However, compliance can be achieved by removal of fill material from the site which is recommended as a deferred commencement condition.

Clause 6.1 Acid Sulfate Soils

The site is mapped as Class 4 Acid Sulfate Soil land. Works more than 2 metres below the natural ground surface or where the water table is likely to be lowered more than 2 metres below the natural ground surface require acid sulfate soil investigation and where required, the preparation of an acid sulfate soil management plan. The proposal does not include any work below 2m below the natural ground level. No further investigation or actions are required in this regard.

Clause 6.2 - Earthworks

Minor earthworks are required to install the proposed landscape bays and implement the proposed stormwater management system. Subject to the implementation of suitable conditions of consent, these works can be undertaken without having an unacceptable impact on adjoining properties, local drainage patterns or waterways.

Clause 6.4 Floodplain risk management

The objectives of this clause are as follows—

(a) in relation to development with particular evacuation or emergency response issues, to enable evacuation of land subject to flooding above the flood planning level,

(b) to protect the operational capacity of emergency response facilities and critical infrastructure during extreme flood events.

Subclause 3 nominates a variety of land uses for which development consent must not be granted unless the consent authority is satisfied that the development will not, in flood events exceeding the flood planning level, affect the safe occupation of, and evacuation from the land.

A landscape material supplies business is not a nominated land use.

Flooding considerations are discussed below in relation to Byron DCP 2014 Chapter C2 – Areas Affected by Flood.

Clause 6.6 Essential services

This clause requires that:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

In relation to these matters it is commented that:

· The application states that: The subject property has access to a reticulated water supply. Water tanks are to be installed within the site to capture rainwater. A spring supply within the site can also be activated if required by the landowner.

· Overhead electricity is available to the site.

· The proposal contains a new amenities building containing a composting toilet for staff. The proposed on-site sewage management system has been assessed as being satisfactory subject to conditions. An application under Section 68 of the Local Government Act will be required for its installation.

· The development plans include storage basins to accommodate runoff from the development site before it is released into the local drainage system. Surface water disperses to existing drainage lines within the site.

· Access – Access has been assessed as being satisfactory subject to conditions.

The proposed development complies with all clauses of LEP 2014 (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

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

No such instrument applicable.

4.4 Byron Shire Development Control Plan 2014 (DCP 2014)

B6 - Buffers and Minimising Land Use Conflict

The proposed facility seeks approval for a similar operation as the adjoining Wards landscaping. The adjoining property also contains a dwelling.

A Land Use Conflict Risk Assessment (LUCRA) was lodged with the application which concluded that there was LOW likelihood of land use conflicts. This was assessed by Councils Environmental Health Officer and conditions recommended with respect to noise control.

C2 – Areas Affected by Flood

A flood report was submitted with the application which provided the following comments in conclusion:

The proposed development has been incorporated into the hydraulic model and has been assessed for the 5-, 20- and 100-year ARI flood events and maps representing flood impacts have been created. The flood impact assessment shows that there are some minor offsite changes to peak flood level in the range 10 to 20mm predicted on lot number DP 3/1067849. The extent of this impacts is largest in the 20 year ARI flood event and they extend approximately 40 metres onto this property.

Staff have noted that no assessment has been made of the site in the current condition as advised by the applicant:

It is likely that the flood extent and flood level will increase should an assessment be made to the current condition.

Therefore, the proposal has not demonstrated compliance with Chapter C2 of DCP 2014. However, compliance can be achieved by removal of fill material from the site which is recommended as a deferred commencement condition.

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

This Chapter applies to visually prominent development on a visually prominent site on land subject to Byron LEP 2014.

A ‘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.

‘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.

The land is at a level of less than 60m AHD (approximately 2.6 – 3.1m AHD). However, as the site is within the SEPP (Resilience and Hazards) 2021 mapped coastal management area it is defined as a visually prominent site.

The existing shed that has been located on the site is the most visually prominent aspect of the proposal (refer photos). Although it would have been more desirable to locate this shed with a greater setback to the road, the shed is characteristic of rural development and with the proposal to provide landscaping along the frontage of the site and along the side of the shed, it will be substantially screened. On this basis, visual impacts will be satisfactory as long as the landscaping is retained and maintained.

There is unauthorised signage on the site which is not included in the development application and will need to be removed.

D2 – Residential Accommodation and Ancillary Development in Rural Zones

This Chapter does not apply to commercial development in the RU1 zone however it is useful to consider the provisions relating to setbacks of farm buildings and dwellings to determine the appropriateness of the setback of the shed to Myocum Road. Setback requirements may be flexible provided they are demonstrated to achieve the objectives and performance criteria of the chapter.

The prescriptive measures in the DCP identifies that dwellings and farm buildings are to have a minimum setback of 15 metres to the front property boundary. The existing shed has a setback of 11.91m. Given the proposed landscaping, the shed will be adequately screened and it is considered that the 11.91m is satisfactory. It is important that the landscaping is established early and maintained. Appropriate conditions are recommended. Requiring a larger setback to 15 metres would not result in a significant improvement to visual impacts once the landscaping has established.

D4 – Commercial and Retail Development

Design Detail and Appearance

As discussed, the shed is setback 11.91 metres from Myocum Road. The proposed landscape material containment bays will be setback 25m. The bays will have a maximum height of 1.3m with materials to be stored within the bays having a stockpile height of up to 3m. The existing unauthorised large stockpiles will be required to be removed.

The shed style is typical of rural development and the containment bays are sufficiently setback from Myocum Road. Given the low-lying nature of the land, the low height of the structures (existing and proposed) on the site and the landscaping proposed, the overall visual impact is considered generally satisfactory.

A condition of consent will require the landscaping to be maintained.

Vehicle Access and Parking

A recommended condition will require existing access to be upgraded and plans submitted with the application indicate manoeuvrability to be satisfactory.

Setbacks

There are no specific setbacks prescribed for commercial development in the RU1 zone.

The proposed development is demonstrated to meet the relevant Objectives of all relevant Parts/Chapters (in some cases subject to conditions and/or to the satisfaction of other assessing officers).

Environmental Planning and Assessment Regulation 2021 considerations

Environmental Planning and Assessment Regulations 2021	Applicable to the proposal:	Considered the control as it relates to the proposal:	If this control is applicable, does the proposal comply?
Section 61 - Additional matters that consent authority must consider	☐ Yes ☒ No	☐ Yes ☐ No ☒ NA	☐ Yes ☐ No ☒ NA
Section 62 - Consideration of fire safety	☐ Yes ☒ No	☐ Yes ☐ No ☒ NA	☐ Yes ☐ No ☒ NA
Section 64 - Consent authority may require upgrade of buildings	☒ Yes ☐ No	☒ Yes ☐ No ☐ NA	☒ Yes ☐ No ☐ NA
Section 63 - Considerations for 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

4.6.1

Impact on:	Likely significant impact/s?
Natural environment	No. Subject to the implementation of recommended conditions, the proposal will not have a significantly adverse impact on the natural environment of the locality.
Built environment	No. Subject to the implementation of recommended conditions, the proposal will not have a significantly adverse impact on the built environment of the locality. The primary issue of concern is the visual impact of the unauthorised shed. As discussed, this can be suitably screened by landscaping.
Social Environment	No. The proposal will not have a significant social impact on the locality.
Economic impact	No. The proposal will not have a significant economic impact on the locality.

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

Council Policy	Consideration
Building Certificates Policy	A condition is recommended requiring a Building Information Certificate to be obtained.
Enforcement Policy	The Enforcement section of Council have been involved in the history associated with the transportation of materials to the site without approval. The applicant/ land owner is at risk of further compliance action should this matter not be taken seriously, noting that this has been ongoing for some four years.

Council Policy

Consideration

Building Certificates Policy

A condition is recommended requiring a Building Information Certificate to be obtained.

Enforcement Policy

The Enforcement section of Council have been involved in the history associated with the transportation of materials to the site without approval.

The applicant/ land owner is at risk of further compliance action should this matter not be taken seriously, noting that this has been ongoing for some four years.

4.7 The suitability of the site for the development

The site is a serviced property that subject to the implementation of recommended conditions of consent is suitable for the proposed development.

4.8 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited.

There were nil submissions made on the development application.

4.9 Public interest

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

5. DEVELOPER CONTRIBUTIONS

The proposal provides no nexus to levy developer contributions or water and sewer headworks charges.

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 Use of Land and Existing Shed for Landscaping Material Supplies. Subject to recommended conditions of consent, including deferred conditions, the proposal is considered acceptable and is recommended for approval.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.7

Report No. 13.7 PLANNING - DA 10.2024.111.1 Subdivision of road reserve, lot consolidation – 89 Massinger Street, Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Jordan Vickers, Planner

File No: I2024/978

Proposal:

DA No:	10.2024.111.1
Planning Portal ref	PAN-427327
Proposal description:	Subdivision – part road closure & lot consolidation
Property description:	LOT: 1 DP: 44807, LOT: 7 DP: 548466, RD: RESERVE
Property description:	89 Massinger Street BYRON BAY
Parcel No/s:	120620, 120610, 271693
Applicant:	Mr P J Wallace
Owner:	Mr I A & Mrs L Heanes/ Byron Shire Council
Zoning:	R2 Low Density Residential
Date received:	22 May 2024
Concurrence required	No
Public notification or exhibition:	- Level 0 advertising under Council’s Community Participation Plan. - No submissions received
Variation request to Development Standards under an EPI (eg clause 4.6)	Clause 4.6 Name of clause – Minimum subdivision lot size Clause number – 4.1 Percentage value of variation sought – 90% (65m²/600m²) Brief justification for the variation – The lot to be created out of road reserve and will be required to be consolidated with the existing residential land parcel which exceeds the 600 m2 minimum.
Delegation to determine	Council

Summary:

This proposal is to close a small section of road reserve with an area of 65 m² to enable it to be acquired and consolidated with the adjacent residential lot at 89 Massinger Street, Byron Bay creating a lot with an area of 1,110.1 m². The portion of road reserve is at the top of a cul-de-sac which fronts the subject parcel, and the existing garage appears to encroach over the boundary.

A 4.6 variation request was submitted to vary the minimum lot size of 600m² to create the 65m² land parcel. Compliance with the development standard is unnecessary and unreasonable in this instance as the undersized property will be immediately consolidated with the remainder of 89 Massinger Street.

The proposal raises no issues and the application is recommended for approval subject to conditions of consent.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2024.111.1 for Subdivision – part road closure and lot consolidation, be granted consent subject to the conditions contained in attachment 2 (#E2024/72360).

Attachments:

1 DA10.2024.111.1 Plans for approval, E2024/72306

2 DA10.2024.111.1 Conditions of consent, E2024/72360

Assessment:

1. INTRODUCTION

History/Background

A search of Council records indicates the following relevant site history:

DA No.	Description	Outcome	Date
6.1996.2096.1	Alteration/dwelling	Approved	22/03/1996

Description of the proposed development

This application seeks approval for Subdivision – part road closure & lot consolidation. The road closure/subdivision relates to a parcel of land which is to be created out of road reserve of 65m², which will then be consolidated with the two properties that currently comprise 89 Massinger Street to create a property with an area of 1,110.1m².

Description of the site

The development site known as 89 Massinger Street, Byron Bay and comprised of Lot 1 on DP44807 and Lot 7 on DP548466 is located in the Low density residential (R2) zone of the Byron LEP 2014. The property is currently comprised of two separate allotments (referred above) which is improved by a single dwelling house. The land is bushfire prone and contains high environmental value vegetation.

A site inspection was carried out on 24 June 2024

Land is legally described	LOT: 1 DP: 44807, LOT: 7 DP: 548466, RD: RESERVE
Property address	89 Massinger Street BYRON BAY
Land is zoned:	R2 Low Density Residential
Land area is:	253.7 m²
Property is constrained by:	Bushfire prone land & 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

2. SUMMARY OF REFERRALS

Referral	Issue
Development Engineer	No objections subject to conditions.

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 Policies (SEPP)

Considerations	Satisfactory	Unsatisfactory
Resilience and Hazards SEPP 2021 Consideration: The property has a long standing residential history and is not included on Council’s contaminated lands register. There is no record of previous land uses on the site, or on surrounding sites, that are likely to have resulted in land contamination. Based on the available information, the site is considered to be suitable for the proposed residential use in its current state and no further investigation is warranted.	☒	☐

Considerations

Satisfactory

Unsatisfactory

Resilience and Hazards SEPP 2021

Consideration:

The property has a long standing residential history and is not included on Council’s contaminated lands register. There is no record of previous land uses on the site, or on surrounding sites, that are likely to have resulted in land contamination. Based on the available information, the site is considered to be suitable for the proposed residential use in its current state and no further investigation is warranted.

☒

☐

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 subdivision;

(b) The land is within the R2 Low Density Residential according to the Land Zoning Map;

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

Zone Objective

Consideration

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

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

The proposal closure and consolidation of the road area with the residential lot is not inconsistent with the objectives of the zone

Clause 4.1 – Minimum subdivision lot size

This clause prescribes a minimum lot size of 600m² for this allotment in accordance with the Minimum Lot size Map.

As the proposed allotment is less than 65m², the application is supported by a 4.6 variation request. Variation to the Clause 4.1 development standard is justified in this instance as discussed below.

Clause 4.6 Exceptions to Development Standards

Applicant has sought a variation to the minimum lot size of 600m² by proposing an allotment of 65m².

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:

· It is reasonable and necessary to create the undersized lot as it will inevitably be consolidated into the adjoining premises and the resulting lot will be greater than 600m²

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:

· Creation of the undersized allotment is only an interim step in the process of the allotment being acquired by the adjacent landowner and consolidated with their property;

· To acquire this portion of road reserve, the undersized allotment must be created to be amalgamated;

· The outcome of the development overall will rationalise the existing property by amalgamating the numerous allotments into a single lot on the title;

· The development aligns with the objectives of the Low Density Residential zone.

Further, the proposal is in the public interest having regards to the objectives of the development standard because consolidating the properties will ensure that the resulting lot facilitates the efficient use of the land for residential purposes.

The concurrence of the Planning Secretary is not required.

It is recommended that the development standard can be varied in this instance.

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

There are no proposed Environmental Planning Instruments relevant to the proposal.

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

The proposed subdivision does not raise any matters under the DCP, subject to conditions of consent applying.

4.5 Environmental Planning and Assessment Regs 2021

Proposal raises no issues under the regulations.

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

The proposal is unlikely to generate any impacts on the built or natural environment.

4.7 The suitability of the site for the development

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

4.8 Submissions made in accordance with this Act or the regulations

No submissions were received.

4.9 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

No Section 64 levies will be required.

5.2 Developer Contributions

No Developer Contributions will be required.

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:

Yes ☐ No ☒

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

Yes ☐ No ☒

6. CONCLUSION

The proposed Subdivision – part road closure & lot consolidation, 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. The site is a serviced, unconstrained property and is considered suitable for the proposed 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 PLANNING - Byron Shire Affordable Housing Contribution Scheme 02

Directorate: Sustainable Environment and Economy

Report Author: Alex Caras, Land Use Plannning Coordinator

File No: I2024/1022

Summary:

This report seeks Council’s authorisation to prepare and submit a planning proposal to introduce a second Byron Shire Affordable Housing Contribution Scheme (AHCS 02) to capture the additional investigation areas identified in the recently adopted Byron Shire Residential Strategy 2041. The following documents have been prepared to support preparation of a planning proposal for AHCS 02, which are discussed in more detail in the report:

• Housing Needs Assessment

• Viability Assessment Report

• Draft Affordable Housing Contribution Scheme 02

Pending positive Gateway determination, the planning proposal will be exhibited in accordance with the determination requirements, followed by a submissions report post-exhibition that includes any recommended changes to the planning proposal for final adoption.

NOTE TO COUNCILLORS:

RECOMMENDATION:

That Council:

1. Authorises staff to prepare and submit a planning proposal to introduce a second Byron Shire Affordable Housing Contribution Scheme (AHCS 02), in accordance with Action 10 of the recently adopted Byron Residential Strategy 2041 (and Attachments 1-4).

2. Pending a positive Gateway determination, exhibits the planning proposal in accordance with the determination requirements.

3. Receives a Submissions Report post-exhibition that includes any recommended changes to the planning proposal for final adoption.

Attachments:

1 Final Draft Byron Shire Housing Needs Study - 22 May 2024, E2024/78446

2 Final Draft Byron Shire Viability Assessment Report, E2024/84059

3 Final Draft Byron Shire AHCS 02 - 22 July 2024, E2024/83876

4 Table of Draft Scheme Comments from DPHI and Suggested Response, E2024/83861

Background and Report

The Byron Shire Affordable Housing Contribution Scheme (AHCS) 01 came into effect in January 2023 through the introduction of Clause 6.18 within the Byron LEP 2014. The Scheme provides detail about how, where, and at what rate development contributions can be collected from landowners for affordable housing and currently applies to the areas of Mullumbimby, Bangalow, and Byron Bay.

The Scheme is activated when land is upzoned. Upzoning is a change in planning controls, such as zones or building heights that creates new or increased development potential and therefore increases the value of the land.

A form of contribution will be determined by Council at the time of development and may include:

• Fit for purpose land within the development,

• Monetary contribution, and/or

• Dwellings within the development

It should be noted that an Affordable Housing Contribution Scheme (under SEPP Housing 2021) is primarily targeted at delivering rental housing, rather than owner-occupied housing. Additionally, there is a general expectation that that such housing should be institutional (in the sense that it must be managed by registered housing organisations, rather than traditional ‘mum and dad’ and property investors). Further, land and dwellings provided for affordable housing are to be managed to maintain their continued use for affordable housing in perpetuity.

Residential Strategy 2041

In March 2024, Council approved Byron Shire Residential Strategy 2041 with amendments for submission to the Department of Planning, Housing, and Infrastructure (DPHI) for endorsement. The Strategy provides the long-term approach to guide the delivery of housing in the Shire.

Action 10 of the ‘Implementation Plan’ accompanying the Strategy commits to investigating “expanding or applying new affordable housing contribution mechanisms over all new rezoned areas, and other planning control uplift opportunities, to maximise the capture of affordable housing opportunities over time”. To this end, Scheme 02 will implement this, Action.

The purpose of this report is to seek Council’s support to prepare and submit a planning proposal to introduce a second Byron Shire Affordable Housing Contribution Scheme (AHCS 02) to capture the additional investigation areas identified in the recently adopted Byron Residential Strategy 2041. The following documents have been prepared to support preparation of planning proposal for AHCS 02, which are discussed in more detail below:

• Housing Needs Assessment

• Viability Assessment Report

• Draft Affordable Housing Contribution Scheme 02

Housing Needs Assessment

The purpose of this report is to support the development of an additional affordable housing program for the AHCS 02, by researching affordable housing needs and documenting these in an evidence base which will satisfy the requirements of section 7.32 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and the State Environmental Planning Policy (SEPP) Housing 2021.

The report analyses are focussed on demonstrating the need by outlining the constraints in the housing market in Byron Shire, current need for affordable housing and gaps in meeting housing need. As well as providing background to the context and policy settings the analysis is structured around understanding the following fundamental questions:

1. What are the housing market constraints in Byron Shire?

2. Is there a current need for affordable housing?

3. What are the gaps in meeting housing?

Overall, the assessment report highlights the extreme housing situation in Byron Shire. All indicators and measures of housing affordability and need show the housing market is highly constrained and inaccessible for the majority of low- and moderate-income households.

A copy of the Housing Needs Assessment is contained in Attachment 1.

Viability Assessment Report

In accordance with the Guideline for Developing an Affordable Housing Contribution Scheme (2019) this report carries out a viability assessment to examine the capacity of development to tolerate affordable housing contributions within the proposed contribution areas in Bangalow, Brunswick Heads and Mullumbimby in Byron Shire. The localities under investigation for the AHCS 02 are shown in Table 1 below and represent new investigation areas identified in the recently adopted Byron Residential Strategy 2041.

Table 1 – Localities Under Investigation for AHCS 02

Locality/Designation	Description
Bangalow NSW 2479 B2	Site B2 NRRC Draft Resilient Lands Strategy identified site Now included in Residential Strategy 2041 14 Ballina Rd
Brunswick Heads The Saddle Road Brunswick Heads NSW 2483 B1	Site B1 NRRC Draft Resilient Lands Strategy identified site Now included in Residential Strategy 2041
Brunswick Heads NSW 2483	New investigation areas 172 and 166 Tweed St and 66 The Saddle Road (part) 125 Tweed Street, The Saddle Rd wider village ‘investigation area’
Mullumbimby NSW 2482	Left Bank Road. Potential urban conversion area.
Mullumbimby NSW 2482 Suffolk Park (Byron Bay)	New investigation areas. 1982 Coolamon Scenic Dr 1862 Coolamon Scenic Dr 1897 Coolamon Scenic Dr Azalea St 64 Corkwood Cr

Locality/Designation

Description

Bangalow NSW 2479
B2

Site B2 NRRC Draft Resilient Lands Strategy identified site

Now included in Residential Strategy 2041

14 Ballina Rd

Brunswick Heads

The Saddle Road
Brunswick Heads NSW 2483
B1

Site B1 NRRC Draft Resilient Lands Strategy identified site

Now included in Residential Strategy 2041

Brunswick Heads NSW 2483

New investigation areas

172 and 166 Tweed St and 66 The Saddle Road (part)

125 Tweed Street,

The Saddle Rd wider village ‘investigation area’

Mullumbimby NSW 2482

Left Bank Road.

Potential urban conversion area.

Mullumbimby NSW 2482

Suffolk Park (Byron Bay)

New investigation areas.
1982 Coolamon Scenic Dr
1862 Coolamon Scenic Dr
1897 Coolamon Scenic Dr
Azalea St

64 Corkwood Cr

The report confirms the earlier findings of AHCS 01, namely that the significant uplift between rural to residential land uses provides an opportunity for a significant affordable housing contribution, whilst providing both a traditional profit to the developer as well as a viability buffer that is available to cover any significant risks in the development process.

Although construction costs for land development continue to escalate, the increase in dwelling prices associated with the new migration patterns post-Covid and the limited supply of new housing coming online (due to labour and material shortages) has generated significant increases in land prices that can support affordable housing contributions. From a viability standpoint, the need for the development to make decent returns and cover off any unknown market risks has been factored into the assessment methodology.

In some cases, however, as the detailed engineering studies are undertaken when designing these developments (e.g., Saddle Road ‘B1’ site and wider investigation area), development costs may exceed the estimates in this report. In these cases, it is important to provide some flexibility in applying the affordable housing charge so as not to discourage or make unviable future land development.

A copy of the Viability Assessment Report is contained in Attachment 2.

Site B1 – Saddle Road/Gulgan Village Investigation Area

Staff have had ongoing discussions with the landowners of the B1 Site as a pre-cursor to lodging a planning proposal. As the more detailed infrastructure studies (e.g., road upgrades) and master planning are still some months away from completion, it is not possible for the viability assessment to apportion future infrastructure contributions to this site. As a result, the Applicant’s draft letter of offer to enter into a Planning Agreement (to accompany a planning proposal) should be worded accordingly to provide flexibility for both parties while still achieving the intent and outcomes of AHCS 02:

“… dedication of land, or combination of land and housing, will be in accordance with Council’s Affordable Housing Contribution Scheme No. 2 (in preparation) OR based on an alternative contribution rate determined by an independent viability assessment in accordance with Part 4 of Council’s Affordable Housing Contribution Policy …”.

Draft Affordable Housing Contribution Scheme 02

The objectives of AHCS 02 are to:

a) Facilitate the provision of affordable housing options within the Byron Shire Council area to meet the needs of very low, low and moderate income households so as to promote diversity, equity, liveability and sustainability;

b) Recognise affordable housing as critical infrastructure to support sustainable and diverse communities and economic growth in the Byron Shire;

c) Contribute to meeting the housing needs of very low to moderate income households who live and work in the LGA;

d) Set out how, where and at what rate development contributions will be collected by Byron Shire Council to provide fairness, certainty and transparency for the local community, developers and other stakeholders.

This Scheme augments AHCS 01 to provide the background, requirements, and operational detail for development in the contribution areas identified. AHCS 01continues to apply to land within the contribution areas identified in that Scheme, as indicated in the Scheme’s accompanying maps.

A copy of the draft AHCS 02 is provided in Attachment 3.

What types of development will AHCS 02 apply to?

The Scheme will apply to all residential development within the AHCS 02 Contribution Areas, including:

-- Development of residential accommodation as defined in Byron LEP 2014;

-- Subdivision of land for residential purposes;

-- Creation of Torrens Title lots, community title and strata schemes, cooperative and
company title of residential property and the like.

The Scheme will not apply where an Affordable Housing Contribution has previously been applied unless the proposal involves an intensification of the development.

Registered Community Housing Providers and Delivery Program

Section 3.4 of the draft AHCS 02 states that:

“Council may prepare a Distribution Plan to provide transparency and clarity about the process for allocation or transfer of contributions, including:

- criteria for selection of one or more community housing providers to receive funding or property;

- framework for dispersal of funds;

- requirements relating to the transfer of assets;

- performance expectations for community housing providers receiving and using the contributions (including the use of surplus or other funds to support leveraging of finance to deliver more affordable housing);

- any eligibility criteria to apply to the allocation of affordable housing;

- any rent setting requirements for provision of affordable housing;

- monitoring and reporting on affordable housing outcomes to Council;

- regular review of arrangements and process for Council changes to the Distribution Plan.”

Staff will be updating Council’s register of community housing providers (as endorsed at the 8 December 2022 Planning Meeting) over the coming months via a further expression of interest process. This will strengthen Council’s ability to facilitate the future delivery and management of affordable rental housing in line with the Scheme.

Staff will also be preparing a Distribution Plan to guide the allocation or transfer of contributions to various target groups that fall within the household definition. Once prepared, the Distribution Plan will be workshopped with councillors prior to being reported for endorsement later this year.

Preliminary feedback from Department of Planning, Housing, and Infrastructure

Council sought feedback from the Department’s Housing & Policy Team on the draft AHCS 02 and supporting documents. The Department’s comments along with the staff/consultant responses to these are contained in Attachment 4. Staff will discuss any outstanding matters with the Department during the gateway assessment of this planning proposal.

Recommendation and Next steps

This report seeks Council’s authorisation for staff to prepare and submit a planning proposal to introduce a second Byron Shire Affordable Housing Contribution Scheme (AHCS 02), in accordance with Action 10 of the recently adopted Byron Residential Strategy 2041.

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	4.2: Enable housing diversity and support people experiencing housing insecurity	4.2.2: Partnerships and pilots to address housing needs - Investigate partnerships and pilots that deliver an innovative and affordable housing model for the Shire	4.2.2.1	Consider residential rezoning proposals, as identified within existing North Coast Regional Plan growth boundary and the Affordable Housing Contribution Scheme

Recent Resolutions

· 23-654: Housing Options Paper

· 24-080: Residential Strategy 2041

Legal/Statutory/Policy Considerations

A Planning Proposal for AHCS 02 will amend clause 6.18 the Byron Shire Local Environmental Plan 2014 to reflect the introduction of a second Scheme.

This amendment is a legislative requirement of Section 7.32 Environmental Planning and Assessment Act 1979 (EP&A Act) to impose an affordable housing condition on developments specified in both Schemes.

Financial Considerations

AHCS 02 is granted funded by NSW Reconstruction Authority as part of a partnership with Byron Shire Council, given its contribution and alignment with the shared housing objectives of both organisations.

Consultation and Engagement

Council sought early feedback from the Department’s Housing & Policy Team on the draft AHCS 02 and supporting documents. Further consultation will be undertaken in accordance with a Gateway determination for the AHCS 02 Planning Proposal.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.11

Report No. 13.11 PLANNING - DA 10.2024.63.1- Demolition of existing Dwelling House, construction of new Dual Occupancy (Attached) including basement carparking, swimming pool and removal of twelve (12) trees - 19 Marine Parade Byron Bay

Directorate: Sustainable Environment and Economy

Report Author: Alissa Magnifico, Planner

File No: I2024/1037

Proposal:

DA No:	10.2024.63.1
Planning Portal ref	PAN-417743
Proposal description:	Demolition of existing Dwelling House, construction of new Dual Occupancy (Attached) including basement carparking, swimming pool and removal of twelve (12) trees.
Property description:	LOT: 2 DP: 244699
	19 Marine Parade BYRON BAY
Parcel No/s:	49780
Applicant:	Mambrooke Pty Ltd
Owner:	Mambrooke Pty Ltd
Zoning:	R2 Low Density Residential
Date received:	19 March 2024
Integrated / Designated Development:	☐ Integrated	☐ Designated	☒ Not applicable
Concurrence required	No
Public notification or exhibition:	- Level 2 Council advertising under Council’s Community Participation Plan. - Exhibition period: 2 April 2024 to 15 April 2024, extended till 26 April 2024 due to application submitting an updated Visual Impact Statement - 14 Submissions received
Variation request to Development Standards under an EPI (eg clause 4.6)	Clause 4.6 Name of clause – Minimum Lot Size for certain residential accommodation Clause number – 4.1E Percentage value of variation sought – 1.2%
Estimated cost	$12,000,000.00
Delegation to determine	Council

Summary:

The DA proposes demolition of existing dwelling house and the construction of a Dual Occupancy (Attached) with basement carparking, a swimming pool and the removal of twelve (12) trees.

The application was advertised and notified between 2 April 2024 to 26 April 2024. Fourteen submissions were received objecting to the development for a range of reasons including building height plane breaches, visual impacts, excessive earthworks, stormwater management, overshadowing, car parking, manoeuvrability, bulk, scale, height, floor space ratio and the like.

In particular the applicant was advised of the need to resolve an existing stormwater pipe which takes stormwater from Pandanus Lane through the property to Marine Parade. The applicants’ various consultants including the surveyor had not located this important piece of Council infrastructure at the design stage and the development needed to be appropriately designed around the pipe requiring an increased setback to the western boundary of at least three metres.

The applicant’s various attempts at redesign were to remove the stormwater pipe and create an open drain cascading down the side boundary whereby stormwater was to be collected and returned back into the pipe network in Marine Parade with only a 1.5 metre setback to the boundary. This has not been supported by Council’s Development Engineer and in particular the existing pipe should remain in-situ and the development then designed in accordance with Council’s Building in the vicinity of underground infrastructure Policy 2020.

The subject site with an area of only 790m² is less than the required 800 m² for a dual occupancy under Byron LEP 2014. A written justification for the proposed variation to the 4.1E lot size development standard was submitted in accordance with clause 4.6 of LEP 2014. Having regard to the size of the development, non-compliances and the number of additional variations being sought, it is considered there is no valid planning grounds to vary the lot size requirements in this instance.

Further, the proposed development has a floor space ratio of 0.5:1.0 whereby the requirements for floor space are 0.4:1.0. In essence the development has some 79 m²of floor area in excess of what is permitted. As to earthworks, the development seeks to extensively excavate into the property with depths in excess of 7 metres and an area of approximately 170m². This far exceeds the excavation limitations of 50 m² for Wategos under Chapter E5.10 of Byron DCP 2014.

In terms of the building bulk and scale from Marine Parade the development will appear like a 4-storey structure as it rises towards the rear lane, whist from Pandanus Lane the building dominates as two storey structure impacting on neighbours views, whilst failing to satisfy the lane way setback provisions of 3 metres under Chapter D1 of Byron DCP 2014.

The proposal also incorporates 2 car parking spaces on the laneway; however these have not been designed in accordance with Chapter B4 in terms of manoeuvring safely within the laneway and the site triangles for pedestrian safety as per AS2890 have been imposed onto the road reserve not within the subject property.

Having regards to the fundamental flaws of the building design, the development needs to be carefully re-designed, considering and observing Council’s planning controls under both Byron LEP 2014 and Byron DCP 2014. The applicant was invited to withdraw the application and resubmit at a later time as a complete package in the form of a new development application noting that it should be submitted as single dwelling house not a dual occupancy. The applicant has not taken that advice and as such having regards to the legislation and the NSW Department of Planning Housing and Infrastructure Statement of Expectation Order, the assessment has been completed for Council’s consideration. Environmental Planning and Assessment (Statement of Expectations) Order 2024 (nsw.gov.au)

As the proposed development is contrary to numerous planning provisions without adequate justification as discussed above, the proposal is considered an overdevelopment of the site, and the application is recommended for refusal accordingly.

NOTE TO COUNCILLORS:

RECOMMENDATION:

It is recommended that pursuant to Section 4.16 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2024.63.1 for Demolition of existing Dwelling House, construction of new Dual Occupancy (Attached) including basement carparking, swimming pool and removal of twelve (12) trees, be refused for the following reasons:

1. Pursuant to Section 4.15(1)(a)(i) of the EP&A Act 1979 the proposed development is contrary to clause 2.10 and 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 and has an adverse impact visual amenity and scenic qualities of the coast, and the surrounding coastal and built environment.

2. Pursuant to Section 4.15(1)(a)(i) of the EP&A Act 1979 the proposed development does not satisfy the minimum lot size provisions for dual occupancy of 800 m² under clause 4.1E of Byron LEP 2014.

3. Pursuant to Section 4.15(1)(a)(i) of the EP&A Act 1979 the proposed development exceeds the allowable floor space ratio provisions under Clause 4.4 of Byron LEP 2014.

4. Pursuant to Section 4.15(1)(a)(i) of the EP&A Act 1979 the proposed development does not satisfy Clause 4.6 Byron LEP 2014 and has failed to demonstrate that strict compliance with the development standards is unreasonable or unnecessary in this instance.

5. Pursuant to Section 4.15(1)(a)(i) of the EP&A Act 1979 the proposed development is unsatisfactory with its excessive earthworks having regards to Clause 6.2 of Byron LEP 2014 and won’t disrupt, or have a detrimental effect on, drainage patterns and soil stability in the locality of the development, or the amenity of adjoining properties.

6. Pursuant to Section 4.15(1)(a)(i) of the EP&A Act 1979 the proposed development is not satisfactory having regard to Clause 6.6 of Byron LEP 2014 in terms of stormwater drainage on the site and suitable vehicular access.

7. Pursuant to Section 4.15(1)(a)(iii) of the EP&A Act 1979 the proposed development does not demonstrate adequate stormwater management and road access contrary to the requirements of Chapter B3 Services of the BDCP 2014.

8. Pursuant to Section 4.15(1)(a)(iii) of the EP&A Act 1979 the proposed development does not demonstrate provision of suitable vehicle manoeuvring, access, and site lines contrary to the requirements of Chapter B4 Traffic Planning of the BDCP 2014.

9. Pursuant to Section 4.15(1)(a)(iii) of the EP&A Act 1979 the proposed development does not provide adequate landscaping for the second dwelling, contrary to the requirements of Chapter B9 Landscaping of the BDCP 2014.

10. Pursuant to Section 4.15(1)(a)(iii) of the EP&A Act 1979 the proposed development contravenes the requirements of Chapter B14 Excavation and Fill of BDCP 2014 in terms of the extent and scale of earthworks and does not adequately address the geotechnical constraints of the site.

11. Pursuant to Section 4.15(1)(a)(iii) of the EP&A Act 1979 the proposed development contravenes the design and character requirements contrary to the requirements of Chapter D1 Residential Accommodation in Urban, Village and Special Purpose Zones of the Byron DCP 2014, including building height plane, setbacks, solar access, privacy and private open space.

12. Pursuant to Section 4.15(1)(a)(iii) of the EP&A Act 1979 the proposed development does not comply with the provisions relating to basement footprint, site coverage, adequate geotechnical assessment, use of lightweight building materials, visual impact, suitable provision for stormwater and is contrary to the provisions of Chapter E5.10 Wategos of the BDCP 2014.

13. Pursuant to Section 4.15(1)(b) of the EP&A Act 1979 and will have an adverse impact on the built environment in terms of visual impacts and the bulk, scale and height of the development and is an overdevelopment of the site.

14. Pursuant to Section 4.15(1)(c) of the EP&A Act 1979 the site is not suitable for the development having regard to the scale and design of the development proposed and is an overdevelopment of the site.

15. Pursuant to Section 4.15(1)(d) of the EP&A Act 1979 the proposed development is unacceptable having regards to the objections received and the matters raised in those submissions.

16. Pursuant to Section 4.15(1)(e) of the EP&A Act 1979 the development application is not in the public interest as outlined in the other reasons for refusal and is an overdevelopment of the site.

Attachments:

1 10.2024.63.1 - Development Plans, E2024/71765

2 10.2024.63.1 - Submissions, E2024/83436

Report

Figure 1: Locality Plan

Assessment:

History/Background

Previously approved development applications:

Requests for additional information

Several requests for additional information have been made throughout the assessment of this application as follows:

· On 03/04/24 additional information was requested through the Planning Portal seeking a Visual Impact Statement in accordance with Byron DCP 2014 Chapter C3. The applicant submitted an updated Visual Impact Statement on 17/4/24 and the updated document was added to Council’s DA tracker. The advertising period was extended to 26/4/24 to allow for this additional information to be viewed.

· On 18/4/24 additional information was requested for a survey accurate location of Council’s sewer and stormwater infrastructure. This was provided on 15/05/24 confirming stormwater infrastructure is located on the site and not on the neighbouring lot. The applicant proposed two possible stormwater concepts to be reviewed by Council’s Development Engineer.

· Insufficient information was provided on the proposed Stormwater options and on 24/5/24 additional information was requested by Council’s Engineer to facilitate the assessment of the proposed variations to the stormwater drainage system.

· The applicant submitted further amended stormwater concept plans on 6/6/2023 which again failed to satisfactorily resolve all issues.

· The Applicant submitted further amended architectural plans on 21/6/2023 to reflect the proposed stormwater concept plan. The amended plans fail to satisfactorily resolve stormwater issues and the application is recommended for refusal accordingly.

· On 8/7/24 letter sent to applicant recommending the application be withdrawn due to significant issues of:

• Stormwater management

• Vehicle manoeuvring

• Gross Floor Area

• Floor Space Ratio

• Building Height Plane encroachment and potentially building height

• Excessive excavation

• Site coverage

• Visual Impacts

• Geotechnical, stability, noise, vibration, and lighting impacts

• Suitability of the site

• Public Interest

It is considered the development needs to be carefully redesigned and a smaller development with a reduced footprint to accommodate existing stormwater infrastructure and that respects Council’s planning controls is needed. The applicant was invited to withdraw the application but as it is still active it is now reported to Council for determination as it is outside staff delegation to determine as fatally flawed.

Description of the proposed development

Development consent is sought to demolish the existing dwelling that occupies the property and construct a new dual occupancy (attached) development comprising of a main (larger) dwelling and a smaller studio style dwelling. The proposed development is made up of five levels, with basement car parking a swimming pool and lift access to all 5 levels.

Basement Level

A basement level is proposed with a finished floor level of RL6.3m. It is to be excavated into the property to allow vehicle access from Marine Parade to the north. Sufficient area is proposed to park 2 x vehicles in a garage space, as well as provide a workshop and storage areas.

A narrow access open air hallway is proposed adjacent to the western property boundary to provide access from the garage to a basement lobby within the south-western corner of the property. The basement lobby adjoins a space for containing services and provides access to a common stair and lift that rise vertically to each level above. A new driveway crossover is proposed within the Marine Parade road reserve.

Mezzanine Level

The development plans nominate a mezzanine level (which is also a subterranean basement room) with a finished floor level of RL 10.2m containing a laundry space. The mezzanine level is accessible from the stair and lift that is positioned within the south-western corner of the property. It sits below the existing ground level and effectively comprises an upper level of the basement lobby.

Ground Floor

The proposed ground floor level is made up of 3 x bedrooms and 2 x bathrooms, a bar with adjacent lounge area, an outdoor dining area, a swimming pool and extensive lawn/terrace areas. The ground floor has a finished floor level of RL 12.8m.

First Floor

The proposed first floor has a finished floor level of RL 16.1m. The smaller studio style dwelling is located within the east of the allotment. It contains a single bedroom with a bathroom, a study and terrace areas. A parking area suitable for 2 x vehicles associated with this dwelling is provided adjacent to the Pandanus Place frontage.

The main dwelling is located within the west of the property and contains a kitchen/living/dining area plus various terrace and garden spaces.

Second Floor

A master bedroom with an ensuite and robe is proposed within the second floor of the building. This is to be used as part of the main dwelling. It has a finished floor level of RL 19 .7m.

This application seeks approval for Demolition of existing Dwelling House, construction of new Dual Occupancy (Attached) including basement carparking, swimming pool and removal of twelve (12) trees.

Description of the Site

Figure 2: Zoning

The proposed development relates to a single allotment of land that is formally described as Lot 2 in Deposited Plan 244699. The property is located at No. 19 Marine Parade, Byron Bay. The allotment has a rectangular configuration with dual street frontages. Deposited Plan 244699 indicates that land has an area of 31.25 perches, which equates to 790.4 square metres.

The subject lot has a frontage of 15.24 metres to Marine Parade to the north. A frontage of 23.3 metres is provided to a rear lane (Pandanus Place). The eastern and western property boundaries are 49.63 metres and 41.15 metres respectively (based on the Deposited Plan). The land falls from south to north towards Marine Parade.

The lot currently contains a two-storey dwelling house, an on-site parking area, decks covered in shade structures, staircases and landscaping. Vehicular and pedestrian access is currently available to the site via Pandanus Place, with only pedestrian access currently available from Marine Parade to the north.

A site inspection was carried out on 31 March 2024

Land is legally described	LOT: 2 DP: 244699
Property address	19 Marine Parade BYRON BAY
Land is zoned:	R2 Low Density
Land area is:	790.4 m²
Property is constrained by:	Bushfire prone land View Corridor High Environmental Value Vegetation Stormwater 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 3: View from Wategos Beach

Figure 4: Source - View of existing dwelling from Pandanus Lane

Figure 5:Source- Existing view from Wategos Beach

Figure 6: Applicant’s Visual Impact render of proposed development

SUMMARY OF REFERRALS

Referral	Comment
Environmental Health Officer	Not supported. Insufficient and deficient documentation provided to resolve issues raised.
Development Engineer	Not supported. Stormwater issues raised by Council’s Development Engineer have not been satisfactorily resolved by the DA. Insufficient and deficient documentation provided to resolve other issues raised including geotechnical matters considering the extensive earthworks proposed for the development.
S64 / Systems Planning Officer	No objections subject to conditions.
S7.11 / Contributions Planner	Development contributions are payable should the application be approved.
Natural Resource Planner	No objections subject to conditions.
Essential Energy	CNR -66993 No objections subject to conditions.
NSW National Parks and Wildlife Service	NPWS were notified as a neighbour and provided comments on the proposal.

ISSUES:

Development Engineer

The stormwater issues raised by Council’s Development Engineer have not been satisfactorily addressed, and the application is recommended for refusal because insufficient information has been provided to demonstrate compliance to Clause 6.6(e) and 4.2D of BLEP 2014 and Section B3.2.1 of DCP 2014, Clause 6.6(d) of BLEP 2014 and Section B3.2.3 & B3.2.4 of DCP 2014 for the following reasons:

1. The updated Stormwater Management Plan is not supported and fails to demonstrate compliance with easement, design and maintenance requirements of Comprehensive Guidelines for Stormwater Management and Chapter D10 – Handbook of Stormwater Drainage Design.

Figure 7, 8 and 9 Extracts of Stormwater Concept

2. The proposed plans do not demonstrate that adequate manoeuvring area is provided to allow vehicles to enter and exit the site in a forward direction. Turning paths must include 0.3m swept path clearance in accordance with Appendix B of AS 2890.1.

Vehicle manoeuvring fails to demonstrate compliance, or insufficient information is provided for Access servicing the Main Dwelling in Marine Pde

(i) retaining walls within the road reserve are not permitted other than the proposed retaining wall between 17 and 19 Marine Pde as shown on Westera Partners drawing N24-018-PC02 rev B. The maximum longitudinal length of the proposed retaining wall to be 1.76m measured from the front property boundary.

(ii) widening of the driveway width along the road reserve does not comply with Chapter D1.37 & D1.38 of the Northern Rivers Local Government Guidelines. The driveway must be set square to the road carriageway.

(iii) sight distances do not meet all parts of clause 3.2.4 of AS2890.1:2004.

(iv) manoeuvring areas do not allow vehicles to enter and leave the site in a forward direction in accordance with part B4.2.2 and B4.2.3 of Chapter B4 of BDCP 2014.

Access servicing the Second Dwelling in Pandanus Lane

(v) manoeuvring in Pandanus Lane does not clear the retaining wall opposite the proposed driveway and encroaches into the neighbouring driveway opposite the site.

(vi) the representation of minimum sightlines for pedestrian safety in Kennon Architecture drawing DA103 and Westera Partners drawing N24-018-PC03 rev B. are incorrect. The sight distances do not meet all parts of clause 3.2.4 of AS2890.1:2004.

(vii) The driveway cross section in and Westera Partners drawing N24-018-PC05 rev B does not meet clause 2.6.2 of AS2890.1.

3. A Stability Assessment Report in terms of landslip has not been submitted and is required, demonstrating a risk level of low or better to the site and its surrounds in relation to the proposed development.

Environmental Health Officer

The application is not supported because insufficient information has been provided in order to assess the impact of noise and vibration created by the proposed demolition, excavation, and construction of the dwelling and the impact of lighting on neighbouring properties.

(i) The submitted geotechnical report is deficient and does not include soil bore logs to at least one metre (1.0m) below the proposed finished floor level or lowest point whichever is greater. The proposed dwelling requires excavations of at least 7m, however the borehole taken is only to 6 meters.

(ii) A dilapidation report was not submitted and is required to certify that the method of construction and dewatering will not adversely impact/effect the structural integrity and support of the neighbouring buildings and associated private and public infrastructure within the zone of influence of the construction site. The report is to also required to address the current structural state of those buildings and infrastructure, and how the proposed construction work is likely to affect their structural integrity.

A noise assessment report was not submitted and is required.

An assessment by an appropriately qualified and experienced acoustic consultant is required.to include (but not necessarily be limited to):

a. determination of the background sound characteristics of the property location, and relative sensitivities of surrounding neighbourhood residences.

b. details of the noise relating to specific equipment to be used in the demolition phase.

c. details of the noise relating to, excavation, rock breaking/blasting, piling, construction and associated activities for the construction of the proposed structures.

d. assessment of expected noise and vibration from the construction activities.

e. construction activities that are likely to affect their amenity or cause structural damage through vibration.

f. detailed examination of feasible and reasonable work practices that will be implemented to minimise noise impacts.

g. noise and vibration monitoring, reporting and response procedures.

h. strategies to promptly deal with and address noise complaints.

i. description of specific mitigation treatments, management methods and procedures that will be implemented to control noise and vibration during construction.

j. details of performance evaluating procedures (for example, noise monitoring or checking work practices and equipment).

k. procedures for notifying nearby residents of forthcoming works that are likely to produce noise impacts.

l. contingency plans to be implemented in the event of non-compliance and/or complaints.

m. details of locations and appropriate acoustic treatments for any external equipment that will be located on the property such as swimming pool pump / filtration, “heat- pump” hot water systems, air conditioning units, lift motors, etc.

n. details of congregation points such as the swimming pool which might generate noise that would be audible outside the boundaries of the property.

Advisory note:

Refer to DECC’s ‘Interim Construction Noise Guideline’ (2009) for more information (see http://www.environment.nsw.gov.au/noise/constructnoise.htm

(iii) The proposed development has not considered lighting impacts on the environment and neighbouring properties. A Lighting Impact Assessment is required to demonstrate that safe minimum standards of lighting (min. 0.2 Lux) can be provided without generation of undue glare and nuisance from the lighting installations.

(iv) Groundwater may be encountered and a Construction Dewatering Management Plan was not provided and is required.

The plan must include the following:

a) copy of a licence from the NSW Department of NSW Office of Water for the dewatering of excavations and any associated groundwater monitoring bores;

b) water quality criteria for waters to be discharged to the stormwater system, to be derived from ANZECC / ARMCANZ (2000) Fresh and Marine Water Quality Guidelines 95% species protection trigger levels for freshwaters, or similar. Parameters to include, but not be limited to, pH, electrical conductivity, dissolved Nitrogen (TN), Filterable Reactive Phosphorus, Total Phosphorus, Total Petroleum Hydrocarbons, Benzene, toluene, ethyl benzene, xylene (BTEX), Polycyclic Aromatic Hydrocarbons (PAHs) and Aluminium;

c) details of proposed water treatment prior to discharge to ensure compliance with the above water quality criteria, including those that are manual and automated;

d) site plan that demonstrates the location of all dewatering equipment and tanks;

e) details of water sampling methodologies and frequencies for each parameter;

f) details of disposal methods if water does not comply with above criteria; and

g) details of a 24-hour contact person and telephone number for complaints.

Infrastructure Services

No objections raised to loss of a motorcycle parking space on Marine Parade subject to DA assessment considering site constraints.

No retaining walls to be constructed in road reserve.

Local Traffic Committee must approve the changes to line marking and signage prior to the issue of any Roads Act consent.

Natural Resource Planner

The site contains a mix of lawn, weeds and landscaping plantings, including two planted Durobby Syzygium moorei (vulnerable - BC Act, EPBC Act). Up to 15 trees will be removed for the demolition and rebuild. With the exception of the two planted Durobby, all other trees are exotic/ornamental species.

The Aboricultural Impact Assessment (Northern Tree Care, Feb 2024) prepared for the proposal notes 12 individual trees and a small group of 3 trees will require removal.

Considerations under Section 7.3 of the Biodiversity Conservation Act 2016 (test of significance) are addressed and impacts of the proposal upon the two planted Durobby are not significant. This assessment is agreed with.

The Aboricultural Impact Assessment made the following recommendation (below) which is supported:

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NSW National Parks and Wildlife Service

NPWS has identified the following concern in relation to DA 10.2024.63.1.

Erosion and sediment control (ESC) and stormwater management during construction:

Section 4.3 of the Storm Water Management Plan (SWP) identifies that the proposed development has an erosion hazard score of 23, indicating that it is a high-risk site and that an Erosion Sediment Control Plan (ESCP) must be submitted to Council for approval during the planning phase. The SWP also notes the need for erosion and sediment control measures to be well maintained, satisfy Council, regularly inspected and replaced and repaired where required, and that any breaches are documented. NPWS supports the development of a high quality ESCP and the adoption of a high standard of ESC and stormwater management during construction.

However, unfortunately NPWS has observed that previous developments in the Wategos Beach catchment have had significant ESC and stormwater management failings during construction.

As a result, NPWS requests a copy of the ESCP before works commence. NPWS will advise Council of any concerns regarding ESC and stormwater management during demolition and construction of the new dwelling.

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 is accompanied by a Report by GeoLINK dated 14/03/24 which provides conditions for inclusion on the consent if issued.

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
Biodiversity and Conservation SEPP 2021 Consideration: Council’s Ecologist did not identify issues under the SEPP, and the proposal is regarded as satisfactory in relation to the SEPP.	☒	☐
Housing SEPP 2021 Consideration: The proposal is not unsatisfactory having regard to the provisions of the Housing SEPP.	☒	☐
Resilience and Hazards SEPP 2021 Consideration: Chapter 2.10 Development on land within the Coastal Environment Area The dwelling has no significant impacts upon public access to foreshore. There is some loss of motorcycle on-street parking along the property frontage which was assessed by Council’s Infrastructure Services as satisfactory. Deficient geotechnical and stormwater details have been provided, unable to demonstrate that the development is not likely to cause an adverse impact on the following (and is recommended for refusal accordingly): (a) the integrity and resilience of the biophysical and ecological environment; Chapter 2.11 Development on land within the coastal use area The application fails to demonstrate that the development is not likely to cause an adverse impact on the following (and is recommended for refusal accordingly): (a) the visual amenity and scenic qualities of the coast, including coastal headlands, b) the surrounding coastal and built environment. The bulk, scale and size of the proposed development is considered to be over development of the land. Chapter 2.8 Development on land in proximity to Coastal Wetlands or littoral rainforest The site is in the proximity area to nearby mapped littoral rainforest. The SEE addresses this matter adequately. Complies. Chapter 4 Remediation In relation to potential contamination, the subject site contains existing residential use, and conditions can be applied to ensure correct demolition regarding potential asbestos contamination. Complies.	☐	☒
Transport and Infrastructure SEPP 2021 Consideration: Essential Energy reviewed the proposal and provided comments. The application is satisfactory having regard to clause 2.48.	☒	☐
Sustainable Buildings SEPP 2022 Consideration: The proposal is BASIX development. A valid BASIX certificate has been provided.	☒	☐

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;

(b) The land is within the R2 Low Density Residential according to the Land Zoning Map;

(d) Regards for the proposed residential development to the Zone Objectives as follows:

Zone Objective – R2

Consideration

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

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

The proposed development with its excessive footprint, bulk and scale and floor space ratio is not consistent with the low-density zone objectives.

Part 4 – Principal Development Standards

Provision	Compliance	Comment
4.1E Minimum lot sizes for certain residential accommodation	No	A minimum lot size of 800m² applies to dual occupancies (detached) in the R2 Residential Zone. The property has an undersized lot area of ~790.4m2, resulting in a 1.2% variation. The applicant submitted a clause 4.6 variation request for this development standard, which is not supported, as detailed below.
4.3 Height of Buildings	yes	A 9m maximum building height applies to the site. It is likely the development is within the 9-metre height limit. Should the application be approved conditions would apply to ensure compliance.
4.4 Floor Space Ratio	No	At the time of application lodgement, the maximum applicable floor space ratio for this site was 0.5:1 for dual occupancies as per LEP clause 4.4 (2A), however there was a draft LEP that was pending gazettal. The LEP amendment became effective on 23/5/24 changing the applicable floor space ratio of the site to 0.4:1. There are no savings provision. The proposed floor space ratio of 0.5:1 exceeds the maximum floor space ratio of 0.4:1 for dual occupancies by 79 m² and is a recommended reason for refusal.
4.6 Exceptions to development standards	No	Applicant has sought a variation to 4.1 E Minimum lot sizes for dual occupancies by proposing a Dual Occupancy (attached) on an undersized lot with an area of 790.4m2, less than the minimum 800m2 required. 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. It is considered that the objectives of the development standard are not achieved and there are not sufficient environmental grounds to vary the development standard for the following reasons: · A change to LEP clause 4.4(2A) from FSR 0.5:1 to FSR 0.4:1 for dual occupancies which occurred on 24/05/24, with no savings provisions and is a recommended reason for refusal. · The numerous development control and LEP breaches result in substantive impacts to the locality. The proposal is not in the public interest having regards to the objectives of the development standard for the reasons outlined above and it is not recommended that the development standard be varied in this instance.

Part 6 – Additional local provisions

Provision

Compliance

Comment

6.2 Earthworks

Major earthworks up to 7.7m deep are proposed for the 5-storey dwelling, basement and swimming pool. The provided Geotechnical report is deficient and Council cannot be satisfied that the earthworks will not significantly:

· affect the drainage patterns or soil stability in the surrounding area

· affect the development on the existing and likely amenity of adjoining properties,

· have adverse impacts on the surrounding environmentally sensitive area. This is a recommended reason for refusal.

6.6 Essential services

Services

The site has satisfactory existing electricity and telecommunications connections, mains water and sewage connection.

Stormwater drainage

The stormwater issues raised by Council’s Development Engineer are yet to be resolved. The updated Stormwater Management Plan fails to demonstrate compliance with easement, design and maintenance requirements of Comprehensive Guidelines for Stormwater Management and Chapter D10 – Handbook of Stormwater Drainage Design. The applicants plan to remove the drain and create a narrow overland channel between the boundary and the subject dwelling is not supported, having regards to the fall from Pandanus Lane to Marine Parade of some 9 metres. The existing drain should be left insitu and the development adequately setback from this infrastructure in accordance with Councils Building in the Vicinity of Underground Infrastructure Policy 2020. This would necessitate the dwelling being setback 3 metres from the western boundary. The proposal is unsatisfactory.

Vehicular Access

Vehicular access and manoeuvring from both driveways are non-compliant and inadequate arrangements have been made for vehicular access.

The application does not satisfy Clause 6.6 of the LEP.

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

Changes to Byron Local Environmental Plan 2024 were publicly exhibited through to 29 January 2024. One of these including the removal of subclause (2A) from Section 4.4 of Byron Local Environmental Plan 2014, which reads as follows:

“(2A) Despite subclause (2), the maximum floor space ratio for dual occupancies on land in Zone R2 Low Density Residential is 0.5:1”.

This in effect reduced the Floor space ratio to 0.4:1.0. The applicant was aware of the potential LEP amendment and submitted the application anyway. The change to LEP Clause 4.4(2A) from FSR 0.5:1 to FSR 0.4:1 for dual occupancies occurred on 24/05/24 as advised to the applicant during pre-lodgement. No savings provisions are included in the LEP amendment, and the application is fatally flawed in terms of floor space ratio.

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

B1 Biodiversity

The site is mapped as containing High Environmental Value vegetation. The Aboricultural Impact Assessment (Northern Tree Care, Feb 2024) prepared for the proposal notes 12 individual trees and a small group of 3 trees will require removal. Considerations under Section 7.3 of the Biodiversity Conservation Act 2016 (test of significance) are addressed in the Statement of Environmental Effects, and impacts of the proposal upon the two planted Durobby are not significant. This assessment is agreed with. Should the application be approved conditions to apply.

Chapter B3 Services

B3.2.3 Stormwater Management

The updated stormwater management plan does not demonstrate compliance with easement, design and maintenance in accordance with Byron Council Comprehensive Guidelines for Stormwater management.

The proposal cannot be considered to comply with the provisions of Chapter B3, and the development requires a significant redesign as discussed elsewhere in this report to accommodate the existing stormwater main.

B3.2.4 Sedimentation and Erosion Control Measures

National Parks and Wildlife Services raised concerns re erosion control measures. Conditions can be recommended if the application is approved.

Chapter B4 Traffic Planning

B4.2.3 Vehicle Access and Manoeuvring Areas

Access servicing the Main Dwelling in Marine Pde

The following items are non-compliant:

(i) The proposed retaining wall within the road reserve is not permitted other than the proposed retaining wall between 17 and 19 Marine Pde as shown on Westera Partners drawing N24-018-PC02 rev B. The maximum longitudinal length of the proposed retaining wall to be 1.76m measured from the front property boundary.

(iii) sight distances do not meet all parts of clause 3.2.4 of AS2890.1:2004.

(iv) manoeuvring areas do not demonstrate vehicles to enter and leave the site in a forward direction in accordance with part B4.2.2 and B4.2.3 of Chapter B4 of BDCP 2014.

Access servicing the Second Dwelling in Pandanus Lane

The following items are non-compliant:

(v) manoeuvring in Pandanus Lane failed to clear the retaining wall opposite the proposed driveway and encroaches into the neighbouring driveway opposite the site.

(vi) the representation of minimum sightlines for pedestrian safety in Kennon Architecture drawing DA103 and Westera Partners drawing N24-018-PC03 rev B. are incorrect. The sight distance does not meet all parts of clause 3.2.4 of AS2890.1:2004.

(vii) The driveway cross section in and Westera Partners drawing N24-018-PC05 rev B failed clause 2.6.2 of AS2890.1.

The proposal cannot be considered to comply with the provisions of Chapter B4.

Chapter B9 Landscaping

B9.5 Dual Occupancy

A landscaping plan was submitted with the application. The proposed plans do not demonstrate each dwelling has a minimum landscaped area of 90m2, excluding any area used for vehicle circulation or parking. The submitted Deep Soil Landscape plan details 29.4% (232.1m²) of the site is deep soil. However, areas of the site are included which are covered by the roof of the dwelling. Insufficient information is provided to demonstrate at least 25% of the site consists of deep soil areas.

The proposal cannot be considered to comply with the provisions of Chapter B9.

Figure 10: Proposed Deep Soil Plan

B14 Excavation and Fill

The proposed excavation works are up to 7.7m deep and are considered excessive. The proposal has not demonstrated compliance Chapter B14 for the following reasons:

a) The proposal does not demonstrate controlling the extent, character, bulk and scale of earthworks so that both individual and cumulative earthworks over time do not detract from the existing and desired future character of their immediate locality, and the surrounding area.

b) The proposal does not satisfy prescriptive measure 2, the maximum excavation to satisfy minimum car parking requirements up to a maximum height of 2 metres.

c) The proposal does not demonstrate geotechnical constraints have been adequately addressed.

d) The proposal does not satisfy prescriptive measure 9 demonstrating Engineering detail by a suitably qualified structural or geotechnical engineer to be submitted for earthworks on land with a gradient exceeding 15% or where cut and fill of more than 1 metre is proposed.

The proposal cannot be considered to comply with the provisions of Chapter B4.

Figure 11: Proposed excavation

C3 Visually Prominent Site

An incomplete Visual Impact Assessment was provided with the initial application. Once the application was lodged an updated Visual Impact Assessment was obtained and the advertising period for the proposal extended to enable full public review.

The updated Visual Impact Statement omitted any visual views from the neighbouring dwellings impacted behind on Pandanus Lane and failed to include the northern neighbour in any visual renders. The building presents as a large solid masonry two storey structure to the laneway as evidenced in the render below.

The development proposes many development control breaches, including reduced setbacks, building height plane encroachments, floor space ratio exceedance, possible building height encroachment and undersized lot for proposed dual occupancy.

The impact on views that arise as a result of the non-compliance with numerous planning controls, is likely to be considered unreasonable. Council is not satisfied that the development is not likely to create adverse visual impacts.

The proposal cannot be considered to comply with the provisions of Chapter C3.

Figure 11: Visual Impact Assessment Render of Southern boundary by Kennon Architects

Chapter D1 Residential Accommodation in Urban, Village and Special Purposes

D1.2.1 Building Height Plane

The Building Height Plane encroachment, particularly along the Southern boundary is exacerbated by the reduced setback and the bulk and scale of the approximately 6.7m high straight wall, as seen from the site boundary along Pandanus Lane and is not supported.

The application is not satisfactory because the extent of the encroachment into the building height plane does not comply with the objectives and performance criteria of D1.2.1 of Byron Shire Development Control Plan 2014 given that the development is not set back progressively from the site boundaries as height increases and the application fails to demonstrate that the development will not:

(a) adversely affect existing or future development on adjoining properties by way of overshadowing, impinging on privacy or obstructing views;

(b) establish spatial separation between residential dwellings (including domestic outbuildings) from the street and other public reserves, and between allotments, to provide a varied and interesting streetscape, optimise microclimate, and mitigate excessive bulk in built form; or

(c) integrate with surrounding developments, public reserves and the predominant streetscape character to offer a high level of amenity and establish a sense of openness.

Figure 12: Proposed Building Height Plane encroachment to the two side boundaries

D1.2.2 Setbacks from Boundaries

The development encroaches into the rear lane setback of 3 metres to the building proper with the upper level approximately 2.6 metres from the lane. Other elements of the development at laneway level although not clearly marked on the plan appear to protrude up to the laneway boundary. This includes a solid balustrade fence structure which appears to have created a semi enclosed courtyard to the lane at the garage level, whilst the level below is excavated and retained up to 1.7 metres into this laneway setback. Extracts from the plans are provided below with the encroachments highlighted.

On review of the application, there are no valid reason for these encroachments and the variations are not supported in this instance.

Figure 13: Encroachments into the rear lane setback and site triangles within the road reserve

D1.2.4 Solar Access

Shadow diagrams were provided by the applicant; however they fail to note the date of the shadowing assessment or show the correct north point. It is likely the proposal will have an adverse impact on the neighbouring dwelling to the west during the morning hours which is a smaller/modest two storey dwelling.

D1.5.3 Privacy

Development must be compatible with the bulk, scale, height and character of adjoining and adjacent development. The reduced rear setback and building height plane encroachment adds to the bulk and scale of the proposed development, likely to be incompatible with the character of the adjoining properties, especially when viewed from Pandanus Lane. With the upper level deck and raised garden lounge area of the main bedroom the privacy of neighbours either side of the development are likely to be impacted upon. The proposal is not supported.

D1.5.4 Private Open Space

The proposed private open space of the second dwelling does not demonstrate a minimum area of 30m² and a minimum length and width each of 4m, is available for the smaller second dwelling. The proposal does not comply.

Chapter E5 Certain Locations in Byron Bay

E5.8.4 Character Narrative

The site is located within pocket C Wategos Beach. It is considered important that future housing remains consistent with the R2 zone objectives, with appropriate bulk and scale and use of natural landscaping. The bulk and scale of the proposed development is considered inappropriate to the character narrative of the locality and over development of the site.

E5.10 Wategos Beach

The applicant requested a variation to this prescriptive control to allow the proposed development to provide a double vehicle garage, a lift and staircase, basement storage areas, plant rooms, a laundry and accessways. The applicant submitted that this control is unnecessarily restrictive as, once completed, basements are not visible from public or private properties.

The proposal does not demonstrate the siting and design of dwelling does not detract from the streetscape and the residential character of the area, have minimal impact on adjoining properties, environment and public domain for the following reasons:

a) The proposed excavation of the site is excessive with the basement and basement landing area having a combined footprint of approximately 170m². This is in excess of the maximum footprint of 50 square metres. This is in agreement with Council’s recent resolution on 23/5/24 to limit excavation, bulk and scale of development at Wategos via compliance with development controls.

b) The dwellings and hardstand areas including the swimming pool exceed the maximum site coverage of 50%.

c) The provided Geotechnical report is deficient and does not address slope stability issues.

d) The development does not utilise lightweight building and cladding materials and is proposed to be constructed of concrete and stone cladding, likely to detract from the streetscape and residential character of the area.

e) The updated Visual Impact Assessment is deficient, and Council cannot fully assess the impacts on views and view sharing on neighbouring properties.

f) The updated stormwater concept plan submitted does not demonstrate compliance with Chapter B3: Services.

The proposal cannot be considered to comply with the provisions of Chapter E5.

4.5 Environmental Planning and Assessment Regulation 2021 considerations

Environmental Planning and Assessment Regulations 2021	Applicable to the proposal:	Considered the control as it relates to the proposal:	If this control is applicable, does the proposal comply?
Section 61 - Additional matters that consent authority must consider	☒ Yes ☐ No	☐ Yes ☐ No ☐ NA	☒ Yes ☐ No ☐ NA
Section 62 - Consideration of fire safety	☐ Yes ☒ No	☐ Yes ☐ No ☒ NA	☐ Yes ☐ No ☒ NA
Section 64 - Consent authority may require upgrade of buildings	☐ Yes ☒ No	☐ Yes ☐ No ☒ NA	☐ Yes ☐ No ☒ NA
Section 63 - Considerations for 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

4.6.1

Impact on:	Likely significant impact/s?
Natural environment	Yes. Proposal considered acceptable if to be approved.
Built environment	The proposal will have a significant adverse impact on the built environment of the locality. As outlined above, the proposed development is not consistent with the design, scale and/or character of the locality.
Social Environment	No. The proposal will not likely have a significantly adverse impact on the social environment.
Economic impact	Yes - The proposal will short term impacts in the construction industry and associate multiplier effects.
Construction Impacts	The development will generate minor impacts during its construction. Conditions of consent would be recommended to control hours of work, builders waste, construction noise, installation of sedimentation and erosion control measures and the like to ameliorate such impacts.

4.6.2 Marine Estate Management Act 2014

The development is unlikely to have an effect on the plants or animals within the Cape Byron Marine Park or their habitat.

4.6.3 Council Policies applicable to the proposed development?

Council Policy	Consideration
Building in the Vicinity of Underground Infrastructure Policy 2020	The proximity to stormwater infrastructure has been assessed by Council’s Development Engineer and is inconsistent with the policy.
Water and Sewer Equivalent Tenements Policy	No objections have been raised by Council’s ET Engineer in this regard.

4.7 The suitability of the site for the development

The site has not been demonstrated to be suitable for the proposed development for the reasons outlined in this report.

4.8 Submissions made in accordance with this Act or the regulations

The development application was publicly exhibited from 2 April 2024 to 15 April 2024, extended till 26 April 2024 due to the applicant submitting an updated Visual Impact Statement. Fourteen submissions were received.

The reasons for objection are summarised and commented on as follows:

View Impacts, non-comprehensive Visual Impact Statement

Comment: The application is recommended for refusal because insufficient information has been provided to demonstrate compliance to the development controls of Chapter C3 Visual Impacts and E5.10 Wategos Beach, particularly with regards to view impacts on neighbouring properties.

Car parking manoeuvrability, traffic impacts, driveway impacts on neighbouring property

Comment: The application is recommended for refusal because the proposal does not demonstrate compliance with LEP6.6e and 4.2D and DCP B3.2.1

Stormwater impacts, incorrect location of pipe

Comment: The applicant provided an updated survey as requested, which shows the correct location of the stormwater infrastructure located within the applicant’s site. An updated stormwater management plan was requested and provided by the applicant.

The application is recommended for refusal because the proposed stormwater concept plan does not demonstrate compliance to Clause 6.6(d) of LEP 2014 and Chapter B3.2.3 & Chapter D6 of BDCP 2014

Excessive use of concrete

Comment: The proposed building material of mainly concrete does not comply with the character narrative of Wategos E5.10 and is a recommended reason for refusal.

Environmental and Ecological concerns

Comment: Council’s Ecologist has reviewed the proposal and advised it satisfactorily addresses Chapter B1 Biodiversity and the Biodiversity Act.

Building height plane encroachments, setbacks non-conformity

Comment: The application is recommended for refusal because the extent of the encroachment into the building height plane does not comply with the objectives and performance criteria of D1.2.1 of Byron Shire Development Control Plan 2014 given that the development is not set back progressively from the site boundaries as height increases and the application does not demonstrate that it will not:

1. adversely affect existing or future development on adjoining properties by way of overshadowing, impinging on privacy or obstructing views;

2. establish spatial separation between residential dwellings (including domestic outbuildings) from the street and other public reserves, and between allotments, to provide a varied and interesting streetscape, optimise microclimate, and mitigate excessive bulk in built form; or

3. integrate with surrounding developments, public reserves, and the predominant streetscape character to offer a high level of amenity and establish a sense of openness.

Site coverage, floor space ratio, insufficient lot size

Comment: The lot is undersized for the proposed dual occupancy and the applicant submitted a 4.6 variation request. The floor space ratio applicable to the proposal was amended during the assessment period from 0.5 to 0.4:1. Thus the proposed 0.5:1 FSR does not comply with clause 4.4 BEP 2014. The proposed site coverage does not comply with the maximum 50% as per DCP E5.10 Wategos. The numerous development control non compliance issues demonstrate the proposed development is not suitable for the site and is a recommended reason for refusal.

Building height breach, incorrect survey points, lack of measurements on plans

Comment: Insufficient information was provided on the proposed building height to determine if there is a breach. However, it is expected the existing ground level would dip in the area of the existing dwelling footprint to be demolished, however this is not demonstrated. Should the application be approved it is likley conditions of consent would be drafted to lower the building to ensure compliance.

Excessive Excavation and geotechnical concerns

Comment: The proposed excavation of the site of up to 7.7m deep is considered excessive and does not comply with BDCP 2014 Chapter B14 and E5.10. The provided Geotechnical report is insufficient to adequately address the geotechnical constraints of the site and is a recommended reason for refusal.

Short term rental accommodation

Comment: Noted

Disregard for Legal and Community Standards due to overall noncompliance of the proposal

Comment: Noted

Amenity of Second dwelling (dual occupancy), landscaping noncompliance

Comment: Noted and as discussed above in the report.

Privacy and overlooking exacerbated by rooftop amenity

Comment: The over development of the lot exacerbates the privacy and overlooking concerns by neighbouring dwellings and does not comply with D1 Privacy.

Overshadowing

Comment: Noted and as discussed in the report.

Light pollution

Comment: Should the application a Lighting Assessment report would be required to assess any impacts.

4.9 Public interest

The proposed development having regards to the issues raised in this report is considered to be an overdevelopment of the site and is not in the public interest.

5 Developer Contributions

5.1 Water & Sewer Levies

Section 64 levies will be payable if the development was approved.

5.2 Developer Contributions

Developer Contributions would be required if the development was approved.

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 ☒

CONCLUSION

The proposed dual occupancy is contrary to numerous planning provisions under Byron LEP 2014 and Byron DCP 2014 and is considered to be an overdevelopment of the site. Based on the issues identified in the assessment report, the site is not considered to be suitable for the proposed development, is contrary to the public interest and is recommended for refusal.

Year	Per	Date	Reading	Cons	Avg Cons
2024	4	17/05/2024	1407	392	4.4545
2024	3	19/02/2024	1015	170	1.7895
2024	2	16/11/2023	845	111	1.2198
2024	1	17/08/2023	734	97	1.0319
2023	4	15/05/2023	637	62	0.6813
2023	3	13/02/2023	575	54	0.5745
2023	2	11/11/2022	521	34	0.3864
2023	1	15/08/2022	487	30	0.3158
2022	4	12/05/2022	457	25	0.2778
2022	3	11/02/2022	432	22	0.2391
2022	2	11/11/2021	410	3	0.033
2022	1	12/08/2021	407	22	0.2366

Background and Report

Recommendation and Next steps

Strategic Considerations

Community Strategic Plan and Operational Plan

Recent Resolutions

Legal/Statutory/Policy Considerations

Financial Considerations

Consultation and Engagement

Report

Next steps

Strategic Considerations

Community Strategic Plan and Operational Plan

Legal/Statutory/Policy Considerations

Financial Considerations

Consultation and Engagement

Report

Assessment:

History/Background

Description of the proposed development

Description of the Site

SUMMARY OF REFERRALS

SECTION 4.14 – BUSH FIRE PRONE LAND

SECTION 4.15C – MATTERS FOR CONSIDERATION – DISCUSSION OF ISSUES

State Environmental Planning Policies (SEPP)

4.2 Byron Local Environmental Plan 2014 (LEP 2014)

Applicant has sought a variation to 4.1 E Minimum lot sizes for dual occupancies by proposing a Dual Occupancy (attached) on an undersized lot with an area of 790.4m2, less than the minimum 800m2 required.

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.

The proposal is not in the public interest having regards to the objectives of the development standard for the reasons outlined above and it is not recommended that the development standard be varied in this instance.

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

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

4.5 Environmental Planning and Assessment Regulation 2021 considerations

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

4.7 The suitability of the site for the development

4.8 Submissions made in accordance with this Act or the regulations

The reasons for objection are summarised and commented on as follows:

4.9 Public interest

5 Developer Contributions

5.1 Water & Sewer Levies

5.2 Developer Contributions

DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

CONCLUSION

Report

Financial Implications

Statutory and Policy Compliance Implications