Shoalhaven City Council
Development & Environment Committee
Meeting Date: Tuesday, 01 September, 2020 Location: Council Chambers, City Administrative Building, Bridge Road, Nowra Time: 5.00pm
Membership (Quorum - 5) Clr Joanna Gash - Chairperson Clr Greg Watson All Councillors Chief Executive Officer or nominee
Please note: The proceedings of this meeting (including presentations, deputations and debate) will be webcast and may be recorded and broadcast under the provisions of the Code of Meeting Practice. Your attendance at this meeting is taken as consent to the possibility that your image and/or voice may be recorded and broadcast to the public.
Agenda
1. Apologies / Leave of Absence 2. Confirmation of Minutes • Development & Environment Committee - 4 August 2020 ...... 1 3. Declarations of Interest 4. Call Over of the Business Paper 5. Mayoral Minute 6. Deputations and Presentations 7. Notices of Motion / Questions on Notice Notices of Motion / Questions on Notice DE20.86 Notice of Motion - Call In DA20/1743 and DA20/1621 ...... 6 8. Reports City Development DE20.87 DA19/2032 – 61 Summercloud Crescent, Vincentia – Lot 1125 DP 1210394 ...... 7 DE20.88 s4.55 (2) Modification – 11 Tallimba Road Bangalee - Lot 115 DP 1205688 ...... 15
Development & Environment Committee – Tuesday 01 September 2020 Page ii
DE20.89 Clause 4.6 Variation Request - DA20/1031 - 5 The Concourse, Cambewarra Village ...... 41 DE20.90 DA19/1857 – 52 Parker Crescent, Berry – Lot 710 DP 1247531 ...... 52 DE20.91 Development Application – 37 Bawley Point Road Bawley Point - Lot 270 DP 1001660 ...... 81 DE20.92 Exhibition Outcomes and Proposed Finalisation - Planning Proposal (PP047) - Princes Highway, Meroo Meadow ...... 89 DE20.93 Planning Proposal (PP029) and Draft Development Control Plan - Hitchcocks Lane, Berry - Next Steps ...... 92 DE20.94 Preliminary Consultation Outcomes - Berry Heritage Investigations ...... 122 DE20.95 Ground Penetrating Radar (GPR) Survey Extent - Planning Proposal - 22 Currambene Street and 17 Hawke Street, Huskisson ...... 132 DE20.96 Draft COVID-19 Contributions Discount Subsidy Policy - Post Exhibition Consideration and Finalisation ...... 138 DE20.97 Shoalhaven Animal Shelter Annual Report ...... 150 DE20.98 Review of the Narrawallee and Upper Kangaroo Valley Bushcare Group Action Plans ...... 154 9. Confidential Reports Nil
Development & Environment Committee – Tuesday 01 September 2020 Page iii
Development & Environment Committee Delegation: Pursuant to s377(1) of the Local Government Act 1993 (LG Act) the Committee is delegated the functions conferred on Council by the Environmental Planning & Assessment Act 1979 (EPA Act), LG Act or any other Act or delegated to Council, as are specified in the attached Schedule, subject to the following limitations: i. The Committee cannot make a decision to make a local environmental plan to classify or reclassify public land under Division 1 of Part 2 of Chapter 6 of the LG Act; ii. The Committee cannot review a section 8.11 or section 8.9 EPA Act determination made by the Council or by the Committee itself; iii. The Committee cannot exercise any function delegated to the Council which by the terms of that delegation cannot be sub-delegated; iv. The Committee cannot exercise any function which s377(1) of the LG Act provides cannot be delegated by Council; and v. The Committee cannot exercise a function which is expressly required by the LG Act or any other Act to be exercised by resolution of the Council. Schedule a. All functions relating to the preparation, making, and review of local environmental plans (LEPs) and development control plans (DCPs) under Part 3 of the EPA Act. b. All functions relating to the preparation, making, and review of contributions plans and the preparation, entry into, and review of voluntary planning agreements under Part 7 of the EPA Act. c. The preparation, adoption, and review of policies and strategies of the Council in respect of town planning and environmental matters and the variation of such policies. d. Determination of variations to development standards related to development applications under the EPA Act where the development application involves a development which seeks to vary a development standard by more than 10% and the application is accompanied by a request to vary the development standard under clause 4.6 of Shoalhaven Local Environmental Plan 2014 or an objection to the application of the development standard under State Environmental Planning Policy No. 1 – Development Standards. e. Determination of variations from the acceptable solutions and/or other numerical standards contained within the DCP or a Council Policy that the Chief Executive Officer requires to be determined by the Committee f. Determination of development applications that Council requires to be determined by the Committee on a case by case basis. g. Review of determinations of development applications under sections 8.11 and 8.9 of the EP&A Act that the Chief Executive Officer requires to be determined by the Committee. h. Preparation, review, and adoption of policies and guidelines in respect of the determination of development applications by other delegates of the Council. i. The preparation, adoption and review of policies and strategies of the Council in respect to sustainability matters related to climate change, biodiversity, waste, water, energy, transport, and sustainable purchasing.
Development & Environment Committee – Tuesday 01 September 2020 Page iv j. The preparation, adoption and review of policies and strategies of the Council in respect to management of natural resources / assets, floodplain, estuary and coastal management.
Shoalhaven City Council
MINUTES OF THE DEVELOPMENT & ENVIRONMENT COMMITTEE
Meeting Date: Tuesday, 4 August 2020 Location: Council Chambers, City Administrative Building, Bridge Road, Nowra Time: 5.00pm
The following members were present: Clr Joanna Gash - Chairperson Clr Amanda Findley Clr John Wells Clr Patricia White Clr Nina Digiglio Clr Annette Alldrick – Remotely via Zoom (5.10pm) Clr John Levett Clr Mitchell Pakes Clr Andrew Guile – Remotely via Zoom Clr Greg Watson – Remotely via Zoom Clr Mark Kitchener Clr Bob Proudfoot
Apologies / Leave of Absence An apology was received from Clr Gartner, and Mr Stephen Dunshea - Chief Executive Officer.
Confirmation of the Minutes RESOLVED (Clr Wells / Clr Digiglio) MIN20.537 That the Minutes of the Development & Environment Committee held on Monday 20 July 2020 be confirmed. CARRIED
Declarations of Interest Nil
Call Over of the Business Paper All items on the agenda were called up for debate.
Minutes Confirmed Tuesday 1 September 2020 – Chairperson ......
Minutes of the Development & Environment Committee 04 August 2020 Page 2
DEPUTATIONS AND PRESENTATIONS DE20.83 Report - DA20/1203 - 151 Wattamolla Road, Woodhill - Lot 1 DP 740771 Glenn & Jennifer O'Brien
Councillor Alldrick joined the meeting at 5.10pm
REPORTS
DE20.79 Environmental Services 2019-2020 Regulatory Activities HPERM Ref: Report D20/322278 Recommendation (Item to be determined under delegated authority) That Council receive the Environmental Services 2019 – 2020 Regulatory Activities Report for information.
RESOLVED (Clr Proudfoot / Clr Wells) MIN20.538 That Council receive the Environmental Services 2019 – 2020 Regulatory Activities Report for information. CARRIED
DE20.80 Shoalhaven District Memorial Hospital - Continued HPERM Ref: Medical Precinct Development - Support Confirmation D20/322037 Recommendation (Item to be determined under delegated authority) That Council reaffirm its previous in-principle support for the establishment and staged development of a master planned medical precinct centred on the current Shoalhaven District Memorial Hospital site and adjacent land, including, where required, the further acquisition and development of Nowra Park.
PROCEDURAL MOTION (Clr Proudfoot / Clr Pakes) That the MOTION be PUT. FOR: Clr Wells, Clr White, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener and Clr Proudfoot AGAINST: Clr Gash, Clr Findley, Clr Digiglio, Clr Alldrick and Clr Levett PROCEDURAL MOTION CARRIED
RESOLVED (Clr Proudfoot / Clr Pakes) MIN20.539 That Council reaffirm its previous in-principle support for the establishment and staged development of a master planned medical precinct centred on the current Shoalhaven District Memorial Hospital site and adjacent land, including, where required, the further acquisition and development of Nowra Park. FOR: Clr Gash, Clr Wells, Clr White, Clr Alldrick, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener and Clr Proudfoot AGAINST: Clr Findley, Clr Digiglio and Clr Levett CARRIED Note: A rescission motion was received on this item.
Minutes Confirmed Tuesday 1 September 2020 – Chairperson ......
Minutes of the Development & Environment Committee 04 August 2020 Page 3
DE20.81 Response to Question on Notice - DA20/1453, Proposed HPERM Ref: Mixed Use Development at 3 Moona St (Lot 104, DP D20/330978 755928), Huskisson Recommendation (Item to be determined under delegated authority) That the Response to Question on Notice - DA20/1453, Proposed Mixed Use Development at 3 Moona St (Lot 104, DP 755928), Huskisson report be received for information.
RESOLVED (Clr Levett / Clr Findley) MIN20.540 That the Response to Question on Notice - DA20/1453, Proposed Mixed Use Development at 3 Moona St (Lot 104, DP 755928), Huskisson report be received for information. FOR: Clr Gash, Clr Findley, Clr Wells, Clr White, Clr Digiglio, Clr Alldrick, Clr Levett, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener and Clr Proudfoot Against: Nil CARRIED
DE20.82 Development Application No. SF10686 – Red Gum Dr HPERM Ref: Ulladulla – Lot 600 DP 1249606 & Lot 2 DP 1076005 D20/248826 Recommendation (Item to be determined under delegated authority) That Development Application No. SF10686 for an Eight (8) Lot Residential Subdivision plus Public Reserve and Vegetation Clearing over Lot 600 DP 1249606 & Lot 2 DP 1076005, Red Gum Dr Ulladulla, be determined by way of refusal for the reasons set out in the Notice of Determination (Attachment 1) to this report.
RESOLVED (Clr White / Clr Proudfoot) MIN20.541 That the matter be deferred back to staff for further assessment. FOR: Clr Gash, Clr Wells, Clr White, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener and Clr Proudfoot AGAINST: Clr Findley, Clr Digiglio, Clr Alldrick and Clr Levett CARRIED
DE20.83 Report - DA20/1203 - 151 Wattamolla Road, Woodhill - HPERM Ref: Lot 1 DP 740771 D20/309870 Recommendation (Item to be determined under delegated authority) That Development Application DA20/1203 construction of a dwelling house and pool, conversion of existing dwelling to tourist cabin and alterations and additions to existing garage and conversion to tourist cabin at Lot 1 DP 740771, 151 Wattamolla Road, Woodhill be approved subject to the recommended conditions of consent contained in Attachment 2 of this report.
RESOLVED (Clr Guile / Clr Proudfoot) MIN20.542 That Development Application DA20/1203 construction of a dwelling house and pool, conversion of existing dwelling to tourist cabin and alterations and additions to existing garage and conversion to tourist cabin at Lot 1 DP 740771, 151 Wattamolla Road, Woodhill be approved subject to the recommended conditions of consent contained in Attachment 2 of this report.
Minutes Confirmed Tuesday 1 September 2020 – Chairperson ......
Minutes of the Development & Environment Committee 04 August 2020 Page 4
FOR: Clr Gash, Clr Wells, Clr White, Clr Digiglio, Clr Alldrick, Clr Levett, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener and Clr Proudfoot AGAINST: Clr Findley CARRIED
DE20.84 Report - Quarterly Review for Compliance Matters HPERM Ref: D20/309001 Recommendation (Item to be determined under delegated authority) That the quarterly review for compliance matters report be received for information.
RESOLVED (Clr White / Clr Wells) MIN20.543 That the quarterly review for compliance matters report be received for information. FOR: Clr Gash, Clr Findley, Clr Wells, Clr White, Clr Digiglio, Clr Alldrick, Clr Levett, Clr Pakes, Clr Watson, Clr Kitchener and Clr Proudfoot AGAINST: Nil CARRIED
Note: Councillor Guile left the Meeting 6:21 pm
Introduction of Items as Matters of Urgency RESOLVED (Clr Findley / Clr Pakes) MIN20.544 That the following addendum reports be introduced as matters of urgency: 1. DE20.85 Ground Penetrating Radar (GPR) Survey Extent - Planning Proposal - 22 Currambene Street and 17 Hawke Street, Huskisson CARRIED The Chairperson ruled the matters as ones of urgency as they relate to urgent business of Council and allowed their introduction.
ADDENDUM REPORTS
DE20.85 Ground Penetrating Radar (GPR) Survey Extent - HPERM Ref: Planning Proposal - 22 Currambene Street and 17 Hawke D20/335995 Street, Huskisson Recommendation (Item to be determined under delegated authority) That Council: 1. Allocate $11,000 to enable the Ground Penetrating Radar (GPR) Survey that will be undertaken for Huskisson Church Planning Proposal (Lots 7 and 8) to also include the adjoining Lot 9, which is owned by the Jerrinja Local Aboriginal Land Council, noting that the inclusion of Lot 9 in the GPR survey will enable a more wholistic assessment of this aspect. 2. As part of the next quarterly budget review, determine and confirm where the $11,000 will be allocated from.
Minutes Confirmed Tuesday 1 September 2020 – Chairperson ......
Minutes of the Development & Environment Committee 04 August 2020 Page 5
RESOLVED (Clr Pakes / Clr Findley) MIN20.545 That Council: 1. Note the report 2. Receive a further report after a formal response is received from Jerrinja Local Aboriginal Land Council on this matter. CARRIED
Note: A Rescission Motion was received in relation to DE20.80 Shoalhaven District Memorial Hospital - Continued Medical Precinct Development - Support Confirmation signed by Clr Digiglio, Clr Levett & Clr Findley.
There being no further business, the meeting concluded, the time being 6:27pm.
Clr Gash CHAIRPERSON
Minutes Confirmed Tuesday 1 September 2020 – Chairperson ......
Development & Environment Committee – Tuesday 01 September 2020 Page 6
DE20.86 Notice of Motion - Call In DA20/1743 and DA20/1621
HPERM Ref: D20/380851
Submitted by: Clr Patricia White
Purpose / Summary The following Notice of Motion, of which due notice has been given, is submitted for Council’s consideration.
Recommendation (Item to be determined under delegated authority)
That Council call in for determination the following Development Applications due to public interest and concern: 1. DA20/1743 - 25 Lake Conjola Entrance Rd Yatte Yattah - Lot 84 DP 817514; and 2. DA20/1621 - 260 Mount Hay Rd Broughton Vale - Lot 2 DP 4498.
DE20.86
Development & Environment Committee – Tuesday 01 September 2020 Page 7
DE20.87 DA19/2032 – 61 Summercloud Crescent, Vincentia – Lot 1125 DP 1210394
DA. No: DA19/2032/4
HPERM Ref: D20/100727 Section: Building & Compliance Services Approver: Phil Costello, Director - City Development
Attachments: 1. Draft - 4.15 Report - 61 Summercloud Cr, Vincentia - Lot 1125 DP 1210394 (under separate cover) ⇨ 2. Assessment of Submissions - 61 Summercloud Cr, Vincentia - Lot 1125
DP 1210394 (councillors information folder) ⇨ 3. Draft Development Consent - 61 Summercloud Cr, VINCENTIA - Lot 1125 DP 1210394 (under separate cover) ⇨
Description of Development: Dual Occupancy and Strata Subdivision
Owner: Ibrohim Makhmudov DE20.87 Applicant: Hotondo Homes South Coast Pty Ltd
Notification Dates: 24 October 2019 – 8 November 2019
No. of Submissions: 10 Submissions received
Reason for consideration by Council: At the Development & Environment Committee meeting held on 4 February 2020, Council resolved to call in the development application for a dual occupancy at 61 Summercloud Crescent, Vincentia. This application was called in due to community concern. This report recommends the application is approved subject to conditions.
Recommendation (Item to be determined under delegated authority) That the proposed development be approved by Council subject to the conditions specified in the draft development consent.
Options 1. Approve the Development Application in accordance with the recommendation. Implications: This would allow the applicant to proceed with the proposal and seek a construction certificate for the development.
2. Refuse the Development Application. Implications: The application would not proceed. A Notice of Determination for Refusal will need to be prepared with reasons for refusal stated. The applicant can apply for a
Development & Environment Committee – Tuesday 01 September 2020 Page 8
section 8.2 review of Council’s decision and/or could lodge an appeal with the NSW Land and Environment Court against Council’s decision.
3. Alternative recommendation. Implications: Council will need to specify an alternative recommendation and advise staff accordingly.
Location Map
DE20.87
Figure 1: Aerial Map of the subject site in the broader context of the Bayswood Estate Subdivision (SF9786) Background At its Development & Environment Committee meeting held on 4 February 2020, Council resolved to call in the development application for a dual occupancy and strata subdivision at 61 Summercloud Crescent, Vincentia. The application was called in due to community concern citing the proposed subdivision of the dual occupancy is not compatible with the amenity of the existing low-density environment where there are only single dwellings on each lot. Proposed Development The application is for a dual occupancy and strata subdivision on the land identified as No.61, Lot 1125 DP1210394, Summercloud Crescent, Vincentia. The land is zoned R2 – Low Density Residential and it has an area of 614.3 m2. Both dual occupancy and strata subdivision are permissible on this land with consent. The development consists of two attached 3-bedroom dwellings. The proposed development complies with requirements of Shoalhaven DCP 2014 (SDCP-2014) and a detailed assessment of the application is contained in attachment 1. The site plan, floor plans and elevations illustrate the proposed development (Refer Figures 2, 3, and 45).
Development & Environment Committee – Tuesday 01 September 2020 Page 9
DE20.87
Figure 2: Site Plan
Figure 3: North east and south East elevations
Development & Environment Committee – Tuesday 01 September 2020 Page 10
Figure 4: South West and North West elevations DE20.87 The development is a single storey dual occupancy. The building has a mixture of brick veneer walls and selected horizontal wall cladding. The roof is metal on a timber frame. The building is located centrally on the site with 1.01m and 1.02m to the east and west boundaries, respectively. The front building line is 6.0m to the outer edge of the entrance porch. Subject site, surrounds and context The subdivision is located in an area characterised by residential dwellings and associated infrastructure. The subdivision adjoins dry sclerophyll forest. The subject site is identified as bush fire prone land and there is a drainage easement at the rear of the allotment. There are no other significant encumbrances on the site. The site falls from the south-east (rear) to the north (front). The fall across the land is approximately 1.0m. Existing development of a similar nature in the immediate surrounds The subject site is zoned R2 – Low Density Residential and there are currently eight (8) approved secondary dwellings and nine (9) approved dual occupancies in the near vicinity of this site. (a) Secondary dwellings (8 approvals): Two of these secondary dwellings were approved via development applications and the other six (6) were approved via Complying Development Certificates. (b) Dual occupancies (9 approvals): All nine dual occupancies were approved under development applications. Seven (7) of the applications also have strata title subdivision approval and the other two (2) have Torrens title subdivision approval. The location of these developments in the broader context of the Bayswood Estate Subdivision (SF9786) is shown in Figure 6 below.
Development & Environment Committee – Tuesday 01 September 2020 Page 11
Figure 6: Nearmaps Aerial Image indicating the location of similar development
types within the overall subdivision. DE20.87 Planning Assessment In deciding whether to grant approval to the proposed development, Council must consider the relevant matters contained in clause 4.15 of the Environmental Planning and Assessment Act 1979. A detailed assessment is contained at attachment 1. The following matters are relevant to this discussion: Environmental Planning Instruments The proposed development complies with the relevant environmental planning instruments being: (a) The Shoalhaven Local Environmental Plan 2014 (b) State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (c) State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Development Control Plans The proposed development meets the objectives and provisions of the following relevant chapters of the Shoalhaven Development Control Plan 2014: (a) G1: Site Analysis, Site Design and Building Materials (b) G2: Sustainable Stormwater Management and Erosion/Sediment Control (c) G3: Landscaping Design Guidelines (d) G7: Waste Minimisation and Management Controls (e) G11: Subdivision of Land (f) G13: Medium Density and Other Residential Development (g) G21: Car Parking and Traffic (h) N15: Vincentia Coastal Village and District Centre
Development & Environment Committee – Tuesday 01 September 2020 Page 12
The likely impacts of that development, including impacts on the natural and built environments, and social and economic impacts on the locality (a) The land is bush fire prone and this is the only significant environmental encumbrance. The Rural Fire Service (RFS) have issued a Bush Fire Safety Authority and have provided conditions of development addressing the likely impacts. The building is required to comply with the requirements of BAL-19. (b) The proposed development is considered to have a minimal impact on the built environment. The building is located amongst similar single storey brick veneer dwellings. (c) The proposed development is not considered to have any adverse social or economic impact on the locality. The suitability of the site for the development (a) The proposed development is permissible within the R2 – Low Density Residential
Zoning. (b) The design, bulk and scale of the proposed development is consistent with that of the existing and desired future streetscape. The building is single storey and does not overpower the streetscape. (c) The architectural plans of the proposed development have been endorsed by the developer as per the terms of restriction on the use of the land numbered 7 in the S88B Instrument. DE20.87 (d) Construction is considered to be site responsive. Any submissions made Council has received 10 submissions and this includes a petition signed by 62 people objecting to the proposal (See Attachment 2). The details of the petition are contained in “B Information Pertaining to the Petition” in Attachment 2. These objections have been fully considered in regard to this application and each of the major issues are summarised and discussed in the table below.
Issue Comment (a) Development is not compatible Dual occupancies are ‘permitted with consent’ in the with the objectives of the R2 R2 – Low Density Residential Zone. zoning The proposed development is considered to be consistent with the objectives of the R2 zone, as it provides for the housing needs of the community in the context of a growing population and the primary development type of single dwellings within the surrounding area will be retained. (b) Strata subdivision is below the Clause 4.1 (Minimum subdivision lot size) of the minimum lot size of 500m2. Shoalhaven Local Environmental Plan 2014 does not apply to the subdivision of any land by the registration of a strata plan of subdivision under the Strata Schemes Development Act 2015. There is no minimum lot size for the strata subdivision as proposed and the development complies.
Development & Environment Committee – Tuesday 01 September 2020 Page 13
(c) Dual occupancy will impact on The proposed development is not considered to the existing road system and unreasonably impact upon the existing road system. utilities The proposed development achieves compliance with the relevant planning controls. Council’s Development Engineer has reviewed the proposed development and has raised no objections to the proposal. (d) The development does not The design, bulk and scale of the proposed comply with the design development is considered compatible with the essentials for Bayswood surrounding area. Compliance has been achieved with DCP Chapter N15 which is the prevailing site-specific chapter and details the design essentials for Bayswood Estate.
The architectural plans have been endorsed by the
developer as required by the restrictions as to user on the S88B Instrument. (e) On-site carparking Provisions for car parking, site access and traffic safety have been assessed against the performance criteria of DCP Chapter G21: Car Parking and Traffic.
The development complies. DE20.87 (f) Impact on bush fire The subject site is identified as bush fire prone land. emergency response As the application comprises a subdivision, the proposed development required authorisation under Section 100B of the Rural Fires Act 1997 in respect of bush fire safety. The NSW Rural Fire Service have issued a Bush Fire Safety Authority and General Terms of Approval. The RFS conditions address the likely impacts of bush fire and these will be included in the development consent. The development will satisfy the bush fire requirements. (g) Bulk and scale The proposed development is fully compliant with the setback requirements contained in SDCP Chapter N15. The building is entirely within the building envelope described in SDCP Chapter G12 and the maximum permissible building height pursuant to clause 4.3 of SLEP. The floor space ratio of the building will not exceed 0.5:1 as required by SDCP Chapter G12. Impacts upon overshadowing, privacy and views are not considered to be severe or devastating when assessed against the relevant NSWLEC Planning Principles. It is therefore reasonable to conclude that the bulk and scale of the development is appropriate for the site.
Development & Environment Committee – Tuesday 01 September 2020 Page 14
This assessment has also considered case law similarities and this is illustrated in Ougra & Ors v The Hills Shire Council [2012] NSWLEC 1178. In this case, The Hills Shire Council refused a dual occupancy application on land at 26 Moseley Street, Carlingford (Lot 29 DP 251044) with contentions of “whether the proposed dual occupancy would complement and/or integrate with the existing and future low density character of the area”. This is essentially the main thrust of the submissions made against DA19/2032. In comparing the 2 sites, both have a common zoning of R2 – Low Density Residential. The objectives of the zones across both local government areas are similar and dual occupancy is permissible in each instance. Summarily, most of the issues were resolved by way of Section 34AA conference. This meant that largely, “the only contention for determination by the Court concerns the public interest considerations arising from the [community] objections”. Similarities arise here between this case and the present application before Council as both developments complied with planning controls except for the “public interest” considerations.
The appeal was upheld and the application was approved.
In his closing remarks, Commissioner Hussey assents that “… it is obvious from the evidence that this form of development is envisaged by the current controls. There are no restrictions that only allow single detached dwellings”. The same is true of the current application. If the application is refused and a comparison is drawn between both cases, it is likely that the Court would rule in the same way. DE20.87
Financial Implications: If the application is appealed, it will result in costs to Council in defending the appeal. This is not a matter Council should consider in determining a development application. Accordingly, it should not be given any weight in Council’s decision.
Legal Implications If the application is refused, or if the applicant is dissatisfied with Council’s determination, the applicant can appeal to the Land and Environment Court. Under some circumstances, third parties may also have a right to appeal Council’s decision to the Land and Environment Court.
Summary and Conclusion Whilst the public interest was a major consideration for this application, the concerns raised are not justified in this instance. It is recommended Council grant consent to the proposed development being a dual occupancy and strata subdivision on the land at 61 Summercloud Crescent, Vincentia – Lot 1125 DP 1210394 subject to the draft conditions of consent (Refer Attachment 3).
Development & Environment Committee – Tuesday 01 September 2020 Page 15
DE20.88 s4.55 (2) Modification – 11 Tallimba Road Bangalee - Lot 115 DP 1205688
DA. No: DS19/1421
HPERM Ref: D20/343657
Section: Building & Compliance Services Approver: Phil Costello, Director - City Development
Attachments: 1. Cover Letter - Owners request to modification of Development Consent ⇩ 2. 4.55 Assessment (under separate cover) ⇨ 3. Advice - Non-Compliance - Director-Generals Concurrence - Possible Damage to Habitat of Threatened Species - Michael Saxon / NSW Office of Environment & Heritage ⇩ 4. Approved Plan ⇩ 5. Development Consent ⇩ 6. Approved EMP Stage 1 dated January (under separate cover) ⇨ 7. Legal Advice (Confidential - under separate cover)
8. Advisory Letter - Office of Environment & Heritage - Environmental DE20.88 Management Plan ⇩
Description of Development: Removal of remaining trees on the subject site.
Owner: Kim Rosemary Bowers & Gary Alan Bowers Applicant: Gary Bowers
Notification Dates: Pursuant to the Community Consultation Policy, notification was not required.
No. of Submissions: No submissions were received.
Purpose / Reason for consideration by Council This application was called in by Council at its Ordinary meeting held on 25 February 2020 (MIN20.133). a) For determination by Council due to public interest b) The subject of legal considerations by the CEO on the ability of the Council to approve the application. At its Development and Environment Committee Meeting on 2 June 2020, Council resolved to defer the matter and request staff to report back on the process for the possibility of an amendment to the Environmental Management Plan (EMP), which would allow Council to consider the application by way of consent (MIN20.388). The Office of Environment & Heritage have responded indicating they would not support a variation to the EMP. This report recommends refusal of the application.
Development & Environment Committee – Tuesday 01 September 2020 Page 16
Recommendation (Item to be determined under delegated authority) That the application, DS19/1421 – 11 Tallimba Rd Bangalee (Lot 115 DP 1205688) be refused. The reasons for refusal are as follows: 1. The proposed development does not meet the “substantially the same development” test pursuant to clause 4.55(2) of the Environmental Planning and Assessment Act 1979. 2. The proposed development does not comply with the subdivision consent (SF9821) as the proposed vegetation clearing is outside that which is permissible as per the approved Environmental Management Plan under this consent. 3. The proposed development does not comply with concurrence issued by the Office of Environment and Heritage who have already issued a formal warning to Council for non-
compliance with this concurrence. 4. The proposed development is contrary to previous approvals granted on the subject site which specifically require the vegetation the subject of this proposal to be retained. 5. Council may be challenged on the validity of the determination if an approval were to be issued.
DE20.88 Options 1. Refuse Application. Implications: The following issues are highlighted: a) This provides compliance with the approved environmental management plan which is captured under the subdivision approval (SF9821) and adherence to concurrence requirements issued by the Office of Environment and Heritage under that subdivision. b) This will provide consistency with conditions imposed upon other landowners within the subdivision who were subject to the same environmental constraints and accordingly had to retain vegetation on their allotments in a similar nature to that which has been imposed upon the land the subject of this application. c) This will provide consistency with conditions imposed upon other landowners within the subdivision who were subject to the same environmental constraints and accordingly had to retain vegetation on their allotments in a similar nature to that which has been imposed upon the land the subject of this application. d) The applicant would be able to seek a review of determination under s8.2 of the EP&A Act, in which case they could provide information to support a request to Office of Environment and Heritage for amendment of the Environment Management Plan (EMP). Such information may include the condition and health of the trees along with environmental impact assessment of removal. e) The applicant could appeal the decision to the land and Environment Court f) The owner could lodge a new application seeking assessment under the Biodiversity Conservation Act and support such application with a Biodiversity Development Assessment report.
2. Approve Application.
Development & Environment Committee – Tuesday 01 September 2020 Page 17
Implications: The following issues are highlighted a) This would be in contravention of Office of Environment and Heritage concurrence granted under applicable legislative requirements and would potentially expose Council to legal action. b) Flow on effects are likely to include other landowners within the subdivision lodging modification applications for the further removal of native vegetation on their lots, leading to further non-compliances and exacerbating environmental impacts on an already impaired area. c) Further deterioration of vegetation which provides connectivity for native flora and fauna within a rural-residential area of environmental significance. d) Contravention of the requirements of the approved Environmental Management Plan forming part of the subdivision approval and subsequent, potential legal action against Council and landowners.
3. Alternative Determination. Implications: Council will need to advise of any alternative determination.
Location Map DE20.88
Figure 1 – Aerial photograph of the subject site. Source: Nearmaps - http://maps.au.nearmap.com/
Development & Environment Committee – Tuesday 01 September 2020 Page 18
Background The proposal (DS19/1421) was lodged with Shoalhaven City Council on 26 September 2019. After a thorough assessment of the application, the applicant was advised by the assessing officer that the application was likely to be determined by way of refusal (for the reasons outlined in this report and the accompanying s4.55 Assessment Report). Prior to determination the application was called up to Council for the reasons outlined previously in this report. Proposed Development The applicants have applied, pursuant to clause 4.55 (2) of the Environmental Planning and Assessment Act 1979, to modify conditions 1 and 3 of an active Development Consent (DA17/1956). The applicant submits that the purpose of the modification is to allow removal of “all the trees on the eastern boundary…” of the subject site. Conditions 1 and 3 are as
follows:
DE20.88
Figure 2 – Condition 1 of Development Consent (DA17/1956).
Figure 3 – Condition 3 of Development Consent (DA17/1956). The approved ‘Site & Tree Removal Plan’ referenced in ‘figure 2’ and ‘figure 3’ is shown below (attachment 4):
Development & Environment Committee – Tuesday 01 September 2020 Page 19
DE20.88 Figure 4 – Approved Plan – (DA17/1956). Subject Land The subject site is 11 Tallimba Rd, Bangalee which is legally described as Lot 115 in Deposited Plan 1205688. The subject site currently comprises a dwelling house, detached shed, driveway, asset protection zone, effluent treatment areas and the ‘strip’ of vegetation the subject of this proposal. The subject site has lawful access to a public road (Tallimba Road). The topography of the subject site is identified as a gradual fall towards the rear boundary. Site & Context The subject site is located within the Tallimba/Woodbridge Estate, which was registered on 29 June 2016 (SF9821). The surrounding area is characterised by a mixture of single and two storey dwellings, situated on lots with an average total area of 4,000m². All lots within the subdivision are identified with a zoning of R2 – Low Density Residential. The lots are subject to various environmental encumbrances which reflects their significant environmental attributes. The lots are identified as bushfire prone land, do not have access to reticulated sewerage and comprise native vegetation which provides connectivity for various identified flora and fauna such as recorded feed trees for the threatened Glossy-Black Cockatoo (‘Approved Residential Development, Tallimba Road, Bangalee – Environmental Management Plan for Stages 1, Southbank Land Pty Ltd and Huntingdale Developments Pty Ltd, January 2015 – attachment 6). History Council’s electronic database references the following determinations made with respect to the subject site (relevant content from previous approvals has been summarised below for further context): 1. Development Application – DA17/1956 – “Removal of Vegetation” – Approved – 3 November 2017
Development & Environment Committee – Tuesday 01 September 2020 Page 20
• As above under the heading “Proposed Development” conditions 1 and 3 stipulate that the native “strip” of vegetation the subject of this application be retained. • The applicants were advised by the Development Planner that “Council does not support the total removal of vegetation on 11 Tallimba Road, Bangalee… the lots within the subdivision are 4,000m², are of a rural-residential character and as such should retain some vegetation to contribute to amenity” (E-mail: D17/328143). 2. Drainage Application – DR18/2070 – “New Septic System” – Approved – 21 November 2018 3. Development Application – DA19/1091 – “Single Storey Dwelling” – Approved – 28 March 2019 • Council’s Environmental Planner states, by way of a formal referral response, that “In order to comply with the Office of Environment and Heritage concurrence no further trees should be removed and the proposal (single storey dwelling and associated infrastructure) must be designed within the constraints of retaining the trees conditioned for retention in DA17/1956)”. • Conditions of Development Consent are included to the affect that the “strip” of native vegetation be retained. Further, the consent requires the applicant to plant 6 locally sourced Allocasuarina Littoralis trees to go towards replacing food resource for the threatened Glossy Black-cockatoo known to occur and forage within the locality. Additionally, the consent stipulates that “there shall be no removal of… trees
on the property without the prior written consent of the Shoalhaven City Council DE20.88 Director of Planning, Environment and Development Group or as specified in approved consents”. • The approved site plan – D19/100256 (attachment 4) states that the “strip” of native vegetation be retained in accordance with DA17/1956.
Figure 5 – Approved Plan – (DA19/1091). 4. Consent for Works & Structures In/On a Public Road – RW19/1066 – “S138 Approval” – Approved – 5 April 2019
Development & Environment Committee – Tuesday 01 September 2020 Page 21
5. Drainage Application – DR19/1122 “SMF Application (Amended)” – Approved – 28 March 2019 6. Construction Certificate – CC19/1304 – “Single Storey Dwelling” – Approved – 14 April 2019 7. Development Application – DA19/1470 – “Detached Shed” – Approved – 6 June 2019 • The approved site plan – D19/187932 states “trees to be retained as per 2017 DA
approval”
DE20.88
Figure 6 – Approved Plan – (DA19/1470). 8. Construction Certificate – CC19/1364 – “Detached Shed” – Approved – 6 June 2019 9. Occupation Certificate – OC19/2235 – “Detached Shed” – Approved – 20 November 2019
Issues The key issue is whether the remaining vegetation on the subject site can or should be removed. Applicant’s Submission The applicant has submitted a letter in support of the proposal (D19/338028 attachment 2). The letter is summarised as follows – a) The trees pose a risk to the neighbouring property and our dwelling b) The trees pose a risk to human life c) The modification is substantially the same development d) The modification will not have any impact on the natural and built environments e) The modification will have no social and economic impact on the locality
Development & Environment Committee – Tuesday 01 September 2020 Page 22
Discussion The purpose of this discussion is to provide an outline and framework by which the proposal can be determined by Council. The below discussion incorporates the applicant’s submission with relevant policy considerations and the assessing officer’s s4.55 assessment. Shoalhaven Development Control Plan 2014 – Chapter G4: Tree and Vegetation Management The purpose of clause 5.1 is to declare trees and other vegetation for the purposes of Part 3 of the Vegetation SEPP. In accordance with Clause 7(1) of the vegetation SEPP, a person must not cut down, fell, uproot, kill, poison, ringbark, burn or otherwise destroy the vegetation, or lop or otherwise remove a substantial part of the vegetation without a permit granted by Council. There are some exemptions to the requirement for a permit which are set out in Section 5.2. Comment: a) This section provides that “all trees in an urban area” are declared. The relevant definition of an “urban area” comes from this chapter and provides “An urban area… is any area mapped with a residential (excluding R5 Large Lot Residential), business, industrial, commercial, special use and RU5 Village zone”. The subject site is zoned R2 – Low Density Residential and is therefore an urban area. Thus, the trees the subject of this proposal are declared. b) The applicant’s submission that the trees pose a risk to human life and nearby buildings is essentially a claim that the trees are exempt under clause 5.2.3. Clause 5.2.3 also DE20.88 references the “45-degree exemption”. However, even if the trees are considered to fall within the scope of these exemptions, a permit from Council would be required for the removal of the trees as “none of the exemptions listed in this Section apply to any trees or vegetation that are required to be retained by the conditions of a development consent or a Section 88B restriction to user instrument…” (Shoalhaven Development Control Plan 2014 – Chapter G4 – clause 5.2.2). As outlined above in the “history” of this report, the trees are required to be retained under previously approved development consents and, therefore, are not exempt. Environmental Planning and Assessment Act 1979 The proposal has been submitted under clause 4.55(2) of the Environmental Planning and Assessment 1979. Accordingly, Council as the consent authority is required to consider the following – (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
Development & Environment Committee – Tuesday 01 September 2020 Page 23
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), and (1A) do not apply to such a modification and these matters respectively relate to modifications involving a minor error and those involving minimal environmental impact. Comment: a) The approved Environmental Management Plan (D15/33074) under the relevant Subdivision Consent (SF9821) states “Any structurally stable tree located outside of the road reserve, road verges, batters, service easements, service structures and corridors (including but not limited to drainage, stormwater, electrical, telecommunications, water supply services or any form of APZ) that has a
diameter of 200mm at its base shall be retained”.
The trees the subject of this application have been identified as ≥ 200mm at the base and located outside of the road reserve, road verges, batters, service easements, service structures and corridors. They therefore must be retained. Additionally, the subject site and surrounding areas are identified as providing connectivity for native fauna, namely, the Glossy-Black Cockatoo. Protection of this endangered species has historically been a consideration throughout previous approvals. Approvals on the subject site have required the applicants to adhere to DE20.88 these considerations. Consideration should also be given to the NSW Government - Office of Environment and Heritage correspondence regarding non-compliance with concurrence (Refer attachment 3). In this letter to Council dated 12 January 2018, the Office of Environment and Heritage gave Council a formal warning to ensure the EMP is maintained. b) The proposed development is not considered to pass substantially the same development test as approval of the modification would remove an essential feature from the originally approved development, i.e. the trees conditioned to be retained. Three active Development Consents (DA17/1956, DA19/1091, & DA19/1470) stipulate that the area of vegetation, the subject of this application, be retained. Consideration must be given as to whether merely modifying the relevant conditions under DA17/1956 would legally enable the applicants to remove further trees on the subject site, as subsequent development consents have expressly stated, both on approved plans and through conditions of development consent, that the trees must be retained. “Where multiple consents apply to the same parcel of land, all of the consents may operate unless the implementation of one consent is no longer a practical possibility due to development already having been undertaken pursuant to another consent” [Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 2) [2018] NSWLEC 195]. All three Development Consents are interconnected and able to operate concurrently on the subject site. The direction to the applicant to retain the vegetation has been consistent across all the relevant applications. Therefore, merely approving the current modification would not release the applicants from the requirement to retain the vegetation. c) the proposal does not require notification under the relevant Community Consultation Policy. No submissions were received. d) no submissions were received.
Development & Environment Committee – Tuesday 01 September 2020 Page 24
Biodiversity Conservation (Savings and Transitional) Regulation 2017 On 22 February 2019 the Office of Environment and Heritage certified the following under clause 34A (4) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017: a) The proposed development the subject of a development application on the land is part of a relevant planning arrangement for which the biodiversity impacts of the proposed development have been satisfactorily assessed before 25 August 2017, and b) That the conservation measures to offset the residual impact of the proposed development on biodiversity values after the measures required to be taken to avoid or minimise those impacts have been secured into the future. The proposed development the subject of a development application is only certified by the order if it complies with the requirements of the relevant planning arrangement. For the purposes of the order: 1. The land is the land identified as ‘Stage 1A’ in Annexure ‘A’ to the order. 2. The relevant planning arrangement is the staged development consent SF9821, granted by Shoalhaven Council on 16 May 2013. To avert the need for an applicant to prepare a Biodiversity Development Assessment Report (BDAR) when developing lots within the subdivision (should the clearing exceed the Offsets Scheme Threshold; Part 7 > Biodiversity Conservation Regulation 2017) applicants must comply with the subdivision consent (SF9821). This is because the original subdivision application contains the relevant planning arrangement. DE20.88 As the approved Environmental Management Plan (EMP) is incorporated in the subdivision approval, the applicant must adhere to the requirements of the EMP in order to comply with the requirements of the Office of Environment and Heritage. Any further clearing upon the subject site would contravene these requirements. Legal Implications Planning, Environment & Development Group staff have sought legal advice on the proposed development which has been provided under separate private cover as a confidential attachment. The legal advice has not been referred to in this public report and the contents of this report merely stem from the assessing officer’s 4.55 assessment and consultation with internal staff members within the Planning, Environment & Development Group. Planning Assessment The proposal has been assessed under s4.55 of the Environmental Planning and Assessment Act 1979 (Refer attachment 2). Office of Environment & Heritage - Environmental Management Plan At its Development and Environment Committee meeting on 2 June 2020, Council resolved to explore the possibility of amending the relevant Environmental Management Plan (EMP) to allow consideration of determining this s4.55 modification by way of consent (MIN20.388). The EMP is attached (Refer attachment 6). Council staff wrote to the Office of Environment and Heritage (OEH) seeking their advice and a response was received on 10 July 2020 (Refer attachment 8). OEH have stated “…we do not support modification of the EMP to allow further tree removal unless council deems the removal necessary”. For Council to deem the removal necessary, it must be satisfied that the trees pose an imminent risk to life and/or property. There is no assessment by an arborist or other suitably qualified person to support this position.
Development & Environment Committee – Tuesday 01 September 2020 Page 25
Office of Environment & Heritage have further advised that in making this consideration, Council is reminded of previous warnings received regarding non-compliance with concurrence conditions (attachment 3) and that the granted clause 34A Certification for Stage 1A of Tallimba Estate, is reliant on compliance with a ‘relevant planning arrangement’ to which the retention of these trees as described in the SIS and EMP is integral to retaining this certification.
Summary and Conclusion Council’s role is to determine the abovementioned application with consideration given to both previous determinations and future implications. As outlined in this report, it is recommended that Council refuse the application.
DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 26
Attachment 1
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 27
Attachment 3
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 28
Attachment 3
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 29
Attachment 3
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 30
Attachment 4
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 31
Attachment 5
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 32
Attachment 5
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 33
Attachment 5
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 34
Attachment 5
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 35
Attachment 5
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 36
Attachment 5
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 37
Attachment 5
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 38
Attachment 8
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 39
Attachment 8
- DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 40
Attachment 8
-
DE20.88
Development & Environment Committee – Tuesday 01 September 2020 Page 41
DE20.89 Clause 4.6 Variation Request - DA20/1031 - 5 The Concourse, Cambewarra Village
DA. No: DA20/1031/4
HPERM Ref: D20/351020
Section: Building & Compliance Services Approver: Phil Costello, Director - City Development
Attachments: 1. Report - Submission Under Clause 4.6 Shoalhaven LEP 2014 - Lot 2011 DP 1052766 - 5 The Concourse Cambewarra Village (under separate cover) ⇨ 2. Forms - Neighbour Approval - Lot 2011 DP 1052766 - 5 The Concourse Cambewarra Village (councillors information folder) ⇨
Description of Development: Attached First Floor Habitable Room with Separate Entrance comprising clause 4.6 (SLEP 2014) variation
Owner: L N Jennings & D G Campbell. Applicant: Nest Residential Design Pty Ltd. DE20.89 Notification Dates: 7 February 2020 – 24 February 2020.
No. of Submissions: One (1) submission received.
Purpose / Reason for consideration by Council To seek approval from Council on a LEP variation relating to the 5m height of buildings development standard in clause 4.3 (Height of Buildings) of Shoalhaven Local Environmental Plan 2014 (SLEP2014). The application seeks to vary the height from 5.0 metres to 7.71 metres and this represents a 54.2% variation. The extent of the variation is such that staff do not have delegation to deal with the matter. Where a development standard is more than 10%, the variation must be reported to the elected Council. In this instance, Council is able to assume the concurrence of the Secretary of the Department of Planning and Environment for clause 4.6 variations to vary a development standard. This report recommends that the variation be supported, and the application is referred back to staff for determination.
Recommendation (Item to be determined under delegated authority) That Council 1. Support the variation of the height limit from 5.0 metres to 7.71 metres pursuant to clause 4.6 (Exceptions to development standards) of SLEP 2014; and 2. Refer the development application (DA20/1031) back to staff for determination.
Development & Environment Committee – Tuesday 01 September 2020 Page 42
Options 1. Resolve to support the requested variation to the maximum height of buildings requirement. Implications: This will permit the application to proceed in its current form.
2. Resolve not to support the requested variation to the maximum height of buildings requirement. Implications: This would result in the applicant needing to reconsider the design of the proposed development.
3. Resolve to modify the recommendations contained in this report. Implications: This would require Council to provide direction to staff.
Location DE20.89
Figure 1 – Location Map.
Development & Environment Committee – Tuesday 01 September 2020 Page 43
DE20.89
Figure 2 – Zoning Map.
Development & Environment Committee – Tuesday 01 September 2020 Page 44
Figure 3 – clause 4.3 Height of Buildings Map (SLEP 2014). Background: Proposed Development The application seeks approval for an attached first floor habitable room with separate
entrance.
DE20.89
Figure 4 – Elevations (North & South).
Figure 5 – Site Plan.
Development & Environment Committee – Tuesday 01 September 2020 Page 45
Subject Land, Surrounding Area & Context The subject site is 5 The Concourse, Cambewarra Village which is legally described as Lot 2011 in Deposited Plan 1052766. The site is irregularly shaped, and it is located on a corner allotment. The site is generally level. This site contains a dwelling house and swimming pool and it is accessed from The Terrace. The surrounding area is characterised primarily by detached single and two storey dwellings on individual parcels of land. The site and immediate surrounds have a mixture of R2 – Low Density Residential and RU1 – Primary Production zonings. A large public recreation area is located to the west of the site with a zoning of RE1 – Public Recreation. History The site was created as a residual lot (PT 133) within the initial Deposited Plan under the subdivision consent SF8832 and was registered on 12 June 2002. The following restriction
as to user was created under SF8832, although, PT 133 was not burdened by the restriction:
“No building shall be constructed on any lot burdened unless its structure (not including vents, aerials, chimneys or similar minor facilities) is no higher than the horizontal plane which is five metres above the highest point of the natural ground to be occupied by the building. If the natural slope allows, two storey and/or split-level construction shall be allowed for part of the building providing
the building complies with the above height restriction”. DE20.89 Lot PT133 was further subdivided into two lots (the subject site Lot 2011, and Lot 2012) under SF9236 which was approved on 5 March 2003 and registered on 13 May 2003. The subdivision consent for SF9236 imposed a similar condition, that the maximum permissible height limit be 5m for the lot burdened. However, this restriction as to user does not appear to have been created on the 88B instrument. The following applications have been considered on the subject site: (a) DA03-1548 – New Dwelling (Urban) – Approved – 6 April 2004 (b) DA04-2747 – Swimming Pool (In Ground) – Approved – 20 February 2004 (c) OC05 Final Occupation Certificate – Swimming Pool (Inground) – Approved – 29 September 2005
Issues: Clause 4.3 (Height of Buildings) of SLEP 2014 Clause 4.3 contains controls for the maximum height of buildings and it specifically outlines the maximum height of a building must not exceed that shown on the ‘Height of Buildings Map’ that supports SLEP 2014. In this instance, the maximum height is 5m. The development does not comply with this development standard as it is proposed to have a maximum height of 7.71m. This represents a 54.2% variation to the requirement. The extent of the building that will be above the 5m height limit is shown below:
Development & Environment Committee – Tuesday 01 September 2020 Page 46
Figure 6 – 3D Model Indicating Portion of Building to Extend Beyond Height Limit. DE20.89 Clause 4.6 (Exceptions to Development Standards) of SLEP 2014 Pursuant to clause 4.3 of the Shoalhaven Local Environmental Plan 2014, the prescribed height limit for the subject site is 5m. The nature of the proposed development comprises a request to vary this development standard, allowing the resultant building to stand 7.71m above existing ground level. The following photographs show the existing dwelling:
Development & Environment Committee – Tuesday 01 September 2020 Page 47
Photograph 1: View of Existing Dwelling from Intersection of ‘The Concourse’ and
‘The Terrace’.
DE20.89
Photograph 2: View of Western Elevation of Existing Dwelling from Streetscape ‘The Terrace’.
Photograph 3: View of Interface Between Existing Dwelling and Neighbouring Lot 101 – 3 The Terrace.
Development & Environment Committee – Tuesday 01 September 2020 Page 48
DE20.89
Figure 7 – Panoramic Aerial Image of the Southern Elevation of the Existing Dwelling and Adjoining Lots. Comment: The above photographs indicate that the bulk and scale of the existing building are typical of the streetscape. The external appearance of the existing building gives the illusion that the building is already two storey, when it is in fact single storey. The existing roof of the dwelling comprises a mixture of flat, curved and skillion features which are not overbearing. The extension of the existing building above the 5m height limit is sympathetic to these features, and will be constructed of similar materials and colours to that of the existing building. Should Council determine the application by way of approval, 62.4% of the resultant building will be below the existing 5m height limit which would be a reasonable outcome considering the merits of this case. The applicant has provided a written request seeking to justify the contravention of clause 4.3 and has demonstrated that: (a) Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) That there are sufficient environmental planning grounds to justify contravening the development standard. Comment: As expanded upon in attachment 1, the applicant has demonstrated this by submitting the height limit is unique, does not apply to the majority of the surrounding area, the resultant building will be of similar typology to existing development in the streetscape, and the constraints of the existing site mean that an upper level addition is appropriate.
Development & Environment Committee – Tuesday 01 September 2020 Page 49
Further, the majority of the resultant building will be below 5m in height, and the development does not present any severe or devastating impacts upon adjoining neighbours. Additionally, the proposed development is consistent with the objectives of the development standard it seeks to vary, namely clause 4.3 (Height of Buildings) of the Shoalhaven Local Environmental Plan 2014. The height limit of 5m has also previously not been adhered to (see 1 Lebene Grove, Cambewarra Village). The resultant building will also not extend beyond the height limit of 8.5m which applies to the vast majority of lots within the area that surrounds the subject site. The request (attachment 1) accompanies this report. Further reasons for support of the request are: (a) The proposed development meets the objectives of the development standard it seeks to vary, notwithstanding the non-compliance with prescribed planning controls. (b) The design, bulk and scale of the proposed development are compatible with the existing and desired future streetscape and will have a minimal impact on the natural and built
environment.
(c) The prescribed building height for the immediate surrounding area is 8.5m. (d) The architectural features of the existing building currently present to the public domain with the appearance of an upper level which will not be unreasonably exacerbated by the proposed development. (e) The applicants are constrained by increased density resulting from the previous two lot subdivision which hinders their ability to erect additions to the proposed development DE20.89 within the existing configuration of built form on the subject site. (f) The proposed development adheres to the Department of Planning and Infrastructure document “Varying Development Standards – A guide” (2014). (g) The proposed development meets the “five-part test” as outlined in Wehbe v Pittwater Council [2007] NSWLEC 827. (h) An existing dwelling at 1 Lebene Cr, Cambewarra Village (DA10/2311) has been approved in excess of the 5m height limit which also applies to that site. (i) Numerous directly adjoining neighbours have informed Council of their support of the variation in writing. Only one submission has been received which objects to the proposed development. Please see attachment 2 for neighbour support.
Planning Assessment: The DA is being assessed under s4.15 of the Environmental Planning and Assessment Act 1979. Part of the assessment requires resolution of the height issue pursuant to clause 4.6 which is the subject of this report. It the height variation is supported, then the application can return to the assessing officer for completion.
Consultation and Community Engagement: The application was notified in accordance with Council’s Community Consultation Policy. One (1) submission was received from the neighbour to the south of the site. The following concerns were raised: (a) Impacts upon views. Comment: Surrounding land views (including, but not limited to, Cambewarra Mountain) are not considered ‘Iconic Views’. The surrounding properties enjoy partial views of Cambewarra
Development & Environment Committee – Tuesday 01 September 2020 Page 50
Mountain and/or whole views of the surrounds. The proposed development is not considered to unreasonably diminish these views from surrounding properties despite exceeding the SLEP 2014 height limit of 5m. Most surrounding sites must adhere to an 8.5m height limit, whereas the subject site is burdened by a 5m height limit. At the time of subdivision (SF8832) that resulted in the residual lot PT133 to be further subdivided into the current allotment, the land had only recently been rezoned to allow for residential development. It was determined that the subdivision would form the south-eastern fringe of the Cambewarra residential village, and additional height controls were necessary to ensure that the residential development suitably transitioned to the surrounding pastoral landscape. Consequently, a 5m height limit was imposed and ultimately adopted by the Shoalhaven Local Environmental Plan 2014. However, given the subdivision of PT 133 into Lot 2011 and Lot 2012 under SF9236, the subject site no longer directly adjoins the RU1 zone that initially triggered the 5m height limit. The subject site is a corner allotment with the adjoining street ‘The Terrace’ running in a North-South direction. The site adjoins only side boundaries of neighbouring dwellings. It is
considered that the front and rear views of these site will remain unchanged.
Any resulting view loss could reasonably be considered minor or perhaps moderate but not considered severe or devastating. (b) Impacts upon visual and acoustic privacy. Comment:
The adjoining neighbour to the east of the site has signed a petition to the effect that no DE20.89 objection to the proposed development is raised. The windows on the eastern elevation of the proposed development are capable of being screened or obscured by a fixed louvre screen. Most of the windows on the western elevation of the proposed development are below the SLEP 2014 height and front the streetscape. The window on the southern elevation does provide an opportunity to overlook the adjoining property (Lot 101 DP 1034706) and a submission has been received to this effect. The window should be screened or obscured, and the consent conditioned appropriately to require a fixed louvre screen or other appropriate measure to the satisfaction of Council. Windows on the northern elevation are appropriately separated from windows of nearby dwellings as this elevation faces the streetscape of ‘The Concourse’. These windows are deemed acceptable as per the architectural plans. (c) Impacts upon solar and daylight access. Comment: The submitted shadow diagrams indicate that portions of the pool area of the adjoining dwelling will not receive the minimum of 3 hours of sunlight between 9am and 3pm on 21 June. The shadow diagrams do indicate that adjoining north-facing windows, roof, and any solar collectors would not be unreasonably impacted and in excess of 3 hours of sunlight is achieved between 9am and 3pm on 21 June. The adjoining pool area is approximately 55.32m² and it does not represent the entirety of the principle private open space of the property. A minimum of 10m² is retained for 3 hours of sunlight between 9am and 3pm on 21 June and this complies. (d) The proposed development does not comply with clause 4.3 (Height of Buildings) of the SLEP 2014.
Development & Environment Committee – Tuesday 01 September 2020 Page 51
Comment: The proposed development is considered to meet the objectives of clause 4.3 (Height of Buildings) notwithstanding the non-compliance with the height control. This consideration is to be determined by Council and should be supported for the reasons outlined in this report and the accompanying attachments. (e) Carparking. Comment: The proposed development does not require any additional carparking as it is purely an extension of the existing dwelling. The existing allotment has sufficient area for two parking spaces behind the building line in accordance with the Shoalhaven Development Control Plan 2014. The existing provisions are ample and will remain unchanged by the proposed development. (f) The proposed development is not a detached habitable room. Comment: The applicant has revised the proposal to now represent an attached first floor habitable room with separate entrance. If the clause 4.6 variation request the subject of this report is granted, Council will impose development consent conditions, and work with the
applicant to ensure that the building is not fully self-contained, operate as a separate dwelling house, or used for commercial purposes.
Financial Implications: Whilst not a consideration pursuant to clause 4.15 Evaluation of the Environmental Planning and Assessment Act 1979, potential costs may arise for Council in the event of not supporting the requested variation to the height limit and refusal of the application. Such DE20.89 costs may be associated with defending an appeal in the Land and Environment Court of NSW.
Legal Implications: If the requested variation is not supported and the application subsequently refused, or if the applicant is dissatisfied with Council’s determination, the applicant has the right to appeal to the Land and Environment Court.
Summary and Conclusion: The applicant’s submission has provided sufficient justification to demonstrate that given the specific circumstances of this case, that the 5m height limit is unreasonable and that there is sufficient environmental planning grounds to justify contravention of the height requirement and that the proposal is in the public interest and should be supported.
Development & Environment Committee – Tuesday 01 September 2020 Page 52
DE20.90 DA19/1857 – 52 Parker Crescent, Berry – Lot 710 DP 1247531
DA. No: DA19/1857/4
HPERM Ref: D20/257461
Section: Development Services Approver: Phil Costello, Director - City Development
Attachments: 1. Planning Report - 52 Parker Cr BERRY - Lot 710 DP 1247531 (under separate cover) ⇨ 2. Report - Request for Information (RFI) Response Letter by Applicant - 52 Parker Crescent Berry - Lot 710 DP 1247531 ⇩ 3. Draft - Determination - Refusal - 52 Parker Cr BERRY - Lot 710 DP 1247531 ⇩
Description of Development: Construction of Multi Dwelling Housing – Five (5) Detached Dwellings, and Strata Title Subdivision
Owner: TWA Developments Pty Ltd Applicant: Adam Sturt C/o SET Consultants Pty Ltd DE20.90
Notification Dates: 10-25 September 2019
No. of Submissions: 99 in objection Nil in support
Purpose / Reason for consideration by Council Councillors called in the Development Application (DA) due to the significant public interest on 8 October 2019.
Recommendation (Item to be determined under delegated authority) That Development Application DA19/1857 to construct multi dwelling housing (five (5) detached dwellings) and strata title subdivision at Lot 710 DP 1247531, 52 Parker Crescent, Berry be refused subject to the reasons contained in Attachment 3 of this report.
Options 1. Refuse the development application (DA) in accordance with the recommendation of this report. Implications: The development is unable to proceed as applied for and a S8.2A review may be sought by the applicant or an appeal with the Land and Environment Court is possible in the event of a refusal of the application.
2. Approve the application. Implications: Council would need to determine the grounds on which the application is approved, having regard to section 4.15(1) considerations.
3. Alternative recommendation.
Development & Environment Committee – Tuesday 01 September 2020 Page 53
Implications: Council will need to specify an alternative recommendation and advise staff accordingly.
Figure 1 – Location Map
Background Proposed Development
The DA seeks approval for the construction of multi dwelling housing, comprising five (5) DE20.90 detached dwellings, and Strata Title subdivision: ▪ five (5) x 3-bedroom dwellings (three (3) of them being two-storey and two (2) at the rear of the site being single storey); ▪ 10 car spaces provided onsite; and ▪ vehicular access from Parker Crescent.
Figure 2 – Site Plan
Development & Environment Committee – Tuesday 01 September 2020 Page 54
Figure 3 – Elevations
DE20.90
Figure 4 – Landscape Plan
Development & Environment Committee – Tuesday 01 September 2020 Page 55
Subject Land The development site comprises Lot 710 DP 1247531 (52 Parker Crescent, Berry). Refer to Figure 1.
Site & Context The development site: ▪ Is vacant and rectangular in shape, located on the eastern side of Parker Crescent, in the southwestern corner of the Huntingdale Park Estate. The site is one of the highest points in the Estate. ▪ Was created as part of the release of Stage 7a of the Huntingdale Park subdivision (being Development Consent SF9320 as modified). ▪ Is zoned R1 General Residential and is 2,062sqm in area.
▪ Is identified as being partially bush fire prone land and flood planning area (in the eastern
section of the site). ▪ Has existing access to Parker Crescent. ▪ Adjoins land zoned R1 General Residential.
Figure 5 – Zoning Extract DE20.90
History The following provides details on pre-lodgement discussions, post-lodgement actions and general site history for context: ▪ The application was lodged on 29 August 2019. ▪ As a result of detailed assessment of the application, additional information was requested from the applicant on four (4) occasions – 10 September 2019, 13 November 2019, 16 January 2020 and 18 March 2020.
Development & Environment Committee – Tuesday 01 September 2020 Page 56
▪ On 12 January 2020, 16 January 2020, 7 February 2020, 8 May 2020, 29 May 2020 and 11 June 2020, the applicant submitted additional information, which was subsequently referred to the relevant sections of Council and external agencies for comment. ▪ A Resident Briefing Meeting was held in Berry Town Hall, on 26 February 2020.
Issues Deposited Plan and 88B Instrument: The development site is burdened by Restrictions on the Use of Land (which Council is authorised to release, vary or modify) as follows: ▪ No dwelling is to be constructed unless it is provided with a roof water collection tank of minimum capacity 10,000L to be used for gardening, laundry and flushing of toilets to the requirements of Council. ▪ No dwelling is to be designed in such a manner that it will detract from and not be compatible with the existing bulk and scale of the housing stock within the Berry
township.
▪ No building shall be constructed of metal deck cladding having an external surface area greater than 50% of the building. ▪ No building shall be constructed unless it has a roof pitch equal to or greater than 15 degrees. ▪ No building shall be constructed with a total floor area exceeding 35% of the site. ▪ No front or side fence shall be constructed on any boundary, unless it is constructed of
materials in character with the proposed dwelling. DE20.90 ▪ Where the rear of any proposed structures are greater than 70m from the nearest hydrant, a new hydrant is required to be installed as per AS2419 – “Fire Hydrant Installations”. Location of hydrant to be delineated by blue pavement markers in the centre of the road. ▪ No building shall be constructed unless it has a side boundary setback of 5m and front street boundary setback of 12.5m.
The applicant is seeking to vary the above Restrictions in relation to a roof water collection tank of minimum capacity 10,000L and front street boundary setback of 12.5m. Each dwelling is proposed with a 4,000L rainwater tank to collect stormwater runoff from the roof of each dwelling. The capacity of each tank contains 1,500L for OSD, with further details provided on the submitted concept stormwater plans. 2,500L for rainwater storage is to meet the BASIX commitments. Across the five (5) dwellings a cumulative capacity of 20,000L is provided. While the development has not proposed a 10,000L rainwater tank for each dwelling, it is considered that the considerably smaller yard area of each lot will reduce the water usage of each dwelling. The applicant contends in the submitted Statement of Environmental Effects that: “…the intent behind this Restriction placed on the lot is unclear. However, it is assumed that the restriction was created to achieve a more sustainable outcome for future developments and reduce the demand on the reticulated water supply. Each dwelling will be constructed to meet the BASIX requirements. Although the development does not supply each dwelling with a 10,000L tank, a 4,000L tank is to be connected to each dwelling with a total storage volume of 20,000L across the development. The stormwater collected in each tank will be reused for gardening and be connected to laundry and toilet facilities. The development is deemed to provide an appropriate level of water reuse capacity to reduce the demand on the town water supply.” A 10.5m front boundary setback is proposed. The applicant addresses this, in advice dated 8 May 2020 as follows:
Development & Environment Committee – Tuesday 01 September 2020 Page 57
“Further to the Resident Briefing Meeting and additional submission period, the development has been modified to account for some of the topics raised. Two issues raised by the public relate to the rear setback and stormwater drainage of the site. Although both originally complied with DCP requirements, the development has been amended to now provide a 2.6m setback to the eastern (rear) boundary. As a result, the development has been shifted towards the street frontage by 2m. This has also benefited the stormwater drainage to the street. An amended set of Architectural Plans have been prepared by Nest, and an amended Stormwater Plan prepared by SET Consultants both submitted with this RFI response. The 10.5m front setback requires a variation to the 88B Restriction Numbered 8 under DP 1247531, which requires a 12.5 metre front setback to the front street boundary, and 5m side setback. Shoalhaven City Council is authorised to vary this restriction. The proposed development remains consistent with the side setback restriction of
5m, however provides a 10.5m front setback equating to a variation of 16%. It is
noted that lesser setbacks have been approved in the surrounding area, with the dwelling approved at 65 Parker Crescent under DA19/1476 providing a 10m front setback. The proposed front setback is still provided with sufficient space for driveways, parking and landscaping. There are no foreseeable significant impact on the surrounding streetscape as a result of the proposed setback.” The generous front street boundary setback restriction of 12.5m was imposed with the original subdivision consent SF9320 (approved by Council on 27 August 2003) that created DE20.90 the subject site (following multiple modifications). This was to ensure compatibility with the character and historical attributes of Berry and compliance with the provisions of Development Control Plan No. 70 – Berry, now referred to as Chapter N3: Berry Residential Subdivision, Shoalhaven Development Control Plan 2014 (SDCP 2014). Presumably, the nominated setback also was a response to the large lot sizes. The proposed reduced front setback whilst reducing the impact of a minimal rear setback, brings the development forward of the desired front setback envisaged for these large lots. The desired setback is considered a control intended as a means, along with a combination of other controls a way to assist the creation of a certain character foreshadowed for the area. This character is a low-density residential environment with generous areas available for substantive gardens and green space.
Council’s Development Control Plan (DCP) Controls: A17.3 of Control 5.3.3 Private Open Space, Chapter G13 Medium Density and other Residential Development, SDCP 2014 There is a non-compliance with acceptable solution A17.3 of Control 5.3.3 Private Open Space and the defined hardstand area of usable space required to be provided for each dwelling. The overall private open space areas provided for each dwelling is in excess of the acceptable solution of 35m2. This area is however to have a minimum dimension of 5m x 4m, of which 50% is to be covered to provide protection from the elements. The defined hardstand areas of usable space with each dwelling are proposed with the following dimensions: • Dwelling No. 1 = 3m x 4.38m • Dwelling No. 2 = 3m x 3m • Dwelling No. 3 = 3m x 7.05m
Development & Environment Committee – Tuesday 01 September 2020 Page 58
• Dwelling No. 4 = 4.38m x 3.12m • Dwelling No. 5 = 4.38m x 3.12m
These hardstand areas do not comply with the acceptable solution.
Applicant’s Submission The applicant provided the following justification for the proposed alternative solution to the hardstand area numeric requirement. (Applicants are able to vary numeric controls if the underlying objectives of the control are achieved. There is further discussion on this later in this report.) “Each dwelling is provided with an area of private open space (POS) that is usable, and achieves the area requirements of the DCP. The amended Site Plan and Site Analysis Plan submitted with this application highlights the areas of usable POS. Although each dwelling is provided with over the 35m2 area POS requirement. Strict
numerical compliance with A17.3 is not achieved for each dwelling, as a minimum dimensions area of 5m x 4m is not provided as handstand. A Variation Statement is provided below: As per the requirements of the Environmental Planning and Assessment Act 1979 (The Act) we are requesting Council apply flexibly to the DCP given the merits of the case. It should be recognised that Section 3.42 of Environmental Planning and Assessment Act 1979 (The Act) states that the DCP is only to provide guidance and is not a statutory document with which compliance must be demonstrated. To this end, cases in the DE20.90 Land and Environment Court have made it clear that a DCP does not have the same status or weight as an LEP, and non-compliance with a provision of a DCP does not in itself prevent the granting of consent. The Act goes further, in relation to strict numerical compliance to a DCP, attention is drawn Section 4.15(3A) of The Act which grants discretion to a consent authority to apply flexibility in the application of the provisions of a DCP in the assessment of a development application and states as follows: “(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.” Subclause (b) is of most relevance as it emphasises that there may be alternatives to strict numeric compliance in achieving the objectives of a DCP control. It compels the consent authority to be flexible in the application of the DCP controls where the objectives of that control are met. To not apply the DCP flexibly is to be in contempt of The Act.
Development & Environment Committee – Tuesday 01 September 2020 Page 59
Variation to POS Hardstand The DCP Acceptable Solutions A17.3 of the Shoalhaven Development Control Plan 2014 –Chapter G13 requires: “Where the private open space of a dwelling is provided at the ground level, it shall: • Include a defined hardstand area (e.g. concrete, paving, decking) of usable space which: - Is setback at least 1.2m from an external boundary. - Has a minimum dimension of 5m x 4m, of which 50% shall be covered to provide protection from the elements. • Have a minimum dimension of 2m for all other areas. • Have a gradient no steeper than 1:20. • Be adequately screened to provide privacy to residents.” Each dwelling is provided with ground floor POS, that include attached decked terraces, turfed areas and landscaping. The proposed decked terrace areas do not
meet the minimum dimensions required by the Acceptable Solution, however do comply with the minimum setbacks and 50% coverage from the elements. Where strict numerical compliance with the Acceptable Solution cannot be demonstrated, the associated Performance Criteria must be achieved. The proposal is consistent with the Performance Criteria that the Acceptable Solution requesting the variation is under. The associated Performance Criteria are as follows:
P17 Private open space is: DE20.90 • Functional and useable for residents all year round. • Dimensioned to suit the projected requirements of the residents, and to accommodate outdoor recreational needs and service functions. • Capable of serving as an extension of the function of the dwelling for relaxation, dining, entertainment, active recreation and children’s play. • Located to take advantage of outlook and natural features of the site. • Located to mitigate against external noise. • Designed to take account of the impact of adjoining dwellings on privacy and overshadowing. Similarly to the Performance Criteria, the Objectives of the DCP chapter are also considered to be achieved by the proposed development. The objectives are listed below, with comment provided with how both the Performance Criteria and Objectives are achieved: i. Ensure that the private open space provided for a dwelling is useable and meets user requirements for privacy, safety, access, active and passive outdoor recreational activities and landscaping. ii. Locate private open space to take account of outlook, natural features of the site, solar access and neighbouring buildings or public domain. Each of the dwellings are provided with a usable terrace area accessible from the internal living rooms. Although these terraces do not strictly meet the dimension requirements, they would still provide a usable space for future residence. The areas are sheltered with the roof of the dwellings extending over these areas. The terraces are appropriately setback from the site boundaries, compliant with both the 88B and DCP requirements. In addition, the dwellings are provided with turfed and deep soil areas which provide a variety of other forms of recreation capable in the proposed yards. The development is also compliant with the landscaping requirements. It is noted that the areas of POS is located on the southern elevations of the dwellings, which reduces the solar access to the yards. The location of the POS is a result of maximising the potential views towards the Coolangatta Mountain to the south.”
Development & Environment Committee – Tuesday 01 September 2020 Page 60
With regard to overshadowing, the applicant has advised that the design maintains the suitable levels of solar access for adjoining sites.
Discussion The alternative or performance-based solution in relation to area for the hardstand part of the private open space proposed is substantial (being up to 55%). Taking into account potential occupancy of the units, noting each unit contains three (3) bedrooms, the reduced hardstand area poses concern. It is noted that the private open spaces could potentially ‘fit’ outdoor furniture and accommodate passive recreation, however combined with concerns about shade and useability for the potential number of occupants of the units, these spaces are not considered well designed or to be providing the level of amenity to occupants, which could include families.
Figure 6 – Open Space Diagram
DE20.90
With regard to solar access for private open space areas during the winter solstice (21 June) and based on the submitted shadow diagrams, only dwelling 5 receives a reasonable amount of morning sun with dwellings 3 and 4 receiving a lesser amount. The shadow diagrams for 12 midday and 3pm indicate that none of the private open space areas receive solar access during those periods. Where outdoor spaces are small, the amount of sunlight received is important, particularly in Winter. This is discussed further, later in this report.
A7.1 of Control 5.2.1 Local Character and Context, Chapter G13 Medium Density and other Residential Development, SDCP 2014 There is also an issue with acceptable solution A7.1 of Control 5.2.1 Local Character and Context having regard to the scale and appearance of the development and how it is compatible with and sympathetic to the existing and future desired development in the locality and amenity and character of the locality.
Development & Environment Committee – Tuesday 01 September 2020 Page 61
The current design of the development (footprint, bulk and scale) is considered out of character in this locality. Although the estate is still undergoing further development, and the subject planning controls will establish the character of the area, it is considered that the allotments in this area of the estate were intended to form a less dense environment, that is, housing on large lots, with ample space for gardens. In this regard, attention is drawn to the submission prepared by Barker Ryan Stewart Pty Ltd (on behalf of the residents) which states the following: “…Single dwelling development with consistent front, rear and side setback is provided in the locality with an emphasis on open space and landscaped aesthetics. The proposed development is inconsistent with the following objectives that form an assessment of local character and context within Shoalhaven DCP Chapter G13: Medium Density and Other Residential Development. The proposed development comprising multi dwelling housing in an established single dwelling locality and is inconsistent with a myriad of objectives that require compatibility
with the character of existing buildings and prevailing streetscape. The adjacent property
(Lot 711 DP1247531) incorporates single storey, large lot design with traditional façade and detached garage. The proposed development is highly incompatible with the adjacent property and the proposal will generate detrimental impacts to the landscape and built form of Parker Crescent. The visual aesthetics and articulation of the development, as viewed from side boundaries, does not contribute to the existing streetscape and character of the local area nor is it consistent with recently constructed single dwellings in
the locality. The number and distribution of future dwellings on the site will significantly DE20.90 alter the amenity of the area through a concentrated localised injection of medium density development. Should the proposed development be supported by Shoalhaven City Council, the cumulative impact of this, inclusive of unacceptable amenity impacts, will be dealt with by surrounding residents that have strictly adhered to LEP controls and important DCP objectives that guide the provision of compatible development.” It is noted that “compatible” does not encourage “sameness” in built form, but rather requires a development to fit comfortably within its urban context. It is considered that the design of the development in its current form does not currently achieve this. Whilst this type of development is permissible in the zone it is the design, siting and density that is causing ‘issue’ having regard to what constitutes a suitable character and compatibility with surrounding development. A reduced footprint, additional landscaping and good solar access would assist in achieving a more compatible design outcome.
A16.1 of Control 5.3.2 Solar and Daylight Access, Chapter G13 Medium Density and other Residential Development, SDCP 2014 There is also an issue with A16.1 of Control 5.3.2 Solar and Daylight Access and the levels of solar and daylight access required to be provided for each dwelling. New dwellings are to be oriented to make appropriate use of solar energy by maximising solar access to north- facing windows, sited and designed to ensure that the energy efficiency of existing dwellings on adjoining lots is not reasonably reduced, and designed to locate living areas and private open space on the northern side of the development and non-habitable areas to the south and west of dwellings. Reference is made to the submission prepared by Barker Ryan Stewart Pty Ltd, which states the following: “As per submitted Site Plan & Site Analysis Plan, proposed private open space provisions are orientated to the south. This is generally inconsistent with the desire to locate open space areas with a north facing orientation to capitalise on solar access, particularly in mid-winter.
Development & Environment Committee – Tuesday 01 September 2020 Page 62
Confirmation of the shadow impacts to south facing open space provisions are provided in submitted Shadow Diagram at 21st June (9:00am, 12:00pm, 3:00pm). Between 9am and 3pm in mid-winter, the private open space provisions of Dwellings 2-4 receive almost zero solar access. Dwelling 1 receives an insignificant portion of solar access at 3:00pm, whilst Dwelling 5 receives a small portion of sun at 9:00am. By 12:00pm however, the open space of Dwelling 5 is in complete shadow. The proposed design is inconsistent with Acceptable solution A16.1 (G13 Medium Density DCP) which provides the following: Dwellings are to be: Designed to locate living areas and private open space to the northern side of the development and non-habitable areas to the south and west of the dwelling. The proposed design facilitates development that is entirely inconsistent with this clause. The proposal sites non habitable garages to the north and habitable living space, inclusive of associated private open space to the south. This is at odds with the principles of ecologically sustainable development and would limit opportunities for natural light in high use areas. The proposed design is likely to facilitate a reliance on artificial light and
heating to address easily identifiable design inadequacies. The proposed design is inconsistent with Clause 5.3.3 (G13 Medium Density DCP) as discussed below: The specific objectives are to: Ensure that the private open space provided for a dwelling is useable and meets user requirements for privacy, safety, access, active and passive outdoor recreational activities and landscaping. iii. Locate private open space to take account of outlook, natural features of the site, solar access and neighbouring buildings or DE20.90 public domain. The private open space does not provide for genuine active and passive recreational activities given that the dwellings' rear POS will be in shade for the entirety of the day. Refer to Figure 7 below for confirmation of shadows to rear open space on the right of frames. The private open space is also poorly located and does not take into account the orientation of the subdivision pattern or solar access opportunities. The submitted Shadow Diagrams only reinforce that the proposed development has not been designed to respond to the site or environmental characteristics of the Huntingdale Park Estate. It is recommended that the Land and Environment Court Planning Principles in relation to solar access be referenced in this regard.” It is agreed that the design of the development does not provide quality open space and that the extent of shade in Winter is such that occupants may not be able to easily enjoy those areas. Locating the open space areas to the south, inclusive of the reduced hardstand areas specifically intended for passive activities such as outdoor dining are not good design outcomes.
Comment on DCP alternative solutions Chapter 1 of the Shoalhaven DCP explains that the DCP aims to allow flexibility in the application of development controls and that Council may consider ‘variations’ to requirements of the DCP. Acceptable solutions are provided as examples of what is considered acceptable for the respective performance criteria and objects. Council can consider alternative solutions in circumstances provided the objectives and criteria are met. The Applicant is correct in stating the DCP is a guideline having regard to the provisions of the Environmental Planning and Assessment Act 1979. Planning Circular
Development & Environment Committee – Tuesday 01 September 2020 Page 63
PS12-003 provides some background to changes made to the Act, which clarified the purpose of a DCP and advised that there is to be flexibility in the way DCPs are to be applied by consent authorities. See: https://www.planning.nsw.gov.au/-/media/Files/DPE/Circulars/planning-circular- proclamation-of-certain-provisions-of-the-ep-and-a-amendment-act-2012-2013-03-18.pdf
Planning Assessment The DA has been assessed under s4.15(1) of the Environmental Planning and Assessment Act 1979. Please refer to Attachment 1.
Consultation and Community Engagement: Notification was undertaken in accordance with Council’s Community Consultation Policy with letters being sent within a 60m buffer of the site, during the period 10 to 25 September
2019.
Ninety-nine (99) public submissions were received in relation to Council’s notification of the development, including a submission prepared by Barker Ryan Stewart Pty Ltd, a consulting planning firm commissioned by a number of adjoining landowners. They were all objections to the development. Key issues raised as a result of the notification include but were not limited to matters listed below. DE20.90 ▪ Compatibility with surrounding area. ▪ Privacy and overshadowing. ▪ Setbacks and landscaping. ▪ Inadequate parking. ▪ Stormwater drainage. ▪ The proposal cannot be subdivided as lot sizes are not achieved. (See below.) ▪ Development is within bushfire prone area. The assessment of the application considered the matters raised in the submissions (as prescribed by s4.15(d) and concluded on balance having regard to all the heads of consideration (section 4.15 Evaluation), that the application should be refused. A detailed analysis can be found in the attached section 4.15 assessment report.
Summary of Key Issues
Compatibility and character It is noted that the applicant addressed the ‘height, bulk and scale’ planning principle established by the NSW Land and Environment Court in Veloshin v Randwick Council [2007] NSWLEC 428 as part of their justification for the submitted development design, in advice dated 8 July 2020 (refer to Attachment 2). The following is noted: “The development site is located within the Huntingdale Estate, being a greenfield subdivision, is currently under development. As the surrounding area is currently being established, and at various stages of development, there is no established character. Therefore the planning controls which apply to the site and surrounding area, including the zoning of the land would be a means to establish a desired character. The subject site and surrounding lots are zoned R1 General Residential, which lists amongst other uses multi dwelling housing as being permitted with development consent. Along with the SLEP 2014 maximum height and FSR mapping, and the application of the controls of DCP Chapter G13, developments can be designed to demonstrate suitability to the desired character of the area.
Development & Environment Committee – Tuesday 01 September 2020 Page 64
As the development has demonstrated consistency with the planning controls, it is considered to also demonstrate consistency and compatibility with the desired character of the area.” The applicant also addressed the ‘compatibility of proposal with surrounding development’ planning principle established by the NSW Land and Environment Court in Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 in their advice. Whilst the above comments are noted, having regard to the emerging development and character of the estate, the 88B Instrument, and the available controls, the current design of the development is considered out of character in this locality largely as a result of the development footprint and its relationship with the adjoining development. For a new development to be ‘compatible’, building height, setbacks and landscaping are key. Where there are significant differences in height, compatibility can be achieved by a gradual change as opposed to an abrupt change (see paragraphs 26 – 29) Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191. The extent of the height differences also
depends on the consistency of height in the streetscape.
Whilst there is no issue with the architecture or ‘style’ in terms of it addressing the street, the setback is varied from the 88B, the side elevations and profiles show a development of some ‘height’, (see Figure 3) having regard specifically to the height of retaining walls and fences on top of those walls along the southern boundary. There is potential for this retaining wall structure and fence to achieve 3.5m in height. This is significant and would potentially impact on the future amenity of occupants of any future dwelling to the south.
The landscaping opportunities within the development itself are also reduced given the site DE20.90 coverage. A key contributory factor influencing character is landscaping and opportunities for landscaping, particularly on large parcels of land. Whilst there is opportunity for tree planning at the front of the development site and Council’s numeric requirements are achieved, opportunities for landscaping are limited within the site. Planting is basically limited to narrow perimeter planting and small garden beds (see Figure 4). Whilst it is conceded that this type of development cannot accommodate gardens of a size and scale associated with conventional dwellings, there still should be an ability to incorporate suitable landscaping. Landscaping not only adds to residential amenity but enhances a development and assists softening built form impacts. Berry is known as the “Town of Trees”. Gardens feature prominently in the identity of the town and character of the environs.
Privacy and overshadowing It is noted that the applicant addressed privacy and overshadowing as part of their justification for the submitted development design, in advice dated 9 January 2020. The following is noted: “The proposed development provides the required setbacks to each boundary. The setback to southern side boundary for each dwelling is 5m. Dwelling 1 is provided with a balcony on the first floor. The balcony is provided with a privacy screen along its eastern elevation. The setback to the side boundary is 5m, with a boundary fence to be provided along the side boundary. This is compliant with the 88B requirement. Shadow Diagrams were submitted with the original application. The development is consistent with the required setbacks that apply to the site. The development is stepped down from two storey dwellings to the front, to single storey dwellings to the rear.
Development & Environment Committee – Tuesday 01 September 2020 Page 65
Each of the proposed dwellings have been provided with a Basix and NatHERS Certificate which demonstrate compliance.” The applicant also addressed the solar and daylight access as part of their justification for the submitted development design, in advice dated 8 July 2020 (refer to Attachment 2): “The proposed development provides an access driveway along the northern boundary of the site, with a 5m setback provided to the southern side boundary. The dwellings are orientated to have areas of POS on the southern elevation, with adjoining living rooms accessing the outdoor areas. When the broader context is considered within Huntingdale Estate, there are a number of examples where dwellings appear to have a similar orientation with POS on the southern side of the development. Of particular note, developments on the southern side of Tressider Close and southern side of Parker Crescent to the north-east of the subject site. The SDCP 2014 chapter G13 provides the following Performance Criteria and Objective regarding Solar and Daylight Access.
P16 Dwellings are sited and designed to maximise solar access to living areas and private open space. i. Ensure that appropriate levels of solar and daylight access are provided to residents and maintained for surrounding development. The proposed development, although orientated with POS and living rooms on the southern aspect, will still maintain a suitable level of solar access for adjoining sites and dwelling onsite. Solar Diagrams were submitted with this application which demonstrates DE20.90 there is no significant overshowing on the surrounding properties. The diagrams do indicate that the structures will cast shadow onto the adjoin areas of POS. This circumstance is not out of the ordinary, as properties with street frontages to the north would generally have living rooms and private open space to the south. The orientation is comparable to properties located on the southern side of a street that runs on an east-west exist, rear yards will always be to the south of the dwelling. The proposed dwellings are provided with covered decks/terraces which adjoin the main living rooms. The covered portions of POS would not receive solar access and limit direct sunlight into the living room. Proposed dwellings 4 and 5 are single storey in height, and would gain a level of solar access in the mornings. The dwellings 1 and 2 will experience a level of solar access in the morning from the east, and afternoon sun from the west. With the proposed orientation of the development, the design of the dwellings have also aimed to maximise solar access. A design solution proposed is the use of Velux windows (sky lights) which allows solar penetration into the dwellings. Windows have been located on the eastern and western elevation where possible to also allow daylight and solar access particularly in the morning and afternoons.” The submission prepared by Barker Ryan Stewart Pty Ltd stated the following: “…Twelve (12) glazing openings are provided to the southern elevation which is grossly inconsistent with typical single dwelling development in the Huntingdale Park Estate or the Berry township. Whilst it is common for dwellings to incorporate approximately 3-4 openings to a side boundary to address visual and acoustic privacy impacts to surrounding development, the proposed design exhibits 3-4 times this and is considered to be a significant over development of the site. The proposed south facing second storey balcony supported in Dwelling 1 directly overlooks Lot 719 to the south, has nil privacy screening and unacceptably limits development options for the adjacent site. The proposed design is also inconsistent with
Development & Environment Committee – Tuesday 01 September 2020 Page 66
the following objective and performance criteria (G13 Shoalhaven DCP - Medium Density): i. Ensure the design of the site and buildings minimises impacts on the amenity of future and adjoining residents in relation to visual privacy, overlooking and noise. P14.2 Direct overlooking of main internal living areas and private open space of other dwellings and adjoining properties is minimised by building layout, location and design of windows, balconies, screening devices, landscaping or other effective means. The adjacent site to the south, Lot 719, is a lot of similar size to the subject site and is currently vacant. It is argued that the provision of twelve window openings orientated to this site severely limits the design or development potential of the site. If developed as per the prevailing dwelling density in the Huntingdale Park Estate, a single dwelling design would require inadequate siting and orientation to the south in an attempt to absorb the privacy impacts generated by the proposed development. As discussed throughout this submission, open space and living areas should always be orientated to the north where possible to maximise solar access and reduce the dependency on artificial heating and
lighting. It is therefore considered to be highly inequitable if Council determine that the design of future Lot 719 development should have to be compromised to account for the inefficient and incompatible design of the proposed multi-dwelling housing. The proposed development will generate additional privacy impacts to the north, associated primarily with building design that incorporates a higher provision of glazing to accommodate five dwellings than surrounding sites.
The proposed development will generate privacy impacts to the property to the east, No DE20.90 34 Tressider Closer, due mainly to the inadequate 1.1m rear setback to the eastern boundary. The eastern elevation of Dwelling 5 incorporates six (6) window and door openings with minimal setback to reduce overlooking into the adjacent pool area and private open space. In addition, a fence is unlikely to mitigate privacy impacts of this degree due to the gravity of siting a dwelling this close to the rear.” Having regard to The Benevolent Society v Waverley Council [2010) NSWLEC 1082, at paragraph 144 (Planning Principle established by the Land and Environment Court of NSW with respect to access to sunlight), it is worth noting that: “For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. Self- evidently, the smaller the open space, the greater the proportion of it requiring sunlight for it to have adequate solar amenity…” With regard to privacy, the upper level balcony associated with Dwelling 1, is 3 x 4.2m in size. This is substantial. The balcony is not associated with a low use room such as a bedroom, instead it adjoins a living area. There is potential for noise and privacy to be a concern depending on the ultimate design and siting of development on the adjoining lot to the south. (The lot to the south is currently vacant.)
Setbacks and landscaping The development is compliant and therefore considered satisfactory with the relevant requirements of Chapter G13, SDCP 2014 in relation to boundary setbacks and landscaping. However, it is acknowledged that the DCP is silent in relation to rear setbacks to (multi) dwellings, only referencing detached non-habitable outbuildings. It is noted that the DCP contains rear setback provisions for dwellings. The setbacks take into account the type of development and lot size. In essence, the bigger the lot, the larger the setback presumably accepting that conventional dwellings are taken to be occupied by larger households / families thus needing a larger yard space. Noting that multi dwelling housing provides essentially courtyards for open space, and that the DCP contains desirable
Development & Environment Committee – Tuesday 01 September 2020 Page 67 dimensions for hard stand areas associated with the dwellings, it would not be unreasonable to consider a rear setback between 3m - 7.5m, also having regard to the height of a development as well as what development and spaces adjoin the development site. The proposed setback of 2.6m, whilst not being contrary to any development control in the DCP, could be improved having regard to the low-density character evolving in the estate which would also improve landscape opportunities. This rear boundary is landscaped and ‘retained’ (see plans earlier in the report at Figures 3 and 4). Below is a detailed excerpt from the landscape plan.
Figure 7 – Landscape Detail – Rear Boundary
DE20.90
As mentioned earlier however, the opportunities for landscaping are minimum. Landscaping is an element that facilitates compatibility, character, good design and residential amenity. In this regard whilst ‘adequate’ additional landscaping would assist in integrating a multi dwelling development into a low-density estate by softening the appearance of the built form. Landscaping will be required to comply with the General Terms of Approval and Bush Fire Safety Authority issued by NSW Rural Fire Service, in the event of an approval being supported.
Development & Environment Committee – Tuesday 01 September 2020 Page 68
Inadequate parking The development is compliant with the onsite car parking requirements of SDCP 2014. Council’s Development Engineer raised no objections subject to recommended conditions of consent. Should the application be determined by approval, then these conditions would be included.
Stormwater drainage It is noted that the applicant addressed stormwater drainage as part of their justification for the submitted development design, in advice dated 9 January 2020. The following is noted: “The development application was accompanied with a Concept Stormwater Plan prepared by SET Consultants Pty Ltd. This plan demonstrates the proposed Stormwater management of the site. The site provides onsite detention within the proposed rainwater
tanks and pipe storage. The site is capable to discharge to the street. The proposed Stormwater infrastructure and discharge is consistent with Councils requirements. A Stormwater Long section has been submitted as requested by Council.” Council’s Development Engineer raised no objections subject to recommended conditions of consent. Should the application be determined by approval, then these conditions would be
included. DE20.90
Subdivision of development and land In summary, there are various forms of land title available. They suit different types of development and circumstances. Torrens title development is typically used for greenfield subdivisions. The advantage of Torrens subdivision is that there is no owners’ or neighbourhood association which is the case with Strata and Community forms of title. Strata title is typically used in multi dwelling and residential flat developments where people own a unit, patio, balcony or courtyard and share common areas. Owners are responsible for the upkeep of their own lots but in conjunction with other owners for common areas. Similarly, so with Community title, excepting that owners have more ‘freedom’ with their own individual property and share responsibility with the community asset which could include things like tennis courts, pools, outdoor recreation areas and the like. The proposal as put to Council is envisaging Strata title. The Local Environmental Plan permits this type of development, so it is logical to permit a suitable form of subdivision so that title can be created to enable people to purchase the dwellings. The mechanism for this can be found (in this instance) in the SLEP 2014, clause 4.1F. Clause 4.1F of the SLEP 2014 states “…unless the consent authority is satisfied that each lot to be created will be used for a purpose permitted as an existing use or under an existing development consent for the land.” Accordingly, a development consent, if issued, is typically constructed in a manner whereby the building works are required to be completed first. So, in simple terms the subdivision occurs when the building is ‘existing’ with the development benefiting from an ‘existing’ consent.
Development is within bushfire prone area
Development & Environment Committee – Tuesday 01 September 2020 Page 69
NSW Rural Fire Service has issued General Terms of Approval and a Bush Fire Safety Authority for this development. Should the application be determined by approval, then these would be included as conditions of consent.
Financial Implications: There are potential cost implications for Council in the event of a refusal of the application. Such costs would be associated with defending an appeal in the Land and Environment Court of NSW.
Legal Implications A section 8.2 review and / or an appeal with the Land and Environment Court are possible if the application is refused.
Summary and Conclusion The proposed development satisfied some of the provisions of SLEP 2014; however, there are departures to the overall objectives and acceptable solutions contained within SDCP 2014, which are not supported. This application has been subjected to detailed analysis of the main issues identified in this report, being the scale of the development, including dwelling design and density, visual privacy, setbacks, landscaping, stormwater drainage, development within a bush fire prone DE20.90 area and onsite car parking. These issues have also been investigated and addressed by the applicant. However, the application is not currently considered capable of support, based on desired future character, lack of internal amenity, suggesting that the development footprint and design is excessive. Accordingly, a negative conclusion has been reached and recommendation made. Attachment 3 contains the draft determination notice and the reasons for the refusal.
Development & Environment Committee – Tuesday 01 September 2020 Page 70
Attachment 2
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 71
Attachment 2
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 72
Attachment 2
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 73
Attachment 2
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 74
Attachment 2
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 75
Attachment 2
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 76
Attachment 2
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 77
Attachment 2
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 78
Attachment 3
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 79
Attachment 3
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 80
Attachment 3
- DE20.90
Development & Environment Committee – Tuesday 01 September 2020 Page 81
DE20.91 Development Application – 37 Bawley Point Road Bawley Point - Lot 270 DP 1001660
DA. No: DA14/1015-02
HPERM Ref: D20/373066
Section: Ulladulla Service Centre Approver: Phil Costello, Director - City Development
Description of Development: Bed and Breakfast for up to 12 occupants, land clearing for APZ requirements and associated civil infrastructure
Owner: Andrew O’Connell & Vera McElroy Applicant: Andrew O’Connell
Notification Dates: 23/04/14 to 26/05/14
No. of Submissions: 31
Purpose / Reason for consideration by Council DE20.91 At the Extra Ordinary meeting of Council held on 7 April 2020, Council resolved (MIN20.240) in part that: The delegation to the CEO be rescinded to determine a development application by refusal until the end of the COVID 19 crisis. The refusal of a development application must only be by Council/Committee resolution. This application, being recommended for refusal, is referred to Council for determination.
Recommendation That Council determine Development Application by way of refusal for the following reasons: 1. The Subject site including the proposed building and APZ is determined to be within the NSW TSC Act listed EEC River Flat Eucalypt Forest on Coastal Floodplains (RFEF). This is contrary to the findings of the Travers Bushfire and Ecology (TBE) report. 2. The environmental referral advice concludes the proposal will have a significant impact on River Flat Eucalypt Forest and therefore a Species Impact Statement is required subject to the assessment requirements of the OEH Director General. 3. As no SIS has been prepared, council is unable to progress the application any further.
Options 1. Refuse in accordance with the recommendation. Implications: The application would not proceed. The applicant can apply for a section 8.2 review of Council’s decision or appeal to the Land and Environment Court.
Development & Environment Committee – Tuesday 01 September 2020 Page 82
2. An alternate recommendation. Implications: Council will need to specify an alternative recommendation and advise staff accordingly.
Location Map
DE20.91
Background Subject Land Lot 270 DP 1001660, 37 Bawley Point Road Bawley Point
Proposed Development Council initially received (V1) an application on 7/01/2014 for a staged Bed & Breakfast development for up to 12 occupants comprising: (Stage 1) 7 interconnected small buildings with 5 guest suites and 1 owner’s suite, open decked roofed pavilion and ancillary civil works (driveway connecting Northhaven Ave to Murramarang Road) and land clearing to accommodate required APZ (Stage 2) living dining and kitchen pavilion.
Development & Environment Committee – Tuesday 01 September 2020 Page 83
Version 1 - B & B Layout Plan
During the (V1) vetting process Council requested the applicants relocate the development DE20.91 footprint north of known Swamp Oak Floodplain Forest EEC occurring across the southern half of the site and remove the proposed road connection to Northhaven Ave. Council also requested revision to the plans to comply with the definition of a Bed and Breakfast under the SLEP 1985 and the requirements of Council’s DCP guidelines for B&Bs, a Stormwater Management Plan and geotech report for on-site wastewater. On 6 March 2014 the applicants requested Council defer the requirement for On-site Wastewater and Acid Sulfate Soil reports until Bushfire and Flora & Fauna issues could be finalised for the development footprint to prevent unnecessary financial impost on the applicants. Council agreed this was a reasonable approach at the time, given the highly constrained nature of the site and the estimated $7000 cost for these reports. On 14 April 2014 Council received (V2) revised plans, ecological and bushfire reports for a modified development footprint and design. This version provided a single driveway access to Murramarang Road and concentrated the development footprint to the NW corner of the site.
Development & Environment Committee – Tuesday 01 September 2020 Page 84
DE20.91
Version 2 - B&B Layout Plan Council requested a revised and upgraded Flora and Fauna report on 19 August 2014. The revised report (Travers) was not supported by Council’s threatened species officers. Council subsequently engaged an independent flora and fauna consultant (South East Engineering and Environmental) to conduct a peer review of the site and relevant documents in order to decide whether the matter was significant enough to require a Species Impact Statement (SIS) or whether council accept the Travers report and finalise our assessment of other issues. The peer review concluded: 5.1 EEC determination Based on location/habitat characteristics and vegetation composition, as described in this review, the study area is deemed to be representative of River-Flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions EEC, as listed under the Schedules of the NSW TSC Act. Refer to Section 4.4 for further detail. 5.2 Conclusion of 7 part test The Assessment of Significance (7 part test) has determined that the proposed action will have an adverse effect on the extent and composition of the subject EEC such that its local occurrence is likely to be placed at risk of extinction. It is already relativity small in area, it is isolated from other habitat sharing the same or similar biotic and abiotic characteristics and a number of threatening processes are likely to be caused or worsened by the activity. Based on the scientific literature, it is likely that the action proposed will, in the long-term, result in the breaching of core habitat area thresholds for a significant number of flora and fauna species that make up the subject EEC. This is likely to lead to reduced species richness and altered species composition (including changes to suites of species/functional groups present) such that the local occurrence of the EEC will be placed at risk of extinction.
Development & Environment Committee – Tuesday 01 September 2020 Page 85
Therefore, it is deemed that the proposed activity is likely to have a significant effect on the local occurrence of River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions EEC. Based on this conclusion, this matter will require referral to the NSW Director General.
Following the peer review, a site meeting was carried out on 6 October 2015 between Council and the applicants to work through Council’s issues with the Travers Report. On 11 December 2015 Council received a revised Flora and Fauna report and development footprint (V3) and APZ and EEC buffer. In this version the proponents made the following changes: • Redesigned and relocated the development infrastructure further to the north. Comprising 6 suites for visitors, 1 owner suite, as well as a living, dining and kitchen pavilion connected with covered boardwalks. • Provided a buffer to the EEC of between 30-85m.
• Utilised the existing fire trail as an alternative access road. • Created a new entry point off Murramarang Road where there are no trees to be removed.
• Deleted boardwalk to the beach DE20.91
Version 3 - B & B Layout Plan On 11 May 2016 Council advised the applicant that we had formed the view that the remaining area of land upon which they proposed to build the B&B comprised Illawarra Lowlands Grassy Woodland and that the anticipated impact of the proposal on this particular ecological community was unacceptable and not able to be supported. The applicants subsequently requested on 26 July 2016 for Council to defer making any determination while they looked at further reducing footprint and upgrading to highest available BAL (29).
Development & Environment Committee – Tuesday 01 September 2020 Page 86
The applicants contacted the Ulladulla Office Manager on 5 September 2016 seeking support for the submission of a further reduced development footprint for their proposal. The applicants were advised on 6 September 2016 to submit a full package revision to enable Council’s Flora & Fauna staff and the RFS opportunity to review the location. The applicants emailed proposed revised design (V4) below without any flora and fauna or bushfire
assessment report.
DE20.91
Version 4 - B & B Layout Plan On 28 February 2017 Council advised the applicants that without the relevant reports, it was not possible to provide any substantive feedback. Even with the requested information it is likely that the suggested alternate design would face the same issues as the previous design, i.e. that the proposed development would likely have a significant impact on vegetation mapped as Forest Red Gum Woodland and Managed Forest Red Gum Woodland EEC. Council requested the applicant consider withdrawing the application or seek the Director General’s requirements for the preparation of a Species Impact Statement [SIS]. To add weight to Council’s interpretation, the Department of Environment and Energy approved the inclusion of the Illawarra and South Coast Lowland Forest and Woodland on the list of threatened ecological communities under the Environment Protection and Biodiversity Conservation Act 1999, in the critically endangered category on 16 September 2016. On 17 July 2017 Council emailed the applicants seeking their intentions as we had not received any response. The applicants responded on 14 January 2018 advising they had engaged a Biobanking specialist to review opportunities for the site and required time for this assessment to be completed. On 22 November 2018 the applicants advised they would have revised reports completed early in the new year (2019). No information was subsequently submitted. On 21 April 2020 Council reminded the applicants that they needed to submit the promised information or withdraw the DA. The applicants again responded requesting an extension of
Development & Environment Committee – Tuesday 01 September 2020 Page 87 time, citing bushfire and coronavirus distracting them from being able to provide the information requested by Council.
Lodgement The application was lodged on 7 January 2014.
Notification The revised (V2) proposal was notified from 23 April 2014 to 26 May 2014 with 30 submissions received in objection and one submission in support. Concept versions 3 and 4 were insufficiently documented to permit notification to be carried out. Referrals The revised (V2) proposal was referred to the NSW Office of Water and NSW RFS for consideration. The RFS issued a Bush fire safety authority for V2 on 15 May 2014. No response received to date from the NRAR (former NSW Office of Water).
Issues Outstanding • The Subject site including the proposed building and APZ is determined to be within
the NSW TSC Act listed EEC River Flat Eucalypt Forest on Coastal Floodplains DE20.91 (RFEF). This is contrary to the findings of the Travers Bushfire and Ecology (TBE) report. • The findings of the Assessment of Significance conducted by TBE, that the proposal would not have a significant impact on (RFEF), are not accepted. • The environmental referral advice concludes the proposal will have a significant impact on RFEF and therefore a Species Impact Statement is required subject to the assessment requirements of the OEH Director General. • Vegetation within the Subject Site (determined to be RFEF) is also likely to meet the criteria for a Commonwealth EPBC listed community Illawarra and South Coast Lowland Forest and Woodland listed in 2016. If the applicant wanted to progress this proposal, further environmental referral advice would be required and the FFA must include assessment against the EPBC Significant Impact Criteria for this community. • The environmental referral advice questions whether the proposal is in accordance with the objectives of the former SEPP 71 Coastal Management and the environmental Zoning for the subject site. • No geotech report for Acid Sulfate Soils, On-site Wastewater Report or revised Statement of Environmental Effects (SEE) has been submitted to Council to address the submitted revised designs for the development.
Policy Implications
Financial Implications: Nil
Development & Environment Committee – Tuesday 01 September 2020 Page 88
Legal Implications The applicant can apply for a section 8.2 review of Council’s decision or appeal to the Land and Environment Court.
Summary and Conclusion In accordance with s54 EPA Regulations 2000, the requested information is considered necessary for the proper consideration of the application. Therefore, as no further information has been provided and for the reasons outlined above, it is recommended that the application be refused. If refused, the applicant has the option to seek a review of determination from Council under Clause 8.2 of the Environmental Planning and Assessment Act or alternately appeal the determination to the Land and Environment Court.
DE20.91
Development & Environment Committee – Tuesday 01 September 2020 Page 89
DE20.92 Exhibition Outcomes and Proposed Finalisation - Planning Proposal (PP047) - Princes Highway, Meroo Meadow
HPERM Ref: D20/249003
Section: Strategic Planning Approver: Phil Costello, Director - City Development
Reason for Report Present the public exhibition outcomes and enable the finalisation of the Planning Proposal (PP), which seeks to amend the zoning, minimum lot size and height of building controls currently applying to the R1 General Residential component of the subject property at Meroo
Meadow.
Recommendation (Item to be determined under delegated authority) That Council: 1. Adopt Planning Proposal (PP047) as exhibited, and using Council’s delegation, proceed
to finalisation by forwarding the Planning Proposal to the NSW Parliamentary Counsel’s DE20.92 Office with the instruction to draft the required amendment to Shoalhaven LEP 2014. 2. Advise the proponent and surrounding landowners of the resolution and notification of the LEP Amendment.
Options 1. Adopt the recommendation to finalise the PP as exhibited and proceed with the resultant amendment to the Local Environmental Plan. Implications: This is preferred as it will allow the PP to be finalised, noting that no submissions were received during the public exhibition period, indicating general support for the proposal.
2. Adopt an alternative or revised recommendation. Implications: This will depend on the extent of any changes and could delay the finalisation of the PP and the realisation of the associated consent.
Background Council resolved on 6 August 2019 (MIN19.532) to support the preparation of a PP to amend the zoning, minimum lot size and height of building controls in Shoalhaven Local Environmental Plan (LEP) 2014 relating to residential zoned part of Lot 502 DP 1221372, C130 Princes Highway, Meroo Meadow (Figure 1).
Development & Environment Committee – Tuesday 01 September 2020 Page 90
DE20.92
Figure 1: Subject Land - Part of Lot 502 DP 1221372, C130 Princes Highway, Meroo Meadow
The subject land has a split zoning under Shoalhaven LEP 2014 of part R1 General Residential, part E3 Environmental Management and part RU1 Primary Production. The PP proposes to amend the zoning, minimum lot size and height of building controls applying to the part currently zoned R1 General Residential as follows: • Rezone the existing R1 area to R5 Large Lot Residential. The R5 Large Lot Residential zone is now considered to be more appropriate for the land as it reflects a density which will assist in managing impacts on the immediate road network, consistent with the subdivision consent that has been issued. • Amend the minimum lot size applying to the residential zoned land from 500m2 to 1500m2. This will reinforce the desired large lot character and seeks to avoid the potential for ongoing subdivision over time. • Apply a maximum building height of 8.5m over the residential zoned land, consistent with the surrounding residential land and the citywide approach to heights in this context. The remaining E3 Environmental Management and RU1 Primary Production zones and the associated planning controls will remain unchanged. This PP satisfies a deferred commencement condition associated with the development consent for an approved subdivision (SF10541) for 15 residential lots on the subject land. The resultant LEP amendment seeks to facilitate large lot residential development to manage the density of the land into the future and avoid congestion and adverse impacts on the immediate road network.
Development & Environment Committee – Tuesday 01 September 2020 Page 91
Community Engagement The PP was publicly exhibited from Wednesday 13 May until Friday 26 June 2020 (inclusive) via Council’s website. The exhibition period exceeded the required minimum twenty-eight (28) days set in the Gateway determination in response to the current COVID-19 crisis, to ensure that anyone who wished to make a submission on this PP was able to do so. The exhibition material remains available on Council’s website and includes the: • Planning Proposal. • Explanatory Statement. • Gateway Determination. • Newspaper Advertisement.
Adjacent landowners were directly advised of the exhibition arrangements.
At the conclusion of the exhibition period, and at the time of writing this report, no submissions have been received. As such, it is considered appropriate for the PP to be adopted as exhibited and the process proceed to finalisation.
Policy Implications DE20.92 The PP seeks to amend the zoning, minimum lot size and height of building controls currently applying to the R1 General Residential component of the subject land. The amendment seeks to facilitate large lot residential development to manage the density of the land into the future and avoid congestion and adverse impacts on the immediate road network.
Financial Implications The finalisation of the PP will continue to be resourced from the Strategic Planning budget.
Risk Implications If the PP is not adopted, it will prevent the deferred commencement condition associated with development application (SF10541) from being satisfied, preventing construction and registration of the subdivision.
Development & Environment Committee – Tuesday 01 September 2020 Page 92
DE20.93 Planning Proposal (PP029) and Draft Development Control Plan - Hitchcocks Lane, Berry - Next Steps
HPERM Ref: D20/337810
Section: Strategic Planning Approver: Phil Costello, Director City Development
Attachments: 1. Draft DCP Chapter N3: Berry Residential Subdivision for public exhibition (under separate cover) ⇨ 2. Visual Impact Assessment and Urban Design Guidelines - Recommended Planning Controls for Hitchcocks Lane Subdivision
(PP029) ⇩ 3. Summary of Outcomes of Technical Studies ⇩
Reason for Report Obtain endorsement to proceed to publicly exhibit the following: • An updated Planning Proposal PP029 to rezone land south of Hitchcocks Lane,
Berry to facilitate subdivision and housing development, and DE20.93 • Draft amendment to Shoalhaven Development Control (DCP) 2014 Chapter N3 - Berry Residential Subdivision to guide the future development.
Recommendation (Item to be determined under delegated authority) That Council: 1. Publicly exhibit the updated Planning Proposal (PP029), to rezone land south of Hitchcocks Lane Berry (Part Lots 762 and 763 DP 1224932); and the supporting draft Shoalhaven Development Control Plan (DCP) Chapter N3 Berry Residential Subdivision, to facilitate subdivision and housing development on the land. 2. Seek a minor amendment to the Gateway determination for PP029 to revise the subject land boundary and PP maps to include the adjacent Hitchcocks Lane Road Reserve (UPN 96829) to improve LEP mapping consistency. 3. Allow for minor changes to the PP029 and draft DCP Chapter prior to exhibition to update graphics and provisions in consultation (if required) with the proponent and the NSW Department of Planning, Industry & Environment. 4. Exhibit PP029 and the draft DCP Chapter N3 Berry Residential Subdivision for public comment for 60 days in accordance with the requirements of the Gateway Determination issued by the NSW Department of Planning, Industry and Environment (DPIE). 5. Continue to progress: a. A Voluntary Planning Agreement (VPA) to provide landscaping screening along the southern boundary of the subject land to mitigate visual impacts of future development, and b. A review of the Shoalhaven Contributions Plan (CP) 2019 Project 01OREC0009 (Land acquisition for passive open space - Princes Highway, Berry) to recognise the demand the additional housing lots will place on the passive open space network in the area.
Development & Environment Committee – Tuesday 01 September 2020 Page 93
6. Commit to not finalising PP029 until a VPA is secured for landscape screening along the southern boundary of the land and amendments to the CP Project 01OREC0009 to provide adequate open space are made.
Options 1. Place the updated PP029 and draft DCP Chapter N3 on public exhibition and continue work on the draft VPA and CP amendment. As recommended the finalisation of PP029 will need to be aligned with securing the VPA and the making of the CP amendments. The draft VPA and CP amendment will be reported to Council and publicly exhibited in due course. Implications: This approach will enable the PP document to be updated in accordance with the contents of this report and be exhibited for public comment along with the supporting studies and accompanying draft DCP Chapter, while work continues on the
draft VPA and Contributions Plan changes.
It is important that a legal mechanism is in place to provide the landscape screening along the southern boundary (to mitigate visual impacts) before the PP is finalised. Equally, the Contributions Plan needs to be amended before the PP is finalised to allow development contributions to be collected to provide funds for open space provision. This staged approach allows for timely exhibition of PP029 and the draft DCP and
makes best use of existing resources. The process of finalising the PP and amending DE20.93 the LEP has more steps and a longer timeframe than is required for the VPA and CP components of the project. Exhibiting the PP/DCP package separately to the VPA/CP will also facilitate more focused community engagement given the amount of documentation in each package. It will also potentially enable a more settled outcome to be reflected in the VPA/CP.
2. Delay public exhibition of PP029 and draft DCP Chapter N3 until the draft VPA and CP amendment have been endorsed for public exhibition. Implications: Not recommended, as this will unnecessarily delay exhibiting the PP and DCP amendment. The amount of information an overall PP/DCP/VPA/CP package will also potentially overwhelm community members and hence be counterproductive from a community engagement perspective.
3. Defer the progression of this matter or not proceed further with it. Implications: This would be inconsistent with the previous decisions of Council and the work undertaken by Council staff to progress it, including ongoing dialogue with the proponent. Council will have the opportunity to further consider the potential outcome in this regard following the public exhibition period.
Location The Planning Proposal (PP) covers the land shown in Figure 1 below, being part of Lots 762 and 763 DP 1224932, and part of the Hitchcocks Lane Road Reserve, Berry (the subject land). The subject land has an area of approximately 11 hectares and PP seeks to rezone it from RU1 Primary Production to R2 Low Density Residential to permit the subdivision of the land for residential development.
Development & Environment Committee – Tuesday 01 September 2020 Page 94
The subject land is located on the southern edge of the Berry urban area and is adjoined to the southeast by the Princes Highway, to the north by the Huntingdale Park residential estate and to the south and southwest by rural land. The site is gently sloping, largely cleared, and currently maintained as pasture for grazing purposes. There is a drainage depression running across the site which drains to the south- east and eventually to Broughton Creek via two intermittent watercourses. The drainage depression is affected by the 1% AEP (Annual Exceedance Probability) flood event. The
drainage depression will be managed as a drainage reserve of approx. 1.17 hectares.
DE20.93
Figure 1: Subject Land Map Proposed change to subject land - Hitchcocks Lane road reserve The subject land map will be amended slightly from the map included in the PP submitted for Gateway determination. The previous map did not include the adjacent Hitchcocks Lane Road Reserve. Should the rezoning progress as previously mapped, part of the Hitchcocks Lane road reserve would retain an RU1 Primary Production zone and associated controls. These would result in mapping anomalies as shown in Figure 2 below. The minor proposed amendment to the subject land boundary will not have significant planning implications because the road reserve is owned by Council. The updated mapping will improve map consistency and readability and it is logical that it also be considered at this point. The NSW Department of Planning, Industry and Environment (DPIE) will however need to issue an amended Gateway determination to reflect the road reserve in the PP. This is largely an administrative step and it is recommended that an amendment be sought to the current Gateway determination issued.
Development & Environment Committee – Tuesday 01 September 2020 Page 95
DE20.93 Figure 2: Example of mapping changes – potential mapping anomaly to be resolved with extent of PP029 Current subject land extent on the left, and the expanded subject land area on the right.
Background PP029 resulted from a proponent-initiated PP application received by Council on 8 September 2017, that was submitted by Cowman Stoddart Pty Ltd on behalf of the landowners. At the time of lodgement, the subject lots were owned by P&P Bice. The eastern-most lot (Lot 763) is now owned by 2535 No 2 Pty Ltd. Council resolved on 14 November 2017 (MIN17.953) to: 1. Prepare a Planning Proposal to rezone part (as detailed in the plans within this report) of Lots 762 and 763 DP 1224932, Hitchcocks Lane, Berry, to an R2 - Low Density Residential Zone with: a. A 500 m2 minimum lot size; and b. An 8.5 m maximum height of buildings. 2. Forward this Planning Proposal to the NSW Department of Planning and Environment for a Gateway determination with a request that the determination be subject to a condition allowing up to 25% of the site to be provided with a lot size as small as 350 m2 subject to specialist studies and community consultation. 3. Advise the NSW Department of Planning & Environment that the following studies are considered appropriate as part of the post Gateway stage of the Planning Proposal (prior to public exhibition): a. Stormwater assessment including conceptual design details for the proposed drainage reserve b. Stage 1 preliminary contaminated site assessment c. Aboriginal cultural heritage assessment
Development & Environment Committee – Tuesday 01 September 2020 Page 96
d. Flood risk assessment e. Traffic study f. Visual impact assessment g. Infrastructure study and delivery plan (including “soft” infrastructure) h. Master plan including detailed urban design and built form guidelines 6. Consider a report on the Planning Proposal prior to public exhibition.
The PP received a Gateway determination from the then NSW Department of Planning and Environment on 3 April 2018 authorising the PP to proceed, subject to completion of several technical studies, public exhibition, and consultation with public authorities. All technical studies required by the Gateway determination have now been prepared as shown in the table below.
Table 1: Status of technical studies required by the Gateway Determination
Required study Title Author Date Commissioned & managed by*
Stormwater Flooding and Southeast 19.12.2018 Proponent assessment including Stormwater engineering + conceptual design Management Report environmental details for proposed DE20.93 drainage reserve Conceptual Allen Price & 21.05.2018 Proponent Masterplan Scarratts Pty Ltd (additional drainage reserve concept drawings)
Stage 1 preliminary Stage 1 ENRS 12.02.2019 Proponent contaminated site Environmental Site assessment Assessment
Aboriginal cultural Aboriginal Heritage RPS 25.09.2018 Council heritage assessment Due Diligence Assessment
Aboriginal AMBS 26.09.2019 Council Archaeological Survey Report
Aboriginal Cultural AMBS 19.05.2020 Council Heritage Assessment
Flood risk assessment Flooding and Southeast 19.12.2018 Proponent Stormwater engineering + Management Report environmental
Traffic study Traffic Impact Bitzios consulting 07.01.2019 Proponent Assessment
Noise assessment Traffic Noise Harwood 28.09.2018 Proponent Intrusion Acoustics Assessment
Visual impact Visual Impact PAA Design 28.05.2019 Council assessment Assessment and (Peter Andrews
Development & Environment Committee – Tuesday 01 September 2020 Page 97
Urban Design and Associates) Guidelines
Infrastructure study Infrastructure Allen Price & 29.10.2018 Proponent and delivery plan Assessment Scarratts Pty Ltd
Bushfire hazard Bush Fire Bushfire and 05.02.2020 Proponent assessment# Assessment Report evacuation solutions *In accordance with Council’s Planning Proposal Guidelines some technical studies are required to be commissioned and managed by Council. All technical studies for proponent-initiated planning proposals are funded by the proponent. #A bushfire hazard assessment was not a requirement of the Gateway determination because the land is not currently mapped as bushfire prone land. Advice from the NSW Rural Fire Service indicates that the area will be included as bushfire prone land (grass fire hazard) in future bushfire mapping updates and a hazard assessment was pre-emptively undertaken.
Council considered a status report on PP029 in April 2020. This report also sought ‘in principle’ endorsement to provide a landscaped screen adjacent to the southern boundary of the subject land. The establishment of a landscape screen to mitigate visual impacts of development was a key recommendation of the Visual Impact Assessment by Peter Andrews and Associates. The proponents have agreed to establish a 12m wide screen on land directly adjoining the southern boundary of the subject land and enter into a Voluntary Planning Agreement (VPA) to establish the landscape screen prior to the issue of a Subdivision Certificate on the land before the development of any housing. DE20.93 The Council resolved on 7 April 2020 (MIN20.257) to: 1. Note the update on the status of Planning Proposal PP029. 2. Give ‘in principle’ endorsement to locating a proposed landscaped screen adjacent to the southern boundary of the subject land as follows: a. Minimum 12 m wide landscaped buffer incorporating an 8 m wide planting area and 2 m wide buffer on either side. b. The landscaped buffer is to be maintained by the landholder in accordance with a positive covenant on the adjoining land. 3. Secure the Proponent’s commitment to implement the above measures via a Voluntary Planning Agreement to be exhibited concurrently with the PP. 4. Prepare a draft amendment to Chapter N3 (Berry Residential Subdivision) of Shoalhaven Development Control Plan (DCP) 2014 to incorporate the above provisions and any other key recommendations of the supporting studies. 5. Commence the preparation of an amendment to Shoalhaven Contributions Plan 2019 project 01OREC0009 (Land acquisition for passive open space - Princes Highway, Berry) to recognise the demand the additional lots will place on the passive open space network in the Huntingdale subdivision area. 6. Prepare a report on the PP package prior to public exhibition, including the updated PP, draft Planning Agreement, and proposed amendments to the CP and DCP.
The PP (PP029) document will be updated prior to public exhibition consistent with the detail in this regard and reflecting Council’s resolved position. A draft Amendment to Chapter N3 Berry Residential Subdivision has been prepared in accordance with Part 4 of the above resolution. The draft DCP Chapter includes planning objectives and controls to guide future development outcomes on the subject land, as well as the existing controls for the wider precinct, and is provided as Attachment 1.
Development & Environment Committee – Tuesday 01 September 2020 Page 98
The draft DCP Chapter is ready to be publicly exhibited along with the updated PP and supporting technical studies. The Gateway determination requires that the PP be exhibited for a minimum period of 60 days. Due to conflicting priorities the associated draft VPA and Contributions Plan (CP) amendment are not yet sufficiently progressed to enable formal public exhibition. It is recommended that Council place the PP and draft DCP on public exhibition while work continues on the supporting draft VPA and CP amendment. The draft VPA and CP amendment will require a public exhibition period (of a minimum of 28 days). A separate report to Council will be provided seeking endorsement to publicly exhibit the draft VPA and CP amendment.
Shoalhaven Local Environmental Plan (LEP) 2014 - Proposed Amendments The PP seeks to rezone the subject land from RU1 Primary Production to R2 Low Density Residential to permit the subdivision of the land for residential development as shown in
Figure 3. DE20.93
Figure 3: Land use zone map proposed changes. Note: inclusion of Hitchcocks Lane road reserve as previously discussed.
State Environmental Planning Policies (SEPPs) permit other land uses in R2 Low Density zones than those listed in Council’s LEP, for example secondary dwellings (commonly known as granny flats) are permitted under SEPP (Affordable Rental Housing) 2009 in the R2 zone. The R2 zone is considered appropriate for the location on the urban edge of Berry, approximately 2km from the Town Centre. Lower density housing forms will best complement the character of the area which represents the interface with rural land to the south. The draft DCP Chapter N3 also proposes planning objectives and controls to encourage subdivision
Development & Environment Committee – Tuesday 01 September 2020 Page 99 and housing development that is compatible with local character and achieve the intended outcomes of the PP.
Proposed building height limit The PP seeks to apply a building height control of 8.5m to subject land as shown in Figure 4 below. This height limit is consistent with that of surrounding areas including Huntingdale
Park and other residential areas in Berry.
DE20.93
Figure 4: Height of Buildings map proposed changes
Proposed minimum lot sizes for subdivision controls A mix of lot sizes is proposed to be permitted across the site, to encourage a greater variety of house sizes and configurations via a range of property sizes. The proponent’s original PP application requested allowance for some of the land to be subdivided into relatively small allotment sizes – down to 350m2. Council resolved on 14 November 2017 (in part) to permit the provision of lot sizes down to 350m2 across up to 25% of the subject land, subject to specialist studies and community consultation. The proposed Minimum Lot Size Map is now provided in Figure 5 below. Under this, most of the land is proposed to have a minimum allowable lot size of 500m2. An area along the southern boundary is proposed to have a minimum lot size of 700m2 and three areas (equating to 25%) are proposed to have a minimum lot size of 350m2. The drainage reserve will maintain the 40 hectare minimum lot size restriction, ensuring this area is not be able to be subdivided for housing. The minimum lot size map has been refined based on the outcomes of the technical studies and discussion with the proponents.
Development & Environment Committee – Tuesday 01 September 2020 Page 100
DE20.93
Figure 5:Minimum Lots Size Map proposed changes
Possible lot yield and density The original proponent PP indicated a lot yield of approximately 110 new housing lots. Subsequent refinement of the proposed planning controls has influenced the potential number of lots that could be provided. It is estimated that the proposed mix of allowable lot sizes could provide a yield of approximately 150 lots. Future development is expected to be primarily detached housing (one single house per lot), but if 10% of these lots were developed as dual occupancies/semi-detached housing (or secondary dwellings) then the area could provide approximately 165 dwellings. This would represent a gross residential density of 15 dwellings per hectare, which meets a low-density classification (of 12.5-20 dwellings/ha)1. If 20% of the lots were developed as dual occupancy development then the area could provide up to 180 dwellings, representing a gross residential density of 16 dwellings/ha. It is important to note that density expressed as number of lots or dwellings per hectare is only one way to measure density and does not consider the impact of building appearance on the experience of a place. Whilst this density of dwellings per hectare is considered low by industry standards, it is higher relative to existing development in the older parts of Berry which are characterised by larger lot sizes. Older parts of Berry also have a character associated with lower residential densities due to a combination of built form characteristics – smaller house sizes, larger and more established landscaped areas, larger setbacks to property boundaries and the like. The proposal overall is expected to achieve similar densities to Huntingdale Park Estate, but built form character controls within the DCP Chapter will be used to influence the look and
1 Residential density guide (pdf), Landcom May 2011
Development & Environment Committee – Tuesday 01 September 2020 Page 101 feel of the subdivision and better reflect the character of older parts of Berry through high quality design measures. The lot yield analysis above excludes the area of the drainage reserve and assumes internal road networks will take up 25% of available developable land area. Lot yields are an estimate only because actual lot configurations and sizes will be influenced by constraints and design considerations (topography, road layout, orientation). Minimum lot sizes for subdivision controls do not provide for guaranteed provision of lots at the minimum lot size allowable. Lot layouts may include, and may need to include, lots that are larger than the minimum due to site-specific factors and design opportunities and constraints. For strategic planning purposes, assuming a conservatively higher lot yield and higher number of dwellings (of 150-180 dwellings as opposed to the originally envisaged 110 dwellings) for the PP is considered prudent to ensure adequate infrastructure is provided and potential impacts can be appropriately considered and mitigated. The technical studies associated with the PP assess the infrastructure needs and impacts of the proposal. The
outcomes and implications of the studies are summarised in Attachment 3.
Draft DCP Chapter N3 Berry Residential Subdivision A draft site specific DCP Chapter has been prepared to help guide the future development and built form of the Hitchcocks Lane Subdivision, should the land be rezoned. The existing Chapter N3 currently covers the subject land (but has no specific controls) and the
Huntingdale Park Estate area. The draft DCP Chapter is provided as Attachment 1. DE20.93 The Draft DCP Chapter provides development controls for the subdivision of the subject land, as well as controls for housing development and provides objectives and controls relating to these key themes: - Aboriginal Cultural Heritage - Views and Landscape Screening - Subdivision and Landscape Design - Street Network and Streetscape Design - Flood and Stormwater Management - Housing Development - Building Form/Bulk and Scale - Housing Development - Landscaping, Amenity and Sustainability The draft DCP controls seek to influence the future design and character of the place. The Indicative Layout Plan included in the draft DCP Chapter summarises the key planning controls within the draft DCP Chapter and is shown in Figure 6 below. The Draft DCP Chapter has been informed by the technical studies accompanying the PP as well as internal and external stakeholder feedback received so far. It is anticipated that minor refinements, such as updating graphics, will need to be made prior to exhibition and it is recommended that this occur. The Visual Impact Assessment and Urban Design Guidelines (VIA) (Peter Andrews and Associates, 2018) is a key study informing the draft DCP and a more detailed summary of the draft DCP provisions and their relationship to the VIA is provided in Attachment 2.
Development & Environment Committee – Tuesday 01 September 2020 Page 102
DE20.93
Figure 6: Indicative Layout Plan - Hitchcocks Lane Subdivision from draft DCP Chapter N3 Berry Residential Subdivision
Development & Environment Committee – Tuesday 01 September 2020 Page 103
Technical Studies - key planning matters Key planning matters arising from the technical studies include potential visual impacts; noise impacts; traffic capacity issues (internally within Huntingdale Park Estate); and the design of the drainage reserve and the adjacent road and lot layout. These are discussed further below. The draft DCP includes provisions to address these issues. Comprehensive analyses of the technical studies and responses to these within the draft DCP is provided as Attachment 3. Feedback received on the PP and draft DCP chapter during the public exhibition will also inform any further refinements to the proposed planning controls.
Visual Impact The VIA found the proposed development would have a moderate impact on external views into the site, given the surrounding landscape quality of the Berry Mountain foothills and the highly sensitive location of the site at the rural-urban interface of Berry, and its visibility from the Princes Highway (particularly from the south). The VIA recommended implementation of good urban design principles (which have been incorporated into the draft DCP Chapter for comment) and the establishment of a landscape screen along the southern boundary (to be implemented via a VPA). The VIA also recommended the retention of the existing trees on the site; that the overall density and bulk of development be limited; and controls for improving any acoustic treatments (if required) to achieve the desired visual outcomes.
Noise Impact DE20.93 The subject land is located directly adjacent to the Princes Highway, a significant source of traffic noise which could potentially affect future residents. The Noise Impact Assessment (NIA) states that the closest potential future homes could be located approximately 30 metres from the northbound lane of the Highway. The proponent’s NIA was completed in September 2018. The NIA noted that typical external noise levels across the site exceeded state government guidelines for development and that traffic noise reduction measures are required for future dwellings. The Assessment stated that internal noise level requirements could be met using specific materials and construction methods in home design. However, preliminary advice recently received from Transport NSW (TfNSW) raised concerns that a higher order treatment may be required to mitigate noise levels, rather than relying solely on construction methods for future dwellings. TfNSW expressed a preference for noise barriers as they provide acoustic benefit externally to the residences as well as internally. Feedback from TfNSW is discussed later in this report. The approach recommended by the proponent’s NIA could also add costs, design limitations and potentially time delays to home building. It is preferable for any potential required noise mitigation to be implemented first at the subdivision stage. The need for any additional noise mitigation will be determined though an additional acoustic assessment, but could include landscaped earth mounds or noise walls/barriers. Thus the draft DCP includes development controls requiring noise mitigation to be investigated further at subdivision stage (included assessing the impact of the now-complete Highway upgrade works), with appropriate noise mitigation measures included as part of the subdivision works if/where required. The DCP also requires that any such noise attenuation measures will need to be appropriately landscaped/planted to minimise visual impacts (internal and external to the subdivision). This approach will reduce the burden on individual home builders to ameliorate noise impacts and provide for increased indoor and outdoor amenity.
Development & Environment Committee – Tuesday 01 September 2020 Page 104
Traffic Impact Assessment The proponent’s Traffic Impact Assessment (TIA) concluded that there was more than sufficient capacity at the Kangaroo Valley Road / Huntingdale Park Road intersection to cater for the additional traffic resulting from the proposal, considering all existing and future traffic associated with Huntingdale Park Estate. This indicates the proposal will have limited impact on traffic in Berry and surrounds. TIA identifies that the ‘Unnamed Link Road’ at the eastern end of the subject land will need to be constructed/upgraded (see Figure 6 above). Without this new link road, the capacity of the internal road network within Huntingdale Estate will be exceeded. The TIA indicates that Huntingdale Road between Hitchcocks Lane and the Connors View / Brangus Close roundabout has limited capacity for additional traffic and would be exceeded if western parts of the subject site are developed first, ahead of upgrading the Unnamed Link Road in the east providing an alternate route). This issue is complicated by the now split land tenure of the subject land (i.e. two separately
owned lots) and resulting uncertainty over the timing and staging of the proposed development. The draft DCP addresses this by requiring the full construction of the entry road and Unnamed Link Road where local road network capacity is predicted to be exceeded, ensuring traffic impacts are minimised. The draft DCP also includes requirements for traffic impact assessments for subdivision to address cumulative development impacts and consider staging challenges and contains a strong focus on encouraging walking and cycling for short local trips. DE20.93
Concept Drainage Reserve Design and Open Space Provision The central drainage reserve design will consist of a relatively shallow grassed depression with avenues of tree plantings on the upper half of the waterway batters. Given its primary functions are to minimise flooding and water pollution risks, and due to its relatively small size and narrow extent, the drainage reserve will not be embellished as a ‘park’ or ‘passive open space’. However, a shared path 2m wide will be provided along the length of the reserve to provide an attractive pathway link and allow some usage of the space. The draft DCP Chapter provides a range of subdivision and housing controls to ensure the drainage reserve is well-presented (providing a useful movement corridor with tree planting) while also limiting maintenance. While the drainage reserve does not meet Council’s requirements for public open space, it is intended that development of the Hitchcocks Lane subdivision will also provide development contribution funds to assist in acquisition of a planned passive open space (park) on the northern side of Hitchcocks Lane, between Huntingdale Park Road and the Unnamed Link Road (refer to Figure 6 above). The future embellishment of this passive open space area to meet the daily recreation needs of the local area will be investigated as part of an imminent review of Contributions Plan Project 01OREC009 - Land acquisition for passive open space (Princes Highway, Berry) as resolved by Council on 7/4/20 (part 5 of MIN20.257). Boongaree, the district level, multifunctional destination park is also proposed to be constructed on North Street, Berry and will help meet the broader recreation needs of the local community.
Government Agency Feedback NSW RFS Preliminary advice from the NSW RFS is that the subject land is likely to be mapped as a grassland hazard (Vegetation Category 3) and as a result recommended the concept
Development & Environment Committee – Tuesday 01 September 2020 Page 105 subdivision plan include a perimeter road along the southern boundary at a minimum. The RFS also requested the PP be referred back for additional review/comments during the public exhibition.
Transport NSW (TfNSW) Preliminary advice received from TfNSW indicated no objection to the PP “in principle” as it is unlikely to have a significant impact on the state road network, reiterating that no direct access from the Princes Highway will be permitted. TfNSW are the current owners of the “Unnamed Link Road” which it is intending to dedicate as public road in the future. Any future upgrade of this road would need to occur west of the existing Highway “Controlled Access Boundary”. TfNSW also raised preliminary concerns relating to noise impacts from the Highway to future dwellings on the site and is peer reviewing the submitted noise impact assessment, with additional comments to be provided on completion of this review. The noise impacts are discussed in the “Key Issues” section of this report and in Attachment 3. Finally, TfNSW strongly supports development that will reduce car dependency and encourage the use of sustainable modes of travel including buses, bicycles and walking for local trips. Therefore, the PP must ensure that it supports, to the greatest extent possible, the aims and objectives of the State Government policies dealing with this matter. This includes adequate servicing by public transport (refer to the Roads and Maritime Services (RMS) Guide to Traffic Generating Developments October 2002) and the provision of cycling and
pedestrian facilities within the PP area linking to existing facilities. DE20.93
Shoalhaven Water Comments were provided on the proposal in late 2018 and confirm town water supply is available for connection if approval is granted for the PP. It was noted that a water rising main in Hitchcocks Lane may need to be relocated if impacted by the proposal at the developer’s expense. In addition, it is noted that the proposal could impact the water pressure of lots at higher elevations within Huntingdale Park Estate and further works to ensure water pressure is maintained in these areas may be required (and may also be at the developer’s expense if a Water Supply Development Servicing Plan is not in place). Further consultation at the public exhibition stage will clarify the current and planned water infrastructure situation for Huntingdale Park Estate, noting additional construction within the Estate since these comments were provided. Town sewer is available for connection if sewerage services are to be made available to the PP area. The submitted Sewer and Water strategy was based on development of approx. 112 residential lots, and Shoalhaven Water indicated there was sufficient capacity in the system to accommodate these. Additional consultation during the public exhibition stage will seek additional comments on capacity to service the updated proposal which may include subdivision of approximately 150 lots (and between 150-180 dwellings).
Community and Stakeholder Engagement The Gateway determination requires that the PP be exhibited for a minimum period of 60 days. The purpose of the community engagement is to: • Present the rezoning proposal and accompanying draft planning controls for the site, and • Gather community feedback on the proposal to inform future planning decisions and changes to proposed planning controls if necessary.
Development & Environment Committee – Tuesday 01 September 2020 Page 106
Community engagement methods will be affected by COVID-19 pandemic procedures; however, efforts will be focused on notifying affected and interested stakeholders and utilising existing strong community networks within the Berry community. Opportunities for webinar-based question and answer sessions to replace traditional face-to- face information sessions will also be explored, especially for key stakeholders such as the Berry CCB. The VPA for the landscape screen and Contributions Plan review for the passive open space area north of the Hitchcocks Lane subdivision are important components of this project and will also require separate public exhibition (of at least 28 days). The draft VPA and CP amendment will be separately reported to Council once they are sufficiently progressed for public exhibition, most likely before the end of the year.
Policy Implications The PP has strategic merit because it is consistent with a number of key planning policy directions, in particular the Shoalhaven Growth Management Strategy (Version 1, 2014).
Community Infrastructure Strategic Plan (CISP)(Ross Planning, 2018) The CISP makes recommendations for the future provision, priorities and funding of community infrastructure at local, district and regional levels. Recommendations relating to Berry include support for the establishment of a District Level Park (Boongaree) and providing all residents with local recreation/open space opportunities within 400 metres from DE20.93 homes. The CISP classifies the proposed drainage reserve as passive lineal open space, which acts as a movement corridor and can improve amenity. However, the CISP recognises that the reserve’s primary purpose is for flood conveyance and its relatively small size does not provide useable passive open space to satisfy the local recreation needs of the area. These needs will be met through provision of a passive open space area to the north of the site as well as through the provision of Boongaree, a district-level multipurpose park in Berry. The PP is consistent with the CISP. The CISP will guide the future embellishment of the Passive Open Space/Local Park to the north of the subject land and inform the review of the Contributions Plan project for the funding of this park. The subject land will be included as a benefit area for this contributions plan project, meaning development of the land will provide funds towards the acquisition and embellishment of the passive open space area.
Financial Implications In accordance with Council Guidelines all costs associated with the PP are being met by the proponents on a cost recovery basis in accordance with Council’s adopted fees and charges. The Contributions Plan review and draft VPA will be reported at a later date. The financial implications of those components will be discussed in that report.
Development & Environment Committee – Tuesday 01 September 2020 Page 107
Attachment 2
-
DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 108
Attachment 2
-
DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 109
Attachment 2
-
DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 110
Attachment 2
-
DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 111
Attachment 2
-
DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 112
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 113
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 114
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 115
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 116
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 117
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 118
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 119
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 120
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 121
Attachment 3
- DE20.93
Development & Environment Committee – Tuesday 01 September 2020 Page 122
DE20.94 Preliminary Consultation Outcomes - Berry Heritage Investigations
HPERM Ref: D20/346787
Section: Strategic Planning Approver: Phil Costello, Director Planning Environment & Development Group
Reason for Report Report the outcomes of the Berry Heritage Investigations preliminary consultation and obtain direction from Council regarding proposed heritage listings in Berry. Note: this item was deferred at the July 2020 meeting to enable a briefing to be held. The Councillor briefing was held on 30 July 2020. This matter is now resubmitted for consideration.
Recommendation (Item to be determined under delegated authority) That Council: 1. Support an amendment to Schedule 5 of Shoalhaven Local Environmental Plan 2014
(LEP) to list the: DE20.94 a. Twelve (12) dwellings identified in Figure 2 in the report as heritage items in Part 1 of the LEP. b. Queen Street and Showground areas (as shown in Figure 2 in the report) as Heritage Conservation Areas in Part 2 of the LEP. 2. Prepare and submit a Planning Proposal to the NSW Department of Planning, Industry and Environment for Gateway determination and if favourable, proceed to formal public consultation in accordance with the terms of the determination. 3. Advise affected landowners and relevant community groups of this resolution, noting the opportunity for formal consultation on the resulting Planning Proposal later in the process.
Options 1. As recommended. Implications: This is the preferred option as it allows the listing of the twelve (12) heritage items and two (2) conservation areas within Berry that possess heritage significance and contribute to the character of the town. This option does not include the listing of individual items where the landowners objected to the listing. It does, however, include retaining all properties within the boundaries of the two proposed Heritage Conservation Areas (HCAs), including those properties whose owners objected to the inclusion. Regardless of the inclusion of these individual properties in the HCA, they would still be within the vicinity of the HCA and would still need to demonstrate the extent that any future development would impact upon the heritage significance of the HCA. As such, inclusion of these properties in the formal HCA area provides greater certainty for landowners in terms of assessment requirements and will help better preserve the character of Berry. Further and importantly, this approach maintains the integrity of the two proposed HCAs as they would remain complete.
Development & Environment Committee – Tuesday 01 September 2020 Page 123
2. Adopt an alternative recommendation. This could include amending the two (2) Heritage Conservation Areas to exclude the ten (10) properties whose owners opposed the inclusion in the HCAs (or the non-contributory lots with objections). Implications: This option is not preferred as the ten (10) properties, regardless of their inclusion in the HCA, would still be within the vicinity of the HCA and would still need to demonstrate the extent that any future development would impact upon the heritage significance of the HCA. Retaining these properties within the boundaries of the HCAs will inform current and future landowners of this requirement and better help preserve the character of Berry. Their inclusion also maintains the integrity of the two proposed HCAs as they would remain complete.
3. Not adopt the recommendation. Implications: Not implementing appropriate heritage protection for individual items and
areas within Berry could result in adverse impacts on the heritage and character of Berry through unsympathetic development.
Background In response to community concerns that unsympathetic development was eroding the unique
heritage character of Berry, Council’s Development Committee resolved (MIN17.613) on 17 DE20.94 July 2017 to investigate 29 items (dwellings) and 2 Heritage Conservation Areas in Berry for potential heritage listing within Schedule 5 of Shoalhaven Local Environment Plan (SLEP) 2014. Consistent with this resolution, Council’s Heritage Consultant (Louise Thom) researched and prepared inventory sheets for the 29 dwellings and 2 HCAs. A summary of the findings is provided below: • 4 of the properties (50, 66 and 70 Albert Street and 31 Albany Street) did not meet the threshold required for local heritage listing. • The remaining 25 properties and 2 Heritage Conservation Areas possess heritage significance and were recommended for heritage listing in Schedule 5 of SLEP 2014. • 2 additional properties (30 and 40 Alexandra Street) were identified to potentially possess heritage significance but required further investigation. On 2 July 2019, Council’s Development & Environment Committee resolved (MIN19.460) to: 1. Provide in principle support to the proposed heritage listing of the 25 properties and 2 Heritage Conservation Areas in Shoalhaven Local Environmental Plan 2014, as identified in Table 1, in this report for preliminary consultation only. 2. Investigate the heritage significance of No. 30 and No. 40 Alexandra Street, Berry as recommended by the Heritage Consultant. 3. Following part 2 of this recommendation, commence preliminary community consultation with the affected landowners, the Berry Forum, Berry Showground Management Committee, Berry Chamber of Commerce and Berry & District Historical Society regarding the Berry Heritage Investigations work to date. 4. Advise relevant stakeholders (affected landowners, the Berry Forum, Berry Showground Management Committee, Berry Chamber of Commerce and Berry & District Historical Society) of this decision.
Development & Environment Committee – Tuesday 01 September 2020 Page 124
5. Receive a further report outlining the findings of the supplementary heritage investigations and preliminary community consultation. As per Part 2 of the 2019 resolution, further investigations were undertaken by Council’s Heritage Consultant regarding the heritage significance of 30 and 40 Alexandra Street, Berry. 30 Alexandra Street was identified as an inter-war timber house and 40 Alexandra Street was identified as a federation bungalow. Both are described as good representations of architecture from their respective eras and as a result were recommended to be listed as individual heritage items.
Preliminary Consultation Consistent with the 2 July 2019 Council resolution (MIN19.460), a community information session was held at the Berry School of Arts on 28 August 2019. All affected landowners, the Berry Forum, Berry Showground Management Committee, Berry Chamber of Commerce and Berry & District Historical Society were advised in writing of this information session.
The community information session was held to discuss the potential heritage listings (see
Figure 1) and answer questions from the community regarding the proposal. DE20.94
Figure 1: Existing and Proposed Heritage Items and Heritage Conservation Areas Subject to Consultation
There was a mixed reaction from the community, with some pleased that Council were taking steps to preserve the character of Berry, whilst others were concerned that a heritage listing would limit the development and resale potential of their property. At the community information session, all affected landowners were given a copy of the Heritage Inventory Sheet for their property and a questionnaire. Questionnaires were requested to be returned to Council by 20 September 2019 to ascertain whether the proposed listings were supported or opposed. A copy of the relevant Heritage Inventory Sheet and questionnaire was also posted to all landowners who were not able to attend the community information session. As a result of the preliminary community consultation, 34 completed questionnaires were received in total from the following: • 29 questionnaires from affected landowners.
Development & Environment Committee – Tuesday 01 September 2020 Page 125
• Two (2) questionnaires from community groups. • Two (2) questionnaires from the community. • One (1) submission from Sydney Trains.
The consultation exercise resulted in a wide exposure and a good level of feedback which is discussed in detail in the subsequent sections below. On 20 July 2020, Council’s Development & Environment Committee considered the Berry Heritage Investigations report and resolved (MIN20.464) to defer to a briefing before the next Development & Environment Committee meeting. The Councillor Briefing was held on 30 July 2020. A number of matters were discussed, including the: • Berry Spinners and Weavers proposal: Council resolved to identify a potential location for the group on 9 June 2020 (MIN20.397). Lot 3 DP 840080, which is owned by Council, is currently the preferred location. Any development application on this site would require consideration of heritage, regardless of whether the lot is in the proposed HCA or not. This is because the existing State listed Berry Railway Station Group (Item 94) is located immediately to the south of the site and the Berry Showground Group (Item 32) is located to the north of the site. Council may require the preparation of a heritage study or statement to outline the impact of the development on the state and locally listed items in the vicinity, which would also consider the proposed HCA, as appropriate. • Exclusion of dwellings on the eastern side of Alexandra Street from the proposed
Showground HCA. Essentially, the majority of these dwellings make no contribution to DE20.94 the HCA. Only 30 and 40 Alexandra Street have historical significance, however are isolated and do not provide sufficient historic or aesthetic context to be included within the HCA area.
Proposed Heritage Items - Consultation Outcomes Discussion and Recommendations A summary of key issues relating to the proposed heritage items raised during the preliminary community consultation, and brief staff comment is provided below in Table 1. Table 1: Summary of responses from preliminary community consultation – heritage items
Summary of issues raised Staff comment
Two (2) questionnaires supported the Support noted. proposed listing of heritage items within Berry: • Berry Museum • Berry & District Historical Society Inc
Four (4) landowners supported the Support noted. The proposed heritage listing will individual heritage listing of their properties provide formal recognition of the site and at: recognise the heritage significance of the items into the future. • 27 Albany Street • 46 Albert Street • 64 Princess Street • 44 Victoria Street
Fifteen (15) landowners opposed the The landowner objection is noted. The individual heritage listing of their properties. questionnaires received raised the following concerns: • 17 Albany Street
Development & Environment Committee – Tuesday 01 September 2020 Page 126
• 3 Albert Street • Previous alterations to properties detract from • 30 Alexandra Street the existing heritage significance, • 40 Alexandra Street • Future renovations would be more difficult, • 39 George Street • Prospective buyers may be less inclined to • 19 Prince Alfred Street purchase a heritage listed property (value). • 33 Prince Alfred Street In similar circumstances in the past Council has • 45 Prince Alfred Street previously not pursued listings where they are not • 44 Princess Street supported by the affected landowner. • 53 Queen Street • 59 Queen Street • 68 Queen Street • 70 Queen Street • 50 Victoria Street • 73 Victoria Street
Of the 15 landowners who objected to the proposed heritage listing of their property, one of the main reasons for this related to development consent requirements for future work to the items. Clause 5.10 of SLEP 2014 specifies that development consent from Council is required for any proposed development that involves: • the demolition, moving or altering the exterior of a heritage item. • altering a heritage item via structural changes. DE20.94 • erecting a building on land on which a heritage item is located. • subdividing land on which a heritage item is located. This approval process helps to ensure that development of a listed heritage item is sympathetic to that item and that any changes retain the significance of that item, as well as contributing positively to the character of the surrounding area (as appropriate). Whilst development consent is required for significant works, clause 5.10(3) of SLEP 2014 also contains criteria for minor works and/or maintenance to a heritage listed item that can be undertaken without development consent, provided written authorisation is received from Council. Approval is also not required from the Heritage Council of NSW. It is also noted that the State Environmental Planning Policy (Exempt and Complying Development) 2008 (Codes SEPP) limits exempt and complying development opportunity on heritage listed land identified as an LEP, including draft heritage items. The other key areas of concern related to the impact that unsympathetic changes to the item over time may have had both on the item and on property values. Council’s Heritage Consultant has identified that all items subject to consultation have heritage values worthy of listing regardless of the nature of the additions which may have occurred over time. Further, there is no definitive information that indicates listing properties as a heritage item has a negative impact on property value, and according to a report produced by the Heritage Council of NSW, in certain circumstances the listing may improve resale potential and value, where premium prices are offered for residences that maintain their heritage features and value. Regardless of the above, and to be consistent with Council’s previous approach to heritage listing where the affected owner does not support it, it is recommended that the fifteen (15) dwellings subject to the objections should not be listed in Schedule 5 of SLEP 2014 at this point in time. Listing could be reconsidered in the future as ownership changes. Four (4) landowners supported the proposed listing of their property. A response was not received from the remaining landowners which is taken to indicate support (as per standard convention). It is also noted that the Berry Museum and Berry & District Historical Society Inc. support the listing of all items subject to the consultation. As such, it is recommended
Development & Environment Committee – Tuesday 01 September 2020 Page 127 that the following twelve (12) dwellings proceed to be heritage listed in Schedule 5, Part 1 of SLEP 2014: • 27 Albany Street - Inter war federation style weatherboard cottage • 29 Albany Street - Inter war weatherboard & fibro cottage • 46 Albert Street - Federation weatherboard cottage • 36 Prince Alfred Street - Federation weatherboard cottage • 64 Princess Street - Federation weatherboard cottage • 71 Princess Street - Federation weatherboard cottage • 51 Queen Street - Federation weatherboard cottage • 54 Queen Street - Federation weatherboard cottage • 44 Victoria Street - Federation weatherboard cottage • 63 Victoria Street - Inter-war weatherboard cottage • 69 Victoria Street - Federation weatherboard cottage • 75/77 Victoria Street - Inter-war Californian bungalow
Proposed Heritage Conservation Areas (HCA) – Consultation Outcomes Discussion and Recommendations A summary of key issues relating to the proposed HCAs raised during the preliminary community consultation, and brief staff comment is provided in Table 3.
Table 2: Summary of responses from preliminary community consultation DE20.94 Summary of issues raised Staff comment
Two (2) questionnaires in support of the Support noted. proposed listing of heritage items within Berry: • Berry Museum. • Berry & District Historical Society Inc Four (4) landowners supported the inclusion Support noted. The HCA will assist in preserving of their property within the proposed HCAs. the heritage characteristics of Berry. Showground HCA: • 21 Albany Street • 27 Albany Street • 73 Victoria Street Queen Street HCA: • 115 Queen Street
Eight (8) landowners opposed the inclusion Objection is noted. The concerns largely related to of their properties within the proposed the potential adverse effects the proposed HCA HCAs. may impose on the value of the property. Seven (7) - Showground HCA (Note: total Potentially excluding these lots from the number of owners approximately 27): Showground and Queen Street HCAs would not • 17 Albany Street negate the heritage requirements under clause • 35 Albany Street 5.10 of SLEP 2014 - refer to further discussion • 65 Victoria Street below. • 67 Victoria Street However, by retaining these lots within the • 69 Victoria Street boundaries of the two (2) proposed HCAs, both • 81 Victoria Street current and future landowners will be aware of the * plus, Sydney Trains, owner of Lot 1 and 2 HCA requirements, and the aim to protect the DP 1001740 discussed in the next row. character of this area into the future.
Development & Environment Committee – Tuesday 01 September 2020 Page 128
It is recommended that the properties in question One (1) - Queen Street HCA (Note: total are included in the proposed HCA areas. number of owners approximately 25): • 94-96 Queen Street Sydney Trains objected to the inclusion of Objection noted. Lot 1 and 2 DP 1001740 within the Council’s Heritage Consultant has advised that Lot proposed Berry Showground HCA as the 2 DP 1001740 is contributory to the significance of properties are already listed as a state the Showground HCA for the following reasons: heritage item (Berry Railway Station Group (SHR 0184)) and do not contribute to the • Contains the State listed Berry Railway Station heritage significance of the Showground Group which contributes to the historic and HCA. representative significance of Berry Showground HCA. • Both the Berry Railway Station and Showground HCA were integral to the historical development of Berry, and both were
interconnected in their contribution to the
annual Berry Show. • An 1887 newspaper report from the Kiama Independent describes a special train to Berry Station that conveyed exhibits and patrons to the Berry Show: as well as transport for goods and animals.
Although Lot 1 DP 1001740 has a neutral DE20.94 relationship to the heritage significance of the Showground HCA, removing the property from the proposed HCA area would not negate the heritage requirements under clause 5.10 of SLEP 2014. It is recommended that Lot 1 and 2 DP 1001740 remain in the Showground HCA area.
Two (2) questionnaires were received in 122 Queen Street is a Strata property, consisting relation to the inclusion of 122 Queen Street of one residential and one commercial unit. A within the proposed Queen Street HCA. questionnaire was received from each of the landowners; one in support and one objecting the proposed HCA listing. Excluding the property from the HCA would not negate the heritage requirements under clause 5.10 of the SLEP 2014 - refer to further discussion below. By retaining the property within the boundary of the proposed HCA, both current and future landowners will be aware of the HCA/heritage requirements, and the character of this part of Berry will be protected into the future.
HCAs are a collection of places (e.g. streetscape) that together possess significance, but individually may not. The implementation of an HCA manages sympathetic change by seeking to protect overall character without overly restricting future development opportunity. Ten (10) landowners (out of a total of approximately 54 owners) objected to the inclusion of their property in the proposed HCAs (including one of the 122 Queen Street owners). The spatial location of the objections can be seen in Figure 2. Concern was raised regarding issues around future development potential and property value.
Development & Environment Committee – Tuesday 01 September 2020 Page 129
Under Clause 5.10 of SLEP 2014, location in an HCA does not prohibit development from occurring, however proposed development would require development consent. Whilst development consent is required for significant works, clause 5.10(3) identifies criteria for minor works and/or maintenance to a building or tree to be undertaken in an HCA without development consent, provided written authorisation is received from Council. It is noted that the Codes SEPP also restricts certain development within an HCA or draft HCA. Whilst the landowner’s objections are acknowledged, removing these properties from the proposed HCAs would not necessarily negate the heritage requirements under clause 5.10 of SLEP 2014. Due to their proximity to the HCA, they would still need to demonstrate the extent that any future development would impact upon the heritage significance of the HCA, regardless of whether the property itself is within the HCA area or not. In most cases, listing properties within an HCA does not affect property value and according to a report produced by the Heritage Council of NSW in certain circumstances the listing may improve resale potential and value.
Following the objection from Sydney Trains regarding the inclusion of Lot 1 and 2 DP
1001740 in the Berry Showground HCA given its state listing, further advice was requested from Council’s Heritage Consultant on the merit of removing the station from the Showground HCA. The advice concluded that there is a connection between the Berry Railway Station and the Berry Showground HCA, and that the station is contributory to the economic, social and cultural history and significance of the proposed HCA. Investigations determined the Berry Railway Station is contributory to the heritage significance of the
Showground HCA in accordance with the State Heritage Register (SHR) criterion (a) DE20.94 Historical Significance and (g) Representativeness. Although Lot 1 DP 1001740 is neutral to all criterions, it is not intrusive to the HCA, and due to its proximity to the HCA, any future development would be required to demonstrate the extent of impacts on the heritage significance of the HCA regardless of whether the lot is included in the HCA or not. The objections to properties being included within either of the two HCAs are considered differently to the objections to proposed individual heritage items. Listing properties within an HCA is intended for a different purpose. Where individual items focus on the significance of the items only, an HCA considers the character of an area. They are usually streetscapes but can be clusters of items which have a broader significance. They can include individual items, but generally focus on architectural style, historical significance and other contributory items like landscaping (which is the case for both the proposed Showground and Queen Street HCAs). Inclusion in an HCA helps ensure future development is sympathetic to the surrounding area and the approval process promotes sympathetic changes to retain the overall character of areas. As such, it is recommended that these properties remain within the proposed HCA. Five landowners (including one of the 122 Queen Street owners) supported the inclusion of their property in the HCAs. A response was not received from the remaining landowners which is taken to indicate support (as per standard convention). It is also noted that the Berry Museum and Berry & District Historical Society Inc. support the two HCAs. It is recommended that SLEP 2014 be amended to include the proposed Queen Street HCA and Showground HCA identified in Figure 2 below.
Conclusion It is recommended that Council now endorse the preparation of a Planning Proposal (PP) to amend Schedule 5 of SLEP 2014 to list the twelve (12) dwellings and two (2) Heritage Conservation Areas as shown in Figure 2 below.
Development & Environment Committee – Tuesday 01 September 2020 Page 130
DE20.94
Figure 2: Proposed Heritage Items, Heritage Conservation Areas and Recorded HCA Objections
Community Engagement Should the recommendation be endorsed and following a Gateway determination, any resulting PP would be exhibited in accordance with Council’s Community Participation Plan, the Gateway determination, and any relevant legislative requirements. The Gateway determination will specify the minimum exhibition period and any government agencies who should be consulted. Any directly affected landowners will again be advised of the exhibition arrangements in writing, as will the Berry Forum, Berry Showground Management Committee, Berry Chamber of Commerce, Berry Museum and Berry & District Historical Society.
Policy Implications One of the key principles of the Illawarra-Shoalhaven Regional Plan (ISRP) is for Councils to “conserve heritage assets when undertaking local strategic planning and development”. As such the recommended PP is generally consistent with the ISRP. Four (4) questionnaires were accompanied by additional submissions with proposed revisions to the prepared Heritage Inventory Data sheets. Should Council endorse the progression of a PP, the merit of these suggestions will be considered and may result in updates to the Heritage Inventory Data sheets as required. Proceeding as recommended is also generally consistent with the vision statement and relevant heritage objective within the Berry Community Strategic Plan: • Berry is highly valued by both its residents and its visitors for its location and its heritage village atmosphere…. Future development, infrastructure improvement and
Development & Environment Committee – Tuesday 01 September 2020 Page 131
growth of tourism will be carefully balanced with a heightened focus on Berry's unique historic charm, rural character, and renown as "The Town of Trees". • Maintain the history, setting and unique character of the Berry area through careful planning and development
Financial Implications There are no immediate financial implications for Council. The recommended PP will be resourced from the Strategic Planning budget.
Risk Implications Not including the twelve (12) dwellings and the two (2) Heritage Conservation Areas within Schedule 5 of SLEP 2014 may result in unsympathetic development which could impact on the existing heritage significance and character of Berry.
DE20.94
Development & Environment Committee – Tuesday 01 September 2020 Page 132
DE20.95 Ground Penetrating Radar (GPR) Survey Extent - Planning Proposal - 22 Currambene Street and 17 Hawke Street, Huskisson
HPERM Ref: D20/360814
Section: Strategic Planning Approver: Phil Costello, Director - City Development
Attachments: 1. Jerrinja LALC submission 7/8/20 - GPR survey Lot 9 (26 Currambene Street) Huskisson ⇩
Reason for Report
Determine if Council wishes to fund the Ground Penetrating Radar (GPR) Survey work over Lot 9 which is owned by the Jerrinja Local Aboriginal Land Council (LALC). This will enable it to be done as part of the GPR survey that will be undertaken over the adjacent land to which Planning Proposal PP050 (Lots 7 and 8) applies. Note: this matter was initially considered by Council on 4 August 2020, and was deferred to
allow a formal response to be obtained from the Jerrinja LALC. DE20.95
Recommendation (Item to be determined under delegated authority) That Council: 1. Note the letter received from the Jerrinja Local Aboriginal Land Council, dated 7 August 2020, supporting the recommendation to fund the Ground Penetrating Radar (GPR) Survey on Lot 9 Section C DP 758530 (26 Currambene Street) Huskisson. 2. Allocate $11,000 to enable the Ground Penetrating Radar (GPR) Survey that will be undertaken for Huskisson Church Planning Proposal (Lots 7 and 8) to also include the adjoining Lot 9, which is owned by the Jerrinja Local Aboriginal Land Council, noting that the inclusion of Lot 9 in the GPR survey will enable a more wholistic assessment of this aspect. 3. As part of the next quarterly budget review, determine and confirm where the $11,000 will be allocated from.
Options 1. Allocate $11,000 to enable the GPR survey to also be undertaken over Lot 9 and thus assist with a more comprehensive review. Implications: This will allow the GPR survey to also be undertaken over all of Lot 9. Although not essential for the purpose of progressing the PP over Lots 7 and 8, it will assist in providing a more complete understanding of the potential number and location of any graves, including on Lot 9 which is owned by the Jerrinja LALC, who have formally confirmed that it supports this approach.
2. Not contribute $11,000 to the GPR survey. Implications: The GPR survey will only be undertaken over Lots 7 and 8, plus a 2m strip inside Lot 9. This will identify graves or potential graves that are wholly or partly within the Subject Land (Lots 7 and 8) noting that at least one grave is thought/known to
Development & Environment Committee – Tuesday 01 September 2020 Page 133
straddle Lots 7 and 9. The GPR survey will not cover the remainder of Lot 9, where another two graves were identified by previous GPR surveys. This could also result in a less comprehensive review.
Background This matter was reported to Council’s Development and Environment Committee on 4 August 2020 (DE20.85). That report recommended that Council: 1. Allocate $11,000 to enable the Ground Penetrating Radar (GPR) Survey that will be undertaken for Huskisson Church Planning Proposal (Lots 7 and 8) to also include the adjoining Lot 9, which is owned by the Jerrinja Local Aboriginal Land Council, noting that the inclusion of Lot 9 in the GPR survey will enable a more wholistic assessment of this aspect. 2. As part of the next quarterly budget review, determine and confirm where the
$11,000 will be allocated from.
The Information from the August report is provided below. Council resolved (MIN20.545) to: 1. Note the report 2. Receive a further report after a formal response is received from Jerrinja Local Aboriginal Land Council on this matter.
As such this matter is now resubmitted for Council’s consideration following advice received DE20.95 from the Jerrinja LALC. Submission from the Jerrinja LALC The Jerrinja LALC subsequently provided a written deputation/submission dated 7 August 2020 for Council’s consideration – see Attachment 1 (Note that the author’s personal details have been redacted based on advice from Council’s Governance Unit.) In summary, the Jerrinja LALC submission: • requests that due process to be followed; • confirms that Jerrinja LALC does not wish to include Lot 9 in the Planning Proposal (PP050) and does not support the proposed change in zoning of Lots 7 and 8; • expresses concern that excluding Lot 9 from the GPR survey would not allow for the full significance of graves to be assessed (noting that at least two graves are located wholly or partly within Lot 9); • states that the LALC was hopeful that the proponent would agree to fund the GPR survey on Lot 9, while acknowledging that this was not required by the Gateway determination; (This is discussed further below.) • requests that Council fund the balance of the GPR survey (i.e. to cover Lot 9) and would consider this to be a practical demonstration of Council’s “…commitment to the sentiments of the Uluru Statement From The Heart…” and the Memorandum of Understanding between Council and the Jerrinja LALC.
Information from the report to Council’s Development & Environment Committee on 4/8/20 On 20 January 2020, Council resolved to progress a proponent-initiated Planning Proposal (PP) over the former Anglican church site at Huskisson. The Council resolved to provide in- principle support for the PP subject to undertaking several studies, including “a new independent Ground Penetrating Radar (GPR) survey over the entire site by a grave detection specialist using best practice methodology.”
Development & Environment Committee – Tuesday 01 September 2020 Page 134
Quotes have been obtained for the GPR survey which will cover Lots 7 and 8, plus a 2 m strip within Lot 9 to cover any graves that straddle or could straddle the subject land and Lot
9 – refer to map below.
DE20.95
Council also resolved on 20 January 2020 to consult with “…the Jerrinja Local Aboriginal Land Council; and Council’s Aboriginal Advisory Committee to seek clarification on the legal status of the graves with regard to the NSW Heritage act.” And to continue “…consultation with the Jerrinja Local Aboriginal Land Council and Council’s Aboriginal Advisory Committee as required/appropriate.” Regular updates are provided to representatives of the Jerrinja LALC in relation the GPR survey and the Aboriginal Cultural Heritage Assessment (ACHA). The LALC has conveyed its desire for the assessments, including the GPR survey, to cover all the adjacent Lot 9. However, the LALC has advised that it is not able to cover the associated cost. The GPR consultant has provided an option to also survey all of Lot 9 for $11,000, on the basis that it is done at the same time as Lots 7 and 8. The PP proponent cannot be required to fund the GPR survey over the balance of Lot 9 as it is not part of the PP and not required by the Gateway determination. Thus, the GPR will not include all of Lot 9 unless Council is willing to fund the additional work. Lot 9 was part of a GPR survey previously commissioned by Council in 2015; the new survey will be more intensive (25cm transect spacing) in accordance with best practice for surveying unmarked graves. Council needs to consider whether it is willing to fund the GPR work over the whole of Lot 9 to assist with the wholistic consideration of this issue.
Development & Environment Committee – Tuesday 01 September 2020 Page 135
Community Engagement Staff briefed Council’s Aboriginal Advisory Committee on 10 August 2020 on the Aboriginal Cultural Heritage Assessment that will be undertaken as part of the PP process, and the staff submission in relation to the application for heritage protection under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984. Council will continue to advise and consult the Jerrinja LALC and Council’s Aboriginal Advisory Committee as the process continues. Formal consultation with the Aboriginal community will also be undertaken as part of the Aboriginal Cultural Heritage Assessment (ACHA) process. Broader community engagement will be undertaken as part of the overall PP process. The PP and supporting studies will be publicly exhibited once the Gateway conditions have been satisfied. A Get Involved page has been established for the planning proposal project to facilitate community engagement throughout the process.
Policy Implications The Jerrinja LALC has now requested Council’s support to fund the GPR survey on its land (Lot 9) which does not form part of the planning proposal (PP050). Funding the GPR survey over Lot 9 would add value to the work that will be done over Lots 7 and 8 as part of PP050. It will also help ensure the completeness of the work that is being undertaken, and as noted in Jerrinja LALC’s submission, would demonstrate Council’s commitment to the MOU with the Jerrinja LALC and to working through this sensitive issue in a collaborative and DE20.95 constructive manner.
Financial Implications There is currently no budget to fund the new GPR survey over Lot 9. Should Council resolve to fund this work, the source would need to be determined/confirmed via the next quarterly budget review.
Development & Environment Committee – Tuesday 01 September 2020 Page 136
Attachment 1
- DE20.95
Development & Environment Committee – Tuesday 01 September 2020 Page 137
Attachment 1
- DE20.95
Development & Environment Committee – Tuesday 01 September 2020 Page 138
DE20.96 Draft COVID-19 Contributions Discount Subsidy Policy - Post Exhibition Consideration and Finalisation
HPERM Ref: D20/361163
Section: Strategic Planning Approver: Phil Costello, Director - City Development
Attachments: 1. Public Notice/Exhibition Submission Summary ⇩ 2. Proposed Post Exhibition Changes to the COVID-19 Contributions Discount Subsidy Policy ⇩
Reason for Report
• Detail the submissions received during the public notice/exhibition period relating to the draft COVID-19 Contributions Discount Subsidy Policy (the Policy). • Enable adoption and implementation of the Policy.
Recommendation (Item to be determined under delegated authority) DE20.96 That Council: 1. Adopt the draft COVID-19 Contributions Discount Subsidy Policy as exhibited, with the changes shown in Attachment 2 to the report. 2. Advise those who made a submission and the Development Industry Representatives of this resolution.
Options 1. As recommended. Implications: This is the preferred option as it will enable adoption and implementation of the Policy. This option also responds to the submissions received during the public notice/exhibition period.
2. Adopt an alternative recommendation. Implications: This will depend on the extent of any changes and could delay the implementation of the Policy.
3. Not adopt the recommendation. Implications: This could stop the implementation of a Policy to satisfy the intent of Council’s 7 April 2020 (MIN20.240) and 28 April 2020 (MIN20.275) resolutions.
Background On 7 April 2020, Council resolved (MIN20.240) in part to: 7. Maintain, continue and encourage as much economic activity as possible Council adopt the following policies, to be followed by an implementation report from the CEO:
Development & Environment Committee – Tuesday 01 September 2020 Page 139
f. Discounting of Section 7.11 Developer Contributions (Section 94 Contributions) Council, as a matter of policy, discount all developer contributions levied under Section 7.11 of the EPA Act 1979 (As Amended) by 50% for any proposal that will result in the creation of employment, or places of employment (i.e. new retail buildings, buildings of a commercial nature, industrial buildings and the like (other than construction jobs).
Subsequently on 28 April 2020, Council’s intent was further refined by the following resolution (MIN20.275): 5 Further vary policy by the amendment of the previous Council Resolution MIN 20.240 as follows: a. Amending Part 7f. as follows: i. deletion of the words “other than construction jobs” at the end of the part
ii. The insertion of the following words at the end of Part 7f “Discounts will not apply to any contribution required for works directly related to a development where public safety is an issue i.e. traffic facilities.” b. The discounted Section 7.11 charges will be applied as a refund following an application for a refund from the owner once the development is approximately 25% complete,
c. Any claims for a discount made under the provisions of Part 7f must be made DE20.96 within two years of the issue of an operational Development consent. d. Any proposal that has been approved where development contributions have not yet been paid will qualify for the discount. e. In the event that a property changes ownership, the entitlement to a discount under this policy will remain with the land f. Should any part of this policy need further adjustment for legal reasons that section be the subject of a further report to the Development Committee or Council. 6. For the purpose of approving the refund of Section 7.11 contributions the CEO/delegate will be the sole arbitrator in determining and assessing the status of a development regarding it satisfying the refund criteria or if the development is staged that a point of approximately 25% of the stage has been reached at which point the CEO/delegate may make the refund. 9. That a review of the Policy be undertaken after 6 months at which time the Council will be informed of the impact of the Policy.
A draft Policy was prepared which was reviewed by Lindsay Taylor Lawyers and was discussed in a Councillor workshop on 4 June 2020. On 23 June 2020, Council resolved (MIN20.450) to: 1. Endorse the content of the draft COVID-19 Contributions Discount Subsidy Policy (draft Policy) and proceed to exhibit the draft Policy in accordance with legislative requirements. 2. Notify key industry stakeholders of the exhibition arrangements. 3. Proceed to finalise the Policy following exhibition if no submissions or submissions of a minor, largely mechanical nature are received; however if submissions of substance are received that require closer consideration then the exhibition outcomes be reported back to Council as a matter of urgency to enable the Policy to be finalised.
Development & Environment Committee – Tuesday 01 September 2020 Page 140
Public Notice/ Exhibition The draft Policy was publicly exhibited for a period of 30 days from Wednesday 8 July to Friday 7 August 2020 (inclusive). Notices appeared in local newspapers on 8 July 2020. As per the resolution, the key industry stakeholders were notified directly in writing. The exhibition material included the: • Draft COVID-19 Contributions Discount Subsidy Policy. • Newspaper advertisement. As a result of the exhibition, four (4) formal submissions were received: • One (1) from a community member. • Three (3) from development industry representatives:
- Allen Price & Scarratts. - Allen Price & Scarratts on behalf of Lucas Sheargold Joint Venture. - Jemalong Property Group / Jemalong Mundamia Pty Ltd.
Submission Summary and Recommended Post Exhibition Changes Attachment 1 provides a summary of the submissions received and staff comments on DE20.96 them. Copies of the actual submissions can be made available to Councillors prior to the meeting if necessary, on request. As a result of the submissions received, the following changes are proposed to the exhibited Policy: • Expand the ‘Eligible Development’ list initially proposed by Council to include ‘subdivisions’, to provide additional clarity. • Remove the two-year application timeframe requirement to broaden the amount of development that would be eligible for the subsidy, which ultimately meets the purpose of the Policy to “encourage as much economic activity as possible” in Shoalhaven. • Specify that the owner of the land (or other party as agreed to by the Chief Executive Officer, or his delegate) could make an application for the subsidy, rather than only the owner only. These suggested changes are highlighted in yellow in the attached version of the Policy (Attachment 2) for convenience.
Conclusion Following due consideration of the submissions made during the public notice/exhibition, the Policy can should now be adopted and implemented.
Community Engagement The draft Policy was publicly exhibited for 30 days in accordance with legislative requirements. Four (4) submissions were received which are summarised at Attachment 1 and discussed above.
Development & Environment Committee – Tuesday 01 September 2020 Page 141
Policy Implications If any new projects are added to the Contributions Plan that have a public safety element, it would be appropriate, if needed, for the Policy to be updated at that point to specify for clarity that the subsidy would not apply to those projects. The Policy will be reviewed after 12 months of operation to consider the take up and impact of the Policy and whether the Policy needs to be extended or not.
Financial Implications Finalising the Policy will continue to be undertaken within the existing Strategic Planning budget. The funding source for the Policy is the general fund, rather than the Contributions Plan, to importantly maintain the integrity of the Contributions Plan. The removal of the two-year application timeframe associated with the Policy will potentially increase Council’s expenditure from the general fund.
Risk Implications The draft Policy was reviewed by a member of Council’s external legal panel to ensure it is appropriately constructed and robust. The suggested post exhibition amendments are
considered to be relatively minor in nature – noting however that the financial implication of DE20.96 removing the two-year timeframe will potentially increase the ultimate cost associated with the policy.
Development & Environment Committee – Tuesday 01 September 2020 Page 142
Attachment 1
-
DE20.96
Development & Environment Committee – Tuesday 01 September 2020 Page 143
Attachment 1
-
DE20.96
Development & Environment Committee – Tuesday 01 September 2020 Page 144
Attachment 1
-
DE20.96
Development & Environment Committee – Tuesday 01 September 2020 Page 145
Attachment 1
-
DE20.96
Development & Environment Committee – Tuesday 01 September 2020 Page 146
Attachment 1
-
DE20.96
Development & Environment Committee – Tuesday 01 September 2020 Page 147
Attachment 2
- DE20.96
Development & Environment Committee – Tuesday 01 September 2020 Page 148
Attachment 2
- DE20.96
Development & Environment Committee – Tuesday 01 September 2020 Page 149
Attachment 2
- DE20.96
Development & Environment Committee – Tuesday 01 September 2020 Page 150
DE20.97 Shoalhaven Animal Shelter Annual Report
HPERM Ref: D20/259277
Section: Building & Compliance Services Approver: Phil Costello, Director Planning Environment & Development Group
Reason for Report At its Ordinary Meeting on 28 April 2019 Council resolved that the Ranger Services Unit continue with the management and operation of the Shoalhaven Animal Shelter on a permanent basis (MIN 19.88). This report provides an update to Councillors on the workings of the Shoalhaven Animal
Shelter for the 2019/2020 financial year.
Recommendation (Item to be determined under delegated authority) That the Shoalhaven Animal Shelter Annual Report be received for information.
Options
1. Council receive the report for information. DE20.97 Implications: Nil
2. Council receives the report and provides additional direction for future reports. Implications: Any changes or additional matters can be added to future reports.
Report Shoalhaven Animal Shelter now begins its third year of operation and it has continued to flourish. In the last financial year there have been an increased number of adoptions and reclaims. Whilst every effort is made to re-home animals that are surrendered for various reasons, the reality is that some do not pass the temperament test and these animals have been euthanised. This report provides a snapshot of the Shoalhaven Animal Shelter achievements for the 2019/2020 financial year. It provides statistics on the animals presented and exiting the shelter together with the successes and plans for the future moving forward. The Shelter strives to be an industry leader The Shelter’s top priority is to provide a safe haven for all animals during their stay. It is an environment where animals feel protected and loved. Every animal is given the best possible opportunity to find a forever home. The high adoption rate results place the Shoalhaven Animal Shelter as an industry leader in this field. In the 2019/2020 financial year, a total of 817 adoptions were recorded. This is a 27% increase on the previous financial year where only 598 adoptions occurred. It is thought that perhaps COVID-19 has had a positive impact on the adoption results with more people being at home increasing their capacity to adopt. There is a fear, however, that should the pandemic be prolonged, it may have an adverse impact with animals being surrendered due to the cost of keeping them.
Development & Environment Committee – Tuesday 01 September 2020 Page 151
The following tables highlight the total number of animals received, reclaimed, adopted and euthanised for the 2019/2020 financial year. On 1 July 2019, there were 53 animals in the shelter and a further 1414 animals were added during the period. On 30 June 2020 there were 26 animals in the shelter; thus, 1441 animals left the Shelter during the period.
Figure 1: Animals received at the Shelter 2019/2020
Number Dogs 637 Cats 327 Kittens 296 Puppies 77 Rabbits 22 Guinea Pigs 17 Sheep 12 Fowl 10 Goats 8 Horses 10 Cattle 2 Rodent 1 Total 1419
DE20.97 Figure 2: Animals leaving the Shelter 2019/2020 Reason Number Reclaimed by owner 428 Adopted 817 Transferred to animal rescue groups 39 Unassisted deaths 12 Euthanised 145 Total 1441
Of the 145 animals euthanised, 114 were feral cats and 31 were dogs. Although the numbers of feral cats are declining, they are still quite prolific in our Local Government Area. The community is active in working with Council to trap feral cats which have a major impact on our native animal populations. The euthanised dogs include those declared Menacing, Restricted and Dangerous (19) and those who did not pass behaviour testing or for medical reasons (12). Costs and income The overall expenditure for the animal shelter was $886,985, income $200,041, leaving operating cost of $684,944. Animals suitable for adoption are vaccinated, microchipped and desexed before they are released back into the community. This has an impact on the overall expenditure associated with the Shelter. The result is higher vaccination figures, and this serves to decrease infectious disease. The Shelter has plans over coming years to increase adoption numbers, merchandising and sponsorship. The buy-in from the community has been welcomed and the Shelter will continue to foster these relationships.
Development & Environment Committee – Tuesday 01 September 2020 Page 152
Animal Shelter has significant public support The Shelter enjoys great community support by providing them with up to date information regarding the regulations of owning a companion animal together with some great advice on a variety of pet ownership topics. Many visitors to the Shelter are impressed with its management and how caring the staff are towards all animals in their care. Reuniting animals with their owners is a high priority. If an owner can no longer care for their animal, the Shelter provides them with assistance to find a new forever home. Council has also received good feedback from other local government areas who have experienced the same challenges with the RSPCA removing their shelter services. The Shoalhaven Animal Shelter is a state of the art facility and other councils are keen to learn from our experience. Collaboration with local business
Every animal deserves the best possible chance in life and the Shelter endeavours to achieve this outcome. For some animals this may mean some extra training or time for them to become comfortable with their new surroundings and shine. The Shelter has formed some great relationships with local business and many animal rescue groups in NSW. These have supported the Shelter when it has been faced with large medical costs and this is acknowledged and greatly appreciated.
In October 2019, the Shelter held “The Shoalhaven Animal Shelter Pet Expo” at the Nowra DE20.97 Showground. This event showcased everything on offer for pets including veterinary services, merchandise, training and grooming. A total of 50 exhibitors attended the event and both the Shelter and Ranger Services had separate stalls. It is estimated that 4,000 people attended the Expo with their pets. Overall, the event was well received with new partnerships secured. The Shelter intends to run another Expo as soon as Covid-19 restrictions allow.
Future Community Engagement The Shelter’s community project for 2020/2021 is to address a gap in support for those in need such as homelessness, domestic violence and our aged community members. This project will be completed in collaboration with the Animal Welfare League and RSPCA. Currently there is no assistance animal care programme when an elderly person is taken to hospital or when people are placed in emergency care. The programme will seek to house these animals at minimal cost. Shelter staff will also build a network of foster carers within the community to take on animals for short term accommodation. For example, when puppies and kittens are delivered to the shelter, they are put out to foster carers until they reach an age for desexing and adoption.
Advertising and Media Facebook remains the Shelters top form of media. This platform is used to promote animals available for adoption and to share information with the local community by way of weekly posts. These “Did you know posts” aim to share new information such as changes to Companion Animals Legislation and general pet information. The number of daily hits is increasing and it supports confidence in this form of media.
Development & Environment Committee – Tuesday 01 September 2020 Page 153
Challenges facing the Shelter The Shelter has had a number of challenges in the 2019/2020 financial year and these are highlighted below: 1. Bush fires caused evacuation of the Shelter: The Animal Shelter was impacted by the bush fires in both December 2019 and January 2020. This forced the evacuation of staff and animals on both occasions. The cats were taken to Bomaderry Veterinary Clinic and the dogs were placed with local foster carers. Fortunately, there were no livestock at the Shelter during these times. 2. Fatal dog attack and implications from Zero tolerance: The fatal dog attack at Collingwood Beach, Vincentia has had a major impact. The positive move to adopting a zero tolerance on unregistered dogs and dog attacks has generally been well received by the community. There is an increased awareness of dangerous dogs and dogs off leash. This has resulted in an increase number of reports and animals entering the shelter. Shelter staff and Ranger Services are using this time to further educate people on responsible dog
ownership. 3. COVID-19: Whilst COVID-19 may have had an influence on the number of adoptions for this period, the final fallout may not have been fully realised. The economic recession is having an impact on job losses in our community and the Shelter expects this may have a flow on effect with the number of surrenders increasing. 4. Infectious disease: Parvovirus, cat flu and ringworm continue to pose a risk in the Shoalhaven due to the lack of vaccinations. Additional education will be a focus for the DE20.97 Shelter and Ranger Services into the future. 5. Feral cats: Feral cats continue to be a challenge. Whilst the community are assisting with the capture of feral cats and their delivery to the Shelter, it is doubtful feral cats will be totally eradicated from the environment.
The Future The next financial year will provide the Shelter with an opportunity to nurture existing and secure further partnerships within the community. It will also see a broadening of education programmes to support responsible pet ownership. One of the high priority programmes relates to the feral cat problem. This programme will alert the community to the impacts feral cats have on the natural environment and why it is important to keep cats secured and not let them roam. The Shelter recently secured $4000 in funding from the State Government funding boost for Council pounds. The Shelter will be using this funding to build a Dangerous Dog Enclosure. This will serve to safeguard shelter staff and educate owners on how to construct these enclosures should they be directed to do so.
Development & Environment Committee – Tuesday 01 September 2020 Page 154
DE20.98 Review of the Narrawallee and Upper Kangaroo Valley Bushcare Group Action Plans
HPERM Ref: D20/363087
Section: Environmental Services Approver: Phil Costello, Director Planning Environment & Development Group
Attachments: 1. Narrawallee Bushcare Group Action Plan 2020 (under separate cover) ⇨ 2. Upper Kangaroo Valley Bushcare Action Plan 2020 (under separate cover) ⇨
Reason for Report
The purpose of the report is to present two plans – the Narrawallee Bushcare Group Action Plan and the Upper Kangaroo Valley Bushcare Group Action Plan – for adoption.
Recommendation (Item to be determined under delegated authority) That Council adopt the:
1. Narrawallee Bushcare Group Action Plan presented as Attachment 1; and DE20.98 2. Upper Kangaroo Valley Bushcare Group Action Plan presented as Attachment 2.
Options 1. As recommended. Implications: These two plans will see the continuation of weed control and other activities by community volunteers to maintain and improve the condition, resilience, and amenity of their respective areas.
2. Modify the recommendation. Implications: The positive and negative implications of choosing this option would depend on what the proposed changes are.
3. Not adopt the recommendation. Implications: This decision may significantly affect volunteer morale and result in a loss of volunteer participation in helping to care for these areas.
Background The Narrawallee Bushcare Group commenced in August 2000. Since that time, the group has done a magnificent job in reducing the impacts of weeds and improving the natural values within their area of operation. The Narrawallee group is a particularly active group and numerous bags of weeds, such as ground asparagus, are removed on a weekly basis. The group works from Narrawallee Inlet around to the ‘Scout Track’ adjoining Bannister Head Road. The proposed plan is for the continuation of this work to manage the integrity of these reserves, with no changes to use, infrastructure or vistas. Most actions are standard for
Development & Environment Committee – Tuesday 01 September 2020 Page 155
Bushcare group action plans. However, one proposed action is noteworthy – to follow up on an action to manage sweet Pittosporum (Pittosporum undulatum). A Review of Environmental Factors was completed in 2010 for selective removal of some of these plants, with the intended goal of increasing biodiversity. A new action is recommended to assess the outcomes of this work in relation to the intended goal, which will be relevant to the ongoing management of Narrawallee and other sites. Similarly, volunteers have been working at the Upper Kangaroo Valley site under the Bushcare program since 2002. The area subject to the plan is opposite the community hall and surrounding the swing bridge. The area is in good condition, with low levels of weeds. It is the members of the Upper Kangaroo Valley Landcare group that work on the site under the policies and procedures of Bushcare. Again, the volunteers are doing an invaluable job in helping to care for this area. The proposed plan contains standard actions only, with no changes to use, infrastructure or vistas. The proposed group action plans (Attachments 1 and 2) update the current plans, adopted in
2008 and 2012 for Narrawallee and Upper Kangaroo Valley, respectively.
Community Engagement The community consultation for these group action plans falls under minor consultation as per the current Bushcare/Parkcare Procedures. The draft plans were required to be provided to the Department of Planning, Industries and Environment – Crown Land and the Local Aboriginal Land Council in accordance with DE20.98 procedures. The draft plan for Narrawallee was also provided to the Ulladulla and Districts Forum. No feedback has been received.
Financial Implications The cost of the two group action plans, over the six years of implementation, will be $43,400. These costs include an allocation of existing staff resources which support the Natural Areas Volunteers Program, which will be funded from the existing annual operation budget (job number 15915). A materials and equipment contribution of $400 per annum per group is included in these costs. The in-kind volunteer contribution over the six years of the plan is estimated at $126,900. This is a significant contribution from our volunteers in meeting the objectives of Council’s Community Strategic Plan.
Development & Environment Committee – Tuesday 01 September 2020 Page 156
LOCAL GOVERNMENT AMENDMENT (GOVERNANCE & PLANNING) ACT 2016
Chapter 3, Section 8A Guiding principles for councils (1) Exercise of functions generally The following general principles apply to the exercise of functions by councils: (a) Councils should provide strong and effective representation, leadership, planning and decision-making. (b) Councils should carry out functions in a way that provides the best possible value for residents and ratepayers. (c) Councils should plan strategically, using the integrated planning and reporting framework, for the provision of effective and efficient services and regulation to meet the diverse needs of the local community. (d) Councils should apply the integrated planning and reporting framework in carrying out their functions so as to achieve desired outcomes and continuous improvements. (e) Councils should work co-operatively with other councils and the State government to achieve desired outcomes for the local community. (f) Councils should manage lands and other assets so that current and future local community needs can be met in an affordable way. (g) Councils should work with others to secure appropriate services for local community needs. (h) Councils should act fairly, ethically and without bias in the interests of the local community. (i) Councils should be responsible employers and provide a consultative and supportive working environment for staff. (2) Decision-making The following principles apply to decision-making by councils (subject to any other applicable law): (a) Councils should recognise diverse local community needs and interests. (b) Councils should consider social justice principles. (c) Councils should consider the long term and cumulative effects of actions on future generations. (d) Councils should consider the principles of ecologically sustainable development. (e) Council decision-making should be transparent and decision-makers are to be accountable for decisions and omissions. (3) Community participation Councils should actively engage with their local communities, through the use of the integrated planning and reporting framework and other measures.
Chapter 3, Section 8B Principles of sound financial management The following principles of sound financial management apply to councils: (a) Council spending should be responsible and sustainable, aligning general revenue and expenses. (b) Councils should invest in responsible and sustainable infrastructure for the benefit of the local community. (c) Councils should have effective financial and asset management, including sound policies and processes for the following: (i) performance management and reporting, (ii) asset maintenance and enhancement, (iii) funding decisions, (iv) risk management practices. (d) Councils should have regard to achieving intergenerational equity, including ensuring the following: (i) policy decisions are made after considering their financial effects on future generations, (ii) the current generation funds the cost of its services
Development & Environment Committee – Tuesday 01 September 2020 Page 157
Chapter 3, 8C Integrated planning and reporting principles that apply to councils The following principles for strategic planning apply to the development of the integrated planning and reporting framework by councils: (a) Councils should identify and prioritise key local community needs and aspirations and consider regional priorities. (b) Councils should identify strategic goals to meet those needs and aspirations. (c) Councils should develop activities, and prioritise actions, to work towards the strategic goals. (d) Councils should ensure that the strategic goals and activities to work towards them may be achieved within council resources. (e) Councils should regularly review and evaluate progress towards achieving strategic goals. (f) Councils should maintain an integrated approach to planning, delivering, monitoring and reporting on strategic goals. (g) Councils should collaborate with others to maximise achievement of strategic goals. (h) Councils should manage risks to the local community or area or to the council effectively and proactively. (i) Councils should make appropriate evidence-based adaptations to meet changing needs and circumstances.