SCAP Agenda Item 2.2.1 23 April 2020 #15360298 R Hartley C/- Weber Frankiw Surveyors Pty Ltd. Land division to create one (1) additional allotment – 1-into-2. 416 Muston Road, Pelican Lagoon. DA 520/D004/19 TABLE OF CONTENTS PAGE NO AGENDA REPORT 2-15 ATTACHMENTS 1: PLANS 16 2: APPLICATION DOCUMENTS a. Council Request for Concurrence 17 b. Certificate of Title 18-20 c. Statement of Effect by URPS 21-40 d. Draft Land Management Agreement 41-45 e. Legal opinion by Botten Levinson Lawyers 46-56 f. Environmental Impact Assessment by Rob Thomas 57-68 3: AGENCY COMMENTS 69-77 4: COUNCIL COMMENTS 78-104 5: REPRESENTATIONS 105-108 6: RESPONSE TO REPRESENTATIONS 109-113 7: DEVELOPMENT PLAN PROVISIONS 114-133 8: DAC - AGENDA ITEM – 6 JULY 2017 134-152 9: COUNCIL DECISION NOTIFICATION – DA 520/064/10 153-157 1 SCAP Agenda Item 2.2.1 23 April 2020 OVERVIEW Application No 520/D004/19. Unique ID/KNET ID #15329352; 2020/04168/01 Applicant R Hartley C/- Weber Frankiw Surveyors Pty Ltd. Proposal Land division to create one (1) additional allotment – 1-into- 2. Subject Land 416 Muston Road, Pelican Lagoon; A105 D12638, CT5282/685. Zone/Policy Area Coastal Conservation Zone. Relevant Authority Kangaroo Island Council. Lodgement Date 29 May 2019. Council Kangaroo Island Council. Development Plan Consolidated 17 September 2015. Type of Development Non-complying. Public Notification Category 3. Representations Two (2). Referral Agencies Coast Protection Board; Native Vegetation Council; SA Power Networks; SA Water. Report Author Malcolm Govett, Planning Officer. RECOMMENDATION Concur. EXECUTIVE SUMMARY The Kangaroo Island Council has requested the concurrence of the State Planning Commission in regard to its decision to approve an application for a form of non-complying development. The proposed development is for the division of land so as to create one (1) additional allotment within the Coastal Conservation Zone at Muston Road, Pelican Lagoon. The proposal is categorised as a form of non-complying development as it would create an additional allotment within the Coastal Conservation Zone. The key planning concern with this application is that support for the land division could heighten the expectations of other landowners within the Zone with substantial and permanent tourist accommodation to undertake land division where the planning provisions seek to limit such development. It is considered that the proposal for land division would not adversely or significantly impact the Desired Character of the locality and the Zone. This is because the physical impacts usually associated with land division, for example, the construction of vehicle access and building works, have already taken place. In addition, coastal processes do not significantly or adversely impact the subject the land. It is recommended the Panel resolve to concur with the decision of the Kangaroo Island Council to grant Development Plan Consent for land division to create one (1) additional allotment within the Coastal Conservation Zone. 2 SCAP Agenda Item 2.2.1 23 April 2020 ASSESSMENT REPORT 1. BACKGROUND 1.1 State Planning Commission Delegation In respect of section 35 (3)(b)(i) of the Development Act 1993, relating to the power to concur or not concur in the granting of consent to a development described as a non-complying development, the State Planning Commission has delegated its authority to concur or not concur in such matters. The power to not concur is delegated only where: • A State Agency has advised that the application should be refused. • The relevant Council has not requested to be heard. It is noted the Kangaroo Island Council advises it wishes to be heard on the application. It is also noted the Coast Protection Board recommends the application be refused. It is considered appropriate, irrespective of a recommendation to concur or not concur, for this matter to be considered by the full State Commission Assessment Panel (SCAP) due to a previous decision by the (then) Development Assessment Commission in July 2017 on a similar proposal (DA 520/D012/16) for land division of the same allotment. 1.2 Status of Development The proposal is categorised as a form of non-complying development under the Procedural Matters of the Coastal Conservation Zone in the Kangaroo Island Council Development Plan. In this regard, “Land division” is listed as a form of non-complying development within the Zone. The trigger for non-complying lists exceptions relating to “Land division” within the Zone, which are: a) No additional allotments are created wholly or partly within the zone b) It results in allotments of greater than 2 hectares c) There is no increase in the number of allotments with frontage or direct access to the coast. It is considered the proposal does not satisfy the above-mentioned exception (a), and is therefore a non-complying development. On 16 December 2019, the Council Assessment Panel for the Kangaroo Island Council resolved to approve the land division application and to seek the concurrence of the State Planning Commission. 1.3 Previous Consideration by the State Commission Assessment Panel On 6 July 2017, the former Development Assessment Commission considered a request by the Kangaroo Island Council for concurrence to a similar proposal for land division on the subject land. The Development Assessment Commission declined to concur because it “is not satisfied that the proposal to further divide land within the Coastal Conservation Zone is sufficiently consistent with the intent of zone provisions that seek to limit such development”. A copy of the agenda item to the Development Assessment Commission is contained in Attachment 8. 3 SCAP Agenda Item 2.2.1 23 April 2020 1.4 Development Authorisation for Tourist Accommodation In September 2010, the Council Assessment Panel for the Kangaroo Island Council approved the tourism accommodation development (DA 520/064/10). At the time, the subject land was within the Coastal Zone and the application was categorised as a form of merit development in accordance with its Development Plan. The Coast Protection Board recommended the application be refused. The Council assessed the development as being for tourist accommodation purposes, which would be ancillary or subordinate to the existing dwelling on the land. Condition 10 of the Development Plan Consent restricted vehicular access for the tourist accommodation building to Muston Road and to the existing driveway that serviced the dwelling on the land. This condition was imposed in order to minimize the loss of native vegetation cover, which would occur if separate and independent vehicle access were to be constructed. A full copy of the Decision Notification Form for the tourist accommodation development is contained in Attachment 9. 2. DESCRIPTION OF PROPOSAL Application details are contained in Attachment 2. 2.1 The Development The proposed development is for the division of a relatively large area allotment of about 37.4 hectares so as to create one additional allotment. The subject allotment currently contains a dwelling with ancillary outbuilding as well as a tourist accommodation building. The separation distance between the dwelling and the tourist accommodation building is about 400 metres. The proposed development would seek to create: • New Allotment 20 of about 12.9ha, which would contain the dwelling and outbuilding. It would have a frontage of about 227 metres to Muston Road. • New Allotment 21 of about 24.5ha, which would contain the tourist accommodation building. It would have a frontage of about 700 metres to Muston Road. Each proposed new allotment would have direct vehicle access to/from Muston Road over existing, separate, formed and unsealed driveways. Each habitable building is serviced with on-site wastewater control systems, water and power. 2.2 Land Management Agreement The applicant has submitted a draft land management agreement in support of the proposed development. It would ensure: 1. No fencing would be constructed or installed on allotment boundaries that do not front a public road or neighbouring properties; 2. No further land division of the newly created titles would occur (beyond potential boundary realignment); and 4 SCAP Agenda Item 2.2.1 23 April 2020 3. No additional, separate tourist accommodation would be constructed on the newly created allotments. The Kangaroo Island Council supports the intent of the proposed land management agreement. A full copy of the draft land management agreement is contained in Attachment 2. 2.3 Review of Case Law The applicant has provided a legal opinion on the matter prepared by Mr Jamie Botten of Bottten Levinson Lawyers. Mr Botten suggests it could be argued the proposal is not non-complying development and instead would be a ‘merit’ development. This is due to the wording of the exceptions to the non-complying designation of "land division". It could be argued the criteria in clauses (a), (b) and (c) is disjunctive, that is, if one or more of the criteria is satisfied, the land division proposal in question is not non-complying development. As the land division proposal would satisfy the criteria in clauses (b) and (c), it means it would be a 'merit' development. Mr Botten asserts it can be strongly argued the proposed land division will not create any unacceptable planning damage. The relevant factors, which will not be altered by the proposed land division, include: • A dwelling already exists on the land. • A tourist accommodation facility already exists on the land. • The dwelling and tourist accommodation are separately occupied. • Both buildings have existing means of vehicular and pedestrian access to the land. • Both buildings function independently of one another, including in respect to services such as water, waste, vehicular access and electricity. • The proposed development will not lead to the intensification of the existing uses and not create any additional infrastructure service demand.