Attach 1 [PR-PC] PP11/0002 Pottsville

Transcription

Planning Proposal
Pottsville Employment Land
Lot 12 DP 1015369, 39 Kudgeree Avenue, Cudgera Creek
Draft LEP Amendment Number 5
May 2015
File PP11/0002
THIS PAGE IS BLANK
2
Introduction.......................................................................................................................... 5
Purpose.............................................................................................................................. 5
Part 1
Objectives and intended outcomes ..................................................................... 5
Objective ............................................................................................................................ 5
Intended outcome .............................................................................................................. 5
Site context and setting ...................................................................................................... 5
Background ........................................................................................................................ 8
Council resolutions ............................................................................................................. 8
Part 2
Explanation of provisions .................................................................................. 13
Planning controls – Present zoning .................................................................................. 13
Planning controls – Proposed amendment ...................................................................... 13
Planning Agreement ........................................................................................................ 14
Part 3
Justification ......................................................................................................... 14
Section A
1
Need for the planning proposal.................................................................. 14
Is the planning proposal a result of any strategic study or report? ........................ 14
Section B
Relationship to strategic planning framework ............................................ 18
3 Is the planning proposal consistent with the objectives and actions contained within
the applicable regional or sub-regional strategy (including the Sydney Metropolitan
Strategy and exhibited draft strategies)? ...................................................................... 18
4 Is the planning proposal consistent with the local Council’s Community Strategic
Plan, or other local strategic plan? ............................................................................... 20
5 Is the planning proposal consistent with the applicable State Environmental
Planning Policies (SEPPs)? ......................................................................................... 21
6 Is the planning proposal consistent with applicable Ministerial Directions (s117
Directions)? .................................................................................................................. 23
Section C
Environmental, Social and economic impact ............................................. 28
7 Is there any likelihood that critical habitat or threatened species, populations or
ecological communities, or their habitats will be adversely affected as a result of the
proposal?...................................................................................................................... 28
8 Are there any other likely environmental effects as a result of the planning proposal
and how are they proposed to be managed? ............................................................... 29
9 How has the planning proposal adequately addressed any social and economic
effects? ......................................................................................................................... 29
Is there a net community benefit? ................................................................................ 30
Section D
10
State and Commonwealth interests ............................................................ 36
Is there adequate public infrastructure for the planning proposal? .................... 36
11
What are the views of State and Commonwealth public authorities consulted in
accordance with the gateway determination?............................................................... 37
3
Part 4
Mapping ............................................................................................................... 37
Part 5
Community consultation .................................................................................... 37
Part 6
Project Timeline................................................................................................... 38
Summary and conclusions ............................................................................................... 38
4
Introduction
Purpose
This proposal seeks to support a request from Planit Consulting, on behalf of Pottsville
Development Corporation Pty Ltd, for Council to prepare a Planning Proposal for the
rezoning of Lot 12 DP 1015369 Kudgeree Avenue, Cudgera Creek, currently zoned RU2
Rural Landscape and DM Deferred Matter, to IN1 General Industrial and E2 Environmental
Conservation under Tweed LEP 2014.
Part 1
Objectives and intended outcomes
Objective
This planning proposal seeks to facilitate the rezoning of Lot 12 DP 1015369, Kudgeree
Avenue, Cudgera Creek (West Pottsville) for the purpose of employment generation,
industrial and environmental land, as identified in the Far North Coast Regional Strategy
2006-2031.
Intended outcome
The reclassification of Lot 12 DP 1015369, Kudgeree Avenue, Cudgera Creek from RU2
Rural Landscape and DM Deferred Matter to IN1 General Industrial and E2 Environmental
Conservation under the Tweed Shire LEP 2014, in accord with the opportunities afforded
and constraints affecting the site, and as reported in this proposal.
Site context and setting
The site is known as Lot 12 DP 1015369, Kudgeree Avenue, Cudgera Creek, located
approximately 2.5 kilometres west of the Pottsville township, as seen in Figure 1 – Locality
Plan. Figure 2 is an aerial view of the site showing general features and proximity to local
and regional infrastructure.
With an overall area of 22.69 hectares, the site adjoins the Pacific Highway to the west,
Kudgeree Avenue to the north, and the Mooball-Pottsville Road to the east. The site also
adjoins Council-owned land to the east which is utilised for quarry and water supply
purposes.
The existing landuse is grazing with scattered trees on the steeper southern slopes and a
stand of mature remnant vegetation located on the central drainage line as seen in Figure 3
– view looking south from Kudgeree Avenue. The southern slopes are extremely steep,
vegetated and highly visible. The site is traversed by two drainage lines, one entering from
the west under the Pacific Highway, a grassed waterway, and the second, entering from the
south, rimmed by remnant vegetation in the centre of the site, but free of trees elsewhere.
The site is clearly visible from the Pacific Highway and residential land to the north-east,
including views from Koala Beach Estate.
The site has been identified in the Far North Coast Regional Strategy 2006 – 2031 as
Employment Lands with indicative high level constraints, and has been identified as part of a
much larger Potential Employment Lands release area known as ‘West Pottsville Area 7 ’ in
Council’s Tweed Urban and Employment Land Release Strategy 2009.
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The site is elevated and not affected by the 1 in 100 year flood event, but is subject to
localised flooding during storm events along the drainage lines dissecting the site.
Figure 1: – Locality Plan
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Figure 2: - Aerial view of the site
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Background
The site is heavily constrained and has required significant investigation to ensure that any
proposal for industrial development takes into consideration the limitations to development
presented by the site’s specific topographical and environmental and locational constraints.
Previous reports to Council have highlighted the constraints affecting the site, which
included:
-
Steep and highly visible slopes,
Native vegetation protected under Council’s tree Preservation Order,
Natural watercourses,
Aboriginal cultural heritage item (Scar tree),
Proximity to the Pacific Highway,
Limited access to Council’s waste water management system,
Access to the Pacific Highway and capacity related issues at the Cudgera Creek
intersection, and
Visual impact, both relating to the Pacific Highway and view fields from the north, and
across the floodplain.
As a result of negotiations with the previous landowner and developer following alleged
breach of Council’s Tree Preservation Order 2004 and damage of an Aboriginal heritage
scar tree, Council resolved to pursue negotiations to protect and rehabilitate the remaining
vegetation and scar tree. This has resulted in an increase in the area of land now to be
included in the protected land on the southern boundary, and refined the footprint of
potential development as shown in Figure 5.
While the majority of constraints can be managed at the development application stage, the
issue of waste water disposal has required detailed investigations to ensure that prior to any
development commencing on the site, that an adequate allocation is available for discharge
of wastewater from the proposed development.
The site is currently not connected to Council’s reticulated waste water system; however,
Council's Water Unit has determined that a maximum allocation of 5 litres per second can
be provided, with the cost of establishing a connection to be borne by the proponent at no
cost to Council.
Because of the ceiling placed on the amount of land which can be included in the Far North
Coast Regional Strategy, were this site to remain undeveloped, it would sterilise other land
which might be brought into production more readily. Council is therefore keen to ensure
that should the rezoning proceed, that development of the land will occur, and should this
not prove to be possible, that options exist for Council to switch its focus to other land more
easily developed.
Council resolutions
This site has been the subject of detailed investigations and has been reported to Council
on a number of occasions as the selected Council resolutions below indicate:
On 7 August 2014 Council resolved that:
1. the allocation of 4.0 litres per second of wastewater within Council’s sewer
conveyance infrastructure to the Hastings Point Waste Water Treatment Plant from
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Lot 12 DP 1015369 No. 39 Kudgeree Avenue, Cudgera Creek be increased to a
maximum 5.0 litres per second.
On 21 November 2013 Council resolved that:
1. The allocation of 4.0 litres per second of waste water within Council's sewer
conveyance infrastructure to the Hastings Point Waste Water Treatment Plant and
the connection of Lot 12 DP 1015369, 39 Kudgeree Avenue, Cudgera Creek to that
system is conditionally supported;
2. The allocation (and connection) of waste water disposal capacity within the Council's
system, referred to in Point 1 above, is limited to a period of five years from the
making of the amendment to the Tweed Local Environmental Plan within which time
a development application for the subdivision of the land for an industrial-based
business park must be lodged with the Council;
3. The cost of establishing a connection and any required additional infrastructure to the
Council's satisfaction, including the creation of any easement, is to be at no cost to
Council;
4. The Planning Proposal (PP11/0002) over Lot 12 DP 1015369, 39 Kudgeree Avenue,
Cudgera Creek be prepared on the basis of an appropriate industrial and
environmental protection zoning scheme;
5. The additional permitted uses of "Hardware and Building Supplies" and "Garden
Centres" be included within the Planning Proposal for the purposes of amending the
"Additional Permitted Uses" Schedule of the Tweed Local Environmental Plan; and
6. In accordance with the recommendations of this report the floor area of development
falling within the land-use definitions described in Resolution 5 above, be limited to
4000 square metres in the aggregate.
On 16 August 2011 Council resolved that:
1.
The Planning Proposal for Lot 12 DP 1015369 Kudgeree Avenue, Cudgera Creek
be referred to the Department of Planning and Infrastructure for a ‘Gateway’
determination under Section 56 of the Environmental Planning and Assessment
Act 1979.
2.
Any Ministerial conditions imposed on any Gateway Determination approval be
complied with prior to a further report to Council.
3.
Any fees arising in association with the preparation of the Planning Proposal shall
be recovered from the Proponent in accordance with the Environmental Planning
and Assessment Regulation 2000 - Reg 11 and Council’s adopted Fees and
Charges Schedule, including all charges and disbursements incurred by Council
arising in association with the preparation and execution of a Voluntary Planning
Agreement.
4.
Any fees arising in association with the preparation of a Development Control
Plan prepared in response to a rezoning of Lot 12 DP 1015369 shall be
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recovered from the Proponent in accordance with the Environmental Planning
and Assessment Regulation 2000 - Reg 25AA(2) &(3) and Council’s adopted
Fees and Charges Schedule.
5.
Any required vegetation restoration management plan and/or the proponent’s
commitment to undertake environmental restorative works shall be included
within the Voluntary Planning Agreement being prepared in relation to the
proponent’s commitment to provide waste-water management supply
infrastructure for the industrial development and use of the site.
6.
The Voluntary Planning Agreement being prepared in relation to the proponent’s
commitment and Council’s requirement to provide a stand-alone private
wastewater disposal utility scheme and corresponding requirement for a prior
licence under the Water Industry Competition Act 2006 (WIC Act) administered
by the Independent Pricing and Regulatory Tribunal (IPART) is to require that the
licence be obtained following an amendment to the zoning under the Tweed
Local Environmental Plan and prior to the lodgement of any development
application, in accordance with the Environmental Planning and Assessment
Regulation 2000 - Reg 25C and the Environmental Planning and Assessment Act
1979 - Sect 93F.
7.
The Voluntary Planning Agreement once agreed to by the parties be publicly
notified in accordance with the Environmental Planning and Assessment Act
1979 - Sect 93D, F, G & L.
8.
The Voluntary Planning Agreement be registered against the land in accordance
with the Environmental Planning and Assessment Act 1979 - Sect 93H, prior to
the final planning proposal being submitted to the Minister for the environmental
planning instrument amendment to be made.
On 15 March 2011 Council resolved that:
1.
Council endorses the preparation of a planning proposal for the rezoning of the
site for industrial and environmental protection purposes consistent with Council’s
resolutions of 17 August 2010;
2.
The proponent be requested to confirm their commitment to the provision of a
private waste water system by entering into a Voluntary Planning Agreement, to
be prepared by Council’s Solicitors at the proponents’ cost, pertaining to their
commitment to provide a stand-alone private wastewater disposal utility scheme
and the obtainment of a licence under the Water Industry Competition Act 2006
(WIC Act) administered by the Independent Pricing and Regulatory Tribunal
(IPART);
On 17 August 2010 it was resolved that Council:
3.
Endorses that Council Officers negotiate with the landowner for the restoration,
revegetation, contributory off-set planting, maintenance, and protection of
vegetation, as necessary, through a legally binding agreement, and that a
satisfactory resolution of these matters be concluded prior to the gazettal of any
rezoning under GT1/LEP/2000/85 (Amendment No. 85);
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4.
Endorses that land identified as unsuitable for rezoning for urban purposes be
rezoned to reflect the environmental qualities and constraints of the land; and
5.
Endorses that the Applicant be advised of Council’s concern over the proposed
method of waste water treatment proposed and the need for the Applicant to
demonstrate certainty of all aspects of the scheme to Council’s satisfaction.
On 15 December 2009 it was resolved, in part, that:
3.
The rezoned land is to be rolled over into the new Local Environmental Plan as
Industrial Land in accordance with its designation in the Far North Coast Regional
Strategy.
4.
That the restoration, regeneration, contributory off-set planting and protection of
significant vegetation and or areas be included in any rezoning proposal on the
land and in any legal proceedings for orders to remedy any established breach of
the Tweed Tree Preservation Order.
On 13 June 2006 it was resolved, in part, that:
1.
Advises the Department of Planning that it intends to prepare a draft Tweed
Local Environmental Plan Amendment for Lot 12 DP 1015369, Lot 4 DP
753328, Lot 1 DP 215998, Lot 1 DP 1080884 Pottsville Road, Pottsville, in
accordance with Section 54 of the Environmental Planning and Assessment
Act.
2.
Negotiates with the landowners of this land to obtain funding for the Local
Environmental Study and advises the landowners that a consultant will not be
engaged until the relevant monies are received by Council;
3.
Exhibits the draft Local Environmental Plan Amendment in accordance with
the Best Practice Guidelines published by the Department of Urban Affairs and
Planning, January 1997 titled "LEP's and Council Land - Guidelines for
Council's using delegated powers to prepare LEPs including land that is or
was previously owned by Council";
4.
Engage a suitable qualified independent planning consultant to undertake the
preparation of the draft Tweed Local Environmental Plan Amendment and
Environmental Study.
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Figure 3a: View looking west into the site from the Kudgeree Avenue Pottsville - Mooball
Road intersection
Figure 3b – View looking south west from Kudgeree Avenue across the western section of
the site
12
Figure 3c: Closer view of the western boundary with the Pacific Highway showing
approximate location of proposed development envelope
Part 2
Explanation of provisions
This planning proposal supports Amendment 5 of the Tweed Local Environmental Plan 2014
Land Zoning Map in accordance with the proposed zoning map shown in Figure 5.
Planning controls – Present zoning
The site is currently zoned RU2 Rural Landscape and DM Deferred Matter as seen in Figure
4 – Tweed LEP 2014 - Current zoning.
Adjoining land in all directions is currently zoned RU2 Rural Landscape with the exception of
the Pacific Highway immediately to the west. The site represents the initial stages in a
much larger potential urban and employment land release proposed for inclusion in the Far
North Coast Regional Strategy 2006 and the Tweed Urban and Employment Land Release
Strategy 2009.
Planning controls – Proposed amendment
It is proposed to amend the Tweed LEP 2014 and create zones more in keeping with the
physical and biological attributes of the site, as rehabilitation of mature native vegetation and
protection of Aboriginal heritage scar tree, and in accord with the identified potential of part
of the site for employment generating and environmental purposes.
In addition, the Roads and Maritime Services has requested that a buffer be established
along the common boundary with the Pacific Highway.
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This proposal seeks to rehabilitate and consolidate native vegetation on the steeper
southern section of the site, and that the buffer adjoining the Pacific Highway be protected
within the E2 Environmental Conservation zone, and that the lower slopes adjoining
Kudgeree Avenue be zoned IN1 General Industrial, as shown in Figure 5.
In recognition of the location and potential activities within the industrial area, Council has
resolved to amend the Tweed LEP 2014 Schedule 1 Additional permitted uses, to make
"Hardware and Building Supplies" and "Garden Centres" permissible with consent on this
site only; the floor area of such development to be limited to 4000 square metres in the
aggregate.
Planning Agreement
With agreement reached between Council and the new landowner regarding the
rehabilitation, and dedication of environmental land to Council, maximum wastewater
capacity available to Council's reticulated wastewater system, and widening of Kudgeree
Avenue, a draft planning agreement has been prepared to be placed on public exhibition
with the planning proposal. The draft Planning Agreement under Subdivision 2 of the
Environmental Planning and Assessment Act 1979 is to be placed on exhibition
simultaneously with this planning proposal and can be seen in Attachment 2.
Part 3
Justification
The site adjoins land to the east identified for residential purposes in the Far North Coast
Regional Strategy 2006, and land to the north identified in the Tweed Urban and
Employment Land Release Strategy 2009 as potential employment land to the north which
has been recommended for inclusion in the current revision of the Far North Coast Regional
Strategy.
An industrial zoning for the site is consistent with the potential future development of this
and adjoining land.
Section A
Need for the planning proposal
1
Is the planning proposal a result of any strategic study or report?
The site is included in the Far North Coast Regional Strategy 2006, and mapped as
‘Employment Lands’.
The site has also been identified in the Tweed Urban and Employment Land Release
Strategy 2009(TUELRS) as part of a larger area of Potential Employment Lands currently
being proposed for inclusion in the current review of the Far North Coast Regional Strategy
being undertaken by the Department of Planning and Infrastructure, as seen in Figure 6.
The site also lies immediately to the west of the proposed future urban release area locally
known as Dunloe Park, identified in the Far North Coast Regional Strategy; a future
residential land release covering 241 hectares with a projected population of at least 6000
residents.
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2
Is the planning proposal the best means of achieving the objectives or
intended outcomes, or is there a better way?
Industries (other than home industries, light industries, offensive or hazardous industries,
rural industries or industries directly associated with or dependent on extractive industries)
commercial premises, bulky goods retailing are prohibited under the current RU2 Rural
Landscape zone.
Rezoning is considered to be the most appropriate means of allowing industrial
development on the land as part of a longer term strategic development of the west
Pottsville locality.
Figure 4: Tweed LEP 2014 – Current zoning
15
Figure 5: Tweed LEP 2014 – Proposed amendment
16
Figure 6: Tweed Urban and Employment Land Release Strategy 2009 – Area 7 Potential
Employment Lands
17
Section B
3
Relationship to strategic planning framework
Is the planning proposal consistent with the objectives and actions contained
within the applicable regional or sub-regional strategy (including the Sydney
Metropolitan Strategy and exhibited draft strategies)?
The site has been identified within the Far North Coast Regional Strategy 2006 and forms
part of a larger Potential Employment Land release area known as ‘Area 7” within the
Tweed Urban and Employment Land Release Strategy 2009.
Rezoning the site for industrial purposes and environmental protection is consistent with the
aims of these strategies; in particular:
•
Facilitate development of identified Employment Lands;
•
Provide local employment opportunities for the region’s employment target of an
additional 32,500 new jobs from an additional 19,100 new dwellings by 2031;
•
Enabling development of a site which has undergone detailed assessment and
identification of critical constraints;
•
Reduce travel times by providing local employment opportunities currently provided in
distant locations such as South East Queensland;
•
Encourage development of adjoining land identified for further employment and urban
residential purposes, thereby supporting the existing Pottsville township and providing
a greater diversity of services and facilities for a priority location within the Shire.
Table 1: Assessment against the Far North Coast Regional Strategy 2006 (selected extracts
only)
Outcome
Response
Economic development and
employment growth will be
facilitated by identifying
suitable business and
investment opportunities and
providing employment lands
to support these
opportunities.
Complies
The proposal is consistent with a range of economic
development strategies as identified by Council and the
Tweed Economic Development Corporation in the
adopted 2006 Ready for Business strategy, the Tweed
Urban and Employment Land Release Strategy 2009,
and the Far North Coast Regional Strategy 2006.
18
Outcome
Other commercial
development, which relates to
the scale of the adjoining
urban areas, will be located
within the boundaries of
towns and villages, utilising
existing commercial centres
where possible, and
integrated with the initial
planning of new release
areas.
Response
The development of this land will not detract from the
function or amenity of the existing Pottsville town centre
and will provide an important employment generator for
current and future residents in Pottsville.
The separation of the site from Pottsville and other towns
and villages will minimise any potentially adverse impact
on existing Industrial or commercial developments within
the locality.
Councils should plan for
future industrial needs within
existing urban areas and take
into account economic
markets, South East
Queensland pressures for
employment lands, lifestyle
opportunities, and transport
improvements within and
from the Region.
The development of this land will support the projected
significant population increase likely within Pottsville and
adjoining land.
Certain industries will need to
be located away from existing
urban centres due to their
type, scale and nature.
Councils will address this
need through their Local
Growth Management
Strategies.
The development is considered consistent with this
planning outcome in that the land is considered suitable
for industrial development given its close proximity to the
Pacific Highway and the spatial separation afforded the
site from residential areas.
Local environmental plans
will ensure that sufficient
lands which are zoned
employment and currently
vacant are protected to
accommodate the new jobs
required for each local
government area until 2031.
This proposal is consistent with the employment
objectives outlined in the Far North Coast Regional
Strategy 2006 and the Tweed Urban and Employment
Land Release Strategy 2009.
Council has considered the long term development of the
west Pottsville locality; this land parcel forming the initial
stage in the realisation of a significant increase in
population and consequent need for local employment
opportunities in identifying this site for industrial
purposes.
19
Outcome
Response
Use of existing vacant
industrial land should be
considered prior to the
release of any major new
industrial areas.
While approximately 62 hectares of undeveloped
industrial zoned has been identified in the Tweed Urban
and Employment Land Release Strategy 2009 as being
land available for uptake, the location of this site and its
strategic significance as a catalyst for future expansion of
employment and urban lands to be integrated with
development proposed on adjoining land makes the site
an important first step in the realisation of the broader
strategic planning and development of the locality as
discussed elsewhere in this proposal.
Planning for commercial and
industrial land uses must be
integrated with the supply of
relevant infrastructure and
transport.
Further investigation with respect to potential impacts on
and relationship to the Pacific Highway and the Cudgera
Creek Road intersection as required by the Gateway
Determination has been undertaken and reported to the
satisfaction of the Roads and Maritime Services.
The site is not connected to Council’s reticulated waste
water system but an allocation not exceeding 5.0 litres
per second has been has been made available for
connection at no cost to Council.
4
Is the planning proposal consistent with the local Council’s Community
Strategic Plan, or other local strategic plan?
The Tweed Community Strategic Plan 2011/2021 creates a framework to implement
Council’s four-year Delivery Program and annual Operational Plan, which will align the
community’s aspirations with the necessary strategy development, planning and resourcing
required to achieve the long term vision and deliver the outcomes.
Under the theme of Strengthening the Economy, the Community Strategic Plan aims to
strengthen and diversify the region’s economic base in a way that complements the
environmental and social values of the Tweed. In part, Council has agreed to implement
policy and decisions which balance development and environmental protection; fund and
work with ‘Destination Tweed’ to attract business, and grow employment and create tourism
opportunities that take advantage of the Tweed’s natural environment and assets.
Under the theme of Caring for the Environment, the Community Strategic Plan aims to see
Council and the community value, respect and actively participate in the care and
management of our natural environment for current and future generations, through,
amongst other actions Increase its focus on protecting, regulating and maintaining the
natural and built environment.
This proposal represents a direct response consistent with the direction and intent of the
Tweed Community Strategic Plan.
20
5
Is the planning proposal consistent with the applicable State Environmental
Planning Policies (SEPPs)?
This site is not subject to the application of SEPP 14 Coastal Wetlands, SEPP 26 Littoral
Rainforest or SEPP 71 Coastal Protection.
The planning proposal is of a scale and nature that should not trigger the application of
SEPP (Major Development) 2007.
The following SEPPs do apply to the subject site:
SEPP (Infrastructure) 2007
The planning proposal is of a scale and nature that will trigger the application of Schedule 3
Traffic generating development to be referred to the RTA of SEPP (Infrastructure) 2007.
A Traffic Study and Addendum have been prepared by Bitzios identifying the potential
impacts of the proposed development (See Attachment 3). The Roads and Maritime
Services have been consulted regarding this proposal and have raised a number of
concerns relating to, in part, the visual impact, stability of road batters and traffic generation
impacts on the Cudgera Creek Road intersection as reported elsewhere which have now
been addressed to their satisfaction.
SEPP 55 – Remediation of Land
This SEPP introduces planning controls for the remediation of contaminated land. The policy
states that land must not be developed if contamination renders it unsuitable for a proposed
use. If the land is unsuitable, remediation must take place before the land is developed.
A Detailed Site Contamination Investigation has been prepared by HMC (See Attachment 4)
which indicates that the site has been historically used for agricultural purposes, including
banana farming.
Based on this analysis, the contaminants of potential concern include heavy metals
(Arsenic, Cadmium, Chromium, Mercury, Nickel, Lead and Zinc as used in association with
pesticides and fertilisers, and Organochlorine pesticides (OCPs) associated with potential
application of insecticides and termiticides.
The investigation concludes that the site is considered suitable for the proposed
development.
SEPP 44 – Koala Habitat Protection
This SEPP aims to encourage the proper conservation and management of areas of natural
vegetation that provide habitat for koalas.
The site has been mapped as containing secondary (B) koala habitat. A Flora and Fauna
Assessment has been completed for the property as detailed in Attachment 5.
Council has resolved that existing vegetation on the site be included in a larger consolidated
parcel of land to be fully revegetated and protected through the establishment of a legally
binding agreement prior to the rezoning of the site, as implemented through a Voluntary
Planning Agreement seen in Attachment 2.
21
This expansion of land to be revegetated with native vegetation will produce a larger more
resilient stand of vegetation consistent with the adjoining vegetation which forms part of a
wildlife corridor and land bridge across the Pacific Highway just south of the site.
The landowner has agreed that the environmental land will be zoned for environmental
purposes and that land will be dedicated to Council along with a 100 metre wide buffer along
the Pacific Highway, and that the cost of rehabilitation to be borne by the landowner will be
bound in the Planning Agreement.
SEPP (North Coast Regional Environmental Plan) 1988
While the majority of Tweed Shire is now covered by Tweed LEP 2014, the Far North Coast
Regional Strategy applies to those areas mapped as 'Deferred Matters' and under which
Tweed LEP planning provisions still apply. This position will remain until such time as the
Department of Planning and Environment completes its review of environmental zones in
the Far North Coast.
Clause 7 – Prime Crop or Pasture Land: The site is mapped as containing land suitable for
grazing and does not contain State Significant Agricultural Land.
Clause 14 – Wetlands or Fisheries Habitat: There are no mapped wetlands in close
proximity; however, any application for development of the site will require contemporary
water management facilities to ensure that runoff entering the local drainage network is of a
high quality.
Part 3 Conservation of the environment: Refer to discussion above on Council’s resolution
relating to the expansion and protection of native vegetation on the site.
Division 3 Heritage: the Aboriginal heritage scar tree will now be protected as part of the
area of sloping land to be revegetated and protected in perpetuity through a legally binding
agreement to be finalised prior to the rezoning of the site.
Clause 38 Plan preparation – urban land release strategy: The site has been identified
within the Far North Coast Regional Strategy, 2006 – 2031. Compliance with requirements
of the Far North Coast Regional Strategy is addressed in Section B1 above.
Clause 40 Plan preparation - principles for urban zones: The Planning Proposal will adopt
the existing IN1 General Industrial zone under the Tweed Local Environmental Plan 2014,
and proposes to apply the E2 Environmental Conservation zone to cover the environmental
land.
Clause 45 Plan preparation – hazards: All relevant hazards are addressed in Section 4.0 of
this Planning Proposal. There are no hazards which impose a constraint on the rezoning of
the land.
Clause 47 Plan preparation and development control – principles for commercial and
industrial development: While currently not part of a local town centre, the site has been
identified as part of a much larger urban and employment land release strategy within the
Far North Coast Regional Strategy 2006 -2031 and the Tweed Urban and Employment Land
Release Strategy 2009. This site is the first stage in the realisation of the broad strategic
focus of these strategies.
Clause 48 Plan preparation – maintenance of industrial development zonings: As per
Clause 47. This site expands the area of potential industrial land and supports employment
generating development which will adjoin further employment lands being considered for
22
inclusion in the current review of the Far North Coast Regional Strategy and residential land
already identified in the Strategy.
Part 5 Regional infrastructure: Council’s Roads and Traffic Engineer has considered the
proposal and made a preliminary assessment that the local road network has sustain the
level of traffic to be generated from this development once a number of local improvements
are made. The Roads and Maritime Services have previously raised a number of concerns
relating to the impact on the adjoining Pacific Highway and the Cudgera Creek Road
intersection which has been discussed earlier in this proposal, and will be addressed at the
development application stage.
Clause 58 Plan preparation – servicing urban area: The site is currently not connected to
Council’s reticulated waste water disposal system and represents a major constraint to the
development of the site.
Council has resolved to provide an allocation of not more than 5.0 litres per second
discharge to its wastewater reticulation system.
SEPP (Rural Lands) 2008
As indicated above, the site is of marginal agricultural value, being suitable for grazing and
native vegetation. The site does not contain state significant or regionally significant
farmland.
6
Is the planning proposal consistent with applicable Ministerial Directions (s117
Directions)?
Consistency with the relevant section 117 Ministerial Directions is assessed in Table 2
below:
Table 2: Consistency with section 117(2) Ministerial Directions (Only a summary of key
provisions have been included)
Application
Relevance to this planning proposal
1. Employment and Resources
1.1 Business and Industrial Zones
Applies when a relevant planning
authority prepares a planning proposal
that will affect land within an existing or
proposed business or industrial zone
(including the alteration of any existing
business or industrial zone boundary)
Consistent
The proposal is for an expansion of industrial
land consistent with both regional and local
planning strategies (the Far North Coast
Regional Strategy 2006 and the Tweed Urban
and Employment Land Release Strategy 2009).
23
1.2 Rural Zones
that will affect land within an existing or
proposed rural zone (including the
alteration of any existing rural zone
boundary)
This proposal is consistent with the direction by
way of justification based upon compliance with
the Far North Coast Regional Strategy 2006.
Under this direction a planning
proposal must:
(a) not rezone land from a rural zone
to a residential, business, industrial,
village or tourist zone.
(b) not contain provisions that will
increase the permissible density of
land within a rural zone (other than
land within an existing town or village).
1.3 Mining, Petroleum Production and Extractive Industries
that would have the effect of:
(a)prohibiting the mining of coal or
other minerals, production of
petroleum, or winning or obtaining
of extractive materials, or
Industrial zones within the current Tweed LEP
2014 prohibit mining; however, extractive
industries and mining are not prohibited under
SEPP (Mining, Petroleum, Production and
Extractive Industries 2007.
(b)restricting the potential development
of resources of coal, other minerals,
petroleum or extractive materials which
are of State or regional significance by
permitting a land use that is likely to be
incompatible with such development.
24
1.5 Rural Lands
Applies when:
(a) a relevant planning authority
prepares a planning proposal that
will affect land within an existing or
proposed rural or environment
protection zone (including the
alteration of any existing rural or
environment protection zone
boundary) or ….
While the site is currently zoned RU2 Rural
Landscape, the site is of marginal agricultural
value and has been identified in the Far North
Coast Regional Strategy 2006 as potential
employment land.
A planning proposal to which clauses
(a) and (b) apply must be consistent
with the Rural Planning Principles
listed in State Environmental Planning
Policy (Rural Lands) 2008.
2. Environment and Heritage
2.1 Environment Protection Zones
A Draft LEP shall include provisions that
facilitate the protection and conservation of
environmentally sensitive areas and shall
not reduce the environmental protection
standards that apply to the land.
Consistent
The proposal will see previously damaged
native vegetation rehabilitated and an
increase in the overall area of vegetation
to be protected.
Such rehabilitation and protection through
zoning for environmental purposes is also
to be embedded within a legally binding
planning agreement prior to the making of
the plan.
25
2.3 Heritage Conservation
A planning proposal must contain
provisions that facilitate the
conservation of items, places,
buildings, works, relics, moveable
objects or precincts of environmental
heritage significance to an area, in
relation to the historical, scientific,
cultural, social, archaeological,
architectural, natural or aesthetic value
of the item, area, object or place,
identified in a study of the
environmental heritage of the area
The Aboriginal heritage scar tree is to be
included in the area to be set aside for
rehabilitation and protection as mentioned in
2.1 above.
A Cultural Heritage Assessment was completed
by Everick Heritage Consultants in March 2010
and can be viewed in Attachment 6.
3. Housing, Infrastructure and Urban Development
3.4 Integrating Land Use and Transport
In summary, this Direction provides
that a Draft LEP shall locate zones for
urban purposes and include provisions
that give effect to or are consistent with
the aims, objectives and principles of
Improving Transport Choice –
Guidelines for Planning and
Development (DUAP 2001) and The
Right Place for Business and Services
– Planning Policy (DUAP 2001). The
Direction also provides that a Draft
LEP may be consistent with the
Direction if the land has been identified
in the Strategy prepared by Council
and approved by the Director General
or, the rezoning is justified by an
Environmental Study or the rezoning is
in accordance with the relevant
regional strategy.
Traffic related issues have been further
considered and the proposal now meets the
requirements of the Roads and Maritime
Services.
Issues relating to the close proximity and high
visibility of the site from the Pacific Highway,
and the potential impact on the Cudgera Creek
Road intersection and impact on the local road
network have all been adequately addressed to
the point of permitting this planning proposal to
proceed to public exhibition.
26
4. Hazard and Risk
4.4 Planning for Bushfire Protection
that will affect, or is in proximity to land
mapped as bushfire prone land.
that in the preparation of a Draft LEP a
Council shall consult with the
Commissioner of the Rural Fire
Service and take into account any
comments made. In addition, the Draft
LEP is required to have regard to
Planning for Bushfire Protection, 2001
among other things.
The proposal contains some areas of land
identified as being Bushfire Prone.
A Bushfire Hazard Assessment in accordance
with the requirements set out in ‘Planning for
Bushfire Protection’ (2006) will be required at
the development assessment stage to ensure
that the relevant Asset Protection Zones are
provided for bushfire management.
5. Regional Planning
5. Implementation of Regional Strategies
Planning proposals must be consistent The site has been identified as Employment
with a regional strategy released by the Land within the Far North Coast Regional
Strategy 2006.
Minister for Planning.
5.4 Commercial and Retail Development along the Pacific Highway, North Coast
for land in the vicinity of the existing
and/or proposed alignment of the
Pacific Highway.
The site adjoins the Pacific Highway and as
such has been referred to the Roads and
Maritime Services for their consideration, in
which visibility, slope stability of road batters,
impact on the Cudgera Creek Road intersection
amongst other matters have been addressed.
6. Local Plan Making
6.1 Approval and Referral Requirements
that a Draft LEP shall minimise the
inclusion of provisions that require the
concurrence, consultation or referral of
development applications to a Minister
or Public Authority, not contain these
provisions unless Council has obtained
approval from the relevant Authority
and not identify development as
designated development unless certain
prerequisites can be met.
The draft planning proposal does not include
provisions that require; the concurrence,
consultation or referral of development
applications to a Minister or public authority;
however, referral under section 56(2)(d) of the
environmental Planning and Assessment Act
1979 to the public authorities as directed by the
Gateway Determination will be conducted as
part of the public exhibition process.
27
6.2 Reserving Land for Public Purposes
A planning proposal must not create,
alter or reduce existing zonings or
reservations of land for public
purposes without the approval of the
relevant public authority and the
Director-General of the Department of
Planning (or an officer of the
Department nominated by the DirectorGeneral).
The planning proposal does not create, alter or
reduce land reserved for a public purpose.
There has been no request from the Minister or
public authority to reserve land for a public
purpose at this stage.
6.3 Site Specific Provisions
A Draft LEP that amends another
Environmental Planning Instrument in
order to allow a particular development
proposal shall either allow that land
use to be carried out in the zone that
the land is situated on or rezone the
site to an existing zone already
applying in the Environmental
Planning Instrument that allows that
land use without imposing any
development standards or
requirements in addition to those
already existing or allow that land use
on the relevant land without imposing
any development standards or
requirements in addition to those
already contained in the principal
Planning Instrument being amended.
Section C
The planning proposal seeks to zone the land
appropriate to the land uses proposed and does
not seek to include additional uses beyond what
is permitted with the land use table.
The proposal is consistent with the existing
landuse zones under the Tweed LEP 2014 and
the Direction.
Environmental, Social and economic impact
7 Is there any likelihood that critical habitat or threatened species, populations or
ecological communities, or their habitats will be adversely affected as a result of
the proposal?
The site is recorded as containing vegetation of high ecological status and high ecological
sensitivity as defined in the Tweed Vegetation Management Strategy 2004.
The site has been the subject of detailed investigations by Council's Natural Resource
Management Staff and specialist officers from the former Department of Environment
Climate Change and Water related in part to the alleged illegal clearing of native vegetation
covered by Council’s Tree Preservation Order 2004 and alleged wilful damage of an
Aboriginal heritage scar tree within the site under prior ownership.
28
While these matters occurred under the previous ownership, the new landowner has agreed
to set aside an expanded area of land for revegetation and protection through a legally
binding agreement.
The footprint of potentially developable land has now been refined, increased, and
delineated in the proposed zoning boundaries for the site shown in Figure 5.
As such, there is no likelihood that critical habitat, threatened species, populations or
ecological communities or their habitats will be adversely affected as a result of the
proposal.
8 Are there any other likely environmental effects as a result of the planning
proposal and how are they proposed to be managed?
Apart from the positive net outcome listed in ‘7’ above, the key environmental constraints
(physical) affecting the site includes the presence of high ecological status native
vegetation, steep slopes and drainage. These constraints have been fully investigated, and
addressed, ensuring that the zoning boundaries conform to the constraints affecting the site,
and as agreed between Council and the proponent prior to preparation of this draft planning
proposal.
As previously mentioned, the site is not connected to Council’s reticulated waste water
disposal system, but an allocation has been made of not more than 5.0 litres per second to
service the site, with connection to be provided by the proponent at no cost to Council.
Due to the limited capacity in Council's reticulated waste water system, and in agreement
with the landowner, this limitation to development will be included within a planning
agreement for the site. The draft planning agreement can be seen in Attachment 2.
Because of previous use of the site as a banana plantation and potential other unknown
landuses, the Gateway Determination required Council to comply with the provisions of
State Environmental Planning Policy (SEPP) No 55 – remediation of Land as part of the
rezoning process, and to ensure that in accordance with the SEPP a preliminary Site
Contamination Assessment be prepared and placed on public exhibition with the planning
proposal.
The Detailed Site Contamination Investigation concluded that the site was suitable for the
proposed use (See Attachment 4).
9 How has the planning proposal adequately addressed any social and economic
effects?
The proponent has not provided any details as to the potential social and economic effects
of the development of the site; however, Council has previously identified the site as being
strategically located and a key site linking potential future residential land immediately to the
east, and additional employment generating lands adjoining the site to the north.
A Market Needs Assessment and Market Needs Assessment - Commentary Additions has
been completed by RPS in July 2013 and can be viewed in Attachment 7.
29
Is there a net community benefit?
In accordance with the criteria established for the assessment of Net Community Benefit in
the Draft Centres Policy, The Right Place for Business and Services, and PS 06-005 and
015; assessment against these criteria is addressed in Table 3 below:
Table 3: Assessment of Net Community Benefit
Criteria
Compliance with Criteria
Will the LEP be
compatible with
agreed State and
regional strategic
direction for
development in the
area (e.g. land
release, strategic
corridors,
development within
800 metres of a
transit node)?
Complies
Is the LEP likely to
create a precedent
or create or change
the expectations of
the landowner or
other landholders?
No
Have the cumulative
effects of other spot
rezoning proposals
in the locality been
considered? What
was the outcome of
these
considerations?
The proposal addresses land which has been identified for
employment generating purposes within the Far North Coast
Regional Strategy 2006.
The site has also been identified as part of a larger Potential
Employment Land release area known as ‘Area 7” within the
The site is also recognised as a potential employment land parcel
capable of servicing at least in part the needs of future residents
of the adjoining proposed future urban release area also identified
within the Far North Coast Regional Strategy 2006.
The site has been identified within the Far North Coast Regional
Strategy 2006, and the adopted Tweed Urban and Employment
Land Release Strategy 2009. The development of the site has
been recognised by the community for some time will not create a
precedent.
Yes
The site forms part of proposed future development in the broader
West Pottsville locality within which Council has developed a longterm strategy for the orderly and coordinated development of land
for urban and employment generating purposes as defined in the
The recent completion of the Pottsville Locality Plan 2011,
development of the nearby Seabreeze Estate, and identification of
residential and employment lands in Council’s Tweed Urban and
Employment Land Release Strategy 2009 all identify a holistic
strategic planning approach to the development of this site and
the locality as a whole taking into consideration the longer term
cumulative impact of proposed future development of this site and
the broader West Pottsville locality.
30
Criteria
Will the LEP
facilitate a
permanent
employment
generating activity or
result in a loss of
employment lands?
This proposal is for the creation of employment generating
landuses compatible with the locational advantages and
environmental constraints of the site.
Will the LEP impact
upon the supply of
residential land and
therefore housing
supply and
affordability?
It is proposed to zone the site for industrial and environmental
purposes; a landuse intended to support the employment
generating intent of the Far North Coast Regional Strategy 2006,
and the adopted Tweed Urban and Employment Land Release
Strategy 2009.
The West Pottsville locality has been identified as an important
part of the Shire suitable for significant expansion of employment
generating activities and residential growth; it is essential that with
an escalating population, employment opportunities close to home
are provided.
Once developed, the site will provide employment opportunities
for existing residents and new residents taking up occupation
within the proposed urban land which adjoins the site.
31
Criteria
Is the existing public
infrastructure (roads,
rail, utilities) capable
of servicing the
proposed site? Is
there good
pedestrian and
cycling access? Is
public transport
currently available or
is there
infrastructure
capacity to support
future public
transport?
Infrastructure limitations with respect to traffic, water and lack of
waste water servicing are addressed later, but are summarised
as:
The Roads and Maritime Services has raised concerns about the
visibility of the site from the Pacific Highway, buffers and signage,
and have recommended a separate road safety audit, mitigation
of Highway traffic noise on the site, and lack of information
relating to potential impact of earthworks on stability of road
embankments, and capacity of the Cudgera Creek Road
interchange.
The Roads and Maritime Services has reviewed all information
relating to the impact of the proposed development on the Pacific
Highway and local road network, including the Cudgera Creek
Road intersection and advised that it is now satisfied that the
measured proposed and information provided by the proponent
will meet the requirements of their department.
The site is not connected to Council’s reticulated waste water
system; however, Council has resolved to make an allocation of
not more than 5.0 litres per second for discharge of wastewater
from the site into Council's reticulated wastewater system.
This limit of discharge capacity has been agreed by all parties and
will be included in a planning agreement for the site. A copy of
the draft Planning Agreement can be viewed in Attachment 2.
At this time, the site remains isolated, but will be the catalyst for
the integrated development of further employment generating
lands and urban and residential land immediately adjoining the
site.
32
Criteria
Will the proposal
impact on land that
the Government has
identified a need to
protect (e.g. land
with high biodiversity
values) or have
other environmental
impacts? Is the land
constrained by
environmental
factors such as
flooding?
The site contains vegetation of a high conservation status which
has been recognised by inclusion within Council’s Tree
Preservation Order 2004.
Will the LEP be
compatible /
complementary with
surrounding land
uses? What is the
impact on amenity in
the location and
wider community?
Will the public
domain improve?
The site currently lies within a rural landuse zone, bounded on the
south by steep land to be revegetated and retained in perpetuity,
to the west by the Pacific Highway, to the east by steep land the
property of Council, containing an abandoned quarry and water
reservoir, and proposed residential land as discussed above, and
to the north, by rural small holdings which form part of the
proposed extension of employment lands within the Far North
Coast Regional Strategy 2006, and the adopted Tweed Urban
and Employment Land Release Strategy 2009.
Will the proposal
increase choice and
competition by
increasing the
number of retail and
commercial
premises operating
in the area?
The site has been identified for potential industrial purposes and
the creation of high quality employment generating industries; as
such will facilitate a greater variety of employment opportunities
through establishment of new commercial enterprises and to a
lesser extent increase competition with existing services provided
in the locality.
If a stand-alone
proposal and not a
centre does the
proposal have the
potential to develop
into a centre in the
future?
At this time, the site will be developed in isolation to any potential
future developments; however, as previously mentioned, the site
is part of a broader strategic plan for the west Pottsville locality
which it is proposed will see an expansion of employment lands
adjoining its northern boundary, and urban development
immediately to the east.
While the matter of alleged breach of Council’s Tree Preservation
Order 2004 and wilful damage of an Aboriginal heritage scar tree
were investigated by Council, negotiations with the then
Department of Environment, Climate Change and Water and the
landowner has lead to a substantial reduction in the area of
potential development and a corresponding increase in the area
of land to be rehabilitated and zoned for environmental protection.
This includes land covered by the Tree Preservation Order 2004,
the scar tree, all land adjoin the southern boundary, including
steep land and the central drainage line, and a 100 metre buffer
along the Pacific Highway which will now forming a coherent
viable block of vegetation which is to be rehabilitated, maintained
and secured through a Voluntary Planning Agreement.
33
Criteria
What are the public
interest reasons for
preparing the draft
plan? What are the
implications of not
proceeding at that
time?
The site has been identified as appropriate for the proposed
landuse within regional and local strategies, thereby reinforcing
expectations of the community for greater opportunities to live and
work in the locality.
Failure to proceed may have flow-on effects on the adjoining
additional employment lands and urban release area.
The degree to which
the policy and its
objectives can be
satisfied.
The subject site seeks to amend the Tweed LEP 2014 in
accordance with the established and proposed local and regional
planning strategies, and identified site constraints.
The proposed level
of accessibility to the
catchment of the
development by
public transport,
walking and cycling.
The locality is currently isolated for the nearby town centre of
Pottsville, but is intended to form part of a much expanded
employment and residential precinct as mentioned above.
The likely effect on
trip patterns, travel
demand and car
use.
The site fronts Kudgeree Avenue with its eastern boundary
adjoining the Mooball Pottsville Road, both of which would be
easily serviced by local private and public transport providers.
Development of the site as the initial stage in development of west
Pottsville will ensure that the locality as a whole is fully serviced,
including the provision of a network of walking and cycle ways
through open space corridors.
In meeting the employment needs of local residents it is expected
that this will reduce the travel distances of local residents who
currently travel as far as the Gold Coast in South East
Queensland to meet their employment needs, substantially
reducing travel times, improving quality of life and supporting local
businesses and industry.
By increasing the population density in an area identified for urban
and employment growth, the proposal will assist in triggering
improved public transport within the locality.
34
Criteria
The likely impact on
the economic
performance and
viability of existing
centres (including
the confidence of
future investment in
centres and the
likely effects of any
oversupply in
commercial or office
space on centres.
The recent completion of the Pottsville Locality Plan has seen a
desire from Council to reinforce the local town centre as the focus
of Pottsville.
The amount of use
of public
infrastructure and
facilities in centres,
and the direct and
indirect cost of the
proposal to the
public sector.
This proposal represents a catalytic development of currently
under-utilised rural land, to be part of a substantial increase in
urban and employment generating development in the locality.
The practicality of
alternative locations,
which may better
achieve the
outcomes, the policy
is seeking.
The site is a small parcel of land already identified in local and
regional strategies and proposed as part of a much larger area of
development in the future as discussed above.
The ability of the
proposal to adapt its
format or design to
more likely secure a
site within or
adjoining a centre or
in a better location.
This proposal is for the development of an isolated site apart from
any existing centre, but is proposed as part of a substantial
increase in both employment generating and urban lands
adjoining the site.
The increase in population proposed in the urban release areas
already identified in the Far North Coast Regional Strategy 2006
and the employment lands and potential urban lands proposed for
the current review of the Strategy will see a significant increase in
population which it is expected will offset any potential adverse
impacts of competition for services provided in the Pottsville town
centre, and would be likely to improve the viability of the existing
centre.
Servicing of the site is currently achieved using the local road
network which will require upgrading as part of any development
application.
Rezoning of the site for industrial purposes is the most effective
means of ensuring progress in the more extensive development of
the locality.
This planning proposal represents the opportunity to both catalyse development and to
improve opportunities for both lifestyle and employment related activities in a location
identified as a major potential future employment and residential precinct within the Tweed
Shire.
35
Section D State and Commonwealth interests
10
Is there adequate public infrastructure for the planning proposal?
Roads
Development of the site for industrial purposes will result in an increased demand for public
infrastructure, in particular, the local and regional/state road network.
Augmentation or upgrade of the local road network will be required, with detail pending
further detailed advice from Tweed Shire Council Roads and Traffic Engineers and the
Roads and Maritime Services.
Waste water
While wastewater capacity is limited in its local reticulated wastewater system Council has
resolved to make an allocation of not more than 5.0 litres per second available to service the
site should the proponent wish to make a connection at no cost to Council. Details relating
to the allocation and provision of surplus capacity are to be included in the planning
agreement on exhibition with this planning proposal.
Water
There is sufficient capacity in the Cowell Park Reservoir, which lies on adjoining Councilowned land to the east, to supply the site; however, augmentation of the water main will be
required and may involve construction of a 375mm main parallel to the existing 375mm main
along the Pottsville Mooball Road from the reservoir to Kudgeree Avenue, and a 300 mm
main along Kudgeree Avenue to the entrance of the site.
Electricity and Telecommunications
Electricity and Telecommunications services are available to the site and it is proposed
development will utilise ‘smart’ technology; fibre optic cabling which runs parallel to and
within 30 metres of the eastern boundary.
Stormwater
An existing drainage line enters the site from the west (culvert under the Pacific Highway)
and a more substantial central, partly vegetated drainage line are to be retained and
enhanced within any future development of the site.
A preliminary Water Sensitive Urban Design (WSUD) and stormwater management strategy
will be required at the DA stage.
36
11
What are the views of State and Commonwealth public authorities consulted in
accordance with the gateway determination?
While consultation with the Roads and Maritime Services has already occurred, further
consultation with relevant State and Commonwealth Public Authorities as identified in the
Gateway Determination occurred during the public exhibition period. The Gateway
Determination has required that under section 56(2)(d) of the Environmental Planning and
Assessment Act 1979 the following public agencies be consulted:
•
•
•
•
•
•
Catchment Management Authority;
Office of Environment and Heritage;
Department of Primary Industries – Agriculture;
Department of Primary Industries – Minerals and Petroleum;
NSW Rural Fire Service, and
Roads and Maritime Services.
Five (5) submissions were received from these authorities; three (3) had no objection to the
proposal, One (1) raised concerns about the status and conservation/rehabilitation of native
vegetation which will be addressed by the dedication of environmental land to Council under
the planning agreement, and buffers and flooding, to be addressed at the Development
Application stage.
A final submission raised concerns associated with development potentially impacting on
the Pacific Highway, which will also be addressed at the Development Application stage and
was not seen as an issue for the rezoning by the agency.
Part 4
Mapping
Maps have been inserted throughout the proposal consistent with their function.
Part 5
Community consultation
The Gateway Determination has mandated that community consultation is required under
section 56(2)(c) and 57 of the Environmental Planning and Assessment Act 1979 that the
planning proposal is classified as low impact and must be made publically available for a
period of 14 days.
The Planning Proposal was placed on public exhibition during the period 17 February 2015
to 4 March 2015. 13 adjoining neighbours were notified and while several meetings and
telephone enquiries were taken, no submissions were received from neigbouring
landowners.
One submission was received from a local community organisation writing to support the
proposal.
37
Part 6
Project Timeline
The following project timeline has been prepared with the assumption that the project would
commence with a Gateway Determination issued, but being aware that the planning
proposal cannot be acted upon by the Department of Planning and Environment until the
review of environmental zones in the Far North Coast councils is completed, all dates to be
adjusted accordingly.
Project timeline
Benchmark
Anticipated Deadline
•
Anticipated commencement date (date of Gateway
determination)
13 September 2011
•
Anticipated timeframe for the completion of required studies
31 December 2014
•
Timeframe for government agency consultation (pre and post
exhibition as required by Gateway determination)
11 March 2015
•
Commencement date for public exhibition period
17 February 2015
•
Completion date for public exhibition period
4 March 2015
•
Dates for public hearing (if required)
N/A
•
Timeframe for consideration of submissions
31 March 2015
•
Timeframe for the consideration of a proposal post exhibition
9 April 2015
•
Anticipated date RPA will make the plan (if delegated)
30 July 2015
•
Anticipated date RPA will forward to the department for
notification (if delegated)
TBA
Summary and conclusions
This proposal seeks to support a request for Council to prepare a Planning Proposal for the
rezoning of Lot 12 DP 1015369, 39 Kudgeree Avenue, Cudgera Creek, an area of 22.69
hectares, adjoining the Pacific Highway which is currently zoned RU2 Rural Landscape and
DM Deferred Matter, to IN1 General Industrial and E2 Environmental Conservation
The Far North Coast Regional Strategy 2006 has identified this site as a potential
Employment Lands release area.
This planning proposal seeks to maintain a consistent and compliant approach to both the
Far North Coast Regional Strategy 2009 and the Tweed Urban and Employment Lands
Release Strategy 2009, each of which include this site, and seek to promote the ‘smart
development’ of identified lands.
38
The site has been the subject of extensive investigations relating to an earlier proposal
which could not be finalised due to the significance of site constraints, pending legal action,
and subsequent change of ownership.
The site is not connected to Council’s reticulated waste water disposal system, but Council
has resolved to make an allocation of up to 5.0 litres per second for wastewater discharge
from the site, with connection to Council's reticulated wastewater system to be borne by the
proponent at no cost to Council.
The proponent has agreed to enter into a Voluntary Planning Agreement to limit the capacity
of wastewater discharge, provide for a contribution to the rehabilitation of environmental
land and make allocation for the widening of Kudgeree Avenue adjoining the site prior to
commencing any development of the site. The Planning Agreement will be on display at the
same time as this planning proposal.
The environmental land is to be zoned for environmental protection purposes and will be
dedicated to Council at no cost to Council.
While it is proposed that the environmental land be zoned E2 Environmental Conservation,
due to the ongoing nature of the Department of Planning and Environment's E Zone Review,
there is a possibility that the use of E2 may not be permitted. Should this eventuate, the
environmental component of the site will be retained under current Tweed LEP 2014 zones
until such time as the Review is completed.
Matters relating to proximity to the Pacific Highway which runs along the western boundary
of the site, making the site highly visible, and likely to impact upon stability of road batters,
and the capacity of the Cudgera Creek Road intersection have now been addressed to the
satisfaction of the Roads and Maritime Services.
All matters raised in the Gateway Determination have now been addressed allowing this
planning proposal to now be placed on public exhibition.
ATTACHMENTS
Attachment 1: - Gateway Determination
Attachment 2: - Planning Agreement - Draft
Attachment 3: - Traffic Study and Addendum
Attachment 4: - Site Contamination Investigation
Attachment 5: - Revised Flora and Fauna Assessment
Attachment 6: - Cultural Heritage Assessment
39
Attachment 7: - Market Needs Assessment and Additional Commentary
Attachment 8: - Council Report of 7 May 2015
Attachment 9: - Information Checklist
40
Attachment 1
Gateway Determination
41
Attachment 2
Planning Agreement - Draft
42
Pottsville Employment Land
Planning Agreement - Lot 12 DP 1015369, 39
Kudgeree Avenue, Cudgera Creek
Under s93F of the Environmental Planning and Assessment Act 1979
Tweed Shire Council
Pottsville Development Corporation Pty Limited
Dated:
Pottsville Employment Land Planning Agreement
Tweed Shire Council
Pottsville Employment Lands Planning Agreement
Table of Contents
Summary Sheet ..........................................................................................................................4
Parties .........................................................................................................................................6
Background .................................................................................................................................6
Operative provisions ...................................................................................................................7
Part 1 - Preliminary .................................................................................................................7
1
Definitions & Interpretation .........................................................................................7
2
Status, application & effect of this Deed .....................................................................9
3
Commencement of this Deed .....................................................................................9
4
Commencement of Development Contributions obligations ................................... 10
5
Further Agreements Relating to this Deed .............................................................. 10
6
Surrender of right of appeal, etc. ............................................................................. 10
7
Application of s94, s94A and 94EF of the Act to the Development ......................... 10
Part 2 – Development Contributions .................................................................................... 11
8
Provision of Development Contributions ................................................................. 11
9
Payment of monetary Development Contributions .................................................. 11
10
Dedication of land .................................................................................................... 11
11
Access to Environmental Management Land .......................................................... 12
Part 3 –Provisions Regarding Wastewater Allocation ......................................................... 12
12
Wastewater Allocation ............................................................................................. 12
13
Restrictions on Development Application and Construction Certificates ................ 13
14
Restrictions on Title ................................................................................................. 14
15
Dedication of Residual Land .................................................................................... 14
Part 4 –Enforcement ............................................................................................................ 14
16
Acquisition of land required to be dedicated............................................................ 14
17
Enforcement ............................................................................................................ 15
Part 5 – Indemnities & Insurance ......................................................................................... 15
18
Risk .......................................................................................................................... 15
19
Release .................................................................................................................... 15
20
Indemnity ................................................................................................................. 15
Part 6 – Other Provisions ..................................................................................................... 16
21
Registration of this Deed ......................................................................................... 16
22
Assignment, sale of the Land, etc ........................................................................... 16
23
Dispute Resolution – expert determination.............................................................. 17
24
Dispute Resolution - mediation ................................................................................ 17
PP11 0002 - PUBLIC EXHIBITION - PLANNING AGREEMENT DRAFT
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Tweed Shire Council
25
Review of this Deed ................................................................................................. 17
26
Notices ..................................................................................................................... 18
27
Entire Deed .............................................................................................................. 19
28
Further Acts ............................................................................................................. 19
29
Governing Law and Jurisdiction .............................................................................. 19
30
No Fetter .................................................................................................................. 19
31
Representations and Warranties ............................................................................. 19
32
Severability .............................................................................................................. 19
33
Modification .............................................................................................................. 19
34
Waiver ...................................................................................................................... 20
35
GST.......................................................................................................................... 20
36
Explanatory Note Relating to this Deed................................................................... 21
Execution ................................................................................................................................. 22
Schedule 1 ........................................................................................................................... 23
Schedule 2 ........................................................................................................................... 25
Appendix .............................................................................................................................. 27
3
Tweed Shire Council
Summary Sheet
Council:
Name: Tweed Shire Council
Address: PO Box 816 Murwillumbah NSW 2484
Telephone: (02) 6670 2400
Facsimile: (02) 6670 2429
Email: [email protected]
Representative: Troy Green
Developer:
Name: Pottsville Development Corporation Pty Ltd
Address: PO Box N27 Grosvenor Place NSW 1220
Telephone: 0408 286 814
Facsimile: (02) 9241 1813
Email: [email protected]
Representative: Richard Cowan
Land
See definition of Land in clause 1.1.
Instrument Change
See definition of Draft LEP in clause 1.1
Development
See definition of Development in clause 1.1.
Development Contributions
See clause 8 and Schedule 2.
Application of s94 and s94A of the Act
Not excluded (see clause 7).
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Tweed Shire Council
Security
See Part 4.
Registration
The Deed is to be registered (see clause 21).
Restriction on dealings
Assignment and sale of land clause (see clause 22).
Dispute Resolution
Expert determination and mediation (see clauses 23 & 24).
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Tweed Shire Council
Parties
Tweed Shire Council ABN 90 178 732 496 PO Box 816 Murwillumbah NSW 2484
(Council)
and
Pottsville Development Corporation Pty Limited ACN 065 290 753
PO Box N27 Grosvenor Place NSW 1220 (Developer)
Background
A
The Developer is the owner of the Land.
B
The Developer requested that the Council prepare a planning proposal to rezone the
Land from 1(a) Rural under the Tweed Local Environmental Plan 2000 to IN1 General
Industrial and E2 Environmental Protection under the Tweed Local Environmental Plan
2014.
C
The Developer intends to lodge a Development Application for the Development.
D
The Land is proposed to be connected to Council’s reticulated sewerage infrastructure in
Korora Parkway and to the Council’s water supply in Pottsville Road.
E
The Developer is prepared to make Development Contributions in accordance with this
Deed in connection with the carrying out of the Development if the Draft LEP is made.
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Tweed Shire Council
Operative provisions
Part 1 - Preliminary
1
Definitions & Interpretation
1.1
In this Deed the following definitions apply:
Act means the Environmental Planning and Assessment Act 1979 (NSW).
Approval includes approval, consent, licence, permission or the like.
Authority means the Commonwealth or New South Wales government, a
Minister of the Crown, a government department, a public authority
established by or under any Act, a council or county council constituted under
the Local Government Act 1993, or a person or body exercising functions
under any Act including a commission, panel, court, tribunal and the like.
Claim includes a claim, demand, remedy, suit, injury, damage, loss, Cost,
liability, action, proceeding or right of action.
Compliance Certificate has the same meaning as in the Act.
Construction Certificate has the same meaning as in the Act.
Cost means a cost, charge, expense, outgoing, payment, fee and other
expenditure of any nature.
Deed includes any schedules, annexures and appendices to this Deed.
Development means the subdivision of the Industrial Land and the
subsequent development of the Industrial Land for industrial purposes.
Development Application has the same meaning as in the Act.
Development Consent has the same meaning as in the Act.
Development Contribution means a monetary contribution, the dedication of
land free of cost, the carrying out of work, or the provision of any other
material public benefit, or any combination of them, to be used for, or applied
towards, a public purpose.
Draft LEP means the draft local environmental plan which rezones the
Industrial Land as IN1 General Industrial or another zoning which will permit
industrial land uses.
Environmental Management Land means that part of the Land coloured
yellow on the Plan, whether or not that Land is zoned for environmental
conservation purposes.
ET means equivalent tenement as defined in Council’s ‘Development
Servicing Plan for Sewerage Services’.
Final Lot means a lot created in the Development for separate occupation
and disposition or a lot of a kind or created for a purpose that is otherwise
agreed by the Parties, not being a lot created by a subdivision of the Land
that is to be dedicated or otherwise transferred to the Council.
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Tweed Shire Council
GST Law has the same meaning as in A New Tax System (Goods and
Services Tax) Act 1999 (Cth) and any other Act or regulation relating to the
imposition or administration of the GST.
Industrial Land means the part of the Land coloured purple on the Plan.
Just Terms Act means the Land Acquisition (Just Terms Compensation) Act
1991.
Land means Lot 12 DP 1015369 marked on the Plan as ‘Affected Property’.
LPI means Land & Property Information or any other body exercising the
functions of Land & Property Information.
Party means a Party to this agreement, including their successors and
assigns.
Plan means the series of plans contained in Schedule 1.
Property Boundary Assembly means the valve box to be located on the
Land as part of the Sewer Infrastructure and which provides access to the
pressure sewer system.
Public Purpose means any purpose that benefits the public or a section of
the public, including but not limited to a purpose specified in s93F(2) of the
Act.
Real Property Act means the Real Property Act 1900.
Register means the Torrens title register maintained under the Real Property
Act.
Regulation means the Environmental Planning and Assessment Regulation
2000.
Sewer Infrastructure means a pressure sewer system for the Development
which:
(a)
is to achieve low infiltration and inflow ensuring significant
reductions in peak flows and the volume of effluent to be
treated and reused;
(b)
has odour and septicity control and flow metering in the vicinity
of Kudgeree Avenue; and
(c)
is constructed in accordance with Council’s Development
Design and Construction Specifications and WSA 07-2007
Pressure Sewerage Code of Australia.
Subdivision Certificate has the same meaning as in the Act.
Work means the physical result of any building, engineering or construction
work in, on, over or under land required to be carried out by the Developer
under this Deed and includes the Sewer Infrastructure.
1.2
In the interpretation of this Deed, the following provisions apply unless the
context otherwise requires:
1.2.1
Headings are inserted for convenience only and do not affect the
interpretation of this Deed.
1.2.2
A reference in this Deed to a business day means a day other than a
Saturday or Sunday on which banks are open for business generally in
Sydney.
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Tweed Shire Council
1.2.3
If the day on which any act, matter or thing is to be done under this
Deed is not a business day, the act, matter or thing must be done on
the next business day.
1.2.4
A reference in this Deed to dollars or $ means Australian dollars and
all amounts payable under this Deed are payable in Australian dollars.
1.2.5
A reference in this Deed to any law, legislation or legislative provision
includes any statutory modification, amendment or re-enactment, and
any subordinate legislation or regulations issued under that legislation
or legislative provision.
1.2.6
A reference in this Deed to any agreement, deed or document is to
that agreement, deed or document as amended, novated,
supplemented or replaced.
1.2.7
A reference to a clause, part, schedule or attachment is a reference to
a clause, part, schedule or attachment of or to this Deed.
1.2.8
An expression importing a natural person includes any company, trust,
partnership, joint venture, association, body corporate or governmental
agency.
1.2.9
Where a word or phrase is given a defined meaning, another part of
speech or other grammatical form in respect of that word or phrase
has a corresponding meaning.
1.2.10 A word which denotes the singular denotes the plural, a word which
denotes the plural denotes the singular, and a reference to any gender
denotes the other genders.
1.2.11 References to the word ‘include’ or ‘including’ are to be construed
without limitation.
1.2.12 A reference to this Deed includes the agreement recorded in this
Deed.
1.2.13 A reference to a Party to this Deed includes a reference to the
servants, agents and contractors of the Party, and the Party’s
successors and assigns.
1.2.14 Any schedules, appendices and attachments form part of this Deed.
1.2.15 Notes appearing in this Deed are operative provisions of this Deed.
1.2.16 A reference to any matter that may be agreed between the Parties is a
reference to such an agreement in writing.
2
3
Status, application & effect of this Deed
2.1
This Deed is a planning agreement for the purposes of s93F of the Act.
2.2
This Deed applies to the Land and to the Development.
Commencement of this Deed
3.1
This Deed commences when it has been executed by both Parties.
3.2
The Party who executes this Deed last is to notify the other Party once it has
done so and promptly provide them with a copy of the fully executed version of
this Deed.
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Tweed Shire Council
4
Commencement of Development Contributions
obligations
4.1
5
6
4.1.1
the Draft LEP takes effect, and
4.1.2
Development Consent is granted to the Development or any part of it.
Further Agreements Relating to this Deed
5.1
The Parties may, at any time and from time to time, enter into an agreement
that provides more detail relating to the subject-matter of this Deed for the
purpose of implementing this Deed.
5.2
Any such agreement is not to be inconsistent with this Deed.
Surrender of right of appeal, etc.
6.1
7
With the exception of the Developer’s obligation in respect of the dedication of
the Environmental Management Land, the Developer is under no obligation to
make the Development Contributions to the Council in accordance with this
Deed unless both of the following events have occurred:
The Developer is not to commence or maintain, or cause to be commenced or
maintained, any proceedings in the Land and Environment Court concerning:
6.1.1
the validity of this Deed,
6.1.2
the making of the Draft LEP, or the granting or modification of any
Development Consent for the Development, to the extent that the Draft
LEP was made or the Development Consent was granted or modified
having regard to the existence of this Deed,
6.1.3
the imposition on any Development Consent granted to the
Development of conditions to give effect to Part 3 of this Deed; or
6.1.4
any refusal of Development Consent to any part of the Development
as a result of the matters described in Part 3 of this Deed .
Application of s94, s94A and 94EF of the Act to the
Development
7.1
This Deed does not exclude the application of s94 of the Act to the
Development.
7.2
This Deed does not exclude the application of s94A of the Act to the
Development.
7.3
This Deed does not exclude the application of s94EF of the Act to the
Development.
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Tweed Shire Council
Part 2 – Development Contributions
8
9
Provision of Development Contributions
8.1
The Developer is to make Development Contributions to the Council in
accordance with Schedule 2, any other provision of this Deed relating to the
making of Development Contributions and otherwise to the satisfaction of the
Council.
8.2
The Council is to apply each Development Contribution made by the
Developer under this Deed towards the Public Purpose for which it is made
and otherwise in accordance with this Deed.
8.3
Despite clause 8.2, the Council may apply a Development Contribution made
under this Deed towards a Public Purpose other than the Public Purpose
specified in this Deed if the Council reasonably considers that the public
interest would be better served by applying the Development Contribution
towards that other purpose rather than the purpose so specified.
Payment of monetary Development Contributions
9.1
10
A monetary Development Contribution is made for the purposes of this Deed
when the Council receives the full amount of the contribution payable under
this Deed in cash or by unendorsed bank cheque or by the deposit by means
of electronic funds transfer of cleared funds into a bank account nominated by
the Council.
Dedication of land
10.1
A Development Contribution comprising the dedication of land is made for the
purposes of this Deed:
10.1.1 in respect of any Development Contribution comprising the dedication
of land for the purposes of a road or reserve, when a deposited plan
is registered in the register of plans held with the Registrar-General
that dedicates land as a public road (including a temporary public
road) under the Roads Act 1993 or creates a public reserve or
drainage reserve under the Local Government Act 1993, or
10.1.2 otherwise, when the Council is given:
10.2
(a)
an instrument in registrable form under the Real Property Act
1900 duly executed by the Developer as transferor that is
effective to transfer the title to the land to the Council when
executed by the Council as transferee and registered,
(b)
the written consent to the registration of the transfer of any
person whose consent is required to that registration, and
(c)
a written undertaking from any person holding the certificate
of title to the production of the certificate of title for the
purposes of registration of the transfer.
The Developer is to do all things reasonably necessary to enable registration
of the instrument of transfer to occur.
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Tweed Shire Council
11
10.3
The Developer is to ensure that land dedicated to the Council under this Deed
is free of all encumbrances and affectations (whether registered or
unregistered and including without limitation any charge or liability for rates,
taxes and charges) except as otherwise agreed in writing by the Council.
10.4
If, having used all reasonable endeavours, the Developer cannot ensure that
land to be dedicated to the Council under this Deed is free from all
encumbrances and affectations, the Developer may request that Council
agree to accept the land subject to those encumbrances and affectations, but
the Council may withhold its agreement in its absolute discretion.
Access to Environmental Management Land
11.1
From the date of this Deed, the Developer grants the Council a licence, free
of cost, to access the Environmental Management Land through the Industrial
Land from Kudgeree Avenue, Cudgera Creek, along such a route as agreed
between the Parties for the purpose of the Council carrying out restoration
and management works on the Environmental Management Land.
11.2
Prior to the commencement of the Development, the Developer must at no
cost to Council, either:
11.2.1 grant the Council a formal right of way across the Industrial Land, or
11.2.2 dedicate part of the Industrial Land as a road,
to enable Council to continue to gain access from Kudgeree Avenue, across
the Industrial Land to the Environmental Management Land.
11.3
Council must approve of:
11.3.1 the location and terms of any right of way; or
11.3.2 the location of any land to be dedicated as a road,
to satisfy clause 11.2.
11.4
The licence referred to in clause 11.1 expires in respect of the Industrial Land
on the date on which the formal right of way or dedication of Land required by
clause 11.2 is created or occurs, and in respect of the Environmental
Management Land when it is dedicated to Council.
Part 3 –Provisions Regarding Wastewater Allocation
12
Wastewater Allocation
12.1
The Developer acknowledges that there is a limited wastewater allocation
available for the Development and that at the date of this Deed:
12.1.1 the maximum number of ETs available for the Development is 125
based on the use of Sewer Infrastructure as defined in this Deed; and
12.1.2 the peak discharge from the Development cannot exceed 5 litres per
second.
12.2
Each lot created as part of the Development will be given a wastewater
allocation of one ET, subject to the remainder of this clause 12.
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Tweed Shire Council
12.3
The Council may approve a further allocation of ETs for the lots created within
the Development subject to the limits on maximum ETs and peak discharge
in clause 12.1.
12.4
Council will ensure that the wastewater allocation referred to in clause 12.1
will be available for the Development for a period of 10 years from the date of
making of the Draft LEP, but will be entitled to re-allocate any unused
allocation:
12.4.1 if the Developer advises the Council that it will not proceed with the
Development or any part thereof; and
12.4.2 otherwise at the end of the 10 year period referred to above.
13
12.5
If prior to the Development being completed the wastewater allocation referred
to in clause 12.1 for the Land is exhausted then Council may refuse
development consent to any further Development Application for the
Development.
12.6
The parties will review the wastewater allocation for the Development annually
from the date of this Deed.
Restrictions on Development Application and
Construction Certificates
13.1
Any Development Application lodged by the Developer for the Development
must propose the carrying out of the subdivision which forms part of the
Development in stages.
13.2
A Construction Certificate for any stage of the Development must not be
issued unless Council has first certified in writing to the Developer that there
is sufficient capacity in the wastewater system to service that stage of the
Development.
13.3
The Development Application for the subdivision of the Industrial Land must
propose that part of the Sewer Infrastructure which comprises the Property
Boundary Assembly and all works between the Property Boundary Assembly
for each lot created and Council’s wastewater system at SPS 5023 located in
Korora Parkway, Pottsville, and the connection of that Sewer Infrastructure to
Council’s wastewater system.
13.4
Each Development Application for the carrying out of industrial development
on the lots created by the subdivision of the Industrial Land must propose
Sewer Infrastructure pump stations to be constructed on each lot created
which:
13.4.1 comply with Council’s requirements and the requirements of WSA 072007;
13.4.2 include pump wells of a size suited to the nature and intensity of the
Development on each lot including a flow balancing to ensure the
discharge per ET does not exceed 768 litres per day in dry weather
and 3456 litres per day in wet weather; and
13.4.3 include an over-pressure control system, including flow balancing and
pump controls, to ensure that all pumps on the Industrial Land
connected to Council’s wastewater system cannot operate
simultaneously.
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Tweed Shire Council
14
Restrictions on Title
14.1
15
The Council may, as part of any Development Consent for the Industrial Land
include conditions to give effect to clauses 12 and 13 of this Deed, and may
require restrictions on title to be created to give effect to any aspect of clauses
12 and 13 of this Deed.
Dedication of Residual Land
15.1
The Council agrees to accept the dedication without cost to Council of any
part of the Land which does not form a lot created as part of the Development
to be used for industrial purposes, and not otherwise to be dedicated to
Council for any other purpose (Residual Land), provided that:
15.1.1 the Residual Land is contiguous with the Environmental Management
Land;
15.1.2 the Residual Land is not required in connection with the Industrial
Land for any purpose;
15.1.3 the Residual Landis provided with a suitable means of access, if
required by Council, to be agreed upon by the Parties;
15.1.4 there is no change to the condition of the Residual Land between the
date of this Deed and the time when the Residual Land is to be
dedicated to Council;
15.1.5 each part of the Residual Land is to be dedicated to Council on the
registration of the plan of subdivision to create the lots in the
Development adjoining that part of the Residual Land.
Part 4 –Enforcement
16
Acquisition of land required to be dedicated
16.1
If the Developer does not dedicate any part of the Land required to be
dedicated by this Deed at the time at which it is required to be dedicated, the
Developer consents to the Council compulsorily acquiring the relevant land for
compensation in the amount of $1 without having to follow the pre-acquisition
procedure under the Just Terms Act.
16.2
The Council is to only acquire land pursuant to clause 16.1 if it considers it
reasonable to do so having regard to the circumstances surrounding the
failure by the Developer to dedicate the land required to be dedicated under
this Deed.
16.3
Clause 16.1 constitutes an agreement for the purposes of s30 of the Just
Terms Act.
16.4
If, as a result of the acquisition referred to in clause 16.1, the Council is
required to pay compensation to any person other than the Developer, the
Developer is to reimburse the Council that amount, upon a written request
being made by the Council.
16.5
The Developer indemnifies and keeps indemnified the Council against all
Claims made against the Council as a result of any acquisition by the Council
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Tweed Shire Council
of the whole or any part of the land concerned except if, and to the extent
that, the Claim arises because of the Council's negligence or default.
16.6
The Developer is to promptly do all things necessary, and consents to the
Council doing all things necessary, to give effect to this clause 16, including
without limitation:
16.6.1 signing any documents or forms,
16.6.2 giving land owner’s consent for lodgement of any Development
Application,
16.6.3 producing certificates of title to the Registrar-General under the Real
Property Act 1900, and
16.6.4 paying the Council's costs arising under this clause 16.
17
Enforcement
17.1
Without limiting any other remedies available to the Parties, this Deed may be
enforced by the Parties in any court of competent jurisdiction.
17.2
For the avoidance of doubt, nothing in this Deed prevents:
17.2.1 a Party from bringing proceedings in the Land and Environment Court
to enforce any aspect of this Deed or any matter to which this Deed
relates, and
17.2.2 the Council from exercising any function under the Act or any other Act
or law relating to the enforcement of any aspect of this Deed or any
matter to which this Deed relates.
Part 5 – Indemnities & Insurance
18
Risk
18.1
19
Release
19.1
20
The Developer performs this Deed at its own risk and its own cost.
The Developer releases the Council from any Claim it may have against the
Council arising in connection with the performance of the Developer’s
obligations under this Deed except if, and to the extent that, the Claim arises
because of the Council's negligence or default.
Indemnity
20.1
The Developer indemnifies the Council from and against all Claims that may
be sustained, suffered, recovered or made against the Council arising in
connection with the performance of the Developer’s obligations under this
Deed except if, and to the extent that, the Claim arises because of the
Council's negligence or default.
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Tweed Shire Council
Part 6 – Other Provisions
21
Registration of this Deed
21.1
The Parties agree to register this Deed for the purposes of s93H(1) of the Act.
21.2
Not later than 10 days after the commencement of this Deed, the Developer is
to deliver to the Council in registrable form:
21.2.1 an instrument requesting registration of this Deed on the title to the
Land duly executed by the Developer, and
21.2.2 the written irrevocable consent of each person referred to in s93H(1)
of the Act to that registration.
21.3
The Developer is to do such other things as are reasonably necessary to
enable registration of this Deed to occur.
21.4
The Parties are to do such things as are reasonably necessary to remove any
notation relating to this Deed from the title to the Land:
21.4.1 in so far as the part of the Land concerned is a Final Lot,
21.4.2 in relation to any other part of the Land, once the Developer has
completed its obligations under this Deed to the reasonable
satisfaction of the Council or this Deed is terminated or otherwise
comes to an end for any other reason.
22
Assignment, sale of the Land, etc
22.1
Unless the matters specified in clause 22.2 are satisfied, the Developer is not
to do any of the following:
22.1.1 to transfer the Land to any person, or
22.1.2 assign the Developer's rights or obligations under this Deed, or novate
this Deed, to any person.
22.2
The matters required to be satisfied for the purposes of clause 22.1 are as
follows:
22.2.1 the Developer has, at no cost to the Council, first procured the
execution by the person to whom the Developer’s rights or obligations
under this Deed are to be assigned or novated, of an agreement in
favour of the Council on terms satisfactory to the Council, and
22.2.2 the Council, by notice in writing to the Developer, as the case may be,
has stated that evidence satisfactory to the Council has been
produced to show that the assignee or novatee, is reasonably capable
of performing its obligations under the Deed, and
22.2.3 the Developer is not in breach of this Deed, and
22.2.4 the Council otherwise consents to the transfer, assignment or
novation.
22.3
Clauses 22.1 and 22.2 do not apply in relation to any sale or transfer of the
Land if this Deed is registered on the title to the Land at the time of the sale,
unless the Land is being sold to more than one entity in which case this clause
continues to apply, and the agreement contemplated by clause 22.2.1 must
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Tweed Shire Council
deal with the apportionment of the obligation to make any outstanding
Development Contributions comprising the whole or part of the Environmental
Management Contribution referred to in Item 1 of Schedule 2 between the new
owners of the Land.
23
24
25
Dispute Resolution – expert determination
23.1
This clause applies to a dispute under this Deed which relates to a matter that
can be determined by an appropriately qualified expert.
23.2
Any dispute between the Parties as to whether a dispute to which this clause
applies can be determined by an appropriately qualified expert is to be
referred to the Chief Executive Officer of the professional body that represents
persons with the relevant expertise for determination, which is to be final and
binding on the Parties.
23.3
Such a dispute is taken to arise if one Party gives another Party a notice in
writing specifying particulars of the dispute.
23.4
If a notice is given under clause 23.3, the Parties are to meet within 14 days of
the notice in an attempt to resolve the dispute.
23.5
If the dispute is not resolved within a further 28 days, the dispute must be
referred to the President of the NSW Law Society to appoint an expert for
expert determination.
23.6
The expert determination is binding on the Parties except in the case of fraud
or misfeasance by the expert.
23.7
Each Party must bear its own costs arising from or in connection with the
appointment of the expert and the expert determination.
Dispute Resolution - mediation
24.1
This clause applies to any dispute under this Deed other than a dispute to
which clause 23 applies.
24.2
Such a dispute is taken to arise if one Party gives another Party a notice in
writing specifying particulars of the dispute.
24.3
If a notice is given under clause 24.2, the Parties are to meet within 14 days of
the notice in an attempt to resolve the dispute.
24.4
If the dispute is not resolved within a further 28 days, the Parties must mediate
the dispute in accordance with the Mediation Rules of the Law Society of New
South Wales published from time to time and must request the President of
the Law Society, or the President’s nominee, to select a mediator.
24.5
If the dispute is not resolved by mediation within a further 28 days, or such
longer period as may be necessary to allow any mediation process which has
been commenced to be completed, then the Parties may exercise their legal
rights in relation to the dispute, including by the commencement of legal
proceedings in a court of competent jurisdiction in New South Wales.
Review of this Deed
17
Tweed Shire Council
26
25.1
The Parties agree to review this Deed if any party is of the opinion that any
change of circumstance has occurred, or is imminent, that materially affects
the operation of this Deed and requests a review.
25.2
For the purposes of clause 25.1, the relevant changes include (but are not
limited to) any change to a law that restricts or prohibits or enables the Council
or any other planning authority to restrict or prohibit any aspect of the
Development.
25.3
For the purposes of addressing any matter arising from a review of this Deed,
the Parties are to use all reasonable endeavours to agree on and implement
appropriate amendments to this Deed.
25.4
If this Deed becomes illegal, unenforceable or invalid as a result of any
change to a law, the Parties agree to do all things necessary to ensure that an
enforceable agreement of the same or similar effect to this Deed is entered
into.
25.5
A failure by a Party to agree to take action requested by the other Party as a
consequence of a review of this Deed is not a dispute for the purposes of the
dispute resolution provisions of this Deed.
Notices
26.1
Any notice, consent, information, application or request that must or may be
given or made to a Party under this Deed is only given or made if it is in writing
and sent in one of the following ways:
26.1.1 delivered or posted to that Party at its address set out in the Summary
Sheet,
26.1.2 faxed to that Party at its fax number set out in the Summary Sheet, or
26.1.3 emailed to that Party at its email address set out in the Summary
Sheet.
26.2
If a Party gives the other Party 3 business days notice of a change of its
address or fax number, any notice, consent, information, application or request
is only given or made by that other Party if it is delivered, posted or faxed to
the latest address or fax number.
26.3
Any notice, consent, information, application or request is to be treated as
given or made if it is:
26.3.1 delivered, when it is left at the relevant address,
26.3.2 sent by post, 2 business days after it is posted,
26.3.3 sent by fax, as soon as the sender receives from the sender’s fax
machine a report of an error free transmission to the correct fax
number.
26.4
If any notice, consent, information, application or request is delivered, or an
error free transmission report in relation to it is received, on a day that is not a
business day, or if on a business day, after 5pm on that day in the place of the
Party to whom it is sent, it is to be treated as having been given or made at the
beginning of the next business day.
18
Tweed Shire Council
27
28
Entire Deed
27.1
This Deed contains everything to which the Parties have agreed in relation to
the matters it deals with.
27.2
No Party can rely on an earlier document, or anything said or done by another
Party, or by a director, officer, agent or employee of that Party, before this
Deed was executed, except as permitted by law.
Further Acts
28.1
29
30
Governing Law and Jurisdiction
29.1
This Deed is governed by the law of New South Wales.
29.2
The Parties submit to the non-exclusive jurisdiction of its courts and courts of
appeal from them.
29.3
The Parties are not to object to the exercise of jurisdiction by those courts on
any basis.
No Fetter
30.1
31
33
Nothing in this Deed shall be construed as requiring Council to do anything
that would cause it to be in breach of any of its obligations at law, and without
limitation, nothing shall be construed as limiting or fettering in any way the
exercise of any statutory discretion or duty.
Representations and Warranties
31.1
32
Each Party must promptly execute all documents and do all things that
another Party from time to time reasonably requests to effect, perfect or
complete this Deed and all transactions incidental to it.
The Parties represent and warrant that they have power to enter into this Deed
and comply with their obligations under the Deed and that entry into this Deed
will not result in the breach of any law.
Severability
32.1
If a clause or part of a clause of this Deed can be read in a way that makes it
illegal, unenforceable or invalid, but can also be read in a way that makes it
legal, enforceable and valid, it must be read in the latter way.
32.2
If any clause or part of a clause is illegal, unenforceable or invalid, that clause
or part is to be treated as removed from this Deed, but the rest of this Deed is
not affected.
Modification
19
Tweed Shire Council
33.1
34
35
No modification of this Deed will be of any force or effect unless it is in writing
and signed by the Parties to this Deed.
Waiver
34.1
The fact that a Party fails to do, or delays in doing, something the Party is
entitled to do under this Deed, does not amount to a waiver of any obligation
of, or breach of obligation by, another Party.
34.2
A waiver by a Party is only effective if it is in writing and only in relation to the
particular obligation or breach in respect of which it is given.
GST
35.1
In this clause:
Adjustment Note, Consideration, GST, GST Group, Margin Scheme,
Money, Supply and Tax Invoice have the meaning given by the GST Law.
GST Amount means in relation to a Taxable Supply the amount of GST
payable in respect of the Taxable Supply.
GST Law has the meaning given by the A New Tax System (Goods and
Services Tax) Act 1999 (Cth).
Input Tax Credit has the meaning given by the GST Law and a reference to
an Input Tax Credit entitlement of a Party includes an Input Tax Credit for an
acquisition made by that Party but to which another member of the same GST
Group is entitled under the GST Law.
Taxable Supply has the meaning given by the GST Law excluding (except
where expressly agreed otherwise) a supply in respect of which the supplier
chooses to apply the Margin Scheme in working out the amount of GST on
that supply.
35.2
Subject to clause 35.4, if GST is payable on a Taxable Supply made under, by
reference to or in connection with this Deed, the Party providing the
Consideration for that Taxable Supply must also pay the GST Amount as
additional Consideration.
35.3
Clause 35.2 does not apply to the extent that the Consideration for the
Taxable Supply is expressly stated in this Deed to be GST inclusive.
35.4
No additional amount shall be payable by the Council under clause 35.2
unless, and only to the extent that, the Council (acting reasonably and in
accordance with the GST Law) determines that it is entitled to an Input Tax
Credit for its acquisition of the Taxable Supply giving rise to the liability to pay
GST.
35.5
If there are Supplies for Consideration which is not Consideration expressed
as an amount of Money under this Deed by one Party to the other Party that
are not subject to Division 82 of the A New Tax System (Goods and Services
Tax) Act 1999, the Parties agree:
35.5.1 to negotiate in good faith to agree the GST inclusive market value of
those Supplies before issuing Tax Invoices in respect of those
Supplies, and
20
Tweed Shire Council
35.5.2 that any amounts payable by the Parties in accordance with clause
35.2 (as limited by clause 35.4) to each other in respect of those
Supplies will be set off against each other to the extent that they are
equivalent in amount.
36
35.6
No payment of any amount pursuant to this clause 35, and no payment of the
GST Amount where the Consideration for the Taxable Supply is expressly
agreed to be GST inclusive, is required until the supplier has provided a Tax
Invoice or Adjustment Note as the case may be to the recipient.
35.7
Any reference in the calculation of Consideration or of any indemnity,
reimbursement or similar amount to a cost, expense or other liability incurred
by a Party, must exclude the amount of any Input Tax Credit entitlement of
that Party in relation to the relevant cost, expense or other liability.
35.8
This clause continues to apply after expiration or termination of this Deed.
Explanatory Note Relating to this Deed
36.1
The Appendix contains the Explanatory Note relating to this Deed required by
clause 25E of the Regulation.
36.2
Pursuant to clause 25E(7) of the Regulation, the Parties agree that the
Explanatory Note in the Appendix is not to be used to assist in construing this
Planning Deed.
21
Tweed Shire Council
Execution
Executed as a Deed
Dated:
Executed on behalf of the Council:
______________________________
General Manager
______________________________
Witness/Name/Position:
Executed on behalf of the Developer in accordance with s127(1) of the
Corporations Act 2001 (Cth):
_____________________________
Director/Name:
______________________________
Company Secretary/Name:
22
Tweed Shire Council
Schedule 1
(Clause 1.1)
Plan
[The Plan is on the following page]
23
Tweed Shire Council
24
Tweed Shire Council
Schedule 2
(Clause 1.1)
Development Contributions
Column 1
Column 2
Column 3
Column 4
Item/
Contribution
Public Purpose
Manner & Extent
Timing
A. Monetary Contributions
1.Environmental
Management
Contribution
Environmental
Management
$120,000
$40,000 on dedication
of the Environmental
Management Land
and $8,000 on each
anniversary of the
date of dedication of
the Environmental
Management Land for
the following 10 years,
provided that the
entire $120,000 must
be paid prior to the
issue of the final
Subdivision Certificate
for the Development.
2. Upgrading of SPS
5023
Sewerage
$50,000 indexed in
accordance with CPI (All
Groups Sydney) from 30
June 2016 to the date of
payment
Prior to the release of
the first Subdivision
Certificate for the
Development or 30
June 2016 whichever
is the earlier (subject
to Development
Consent having been
granted to the
Development or part
thereof).
25
Tweed Shire Council
B. Dedication of Land
3.Environmental
Management Land
Environmental
Management
Dedication of the
Environmental
Management Land free
of cost to Council
Within 2 years of the
date of the making of
the Draft LEP with the
process for the
creation of the
Environmental
Management Land as
a separate lot to
commence within 3
months of the date of
making of the Draft
LEP
4. Land for Kudgeree
Avenue
Roads
5 metres of land for the
widening of Kudgeree
Avenue
On the registration of
the first plan of
subdivision for the
Development
26
Tweed Shire Council
Appendix
(Clause 36)
Environmental Planning and Assessment Regulation 2000
(Clause 25E)
Explanatory Note
Draft Planning Deed
Parties
Tweed Shire Council ABN 90 178 732 496 PO Box 816 Murwillumbah NSW 2484
(Council)
and
Pottsville Development Corporation Pty Limited ACN 065 290 753 PO Box N27
Grosvenor Place NSW 1220
Description of the Land to which the Draft Planning Deed
Applies
Lot 12 DP 1015369.
Description of Proposed Development
Future development of the Land for industrial purposes and environmental protection
that can only be carried out by reason of the Draft LEP.
Summary of Objectives, Nature and Effect of the Draft
Planning Deed
Objectives of Draft Planning Deed
The objective of the Draft Planning Agreement is to restore and maintain vegetation
on the part of the Land which constitutes the Environmental Management Land, and
to ensure that adequate water and waste water infrastructure is provided to the
Development on the Land.
Nature of Draft Planning Deed
27
Tweed Shire Council
The Draft Planning Agreement is a planning agreement under s93F of the
Environmental Planning and Assessment Act 1979 (Act). It is an agreement between
the Council and the Developer of the land to which the Deed applies. The Draft
Planning Agreement is a voluntary agreement under which Development
Contributions (as defined in clause 1.1 of the Draft Planning Agreement) are made by
the Developer for various public purposes (as defined in s93F(3) of the Act).
Effect of the Draft Planning Deed
The Draft Planning Agreement:

relates to the making of the Draft LEP and the carrying out by the Developer
of the Development on the Land,

does not exclude the application of ss94, 94A and 94EF of the Act to the
Development,

requires monetary Development Contributions for the maintenance of the
Environmental Management Land and Council’s sewer system,

requires the dedication of Environmental Management Land and land for the
widening of Kudgeree Avenue,

requires the Developer to acknowledge constraints on wastewater allocation
and imposes requirements for sewer infrastructure for the Development,

is to be registered on the title to the Land,

imposes restrictions on the Parties transferring the Land or part of the Land or
assigning an interest under the Deed,

provides two dispute resolution methods for a dispute under the Deed, being
expert determination and mediation,

provides that the Deed is governed by the law of New South Wales, and

provides that the A New Tax System (Goods and Services Tax) Act 1999
(Cth) applies to the Deed.
28
Tweed Shire Council
Assessment of the Merits of the Draft Planning Deed
The Planning Purposes Served by the Draft Planning Deed
The Draft Planning Deed:

promotes and co-ordinates of the orderly and economic use and
development of the Land to which the Deed applies,

provides land for public purposes in connection with the Development,

provides and co-ordinates community services and facilities in
connection with the Development, and

provides increased opportunity for public involvement and participation in
environmental planning and assessment of the Development.
How the Draft Planning Deed Promotes the Public Interest
The Draft Planning Deed promotes the public interest by promoting the objects of the
Act as set out in s5(a)(ii)-(v) and 5(c) of the Act.
For Planning Authorities:
Development Corporations - How the Draft Planning Deed
Promotes its Statutory Responsibilities
N/A
Other Public Authorities – How the Draft Planning Deed Promotes
the Objects (if any) of the Act under Which it is Constituted
N/A
Councils – How the Draft Planning Deed Promotes the Elements of
the Council’s Charter
The Draft Planning Deed promotes the elements of the Council’s charter by:

providing services and facilities for the community,

ensuring that public facilities provided by the Developer under the
Deed are transferred to and managed by the Council or are
otherwise subject to the Council’s control,

by providing a means for the private funding of public facilities for the
benefit of the Development and the wider community, and

providing a means that allows the wider community to make
submissions to the Council in relation to the Deed.
All Planning Authorities – Whether the Draft Planning Deed
Conforms with the Authority’s Capital Works Program
[to be completed].
All Planning Authorities - Whether the Draft Planning Deed
specifies that certain requirements must be complied with before
29
Tweed Shire Council
issuing a construction certificate, subdivision certificate or
occupation certificate
The Draft Planning Deed specifies that certain obligations under the Deed must be
complied with before the issuing of Subdivision Certificates or Construction
Certificates.
30
Attachment 3
Traffic Study and Addendum
43
Attachment 4
Site Contamination Investigation
44
Attachment 5
Revised Flora and Fauna Assessment
45
Attachment 6
Cultural Heritage Assessment
46
Attachment 7
Market Needs Assessment and Additional
Commentary
47
Attachment 8
Council report of 7 May 2015
48
Attachment 9:
Information checklist
49
INFORMATION CHECKLIST
STEP 1: REQUIRED FOR ALL PLANNING PROPOSALS (under s55 (a)-(e) of the EP&A Act)
•
Objectives and intended outcome

•
Explanation of provisions
•
Mapping (including current and proposed zones)

•
•
Community consultation (agencies to be consulted)

Justification and process for implementation
(including compliance assessment against
relevant Section 117 Direction/s)


• Resources (including drinking water,
minerals, oysters, agricultural lands, fisheries,
mining)
• Sea level rise
Strategic Planning Context
•
Demonstrated consistency with relevant
Regional Strategy
• Demonstrated consistency with relevant Subregional, Strategy
• Demonstrated consistency with or support of
relevant DG endorsed local strategy
• Demonstrated consistency with Threshold
Sustainability Criteria
Site Description / Context

•
Aerial photographs

•
Site photos / photomontage
•



Urban Design Considerations

• Existing site plan (buildings, vegetation,
roads, etc)
• Building mass/block diagram study (changes
in building height and FSR)
• Lighting impact



• Development yield analysis (potential yield of
lots, houses, employment generation)
Economic Considerations
Traffic and Transport Considerations

• Economic impact assessment

•
Local traffic and transport

• Retail centre hierarchy

•
TMAP
• Employment land

•
Public transport

Social and Cultural Considerations
•
Cycle and pedestrian movement

• Heritage Impact

• Aboriginal archaeology



Environmental Considerations
•
Bushfire hazard
•
Acid Sulfate soils
•
Noise impact
•
Flora and/or fauna
•
•
Soil stability, erosion risk. Sediment control,
landslip assessment, and subsidence
Water quality
•
Stormwater management
•
Flooding
•
Land/site contamination
N/A
PLANNING MATTERS OR ISSUES
TO BE
CONSIDERED
N/A
PLANNING MATTERS OR ISSUES
TO BE
CONSIDERED
STEP 2: MATTERS – CONSIDERED ON A CASE BY CASE BASIS


• Open space management


• European archaeology


• Social & cultural impacts

• Stakeholder engagement




Infrastructure Considerations
• Infrastructure servicing and potential funding
arrangements
Miscellaneous / Additional Considerations
Undertaken


• Structure and Staging


• Aboriginal Cultural Heritage Due Diligence

• Flora and Fauna

• Bushfire

• Traffic



• Geotechnical / Engineering

• Stormwater Management

• Contaminated Land and declaration
50

51
•
Customer Service
1300 292 872 (02)6670 2400
[email protected]
www.tweed.nsw.gov.au
Fax (02) 6670 2429
POBox 816
Murwillumbah NSW2484
52

Attach 1 [PR-PC] PP11/0002 Pottsville

Transcription

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