Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017 Roger Hartley Land Division (1 into 2 allotments) Lot 105 Muston Road, Pelican Lagoon Kangaroo Island 520/D012/16 TABLE OF CONTENTS PAGE NO AGENDA REPORT 2-10 APPENDIX ONE – DEVELOPMENT PLAN PROVISIONS 11-19 ATTACHMENTS 1: AERIAL PHOTO 20 2: ZONE MAPS 21-22 3: PLAN OF DIVISION 23 4: DA FORM + CERTIFICATE OF TITLE 24-30 5: SUPPORTING INFORMATION 31-56 6: AGENCY ADVICE 57-68 7: COUNCIL REPORT & DAP MINUTES 69-94 8: PREVIOUS COUNCIL REPORT – DA 520/064/10 95-109 1 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017 OVERVIEW Application No 520/D012/16 Applicant Roger Hartley Proposal Land Division (1 into 2 allotments) Subject Land Lot 105 Muston Road, Pelican Lagoon, Kangaroo Island Zone/Policy Area Coastal Conservation Zone Relevant Authority Kangaroo Island Council Lodgement Date 12 October 2016 Council Kangaroo Island Council Development Plan 17 September 2015 Type of Development Non-Complying Public Notification Category 3 Representations Nil Referral Agencies DEWNR (CPB), SAPN, SAW, NVC Report Author Simon Neldner RECOMMENDATION NOT CONCUR EXECUTIVE SUMMARY The proposal seeks the division of an existing allotment to create two new allotments within the Coastal Conservation Zone at Pelican Lagoon, Kangaroo Island. This zone includes undeveloped and natural parts of the coast that include sensitive coastal features and land subject to coastal processes. The role of this zone is to safeguard areas of environmental significance on the coast and to protect development from coastal hazards, such as flooding, erosion and acid sulfate soils. Planning policies seek to actively restrict the further division of land in the zone, with land division (subject to limited exceptions) a non-complying form of development. The rationale for the division is to provide separate tenure for an existing residence and tourism accommodation venture (in the form of a single-storey building), the latter approved in 2012 on the basis of its relationship with the existing residence. Neither of the existing land uses requires a land division to continue to operate – this is a lifestyle and commercial decision of the current landowners to sell their tourism business. Both developments were approved and established before approval of the Kangaroo Island Sustainable Futures DPA (Ministerial) on 19 February 2014. Whilst changes to planning policy sought to enhance opportunities for tourist accommodation and associated facilities in the Coastal Conservation Zone, the restriction on the further subdivision of coastal land was maintained. The proposal is finely balanced – noting the land uses already exist – however approval of the development would enhance expectations and further fragment coastal land, whilst being inconsistent with the policy framework, and if applied to current developments in the zone (or similar developments in the future) would further erode these provisions and fragment the pattern of land ownership. On this basis, the request for concurrence should be withheld. ASSESSMENT REPORT 1. DESCRIPTION OF PROPOSAL Application details are contained in the ATTACHMENTS. 2 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017 The proposal is for the division of an existing allotment into two new allotments of 13.37ha and 24.06ha (respectively) within the Coastal Conservation Zone. Proposed Allotment 20 contains an existing dwelling and outbuilding occupied by the current landowner. Proposed Allotment 21 contains an existing tourism accommodation building. The applicant has provided a detailed Statement of Effect (prepared by URPS) and the Council DAP considered a comprehensive staff planning report – these documents – and the proposal plan provide the full background to the proposal. 2. SITE AND LOCALITY 2.1 Site Description The subject land comprises a single allotment with an area of 37.4ha, and is approximately 5.4km south-west of American River and 1km from Pennington Bay to the south. The land has the following attributes: A frontage of 790m to Hog Bay Road (sealed). A frontage 850m to Muston Road (unsealed). The development site consists of 1 allotment, described as follows: Lot No Street Suburb Hundred Title Reference A105, Muston Road Pelican Dudley CT 5282/685 DP12638 Lagoon The site currently contains: A dwelling and outbuilding established in 1985 and a building utilised for short-term tourism accommodation established in 2012. Road access is available to both developments from Muston Road. 3 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017 The tourism accommodation development is known as “Kestral Downs” (http://www.kestreldowns.com. The short-term holiday home has been operating for approximately 5 years, with an average occupancy rate of 80%. 2.2 Locality The locality is defined by Pelican Lagoon to the east, with the higher elevation of the land affording views across the lagoon. The adjoining allotment to the west is within the Primary Production Zone. The subject land is vegetated, with cleared areas and existing buildings and access tracks. The Encounter Marine Park extends into the waters of Pelican Lagoon. 2.3 Land Ownership The subject land (A105) is currently owned by the applicant. 3. BACKGROUND The tourism accommodation development was approved by the Kangaroo Island Council DAP in 2010 (DA 520/064/10). At the time, the subject land was within the Coastal Zone (Kangaroo Island Development Plan, Consolidated 28 May 2009), and processed on-merit as a Category 2 development. The Coast Protection Board recommended refusal of this application. Initial objections from DTEI (Transport SA) and CFS were resolved. Notwithstanding DEWNRs advice, the Council DAP (and officer’s report) found that the development was sufficiently in accordance with the objectives and principles of the zone and overall Development Plan to be granted consent subject to conditions. However, it is noted that at the time of the assessment, the development was defined as a holiday house, being for the purposes of tourist accommodation, ancillary to the existing dwelling on the site, which is utilised by the owners on a private basis. Some weight in the assessment – and ultimate approval - was placed on the development being subordinate to the existing dwelling on the land. This was outlined in the officers DAP report: the proposed development seeks to establish a new tourist accommodation building which will be used in conjunction with an existing detached dwelling used as the landowners private residence ….. (and) …… the development does not purport division of land or development requiring construction of infrastructure to enable the land use to occur, and in this respect the development presents as being economically sound. At the time, the officer’s recommendation sought to include a condition to restrict access to Muston Road, and instead rely on the existing driveway that serviced the dwelling on the land (in order to minimise native vegetation loss). This was recommended Condition 10, but does not appear to have been adopted by the Panel and/or enacted by the applicant. 4. COUNCIL COMMENTS or TECHNICAL ADVICE 4.1 Kangaroo Island Council The Kangaroo Island Development Assessment Panel considered the application at its meeting held on 13 February 2017 and resolved to grant Development Plan consent subject to one condition, the favourable consideration of a Land Management Agreement and the concurrence of the Development Assessment Commission. 4 Development Assessment Commission AGENDA ITEM 2.2.3 6 July 2017 5. STATUTORY REFERRAL BODY COMMENTS Coast Protection Board: Refusal recommended. Extent of departure from CPB policies in respect to orderly development, creation of new allotments in coastal areas, and the protection of sensitive coastal landscapes and vegetation – with the potential to perpetuate the issue of incremental intensification of development within this sensitive coastal landscape. SA Water Corporation: No requirements. Native Vegetation Council: No objection. SA Power Networks: No objection. Easements on the site. 6. PUBLIC NOTIFICATION The proposal was notified as a Category 3 development. No representations were received by the Council during the notification period. 7. POLICY OVERVIEW The subject site is within the Coastal Conservation Zone as described within the Kangaroo Island Development Plan (Consolidated 17 September 2015). Relevant planning policies are contained in Appendix One and summarised below. 7.1 Zone The Coastal Conservation Zone defines the coastal areas of high landscape or conservation value and incorporates policy to ensure the preservation of the coastal landscape resource. The following forms of development are anticipated in the zone: coastal protection works, conservation works, interpretive signage and facilities, tourism/visitor facilities, and tourist accommodation. The provision of facilities, including tourist accommodation and recreational facilities, may be established in the zone provided they are sited and designed in a manner that is subservient to the natural and coastal environment and adverse impact on natural features, landscapes, habitats and cultural assets is minimised. It is envisaged that development is not undertaken on coastal dune systems, tidal wetlands, mangroves, sand dunes or other environmentally sensitive areas. Proposals should also minimise vehicle access points to the area that is the subject of the development Land should not be divided except where: no additional allotments