SCAP Agenda Item 2.2.1
23 April 2020
#15360298
R Hartley C/- Weber Frankiw Surveyors Pty Ltd.
Land division to create one (1) additional allotment – 1-into-2.
416 Muston Road, Pelican Lagoon.
DA 520/D004/19
TABLE OF CONTENTS
PAGE NO AGENDA REPORT 2-15 ATTACHMENTS 1: PLANS 16 2: APPLICATION DOCUMENTS a. Council Request for Concurrence 17 b. Certificate of Title 18-20 c. Statement of Effect by URPS 21-40 d. Draft Land Management Agreement 41-45 e. Legal opinion by Botten Levinson Lawyers 46-56 f. Environmental Impact Assessment by Rob Thomas 57-68 3: AGENCY COMMENTS 69-77 4: COUNCIL COMMENTS 78-104 5: REPRESENTATIONS 105-108 6: RESPONSE TO REPRESENTATIONS 109-113 7: DEVELOPMENT PLAN PROVISIONS 114-133 8: DAC - AGENDA ITEM – 6 JULY 2017 134-152 9: COUNCIL DECISION NOTIFICATION – DA 520/064/10 153-157
1 SCAP Agenda Item 2.2.1
23 April 2020
OVERVIEW
Application No 520/D004/19. Unique ID/KNET ID #15329352; 2020/04168/01 Applicant R Hartley C/- Weber Frankiw Surveyors Pty Ltd. Proposal Land division to create one (1) additional allotment – 1-into- 2. Subject Land 416 Muston Road, Pelican Lagoon; A105 D12638, CT5282/685. Zone/Policy Area Coastal Conservation Zone. Relevant Authority Kangaroo Island Council. Lodgement Date 29 May 2019. Council Kangaroo Island Council. Development Plan Consolidated 17 September 2015. Type of Development Non-complying. Public Notification Category 3. Representations Two (2). Referral Agencies Coast Protection Board; Native Vegetation Council; SA Power Networks; SA Water. Report Author Malcolm Govett, Planning Officer. RECOMMENDATION Concur.
EXECUTIVE SUMMARY
The Kangaroo Island Council has requested the concurrence of the State Planning Commission in regard to its decision to approve an application for a form of non-complying development. The proposed development is for the division of land so as to create one (1) additional allotment within the Coastal Conservation Zone at Muston Road, Pelican Lagoon.
The proposal is categorised as a form of non-complying development as it would create an additional allotment within the Coastal Conservation Zone.
The key planning concern with this application is that support for the land division could heighten the expectations of other landowners within the Zone with substantial and permanent tourist accommodation to undertake land division where the planning provisions seek to limit such development.
It is considered that the proposal for land division would not adversely or significantly impact the Desired Character of the locality and the Zone. This is because the physical impacts usually associated with land division, for example, the construction of vehicle access and building works, have already taken place. In addition, coastal processes do not significantly or adversely impact the subject the land.
It is recommended the Panel resolve to concur with the decision of the Kangaroo Island Council to grant Development Plan Consent for land division to create one (1) additional allotment within the Coastal Conservation Zone.
2 SCAP Agenda Item 2.2.1
23 April 2020
ASSESSMENT REPORT
1. BACKGROUND
1.1 State Planning Commission Delegation
In respect of section 35 (3)(b)(i) of the Development Act 1993, relating to the power to concur or not concur in the granting of consent to a development described as a non-complying development, the State Planning Commission has delegated its authority to concur or not concur in such matters. The power to not concur is delegated only where: • A State Agency has advised that the application should be refused. • The relevant Council has not requested to be heard.
It is noted the Kangaroo Island Council advises it wishes to be heard on the application.
It is also noted the Coast Protection Board recommends the application be refused.
It is considered appropriate, irrespective of a recommendation to concur or not concur, for this matter to be considered by the full State Commission Assessment Panel (SCAP) due to a previous decision by the (then) Development Assessment Commission in July 2017 on a similar proposal (DA 520/D012/16) for land division of the same allotment.
1.2 Status of Development
The proposal is categorised as a form of non-complying development under the Procedural Matters of the Coastal Conservation Zone in the Kangaroo Island Council Development Plan. In this regard, “Land division” is listed as a form of non-complying development within the Zone.
The trigger for non-complying lists exceptions relating to “Land division” within the Zone, which are: a) No additional allotments are created wholly or partly within the zone b) It results in allotments of greater than 2 hectares c) There is no increase in the number of allotments with frontage or direct access to the coast.
It is considered the proposal does not satisfy the above-mentioned exception (a), and is therefore a non-complying development.
On 16 December 2019, the Council Assessment Panel for the Kangaroo Island Council resolved to approve the land division application and to seek the concurrence of the State Planning Commission.
1.3 Previous Consideration by the State Commission Assessment Panel
On 6 July 2017, the former Development Assessment Commission considered a request by the Kangaroo Island Council for concurrence to a similar proposal for land division on the subject land.
The Development Assessment Commission declined to concur because it “is not satisfied that the proposal to further divide land within the Coastal Conservation Zone is sufficiently consistent with the intent of zone provisions that seek to limit such development”.
A copy of the agenda item to the Development Assessment Commission is contained in Attachment 8. 3 SCAP Agenda Item 2.2.1
23 April 2020
1.4 Development Authorisation for Tourist Accommodation
In September 2010, the Council Assessment Panel for the Kangaroo Island Council approved the tourism accommodation development (DA 520/064/10). At the time, the subject land was within the Coastal Zone and the application was categorised as a form of merit development in accordance with its Development Plan.
The Coast Protection Board recommended the application be refused. The Council assessed the development as being for tourist accommodation purposes, which would be ancillary or subordinate to the existing dwelling on the land.
Condition 10 of the Development Plan Consent restricted vehicular access for the tourist accommodation building to Muston Road and to the existing driveway that serviced the dwelling on the land. This condition was imposed in order to minimize the loss of native vegetation cover, which would occur if separate and independent vehicle access were to be constructed.
A full copy of the Decision Notification Form for the tourist accommodation development is contained in Attachment 9.
2. DESCRIPTION OF PROPOSAL
Application details are contained in Attachment 2.
2.1 The Development
The proposed development is for the division of a relatively large area allotment of about 37.4 hectares so as to create one additional allotment. The subject allotment currently contains a dwelling with ancillary outbuilding as well as a tourist accommodation building. The separation distance between the dwelling and the tourist accommodation building is about 400 metres.
The proposed development would seek to create: • New Allotment 20 of about 12.9ha, which would contain the dwelling and outbuilding. It would have a frontage of about 227 metres to Muston Road. • New Allotment 21 of about 24.5ha, which would contain the tourist accommodation building. It would have a frontage of about 700 metres to Muston Road.
Each proposed new allotment would have direct vehicle access to/from Muston Road over existing, separate, formed and unsealed driveways.
Each habitable building is serviced with on-site wastewater control systems, water and power.
2.2 Land Management Agreement
The applicant has submitted a draft land management agreement in support of the proposed development. It would ensure:
1. No fencing would be constructed or installed on allotment boundaries that do not front a public road or neighbouring properties;
2. No further land division of the newly created titles would occur (beyond potential boundary realignment); and 4 SCAP Agenda Item 2.2.1
23 April 2020
3. No additional, separate tourist accommodation would be constructed on the newly created allotments.
The Kangaroo Island Council supports the intent of the proposed land management agreement.
A full copy of the draft land management agreement is contained in Attachment 2.
2.3 Review of Case Law
The applicant has provided a legal opinion on the matter prepared by Mr Jamie Botten of Bottten Levinson Lawyers.
Mr Botten suggests it could be argued the proposal is not non-complying development and instead would be a ‘merit’ development.
This is due to the wording of the exceptions to the non-complying designation of "land division". It could be argued the criteria in clauses (a), (b) and (c) is disjunctive, that is, if one or more of the criteria is satisfied, the land division proposal in question is not non-complying development. As the land division proposal would satisfy the criteria in clauses (b) and (c), it means it would be a 'merit' development.
Mr Botten asserts it can be strongly argued the proposed land division will not create any unacceptable planning damage. The relevant factors, which will not be altered by the proposed land division, include: • A dwelling already exists on the land. • A tourist accommodation facility already exists on the land. • The dwelling and tourist accommodation are separately occupied. • Both buildings have existing means of vehicular and pedestrian access to the land. • Both buildings function independently of one another, including in respect to services such as water, waste, vehicular access and electricity. • The proposed development will not lead to the intensification of the existing uses and not create any additional infrastructure service demand. • No native vegetation will be removed to create access tracks into the land. • The land has no frontage to the coast or a coastal reserve. • Both buildings are not situated on a coastal dune system, tidal wetlands, mangroves, or other environmentally sensitive areas. • The proposed development would not result in the fragmentation of primary production land.
He contends the proposed land division would not create an undesirable precedent of general application. That is, a precedent that could be used in relation to any proposal to divide land which seeks to create additional allotments in the Coastal Conservation Zone.
The opinion cites various planning case law, which espouse the principle that each case must be considered on its own facts having regard to the relevant principles.
A full copy of the legal opinion is contained in Attachment 2.
2.4 Environmental Impact Assessment
The applicant has provided an environmental impact assessment of the proposed development prepared by Mr Robert Thomas, Adjunct Professor (University of Adelaide), Commercial and Environmental Advisor.
5 SCAP Agenda Item 2.2.1
23 April 2020
Mr Thomas makes the following observations about the subject land: • Since 1991, vegetation and fauna restoration programs have been undertaken over the property. • Native vegetation on the property is in good health and shows no signs of disease or degeneration. • The landscape change since 1991 represents an important shift from marginal agricultural land to an environment that is well on the way to its original status. • The increase in vegetation has enhanced the habitat through the provision of shelter. • The proposed development would not cause any significant environmental damage. • The introduction of a Land Management Agreement and Native Vegetation Heritage Agreement would ensure that no environmental damage (from human activities) could occur in the future.
Figure 1: Aerial Photo of the subject land (1996).
Source: Environmental Impact Assessment report by Robert Thomas.
A full copy of the Environmental Impact Assessment is contained in Attachment 2.
3. SITE AND LOCALITY
3.1 Site Description
The site consists of one (1) allotment, described as follows:
Lot No Section Street Suburb Hundred Title A105 D12638 - 416 Muston Road Pelican Lagoon Dudley CT5282/685
6 SCAP Agenda Item 2.2.1
23 April 2020
Figure 2: Proposed land division.
The land is about 37.4 hectares in area and currently contains a dwelling and separate tourist accommodation building, which have vehicle access via separate entrance points from Muston Road. Prior to its purchase in 1991, the land was used for sheep grazing. Currently, the land is well vegetated with low-lying coastal native flora.
Both building sites are elevated at about 30m above the high water mark and benefit from expansive views of Pelican Lagoon to the east and Prospect Hill to the south. Prospect Hill has a maximum elevation of about 90m above the high water mark.
The short-term tourism accommodation development on the land is known as “Kestrel Downs” and has been operating for about seven years.
3.2 Locality
Figure 3: The District.
7 SCAP Agenda Item 2.2.1
23 April 2020
Figure 4: The Locality.
The land is located approximately 5.4 kilometres south-west of the township of American River. It is located north-west of the intersection of Muston Road (unsealed) and Hog Bay Road (sealed), and west of the shores of Pelican Lagoon, and north of the Prospect Hill landmark.
Figure 5: The Subject Land – Viewed from Prospect Hill lookout.
Source: Kangaroo Island Council.
8 SCAP Agenda Item 2.2.1
23 April 2020
4. STATUTORY REFERRAL BODY COMMENTS
4.1 Coast Protection Board
The Coast Protection Board is a mandatory referral for regard in accordance with Item 1 under Schedule 8 of the Development Regulations 2008, because land within the Coastal Conservation Zone is defined as coastal land. The Kangaroo Island Council as the relevant authority must have regard to this advice.
The Coast Protection Board (CPB) recommends the application be refused as the proposed development would: • Not promote orderly development within a coastal area of conservation and scenic significance. • Facilitate additional development in a coastal environment considered to be of high scenic quality. • Create new and additional allotments within a coastal conservation area. • Increase the threat of degradation of vegetation cover through the increase in the number of allotments and associated land use pressures.
A full copy of the referral response is contained in Attachment 3.
4.2 Native Vegetation Council
The Kangaroo Island Council as the relevant authority should have regard to the advice of the Native Vegetation Council.
The Native Vegetation Council is not opposed to the proposed land division.
However, it suggests some minor adjustments to the proposed boundary to minimise the potential for native vegetation clearance for a new fence line under the Native Vegetation Regulations 2003.
A full copy of the referral response is contained in Attachment 3.
4.3 SA Power Networks
The Kangaroos Island Council as the relevant authority should have regard to the advice of SA Power Networks.
SA Power Networks provides the following comments on the proposal:
“No buildings permitted on registered easement A which provides tenure for our 33000 volt overhead powerline. Additionally building near power line clearances and statutory easement provisions apply for 19000 volt overhead powerline crossing through these allotments.”
4.4 SA Water
Pursuant to section 33 of the Development Act 1993, SA Water advises it has no requirements for land division because no water and sewer mains are available.
A full copy of the referral response is contained in Attachment 3.
9 SCAP Agenda Item 2.2.1
23 April 2020
5. COUNCIL COMMENTS
5.1 Kangaroo Island Council
The Council Assessment Panel has granted approval to the proposed land division and in accordance with Regulation 25 of the Development Regulations 2008, it now seeks the concurrence of the State Commission Assessment Panel.
Council considers that although the proposal is finely balanced, it warrants approval.
Council believes the proposal would maintain the status quo with respect to the established land uses and the natural surrounding environment. The proposed land division would not prejudice either existing use of the land nor jeopardise the coastal environment, sensitive landscapes, native vegetation cover or landforms.
It considers there is limited further prospect for additional development such as a dwelling or further accommodation to accompany what is established. This situation would be reinforced by the proposed land management agreement.
A full copy of the report to the Council Assessment Panel is contained in Attachment 4.
6. PUBLIC NOTIFICATION
Pursuant to section 38 (2) (c) of the Development Act 1993, the application is assigned as a Category 3 development for the purposes of public notification because it is not a Category 1 or a Category 2 development.
The Kangaroo Island Council received three (3) representations on the proposal during the public notification period. One of the representations was later withdrawn.
A copy of the representations and the applicant’s response are contained in Attachment 5 and Attachment 6 respectively.
7. POLICY OVERVIEW
The subject site is within the Coastal Conservation Zone as described within the Kangaroo Island Council Development Plan Consolidated 17 September 2015.
The relevant planning policies are contained in Attachment 7 and are summarised below.
7.1 Zone
The key objective (Objective 1) of the Coastal Conservation Zone is to enhance and conserve the natural features of the coast including visual amenity, landforms, fauna and flora. It is envisaged that low-intensity recreational uses will be located where environmental impacts on the coast will be minimal (Objective 2).
The desired character statement for the zone identifies Pelican Lagoon and Prospect Hill as having high conservation value and should be protected. The provision of facilities, including tourist accommodation and recreational facilities, may be established in the zone provided they are sited and designed in a manner that is subservient to the natural and coastal environment and adverse impact on natural features, landscapes, habitats and cultural assets is minimised.
10 SCAP Agenda Item 2.2.1
23 April 2020
The preference is that tourism development, including any associated access driveways and ancillary structures, be located on cleared areas or areas where environmental improvements can be achieved. Development should be located away from fragile coastal environments and significant habitat or breeding grounds.
In order to reinforce the Island’s scenic and landscape experiences, tourism development should maintain a strong visual impression of a sparsely developed or undeveloped coastline from public roads and land-based vantage points.
Upgrading of existing dwellings is encouraged in order to meet various criteria, including approved waste control and effluent disposal systems, the raising of living areas above the level of hazard risk for flooding and inundation or to reduce the level of hazard risk, and other environmental considerations.
Tourism accommodation and tourism facilities are forms of development envisaged in the zone (Principle of Development Control 1).
Development within the zone should minimise vehicle access points to development sites (Principle of Development Control 7). Generally, development should not prejudice the landscape quality and natural bushland of the zone (Principle of Development Control 11).
Land should not be divided except where no additional allotments are created wholly or partly within the zone (Principle of Development Control 13), or there is no increase in the number of allotments with direct access to the coast or a reserve, including by creation of land under rights of way or community titles.
The construction of a dwelling is a form of non-complying development throughout most parts of the zone. A non-complying categorisation is activated when an additional allotment is proposed, either wholly or partly in the zone, or when the realignment of a boundary seeks to create an allotment of less than 2 hectares, or increases the number of allotments with frontage or direct frontage to the coast.
Figure 6: Zoning Map.
11 SCAP Agenda Item 2.2.1
23 April 2020
7.2 Council Wide
The General Section (Council Wide) of the Kangaroo Island Council Development Plan contains broad policies relating to ‘Coastal Areas’ and ‘Tourism Development’, which are considered to be relevant to the proposed development.
Under ‘Coastal Areas’, land division should only occur if it will not adversely affect the management of the land and coastal landforms are maintained (Principles of Development Control 23 & 24).
Under ‘Tourism Development’, accommodation for tourists should be designed to minimise the potential for buildings to be converted into or used as a dwelling (Principle of Development Control 12). Within areas like the Coastal Conservation Zone, the tourist accommodation should provide basic shelter and limited internal space (e.g. cabin, eco-tent), or one or more of the functional areas typically found in a dwelling are absent (e.g. laundry, kitchen), or the structure is of a temporary or semi-permanent nature.
7.3 Policy Layer
The Mapping Section of the Kangaroo Island Council Development Plan identifies the subject land as being located within a high bushfire risk area.
Bushfire Protection Area Maps KI/10 and KI/22 are contained in Attachment 7.
The General Section (Council Wide) of the Kangaroo Island Council Development Plan contains broad policies relating to ‘Hazards’. They are not considered to be relevant to the proposed development because fire hazard risk mitigation measures would have been implemented when the existing tourist accommodation building was constructed.
8. PLANNING ASSESSMENT
The application has been assessed against the relevant provisions of the Kangaroo Island Council Development Plan, consolidated on 17 September 2015, which are contained in Attachment 7.
8.1 Policy Framework
When the former Development Assessment Commission considered a previous similar proposal for land division on the subject land, the key arguments raised against it encompassed the following themes: 1. A key objective of the Development Plan is to restrict further land division within the Coastal Conservation Zone. 2. Whilst the Plan seeks to encourage nature based tourism and accommodation and enables existing landowners to develop their land for this purpose, it does not envisage the separation of such uses onto their own allotments. 3. If approved, the proposal would heighten expectations for other landowners (that operate tourism accommodation developments), or where such developments are approved in the future, to seek the creation of a separate allotment in the zone.
It is acknowledged that the review and implementation of planning policies on Kangaroo Island through the consolidation in February 2014 of the Kangaroo Island Sustainable Futures Development Plan Amendment (Ministerial) has improved and clarified the policy framework relevant to matters of tourism accommodation development.
12 SCAP Agenda Item 2.2.1
23 April 2020
In this regard, it is considered that Principle of Development Control 12 for Tourism Development in the General Section of the Kangaroo Island Council Development Plan provides the most detailed guidance on the future form of tourism accommodation development within areas like the Coastal Conservation Zone. This principle recommends that tourist accommodation development should be designed in order to minimise the potential for buildings to be converted into or used as a dwelling. Essentially, tourism accommodation development primarily should be small scale and of a semi-permanent nature and provide basic shelter and limited internal space. It follows that where tourism accommodation development is more substantial it should be developed as an attachment to or extension of an existing dwelling.
It is clear that in the current situation on the subject land, the tourist accommodation development would be best described as substantial and permanent, and not an attachment to or extension of the existing dwelling. It is considered that this situation would be reflective of a number of historical decisions made prior to the Ministerial Development Plan Amendment of 2014.
In respect of the future provision of tourist accommodation throughout the zone, it is considered that the proper implementation of the planning policy outcomes recommended by Principle of Development Control 12 would mean that the current developed situation on the subject land would become a thing of the past.
8.2 Tourism Development
Irrespective of the current land use arrangements on the subject land, it is considered that the highest value and best use of the land is for tourist accommodation purposes. This is because of the following factors: 1. The conservation and scenic values of the locality at Pelican Lagoon. 2. The elevated locations of both development sites, which offer expansive views over Pelican Lagoon and towards Prospect Hill. 3. The relatively high quality habitat for native fauna on the land, which provides food, shelter and water. 4. The relative isolation of the subject land from shopping and health services.
With regard to the decision to grant planning consent to the tourist accommodation development on the subject land (DA 520/064/10), condition number 10, which required the shared use of the then existing and sole vehicle access driveway from Muston Road, does not appear to have been enforced by the Kangaroo Island Council. Nor did the proponent make application to the Council for a variation of the development authorisation. Given the Council’s support for the proposed land division, it is assumed it would have been favourably disposed to a change to the driveway access arrangements.
Notwithstanding the loss of coastal vegetation cover through the construction of a separate and independent vehicle access driveway to the approved tourist accommodation development, it is considered that such loss is easily outweighed by the significant rehabilitation of vegetation cover on the land over the past 30 years.
8.3 Coastal Development
The comments of the Coast Protection Board on this matter are noted but are not considered to be detrimental to the proposed land division. In this regard, the land would not be affected by coastal processes in the form of tidal inundation or the risk of erosion. Also, there would be minimal impacts in respect of landform stability and sand drift hazard.
While the proposal would result in the fragmentation of coastal land into additional allotments, it is considered that it would not significantly or adversely impact on the 13 SCAP Agenda Item 2.2.1
23 April 2020
conservation and scenic values of the locality and the zone. This is because the physical impacts usually associated with the creation of additional allotments have already been realised. In this regard, habitable buildings have already been constructed as have their associated vehicle access driveways and parking and manoeuvring areas.
Furthermore, it is considered the proposed land management agreement would seek to control and restrict any potential future activities, which would have the effect of removing coastal vegetation cover and/or creating pressure for the further fragmentation of allotments. This would include: 1. The construction of boundary fences, which would require the removal of vegetation cover and would hinder the movement of native fauna. 2. The construction of additional habitable buildings for tourism development. 3. The creation of any more additional allotments.
8.4 Native Vegetation
A concern with the realignment of property boundaries in some rural areas and sensitive coastal environments is the potential adverse impact on existing native vegetation cover through the need to construct boundary fences and to maintain a suitable cleared management zone on either side of the fence.
In practical terms, it is considered unlikely a boundary fence would be constructed between the two proposed allotments. This is because of the length of the fence that would be required, the terrain is not flat and rises to an elevation of 30m above high water mark, and a fence would potentially hinder the movement of native fauna across the subject land.
The applicant has responded to these issues with a draft land management agreement, essentially seeking to restrict the installation of new boundary fencing and any associated removal of native vegetation.
Overall, it should be acknowledged the significant success the applicant has achieved in rehabilitating the vegetation cover to its almost original and natural state over an area of more than 10 hectares, which is confirmed in the Environmental Impact Assessment report prepared by Adjunct Professor Robert Thomas.
9. CONCLUSION
The key Development Plan objective for the Coastal Conservation Zone is the enhancement and conservation of the natural features of the coast including visual amenity, landforms, fauna and flora.
On the basis of current planning case law requiring each proposal for development to be assessed on its own merits or facts having regard to the relevant planning principles, thereby removing the creation of an undesirable precedent as a consideration, it is considered the proposal for land division would not adversely or significantly impact the desired character of the locality and the zone. This is because the physical impacts usually associated with land division, for example, the construction of vehicle access and building works, have already taken place. In addition, coastal processes do not significantly or adversely impact the subject the land.
In support of the proposal, the applicant is prepared to enter into a land management agreement, to be registered over both of the proposed titles, which would restrict the construction of boundary fencing, further land division, and in turn restrict further tourist accommodation development.
14 SCAP Agenda Item 2.2.1
23 April 2020
It is considered the current policy framework over the Coastal Conservation Zone, introduced in 2014, provides clear and detailed guidance on the assessment of future proposals for tourist accommodation development. As a result, it is considered that while there may be a number of similar historical decisions throughout the zone, which reflect the current developed situation on the subject land, it is highly unlikely they will be repeated in the future. It is further considered that if the need arises, then each of these historical decisions would have to be assessed on their own merits or facts having regard to the relevant planning principles.
It is acknowledged that significant rehabilitation of the native vegetation cover has been undertaken over the subject land. It is considered that these works which have resulted in the enhancement and conservation of the natural features of the coast. In addition, these works have significantly improved the habitat for native fauna by providing an increase of food, shelter and water.
On balance, it is considered concurrence should be granted to the application.
10. RECOMMENDATION
It is recommended:
1) That the State Commission Assessment Panel CONCUR with the resolution by the Kangaroo Island Council Assessment Panel to grant Development Plan Consent to Development Application 520/D004/19 by R Hartley C/- Weber Frankiw Surveyors Pty Ltd for land division to create an additional allotment on A105 D12638, 416 Muston Road, Pelican Lagoon as presented.
Malcolm Govett PLANNING OFFICER PLANNING AND LAND USE SERVICES DIVISION DEPARTMENT OF PLANNING, TRANSPORT and INFRASTRUCTURE
15
address 43 Dauncey Street, Kingscote postal PO Box 121, Kingscote SA 5223 phone 08 8553 4500 | fax 08 8553 2885 email [email protected] abn 93 741 277 391
Our Ref: 520/D004/19
19 February 2020
State Commission Assessment Panel GPO Box 1815 ADELAIDE SA 5001
Email: [email protected]
Dear Sir/Madam
RE: Development Application 520/D004/19 - Land Division - 1 into 2 Lot 105 - 416 MUSTON ROAD PELICAN LAGOON 5222
Pursuant to Regulation 25 of the Development Regulations, 2008, the concurrence of the Commission is sought in regard to Council’s decision to approve the above application which is for a non-complying development.
Please find enclosed copies of the following information:-
1. Application form together with the accompanying information and plans submitted by the applicant.
2. Two Referrals were required or undertaken pursuant to the Eighth Schedule.
2 (two) Report(s) received from the Prescribed Agencies as a result of mandatory referral pursuant to the Eighth Schedule.
3. Notice given and written representations and responses received by the Relevant Authority under Section 38 of the Act as a consequence of public notification (unless determined as Cat 1 in accordance with Schedule 9).
4. Statement of Effect obtained from the applicant (unless not required by Reg 17(6).
5. A report prepared by Aaron Wilksch - Manager Development & Environmental Services, in accordance with Part 15 of the Development Regulations 2008..
6. Minutes of Council meeting dated 16 December 2019 resolving to approve the development and the conditions that are proposed to be attached to the approval.
Accordingly, the Commission is asked to concur with Council’s decision.
If you have any questions, please contact Council on 08 8553 4500 or alternatively email [email protected]
Yours faithfully
Lesley Saunders Development & Environmental Services
Product Register Search Date/Time 12/10/2016 12:43PM Customer Reference 2321-07 Order ID 20161012006170 Cost $27.75
The Registrar-General certifies that this Title Register Search displays the records maintained in the Register Book and other notations at the time of searching.
Registrar-General Certificate of Title - Volume 5282 Folio 685 Parent Title(s) CT 5219/959 Dealing(s) SC 7889345 Creating Title Title Issued 31/07/1995 Edition 2
Edition Issued 27/08/1998 Estate Type FEE SIMPLE Registered Proprietor ROGER EDWIN RAMSAY HARTLEY OF 11 AINSLIE ROAD NORTH FREMANTLE WA 6159 Description of Land ALLOTMENT 105 DEPOSITED PLAN 12638 IN THE AREA NAMED PELICAN LAGOON HUNDRED OF DUDLEY Easements SUBJECT TO EASEMENT(S) OVER THE LAND MARKED A TO THE ELECTRICITY TRUST OF SOUTH AUSTRALIA (T 2796586) Schedule of Dealings NIL Notations Dealings Affecting Title NIL Priority Notices NIL Notations on Plan
Land Services Page 1 of 3 Copyright Privacy Disclaimer: www.sailis.sa.gov.au/home/showCopyright www.sailis.sa.gov.au/home/showPrivacyStatement www.sailis.sa.gov.au/home/showDisclaimer Product Register Search Date/Time 12/10/2016 12:43PM Customer Reference 2321-07 Order ID 20161012006170 Cost $27.75
NIL Registrar-General's Notes NIL Administrative Interests NIL
Land Services Page 2 of 3 Copyright Privacy Disclaimer: www.sailis.sa.gov.au/home/showCopyright www.sailis.sa.gov.au/home/showPrivacyStatement www.sailis.sa.gov.au/home/showDisclaimer Product Register Search Date/Time 12/10/2016 12:43PM Customer Reference 2321-07 Order ID 20161012006170 Cost $27.75
Land Services Page 3 of 3 Copyright Privacy Disclaimer: www.sailis.sa.gov.au/home/showCopyright www.sailis.sa.gov.au/home/showPrivacyStatement www.sailis.sa.gov.au/home/showDisclaimer
Mr Roger Hartley 2016-0297 27 May 2019
LAND DIVISION COMBINED STATEMENT OF SUPPORT AND STATEMENT OF EFFECT
Lot 105, Muston Road, Muston
Combined Statement of Support and Statement of Effect
27 May 2019
Lead consultant URPS
Prepared for Mr Roger Hartley
Consultant Project Manager Marcus Rolfe, Managing Director Suite 12/154 Fullarton Road (cnr Alexandra Ave) Rose Park, SA 5067 Tel: (08) 8333 7999 Email: [email protected]
URPS Ref R001_v3_190527_Combined Statement of Support and Effect.docx
Document history and status
Revision Date Reviewed Approved Details V1 8.5.2019 SC MR V2 14.5.2019 SC & RH MR V3 27.5.2019 RH MR
© URPS All rights reserved; these materials are copyright. No part may be reproduced or copied in any way, form or by any means without prior permission.
This report has been prepared for URPS’ client. URPS and its associated consultants are not liable to any person or entity for any damage or loss that has occurred, or may occur, in relation to that person or entity taking or not taking action in respect of any representation, statement, opinion or advice referred to herein.
www.urps.com.au ABN 55 640 546 010
H:\Synergy\Projects\2016\2016-0297 Muston Road Kangaroo Island\Draft Reports\R001_v3_190527_Combined Statement of Support and Statement of Effect.docx
URPS Combined Statement of Support and Statement of Effect Contents
Contents
1.0 Executive Summary ...... 2
2.0 Introduction ...... 3 2.1 Summary of Application and Assessment Process ...... 3 2.2 Background ...... 4
3.0 Application overview ...... 5
4.0 Proposal ...... 6 4.1 Development application ...... 6 4.2 Land Management Agreement ...... 6
5.0 Subject land and locality ...... 7 5.1 Subject land ...... 7 5.2 Locality ...... 7
6.0 Development assessment ...... 10 6.1 Development Plan assessment ...... 10 6.1.1 Land use ...... 10 6.1.2 Impact on coastal land and native vegetation ...... 10 6.1.3 Land division generally and infrastructure ...... 12 6.1.4 Setbacks ...... 14 6.1.5 Hazards ...... 14 6.1.6 Relevant Case Law ...... 15
7.0 Social, Environmental and Economic Effects ...... 17
8.0 Conclusion ...... 18
Attachment 1 Case Law Advice Botten Levinson Lawyers
Attachment 2 Environmental Impact Assessment Report Assoc Professor Rob Thomas
www.urps.com.au i URPS Combined Statement of Support Executive Summary and Statement of Effect
1.0 Executive Summary
The subject site contains two primary buildings – a dwelling and separate tourist accommodation.
The proposed land division divides the existing 37 hectare site into two allotments – one containing the dwelling and one containing the tourist accommodation.
There are three clearly positive elements of this proposed land division that satisfy the intent of the Kangaroo Island Development Plan as follows:
1. Native vegetation is protected via the accompanying Land Management Agreement i.e. the LMA ensures that there will be no additional land division (beyond boundary realignment), nor fencing that would otherwise provide opportunity for clearance of native vegetation either side of such fencing as of right. This satisfies Objective 1 of the Coastal Conservation Zone which seeks to enhance and conserve the natural features of the coast including visual amenity, landforms, fauna and flora.
2. Survival of established and successful tourist accommodation which is an envisaged land use in the Desired Character statement and Principle of Development Control 1 of the Coastal Conservation Zone.
3. No additional, separated tourist accommodation that may otherwise compromise native vegetation/habitat is guaranteed via the accompanying LMA in order to preserve existing visual amenity, landforms, fauna and flora as sought by Objective 1 of the Coastal Conservation Zone as previously referred to. Tourist accommodation would otherwise be subject to the on-merit assessment process under the current Kangaroo Island Development Plan.
Botten Levinson Lawyers have advised of relevant case law (attached) which supports that consideration of harm, in planning terms, is an important part of the assessment process to ensure that the provisions of Development Plan are not interpreted as statute. There are no negative/unintended consequences/ planning harm that will result from the proposed land division; in particular:
1. This simply provides opportunity for the tourist accommodation to be sold independently to the dwelling to allow the applicants to continue living on the land and also the continued operation of the tourist accommodation which would otherwise have to close due to ill health.
2. Adjunct Professor Rob Thomas’s written environmental impact assessment concludes that the applicants have regenerated the natural environment on the subject site over many years and the proposed division will not cause any significant environmental damage - it is “simply a line on a map”. The LMA will also assist in ensuring that native vegetation on the site is preserved beyond the requirements of the Native Vegetation Act.
3. It is well-established in case law that there is no planning doctrine of precedent, so approval of this application does not establish a precedent for other applications on Kangaroo Island or elsewhere.
2 www.urps.com.au URPS Combined Statement of Support and Statement of Effect Introduction
2.0 Introduction 2.1 Summary of Application and Assessment Process
This combined Statement of Support and Statement of Effect accompanies the Development Application for a Torrens Title land division (1 allotment into 2) at Lot 105 Muston Road, Muston.
The subject land is located in the Coastal Conservation Zone of the Kangaroo Island Council Development Plan (consolidated 17 September 2015). The Costal Conservation Zone states that land division is non-complying, except where:
(a) no additional allotments are created wholly or partly within the zone (b) it results in allotments of greater than 2 hectares (c) there is no increase in the number of allotments with frontage or direct access to the coast.
On this basis, we understand that the Kangaroo Island Council processes this type of land division application as “non-complying”.
We are pleased to present this combined Statement of Support and Statement of Effect in accordance with Section 39(2)(d) of the Development Act 1993, and Regulation 17(1) and (5) of the Development Regulations 2008. This report includes: (a) a description of the nature of the development and the nature of its locality; and
(b) a statement as to the provisions of the Development Plan which are relevant to the assessment of the proposed development; and
(c) an assessment of the extent to which the proposed development complies with the provisions of the Development Plan; and
(d) an assessment of the expected social, economic and environmental effects of the development on its locality; and
(e) any other information specified by the relevant authority when it resolves to proceed with an assessment of the application (being information which the relevant authority reasonably requires in the circumstances of the particular case).
and may include such other information or material as the applicants think fit.
This report has been prepared following our review of the proposal plans prepared by Weber Frankiw Surveyors, mapping software and the Kangaroo Island Council Development Plan (consolidated 17 September 2015).
www.urps.com.au 3 URPS Combined Statement of Support Introduction and Statement of Effect
2.2 Background
Development Application 520/D012/16 for a similar land division was lodged in 2016. Kangaroo Island Council undertook and assessment of that application and resolved to grant approval subject to the concurrence of the then Development Assessment Commission.
The Development Assessment Commission resolved not to concur with Kangaroo Island Council because “…the proposal to further divide the land within the Coastal Conservation Zone is inconsistent with the intent of zone provisions that seek to limit such development”. This meant that Kangaroo Island Council was obliged to refuse the application.
The current development application is for the same land division but varies from this previous application in two main respects:
1. Is associated with an amended Land Management Agreement that seeks to prevent any additional, separated tourist accommodation on the land in addition to the previous provided controls on fencing and land division.
2. Additional written advice on environmental impact from Adjunct Professor Rob Thomas and a review of relevant case law from Botten Levinson Lawyers.
4 www.urps.com.au URPS Combined Statement of Support and Statement of Effect Application overview
3.0 Application overview
Land division – application overview
Applicants Mr Roger Hartley and Ms Sally Hartley
Property location Lot 105 Muston Road, Muston
Description of land Allotment 24 in Certificate of Title Volume 5893 Folio 507
Ownership Mr Roger Hartley
Site area 37 hectares
Council Kangaroo Island Council
Development Plan Kangaroo Island Council Development Plan (consolidated 17 September 2015)
Zone Coastal Conservation Zone
Policy Area N/A
Bushfire Protection Area High
Heritage N/A
Current land use Dwelling and tourist accommodation
Description of development Torrens Title land division (1 into 2)
Assessment Pathway Non-complying
Public notification Category 3
Relevant Authority Kangaroo Island Council with concurrence from the State Commission Assessment Panel
Referrals Coast Protection Board Development Assessment Commission SA Water Corporation Native Vegetation Council SA Power Networks
Related applications N/A
Plans and details • Plans and details prepared by Weber Frankiw accompanying application • Certificate of Title.
Contact person Marcus Rolfe and Simon Channon, URPS, 8333 7999
www.urps.com.au 5 URPS Combined Statement of Support Proposal and Statement of Effect
4.0 Proposal 4.1 Development application The proposed land division plans have been prepared by Weber Frankiw. The proposal comprises a Torrens Title land division of one allotment into two. The detail of the proposal is as follows:
• Proposed Allotment 20 is to comprise: > An irregular shaped allotment of 12.93 hectares, with a frontage to Muston Road of 227.2 metres and a depth of 320.7 metres and a rear boundary of 252.7 metres. > The existing dwelling and outbuilding will remain.
• Proposed Allotment 21 is to comprise: > An irregular shapes allotment of 24.5 hectares, with a frontage to Muston Road of 700.1 metres and a depth of 781.5 metres. > The existing tourist accommodation building will remain.
The two buildings are some 400m apart. Both buildings have existing independent vehicular access, on- site waste control systems, water and power. The proposed land division will not alter these arrangements.
4.2 Land Management Agreement
At the request of Council Officers, the applicants confirm that a Land Management Agreement (LMA) will be entered into with Council. The LMA will ensure:
1. No new internal fencing is constructed along the new boundary;
2. No further land division of the newly created titles will occur (beyond potential boundary realignment); and
3. No additional, separate tourist accommodation on the subject site.
As requested by Council, the applicants have prepared the draft LMA with this combined Statement of Support and Statement of Effect.
6 www.urps.com.au URPS Combined Statement of Support and Statement of Effect Subject land and locality
5.0 Subject land and locality 5.1 Subject land
The subject land comprises a single allotment described as Allotment 105 Muston Road, Muston in Certificate of Title Volume 5282 Folio 685. The land is irregular in shape and comprises an area of 37.4 hectares with a frontage to Muston Road in the order of 928 metres and a frontage to Hog Bay Road of approximately 782 metres.
Image 1: Aerial image of subject site (Source: Nearmap)
The land generally rises from Muston Road at a grade of approximately 1-in-8 on an east-west axis, until it levels off towards the middle of the allotment and begins to fall towards the western side boundary at a grade of approximately 1-in-10. The site is heavily vegetated with low lying coastal species.
The land currently contains a dwelling and separate tourist accommodation building. Both buildings benefit from expansive views of Pelican Lagoon to the east and Prospect Hill to the south. Each building functions independent of one another in respect to services such as water, waste, access and electricity. Access to each of the buildings is via separate entrance points from Muston Road, being an unsealed public road. The Muston Road reserve is heavily vegetated.
5.2 Locality
The land is located approximately 5.4 kilometres, as the crow flies, to the south-west of the Township of American River and approximately 6.0 kilometres to the south-west of Island Beach. The land is also located within 1 kilometre of Pennington Bay to the south.
Image 2 below shows the expansiveness of the site and views which are obtained.
www.urps.com.au 7 URPS Combined Statement of Support Subject land and locality and Statement of Effect
Image 2: Birds-eye view of the site looking south across one of the existing buildings.
Image 3: Birds-eye view of the site looking west across the other existing building.
8 www.urps.com.au URPS Combined Statement of Support and Statement of Effect Subject land and locality
The locality is characterised by large, rural/coastal allotments. Allotments sizes vary considerably, from an estimated 6.5 hectares to over 95 hectares. The variation in the allotment size can be attributed to the range of land uses of each allotment. These land uses include small scale tourist accommodation, coastal reserves, to larger holdings containing livestock and rural residential uses.
The locality exhibits scenic coastal qualities through vast open spaces with stands of roadside vegetation. When viewed from public roads, buildings and structures are generally sited unobtrusively, clustered together and screened by vegetation.
Tourist activity is evident throughout the locality with roadside signage directing motorists to accommodation and places of interest such as Prospect Hill and Pennington Bay.
www.urps.com.au 9 URPS Combined Statement of Support Development assessment and Statement of Effect
6.0 Development assessment 6.1 Development Plan assessment As noted previously, the subject land is located within the Coastal Conservation Zone with no Policy Areas applying.
We have considered the most relevant provisions of the Zone with respect to their intent, as well as the relevant General Section provisions.
The primary consideration in this matter is the potential impact on the Zone’s key objectives, which are to conserve the natural features of the coast.
In this assessment, we also address matters relating to the land division more generally including setbacks and bushfire protection.
6.1.1 Land use
The is no change proposed to the previously approved land uses (dwelling and tourist accommodation) on the subject site.
6.1.2 Impact on coastal land and native vegetation The following table summarises the provisions which are most relevant under this heading.
Zone / General Section Objectives Principles
Coastal Conservation Zone 1, 3 6, 7, 11, 13
Coastal Areas 1, 2, 5, 7 2, 3, 5, 8, 23, 24
Land Division 3 3
Natural Resources 1, 8, 10, 13 1, 27, 28
Zone PDC 13 anticipates that land division may occur when certain circumstances are met, stating: Coastal Conservation Zone PDC 13 Land should not be divided except where: (a) no additional allotments are created wholly or partly within the zone
(b) there is no increase in the number of allotments with direct access to the coast or a reserve including by creation of land under rights of way or community titles. (underlining added)
The proposal will create an additional allotment wholly within the Zone and therefore cannot meet PDC 13 (a). It is understood that this limitation placed on land division to protect the natural features within the Zone such as sand dunes, intact native vegetation and wetlands.
Land uses have already been established on the proposed allotments. The division of the land does not result in any material physical or visible development on the land and makes no changes to the natural
10 www.urps.com.au URPS Combined Statement of Support and Statement of Effect Development assessment features of the coast. In addition, as the subject land has no frontage to the coast, or a coastal reserve, the proposal satisfies PDC 13 (b).
More broadly, the Development Plan does contemplate land division in coastal and rural areas as per Coastal Areas general section PDC 23 which states: Coastal Areas – General Section PDC 23 Land in coastal areas should only be divided if: (a) it or the subsequent development and use of the land will not adversely affect the management of the land, adjoining land or the coast (b) sand dunes, wetlands and substantially intact strata of native vegetation are maintained or consolidated within single allotments. (underlining added)
Land uses are already established on the existing allotment. As a result of the allotment each land use will be contained on an individual title, i.e. the dwelling and tourist accommodation building will be on separate titles. The only resulting change from the land division will be potential for separate ownership.
Mapping obtained from LocationSA shows the location of intact native vegetation – see Image 3 below with the approximate line of division overlayed.
COASTAL SHRUBLAND
PROPOSED LINE OF DIVISION (APPROXIMATE)
Image 3: Aerial mapping showing location of native vegetation and the proposed line of division (source: LocationSA)
Generally, the line of division follows the line of existing intact native vegetation. Proposed allotment 20 will contain the majority of this native vegetation with a small section located on proposed allotment 21. Although the proposed line of division cuts through a small portion of the native vegetation, it follows the existing access tracks to each building. The result of this means that no native vegetation will be removed to create access tracks into the properties.
In addition, as an addendum to the Statement of Support, the applicants confirm that they will enter into an LMA with Council. The LMA seeks to prevent future land division on the newly created allotment and prevent the installation of fencing along the newly created internal allotment boundary. Part (ii) of the LMA means no owner of the land will be able to construct an internal boundary fence and therefore the exemption under Section 27(1)(b) of the Native Vegetation Act 1991 where up to 5 metres either side of a fence could be cleared will not be a potential risk resulting from approval of this application.
www.urps.com.au 11 URPS Combined Statement of Support Development assessment and Statement of Effect
The Applicants engaged Adjunct Professor Rob Thomas to prepare an environmental impact assessment in relation to the proposed application (copy provided with the application documentation – see Attachment 2). The key elements of this advice include: • Since the current owners purchased the site in 1991, they have undertaken significant native revegetation of much of the site that was previously used for grazing, changing the site from “marginal agricultural land to an environment that is well on the way to its original status”. • Native vegetation on the property is in good health and shows no signs of disease or degeneration and there has been active weed and erosion control. • The native vegetation on the site provides habitat for native fauna including wallabies, kangaroos, a range of birds, bats, possums, owls etc. There has also been an extensive and ongoing feral cat eradication program on the site. • The proposed Land Management Agreement will assist in ensuring that native vegetation on the site is preserved beyond the requirement of the Native Vegetation Act. • The proposed division would not cause any significant environmental damage - it is “simply a line on a map”.
Based on all of the above, the proposal satisfies Coastal Areas PDC 23 and more broadly Natural Resources PDC 1, 27, 28 and Land Division PDC 3.
6.1.3 Land division generally and infrastructure The following table summarises the provisions which are most relevant under this heading.
Zone / General Section Objectives Principles
Land Division 1, 4 1, 2, 4, 18, 19
Land Division General Section PDC 2 anticipates the circumstances where land division should not occur.
Table 1 below demonstrates the proposals performance with PDC 2.
Table 1 Land should not be divided if any of the Proposal following apply: The size, shape, location, slope or nature of The land use on each proposed allotment is established. the land makes any of the allotments The shape and size of the proposed allotments will allow unsuitable for the intended use the land use to continue. Any allotment will not have a frontage to an Both proposed allotments will have a frontage to Muston existing or proposed public road Road which is a public road. The intended use of the land would require The land use on each proposed allotment is established. excessive cut and/or fill This land use can continue without any earth works required. The intended use, or the establishment of that The land use on each proposed allotment is established. use, is likely to lead to undue erosion of the This land use can continue in the same manner it is subject land or land within the locality currently used. The land division in-of-itself is not expected to create undue erosion.
12 www.urps.com.au URPS Combined Statement of Support and Statement of Effect Development assessment
Land should not be divided if any of the Proposal following apply: The area is unsewered and the size, shape, Both the dwelling and the tourist accommodation slope and soil structure of a proposed building are connected to existing and independent waste allotment is not suitable to accommodate an water systems. appropriate waste disposal system within the confines of the allotment The intended use of the land would be Tourist accommodation is an envisaged form of land use contrary to the zone objectives in the Zone. This use will continue on proposed allotment 21. A dwelling is established on proposed allotment 20 and this use will continue. Any single allotments are created that sit All allotments will be located entirely within the Coastal within more than one zone Conservation Zone. Provision of services result in uneconomic No additional services are required to facilitate the land costs to the community division. The tourist accommodation and dwelling currently function entirely independent of one another with respect to services.
As shown in the table above, the proposed land division satisfies Land Division PDC 2 in that: • A land use is already established on each of the proposed allotments. The division will not create conditions which will affect the natural features of the land. • Proposed allotments will have access from Muston Road which is a public road. • The tourist accommodation and dwelling currently function entirely independent of one another with respect to services, including independent on-site waste treatment systems. Therefore, no additional demand is created or needed.
Land Division PDC 19 adds additional circumstances to PDC 2 in rural areas, stating: Land Division
PDC 19 Rural land should not be divided where new allotments would result in any of the following:
(a) fragmentation of productive primary production land
(b) strip development along roads or water mains
(c) uneconomic costs to the community for the provision of services
(d) prejudice against the proper and orderly development of townships
(e) removal of native vegetation for allotment boundaries, access roads, infrastructure, dwellings and other buildings or firebreaks. (underlining added)
The proposal satisfies PDC 19 as: • There will be no fragmentation of primary production land. • The development will create allotments with a frontage to Muston Road of over 230 metres and a depth of over 300 metres and therefore is not strip development. No water mains run along/through the subject land.
www.urps.com.au 13 URPS Combined Statement of Support Development assessment and Statement of Effect
• As described above, services already exist on the allotment. No additional services / infrastructure will be required. • Land uses have already been established on each allotment and therefore there will be no prejudice of township development. • As previously described, the land division will not result in removal of any native vegetation. 6.1.4 Setbacks The following table summarises the provisions which are most relevant under this heading.
Zone / General Section Objectives Principles
Tourism Development 11
The only setback which will change as a result of the land division will be the northern side setback of the tourist accommodation and the southern side setback of the dwelling.
Tourism Development general module PDC 11 (b) guides setbacks for tourist accommodation and states: Tourism Development – General Section
PDC 11 Buildings and structures to accommodate tourists and associated activities should:
(b) have a minimum setback of 100 metres from any of the following:
(i) public roads or be no closer to a public road than existing buildings on the subject land, whichever is the lesser
(ii) adjoining allotment boundaries
(iii) the high water mark
(iv) cliff faces (underlining added)
The tourist accommodation setback from the adjoining allotment boundary varies due to the proposed line of division. The minimum setback from the northern adjoining allotment boundary is 108 metres and therefore satisfies PDC 11 (b) (ii).
The proposed setback from the southern side of the dwelling will be in excess of 280 metres, at a minimum. The Development Plan contains no quantitative provisions for side setbacks of dwellings. The setback of 280 metres will not result in any new interface issues to the existing tourist accommodation.
6.1.5 Hazards The following table summarises the provisions which are most relevant under this heading.
Zone / General Section Objectives Principles
Hazards 1, 2, 3 1, 2, 6, 7, 13
The land is located in a high Bushfire Protection Area as shown on BPA Map KI/10. Hazards general module PDC 13 guides land division in bushfire protection areas and states: Hazards – General Section
14 www.urps.com.au URPS Combined Statement of Support and Statement of Effect Development assessment
PDC 13 Where land division does occur it should be designed to: (a) minimise the danger to residents, other occupants of buildings and firefighting personnel (b) minimise the extent of damage to buildings and other property during a bushfire (c) ensure each allotment contains a suitable building site that is located away from vegetation that would pose an unacceptable risk in the event of bushfire (d) ensure provision of a fire hazard separation zone isolating residential allotments from areas that pose an unacceptable bushfire risk by containing the allotments within a perimeter road or through other means that achieve an adequate separation. (underlining added)
The existing tourist accommodation and dwelling contain: • Existing individual access points to the tourist accommodation and dwelling from Muston Road, which is a public road. CFS vehicles are able to access the tourist accommodation and dwelling from separate points. The resulting land division will not alter this arrangement. • Firefighting vehicle turnaround points exist for independently for the dwelling and tourist accommodation. • Clearings have already been created around the dwelling and tourist accommodation to minimise a bushfire hazard.
The proposed allotments currently contain existing bushfire protection measures for the tourist accommodation and dwelling. The resulting land division will not alter these bushfire protection measures.
6.1.6 Relevant Case Law The Applicants engaged Botten Levison Lawyers to provide legal advice in relation to the proposed application in the context of the refusal of the earlier land division application relating to this site. A copy of that written legal advice is submitted with this application (see Attachment 1).
Section 3.5 of Botten Levinson’s written advice refers to an instructive case relating to a non-complying land division in Cherry Gardens. In that matter, the Supreme Court found that:
“Nobody has been able to suggest that any harm, in planning terms, would flow from the approval of the subdivision…there would be no intensification or greater density of urban-type development in a rural area… (and to refuse such an application) is an error in principle to give such literal effect to that principle in the circumstances of this case”.
We consider this finding of the Supreme Court to be directly analogous to the current Development Application given that there will be no planning “damage” caused by approval of the proposed development.
Section 3.6 of Botten Levinson’s written advice also emphasises that any concerns regarding precedent set by approval of an application is unjustified. Botten Levinson quote relevant Supreme Court judgements which indicate that:
www.urps.com.au 15 URPS Combined Statement of Support Development assessment and Statement of Effect
“…each case must be considered on its own facts having regard to the relevant principles. It is simply not correct to assert… that to grant consent in this case is “the thin edge of the wedge.”
And
“Although there might be some political pressure brought to bear on a planning authority to grant a similar application in some other location as a result of its having approved an earlier application, there is no planning doctrine of precedent as such, namely that because one development has been approved so should another…each case must be considered on its own merits by weighing the benefits and detriments of the application by reference to the Development Plan.”
16 www.urps.com.au URPS Combined Statement of Support and Statement of Effect Social, Environmental and Economic Effects
7.0 Social, Environmental and Economic Effects
The proposed development is considered to have neutral social, environmental and economic impacts, as:
• Land uses on the allotments are already established.
• It will have no impact on adjoining primary production land uses or coastal land.
• It will not involve the removal of native vegetation within the subject land which is also confirmed via a separate LMA which will be registered on the newly created titles.
• No new infrastructure or services are required. Each allotment / land use already has independent access, water storage and waste control systems.
• It will appropriately minimise risks to life and property as the dwelling and tourist accommodation already have existing turn around areas for CFS vehicles and water storage.
www.urps.com.au 17 URPS Combined Statement of Support Conclusion and Statement of Effect
8.0 Conclusion The proposal is for a land division (1 into 2). This will not add to the existing uses of the land and will simply facilitate separate ownership of each use.
The applicants have confirmed, as an addendum to the Statement of Support, that they will enter into a Land Management Agreement (LMA) with Council which will prevent any future land division of the newly created allotments (beyond boundary realignment), and prevent the construction of internal boundary fencing. The prevention of internal boundary fencing aims to ensure that no native vegetation is removed, within 5 metres of a fence. Such removal would have ordinarily been exempt from requiring Native Vegetation Clearance approval. This approach in the proposed LMA satisfies Objective 1 of the Coastal Conservation Zone which seeks to enhance and conserve the natural features of the coast including visual amenity, landforms, fauna and flora.
The application will provide for the survival of the established and successful tourist accommodation which is an envisaged land use in the Desired Character statement and Principle of Development Control 1 of the Coastal Conservation Zone.
No additional, separate tourist accommodation that might otherwise compromise native flora and fauna on the land is guaranteed via the accompanying Land Management Agreement in order to preserve existing visual amenity, landforms, fauna and flora as sought by Objective 1 of the Coastal Conservation Zone.
No further/future land division (other than potential future boundary realignment) is guaranteed via the accompanying Land Management Agreement which prevents future development potential and gives additional support to the existing non-complying designation of land division that creates new allotments.
It is also well-established that there is no planning doctrine of precedent, so approval of this application does not establish a precedent for other applications on Kangaroo Island or elsewhere.
For all of the reasons outlined herein, we are of the opinion the proposed development sufficiently accords with the Kangaroo Island Council Development Plan and warrants Development Approval.
Please feel free to contact Marcus Rolfe or Simon Channon on 8333 7999 if you have any questions.
18 www.urps.com.au
LAND MANAGEMENT AGREEMENT
BY DEED
KANGAROO ISLAND COUNCIL
MR ROGER HARTLEY
DATE
TO BE INSERTED
PARITES
KANGAROO ISLAND COUNCIL of 43 Dauncey Street, Kingscote, South Australia, 5223 (Council)
MR ROGER EDWIN RAMSAY HARTLEY of 15 Grandview Avenue, Urrbrae, South Australia, 5064 (Owner)
BACKGROUND
A. The Owner is the proprietor of an estate in fee simple in the Land.
B. By Development Application numbered 520/D012/16 the Owner sought from the Council development plan consent, land division consent and development approval pursuant to the Act to develop the Land by creating one (1) additional allotment.
C. The Land is located within the Coastal Conservation Zone within Council’s Development Plan consolidated 17 September 2015.
D. The Council wishes to ensure that the land division will not result in the installation of a new boundary fencing and any associated removal of native vegetation.
E. The Council wishes to ensure newly created allotments will not be divided in the future.
F. The Council and Owner and agree that the obligations under this deed are intended to be complied with by all occupiers and persons having the enjoyment from time to time of the Land and that it is the Owner’s responsibility to ensure that all such persons comply with the terms of this deed.
G. Pursuant to section 52(2) of the Act the Owner has agreed with the Council to enter into this deed relating to the development, management, preservation or conservation of the Land.
AGREED TERMS
1. Definitions and interpretation
1.1. Definitions
In this deed:
Act means the Development Act 1993 (SA).
Allotment means an allotment proposed to be created on the Land and as depicted in the Plan of Division described as allotments 20 and 21.
Land Management Agreement by Deed Page 2 of 5
Development Application means development application number 520/D012/16 being a development application pursuant to the Act to development the Land by creating one (1) additional allotment.
Land means the whole of the land comprised in Certificate of Title Volume 5282 Folio 685.
Plan of Division means the plan of division forming part of the Development Application which is described in Appendix 1.
1.2. Legalisation
The requirements of this deed are to be construed as additional to the requirements of the Act and any other legislation affecting the land.
2. OWNER’S OBLIGATIONS
No future land division
2.1. The Owner agrees that no future land division will occur on the newly created Allotments.
No internal boundary fencing
2.2. The Owner agrees that no fencing will be constructed or installed on Allotment boundaries that do not front a public road or neighbouring properties.
No additional tourist accommodation
2.3 The Owner agrees that no additional tourist accommodation will occur on the newly created Allotments.
3. ALTERATIONS TO THE AGREEMENT
3.1. Alterations to this Land Management Agreement may be made upon consent from both parties.
APPENDICES 1 – Plan of division
Land Management Agreement by Deed Page 3 of 5
Signed:
______
Name:
______
Chief Executive Officer, Kangaroo Island Council Witness
Date:
______
Signed:
______
Name:
______
Mayor, Kangaroo Island Council Witness
Date:
______
Signed:
______
Name:
______
Mr Roger Hartley Witness
Date:
______
EXECUTED as a deed
Land Management Agreement by Deed Page 4 of 5
APPENDIX 1 – PLAN OF DIVISION
Land Management Agreement by Deed Page 5 of 5
Our ref: JRB/219013
1 February 2019
Mr Roger Hartley 15 Grandview Ave URRBRAE SA 5064
By email: [email protected]
Dear Roger
Advice - Land division - Lot 105, Muston Road, Muston, Kangaroo Island
I refer to our recent communications regarding your proposal to divide the abovementioned land from one allotment into two allotments.
1. Advice sought
You have sought my advice on whether there are any principles that have been established by the Courts that are particularly relevant in the assessment of the planning merits of your proposal to divide the abovementioned land.
2. Background
The subject land, which comprises one allotment that is 37.4 hectares in area, is the whole of the land in CT 5282/685. It is land otherwise described as Lot 105 Muston Road, Muston on Kangaroo Island (the land).
You purchased the land in 1991, and remain the owner of the land today.
At the time of your purchase there was an existing dwelling situated on the land. That dwelling was (and remains) located in the northern third of the land. The balance of land, which was pasture at the time of purchase, has been completely revegetated by you, with native vegetation indigenous to the area.
In 2011 you obtained development approval from the Kangaroo Island Council (the Council) to erect, and use on the land, a building for tourist accommodation purposes (the tourist accommodation building).
The tourist accommodation building, which is in the southern two thirds of the land, was erected in 2012.
The land is currently used for dwelling and tourist accommodation purposes, i.e., the land comprises, in effect, two sites: a site for the dwelling; and a site for the tourist accommodation building.
jrb:p219013_004.docx - 2 -
The balance of the land remains unused and vegetated. Indeed you have, since purchasing the land, revegetated the entire area with native vegetation.
In October 2016 you applied to the Council for development approval to divide the land into two allotments. The form of the division was essentially in the manner depicted on the attached plan of division.
The division (DA 520/D012/16), in effect, sought approval to create an allotment each for the tourist accommodation building and the dwelling.
The relevant Development Plan at the time of DA 520/D012/16 was the Kangaroo Island Development Plan consolidated on 17 September 2015. That Development Plan placed the land in the Coastal Conservation Zone, and designated "land division" (other than in certain circumstances) to be a "non-complying" kind of development.
DA 520/D012/16 was processed as a "non-complying" kind of development.
The Council resolved to grant development plan consent (and development approval) subject to the concurrence of the then Development Assessment Commission (DAC). However, in July 2017 the DAC resolved that it did not concur with the decision of the Council to grant development plan consent for the division proposed in DA 520/D012/16. In reaching that decision the DAC resolved that "… the proposal to further divide the land within the Coastal Conservation Zone is inconsistent with the intent of the zone provisions that seek to limit such development."
Because DAC having decided not to concur with the decision of the Council to grant development plan consent, the Council was, by virtue of the provisions of the Development Act 1993, obliged to refuse development plan consent (and thus development approval) to DA 520/D012/16. It did so in July 2017.
The current and relevant consolidation of the Kangaroo Island Development Plan remains the version consolidated on 17 September 2015 (the Development Plan). Therefore, the land remains in the Coastal Conservation Zone, and the division of land (except in certain circumstances) is a "non-complying" kind of development.
The "non-complying" development designation of "land division" in the Coastal Conservation Zone reads as follows:
Land division Except where:
(a) No additional allotments are created wholly or partly within the zone
(b) It results in allotments of greater than 2 hectares
(c) There is no increase in the number of allotments with frontage or direct access to the coast.
jrb:p219013_005.docx - 3 -
Given the above wording of the exceptions to the non-complying designation of "land division" it can be argued that the criteria in clauses (a), (b) and (c) is disjunctive, i.e., if one or more of the criteria is satisfied, the land division proposal in question is not non-complying development. If that is the correct interpretation, it is to be noted that you land division proposal satisfies the criteria in clauses (b) and (c), which means that your proposal would be a 'merit' development.
Although you are reserving your rights to argue (for the reason set out in sub-paragraph 2.15 of this letter) that your proposed land division is a "merit" development, you have, for the purposes of this advice, asked me to proceed on the assumption that the proposal is a "non-complying" kind of development.
Relevantly, the Objectives for the Coastal Conservation Zone provide:
• for the enhancement and conservation of the natural features of the coast including visual amenity, landforms, fauna and flora;
• for low intensity recreational uses;
• for development that contributes to the desired character of the zone.
The Desired Character provisions of the zone provide, amongst other things, that:
• the zone defines the coastal areas of high landscape or conservation value;
• however, the coastal environment plays an important role in the Island's economy and the tourist attraction provided by the coastal environment is expected to see growth in visitor numbers;
• the provision of facilities, including tourist accommodation, may be established in the zone provided they are sited and designed in a manner that minimises their impact;
• development should be located away from fragile coastal environments and significant habitat or breeding grounds;
• upgrading of existing dwellings is encouraged in order to meet various criteria, including approved waste control and effluent disposal systems.
• development should not be undertaken on coastal dune systems, tidal wetlands, mangroves, sand dunes or other environmental sensitive areas.
• the desired character of the zone does not seek to encroach on the existing use rights of farmers.
jrb:p219013_005.docx - 4 -
Zone PDC 13 deals with land division and provides that land should not be divided except where:
(a) no additional allotments are created wholly or partly within the zone
(b) there is no increase in the number of allotments with direct access to the coast or a reserve including by creation of land under rights of way or community titles.
Relevantly, note also from the Coastal Areas provisions of the General Section of the Development Plan, PDCs 23 and 24. They provide as follows:
23 Land in coastal areas should only be divided if:
(a) it or the subsequent development and use of the land will not adversely affect the management of the land, adjoining land or the coast.
(b) sand dunes, wetlands and substantially intact strata of native vegetation are maintained or consolidated within single allotments.
24 Land division in coastal areas outside of designated urban or settlement zones should not increase either of the following:
(a) the number of allotments abutting the coast or a reserve
(b) the number of allotments, including community title allotments and those that incorporate rights of way, with direct access to the coast or a reserve.
As noted above, you have decided to make a fresh application to the relevant planning authority for development approval to divide the land into two allotments. The proposed division essentially reflects the attached plan of division.
3. My advice
General
There are a number of decisions of the courts that are, in my view, particularly relevant in the assessment of the planning merits of your land division proposal. Some of the decisions are of general application, and others are more specific to your proposal. All of the decisions, however, I consider to be relevant.
I will discuss below those decisions and then outline why I consider those decisions are relevant to your proposal.
jrb:p219013_005.docx - 5 -
Relevant principles
I consider the following principles, established in various decisions of the courts cited below, to be relevant:
3.2.1 Whilst all development proposals that require development plan consent must be assessed against all of the relevant provisions of the Development Plan, the Courts have made it clear that the Development Plan is ultimately a document in the nature of guidelines rather than being a mandatory legal statute. As the Full Court of the South Australian Supreme Court (per Debelle J.) said in the matter of Telstra Corporation Ltd v City of Mitcham:1
The Court has repeatedly stated that the provisions of the Development plan are not to be construed like a statute: see, for example, St Ann’s College v Corporation of the City of Adelaide [1999] SASC 479. A development plan is a planning document couched in the language of planning objectives and principles rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates… (my emphasis)
3.2.2 A planning authority, when assessing the merits of a proposal against the relevant provisions of the Development Plan, cannot ignore the historical and factual context in which the development is proposed to occur. As the then Chief Justice (King CJ) of the Full Court of the South Australian Supreme Court said in the matter of Courtney Hill Pty Ltd v South Australian Planning Commission and Ors:
“The argument in its extreme form, was that the degree of variance from the Plan had to be determined by comparing the Plan itself with the proposal, ignoring the historical and factual context in which the development is proposed to occur. I cannot accept that argument. It seems to me that the extent of the variance from the Plan involved in the project must be judged in the context in which the project will be implemented. That context must include the fact that the existing shopping complex is a protected existing use and will continue. …
The Planning Authority cannot be precluded, as it seems to me, from assessing the reality of the extent of the variance from the Plan and that reality can only be assessed if the proposal is seen for what it really is, namely an extension of an already existing facility. I can see no foundation for Mr Hayes’ argument that the Authority, and consequently the Court, is precluded as a matter of law from looking at that reality”.2 (my emphasis)
1 (2001) 79 SASR 509 2 (1990) 59 SASR 259 jrb:p219013_005.docx - 6 -
3.2.3 In the City of Mitcham v Freckman the Full Court of the South Australian Supreme Court (per Debelle) characterised the planning and development legislation as a “… practical code calling for practical application”3, and then added that after the planning authority has weighed the “pros” and “cons” of the proposed development, it is the task of the planning authority to make a judgment as to whether the proposal warrants approval. Debelle J stated that:
“It will be a question of fact and degree in every case, after weighing all relevant considerations, whether the proposed development should be approved”. (my emphasis)
3.2.4 In the matter of the City of Unley v Hall & Ors4 Justice Besanko of the Supreme Court said:
The decision in City of Mitcham v Freckman and Ors does not suggest that a conclusion that the proposed development is not consistent with the overall intent, purpose and desired character of the zone is necessarily decisive of the matter. There may be a number of other relevant factors. (my emphasis)
3.2.5 In Lakshmanan v City of Norwood Payneham & St Peters5 the Full Court of the Supreme Court per Kourakis J (as he then was) said:
“Even though Development Plans are generally comprehensive, they cannot be expected to expressly deal with all possible circumstances. There may be reasons arising from sound planning policy considerations or the general principle that development should not needlessly be curtailed which speak for or against approval but which are not expressly dealt with by the terms of a Development Plan. (my emphasis)
3.2.6 Relevantly, in Lakshmanan case Kourakis J also added that:
“… the assessment of the planning merits of the development is assessed “by reference to the Plan” and not by a mechanical application of its express provisions. It cannot be expected that the express provisions will speak directly to every conceivable development ...."
“… planning authorities do not apply the objectives and principles of Development Plans in a vacuum. First, as I earlier observed, there will often be tension between those objectives and principles. Most of the objectives and principles, as a matter of construction, apply as general rules and not as inviolable prescriptions; they are guidelines within which an expert planning judgment must be made.
3 (1999) 74 SASR 56 4 [2002] SASC 337 5 (2010) SASCFC 15 jrb:p219013_005.docx - 7 -
Most obviously, the particular factual circumstances of a proposed development will inform that planning judgment and, in particular, affect which of the principles and objectives will predominate”.
(my emphasis)
How are those principles relevant?
It is acknowledged that, prima facie, the proposed land division is at odds with the intent of the Coast Conservation Zone provisions.
However, as outlined in sub-paragraph 3.2.7 of this letter, the Full Court of the South Australian Supreme Court has determined, that a relevant planning authority assessing a proposed development against the Development Plan should not do so in a "vacuum".6 Put differently, a proposed development, when being assessed against the Development Plan should not be assessed in the "abstract".7 Rather, (and as also noted above) the proposed development, when being assessed against the relevant Development Plan must be judged in the historical and factual context in which the development is proposed to occur.
That the relevant planning authority cannot be precluded from assessing the reality of the extent of any variance from the Development Plan8 (i.e., the relevant authority in the historical and factual context in which the development is proposed to occur) is, no doubt, why Justice Debelle in the abovementioned decision of City of Mitcham v Freckmann characterised the town planning legislation as a "… practical code calling for practical application".9
It is also relevant to note PDC 2 of the Coastal Conservation Zone provisions. That PDC provides that development proposals designated as "non-complying" development are "… generally inappropriate and not acceptable unless (they) can be demonstrated (to) not undermine the objectives and principles of the Development Plan". In other words PDC 2 for the Zone recognises that the relevant authority should, where relevant, take into account the particular circumstances that may make a proposal that would be otherwise be inappropriate, appropriate. Thus, it may be that although a particular proposal when measured against the Development Plan in the abstract (or in a vacuum) is inappropriate, when it is considered in historical and factual context it will be found to be appropriate.
Will the proposed land division cause any planning "damage"?
A critical question in the case of your proposed development, is whether the proposal will, in a practical sense, undermine the objectives and principles of the Development Plan, i.e., will it interfere with the achievement of the planning thrust of the Zone? Put differently, will the proposed development cause any planning "damage".10
6 Lakshmanan op. cit 7 Holds & Ors v City of Port Adelaide Enfield & Ors (2011) SASC 226 8 Courtney Hill op.cit 9 City of Mitcham Freckmann op.cit 10 Wade v South Australian Planning Commission (1985) 59 LGRA 290 jrb:p219013_005.docx - 8 -
I have in sub-paragraph's 2.17 and 2.18 of this letter summarised what I consider to be the broad policy intent of the Zone and associated provisions of the Development Plan. In my view, it can be strongly argued that the proposed division will not undermine objectives and principles of the Development Plan i.e., that it will not create any unacceptable planning damage.
Relevantly, factors include:
• a dwelling already exists on the land and the proposal will not alter that fact;
• a tourist accommodation facility already exists on the land and the proposed division will not alter that fact; • the dwelling and the tourist accommodation are separately occupied and the proposed division will not alter that position;
• both the dwelling on the tourist accommodation have existing means of vehicular and pedestrian access to the land and the proposed division will not alter that fact.
• the dwelling and the tourist accommodation facility function independent of one another, including in respect to services such as water, waste, vehicular access and electricity.
• the proposed development will not lead to any intensification of the existing use and thus no additional infrastructural service demand will be created by the proposed development
• generally the proposed line of division follows the line of existing, intact and original native vegetation. The proposed line of division follows the existing access track to the dwelling and the tourist accommodation facility, meaning that no native vegetation will be removed to create access tracks into the land.
• the land has no frontage to the coast, or a coastal reserve.
• the existing dwelling and tourist accommodation is not on a coastal dune system, tidal wetlands, mangroves, or other environmentally sensitive areas.
• the land is not used for primary production purposes so the proposed division involves no fragmentation of primary production land.
An instructive case - Wade v South Australian Planning Commission
The facts in the decision of the South Australian Supreme Court in the matter11 of Wade v South Australian Planning Commission are broadly similar to the facts in this matter. It is, thus an instructive case insofar as your proposal is concerned.
The Wade case involved a land division proposal. Mr and Mrs Wade were the owners of a parcel of land, of some 5 hectares in Cherry Gardens. On the subject land were two dwellings. Both were habitable.
11 Wade v South Australian Planning Commission op cit jrb:p219013_005.docx - 9 -
The proposal was to divide the land into two allotments such that each dwelling had its own title. It was proposed that the older of the two houses would be on an allotment of approximately 0.41 hectares in area. The relevant Development Plan contained a provision (PDC 61) which stated that rural land should not be divided into allotments of less than 40 hectares. The proposal was, on its face, at odds with the policy intent of the relevant Development Plan.
The local planning authority refused to approve the proposed division. Mr and Mrs Wade appealed that decision to the former Planning Appeal Tribunal. That Tribunal dismissed the appeal and upheld the grant of refusal. From that decision Mr and Mrs Wade appealed to the Supreme Court. The appeal in the Supreme Court was heard before His Honour Justice Jacobs. He, after considering all matters, allowed the appeal and overturned the refusal of planning approval and in its place granted consent to the proposed division. In reaching that decision, in his judgment Justice Jacobs found (amongst other things) as follows:
• "Nobody has been able to suggest that any harm, in planning terms, would flow from approval of the subdivision. The whole of the subject land would continue to be used, as heretofore, for rural living; the two houses would, as heretofore, be in separate occupation; there would be no intensification or greater density of urban - type development in a rural area; the only difference is that the "old" house and its curtilage would be in different ownership from the new house and its much larger curtilage".
• it is an inescapable conclusion - - that to grant approval to this subdivision would not involve any further encroachment of urban development into rural areas; it would not impair the rural character, scenic amenity and bushland of the ranges; neither would it alienate land from primary production, for the subject land as a whole is for the most part is steep scrub ill-suited for any significant rural production".
• The tribunal, however, came to the conclusion that to approve this subdivision did violate planning principles, and in particular principle 61. In my judgment, and for the reasons stated earlier when discussing the role of the principle, it is an error in principle to give such literal effect to that principle in the circumstances of this case. (my emphasis)
In your matter (as was the position in the Wade case) the only change that approval of your proposed division will effect is the creation of two allotments where there is presently one allotment, and the potential therefore for separate ownership of those two allotments. That change, of course, does not cause any physical change to the status quo, or planning "damage".
jrb:p219013_005.docx - 10 -
Will the proposed division, if approved, amount to an undesirable precedent?
It is sometimes contended that a relevant planning authority should not approve a development proposal (e.g., a proposal to divide land which creates an additional allotment or more in the Coastal Conservation Zone) because to do so will create a precedent that could place future planning authorities in a difficult position when confronted with similar applications.
In my view, the proposed division will not create an undesirable precedent of general application i.e., a precedent that could be used in relation to any proposal to divide land which seeks to create additional allotments in the Coastal Conservation Zone.
The planning merits of the proposed land division turns very much on facts peculiar to the land (which facts are unlikely to be common-place within the Coastal Conservation Zone). This particular issue (i.e., contentions about the creation of an undesirable planning precedent) was also considered by Justice Jacobs in the Wade case. He, in the circumstances of that case, dismissed that contention. He determined as follows:
"That is not to say, of course, that any allotment of less than 40 hectares can be further subdivided. As past cases before the tribunal and before this court show, each case must be considered on its own facts having regard to the relevant principles. It is simply not correct to assert, as Counsel for the respondent asserted, that to grant consent in this case is "the thin edge of the wedge". (my emphasis)
I also draw your attention to another Supreme Court case where Justice Bleby of that Court dealt with a contention on the part of the local council that the proposal in that matter should be refused because it would set an undesirable precedent. The case is the matter of City of Charles Sturt v Hatch.12 Justice Bleby said of the argument that:
"in my opinion it Is not relevant that if approval were given for a particular development as a first intrusion, another similar development might, for that reason, be allowed in the same or a similar zone. Any similar proposal at some other location will have to be judged against the provisions of the development plan as applicable to the particular site in question. It would be contrary to the requirements of the development plan as applicable to the particular site in question. It would be contrary to the requirements of the development plan to approve it because of an earlier approval for a similar activity at a difference location. Although there might be some political pressure brought to bear on a planning authority to grant a similar application in some other location as a result of its having approved an earlier application, there is no planning doctrine of precedent as such, namely that because one development as been approved so should another… As has been made clear repeatedly in such cases as City of Mitcham v Freckman (supra) each case must be considered on its own merits by weighing the benefits and detriments of the application by reference to the Development Plan. A judgment must then be made as to whether to grant or refuse development consent."
(my emphasis)
12 (1999) SASC 523 jrb:p219013_005.docx - 11 -
I trust that my advice is of assistance..
Yours faithfully
Jamie Botten BOTTEN LEVINSON Mob: 0419 816 598 Email: [email protected]
Enc
jrb:p219013_005.docx Environmental impact advice related to proposed land division – Lot 105, Muston Road, Kangaroo Island
To Whom it May Concern
I understand that Mr Hartley is seeking planning approval to subdivide Lot 105, Muston Road, Kangaroo Island into two allotments. In preparing his proposal Mr Hartley had received advice from lawyers Botten Levinson Pty Ltd on planning case law that related to this matter and was now seeking environmental advice.
I have 40 years of experience in environmental science, as a regulator, consultant, resource manager, research manager and strategic advisor. I have attached a brief CV to this effect (Attachment 1). I am therefore qualified to make an environmental impact assessment of Mr Hartley’s proposal.
Mr Hartley provided me with a copy of the case law advice for my information. The crux of this advice is that the proposed land “division will not undermine the objectives and principles of the Development Plan i.e., that it will not create any unacceptable planning damage”. This position relies on the proviso that the division will cause neither environmental damage nor result in an increase in density of development along the coast.
The proposed land division will not result in an increase in the density of development and therefore my purpose was to assess the potential environment impact of this proposal. On the 5 April 2019, I visited the property and made the following observations.
Landscape changes In making this assessment, I viewed aerial photography of the property from 1996 to 2018.
1 I understand the property was purchased in 1991 at which time two thirds was under pasture and used for grazing with sheep. Approximately a third had not been developed to pasture due to its stoniness, although some of this area had been rolled, removing the Eucalypts.
On purchase, sheep were removed from the pastured area and Mr Hartley commenced an extensive program of revegetation using direct seeding of indigenous species. This included the dominant eucalypts and shrubs found in the vegetative association characteristic of this coastal environment.
Figure 1 (below) shows the result after five years of the direct seeding in 1991 along the western and southern boundaries of, and scattered across, the pasture area of the property (air photo, 1996).
2 The current status of the revegetation is captured in an aerial photo taken in August 2018 (Figure 2 below). From this photo, it can be seen that the plantings established in 1991 have expanded naturally and have been supplemented by ongoing, yearly infilling with local native species. The previously pastured area is now all but covered with indigenous native species.
This landscape change represents an important shift from marginal agricultural land to an environment that is well on the way to its original status.
3
Figure 3 below shows a view from the southern edge of the property looking north towards the owner’s house. This view shows much of the restored area with Leucopogon and Boobialla in the foreground and Eucalypts and Allocasuarina in the background.
Habitat condition In making this assessment, I traversed the property and interviewed the owner, Mr Hartley. It is obvious that he has undertaken both vegetation and fauna restoration programs.
Vegetation I observed that the vegetation consists primarily of indigenous Eucalyptus species (E.rugosa, E.diversifolia, E. conglobata, E. leucoxylon, and E. lansdowniana), mixed with the local Callitris, Allocasuarina, Melaleuca, Leucopogon, and Acacia species. The interdispersal of species reflects the direct seeding planting technique used by Mr Hartley and has resulted in a vegetation association, which looks close to natural.
4 Figure 4 below shows Acacia, Eucalypts and Allocasuarina stands that were direct seeded in 1991.
I have been advised that this property has been used as a model by the local NRM board to demonstrate successful vegetative restoration.
Importantly, I note that some other native species such as Coast Bitter-Bush (Andriana klotzschii) and Boobialla (Myoporum insulare) (not planted) have colonised the property. This volunteer colonisation is a sign of a healthy, regenerating habitat.
I observed that the native vegetation on the property is in good health and shows no signs of disease or degeneration.
5 I can confirm that the existing tracks provide adequate access to the two existing houses and that there is no need for further access roads and hence vegetation clearance.
I also understand that the owner has agreed to a Land Management Agreement (binding on both of the proposed titles) that would prohibit construction of a boundary fence along the proposed line of division and hence avoid any need for vegetation clearance for this purpose. I can confirm that there are no obvious impediments to this approach and that it would further ensure free and safe movement of animals between the two proposed properties.
Fauna As I walked over the property, I observed many wallabies (Tamar) and kangaroos (Western Grey). While the previous pasture would have provided grazing opportunity for both species, the increase in vegetation has enhanced the habitat through provision of shelter.
The owner has observed an increase in the number of joeys carried by both species over the last 20 years. This reflects the improved habitat - food, shelter, and water.
I observed that the owner has provided permanent watering points both in-ground and elevated for both birds and animals.
It was a warm day during my visit and the watering points were being actively used. I observed an abundance of birds (honeyeaters, finches and wrens) using these facilities. The owner is an active bird watcher and has collected a list of 39 birds observed on the property (Attachment 2).
Furthermore, I was impressed by the owner’s active fauna restoration programs which include provision of nesting and roosting boxes for Striated Pardalotes, micro-bats, and Pygmy Possums. In the
6 absence of natural hollows (in young trees) this is an important initiative for successful habitat restoration.
Of particular note, is the Pygmy Possum restoration program where the owner has placed twelve Pygmy Possum boxes (Figure 5 below) along the western and southern boundaries of the property following the corridor of Eucalypts planted as part of the original 1991 restoration program. These have been successfully colonised with Pygmy Possums migrating along the boundary and then moving into islands of replanted Eucalyptus vegetation towards the owner’s southern house.
The owner has monitored the Pygmy Possum populations and found that they fluctuate according to the availability of food availability.
This program has provided a case study for the local NRM feral cat program. It is regarded as a lead demonstration for provision of safe habitat to counter the threat of feral cat predation.
7 In keeping with this philosophy, the owner is in the process of providing hollow log habitat for other species, including owls.
I am satisfied that the habitat on this property has been protected and in fact enhanced substantially by the Mr Hartley. The specialised habitat restoration programs undertaken by the owner are impressive.
Weeds, pests and land degradation In making this assessment, I walked through the property.
There are no signs of significant weed intrusion on the property. I understand the owner has undertaken active weed control for Boxthorn, Lincoln Weed and Onion Weed. This program is ongoing.
I understand the owner has been a willing and active participant in the NRM and university feral cat research and control programs. These programs have involved an extensive study of feral cats, including monitoring, tracking and trapping. The owner has allowed full access to the whole property for researchers to: trap and radio- track cats; for photo-surveillance, and for testing of eradication methods.
There is no significant soil erosion caused by run-off on/from access roads and the dwellings. Erosion control measures are evident and well maintained.
From my site visit, I can confirm that there are no obvious signs of environmental damage to the property and that in fact the habitat has improved significantly as Mr Hartley has restored the property to the indigenous native vegetation.
8 Future protection While the current owner, has every intention of protecting and restoring the property, there is a need to consider what could eventuate from future ownership change.
The Native Vegetation Act protects existing remnant native vegetation and replanted native vegetation which is more than five years old. This Act will ensure that the restored native vegetation area will not be cleared and converted back to pasture or other uses. However, this Act does enable clearing of vegetation along a boundary fence line.
For the reason, as discussed previously, Mr Hartley has volunteered to enter into a Land Management Agreement (LMA), which would be binding on both future titles, to disallow a boundary fence between the two proposed allotments. Furthermore, it is understood that the owner has volunteered a second condition in the proposed LMA preventing a further subdivision of future allotments. In this way the existing vegetation on both proposed allotments and any threat of an increase in density of development will be prevented.
As a further protection, Mr Hartley could enter into a State Heritage Agreement covering the vegetation on both allotments as a condition of approval.
Conclusion I am satisfied that the proposed division of Lot 105 on Muston Road property would not cause any significant environmental damage. Introduction of a Land Management Agreement and Native Vegetation Heritage Agreement, would ensure that no environmental damage (from human activities) could occur in the future. As such, the assumption made in the Botten Levinson report is upheld and confirmed in saying that environmental/planning
9 damage will not occur as a result of this proposed land division: in reality it is simply a line on a map.
I trust this advice is of assistance.
Yours faithfully
Assoc Professor Robert Thomas Commercial and Environmental Advisor Mob: 0417882050 Email: [email protected]
10 Attachment 1 (Short CV)
11
Attachment 2: List of birds recorded on the property
12
Reference: CPB/059/19 Level 4, 81-91 Waymouth Street Adelaide SA 5000 GPO Box 1047 23 July 2019 Adelaide SA 5001 Australia
Contact Officer: Peter Allen Ph: (08) 8124 4906 Geoff Rangai Email: [email protected] Development Division DPTI COAST PROTECTION BOARD Development Applications Email: BY EMAIL/EDALA [email protected]
Web: www.environment.sa.gov.au
Dear Geoff
Development Application No. 520/D004/19 Applicant R Hartley Description Land division Location Lot 105 Muston Road, Pelican Lagoon Development Zone Coastal Conservation Zone Council Kangaroo Island Council Planning Authority Council and SCAP
The above development application was forwarded to the Coast Protection Board (the Board) for its response in accordance with Section 37 of the Development Act 1993.
The following response is provided by the Board, after consideration of its policies. Those policies are contained in the Board’s Policy Document which is located on the following website: http://www.environment.sa.gov.au/about-us/boards-and- committees/Coast_Protection_Board/Policies_strategic_plans
More information on coastal development assessment and planning policy is contained in the Coastal Planning Information Package at: http://www.environment.sa.gov.au/our-places/coasts
Proposal
The proposal seeks to divide an existing allotment into two, such that an existing dwelling, and an existing tourist accommodation development, are provided with individual property titles.
The proposal is a non-complying form of development as per the Coastal Conservation Zone of Council’s Development Plan. The subject land has a significant environmental value and is adjacent to Pelican Lagoon, an Aquatic Reserve listed on the Directory of Important Wetlands in Australia, as well as being designated a Sanctuary Zone within the Encounter Marine Park.
Figure 1: Proposed land division
By way of background, the Board has previously provided advice regarding development on the subject allotment. In 2010 DA 520/064/10 for a second ‘Single story dwelling’ was referred to the Board under the provisions of the Development Act. The Board recommended it be refused as the proposal was not in accord with its Policies relating to scattered coastal development, potential fragmentation of the allotment (despite assurances the application was not intended to facilitate a land division), and the impact of additional development on a coastal environment of high conservation value. That proposal was subsequently approved by Council. At some point a change of land use (or change in the proposal) has resulted in the application for a dwelling becoming tourist accommodation development.
In 2016 the Board was referred DA 520/D012/16 for a land division similar to the current proposal. The Board recommended that that application be refused as it was considered to be at variance to Coast Protection Board policies with regard to orderly development, creation of new allotments in coastal areas, and the protection of sensitive coastal landscapes and vegetation. It also advised at that time that such a development could facilitate potential further intensification of development on the land. Council subsequently approved the non-complying application subject to the concurrence of the Development Assessment Commission, however the Commission did not concur and the proposal was refused development consent.
An assessment of the current application against the Board’s Policies is provided below.
Assessment
Coast Protection Board Policy
As per the Coast Protection Board Policy Document, 2016, the Board seeks to:
2
• retain coastal open space • minimise impacts of development on the coast • maintain compact coastal settlements and restrain development ‘sprawl’ along the coastline • protect scenic amenity • protect coastal biodiversity • minimise or stop development in areas subject to coastal hazards.
The Board’s policies are generally reflected in Council’s Development Plan.
Coastal Flooding and Erosion
This land is well elevated and not subject to coastal flooding.
The land is not subject to an erosion risk in terms of shoreline retreat. There is a potential sand drift hazard over the southern half of the allotment (refer Figure 2 below) although the extent of this risk has not been quantified. It is likely to be relatively low, provided the landform is not further disturbed and revegetation of sparser areas continues.
Figure 2: Area of potential sand drift hazard. Source DEW EnvMaps: hazard layers
Orderly development
The proposed development is located in the Coastal Conservation Zone of the Kangaroo Island Development Plan. The primary intent of the zone is the protection of Kangaroo Island’s important areas of natural scenic landscapes and conservation significance.
The Board’s policies are generally in keeping with the subject Zone’s policies and also those broader environmental policies of Council’s Development Plan.
The Board’s policies strongly discourage development that represents or facilitates incremental sprawl in coastal areas of conservation and scenic significance.
3
Coast Protection Board Policy 1.5(a): “The Coast Protection Board opposes linear or scattered coastal development, with the exception of tourist accommodation development or that which has a significant public or environmental benefit, as per Policy 1.6. The Board prefers development to be concentrated within existing developed areas or appropriately chosen nodes.”
Coast Protection Board Policy 1.5(b): “The Coast Protection Board opposes development, including land division, which is subject to coastal hazards or impact on areas of significance.
Coast Protection Board Policy 1.5(d): “The Coast Protection Board opposes land division that increases the number of allotments abutting the coast, except where the subdivision is an orderly development of existing developed areas or concentrated into appropriately chosen nodes.
Coast Protection Board Policy 1.6: “The Coast Protection Board may support development, including tourist accommodation or that which has a significant public or environmental benefit, in coastal areas outside of urban areas provided: • It is sited and designed in a manner that is subservient to important natural values within the coastal environment; • It is not subject to unaddressed coastal hazards; • Adverse impacts on natural features, landscapes, habitats, threatened species and cultural assets are avoided or minimised; and • It will not significantly impact on the amenity of scenic coastal vistas.
[Guidelines for proposed coastal development outside of urban areas are contained in Appendix 3 of this Policy Document.]”
Coast Protection Board Policy Document – Appendix 3 1. General Siting and Design Parameters The Board’s Policies address regular siting and design objectives. In addition, coastal development outside of urban areas should demonstrate measures to conserve and preferably enhance the coastal values of the site, for example through: • …. • Avoiding impact to threatened fauna and flora species and their habitat; • Being sited to avoid impacting on highly valued, undeveloped coastal vistas; • Being designed so that it is responsive to the landform and natural environment; • Implementation of a native flora revegetation program; and/or • Establishment of a Heritage Agreement or Land Management Agreement, over all or part of the allotment, to protect it from further development or ensure ongoing conservation management.
The proposed land division is at odds with Policy 1.5(a) as it increases the number of allotments in this Coastal Conservation Zone (an intensification of development) and it is regarded as scattered coastal development by way of not being located within an existing development node. Further, the Board acknowledges the considerable work that the owner has achieved in terms of revegetation and other conservation initiatives on the allotment however the application, including the draft LMA, does not provide for a significant public or environmental benefit.
The proposed land division is at odds with Policy 1.5(b) as the additional allotment impacts on an area of significance, in contrast to the application’s Statement of Effect which cites that the land division “is only lines on a map”. The environmental significance of the land is clear. In particular, the action of creating an additional allotment, apart from being additional “development”
4
(intensification of development) in its own right, may facilitate additional development on each of the proposed two allotments (either dwellings, or other forms of development). The proffered draft LMA, or mentioned Heritage Agreement, provide no assurances to the contrary. The current arrangement of one allotment with two developments thereon substantially reinforces the intent and value of the subject Coastal Conservation Zone, compared to the proposed development.
Similarly, the proposed development (an intensification of development) cannot be regarded as minimising adverse impacts on natural features, landscapes, habitats and threatened species, as per Policy 1.6. The fragmentation of land is generally detrimental to conservation values.
Guidelines for proposed coastal development outside of urban areas are contained in Appendix 3 of the Board’s Policy Document. The establishment of a Heritage Agreement or Land Management Agreement over allotments to protect them from further development or ensure ongoing conservation management are indicated as potential ways to address conservation matters. The draft LMA provides no assurance that further development cannot occur on either of the new allotments, and a potential Land Management Agreement is mentioned in the application documentation however no draft or details are provided.
Coastal Biodiversity and Native Vegetation
Coast Protection Board Policy 1.4(e): “The Board will seek to ensure that the siting and design of development on the coast minimises its impact on the environment, heritage and visual amenity of the coast.”
Coast Protection Board Policy 1.5(b): “The Coast Protection Board opposes development, including land division, which is subject to coastal hazards or will impact on areas of significance”
As noted above the Board compliments the current owner on the conservation initiatives undertaken to date. However the proposed additional allotment, plus the subsequent improvement in opportunities to gain consent for additional development that follows as a result, does not ensure that the siting and design of the proposed development minimises its impact on this coastal environment, and it is therefore at odds with the Policies 1.4(e) and 1.5(b). Furthermore, fragmentation of land via two separate allotments (and ultimately two separate owners) is generally understood to be detrimental to conservation values.
Coastal biodiversity values were also considered within the Kangaroo Island Coastal Lands Assessment Project, 2009. This project was undertaken by the former Department for Environment and Heritage in conjunction with the KI Natural Resource Management Board, and was delivered to key stakeholders including the Island’s Council.
The Coastal Lands Assessment utilised methods developed by DEW's Coast and Marine Branch to summarise combined conservation assets and environmental threats to the Island’s coastline, as it did for other parts of the State’s coastline.
Amongst other things the Objectives of the project included:
• To conduct a systematic assessment of the biodiversity values and conservation status of the coastal zone of Kangaroo Island • To identify locations likely to be impacted upon by threatening processes • To prioritise coastal management issues • To provide biodiversity and other information to planning authorities to assist in regards to strategic and local area planning
5
The Coastal Lands Assessment Project Technical Report (Achurch and Royal, 2009) details the methods and data used to undertake the assessment. An ARC GIS map application includes data layers to enable exploration of the data at a regional scale through to more detailed, site-specific levels. The Prospect Hill cell within which this land is located has been ranked highly (11th out of 65 coastal study cells) in terms of there being a high threat to the conservation values of the area.
A main threat identified for the Prospect Hill cell was degradation of vegetation through land use, which factored in amongst other criteria the nature and extent of allotments within the landscape, and the volume of allotments held in private ownership. An increase in the number of allotments, for example as proposed by the subject development application, will further contribute to that existing threat level.
Visual Amenity
Coast Protection Board Policy 1.4(e): “The Board will seek to ensure that the siting and design of development on the coast minimises its impact on the environment, heritage and visual amenity of the coast.”
Coast Protection Board Policy 5.2(a): “The Board opposes development that has significant visual impact on coastlines with significant landscape value [in doing so the Board will have regard to both the visual impact from the land and from the sea].”
The coastal environment in this locality is considered to be of high scenic quality. This amenity value should be upheld where possible and not reduced through unnecessary incremental development.
A concern of the Board regarding the development of the earlier dwelling/tourist accommodation (DA 520/064/2010) was that the additional building would likely be visible from the Mt. Thisby (Prospect Hill) lookout. Views from this lookout are of value from an historical and tourism perspective and it provides the best viewing experience of this section of the Dudley Peninsula coastline, overlooking the spectacular headlands of Pennington Bay and the Pelican Lagoon wetland system. It is a major focal point for local, national and international visitors to Kangaroo Island. Incremental and scattered building development detracts from this vista. The Board is concerned that the proposed development may facilitate additional development on the subject land.
Other comments
The application documentation cites at various places that the prime reasons for the proposed development (essentially the only reasons) are that the creation of separate allotments for each building development on the site is necessary to: (a) allow the current owners to remain on the site, and (b) ensure the continuance of a successful tourist accommodation business, which “would otherwise have to close due to ill health”.
It is the Board’s assessment that neither of these reasons have veracity, or relevance with respect to the use of allotment or its management within a coastal conservation framework. The cited reasons do not favourably address the Board’s coastal Policies, as highlighted in this report, and further, the application otherwise demonstrates no advantages with regards to the coastal conservation values of the allotment.
6
Coast Protection Board Response
The Coast Protection Board recommends that the application be refused as it is considered to be at variance to Coast Protection Board policies with regard to orderly development, additional development within a coastal conservation area, creation of new allotments in coastal areas, and the protection of sensitive coastal landscapes and vegetation. These issues are detailed within the report.
Yours sincerely
Murray Townsend Manager Coast and Marine Branch Department for Environment and Water Delegate for the Coast Protection Board
7
To: Biljana Prokic
From: Alice Everitt, Native Vegetation Management Unit, DEWNR
Re: DA 520/D012/16 subdivision of Allotment 105 in D12638, Muston Road, Pelican Lagoon KI
Date: 6/12/2016
______
The Native Vegetation Council (NVC) does not object to the proposed subdivision. However the NVC suggests some minor adjustments to the proposed boundary to minimise the potential for native vegetation clearance for a new fence line under the Native Vegetation Regulations 2003 (the Regulations).
The proposed boundary is reasonably placed to avoid the need for clearance for new access roads to the buildings onsite. However it puts the coastal shrub land vegetation between the access roads at risk of clearance for a new fence line and further clearance on either side of the fence under the Regulations, potentially resulting in a strip of up to 10m of clearance. The NVC suggests that the new boundary in the eastern section be more closely aligned with the access road to proposed allotment 20, up to the main bend in the access road.
The NVC does not support the division of intact remnant vegetation. While there appears to be native vegetation throughout the site, there is a distinction between the remnant coastal shrub lands and mallee in the north, and a more degraded area in the south. The western section of the proposed boundary should avoid cutting through remnant vegetation (coastal shrub land/mallee), and be placed at least 5m from remnant vegetation (or at least within more degraded vegetation) so as to protect that remnant vegetation from clearance for a new fence line.
Any future proposal to clear native vegetation, including change in land use or additional buildings requires the approval of the NVC unless subject to an exemption under the Native Vegetation Regulations.
Yours Sincerely,
Alice Everitt
Native Vegetation Management Unit
[email protected] 8207 7715
SA Water Level 6, 250 Victoria Square 20 June 2019 ADELAIDE SA 5000 Ph (08) 7424 1119 Inquiries Michael Zoanetti Our Ref: H0086465 Telephone 7424 1119 The Chairman State Commission Assessment Panel 50 Flinders St ADELAIDE SA 5000 Dear Sir/Madam PROPOSED LAND DIVISION APPLICATION NO: 520/D004/19 AT PELICAN LAGOON In response to the abovementioned proposal, I advise that this Corporation has no requirements pursuant to Section 33 of the Development Act. NO DIRECT WATER AND SEWER MAINS AVAILABLE, NO REQUIREMENTS Yours faithfully Michael Zoanetti for MANAGER LAND DEVELOPMENT & CONNECTIONS
ITEM 8.1
APPLICATION NO. 520/D004/19
DEVELOPMENT DETAILS Non-Complying Land Division, 1 Allotment into 2 Allotments, within the Coastal Conservation Zone.
Applicant Mr. R. Hartley c/- Weber Frankiw & Associates P/L 178 Main Road McLaren Vale SA
Owner Mr. R.E.R. Hartley 15 Grand View Avenue 5171Urrbrae SA 5064
Site Address Allotment 105 DP12638, Muston Road, Muston, Hundred of Haines.
Property Details Certificate of Title Volume 5282 Folio 685
Zone Coastal Conservation Zone, Map KI/13.
Public Notification Non-Complying, Category 3 form of development – Full Public Notification undertaken. Two (2) representations received (one further representation was withdrawn by its author).
Application Date 29 May 2019
Relevant Development Plan Consolidated 17 September 2017
Department Development and Environmental Services Aaron Wilksch Development Services Manager
Issues Summary Non-Complying Development – Delegated Authority to Council’s Assessment Panel.
The proposed development purports division of land to separate the existing dwelling and portion of land from the more recently established tourist accommodation.
A New Land Management Agreement is proposed to preclude fencing of land and to preclude further division of land on the basis of proliferation and precedent for further division.
The proposed Land Division is at variance with the zone land division provisions.
BACKGROUND
A comparable application was lodged in 2016 for the division of the subject land, which was supported by Council’s Assessment Panel, but ultimately refused by the Commission.
The applicant has lodged a new ‘Non-Complying’ application with the Commission on 29 May 2019 for division of land within the Coastal Conservation zone.
The required Statement of Support (Combined Statement of Support & Effect) was provided by URPS planning consultants upon lodgement, pursuant to Regulation 17 (1) of the Development Regulations 2008. This statement outlines the nature of the proposal and the considered merits of the proposal. The Statement also provides legal interpretation of the proposed division in respect of a number of factors including case law and interpretation stemming from it.
With consideration of the Statement of Support & Effect dated 27 May 2019, the application was resolved under delegated authority, on 8 August 2019, to proceed with assessment of the Non-Complying development application under Regulation 17 (3) (b) of the Development Regulations 2008.
The Combined Statement of Support & Effect provided at lodgement satisfies the requirements of Regulation 17 (4) and the applicant’s revised Land Management Agreement pursuant to Section 57A of the Act was provided also for the purpose of Category 3 Public Notification.
The application has proceeded through all statutory planning processes and accordingly the application is prepared for presentation to the Council Assessment Panel.
SUBJECT LAND AND LOCALITY
The subject land in this proposal is identified as Allotment 105 DP12638 Muston Road, Muston, Hundred of Haines, identified in Certificate of Title Volume 5282 Folio 685.
The subject land is located north-by-north-west of the Muston Road / Hog Bay Road intersection, west of the shores of Pelican Lagoon and north of Prospect Hill landmarks. The land is a composite of sandy and rocky limestone terrain, typically demonstrating coastal characteristics including coastal vegetation.
The land exhibits coastal landscape qualities shared by vast areas of Pelican Lagoon and south Coast KI, particularly shared in the surrounding locality.
The land is considered to be somewhat elevated amongst its surroundings, particularly giving way to Pelican Lagoon to the northeast, though in contrast to Prospect hill to the south, the land remains far more concealed in the landscape.
The land is in the order of 37.25 Ha in total area, currently for both private residence, (dwelling and shed established approximately 1985) and more recently, tourist accommodation established approximately 2012.
A 20.12 metre wide easement crosses the south-west corner of the land, appurtenant to the Electricity Trust of South Australia for transmission of power. There are no other encumbrances or existing Land Management Agreements on the subject site.
The subject land is located wholly within the Coastal Conservation Zone. Land bordering the site to the west is zoned Primary Production. The subject land is contained in Map KI/13 of the Kangaroo Island Development Plan. The site is identified in the following maps and images:
Locality Plan, Location SA Viewer www.location.sa.gov.au/viewer/, locality plan.
Zone Overlay – KIDP 17 September 2015 – Location SA Viewer www.location.sa.gov.au/viewer/
Bushfire Risk Overlay – KIDP 17 September 2015 – Location SA Viewer www.location.sa.gov.au/viewer/
Detail Enlargement Plan, Location SA Viewer www.location.sa.gov.au/viewer/
Detail Enlargement Plan, Location SA Viewer www.location.sa.gov.au/viewer/
PROPOSAL
The Development Application seeks Development Plan Consent and Land Division Consent for the division of 1 allotment into 2 allotments, separating the long established dwelling and domestic garage (circa 1985) from the more recently established tourist accommodation (2012).
The resulting allotments are proportioned 12.93 Ha in proposed Lot 20, containing the dwelling and domestic garage in the northern portion of the land and obtaining 227.19 metres frontage to Muston Road, and Proposed Lot 21, at 24.48 Ha, occupying the southern portion of the land containing the existing tourist accommodation building, with frontage exceeding 1516 metres to both Muston Road and Hog Bay Road.
Both allotments attain existing access to Muston Road and avoid access to Hog Bay Road, a DPTI controlled road. Resulting allotments are somewhat unconventional in shape, however, reasonable effort has been made to avoid disrupting native vegetation with logical recognisable boundary alignment coinciding with existing driveways and the borders of native vegetation.
The proposal is accompanied by an LMA pursuant to Section 57A which will need to be considered by Council with the specific intent of restricting any further division of land, no internal boundary fencing and no further tourist accommodation will be established on the resulting allotments (if approved).
The intention of the Proposed LMA being to amend / replace the provisions of the formerly approved LMA (2016) and to confirm the applicants intent to mitigate any additional impact or intensification of use upon the land.
NOTE: an LMA is not assessed as a planning matter, it does not absolve the Planning Authority of applying the provisions of the Development Plan, and forms a separate and additional tool for the management of land. The LMA must be agreed by Council (as a governing body) for the agreement to have any effect upon the land.
Differences to previous proposal: The proposal is substantially the same division as previously lodged in 2016: the proposed dividing boundary assumes generally the same alignment, however introduces slightly altered alignment and additional boundary segments, to be positioned closer to the northern (dwelling) driveway alignment, which accords the former advice of the Native Vegetation Council in 2016.
The Land Management Agreement which accompanies the application is intended to replace the existing endorsed LMA which exists for the property. The new LMA is intended to replace the existing LMA, and must, if successful go to Council for consideration.
It is considered best that the planning considerations be made before CAP and if successful through CAP and the Commission, that the LMA can be considered by Council without any concern of it influencing the planning determination.
The proposed plan of division, and DRAFT LMA Document are provided in (Attachment A).
DETERMINATION OF APPLICATION, PUBLIC NOTIFICATION & OTHER STATUTORY REQUIREMENTS
Development Classification: The Kangaroo Island Development Plan, Consolidated 17 September 2015, Map KI/13 indicates that the land lies wholly within the Coastal Conservation zone.
Within the zone, the Non-Complying list details that land division is a Non-Complying form of development except where either of the following apply: Except where:
(a) no additional allotments are created wholly or partly within the zone (b) it results in allotments of greater than 2 hectares (c) there is no increase in the number of allotments with frontage or direct access to the coast.
Accordingly the application is determined to constitute ‘Non-Complying’ development subject to (a) creation of an additional allotment within the zone.
On 8 August 2019, it was formally determined that the proposal demonstrated adequate merit to proceed, on the basis that the proposal presents: • (considtent with the previous application) the proposal purports separation of the existing land uses i.e. the existing and highly operational tourist accommodation from the long existing dwelling, and • On separating the strongly supported tourist accommodation land use from the residential use, still retains only one residential dwelling land use / allotment within the zone,
Accordingly it was resolved to proceed with a full assessment of the application pursuant to Regulation 17 (3) (b).
Statement of Effect: The combined Statement of Support & Effect prepared provides a detailed assessment of the proposal, examining the proposal’s relevance to the provisions of the Kangaroo Island Development Plan, as well as the social, economic and environmental effect of the proposed development.
The statement, in conjunction with the legal opinion (attachment 1) focuses upon the concept of planning harm and the effect of the proposal in this respect. The Statement of Effect uses this concept to not only illustrate that no harm is done by way of the development, but identifies that there will be three positive outcomes of the proposed development which are tangibly linked to the Kangaroo Island Development Plan’s pursuits, including:
• The resultant protection of all other native vegetation via the land management agreement (controlling no internal boundary fencing, no further land division),
• Survival of the successful tourist accommodation development, which is envisaged / supported in the zone / planning policy, and
• Substantially limited further development of the sites for further tourist accommodation development to reduce any further impact to the natural environment.
The Statement of Effect includes in Attachment 2, an Environmental Impact Assessment by Assoc. Professor Rob Thomas, to qualify that no damage in an environmental sense will occur as a result of the proposed development – thus is tangibly linked to the legal opinion in Attachment 1 of ‘no planning damage’ occurring as a result of the proposal.
The assessment identifies a history of environmental improvements on the land since its acquisition by the applicant from the early 1990’s onwards, including revegetation following the removal of livestock from the land. Aerial imagery from 1996 and 2018 provides a very clear indication of the renewal of native vegetation on the site.
The Statement of Effect also presents the Social, Economic and Environmental effects of the proposed development. It is noted that since its establishment of the tourist accommodation, the owners have developed and can demonstrate an admirable standard of occupancy and value return for the tourist accommodation which supports its independence from the residential portion of the property.
Whilst economics do not feature as a part of a development plan assessment, anecdotal evidence demonstrating the success of the development is an obvious representation of the achievement of the objectives of tourism development in the zone.
Limiting further future impacts of fencing or additional development on the proposed land parcels addresses the environmental effects of the proposal whilst retaining Status Quo in all other respects.
The Combined Statement of Support & Effect is contained in Attachment B.
Categorisation: The proposed development was determined to constitute a Category 3 ‘Non- complying’ form of development, in accordance with Section 38 of the Act. The proposed development does not fall within the ambit of either Part 1 or Part 2 of Schedule 9 of the Development Regulations 2008.
PUBLIC NOTIFICATION In accordance with the determined category of development, the application was placed on full Public Notification commencing 15 August 2019 through until 30 August 2019, by way of notices directly to adjacent land owners and occupiers of land and a notice published in The Islander Newspaper.
Two (2) representations were received by Council as a result of the public notification process. One further representation received was withdrawn by its author on 10 October 2019.
Representations: Representations received on this application have some issues which need clarification to assure the panel is not misinformed about the land division:
The land division is Non Complying die to its creation of an additional allotment in the Coastal Conservation zone, however both representations incorrectly suggests that the land is situated on the foreshore or with frontage or direct access to the coast of Pelican Lagoon, whereas the land is situated on the opposite side of Muston Road and therefore does not have direct access to the coast or coastal reserve.
Both representations indicate that the proposal sets a precedent for other similar types of land division. It is a long established doctrine of planning law that no application sets precedent, this is because every application has its own unique circumstances. Whilst there may be other instances where an application could present comparable factors, no precedent is set and approvals could not be guaranteed – favourable decision would be subject to comprehensive assessment, as it is in this current application.
One representation queries the validity of the proposed LMA in the context that it may be no deterrent to further development by a new owner. A Land Management Agreement, once established is binding upon all and any persons owning the land. LMA’s have often been criticised by some state agencies and Councils for being inadequate or inappropriate, however ‘good LMA’s’ with simple, unambiguous obligations do not present a legacy of enforcement / compliance for Councils. They are a recognised method of applying constraints to land uses within the available controls of the Development Act 1993 (and will continue under new PDI Act legislation also).
Representations received during Public Notification and the applicant’ response to representations are contained in Attachment C (Note the attachments exclude the representation which was withdrawn by its author).
REFERRALS AND AGENCY CONSULTATION The application was not subject to any mandatory referrals pursuant to the Eighth Schedule of the Development Regulations 2008 noting that no access is proposed from the DPTI controlled Hog Bay Road, thus no DPTI Roads Referral.
Informal referrals were undertaken via the EDALA land division lodgement system, to the SA Water Corporation, SA Power Networks, SA Coast Protection Board and The Native Vegetation Council SA.
DEWNR SA Coast Protection Board: The SA CPB provided its response on 23 July 2019, recommending refusal upon its variance to the Board’s policies on orderly development, creation of new allotments in coastal areas, protection of sensitive coastal landscapes & vegetation. The SA CPB Policies appear to have been amended since the previous application was assessed in 2016.
Orderly Development: Of particular note are:
Coast Protection Board Policy 1.5(b): “The Coast Protection Board opposes development, including land division, which is subject to coastal hazards or impact on areas of significance.
Coast Protection Board Policy 1.5(d): “The Coast Protection Board opposes land division that increases the number of allotments abutting the coast, except where the subdivision is an orderly development of existing developed areas or concentrated into appropriately chosen nodes.
Policy Items 1.5(a), 1.6 and the material quoted from Appendix 3 are somewhat irrelevant as they respond to land uses and associated impacts, which in the context of the current proposal are already established.
Coastal protection policy 1.5b relates to land division in areas subject to coastal hazards. The CPB have indicated that the land is not subject to coastal hazards in its first paragraph under the heading Coastal Flooding and Erosion.
Coastal protection policy 1.5(d) regards the Board’s opposition to land division which creates additional allotments abutting the coast. The proposal, as foreshadowed earlier in the report, is proximate to the coast but neither procures an additional access or frontage directly abutting the coast, from which it is separated from Coastal reserve Lot 201 by Muston Road.
The proposal does not purport any further linear or scattered development, seeking land division consent only. Any further development would be subject to separate application as either Merit or Non-complying development and would (other than minor additions or alterations to existing buildings) be subject to further referral to the Board.
Coastal Biodiversity and Native Vegetation: Of particular note is:
Coast Protection Board Policy 1.5(b): “The Coast Protection Board opposes development, including land division, which is subject to coastal hazards or impact on areas of significance.
Reiterating the previous item, Coastal protection policy 1.5b relates to land division in areas subject to coastal hazards. The CPB have indicated that the land is not subject to coastal hazards in its first paragraph under the heading Coastal Flooding and Erosion.
Coast Protection Board Policy 1.4(e): “The Board will seek to ensure that the siting and design of development on the coast minimises its impact on the environment, heritage and visual amenity of the coast.”
Coast protection policy 1.4(e) again relates to the expected impacts of establishing land uses. In this respect, the land division could impart impacts such as fencing and associated clearance, however the fencing of land is currently controlled by the existing LMA (established in 2016) and would be captured under the proposed amendment / replacement LMA submitted with this application and therefore mitigates any such impacts including any further development of the land.
Notably the Native Vegetation Council has not objected to the proposed boundary and is supportive of the LMA and its controls, with no internal fencing or associated clearance permitted, and therefore is not considered to jeopardise environment, heritage or visual amenity of the land or the locality.
Council acknowledges the approval for the existing tourist accommodation development and refers to the assessment of that development, including its referral to the Coast Protection Board and the careful consideration of siting, impact to land, vegetation and the landscape which was assessed at that time.
Other comments: The Board’s assessment contends that the applicant’s reasoning for the proposed creation of separate allotments for each building, to: (a) allow the current owners to remain on the site, and (b) ensure the continuance of a successful tourist accommodation business, which “would otherwise have to close due to ill health”. have no veracity, or relevance with respect to the assessment (against the Board’s policies).
However in a development plan / development legislation context, these reasons express in common language, the representation of allowing / preserving continuance of an existing land use, i.e. enjoyment of lawful & existing land use rights for the dwelling / residential land use, despite that form of development becoming inappropriate (non-complying) in the zone since 2010, and in respect of the continuance and success of a favourable form of development, the tourist accommodation, which is identified as an envisaged form of development and desirable land use outcome in the zone.
DEWNR Native Vegetation Council: The NVC provided its response on the EDALA site on 12 August 2019, re-issuing their previous comments from 2016 - raising no objection generally to this subdivision providing 1) the eastern portion of the proposed boundary is more closely aligned to an access track and 2) the western portion aligns with the edge of remnant vegetation, and traverses adjacent direct-seeding and regenerating areas. NVB supports the agreement not to fence the boundary.
SA Water Corporation: The SA Water Corporation provided its final response on 20 June 2019, advising that it had no requirements / no services that exist in the area.
SA Power Networks: SA Power Networks provided its response on the EDALA site on 4 July 2019 and have not raised any objection to the proposal, providing that no buildings are permitted on registered easement A which provides tenure for their 33,000 v electricity Infrastructure, and that building near powerline clearances and statutory easement provisions apply existing 19,000 v overhead power lines crossing the property.
Development Assessment Commission: The Development Assessment Commission provided its final consultation report on 29 July 2019, requiring by condition pursuant to sec 33(1):
- A final plan complying with the requirements for plans as set out in the Manual of Survey Practice Volume 1 (Plan Presentation and Guidelines) issued by the Registrar General to be lodged with the Development Assessment Commission for Land Division Certificate purposes.
DAC has specifically drawn Council’s attention to the comments of the SA Coast Protection Board’s response in determining the application.
DAC also foreshadows that the commission generally does not support non- complying land division applications without adequate and detailed justification.
It should be noted that the Native Vegetation Council response was received after the overdue date and after the Commission finalised its consultation report.
In considering the points raised by SA Coast Protection Board, Council has weighed up the Board’s applied policies and the Kangaroo Island Development Plan policies to consider the validity of the Board’s reasons to consider its recommended refusal.
The Board’s assessment in some respects fails (in the opinion of the assessing officer) to recognise and objectively apply the intent of its own policy, for example its policy intent to protect the ‘natural scenic landscape’, but fails to recognise the measures proposed to mitigate any impacts (or dismisses them).
The board discusses the proliferation of buildings creating ‘sprawl’ but does not recognise that the proposal comprises buildings already existing in that landscape (not further proliferation) and the application’s proposed measures to substantively limit further development of the land.
State Agency responses received via EDALA are contained in Attachment D.
DEVELOPMENT PLAN & POLICY
The proposal is presented to the Panel in accordance with Council Delegations – for a decision on a Non-Complying form of Development.
The following Objectives and Principles of Development Control (PDC) of the Kangaroo Island Development Plan – Consolidated 17 September 2015, are considered relevant to the assessment of this application.
Coastal Conservation Zone Objectives: 1, 3 Desired Character Statement, Para 1, 2, 3, 5 & 6 PDC’s: 2, 13
Coastal Areas: Objectives: 3 PDC’s: 23 & 24
Land Division Objective: 2 & 3
Orderly and Sustainable Development Objective: 3 & 4 PDC’s: 1 & 2
PLANNING ASSESSMENT
Coastal Conservation Objective 1: To enhance and conserve the natural features of the coast including visual amenity, landforms, fauna and flora.
Coastal Conservation PDC 13: Land should not be divided except where: (a) no additional allotments are created wholly or partly within the zone (b) there is no increase in the number of allotments with direct access to the coast or a reserve including by creation of land under rights of way or community titles.
Orderly & Sustainable Dev. Objective 3: Development that does not jeopardise the continuance of adjoining authorised land uses
Orderly & Sustainable Dev. Objective 4: Development should not prejudice the achievement of the provisions of the Development Plan.
Orderly & Sustainable Dev. PDC 1: Development that does not prejudice the development of a zone for its intended purpose.
Orderly & Sustainable Dev. PDC 2: Land outside of townships and settlements should primarily be used for primary production and conservation purposes.
The proposal seeks to divide the existing allotment in order to separate the existing dwelling and a 12.93 Ha portion of the land, from the existing tourist accommodation and the 24.48 Ha portion of the land. The application combined statement of support & effect confirms, the application’s intent to allow separate ownership and operation of the existing tourist accommodation building and retain the private dwelling.
The proposal substantially maintains status quo with respect to the established land uses and the natural surrounding environment insofar that there is limited further prospect for any further development such as dwelling or further accommodation accompanying what is established, being an express intention of the accompanying draft LMA.
Accordingly, within the provisions of the LMA, the land would not suffer any further impact occurring to the surrounding native vegetation by way of internal boundary fencing (already secured under the existing LMA) or any further substantial development of the land (noting that development of a further ‘dwelling’ would be captured as non-complying development and are generally not supported by Council in any case.
Inherent in the division is the use of the residential dwelling on proposed lot 20, even though establishing new dwellings is not envisaged under the Current Development Plan Policy for the zone, the owner’s continue to enjoy existing use rights. The tourist accommodation continues its use which is strongly in accordance with the intent of the zone and generally supporting achievement of the objectives of the Development Plan.
In terms then of the land division proposal, the division of the land separates (a) a dwelling which existed before the tourist accommodation was established and seeks to allow both uses to continue their lawful uses, albeit separately on independent land parcels. It does not prejudice either existing use of the land.
Coastal Conservation Objective 3: Development that contributes to the desired character of the zone.
Coastal Conservation Zone Desired Character Statement: Para 1: The zone defines the coastal areas of high landscape or conservation value and incorporates policy to ensure the preservation of the coastal landscape resource. Para 2: Pelican Lagoon, Prospect Hill and Sapphiretown Peninsula in particular, have been identified as having high conservation value and should be protected. In addition, the high scenic value of Chapman River and the surrounding area at Antechamber Bay should be protected for camping and recreational use. Para 3: However, the coastal environment plays an important role in Kangaroo Island's economy and the tourist attraction provided by the coastal environment, coastal scenery and abundant wildlife is expected to see growth in visitor numbers that will need to be appropriately managed and catered for. The provision of facilities, including tourist accommodation and recreational facilities, may be established in the zone provided they are sited and designed in a manner that is subservient to the natural and coastal environment and adverse impact on natural features, landscapes, habitats and cultural assets is minimised. Para 5: In order to reinforce the Island’s scenic and landscape experiences, tourism development should maintain a strong visual impression of a sparsely developed or undeveloped coastline from public roads and land-based vantage points. Para 6: The design and siting of tourist accommodation should ensure emphasis is given to raising consciousnessand appreciation of the natural, rural, coastal and cultural surroundings.
Coastal Conservation PDC 2: Development listed as non-complying is generally inappropriate and not acceptable unless it can be demonstrated that it does not undermine the objectives and principles of the Development Plan.
The proposal is unequivocally non-complying with the creation of allotments appearing to be defined as being inappropriate in the zone, other than boundary realignments in certain circumstances, and where such development does not undermine the principles of the development plan. This land division although seemingly at odds with the Development Plan’s land division principles, maintains the existing dwelling, promotes the continuance of the tourist accommodation land use favoured by the Development Plan and in doing so has proposed measures to mitigate any impacts to the environment which is strongly represented in the plan.
To this end, it is intended that the change in boundaries, ownership and administration of the divided land will in fact be so discreet that it will be impossible to recognise any actual change has occurred.
Contemplating the negligible physical effect of the division upon the land and continuance of the same land uses over fundamentally the same physical areas of land, and the proposed LMA reinforcing that further development is substantially limited, it is considered that there would be no precedent set for ‘wholesale’ division of coastal allotments.
The development attempts to accord the Desired Character of the zone through its proposal of absolute avoidance of impact to landform and vegetation via fencing and associated clearance.
The proposal does not involve any further fragmentation of land which would compromise the desired character of the zone – It does not establish new allotments with vast prospect of development which would alienate the Coastal Conservation zone or the environment – In this case, the land has been presented by the applicant as having reached its critical mass and that it will not develop any further beyond the division of the land.
Land Division Objective 2: Land division that creates allotments appropriate for the intended use.
Land Division Objective 3: Land division that is integrated with site features, including landscape and environmental features, adjacent land uses, the existing transport network and the availability of infrastructure.
Coastal Areas Objective 3: Preservation of areas of high landscape and amenity value including stands of vegetation, shores, exposed cliffs, headlands, islands and hill tops, and areas which form an attractive background to urban and tourist areas.
Coastal Areas PDC 23: Land in coastal areas should only be divided if: (a) it or the subsequent development and use of the land will not adversely affect the management of the land, adjoining land or the coast (b) sand dunes, wetlands and substantially intact strata of native vegetation are maintained or consolidated within single allotments.
Coastal Areas PDC 23: Land division in coastal areas outside of designated urban or settlement zones should not increase either of the following: (a) the number of allotments abutting the coast or a reserve (b) the number of allotments, including community title allotments and those that incorporate rights of way, with direct access to the coast or a reserve.
The proposed division is considered to finely accord the pursuits of the Coastal Conservation zone, supporting the continuance of the tourist accommodation land use and the existing use rights for the dwelling whilst maintaining a high level of conservation of the land.
Establishment of the proposed boundary, excluding fence lines and clearances is secured by the existing Land Management Agreement registered to the land title and is therefore not considered to be prejudicial to the natural landscape and visual amenity of the area, including outlook from landmarks such as Prospect Hill, or from across Pelican Lagoon (i.e. Pelican Lagoon Conservation Park) from which outlooks are only affected by the presence of the established buildings upon the land, rather than the division of the land.
At the time of writing the former report in February 2017, Prospect Hill was inaccessible for public safety reasons – We can now provide actual viewscapes from prospect Hill from March 2019 which evidences the minor level of visual impact from the existing development and driveways and the level of coverage provided by the existing vegetation when viewed from this aspect.
Image 1 Enlargement - 27 March 2019 (Prospect Hill Stairs Construction) depicting tourist accommodation & driveway from top of Prospect Hill lookout.
Image 1 - 27 March 2019 (Prospect Hill Stairs Construction) depicting tourist accommodation & driveway from top of Prospect Hill lookout.
It is considered upon the merits of the application, including the effect o fthe existing LMA and the further effect of the proposed amendment / replacement LMA, that the proposed division will not jeopardise the coastal environment, sensitive landscapes, native vegetation or landform, and therefore demonstrates consistency broadly with the Coastal Land and Land Division provisions of the Kangaroo Island Development Plan.
CONCLUSION
The proposed division of Allotment 105 DP12638 to separate existing land uses into two separate land holdings initially presents as being strongly at odds with the intent of the Coastal Conservation zone.
The zone’s objective, to restrict the division of land reflects the intent to limit proliferation of development in the zone by not allowing creation of any further additional allotments which would support further development and the associated impacts upon the coastal environment.
The distinguishing feature of this application (remains) that it has acquitted a high level of use of the land, through the historic establishment of the dwelling and the more recent establishment of the tourist accommodation. The applicant has provided evidence previously to account for the economy that the development has sustained, and the validity of dividing this development to stand alone.
The proposal, including the proposed LMA purports a division with no prospect of any impact upon the environment as a result of dividing the land and provides neoteric but credible reasoning for its consideration.
Achieving division of the existing allotment, the proposal goes to lengths to demonstrate avoidance of impact to the environment, dis-allows further division and development of land and rules out prospect of new development and further impacts to the land. The proposal is therefore considered ‘on fine balance’, to warrant the Panel’s approval.
RECOMMENDATION
The Development Assessment Panel resolve (i) that the development application is not at serious variance with the Kangaroo Island Development Plan consolidated 17 September 2015, and (ii) the panel resolve to approve Land Division Application 520/D004/19 for division of 1 allotment into 2 allotments, at Lot 105 DP12638 in the Hundred of Haines for Mr. R.E.R. Hartley c/- Weber Frankiw & Associates Pty. Ltd. subject to Council’s favourable resolution to accept the proposed amendment / replacement Section 57A Land Management Agreement, and its deposit with the Land Titles Office, before further proceeding to seek concurrence of the Development Assessment Commission (DAC) subject to (but not limited) to the following conditions of consent:
Kangaroo Island Council Planning & Land Division Conditions:
1. The Development herein approved must, except as varied by the conditions of consent, be carried out in accordance with the approved plans prepared by Weber Frankiw & Associates Pty. Ltd. marked ‘CAD Ref: 232108div’ and details to the satisfaction of Council.
Note - You have a right of appeal against the conditions which have been imposed on this Development Plan consent or Development Approval.
Such an appeal must be lodged at the Environment, Resources and Development Court within two months of the day on which you receive this notice or such longer time as the Court may allow.
Please contact the Court if you wish to appeal. The Court is located in the Sir Samuel Way Building, Victoria Square, Adelaide, Ph.: 8204 0300.
Development Assessment Commission – Land Division Conditions:
2. A final plan complying with the requirements for plans as set out in the Manual of Survey Practice Volume 1 (Plan Presentation and guidelines) issued by the registrar General to be lodged with the Development Assessment Commission for Land Division Certificate purposes.
Item 8.1
Attachment A Application Plan of Division & Proposed LMA.
Item 8.1
Attachment B Combined Statement of Support & Effect
Item 8.1
Attachment C Representations received via Public Notification & Applicant’s response to Representations.
Item 8.1
Attachment D State Agency Responses received via the EDALA system.
KANGAROO ISLAND COUNCIL
Minutes of the Council Assessment Panel Meeting held at the Kangaroo Island Council Chambers, Dauncey Street, Kingscote on 16 December 2019 at 1:30 pm
OPENING
Chairperson Jayne Bates declared the 16 December 2019 meeting of the Council Assessment Panel open at 1:30pm.
PRESENT
Jayne Bates (Chairperson), Cr. Peter Denholm, Roger Hartley, David Ellis, Jackie Kelly, Aaron Wilksch (Manager - Development & Environmental Services) & Monika Matej (Development & Environmental Services)
1.0 APOLOGIES
Nil
2.0 CONFLICT OF INTEREST DECLARATION
Roger Hartley declared conflict of interest re Item 8.1 – as the owner / applicant
3.0 REPRESENTATIONS
Nil
4.0 CAP MINUTES OF MEETING HELD 1 JULY 2019 (YELLOW PAGES)
That the Minutes of the Council Assessment Panel Meeting held on 1 JULY 2019 be confirmed.
Moved: Jackie Kelly Seconded: David Ellis CARRIED
5.0 BUSINESS ARISING FROM MINUTES OF 1 JULY 2019
Nil
6.0 DEVELOPMENT SERVICES DEPARTMENT REPORTS
That the Department and Environmental Services Reports be received.
Recommendation: That the Development & Environmental Services Department Reports be received.
Moved: Peter Denholm Seconded: Jackie Kelly CARRIED
7.0 DEVELOPMENT SERVICES DEPARTMENT APPLICATIONS JUNE - NOVEMBER 2019
Register of planning and building applications report tabled for Council Assessment Panel information. RECOMMENDATION
That the report detailing applications approved and / or being processed under delegated authority by the Development and Environmental Services Department be received and noted.
Moved: Peter Denholm Seconded: David Ellis CARRIED
8.0 APPLICATIONS REQUIRING COMMITTEE DECISION Individual reports are attached hereabouts for committee decision.
∑ 1.35pm Roger Hartley declared interest in Item 8.1 and vacated his position on panel. ∑ Roger Hartley gave addressed the Panel as the applicant regarding withdrawn representation. ∑ 1.38pm Roger Hartley vacated Chambers.
ITEM 8.1
RECOMMENDATION
The Development Assessment Panel resolve (i) that the development application is not at serious variance with the Kangaroo Island Development Plan consolidated 17 September 2015, and (ii) the panel resolve to approve Land Division Application 520/D004/19 for division of 1 allotment into 2 allotments, at Lot 105 DP12638 in the Hundred of Haines for Mr. R.E.R. Hartley c/- Weber Frankiw & Associates Pty. Ltd. subject to Council’s favourable resolution to accept the proposed amendment / replacement Section 57A Land Management Agreement, and its deposit with the Land Titles Office, before further proceeding to seek concurrence of the State Commission Assessment Panel (SCAP) subject to (but not limited) to the following conditions of consent:
Kangaroo Island Council Planning & Land Division Conditions:
1. The Development herein approved must, except as varied by the conditions of consent, be carried out in accordance with the approved plans prepared by Weber Frankiw & Associates Pty. Ltd. marked ‘CAD Ref: 232108div’ and details to the satisfaction of Council.
Note - You have a right of appeal against the conditions which have been imposed on this Development Plan consent or Development Approval.
Such an appeal must be lodged at the Environment, Resources and Development Court within two months of the day on which you receive this notice or such longer time as the Court may allow.
Please contact the Court if you wish to appeal. The Court is located in the Sir Samuel Way Building, Victoria Square, Adelaide, Ph.: 8204 0300.
State Commission Assessment Panel – Land Division Conditions:
2. A final plan complying with the requirements for plans as set out in the Manual of Survey Practice Volume 1 (Plan Presentation and guidelines) issued by the registrar General to be lodged with the Development Assessment Commission for Land Division Certificate purposes.
Moved: Jackie Kelly Seconded: Peter Denholm CARRIED
RECOMMENDATION:
That the panel make recommendation to Council that it enters the proposed LMA (substituting the existing LMA) for Mr. R.A.R. Hartley in respect of his land at Lot 105 DP12638 Hundred of Haines in association with Land Division Application 520/D004/19.
Moved: Jackie Kelly Seconded: David Ellis CARRIED
∑ Roger Hartley re-entered Chambers at 1.58pm
ITEM 8.2
RECOMMENDATION
The Council Assessment Panel (i) resolve that the Development Application is not seriously at variance with the Kangaroo Island Development Plan consolidated 17 September 2015, and (ii) the panel resolve to approve Development Application 520/157/19 for the establishment of a shed at Allotment DP66109, 72 Summervista Boulevard in the Hundred of Menzies, identified in CT 5928/322. By the applicant and owner Mr. Patrick Smith, subject to (but not limited to) the following conditions of consent.
Kangaroo Island Council – Planning Conditions:
1. The Development herein approved must, except as varied by the condition of consent be carried out in accordance with the approved plans and details to the satisfaction of Council.
2. The building shall not be used for any purpose other than that described on this notification.
3. All excess stormwater from roofed buildings, sealed areas and tank overflows shall be discharged within the allotment boundaries so that no erosion, nuisance or inconvenience will occur off-site.
4. There shall be no human habitation of the shed herein approved. Human habitation includes overnight and weekend accommodation. Changing the use of a building or structure without approval is a contravention of the Development Act 1993, and can result in legal action under the Act, and may incur significant penalty.
5. The development shall not impair the amenity of nearby areas by way of nuisance or inconvenience to neighbouring properties. In this regard, the site must be kept in a neat and tidy manner at all times and no unreasonable disturbance or pollution to the amenity of the locality shall be created by way of dust, pollution, noise, electrical interference or other means.
6. The building must not be used as a commercial workshop of for the purpose of storing machinery for use within the shed. Only those activities normally associated with domestic shed may be undertaken provided such activities do not impair the residential amenity of the locality.
7. Rainwater tanks shall be situated immediately adjacent to the northern end wall of the shed in accordance with the approved plans and details.
Note - Note - Building Site Fire Safety Requirements The applicant/owner shall ensure that there is adequate water supply and hoses or prescribed water spray fire fighting implement in accordance with Regulation 41 of the Fire and Emergency Services Act 2005 available on site during the performance of building work in order to prevent the outbreak of fire at the premises, or the spread of fire from the premises Pursuant to Subdivision 6 of the Fire and Emergency Services Act 2005. Maximum Penalty $10,000.00 Note - You have a right of appeal against the conditions which have been imposed on this provisional Development Plan consent or Development Approval. Such an appeal must be lodged at the Environment, Resources and Development Court within two months of the day on which you receive this notice or such longer time as the Court may allow. Please contact the Court if you wish to appeal. The Court is located in the Sir Samuel Way Building, Victoria Square, Adelaide, Ph. 8204 0300. Note - Class 10 Notification - Regulation 74 A person undertaking building work (Class 10) must give Council one business day notice of commencement of the building work.
Moved: David Ellis Seconded: Roger Hartley CARRIED
ITEM 8.3
RECOMMENDATION
The Development Assessment Panel resolve (i) that the development application is not at serious variance with the Kangaroo Island Development Plan consolidated 17 September 2015, and (ii) the panel resolve to approve Land Division Application 520/D011/19 for realignment of 2 allotments into 2 allotments, at Allotment 1 & 2 on DP69691 Hundred of Menzies for Messrs J. & B. Turner & G. Turner, c/- Weber Frankiw & Associates P/L and to proceed to seek concurrence of the State Commission Assessment Panel (SCAP) subject to (but not limited) to the following conditions of consent:
Kangaroo Island Council Planning Conditions:
1. The Development herein approved must, except as varied by the conditions of consent, be carried out in accordance with the approved plans prepared by Weber Frankiw & Associates P/L. marked ‘CAD Ref: 293206div.’ and details to the satisfaction of Council.
Note - You have a right of appeal against the conditions which have been imposed on this Development Plan consent or Development Approval.
Such an appeal must be lodged at the Environment, Resources and Development Court within two months of the day on which you receive this notice or such longer time as the Court may allow.
Please contact the Court if you wish to appeal. The Court is located in the Sir Samuel Way Building, Victoria Square, Adelaide, Ph.: 8204 0300.
State Commission Assessment Panel – Land Division Conditions:
3. A final plan complying with the requirements for plans as set out in the Manual of Survey Practice Volume 1 (Plan Presentation and guidelines) issued by the registrar General to be lodged with the Development Assessment Commission for Land Division Certificate purposes.
Moved: David Ellis Seconded: Jackie Kelly CARRIED ITEM 8.4
RECOMMENDATION
The Council Assessment Panel (i) resolve that the Development Application is not seriously at variance with the Kangaroo Island Development Plan consolidated 17 September 2015, and (ii) the panel resolve to approve Development Application 520/149/19 for the establishment of the proposed 3 signs located at Allotment DP40022, Willsons Road, in CT 5343/329 and Allotment 102 Deposited Plan 40022, South Coast Road, identified in CT 6091/458 in the Hundred of MacGillivray by the applicant and owner Mr. L & Mrs.B Turner, and to proceed to seek concurrence of the State Commission Assessment Panel (SCAP) subject to (but not limited) to the following conditions of consent:
Kangaroo Island Council – Planning Conditions:
1. The Development herein approved must, except as varied by the condition of consent be carried out in accordance with the approved plans and details to the satisfaction of Council.
2. The building shall not be used for any purpose other than that described on this notification.
3. The site must be kept in a neat and tidy manner at all times.
4. The sign and its supporting structure shall at all times be kept in good repair and condition to the reasonable satisfaction of Council.
5. No sign shall be placed on the site that moves, flashes, reflects light so as to be an undue distraction to motorists or is internally illuminated.
6. The signage herein approved shall be maintained at all times in association with, and for the benefit of the business operations carried out upon the subject land, and shall be removed upon any cessation of the business operation on the subject land, or be caused to be removed in accordance with Section 74 of the Act, where no longer associated with the carrying on of business.
Note - You have a right of appeal against the conditions which have been imposed on this provisional Development Plan consent or Development Approval. Such an appeal must be lodged at the Environment, Resources and Development Court within two months of the day on which you receive this notice or such longer time as the Court may allow. Please contact the Court if you wish to appeal. The Court is located in the Sir Samuel Way Building, Victoria Square, Adelaide, Ph. 8204 0300.
Note - Class 10 Notification - Regulation 74 A person undertaking building work (Class 10) must give Council one business day notice of commencement of the building work.
Moved: Peter Denholm Seconded: Roger Hartley CARRIED
9.0 LAND DIVISION APPLICATIONS – APPROVED UNDER DELEGATED AUTHORITY (GREEN PAGES)
JUNE-NOVEMBER 2019 10.0 GENERAL BUSINESS
Verbal updates provided on the following:
10.1 Submission of Planning & design Code to SCAP 10.2 Response to SCAP on Smith Bay EIS Addendum 10.3 Refusal by Council of Amadio LMA – Emu Bay 10.4 Accreditation
11.0 CONFIDENTIAL REPORTS
NIL
NOTE – Pursuant to Section 56A (12) of the Development Act 1993 the Panel reserve the right to move proceedings ‘in camera’ for deliberations of Development Applications to be considered under Section 11.0 of this Agenda.
NIL
CLOSURE
The Chairperson Jayne Bates declared the meeting closed AT 2.36pm
The minutes of the 16 December 2019 Council Assessment Panel will be confirmed at the next Council Assessment Panel meeting.
Signed………………………………. Chairperson Jayne Bates
Ref: 2016-0297
12 September 2019 Suite 12 154 Fullarton Road ROSE PARK SA 5067 Ms Lesley Saunders 08 8333 7999 Development & Environmental Services www.urps.com.au Kangaroo Island Council ABN 55 640 546 010 By email: [email protected]
Dear Lesley
Response to Representations for DA 520/D004/19 – Land Division 1 into 2
Introduction
I act for Roger and Hartley who is the applicant in this matter. I have been requested to review and provide a response to the representations received by the Kangaroo Island Council.
Three written representations were received from the following representors as follows:
(A) D. Sleeman 380 Muston Road, Pelican Lagoon (B) M. Swan 118 Muston Road, Muston (C) H. Welz PO Box 49 American River
All of the issues raised by the representors have been previously addressed in the combined Statement of Support/Effect. For detailed discussion of the planning issues associated with this application please refer to that report. At the same time, I have responded to the various planning concerns raised by the representors under various common themes below.
Land Division Not Contemplated
It is acknowledged that land division creating additional allotment is listed as a non-complying form of development in the Coastal Conservation Zone. It is also acknowledged that PDC 13 in the Zone states that land should not be divided if it creates additional allotments. This does not mean, however, that the proposed land division is inappropriate.
The Applicant engaged Botten Levison Lawyers to provide legal advice in relation to the proposed application (part of initial lodgement documentation). This legal advice highlights that:
• The Courts have made it clear that the Development Plan is ultimately a document in the nature of guidelines rather than being a mandatory legal statute; • A planning authority, when assessing the merits of a proposal against the relevant provisions of the Development Plan, cannot ignore the historical and factual context in which the development is proposed to occur; and
shaping great communities
• PDC 2 of the Coastal Conservation Zone states that non-complying development is “…generally inappropriate and not acceptable unless it can be demonstrated to not undermine the objectives and principles of the Development Plan i.e. the particular circumstances of a proposal may make it appropriate where it would otherwise be inappropriate. A critical question in the assessment process is whether the proposal will in a practical sense cause any planning harm. Botten Levinson’s written advice refers to an instructive case relating to a non-complying land division in Cherry Gardens. In that matter, the Supreme Court found that:
“Nobody has been able to suggest that any harm, in planning terms, would flow from the approval of the subdivision…there would be no intensification or greater density of urban-type development in a rural area… (and to refuse such an application) is an error in principle to give such literal effect to that principle in the circumstances of this case”.
The proposed land division in this instance does not cause any planning harm because:
• A dwelling already exists on the land and the land division will not change that. • Tourist accommodation already exists on the land and the land division will not change that. • The dwelling and tourist accommodation are already separately occupied and the land division will not change that. • The dwelling and tourist accommodation already have vehicular and pedestriain access and the land division will not change that. • The dwelling and tourist accommodation already function independently of one another, including in respect to services such as water, waste, vehicular access and electricity and the land division will not change that. • The proposed land division will not lead to intensification of the existing use and no additional infrastructure is required. • No native vegetation will be removed as a result of the land division. • The land has no frontage to the coast or to a coastal reserve. • The dwelling and tourist accommodation are not on the coastal dune system, tidal wetlands, mangroves or other environmentally sensitive areas. • The land is not use for primary production purposes so the land division will not fragment primary production land.
Precedent
The proposed land division is not undesirable for all of the reasons established in the combined Statement of Intent/Effect.
It is well-established in case law that there is no planning doctrine of precedent, so approval of this application does not establish a precedent for other applications on Kangaroo Island or elsewhere. A copy of written legal advice from Botten Levinson confirming this principle was provided as part of the application documentation, quoting the relevant Supreme Court judgements, which indicate that:
“…each case must be considered on its own facts having regard to the relevant principles. It is simply not correct to assert… that to grant consent in this case is “the thin edge of the wedge.”
And
H: \Synergy\Projects\2016\2016-0297 Muston Road Kangaroo Island\Development 2 Application\Response to Reps YYMMDD\C001_V3_190912_Response to Representations.docx
“Although there might be some political pressure brought to bear on a planning authority to grant a similar application in some other location as a result of its having approved an earlier application, there is no planning doctrine of precedent as such, namely that because one development has been approved so should another…each case must be considered on its own merits by weighing the benefits and detriments of the application by reference to the Development Plan.”
Risk of Vegetation Clearance
Since the current owners purchased the site in 1991, they have undertaken significant native revegetation of much of the site that was previously used for grazing. In his environmental impact assessment accompanying this application, Adjunct Professor Rob Thomas has advised that this has changed the site from “marginal agricultural land to an environment that is well on the way to its original status”.
Native vegetation on the property is in good health and shows no signs of disease or degeneration and there has been active weed and erosion control. The native vegetation on the site provides habitat for native fauna including wallabies, kangaroos, a range of birds, bats, possums, owls, reptiles etc. There has also been an extensive feral cat study (KI NRM) and eradication program on the site, which is being continued and expanded by the Applicant.
The last thing the Applicant wants to do is threaten the native revegetation work they have undertaken over the past 28 years.
It is emphasised that the proposed land division does not involve any clearance of native vegetation.
While the proposed line of division sits over a small portion of the native vegetation, it follows the existing access tracks to each building. The result of this means that no native vegetation will be removed to create access tracks into the properties.
Native vegetation is also protected via the accompanying Land Management Agreement i.e. the LMA ensures that there will be no additional land division (beyond boundary realignment), nor fencing that would otherwise provide opportunity for clearance of native vegetation either side of such fencing as of right. This is an additional layer of statutory protection of native vegetation beyond the continuing requirements of the Native Vegetation Act.
This satisfies Objective 1 of the Coastal Conservation Zone which seeks to enhance and conserve the natural features of the coast including visual amenity, landforms, fauna and flora. The proposal also satisfies Coastal Areas PDC 23 and more broadly Natural Resources PDC 1, 27, 28 and Land Division PDC 3 with regard to native vegetation.
Land Management Agreement and Potential Future Development
The proposed LMA is a legal agreement between the Council and any owner/s of this land. It has been drafted in a way to be very clear about the legal obligations of any owner/s of the land which include:
1. No additional land division (beyond boundary realignment).
2. No additional fencing that would otherwise provide opportunity for clearance of native vegetation either side of such fencing as of right.
H: \Synergy\Projects\2016\2016-0297 Muston Road Kangaroo Island\Development 3 Application\Response to Reps YYMMDD\C001_V3_190912_Response to Representations.docx
3. No additional, separated tourist accommodation that may otherwise compromise native vegetation/habitat.
These are significant, legally enforceable requirements on any owner/s of the land beyond the stringent development guidelines of the Kangaroo Island Development Plan.
While the LMA does not prevent the lodgement of future Development Applications for ancillary buildings, such proposals will be subject to detailed assessment against the relevant provisions of the Kangaroo Island Development Plan (as they would if the land were to remain under one title).
Use of the Existing Buildings
The proposal comprises a Torrens Title land division of one allotment into two. It does not change the use of the existing buildings which are as follows:
• Proposed Allotment 20 is to comprise the existing dwelling and outbuilding. • Proposed Allotment 21 is to comprise the existing tourist accommodation building.
The two main buildings are some 400m apart. Both buildings have existing independent vehicular access, on-site waste control systems, water and power.
Tourist Accommodation Could be Used as a Dwelling
The approved dwelling and tourist accommodation on the subject site will continue to be used in accordance with the existing approvals.
It is important to note that Advisory Notice – Building 04/16 issued by the Department of Planning, Transport and Infrastructure states that:
“…a dwelling will remain a dwelling if it is occupied sporadically; let out during holiday periods to short term occupants; let for short term use; or if the owner lives overseas or interstate and uses it occasionally and then for relatively short periods. Unless development is undertaken to physically alter the dwelling such that it is no longer a dwelling, it remains a dwelling”.
The Applicant stays in the Tourist Accommodation when on holidays. This does not change its fundamental use as Tourist Accommodation.
The Applicant also lets out the dwelling. Again, this does not change its fundamental use as a dwelling.
Potential Increase in Rates for Surrounding Land
The approval of the proposed land division does not change the development potential of surrounding land (there is no precedent in planning law as explained previously), and is will have no impact on the Council rates applied to surrounding land.
Changes to Bushfire Safety
The proposed land division does not change the use or nature of existing buildings on the subject site and will have no impact on bushfire safety requirements which are already complied with.
H: \Synergy\Projects\2016\2016-0297 Muston Road Kangaroo Island\Development 4 Application\Response to Reps YYMMDD\C001_V3_190912_Response to Representations.docx
Two Existing Driveways
The two driveways on the subject land leading to the dwelling and the tourist accommodation do not breach any previous Development Approval.
Conclusion
Information provided in this letter responds to the concerns of the representors and establishes, in association with the Statement of Support/Effect, that the proposed land division satisfies the key provisions of the Kangaroo Island Development Plan.
Importantly, the proposed land division and accompanying LMA satisfy the following key objectives of the Coastal Conservation Zone:
1. Native vegetation is protected via the accompanying Land Management Agreement i.e. the LMA ensures that:
- there will be no additional land division (beyond boundary realignment), on top of such land division already being designated as a non-complying form of development;
- there will be no fencing that would otherwise provide opportunity for clearance of native vegetation either side of such fencing as of right; and
- there will be no additional, separated tourist accommodation that may otherwise compromise native vegetation/habitat (tourist accommodation would otherwise be subject to the on-merit assessment process under the current Kangaroo Island Development Plan).
2. Survival of established and successful tourist accommodation which is an envisaged land use in the Desired Character statement and Principle of Development Control 1 of the Coastal Conservation Zone.
In this context, I look forward to your support of the application and the Council Assessment Panel (CAP) granting Development Plan Consent. I wish to confirm that I will appear at the CAP meeting on behalf of the applicant.
In the meantime, if you have any questions please feel free to contact me on 8333 7999.
Yours sincerely
Marcus Rolfe MPIA (Fellow) Director
H: \Synergy\Projects\2016\2016-0297 Muston Road Kangaroo Island\Development 5 Application\Response to Reps YYMMDD\C001_V3_190912_Response to Representations.docx
Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
Roger Hartley Land Division (1 into 2 allotments) Lot 105 Muston Road, Pelican Lagoon Kangaroo Island
520/D012/16
TABLE OF CONTENTS
PAGE NO AGENDA REPORT 2-10 APPENDIX ONE – DEVELOPMENT PLAN PROVISIONS 11-19 ATTACHMENTS 1: AERIAL PHOTO 20 2: ZONE MAPS 21-22 3: PLAN OF DIVISION 23 4: DA FORM + CERTIFICATE OF TITLE 24-30 5: SUPPORTING INFORMATION 31-56 6: AGENCY ADVICE 57-68 7: COUNCIL REPORT & DAP MINUTES 69-94 8: PREVIOUS COUNCIL REPORT – DA 520/064/10 95-109
1 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
OVERVIEW
Application No 520/D012/16 Applicant Roger Hartley Proposal Land Division (1 into 2 allotments) Subject Land Lot 105 Muston Road, Pelican Lagoon, Kangaroo Island Zone/Policy Area Coastal Conservation Zone Relevant Authority Kangaroo Island Council Lodgement Date 12 October 2016 Council Kangaroo Island Council Development Plan 17 September 2015 Type of Development Non-Complying Public Notification Category 3 Representations Nil Referral Agencies DEWNR (CPB), SAPN, SAW, NVC Report Author Simon Neldner RECOMMENDATION NOT CONCUR
EXECUTIVE SUMMARY
The proposal seeks the division of an existing allotment to create two new allotments within the Coastal Conservation Zone at Pelican Lagoon, Kangaroo Island.
This zone includes undeveloped and natural parts of the coast that include sensitive coastal features and land subject to coastal processes. The role of this zone is to safeguard areas of environmental significance on the coast and to protect development from coastal hazards, such as flooding, erosion and acid sulfate soils. Planning policies seek to actively restrict the further division of land in the zone, with land division (subject to limited exceptions) a non-complying form of development.
The rationale for the division is to provide separate tenure for an existing residence and tourism accommodation venture (in the form of a single-storey building), the latter approved in 2012 on the basis of its relationship with the existing residence. Neither of the existing land uses requires a land division to continue to operate – this is a lifestyle and commercial decision of the current landowners to sell their tourism business.
Both developments were approved and established before approval of the Kangaroo Island Sustainable Futures DPA (Ministerial) on 19 February 2014. Whilst changes to planning policy sought to enhance opportunities for tourist accommodation and associated facilities in the Coastal Conservation Zone, the restriction on the further subdivision of coastal land was maintained.
The proposal is finely balanced – noting the land uses already exist – however approval of the development would enhance expectations and further fragment coastal land, whilst being inconsistent with the policy framework, and if applied to current developments in the zone (or similar developments in the future) would further erode these provisions and fragment the pattern of land ownership. On this basis, the request for concurrence should be withheld.
ASSESSMENT REPORT
1. DESCRIPTION OF PROPOSAL
Application details are contained in the ATTACHMENTS.
2 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
The proposal is for the division of an existing allotment into two new allotments of 13.37ha and 24.06ha (respectively) within the Coastal Conservation Zone. Proposed Allotment 20 contains an existing dwelling and outbuilding occupied by the current landowner. Proposed Allotment 21 contains an existing tourism accommodation building.
The applicant has provided a detailed Statement of Effect (prepared by URPS) and the Council DAP considered a comprehensive staff planning report – these documents – and the proposal plan provide the full background to the proposal.
2. SITE AND LOCALITY
2.1 Site Description
The subject land comprises a single allotment with an area of 37.4ha, and is approximately 5.4km south-west of American River and 1km from Pennington Bay to the south. The land has the following attributes:
• A frontage of 790m to Hog Bay Road (sealed). • A frontage 850m to Muston Road (unsealed).
The development site consists of 1 allotment, described as follows:
Lot No Street Suburb Hundred Title Reference A105, Muston Road Pelican Dudley CT 5282/685 DP12638 Lagoon
The site currently contains:
• A dwelling and outbuilding established in 1985 and a building utilised for short-term tourism accommodation established in 2012. Road access is available to both developments from Muston Road.
3 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
The tourism accommodation development is known as “Kestral Downs” (http://www.kestreldowns.com. The short-term holiday home has been operating for approximately 5 years, with an average occupancy rate of 80%.
2.2 Locality
The locality is defined by Pelican Lagoon to the east, with the higher elevation of the land affording views across the lagoon. The adjoining allotment to the west is within the Primary Production Zone. The subject land is vegetated, with cleared areas and existing buildings and access tracks.
The Encounter Marine Park extends into the waters of Pelican Lagoon.
2.3 Land Ownership
The subject land (A105) is currently owned by the applicant.
3. BACKGROUND
The tourism accommodation development was approved by the Kangaroo Island Council DAP in 2010 (DA 520/064/10). At the time, the subject land was within the Coastal Zone (Kangaroo Island Development Plan, Consolidated 28 May 2009), and processed on-merit as a Category 2 development.
The Coast Protection Board recommended refusal of this application. Initial objections from DTEI (Transport SA) and CFS were resolved. Notwithstanding DEWNRs advice, the Council DAP (and officer’s report) found that the development was sufficiently in accordance with the objectives and principles of the zone and overall Development Plan to be granted consent subject to conditions.
However, it is noted that at the time of the assessment, the development was defined as a holiday house, being for the purposes of tourist accommodation, ancillary to the existing dwelling on the site, which is utilised by the owners on a private basis. Some weight in the assessment – and ultimate approval - was placed on the development being subordinate to the existing dwelling on the land.
This was outlined in the officers DAP report: the proposed development seeks to establish a new tourist accommodation building which will be used in conjunction with an existing detached dwelling used as the landowners private residence ….. (and) …… the development does not purport division of land or development requiring construction of infrastructure to enable the land use to occur, and in this respect the development presents as being economically sound.
At the time, the officer’s recommendation sought to include a condition to restrict access to Muston Road, and instead rely on the existing driveway that serviced the dwelling on the land (in order to minimise native vegetation loss). This was recommended Condition 10, but does not appear to have been adopted by the Panel and/or enacted by the applicant.
4. COUNCIL COMMENTS or TECHNICAL ADVICE
4.1 Kangaroo Island Council
The Kangaroo Island Development Assessment Panel considered the application at its meeting held on 13 February 2017 and resolved to grant Development Plan consent subject to one condition, the favourable consideration of a Land Management Agreement and the concurrence of the Development Assessment Commission. 4 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
5. STATUTORY REFERRAL BODY COMMENTS
Coast Protection Board: Refusal recommended. Extent of departure from CPB policies in respect to orderly development, creation of new allotments in coastal areas, and the protection of sensitive coastal landscapes and vegetation – with the potential to perpetuate the issue of incremental intensification of development within this sensitive coastal landscape.
SA Water Corporation: No requirements.
Native Vegetation Council: No objection.
SA Power Networks: No objection. Easements on the site.
6. PUBLIC NOTIFICATION
The proposal was notified as a Category 3 development. No representations were received by the Council during the notification period.
7. POLICY OVERVIEW
The subject site is within the Coastal Conservation Zone as described within the Kangaroo Island Development Plan (Consolidated 17 September 2015). Relevant planning policies are contained in Appendix One and summarised below.
7.1 Zone
The Coastal Conservation Zone defines the coastal areas of high landscape or conservation value and incorporates policy to ensure the preservation of the coastal landscape resource. The following forms of development are anticipated in the zone: coastal protection works, conservation works, interpretive signage and facilities, tourism/visitor facilities, and tourist accommodation.
The provision of facilities, including tourist accommodation and recreational facilities, may be established in the zone provided they are sited and designed in a manner that is subservient to the natural and coastal environment and adverse impact on natural features, landscapes, habitats and cultural assets is minimised.
It is envisaged that development is not undertaken on coastal dune systems, tidal wetlands, mangroves, sand dunes or other environmentally sensitive areas. Proposals should also minimise vehicle access points to the area that is the subject of the development
Land should not be divided except where: no additional allotments are created wholly or partly within the zone; and there is no increase in the number of allotments with direct access to the coast or a reserve including by creation of land under rights of way or community titles.
Land Division is a non-complying form of development, except where no additional allotments are created wholly or within the zone; it results in allotments of greater than 2 hectares; and there is no increase in the number of allotments with frontage or direct access to the coast.
Development listed as non-complying is generally inappropriate and not acceptable unless it can be demonstrated that it does not undermine the objectives and principles of the Development Plan 5 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
Figure 3 – Zoning Map
7.2 Council Wide
There are a range of Council Wide provisions in the Development Plan with respect to this division of land. For this application, these would include coastal areas, land division, orderly and sustainable development, tourism development, and transportation and access.
7.3 Overlays
The subject land is located within a High Bushfire Risk area (refer to BPA Map KI/10: Bushfire Risk).
Applicant’s Rationale
In support of the application the applicant has submitted the following:
. The land uses are already established (and will not change). . There will be no impact on primary production or coastal land. . No native vegetation requires removal (being the subject of an LMA which will be registered against the newly created titles). . No new infrastructure or services are required. Each allotment has independent access, water storage and waste control systems. . Each development has access to water storage of hazard protection (and appropriate turnaround areas for emergency service access).
8. PLANNING ASSESSMENT
6 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
The application has been assessed against the relevant provisions of the Kangaroo Island Council Development Plan, which are contained in Appendix One.
Application Summary
Development Proposed Guideline Comment Plan Guideline Achieved New No new One additional YES New allotments Allotments allotments in the allotments NO are non-complying zone PARTIAL in the zone.
Land Use Tourism Existing – but as YES Approved under Accommodation a separate land NO previous policies use would be a PARTIAL as a merit merit form of development. development if proposed today.
Dwelling Existing – but as YES Approved under a separate land NO previous policies use would be a PARTIAL as a merit non-complying development. form of development if proposed today.
Setback Provision of a The minimum YES No comment. 100m setback to setback to the NO tourism northern PARTIAL accommodation boundary is facilities from 108m. other land.
Services and Efficient Each YES Each development Infrastructure provision of development has NO is independently services its own power, PARTIAL serviced. water and waste control system
Road access Access to a Each allotment YES Separate driveway public road has access to NO access is provided. Muston Road. PARTIAL
Native Land boundaries The proposed YES An LMA has been Vegetation should be located common land NO proposed to to minimise boundary would PARTIAL restrict the clearance traverse intact installation of a impacts vegetation. new fence line and minimise impacts.
Both the applicant’s consultant reports and the Council DAP report provide a detailed overview and assessment of the proposal. This concurrence report only seeks to provide a higher level overview, and not re-run the Council’s assessment.
Non-complying development
Planning policies seek to actively restrict the creation of new allotments in the Coastal Conservation Zone. PDC13 is explicit - Land should not be divided except where: (a) no additional allotments are created wholly or partly within the zone (Does not meet); and there is no increase in the number of allotments with direct access to the 7 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
coast (Not applicable) or a reserve including by creation of land under rights of way or community titles (Does not apply – as the land is separated from the coastal reserve by Muston Road). A non-complying categorisation is activated when an additional allotment is proposed – either wholly or partly in the zone - or when a boundary realignment seeks to create an allotment of less than 2 hectares or increases the number of allotments with frontage or direct frontage to the coast.
Rationale for Proposal
The applicant has stated (through their planning consultant) that due to health reasons and the on-going need to maintain the tourism accommodation business, the holiday home needs to be sold. The creation of a separate allotment would allow this to happen, with the landowner planning to reside at the existing residence (on its own allotment). As the dwelling and tourism accommodation – in their view – currently function independently of one another, the only change will be ownership rights.
In the alternative, it could equally be said that the two developments are linked, being located on the same land, and managed by the same owner.
Indeed, the establishment of the tourism accommodation venture was previously approved on this basis (to add value / diversify income / allow for the development to be locally serviced and managed). That personal or business circumstances have changed is not a reason – from a planning policy perspective – to depart from a key objective of this plan, that is, to restrict the further subdivision of land within the Coastal Conservation Zone.
As noted in the Coast Protection Board’s advice, there is nothing to preclude the accommodation facility being managed by another person or business, or the current land being sold as a single development.
Policy Framework
It is notable that in the recent review and implementation of planning policies on Kangaroo Island – reference being made to the Kangaroo Island Sustainable Futures DPA (Ministerial) gazetted on 19 February 2014 – there is scant mention of land division policies or a focus to change them, only that the ‘further fragmentation of land is not envisaged in the Conservation and Coastal Conservation Zones’.
Whilst the plan seeks to encourage nature based tourism and accommodation – enabling existing owners of land to develop their land for this purpose - it does not envisage the separation of such uses onto their own allotments (noting that there are no related exemptions provided in the non-complying table).
If approved, the proposal would lend support – or at the very least a heightened expectation - for other landowners (that operate tourism accommodation developments), or where such developments are approved in the future, to seek the creation of a separate allotment in the zone.
Such outcomes – on an individual or cumulative basis – can progressively undermine established planning policy, with the potential for greater impacts in those zones within more sensitive environments, where the level of protection afforded is greater. If the guidance is not applied or enforced, what is the point of the policy?
8 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
Coastal Development
The subject land is not subject to coastal process – such as flood or erosion risk – whilst public access to the coast is not compromised. The advice of the Coast Protection Board is also noted in respect to minimal impacts in relation to landform stability and sand drift hazard, and acknowledges efforts to minimise vegetation clearance – although it is also not unreasonable to conclude that the further fragmentation of land into additional allotments can be detrimental to conservation values, with the Prospect Hill cell being ranked highly (11 out of 65 coastal study cells) under the Kangaroo Island (KI) Coastal Lands Assessment completed in 2017.
Bushfire Risk
The subject land is within a High Bushfire hazard area, however as matters of access (i.e. turning circle) and water storage were considered and conditioned with the previous tourist accommodation land use application, then these matters do not require reconsideration.
Site Access, Maneuverability and Carparking
The tourism accommodation development will utilise an existing unsealed driveway to Muston Road, whilst independent access is also available to the dwelling site on the northern portion of the land. Sufficient carparking and manoeuvring areas are available on both proposed allotments to service both existing developments.
Native Vegetation
One of the main concerns with both coastal and rural subdivision is the location or alignment of new boundaries vis-à-vis existing native vegetation (and the expectation that new fences and land clearance, both for construction, maintenance and to reduce fuel loads, would result in vegetation loss – particularly through intact stratum and/or more sensitive environments.
The applicant has responded to these issues with a draft Land Management Agreement, essentially seeking to restrict via a management plan (registered against the new allotments) the installation of new boundary fencing and any associated removal of native vegetation.
Council Report
The Council undertook the appropriate statutory steps in the processing of the development application. The officer’s report provided a detailed overview of the land and its development history, and undertook an assessment of the proposal against the relevant provisions of the Kangaroo Island Development Plan.
The adoption of a Land Management Agreement to control for fencing and clearance impacts is also acknowledged – although the utilisation of a management plan to control a type of development (and mitigate potential impacts) not envisaged by the planning scheme is queried (i.e. whether it is necessary and appropriate).
9. CONCLUSION
The application seeks to create an additional allotment within a zone that strongly discourages the further fragmentation of coastal land. The existing use of the land for a private dwelling and holiday home (in the form of short-term tourism accommodation) is acknowledged, and may not (by itself) result in significant or additional impacts, neither 9 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
does the division of these land uses onto separate allotments particularly advance the objectives of the zone, nor display special merit as to warrant approval.
The key objectives of the Coastal Conservation Zone – to protect scenic landscapes and fragile environments – can only be protected and enhanced through the imposition and consistent application of more restrictive policies that on the one hand, enable existing coastal land holdings to be sensitively developed to achieve strategic economic goals (in this instance tourism accommodation), but on the other, limit such rights to current allotments (and their respective owners), and that no additional allotments should be created, based on acknowledgement that development rights may be exhausted.
Whilst it is noted that Council has negotiated an LMA to remove the need for boundary fencing and a further restriction on land division, the former was an impact to be mitigated (and would not be required if the land division did not proceed), and the latter unnecessary (as LMAs should not act as a policy substitute where guidelines already exist – i.e. non-complying status). In the absence of effective long-term policing of voluntary agreements, and the underlying pressure to develop the most sensitive areas, caution is recommended – unless and until the state revisits the coastal planning framework.
In this case, the current landowner was able to develop their land holding to the extent the Development Plan allowed (at the time of lodgement), but then as now, the plan sought to restrict the further fragmentation of coastal land, and maintain the size and integrity of such holdings to support broader conservation objectives. In considering this application, a planning authority should take a wider and longer view, and weigh-up how the proposal advances the key objectives of the zone, and how preconditions for future development might be established – either negatively or positively.
In the assessment report provided to Council’s DAP, the planning officer’s report acknowledges that the proposal is finely balanced, and this conclusion is endorsed, however the policy ‘bar’ in the Coastal Conservation Zone is deliberately set at a high level (for long-standing policy reasons), where the current proposal falls short. Concurrence should therefore be withheld. Alternatively, if the Commission is supportive of the proposal – on the basis the uses are existing and there is a degree of security regarding the on-going management of the land which will bring little change in the appearance of the land - then the Council recommendation incorporates relevant conditions and requirements of approval.
10. RECOMMENDATION
It is recommended that the Development Assessment Commission:
1) RESOLVE that the Development Assessment Commission is not satisfied that the proposal to further divide land within the Coastal Conservation Zone is sufficiently consistent with the intent of zone provisions that seek to limit such development.
2) RESOLVE that the Development Assessment Commission not concur with the decision of the Kangaroo Island Council to grant Development Plan consent to the division of land (1 into 2 allotments) under DA 520/D012/16 by Roger Hartley at Muston Road, Pelican Lagoon.
SIMON NELDNER TEAM LEADER – DEVELOPMENT ASSESSMENT PLANNING AND DEVELOPMENT (DPTI)
10 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
APPENDIX ONE - PLANNING POLICIES
The Objectives and Principles of Development Control in the Development Plan most relevant to the assessment of the application are outlined as follows. These are contained in the Kangaroo Island Development Plan (Consolidated 17 September 2015.
COASTAL CONSERVATION ZONE OBJECTIVES
1 To enhance and conserve the natural features of the coast including visual amenity, landforms, fauna and flora.
2 Low-intensity recreational uses located where environmental impacts on the coast will be minimal.
3 Development that contributes to the desired character of the zone.
DESIRED CHARACTER
The zone defines the coastal areas of high landscape or conservation value and incorporates policy to ensure the preservation of the coastal landscape resource.
Pelican Lagoon, Prospect Hill and Sapphiretown Peninsula in particular, have been identified as having high conservation value and should be protected. In addition, the high scenic value of Chapman River and the surrounding area at Antechamber Bay should be protected for camping and recreational use.
However, the coastal environment plays an important role in Kangaroo Island's economy and the tourist attraction provided by the coastal environment, coastal scenery and abundant wildlife is expected to see growth in visitor numbers that will need to be appropriately managed and catered for. The provision of facilities, including tourist accommodation and recreational facilities, may be established in the zone provided they are sited and designed in a manner that is subservient to the natural and coastal environment and adverse impact on natural features, landscapes, habitats and cultural assets is minimised.
The preference is that tourism development, including any associated access driveways and ancillary structures, be located on cleared areas or areas where environmental improvements can be achieved. Development should be located away from fragile coastal environments and significant habitat or breeding grounds.
In order to reinforce the Island’s scenic and landscape experiences, tourism development should maintain a strong visual impression of a sparsely developed or undeveloped coastline from public roads and land-based vantage points.
The design and siting of tourist accommodation should ensure emphasis is given to raising consciousness and appreciation of the natural, rural, coastal and cultural surroundings.
Upgrading of existing dwellings is encouraged in order to meet various criteria, including approved waste control and effluent disposal systems, the raising of living areas above the level of hazard risk for flooding and inundation or to reduce the level of hazard risk, and other environmental considerations.
It is envisaged that development is not undertaken on coastal dune systems, tidal wetlands, mangroves, sand dunes or other environmentally sensitive areas.
11 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
The desired character of the zone does not seek to encroach on the existing use rights of farmers.
PRINCIPLES OF DEVELOPMENT CONTROL Land Use
PDC1 The following forms of development are envisaged in the zone:
▪ coastal protection works ▪ conservation works ▪ interpretive signage and facilities ▪ tourism/visitor facilities ▪ tourist accommodation.
PDC2 Development listed as non-complying is generally inappropriate and not acceptable unless it can be demonstrated that it does not undermine the objectives and principles of the Development Plan.
PDC3 Buildings and structures should mainly be for essential purposes, such as shelters and toilet facilities associated with public recreation, navigation purposes or necessary minor public works.
PDC4 Development involving the removal of shell grit or sand, other than for coastal protection works purposes, or the disposal of domestic and industrial waste should not be undertaken.
Form and Character
PDC5 Development should not be undertaken unless it is consistent with the desired character for the zone.
PDC6 Development should be designed and sited to be compatible with conservation and enhancement of the coastal environment and scenic beauty of the zone.
PDC7 Development should:
(a) not adversely impact on the ability to maintain the coastal frontage in a stable and natural condition (b) minimise vehicle access points to the area that is the subject of the development (c) be landscaped with locally indigenous plant species to enhance the amenity of the area and to screen buildings from public view (d) utilise external low reflective materials and finishes that will minimise glare and blend in with the features of the landscape.
PDC8 Buildings or structures should be unobtrusively located, limited to a height of 6.5 metres above natural ground level, and be of such size and design, including materials and colours, to harmonise and blend naturally with the landscape and natural features of the zone.
PDC9 Where public access is necessary in sensitive locations, walkways and fencing should be provided to effectively control access.
PDC10 Sheds, garages, outbuildings and farm buildings, should be erected only as ancillary uses to an existing dwelling or for the continued management of any existing farm.
12 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
PDC11 Development should not prejudice the landscape quality and natural bushland of the zone.
PDC12 Tourist accommodation should complement the natural landscape and be designed in a way that minimises impact on the natural environment.
Land Division
PDC13 Land should not be divided except where:
(a) no additional allotments are created wholly or partly within the zone (b) there is no increase in the number of allotments with direct access to the coast or a reserve including by creation of land under rights of way or community titles.
Procedural Matters (Edited) – Non-complying development
GENERAL SECTION
COASTAL AREAS OBJECTIVES
1 The protection and enhancement of the natural coastal environment, including environmentally important features of coastal areas such as mangroves, wetlands, sand dunes, cliff-tops, native vegetation, wildlife habitat, shore and estuarine areas.
2 Protection of the physical and economic resources of the coast from inappropriate development.
3 Preservation of areas of high landscape and amenity value including stands of vegetation, shores, exposed cliffs, headlands, islands and hill tops, and areas which form an attractive background to urban and tourist areas.
4 Development that maintains and/or enhances public access to coastal areas with minimal impact on the environment and amenity.
5 Development only undertaken on land which is not subject to or that can be protected from coastal hazards including inundation by storm tides or combined storm tides and stormwater, coastal erosion or sand drift, and probable sea level rise.
6 Development that can accommodate anticipated changes in sea level due to natural subsidence and probable climate change during the first 100 years of the development.
7 Development which will not require, now or in the future, public expenditure on protection of the development or the environment.
PRINCIPLES OF DEVELOPMENT CONTROL
13 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
PDC1 Development should be compatible with the coastal environment in terms of built- form, appearance and landscaping including the use of walls and low pitched roofs of non-reflective texture and natural earth colours.
PDC2 The coast should be protected from development that would adversely affect the marine and onshore coastal environment, whether by pollution, erosion, damage or depletion of physical or biological resources, interference with natural coastal processes or any other means.
PDC3 Development should not be located in delicate or environmentally-sensitive coastal features such as sand dunes, cliff-tops, wetlands or substantially intact strata of native vegetation.
PDC23 Land in coastal areas should only be divided if:
(a) it or the subsequent development and use of the land will not adversely affect the management of the land, adjoining land or the coast (b) sand dunes, wetlands and substantially intact strata of native vegetation are maintained or consolidated within single allotments.
PDC24 Land division in coastal areas outside of designated urban or settlement zones should not increase either of the following:
(a) the number of allotments abutting the coast or a reserve (b) the number of allotments, including community title allotments and those that incorporate rights of way, with direct access to the coast or a reserve.
PDC25 Land should not be divided for commercial, industrial or residential purposes unless a layout can be achieved whereby roads, parking areas and development sites on each allotment are at least 0.3 metres above the standard sea-flood risk level, unless the land is, or can be provided with appropriate coastal protection measures.
PDC26 Subdivision of land that has frontage to the coast should make provision for a reserve that is at least 50 metres in width along such frontage.
Land Division
OBJECTIVES
1 Land division that occurs in an orderly sequence allowing efficient provision of new infrastructure and facilities and making optimum use of existing under utilised infrastructure and facilities.
2 Land division that creates allotments appropriate for the intended use.
3 Land division that is integrated with site features, including landscape and environmental features, adjacent land uses, the existing transport network and the availability of infrastructure.
4 Land division restricted in rural areas to ensure the efficient use of rural land for primary production and avoidance of uneconomic infrastructure provision.
PRINCIPLES OF DEVELOPMENT CONTROL
PDC1 When land is divided:
14 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
(a) stormwater should be capable of being drained safely and efficiently from each proposed allotment and disposed of from the land in an environmentally sensitive manner (b) a sufficient water supply should be made available for each allotment (c) provision should be made for the disposal of wastewater, sewage and other effluent from each allotment without risk to health (d) proposed roads should be graded, or be capable of being graded to connect safely and conveniently with an existing road or thoroughfare.
PDC2 Land should not be divided if any of the following apply:
(a) the size, shape, location, slope or nature of the land makes any of the allotments unsuitable for the intended use (b) any allotment will not have a frontage to an existing or proposed public road (c) the intended use of the land would require excessive cut and/or fill (d) the intended use, or the establishment of that use, is likely to lead to undue erosion of the subject land or land within the locality (e) the area is unsewered and the size, shape, slope and soil structure of a proposed allotment is not suitable to accommodate an appropriate waste disposal system within the confines of the allotment (f) the intended use of the land would be contrary to the zone objectives (g) any single allotments are created that sit within more than one zone (h) provision of services result in uneconomic costs to the community.
Design and Layout
PDC3 Land divisions should be designed to ensure that areas of native vegetation and wetlands do not need to be cleared as a consequence of subsequent development or fragmented or reduced in size.
PDC4 The design of a land division should incorporate:
(a) roads, thoroughfares and open space that result in safe and convenient linkages with the surrounding environment, including public and community transport facilities, and which, where necessary, facilitate the satisfactory future division of land and the inter-communication with neighbouring localities (b) safe and convenient access from each allotment to an existing or proposed public road or thoroughfare (c) areas to provide appropriate separation distances between potentially conflicting land uses and/or zones (d) suitable land set aside for useable local open space (e) public utility services within road reserves and where necessary within dedicated easements (f) the preservation of significant natural, cultural or landscape features including State and local heritage places (g) protection for existing vegetation and drainage lines (h) where appropriate, the amalgamation of smaller allotments to ensure co- ordinated and efficient site development.
PDC5 Land division within an area identified as being an ‘Excluded Area from Bushfire Protection Planning Provisions’ on Bushfire Protection Area BPA Map KI/20 - Bushfire Risk should be designed to make provisions for: (a) emergency vehicle access through to the Bushfire Protection Area and other areas of open space connected to it (b) a mainly continuous street pattern serving new allotments that eliminates the use of cul-de-sacs or dead end roads
15 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
(c) a fire hazard separation zone isolating residential allotments from areas that pose an unacceptable bushfire risk by containing the allotments within a perimeter road or through other means that achieve an adequate separation.
PDC7 Allotments should have an orientation, size and configuration to encourage development that:
(a) minimises the need for earthworks and retaining walls (b) maintains natural drainage systems (c) faces abutting streets and open spaces (d) does not require the removal of existing native vegetation to facilitate that development (e) will not overshadow, dominate, encroach on or otherwise detrimentally affect the setting of the surrounding locality.
PDC16 The design of the land division should provide space sufficient for on-street visitor car parking for the number and size of allotments, taking account of:
(a) the size of proposed allotments and sites and opportunities for on-site parking (b) the availability and frequency of public and community transport (c) on-street parking demand likely to be generated by nearby uses.
Land Division in Rural Areas
PDC18 Rural land should not be divided if the resulting allotments would be of a size and configuration likely to impede the efficient use of rural land for any of the following:
(a) primary production (b) value adding industries related to primary production (c) protection of natural resources.
PDC19 Rural land should not be divided where new allotments would result in any of the following:
(a) fragmentation of productive primary production land (b) strip development along roads or water mains (c) uneconomic costs to the community for the provision of services (d) prejudice against the proper and orderly development of townships (e) removal of native vegetation for allotment boundaries, access roads, infrastructure, dwellings and other buildings or firebreaks.
Orderly and Sustainable Development OBJECTIVES
1 Orderly and economical development that creates a safe, convenient and pleasant environment in which to live.
2 Development occurring in an orderly sequence and in a compact form to enable the efficient provision of public services and facilities.
3 Development that does not jeopardise the continuance of adjoining authorised land uses.
4 Development that does not prejudice the achievement of the provisions of the Development Plan.
PRINCIPLES OF DEVELOPMENT CONTROL 16 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
PDC1 Development should not prejudice the development of a zone for its intended purpose.
PDC2 Land outside of townships and settlements should primarily be used for primary production and conservation purposes.
PDC3 The economic base of the region should be expanded in a sustainable manner.
Tourism Development OBJECTIVES
1 Environmentally sustainable and innovative tourism development.
2 Tourism development that assists in the conservation, interpretation and public appreciation of significant natural and cultural features including State or local heritage places.
3 Tourism development that sustains or enhances the local character, visual amenity and appeal of the area.
4 Tourism development that protects areas of exceptional natural value, allows for appropriate levels of visitation, and demonstrates a high quality environmental analysis and design response which enhances environmental values.
5 Tourism development in rural areas that does not adversely affect the use of agricultural land for primary production.
6 Tourism development that contributes to local communities by adding vitality to neighbouring townships, regions and settlements.
8 Ensure new development, together with associated bushfire management minimise the threat and impact of bushfires on life and property while protecting the environment.
PRINCIPLES OF DEVELOPMENT CONTROL
PDC1 Tourism development should have a functional or locational link with its natural, cultural or historical setting.
PDC2 Tourism development and any associated activities should not damage or degrade any significant natural and cultural features.
PDC3 Tourism development should ensure that its scale, form and location will not overwhelm, over commercialise or detract from the intrinsic natural values of the land on which it is sited or the character of its locality.
PDC4 Tourism development should, where appropriate, add to the range of services and accommodation types available in an area.
Tourism Development in Association with Dwelling(s)
PDC7 Tourist facilities developed on the site of a dwelling should not detrimentally affect residential amenity.
PDC8 Car parking for tourist accommodation associated with a dwelling should be provided at the rate of one space for each guest room or suite of rooms, and ensure that: 17 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
(a) parking areas are attractively developed and landscaped, or screen fenced, and do not dominate the street frontage (b) the bedrooms of residential neighbours are suitably shielded from noise and headlight glare associated with guest vehicle movements (c) a domestic character is retained through the scale and appearance of landscaping and paving materials that provide a suitable all-weather surface.
Tourism Development Outside Townships and Settlements
PDC10 Tourism developments in rural areas should be sited and designed to minimise adverse impacts on either of the following:
(a) the surrounding agricultural production or processing activities (b) the natural, cultural or historical setting of the area.
PDC14 Tourism developments in rural areas:
(a) should primarily be developed in association with one or more of the following: (i) agricultural, horticultural, viticultural or winery development (ii) heritage places and areas (iii) public open space and reserves (iv) walking and cycling trails (v) interpretive infrastructure and signs (vi) rural industries that primarily use ingredients sourced primary from the Island’s farms and coastal waters (b) may involve the provision of facilities and accommodation associated with outdoor adventure, recreation and leisure activities.
PDC17 Tourism development in rural areas should occur only where it:
(a) incorporates a separation distance or buffers to avoid conflict with existing rural industries or agriculture or otherwise is designed to overcome the potential impacts associated with the adjoining land use (such as noise, dust, spray drift, odour and traffic) (b) will not give rise to demands for infrastructure and services, especially on public lands, that are inappropriate to the purpose of the zone and/or policy area.
Transportation and Access OBJECTIVES
OB2 Development that:
(a) provides safe and efficient movement for all motorised and non-motorised transport modes (b) ensures access for vehicles including emergency services, public infrastructure maintenance and commercial vehicles (c) provides off street parking (d) is appropriately located so that it supports and makes best use of existing transport facilities and networks.
PDC2 Development should be integrated with existing transport networks, particularly road corridors, as shown on Overlay Maps - Transport, and designed to minimise its potential impact on the functional performance of the transport networks.
PDC21 Development should have direct access from an all-weather public road.
PDC22 Development should be provided with safe and convenient access which: 18 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017
(a) avoids unreasonable interference with the flow of traffic on adjoining roads (b) accommodates the type and volume of traffic likely to be generated by the development or land use (c) is sited and designed to minimise any adverse impacts on the occupants of and visitors to neighbouring properties.
19 Development Act 1993 - Decision Notification
Development Application Dated: Registered on: Development No.: 03.05.2010 04.05.2010 520/064/10
Nature of proposed development: Tourist Accommodation
From: Kangaroo Island Council
To: Roger Hartley Owner: Roger Hartley 15 Grand View Avenue 15 Grand View Avenue URRBRAE SA 5064 URRBRAE SA 5064
Location of proposed development: Lot 105 Muston Road PELICAN LAGOON 5222 Lot No Section Full / Part: Plan: Hundred: Volume / Folio: 105 DP12638 Dudley CT5282/685
In respect of this proposed development you are informed that: Nature of Decision No. of Conditions Date Development Plan Consent Approved 10 06/12/2010 Land Division Building Rules Consent Approved 5 06/09/2011 Other Development Approval Approved 15 06/09/2011
This Decision Notification Form is associated with an existing or proposed Land Management Agreement. Copies of the agreement are available at the Council Office for public viewing. Details of building classification and the approved number of occupants under the Building Code are attached. Representations from third parties concerning your category 3 proposal were received. If there were third party representations, any consent/approval with conditions does not operate until the periods specified in the Act have expired (15 clear business days from the date of the notification). Reasons for this decision and any conditions imposed, are set out on the attached sheet/s. No work can commence on this development unless a Development Approval has been obtained. If one or more consents have been granted on this Notification Form, you must not start any site works or building work or change the use of the land until you have also received notification of a Development Approval. Building Rules Consent must be obtained within 12 months from the date of this approval. Development must commence within 12 months and be completed within 3 years of the date of development approval unless an extension is obtained.
Date of Decision: 06/09/2011 Development Assessment Commission or Delegate Signed: Council Chief Executive Officer or Delegate Date: 6 September 2011 Private Certifier:
VG Number: 5211015109 Sheets Attached Development Act 1993 Conditions of Development Plan Consent
Applicant: Roger Hartley Application No: 520/064/10 Bushfire Risk Assessment High
1. The Development herein approved must, except as varied by the conditions of consent be carried out in accordance with the approved plans and details to the satisfaction of Council.
2. The building shall not be used for any purpose other than that described on this notification.
3. All existing trees and shrubs shall be retained (other than those required to be removed for access building and fire safety purposes) and be adequately protected during building operations and retained in their natural state on completion of the building work.
4. Prior to commencement of the development a schedule of external colours must be submitted to Council and approved by Council.
5. Water storage facilities with a minimum capacity of 45000 litres must be provided for the development.
6. All excess stormwater from roofed buildings sealed areas and tank overflows shall be discharged within the allotment boundaries so that no erosion nuisance or inconvenience will occur off-site.
7. The development shall be connected to an approved onsite Aerobic type wastewater treatment system utilising surface irrigation so as to negate removal of native vegetation for soakage trenching.
8. Parking areas internal driveways and maneuvering areas shall comply with Australian Standard 2890.1 and shall be suitably delineated.
9. Where cut and/or fill in excess of 300mm is required as a result of the proposed development retaining walls or other suitable soil retention devices shall be employed.
10. The applicant shall ensure that vehicular access is obtained via the existing driveway access from Muston Road and said access shall be constructed in accordance with the CFS requirements and the Ministers Code 2009 - Undertaking Development in Bushfire Protection Areas. Reason: Council do not support the further clearance of native vegetation for construction of a new driveway from the Road Frontage.
Note – Building work must not be commenced until Provisional Building Rules Consent and Development Approval is granted. Note – Unless no approval is required other signs must not be constructed or displayed without the approval of the relevant authority.
Note - A person undertaking building work (Class 1-9) must give Council one business day notice of the following:
a) The commencement of building work eg.:
the placement of concrete into any footing excavation; or
the placement of stumps and bearers
b) The intended completion of the wall and roof frame excluding internal linings.
c) The completion of building work. Development Act 1993 Conditions of Building Rules Consent
Applicant: Roger Hartley Application No: 520/064/10
Classification: Class 1a Max persons accommodated:
1. Stormwater shall be diverted away from the building and shall not pond against or near the footings and shall not be discharged onto adjoining land. Where drainage is directed to the street water table this shall be by way of a council approved storm water drainage system.
2. Should a licensed builder or licensed sub-contractor be engaged to carry out work to the value of twelve thousand dollars ($12000) or more you are required to supply to the Council a Certificate of Indemnity Insurance prior to the commencement of construction.
3. On completion submit to council the window manufacturer's certificate confirming window/glazed door element thermal performance values indicating compliance with the House Energy Rating Certificate.
4. The site has been assessed by the country Fire Service as BAL 12.5.Accordingly construction detailing specifically required for sites deemed BAL 12.5 shall be included within the scope of works. Required details are as set out in Table 3.7.4.1 of the Building Code of Australia Volume 2.
5. The owner and or the supplier of the transportable building must give council at least one business day notice of:
a) the completion of the site works b) the date of arrival of the transportable building on site c) placing concrete into the tie down pads d) completion of all works including connection to all services
Note – In addition to the BCA and Housing Code requirements, buildings located in high bushfire risk areas, which are required to have a dedicated water supply for fire-fighting purposes (5000 litres ), must also comply with Minister’s Specification SA 78 Bushfire fighting equipment and water supply requirements in designated bushfire prone areas. The specification includes technical details relating to tanks, pumps, pipework and hoses. Generally, the application for Building Rules Consent must demonstrate that the water supply will: ∑ be fitted with a fuel-driven pump or equivalent system, independent of main electricity capable of pressurising water for fire fighting ∑ in cases where water is held in a closed tank, be fitted with a fire service adaptor with a minimum outlet of 50mm terminating in a 64mm male London round thread ∑ be fitted with a hose and nozzle capable of withstanding the pressures of the supplied water and which is able to reach all parts of the buildings ∑ be clearly identified and accessible to fire-fighting vehicles.
Note – Regulation 83AB requires a Statement of Compliance for Class 1a building or addition to a Class 1a building to be provided by the builder to the relevant authority within 10 days of occupancy of the building. The statement shall declare that the completed building work was carried out in accordance with the approved documents (disregarding any approved variations or variations of a minor nature) and satisfies the requirements of Regulation 83A Development Act 1993.