Decision and Reasons Under Section 35K(1)
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DECISION Local Provisions Schedule West Coast Date of decision 23 March 2021 Under section 35K(1)(a) of Land Use Planning and Approvals Act 1993 (the Act), the Commission directs the planning authority to modify the draft LPS in accordance with the notice at Attachment 2. When the directed modifications have been undertaken under section 35K(2), the Commission is satisfied that the LPS meets the LPS criteria and is in order for approval under section 35L(1). Ann Cunningham Dianne Cowen Delegate (Chair) Delegate West Coast draft Local Provisions Schedule REASONS FOR DECISION Background The West Coast Planning Authority (the planning authority) exhibited the West Coast draft Local Provisions Schedule (the draft LPS), under section 35D of Land Use Planning and Approvals Act 1993 (the Act), from 17 August 2020 to 15 October 2020. On 21 December 2020, the planning authority provided the Commission with a report under section 35F(1) into 11 representations received on the draft LPS. A list of representations is at Attachment 1. Date and place of hearing The Commission must hold a hearing in relation to representations to the draft LPS under section 35H of the Act. A hearing was held at the Commission’s office on Level 3, 144 Macquarie Street, Hobart on 15 February 2021. Consideration of the draft LPS 1. Under section 35J(1) of the Act the Commission must consider: • the planning authority section 35F(1) report and the draft LPS to which it relates; • the information obtained at the hearings; • whether it is satisfied that the draft LPS meets the Local Provision Schedule (LPS) criteria under section 34; and • whether modifications ought to be made to the draft LPS. 2. Under section 35J(2) of the Act, the Commission may also consider whether there are any matters that relate to issues of a technical nature or may be relevant to the implementation of the LPS if the LPS were approved. 3. The LPS criteria to be met by the draft LPS are: (a) contains all the provisions that the State Planning Provisions (SPPs) specify must be contained in an LPS; (b) is in accordance with section 32 of the Act; (c) furthers the objectives set out in Schedule 1 of the Act; (d) is consistent with each State policy; (e) as far as practicable, is consistent with the regional land use strategy, if any, for the regional area in which is situated the land to which the relevant planning instrument relates; (f) has regard to the strategic plan, prepared under section 66 of the Local Government Act 1993, that applies in relation to the land to which the relevant planning instrument relates; (g) as far as practicable, is consistent with and co-ordinated with any LPSs that apply to municipal areas that are adjacent to the municipal area to which the relevant planning instrument relates; and 2 West Coast draft Local Provisions Schedule (h) has regard to the safety requirements set out in the standards prescribed under the Gas Pipelines Act 2000. 4. The relevant regional land use strategy is the Cradle Coast Regional Land Use Planning Framework 2010 - 2030 (the regional strategy), declared in October 2011. 5. In addition to the LPS criteria, the Commission has considered Guideline No. 1 – Local Provisions Schedule (LPS): zone and code application (Guideline No. 1) issued under section 8A of the Act. 6. The requirements for making modifications to the draft LPS are set out under section 35K of the Act. The modifications can be broadly categorised as modifications section 35K(1)(a). 7. The Commission may also reject the draft LPS and request that the planning authority prepare a substitute [section 35K(c)(i)]. 8. Where the Commission has determined modifications ought be made, these are set out in a notice under 35K(1)(a) of the Act (see Attachment 2). Issues raised in the representations General Residential Zone – 4 Selina Street, 4 Sterling Street, and 2 Romulus Street, Tullah Representations: Tullah Progress Association Inc. (3) and Kim Lai, Jane Bennett, Aaron Chen, Greg Clark, Skyridge Pty Ltd (9) 9. The representors requested a revision to the proposed zoning for three properties in Tullah from the Rural Zone to the General Residential Zone. The reasons include that the land is fully serviced with reticulated water, sewer and stormwater, electricity, sealed roads and footpaths. Further reasons are that the range of uses provided for by the Use Table in the Rural Zone is inappropriate for land on the periphery of a residential area, and that application of the General Residential Zone would be consistent with the West Coast Council Land Use Planning Strategy 2017. 10. In the section 35F report, the planning authority responded with the following points: • confirmation that the land is fully serviced; • that application of the General Residential Zone is not consistent with GRZ 2 (c) of Guideline No. 1 - Local Provisions Schedule (LPS): zone and code application (Guideline No. 1) as application of the Zone is not supported by the regional strategy or any detailed local strategic analysis; • that the West Coast Council Land Use Strategy September 2017, concludes that there is already sufficient land in Tullah zoned General Residential; • that the representation does not necessitate a modification to the draft LPS; and • that the draft LPS satisfies the criteria at section 34(2) of the Act. 11. Prior to the hearing, one of the representors, Mr Kim Lai, submitted reports from three real estate agents contending that there is strong market demand for residential land at Tullah. Additionally, the representor submitted data from theLIST showing that 102 properties have been sold in Tullah since 2013, increasing from an average of 7 sales per year across 2013 and 2014 to an average of 18.5 sales per year across 2018 and 2019. 3 West Coast draft Local Provisions Schedule 12. At the hearing, the planning authority reiterated its opinion that application of the General Residential Zone is not supported by the regional strategy, in particular policy 4.3.1 - urban settlement areas. Its view, which was also expressed in a submission following the hearing, is that Tullah has a significant supply of residential land, being a minimum of 15 years calculated on the basis of historic development rates. The West Coast Council Land Use Strategy 2017 identifies a 28 year supply for the whole planning area as of 2017, based on the available uptake of vacant lots at that time and the average annual uptake of 4 across the planning area. The planning authority noted that its records indicate that only a small number of dwellings were constructed in Tullah between 2000 and 2014, which equates to a take up rate of 1.75 lots per year. 13. The planning authority and the representors also debated whether the land was green-field, brown-field or grey-field for the purposes of application of GRZ 2 (c) of Guideline No. 1. The view of the planning authority, confirmed in a submission following the hearing, is that the land is grey-field. The representor’s party to representation 9 and represented by Mr Lai, agreed but also held the view that the land is ‘non-urban.’ 14. The representors disagreed with the method the planning authority used to calculate the supply of land within the General Residential Zone. The representors pointed to real estate sales data as evidence that demand is increasing and that supply must therefore be increased. The representors went further to assert this indicates that the regional strategy and the West Coast Council Land Use Strategy 2017 both misrepresent the actual demand for residential land in Tullah, which is evident in the real estate market. The representors were of the opinion that property sales would be higher in Tullah if not for the lack of available property itself. 15. The representors noted that there are several General Residential-zoned properties in Tullah that are not used for residential purposes, most notably 37 Farrell Street folio of the Register 100219/214 and 56 Farrell Street folio of the Register 100219/213, which are both used for Visitor Accommodation purposes. The representors contended that these properties should be removed from the calculation of land supply, or that the zoning of such land could be changed to an alternative that provided specifically for that use. The equivalent quantity of General Residential Zone could then be applied to 4 Selina Street, 4 Sterling Street, and 2 Romulus Street. 16. In a submission made following the hearing, the planning authority advised that it would not oppose the idea of extending General Residential zoning within the settlement and therefore applying the Zone to 4 Selina Street, 4 Sterling Street, and 2 Romulus Street, but not at the expense of removal of the Zone from 37 and 56 Farrell Street. The prevailing view of the planning authority is that further strategic work would be required to determine that the rezoning of 4 Selina Street, 4 Sterling Street, and 2 Romulus Street to General Residential would be supported by the regional strategy. 17. In response, the representors remained in disagreement about the methodology used by the planning authority to calculate the supply and demand for residential land in Tullah, particularly calculation of potential lot yield within the General Residential Zone. Mr Lai contended that constraints such as location of existing buildings, existing uses, and lifestyle choices would diminish the ultimate subdivision potential of land in Tullah. 18. Two of the representors, Mr Lai and Mr Steve de Villiers, owner of 37 and 56 Farrell Street, were supportive of zoning 4 Selina Street, 4 Sterling Street, and 2 Romulus Street General Residential and applying the Village Zone to 37 and 56 Farrell Street.