Ordinary Council Meeting Thursday 21

Transcription

Mayor:
Cr B Longland
Councillors:
M Armstrong (Deputy Mayor)
G Bagnall
C Byrne
K Milne
W Polglase
P Youngblutt
Agenda
Planning and Regulation Reports
Ordinary Council Meeting
Thursday 21 November 2013
held at Murwillumbah Cultural and Civic Centre
commencing at 4.45pm
Council Meeting Date: Thursday 21 November 2013
COUNCIL'S CHARTER
Tweed Shire Council's charter comprises a set of principles that are to guide
Council in the carrying out of its functions, in accordance with Section 8 of the
Local Government Act, 1993.
Tweed Shire Council has the following charter:
· to provide directly or on behalf of other levels of government, after due consultation,
adequate, equitable and appropriate services and facilities for the community and to
ensure that those services and facilities are managed efficiently and effectively;
· to exercise community leadership;
· to exercise its functions in a manner that is consistent with and actively promotes the
principles of multiculturalism;
· to promote and to provide and plan for the needs of children;
· to properly manage, develop, protect, restore, enhance and conserve the environment
of the area for which it is responsible, in a manner that is consistent with and promotes
the principles of ecologically sustainable development;
· to have regard to the long term and cumulative effects of its decisions;
· to bear in mind that it is the custodian and trustee of public assets and to effectively
account for and manage the assets for which it is responsible;
· to facilitate the involvement of councillors, members of the public, users of facilities and
services and council staff in the development, improvement and co-ordination of local
government;
· to raise funds for local purposes by the fair imposition of rates, charges and fees, by
income earned from investments and, when appropriate, by borrowings and grants;
· to keep the local community and the State government (and through it, the wider
community) informed about its activities;
· to ensure that, in the exercise of its regulatory functions, it acts consistently and
without bias, particularly where an activity of the council is affected;
· to be a responsible employer.
Page 2
Items for Consideration of Council:
ITEM
PRECIS
PAGE
REPORTS THROUGH THE ACTING GENERAL MANAGER
5
REPORTS FROM THE DIRECTOR PLANNING AND REGULATION
5
19
[PR-CM] Marine Rescue Point Danger (Training Facilities) Coral
Street, Duranbah
7
20
[PR-CM] Development Application DA13/0132 - Change of Use (First
Approved Use) to Surfboard Manufacturing, Extension of
Mezzanine Level and Associated Signage at Lot 19 SP 80033, No.
19/23-25 Ourimbah Road, Tweed Heads
11
21
[PR-CM] Review of Environmental Factors PTV12/0022 for
Construction of Tennis Courts (Including Lighting) and Associated
Car Parking, Pedestrian Access and Drainage at Lot 301 DP
1125090 Overall Drive, Pottsville
39
22
[PR-CM] Development Application DA13/0024 for a 44 Lot
Subdivision, Construction of Internal Road and Associated
Infrastructure at Lot 1 DP 407094 Cudgen Road, Cudgen and Lot 1
DP 598073 No. 17 Collier Street, Cudgen
57
23
[PR-CM] Development Application DA13/0189 for a 22 Lot
Subdivision and Associated Intersection Upgrade to Creek Street
and Tweed Coast Road at Lot 156 DP 628026 No. 40 Creek Street,
Hastings Point
121
24
[PR-CM] Development Application DA13/0247 for a Dual Use of
Existing Dwelling (Tourist Accommodation) at Lot 21 DP 1030322
No. 39 Collins Lane, Casuarina
179
25
[PR-CM] Development Application DA13/0221 for a Pontoon Boat
and Water Sports Boat Operation on the Tweed River from Fingal
Boat Ramp with Passenger Pick Up/Set Down from Beach at Old
Barney's Point Bridge Jetty at Lot 403 DP 755740 Main Road Fingal
Head;
203
26
[PR-CM] Development Application DA13/0397 for an Extension to
Existing Car Park at Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff
and Lot 100 DP 1071633 No. 24-26 Pearl Street, Kingscliff
249
27
[PR-CM] Development Application D90/0436.07 for an amendment
to Development Consent D90/0436 for the Erection of a Tavern and
Nine Shops at Lot 171 DP 629328 No. 28-40 Overall Drive, Pottsville
283
28
[PR-CM] Development Application DA13/0246 for a Three Storey
Dwelling and In-Ground Swimming Pool at Lot 598 DP 1076975 No.
40 Marsupial Drive, Pottsville
301
29
[PR-CM] Section 82A Review of Development Application
DA12/0498 for the Demolition of Existing Dwelling and Construction
333
Page 3
of a Three Storey Dwelling at Lot 1 DP 214686 No. 4 Marine Parade,
Kingscliff
30
[PR-CM] Draft Tweed Development Control Plan - Section B15
Seabreeze Estate
361
31
[PR-CM] Planning Proposal PP10/0007 - Mooball Planning Proposal
369
32
[PR-CM] PP11/0002 Pottsville Employment Land - Wastewater
Allocation
379
33
[PR-CM] Combined Planning Proposal (PP13/0003) and
Development Application (DA13/0469) for a Highway Service
Centre, Chinderah
387
34
[PR-CM] Strategic Planning - Murwillumbah Bowls and Sports Club
site - Lot 1 DP 524512, Lot 1 DP 523131, Lot A DP 390347, and Lot 1
DP 250164 Condong Street, Brisbane Street and Commercial Road,
Murwillumbah
401
35
[PR-CM] Application for a Site Compatibility Certificate for Seniors
Housing Development Lot 13 DP 868620, Cudgen Road Cudgen
407
36
[PR-CM] Variations to Development Standards under State
Environmental Planning Policy No. 1 - Development Standards
411
Page 4
REPORTS THROUGH THE ACTING GENERAL MANAGER
REPORTS FROM THE DIRECTOR PLANNING AND REGULATION
ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 - SECT 79C
79C Evaluation
(1)
Matters for consideration-general In determining a development application, a consent
authority is to take into consideration such of the following matters as are of relevance
to the development the subject of the development application:
(a)
the provisions of:
(i)
(ii)
any environmental planning instrument, and
any proposed instrument that is or has been the subject of public
consultation under this Act and that has been notified to the consent
authority (unless the Director-General has notified the consent authority that
the making of the proposed instrument has been deferred indefinitely or has
not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or
any draft planning agreement that a developer has offered to enter into
under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of
this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal
Protection Act 1979 ),
that apply to the land to which the development application relates,
(b)
(c)
(d)
(e)
the likely impacts of that development, including environmental impacts on both
the natural and built environments, and social and economic impacts in the
locality,
the suitability of the site for the development,
any submissions made in accordance with this Act or the regulations,
the public interest.
Note: See section 75P (2) (a) for circumstances in which determination of
development application to be generally consistent with approved concept plan for a
project under Part 3A.
The consent authority is not required to take into consideration the likely impact of the
development on biodiversity values if:
(a)
the development is to be carried out on biodiversity certified land (within the
meaning of Part 7AA of the Threatened Species Conservation Act 1995 ), or
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(b)
(2)
a biobanking statement has been issued in respect of the development
under Part 7A of the Threatened Species Conservation Act 1995 .
Compliance with non-discretionary development standards-development other than
complying development If an environmental planning instrument or a regulation
contains non-discretionary development standards and development, not being
complying development, the subject of a development application complies with those
standards, the consent authority:
(a)
(b)
(c)
is not entitled to take those standards into further consideration in determining the
development application, and
must not refuse the application on the ground that the development does not
comply with those standards, and
must not impose a condition of consent that has the same, or substantially the
same, effect as those standards but is more onerous than those standards,
and the discretion of the consent authority under this section and section 80 is limited
accordingly.
(3)
If an environmental planning instrument or a regulation contains non-discretionary
development standards and development the subject of a development application
does not comply with those standards:
(a)
(b)
subsection (2) does not apply and the discretion of the consent authority under
this section and section 80 is not limited as referred to in that subsection, and
a provision of an environmental planning instrument that allows flexibility in the
application of a development standard may be applied to the non-discretionary
development standard.
Note: The application of non-discretionary development standards to complying
development is dealt with in section 85A (3) and (4).
(4)
Consent where an accreditation is in force A consent authority must not refuse to grant
consent to development on the ground that any building product or system relating to
the development does not comply with a requirement of the Building Code of Australia
if the building product or system is accredited in respect of that requirement in
accordance with the regulations.
(5)
A consent authority and an employee of a consent authority do not incur any liability as
a consequence of acting in accordance with subsection (4).
(6)
Definitions In this section:
(a)
(b)
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reference to development extends to include a reference to the building, work,
use or land proposed to be erected, carried out, undertaken or subdivided,
respectively, pursuant to the grant of consent to a development application, and
"non-discretionary development standards" means development standards that
are identified in an environmental planning instrument or a regulation as nondiscretionary development standards.
19
[PR-CM] Marine Rescue Point Danger (Training Facilities) Coral Street,
Duranbah
SUBMITTED BY:
Building and Environmental Health
Valid
LINKAGE TO INTEGRATED PLANNING AND REPORTING FRAMEWORK:
1
Civic Leadership
1.2
Improve decision making by engaging stakeholders and taking into account community input
1.2.1
Council will be underpinned by good governance and transparency in its decision making process
SUMMARY OF REPORT:
The licence granted to Marine Rescue Point Danger for the use of the training facilities at
Coral Street expired in July 2013 and the Tweed Coast Reserve Trust previously resolved to
not extend the licence due to the dilapidated state of the building. Marine Rescue Point
Danger has since obtained substantial funding through their insurance provisions with the
Treasury Managed Fund to undertake all necessary repairs required to make the building
habitable. A request has been received from Marine Rescue NSW for the Trust and NSW
Trade and Investment Crown Lands Department to approve a three year conditional special
licence and an interim licence to allow Marine Rescue Point Danger to begin remediation
works at the site. It is recommended that Council support this request.
A separate report dealing with this matter also needs to be determined in the November
Tweed Coast Reserve Trust Meeting.
RECOMMENDATION:
That Council:
1.
Supports the issue of a new conditional three year lease for the Marine Rescue
Point Danger Training Facilities at Coral Street, Duranbah to Marine Rescue
Point Danger, noting that the conditions of the lease will include a termination of
licence clause if the NSW Trade and Investment, Crown Lands determine that
there is a higher level of community interest identified prior to the expiration
date of the licence;
2.
Supports the decision to relinquish responsibility to Marine Rescue Point
Danger for the day to day maintenance and future repairs required at the site
during the three year tenure; and
Page 7
3.
Page 8
Approves the request to NSW Trade and Investment, Crown Lands for inprinciple support and interim licence to allow Marine Rescue Point Danger to
begin remediation works to the Coral Street Training Rooms as per the approved
Treasury Managed Fund claim.
REPORT:
Marine Rescue Point Danger (MRPD) Training Facilities are located at Coral Street,
Duranbah on Crown Reserve 57974. The above building operates under a temporary Crown
Land licence issued by the Tweed Coast Reserve Trust. The licence expired on 13 May
2013.
As per the previous report to the Trust in April 2012, the building requires significant repair
works to be carried out to extend the life of the building and ensure occupant safety.
A report to the Trust was previously prepared in support of not renewing the licence and for
MRPD to find an alternate training facility. The Trust resolved that:
1.
The Tweed Coast Reserves Trust supports the position that the training facilities at
Coral Street, Duranbah are in a dilapidated state and unless further significant funds
are made available to repair the facility the use of the building is to be limited to 30
June 2013; and
2.
Marine Rescue NSW be advised to seek alternative training facilities.
MRPD were advised of the Trust resolution to not renew the previous current licence.
MRPD are currently not using the training rooms due to workplace health and safety
concerns raised in the 2011 building audit undertaken by Council.
A meeting was held in September 2013 with the Commissioner Marine Rescue NSW, NSW
Trade and Investment, Crown Lands officers and Council officers to address the current
situation. It was resolved at the meeting that the Commissioner would submit a claim
through the Treasury Managed Fund (TMF) for the required repair works. The TMF have
since accepted the claim and have approved $76,610 funds to repair the building and roof
as per the previous maintenance issues raised by Council officers.
A further meeting between Council officers, MRPD and NSW Trade and Investment, Crown
Lands was held in October 2013 on the request of NSW Marine Rescue to investigate the
potential for a future conditional licence agreement. During the meeting, MRPD requested a
four year licence be issued once the repair works are complete. NSW Trade and
Investment, Crown Lands have since agreed to approve a three year conditional licence,
with a special condition of the lease to allow for the termination of the lease if the NSW
Trade and Investment, Crown Lands determine that there is a higher level of community
interest in the site prior to the expiration date of the licence.
Council officers have advised Marine Rescue that the approval of the three year conditional
licence will be based on the successful completion of the remediation works and approval
that the building is safe for occupancy. Council officers have also advised Marine Rescue
that no funds have been allocated for ongoing maintenance during the three year period.
Therefore any approval to grant the licence will only be agreed to with the provision that the
day to day maintenance and repairs required to the site and surrounding area required
during the licence period are solely the responsibility of MRPD and will not be undertaken or
funded through Council now or in the future. Council has prepared a letter to the NSW
Trade and Investment, Crown Lands to request in-principle support and interim licence for
works.
OPTIONS:
Page 9
That Council:
1.
Support the recommendations in this report; or
2.
Not support the recommendations in this report.
CONCLUSION:
The Marine Rescue Point Danger operations are considered to be an important community
service, worthy of Council and State Government support. The additional State Government
funding and future management proposal identified in this report, addresses a number of
previous Council and Trust concerns.
COUNCIL IMPLICATIONS:
a.
Policy:
Corporate Policy Not Applicable.
b. Budget/Long Term Financial Plan:
Not Applicable
c.
Legal:
Not Applicable.
d. Communication/Engagement:
Not Applicable.
UNDER SEPARATE COVER/FURTHER INFORMATION:
Nil.
Page 10
20
[PR-CM] Development Application DA13/0132 - Change of Use (First
Approved Use) to Surfboard Manufacturing, Extension of Mezzanine Level
and Associated Signage at Lot 19 SP 80033, No. 19/23-25 Ourimbah Road,
Tweed Heads
SUBMITTED BY:
Development Assessment
FILE REFERENCE: DA13/0132 Pt1
1
Civic Leadership
1.1
Ensure actions taken and decisions reached are based on the principles of sustainability
1.1.1
Establish sustainability as a basis of shire planning and Council's own business operations
SUMMARY OF REPORT:
November Council Meeting Status Update
At its meeting of 17 October 2013, Council voted as follows:
Cr M Armstrong
Cr G Bagnall
RESOLVED that Development Application DA13/0132 for a change of use (first
approved use) to surfboard manufacturing, extension of mezzanine level and
associated signage at Lot 19 SP 80033 No. 19/23-25 Ourimbah Road, Tweed Heads
be deferred to the November Council meeting.
The Motion was Carried
FOR VOTE - Cr P Youngblutt, Cr W Polglase, Cr M Armstrong, Cr G Bagnall, Cr B
Longland
AGAINST VOTE - Cr C Byrne
ABSENT. DID NOT VOTE - Cr K Milne
Council received a draft Air Quality Assessment Report from the applicant on 25 October
2013. The draft has been reviewed by Council staff and additional information has been
requested of the applicant. The final Air Quality Assessment Report was received on 5
November 2013, yet it still lacked sampling results undertaken by the NATA Accredited
Laboratory. Upon receipt of this information, Council staff will review the findings and report
this application back to Council for final determination.
Accordingly, it is recommended that the application be deferred to enable assessment of the
submitted Air Quality Assessment Report.
The previous report and previous status updates have been duplicated below for Council's
information.
Page 11
October Council Meeting Status Update
At its meeting of 19 September 2013, Council voted the following:
563
Cr M Armstrong
Cr G Bagnall
It was Moved that this report be deferred for consideration at the October meeting.
564
AMENDMENT 1 to the motion
Cr K Milne
Cr G Bagnall
PROPOSED that this report be deferred for consideration at the October meeting to
allow the applicant to submit the information identified by Council staff.
Amendment 1 was Lost
FOR VOTE - Cr K Milne, Cr G Bagnall
AGAINST VOTE - Cr P Youngblutt, Cr W Polglase, Cr C Byrne, Cr M Armstrong,
Cr B Longland
565
AMENDMENT 2 to the motion
Cr C Byrne
Cr B Longland
PROPOSED
1.
Page 12
Development Application DA13/0132 for a change of use (first approved use) to
surfboard manufacturing, extension of mezzanine level and associated signage at
Lot 19 SP 80033 No. 19/23-25 Ourimbah Road, Tweed Heads be refused for the
following reasons:
A.
The development does not satisfy Section 79C of the Environmental
Planning and Assessment Act, particularly Section (b) – “the likely impacts
of that development including environmental impacts environmental impacts
on both the natural and built environments, and social and economic
impacts in the locality” as the development has not provided sufficient
information in regards to the air quality as a result of the proposed
development.
B.
The development does not satisfy Section 79C of the Environmental
Planning and Assessment Act, particularly Section (c) – “the suitability of the
site for the development” as the development has not demonstrated the
sites suitability given the developments potential impact on adjoining
tenancies.
C.
The development is not considered to be in the public interest as the
application has failed to adequately address the issues raised in
submissions received during the assessment of the application.
D.
The application has not been supported by sufficient owners consent
acknowledging that DA13/0132 also seeks approval for the use of premises
and signage not just the mezzanine construction.
and:
2.
Council instigate compliance action to have the business cease operating from
the subject site and rectify illegal works undertaken to the mezzanine level.
Amendment 2 was Lost
FOR VOTE - Cr C Byrne, Cr K Milne, Cr B Longland
AGAINST VOTE - Cr P Youngblutt, Cr W Polglase, Cr M Armstrong, Cr G Bagnall
The original Motion put by Armstrong and Bagnall was put and Carried (Minute No
563 refers)
FOR VOTE - Cr P Youngblutt, Cr W Polglase, Cr M Armstrong, Cr K Milne, Cr G
Bagnall, Cr B Longland
AGAINST VOTE - Cr C Byrne
Since writing the initial report to Council on this matter Council has received the following email from the applicant (17 September 2013):
“I realise the urgency and importance of this ! I will contact the director of superbrand
PTY LTD today ! I am happy and completely understand that the test needs to be done
to your satisfaction , but I have been informed by several air quality specialist that the
test you require would be inconclusive and I would be open to continually having to
conduct this test to satisfy the complaints . I have had one specialist ring 3 different
councillors to request a more sufficient and conclusive test but was unsuccessful in his
request !
I will speak to both specialists I have had quotes from today to confirm they both think
the alternative test is a more conclusive. I am happy to move forward and have this
done within the allocated 30 days stated in your email this morning!”
The previous report has been re-submitted to Council for its determination.
Original Report
In November 2012 Council received a complaint that Superbrand (a surf board
manufacturing business) had started to occupy Unit 19, 23-25 Ourimbah Road, Tweed
Heads without development approval. In addition the complaints raised the issue of fumes
associated with the business and that such fumes were having an impact on their health.
These complaints have continued to date.
The subject Development Application was lodged in April 2013 seeking approval for the
ongoing use of the site for the surfboard manufacturing business, the ongoing use of the
already constructed mezzanine level and the ongoing use of already installed signage.
Since 19 April 2013 Council Officers have been requesting the applicant provide an Air
Quality Impact Assessment Report prepared by a suitably qualified air quality investigation
consultant in accordance with the NSW Office of Environment & Heritage's Approved
Methods for Modelling and Assessment of Air Pollutants in New South Wales.
Page 13
Council explained to the applicant that if the effects of air pollution originating from this
operation are not examined by a suitably qualified air quality investigation consultant,
Council is not undertaking due diligence in terms of legislative requirements and health,
safety and welfare of those who could be put at risk from the works being carried out at this
business.
Since lodgement of the Development Application the applicant has been making
amendments to the premises to try to improve the issue of odour and fumes escaping the
premises. This has occurred following Work Cover Authority of NSW getting involved.
However Council’s previous experience over many years in dealing with environment and
health issues concerning industries where NSW WorkCover has also been involved, has
revealed that WorkCover addresses issues that relate to the health and safety of employees
in the work place only. Environment and health issues or impacts that are external to the
operation of an industry such as noise, air pollution or offsite migration of contaminants for
example are to be resolved by the Appropriate Regulatory Authority. Therefore as Council’s
concerns relate to possible air pollution impacts that are external to the workplace
operations of this particular industry, it cannot be assumed that by resolving any NSW
WorkCover issues, the subject industry has complied or indeed negated Council’s
requirement for the provision of an Air Quality Impact Assessment Report.
To date the applicant has not provided the requested Air Quality Impact Assessment Report.
As recently as 20 August 2013 the applicant made representations to the elected
Councillors questioning the need for the requested Air Quality Impact Assessment.
Accordingly it was considered prudent to report this matter to Council based on the
information submitted within the application.
Based on the information currently submitted by the applicant Council Officers are unable to
recommend approval of the application as the applicant has not demonstrated that the
business will not have an impact on adjoining businesses.
Therefore the application is recommended for refusal and for the Council to resolve to
instigate compliance action to have the business cease operating from the subject site and
rectify illegal works undertaken to the mezzanine level.
Alternatively the Council could allow the applicant an additional 30 days to produce an Air
Quality Impact Assessment Report and reconsider the application after receipt of that
Report. If the report is not received within 30 days refuse the Development Application
(under staff delegation) based on the reasons as outlined in this report.
Or Council could request that conditions of consent are brought forward to the next Council
meeting to enable the application to be considered for approval.
RECOMMENDATION:
That Development Application DA13/0132 for a change of use (first approved use) to
surfboard manufacturing, extension of mezzanine level and associated signage at Lot
19 SP 80033 No. 19/23-25 Ourimbah Road Tweed Heads be deferred to enable
assessment of the submitted Air Quality Assessment Report.
Page 14
REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
SuperBrand (Mr Adam Fletcher)
Chashell Pty Ltd
Lot 19 SP 80033 No. 19/23-25 Ourimbah Road, Tweed Heads
4(a) Industrial and Uncoloured Land
$15,000
Background:
Council first received a complaint about SuperBrand (surfboard manufacturer) operating
from Unit 19, 23 -25 Ourimbah Road, Tweed Heads, without approval in November 2012.
Following this complaint Council advised the applicant that a Development Application was
required for the land use as Unit 19 had never received a first use approval as required by
DA05/1332 which approved the industrial unit complex.
The Development Application was then subsequently lodged on 2 April 2013.
Between November 2012 and April 2013 when the application was lodged Council received
numerous complaints about the business in regards to odour (toxic resin fumes), health
implications (red itchy eyes, headaches etc), lack of filtration and air locks, and poor work
practices.
The subject application now seeks consent for:
§
§
Change of Use (first use) of the premises for a surfboard manufacturing business
(SuperBrand). The business has been operating at the subject unit without consent
since November 2012.
Extension of existing mezzanine by 112m2 for the purposes of manufacturing, storage
and office space (this work has been done without approval and would require the
lodgement of a Building Certificate to validate the construction standard).
§
Use of equipment such as air compressor (stored in room under stairs), a hand-operated
sander, a cordless power drill and dust extraction unit.
§
Hours of operation – 8am to 5pm Mondays to Fridays excluding Public Holidays.
§
Up to ten employees.
§
Minimal signage consisting of one flush wall sign measuring 6m x 1m.
The application was supported by a Statement of Environmental Effects, a Building Code of
Australia report by a private certifier, a certificate from Naros Air Conditioning and Sheet
Metal certifying that the mechanical ventilation has been installed in accordance with the
Australian Standard and an engineering report certifying the construction standard of the
mezzanine level.
The subject site is located in an established industrial area, within the Ourimbah Road
Industrial precinct. The subject site comprises of an industrial unit complex, which contains
24 actual units (Stage 1) and plans for 16 further individual units (Stage 2). It is a corner
allotment and as such has dual site entry.
The proposal is for the first approved use of Strata Unit 19 and has a total current Gross
Floor Area of 213m2 (165 ground/48 mezzanine). The factory unit is of concrete tilt up
construction with an insulated metal roof.
The adjoining property to the west of the site is a bus depot and the adjoining property to the
east of the subject site is vacant, however was approved as stage two of DA05/1335 for
Page 15
factory units in conjunction with the approval for the subject site (stage 1). DA12/0552 also
approved a different development over that part of the site previously allocated for Stage 2.
The different use authorises a car rental facility in association with the Gold Coast Airport.
Neither Stage 2 of DA05/1332 nor DA12/0552 have been acted upon to date.
Residential development to the south is separated from the subject site by a 7m wide
vegetated corridor.
Internal of the site the adjoining businesses are a Summit Press Printing (Strata Unit 18)
and a naturopathic business where essences are tested and mixed (Strata Unit 20).
As soon as the development application was lodged the primary issue with the application
was in relation to the emissions (smell) that the business was emitting that adjoining
businesses were experiencing.
Therefore on 19 April 2013 Council Officers specifically requested the applicant to undertake
an Air Quality Impact Assessment Report prepared by a suitably qualified air quality
investigation consultant in accordance with the NSW Office of Environment & Heritage's
Approved Methods for Modelling and Assessment of Air Pollutants in New South Wales.
The air quality investigation was required to incorporate the existing operations and include
air sampling for odour causing substances external to the premises (with particular attention
to neighbouring units in the immediate vicinity of the premises) that are associated with the
surfboard manufacturing process (eg styrene etc) as well as investigating the adequacy of
the existing mechanical ventilation system for removing odours/air impurities etc prior to
discharge to the external environment, not purely in relation to the indoor air quality within
the premises where the manufacturing is being carried out.
The report was required to include appropriate recommendations necessary to demonstrate
that the surfboard manufacturing process can be carried out without causing an odour
nuisance to any adjoining premises.
On 1 May 2013 the applicant provided Council with a copy of a quote for the required report
from Air Noise Environment which came to a cost of $5,900.
On 9 May 2013 the applicant questioned the need for the requested report due to the cost of
the report and the extent of works that SuperBrand had done to try to mitigate impacts to
neighbouring businesses (reviewed the roof cavity and filled obvious gaps between
businesses, and installed whirly birds to ensure ventilation overnight).
As a result of the applicant’s letter of 9 May 2013 Council Officers (from planning and
environmental health) arranged a site visit to inspect both the subject property and the
adjoining businesses affected by the smell.
The site visit occurred on 21 May 2013. Council Officer’s first met with the adjoining
business owners (on both sides of SuperBrand) who complained that the smell coming from
the SuperBrand Surfboard Manufacturing business at times was unbearable. They
complained that the smell was bad while the boards were being applied with resin but also
first thing in the morning after the premises had been closed up over night. The
complainants also were concerned that best practices were not being adopted and the
protective clothing was not being worn by the staff at Superbrand.
After meeting with the complainants Council staff met with the applicant and had a tour of
the premises and were shown what processes occurred within the premises. Generally
upstairs was being used for office space, storage space and to shape and sand the boards,
while downstairs the resin was being applied to the boards on a floor covered in sand. The
sand would then get thrown in the bin when it got too clogged with spilt resin. During the
inspection there was one staff member applying resin to a couple of boards. There was
Page 16
capacity for additional boards and additional staff in this area. Council Officers witnessed the
front roller doors being left open which seemed to be contributing to the smell of the resin
leaving the premises and affecting neighbouring businesses.
On 23 May 2013 SuperBrand were reported to WorkCover Authority of NSW by an
individual. WorkCover staff visited the site and issued the applicant with a list of Notices to
ensure compliance with the WorkCover legislation. WorkCover have stated as follows:
“I write to confirm WorkCover NSW investigated a complaint in the name of
Superbrand Pty Ltd at unit 19-25 Ourimbah Road Tweed Heads on 23/5/2013. As a
result of this investigation directions were given to instigate remedial measures to
ensure compliance with Work Health & Safety Legislation in particular Section 19 of
the Work Health & Safety Act 2011. Subsequent visits were made to the premises to
ensure compliance on two (2) occasions. In addressing the before mentioned matters
the organisation fully cooperated with WorkCover to achieve the required outcome.”
Whilst Council is pleased that WorkCover are now satisfied with the premises from their
legislative perspective Council Officers have stated that:
"Previous experience over many years in dealing with environment and health issues
concerning industries where NSW WorkCover has also been involved, has revealed
that WorkCover addresses issues that relate to the health and safety of employees in
the work place only. Environment and health issues or impacts that are external to the
operation of an industry such as noise, air pollution or offsite migration of contaminants
for example are to be resolved by the Appropriate Regulatory Authority. Therefore as
Council’s concerns relate to possible air pollution impacts that are external to the
workplace operations of this particular industry, it cannot be assumed that by resolving
any NSW WorkCover issues, the subject industry has complied or indeed negated
Council’s requirement for the provision of an Air Quality Impact Report."
On 30 May 2013 Council receives a complaint that states:
“These premises have been used to manufacture surfboards for approx 60 months and
the fumes, being resin fumes, from these activities are unbearable. During this time,
many of my employees have needed to leave work after inhaling the fumes, even as
early as 10 minutes after commencing work. Symptoms being experienced include
nausea, headache, eye irritation and blood shot eyes. There is also a constant white
dust that has been released from the premises into the common property of the
complex, i.e. car park. Clients which have visited our premises have also experienced
eye irritation and noted the strong fumes that present in our premises. During this time,
constant contact has been made with the tenants of the said premises and we had
been advised that the appropriate actions were being taken to minimise any of these
issues including appropriate extraction fans to be installed. We believe these fans have
been installed, however the fumes are still prevalent.”
On 5 June 2013 Council staff wrote to the applicant reinforcing the need for the Air Quality
Impact Assessment Report. Section 79C of the Environmental Planning & Assessment Act
1979 requires Council to consider the likely impacts of the development and the site
suitability. Council does not have a policy on air quality however there are many resources
available that have guided Council in this matter including:
·
Warringah Council - The Business of Air Quality guidelines
·
Department of Sustainability, Environment, Water, Population and Communities National Pollutant Inventory
·
NSW Office of Environment & Heritage's Local Government Air Quality Toolkit
Page 17
·
NSW Office of Environment & Heritage's Approved Methods for Modelling and
Assessment of Air Pollutants in New South Wales
·
NSW Office of Environment & Heritage's Environmental Information for the
Composites Industry
These guidelines explain that Fibreglass Reinforced Products (FRP’s) create emissions of
volatile organic compound (VOC’s) emissions and odours. The mains sources of such
pollution are:
·
Poor ventilation, filtration and discharge of particulates, dust, VOCs and odours.
This is often caused by inappropriate stack and ventilation system configurations,
fugitive emissions and inefficient air circulation and filtration.
·
Poor housekeeping practices such as failure to place lids on containers and
general poor storage and handling of containers.
·
Poorly maintained equipment and equipment malfunction or failure. Maintenance
of filtration systems and spray, sanding or polishing equipment contributes greatly
to overspray, inefficient product use and emission of particulates, dust, VOCs and
odours.
·
The technical ability of personnel manufacturing FRPs can sometimes be low.
·
Poor tool or equipment clean up. Commonly used cleaning products often
contain solvent and are hazardous due to high flammability and chlorine content.
Acetone, toluene, xylene and various alcohols are of particular concern.
Emulsifiers and citrus based solvents may also be toxic.
Council explained to the applicant that if the effects of air pollution originating from this
operation are not examined by a suitably qualified air quality investigation consultant,
Council is not undertaking due diligence in terms of legislative requirements and health,
safety and welfare of those who could be put at risk from the works being carried out at this
business.
On 9 July 2013 the applicant submitted a revised a copy of a quote for the required report
from Air Noise Environment which came to a cost of $8,100.
On 10 July 2013 Council agreed that the proposed methodology seemed sound provided
recommendations were made to remove paths that would allow emissions between
businesses and that the site audits occurred during worst case scenario conditions.
On 12 July 2013 the applicant advised Council as follows:
“.. I have been advised by the directors of Superbrand Pty Ltd that they are prepared to
meet the costs of the Impact Assessment Report if Council can provide a preliminary
approval for the development application, subject to the outcome of the report.
If Council is unable to provide preliminary development approval then Superbrand Pty
Ltd requires some degree of comfort that Council will not allow its activities to be
continually impinged by a vexatious complainant that has clearly driven the processes
of Council in this development application”
On 8 August 2013 Council responded as follows:
“Council cannot give any guarantee (or in principal approval) that by undertaking the
requested Air Quality Impact Assessment Report you will be granted an approval. To
do so would be unlawful and contrary to the Environmental Planning & Assessment
Act 1979 and Council’s Code of Conduct.
Page 18
Council has been requesting an Air Quality Impact Assessment Report since 19 April
2013. To date Council has been very lenient in allowing extra time for you to provide
such a report. However such leniency cannot continue indefinitely. Please advise
Council within 14 days of when the requested Air Quality Impact Assessment Report
will be submitted to Council.
Upon receipt of the requested report a determination of your application will be made.
If an approval is issued you will be held to comply with the conditions of consent
imposed on you in regards to air quality (probably as recommended within the air
quality report), hours of operations and any other standard conditions. If you were to
breech any such conditions Council would follow this up as a compliance matter.
If an approval was issued and Council still received complaints about the business
operations from neighbours each individual complaint would be assessed on its merits
having regard to the conditions imposed on the consent. Council would act on
complaints if they had merit.
Your letter of 12 July 2013 also asks why Superbrand are being asked to provide the
Air Quality Impact Assessment Report when other surfboard manufacturers have not
been asked to do the same thing.
Over recent years Council has been receiving more and more complaints about air
pollution from various businesses including surfboard manufacturers and accordingly
Council has been undertaking more vigorous assessments of potential air pollution
causing activities against best practice guidelines.
I can assure you that Council are requesting the Air Quality Impact Assessment Report
to satisfy the legislative requirements and Council Officers concerns not just as a result
of the complaints received in regards to your business. I can also advise that Council
Officers have been to your site on numerous occasions and experienced a strong
smell coming from the premises, thus necessitating the Air Quality Impact Assessment
Report…”
On 20 August 2013 the applicant responded to the above with disappointment and an
indication that further quotes are being sought for the work.
On 28 August 2013 the applicant made representations to the elected Councillors again
questioning the need for the requested Air Quality Impact Assessment.
Accordingly it was considered prudent to report this matter to Council based on the
information submitted within the application.
Based on the information currently submitted by the applicant Council Officers are unable to
recommend approval of the application as the applicant has not demonstrated that the
business will not have an impact on adjoining businesses. Therefore the application is
recommended for refusal and for the Council to resolve to instigate compliance action to
have the business cease operating from the subject site and rectify illegal works undertaken
to the mezzanine level.
Page 19
SITE DIAGRAM:
Page 20
DEVELOPMENT/ELEVATION PLANS:
Unit 19 and its associated car parking spaces:
Page 21
Page 22
Page 23
Considerations Under Section 79c Of The Environmental Planning And Assessment
Act 1979:
(a)
(i)
The provisions of any environmental planning instrument
Tweed Local Environmental Plan 2000 (TLEP 2000)
Clause 4 - Aims of the Plan
Clause 4 illustrates that the aims of the TLEP 2000 are to give effect to the
desired outcomes, strategic principles, policies and actions of the Tweed Shire
2000+ Strategic Plan. The vision of the plan is “the management of growth so
that the unique natural and developed character of the Tweed Shire is retained,
and its economic vitality, ecological integrity and cultural fabric is enhanced”.
Clause 4 further aims to provide a legal basis for the making of a DCP to provide
guidance for future development and land management, to give effect to the
Tweed Heads 2000+ Strategy and Pottsville Village Strategy and to encourage
sustainable economic development of the area which is compatible with the
Shire’s environmental and residential amenity qualities.
The subject development application is capable of being considered suitable if
the application were supported by an Air Quality Impact Assessment Report
which demonstrates the business can operate without negatively affecting others
within the Ourimbah Road, Industrial development area.
Clause 5 - Ecologically Sustainable Development
The TLEP aims to promote development that is consistent with the four principles
of ecologically sustainable development, being the precautionary principle,
intergenerational equity, conservation of biological diversity and ecological
integrity and improved valuation, pricing and incentive mechanisms.
The subject proposal is considered consistent with the above criteria, as the
development is not likely to have significant ramifications for ecologically
sustainable development.
Clause 8 - Consent Considerations
This clause specifies that the consent authority may grant consent to
development (other than development specified in Item 3 of the table to clause
11) only if:
(a)
it is satisfied that the development is consistent with the primary
objective of the zone within which it is located, and
(b)
it has considered that those other aims and objectives of this plan (the
TLEP) that are relevant to the development, and
(c)
it is satisfied that the development would not have an unacceptable
cumulative impact on the community, locality or catchment that will be
affected by its being carried out or on the area of Tweed as a whole.
In this instance, the subject site is zoned 4(a) Industrial, the primary objective of
which is to provide land primarily used for industrial development and to facilitate
economic activity and employment generation.
It is anticipated that developments such as this are located within Industrial
Zones. However, the applicant needs to demonstrate that his business practices
can occur without negatively affecting others particularly by way of smell. An Air
Quality Impact Assessment Report would ensure the business operated in
Page 24
accordance with best practice guidelines and that all possible building
modifications were undertaken to ensure no adjoining premises are negatively
affected by the proposed business operations.
Without the benefit of an Air Quality Impact Assessment Report Council staff are
unable to ensure the development won’t impact negatively on other businesses
within the vicinity of the site.
Clause 11 - Zone Objectives
The site is zoned 4(a) Industrial which has the following objective:
To provide land primarily used for industrial development and to facilitate
economic activity and employment generation.
The secondary objective is to allow non industrial development which either
provides a direct service to industrial activities and their workforce or which due to
its type, nature or scale is inappropriate to be located in another area.
The proposed development is considered capable of compliance with these
objectives subject to the lodgement of an Air Quality Impact Assessment Report
which can recommend the necessary building modifications and work practices to
mitigate the impacts associated with the proposed surfboard manufacturing
business.
The site also has a small slither of land unzoned. The original Development
Application which approved the industrial sheds addressed this zoning and
authorised the sites layout. No further assessment is considered necessary in
this instance.
Clause 15 - Essential Services
All essential services are made available to the subject site.
Clause 16 - Height of Building
The subject site exhibits a 3 storey height limit. The proposal development is to
occur within an existing 2 storey configuration and does not exceed the 3 storey
limit.
Clause 17 - Social Impact Assessment
Having regard to Tweed DCP Section A13 the proposed development would not
require the lodgement of a Socio Economic Impact Assessment.
The proposal is not considered to generate any significant social impact.
Clause 35 - Acid Sulfate Soils
The subject site is mapped on Councils GIS system as being affected by acid
sulfate soils (Class 3). The application is for the first approved use of the tenancy
and does not propose any excavation of the natural ground surface. Therefore no
Acid Sulfate Soils Management Plan is required.
Clause 47 – Advertising Signage
Clause 47 relates to signage and aims to regulate the impact of signage
throughout the Shire.
The proposal involves one flush wall signage panel associated with the factory
unit tenancy which is consistent with that supplied for other tenancies within the
complex.
Page 25
Total signage area equates to 6m2 which is acceptable.
The signage is considered to be compatible with the existing signage at the
industrial complex. It is moderate in scale and does not project above the top of
the tilt-up panel concrete wall.
The signage is not illuminated and is located entirely within the signage panel
designated for the tenancy. Overall, signage is considered compliant with Clause
47 of the LEP.
State Environmental Planning Policies
SEPP (North Coast Regional Environmental Plan) 1988
Clause 32B - Coastal Lands
The subject site is located on lands to which the NSW Coastal Policy 1997 applies.
This proposal is considered compliant with the provisions of the NSW Coastal
Policy, the Coastline Management Manual and the North Coast Design Guidelines.
The manufacturing unit will not obstruct public foreshore access or result in
overshadowing of the nearby beach or open space areas. This has also been
considered previously in the original development application approving the
complex (DA05/1335).
The proposal is considered to comply with Clause 32B of the SEPP NCREP 1988.
Clause 47 – Principles for Commercial and Industrial Development
The location of an industrial factory unit in an existing industrial zone in Tweed
Heads is in accordance with the objectives of this clause in that it maintains the
integrity of the main business area in this location, and provides for creation of an
additional business on land which is zoned for such a purpose. It also strengthens
the multi-functionality of the industrial area by its proximity to other industrial
operations. All relevant services are available to the site and the site is located in
proximity to existing local and regional road networks. However, the application
has not adequately demonstrated that the business can function without having a
negative impact on surrounding properties by way of smell.
The proposal is considered capable of compliance with the strategic aims and
objectives contained generally within the North Coast Regional Environmental
Plan 1988 subject to the lodgement of Air Quality Impact Assessment Report
which can recommend the necessary building modifications and work practices to
mitigate the impacts associated with the proposed surfboard manufacturing
business.
SEPP 64 – Advertising and Signage
There are no specific provisions for ‘business identification signs’ within this SEPP.
The SEPP deals with ‘Wall Advertisements’ and states that there should only be
one per elevation of a building. However, this is not the definition of the proposed
signage.
An assessment against Schedule 1 of the SEPP indicates that the proposed
signage (flush wall sign) is compatible with the industrial/commercial character of
the area, it does not detract from the amenity of any special areas, it does not
jeopardise any views or vistas, and is of an appropriate form and scale for the
streetscape and the subject building. There is no illumination and no safety
hazards as such.
Page 26
Therefore, the proposal is considered to comply with the provisions of SEPP 64.
State Environmental Planning Policy No. 71 – Coastal Protection
The subject site is located on land to which the above policy applies. However, the
site is not identified as a sensitive coastal location under the policy, and therefore a
referral to the Department of Planning and Infrastructure is not required.
As the proposal is for the first approved use of an industrial unit, the matters for
consideration under SEPP71 have already been considered as part of the approval
for the existing factory building (DA05/1335).
The proposal is considered to generally comply with the provisions of SEPP 71.
(a)
(ii)
The Provisions of any Draft Environmental Planning Instruments
The Draft Tweed Local Environmental Plan (LEP 2012) was placed on reexhibition in late 2012/early 2013. The post exhibition version of the Draft Tweed
LEP 2012 with amendments as resolved by Council on 31 May 2013 has been
forwarded to Parliamentary Counsel via the Department of Planning and
Infrastructure.
As such, the Draft Tweed Local Environmental Plan is considered to be “certain
and imminent” in terms of previous legal precedent and as such has determining
weight.
The Draft LEP proposes to re-zone the subject site to IN1: General Industrial.
There is a 10m height limit and the minimum allotment size for this draft zone is
2000m2.
The building has already been approved under a separate application and the
proposal does not modify the building externally.
The proposed factory for the use of surfboard manufacturing is described as
‘Industry’ which, within the draft IN1 zone is a permissible form of development
under Item 3.
Please note that the unzoned land portion of the site is draft zoned IN1 as well.
(a)
(iii) Development Control Plan (DCP)
Tweed Development Control Plan Section A2 – Site Access and Parking code
Tenancy 19 has a proposed GFA of 325m2 (165m2 at ground level + 160m2 at the
increased mezzanine which is used for manufacturing, storage and office space).
The tenancy was defined as “industrial” and allocated 2 spaces under SP80033
(one being a car space outside the tenancy and the second being a car port
outside Lot 21).
The tenancy increases the GFA from 213m2 (excluding car spaces) to 325m2
(excluding car spaces) and would require one additional car space for the
increased GFA on the mezzanine level.
DA05/1335 used the “industry” rate under DCP A2 (1 space/100m2 GFA). The
application approved 106 spaces based on a GFA of 7788m2 (28 surplus spaces).
The Section 96 for this consent approved 91 spaces (based on a GFA of 8141sqm,
resulting in a surplus of 10 spaces for the entire site).
DA12/0552 approved a different development (car rental facility associated with
gold coast airport) over the Stage 2 part of DA05/1335.
Page 27
Neither Stage 2 of DA05/1332 nor DA12/0552 has been built to date which means
that Stage 1 of DA05/1332 may be a standalone development without the surplus
spaces as indicated above.
If Stage 1 of DA05/1332 becomes a standalone development the total approved
GFA would be 5019m2 requiring 40 spaces on site (1 per 100m2 less 20% for
ESD). There are 41 spaces shown on the Strata Plan for this section of the site
(SP80033).Therefore 1 space credit.
The following is a list of DA’s that have been approved over Stage 1:
·
DA07/0832 – Strata Unit 11 - Salt Packaging – Warehouse (required
less parking than allocated so +.92 spaces back into car parking pool).
Therefore 1.92 spaces credit.
·
DA08/0183 – Strata Unit 21 – Storage Equipment Tweed Byron
Aboriginal Land Council – Industry (required the same parking as
approved by DA05/1332). Therefore 1.92 spaces credit.
·
DA08/0449 – Strata Unit 24 – Dance Studio (Recreational Facility) – car
parking assessment deemed acceptable due to hours of operation.
Therefore 1.92 spaces credit.
·
DA11/0163 – Strata Unit 9 – Surfboard Manufacturing Business (required the same parking as approved by DA05/1332 but one extra
space given increased GFA). Therefore 0.92 spaces credit.
·
DA12/0010 – Strata Unit 12 – Alcohol Distribution - (required the same
parking as approved by DA05/1332). Therefore 0.92 spaces credit.
·
DA12/0608 – Strata Unit 8 – Printing Company (required the same
parking as approved by DA05/1332 but one extra space given
increased GFA). Therefore 0.08 short.
As such, there is no carparking credit left on site if only Stage 1 proceeds. Each
application would need to be addressed on its merits in regards to car parking.
The applicant has stated as follows in regards to the shortfall of car parking:
Page 28
·
There are 7 unallocated car spaces located in the front of the subject
premises;
·
The development is of a low key nature;
·
The demand for parking generated by the development is minor. The
majority of the contact with the customer is made via e-mail, and the
boards are sold out of surf shop contacts within the locality;
·
The proposed mezzanine development is to be used for non traffic
generating use being storage of surfboards. The need for storage of the
surfboard is high, and additional room is needed away from the
manufacturing machinery;
·
The development would not generate any heavy vehicle traffic or create
any demand for additional delivery vehicles;
·
The industrial complex is well served with car parking spaces.
Numerous site inspections have been undertaken at the complex and
parking has been readily available on all site visits;
·
The site contains two road frontages and ample on street parking in
close proximity to the premises.
The above comments are not entirely concurred with. The mezzanine level is
predominantly used for the manufacturing of the boards, sanding and shaping the
boards. This use generates staff and is not just storage space.
The complex does not appear well serviced with car parking spaces. Given the car
spaces are allocated to businesses many of the spaces are taken up by employees
and visitors coming to the site are often forced to find parking on the street which is
not always readily available due to the busy nature of the area.
In regards to this application the applicant has indicated that the business
employees up to 10 employees (as detailed verbally at Council’s site visit in May
2013). The industry car parking rate of 1 space for every 100m2 is a combined
staff and customer average.
The subject site could not adequately cater for staff and customers if every
business employed staff of those numbers. However as this is an average and the
application triggers the extra parking for the additional mezzanine level there is an
argument to support the development despite the technical short fall of the one on
site car parking space.
It should also be noted the majority of the units within the complex are still
operating without first use development consent as required by DA05/1332 and if
they were all made to lodge development applications Council may find additional
mezzanines have been built without consideration for the additional parking that
this would generate.
DCP A4 – Advertising Signs Code
The applicant has noted that signage will comprise of a single 6m2 signage panel
above the factory unit tenancy. This is consistent with all of the other factory units
within the complex.
Signage on the above flush wall signage panel must not exceed the background
dimensions of the panel. As the proposed signage does not exceed the
background dimensions, and does not exceed the maximum number of five signs
per premises, the proposed signage is considered to be consistent with the
provisions of the DCP.
A standard condition will apply to cater for any possible changes to signage that
may occur in the future.
(a)
(iv) Any Matters Prescribed by the Regulations
Clause 92(a) Government Coastal Policy
The proposed development will not negatively impact upon the Government
Coastal Policy.
Clause 92(b) Applications for demolition
No demolition is proposed within this application, therefore Clause 92(b) is not
applicable
Clause 93 Fire Safety Considerations
Page 29
The application proposes a change of use (first approved use) and the construction
of a mezzanine level. The mezzanine level has been constructed without approval
and would require a Building Certificate to legitimise its construction.
Clause 94 Buildings to be upgraded
The building could comply with the Building Code of Australia subject to suitable
conditions of consent if Council wanted to approve the development.
(a)
(v)
Any coastal zone management plan (within the meaning of the Coastal
Protection Act 1979),
Tweed Shire Coastline Management Plan 2005
The subject site is not located within an area that is affected by this management
plan. Therefore, no further assessment is required.
Tweed Coast Estuaries Management Plan 2004
Coastal Zone Management Plan for Cobaki and Terranora Broadwater
(adopted by Council at the 15 February 2011 meeting)
(b)
The likely impacts of the development and the environmental impacts on
both the natural and built environments and social and economic impacts
in the locality
Context and Setting
The proposed development will be situated within an established industrial area in
Ourimbah Road, Tweed Heads. The proposed development comprises of the use
of an existing industrial unit for surfboard manufacturing and storage. The
application is considered capable of support provided that a suitable Air Quality
Impact Assessment report could be produced detailing valid recommendations and
conditions.
Odour
To understand the issue surrounding odour below is the extract from Council’s
letter to the applicant dated 5 June 2013:
Council has reviewed the Policy Documents which provide guidelines for the
assessment of similar businesses.
Below is a summary of that Policy Information
Section 79C (1) of the Environmental Planning and Assessment Act 1979
states that in determining a development application, a consent authority is
to take into consideration such of the following matters as are of relevance
to the development the subject of the development application:
Page 30
(b)
the likely impacts of that development, including environmental
impacts on both the natural and build environments, and social and
economic impacts in the locality,
(c)
the suitability of the site for the development, and
(d)
any submissions made in accordance with this Act or the regulations.
Further, as per Section 4.7 of Council's Development Application Guide the
applicant is required to show that the proposal will not cause or be affected
by air or noise emissions. To date your application has not adequately
addressed air pollution concerns.
Although Council does not have a policy on air quality, there are many
resources available including:
·
Warringah Council - The Business of Air Quality guidelines
·
Department of Sustainability, Environment, Water, Population and
Communities - National Pollutant Inventory
·
NSW Office of Environment & Heritage's Local Government Air Quality
Toolkit
·
NSW Office of Environment & Heritage's Approved Methods for
Modelling and Assessment of Air Pollutants in New South Wales
·
NSW Office of Environment & Heritage's Environmental Information for
the Composites Industry
Warringah Council has developed "The Business of Air Quality" guidelines
that provide minimum standards of controls for air quality relevant to
businesses. The program was a partnership between Warringah Council
and the NSW State Government designed to educate local industrial and
light manufacturing businesses on air quality pollution issues and details the
best ways for individual businesses to undertake a wide range of
manufacturing processes while minimising their air pollution emissions. The
guidelines and other educational materials have been made available for
use by all councils in NSW.
In Section 5.5 - Fibreglass Reinforced Products (FRPs) and Composites
Production, best practice guidelines have been outlined. The industry FRPs
(note the use of this term includes composites production, structural
products made of a combination of different types of materials where the
performance of a finished composite is far stronger than that of any of the
individual components) are used in the manufacture of a diverse range of
products including boats, surfboards, bathroom fixtures, swimming pools,
building materials, sporting equipment, appliances, storage tanks and
piping, simulated marble products and motor vehicles. The versatility of
FRPs in manufacturing has allowed for development of new applications for
FRPs.
The guide explains that the FRP industry is experiencing significant growth.
New products continue to be developed and produced for greater durability
and strength. However this growth has triggered serious environmental and
health concerns, particularly in businesses unwilling to upgrade to new more
efficient technologies.
The main emissions of concern in FRP manufacture are volatile organic
compound (VOC) emissions and odours. These can have adverse impacts
offsite if a business is poorly managed or controlled. Odour is the most
common cause of complaint for businesses producing FRPs.
Particulate and dust emissions are also a concern particularly during the
moulding and finishing processes. Activities such as grinding, polishing and
Page 31
sanding and the cutting of matting for use in the laminating process can
create excessive particulate and dust emissions.
The main sources of pollution in FRP manufacture include:
·
Poor ventilation, filtration and discharge of particulates, dust,
VOCs and odours. This is often caused by inappropriate stack
and ventilation system configurations, fugitive emissions and
inefficient air circulation and filtration.
·
Poor housekeeping practices such as failure to place lids on
containers and general poor storage and handling of containers.
·
Poorly maintained equipment and equipment malfunction or
failure. Maintenance of filtration systems and spray, sanding or
polishing equipment contributes greatly to overspray, inefficient
product use and emission of particulates, dust, VOCs and
odours.
·
The technical ability of personnel manufacturing FRPs can
sometimes be low.
·
Poor tool or equipment clean up. Commonly used cleaning
products often contain solvent and are hazardous due to high
flammability and chlorine content. Acetone, toluene, xylene and
various alcohols are of particular concern. Emulsifiers and citrus
based solvents may also be toxic.
The most common VOC used in the manufacture of FRPs is styrene
(ethenylbenzene). Styrene is a highly volatile monomer which is used in
polyester and vinyl resins. Most of the resins and catalysts used in the
manufacture of FRPs are also highly flammable.
The NSW Office of Environment & Heritage's Environmental Information for
the Composites Industry advises that extraction systems that simply dilute
the concentration of styrene in the exhaust by adding air do not reduce the
total VOC emission. A significant reduction in styrene emissions can be
achieved by reducing emissions at the source.
It is noted that the Department of Sustainability, Environment, Water,
Population and Communities' National Pollutant Inventory advises that
styrene affects the central nervous and respiratory systems, including
depression, concentration problems, muscle weakness, fatigue,
unsteadiness, narcosis, defatting dermatitis, and nausea. Exposure may
also irritate the nose, throat, and eyes, including severe eye injuries. The
International Association for Research into Cancer (IARC) classifies styrene
as 'possibly carcinogenic to humans (Group 2B)'. It enters the body by
absorption into the blood through the lungs, stomach, skin or eyes.
It is noted that the complainants have advised of headaches, nausea, and
also skin, eye and throat irritations from pollutants exiting the subject site
directly into their units and in common areas.
As per Section 2.3 of the Local Government Air Quality Toolkit (Module 3:
Guidance note—Composite structural products), a sense of smell cannot be
used to judge whether the exposure is of concern with respect to toxicity.
People complaining about chemical odours may well be seeking assurances
Page 32
that the level of exposure is not hazardous to their health. In situations
where there is any doubt about possible health implications, an assessment
of potential impacts should be carried out using the techniques described in
the NSW Office of Environment & Heritage's Approved methods for the
modelling and assessment of air pollutants in NSW (2005). The technical
assessment described in this document will generally require specialist
input.
It's clear that you have spent considerable funds trying to rectify the
problems experienced by occupants of the neighbouring units however the
works undertaken to date by the applicant have been improvised. The
complainants are still being affected by the operation of the unauthorised
use.
If the effects of air pollution originating from this operation are not examined
by a suitably qualified air quality investigation consultant, Council is not
undertaking due diligence in terms of legislative requirements and health,
safety and welfare of those who could be put at risk from the works being
carried out at this business.
You are therefore required to submit the following information for review and
approval prior to your application being determined. Failure to provide such
information will likely result in a recommendation for refusal of the
development application.
1.
An Air Quality Impact Assessment Report prepared by a suitably
qualified air quality investigation consultant in accordance with the
NSW Office of Environment & Heritage's Approved Methods for
Modelling and Assessment of Air Pollutants in New South Wales shall
be submitted to Council's Environmental Health Officer for
consideration.
The air quality investigation shall incorporate the existing operations
and include air sampling for odour causing substances external to the
premises (with particular attention to neighbouring units in the
immediate vicinity of the premises) that are associated with the
surfboard manufacturing process (eg styrene etc) as well as
investigating the adequacy of the existing mechanical ventilation
system for removing odours/air impurities etc prior to discharge to the
external environment, not purely in relation to the indoor air quality
within the premises where the manufacturing is being carried out.
The report shall include appropriate recommendations necessary to
demonstrate that the surfboard manufacturing process can be carried
out without causing an odour nuisance to any adjoining premises.
To date this report has still not been provided despite Council requesting this since
19 April 2013. Accordingly the application is recommended for refusal.
Waste
Waste generated from the business is dust from sanding the surfboards which is
collected in two dust extraction units located on the upper floor where the dust is
collected in bags and disposed of in bins on the site. Standard conditions could be
applied.
Noise and Vibration
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A previous application for a surfboard manufacturing business (within a different
unit) was supported by a Noise Impact Assessment Report. No such report has
been provided for this application although noise has not appeared to be an issue
for adjoining businesses.
(c)
Suitability of the site for the development
Surrounding Land Uses/Development
The subject site is zoned 4(a) Industrial and is within an established industrial
area. The subject site is zoned to facilitate industrial uses which includes
surfboard manufacturing.
The surrounding development is predominately
Industrial and specialist developments that due to their type nature or scale are
suited to an Industrial zoning, however this development needs to demonstrate
that it will not have an unreasonable impact on adjoining businesses by way of
odour (air quality).
(d)
Any submissions made in accordance with the Act or Regulations
Under Tweed DCP Section A11 – Public Notification of Development Proposals
the proposal was not required to be advertised or notified for public comment.
However, given the compliance history associated with this application Council
Officers alerted the complainant about the development and invited comments
based on the application as displayed on Council’s Online DA Tracker.
Accordingly Council has received objections from two neighbouring businesses.
The nature of the complaints are summarised below:
Council has received written objections from the two adjoining businesses.
The first objection states as follows:
"With reference to the above application number, please acknowledge this
letter as an objection to this application. I am the director of the business
located adjacent to the above premises and the owner of XXXX. At no time
were we consulted in this application to commence a surfboard
manufacturing business directly adjacent to us
It should be noted that the owner’s consent provided with the application
does not meet legal requirements in that the consent from the unit owner
and the Body Corporate only relate to the construction of the mezzanine,
whereas the application is clearly for the establishment of the Surfboard
Manufacturing Use, The use of the premises is not addressed in the Owners
Consent letters or Body Corporate minutes.
These premises have been used to manufacture surfboards for approx 60
months and the fumes, being resin fumes, from these activities are
unbearable. During this time, many of my employees have needed to leave
work after inhaling the fumes, even as early as 10 minutes after
commencing work. Symptoms being experienced include nausea,
headache, eye irritation and blood shot eyes. There is also a constant white
dust that has been released from the premises into the common property of
the complex, ie carpark. Clients which have visited our premises have also
experienced eye irritation and noted the strong fumes that present in our
premises. During this time, constant contact has been made with the
tenants of the said premises and we had been advised that the appropriate
actions were being taken to minimise any of these issues including
Page 34
appropriate extraction fans to be installed. We believe these fans have been
installed, however the fumes are still prevalent.
We are a business that has been present in the local community for
approximately 15 years and feel that our concerns should be heard."
Council Assessment:
In regards to owners consent the owner’s consent letter stated:
“Chashell Pty Ltd Superannuation Fund is the owner of the above lot, and
Chashell Pty Ltd as trustee for the fund, hereby gives consent to the current
tenant Superbranded Pty Ltd to construct a mezzanine within Lot 19.”
If Council wants to approve this application the owner’s consent would need to be
expanded authorising the lodgement of DA13/0132 detailing that the application
seeks consent for the ongoing use of the premises, the mezzanine construction,
and signage.
In regards to the odour complaints this complaint reinforces Council’s
assessment that an Air Quality Impact Assessment report is required.
The second objection comprises multiple e-mails of complaint (dating back to
November 2012) regarding the subject business and the issues raised are
summarised as follows:
Comments dated 12 Feb 2012:
·
There are toxic resin fumes leaching into our tenancy which are causing
illness, red eyes and flushed skin.
·
The adjoining tenant on the other side has advised that he experiences red
eyes and can detect resin fumes when he attends his office in the morning.
·
There is no filtration on the extraction unit that extracts resin fumes from the
said premises...and these toxic fumes are just pumped into the atmosphere.
·
There is no air lock between the "glassing room" and the outside car
park...the door to the said room is left open at all times therefore allowing
fumes to escape into the public area and be carried by the wind in any
direction.
·
Some staff do not seem to be wearing any protective clothing and/or
breathing apparatus...I would think this would be a serious work cover issue
·
The storage of "Highly Flammable" resin in just an open area adjacent to
the roller door and can be viewed from the car park...if there was a spill
there is no facility for containment and is a serious fire risk.
·
The fumes from the resins used are highly toxic and are accumulative and
are life threatening.
Comments dated 12 Feb 2013:
·
Question..what filters are used and where? (when used)..how are these
filters cleaned?..how are these filters disposed of when passed their use
by?...what controls are in place with the disposal of toxic byproducts e.g. the
sand from the floor (used in the glassing room) and other associated
materials
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·
The emissions from the manufacturing process ie. blank shaping/sanding,
fibreglass, resin and catalyst are all contributing to the carbon footprint and
greenhouse gases.
·
As a point of reference...James Hardy and the asbestos cover up was a
sleeping giant!!...whilst a different business, the materials used in the
manufacture and glassing of surfboards are toxic and a threat to human
health.. this may well be another sleeping giant!?
Comments dated 16 April 2013:
·
Their statement ... “the additional mezzanine area is solely for storage
purposes” is not true and correct. Please refer to site plan “level one“ ...and
as I would expect, councils physical inspection.
·
I do not accept that the Mechanical Ventilation system installed is sufficient
or adequate for the safe operation of the subject business.
·
Site Access and Parking: The applicants statement is totally untrue,
incorrect and farcical. The said business at any one time occupies up to 7 or
more parking spaces depending on their work load on that day. The site
does not provide excess car parking spaces. There are NOT “seven
‘unallocated’ car spaces located in front of the subject premises” The
development is NOT of a low -key nature. The demand for parking
generated by the development is greatly increased. Who conducted the
numerous site inspections?...when and who by? Ask any owner or tenant
regarding the parking problems created by the said business and the above
will be confirmed.
·
I draw your attention to the statement by Coastline Building Cert Div
...”Health and amenity” point three...Natural ventilation via a roller door is
totally inadequate and there should be some form of air lock dividing the
public and the operation. I do not accept their statement “the requirements
applicable to the surfboard manufacturing industry having regard workplace
health and safety etc etc” is at all adequate and within any accepted safety
levels.
Comments dated 14 May 2013:
·
We are having a very serious problem with resin fumes leaching into our
premises from #19...I have also advised the landlord of the said
premises...that the matter is now becoming critical...also the car parking is
causing extreme stress with a number of unit holders...due to the staff of
unit 19 occupying any spot they like!!.....
Comments dated 14 May 2013:
·
We are having a very serious problem with resin fumes leaching into our
premises from #19...I have also advised the landlord of the said
premises...that the matter is now becoming critical...also the car parking is
causing extreme stress with a number of unit holders...due to the staff of
unit 19 occupying any spot they like!!.....
Council Assessment:
The odour complaints reinforces Council’s assessment that an Air Quality Impact
Assessment report is required.
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Many comments above also relate to possible Work Cover matters which Work
Cover have now stated as being satisfactory for their legislation.
(e)
Public interest
The application as lodged (without an Air Quality Impact Assessment Report) is
not considered in the public interest.
OPTIONS:
1.
Refuse the Development Application in accordance with the reasons submitted in this
report and instigate compliance action to have the business cease operating from the
subject site; or
2.
Allow the applicant an additional 30 days to produce an Air Quality Impact Assessment
Report and reconsider the application after receipt of that Report. If the report is not
received within 30 days refuse the Development Application (under staff delegation)
based on the reasons as outlined in this report; or
3.
Request conditions of consent be brought forward to the next Council meeting to
enable the application to be considered for approval.
CONCLUSION:
Whilst the subject application could be considered a suitable development for the site the
applicant has failed to provide sufficient documentation to demonstrate that the business
practices of the proposed surfboard manufacturing can operate without adversely affecting
the adjoining properties.
An Air Quality Impact Assessment Report is considered crucial to ensure that the building is
modified to avoid vapours exiting the site and affecting adjoining properties. The Air Quality
Impact Assessment Report would also need to make recommendations on the practices of
the business to ensure best practice guidelines are being satisfied.
Without this report Council Officers are not convinced that the proposed development is
suitable for the subject site given the proximity to other premises.
a.
Policy:
Not Applicable.
c.
Legal:
If Council were to refuse the development application the applicant would have a right of
appeal to the NSW Land & Environment Court.
Not Applicable.
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Nil
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21
[PR-CM] Review of Environmental Factors PTV12/0022 for Construction of
Tennis Courts (Including Lighting) and Associated Car Parking, Pedestrian
Access and Drainage at Lot 301 DP 1125090 Overall Drive, Pottsville
SUBMITTED BY:
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
Council’s Engineering and Operations Division has made application for approval under Part
V of the Environmental Planning and Assessment Act, 1979, to undertake the construction
of eight tennis courts (including lighting) and associated car parking, pedestrian access and
drainage. The works are necessary to provide new facilities for the Pottsville Tennis Club
who have been asked to move from their existing premises by the landowner (NSW
Department of Lands).
The site is zoned 7(l) Environmental Protection (Habitat) and the proposed development is
permissible without consent under Part 3, Division 12 (Parks and other public reserves),
Clause 65 of SEPP (Infrastructure) 2007. Clause 65(3)(b) of the SEPP states that
development for the purposes of outdoor recreational facilities, including single storey car
parks may be carried out by or on behalf of a Council without consent on a public reserve
under control of or vested in the Council. Tweed Shire Council is the consent authority for
the application.
In summary, the works would involve:
Tennis courts:
Construction of eight full size tennis courts and one half size court with hit up wall in the
south western corner of the subject site. Note that the site is already used as a cricket
ground. Courts would be constructed on a 300mm concrete slab with a synthetic grass
surface. Black galvanised PVC coated chain wire fencing will be provided around each
court to a height of 3.6m. Four courts are proposed to be constructed initially, with the
remaining courts constructed depending on demand.
Tennis court lighting:
Six metal halide lights per court will be installed. The lights would have a minimum
mounting height of 6.7m. Lamp types will be subject to final detailed design.
Carparking
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A 25 space car park is proposed (24 spaces and one disabled space) covered with bitumen
seal.
Footpaths
A new concrete pedestrian footpath is proposed linking the existing path and proposed car
park with the proposed tennis courts. Footpath would range in width from 1.2m – 2.5m.
Fill
1760 cubic metres of fill is required for the sub-base/base of the tennis courts and road
construction.
Drainage
Car park drainage will be directed to a grass swale which would be linked to an existing
agricultural drain. Grass filter strips will be located between the tennis courts and the
property boundary allowing infiltration of any surface water from the courts. The site is large
and considerable permeable area will remain to assist with infiltration of water.
Construction would be staged, with carparking, pedestrian access and drainage
commencing in conjunction with the construction of four tennis courts with lighting. The
additional four courts would be constructed at a later date, if demand existed.
The proposed development is not considered to have a significant impact upon the
environment including critical habitat or threatened species, populations or ecological
communities, or their habitats. Accordingly, an Environmental Impact Statement or a
Species Impact Statement is not required.
The application has been the subject of considerable community interest and is being
reported to Council at the request of Councillor Milne, with a recommendation for approval.
RECOMMENDATION:
That:
A.
Following assessment of the Review of Environmental Factors for the
Blackrocks Sports Field (tennis courts, including lighting and associated car
parking, pedestrian access and drainage) it is determined that the activity is not
likely to have a significant impact on the environment (including critical habitat)
or threatened species, populations or ecological communities, or their habitats.
B.
PTV12/0022 application for the Blackrocks Sports Field at Lot 301 DP 1125090
Overall Drive, Pottsville be approved subject to the following conditions:
1.
The development shall be completed in general accordance with the Review
of Environmental Factors prepared by Tweed Shire Council dated
December 2012 and additional information including the Draft Monitoring
Plan submitted to Council 19 September 2013, except where varied by these
conditions.
[PTV0010]
2.
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Prior to commencement of work all required sedimentation and siltation
control measures are to be installed and operational to the satisfaction of
the General Manager or his delegate. Erosion and sedimentation control
devices shall be installed in accordance with the publication, "Managing
Urban Stormwater - Soil and Construction", prepared by the NSW
Department of Housing. All erosion and sedimentation controls shall be
maintained throughout the period of construction.
[PTV0020]
3.
All work associated with this approval is to be carried out so as not to
cause a nuisance to residents in the locality from noise, water or air
pollution.
[PTV0030]
4.
All necessary precautions shall be taken to minimise impact from dust
during filling operations from the site and also from construction vehicles.
[PTV0040]
5.
Construction and/or demolition site work including the entering and leaving
of vehicles is limited to the following hours, unless otherwise permitted by
Council:
Monday to Saturday from 7.00am to 6.00pm
No work to be carried out on Sundays or Public Holidays
The proponent is responsible to instruct and control subcontractors
regarding hours of work.
[PTV0050]
6.
All reasonable steps shall be taken to muffle and acoustically baffle all
plant and equipment. In the event of complaints from the neighbours,
which Council deem to be reasonable, the noise from the construction site
is not to exceed the following:
A.
Short Term Period - 4 weeks.
LAeq, 15 min noise level measured over a period of not less than 15
minutes when the construction site is in operation, must not exceed
the background level by more than 20dB(A) at the boundary of the
nearest likely affected residence.
B.
Long term period - the duration.
LAeq, 15 min noise level measured over a period of not less than 15
minutes when the construction site is in operation, must not exceed
the background level by more than 15dB(A) at the boundary of the
nearest affected residence.
[PTV0060]
7.
Approval is given subject to location of, and / or any necessary
modifications to any existing public utilities situated within or adjacent to
the works.
8.
Disturbed road and access pavement, verge or property accesses shall be
re-instated as required, in accordance with Council’s Development Design
and Construction Specifications.
9.
Prior to commencement of works all actions prerequisite works required at
that stage, as required by other conditions or approved Management Plans
or the like, shall be installed/operated in accordance with those conditions
or plans.
10. An assessment of the feasibility and design requirements of:
Page 41
a)
a lockable dog and koala-proof gate; and
b)
a grid to restrict koala movement into the residential area at the
entrance to the sports field and in association with existing wildlife
fencing is to be submitted and approved by the Director Planning and
Regulation or his delegate, prior to commencement of work on the
site.
11. Prior to the construction of tennis court lighting, an assessment of
available lighting types and their insect-attracting properties is to be
submitted to the Director Planning and Regulation or his delegate. Review
of the available information at the time of installation and routine
maintenance shall determine lamp selection. Should a non-insect-attracting
lighting option be available, this type is to be installed.
12. Prior to use of the facility, a suitably qualified person is to submit to
Council a certificate demonstrating the compliance of the operation of the
tennis court lighting with AS4282 - The control of obtrusive effects of
outdoor lighting, and AS2560 - Sports Field Lighting.
13. Hours of operation of the Tennis Courts are restricted to the following
hours:
*
6am to 10pm - Mondays to Saturdays
*
7am to 10pm - Sundays and Public Holidays
14. All externally mounted artificial lighting, including security lighting, is to be
shielded to the satisfaction of the General Manager or his delegate where
necessary or required so as to prevent the spill of light or glare creating a
nuisance to neighbouring or adjacent premises.
Page 42
REPORT:
Applicant:
Owner:
Location:
Zoning:
Est Cost:
Tweed Shire Council
Tweed Shire Council
Lot 301 DP 1125090 Overall Drive, Pottsville
7(l) Environmental Protection (Habitat)
Nil
Background:
The application was submitted to Council from Council’s Engineering and Operations
Division on 24 December 2012. Since that time, though the application wasn’t notified
development, there have been multiple submissions received from members of the public
concerned about the potential impact of the development on fauna species which frequent
the site and areas in close proximity to the site (including the koala and bush stone curlew).
It is important to note that the site provides the only open space for the Blackrocks
development, with the playing fields site identified in Council’s Development Control Plan
(DCP) Section B21 – Pottsville Locality Based Development Code as a ‘sports precinct’.
The purpose of the application is to provide alternative facilities for the existing Pottsville
Tennis Club who have been directed to leave their current premises by the Department of
Lands.
Detailed assessment of the ecological issues raised has been undertaken by Council’s
Engineering and Operations Division (Environmental Scientists) in response to a further
information request and Council’s Ecologists have also reviewed the matter and provided
input into the proposed conditions of consent. Considering all matters, the application is
now considered suitable for approval.
Page 43
SITE DIAGRAM:
Page 44
Page 45
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Page 48
CONSIDERATIONS UNDER PART V OF THE ENVIRONMENTAL PLANNING AND
ASSESSMENT ACT 1979:
The proposed activity constitutes an assessment under Part 5 of the Environmental
Planning and Assessment Act. Section 111 of the Act states that the determining authority
must take into account a range of matters prescribed in Clause 228(2) of the Environmental
Planning & Assessment Regulation 2000, in its decision to proceed with an ‘activity’ which
does not require development consent. The matters raised under Clause 228(2) are
addressed below.
Rating of Impact (for inclusion in Table below): 1 = Beneficial/Nil 2 = Minor 3 = Significant
Factors taken into consideration
Rating of
Impact
Comments (if applicable)
a)
Any environmental impact on
a community
2
The proposal is considered to result in a minor
impact on a community in the short term
through
disruption
associated
with
construction. In the long term, subject to the
proposed
conditions
of
consent,
the
development will enable recreational use of the
site which has been earmarked for such
development. Subject to the recommended
conditions,
environmental
impacts
are
expected to be negligible.
b)
Any transformation of a
locality
1
The tennis court development (inclusive of
formalisation of car parking, drainage and
pedestrian access) is considered to provide a
beneficial long term impact to the locality as
the
proposed
upgrades
will
improve
recreational facilities within the locality.
c)
Any environmental impact on
the ecosystems of the locality
2
The proposed development would result in
minor impacts upon the ecosystems on the site
through
disruption
associated
with
construction.
Notwithstanding, detailed
ecological assessment has concluded that the
proposed development is unlikely to have a
significant impact on any ecosystem or fauna
species.
Further detail in this regard is
provided further in this report.
d)
Any reduction of the
aesthetic, recreational,
scientific, or other
environmental quality or
value of a locality
2
Some short term negative impacts associated
with construction are anticipated in this regard.
However, in the long term, there is considered
to be a negligible impact as the facility will
operate in a relatively benign manner and
subject to the proposed conditions of consent,
the development is not likely to adversely
impact on the areas environmental qualities.
Recreational values of the site will be improved
by the activity as well as improved access and
parking.
e)
Any effect on the locality,
place or building having
aesthetic, anthropological,
archaeological, architectural,
1
An AHIMS assessment and Due Diligence
Assessment was carried out by the applicant
and submitted as part of the application. No
objects or areas of specific cultural heritage
Page 49
Rating of
Impact
cultural, historical, scientific
or social significance or other
special value for present or
future generations
significance were identified within the site.
As such the proposal is unlikely to impact on
any locality, place or building having aesthetic,
anthropological, archaeological, architectural,
or historic value.
f)
Any impact on the habitat of
protected fauna (within the
meaning of the National
Parks and Wildlife Act 1974)
2
Minimal impacts are expected in relation to
protected (i.e. non-threatened native) fauna as
a result of the activity, subject to the
recommended conditions.
g)
Any endangering of any
species of animal, plant or
other form of life, whether
living on land, in water or in
the air
2
The site contains vegetation indicative of the
Swamp Sclerophyll Forest Endangered
Ecological Community (EEC). However, no
vegetation clearing is required to facilitate the
proposed development.
The proposal is
unlikely to result in the extinction or
endangering of any species.
Council’s Ecologists are satisfied that the
development would not adversely impact on
any fauna, subject to conditions of approval.
h)
Any long term effects on the
environment
1
There is no loss of vegetation proposed.
Conditions of approval will ensure that impacts
to the environment (if any) will be minor. The
proposed works will improve the drainage
outcome at the site and during assessment of
the application signs have already been
erected on site detailing the prohibition of dogs
from the area to reduce the likelihood of injury
or fright to native fauna.
i)
Any degradation of the
quality of the environment
2
There is likely to be some minor short term
impacts on the environment associated with
the construction phase.
Construction
mitigation measures are proposed to minimise
these impacts and prevent the further
degradation of the quality of the environment at
the site and these aspects have been
conditioned.
Following completion of works and compliance
with the proposed conditions, it is considered
that the overall quality of environment in the
locality will not be degraded by virtue of this
activity.
j)
Any risk to the safety of the
environment
2
There are some minor risks to the safety of the
environment associated with the construction
phase. A range of risk management measures
would be used, including adherence to TSC
Safe Operating Procedures.
k)
Any reduction in the range of
beneficial uses of the
environment
1
The proposed development is not considered
to reduce the range of beneficial uses to the
environment. Elements of the proposal such
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Rating of
Impact
as the installation of stormwater quality control
devices and pedestrian access would result in
a beneficial use of the environment.
l)
Any pollution of the
environment
1
Construction management measures (i.e.
erosion
and
sediment
control,
dust
management and waste management) would
ensure the risk of pollution to the environment
is minimised during construction.
Following construction, the tennis court project
is not considered to result in any additional
pollution within the environment.
m)
Any environmental problems
associated with the disposal
of waste
1
Disposal of waste as a result of the activity is
not expected to result in any environmental
problems. There will be some excess spoil,
general site rubbish and construction material
created as a result of the activity. Where
material cannot be reused or recycled, waste
material would be transported to a Council
landfill site. No contaminating activities are
known from the site.
n)
Any increase demands on
resources (natural or
otherwise) that are, or are
likely to become in short
supply
1
The proposed development requires fill which
will be sourced in accordance with Council’s
standard conditions for clean fill.
o)
Any cumulative
environmental effect with
other existing or likely future
activities
1
The proposal is not likely to result in a
significant negative cumulative environmental
effect with other existing or likely future
activities. Overall, the proposed activity is
considered to be acceptable having regard to
the need for recreational facilities in this area,
particularly in light of the growing population.
p)
Any impact on coastal
processes and coastal
hazards, including those
under projected climate
change conditions
1
The proposal is not likely to impact negatively
on coastal processes or hazards, having
regard to its location outside the coastal
hazard zone.
ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 (EP&A ACT)
Section 111(2) - A determining authority shall consider the effect of an activity on:
a.
any conservation agreement entered into under the National Parks and Wildlife Act
1974 and applying to the whole or part of the land to which the activity relates;
b.
any plan of management adopted under that Act for the conservation area to which the
agreement relates;
c.
any joint management agreement entered into under the Threatened Species
Conservation Act 1995;
Page 51
d.
any bio-banking agreement entered into under Part 7A of the Threatened Species
Conservation Act 1995 that applies to the whole or part of the land to which the activity
relates.
A conservation agreement or plan of management (National Parks and Wildlife Act 1974)
does not apply to the land on which the activity would be undertaken. There is no joint
management agreement pursuant to the Threatened Species Conservation Act 1995.
Furthermore no bio-banking agreement applies to the site.
Section 111(3) - A determining authority shall consider the effect of an activity on any
wilderness area (within the meaning of the Wilderness Act 1987) in the locality in which the
activity is intended to be carried on.
There is no designated wilderness area, pursuant to the Wilderness Act 1987, in the locality
of the proposed development.
Section 111(4) - A determining authority must consider the effect of an activity on:
a.
critical habitat; and
A review of NSW National Parks and Wildlife Service critical habitat declarations register did
not identify any critical habitat and occurring within the locality of the proposed activity area.
b.
in the case of threatened species, populations and ecological communities, and
their habitats, whether there is likely to be a significant effect on those species,
populations or ecological communities, or those habitats; and
Assessment of Significances 7-part tests were undertaken by the applicant for the
Endangered Ecological Community and each of the 15 threatened fauna species either
recorded on, or adjacent to the subject site. The assessments have been reviewed by
Council’s Ecological staff, the outcome of which is that Species Impact Statements are not
required. The proposed conditions of approval are considered to appropriately mitigate any
potential for impacts.
c.
any other protected fauna or protected native plants within the meaning of the
National Parks and Wildlife Act 1974.
This matter has been considered in detail and discussed above. No significant impact is
expected to arise subject to the imposition of the recommended conditions.
GENERAL COMMENTS
Acid Sulfate Soils (ASS)
A search of ASS planning maps indicates that the proposed works are being undertaken on
Class 2 ASS land.
Mitigation measures proposed are based on the application of agricultural lime to all
excavated material. The proposed management of the ASS appears to be in general
accordance with the Australian Acid Sulfate Soil Manual (Stone et. al. 1998) and is
considered to be appropriate. Standard conditions have been applied.
Contaminated Land
The REF includes a Contaminated Land Policy assessment and suggests that there is no
evidence to indicate that the subject site is contaminated. A search of Council's GIS
(Enlighten) indicates that there are no cattle tick dip sites within close proximity to the
subject site. Topographical map and historic aerial photograph searches do not indicate
that there has been a potentially contaminating land use within the vicinity of the subject
site.
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It is thus not considered that further assessment of contaminated land matters is required.
A standard condition has been applied which will ensure compliance with the proposed
mitigation measures in regards to contaminated land, in the event that any contamination is
uncovered.
Ecological Matters and Submissions
Though the application constitutes at Part V application and was not required to be notified,
Council received a number of submissions from members of the public raising issues to do
with potential impacts on the koala (found on the subject site), the osprey (nest found on
adjacent site, approximately 50m from edge of tennis courts) and the bush stone curlew.
One of the submissions was supported by photographic evidence of a koala on the site.
The submissions were forwarded to Council’s Ecologist for review in conjunction with the
submitted ecological assessment.
Additionally, the same submitter forwarded information to the Department of Sustainability,
Environment, Water, Population & Communities in Canberra (Federal Environment
Department). A compliance officer from that Department contacted planning staff to obtain
details of the proposal prior to their review of the matter to determine if assessment by that
Department was required. The Department has verbally advised that the proposed
development does not appear to constitute a matter requiring their involvement.
Issues raised by the submissions are considered to have been adequately addressed by
mitigation measures and conditions of approval.
Council’s Ecologists have finalised their assessment, which included review of further
information from Council’s Design Unit to satisfy a range of matters including the provision
of an ongoing monitoring program to monitor any impacts of the proposed development, and
the use of non-insect-attracting lighting and a koala proof grid. The following final comments
have been supplied:
“The draft monitoring program proposes to gather information on road strike, use of the
site by threatened species and the influence of tennis court lighting on resident fauna.
The results of the monitoring program will inform any modification to future
management of traffic and provide detail on any impact of the development on
threatened species including the Bush Stone-curlew, Koala, Osprey and White-bellied
Sea-Eagle. NRM Unit will continue to provide feedback during the finalising and
implementation of the monitoring program.
Ongoing investigations are being carried out into the availability of non-insect-attracting
tennis court lighting and the detailed design of a grid and gate mechanism to restrict
entry to the sports field by dogs and exit by koalas. It is noted that design drawings for
a grid have been submitted, however these require modification to incorporate round
rails in order to restrict crossing by koalas. Any grid and gate design will also need to
provide for safe and easy access to the sports field by pedestrians. Conditions of
consent are provided below which require submission of this detail.
NRM Unit is satisfied that signage has been installed prohibiting dogs from the site.
Additionally, a gate has been installed with the intent of restricting traffic access during
times when the sports field is not in use.
It is considered that the response provided by the Design Unit satisfactorily addresses
the above request.
Recommended conditions
An assessment of the feasibility and design requirements of:
Page 53
a)
a lockable dog and koala-proof gate; and
b)
a grid to restrict koala movement into the residential area
at the entrance to the sports field and in association with existing wildlife fencing is to
be submitted and approved by the Director Planning and Regulation or his delegate,
prior to commencement of work on the site.
Prior to the construction of tennis court lighting, an assessment of available lighting
types and their insect-attracting properties is to be submitted to the Director Planning
and Regulation or his delegate. Review of the available information at the time of
installation and routine maintenance shall determine lamp selection. Should a noninsect-attracting lighting option be available, this type is to be installed.”
OPTIONS:
1.
Approve the Review of Environmental Factors as per the recommendation; or
2.
Determine that an Environmental Impact Statement and/or Species Impact Statement
is required.
Council officers recommend Option 1.
CONCLUSION:
The proposed activity is not considered likely to significantly affect the environment including
critical habitat or threatened species, populations or ecological communities, or their
habitats.
This development will improve the recreational infrastructure of the area as highlighted in
DCP B21 – Pottsville Locality Based Development Code. Subject to the proposed
conditions, the proposed development is considered to be in the public’s interest.
Following a detailed assessment of the Part V application, it is concluded that the activity will
not result in a significant impact on the environment. As such, neither an Environmental
Impact Statement (EIS) or Species Impact Statement (SIS) is required.
a.
Policy:
Not Applicable.
c.
Legal:
Not Applicable.
Not Applicable.
Nil.
Page 54
Page 55
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Page 56
22
[PR-CM] Development Application DA13/0024 for a 44 Lot Subdivision,
Construction of Internal Road and Associated Infrastructure at Lot 1 DP
407094 Cudgen Road, Cudgen and Lot 1 DP 598073 No. 17 Collier Street,
Cudgen
SUBMITTED BY:
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
The proposal seeks approval for a forty lot residential subdivision of two parcels of land with
multiple zonings.
The subject application proposes a subdivision comprising 40 lots ranging from a proposed
road and associated infrastructure.
·
Lots 1 – 37 - Residential allotments varying in size from 450m2 to 1039m2
averaging 598.5m2.
·
Lot 38 – 39 - Residual lots to remain for agricultural purposes.
·
Lot 40 - Drainage reserve to be transferred to Council.
The original application was for 44 lots however this was amended to be able to cater for a
number of items requested throughout the assessment process.
The existing area and each of the zones are configured as follows:
·
2(a) Low Density Residential zone of 2.8ha
·
5(a) Special Uses (School) zone of 1,353m2
·
1(b1) Agricultural Protection zone of 10.06ha
·
1(b2) Agricultural Protection zone of 5.7ha
A State Environmental Planning Policy No. 1 – Development Standard (SEPP No. 1)
objection also accompanies the application. The objection is in respect of the planning
standard identified within Clause 20(2)(a) of the Tweed Local Environmental Plan 2000,
specifically seeking variance to the 40 hectare minimum lot size development standard for
the 1(b2) Agricultural Protection zone. Council can assume concurrence to vary the
standard applying to the 1(b1) Agricultural Protection zone of 10 hectares, as the variation is
less than 10%.
Page 57
Proposed lots 38 and 39 will be conditioned to be consolidated into 1 allotment having a
total area of 15.1454ha and will be split zoned 1(b1) and 1(b2) and will continue to be
utilised for agricultural purposes such as the existing cropping/orchid pursuits.
The SEPP No. 1 objection relates to the portion of the combined lots 38 and 39 which is
located within the 1(b2) zone. This equates to a total area of approximately 5.2382ha within
the proposed lot which is under the 40ha minimum.
Lot 40 will not require a SEPP No. 1 objection as the lot will not be used for agricultural or
residential purposes under Clause 20(3) of the Tweed Local Environmental Plan as outlined
in this report.
The application was referred to the NSW Department of Planning and Infrastructure
requesting the Director-General’s Concurrence. Concurrence was granted to vary the 40ha
minimum lot size development standard.
The purpose of this report is to have the application determined by a full Council as Council
Officers do not have the delegation to determine a development application with a SEPP
No. 1 objection greater than 10% variation of the applicable development standard in
accordance with the Department of Planning directive (circular PS 08-014).
It is considered that the subject application is suitable for approval, subject to various
conditions.
RECOMMENDATION:
That Development Application DA13/0024 for a 40 lot subdivision, construction of
internal road and associated infrastructure at Lot 1 DP 407094 Cudgen Road, Cudgen
and Lot 1 DP 598073 No. 17 Collier Street, Cudgen be approved subject to the
following conditions:
"DEFERRED COMMENCEMENT"
This consent shall not operate until the applicant satisfies the consent authority by
producing satisfactory evidence relating to the matters set out in Schedule "A". Such
evidence is to be provided within twelve (12) months of the date of notification.
Upon the consent authority being satisfied as to compliance with the matters set out in
Schedule "A". The consent shall become operative and take effect from the date of
notification under Section 95 of the Environmental Planning and Assessment
Regulations subject to the conditions set out in Schedule "B".
SCHEDULE "A"
Conditions imposed pursuant to Section 80(3) of the Environmental Planning and
Assessment Act, 1979 and Section 95 of the Regulations as amended.
1.
The applicant is to provide an acoustic report prepared by a suitably qualified
acoustic consultant to the satisfaction of the General Manager or delegate. The
acoustic report shall include but not be limited to:
(i)
A review of the Statement of Environmental Effects for NSW Planning Major
Project MP05_0103, conditions of the approval and the requirements of the
NSW Industrial Noise Policy.
(ii)
Informed comment, based on sound modelling, as to the noise impact of
the defined PSNL nominated, on the basis of the methodology carried out,
at each proposed residential lots, internal and external to any standard
constructed dwelling.
Page 58
(iii) Identification of each of the instances where the modelling predicts
exceedance of determined background levels across each of the day,
evening and night periods .
(iv) Identification of where exceedance are greater than 5 dB(a) above
background and recommend reasonable measures that may be carried out
to reduce noise impact. If the acoustic report demonstrates reasonable
mitigation measures, where required, cannot be implemented and
exceedance are not acceptable the application in its current form is unable
to proceed.
2.
A Contaminated Land Investigation Report shall be prepared, by a suitably
qualified and experienced person, and submitted to the General Manager or
delegate for approval. The report shall assess previous banana growing and
potential termite treatment, and be prepared in accordance with relevant
documents made or approved by the NSW Environment Protection Authority in
accordance with the Contaminated Land Management Act 1997. Where required,
a Remediation Action Plan (RAP) shall be prepared and submitted. The report
shall demonstrate that the site is suitable, or is able to be made suitable
following remedial works, for the proposed land use.
SCHEDULE B
NOTE: THIS PART OF THE CONSENT WILL NOT BECOME OPERABLE UNTIL
COUNCIL ADVISES THAT THE MATTERS CONTAINED IN SCHEDULE A ARE
SATISFIED.
GENERAL
1.
The development shall be completed in accordance with the Statement of
Environmental Effects and Plan Nos 1 revision O prepared by Bennett + Bennett
Surveyors and Planners and dated 13/09/2013 and Project Number WLN01
prepared by Place Planning Design Group Pty Ltd dated 16/08/2013 and the Farm
Management Practices prepared by Kevin Wilson’s Real Estate dated 7 August
2013 except where varied by the conditions of this consent.
[GEN0005]
2.
The use of crushing plant machinery, mechanical screening or mechanical
blending of materials is subject to separate development application.
[GEN0045]
3.
The subdivision is to be carried out in accordance with Tweed Shire Council
Development Control Plan Part A5 - Subdivision Manual and Councils
Development Design and Construction Specifications.
[GEN0125]
4.
Approval is given subject to the location of, protection of, and/or any necessary
approved modifications to any existing public utilities situated within or adjacent
to the subject property.
[GEN0135]
5.
A Sewer manhole is present on this site. This manhole is not to be covered with
soil or other material.
Should adjustments be required to the sewer manhole, then these changes are
to be shown on the application for a Construction Certificate.
[GEN0155]
Page 59
6.
The area described as 'Proposed Environment Covenant B - 424m²' shown on
Plan No 1 Rev. O Proposed Subdivision dated 13 September 2013 prepared by
Bennett & Bennett must be the subject to an ecological restoration program
(undertaken in accordance with an approved habitat restoration plan) and
managed as a natural area for conservation purposes in perpetuity.
[GENNS01]
PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE
7.
Prior to the issue of a Civil Construction Certificate for each stage of the project,
a Construction Management Plan shall be submitted to and approved by the
Principle Certifying Authority. A copy of the approved plan shall be submitted to
Council. The Plan shall address, but not be limited to, the following matters
where relevant:
a)
Hours of work;
b)
Contact details of site manager;
c)
Traffic and pedestrian management;
d)
Noise and vibration management;
e)
Construction waste management;
f)
Erosion and sediment control; and,
g)
Flora and fauna management.
Where construction work is to be undertaken in stages, the Proponent may,
subject to agreement with the Principle Certifying Authority, stage the
submission of the Construction Management Plan consistent with the staging of
activities relating to that work. The Proponent shall submit a copy of the
approved plan to Council.
[PCC0125]
8.
The Construction Certificate Application shall include a detailed Stormwater
Management Plan (SWMP) for the occupational or use stage of the proposed
development, prepared in accordance with Section D7.07 of Council's
Development Design Specification D7 - Stormwater Quality. The plans are to
include measures, monitoring and adaptive management actions to ensure
appropriate stormwater quality outcomes are achieved.
Permanent stormwater quality treatment shall comply with the Tweed Urban
Stormwater Quality Management Plan and Council's Development Design
Specification D7 - Stormwater Quality. Variations to these standards shall only
be accepted where they are supported by best practice water sensitive urban
design principles entailed in the “Water By Design” guidelines (being a program
of the South East Queensland Healthy Waterways Partnership).
Treatment basins must be provided with a facility to bypass major stormwater
flow events (greater than the Q3 month storm event), or otherwise cater for
major storm flows without disturbing captured pollutants or damaging the
structure.
Proposed treatment measures other than "deemed to comply" measures as
specified in Council's Development Design Specification D7, must be supported
by engineering calculations, including MUSIC modelling, to confirm that
acceptable capacity and efficiency is achieved.
Page 60
An Operational Manual for all stormwater quality control devices must be
provided as part of the SWMP. This manual must be updated as required during
the Defects Liability ("On-Maintenance") Period for the device and the final
version of the manual must be handed over to Council at the formal
commissioning of the device, at the completion of the Defects Liability Period
("Off Maintenance").
[PCC0165]
9.
Prior to the issue of a Construction Certificate, a cash bond or bank guarantee
(unlimited in time) shall be lodged with Council for an amount based on 1% of
the value of the (public infrastructure - insert / delete as applicable) works as set
out in Council’s fees and charges at the time of payment.
The bond may be called up at any time and the funds used to rectify any noncompliance with the conditions of this consent which are not being addressed to
the satisfaction of the General Manager or his delegate.
The bond will be refunded, if not
Subdivision/Occupation Certificate is issued.
expended,
when
the
final
[PCC0275]
10. In accordance with Section 109F(i) of the Environmental Planning and
Assessment Act 1979 (as amended), a construction certificate for SUBDIVISION
WORKS OR BUILDING WORKS shall NOT be issued until any long service levy
payable under Section 34 of the Building and Construction Industry Long
Service Payments Act, 1986 (or where such levy is payable by instalments, the
first instalment of the levy) has been paid. Council is authorised to accept
payment. Where payment has been made elsewhere, proof of payment is to be
provided.
[PCC0285]
11. Where earthworks result in the creation of embankments and/or cuttings greater
than 1m high and/or slopes within allotments 17o or steeper, such slopes shall
be densely planted in accordance with a detailed landscaping plan. Such plan to
accompany the Construction Certificate application.
Such plans shall generally incorporate the following and preferably be prepared
by a landscape architect:
(a)
Contours and terraces where the height exceeds 1m.
(b)
Cover with topsoil and large rocks/dry stone walls in terraces as necessary.
(c)
Densely plant with appropriate native species to suit the aspect/micro
climate. Emphasis to be on trees and ground covers which require minimal
maintenance. Undergrowth should be weed suppressant.
(d)
Mulch heavily (minimum 300mm thick) preferably with unwanted growth
cleared from the estate and chipped. All unwanted vegetation is to be
chipped and retained on the subdivision.
[PCC0455]
12. All fill is to be graded at a minimum of 1% so that it drains to the street or other
approved permanent drainage system and where necessary, perimeter drainage
is to be provided. The construction of any retaining wall or cut/fill batter must at
no time result in additional ponding occurring within neighbouring properties.
Page 61
All earthworks shall be contained wholly within the subject land. Detailed
engineering plans of cut/fill levels and perimeter drainage shall be submitted
with the application for a Construction Certificate.
[PCC0485]
13. Site filling and associated drainage is to be designed to address drainage on the
site as well as existing stormwater flows onto or through the site, and
minimising the impact of filing on local drainage. Detailed engineering plans of
fill levels and perimeter drainage shall be submitted for Council approval.
[PCC0675]
14. A Traffic Control Plan in accordance with AS1742 and the latest version of the
RTA publication "Traffic Control at Work Sites" shall be prepared by an RTA
accredited person and shall be submitted to the Principal Certifying Authority
prior to issue of the Construction Certificate. Safe public access shall be
provided at all times.
[PCC0865]
15. The proponent shall submit plans and specifications with an application for
construction certificate for the following civil works and any associated
subsurface overland flow and piped stormwater drainage structures designed in
accordance with Councils Development Design and Construction specifications;
(a)
Construction of an urban bitumen sealed road formation 7.5m between
kerbs.
(b)
Collier Street is to be reconstructed from the property boundary of Lot 71
DP 755701 into the subdivision as per drawing no. K2027 issue A titled
‘Preliminary Roadworks Plan’ prepared by Knobel Consulting dated 3 June
2013. The developer is to liaise with Council when the subdivision road
works are expected to commence to allow for Council to program the
Collier Street upgrade in conjunction with the developer.
(c)
A reinforced concrete footpath 1.2 metres wide and 100 millimetres thick is
to be constructed on a compacted base along the entire road frontage of
the site and Collier Street up to the property boundary of Lot 71 DP 755701
in accordance with Councils Development Design and Construction
Specifications and Standard Drawing SD013.
(d)
Traffic control devices are to be shown on the application for a
Construction Certificate. A stop sign and associated line marking is to be
placed at the intersection of Road 1 & 2 (northern intersection). A give way
sign and associated line marking is required at the intersection of Road 2
and Crescent Street.
(e)
The application for a Construction Certificate is to demonstrate that a
gravity sewer connection for proposed consolidated Lots 38 and 39 is able
to adequately service a future dwelling.
(f)
The proposed piped drainage system is to be redesigned to mainly be
located within the road reserve and not under the road pavement.
(g)
The detailed design of the 2 inlet pits located prior to the Gross Pollutant
Trap must demonstrate that they are capable of capturing Q100 flows from
the major street system and directing it to the proposed detention basin.
[PCC0875]
Page 62
16. Prior to the issue of a Construction Certificate for civil works, the following
detail in accordance with Council's Development Design and Construction
Specifications shall be submitted to the Principal Certifying Authority for
approval.
(a)
copies of compliance certificates relied upon
(b)
four copies of detailed engineering plans and specifications, prepared in
accordance with Development Design Specification D13 - particularly
Section D13.09. The detailed plans shall include but are not limited to the
following:
·
earthworks
·
roadworks/furnishings
·
stormwater drainage
·
water supply works
·
sewerage works
·
retaining walls
·
landscaping works
·
sedimentation and erosion management plans
·
location of all service conduits (water, sewer, electricity supply and
telecommunication infrastructure), as well as details and locations of
any significant electrical servicing infrastructure - such as
transformers and substations
The Environmental Planning and Assessment Act, 1979 (as amended) makes no
provision for works under the Water Management Act 2000 and Section 138 of
the Roads Act to be certified by an Accredited Certifier.
[PCC0985]
17. Permanent stormwater quality treatment shall be provided in accordance with
the following:
(a)
The Construction Certificate Application shall detail stormwater
management for the occupational or use stage of the development in
accordance with Section D7.07 of Councils Development Design
Specification D7 - Stormwater Quality.
(b)
Permanent stormwater quality treatment shall comply with section 5.5.3 of
the Tweed Urban Stormwater Quality Management Plan and Councils
Development Design Specification D7 - Stormwater Quality.
(c)
The stormwater and site works shall incorporate water sensitive design
principles and where practical, integrated water cycle management.
(d)
Specific Requirements to be detailed within the Construction Certificate
application include:
(e)
Shake down area along the haul route immediately before the intersection
with the road reserve.
[PCC1105]
18. A construction certificate application for works that involve any of the following:
Page 63
·
connection of a private stormwater drain to a public stormwater drain
·
installation of stormwater quality control devices
·
erosion and sediment control works
will not be approved until prior separate approval to do so has been granted by
Council under Section 68 of the Local Government Act.
a)
Applications for these works must be submitted on Council's standard
Section 68 stormwater drainage application form accompanied by the
required attachments and the prescribed fee.
b)
Where Council is requested to issue a construction certificate for civil
works associated with a subdivision consent, the abovementioned works
can be incorporated as part of the construction certificate application, to
enable one single approval to be issued. Separate approval under Section
68 of the Local Government Act will then NOT be required.
[PCC1145]
19. Erosion and Sediment Control shall be provided in accordance with the
following:
(a)
The Construction Certificate Application must include a detailed erosion
and sediment control plan prepared in accordance with Section D7.07 of
(b)
Construction phase erosion and sediment control shall be designed,
constructed and operated in accordance with Tweed Shire Council
Development Design Specification D7 - Stormwater Quality and its
Annexure A - “Code of Practice for Soil and Water Management on
Construction Works”.
[PCC1155]
20. Prior to issue of the construction certificate the applicant is to submit a
landscape plan for the vegetated buffer on Lot 38, prepared by a suitably
qualified landscape architect. The vegetated buffer is to contain random
plantings of a variety of tree and shrub species of differing growth habits, at
spacings of four to five metres. The vegetated buffer is to include species that
have long, thin and rough foliage that facilitate the more efficient capture of
spray droplets. The vegetated buffer is to include at least 80% local native
species. The landscape plan is to be to the satisfaction of the General Manager
or his delegate.
21. Prior to the issuing of a Construction Certificate, a construction noise
assessment is to be prepared in accordance with the Interim Construction Noise
Guideline (DECC, 2009), to the satisfaction of the General Manager or his
delegate. The construction noise assessment is to be prepared by a suitably
qualified person.
22. Prior to the issuing of a Construction Certificate, a dust management plan is to
be prepared to the satisfaction of the General Manager or his delegate. The dust
management plan is to be prepared by a suitably qualified person.
23. Prior to the issuing of a Construction Certificate, a demolition plan is to be
prepared to the satisfaction of the General Manager or his delegate. The
demolition plan shall reference Australian Standard AS 2601 The Demolition of
Structures, and the requirements of NSW WorkCover and the Work Health and
Page 64
Safety Regulation 2011. The demolition plan is to be prepared by a suitably
qualified person.
[PCCNS02]
24. A landscape plan must be submitted that addresses the nature strip of all roads
to be dedicated to Council. Such a plan should show only suitable street trees
and turf, and must be approved by the Manager, Recreation Services, Tweed
Shire Council. The landscape and civil drawings must be consistent in the
space allowed for planting trees between the kerb and footpath, and must be
consistent with TSC standard drawing SD-701. The street tree locations are also
to be consistent with the Development Design Specification D14 and be planted
no less than 7.5m from streetlights. The street tree species to be used is to be
negotiated with Council, and it is preferable they be native to the local area.
[PCCNS03]
25. A Habitat Restoration Plan ('HRP') must be submitted for the following
'ecological restoration areas' as shown on Plan No 1 Rev. O Proposed
Subdivision dated 13 September 2013 prepared by Bennett & Bennett:
a.
Proposed Environment Covenant B - 424m²;
b.
Remaining contiguous tract of significant vegetation occurring within the
Crescent Street road reserve (western side) for a length of approximately 73
metres immediately to the rear of Lots 33 and 34; and
c.
An approximate five (5) metre wide buffer around the entire perimeter of the
'Water Catchment Lake' unless where restricted by the proposed northern
access road.
The HRP shall be prepared by a suitably qualified professional in accordance
with Council’s Draft Habitat Restoration Plan Preparation Guideline dated
February 2012 (attached) for the identified 'ecological restoration areas' to
include the following information (but may not limited to):
a.
An appraisal of the present condition of remnant vegetation;
b.
A plan overlaying an aerial photograph of the site which divides the area
into management zones where appropriate;
c.
A management strategy for each of the zones, including the adoption of an
'Assisted Natural Regeneration' approach;
d.
A schedule of local native plant species to be used for planting (if required
under offsetting arrangements pursuant to Condition 28);
e.
A program of works to be undertaken to remove invasive weed species
(noxious and environmental weeds);
f.
A schedule of timing of proposed works that reflects both the short term
(developer's responsibility) and long term (future landholder's
responsibility) establishment and management of the identified ecological
restoration areas;
g.
A schedule of activities not permitted within the Proposed Environment
Covenant B pursuant to Condition 77;
h.
Requirement for 132C Licence under the National Parks and Wildlife Act
Page 65
i.
Coordination of services such as irrigation repair or civil infrastructure
maintenance (such as stormwater) that may impact on the landscape
establishment and maintenance periods;
j.
Management of domestic farm/feral animals (if appropriate) and any
fencing/signage requirements to restrict access and increase
landholder/public awareness;
k.
Nomination of key performance indicators/criteria for monitoring purposes;
l.
A maintenance, monitoring and reporting schedule with developer
commitment for a period not less than two (2) years; and
m.
An adaptive management statement detailing how potential problems
arising may be overcome and requiring approval of the General Manager or
delegate for such changes.
To be clear the developer is responsible for a two (2) year establishment phase
for all identified 'ecological restoration areas'. Following successful completion
of works within this period the existing/future landowner/s of Lot 33 shall be
responsible for the long term management of the 'Environment Covenant' in
perpetuity. This management arrangement shall be reflected in the HRP.
The HRP must be approved by the General Manager or delegate prior to issue of
the first of any construction certificate.
In this regard the establishment phase works proposed in the HRP must be
completed prior to issue of the first subdivision certificate with a progress report
prepared by a suitably qualified and experienced Bush Regenerator, submitted
one year after commencement of the establishment phase works with a final
report demonstrating compliance with the HRP prior to issue of the subdivision
certificate.
[PCCNS04]
26. To evaluate and quantify the extent of vegetation removal necessary to facilitate
installation of any external stormwater infrastructure within the Crescent Street
road reserve the applicant shall provide a detailed survey plan with particulars
of all native woody vegetation greater than 30cm circumference at 45cm above
ground, or greater than three (3) metres or more in height occurring within and
immediately adjacent to the construction footprint. The tree survey shall be
overlaid on Dwg. No. P019 Issue A Outlet Arrangement Plan dated 13 September
2013 prepared by Knobel Consulting P/L or similar plans as amended in
accordance with conditions of this consent. The survey information and any
associated best practice vegetation management measures as required by
Council shall be submitted as an addendum to the Flora and Fauna Management
Plan Lot 1 DP407094 & Part Lot 1 DP598073 Version 2 dated June 2013 prepared
by Habitat Environment Management Trading P/L.
The loss of any surveyed native vegetation shall be offset at a ratio of 2:1
(Replace : Loss) using suitable tube-stock species to be installed with an area
additional to and adjoining the 'Water Catchment Lake' ecological restoration
area. Offsetting arrangements shall be agreed upon prior to issue of the first of
any construction certificate and details subsequently reflected in the 'Habitat
Restoration Plan' prior to approval.
Page 66
27. Conditions and recommendations imposed by the Remedial Action Plan (RAP)
required by Schedule “A” of this consent shall be implemented prior to the issue
of a construction certificate.
28. Proposed Lots 38 and 39 are to be consolidated into a single allotment to ensure
the fragmentation of agricultural land does not occur. All other conditions
relating to Lots 38 and 39 are to be implemented on a single allotment.
[PCCNS05]
PRIOR TO COMMENCEMENT OF WORK
29. The proponent shall accurately locate and identify any existing sewer main,
stormwater line or other underground infrastructure within or adjacent to the
site and the Principal Certifying Authority advised of its location and depth prior
to commencing works and ensure there shall be no conflict between the
proposed development and existing infrastructure prior to start of any works.
[PCW0005]
30. Prior to the commencement of works, the applicant shall ensure that a SiteSpecific Safety Management Plan and Safe Work Methods for the subject site
have been prepared and put in place in accordance with either:(a)
Occupation Health and Safety and Rehabilitation Management Systems
Guidelines, 3rd Edition, NSW Government, or
(b)
AS4804 Occupation Health and Safety Management Systems - General
Guidelines on Principles Systems and Supporting Techniques.
(c)
WorkCover Regulations 2000
[PCW0025]
31. All imported fill material shall be from an approved source.
Prior to
commencement of filling operations details of the source of the fill, nature of
material, proposed use of material and confirmation that further blending,
crushing or processing is not to be undertaken shall be submitted to the
satisfaction of the General Manager or his delegate.
Once the approved haul route has been identified, payment of the Heavy
Haulage Contribution calculated in accordance with Section 94 Plan No 4 will be
required prior to the issue of the Subdivision Certificate.
[PCW0375]
32. Civil work in accordance with a development consent must not be commenced
until:
(a)
(b)
a Construction Certificate for the civil work has been issued in accordance
with Councils Development Construction Specification C101 by:
(i)
the consent authority, or
(ii)
an accredited certifier, and
the person having the benefit of the development consent:
(i)
has appointed a principal certifying authority,
(ii)
has appointed a Subdivision Works Accredited Certifier (SWAC) to
certify the compliance of the completed works. The SWAC must be
accredited in accordance with Tweed Shire Council DCP Part A5 Subdivision Manual, Appendix C with accreditation in accordance with
Page 67
the Building Professionals Board Accreditation Scheme.
As a
minimum the SWAC shall possess accreditation in the following
categories:
C4: Accredited Certifier construction compliance
Stormwater
management
facilities
C6: Accredited Certifier - Subdivision road and drainage construction
compliance
The SWAC shall provide documentary evidence to Council
demonstrating current accreditation with the Building Professionals
Board prior to commencement of works, and
(iii) has notified the consent authority and the council (if the council is not
the consent authority) of the appointment,
(iv) a sign detailing the project and containing the names and contact
numbers of the Developer, Contractor and Subdivision Works
Accredited Certifier is erected and maintained in a prominent position
at the entry to the site in accordance with Councils Development
Design and Construction Specifications. The sign is to remain in
place until the Subdivision Certificate is issued, and
(c)
the person having the benefit of the development consent has given at least
2 days' notice to the council of the person's intention to commence the civil
work.
Note: For subdivisions creating 5 new allotments or less, OR the value of new
public infrastructure is less than $30,000, then the SWAC may be substituted for
an Institute of Engineers Australia Chartered Professional Engineer (Civil
College) with National Professional Engineers Register (NPER) registration.
[PCW0815]
33. The proponent shall provide to the PCA copies of Public Risk Liability Insurance
to a minimum value of $10 Million for the period of commencement of works
until the completion of the defects liability period.
[PCW0835]
34. Prior to commencement of work on the site all erosion and sedimentation
control measures are to be installed and operational including the provision of a
"shake down" area to the satisfaction of the Principal Certifying Authority.
These measures are to be in accordance with the approved erosion and
sedimentation control plan and adequately maintained throughout the duration
of the development.
[PCW0985]
DURING CONSTRUCTION
35. All proposed works are to be carried out in accordance with the conditions of
development consent, approved management plans, approved construction
certificate, drawings and specifications.
[DUR0005]
36. Construction and/or demolition site work including the entering and leaving of
vehicles is limited to the following hours, unless otherwise permitted by
Council:
Page 68
The proponent is responsible to instruct and control subcontractors regarding
hours of work.
[DUR0205]
37. All reasonable steps shall be taken to muffle and acoustically baffle all plant and
equipment. In the event of complaints from the neighbours, which Council deem
to be reasonable, the noise from the construction site is not to exceed the
following:
A.
LAeq, 15 min noise level measured over a period of not less than 15 minutes
when the construction site is in operation, must not exceed the background
level by more than 20dB(A) at the boundary of the nearest likely affected
residence.
B.
level by more than 15dB(A) at the boundary of the nearest affected
residence.
[DUR0215]
38. Proposed earthworks shall be carried out in accordance with AS 3798,
"Guidelines on Earthworks for Commercial and Residential Developments".
The earthworks shall be monitored by a Registered Geotechnical Testing
Consultant to a level 1 standard in accordance with AS 3798. A certificate from a
registered Geotechnical Engineer certifying that the filling operations comply
with AS3798 shall be submitted to the Principal Certifying Authority upon
completion.
In addition geotechnical certification is to be provided certifying that unsuitable
material has been removed from the southern area of the existing dam and
replaced with material adequate for the support and stability of the proposed
road and embankment.
[DUR0795]
39. The use of vibratory compaction equipment (other than hand held devices)
within 100m of any dwelling house, building or structure is strictly prohibited.
[DUR0815]
40. No soil, sand, gravel, clay or other material shall be disposed of off the site
without the prior written approval of Tweed Shire Council General Manager or
his delegate.
[DUR0985]
41. The surrounding road carriageways are to be kept clean of any material carried
onto the roadway by construction vehicles. Any work carried out by Council to
remove material from the roadway will be at the Developers expense and any
such costs are payable prior to the issue of a Subdivision Certificate.
[DUR0995]
42. Where the construction work is on or adjacent to public roads, parks or drainage
reserves the development shall provide and maintain all warning signs, lights,
barriers and fences in accordance with AS 1742 (Manual of Uniform Traffic
Page 69
Control Devices). The contractor or property owner shall be adequately insured
against Public Risk Liability and shall be responsible for any claims arising from
these works.
[DUR1795]
43. Before the commencement of the relevant stages of road construction,
pavement design detail including reports from a Registered NATA Consultant
shall be submitted to Council for approval and demonstrating.
(a)
That the pavement has been designed in accordance with Tweed Shire
Councils Development Design Specification, D2.
(b)
That the pavement materials to be used comply with the specifications
tabled in Tweed Shire Councils Construction Specifications, C242-C245,
C247, C248 and C255.
(c)
That site fill areas have been compacted to the specified standard.
(d)
That supervision of Bulk Earthworks has been to Level 1 and frequency of
field density testing has been completed in accordance with Table 8.1 of AS
3798-1996.
[DUR1805]
44. During the relevant stages of road construction, tests shall be undertaken by a
Registered NATA Geotechnical firm. A report including copies of test results
shall be submitted to the PCA prior to the placement of the wearing surface
demonstrating:
(a)
That the pavement layers have been compacted in accordance with
Councils Development Design and Construction Specifications.
(b)
That pavement testing has been completed in accordance with Table 8.1 of
AS 3798 including the provision of a core profile for the full depth of the
pavement.
[DUR1825]
45. Any damage caused to public infrastructure (roads, footpaths, water and sewer
mains, power and telephone services etc) during construction of the
development shall be repaired in accordance with Councils Development Design
and Construction Specifications prior to the issue of a Subdivision Certificate.
[DUR1875]
46. Tweed Shire Council shall be given a minimum 24 hours notice to carry out the
following compulsory inspections in accordance with Tweed Shire Council
Development Control Plan, Part A5 - Subdivision Manual, Appendix D.
Inspection fees are based on the rates contained in Council's current Fees and
Charges:
Roadworks
(a)
Pre-construction commencement erosion and sedimentation control
measures
(b)
Completion of earthworks
(c)
Excavation of subgrade
(d)
Pavement - sub-base
(e)
Pavement - pre kerb
Page 70
(f)
Pavement - pre seal
(g)
Pathways, footways, cycleways - formwork/reinforcement
(h)
Final Practical Inspection - on maintenance
(i)
Off Maintenance inspection
Water Reticulation, Sewer Reticulation, Drainage
(a)
Excavation
(b)
Bedding
(c)
Laying/jointing
(d)
Manholes/pits
(e)
Backfilling
(f)
Permanent erosion and sedimentation control measures
(g)
Drainage channels
(h)
Final Practical Inspection - on maintenance
(i)
Off maintenance
Stormwater Quality Control Devices (other than proprietary devices)
For detail refer to Water By Design - Technical Guidelines
(a)
Earthworks and filter media
(b)
Structural components
(c)
Operational establishment
(d)
Mechanical/electrical
(e)
Commissioning - on maintenance
(f)
Off maintenance
Council's role is limited to the above mandatory inspections and does NOT
include supervision of the works, which is the responsibility of the Developers
Supervising Consulting Engineer.
The EP&A Act, 1979 (as amended) makes no provision for works under the
Water Management Act 2000 to be certified by an "accredited certifier".
The fee for the abovementioned inspections shall be invoiced upon completion
of all civil works, and subject to the submission of an application for a
'Subdivision Works Compliance Certificate'.
[DUR1895]
47. All retaining walls in excess of 1.2 metres in height must be certified by a
Qualified Structural Engineer verifying the structural integrity of the retaining
wall after construction. Certification from a suitably qualified engineer
experienced in structures is to be provided to the PCA prior to the issue of an
Subdivision Certificate.
[DUR1955]
48. The developer/contractor is to maintain a copy of the development consent and
Construction Certificate approval including plans and specifications on the site
at all times.
Page 71
[DUR2015]
49. The applicant shall obtain the written approval of Council to the proposed
road/street names and be shown on the Plan of Subdivision accompanying the
application for a Subdivision Certificate.
Application for road naming shall be made on Councils Property Service Form
and be accompanied by the prescribed fees as tabled in Councils current
Revenue Policy - "Fees and Charges".
The application shall also be supported by sufficient detail to demonstrate
compliance with Councils Road Naming Policy.
[DUR2035]
50. Inter allotment drainage shall be provided to all lots where roof water for
dwellings cannot be conveyed to the street gutter by gravitational means.
[DUR2285]
51. Drainage Reserve
(a)
The proposed drainage reserve is to be dedicated to Council at no cost.
(b)
An accurate plan of the proposed drainage reserve shall be submitted to
Council 60 days prior to lodgment of Application for Subdivision Certificate
to allow the land to be classified.
[DUR2295]
52. All stormwater gully lintels shall have the following notice cast into the top of
the lintel: 'DUMP NO RUBBISH, FLOWS INTO CREEK' or similar wording in
accordance with Councils Development Design and Construction Specifications.
[DUR2355]
53. Regular inspections shall be carried out by the Supervising Engineer on site to
ensure that adequate erosion control measures are in place and in good
condition both during and after construction.
Additional inspections are also required by the Supervising Engineer after each
storm event to assess the adequacy of the erosion control measures, make
good any erosion control devices and clean up any sediment that has left the
site or is deposited on public land or in waterways.
This inspection program is to be maintained until the maintenance bond is
released or until Council is satisfied that the site is fully rehabilitated.
[DUR2375]
54. During construction, a “satisfactory inspection report” is required to be issued
by Council for all s68h2 permanent stormwater quality control devices, prior to
backfilling.
The proponent shall liaise with Councils Engineering and
Operations Division to arrange a suitable inspection.
[DUR2445]
55. Dust and Erosion Management
(a)
Site earthworks are to be limited to a 5ha maximum at any time to reduce
exposed areas. Completed area's are to be topsoiled and seeded
immediately to protect them from water and wind erosion.
(b)
All topsoil stockpiles are to be sprayed with dust suppression material
such as "hydromulch", "dustex" or equivalent. All haul roads shall be
Page 72
regularly watered or treated with dust suppression material or as directed
on site.
(c)
All construction activities that generate dust shall cease when average
wind speeds exceed 15m/s (54 km/h). The applicant shall be responsible for
the monitoring of on-site wind speeds and be able to produce this data to
Council on request.
[DUR2825]
56. The disturbance of rock boulders rolling down the steep sloping terrain during
construction is to be mitigated by the inclusion of temporary fencing or earth
bunds for ensure site safety and to ensure neighbouring properties are not
affected.
[DURNS01]
57. Any disturbance of soil below 5 m AHD is to be carried out in accordance with
the Acid Sulfate Soils Management Plan prepared by Geotech Investigations Pty
Ltd and dated 21 March 2013, except where as varied by this consent.
58. The implementation of the Acid Sulfate Soils Management Plan is to be the
responsibility of the Site Manager.
59. Where a RAP is required in accordance with Schedule A of this consent, all
works are to be carried out in accordance with the RAP, to the satisfaction of the
General Manager or his delegate.
60. During construction, all works are to be carried out in accordance the Council
approved construction noise assessment, including recommendations of the
construction noise assessment.
61. During construction, all works are to be carried out in accordance the Council
approved dust management plan.
62. All demolition works are to be carried out in accordance with the Council
approved demolition plan.
[DURNS02]
63. 60 days prior to lodgment of Application for Subdivision Certificate, an accurate
plan of the subdivision is to be submitted to Council indicating all public land to
be dedicated to Council (including Drainage Reserves, Sewer Pump Stations,
Parks, Sports Fields, Conservation Areas and other lands as defined and
excluding Roads, etc). The function of all such public land is to be indicated to
allow classification of the land parcel by Council as either Operational or
Community Land, as detailed in the Local Government Act 1993.
[DURNS03]
64. All operations must comply with the fauna and flora management measures as
outlined in the Flora and Fauna Management Plan Lot 1 DP407094 & Part Lot 1
DP598073 Version 2 dated June 2013 prepared by Habitat Environment
Management Trading P/L unless otherwise amended and approved by Council's
General Manager or modified as a result of conditions of this approval. In the
event that any threatened species, populations, ecological communities or their
habitats not addressed in the report are discovered during operations,
appropriate Plans of Management for those species must be formulated to the
satisfaction of the General Manager or delegate. No further operational works
will take place until the Plan(s) of Management is/are approved.
[DURNS04]
Page 73
USE
65. The development shall be carried out in accordance with the provisions of the
acoustic report as per Schedule A of this consent, to the satisfaction of the
General Manager or his delegate.
[USENS01]
PRIOR TO ISSUE OF SUBDIVISION CERTIFICATE
66. Prior to issue of a subdivision certificate, all works/actions/inspections etc
required by other conditions or approved management plans or the like shall be
completed in accordance with those conditions or plans.
[PSC0005]
67. A certificate of compliance (CC) under Sections 305, 306 and 307 of the Water
Management Act 2000 is to be obtained from Council to verify that the necessary
requirements for the supply of water and sewerage to the development have
been made with the Tweed Shire Council.
Pursuant to Section 109J of the Environmental Planning and Assessment Act,
1979 a Subdivision Certificate shall NOT be issued by a Certifying Authority
unless all Section 64 Contributions have been paid and the Certifying Authority
has sighted Council's "Contribution Sheet" and a "Certificate of Compliance"
signed by an authorised officer of Council.
Annexed hereto is an information sheet indicating the procedure to follow to
obtain a Certificate of Compliance:
Water DSP5:
35 ET @ $12575 per ET
$440125
Sewer Kingscliff:
35 ET @ $6042 per ET
$211470
These charges to remain fixed for a period of twelve (12) months from the date
of this consent and thereafter in accordance with the rates applicable in
Council's adopted Fees and Charges current at the time of payment.
A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS
CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT.
Note: The Environmental Planning and Assessment Act, 1979 (as amended)
makes no provision for works under the Water Management Act 2000 to be
certified by an Accredited Certifier.
[POC0675/PSC0165]
68. Section 94 Contributions
Payment of the following contributions pursuant to Section 94 of the Act and the
relevant Section 94 Plan.
Pursuant to Section 109J of the Environmental Planning and Assessment Act,
1979 a Subdivision Certificate shall NOT be issued by a Certifying Authority
unless all Section 94 Contributions have been paid and the Certifying Authority
has sighted Council's "Contribution Sheet" signed by an authorised officer of
Council.
A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS
CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT.
These charges include indexation provided for in the S94 Plan and will remain
fixed for a period of 12 months from the date of this consent and thereafter in
Page 74
accordance with the rates applicable in the current version/edition of the
relevant Section 94 Plan current at the time of the payment.
A copy of the Section 94 contribution plans may be inspected at the Civic and
Cultural Centres, Tumbulgum Road, Murwillumbah and Brett Street, Tweed
Heads.
(a)
Tweed Road Contribution Plan:
227.5 Trips @ $1176 per Trips
$267540
($1137 base rate + $39 indexation)
S94 Plan No. 4
Sector6_4
(b)
Open Space (Casual):
35 ET @ $543 per ET
$19005
S94 Plan No. 5
(c)
Open Space (Structured):
35 ET @ $622 per ET
$21770
S94 Plan No. 5
(d)
Shirewide Library Facilities:
35 ET @ $838 per ET
$29330
S94 Plan No. 11
(e)
Bus Shelters:
35 ET @ $64 per ET
$2240
S94 Plan No. 12
(f)
Eviron Cemetery:
35 ET @ $123 per ET
$4305
S94 Plan No. 13
(g)
Community Facilities (Tweed Coast - North)
35 ET @ $1389 per ET
$48615
($1305.6 base rate + $83.4 indexation)
S94 Plan No. 15
Page 75
(h)
Extensions to Council Administration Offices
& Technical Support Facilities
35 ET @ $1860.31 per ET
$65110.85
($1759.9 base rate + $100.41 indexation)
S94 Plan No. 18
(i)
Cycleways:
35 ET @ $473 per ET
$16555
S94 Plan No. 22
(j)
Regional Open Space (Casual)
35 ET @ $1091 per ET
$38185
S94 Plan No. 26
(k)
Regional Open Space (Structured):
35 ET @ $3830 per ET
$134050
S94 Plan No. 26
[POC0395/PSC0175]
69. Prior to the issue of a Subdivision Certificate a defect liability bond (in cash or
unlimited time Bank Guarantee) shall be lodged with Council.
The bond shall be based on 5% of the value of the (public infrastructure) works
(minimum as tabled in Council's fees and charges current at the time of
payment) which will be held by Council for a period of 6 months from the date on
which the plan of subdivision is registered.
It is the responsibility of the proponent to apply for refund following the
remedying of any defects arising within the 6 month period.
[PSC0215]
70. Prior to the issue of a Subdivision Certificate, a performance bond equal to 25%
of the contract value of the footpath construction works shall be lodged for a
period of 3 years or until 80% of the lots fronting paved footpaths are built on.
Alternatively, the developer may elect to pay a cash contribution to the value of
the footpath construction works plus 25% in lieu of construction and Council will
construct the footpath when the subdivision is substantially built out. The cost
of these works shall be validated by a schedule of rates.
[PSC0225]
71. A bond to ensure acceptable plant establishment and landscaping performance
at time of handover to Council shall be lodged by the Developer prior to the
issue of the Subdivision Certificate. The bond shall be held by Council for a
period of 12 months from the date of issue of the Subdivision Certificate and
may be utilised by Council during this period to undertake essential plant
establishment or related plant care works, should non compliance occur. Any
Page 76
balance remaining at the end of the 12 months establishment period will be
refunded.
The amount of the bond shall be 20% of the estimated cost of the landscaping or
$3000 whichever is the greater.
[PSC0235]
72. Any damage to property (including pavement damage) is to be rectified to the
satisfaction of the General Manager or his delegate PRIOR to the issue of a
Subdivision Certificate. Any work carried out by Council to remove material
from the roadway will be at the Developers expense and any such costs are
payable prior to the issue of a Subdivision Certificate.
[PSC0725]
73. Prior to the issue of a Subdivision Certificate, Work as Executed Plans shall be
submitted in accordance with the provisions of Tweed Shire Council's
Development Control Plan Part A5 - Subdivision Manual and Council's
Development Design Specification, D13 - Engineering Plans.
The plans are to be endorsed by a Registered Surveyor OR a Consulting
Engineer Certifying that:
(a)
all drainage lines, sewer lines, services and structures are wholly contained
within the relevant easement created by the subdivision;
(b)
the plans accurately reflect the Work as Executed.
Note: Where works are carried out by Council on behalf of the developer it is the
responsibility of the DEVELOPER to prepare and submit works-as-executed
(WAX) plans.
[PSC0735]
74. A Subdivision Certificate will not be issued by the General Manager until such
time as all conditions of this Development Consent have been complied with.
[PSC0825]
75. The creation of easements for services, rights of carriageway and restrictions as
to user (including restrictions associated with planning for bushfire) as may be
applicable under Section 88B of the Conveyancing Act including (but not limited
to) the following:
(a)
Easements for sewer, water supply and drainage over ALL public
services/infrastructure on private property.
(b)
A restriction to user for a 30m wide separation buffer is required on
proposed Lot 38 as per the Land Use Conflict Management Strategy
prepared by Place Design Group Pty Ltd and dated 16 August 2013. The
restriction to user is to state that no agricultural activities are to occur
within the 30m wide buffer and is to be maintained in perpetuity, burdening
proposed Lot 38 and benefiting proposed Lots 6 through to Lot 14.
(c)
A positive covenant for a 10m wide vegetated buffer is required on
vegetated buffer is to be maintained in perpetuity, burdening proposed Lot
38 and benefiting proposed Lot 6 through to Lot 14 inclusive.
(d)
A positive covenant is required to maintain a 1.8m acoustic fence
constructed with lapped-style timber or equivalent in perpetuity on
Page 77
covenant is to burden proposed Lot 38 and benefit proposed Lot 6 through
to Lot 14 inclusive.
(e)
A positive covenant is required for future dwellings on proposed Lot 6
through to Lot 14 inclusive requiring the design of future dwellings on
these allotments to be air conditioned and capable of having all doors and
windows fully closed.
(f)
A positive covenant is required for agricultural activities conducted on
proposed consolidated Lots 38 & 39. The positive covenant is to state that
agricultural activities are to be carried out in accordance with the Farm
Management Practices prepared by Wilson’s Commercial Real Estate and
dated 7 August 2013. These agricultural activities may include pesticide
spraying, which is regulated under the Pesticides Act 1999. Agricultural
activities may only be carried out during daylight hours. The positive
covenant is to burden proposed consolidated Lots 38 and 39.
(g)
A restriction to user is required for a future dwelling on proposed Lot 33
stating that a residential dwelling may only be constructed on the southern
half of proposed Lot 33.
(h)
Restriction as to user regarding the 'Proposed Environment Covenant B 424m²' shown on Plan No 1 Rev. O Proposed Subdivision dated 13
September 2013 prepared by Bennett & Bennett - this area must be subject
to an approved ecological restoration program (undertaken in accordance
with an approved habitat restoration plan) and managed as a natural area
for conservation purposes in perpetuity.
(i)
Restriction as to user regarding the 'Proposed Environment Covenant B 424m²' shown on Plan No 1 Rev. O Proposed Subdivision dated 13
September 2013 prepared by Bennett & Bennett - The following activities
are not permitted within this area:
i.
Clearing, lopping or removal of any native plants, whether existing at
the date of this approval or planted pursuant to conditions of this
approval unless otherwise approved by Council's General Manager or
delegate;
ii.
Erection of any fixtures or improvements, including buildings or
structures;
iii.
Construction of any trails or paths;
iv.
Depositing of any fill, soil, rock, rubbish, ashes, garbage, waste or
other material foreign to the protected area;
v.
Keeping or permitting the entry of domestic animals or any other
animals that are not indigenous to the Covenant Area; and
vi.
Performance of any other acts which may have detrimental impact on
the values of the Covenant Area. The area must be managed in
accordance with the approved habitat restoration plan for the life of
the development and the use of the premises.
Pursuant to Section 88BA of the Conveyancing Act (as amended) the Instrument
creating the right of carriageway/easement to drain water shall make provision
Page 78
for maintenance of the right of carriageway / easement by the owners from time
to time of the land benefited and burdened and are to share costs equally or
proportionally on an equitable basis.
Any Section 88B Instrument creating restrictions as to user, rights of
carriageway or easements which benefit Council shall contain a provision
enabling such restrictions, easements or rights of way to be revoked, varied or
modified only with the consent of Council.
Privately owned infrastructure on community land may be subject to the
creation of statutory restrictions, easements etc in accordance with the
Community Land Development Act, Strata Titles Act, Conveyancing Act, or other
applicable legislation.
[PSC0835]
76. Submit to Council's Property Officer for approval an appropriate plan indicating
the street/road address number to both proposed and existing lots.
In
accordance with clause 60 of the Surveying and Spatial Information Regulation
2012 the Plan of Subdivision (Deposited Plan) shall show the approved street
address for each new lot in the deposited plan.
[PSC0845]
77. Council's standard "Asset Creation Form" shall be completed (including all
quantities and unit rates) and submitted to Council with the application for
Subdivision Certificate.
[PSC0855]
78. Prior to registration of the plan of subdivision, a Subdivision Certificate shall be
obtained.
The following information must accompany an application:
(a)
original plan of subdivision prepared by a registered surveyor and 7 copies
of the original plan together with any applicable 88B Instrument and
application fees in accordance with the current Fees and Charges
applicable at the time of lodgement.
(b)
all detail as tabled within Tweed Shire Council Development Control Plan,
Part A5 - Subdivision Manual, CL 5.7.6 and Councils Application for
Subdivision Certificate including the attached notes.
Note: The Environmental Planning and Assessment Act, 1979 (as amended)
makes no provision for works under the Water Supplies Authorities Act, 1987 to
be certified by an Accredited Certifier.
[PSC0885]
79. Prior to the application for a Subdivision Certificate a Compliance Certificate or
Certificates shall be obtained from Council OR an accredited certifier for the
following:(a)
Compliance Certificate - Roads
(b)
Compliance Certificate - Water Reticulation
(c)
Compliance Certificate - Sewerage Reticulation
(d)
Compliance Certificate - Drainage
Note:
Page 79
1.
All compliance certificate applications must be accompanied by
documentary evidence from the developers Subdivision Works Accredited
Certifier (SWAC) certifying that the specific work for which a certificate is
sought has been completed in accordance with the terms of the
development consent, the construction certificate, Tweed Shire Council’s
Development Control Plan Part A5 - Subdivisions Manual and Councils
Development Design and Construction Specifications.
2.
The EP&A Act, 1979 (as amended) makes no provision for works under the
Water Management Act 2000 to be certified by an "accredited certifier".
[PSC0915]
80. The six months Defects Liability Period commences upon the registration of the
Plan of Subdivision.
[PSC0925]
81. A formal asset handover of all water quality control devices is to be
implemented at the completion of the maintenance period ("Off Maintenance"),
whereby all relevant stakeholders will inspect the device and be issued with a
current operational manual for the device.
[PSC1025]
82. Prior to the issue of a Subdivision Certificate and also prior to the end of defects
liability period, a CCTV inspection of any stormwater pipes and gravity sewerage
systems installed and to be dedicated to Council including joints and junctions
will be required to demonstrate that the standard of the infrastructure is
acceptable to Council.
Any defects identified by the inspection are to be repaired in accordance with
Councils Development Design and Construction Specification.
All costs associated with the CCTV inspection and repairs shall be borne by the
applicants.
[PSC1065]
83. Prior to the release of the subdivision certificate the proponent shall:
(a)
Dedicate the proposed drainage reserve at no cost to Council.
(b)
Submit an accurate plan of the proposed drainage reserve to Council 60
days prior to lodgement of Application for Subdivision Certificate to allow
the land to be classified.
[PSC1075]
84. Prior to issuing a Subdivision Certificate, reticulated water supply and outfall
sewerage reticulation shall be provided to all lots within the subdivision in
accordance with Tweed Shire Council’s Development Control Plan Part A5 Subdivisions Manual, Councils Development Design and Construction
Specifications and the Construction Certificate approval.
The Environmental Planning and Assessment Act, 1979 (as amended) makes no
provision for works under the Water Management Act, 2000 to be certified by an
Accredited Certifier.
[PSC1115]
85. The production of written evidence from the local telecommunications supply
authority certifying that the provision and commissioning of underground
telephone supply at the front boundary of the allotment has been completed.
Page 80
[PSC1165]
86. Electricity
(a)
The production of written evidence from the local electricity supply
authority certifying that reticulation and energising of underground
electricity (residential and rural residential) has been provided adjacent to
the front boundary of each allotment; and
(b)
The reticulation includes the provision of fully installed electric street lights
to the relevant Australian standard. Such lights to be capable of being
energised following a formal request by Council.
Should any electrical supply authority infrastructure (sub-stations,
switching stations, cabling etc) be required to be located on Council land
(existing or future), then Council is to be included in all negotiations.
Appropriate easements are to be created over all such infrastructure,
whether on Council lands or private lands.
Compensatory measures may be pursued by the General Manager or his
delegate for any significant effect on Public Reserves or Drainage
Reserves.
[PSC1185]
87. Where new state survey marks and/or permanent marks are placed a copy of the
locality sketch relating to the marks shall be submitted to Council within three
months of registration of the Subdivision Certificate in accordance with the
Survey Practices Regulation.
[PSCNS01]
88. Documentary evidence is to be provided that the right of carriageway and
footway plus any existing unnecessary easements no longer required are
extinguished prior to the issue of a Subdivision Certificate.
[PSCNS02]
89. Prior to the issue of the subdivision certificate the vegetated buffer is to be
established on Lot 38 in accordance with the approved landscape plan.
90. Prior to the issue of the subdivision certificate the acoustic fence is to be
constructed on Lot 38 in accordance with the Land Use Conflict Management
Strategy prepared by Place Design Group Pty Ltd and dated 16 August 2013. The
acoustic fence is to be at least 1.8 m high, constructed with lapped-style timber
or equivalent.
[PSCNS03]
91. The developer is to undertake care and maintenance operations on all
streetscapes and public open space for a minimum of 12 months after the
Subdivision is registered with the Land Titles Office. This is the establishment
period for new plantings. Such maintenance will include all soft landscaping,
particularly mowing and weed control. Any power and water consumption costs
during this period must also be met by the developer.
[PSCNS04]
92. A bond to ensure acceptable plant establishment and landscaping performance
at time of handover to Council shall be lodged by the Developer prior to the
issue of any Subdivision Certificate. The bond shall be held by Council for a
minimum period of 12 months from the date of issue of the Subdivision
Certificate (or longer if required by the approved Landscaping Plan) and may be
Page 81
utilised by Council during this period to undertake essential plant establishment
or related plant care works, should non compliance occur. Any balance
remaining at the end of the 12 months establishment period will be refunded.
The amount of the bond shall be 20% of the estimated cost of the landscaping or
$3000 whichever is the greater.
93. Prior to issue of a Subdivision Certificate, Work as Executed Plans (WAX) must
be submitted for the streetscape. These must show all plantings, footpaths and
underground services. The plans are to be certified by a registered surveyor or
consulting engineer.
Two categories of WAX plans are to be provided:
a)
The original approved plan with any variation to this indicated.
b)
Plan showing only the actual as constructed information.
The plans are to be submitted in the following formats:
a)
2 paper copies of the same scale and format as the approved plan.
b)
A PDF version on CD or an approved medium.
c)
An electronic copy in DWG or DXF format on CD or an approved medium.
94. Environmental restoration works shall be completed to a level specified in the
approved Habitat Restoration Plan prior to the release of the subdivision
certificate and shall be maintained at all times in accordance with the approved
Plan.
95. The final Habitat Restoration Plan report is to be approved by the General
Manager or delegate prior to release of the first subdivision certificate.
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REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Wilson's Commercial Real Estate
Mr Ross A Julius
Lot 1 DP 407094 Cudgen Road, Cudgen and Lot 1 DP 598073 No. 17
Collier Street, Cudgen
5(a) School, 1(b1) Agricultural Protection, 1(b2) Agricultural Protection,
2(a) Low Density Residential
$2,000,000
Background:
Council has received a development application for a residential subdivision comprising 40
lots at Cudgen Road and Collier Street, Cudgen. The site has an area of 18.69ha
comprising of two allotments designated as:
•
Lot 1 on DP407094: Zone 5(a) Special Uses (School) of approximately 1,353m2.
•
Lot 1 on DP598073: Zone 2(a) Low Density Residential, Zone 1(b1), Zone 1(b2)
Agricultural Protection and Clause 38 TLEP 2000 of approximately 18.56ha.
The subject application proposes a subdivision comprising 40 lots ranging from a proposed
road and associated infrastructure.
·
averaging 598.5m2.
·
Lot 38 – 39 - Residual lots to remain for agricultural purposes.
·
The original application was for 44 lots however this was amended to be able to cater for a
number of items requested throughout the assessment process. These will be detailed later
in the report.
Stormwater
The proposal results in an increase in impervious area and therefore an increase in the
quantity of stormwater runoff. The major stormwater issue was the lawful point of discharge.
Throughout the assessment Council has maintained that the development’s only lawful point
of discharge is the 'East-West drain' at Altona Drive. It was deemed unacceptable to
discharge stormwater to the private agricultural drains to the North of the property as
proposed.
Some difficulty was encountered trying to discharge runoff from the development to this
lawful point of discharge without mixing with stormwater from the existing private agricultural
drains. After multiple iterations, the current concept of piping stormwater from the bioretention/detention basin out to Crescent Street and to the northern side of the existing
culvert located north of the proposed intersection and directed towards Altona Road via an
open channel was agreed upon. Conditions of consent have been included within the
recommendations relating to stormwater.
Surrounding Development/Buffer issues
The site is currently operating for agricultural purposes and contains an existing single unit
dwelling and farming sheds which complement the agricultural/farming use. The site is
positioned adjacent to a primary school (south) and residential dwelling (to the east).
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Agricultural uses continue to the east and north of the site. The site acts as the western
edge of Cudgen Village urban area as shown in the following figure:
Figure 3 – Aerial photograph of subject site
There is an existing approved Sand Quarry located to the north of the subject site. NSW
Industry and Investment was notified and responded with the following:
"Industry and Investment - Mineral Resource Branch is seriously concerned about the
close proximity of the subject area to the Crescent Street sand resource (operated on
a continuous basis by Hanson), the Cudgen Lakes sand resource (site of the proposed
Gales-Kingscliff’s Cudgen Lakes Project) and the extensive, potential sand resource
mapped to the west of these sites. The resources are all large and have, or will
potentially have long operational lives, and council should consider possible
environmental impacts from current and future operations on the subject area.
Council should ensure that measures are put in place to mitigate potential impacts on
the proposed development by the use of buffers between any operations and the
proposed development.
Proponents seeking to develop the site should also
demonstrate that the presence of such development would not restrict sand
operations.
The resources adjoining the subject area were included in the Mineral Resource Audit
which was recently completed for Tweed Shire Council (a data package was sent to
council in May 2011). The audit was conducted in accordance to Section 117(2)
Direction 1.3 – Mining, Petroleum Production and Extractive Industries under the
Environmental Planning and Assessment Act 1979. In reference to the Mineral
Resource Audit, the proposed development is located within a transition zone (formerly
referred to as buffer zones) of the Crescent Street and Cudgen Lakes resources."
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This information was forwarded onto the applicant requesting further information in relation
to the proposed development, particularly in regards to acoustic issues. The applicant
responded with the following:
"Approved by the Minister for Planning in 2009, the Cudgen Lakes Sand Extraction
Project adjoins the project site to the north. The Environmental Assessment failed to
take into account the subject land which has been zoned residential since 1987. Of
concern are the amenity impacts to the proposal site, most notably operational noise.
The Environmental Assessment undertook predicted operational noise modelling that
in the absence of mitigating measures, noise emissions would comply with criteria
under most operating conditions. To avoid exceedence of levels above that allowed
the following mitigation measures have been included in the quarry project:
·
Acoustically treating the dredge to reduce the sound power level emitted to 97
dB(A) or lower;
·
Increasing the height of the noise barrier on the southern side of the processing
area by installing an acoustic fence on the bund; and
·
Enclosing noisier components of the processing plant, designed in conjunction
with the noise barrier, to achieve a noise reduction of 5 dB(A) at relevant
receptors."
To the north east of the site there is a residential subdivision (S93/0076 - Development
Application - 96 lot residential subdivision) which was approved 25/01/1994.
Council’s Environmental Health Unit raised concerns in relation to the acoustic issues and
has determined to put a number of items in place to ensure acoustic impacts are kept to a
minimum. It is acknowledged that the sand extraction was approved after part of Lot 1 DP
598073 was zoned for residential purposes. However, the information provided by the
applicant does not sufficiently demonstrate that there is a suitable separation between the
sand extraction and residential land uses. The most appropriate option to progress the
current application would be to recommend a deferred commencement condition requiring,
that the applicant provide an acoustic report prepared by a suitably qualified acoustic
consultant. The acoustic report should predict noise impacts at residential lots as a result of
sand extraction activities, and if required, recommend measures to reduce impacts. An
appropriate deferred commencement condition is recommended.
It is therefore considered appropriate to implement these items within the recommended
conditions.
Contaminated Land
Information relating to land contamination was provided by Gilbert and Sutherland. The
Statement of Environmental Effects (to be referred to as 'SEE') included a Preliminary
Contamination Assessment (to be referred to as 'PCA'). The PCA stated that a land use
history assessment, and soil sampling and analysis were carried out. The PCA concluded
that minor contamination could be easily remediated to ensure that the residential
component of the subdivision is suitable for residential use.
However, Council’s Environmental Health Unit has advised that additional soil sampling and
analysis is required. Information provided by Gilbert and Sutherland indicates that the
subject site is capable of being remediated to ensure that the residential component of the
subdivision is suitable for residential use. It is likely that only minor remediation would be
required. An appropriate deferred commencement condition is recommended.
Orientation and Lot Sizes
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The majority of the allotments are orientated in an east to west configuration. Wherever
possible, north-facing slopes have been utilised in the design to improve the solar access.
Lot sizes are generally rectangular in shape with over the minimum of 9m kerb frontage.
The residential allotments range in size from 450m2 to 1039m2 with an average of 598.5m2.
A review of the subdivision pattern of Cudgen has revealed that there are a number of
allotments within Cudgen that are below the 450m2 with the majority of allotments being
between 450m2 - 900m2 as shown on Figure 1 below. It can also be seen that the majority
of the allotments for the proposed subdivision pattern are between 450m2 - 900m2 as shown
on Figure 2.
Figure 1 - Existing subdivision pattern (Cudgen)
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Figure 2 - Proposed subdivision pattern
Flora and Fauna
A Flora and Fauna Report was submitted with the application and amended as a result of
the information request. This report identified five significant trees of greater than 500mm
diameter at base height (dbh). All trees identified on the plan are situated either within the
road reserve or proposed covenant area encumbered to Lot 33 and therefore will not be
removed.
The remaining trees across the balance of the development site either comprise of orchard
species or the declared weed Cinnamomum camphora (Camphour Laurel). Regardless of
the limited extent of habitat available to native fauna, management measures shall be
implemented during clearing operations to ensure that any native fauna utilising any of the
remaining vegetation are not injured or harmed during construction and if necessary
translocated to more suitable habitat in close proximity by a licensed spotter catcher.
Road Network
A traffic report prepared by CRG dated 27 May 2013 has been submitted with the
application.
The traffic report concludes that the subdivision will generate 37 peak hour vehicle trips and
396 daily trips and that the proposed 40 lot subdivision will not significantly affect the
surrounding road network.
The proposed road network details an internal loop road with two intersections into Cudgen
Village, these being Collier Street and Crescent Street respectively. The layout plan shows
the proposed road as having a 7.5m wide pavement within a 15m wide road reserve.
Following advice from Council’s Design and Works units, it is noted that Collier Street is to
be upgraded with the works programmed to be scheduled in this financial year’s budget.
Community consultation and design plans have been completed by Council. The applicant
was advised in a meeting held 31 July 2013 that Council will upgrade Collier Street although
the developer will be required to reconstruct Collier Street from the property boundary of Lot
71 DP 755701 into the subdivision as per Drawing No. K2027 issue A titled ‘Preliminary
Roadworks Plan’ prepared by Knobel Consulting dated 3 June 2013.
No objections or issues to the traffic report and proposed subdivision have been raised by
Council’s Traffic Engineer.
Earthworks
Existing levels and proposed levels as detailed on Knobel Consulting plans shows a
maximum of 2.7m of cut in the north west of the site and maximum fill level of 2.6m in the
north east of the site. The majority of cut and fill on the site ranges from 0.5m to 1m. This is
considered to be minor in relation to the existing form of the site which generally preserves
the natural landform.
The earthworks sections show the boundary levels around the external perimeter have been
preserved with the exception of fill up to 2.2m on the Crescent Street Road reserve (near
proposed Lot 33). Three retaining walls are proposed, which generally average 1m in
height.
Slope
The land slopes to the north east with gradients ranging from moderate (7% to 9%) to steep
slopes (18% to 20% - middle of site) and again to moderate slopes (7% to 9%) near the
existing dam to the north.
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Council’s enlighten system details approximately half to two thirds of the 2(a) Low Density
Residential zoned area where the development is proposed as being affected by slopes
between 8 to 18 degrees. Earthworks have been kept to a minimum and the design of the
subdivision has taken the slope of the land into consideration.
Agricultural Land
Residual Lot 38 is to remain for agricultural purposes. In order to limit the impact of these
agricultural practices a number of mitigation measures are proposed as follows:
·
A 30m buffer along the western part of the residential component of the
subdivision and along a short section of the northern part.
·
A 1.8 m high acoustic fence along the western part and along a short section of
the northern part.
·
Within the buffer, a vegetation buffer at least 10 m wide.
·
Design restrictions applicable to Lot 6 through to Lot 14 inclusive.
·
Restrictions on horticultural/agricultural activities on adjacent lots (Lots 38 and
39).
The proposed development was referred to Industry and Investment NSW (Division of
Primary Industries) on 14 February 2013. Industry and Investment raised no concerns in
regards to the Agricultural Land impact however raised issues in regards to the approved
sand quarry located to the north of the subject site. This will be detailed later in this report.
Department of Planning and Infrastructure
The Development Application required concurrence from the Department of Planning and
Infrastructure due to the minimum allotment size. Concurrence was granted on 13 February
2013 for the following reasons:
1.
No issues of state or regional significance are raised;
2.
Creation of the residue lot is an administrative matter; and
3.
Creation of the small lot for bio-retention basin (Lot 39) is of minor significance.
The proposed development was amended during the assessment to reduce the number of
allotments.
Proposed lots 38 and 39 will be conditioned to be consolidated into 1 allotment having a
total area of 15.1454ha and will be split zoned 1(b1) and 1(b2) and will continue to be
utilised for agricultural purposes such as the existing cropping/orchid pursuits.
The SEPP No. 1 objection relates to the portion of the combined lots 38 and 39 which is
located within the 1(b2) zone. This equates to a total area of 5.2382ha within the proposed
lot which is under the 40ha minimum.
Lot 40 will not require a SEPP No. 1 objection as the lot will not be used for agricultural or
residential purposes under Clause 20(3) of the Tweed Local Environmental Plan as outlined
in this report.
Objections
16 submissions have been received which have raised concerns in relation to: The main
points of the objections are as follows:
a.
Lot sizes too small;
b.
Earthworks required for steep land;
Page 88
c.
Increased traffic congestion/safety issues;
d.
Acoustic issues between school and Lots 1-6;
e.
No recreation area;
f.
Inconsistent density with the rest of Cudgen Village;
g.
Collier Street already damaged;
h.
Increased crime and safety concerns;
i.
7.5m too small for internal road;
j.
Infrastructure capacity already at maximum;
k.
No parking along Collier Street;
l.
No drainage along Collier Street;
m.
School enrolment currently at maximum;
n.
No provision or room for footpaths along Collier Street;
o.
Safety of students who attend Cudgen Primary as there are no pedestrian areas
along Collier Street;
p.
Reduced Amenity;
q.
Loss of valuable farmland;
r.
Impact upon Pine Trees (Heritage Listed) along Collier Street;
s.
Access to school becomes unsafe;
t.
Infrastructure being located outside of the land zoned for residential (i.e. road
infrastructure proposed in 1(b2) zone;
u.
Are retaining walls being used;
v.
Crime Prevention.
Each of these submissions will be addressed further in this report.
Infrastructure Charges
The proposed development is for 40 allotments however only 37 of these allotments are for
residential purposes. Council’s Strategic and Assets Engineer has advised the following:
"Section 64 Development contributions should be calculated at the rate of 1 ET per lot
for both Water Supply and Sewer with a credit of 2 ET each for existing allotments."
As there were two lots originally and there will be 37 allotments which will be subject to
infrastructure charges being proposed Lots 1-37 it is expected that 35 new ET’s are
chargeable to the proposal. Lots 38, 39 and 40 will not have any credit for ET’s as a result
of this as they will not have dwelling entitlements.
Council Referrals
The current application before Council has been referred to the relevant Council officers for
their consideration.
Council’s Environmental Health Unit (EHU) has advised that the amended details in relation
to amenity; land-use conflict (new residences with surrounding agricultural land uses) are
acceptable provided the appropriate conditions of consent are included within the
recommendations.
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Council's Development Engineering Unit and Planning and Infrastructure Engineer have
advised that the proposed development is supported subject to the recommended
conditions of consent.
Council’s Natural Resource Management (NRM) Unit has advised that they have no
objections to the proposal provided the conditions provided are implemented into any
recommendations.
Council’s Open Space Officer has advised they have no objections subject to the proposed
conditions of approval.
Council’s Traffic Engineer has advised they have no objections subject to the proposed
conditions of approval.
It is considered that the applicant has adequately addressed all of the previous requests for
further information and following an assessment of the additional information against the
relevant heads of consideration, and provided a number of conditions are applied to any
consent, the application is recommended for deferred commencement approval.
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SITE DIAGRAM:
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Considerations under Section 79c of the Environmental Planning and Assessment
Act 1979:
(a)
(i)
Tweed Local Environmental Plan 2000
A principle aim of the Plan is to ensure:
The management of growth so that the unique natural and developed
character of the Tweed Shire is retained, and its economic vitality,
ecological integrity and cultural fabric is enhanced [and] to encourage
sustainable economic development of the area of Tweed compatible with
the area’s environmental and residential amenity qualities.
In general it is considered that the proposed subdivision would accord with the
aims of the Tweed Local Environmental Plan (TLEP) 2000. The application has
been referred to the relevant units in Council who have considered relevant details
relating to flooding, land forming, and ecological impacts. It is considered that the
proposal would be unlikely to impact on the area’s environmental or residential
amenity qualities to such an extent to warrant refusal of the proposal.
The intent of this clause is to provide for development which is compatible with
principles of ecological sustainable development (ESD) including the
precautionary principle, inter-generational equity, ecological and environmental
factors.
It is considered that the proposal would be consistent with the objectives of the
zone, as detailed further within this report. It is also considered that, given the site
does not comprise any protected or endangered vegetation communities, that the
proposal would be unlikely to result in irreversible environmental damage and
would accord with the principles of ecological sustainable development, provided
the development is carried out in accordance with the recommended conditions of
consent (in relation to vegetation clearance, as detailed further within this report).
11) only if:
(a)
(b)
(c)
The subject sites have multiple zones which are the 2(a) Low Density Residential
zone, 5(a) Special Uses (School) zone and the 1(b1) and 1(b2) Agricultural
Protection zone. The objectives each zone will be detailed further below. It is
considered that the proposed development is consistent with the primary objective
of the zones.
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As detailed further within this report, it is also considered that the proposal would
be consistent with the other aims and objectives of the TLEP 2000 that are relevant
to the development. Further, it is considered that the proposal, provided it is
carried out in accordance with the conditions of the consent, would be unlikely to
impact on the locality or catchment to such an extent to warrant refusal of the
proposal. The development would not have an unacceptable cumulative impact if
managed in accordance with the recommended conditions.
Zone 1(b) Agricultural Protection
Primary objective
•
to protect identified prime agricultural land from fragmentation and the
economic pressure of competing land uses.
Secondary objective
•
to allow other development that is compatible with agricultural activities.
The proposed subdivision is located within a portion of land which contains 1(b1)
and 1(b2) Agricultural Protection. The site is located within a parcel of land which
has multiple zones.
The intent of the proposal is to subdivide off the 2(a) Low Density Residential zone
and maintain the agricultural protection zone in three residue allotments being
proposed lots 38, 39 and 40. A small section of the proposed road is to be located
within the 1(b2) portion of the lot however it is considered that this is minor in
nature and will not impact upon the rest of the prime agricultural land. The location
of the road is identified as a future road under Clause 38 of the LEP. The road will
not fragment any agricultural land, as the road is directly adjacent to residential
land under Zone 2(a) and will separate residential land from agricultural land.
A stormwater detention basin (defined as an ‘urban stormwater water quality
management facility’ in the LEP) will be constructed in land under this Zone and be
located within proposed lot 40.
This detention basin is compatible with surrounding agricultural activities. The
detention basin will be located adjacent to a road and residential development and
so will not fragment agricultural land.
The residue lots will continue to be utilised for agricultural purposes and is
therefore considered to be consistent with the primary objective of the land.
Zone 2(a) Low Density Residential
Primary objective
•
to provide for and maintain a low density residential environment with a
predominantly detached housing character and amenity.
Secondary objectives
•
to allow some diversity of housing types provided it achieves good urban
design outcomes and the density, scale and height is compatible with the
primary objective.
•
to allow for non-residential development that is domestically based, or
services the local needs of the community, and does not detract from the
primary objective of the zone.
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The proposed development involves a 40 lot subdivision which is consistent with
the primary objective of this zone. Primarily detached residential development is
proposed, which will create a detached housing character and amenity on the land.
Zone 5(a) Special Uses (School) zone
Primary objective
•
to identify land which is developed or is proposed to be developed, generally
by public bodies, for community facilities and services, roads, railways,
utilities and similar things.
Secondary objective
•
to provide flexibility in the development of the land, particularly if it is not yet
or is no longer required for the relevant special use.
The proposed subdivision is consistent with this zone, by virtue of the zones
secondary objective.
The primary objective of the zone states that land is to be developed for public or
community facilities.
However, the secondary objective provides “flexibility in the development of the
land, particularly if it is not yet or is no longer required for the relevant special use.”
In this instance, the land under Zone 5(a) is adjacent to a school, but the land itself
contains a detached dwelling (house). It is therefore considered the subject land is
not required for school purposes, but is appropriate for residential purposes.
The proposed residential subdivision over this land would therefore be consistent
with this objective and the zone generally.
Clause 14 - Development near zone boundaries
Objective
·
To provide flexibility where detailed investigation of a site and its
surroundings reveals that a use allowed on the other side of a zone
boundary would enable more logical and appropriated development of
a site.
This clause applies to land which is:
·
Within 20 metres of a boundary between any two of Zones 1(c), 2(a),
2(b), 2(c), 2(d), 2(e), 2(f), 3(a), 3(b), 3(c),3(d),3(e), 4(a), 5(a),6(a) and 6
(b), or
·
Within 50 metres of a boundary between Zones 1(a) and 1(b), or
·
Within 50 metres of a boundary between any zone referred to in
paragraph (a) and any zoned referred to in paragraph (b).
They proposed development involves the subdivision of 2(a) and 5(a) zoned land
from the 1(b) and 1(b2) zoned land. The 5(a) land is no longer utilised for school
purposes, but is appropriate for residential purposes. The 5(a) zoned land is within
20 metres of 2(a) zoned land.
Clause 15 of the TLEP 2000 requires that available services are adequate and that
development does not occur without adequate measures to protect the
environment and community health prior to determining a development application.
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The primary objective is to ensure that development does not occur without
adequate measures to protect the environment and the community’s health.
The subdivision development will provide reticulated water and sewerage
services to all residential lots created, as well as stormwater drainage
infrastructure.
A 3 storey height limit applies to the site. No buildings are proposed as part of this
application.
The proposal is considered to be consistent with the provisions of Clause 16 of
TLEP 2000.
Clause 17 of the TLEP 2000 requires Council to consider whether a proposed
development is likely to have a significant social or economic impact. It is
considered that the proposed subdivision is not of a significant scale to have a
social or economic impact on the broader community; the proposed development is
consistent with the zoning controls.
However, as detailed within this report, it is considered that the proposed
subdivision would be unlikely to impact on the residential amenity or environmental
qualities of the land to such an extent to warrant refusal of the proposal.
Clause 19 - Subdivision
This clause outlines that:
·
A person must not subdivide land without consent
·
Strata division is permissible in prescribed zones, and
·
A person may, with consent, carry out a minor boundary adjustment,
notwithstanding that the new lots may not comply with relevant
development standards applicable to the subject site.
The subject proposal satisfies this clause as it does not result in lot sizes less than
those allowable in the 2(a) zone (450m2).
Clause 20 - Subdivision in Zones 1(a), 1(b), 7(a), 7(d), and 7(l)
The proposed development will be subdividing the allotment to sizes less that 40ha
which triggers a SEPP 1 objection. This has been outlined below.
Proposed lots 38 and 39 will be conditioned to be consolidated into 1 allotment
having a total area of 15.1454ha and will be split zoned 1(b1) and 1(b2) and will
continue to be utilised for agricultural purposes such as the existing cropping/orchid
pursuits.
The SEPP No. 1 objection relates to the portion of the combined lots 38 and 39
which is located within the 1(b2) zone. This equates to a total area of 5.2382ha
within the proposed lot which is under the 40ha minimum.
Lot 40 will not require a SEPP No. 1 objection as the lot will not be used for
agricultural or residential purposes under Clause 20(3) of the Tweed Local
Environmental Plan as outlined in this report.
Proposed Lot 40 does not require a SEPP No. 1 Objection as Clause 20(3) states:
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"Despite subclause (2), consent may be granted to the subdivision of land
where an allotment to be created is less than 40 hectares, or 10 hectares in
the case of Zone 1(b1), if the consent authority is satisfied that the allotment
will be used for a purpose, other than for an agricultural or residential
purpose, for which consent could be granted."
The proposed development was amended within the assessment timeframe and
an additional allotment was created which will be undersized. The allotment will
not be utilised for an agricultural or residential purpose and as such does not
require a SEPP No. 1 objection. The allotment will be utilised for drainage
purposes.
Clause 34 - Flooding
The actual development footprint is not shown as being flood affected on Council’s
GIS enlighten system apart from a northern section of proposed Lot 39. The Q100
design flood level does affect the bio retention basin and the intersection of
proposed Road 2 and Crescent Street. Evacuation for future residents in a flood
event would be Collier Street, which is not affected by flood. It is considered that
the proposal complies with this Clause.
Council’s records lists the property as being Class 3 and 5 acid sulphate soils
(ASS). However, the portion of the site to be subdivided is entirely within Class 5
mapped area.
An acid sulfate soil management plan will be required for any works beyond 1m
below the natural ground surface, or works likely to lower the water table by
beyond 1m below the natural ground surface.
Council’s Environmental Health Services has advised that the ASSMP provided
was considered to have been prepared generally in accordance with the relevant
NSW guideline, the Acid Sulfate Soils Manual. Provided that the ASSMP is
complied with, adverse impacts associated with acid sulfate soils are not
anticipated. Appropriate conditions are recommended.
Clause 38 - Future road corridors
The proposal objective of this Clause is to cater for the alignment of, and
development in proximity to, future roads.
The subdivision will allow this road to be established, and is designed to connect to
this surrounding roads.
Clause 39 - Contaminated Lands
The site is existing residential land and is part of the greater Cudgen Village.
Council Environmental Health Unit has advised that additional soil sampling and
analysis is required. However, information provided by Gilbert and Sutherland
indicates that the subject site is capable of being remediated to ensure that the
residential component of the subdivision is suitable for residential use. It is likely
that only minor remediation would be required.
An appropriate deferred
commencement condition is recommended. It is considered the proposal can
comply with the requirements of Clause 39 of the TLEP 2000.
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Clause 12: Impact on agricultural activities
Clause 12 states that the consent authority:
"Shall not consent to an application to carry out development on rural land
unless it has first considered the likely impact of the proposed development
on the use of adjoining or adjacent agricultural land and whether or not the
development will cause a loss of prime crop or pasture land."
The subject site is not identified as prime crop or pasture land. The portion of the
subject site that involves the residential development is located within the 2(a)
Low Density Residential zone, with similar land uses located to the east.
The proposed road is located on agricultural land (Zone 1(b2) under the Tweed
LEP); however, this road is a designated road under Clause 38 of the LEP and
therefore the road will not compromise the adjacent agricultural land.
The land is not significant farmland, and given the proximity of other residential
dwellings, that such a land use would not be appropriate in this location.
It is considered unlikely that the proposed residential subdivision would impact on
the use of adjacent agricultural land for such purposes. On this basis it is
considered that the proposal would not contravene the intentions of Clause 12 of
the NCREP 1988.
Clause 32B: Coastal Lands
Clause 32B applies as the NSW Coastal Policy applies to the subject land. The
following has been noted:
·
The proposal has addressed the relevant environmental planning
instruments which implement the objectives of the Coastal Policy and
related documents.
·
The proposal does not impede public access to the foreshore in any
way.
·
The proposal is located on urban land in the Tweed Heads area; yet,
the development will not give rise to any overshadowing of any
foreshore land.
It is considered that the proposed development complies with this Clause.
Clause 43: Residential development
Clause 43 of the North Coast Regional Environmental Plan (NCREP) states that
Council shall not grant consent to the development for residential purposes unless:
(a)
it is satisfied that the density of the dwellings have been maximised
without adversely affecting the environmental features of the land;
(b)
it is satisfied that the proposed road widths are not excessive for the
function of the road;
(c)
it is satisfied that, where development involves the long term residential
use of caravan parks, the normal criteria for the location of dwellings
such as access to services and physical suitability of land have been
met;
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(d)
it is satisfied that the road network has been designed so as to
encourage the use of public transport and minimise the use of private
motor vehicles; and
(e)
it is satisfied that site erosion will be minimised in accordance with
sedimentation and erosion management plans.
The proposed development is considered to be consistent with the above
provisions of this clause in that: the proposed density is a reasonable response to
the existing land use character of the area and will not result in the creation of
any adverse physical impacts upon the locality. Further, the road widths are
satisfactory for the proposal and a detailed sedimentation and erosion control
plan will be applied in relation to the construction.
SEPP No. 1 - Development Standards
As discussed, a SEPP No. 1 objection also accompanies the application. The
objection is in respect of the planning standard identified within Clause 20(2)(a) of
the Tweed Local Environmental Plan 2000, specifically seeking variance to the
40ha minimum lot size development standard for the 1(b2) zone.
Clause 20(2)(b) of the Tweed Local Environmental Plan 2000, specifically
seeking variance to the 10ha minimum lot size development standard for the
1(b1) zone.
The remainder of the site is zoned 2(a) Low Density Residential which has a
minimum lot size of 450m² and 5(a) Special Uses which does not have a specific
minimum lot size.
A SEPP No. 1 submission may be supported where the applicant demonstrates
that compliance with a development standard is unreasonable or unnecessary in
the circumstances of the case and specifies the grounds of that objection. The
applicant must also demonstrate the consistency with the aims of the SEPP.
During the assessment a number of amendments were made and the allotment
numbers have changed slightly. The new allotment numbers will be included
within the applicant’s variation.
In support of the proposed variation, sections of the applicant’s justification
are as follows:
"The following application is provided in support of a variation to a
development standard highlighted in the Tweed Local Environmental Plan
2000 (TLEP 2000). The variation is to facilitate the highest and best use of
the site (proposed residential development). The proposed development
involves the subdivision of the land located at 17 Collier Street, Cudgen, into
residential allotments to meet the current and future demands for low
residential allotments in the area. The proposed subdivision involves two
(2) parcels of land (Lot 1 on DP407094 and part of Lot 1 on DP598073)
which are designated as Zone 2(a) – Low Density Residential, Zone 5(a)
Special Uses (School), Zone 1(b1) and Zone 1(b2) Agricultural Protection –
please refer to the following zoning map.
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The proposed subdivision creates 40 allotments of which include low
density residential lots, a rural lot, road and an allotment for the stormwater
drainage. The component of the proposed development that is the subject
of this variation is the rural lot, road and stormwater drainage which all fall
within the Zone 1 (b1) and (b2) Agricultural Protection. As such, the
Applicant wishes to provide the following grounds for variation to
development standards in line with the Varying Development Standards: A
guide document.
1.
What is the name of the environmental planning instrument that
applies to the land?
Tweed Local Environmental Plan 2000 (TLEP 2000).
2.
What is the zoning of the land?
Zone 1 (b1) and (b2) Agricultural Protection.
3.
What are the objectives of the zone?
The primary objective of this zone is ‘to protect identified prime
agricultural land from fragmentation and the economic pressure of
competing land uses.’ The secondary objective is ‘to allow other
development that is compatible with agricultural activities.’
4.
What is the development standard being varied? e.g. FSR, height,
lot size
The development standard being varied is the Lot Size required for
land identified within the Agricultural Protection zone.
5.
Under what clause is the development standard listed in the
environmental planning instrument?
The relevant section of the TLEP 2000 is Part 2, Clause 11 (Provisions
applying to particular zones – The zones).
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6.
What are the objectives of the development standard?
We understand that the development standard objectives are as
detailed in Part 4, Clause 20 [Subdivision – Subdivision in Zones 1 (a),
1 (b), 7 (a), 7 (b) and 7 (l)] of the TLEP 2000 and are as follows:
20 Subdivision in Zones 1(a), 1(b), 7(a), 7(d) and 7(l)
(1)
Objectives
·
(2)
9.
to prevent the potential for fragmentation of ownership of
rural land that would:
(i)
adversely affect the continuance or aggregation of
sustainable agricultural units, or
(ii)
generate pressure to allow isolated residential
development, and provide public amenities and
services, in an uncoordinated and unsustainable
manner.
·
to protect the ecological or scenic values of the land.
·
to protect the area of Tweed’s water supply quality.
Consent may only be granted to the subdivision of land:
(a)
within Zone 1 (a), 1 (b2), 7 (a), 7 (d) or 7 (l) if the area of
each allotment created is at least 40 hectares, or
(b)
within Zone 1 (b1) if the area of each allotment created is at
least 10 hectares.
(3)
Despite subclause (2), consent may be granted to the subdivision
of land where an allotment to be created is less than 40 hectares,
or 10 hectares in the case of Zone 1(b1), if the consent authority
is satisfied that the allotment will be used for a purpose, other
than for an agricultural or residential purpose, for which consent
could be granted.
(4)
For the purposes of subclauses (2) and (3):
(a)
land is taken to be within Zone 1 (b1) if it is shown on the
zone map by the marking “1(b1)”, and
(b)
land is taken to be in Zone 1 (b2) if it is shown on the zone
map by the marking “1(b2)”.
What is the percentage variation (between your proposal and the
environmental planning instrument)?
The proposed subdivision involves the creation of 40 allotments;
however only two (2) of the proposed allotments are the subjects of
this objection, which have been detailed below:
Proposed Lot 38-39 (Combined via conditions) is to remain as a rural
lot and is not intended to be further subdivided.
Proposed Lot 40 is a stormwater drainage reserve to service the
proposed development. The stormwater runoff from the proposed
development shall discharge into the stormwater drainage reserve as
described in the amended stormwater report.
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The development standard requires the following for land located in:
Zone 1 (b1) – minimum lot size of 10ha
Zone 1 (b2) – minimum lot size of 40ha
The original lot, Lot 1 on DP598073, prior to the proposed subdivision
had a total site area of 18.56ha, which consists of approximately
9.89ha in Zone 1 (b1) and 5.9ha in Zone 1 (b2); therefore, already not
complying with the above-mentioned minimum lot sizes.
As part of the proposed subdivision, the balance of this allotment
(proposed Lot 38-39) will have a total area of 15.521ha, which includes
9.908ha located within Zone 1 (b1) and 5.613ha within Zone 1 (b2).
Based on the above, we believe that the proposed allotments located
within Zone 1 (b1) and (b2) are acceptable in this instance as they do
not detrimentally impact of the surrounding agricultural land uses nor
the community.
10. How is strict compliance with the development standard
unreasonable or unnecessary in this particular case?
As mentioned above, the original title area of Lot 1 on DP598073,
already did not comply with the subject development standards. In
addition, the surrounding land uses are predominantly low-density
residential (to the east), whilst, agricultural land is located to the west.
It is believed that the proposed development would not detract from
those existing agricultural and rural uses in the area, and would
instead provide a transition / buffer between the two (2) lands uses (i.e.
between the agricultural and low-density residential uses).
11. How would strict compliance hinder the attainment of the objects
specified in Section 5(a)(i) and (ii) of the Act?
Compliance with the development standard cannot be achieved due to
the original area of the site being less than what is required under the
TLEP 2000. Therefore, the development of this site does not hinder
the attainment of the object specified in Section 5(a) (i) and (ii) of the
Environmental Planning and Assessment Act 1979, due to its noncompliance with the development standard.
The proposed development will encourage the proper management,
development and conservation of natural and artificial resource. The
agricultural land component of the subject site is mainly being
maintained with the exception of those areas being proposed as road
and stormwater drainage reserve. The site does not contain any
natural areas, forests, minerals, water, cities, towns and villages;
however, will promote and support the social and economic welfare of
the community through providing a residential product that is in high
demand in this location and will ensure to maintain, protect and
remediate significant landscape (where possible) to promote a better
environment.
Based on our Clients informal research we understand that there is
demand in the current and future market for this type of residential
product (low-density residential allotments). With respect to the rural
lot (proposed combined Lot 38-39), this is to be retained by the current
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land owner and will continue to be used for agricultural / rural
purposes. The proposed development will promote the coordination
and economic use of the subject site through providing a residential
development that has been undertaken in an appropriate manner (i.e.
compliant construction methods) and results in a product that is
acceptable to Council and the community.
12. Is the development standard a performance based control?
Based on our interpretation of the objective for the Zone, we
understand that the development standard is a performance based
control.
13. Would strict compliance with the standard, in your particular
case, would be unreasonable or unnecessary? Why?
The compliance with the development standard, as mentioned above,
cannot be achieved as the subject site does not achieve the minimum
lot sizes prior to the proposed development.
The proposed subdivision of the subject site does not take away from
the character of the area and will instead encourage the further growth
of this area through providing a residential product that is in demand.
In addition, the proposed development complies with the objectives of
Section 20 of the TLEP 2000, which have been detailed below:
1.
Presently the subject site is owned by one (1) owner. The
proposed low-density-residential allotments will be sold to
individual owners, whilst the ‘rural lot’ (proposed Lot 38-39) will
continue to be owned by the current owner. The fragmentation of
the rural land will not occur, with the exception of the portion of
the agricultural protection land that will be utilised for road and
the stormwater drainage reserve.
2.
The proposed development does not adversely impact of the
continuance or aggregation of sustainable agricultural units in the
area as the subject site (where adjoining existing agricultural /
rural land uses) is proposed to be utilised for agricultural / rural
purposes.
3.
The residential development involves the necessary services,
including access to surrounding public amenities and services
(i.e. shopping facilities located at Kingscliff approx. 4km from the
site).
4.
The ecological and scenic values of the area are not negatively
impacted upon by the proposed development and instead
enhance them through the positioning of the proposed allotments
to take advantage the surrounding views and vistas.
5.
Through the inclusion of the bio-retention basin, the runoff from
the proposed development will be captured and treated to ensure
that Tweed’s water supply quality is not impacted.
The proposed development does not comply with the development
standard; however, the intent of the development still ensures that the
objectives of the TLEP 2000 are meet and maintained.
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14. Are there sufficient environmental planning grounds to justify
contravening the development standard?
We believe that the proposed development will result in an appropriate
form of development that is consistent with the area and the
expectations of the community. The objectives of the TLEP 2000 are
also met through the proposed development, even if the minimum lots
size is not achieved by those located within Zone 1 (b1) and (b2). The
above-mentioned has demonstrated that the proposed development
and the proposed varying of the development standard is appropriate
in this instance and ask that this be considered and approved
accordingly.
The proposed development was amended during the assessment which reduced
the number of allotments from 44 to 40. As a result of this amendment the lot
numbers have changed slightly and an additional allotment is created within the
1(b2) zoned land. The allotments within the rural zones are as follows:
·
Combined Lots 38 & 39. Residual lots to remain for agricultural
purposes being cropping/orchids.
·
Lot 40 Drainage reserve to be transferred to Council.
Lot 40 does not require a SEPP No. 1 objection as under Tweed Local
Environmental Plan 2000 clause 20(3) subdivisions are able to occur which are
under the minimum allotment size if they are not used for an agricultural or
residential purpose. As the proposed is for a drainage reserve a SEPP No. 1 is
not required.
The Development Application required concurrence from the Department of
Planning and Infrastructure due to the minimum allotment size. Concurrence was
granted on 13 February 2013 for the following reasons:
1.
2.
3.
Creation of the lot for stormwater drainage reserve is of minor
significance.
As a result of the concurrence from the Department of Planning and Infrastructure
it is considered appropriate to accept the SEPP No. 1 Objection for the proposal
including land under the minimum allotment size in this instance.
SEPP No. 44 - Koala Habitat Protection
SEPP 44 is applicable to the subject site due to the combined area of the site
being greater than 1ha. Council’s GIS identifies the vegetation on site as being
predominantly highly modified/disturbed with some patches of vegetation present
along the Crescent Street Road Reserve. The subject site is not identified as
containing core koala habitat. The subject proposal is considered to be
consistent with the requirements of SEPP 44.
SEPP No. 55 - Remediation of Land
The aim of SEPP 55 is to provide a State wide planning approach to the
remediation of contaminated land and to require that remediation works meet
certain standards and conditions.
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A Preliminary Contamination Assessment has been undertaken that includes the
findings of a preliminary investigation and addresses land concerns.
Council Environmental Health Unit has advised that additional soil sampling and
analysis is required. However, information provided by Gilbert and Sutherland
indicates that the subject site is capable of being remediated to ensure that the
residential component of the subdivision is suitable for residential use. It is likely
that only minor remediation would be required.
An appropriate deferred
commencement condition is recommended.
SEPP (Rural Lands) 2008
The SEPP outlines the following ‘Rural Planning Principles’:
(a)
the promotion and protection of opportunities for current and potential
productive and sustainable economic activities in rural areas;
(b)
recognition of the importance of rural lands and agriculture and the
changing nature of agriculture and of trends, demands and issues in
agriculture in the area, region or State;
(c)
recognition of the significance of rural land uses to the State and rural
communities, including the social and economic benefits of rural land use
and development;
(d)
in planning for rural lands, to balance the social, economic and
environmental interests of the community;
(e)
the identification and protection of natural resources, having regard to
maintaining biodiversity, the protection of native vegetation, the importance
of water resources and avoiding constrained land;
(f)
the provision of opportunities for rural lifestyle, settlement and housing that
contribute to the social and economic welfare of rural communities;
(g)
the consideration of impacts on services and infrastructure and appropriate
location when providing for rural housing.
Despite the proposed subdivision incorporating rural land uses – no urban uses
are being considered in the rural land area. Lot 38 and 39 is proposed for the
purpose of rural production and will contain a buffer to ensure that any possible
land use conflicts between rural and residential uses are minimised. In addition,
Lot 38 will also contain the proposed new road (complying with Clause 38 TLEP).
Proposed Lot 40 will contain a stormwater detention basin that is not an urban
use.
The proposed development is considered to fulfil the aims of the Policy and
Clause 7 and 8 that talk about Rural Planning and Subdivision Principles.
(a)
(ii)
Draft Tweed Local Environmental Plan 2012 relates to the subject site. Within
the Draft LEP the site is split zoned being RU1 - Primary Production and R2 Low Density Residential. Within the LEP the minimum lot sizes applying to the
site are 450m2 for the R2 zone and both 10ha and 40ha for the RU1 zone. These
minimum lot sizes are consistent with the current minimum lot sizes and it is
considered that the proposed development is consistent with the Draft Local
Environmental plan 2012.
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(a)
Tweed Development Control Plan
A1 - Residential and Tourist Development Code
Although the subject application relates to a subdivision development only it is
considered that the proposed allotments should be able to accommodate a
dwelling in accordance with DCP A1 requirements without the necessity for
variations to this DCP.
In this regard, the applicant has submitted information relating to some of the
DCP A1 controls such as setbacks and deep soils zones which would apply to a
subsequent development application for a dwelling on the proposed allotments.
It is considered that the applicant has adequately demonstrated that dwellings
which would comply with the DCP could be placed on each allotment in terms of
these controls.
It is also accepted that the assessment of future applications for development on
these sites would be subject to separate assessment process and in this regard
the assessment of the application under this DCP was in order to establish
generally that acceptable outcomes could be provided on site rather than a
detailed assessment of the specific future design for each allotment.
A2 - Site Access and Parking Code
The subject development is to be accessed from Crescent Street and Collier
Street. A new internal road will connect the two streets. All individual allotments
accessed from an internal loop road to be created as part of this application.
The application was referred to Councils Development Engineering Section and
Traffic Engineer.
In terms of access to the proposed development, Councils Development
Engineer has advised that:
"Council’s Subdivision Manual specifies ‘a minimum of 9.0 metres of kerb
frontage is required for each lot unless alternative provisions are made for
parking.’ Council’s request for further information required that proposed
Lot 6 had adequate road frontage and access to Road 1. The lot frontage
was amended to 9m. All other allotments have an average road frontage of
16m."
Actual onsite parking requirements under this DCP would be considered under the
future applications for development of each individual allotment, however it is
considered that given the area of each allotment, there would be adequate space
for parking facilities compliant with this DCP to be provided on each site, subject to
an appropriate build design.
A3 - Flood Liable Land
The actual development footprint is not shown as being flood affected on Council’s
GIS enlighten system apart from a northern section of proposed Lot 39. The Q100
design flood level does affect the bio retention basin and the intersection of
proposed Road 2 and Crescent Street. Evacuation for future residents in a flood
event would be Collier Street, which is not affected by flood. It is considered that
the proposed development is consistent with this section of the DCP.
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A5 - Subdivision Manual
Tweed Development Control Plan A5 -Subdivision Manual aims to:
·
Present Council’s strategic plan objectives for the development of
subdivisions.
·
Achieve the highest quality and ‘best practice’ of subdivision development in
the Shire
·
Implement the policies and provisions of the NSW State Government in
terms of seeking to achieve quality of subdivision planning and
development.
·
Provide guidelines and development standards for the development of
subdivisions.
This DCP contains Council’s guidelines for the preparation of applications for
subdivision and aims to facilitate Council’s assessment and consideration of such
applications. A number of factors are required to be assessed including
environmental constraints, land forming, design specifications, storm water runoff,
drainage, waterways and flooding, setbacks and buffers (where appropriate).
The subject application has been referred to Council's Development Engineer
who has reviewed the subject application against the provisions of DCP A5 and
indicated that the proposal would be acceptable subject to appropriate conditions
of consent. Where applicable these matters have been discussed below.
Environmental Constraints – this section of the DCP relates to issues such as
contamination, bushfire and access etc. These matters are discussed in detail
elsewhere in this report with the conclusion being that the proposal is acceptable
subject to appropriate conditions of consent.
Landforming – Levels within the development footprint range from RL35.5m
AHD in the south western corner (Lot 6) to RL2.5m AHD in the north eastern
corner (Lot 39). The proposed drainage reserve is located at the lowest part of
the site with levels ranging from RL0.5m to 1.5m AHD.
Knobel Consulting have prepared a number of plans titled Preliminary Earthwork
Plan and Preliminary Earthworks Sections dated 13 September 2013 to
demonstrate proposed cut and fill on the site.
Comparison of the existing levels and proposed levels as detailed on Knobel
Consulting plans shows a maximum of 2.7m of cut in the north west of the site
and maximum fill level of 2.6m in the north east of the site. The majority of cut
and fill on the site ranges from 0.5m to 1m. Only minor regrading of the site is
proposed, therefore generally preserving the natural landform.
The earthworks sections show the boundary levels around the external perimeter
have been preserved with the exception of fill up to 2.2m on the Crescent Street
Road reserve (near proposed Lot 36). Three retaining walls are proposed, which
generally average 1m in height.
Stormwater Runoff, Drainage, Waterways & Flooding – The proposed
development was referred to Council’s Infrastructure Engineer who responded
with the following:
"The major stormwater issue was the lawful point of discharge. Throughout
the assessment Council has maintained that the developments only lawful
point of discharge is the 'East-West drain' at Altona Drive. It was deemed
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unacceptable to discharge stormwater to the private agricultural drains to
the North of the property. Some difficulty was encountered trying to
discharge runoff from the development to this LPOD without mixing with
stormwater from the existing private agricultural drains. After multiple
iterations, the current concept of piping stormwater from the bioretention/detention basin out to Crescent St and to the Northern side of the
existing culvert was agreed upon. This appears to be the only solution
available with no risk of nuisance to the adjoining properties.
The other stormwater issue was concern regarding the major stormwater
system. Due to the slope of the land, the gradient and inefficient alignment
of the flow paths, a higher level of immunity was requested. The applicant
was asked to re-design (in accordance with D5.12.3a) the major stormwater
system with a factor of safety of 1.5 on the design rainfall and a free board
of 500m. The recently submitted SWMP-P has met this request."
Urban Structure – The proposed subdivision is considered to provide appropriate
access, orientation and configuration of lots which meets the provisions of this
section of the DCP.
Movement Network – The infill nature of the proposed development has resulted
in an improved movement network through the design of an internal road
connecting Crescent Street and Collier Street.
Open Space Network – The applicant has agreed to pay Section 94
contributions for Casual Local Open rather than a land contribution. The
application was referred to Council’s Open Space Officer who advised that this
was an acceptable solution. The proposal is considered to be acceptable in this
regard.
Lot Layout – The proposal is consistent with the minimum allotment area of
450m2 as all allotments are greater than this. The allotments can provide an area
for a building envelope of 10m x 15m. The applicant has provided information
which demonstrates that future dwelling units could be provided to each allotment
in accordance with DCP Section A1.
Infrastructure – Council’s Development Engineering Section and Water Unit
have assessed the proposed development against the relevant standards
pertaining to road ways, water and sewer provisions, electricity and flood
protection. Appropriate conditions of consent have been applied with regard
infrastructure requirements.
In light of the above assessment, the proposed residential subdivision is
considered to meet the provisions of Section A5 of Council’s Consolidated DCP.
A11 - Public Notification of Development Proposals
Under the provisions of this DCP, the proposed development was required to be
notified to surrounding properties as it comprises of a subdivision of 20 or more
lots. As such, the subject application was notified for a period of 14 days from 7
February 2013 to 21 February 2013. During that period, a total of 16 submissions
were received which have been addressed below.
B9 - Tweed Coast Strategy
DCP B9 relates to the northern end of the Tweed Coast, which includes Cudgen
Village. The site has been identified as an existing urban area due to it’s
residential zoning. The Plan sets objectives for future development concentrating
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on public services and design principals. The Vision Statement for this district
identified at Clause B9.3.2 is:
To manage growth so that the unique natural and developed character of
the Tweed Coast is retained, and its economic vitality, tourism potential,
ecological integrity and cultural fabric are enhanced.
As the site has been considered to be an existing urban area it is capable of
integration with the rest of the Cudgen Village area.
The proposed development is considered to represent an appropriate
development in terms of the above objective as it provides for a low density
residential option in the area, with the housing density assessed as being an
appropriate response to site and development constraints in this instance.
The proposal is not considered to have an unacceptable impact on the objectives
or provisions of this DCP and the proposal is appropriate.
(a)
The proposed site is located within the area covered by the Government Coastal
Policy, and has been assessed with regard to the objectives of this policy. The
Government Coastal Policy contains a strategic approach to help, amongst other
goals, protect, rehabilitate and improve the natural environment covered by the
Coastal Policy. It is not considered that the proposed development contradicts
the objectives of the Government Coastal Policy, given its permissible nature on
a site identified for development works.
The proposal does not include any demolition as the application relates to
subdivision of a cleared site only.
Not applicable. No buildings are proposed.
Not applicable. No buildings are proposed.
(a)
(v)
The primary objectives of the Coastal Management Plan are to protect
development; to secure persons and property; and to provide, maintain and
replace infrastructure. Given the location of the development is approximately
2.3km from the coastal foreshore and is not located within the Coastal Erosion
Hazard zone it is considered that the proposal is consistent with the objectives of
the Management Plan.
This Management Plan applies to the estuaries of Cudgen, Cudgera and Mooball
Creeks. The subject site is located well away from all creeks and therefore this
Plan does not apply.
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The subject site is not located within an area that is affected by the Coastal Zone
Management Plan for Cobaki and Terranora Broadwater.
(b)
in the locality
Context and Setting
The subject proposal results in the subdivision of 2(a) and 5(a) portion of land
with the remainder of the land remaining 1(b1) and 1(b2) zoned land. It is
considered the low density residential subdivision of the 2(a) and 5(a) zoned land
is consistent with the rest of Cudgen Village. It is envisaged that there will be no
significant adverse impacts upon the surrounding locality as a result of the
proposed application.
Access, Transport and Traffic
The proposed road network details an internal loop road with two intersections
into Cudgen Village, these being Collier Street and Crescent Street respectively.
The layout plan shows the proposed road as having a 7.5m wide pavement within
a 15m wide road reserve.
Council’s Subdivision Manual specifies ‘a minimum of 9.0 metres of kerb frontage
is required for each lot unless alternative provisions are made for parking.’
Council’s request for further information required that proposed Lot 6 had
adequate road frontage and access to Road 1. The lot frontage was amended to
9m. All other allotments have an average road frontage of 16m.
It is considered that the access, transport and traffic have adequately been dealt
with in the information provided.
Flora and Fauna
The applicant submitted a management plan titled Flora and Fauna Management
Plan Lot 1 DP407094 & Part Lot 1 DP598073 Version 2 dated June 2013
prepared by Habitat Environment Management Trading P/L ('F&FMP').
Council’s Natural Resources Unit has assessed the provided information and
recommended a number of conditions including an environmental covenant to be
provided along the eastern boundary of Lot 33. This is as a result of a number of
significant trees of greater than 500mm of diameter at base height which Council
consider significant enough to protect with a covenant. This has been included in
the recommendations.
(c)
Surrounding Landuses/Development
The proposed development is considered to be appropriate with the context and
setting of the Cudgen Village being a low density residential development within a
low density residential area. The proposal will result in a permissible use of the
site. The property is/can be fully serviced by all necessary infrastructure (water,
sewer, stormwater, electricity and telecommunications), and has easy access to
main roads. The proposal is considered to be in keeping with the character of
surrounding development. Issues relating to density and allotment sizes have
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been addressed elsewhere in this report. It is therefore considered that the site is
suitable for the proposed development.
The subject development was assessed in terms of access, transport and traffic
by Councils Traffic Engineer and Development Engineering Section. The
proposed subdivision is to be accessed from Crescent Street and Collier Street.
Surfside Buslines currently operate within the vicinity of the subject site. The
service runs between Pottsville and Tweed Heads. The service operates along
Crescent Street adjacent to the subject site frontage. It is considered that the
existing public transport within the locality is sufficient to cater for the proposed
development.
Availability of Utilities and Services
The subject site is serviced by Council’s water and sewer services which are
available to the proposal on advice from Councils Strategic and Asset Engineer.
As such the proposal is considered to be acceptable in this regard.
Flora and Fauna
The property features mostly modified grazing land with some areas of natural
vegetation. A number of significant trees of greater than 500mm of diameter at
base height are located along the eastern boundary of Lot 33 which Council
consider significant enough to protect with a covenant. If approved, appropriate
conditions of consent have been recommended to ensure minimal impact upon
flora and fauna in the locality.
Natural Hazards
Whilst part of the site is constrained by flooding this can be adequately managed
through conditions.
(d)
Public Submissions Comment
The application was on exhibition for a period of 14 days from Thursday 7
February 2013 to Thursday 21 February 2013. During that period, a total of 16
submissions were received that brought up issues in relation to the following:
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Issue
Assessment
Lot sizes too small
The residential lot sizes vary from 450m2 1039m2 with an average of 598.5m2. The
minimum lot size allowable in the Tweed
Local Environmental Plan 2000 for a
dwelling to be located on the land is
450m2 as per Clause 11 of the instrument.
It is therefore considered that the
proposed development meets the
requirement and should not be refused
based on this submission.
Issue
Assessment
Earthworks required for steep land
An engineering report prepared by Knobel
Consulting dated 8 November 2012
(amended 31 May 2013 with Council’s
further information request) was been
lodged with the application. Council’s
Development Assessment Engineer has
provided the following:
Comparison of the existing levels
and proposed levels as detailed on
Knobel Consulting plans shows a
maximum of 2.7m of cut in the north
west of the site and maximum fill
level of 2.6m in the north east of the
site. The majority of cut and fill on
the site ranges from 0.5m to 1m.
Only minor regrading of the site is
proposed, therefore generally
preserving the natural landform.
Significant land reforming proposals
where more than 10% gross site area or
more than 1.0ha is to have surface levels
changed by more than 5m or where
earthworks exceed an average of
10,000m3 per ha must be justified in
context of the Tweed Development
Control Plan Section A5. As the proposed
only has cut and fill to a maximum of 2.7m
and 2.6m respectively the earthworks are
considered minor in nature.
Therefore the proposed should not be
refused based on this submission in this
instance.
Increased traffic congestion/safety issues
A traffic report prepared by CRG dated 27
May 2013 has been submitted with the
application.
The traffic report concludes that the
subdivision will generate 37 peak hour
vehicle trips with 396 daily trips and that
the proposed 40 lot subdivision will not
significantly affect the surrounding road
network.
No objections or issues to the traffic report
and proposed subdivision have been
raised by Council’s Traffic Engineer.
instance.
Page 113
Issue
Assessment
Acoustic issues between school and Lots It is considered that residential uses and
1-6
schools uses are compatible land uses as
a result of the zoning within the Tweed
Local Environmental Plan. The applicant
has advised that appropriate fencing will
be constructed between the school and
the proposed allotments.
The average lot size of Lots 1-6 being
692m2 is considered to provide adequate
room for design of appropriate dwellings
to consider the school.
instance.
No recreation area
The applicant has agreed to pay Section
94 contributions for Casual Local Open
rather than a land contribution.
The
application was referred to Council’s Open
Space Officer who advised that this was
an acceptable solution. Therefore the
proposed should not be refused based on
this submission in this instance.
Inconsistent density with the rest of The residential allotments range in size
Cudgen Village
from 450m2 to 1039m2 with an average of
598.5m2. A review of the subdivision
pattern of Cudgen has revealed that there
are a number of allotments within Cudgen
that are below the 450m2 with the majority
of allotments being between 450m2 900m2. It is considered that the proposed
density is consistent with the village of
Cudgen. Therefore the proposed should
not be refused based on this submission
in this instance.
Collier Street already damaged
Page 114
Collier Street does not form part of this
development.
Additionally, following
advice from Council’s Design and Works
units, it is noted that Collier Street is to be
upgraded with the works programmed to
be scheduled in this financial year’s
budget.
Community consultation and
design plans have been completed by
Council. The applicant was advised in a
meeting held 31 July 2013 that Council
will upgrade Collier Street although the
developer will be required to reconstruct
Collier Street from the property boundary
of Lot 71 DP 755701 into the subdivision
as per Drawing No. K2027 issue A titled
‘Preliminary Roadworks Plan’ prepared by
Knobel Consulting dated 3 June 2013.
Issue
Assessment
Increased crime and safety concerns
It is considered that new housing
developments take into account crime
prevention through environmental design,
this will in some way increase casual
surveillance to the neighbourhood. It is
considered that natural surveillance and
access control strategies limit the
opportunity for crime.
Therefore the
7.5m too small for internal road
The proposed internal roads meet the
requirements of Tweed Development
Control Plan Section A5 - Development
Design Specification D1. The road is
considered to be an access street which is
to accommodate shared pedestrian, bike
and vehicular movements. Council’s
Traffic Engineer has raised no objections
to the proposed development. Therefore
the proposed should not be refused based
on this submission in this instance.
Infrastructure
maximum
capacity
already
at The
applicant
has
provided
an
Engineering Report prepared by Knobel
Consulting which refers to the existing and
proposed infrastructure in the area in
order to meet the demands of the
proposed development. It is considered
that there is adequate capacity within the
network to cater for the proposed
development. Therefore the proposed
should not be refused based on this
submission in this instance.
No parking along Collier Street
The proposed development will provide for
adequate off street parking. Each new
dwelling that will be proposed as a result
of this application will be required to meet
the current standards for off street car
parking. Therefore the proposed should
not be refused based on this submission
in this instance.
No drainage along Collier Street
The proposed development was referred
to Council Stormwater Engineer who
concluded that the proposed development
can adequately treat and disposed of
stormwater directed into the proposed
development. It is therefore considered
that the proposed should not be refused
based on this submission in this instance.
Page 115
Issue
Assessment
School enrolment currently at maximum
Local Council’s do not get involved within
school enrolments as they are a matter for
the State Government. The proposed
subdivision is not of a size to warrant the
creation of a new school.
No provision or room for footpaths along The proposed subdivision includes
Collier Street
footpaths along one side of the new roads
connecting to the existing road network.
Collier Street is not within the proposed
subdivision and therefore will not be
expected to provide footpaths.
Safety of students who attend Cudgen Collier Street is not within the proposed
Primary as there are no pedestrian areas subdivision and therefore will not be
along Collier Street
expected to provide footpaths. Council’s
Design and Works units advised that
Collier Street is to be upgraded within the
works programmed to be scheduled in this
financial year’s budget.
Community
consultation and design plans have been
completed by Council.
It is also
considered that traffic for the proposed
development will not significantly alter
safety of students.
Therefore the
Page 116
Reduced Amenity
The proposed development is consistent
with
the
low
density
residential
configuration of Cudgen Village. It is
considered that the proposal will not
cause any undue impacts such as noise,
odour, dust or visual and should not be
refused based on this submission.
Loss of valuable farmland
The proposed development involves the
subdivision of residential zoned land for
residential purposes.
The portion of
development within the agricultural zoned
land will be utilised for a road to access
the development. The majority of the road
is within an area classified by Tweed
Local Environmental Plan 2000 as a future
road corridor. The small portion of road
outside this road corridor has been placed
in this area for safety reasons. Roads are
permissible with consent within zone 1(b2)
of the Tweed Local Environmental Plan
2000. It is therefore considered that the
proposal should not be refused based on
this objection in this instance.
Issue
Assessment
Impact upon Pine Trees (Heritage Listed) The proposed development will not impact
along Collier Street
upon the Pine Trees along Collier Street.
instance.
Access to school becomes unsafe
Collier Street is not within the proposed
subdivision and therefore will not be
expected to provide footpaths. Council’s
Design and Works units, it is noted that
Collier Street is to be upgraded with the
works programmed to be scheduled in this
financial year’s budget.
Community
consultation and design plans have been
completed by Council.
It is also
considered that traffic for the proposed
development will not significantly alter
safety of students.
Therefore the
Infrastructure being located outside of the The portion of development within the
land zoned for residential (i.e. road agricultural zoned land will be utilised for a
infrastructure proposed in 1(b2) zone
road to access the development. The
majority of the road is within an area
classified by Tweed Local Environmental
Plan 2000 as a future road corridor. The
small portion of road outside this road
corridor has been placed in this area for
safety reasons. It is therefore considered
that the proposal should not be refused
based on this objection in this instance.
Are retaining walls being used
Council’s
Development
Design
Specification – D6 Site Regrading
specifies that retaining walls are to be
1.2m high at the perimeter boundary of
the subdivision and 1.2m at side and rear
boundaries. Three retaining walls are
proposed on the boundaries of Lots 14, 37
& 39, all retaining walls are between 1m to
1.2m in height.
The proposed development complies with
Council’s D6 Site Regrading policy and
should not be refused based on this
submission.
Crime Prevention
Crime
prevention
through
good
environmental design allows for residents
to have a greater level of casual
surveillance of public spaces.
It is
considered that the proposed has been
designed in a way to improve casual
surveillance for the area and should not
be refused based on this submission.
Page 117
Public Authority Submissions Comment
Department of Planning and Infrastructure
The subject application was referred to the Department of Planning and
Infrastructure in regards to concurrence for the proposed subdivision.
Concurrence has been granted to vary the 40 hectare minimum lot size
development standard, for the following reasons:
1.
2.
3.
Creation of the small lot for bio-retention basin is of minor significance.
Department of Industry and Investment
The proposed development was referred to the Department of Industry and
Investment for comment in regards to the agricultural impacts as a result of the
application. On 5 March 2013 the Department of Industry and Investment Mineral Resources Branch responded with concerns relating to the approved
sand quarry to the north of the subject site. This information was forwarded onto
the applicant in an information request sent out on 9 April 2013. The applicant
provided additional information in regards to the buffers from the approved sand
quarry.
Council’s Environmental Health Unit has requested a deferred
commencement condition be placed within the recommendations to further
assess the acoustic details of the sand quarry and any impacts upon the future
residents.
(e)
Public interest
The creation of a residential subdivision within the residential zoned portion of the
allotment is considered to be consistent with the surrounding subdivision pattern.
There will be two residue allotments being utilised for agriculture and drainage
purposes. As detailed within this report, the proposed subdivision would be
unlikely to impact on the character or amenity of the subject site or surrounding
area.
A SEPP No. 1 Objection has been received that demonstrates that in this
instance the proposal raises no matters of significance for State or Regional
Planning and that no public benefit results from maintaining the development
standard. Concurrence has been granted by the Director-General for the creation
of the undersized allotment as it was considered that there is no public benefit in
maintaining the development standard in this instance.
It is considered that the proposed subdivision would be unlikely to set a harmful
precedent for the creation of undersized allotments, given the circumstances of
this application.
OPTIONS:
1.
Approve the application with conditions of approval in accordance with the
recommendation of approval; or
2.
Refuse the application for specified reasons.
The Council officers recommend Option 1.
Page 118
CONCLUSION:
The development application proposes a subdivision that divides the subject allotments into
lots as follows:
·
averaging 598.5m2.
·
Lot 38 – 39 - Residual lots to remain for agricultural (cropping/orchid) purposes.
·
Proposed Lots 38 and 39 would be below the minimum lot size and would be used for
agricultural purposes (cropping and orchid). As such a State Environmental Planning Policy
(SEPP) No. 1 - Planning Principles Objection has been received in relation to the variation
of the development standard.
The application has been referred to the Department of Planning and Infrastructure for
consideration who have granted concurrence in respect to the variation of the 40 hectare
development standard contained in clause 20(2)(a) of the Tweed LEP 2000 to permit the
creation of proposed Lot 38 & 39 and Lot 40 for the following reasons:
1.
2.
3.
Creation of the lot for a stormwater drainage reserve is of minor significance.
The proposed development is considered to not have a significant impact on flora and
fauna, agricultural activities or the social, cultural and economic environment. The proposed
lot sizes are considered to be consistent with existing allotments in the area and the
proposal is therefore considered acceptable in this instance. On this basis approval of the
proposed development is recommended.
a.
Policy:
Not Applicable.
c.
Legal:
Not Applicable.
Not Applicable.
Nil.
Page 119
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Page 120
23
[PR-CM] Development Application DA13/0189 for a 22 Lot Subdivision and
Associated Intersection Upgrade to Creek Street and Tweed Coast Road at
Lot 156 DP 628026 No. 40 Creek Street, Hastings Point
SUBMITTED BY:
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
Council is in receipt of a Development Application seeking approval for a 22 lot subdivision
which incorporates 1.3 to 2m of fill over 2.324ha of land at Lot 156 Creek Street Hastings
Point.
The subject site has a long history of unlawful dredging, unlawful tree removal and a Major
Project refusal from the NSW Planning and Assessment Commission for a proposed 45 lot
subdivision over the subject site (the developable footprint was 3.66ha). This Major Project
refusal was issued with the following reasons for refusal:
1.
The scale and location of the development, together with the proposed flood
mitigation measures would result in an unacceptable risk to life, health and
property within this flood prone community;
2.
The development is inconsistent with the aims and objectives of State
Environmental Planning Policy No 14 - Coastal Wetlands and State
Environmental Planning Policy 71 - Coastal Protection and is contrary to the
objects of the EP&A Act including the principles of Ecologically Sustainable
Development particularly given that there is significant uncertainty as to whether
ecological impacts can be avoided or minimised to acceptable levels;
3.
The development is incompatible with both the adjoining natural and built
environment; and
4.
The proposal is not in the public interest.
The application as proposed does reduce the overall number of lots and the size of the filled
development footprint (as previously proposed) yet still presents many of the same issues
that resulted in the refusal of MP06_0153. This is largely due to the fact that the proposed
allotments extend out beyond the 2.324ha filled portion of the site and extend within
environmentally sensitive areas which Council Officers believe should be retained under one
ownership to be effectively managed.
In addition this application has failed to adequately consider the sensitive nature of the site,
has failed to adequately consider the impact of the proposed fill on the local drainage
Page 121
network, incorporates too much fill that results in a development uncharacteristic of the area,
and has failed to adequately consider all the applicable legislation applying to this site.
Council staff strongly recommended that the applicant withdraw the subject application and
possibly re-lodge a revised Development Application (at a later date) which addresses all of
the issues that have been identified in the assessment of this application. However, the
applicant did not wish to withdraw the application and has requested time to address the
identified issues. The applicant requested 3 months from 29 September 2013 plus one
additional month over Christmas to provide an amended application.
Given the contents of this report Council Officers are of the view that any amended
application would need to be substantially different to the application as lodged and
accordingly that the best path is for the current application to be withdrawn or refused and a
new revised application submitted when the applicant has adequately addressed all the
matters raised in this report.
The application is reported to Council given the extensive public submissions (131
objections) and the extensive history associated with this site.
RECOMMENDATION:
That Development Application DA13/0189 for a 22 lot subdivision and associated
intersection upgrade to Creek Street and Tweed Coast Road at Lot 156 DP 628026 No.
40 Creek Street, Hastings Point be refused for the following reasons:
1.
The application fails to satisfy the principal aim of the Tweed Local
Environmental Plan 2000 (Clause 4) which is to ensure “The management of
growth so that the unique natural and developed character of the Tweed Shire is
retained, and its economic vitality, ecological integrity and cultural fabric is
enhanced.” The proposed development fails to adequately consider the sites'
sensitive ecological environment and would result in a development which does
not respond to the existing character of the area.
2.
The development as proposed is not considered to have adequate regard for the
Ecologically Sustainable Development provisions as outlined in Clause 5 the
Tweed Local Environmental Plan 2000.
3.
The development as proposed does not satisfy Clause 8(1) or 8(2) of the Tweed
Local Environmental Plan 2000 as the development does not satisfy the 2(e)
Residential Tourist zone objective (as there is no tourist component), does not
satisfy the 7(a) Environmental Protection (Wetlands and Littoral Rainforest) zone
objectives (by fragmenting environmental land) does not satisfy the 7(l)
Environmental Protection (Habitat) zone objectives (as a result of the entry road
off Creek Street) and is considered to have an unacceptable cumulative impact
in regards to local character, ecology and local drainage and flooding matters.
4.
The development as proposed does not satisfy Clause 20(2) of the Tweed Local
Environmental Plan 2000 in regards to the minimum allotment size for land
zoned 7(a) as Lot 14 has 7(a) land that has been unnecessarily fragmented from
proposed Lot 7.
5.
The development as proposed does not satisfy Clause 34 of the Tweed Local
Environmental Plan 2000 in regards to flooding. Adequate information has not
been received to ensure that the proposed fill will not have an unreasonable
impact on the adjoining properties in the locality.
Page 122
6.
The development as proposed does not satisfy Clause 39 of the Tweed Local
Environmental Plan 2000 in regards to contaminated land. Adequate information
has not been received to ensure that the proposed site is free of contaminates.
A Preliminary Soil Contamination Report would be required which specifically
considered possible historic sand mining activities.
7.
The development as proposed does not satisfy Clause 39A of the Tweed Local
Environmental Plan 2000 in regards to bushfire protection. The subdivision as
proposed in not capable of compliance with the NSW Rural Fire Service General
Terms of Approval as the subdivision does not have 8m wide road pavement or
12 metre cul-de-sac areas and fails to satisfy the Planning for Bushfire
Protection Guidelines 2006.
8.
The development as proposed does not satisfy the various environmental and
ecological controls applicable to the subject site. The ecological assessment
relies on outdated 2008 vegetation mapping and 2006-2008 fauna survey results.
This leads to significant uncertainty as to the extent and level of cumulative
impact on threatened species and Endangered Ecological Communities.
9.
The development as not clearly articulated the impact of extensive site filling
and subsequent modification to overland flow and groundwater conditions on
sensitive and/or dependant floodplain communities of significant conservation
value.
10. The size of the development footprint and resultant inadequate buffers to
Endangered Ecological Communities (EEC), riparian vegetation and Christies
Creek, results in an overdevelopment of such a sensitive and significant site.
11. The development does not satisfy the provisions of DCP Section A5 Subdivision Manual having regard to environmental constraints, stormwater
runoff, drainage, waterways, flooding, buffers, lot layout, landscape character
and natural landform.
12. The development does not satisfy the provisions of Tweed Development Control
Plan Section B23 Hastings Point having regard to local character, the sites
ecological sensitivities and the visual implications of the development.
13. The proposed development is not in the public interest and has failed to
adequately address the concerns raised in the public submissions received
following public notification of the proposal.
Page 123
REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Walter Elliott Holdings
Walter Elliott Holdings Pty Ltd
Lot 156 DP 628026 No. 40 Creek Street, Hastings Point
2(e) Residential Tourist and 7(a) Environmental Protection (Wetlands &
Littoral Rainforests)
$1,450,000
The Site:
The subject site is located within the Village of Hastings Point. Within the immediate vicinity,
the following elements frame the context of the site:
·
The North Star Holiday Resort is directly adjacent, located on the northern side of
Creek Street. The holiday park contains both permanent and temporary sites and
a three storey building to the front of the site facing onto the Tweed Coast Road.
·
Medium Density Apartments and attached dwellings (Hastings Cove) are located
to the north east of the site adjacent to Coast Road.
·
Single Detached Dwellings adjoin the site, located between Creek Street and the
northern boundary.
·
Cudgen Nature Reserve adjoins the western boundary of the site. The southern
boundary of the property adjoins the Mean High Water Mark (MHWM) of Christies
Creek that connects to Cudgera Creek and a section of State Environmental
Planning Policy 14 (SEPP 14) Coastal Wetland in the south east and eastern
areas of the property.
The site is largely a vacant allotment (17.77 ha) with the exception of a single house
recently constructed in accordance with development consent DA07/0600 (issued by Tweed
Shire Council). Construction of this dwelling has been completed and the dwelling is
currently occupied.
The site is currently zoned:
·
61.4% - 7(a) Environmental Protection (Wetlands & Littoral Rainforest) with
10.9ha
·
38.6% - 2(e) Residential Tourist with 6.8ha
The Creek Street road reserve is unzoned for 70m of the sites eastern frontage to Creek
Street but this unzoned land category changes to 7(l) Environmental Protection (Habitat)
where the applicant shows the entry to the proposed subdivision and where the applicant
proposes a turning bay.
The site could be described as relatively level with a gentle slope to Christies
Creek/Cudgera Estuary. Levels range from 2.0m AHD within the central northern section of
the site grading to approximate 0.5 AHD along the southern boundary. The site features a
large water body covering an area of approximately 1.4ha (constructed during dredging
operations) situated within the central western section of the property whilst a narrow
drainage channel traverses the north-western section of the site conveying water from the
Creek Street road reserve before discharging into the artificial lake.
The central area of the site appears to have been extensively modified currently dominated
by regularly maintained pasture grass.
However, several large trees (Eucalyptus
tereticornis) and other isolated copses of native vegetation have been retained and
Page 124
interspersed throughout the area of pasture. Disturbance to remnant marine and terrestrial
vegetation situated to the south (associated with Christies Creek) and west of the drainage
channel site is evident, however the area outside the 2(e) Residential Tourist zone appears
to be regenerating and expanding where regular maintenance has ceased (i.e. mowing and
trimming). The 7(a) Environmental Protection zone supports high value marine and
terrestrial EEC's, mangroves and is known habitat for threatened species.
The following conservation values and habitats are identified on the site:
·
Key Habitat - Office of Environment and Heritage mapping (most of site).
·
Regional Fauna corridor: Cudgen Link (focussed on Blossom Bat and Long-eared
bat) -Office of Environment and Heritage mapping (all of site).
·
Key Fish Habitat (one-third of site) as mapped 2007, whilst DPI Policy and
guidelines for fish habitat conservation and management 2013 recognises
saltmarsh and SEPP 14 Wetland as 'Type 1 Highly sensitive key fish habitat' and
seagrass beds adjacent to the site and Mangroves as 'Type 2 Moderately
sensitive key fish habitat'.
·
Primary Koala Habitat - Coastal Forest Red Gum Open Forest to Woodland
TVMS Code 304/ Coastal Swamp Mahogany Open Forest to Woodland TVMS
Code 305 Swamp Sclerophyll) to the south-west of the site (Tweed Coast Koala
Habitat Study 2011).
·
Secondary A Habitat - Coastal Pink Bloodwood Open Forest to Woodland TVMS
Code 301/Coastal Swamp Box TVMS Code 309 Broad-leaved Paperbark Closed
Forest to Woodland TVMS Code 401/Broad-leaved Paperbark/Swamp Sheoak
Closed Forest to Woodland TVMS Code 402/Broad-leaved Paperbark +
Eucalyptus spp. ± Swamp Box Closed Forest to Woodland TVMS Code
403/Swamp She-oak Closed Forest to Woodland TVMS Code 601 Sub tropical
Coastal Floodplain Forest) south-western corner and riparian zone (terrestrial)
(Tweed Coast Koala Habitat Study 2011).
·
Mapped meta-population (source populations) – ‘Significant Activity’ area across
the subject site capturing foreshore areas and remnant units to the west onsite
and adjoining Cudgen Nature Reserve analogous with vegetation associations
described above. (Tweed Coast Koala Habitat Study 2011).
·
Within 20m of mapped and gazetted SEPP 14 Wetland (eastern edge).
·
Surrounded by Cudgen Nature Reserve to the south, west and north and
Cudgera estuary to the east.
·
Cudgen Nature Reserve contains sensitive estuarine riparian environments,
Endangered Ecological Communities (EEC's) and threatened species and their
habitats, as well as additional important habitat values including hollow-bearing
trees, large active raptor nests (Brahminy Kite), nectar and fruiting resources
including winter-flowering Eucalypts and Primary Koala Food trees.
·
The site has a total of around 1km of creek frontage to Cudgera Creek and its
tributary Christies Creek (site is located at their confluence), both of which are
'small barrier estuaries highly regarded by the local communities with substantial
productivity and biodiversity values' (TCEMP 2005).
·
All mapped vegetation identified under the Tweed Vegetation Management
Strategy 2004 (TVMS 2004) is determined to be of 'Very High Ecological Value'
Page 125
and 'High Ecological Sensitivity' as shown on Map 4 of 7 Ecological values TVMS
2004.
·
Ranked within the top 100 (No. 28 in W1 overall category) of some 500 wetland
and riverine ecosystems in the Tweed studied as part of the Comprehensive
Coastal Assessment process (DEC 2006).
·
The site supports four candidate Endangered Ecological Communities offering
known and potential habitat (high to moderate likelihood) to 23 state listed
species (TSC Act) one of which is Critically Endangered (Beach Stone Curlew).
Two species (Koala and Grey-headed Flying Fox) identified occurring onsite are
listed as Vulnerable under the commonwealth EPBC Act.
·
The site is located within the Coastal zone in a sensitive coastal location as
defined by SEPP 71, Clause 3 Part (1)(a)(g)(iii-iv)), whilst also regarded as an
environmentally sensitive area under the SEPP Exempt and Complying
Development Codes 2008 (Clause 1.5(c)(f)), due to proximity to SEPP 14
wetlands and/or land reserved or dedicated under the National Parks and Wildlife
Act 1974 (Cudgen Nature Reserve).
Background:
The subject site has a long history initially in regard to unauthorised work and more recently
when a proposed subdivision for 45 allotments was declared a Major Project by the NSW
Department of Planning & Infrastructure and ultimately refused (MP06_0153) by the
Planning & Assessment Commission. The assessment of the current application has had
regard to this history and taken into account the following summarised history as previously
undertaken by the NSW Department of Planning & Infrastructure.
The site was illegally dredged and filled in the early 1980’s by the previous owner. In 1982
the same owner obtained a Deposited Plan, which depicted a surveyed Mean High Water
Mark (MHWM) to be the sites' southern boundary. It was initially unclear if the subject site
was surveyed prior to unlawful dredging. Due to legal proceedings actioned by Council, the
same owner in 1988 was restrained from further dredging. The site was not required to be
remediated.
The NSW Department of Planning & Infrastructure concluded in their assessment of
MP06_0153 that the southern boundary was surveyed when the site was in its natural state
and accordingly the southern boundary should be maintained. For the purposes of this
assessment Council Officer’s have accepted this assessment and have considered the
current application on this basis.
The current landowner (who purchased the site in 2001) sought approval from the NSW
Department of Planning & Infrastructure for a 45 lot residential subdivision (incorporating
tourist lots) in 2006. The MP06_0153 proposed lot layout was as follows:
Page 126
MP06_0153 Proposed 45 Lot Subdivision
This proposal (MP06_0153) was declared a Major Project on 26 September 2006 under
Part 3A of the Environmental Planning & Assessment Act 1979 as is was development listed
in SEPP (Major Projects) 2005 being subdivision of residential zoned land into more than 25
lots and tourist facilities in the coastal zone.
The application was exhibited when the original Environmental Assessment report was
lodged and again when the Preferred Project Report was lodged. The application generated
266 submissions all objecting to the proposal.
Following the Department’s Assessment of the proposed application the Planning &
Assessment Commission (on behalf of the Minister) refused the application in February
2012 for the following reasons:
1.
The scale and location of the development, together with the proposed flood mitigation
measures would result in an unacceptable risk to life, health and property within this
flood prone community;
2.
The development is inconsistent with the aims and objectives of State Environmental
Planning Policy No 14 - Coastal Wetlands and State Environmental Planning Policy 71
- Coastal Protection and is contrary to the objects of the EP&A Act including the
principles of Ecologically Sustainable Development particularly given that there is
significant uncertainty as to whether ecological impacts can be avoided or minimised to
acceptable levels;
3.
The development is incompatible with both the adjoining natural and built environment;
and
4.
The proposal is not in the public interest.
Proposed Development:
Page 127
The application currently before Council (DA13/0189) seeks approval for a 22 lot subdivision
with lots varying in size between 705m2 and 11.7ha as follows:
20 of the 22 allotments are wholly contained within the 2(e) Residential Tourist portion of the
site, however Lots 7 and 14 incorporate land zoned 7(a) and these two lots require
concurrence from the NSW Department of Planning as the 7(a) portions of these two sites
are less than the required 40 ha.
It should be noted that whilst the majority of lots (except Lot 7 and 14 as discussed above)
are situated within the 2(e) Residential Tourist portion of the site lots 1 – 6 on the western
component of the site incorporate land that is considered to have ecological significance and
the fragmentation of this sensitive environment is not supported.
The proposed subdivision specifically includes filling the developable footprint of the site
(2.324ha) with between 1.3m and 2m of fill. This amount of fill equates to approximately
36,000m3 of fill material which would need to be brought into the site via approximately
2,160 truck movements.
In addition the proposed subdivision specifically incorporates works to Creek Street itself
and the intersection with Tweed Coast Road to facilitate the proposed development. The
applicant re-submitted the Traffic Report used in MP06_0153 which stated that Creek Street
would be upgraded for its full length to a 7.5m pavement width with a pedestrian footpath on
the southern side of Creek Street. The proposed vehicular entry from Creek Street into the
subdivision is located partly on land zoned 7(l) Environmental Protection and roads are only
permissible in this zone if they meet the provisions of Clause 8(2) of the Tweed LEP 2000.
This is assessed later in this report.
Four stormwater bio-retention devices are proposed within the road reserve to collect and
treat stormwater from roads and building envelopes of individual Lots. The four devices are
connected discharging to the south of Road 1 to a single outlet point within environmental
land for Lot 7.
The applicant has advised that this application varies from the previous application as
follows:
1.
Deletion of any Endangered Ecological Communities removal;
2.
Minimisation of the development footprint so as to address emergency
evacuation requirements (namely the removal of the need to provide a high level
evacuation path that had previously created a number of objections relating to
aesthetic, amenity, practicality and viability concerns);
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3.
Minimisation of the development footprint so as to achieve a substantially
increased buffer separation between both future dwelling houses and the filled
area associated with the proposed development;
4.
Rationalisation of property boundaries to address Council's apparent refusal to
accept future ownership of residue areas and to ensure that all lands outside of
the 2(e) zone are retained in the single ownership (thereby assisting in attaining
the environmental objectives of the zoning relative to the larger residue parcel);
5.
Rationalisation of proposed regeneration and rehabilitation areas so as to
achieve a balance between unrestricted residential areas, controlled open space
and environmental regeneration areas; and
6.
Reduction of the development footprint so as to minimise the visual impact of
development upon existing Creek Street residents with a view to the adjacent
estuary and beyond.
The proposed lot layout is shown diagrammatically below:
DA13/0189 Proposed 22 Lot Subdivision
The application is considered Integrated Development and has required referrals from the
NSW Rural Fire Service and the NSW Office of Water. Both of which raise some serious
concerns with the application as proposed.
Concurrence was required and granted from the NSW Department of Planning to authorise
two undersized lots (Lot 7 and Lot 14) which incorporate land zoned 7(a).
Courtesy referrals were sent to the NSW Fisheries Ecosystem Branch and the NSW Office
of Environment & Heritage (Biodiversity Management Unit). Both of which raise some
serious concerns with the application as proposed.
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The application was publically exhibited between 15 May 2013 and 14 June 2013. Council
received 131 objections to the proposed development all of which raise serious concerns
with the application as proposed specifically having regard to the level of compliance with
the Tweed DCP Section B23 Hastings Point, the uncharacteristic nature of the filled
subdivision in comparison to the existing low set Creek Street, the impact on ecology and
the environment holistically, the impact of flooding on the existing drainage network and
general amenity and safety issues.
Council Officers completed their assessment of the application and met with the applicant
on 28 August 2013 to advise that Council Officers had some serious issues with the
suitability of the project for the site having regard to the level of compliance with the relevant
legislation and the individual merits of the application. Specifically the application
incorporates too much fill that results in a development uncharacteristic of the area, has not
adequately addressed the sensitive ecological environment, has not adequately addressed
localised flooding behaviour, and has failed to adequately consider all the applicable
legislation applying to this site.
Council staff strongly recommended that the applicant withdraw the subject application and
possibly re-lodge a revised Development Application (at a later date) which addresses all of
the issues that have been identified in the assessment of this application.
The applicant did not wish to withdraw the application and has requested time to address
the identified issues. The applicant requested 3 months from 29 September 2013 plus one
additional month over Christmas to provide an amended application. A complete copy of
the applicant’s letter of 25 September 2013 forms an attachment to this report.
Given the contents of this report Council Officers are of the view that any amended
application would need to be substantially different to the application as lodged and
accordingly that the best path is for the current application to be withdrawn or refused and a
new revised application submitted when the applicant has adequately addressed all the
matters raised in this report.
The application is reported to Council given the extensive public submissions and the
extensive history associated with this site.
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SITE DIAGRAM:
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AERIAL IMAGE:
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TWEED LEP 2000 ZONING MAP:
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DRAFT TWEED LEP 2012 ZONING MAP:
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LOT LAYOUT PLAN:
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BUILDING ENVELOPE PLAN:
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EARTHWORKS LAYOUT PLAN:
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COUNCIL’s MAP OF THE SITE DEMONSTRATING CONSTRAINTS:
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COUNCIL’s MAP OF THE SITE DEMONSTRATING SALTMARSH OVER AERIAL:
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Considerations Under Section 79c of the Environmental Planning and Assessment
Act 1979:
(a)
(i)
Tweed Local Environmental Plan 2000
A principle aim of the Plan is to ensure:
The management of growth so that the unique natural and developed
character of the Tweed Shire is retained, and its economic vitality,
ecological integrity and cultural fabric is enhanced.
sites sensitive environmental nature and adequately fails to have regard for the
character of this existing area.
The intent of this clause is to provide for development which is compatible with
principles of ecological sustainable development (ESD) including the
precautionary principle, inter-generational equity, ecological and environmental
factors.
The subject site forms an approximate one kilometre boundary to Cudgera
Estuary and Christies Creek and is recognised to support high ecological value
wetland (SEPP14), Endangered Ecological Communities (4), and is known to
provide habitat for a suite of listed threatened species. Following review the
primary ecological issues include:
a.
Lack of current (vegetation mapping and fauna survey effort), accurate and
detailed information in respect to key site values (Threatened Species and
Endangered Ecological Communities), ecological processes and the
cumulative impact on those ecological values that would be likely to occur if
risks were inadequately/inappropriately managed during the construction
and operational phase of the development.
b.
Disregard for key policy documents and guidelines that should be used to
inform/influence the layout and management of the development during the
design phase. In this regard benchmark buffer dimensions of minimum
50metres have been compromised.
c.
Long term management of the site under a private freehold arrangement as
opposed to more secure long term protection and management of core
habitat areas and buffer zones through the dedication of land to Council.
ESD provisions as outlined in the Tweed LEP 2000.
11) only if:
(a)
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(b)
(c)
The proposed development is located over land zoned partly 2(e) Residential
Tourist Zone, partly within the 7(a) Environmental Protection (Wetlands and Littoral
Rainforest) zone, partly 7(l) Environmental Protection (habitat) and partially
unzoned land within the current Tweed Local Environmental Plan (LEP) 2000.
The 2(e) zone objectives state:
Primary Objective
to encourage the provision of family-oriented tourist accommodation and
related facilities and services in association with residential development
including a variety of forms of low and medium density housing and
associated tourist facilities such as hotels, motels, refreshment rooms,
holiday cabins, camping grounds, caravan parks and compatible
commercial services which will provide short-term accommodation and day
tourist facilities.
Secondary Objective
to permit other development which has an association with a
residential/tourist environment and is unlikely to adversely affect the
residential amenity or place demands on services beyond the level
reasonably required for residential use.
The development does not contain any specific tourist component and is therefore
not consistent with the zone objective. It is noted that Draft LEP 2013 proposes to
re-zone part of the site to R1 General Residential which would enable the
residential development to proceed, however, this presently comprises a reason for
the application to be refused.
The 7(a) zone objectives state
Primary objectives
·
to identify, protect and conserve significant wetlands and littoral
rainforests.
·
to prohibit development which could destroy or damage a wetland or
littoral rainforest ecosystem.
·
to protect the scenic values of wetlands and littoral rainforests.
·
to allow other development that is compatible with the primary function
of the zone.
The allocation of 7(a) land within Lot 14 is considered unnecessary and to conflict
with the 7(a) zone objectives by fragmenting land zone 7(a) between multiple land
owners. That part of Lot 14 within the 7(a) land should be amalgamated with the
remaining 7(a) land within Lot 7. This comprises a reason for the application to be
refused.
The 7(l) zone objectives state
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Primary Objectives
·
to protect areas or features which have been identified as being of
particular habitat significance.
·
to preserve the diversity of habitats for flora and fauna.
·
to protect and enhance land that acts as a wildlife corridor.
Secondary Objectives
·
to protect areas of scenic value.
·
to allow for other development that is compatible with the primary
function of the zone.
The proposed entry road off Creek Street is partially located in land currently zoned
7(l). In addition Draft LEP 2013 proposes to re-zone the entire road frontage to Lot
156 to E3 Environmental Management. The proposed road within that part of the
road reserve zoned 7(l) is not considered to comply with the zone objectives.
In regards to Clause 8(1)(b) this report individually assesses all the applicable
Clauses of the LEP and where there are non compliances these have been added
to the recommendation for refusal.
In regards to Clause 8(1)(c) Council Officers are concerned that the application as
proposed would have an unacceptable cumulative impact in regards to local
character, ecology and local drainage and flooding matters. These matters are
discussed in more detail throughout this report. Non compliance with this clause
has been added to the reasons for refusal.
In addition the proposed vehicular entry from Creek Street into the subdivision is
located partly on land zoned 7(l) Environmental Protection and roads are only
permissible in this zone if they meet the provisions of Clause 8(2) of the Tweed
LEP 2000.
Clause 8(2) states that:
(2)
The consent authority may grant consent to development specified in Item 3
of the Table to clause 11 only if the applicant demonstrates to the
satisfaction of the consent authority that:
(a)
the development is necessary for any one of the following reasons:
(i)
it needs to be in the locality in which it is proposed to be carried
out due to the nature, function or service catchment of the
development,
(ii)
it meets an identified urgent community need,
(iii)
it comprises a major employment generator, and
(b)
there is no other appropriate site on which the development is
permitted with consent development (other than as advertised
development) in reasonable proximity, and
(c)
the development will be generally consistent with the scale and
character of existing and future lawful development in the immediate
area, and
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(d)
the development would be consistent with the aims of this plan and at
least one of the objectives of the zone within which it is proposed to be
located.
The applicants Statement of Environmental Effects has failed to acknowledge the
applicable 7(l) zone and failed to address Clause 8(2) in this regard.
The proposed road could be located further to the east in that portion of the road
reserve currently unzoned and therefore the entry road has failed to adequately
satisfy Clause 8(2).
As detailed above the development as proposed does not satisfy the zone
objectives and this forms one of the reasons for refusal of the application.
The application proposes to connect to Council’s Water & Sewer Infrastructure.
The information contained within the applicants Statement of Environmental Effects
is deficient as outlined to the applicant on 13 September 2013 (see Attachment 5).
Clause 20 Subdivision in 7(a) land
Clause 20 states that the minimum allotment size for land zoned 7(a) is 40ha.
Twenty of the twenty two allotments are wholly contained within the 2(e)
Residential Tourist portion of the site, however Lots 7 and 14 incorporate land
zoned 7(a) as shown below:
Lot 7 is proposed to have a site area of 11.74 ha - 10.827ha of that is zoned 7(a).
Lot 14 is proposed to have a site area of 5902m2 – 2117m2 of that is zoned 7(a).
The applicant has lodged a SEPP 1 Objection to Clause 20 of the Tweed LEP
2000 and argued that:
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"Lot 7 will be created so as to encapsulate the majority of the 7(a) zoned
land within its property boundary. This will serve to retain a large parcel to
conserve the Endangered Ecological Communities on-site. It will also
prevent the further subdivision of the 7(a) land. Lot 14 will include an
elongated portion of 7(a) land which serves as a buffer and bushfire asset
protection zone for the adjacent residential properties. The inclusion of this
small parcel of 7(a) serves to increase the bushfire safety of the Creek St
locality."
This SEPP 1 application required concurrence from the NSW Department of
Planning as the 7(a) portions of these two sites are less than the required 40 ha.
The NSW Department of Planning granted concurrence for these allotments and
stated as follows:
"Following consideration of the application, concurrence has been granted
to vary the 40 hectare development standard as prescribed under clause
20(2)(a) of the Tweed Local Environmental Plan 2000. It is suggested that
Council include a condition of consent, if appropriate, which states:
·
No residential, associated buildings or structures permitted on land
zoned 7(a) Environmental Protection (Wetlands and Littoral
Rainforest).
Concurrence was granted in this instance for the following reasons:
·
·
Any residential dwellings will be situated entirely within the 2(e) zone.
No buildings or associated structures would be permitted in the 7(a)
zone;
·
The land identified for environmental protection will generally be
encompassed within one single land title; and
·
The creation of Lot 7 & 14 will no impact on any EEC or SEPP14
wetland species."
These comments are not entirely concurred with by Council Officers as the 7(a)
land proposed with Lot 14 could easily form part of Lot 7 to avoid fragmentation
and still achieve the buffer and asset protection objectives outlined by the
applicant. Therefore non compliance with Clause 20(2) has been used as one of
the reasons for refusal.
Clause 25 Development in the 7(a) Environmental protection (Wetlands and Littoral
Rainforests) and on adjoining land
The objective is to ‘ensure that wetlands and littoral rainforests are preserved and
protected in the environmental and economic interests of the area of Tweed ‘As
such Council must consider whether the proposal adequately addresses potential
construction and post construction impacts (as stated in Clause 25(3)) and
management arrangements that may negatively affect the long term health and
viability of the adjoining significant wetland area supporting EEC, threatened
species habitat and key fish habitat.
Conceptual stormwater/groundwater management plans have been provided that
recognize the sensitivity of adjacent ecological areas and identify potential
impacts that may result from changes in the current hydraulic regime. These
plans and the applicants Terrestrial Flora and Fauna Assessment however fail to
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adequately consider the existing hydraulic conditions (through baseline
investigation) influencing the adjoining wetland or water-quality of the receiving
waterway. Detailed investigations would be expected to influence the design of
the development (i.e. Lot layout) and form the basis of such management
documents. Without comprehensive analysis of existing conditions it is difficult to
determine the intensity and extent of likely cumulative impacts particularly where
inadequate ecological buffer zones/separation distances between highly
significant ecological features have been proposed. The applicant states that 50
metre buffers are to be provided between the EEC’s (including Saltmarsh EEC)
and any development works (i.e. construction, earthworks and dwellings etc)(pp.
62), similarly the development layout plan depicts an area described as
Environmental Open Space within the 50 metre buffer indicating ‘Nil built
structures’ and ‘Nil fill and/or excavation works’. These statements and plans are
in direct conflict with the engineering and stormwater management plans that
clearly show filling and stormwater structures extending a substantial distance (up
to 25 metres) within the buffer zones. In addition it is noted that the buffer zones
shown on the layout plans have been applied to vegetation polygons identified on
outdated and inaccurate mapping. With reference to more recent vegetation
community mapping (based on 2009 aerial interpretation and 2013 field verified)
buffers are further restricted and terrestrial EEC setbacks adjacent to Lots are
negligible.
In terms of compatible public access and long term management of the buffer
zones the EIA states ‘no public open space will be created’ pp. 5, which is
reflected on the Lot layout plan and consistent with statements in the SEE. The
situation of Lots incorporating and bounding sensitive wetland habitat and EEC’s
managed individually is not considered appropriate to ensure long term protection
and coordinated, best management of these important values. A conceptual
habitat restoration plan has been provided that identifies a fence to be installed
along the footprint of the proposed fill platform, yet there is clear evidence this
single management measure has not been effective in avoiding disturbance of
native flora and fauna as a result of intrusion by humans and domestic and feral
animals, increasing fire risk, rubbish dumping, weed invasion and vegetation
clearing.
The proposal is not supported without the establishment of adequate ecological
buffers as shown on the below diagram (excluding all earthworks/structures/built
form), identification of offset areas, extensive rehabilitation of buffer areas to a
level and maintenance duration necessary to achieves site capture, and the
dedication of buffer zones to Council to be managed (in accordance with an open
space management plan prepared by the applicant) for conservation purposes.
In any redesign a road should form the edge to the environmentally sensitive
areas to avoid private land backing on to environmentally sensitive areas.
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Clause 29 Development Adjoining 8(a) National Parks & Nature Reserves
The site adjoins Cudgen Nature Reserve and Cudgera Estuary as such the
application has been referred to Office of Environment & Heritage and NSW
Trade & Investment Crown Lands for comment. In any redesign the applicant
should consider dedicating all sensitive land to National Parks to minimize 'the
potential for disturbance of native flora and fauna as a result of intrusion by
humans and domestic and feral animals, increased fire risk, rubbish dumping,
weed invasion and vegetation clearing”.
Clause 31 Development adjoin waterbodies
This clause requires that consent not be granted unless the development is
compatible with any coastal, estuary or river plan of management; will not have a
significant adverse effect on scenic quality, water quality, marine ecosystems or
biodiversity of riverine and estuarine ecosystems and adequate arrangements for
public access are provided where appropriate. The development footprint
conflicts with the Tweed Coast Estuaries Management Plan 2004-2008 and most
recent Coastal Zone Management Plan for the Tweed Coast Estuaries in that
50m buffers are not consistently provided to wetlands and waterways, and that
matters previously discussed under Clause 25 and issues raised by
referral/advice agencies have been insufficiently considered and addressed to
support the proposal in its current form.
Council Officers are not confident that ‘the development will not have a significant
adverse effect on scenic quality, water quality, marine ecosystems, or the biodiversity of the riverine or estuarine area or its function as a wildlife corridor or
habitat’, and that the applicant has failed to demonstrated that ‘adequate
arrangements for public access to and use of foreshore areas have been made in
those cases where the consent authority considers that public access to and use
of foreshore areas are appropriate and desirable requirements’.
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Clause 34 Flooding
The information submitted in regards to flooding is inadequate.
An engineering impact assessment would be required which details the impacts
of the proposed filling for a range of design events up to the 100 year ARI storm
for the local contributing catchment, to demonstrate no significant adverse impact
on local catchment flows from development to the north of the site (North Star
Caravan Park and Creek Street residences) to Christies Creek to the south. This
should include hydraulic modelling, based on contemporary ground level survey,
and calibrated to known floods such as the June 2005 event.
In addition the applicant has been asked to provide a response from consultants
(BMT WBM) to the MWA Environmental report attached to the public submission
by O'Reilly Sever & Co. which opposes the applicants flooding analysis. The
criticism specifically relates to the calibration of the modelling used for regional
flood impact assessment for the June 2005 flood event, and the selection of
design storm intensity and duration used in the assessment.
Clause 34 has not adequately been satisfied.
Appropriate conditions of consent could be imposed in regards to acid sulfate soils.
Clause 39 – Contaminated Land
An Engineering Impact Assessment (GC130001-C0703-C-R-EIA-001) prepared
by VDM dated April 2013 (App D Pts 1-3 of SEE) has been submitted. The
Assessment states a preliminary soil contamination report prepared by Opus
International Consultants is attached as App D. No report is attached.
A Preliminary Soil Contamination Report would be required which specifically
considered possible historic sand mining activities. The lack of this report forms a
reason for refusal of this application.
Clause 39A – Bushfire Protection
The proposed development is considered Integrated Development requiring
concurrence form the NSW Rural Fire Service. The RFS have recommended
conditions of consent which would render the proposed subdivision unviable in its
current form (specifically in regard to the width of internal roads). Council
Officers' questioned the RFS on these conditions as follows:
"Council has reviewed your recommended conditions and raises the
following questions/comments on those conditions:
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·
The proposed roads in the application only have 6m wide sealed
pavement within a 12m wide road reserve (i.e. grass verge and
footpath either side of the 6m wide sealed pavement) not 8m as per
your condition.
·
Council is recommending the applicant use water sensitive urban road
design in this location which require a 6m wide sealed pavement within
a 17m wide road reserve (i.e 5.5m either side of the road pavement
formed as a grass swale drain).
·
Council's minimum pavement is 6m and it is considered onerous to
make the applicant construct roads with an 8m pavement width for a
small amount of allotments.
·
Other major subdivisions in Tweed Shire have not had these onerous
restrictions applied i.e. Kings Forest has approved roads of 6m (which
is surrounded by environmentally sensitive land and bushfire prone
lane). Other examples include Black Rocks and Casuarina
subdivisions (urban subdivisions surrounded by bushfire prone land
and approved after adoption of the Planning for Bushfire Protection
2006 document).
·
A cul-de-sac width of 12m is usually required for an industrial
subdivision for the turning of semi trailers, Council's standards for
urban subdivisions is a 9m wide radius which is wide enough for a
garbage truck or fire truck with a loading of 15 tonnes to turnaround.
These conditions are stock standard from the 'Planning for Bushfire Fire
Protection 2006' document and the Hastings Point application does not
comply with them, either do Council's road standards for an urban
subdivision with local access streets.
The RFS access conditions appear onerous for an urban subdivision (8m
wide sealed road and 12m wide radius for cul-de-sac) and inconsistent with
previous approvals issued by the DP&I and Council with RFS sign off.
Could you please review your comments accordingly and advise Council of
your final GTA’s."
The following response was received:
"The RFS has reviewed your comments below and provides the following
response.
The proposed subdivision is for residential purposes.
PBP 2006 requires perimeter roads where the residential lots interface with
the mapped bush fire hazard.
The proposed subdivision layout does not comply with this requirement and
the application documents presented minimal discussion on the proposed
internal road layout.
The RFS assumed a reason for the proposed internal road layout was to
reduce the environmental impact of a road system bordering riparian lands
including EEC vegetation. Further the RFS was not presented with any
reasoning for internal road design and formations to be below the RFS
minimal design standards.
The applicant, and/or Council, will need to demonstrate that the proposed
road system will comply with the Performance Criteria of Section 4.1.3 (1) of
PBP 2006 for the RFS to consider amending the issued BFSA."
The applicant has been provided with this advice from the RFS and any amended
application will need to address this accordingly. Non compliance with this clause
and the Planning for Bushfire Protection Guidelines generally forms a reason for
refusal of this application.
In addition the bushfire plan prescribes an Asset Protection Zone in the form of
an Inner Protection Area of 10 metres around the periphery of the building
envelopes. This area is to be managed in accordance with RFS guidelines (i.e
clear of vegetation). Concerns are raised however that the assessment and
subsequent calculation of asset protection has not adequately taken into account
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the extent of habitat restoration and the type of vegetation to be re-established.
This could potentially have an impact on future rehabilitation/re-vegetation effort
where for example vegetation that is afforded a high hazard rating is not
accounted for in the calculations and as such may place restrictions on
revegetation in the future if the current plan was to be endorsed without detailed
assessment and in the absence of a habitat restoration plan.
As such it is questioned whether site rehabilitation would be compromised and
that further investigation is warranted to demonstrate that appropriate asset
protection zones have been calculated based on future habitat conditions within
buffers.
Clause 54 - Tree preservation order
The subject site is covered by the Tweed Shire Council 2011 (Koala Habitat) Tree
Preservation Order as well as the 2004 Tree Preservation Order. Comments in
this regard are provided under SEPP 44 and the general ecology comments later
in this report.
Clause 15: Wetlands or Fishery Habitats
This Clause requires consideration of certain wetland areas and seeks to ensure
the need to (amongst other things) maintain or improve the quality or quantity of
flows of water to the wetland or habitat and ensure native vegetation surrounding
the wetland or fishery habitat area is conserved. The proposed development
does not adequately satisfy this provision.
The subject land is designated coastal land and therefore this clause applies.
The clause requires the consideration of the NSW Coastal Policy 1997 seeks to:
protect, rehabilitate and improve the natural environment; protect and enhance
aesthetic qualities and cultural heritage; and to provide for ecologically
sustainable human development in the coastal zone. The proposed development
does not satisfy this provision.
Clause 43 states that Council shall not grant consent to development for residential
purposes unless, amongst other things, it is satisfied that the density of the
dwellings have been maximised without adversely affecting the environmental
features of the land. Clause 43 also advises that the road network should be
designed so as to encourage the use of public transport and minimise the use of
private transport. The proposed development does not satisfy this provision.
Clause 81: Development adjacent to the ocean or a waterway
This Clause states consent shall not be granted for development on land within
100 metres of the ocean or any substantial waterway unless it is satisfied that
buildings to be erected as part of the development will not detract from the
amenity of the waterway. The large extent of fill means that future dwellings
could have a visual impact on existing sight lights from prominent locations.
These are discussed in detail later in this report.
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The applicant seeks consent to vary Clause 20(2) as discussed earlier in this
report. Whilst the NSW Department of Planning granted concurrence for this
SEPP 1 Council Officers are of the opinion that the 7(a) land within Lot 14 be
reallocated to Lot 7 which holds the residue 7(a) land.
SEPP No. 14 – Coastal Wetlands
SEPP 14 requires that works involving draining, constructing a levee, filling or
vegetation clearing are designated development. Whilst the development does
not propose such action directly on the gazetted mapped wetland, such works are
proposed (filling) within 100m of the mapped boundary.
It is considered that buffers provided are inadequate. Council Officers cannot be
confident that hydraulic impacts, nutrient loading would not have an adverse
effect on SEPP14 and surrounding wetland associations in the absence of
detailed investigations including the collecting and analyzing of baseline data
which would be expected to inform management measures/lot layout and
ultimately appropriate buffers.
SEPP No. 44 - Koala Habitat Protection
SEPP 44 Koala Habitat requires a Koala Plan of Management to be produced for
‘core’ Koala habitat. Whilst the number of Primary Koala food trees may not
represent 15% of the site, insufficient survey has been undertaken to exclude
Koala usage of the site and Primary Koala food trees are proposed for removal.
The Tweed Coast Koala Habitat Study (Biolink 2011) has highlighted that Koala
aggregations remaining on the Tweed Coast are already regarded as below the
minimum viable populations size and are at real risk of extinction within the next
three Koala generations in the absence of active intervention. An application to
the Scientific Committee to list the Tweed Coast Koalas as an Endangered
Population under the Threatened Species Conservation Act 1995 has been
forwarded to the committee for consideration whilst a Tweed Coast Koala Plan of
Management is currently in preparation. The south western area of the site
provides an essential connection between known populations at Koala Beach and
Primary Habitat in Cudgen nature reserve, yet is not considered from a Koala
habitat perspective. Further analysis is required in this regard.
The SEPP 44 stipulates that land containing “core Koala habitat” can only be
developed in accordance with a management plan. Given the source population
mapping of the Tweed Coast Koala Habitat Study 2011 and the presence of
Primary and Secondary A Koala habitat on the site, it is considered that
insufficient survey has been undertaken to conclude that the site is not core
Koala habitat. This is particularly the case given the duration between previous
fauna survey effort and submission of the current application where there has
been significant regeneration of preferred Koala feed tree species (listed under
Schedule 2 titled 'Feed Tree Species' of the SEPP) (Eucalyptus robusta) within
the west of the site.
SEPP No 71 – Coastal Protection
The subject site occurs within the coastal zone recognized as a ‘sensitive coastal
location’ (land 100 metres from Cudgera Estuary and area mapped as SEPP 14
Wetlands) that is offered frontage to the coastal foreshore. As a result Clause 8
applies and aims to, amongst other things, protect and manage the natural,
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cultural, recreational and economic attributes of the NSW coast; protect and
improve existing public access to and along the coast; to protect and preserve
Aboriginal cultural heritage; to ensure visual amenity of the coast is protected; to
protect beach environments and beach amenity as well as coastal vegetation and
the marine environment; to manage the coastal zone in accordance with the
principles of ecologically sustainable development; to ensure the type, bulk, scale
and size of development is appropriate for the location and protects and improves
the natural scenic quality of the surrounding area; and encourages a strategic
approach to coastal management.
The development proposal does not adequately respond to these considerations
to ensure that the development is compatible with adjoining significant habitat
and that cumulative impacts are appropriately managed or avoided.
(a)
(ii)
Draft LEP 2013 proposes to rezone the site partially R1 General Residential and
partially E2 Environmental Management. Most of the issues identified in this
report remain valid when having regard to the Draft LEP 2013.
(a)
A3-Development of Flood Liable Land
a)
Compliance with Emergency Response Provisions for Subdivisions
Whilst the subject site is 17.7ha the application only proposes 22 allotments
within a filled developable land area of 2.324 ha.
There is a threshold in Development Control Plan Section A3 - Development of
Flood Liable Land Clause A3.2.6 that requires subdivisions larger than 5ha to
make provisions for high level evacuation access. Subdivisions smaller than 5ha
are considered to be "infill" development, and are excluded from the evacuation
requirements. While DCP-A3 specifies that the land area must account for
residual parcels of urban zoned land, this particular case has been considered by
Council’s Executive Management Team, and provided the residual land can be
appropriately quarantined from further development, it has been deemed
appropriate to deal with this application under the "infill" provisions. This removes
the need to construct a road at or above the design flood level, which in the
previous application caused issues with transverse drainage, flood impact, visual
impact and buffer encroachment. It is also not practical to try and raise Creek
Street to the required level given the relative level of adjoining residences, and
lack of stormwater drainage in the street.
As such, the subdivision design provides for external road access from Creek
Street, filling of the developable portion of each allotment within the proposed
2.324ha area, and future construction of dwellings with freeboard (subject to
future applications).
Given the evacuation constraints for the site, the applicant has nominated to
provide covenants on each allotment requiring the construction of dwellings with
refuge areas above the probable maximum flood (PMF). While this is not
mandated in the current version of DCP-A3, it is an acceptable flood risk
management approach in this location given the expected frequency of Creek St
being affected by flooding and drainage problems.
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b)
Design Flood Levels
The application is unclear on the adopted design flood levels (DFL) in this
location, and there are discrepancies between the various reports in the
appendices. In general the applicant proposes to fill each residential allotment to
be above the climate change DFL.
Council's mapping confirms a design flood level (current day 100 year ARI) of RL
2.6m AHD, and a climate change DFL of RL 2.9m AHD. DCP-A3 only requires
adoption of the climate change DFL for "greenfield" subdivision greater than 5 ha,
so is not mandated in this case. Minimum habitable floor level for residential
development on the subject land is therefore RL 3.1m AHD under DCP-A3.
PMF level at this location is RL 4.0m AHD, not RL 3.9m AHD as stated by the
applicant.
c)
Fill Heights and Extents
DCP-A3 mandates filling of land to a minimum of the design flood level (that is,
RL 2.6m AHD) for residential subdivision purposes in this locality, subject to
demonstrating that the development will not adversely affect the current flood
patterns and levels in the area.
DCP-A3 sets minimum fill levels only, and it is therefore satisfactory from a flood
protection perspective to fill in excess of this, as proposed by the applicant
(average fill level is approximately RL 3.6m AHD). This additional fill is required
to some extent for engineering purposes, to achieve adequate grades on
allotments and roadways for stormwater drainage, sewerage infrastructure etc.
An issue with the application is that it states that all development will be limited to
the 2.324ha contained within the "Proposed Development Footprint", shown on
plans in Appendix B. This however does not agree with the fill plans in Appendix
D - Engineering Impact Assessment, where filling has been expanded beyond
this boundary. This is best depicted in Figure 1.2 (below) from the Stormwater
Management Plan (Appendix I), where the fill extent in pink extends beyond the
purple development boundary, reducing the nominated "Environmental Open
Space" areas between the purple and blue lines:
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Should the filling be reduced back to the purple line, this would have
consequences for lots 05, 06 and 13, as there is barely enough room for a
standard 10x15m house pad required by DCP-A5. Lot 5 is further constrained by
the current location of the biofiltration basin on the street frontage (shown in
green). Reduction of filling on Lot 14 is also required, and given the difficulties
associated with filling to the boundaries of the three established dwelling lots on
Creek Street (No's 26-30) and the need for additional drainage in this area, any
amended application, from an Engineering perspective should consolidate Lots
14 and 15.
Further, ecologically Council Officers disagree with the purple development
boundary, and this requires further amendments. This will impact further on the
developable extent of the site, and therefore the fill extent.
d)
Hydraulic Impacts of Filling - Regional Flood
The importation of fill to the site creates the potential for adverse impacts on
flooding behaviour in the locality. There are two flood mechanisms that must be
explored - the regional flood and the local catchment flood. For the regional flood
case, the impact of the fill must be tested hydraulically against flooding emanating
from the wider Cudgera and Christies Creek catchments and interacting with
ocean storm surges and tides.
Appendix G contains a Flood Impact Assessment. This is not a new assessment
based on the current subdivision and fill design, but the submission of the flood
study completed for the previous proposal (dated May 2011 plus Addendum
August 2011). The flood study was based on Council's regional Coastal Creeks
Flood Model and was undertaken by the same consultants (BMT WBM) used by
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Council for the Coastal Creeks Flood Study. The flood study looked at potential
impacts of the development for a range of flood intensities, from the 2 year ARI
up to the PMF, and included examination of the June 2005 flood event, and a
climate change scenario.
The report provides mapping of "Developed Case Peak Flood Level Impacts"
which shows for the range of events impacts across the floodplain are in the
range of -0.03 to +0.03 (which generally defines the limit of reading of the model).
The exception was the June 2005 flood event, which when modelled produced
some isolated higher impacts at the western end of Creek Street, as shown in the
following impact map:
The report addressed these modelled impacts as follows:
"As can be seen in Figure 6, there is one area of peak flood level impact
along the northern boundary of the site. The cause of this appears to be
some modification to the flow characteristics across the site due to the
development. Filling of the site slightly restricts the flowpath from north to
south through the central/east portion of the site causing water to flow in a
westerly direction, confined to the Creek St road reserve..
It is also possible that the flood impacts reported within the Creek St road
reserve may be conservative (over estimated). This is due to the limitations
associated with representing local stormwater features using a catchment
wide flood model based on a coarser resolution model grid (15m).
Specifically, catch drains not represented in the flood model are proposed
flowing west along the Creek St road reserve (Swale = 0.35m deep, 0.5m
base width, 1x4 side slopes and minimum longitudinal grade of 0.5%) and
also south into Christies Creek (Concrete lined drain = 0.2m deep, 0.75m
wide and minimum longitudinal grade of 0.5%). It is likely that these drains
are of sufficient capacity to accommodate the floodwaters flowing along the
Creek St road reserve (<0.2m3/s), as such reducing the flood impacts within
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this location. If it is identified that the above mentioned additional flowpath
requires assessment in detail, it is recommended that this be undertaken at
the detailed stormwater design stage."
The approach to require further examination of perimeter and road drainage to
mitigate these predicted flood impacts with detailed design in a future
construction certificate application was conditionally accepted in the previous
assessment.
While some submissions by Creek Street residents disputed the validity of the
Flood Study, the following assessment was made previously:
"The additional model runs show little or no adverse flood impact. For
catchment dominated events a marginal improvement in peak flood levels is
even achieved. The consultants were questioned on these observations
and it is apparently due to proposed drainage and reshaping works adjacent
to the creek and environmental areas, which allow for increased flows
around the development compared to pre-development conditions.
Local residents have provided Council officers with a number of
photographs of recent storm and flood events, which dispute the inundation
patterns shown on the flood mapping, particularly for the June 2005 event.
The residents believe that these photos provide evidence that the areas
shown to be dry in the flood mapping were inundated to a significant level in
the June 2005 flood.
The consultants were questioned on these observations, and a comparison
was made between the digital elevation model (DEM) used for the TSC
model, based on 2007 airborne laser scanning (ALS) data, and the ground
survey data provided by the applicant. These were shown to correlate well.
The 2005 event was used as a calibration event for Council’s Coastal
Creeks Flood Study. This calibration modelling was within 120mm of an
observed point obtained by BMT WBM from a Creek Street resident
adjoining the development site. While this discrepancy would affect the
inundation extent given the flat nature of the site, the residents’ observations
of flood depth do not correlate with the calibrated flood modelling...
The applicant’s consultants have utilised the best and most current flood
model that is available for the Hastings Point area to demonstrate that the
proposed filling and associated development will not adversely impact on
local flood behaviour and neighbouring properties.
This issue has been adequately addressed, subject to the Department of
Planning’s consideration of resident submissions opposing the accuracy of
the flood modelling."
It is noted that the regional flood impact assessment has been similarly
challenged by objectors' submissions to the subject application. This includes a
report prepared by an "independent expert" in the field of flood studies and
modelling. These submissions are discussed in more detail below.
It is generally difficult for Council to oppose the flood modelling as it is based on
the best available data, and it is the same regional flood model upon which
Council's own flood risk management in the area is based. The applicant's
consultants have been requested to respond to the objectors' submissions where
they relate to the validity of the flood modelling so that they can provide a
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technical response, as these matters are beyond the level of expertise of the
assessing officers.
It is therefore concluded that the limitations of regional flood modelling to
represent minor drainage systems and local catchment flows are generally
responsible for the discrepancies that are highlighted in the objectors'
submissions, and that the applicant has reasonably demonstrated that the
development will not have significant impacts on regional flood behaviour.
e)
Hydraulic Impacts of Filling - Local Flood
In additional to regional flooding assessment, local flooding impacts must be
investigated. The fill has the potential to block local drainage flow paths, to the
possible detriment of urban development to the north (the North Star Caravan
Park and Creek Street), as sheet flows make their way through the subject
allotment to the receiving water body of Christies Creek. This has potential for
impact, as has been demonstrated in the Flood Impact Assessment by the
regional flood model.
The Flood Impact Assessment described above does not consider in detail the
local catchment flood, and the model used for the regional flood investigation is
generally not suitable to do so without considerable refinement (currently the
model has a 15m grid which is too coarse to properly identify local drainage
features). While the applicant assumes that local drainage and ponding issues
can be adequately dealt with by perimeter drainage around the fill footprint and
enhanced road drainage in Creek Street, this has not been demonstrated
technically, and no details have been provided in the Engineering Assessment
(Appendix D).
As detailed above, it is the local catchment flood behaviour that needs to be
properly investigated in order to address the considerable concerns raised by
objectors to the subject application. It is therefore appropriate that further
information be provided in the form of detailed impact modelling results.
f)
Urban Design Impacts of Filling
Concerns have been raised that the mandatory filling of the development for
flooding purposes is contrary to the provisions of DCP-B23 Hastings Point
Locality Based Development Code.
Control 8 in Section 4.2.3.3 states:
8.
The filling of land to avoid flooding must be carefully considered to
avoid impacts on adjoining land and water resources and in particular:
·
changing the existing quality of the landscape and visual setting
to the settlement;
·
removal of vegetation generally and within key visual settings;
·
loss of visual privacy;
·
unsightly retaining
boundaries;
·
destruction of ecological systems and species, and
·
destruction of the delicate composition of soil and water
gradations from land to water.
walls
or
unsightly
embankments
at
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While DCP-A3 requires consideration of hydraulic impacts as discussed above,
the more subjective issues of local character, visual and landscape impacts must
be considered under DCP-B23.
As the proposal requires filling of between 1.3m - 2.0m in depth, and promotes
PMF refuges which will require two storey dwellings on top of this fill, such
impacts may be significant.
While these aspects are discussed in more detail below this assessment has
considered an alternate solution whereby the fill requirements of DCP-A3 could
be varied while still addressing flood risk.
g)
Alternate Solution - Filling
DCP-A3 mandates filling of land for residential subdivision purposes, and does
not support variations to reduce fill levels and/or stilt housing construction on a
scale beyond single dwelling applications.
Please note that the infill exemptions which apply to the need for an emergency
access road do not apply to the general filling requirements for residential land.
Typically filling of urban subdivision land significantly reduces the risk to property,
due to increased flood immunity, and facilitates improved evacuation access
when it can incorporate rising road access. Unfortunately in the case of the
subject land, which relies on Creek Street for evacuation, the filling of the site
provides few benefits in terms of emergency response.
Therefore, when weighing up the apparent conflicts between DCP-A3 and the
locality specific DCP-B23, the relative flood risk benefits of alternate development
types should be considered if they achieve superior urban design objectives.
Firstly the filling proposal as put forward by the applicant is in excess of Council's
minimum requirements, and could be reduced to lessen the impact on view
corridors. However the proposed inclusion of PMF refuges necessitates twostorey dwellings on the fill pad, or further increases in the fill level. Neither
appears desirable under DCP-B23.
An alternate option is to vary the DCP-A3 filling requirements to limit fill to the
minimum height necessary to provide adequate grading on roads and allotments
for services, and mandate stilt housing in order to provide adequate protection to
habitable areas. In order to limit property risks, ground floor enclosures should
be non-habitable and limited in area to 50m2 (as applies in other flood prone
localities, such as Chinderah). Lower level access roads will reduce evacuation
capability, so to offset this risk, a minimum habitable floor level of RL 4.0m AHD
(PMF level) should then be applied. This works well with the prevailing site
levels, and is a feasible compromise between the objectives of DCP-A3 and
DCP-B23. Dwelling design requirements could be applied via s88B restrictions
on each subdivision lot when an amended design is formulated.
The reduction in fill height under this option does not necessarily overcome the
potential local flood impacts discussed above. As the site is basically level, even
minimal fill and regrading works necessary to provide the necessary infrastructure
could block existing flow paths or divert sheet flows. Based on floor level survey
data collected by Council as part of the Coastal Creeks Floodplain Risk
Management Study, the lowest residential floor level in Creek Street is only RL
2.21m AHD, which is very low relative to the existing ground levels across the
development site.
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Should the applicant wish to re-design the subdivision it would be strongly
advised that the above alternative to filling be adopted.
A5-Subdivision Manual
The proposed subdivision has not adequately addressed the provisions as
outlined in Section A5.
The subdivision design has not had adequate regard to environmental
constraints, stormwater runoff, drainage, waterways, flooding, buffers, lot layout,
landscape character and natural landform. Accordingly, non-compliance with this
section of the DCP forms a reason for refusal.
A6-Biting Midge and Mosquito Control
A Mosquito and Biting Midge Impact Assessment prepared by Mosquito
Consulting Services PL dated 30 May 2008 (App N of SEE) was submitted with
the DA. However, the assessment is based on a prior proposal and has not been
amended to reflect the current proposal. It has not been informed by the
stormwater management infrastructure plan nor consideration of the landscaping
proposed both of which would influence biting midge impact.
An amended site specific mosquito and biting midge assessment would be
required having consideration of site layout, stormwater management
infrastructure and the proposed landscaping plans.
B23-Hastings Point
Tweed DCP Section B23 was prepared following extensive public consultation.
The DCP states that development of Lot 156 is problematic due to the sites'
ecological sensitivity. The development as proposed has failed to adequately
address the DCP and failed to respond to the site sensitive ecological status.
The following specific comments are provided:
Fill Impacts on Streetscape
The general design approach to import significant amounts of fill to build up the
collective building envelope area is contrary to the character of Creek Street and
its surrounds which will have a number of streetscape, interface and visual
impacts.
The Hastings Point Locality Based DCP states:
"Creek Street is a quiet coastal residential street that provides access solely
to lots along Creek Street, it is not a through road. Large setbacks and
unmade edges characterise the street. The setting is complemented by
mature vegetation within many front gardens along the street. Low and open
coastal style fencing gives an informal character to the street."
Filling of the site will introduce significant boundary and interface level changes,
batters, retaining walls and elevated building pads which will disrupt the existing
pattern of development along Creek Street as demonstrated by Council’s diagram
below:
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Figure 1 - Proposed level change and retaining wall between existing Creek Street allotments and proposed allotments.
As such the question of fill versus flood resilient design needs to be appraised in
the context of what additional cumulative impact the proposed fill across the site
will have on adjoining and existing dwellings, resultant building heights, visual
character and view fields impacts from the broader locality.
Fill Impact on Building Heights
To accommodate 22 lots above the design flood level much of the site normally
would need to be filled to 2.6m AHD which is the prescribed design flood level (as
specified in Tweed DCP A3 Development of Flood Liable Land) with a further
requirement for 500mm freeboard to a habitable floor level (3.1m AHD).
However, the applicant has proposed additional fill beyond these minimal levels.
It is further proposed that a restrictive covenant be placed on all building sites
requiring a PMF refuge area, which would be above RL 4.0m AHD.
As each building will need to provide refuge area above AHD 4.0m RL, this
effectively requires all buildings to either increase the site fill by an additional
amount (300-700mm) to build a single storey dwelling, or design either a
mezzanine level or second storey. The proposed design approach to fill much of
the site may lead to potential building height and visual impact issues.
The designated height limit across this area is 8.0m as prescribed by the locality
specific Tweed DCP-B23 measured above existing ground level. The existing
ground level across the site is for the most 1.5m AHD with a few smaller
undulations up to 2.0m AHD. With the building height limit of 8.0m this would
typically result in a maximum building height of between 9.5-10.0mAHD which
would allow a two-storey building (2.7m + 0.5m + 2.7m + 2.1m = 8.0m) over a site
which has not been filled. This is typically the existing condition along Creek
Street.
As the site is proposed to be filled to 3.3m, this would in effect become the
'existing ground level'. With an 8.0m building height limit, this would effectively
result in an overall building height level of up to RL 11.3m AHD for a two-storey
building.
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There is a compatibility issue of these potential new building heights with the
existing Creek Street character. Creek Street dwellings are predominantly single
and double storey. As such the existing building heights are between 4.0m and
8.0m in height. As these existing allotments have not been filled, the resultant
allotments on Lot 156 will be in the order of 2-3m higher if built to two-storey's.
On the interface of 30 Creek Street, the finished fill height of proposed Lot 22 will
be at almost the same level as the fascia of the existing single storey dwelling.
The filling and building height is therefore a particular issue for the proposed
allotments Lots 19-22 where they adjoin existing allotments or front Creek Street.
The level disparity between existing and proposed could give rise to significant
overlooking and visual impact issues.
Council Officers would be prepared to compromise on the Tweed DCP Section
A3 flood levels to better address the requirements of the locality specific Tweed
DCP-B23. However this would need to be subject to a new application.
Fill Impact on defined view fields and visual character
In the context of the site specific DCP Visual Settings 5.5 Bridge looking west, it
is noted that there is currently little built form within the majority of the view and
that existing buildings are visible at the northern end of the bridge.
The defined key characteristics and objectives of this vantage are:
Key Characteristics:
·
The layering of water, foreshore vegetation and the hills in the distance
which met the sky.
·
The view is predominantly natural.
·
There are few manmade elements within this view except buildings on
the northern end of the bridge.
Objectives
i.
Retain the predominance of nature within the view.
ii.
Carefully located buildings so as to be nestled within the landscape.
The relevant controls out of this same section are:
Controls
1.
Development applications for lots within the visual setting must be
accompanied by a photomontage demonstrating impacts and measures to
mitigate impacts.
4.
To the north-west and west built form may only be visible within the midlayer. This is likely to constitute the roof of buildings only; refers to B in the
control diagram.
5.
Vegetation within the lower layer (including both depth/thickness and height)
must be retained and reinstated where clearing has occurred.
A visual Impact assessment has been included as part of the submitted
Statement of Environmental Effects and documents 13 vantage points analysing
both inward and outward looking views. Of interest are a number of view field
sections which have been prepared which documents view point, distance to site
extents and location and height of vegetation which is purported to provide a
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visual buffer to the site. These view field sections assume a filled building pad of
RL 3.3m AHD and document a maximum building height of 8.0m bringing the
maximum building RL to 11.3m AHD.
The visual impact statement seeks to justify that due to the presence of the
existing vegetative screening, estimated to be between 12.5-15.5m high, the filled
and elevated built form, even if built to the maximum building height of 8.0m will
be predominantly screened from view from the key vantage points. It is however
material to note that the existing two storey house and filled pad it is built on is
below the proposed RL 3.3m AHD finished site fill level of the subdivision
balance. Even though this house sits lower on the site than what is proposed, it
is still clearly visible from the key viewpoints 01 and 02 and is particularly visible
when driving north across the bridge where the building form and white finish
clearly stands out amongst the surrounding vegetation.
This house is visible as it sits within a 45m gap between middle stand of trees
and a smaller grouping of trees to the south. This vegetative gap opens up a
view cone into the site. If you were to overlay the indicative building envelopes
layout over this view cone through the vegetative gap, you would clearly see up
to 12 houses depending on your view angle. There is another wide gap in the
existing vegetation to the north of the existing dwelling which also opens up a
deep cone view into the site.
The key issue is that in the context of the vantage point from the bridge, this part
of the view would be foreshortened and each of these buildings and roofs would
read as a larger built form grouping rather than individual houses (roofs),
separated by landscape. Whilst this is generally consistent with the controls of
being able to see roofs within the mid-layer, the grouping of the roofs which will
be clearly read between the vegetative gaps which will form a visible and
recognisable new element within the overall scene that affects and changes its
overall character.
The site should retain all environmentally protected land, ecological and estuarine
buffers including vegetative screening areas to be combined into a single
separate title (either community title or preferably dedicated to Council) for
ongoing management and rehabilitation. If this proposal progresses, it will also
be a strong recommendation for further vegetative regeneration of these buffer
areas to 'fill in the gaps', securing both an ecological and visual buffer, consistent
with control 5 of the site specific DCP. It is noted that these areas are currently
described as 'environmental open space' not subject to assisted or natural revegetation works which is unacceptable.
Height poles should be used to obtain more accurate view analysis plans.
Fill Envelope
The proposed fill envelope is unacceptable and encroaches on significant
vegetation buffer areas and has unreasonable impacts on adjoining residential
properties.
If amended plans are lodged they would need to show a significantly reduced
amount of earthworks to reflect the ecological constraints. All earthworks
(including batters and retaining walls) should be located within the development
footprint and should not encroach in to the nominated buffer areas.
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In addition the fill batters/retaining from the rear boundary of the three existing
residential allotments, No's 26, 28 and 30 Creek Street would need to be
removed.
Tweed DCP Section B23 has not been adequately considered in the design of the
proposed subdivision and accordingly the application is recommended for refusal.
(a)
The subject site is nominated as Coastal Land and therefore this clause applies.
The proposal is inconsistent with the Coastal Policy as it does adequately address
the ecological constraints of the site.
The development application does not comprise any demolition works.
Not applicable
Not applicable
(a)
(v)
Protection Act 1979)
The primary objectives of the Coastal Management Plan are to protect
development; to secure persons and property; and to provide, maintain and
replace infrastructure. Given the location of the subject site, a significant distance
from the coastal foreshore, it is considered that the proposed development would
be consistent with the objectives of the clause.
The development footprint conflicts with the Tweed Coast Estuaries Management
Plan 2004-2008 and most recent Coastal Zone Management Plan for the Tweed
Coast Estuaries in that 50m buffers are not consistently provided to wetlands and
waterways.
Coastal Zone Management Plan for Cobaki and Terranora Broadwater (adopted by
Council at the 15 February 2011 meeting)
This Plan is not applicable to the proposed development as the subject site is not
located in the vicinity of the Cobaki or Terranora Broadwater.
(b)
in the locality
Environmental Protection Biodiversity Conservation (EPBC) Act (1999)
Two fauna species known to occur on site are assigned dual 'vulnerable' listing
status under both the Commonwealth EPBC Act and the NSW State Threatened
Species Conservation Act being the Grey headed Flying Fox and Koala.
The DA acknowledges removal of preferred Grey headed Flying Fox fruiting and
flowering resource and that adequate buffers would be provided to Primary and
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Secondary Koala habitat. However, the applicant has failed to consider direct
impacts particularly on the Koala through the rejection of dog exclusion policy,
whilst indirect impacts such as lighting/noise/human activity have the potential to
influence Koala behaviour.
Buffers proposed to sensitive ecological areas supporting existing/regenerating
Koala habitat are considered inadequate. Dog exclusion is warranted.
Whilst it is the applicants' responsibility to refer the application to the federal
Government to determine whether the development is considered to be a
‘Controlled Activity’, the following ecological assessment indicates that the
application as proposed has failed to adequately consider fauna having regard to
the applicable legislation.
Section 5A (significant effect on threatened species, populations or ecological
communities, or their habitats)
Section 5A of the EP&A Act requires consideration of the potential for a
significant impact on threatened species, populations and ecological
communities. Impacts have been insufficiently considered to be confident that a
significant impact can be avoided.
One Critically Endangered (Beach Stone Curlew) and three Endangered fauna
species (Black-necked Stork, Bush Stone Curlew and Pied Oystercatcher) listed
under the Threatened Species Conservation Act are known to occur on site.
An additional 19 Vulnerable fauna species (including the Grey-Headed Flying Fox
and Koala) are either known or have been determined to have a moderate to
highly likelihood of occurring/utilising habitats on site based on review of updated
mapping, recent Bionet Atlas of NSW Wildlife search, known reliable records,
species profiles and ecological knowledge and expertise.
Seven Part tests were used to assess potential impact on 10 listed species and
four candidate Endangered Ecological Communities. Due to lack of up to date
survey results (2006) an additional 13 species should have been considered
based on habitat and verified records.
In response to test of significance proposed mitigation measures include:
·
Buffer zones to sensitive ecological values/features
·
EEC Offset at ratio of 10:1
·
Installation Nest boxes
·
Ecological Restoration
·
Raptor Pole and Nesting Platform
·
40km speed limits
·
Cat ban and restriction on dog movements
·
Fauna spotter catcher during clearing
In summary primary issues with the proposed mitigations measures are as
follows:
·
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Inadequate
buffers/setbacks
to
wetlands/EEC
Communities/Threatened Species habitat. Minimum 50 metre buffers
significantly encroached by way filling, stormwater infrastructure, and
asset protection zones.
·
No EEC offset area has been identified (outside of proposed buffer
zones).
·
Ecological restoration plans provide minimal detail with no commitment
to performance criteria or duration of ongoing maintenance.
·
Dog containment areas likely to be ineffective.
·
Indirect impacts such as noise, lighting, altered hydraulic regimes have
not been comprehensively evaluated or considered in determining final
development footprint and constructional operational management
measures.
·
Long-term management of the buffer zones to be retained in private
ownership would compromise coordinated management of sensitive
habitats and likely result in degradation of buffers over a period of time.
The applicants' survey effort is considered outdated providing an inaccurate
representation of current site values (i.e. extent of vegetation, recording of
seasonal species). As such impacts have been insufficiently considered to be
confident that a significant impact can be avoided.
Vegetation Mapping and currency of Terrestrial Flora & Fauna Assessment
The applicants Terrestrial Flora and Fauna Assessment (TFFA) is considered to
be inaccurate and outdated. It is not reflective of the current site values and does
not show the true extent of vegetation. More current 2009 James mapping
verified during field investigation shows broader coverage of woody and
saltmarsh vegetation across the site. The additional mapped units represent a
number of EEC's listed under the Threatened Species Conservation Act 1995 not
previously recognised in the applicants TFFA. Due to the currency of the 2009
James mapping it is considered that this mapping should be relied upon to apply
buffers and consider impacts that may be associated with the development.
When comparison is made to the Constraints Overlay Proposed Development
Layout 2013 Sheet 5 dated January 2013 prepared by Planit Consulting that
relies on the 2008 vegetation mapping line-work (ATT 2-2:Endangered Ecological
Community Mapping) there are obvious differences. This is particularly evident
(but not limited to) to the south-east of the footprint where using the 2009 James
mapping negligible buffers are provided to terrestrial EEC. Of particular concern
is that by adopting the applicants mapping the seven part test of significance for
all EEC’s obviously contains incorrect information. An example is the reference
to Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast,
Sydney Basin and South East Corner bioregions and Subtropical Coastal
Floodplain Forest of the NSW North Coast bioregion where claims of respective
200metre and 180metre setbacks are made in concluding statements that the
communities would not be negatively impacted.
Similarly, the applicant relies on outdated information in assessing the impacts on
threatened fauna species. Bionet Atlas of NSW Wildlife search results appear to
have been obtained during 2006-2008, whilst it is understood that the majority of
fauna survey effort was also completed during this time. Using both inaccurate
vegetation mapping and outdated fauna survey results particularly to evaluate
impacts on a site with recognised high ecological value is clearly unacceptable.
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Where the application were to be progressed Council would expect contemporary
survey effort to be undertaken (flora and fauna) with the results used to influence
the design of the development and to consider appropriate management
measures in accordance with relevant planning instruments, policy and
guidelines.
Buffers
The 50metre buffer widths have not been met particularly as the layout and
buffers shown on the proposed plans rely on outdated and incorrect vegetation
mapping. In the absence of comprehensive up to date survey effort (threatened
species movement/refuge/food resource/roosting, nesting of fauna (under the
Threatened Species Conservation Act 1995 or the Environment Protection
Biodiversity Conservation Act 1999), vegetation mapping and baseline
information (hydrologic conditions) there is no evidence/justification to warrant
consideration of a reduction in buffer width that is inconsistent with a suite of
environmental and urban planning policy and best practice guidelines.
In order to successfully mitigate direct and indirect impacts associated with the
development in the long-term the lot layout should be re-designed to meet
setbacks and management arrangements to meet the following minimum design
specifications:
·
Be maximised to a minimum width of 50 metres (except where indicated on
the Council marked up plan as shown in this report).
·
Ensure all permanent and temporary stormwater infrastructure including
outlets flow dissipaters, scour protection and any necessary earthworks
required to facilitate construction are situated outside the ecological buffer
zone.
·
Ensure all filling to construct the development platform, necessary services
and other infrastructure remain clear of the ecological buffer zone.
·
Achieve ecological site capture reflective of the pre-clear vegetation
communities within a determined period (5 years) across all buffer zones
and core habitat areas (i.e. wetlands and EEC communities adjacent to
buffers zones across the entire site using an integrated and systematic
approach to ecological restoration. The approach to restoration shall
carefully consider natural processes of regeneration, dynamics of the
estuarine system and potential long-term changes such as sea level rise
and altered site hydrology.
·
Verification should be provided in respect to bushfire management to
ensure all Asset Protection Zones remain outside buffer zones, as future
modification to vegetation within buffers will not be supported.
·
Provide a clear statement and depict on an appropriate subdivision plan that
all buffers and core habitat are to be dedicated and managed by Council to
be transferred following a successful 5-year establishment/maintenance
period. Alternatively, this land could be dedicated to National Parks.
Groundwater Management
With reference to the NSW Groundwater Quality Protection Policy 1998 prepared
by DL&WC (pp.20) groundwater assessment should be based on and consider
(but not limited to) the vulnerability of the groundwater system and the beneficial
Page 166
use or environmental values of the groundwater system (e.g. groundwater
dependent ecosystems).
The applicants' report fails to adequately address the risks associated with
altering the local hydrology and likely effects on significant conservation attributes
of the Cudgen Nature Reserve and adjoining habitats sensitive to (i.e. saltmarsh)
or reliant on groundwater flows. Similar to considering modified overland flow
effects on the local ecology the SEE acknowledges potential impacts however
relies on the submitted Amended Groundwater Investigation Lot 156 DP 628026
Creek Street Hastings Point dated 15 April 2013 prepared by HMC Environmental
Consulting P/L to detail, evaluate and develop an appropriate management
approach to minimising disturbance. It is acknowledged that the Groundwater
Investigation considers loss of recharge area and indicates that changed
groundwater elevation may have a negative influence on saltmarsh colonisation
(previously proposed saltmarsh offset) yet neglects to consider the effects of
filling on groundwater (barrier effect) and/or altered groundwater conditions on
existing vegetation such as Swamp Oak EEC that is likely to rely on groundwater
flows.
It would be considered that with limited excavation (i.e. for services only), a
restricted fill platform, relative to the area of recharge locally and type of
underlying soil (sand) it would not be considered that changes to groundwater
conditions would be significant and unlikely to have a noticeable effect on
vegetation that may be reliant on groundwater flows mentioned above. However
this should be demonstrated by the applicant.
A precautionary approach should be taken with adequate buffers being provided
(i.e. minimum 50metres) to allow an area for the succession of more suitably
adapted vegetation should changes result in decline of existing terrestrial
vegetation and to filter groundwater in the case of pollutants prior to interception
with the aquatic environment. Monitoring bores are expected to be installed and
monitored generally in accordance with the program detailed in the Groundwater
Investigation report.
Listed Threatened Fauna Species and Other Significant Species
Two commonwealth listed Vulnerable fauna species have been recorded on site
being Grey headed Flying Fox and Koala. Whilst One Critically Endangered
fauna species, Beach Stone Curlew and Three Endangered species, Blacknecked Stork, Bush Stone Curlew and Pied Oystercatcher are known to occur on
site. A further 19 Vulnerable species are either known or have been determined
to have a moderate to high likelihood occurring/utilising habitats on site based on
review of updated mapping, recent Bionet Atlas of NSW Wildlife search, known
reliable records, species profiles and ecological knowledge and expertise.
The applicant conducted a suite of seven part tests of significance required under
Part 5a of the EP&A Act on 10 listed species and four Endangered Ecological
Communities however concern over the currency of fauna survey information,
database searches (2006-2008) has been raised considering that the most
comprehensive fauna survey appears to have occurred in April-June 2006.
Habitat on site between 2006 and 2013 has undergone a significant degree of
regeneration particularly since regular mowing/slashing of the 7(a) Environmental
Protection zone has ceased or at least reduced in frequency. This is clearly
evident from interpretation of aerial imagery particularly within saltmarsh areas
and the area to the north-west that would now be considered to provide
Page 167
opportunity for browsing and refuge for species such as the Koala (extensive
areas of Swamp Mahogany regrowth). It is considered unacceptable to rely on
outdated search results and survey effort completed 5-7 years ago particularly
given the sensitivities of the site and previous high number of threatened species
(known or likely to occur onsite).
Based on desktop and brief site assessment 13 additional species should have
been considered as part of any current 7 part test informed by contemporary
survey effort to locate fauna species and evaluate current habitat values.
Removal of EEC Vegetation within Creek Street Road Reserve
The remaining tract of vegetation (approximately 0.478ha) along the Creek Street
road reserve is considered to be representative of an EEC community. This is
substantiated in the applicants SEE, however difficulties are presented in
determining the type of EEC due to overlap in representative species. As such
the SEE has made an assessment based on the two like communities being
Swamp sclerophyll forest on coastal floodplains of the NSW North Coast, Sydney
Basin and South East Corner Bioregions and Subtropical Coastal Floodplain
Forest of the NSW North Coast Bioregion.
To construct the proposed fill platform vegetation occurring along the northern
boundary to Lots 1-4 and 22 and within the Creek Street road reserve
immediately adjacent to the site would be expected to be negatively impacted
both during the construction and longer term operational phase of the proposed
development.
As a default, in the absence of tree survey information a 10 metre setback from
the common boundary with Creek Street (as shown on Attachment 1) is to be
provided internal to the site to avoid root/canopy disturbance. However, in order
to accurately and comprehensively assess the extent of vegetation
removal/disturbance and to allow for consideration of management actions that
may be necessary to protect EEC vegetation during construction, an
appropriately scaled plan overlaid with the bulk earthworks plan showing all
services and access points should be provided indicating structural root zones
and tree protection zones calculated in accordance with Australian Standard
AS4970 Protection of trees on development sites. Characteristics (fauna value)
and particulars (Species, height, dbh, spread of individual trees should be clearly
detailed.
It is acknowledged that the applicant proposed to offset the removal of any EEC
community at a ratio of 10:1 (replace: remove), however calculations of 11 trees
expected to be removed are considered inaccurate.
As such with the
abovementioned additional survey effort and assessment is required. Whilst an
offset has been proposed the applicant has neglected to offer a receiving site.
This offset area would be required to be provided on site in an area where
suitable conditions exist to support equivalent EEC elements and that is outside
the required buffer zones.
Habitat Restoration
The applicant has submitted a Statement of Landscape Intent Creek Street
Hastings Point dated 2013 prepared by Planit Consulting. Whilst conceptual the
plan does not provide enough detail to confidently determine whether proposed
rehabilitation of ecologically sensitive areas would likely to be successful as,
there are many anomalies/deficiencies in the plan.
Page 168
In order to address concerns relating to appropriate restoration the applicant
would be required to submit prior to determination of any application a detailed
habitat restoration plan prepared in accordance with the TSC Draft Habitat
Restoration Plan Preparation Guideline 2012 for the area shown as 'Public Open
Space - Conservation Purposes' shown on Attachment 1 capturing all ecological
buffers and core habitat areas.
Long-term management and access
The applicant proposes to retain buffer areas and core habitat (terrestrial and
marine) within Lot 7. This is in conflict with a suite of policy and management
guidelines that promote the long-term protection of environmentally sensitive
areas and associated buffers under a secure management arrangement such as
transfer of land to Council or to the state to be managed for conservation
purposes. This is considered to be warranted in this case given the type and
value of habitat (i.e. SEPP 14, EEC’s threatened species habitat) to be protected,
proximity to an existing reserve network (Cudgen Nature Reserve) and Cudgera
Estuary.
Relevant policy guidelines and management plans advocating for dedication of
land are as follows:
·
Tweed Coast Estuaries Management Plan 2004-2008 under Table 2
Cudgera Creek Catchment Actions 4, 6, 3, 2 dedication of buffer and
biodiversity planting/weed control.
·
DCP Subdivision Manual Section A5-4-5 Environmental ConstraintsCoastal Wetlands stipulates 'A 50m buffer is to be provided between urban
development and areas containing littoral rainforest. This buffer is to be
managed in accordance with a management plan submitted by the applicant
and approved by Council. Such areas should be dedicated to Council if
public ownership is necessary to achieve the objectives of the management
plan’.
·
DCP Subdivision Manual Section A5.4.11 Open Space Network - indicates
that
'Environmentally sensitive
areas
and
visually
significant
topographical/landform features within the development site should be
dedicated to the public unless their environmental/scenic/visual values and
appropriate management can be guaranteed in perpetuity in private
ownership' whilst 'Aquatic environments, natural watercourses, riparian
buffers and foreshores within the development site must be dedicated to the
public. Similarly, this is reiterated in Table A5-8 for aquatic environments
(waterbodies, waterways), natural watercourses and riparian buffers and
foreshores, areas impacted by threatened species/habitat issues and
ecologically significant vegetation.
·
The NSW Coastal Design Guidelines specify that setbacks should be
retained in public ownership as private ownership reduces the level of
environmental protection.
·
Action 3.11. The DEC Bush stone Curlew Management Plan indicates at
Action 3.11 that DEC are to acquire Bush Stone-curlew habitat when land
acquisition opportunities arise. Land acquisition in these circumstances will
assist in securing the long-term viability of a local population of Bush Stonecurlews in addition to benefiting a range of other threatened species or
vegetation communities.
Page 169
·
The NSW Wetlands Policy 2010 (pp.24) indicates that 'for coastal wetlands
threatened by sea-level rise, migration of coastal wetlands should be
allowed to occur. This can be achieved by making provisions for landward
expansion of coastal wetlands, which are often restricted by urban
development. Areas identified for migration or expansion of wetlands will
need to be integrated into local planning instrument or incorporated into the
protected area network'.
The following State Agencies have provided the following comments in respect to
long term management arrangement for buffers and core habitat on site:
NSW Trade and Investment Crown Lands (Ref. DOC 13/062804) dated 31
May 2013
·
Encourages TSC to reconsider management of the environmental
protection zone within the proposed Lots.
·
To facilitate local community access to the foreshore.
·
Ensure the development does not impact on Crown waterway of
Christies Creek or compromise its recreation and aesthetic values.
NSW DPI - Fisheries NSW (Ref. DOC13/062804) dated 31 May 2013
·
Recommend incorporating all land below highest astronomical tide to
be dedicated to Council to avoid ongoing land management issues.
NSW OE&H (ref. DOC13/21493) dated 30 May 2013
·
Uncertainty in long term management at a minimum environmental
open space and associated regeneration area be dedicated to
'Community Land' classified and managed in perpetuity as a Natural
Area under the LG Act.
By retaining buffers and core habitat in private ownership the prevention of the
dumping of garden waste and refuse, general degradation of buffer areas and
core habitat would be difficult to regulate under a common property scheme or
freehold arrangement. This practice may still occur where Lots bound public
open space yet the impact will be restricted to the periphery of the buffer area.
Under a future public open space arrangement mitigation measures to prevent
uncontrolled access to the creek and damage to riparian vegetation could
include; erection of fauna friendly fencing on the interface between the
rehabilitation area and development; signage denoting the extent of the
rehabilitation area and stating that all riparian vegetation is protected; periodic
inspections of the rehabilitation area during the applicants five year maintenance
period.
Future Open Space embellishment to be established in consultation with Council
may include provision for:
Page 170
·
Access pathways and seating, enabling future residents and visitors
opportunities to access the Public Open Space reserves in a manner
that does not compromise their ecological values and functions;
·
Fencing, to physically restrict public access into areas of particular
environmentally sensitivity or where a public hazard may exist (e.g.
water filed drainage channels); and
·
Signage, to provide residents and visitors with information concerning
the environmental values and functions of the SEPP 14 Wetland and
EEC areas and the measures that are required to protect these areas.
The area shown as 'Public Open Space - Conservation Purposes' as shown on
Council’s Plan capturing all ecological buffers and core habitat areas shall be
dedicated to Council following a successful 5 year establishment/maintenance
period. If the applicant were to amend their application this would need to be
reflected in the proposal.
Ecology Input Regarding Road layout
To avoid impact on buffer areas and core habitat the proposal should incorporate
a section of road frontage to these sensitive areas limiting the number of
properties adjoining any future public open space. The reasons for restricting
interface with significant ecological areas has been detailed above however other
aspects such as the discharge of common stormwater pollutants such as
fertilisers and chlorinated water from swimming pools can also have an effect on
areas such as sensitive saltmarsh as indicated Best Practice Guidelines for
Coastal Saltmarsh DECC 2008. Other benefits include improved surveillance and
visual amenity.
(c)
As evidenced in this report the site is heavily constrained and requires a sensitive
design approach to ensure any new development is sympathetic to the
environmental attributes of the site while maintaining the existing character of the
area. The proposed development has failed to achieve this and is recommended
for refusal.
(d)
Summary of State Agency Referral Comments
·
Office of Water - Prepare Vegetation Management Plan, works schedule,
Erosion and Sediment Control Plan, Soil and Water Management Plan.
Maintenance period of 2 years after practical completion of controlled
activities.
·
NSW Trade and Investment Crown Lands - Encourages TSC to reconsider
management of the environmental protection zone within the proposed Lots.
Facilitate local community access to the foreshore.
Ensure the
development does not impact on Crown waterway of Christies Creek or
compromise its recreation and aesthetic values. The proponent may not:
remove any riparian vegetation on Crown waterway or allow any materials
or soils from the site to enter Crown waterway or direct stormwater
discharges into the Crown waterway.
·
NSW DPI - Fisheries NSW - No role in issuing GTA's as not triggered under
Integrated Development approval provisions of EP&A Regulation, however
have elected to provide comment. Site located close proximity to large
areas of Type 1 Class 1 Key Fish habitat. Buffer distances and future
management of intertidal areas affecting Lots 1-7.
Mapped marine
vegetation (saltmarsh) Type 1 Class 1 Key Fish Habitats and EEC requires
appropriate buffering and recommend incorporating some land dedication to
Council to avoid ongoing land management issues.
Page 171
·
NSW OE&H - Compared to previous proposal refused by the DPI under
Part 3A the following has been acknowledged: Increased buffering to EEC
and revegetation/regeneration of buffer areas, reduced number of native
trees to be removed from the Creek Street area, keeping domestic cats is
prohibited, no formal open space or access to sensitive vegetation
communities and estuarine areas has been proposed achieved by a
perimeter fence.
Outstanding issues include:
o
Issues associated with alteration of groundwater flow regimes and altered
stormwater flows have been identified as an issue in the Flora and Fauna
Assessment yet not directly addressed. Review the direct/indirect and
cumulative negative impacts upon vegetation communities and habitats as a
result of modified groundwater and surface runoff. Such as pollutant
tolerance limits, and sediment limits, acid sulfate soil disturbance, potential
lowering of groundwater recharge due to increased impermeability (hard
stand).
o
Lack of clear definition of Environmental Open Space, management
objectives and arrangements and type/location of proposed fencing.
o
Uncertainty into treatment/extent/performance requirements of EEC
restoration works. Recommend that habitat management plan be prepared
prior to DA approval detailing contingency planning and long-term
management arrangements.
o
Uncertainty in long term management at a minimum environmental open
space and associated regeneration area be dedicated to 'Community Land'
classified and managed in perpetuity as a Natural Area under the LG Act.
o
Additional pressure on Cudgen Nature Reserve. Need to demonstrate the
development would assist in limiting visitation to sensitive areas i.e. bollards
and interpretive signage.
o
No responsibility of NPWS to manage biting midge/insects.
o
Recommend the prohibition of both dogs and cats (with the exception of
assistance animals defined under the Commonwealth Disability
Discrimination Act 1992) within the site and encumbrance to Lots with this
effect under Section 88B instrument under the Conveyancing Act 1919.
In addition to the above government agency responses the application was
publically exhibited between 15 May 2013 and 14 June 2013. Council received
131 objections to the proposed development all of which raise the following
concerns with the application:
Page 172
·
To the level of compliance with the Tweed DCP Section B23 Hastings
Point;
·
The uncharacteristic nature of the filled subdivision in comparison to
the existing low set Creek Street;
·
The impact on ecology and the environment holistically;
·
The impact of flooding on the existing drainage network;
·
General amenity and safety issues; and
·
The failure of the application to comply with the legislative framework.
These issues have been thoroughly addressed in this report and form part of the
reasons for refusal of the application.
An extensive public submission prepared by O'Reilly Sever & Co. on behalf of
various members of the Hastings Point Community includes a technical
ecological report from Australian Wetlands (Attachment 3) and a technical
flooding report by MWA Environmental.
The above report has considered the Australian Wetlands report and generally
concurs with much of the technical aspects of the submission.
In regards to the flooding report Council responses are as follows:
Issues
TSC Response
O'Reilly Sever & Co.
a)
b)
Lot 156 was illegally filled which reduced
the capacity of water to drain through and
past the Creek Street precinct making
flooding and drainage in the area worse.
TSC had an opportunity to seek a Court
order to have the owner remediate the site
and did nothing. It has an obligation
through these failures to improve the
flooding/drainage conditions in the area and
protect the community.
Activities that occurred prior to the subject
application are outside the scope of this
assessment. Council has limited grounds to
request additional offset works unless
adverse impacts are demonstrated.
TSC should not encourage extensive fill.
As detailed above, DCP-A3 mandates filling
for
development
subject
to
impact
assessment, while DCP-B23 requires further
consideration of impacts on the locality.
Reduction of fill levels may not solve local
flood/drainage impacts given the flat nature
of the site and relatively low-set design of
existing dwellings in parts of Creek Street.
Should a revised proposal be lodged it would
be subject to further assessment of local
flooding impacts.
Council's
subdivision
filling
policies,
however, as discussed in this report, a
compromise in regard to the extent of fill to
better comply with Tweed DCP - B23 should
be considered by the applicant.
MWA Environmental
c)
3
36,000m of filling will have probable
impacts by impeding flood and stormwater
flows which would otherwise have flowed
across the land proposed to be filled and
increasing flood and stormwater flows down
Creek Street to the detriment of existing
development.
The applicant is required to demonstrate that
the fill development will not adversely impact
on the locality. It is considered on
assessment that the regional flood impacts
have generally been satisfied, however local
catchment flooding and impacts on Creek
Street properties have not been adequately
investigated.
Council has requested additional modelling
of local catchment flooding and the potential
impacts of the filling of the development area
on adjacent development.
d)
Proposed filling in what is considered by
residents to be an obvious overland
flooding and overland flow path.
Site inspection and survey do not clearly
depict a flow path in this area. However it is
accepted that the area is flood prone and
Page 173
Issues
TSC Response
has been inundated in recent events.
Any amended application will need to
address further local catchment flood
impacts.
e)
Impacts of 0.2m in the 2005 modelled event
at the western end of Creek Street are
downplayed
and
attributed
to
the
inadequacy of the 15m flood model grid.
It is agreed that the regional flood model is
too coarse to properly represent local
drainage features such as perimeter drains
and road drainage.
Local impacts must be properly addressed in
the
local
catchment
flood
impact
assessment.
f)
Local drainage provisions to overcome the
above impacts are not detailed in the
engineering assessment.
Local impacts must be properly addressed in
the
local
catchment
flood
impact
assessment, with mitigation measures to be
included in the Engineering Assessment
Report.
g)
The Director General's Environmental
Assessment Report raised concerns about
the site's flash flood risk and potential for
isolation in major flood events, as reliance
on sheltering in buildings surrounded by
water is not equivalent in risk management
terms to evacuation, resulting in the NSW
SES and Department of Planning
considering the previous development
proposal to be unacceptable.
There are a number of inaccurate statements
in the EAR with regard to Council's existing
policies. It is considered that there are
options available for adequately addressing
risk to life and property for this site, including
refuge in place provisions, given the short
duration and low velocity flood behaviour in
the locality. While the SES is quoted as
opposing isolation, they have shown
conditional support in the past for refuge in
place
arrangements
in
flash
flood
environments with no existing warning
systems. The submission states that both
constraints apply to the subject development.
Council's
flood
risk
management
requirements. As discussed in this report, a
compromise in regard to the extent of fill to
better comply with Tweed DCP - B23 should
be considered by the applicant.
h)
Hydraulic modelling is flawed in a number
of respects including:
(i)
Page 174
Modelling results for 100 year ARI
design flood are significantly lower
than Council's adopted design flood
level and lower than the levels
experienced in the locality during the
2005 event.
The submission refers to results of an
additional model run requested by Council
for Q100 catchment flows with a mean tide
level as the tailwater assumption. The design
flood level is calculated as an envelope of
two events, a Q100 catchment flood with
Q20 tide assumption, and a Q10 catchment
flood with a Q100 tide assumption. Given the
site's proximity to the creek mouth, storm
surge/tides
are
the
dominant
flood
mechanism for the site and provide the
maximum design flood level. Hence the
reduced levels predicted when a mean tide
level is assumed. This model run was
requested to try and identify the maximum
impacts of filling on water coming down the
creek, as opposed to storm surge which
Issues
TSC Response
could have "drowned out" these impacts.
(ii)
The interaction of the upper Cudgera
Creek
and
Christies
Creek
catchments is not adequately
represented in the BMT WBM model.
Comments in Attachment 1 of the
submission relate to previous hydraulic work
undertaken by Opus for an earlier
development proposal. This modelling has
now been superseded by the BMT WBM
model which accurately accounts for the
majority of the Cudgera Creek catchment
and has been calibrated against known
events.
(iii)
Calibration against the 2005 flood
event, as evidenced by local
observations.
Rainfall and river level data is limited for
historic floods, due to lack of gauges in the
catchment. The Coastal Creeks Flood Study
provides good calibration against two
observation points in the immediate area for
the 2005 event, as noted in the submission.
Discrepancies with levels observed in the
caravan park and Creek Street are
acknowledged, however such variations may
have been attributed to local drainage
failures during this storm event, that cannot
be properly represented in the regional food
model due to its limited resolution.
Discrepancies are acknowledged, however
the regional flood model represents the best
available data to model potential impacts of a
regional flood event, and are fit for purpose,
so are acceptable to Council.
Issues of impact need to be addressed by
additional investigation of the local flood
event using a more detailed flood model.
The consultants have been requested to
provide clarification.
(iv)
Selection of the design storm when
representing the 2005 flood.
It is Council's understanding that the 2005
event was modelled with corresponding
rainfall data for the actual event.
(v)
Selection of the design duration
duration when representing the 2005
flood.
It is Council's understanding that the 2005
event was modelled with corresponding
rainfall duration for the actual event. The
event was around 13 hours duration, not 6
hours as requested in the MWA submission.
Page 175
Issues
i)
Consideration might be given to a flood
management option which provides for
resumption of the subject site to allow for fill
to be removed from the site and for a flood
channel/levee system to be constructed to
improve the flood immunity of the existing
Creek Street development and restore the
ecological values of the estuary.
TSC Response
The provision of additional drainage to
reduce flood impacts on Creek Street has
been foreshadowed in the application, and
requires further design detail. Provision of
levees in this area are not generally
supported due to the same potential for
obstruction of flows and local drainage
impacts cited in opposition to the subject
application.
Potential flood mitigation measures are
subject to determination of local flood
impacts by additional modelling and design.
The extensive public opposition to this project is one of the reasons for the
recommendation for refusal of the application in its current form.
(e)
Public interest
The proposed development is not considered to be in the general public interest
and is accordingly recommended for refusal.
OPTIONS:
1.
Refuse the application as recommended; or
2.
Allow the applicant time to amend their application to address the issues identified in
this report.
CONCLUSION:
The application as proposed significantly departs from Council’s policies and controls. Any
amendment to this application to address the concerns would result in an application that is
considered substantially different to that as lodged. Accordingly it is strongly recommended
that the subject application be refused and the applicant advised to re-lodge a new
application when they have adequately addressed all the issues raised.
a.
Policy:
Not Applicable.
c.
Legal:
Not Applicable.
Not Applicable.
Page 176
Attachment 1.
Director General’s Environmental Assessment Report MP06_0153
dated January 2012 (ECM 3201792)
Attachment 2
Director General’s Instrument of refusal MP06_0153 dated January
2012 (ECM 3201794)
Attachment 3
Planning Assessment Commission Determination Report MP06_0153
dated February 2012 (ECM 3201795)
Attachment 4
Applicant’s letter of 25 September 2013 seeking time to address issues
raised (ECM 3201815)
Attachment 5
Tweed Shire Council's letter to the applicant outlining the issues with
the development dated 13 September 2013 (ECM 3206474)
Page 177
THIS PAGE IS BLANK
Page 178
24
[PR-CM] Development Application DA13/0247 for a Dual Use of Existing
Dwelling (Tourist Accommodation) at Lot 21 DP 1030322 No. 39 Collins
Lane, Casuarina
SUBMITTED BY:
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
Updated Information
At its meeting of 17 October 2013, Council resolved the following in respect of this matter:
"RESOLVED that Development Application DA13/0247 for a dual use of existing
dwelling (tourist accommodation) at Lot 21 DP 1030322 No. 39 Collins Lane,
Casuarina be granted in-principle support and a report to be brought back to a further
Council meeting with recommended conditions of consent for Council to determine."
If Council wishes to approve the development the following conditions of consent are
recommended:
GENERAL
1.
Environmental Effects and modified dwelling plans as follows:
·
Sheet 1 of 5 (Ground Floor Plan) as amended in red, prepared by J J Dixon and
dated May 2013
·
Sheet 2 of 5 (Top Floor Plan) as amended in red, prepared by J J Dixon and
dated May 2013
·
Sheet 3 of 5 (Front & North Elevations/Sections B-B & C-C) as amended in red,
prepared by J J Dixon and dated May 2013
·
Sheet 4 of 5 (East & South Elevations) as amended in red, prepared by J J Dixon
and dated May 2013
·
Sheet 5 of 5 (Site Plan) as amended in red, prepared by J J Dixon and dated May
2013,
except where varied by the conditions of this consent.
[GEN0005]
Page 179
2.
Advertising structures/signs to be the subject of a separate development application
(where statutorily required).
[GEN0065]
3.
The issue of this Development Consent does not certify compliance with the relevant
provisions of the Building Code of Australia.
[GEN0115]
4.
Use of the existing dwelling for short term tourist accommodation purposes shall be
restricted to one single booking at any time which may consist of a maximum of four
adults and six children.
[GENNS01]
5.
The keeping of dogs, cats or other animals at the premises by tourist accommodation
groups is strictly prohibited.
[GENNS02]
6.
A visitor log book shall be maintained as a record of the tourist accommodation use
specifying names of visitors with dates and duration of stay. This log book is to be
presented to Council no later than 31 July of each year for inspection purposes.
[GENNS03]
7.
All carparking associated with the tourist accommodation use is to be located within
the property boundary of the subject site.
[GENNS04]
8.
A building certificate application is to be lodged within 30 days of the date of the
consent to cover alterations to the existing dwelling as highlighted in the approved
plans.
[GENNS05]
9.
A Plan of Management is to incorporate and convey a clear understanding of the terms
and conditions of short term tourist accommodation use consistent with the conditions
of this development consent and existing S88B restrictions on the use of the land. A
copy of the Plan of Management shall be submitted to Council for approval by the
General Manager or delegate prior to first use of the dwelling for the purposes of short
term tourist accommodation and subsequent to any future amendments being made to
the document.
[GENNS06]
10. This development consent authorises a change of use from 100% residential use to a
flexible use for either short term tourist accommodation or residential use.
[GENNS07]
11. The keeping of dogs, cats or other animals on the property for residential purposes is
to be in accordance with any relevant Section 88B Instrument requirements.
[GENNS08]
12. All landscaping is to comply with the S88B instrument pertaining to the site.
[GENNS09]
13. A 24 hour contact (name and contact details) shall be made available to Council and to
residences within a 100m radius of the subject site prior to the first use of the dwelling
for the purposes of short term tourist accommodation to address issues that may arise
as a result of tourist accommodation tenancies.
[GENNS10]
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USE
14. The use to be conducted so as not to cause disruption to the amenity of the locality,
particularly by way of the emission of noise, dust and odours or the like.
[USE0125]
15. Upon receipt of a noise complaint that Council deems to be reasonable, the
operator/owner is to submit to Council a Noise Impact Study (NIS) carried out by a
suitably qualified and practicing acoustic consultant. The NIS is to be submitted to the
satisfaction of the General Manager or his delegate. It is to include recommendations
for noise attenuation. The operator/owner is to implement the recommendations of the
NIS within a timeframe specified by Council's authorised officer.
[USE0245]
16. The premises shall be maintained in a clean and tidy manner.
[USE0965]
17. Four off street car parking spaces shall be provided to cater for the tourist
accommodation use, including parking for the disabled where applicable.
[USENS01]
18. A current hard copy of the Council approved Plan of Management (Tenancy
Agreement Management Policy) shall be kept at the premises at all times and be made
available to tourist accommodation groups at the time of booking or upon request.
[USENS02]
GENERAL TERMS OF APPROVAL UNDER SECTION 100B OF THE RURAL FIRES ACT
1997
1.
At the commencement of the development and in perpetuity the entire property shall
be managed as an inner protection area (IPA) as outlined within section 4.1.3 and
Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire
Service's document 'Standards for asset protection zones'.
2.
An emergency and evacuation plan addressing section 4.2.7 of 'Planning for Bush Fire
Protection 2006' shall be prepared for the subject site. A copy of the plan shall be
provided to the consent authority prior to the issue of an occupation certificate.
3.
The existing building is required to be upgraded to improve ember protection. This is
to be achieved by enclosing all openings (excluding roof tile spaces) or covering
openings with a non-corrosive metal screen mesh with a maximum aperture of 2mm.
Where applicable, this includes any sub floor areas, openable windows, vents,
weepholes and eaves. External doors are to be fitted with draft excluders.
4.
Landscaping to the site is to comply with the principles of Appendix 5 of 'Planning for
Bush Fire Protection 2006'.
Previous Report
The proposed development is for dual use of an existing dwelling for tourist accommodation
purposes. The dwelling would be leased to a maximum of 10 visitors at any one time as
holiday accommodation. Intended clientele are predominantly family groups.
The existing dwelling was approved on 23 May 2005 for single dwelling purposes only.
Since that time, the dwelling has been utilised for tourist accommodation on a commercial
basis. As a result, Conditions 44 and 45 of the development consent have been breached.
The site is currently zoned 2(e) Residential Tourist and 7(f) Environmental Protection and
the development is defined as ‘tourist accommodation’ under the current Tweed Local
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Environmental Plan 2000. Whilst the proposed tourist accommodation could be considered
as permissible under the 2(e) Residential Tourist zone, it is prohibited under the proposed
R2 Low Density Residential zone of the Draft Tweed Local Environmental Plan 2012. In
addition, the proposal is not considered to be consistent with the objectives of the R2 Low
Density Residential zone under the draft plan.
There are various legal precedents created under the NSW Land and Environment Court,
which require consent authorities to give greater weighting to their draft environmental
planning instruments which are ‘certain and imminent’. Previous case law suggests that this
weighting has greater relevance once a draft LEP has been publically exhibited, adopted by
Council, and forwarded to the Minister for final making and gazettal.
Following an earlier public exhibition, Council at its meeting of 31 May 2013 resolved to
adopt the exhibited Draft Tweed LEP 2012, subject to certain changes. The modified draft
LEP has been referred to the Department of Planning and Infrastructure, and gazettal of the
plan is expected within a number of months.
On that basis, it is the officer’s view that the Draft Tweed LEP 2012 should be given
increased weighting in the determination of the subject development application, and as a
prohibited use, should therefore be refused.
It is noted that lawful use of the dwelling for tourist accommodation purposes under the
current LEP does not afford the applicant greater privilege than other land owners within the
2(e) zone at this point in time. However, once the draft LEP is in force and such use
becomes prohibited within the R2 zone, other land owners will not have the same legal and
financial right to operate their dwellings for the purposes of tourist and visitor
accommodation, thus giving rise to equity issues. Although consistent with current
objectives of the 2(e) zone, tourist and visitor accommodation is not consistent with the
future desired character of the locality, reinforced by low density residential draft zoning and
prohibition.
The development application has been referred to Council to determine given the current
legal status which does not preclude Council from granting consent to the Development
Application.
It should be noted that approval of the application would result in Existing Use Rights being
relied upon once the Draft LEP 2012 is gazetted, which is not considered to be good
planning practice and results in inconsistent use within the residential zone.
RECOMMENDATION:
That Development Application DA13/0247 for a dual use of existing dwelling (tourist
accommodation) at Lot 21 DP 1030322 No. 39 Collins Lane, Casuarina be refused for
the following reasons:
1.
The development does not satisfy Section 79C of the Environmental Planning
and Assessment Act, particularly Section (a)(ii) – the provisions of any Draft
Environmental Planning Instruments in that the development is prohibited within
the R2 Low Density Residential zone.
2.
and Assessment Act, particularly Section (a)(ii) – the provisions of any Draft
Environmental Planning Instruments in that the development is inconsistent
with the objectives of the R2 Low Density Residential zone.
3.
The development is not considered to be in the public interest.
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Page 183
REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Mr JJ Dixon
Mr John J Dixon
Lot 21 DP 1030322 No. 39 Collins Lane, Casuarina
2(e) Residential Tourist and 7(f) Environmental Protection (Coastal
Lands)
Not Applicable
Background:
Council is in receipt of a development application that seeks consent for dual use of an
existing dwelling (tourist accommodation) on a parcel of land zoned 2(e) Residential Tourist
and 7(f) Environmental Protection (Coastal Lands).
History
The single dwelling was constructed in 2005 following development consent in association
with DA05/0311. Final occupation and compliance certificate was issued 24 February 2006 in
the name of the current applicant.
The existing dwelling has had little alteration externally or internally since its original
construction. The owners have used the dwelling for residential purposes and leased the
property for the purposes of tourist accommodation (without the benefit of development
consent). As such, Conditions 44 and 45 of the development consent for DA05/0311 have
been breached:
The Subject Site
The site is regular and rectangular shaped with a 12m frontage to Collins Lane and rear
access to community land at the rear that provides a buffer to the coastal reserve. The site
has a total land area of 746m2. The site is generally flat and landscaped to the rear of the
dwelling. On-site parking is located at the Collins Lane frontage by way of a double carport
and driveway space.
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Figure 1: Context of Site (No. 39)
The existing two-storey dwelling has four bedrooms with large living areas (internal and
external) on both levels that are oriented to the east. Dwellings on either side of the subject
site extend further to the east and exhaust the developable area available within the 2(e)
zone. Vegetated areas are located within the 7(f) zone.
The Proposed Development
The application proposes flexibility in maintaining long-term residential use and legalisation
of ongoing use of an existing four-bedroom single dwelling for the purposes of short-term
tourist accommodation. No physical works are required in order to facilitate the proposal.
On-site parking for up to four vehicles is proposed within the double carport and driveway
area.
The property is currently advertised as "White Haven Beach House" via an online
accommodation profile which currently states it can comfortably sleep up to eight persons.
However, it is intended that the dwelling be leased via single booking to one tourist group
comprising a maximum of 10 persons at any one time.
A typical group may be a small extended family consisting of parents, children, grandparents
or the like or two small families (eg. two adults plus three children x 2). Groups of that size
would only be approved upon application and a cap on the number of adults able to be
accommodated would be applied. The proposal does not include use of the dwelling for
events such as parties, weddings or end of school celebrations.
The owner has taken responsibility for bookings and management of the site for the last
three years and undertakes on-line research of prospective tenants. However, prior
management of the property did allow event bookings to occur which were not monitored.
Cleaning and maintenance contractors attend to the residence and grounds following
tenants vacating the premises.
The property has been advertised as 'dog-friendly' upon approval by the owner and a
restriction to one (<10kg) dog only. This is problematic as a restriction on the use of the
land pursuant to the Section 88B Conveyancing Act 1919 (registered 27 June 2001) applies
to the property (eleventhly referred to) restricting the keeping of dogs (below) and
specifically requires dog registration with Tweed Shire Council.
7.2
No person occupying a lot burdened shall have more than one dog upon any lot
burdened and shall not have any such dog unless the boundaries of the subject lot are
securely fenced.
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7.3
No person occupying any lot burdened may have a dog unless it is registered with the
Tweed Shire Council and the relevant fee paid by the applicant and a secure dog-proof
compound has been constructed upon the lot and such compound has been approved
by the Tweed Shire Council.
7.4
No person occupying any lot may retrieve a dog that has been impounded by the Tweed
Shire Council unless that person can satisfy Tweed Shire Council that a secure dogproof compound has been constructed on the subject lot.
The abovementioned restrictions have been put in place to enable careful management of
environmentally sensitive land (zoned 7(f) Environmental Protection) located on and to the
east of the Collins Lane properties and to mitigate the impacts of domestic animals such as
dogs and cats upon native wildlife/habitat. Tweed Shire Council is empowered to release,
vary or modify the restriction eleventhly referred to associated with Deposited Plan 1030322.
Several minor constructed changes to approved dwelling plans are also proposed that
rectify practical changes involve the following:
Ground level
·
Internal shutters on all north and south elevation windows (as opposed to
external timber screens); and
·
Patio screening to both sides.
Upper level
·
Deletion of two windows on north elevation of family room;
·
Internal shutters on all north and south elevation windows (as opposed to
external timber screens); and
·
Top deck privacy screening to both sides.
The applicant has proposed that a plan of management be submitted to Council for approval
(upon condition) which will regulate use of the property, consistent with development
consent conditions and existing S88B restrictions on the use of the land.
Additional wheelie bins are to be provided to ensure adequate waste management.
Summary
An assessment in accordance with current Tweed LEP 2000 controls indicates that the
proposal may have merit in planning terms.
However, the development is prohibited by and inconsistent with the Draft LEP 2012,
specifically the objectives of the R2 Low Density Residential zone. It is therefore
recommended that the development be refused.
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SITE DIAGRAM:
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Considerations Under Section 79c Of The Environmental Planning And Assessment
Act 1979:
(a)
(i)
The proposed change of use is considered consistent with the aims of the plan.
The development raises no specific concerns or implications in respect of
ecologically sustainable development.
11) only if:
(a)
(b)
(c)
In this instance, the subject site is zoned 2(e) Residential Tourist, the primary
objective of which is to:
encourage the provision of family-oriented tourist accommodation and
related facilities and services in association with residential development
including a variety of forms of low and medium density housing and
associated tourist facilities such as hotels, motels, refreshment rooms,
holiday cabins, camping grounds, caravan parks and compatible
commercial services which will provide short-term accommodation and day
tourist facilities.
The proposed dual use of the existing dwelling (tourist accommodation) is
considered consistent with the primary objective of the zone in that the proposal
provides a form of family-oriented short-term accommodation.
Other relevant clauses of the TLEP have been considered elsewhere in this
report and it is considered that the proposed dual use of the existing dwelling
(tourist accommodation) generally complies with the aims and objectives of each.
Subject to the imposition of development consent conditions to regulate activity at
the site and under current controls, the proposal is not considered to contribute to
an unacceptable cumulative impact in the community.
The subject site is located within the 2(e) Residential Tourist zone (pink) with the
rear of the site being zoned 7(f) Environmental Protection (orange). All structures
on site are located entirely within the 2(e) Residential Tourist zone.
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Figure 2: Split Zoning of the Site
The primary objective of that zone and consistency of the proposal with that
objective has been outlined above. The secondary objective permits other
development which has an association with a residential/tourist environment and
is unlikely to adversely affect the residential amenity or place demands on
services beyond the level reasonably required for residential use.
It is submitted that the proposal, being a form of residential/tourist development
within an established residential area is suitable in scale and form as the
appearance of a single dwelling is maintained. Although there are few such
developments that Council are aware of, it is not considered currently to have
significant effects on the character of the area. Impacts upon amenity have been
raised by objectors in submissions received during the exhibition period and are
discussed elsewhere in this report.
The subject site is located within an established residential area with all essential
services available.
The proposal does not contravene the imposed three storey height restriction on
the subject site as there is no change to the two storey height of the existing
dwelling.
The proposal does not require a social impact assessment.
Class 4 Acid Sulfate Soils are present on the site. There are no works proposed.
As such, no further consideration is required and this clause is satisfied.
Other Specific Clauses
Clause 39A – Bushfire Protection
The site is bushfire prone. The application was referred to the NSW Rural Fire
Service as integrated development for assessment as Tourist Accommodation is
a special fire protection purpose. A bush fire safety authority under section 100B
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of the Rural Fires Act 1997 was received from the service on 3 July 2013
inclusive of conditions regarding Asset Protection Zones, Evacuation and
Emergency Management, Design and Construction and Landscaping.
Clause 54 – Tree Preservation Order
The 1990 and 2011 TPO (Koala Habitat) apply to the site. The proposal does not
require any removal of vegetation. As such, this clause is satisfied.
The proposal is considered consistent with Clause 32B as it is deemed unlikely
that it will impede public foreshore access to the beach or result in significant
overshadowing of adjacent open space. The proposal does not contradict the
strategic aims of the NSW Coastal Policy, the Coastline Management Manual or
the North Coast: Design Guidelines.
Clause 33: Coastal hazard areas
The rear of the site is subject to the 2100 coastal hazard projection line. The site is
not impacted by either the immediate or the 2050 coastal hazard projection line.
The application does not contradict the objectives of Clause 43. On-site density
has been maximised without adversely affecting the environmental features of the
land.
Clause 75: Tourism development
The plan generally refers to the location of large scale resort developments within
prime tourism development area such as Kingscliff and Tweed Heads. The
proposal does not meet the definition for small scale or low key tourism
development as defined by the regional plan.
The subject land has frontage to community land that provides a buffer to the
coastal foreshore reserve. The proposal will therefore not restrict public access to
the foreshore. The development is generally consistent with the zone objectives of
TLEP 2000, the requirements of relevant Council DCPs and consistent with ESD
principles and objectives. It is therefore considered that the proposal satisfies the
matters for consideration under SEPP 71.
(a)
(ii)
The Draft Tweed Local Environmental Plan (LEP) (2012) was placed on
exhibition in late 2012/early 2013. The post exhibition version of the Draft Tweed
LEP 2012 with amendments as resolved by Council on 31 May 2013 has been
forwarded to Parliamentary Counsel via the Department of Planning and
Infrastructure.
As such, the Draft Tweed Local Environmental Plan is considered to be “certain
and imminent” in terms of previous legal precedent and as such has determining
weight.
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A recent article published in a Planning Institute of Australia (PIA) NSW
Newsletter (June 2013) from Gadens Lawyers noted the following with respect to
the determining weight of a draft LEP:
"Question: I would like to understand why a Draft LEP is highly
relevant to the assessment of a DA when the draft LEP is 'certain and
imminent', and what exactly that means?
The starting point is that s.79C of the Act expressly requires a consent
authority, when assessing any development application, to take into
consideration the provisions of any draft planning instrument (for example,
an LEP or SEPP) that "is or has been the subject of public consultation" and
that has been notified. However taking something into account is one thing
- the remaining question is how much weight or emphasis to place on that
EPI's provisions when it is only a draft document, and may well be quite
inconsistent with a current and in-force LEP.
In that regard, the Courts have developed a body of caselaw to the effect
that a Draft LEP will be given greater weight when it is "certain and
imminent". Funnily enough, this phrase does not appear anywhere in the
Act or Regulations, nor in any savings or transitional provisions that we are
aware of, and although it is bandied about by judges, commissioners,
lawyers, and government authorities, you'd have to search hard to find its
source of origin. It actually dates back to a 1980 Judgment (Balgownie Pty
Ltd v Shoalhaven City Council (1980), which well and truly predates s.79C
of the Act. In that matter, the Court had some limited regard to a draft
proposal to rezone the site, but only because it was said to be "the latest
and best informed expert opinion" relating to the site.
It is therefore surprising that this has morphed into a general principle that
any draft LEP that is 'certain or imminent' should be given considerable
weight in the s.79C balancing act (in fact, the courts have used confusing
terminology here too, referring variously to "significant weight", or "some
weight", or "considerable weight" or "due force" or "determining weight" see the discussion of this in Blackmore Design Group v North Sydney
(2000)).
Nevertheless, what is clear is that the weight to be attributed to a draft
environmental planning instrument will be greater if there is a greater
certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v
Sutherland Shire Council (2003)). Where the LEP has been exhibited and
sent by the council to the Minister for approval and gazettal, it will often be
given great weight, even more than the existing and in force LEP.
But is that approach fair and correct? The answer is probably not. It can be
very hard to predict when an LEP is 'certain' and 'imminent', because this
depends on the future decision of the Minister and his staff at the
Department. For example, our team at Gadens was involved in an appeal
in the Warringah local government area in 2011 where the Court ruled that a
change to the zoning of the site was certain and imminent and should be
given 'determinative weight', and refused the DA. About a month later, the
Minister made the LEP but carved out the site as a 'deferred' matter (its
zoning did not change). The Court and Council's assessment that the
proposed rezoning was 'certain' and 'imminent' had been dead wrong. But
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such a task is inherently uncertain because it relies on predictions as to a
decision of the Minister that has not yet been made.
Notwithstanding 'certainty and imminence', a consent authority may of
course grant consent to a development application which does not comply
with the draft instrument. As the Court said in the Blackmore Design Group
v North Sydney Council matter:
"In giving the 2001 LEP the weight of being imminent and certain, that
does not mean that there is no further inquiry. It is necessary to look
at the aims and objectives of the later instrument and then see whether
the proposed development is consistent therewith [or "antipathetic'
thereto].""
In light of the above advice, it is considered that refusal of the proposed
development is the appropriate course of action. The draft LEP has been
exhibited and sent by Council to the Minister for approval and gazettal. Approval
of the development would result in creating Existing Use Rights for the
development, which is not considered to be good planning practice.
The draft zone for the subject site is R2: Low Density Residential. The proposed
dual use of the existing dwelling (tourist accommodation) is defined as Tourist
and Visitor Accommodation:
tourist and visitor accommodation means a building or place that
provides temporary or short-term accommodation on a commercial basis,
and includes any of the following:
(a)
backpackers' accommodation,
(b)
bed and breakfast accommodation,
(c)
farm stay accommodation,
(d)
hotel or motel accommodation,
(e)
serviced apartments,
But does not include:
(f)
camping grounds, or
(g)
caravan parks, or
(h)
eco-tourist facilities.
which is a prohibited use in the draft zone by its inclusion in Item 4:
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Objectives of the R2 zone include the following:
·
To provide for the housing needs of the community within a low density
residential environment; and
·
To enable other land uses that provide facilities or services to meet the
day to day needs of residents.
The proposal to utilise the dwelling for the purposes of tourist and visitor
accommodation is not consistent with the objectives of the R2 Low Density
Residential zone. The proposed use does not satisfy housing needs of the
community, nor does it provide facilities or services to meet the day to day needs
of residents.
Draft zoning for the locality has been informed by the LEP Practice note PN 09006 Providing for tourism in Standard Instrument local environmental plans,
circulated by the Department of Planning on 2 December 2009. These practice
guidelines stipulate that tourist and visitor accommodation is not recommended in
the R2 Low Density Residential zone.
As such, the draft LEP has zoned the balance of the land (exclusive of
parks/reserves and medium density residue allotments) as low density residential
which is consistent with the as-built environment.
(a)
A1-Residential and Tourist Development Code
The dwelling was approved on 23 May 2005 by way of development application
DA05/0311 prior to DCP A1 coming into force in April 2008.
The current DCP A1 came into force on 21 May 2013. A minor variation to
Control C13 (Side Setbacks) of the current DCP A1 has been identified. The
1.2m side setback of the 2.67m long stair well wall is 300mm short of the required
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1.5m side setback for two storey dwellings. Otherwise, the dwelling generally
complies with current controls adequately.
A2-Site Access and Parking Code
The existing dwelling provides for a total of four on-site car parking spaces. A
variation has been requested to delete the requirement for staff and delivery
vehicle parking as the nature of the proposal does not require it. It is considered
that the existing on-site parking arrangements are sufficient for an extended
family group.
A11-Public Notification of Development Proposals
The development proposal was advertised in accordance with this section. The
proposal was notified to adjoining owners for 14 days from 19 June to 3 July
2013. Two submissions were received as a result of this process which are
discussed elsewhere in this report.
B5-Casuarina Beach
This policy relates to the subdivision and release of land within Casuarina, most
of which has already occurred. It does not offer guidance for change of use
applications such as is being assessed. Development of the single dwelling
accords with policy contained within DCP B5.
B9-Tweed Coast Strategy
The Plan sets objectives for future development concentrating on public services
and design principals. This application does not contradict the objectives of this
plan.
B25-Coastal Hazards
The rear of the site is subject to the 2100 coastal hazard projection line. The site is
not impacted by either the immediate or the 2050 coastal hazard projection line.
(a)
The proposed site is located within the area covered by the Government Coastal
Policy, and has been assessed with regard to the objectives of this policy. It is
not considered that the proposed dual use of the existing dwelling for tourist
accommodation contradicts the objectives of the Government Coastal Policy.
This proposal does not require demolition or a change of BCA classification and no
works are proposed. As such, Clause 92(b) (Applications for demolition), Clause
93 (Fire Safety Considerations) and Clause 94 (Buildings to be upgraded) of the
Regulations do not apply.
(a)
(v)
The proposal does not impact upon coastal zone management plans.
The proposal does not impact upon coastline management strategies.
The proposal does not impact upon estuaries management strategies.
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The proposal does not impact upon coastal zone management strategies for
Cobaki and Terranora Broadwater.
(b)
in the locality
Amenity
Adjacent properties may be impacted by the constant nature of short-term
visitors. The applicant has proposed the use of a plan of management to monitor
and regulate amenity impacts that may arise from the development inclusive of
those raised in submissions below.
Context and Setting
The proposed development is located within an area dominated by large
dwellings lawfully utilised for long-term residential purposes and large scale resort
developments within the prime tourism development area of Kingscliff. It is
intended that the large scale resorts provide tourist accommodation and flexible
use options into the future, not single dwellings.
(c)
The site is not considered to be suitable for the proposed development as the
future (imminent and certain) zoning under Draft LEP 2012 will prohibit the
proposed use.
(d)
The proposal was notified to adjoining properties in accordance with DCP A11 –
Public Notification of Development Proposals for a period of 14 days from
Wednesday 19 June to Wednesday 3 July 2013. During this time, two
submissions were received.
Issues raised include the following:
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·
Impact upon tranquil family residential lifestyle in quiet family cul-de-sac;
·
Tourist accommodation is provided elsewhere in Casuarina: Beach
Shacks, Pandanus Pocket etc;
·
Residents purchased here specifically for the quiet beachside family
lifestyle;
·
People come to party in large groups: excessive noise during day and
late at night;
·
Parking congestion (off site and on road reserve areas) and blocking of
driveways;
·
Barking dogs, especially when dogs are in a new house in unfamiliar
territory;
·
TSC unregistered dogs – more than one at a time;
·
Rubbish, littering and vandalism;
·
Trespassing / opening gates of neighbouring property;
·
Discharge of fireworks; and
·
Request for neighbours to approach tenants directly to remedy matters.
The applicant responded to the issues raised within the submissions as follows:
·
Capacity will be capped at 10 persons. No party groups or groups
exceeding this amount are permitted;
·
It is not envisaged that more than two cars will be on-site at any time;
·
Controls will apply to the inclusion of a family dog during tenancy
inclusive of a non-refundable immediate ejection from the premises
should the controls be breached;
·
Additional waste and recycling wheelie bins are part of the proposal;
·
Other issues to be addressed in the proposed plan of management;
·
Tenants do not abide by agreements even though they are made aware
of the policy;
·
The property has been rented for 50 nights over the last 12 months by 8
families with an average stay of 6 nights per family; and
·
Tenants have been harassed during their stay.
Assessment
It is clear that the way the tourist accommodation has been managed in the past
is not consistent with how the applicant intends to manage it in the future.
Many of the issues raised may be resolved by the implementation of a firm
management plan and an available 24 hour contact should issues arise as a
result of tenancy.
The ability for tenants to lease the premises inclusive of the family dog as part of
the tourist accommodation proposal is contrary to aforementioned restrictions on
use of the land. There is no secure dog-proof compound on the site and fencing
between properties is not intended to restrain dogs. Given the environmentally
sensitive nature of the site and immediate locality, it is important that restrictions
regarding keeping of domestic animals be retained.
It is noted that the external (upper and lower) living area of the southern adjoining
property extends further to the rear of the site, possibly for solar access
purposes. There is no privacy screening in place and minimal building
separation. There is an interface between the two dwellings (despite measures
taken to screen the sides of the upper verandah on the subject site) which may or
may not be able to be resolved.
It is Council's intention to maintain availability of flexible tourist and visitor
accommodation within larger scale developments at Casuarina. This is reflected
in the objectives of draft zoning and supported by State government policy.
Referral to NSW Rural Fire Service
The application was referred to the NSW Rural Fire Service as integrated
development for assessment as Tourist Accommodation is a special fire
protection purpose. A bush fire safety authority under section 100B of the Rural
Fires Act 1997 was received from the service on 3 July 2013 inclusive of
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conditions regarding Asset Protection Zones, Evacuation and Emergency
Management, Design and Construction and Landscaping.
(e)
Public interest
Whilst the proposed development at present complies with the zoning controls
under Tweed Local Environmental Plan 2000, it is certain and imminent that the
Draft LEP 2012 will prohibit the development. As such, the development is not
considered to be in the public interest.
OPTIONS:
1.
Refuse the application for the reasons supplied; or
2.
Approve subject to the recommended conditions.
CONCLUSION:
The development is prohibited by and inconsistent with the Draft LEP 2012, specifically the
objectives of the R2 Low Density Residential zone. It is therefore recommended that the
development be refused.
a.
Policy:
Not Applicable.
c.
Legal:
The applicant may seek to lodge an appeal against a Council determination in the NSW
Land and Environment Court.
Not Applicable.
Nil.
Page 202
25
[PR-CM] Development Application DA13/0221 for a Pontoon Boat and Water
Sports Boat Operation on the Tweed River from Fingal Boat Ramp with
Passenger Pick Up/Set Down from Beach at Old Barney's Point Bridge Jetty
at Lot 403 DP 755740 Main Road Fingal Head;
SUBMITTED BY:
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
Updated Information
Council at its meeting of 17 October 2013 resolved as follows:
"RESOLVED that Development Application DA13/0221 for a Pontoon Boat and Water
Sports Boat Operation on the Tweed River from Fingal Boat Ramp with Passenger
Pick Up/Set Down from Beach at Old Barney's Point Bridge Jetty at Lot 403 DP
755740 Main Road Fingal Head; Lots 9 and 10 DP 24164; Lots 9-12 DP 830655 Nos.
2-12 Chinderah Bay Drive, Chinderah and Tweed River, Tweed Heads be deferred for
a workshop with the applicant."
A workshop was held on 29 October 2013 to discuss the application with the applicant and
their town planning consultant and a representative from Destination Tweed.
The report is now submitted to Council for its further determination.
Previous Report to Council
The proposed development is for approval of a Water Sports Boat and a Barbeque Pontoon
Boat operation on the Tweed River between Tweed Heads and Murwillumbah. The boats
are to be launched from Fingal boat ramp with passenger pick up/set down from beach at
old Barney's Point Bridge. Passenger car-parking is to be provided at the BP Chinderah
nearby.
The water sports boat is to engage in tow water sport activities including skiing,
wakeboarding, wake skate, ski chair, tube and kneeboard in the Tweed River reach located
between the Cane Road Bridge and Stotts Island. Outside of these areas the boat is to be
operated without water ballast. This boat can seat up to 9 people. The Pontoon boat is to
be available for 12 people in a self-drive arrangement or 22 people if skippered.
Page 203
The proposed development is considered to be generally deficient in terms of information
submitted, however assessment of the proposal against the applicable planning policies has
demonstrated that the proposal is not considered to be able to comply with these and as
such refusal of the application is recommended.
Furthermore, the proposed development is considered to raise a number of environmental
and social issues which have not being adequately addressed. As sufficient information has
not been submitted to enable support of the application it is recommended that the proposal
be refused on these reasons also.
The application has been called up for determination through a full Council meeting by an
elected member.
Having regard to relevant statutory controls and an assessment against the relevant
legislative policies, the proposed development is not considered suitable for the location and
therefore the proposed development is recommended for refusal.
RECOMMENDATION:
That Development Application DA13/0221 for a Pontoon Boat and Water Sports Boat
Operation on the Tweed River from Fingal Boat Ramp with Passenger Pick Up/Set
Down from Beach at Old Barney's Point Bridge Jetty at Lot 403 DP 755740 Main Road
Fingal Head; Lots 9 and 10 DP 24164; Lots 9-12 DP 830655 Nos. 2-12 Chinderah Bay
Drive, Chinderah and Tweed River, Tweed Heads be refused for the following
reasons:
1.
Pursuant to Section 5 Objects of the Environmental Planning & Assessment Act
1979 (as amended), the proposed development cannot be determined to satisfy
sub section (a)(ii), the orderly and economic use and development of the land.
The proposal has the ability to impact negatively upon adjacent land;
accordingly the proposal is not identified as satisfying the Objects of the
Environmental Planning & Assessment Act 1979.
2.
Pursuant to Section 5 Objects of the Environmental Planning & Assessment Act
1979 (as amended), the proposed development cannot be determined to satisfy
sub section (a)(vi), the protection of the environment, including the protection
and conservation of native animals and plants, including threatened species,
populations and ecological communities, and their habitats.
The proposal has the ability to impact upon the protection and conservation of
native animals and plants; accordingly the proposal is not identified as
satisfying the Objects of the Environmental Planning & Assessment Act 1979.
3.
Pursuant to Section 79C(1)(a)(i) of the Environmental Planning & Assessment
Act 1979 (as amended) the proposed development is not considered to be
compliant with Environmental Planning Instruments.
The proposed development is inconsistent with the aims of:
State Environmental Planning Policies:
·
SEPP 14: Coastal Wetlands
·
SEPP 64: Advertising and Signage (Clauses 10 and 27)
·
SEPP 71: Coastal Protection (Clause 8(a), (d), (g), (h), (k), (l), (n) and (p)(i))
·
NCREP: Clauses 15, 32B, 75 and 76
Page 204
The proposed development does not satisfy the provisions contained within:
The Tweed LEP 2000:
·
Clause 4: Aims of this plan
·
Clause 5: Ecologically sustainable development
·
Clause 8(1): Consent Considerations
·
Clause 11: Zoning
·
Clause 13: Development of uncoloured land on the zone map
·
Clause 25: Development in Zone 7(a) Environmental Protection (Wetlands
and Littoral Rainforests) and on adjacent land
·
Clause 29: Development adjacent to Zone 8(a) National Parks and Nature
Reserves
·
Clause 31: Development adjoining waterbodies
4.
The proposal is inconsistent with the applicable management plans that
highlight the need to protect ecology and reduce erosion within the vicinity of
the Tweed River.
5.
Pursuant to Section 79C (1) (c) of the Environmental Planning & Assessment Act
1979 (as amended) the proposed site is not considered suitable for the proposed
development.
The use of unzoned land adjacent to environmental conservation areas of State
significance for the purposes of water sports boat operation is considered
unacceptable due to its possible impact on and loss of habitat, due to river
erosion.
6.
Pursuant to Section 79C (1) (b) of the Environmental Planning & Assessment Act
1979 (as amended) due to the likely impacts of the proposed development,
including environmental impacts on both the natural and built environments,
and social and economic impacts in the locality.
The proposed development would have an unacceptable impact with respect to
amenity and noise impacts on surrounding residents and other passive
recreational river users as well as having an unacceptable negative impact on
cumulative river erosion in the operational area.
7.
In accordance with Section 79C (1) (e) of the Environmental Planning &
Assessment Act 1979 (as amended) the proposed development is not
It is in the broader general public interest to enforce the standards contained
within the Tweed LEP 2000 specifically as it relates to the objectives of unzoned
land and the 1(b2) Agricultural Protection, 2(a) Low Density Residential, 3(d)
Waterfront Enterprise, 4(a) Industrial, 5(a) Special Uses, 6(a) Open Space, 6(b)
Recreation, 7(a) Environmental Protection (Wetlands and Littoral Rainforests),
7(d) Environmental Protection (Scenic/Escarpment) and 8(a) National Parks and
Nature Reserves zones.
8.
and Assessment Act, particularly Section (a)(ii) - the provisions of any Draft
Environmental Planning Instruments in that the development is prohibited within
the RE1 Public Recreation, W3 Working Waterways, W2 Recreational Waterways
Page 205
and SP2 Infrastructure zones.
9.
and Assessment Act, particularly Section (a)(ii) - the provisions of any Draft
Environmental Planning Instruments in that the development is inconsistent
with the objectives of the RE1 Public Recreation, W3 Working Waterways, W2
Recreational Waterways and SP2 Infrastructure zones.
Page 206
REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Tweed River Wake & Ski Pty Ltd
Tweed Shire Council
Lot 403 DP 755740 Main Road Fingal Head; Lots 9 and 10 DP 24164; Lots
9-12 DP 830655 Nos. 2-12 Chinderah Bay Drive, Chinderah and Tweed
River, Tweed Heads
6(a) Open Space, 7(a) Environmental Protection (Wetlands & Littoral
Rainforests), 3(d) Waterfront Enterprise
Nil
Background:
Subject Site
The proposed development is to be undertaken over a number of different land parcels,
summarised as follows:
Fingal Head Boat Ramp- Lot 403 DP 755740 Main Road, Fingal Head
It is proposed to launch the boats at the Fingal Heads Boat Ramp, which is situated in a
recreational reserve with an area of 4.123 hectares. The eastern portion of the land is heavily
vegetated and zoned 7(a) Environmental Protection. The remaining portion of the land (and
perimeter - eastern and southern boundaries) is zoned 6(a) open space. The boat ramp is
located in the north western section of the site.
Figure 1: Aerial view of Fingal Head Boat Ramp site
Lots 9 and 10 DP 24164 and Lots 9-12 DP 830655 Nos. 2-12 Chinderah Bay Drive,
Chinderah
Page 207
These allotments are currently developed with a BP Chinderah service station. It is
proposed to provide both customer and staff vehicles (and boat trailers) to a 300m2 area to
the north of this site.
Figure 2: Aerial view of BP Chinderah Car parking area
Pick up/set down point adjacent to Barneys Point Bridge, Chinderah
It is proposed to pick up and set down boat passengers at the sandy beach between Banora
Point Bridge and the old Barneys Point Bridge (jetty).
Figure 3: Aerial view of Barney Point Bridge Pick up and Set-down point
Tweed River
The pontoon and water sports boats are to operate on the Tweed River between
Murwillumbah and Tweed Heads. It is stated that the water sports boat is to engage in tow
water sport activities including skiing, wakeboarding, wake skate, ski chair, tube, kneeboard
Page 208
in the reach located between the Cane Road Bridge and Stotts Island only. The Tweed
River adjoins a multitude of various land zones, including environmentally sensitive land
which is detailed elsewhere in this report.
Proposed Development
Council is in receipt of an application for a commercial boating operation on the Tweed River
between Tweed Heads and Murwillumbah. The proposal comprises of a Water Sports Boat
and a Barbeque Pontoon Boat. The water sports boat is to engage in tow water sport
activities including skiing, wakeboarding, wake skate, ski chair, tube, kneeboard in the reach
located between the Cane Road Bridge and Stotts Island. Outside of these areas the boat
is to be operated without water ballast or wake enhancing devices. This boat can seat up to
9 persons. The Pontoon boat is to be available for 12 people in a self-drive arrangement or
22 people if skippered.
The boats are to be launched from Fingal Head Boat Ramp, with passenger pick up and set
down to be from the sandy beach between Banora Point Bridge and the old Barneys Point
Bridge Jetty which is opposite BP Chinderah. Car parking of customer vehicles and staff
vehicles (and boat trailers) is to be at the BP Chinderah site where an area of approximately
300m2 has been allocated for parking.
The proposal seeks consent to operate between 8.00am and 4.00pm seven days per week.
The proposal is defined as ‘tourist facilities’ under the Tweed Local Environmental Plan
2000 (LEP 2000). In order for this use to be permissible on unzoned land (the Tweed
River), it must be compatible with surrounding development and zones. Due to the length of
the Tweed River from Murwillumbah to Tweed Heads (a distance of approximately 30km)
there are multiple adjoining zones including 1(a) Rural, 1(b2) Agricultural Protection, 2(a)
Low Density Residential, 3(c) Commerce and Trade, 3(d) Waterfront Enterprise, 4(a)
Industrial, 5(a) Special uses, 6(a) Open Space, 6(b) Recreation, 7(a) Environmental
Protection (Wetlands and Littoral Rainforests), 7(d) Environmental Protection
(Scenic/Escarpment) and 8(a) National Parks and Nature Reserves. The proposal is
inconsistent with the provisions of many of these zones, and would be prohibited in the 7(a),
7(d), 8(a) and 2(a) zones.
The proposed development is also considered to raise a number of issues regarding river
erosion, local amenity, impact upon the ecosystem and critical habitats, conflict with existing
recreational river uses, proximity to residential development and suitability for the site given
the environmental sensitivity of the area which are detailed elsewhere in this report.
The applicant was advised that Council officers did not support the subject application and
was advised to withdraw the development application. The applicant’s planning consultant
has provided written advice stating that ‘our client will not be withdrawing the application’
and that a response was to be provided to the issues raised in Council’s correspondence. It
was further stated that ‘It is not possible to give you a time frame for the response but it will
be as soon as possible.’
Given that the applicant could not provide a timeframe for the submission of further
information, it was determined that the application should be determined. The applicant has
submitted a seven page submission in response to the issues raised in Council
correspondence. This submission includes a request that a separate consideration of the
low impact pontoon boat use be provided. It is considered that irrespective of how the
application is to be modified in this way, sufficient information has not been provided in order
for Council officers to determine that the proposal would result in an appropriate
development proposal and in this regard the development application is not supported.
Development History
Page 209
Council has received two applications in recent times which are of particular relevance with
respect to the development history of the subject site.
DA11/0356- Wakeboarding coaching clinic between Fingal and Chinderah along the Tweed
River (operating from Fingal boat ramp). Refused 21 February 2012.
The reasons for refusal included the following:
·
The proposed development cannot be determined to satisfy the orderly and
economic use and development of the land.
·
The proposed development cannot be determined to satisfy the protection of the
environment, including the protection and conservation of native animals and
plants, including threatened species, populations and ecological communities,
and their habitats.
·
The proposal has the ability to impact upon the protection and conservation of
native animals and plants.
·
The proposal is not considered to be compliant with relevant Environmental
Planning Instruments.
·
The proposal is inconsistent with management plans produced by Council and
the Maritime authority that highlight the need to protect ecology and reduce
erosion within the vicinity of the Tweed River.
·
The proposed site is not considered suitable for the proposed development.
·
The proposed development is not considered to be in the public interest.
DA11/0144- Commercial boat hire operations on the Tweed River from Fingal boat ramp.
Withdrawn 25 May 2011.
Public Submissions
The proposal was advertised in accordance with DCP A11 – Public Notification of
Development Proposals for a period of 14 days from Wednesday 29 May to Thursday 13
June 2013. During this time, 27 submissions were received, with a further three late
submissions received. A full assessment of the submissions is provided in the body of this
report.
Summary
Having regard to relevant statutory controls and an assessment against the relevant
legislative policies, the proposed development is not considered suitable for the location and
therefore the proposed development is recommended for refusal.
Page 210
SITE DIAGRAM
Page 211
Considerations under Section 79C of the Environmental Planning and Assessment
Act 1979:
(a)
(i)
Clause 4 illustrates that the aims of the Tweed Local Environmental Plan (TLEP
2000) are to give effect to the desired outcomes, strategic principles, policies and
actions of the Tweed Shire 2000+ Strategic Plan. The vision of the plan is “the
management of growth so that the unique natural and developed character of the
Tweed Shire is retained, and its economic vitality, ecological integrity and cultural
fabric is enhanced”. Clause 4 further aims to provide a legal basis for the making
of a DCP to provide guidance for future development and land management, to
give effect to the Tweed Heads 2000+ Strategy and Pottsville Village Strategy
and to encourage sustainable economic development of the area which is
compatible with the Shire’s environmental and residential amenity qualities.
The subject development application is not considered to be in accordance with
the above in that it is likely to compromise the unique natural character of the
Tweed River. The proposal has not demonstrated that it is compatible with the
Shire’s environmental and residential amenity qualities and as such is considered
to be in contravention of this Clause. Refusal of the application is recommended
in this regard.
The TLEP 2000 aims to promote development that is consistent with the four
principles of ecologically sustainable development, being the precautionary
principle, intergenerational equity, conservation of biological diversity and
ecological integrity and improved valuation, pricing and incentive mechanisms.
The subject proposal is not considered consistent with the above criteria in that
the proposed activities on the Tweed River threaten biological diversity and
ecological integrity. Approval of the proposal is considered likely to have
negative ramifications for ecologically sustainable development principles on the
Shire’s waterways and it is recommended that the application be refused in this
regard.
11) only if:
(a)
it is satisfied that the development is consistent with the primary objective of
the zone within which it is located, and
(b)
(c)
In this instance, the boats are to be launched on land zoned 6(a) Open Space at
Fingal Boat Ramp, passengers are to be picked up at Barneys Point Bridge which
Page 212
is unzoned Road Reserve and passenger cars are to be parked on land zoned
3(d) at BP Chinderah.
The boating operations are to be undertaken on unzoned waterway between
Tweed Heads and Murwillumbah. Development on unzoned land is detailed
further under Clause 13 below.
The proposed development would be defined as ‘Tourist Facilities’ under the
provisions of the TLEP 2000 which means:
‘An establishment principally used for the recreation or enjoyment of tourists
and may include an amusement park, boat shed, boating facility, cruise craft
dock, tavern, marina, playground, refreshment room, shop, theme park,
water sport facilities or the like or a club used in conjunction with any such
activities.’
Under the TLEP 2000, tourist facilities are permitted with consent in the 6(a)
Open Space and 3(d) Waterfront Enterprise zones.
The primary objectives of the abovementioned zones (and consistency of the
proposal with the objectives) are as follows:
6(a) Open Space
·
To identify existing public land and land that is proposed to be acquired for
public ownership to satisfy the open space and recreational needs of local
residents and visitors to the area of Tweed and to enable its development to
encourage or assist their recreational use and enjoyment of the land.
The purpose of 6(a) zoned land is to ‘satisfy the open space and recreational
needs of local residents and visitors to the area of Tweed’. Development should
only be encouraged to assist this recreational use and enjoyment.
The proposal represents a commercial use of the river which it is considered to
compete with many of the recreational uses and enjoyment of the land by local
residents and visitors to the area solely for recreational purposes. In this regard
the proposal is not considered to be in accordance with the primary objective of
the zone.
3(d) Waterfront Enterprise
·
To encourage development related to waterfront and marine activities,
recreation or tourism.
The purpose of 3(d) zoned land is to ‘encourage development related to
waterfront and marine activities, recreation or tourism. In this regard the proposal
is considered to encourage development for tourism purposes and therefore
complies with the primary objective of the zone.
Other aims and objectives of the TLEP 2000 that are relevant to the proposal
have been considered and are discussed in the body of this report.
The Tweed River is recognised as having a unique value within the Northern
Rivers Region. The proposal has the potential to impact negatively and
detrimentally upon the river system and existing recreational use of the river, as
outlined elsewhere in this report. The development is considered to have an
unacceptable cumulative impact on the community, the locality and on the area of
Tweed as a whole which is detailed further elsewhere in this report.
Page 213
Primary objectives of the relevant zones have been discussed under Clause 8
above in relation to the proposal.
Secondary objectives for the relevant zones include the following:
6(a) Open Space
·
To allow other development that is compatible with the recreational use of
the land.
The proposal is not considered to be compatible with the recreational use of the
land as it creates conflict with other passive river uses.
·
to allow for residential development in association with waterfront, tourist or
recreational uses.
·
to allow for other development that is compatible with the primary function of
the zone.
While subject application does not propose any residential development it has
been advised under Clause 8 that the proposal is considered to be compatible
with the primary objective of the 3(d) zone.
In any event, it is considered that the development application as a whole is not
compatible with the primary (as outlined above) or secondary objectives of the
6(a) Open Space zone and in this regard the proposal is therefore not in
accordance with Clause 11 of the TLEP 2000.
Clause 13 – Development of uncoloured land on the zone map
The submitted application states that the proposed development is to operate on
navigable parts of the Tweed River between Murwillumbah and Tweed Heads.
The Tweed River is unzoned under the provisions of this TLEP and as such this
clause applies to the development application. Furthermore, passenger pick-up
and set-down is to be undertaken on unzoned Road Reserve at Barneys Point
Bridge.
The objectives of Clause 13 are as follows:
·
To enable the control of development on unzoned land.
·
To ensure that development of unzoned land is compatible with
surrounding development and zones.
·
To ensure that development of certain waters takes account of
environmental impacts and other users of the waters.
In deciding whether to grant consent to development on unzoned land, the
consent authority must consider:
a)
whether the proposed development is compatible with development
permissible in the adjoining zone and the character and use of existing
development in the vicinity.
Due to the length of the Tweed River from Murwillumbah to Tweed Heads (a
distance of approximately 30km) there are multiple adjoining zones and
development characters in the vicinity of the development area as outlined below:
1(a) Rural
Page 214
Primary objectives
•
to enable the ecologically sustainable development of land that is suitable
primarily for agricultural or natural resource utilisation purposes and
associated development.
•
to protect rural character and amenity.
•
to enable other types of development that rely on the rural or natural values
of the land such as agri- and eco-tourism.
•
to provide for development that is not suitable in or near urban areas.
•
to prevent the unnecessary fragmentation or development of land which
may be needed for long-term urban expansion.
•
to provide non-urban breaks between settlements to give a physical and
community identity to each settlement.
Tweed River adjoins land zoned for 1(a) purposes, the objectives of which are
outlined above. A tourist facility development is permissible in this zone. The
1(a) land is located adjacent to areas of the river which are not to be utilised for
water sports activities which has been identified as contributing to river bank
erosion to an unacceptable level. Having regard to this, and the permissibility of
the tourist facility development in this zone, the proposal is considered to be
acceptable.
1(b2) Agricultural Protection
Primary objective
•
to protect identified prime agricultural land from fragmentation and the
economic pressure of competing land uses.
Secondary objective
•
to allow other development that is compatible with agricultural activities.
Tweed River adjoins vast tracts of land zoned 1(b2) between Chinderah and
Murwillumbah. A tourist facility development is prohibited in this zone in this
regard is considered to be incompatible with this land use. As outlined elsewhere
in this report, Councils Natural Resource Management Unit have advised that the
water sport activities component of the proposal ‘will add to the cumulative impact
of wake waves on river bank erosion in the subject reach.’ As such it is
considered that the proposed use would be in contravention of the objectives of
the zone as erosion of the river bank at these locations would not protect the
agricultural use of the land.
Primary objective
·
To provide for and maintain a low density residential environment with a
predominantly detached housing character and amenity.
Secondary objective
·
To allow some diversity of housing types provided it achieves good urban
design outcomes and the density, scale and height is compatible with the
primary objective.
Page 215
·
To allow for non-residential development that is domestically based, or
services, the local needs of the community, and does not detract from the
primary objective of the zone.
The Tweed River adjoins land zoned 2(a) under the TLEP 2000 to the southern
bank of the river between Murwillumbah and Condong.
Commercial use of the river of this nature and intensity adjacent to dwellings is
likely to impact negatively on low density residential amenity and is not consistent
with the primary objective for this zone within which tourist facilities are
prohibited.
With respect to the secondary objectives, the proposal is not domestically based
nor does is it considered to service the local needs of the community. In this
regard the proposal is not considered to be compatible with development
permissible in the adjoining zone or the character and use of existing
development in the vicinity of the river.
3(c) Commerce and Trade
Primary objective
•
to provide for commercial, bulky goods retailing, light industrial and trade
activities which do not jeopardise the viability or function of the sub-regional
or business centres.
•
to provide for those retailing activities which are not suited to, or desirable
in, the other business zones or which serve the needs of the other
businesses in the zone.
•
to allow for other development that is compatible with the primary function of
the zone.
Tweed River adjoins a section of land zoned 3(c) between 51 and 65 Tweed
Valley Way. A tourist facility is a permissible use in this zone and it is considered
that the proposal could be broadly identified as complying with the primary
objective of the zone. In this regard, the proposal is considered acceptable.
The unzoned road reserve site at Barneys Point Bridge allocated for passenger
pick-up and set-down adjoins land zoned 3(d).
3(d) Waterfront Enterprise objectives and development permissibility have been
discussed under Clause 8 and Clause 11 above with it being determined that in
this instance the tourist facilities development is considered to be compatible with
the primary objective of the 3(d) zone and represents an allowable use at this
location.
4(a) Industrial
Primary objectives
•
to provide land primarily for industrial development.
•
to facilitate economic activity and employment generation.
Secondary objective
Page 216
•
to allow non-industrial development which either provides a direct service to
industrial activities and their work force, or which, due to its type, nature or
scale, is inappropriate to be located in another zone.
The Tweed River adjoins land zoned for industrial purposes at Condong Sugar
Mill. Tourist facilities are prohibited in this zone. Whilst it could be argued that
the proposal would ‘facilitate economic activity and employment generation’ it is
considered that the proposal does not comply with the other objectives of the
zone.
5(a) Special Uses (Proposed Classified Road)
Primary objective
•
to identify land which is developed or is proposed to be developed,
generally by public bodies, for community facilities and services, roads,
railways, utilities and similar things.
Secondary objective
•
to provide flexibility in the development of the land, particularly if it is not yet
or is no longer required for the relevant special use.
The Tweed River adjoins land zoned 5(a) Special Uses (Proposed Classified
Road) at Barneys Point Bridge. The proposed tourist facilities are prohibited in
this zone and in this regard is not considered to be compatible with development
permissible in the adjoining zone.
6(a) Open Space
·
To identify existing public land and land that is proposed to be acquired for
public ownership to satisfy the open space and recreational needs of local
residents and visitors to the area of Tweed and to enable its development to
encourage or assist their recreational use and enjoyment of the land.
6(a) Open Space objectives and development permissibility have been discussed
under Clause 8 and Clause 11 above with it being determined that in this
instance the subject proposal would not be in accordance with the primary
objective of the zone.
Land zoned 6(a) is located on both sides of the Tweed River in close proximity to
Fingal Boat ramp.
6(b) Recreation
Primary Objective
·
To designate land, whether in public or private ownership, which is or may
be used primarily for recreational purposes.
Secondary objective
·
To allow for other development that is compatible with the primary function
of the zone.
Tourist facilities are permissible with consent (Item 2) in this zone which occurs
on the northern side of the Pacific Motorway bridge at Barney’s Point.
7(a) Environmental Protection (Wetlands and Littoral Rainforests)
The objectives of this zone are:
Primary
Page 217
·
To identify, protect and conserve significant wetlands and littoral rainforest.
·
To prohibit development which could destroy or damage a wetland or littoral
rainforest ecosystem.
Secondary
·
To protect the scenic values of wetlands and littoral rainforests.
·
To allow other development that is compatible with the primary function of
the zone.
Land in this zone is represented along both sides of the river in the designated
area of operation as islands or foreshore.
The proposal is inconsistent with both primary objectives of this zone and the
tourist facility development is prohibited in this zone. The commercial intensity of
the proposal compromises protected areas and has the potential to impact
negatively upon wetland and/or littoral rainforest ecosystems.
7(d) Environmental Protection (Scenic/Escarpment)
·
To protect and enhance those areas of particular scenic value to the area of
Tweed, minimise soil erosion from escarpment areas, prevent development
in geologically hazardous areas, and maintain the visual amenity of
prominent ridgelines and areas.
·
To allow other development that is compatible with the primary function of
the zone.
The proposal does not protect or enhance areas of particular scenic value to the
Tweed and is inconsistent with the primary objective in this regard. Furthermore,
the proposal is a prohibited form of development in this zone. As such the use of
the Tweed River for tourist facility purposes adjacent to this 7(d) land is not
considered to constitute a use that is compatible with adjoining zone.
8(a) National Parks and Nature Reserves
The primary objectives of this zone are:
·
To identify land which is reserved or dedicated under the National Parks
and Wildlife Act 1974.
·
To allow for the management and appropriate use of that land as provided
by that Act.
Use of the Tweed River adjacent to this zone for the proposed tourist facilities is
not compatible with development permissible in this adjoining zone as tourist
facilities are prohibited under this zone and not considered to be consistent with
the management and appropriate use of that land in accordance with the Act.
Furthermore, it is noted that the proposed area of operation (Tweed River) also
adjoins land zoned under the Tweed City Centre LEP 2012. In this regard the
unzoned land (Tweed River) adjoins land zoned RE1 Public Recreation, R3
Medium Density Residential and W2 Recreational Waterways under the
provisions of this LEP. Under this LEP the proposed development would be
defined as a ‘business premises’.
RE1 Public Recreation
Page 218
The objectives of this zone are;
•
To enable land to be used for public open space or recreational purposes.
•
To provide a range of recreational settings and activities and compatible
land uses.
•
To protect and enhance the natural environment for recreational purposes.
A business premises is prohibited in this zone. Furthermore, the proposal is a
commercial use of the river which it is considered to compete with many of the
potential recreational activities and uses. In this regard the proposal is not
considered to be in accordance with the objective of the zone.
R3 Medium Density Residential
•
To provide for the housing needs of the community within a medium density
residential environment.
•
To provide a variety of housing types within a medium density residential
environment.
•
To enable other land uses that provides facilities or services to meet the day
to day needs of residents.
A business premises is permitted with consent in this zone. Although quite a few
submissions against the proposal have been received from local residents, it is
considered reasonable in this regard to accept that an argument could be
construed that the proposed development would provide a facility or service to
meet the needs of residents. As such, the proposal is considered to be generally
compatible with development permissible in the adjoining zone at this location.
W2 Recreational Waterways
•
To protect the ecological, scenic and recreation values of recreational
waterways.
•
To allow for water-based recreation and related uses.
•
To provide for sustainable fishing industries and recreational fishing.
A business premises is prohibited in this zone and the proposed development is
not considered to be in accordance with the objectives of the zone with respect to
the ecological, scenic and recreational values of waterways or by providing for
recreational fishing.
The discussion under Clause 8 and Clause 11 concludes that the proposed
development is incompatible with existing passive recreational uses of the river in
accordance with the objectives of zones 6(a).
It is also concluded under this Clause that the proposed development is
inconsistent with the desired development of the 1(b2), 2(a), 4(a), 5(a), 6(a), 7(a),
7(d) and 8(a) zones under the Tweed Local Environmental Plan 2000.
Furthermore under the provisions of the Tweed City Centre Local Environmental
Plan 2012 the proposed development is considered to be inconsistent with the
desired development the RE1 and W2 zones.
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b)
in the case of unzoned land that is below the mean high-water mark of the
ocean or an estuary, bay, lake or river:
(i)
whether or not the proposed development would alienate the use of
the waters of the ocean, estuary, bay, lake or river from recreational
uses or from commercial fishing and, if so, whether there is sufficient
area in the locality for those uses to mitigate the adverse effect of the
proposed development on those uses, and
(ii)
the provisions of any coastal, estuary or river plan of management in
force from time to time that applies to the unzoned land or land in the
vicinity, and
(iii)
any impact the proposed development may have on the natural
environment.
The proposed development is considered to conflict with passive recreational
uses of the river including rowing, sailing, kayaking, canoeing, bird watching,
recreational fishing, sightseeing and the mooring of vessels such as houseboats.
The proposal is inconsistent with management plans produced by Council and the
Maritime authority that regulate the use and formulate strategies to preserve and
maintain the unique character of the Tweed River and environment. These are
outlined elsewhere in this report.
The impact that the proposal may have on the natural environment is discussed
later in this report. A thorough assessment has been provided by Council’s
Natural Resource Management Unit and refusal of the proposal is recommended
in this regard.
Conclusion
The proposal is not considered to be in accordance with the provisions of this
Clause and refusal of the application is recommended.
Due to the nature of the proposal which is predominantly on the Tweed River it is
considered that the provision of essential services is not required.
In accordance with DCP A13 a socio-economic impact assessment is not required
in association with this proposal.
Clause 25 – Development in Zone 7(a) Environmental Protection (Wetlands and
Littoral Rainforests) and on adjacent land
The uncoloured land upon which the proposal is to take place is located adjacent
to land zoned 7(a).
The objective of this clause is:
·
to ensure that wetlands and littoral rainforests are preserved and
protected in the environmental and economic interests of the area of
Tweed.
In relation to the proposal, the consent authority must take into account ‘the likely
effects of the development on the flora and fauna found in the wetlands or littoral
rainforest’.
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The proposal is at odds with the objective of this clause. It is not considered to
be in the environmental interests of the subject area to support the proposal as it
has not been demonstrated that it would not impact negatively and cumulatively
on sensitive environmental areas of significance.
Clause 29 – Development adjacent to Zone 8(a) National Parks and Nature
Reserves
The proposal extends to the river adjacent to Stotts Island and adjacent to
Ukerebagh Nature Reserve.
The objective of this clause is:
·
to ensure that development of land adjacent to Zone 8(a) does not
have a significant impact on wildlife habitat.
The proposal is not consistent with the management and appropriate use of the
reserve in accordance with the National Parks and Wildlife Act 1974. The
proposed development does not ensure a high level of protection for this area
and resultant disturbance may lead to a significant and permanent impact on
wildlife habitat. Council’s Natural Resource Management Unit have provided
advice which states that the operation of the water sports activities (which
operates to Stotts Island) ‘will add to the cumulative impact of wake waves on
river bank erosion in the subject reach.’ In this regard it is considered that the
proposal would be contrary to this Clause and it is recommended that the
application be refused in this regard.
Clause 31 – Development Adjoining Waterbodies
The objectives of this clause are:
•
to protect and enhance scenic quality, water quality, aquatic ecosystems,
bio-diversity and wildlife habitat and corridors.
•
to provide adequate public access to waterways.
•
to minimise the impact on development from known biting midge and
mosquito breeding areas.
The proposal does not impact upon the provision of adequate public access to
waterways given that the Fingal Head boat ramp is available to the public. It is
considered that with respect to this application the most relevant objective of this
clause is:
•
to protect and enhance scenic quality, water quality, aquatic ecosystems,
bio-diversity and wildlife habitat and corridors.
In the issue of consent, the following matters relevant to the application must be
considered and the consent authority must be satisfied that:
a)
the development will not have a significant adverse effect on scenic
quality, water quality, marine ecosystems, or the bio-diversity of the
riverine or estuarine area or its function as a wildlife corridor or habitat,
and
c)
the development is compatible with any coastal, estuary or river plan of
management adopted by the Council under the Local Government Act
1993 that applies to the land or to land that may be affected by the
development.
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The development is not considered to be compatible with plans of management
adopted by Council and as a result, it is recommended that the application be
refused on this basis.
Clause 34 - Flooding
The subject development area is entirely flood prone to varying degrees, having
regard to its location on or adjacent to the Tweed River.
Whilst higher levels of the river resulting from flooding may increase the risk of
impact upon river banks and habitat within the riverine/estuarine area it is noted
that the subject application does not propose any building or development works
which would be susceptible to flood damage. In this regard it is considered that the
proposal would not represent an unacceptable development in terms of the
provisions of this Clause.
The proposed development is not considered to result in significant disturbance of
acid sulfate soils due to its nature. No building work is required and as such there
is considered to be minimal impact in this regard. The proposed development is
considered to be acceptable having regard to the provisions of this clause.
Clause 15: Wetlands or Fishery Habitats
The subject application relates to the operation of a pontoon and water sports
boat on the Tweed River and as such this clause applies to the subject
development. This clause states that council shall not consent to an application
to carry out development for any purpose within, adjoining or upstream of a river
or stream, coastal or inland wetland or fishery habitat area or within the drainage
catchment of a river or stream, coastal or inland wetland or fishery habitat area
unless it has considered the following matters:
(a)
the need to maintain or improve the quality or quantity of flows of water to
the wetland or habitat,
The subject application is not considered to impact to a significant degree on the
quality or quantity of water flow in to Tweed River.
(b)
the need to conserve the existing amateur and commercial fisheries,
The proposed development is considered to potentially impact on existing
amateur fishing practices due to noise and the impact of the water sports
proposed on the waterbody.
(c)
any loss of habitat which will or is likely to be caused by the carrying out of
the development,
This application has been forwarded to Councils Natural Resource Management
Unit who have advised that the water sports element of this application is not
supported as ‘This use will add to the cumulative impact of wake waves on river
bank erosion in the subject reach. River bank erosion results in environmental
degradation.’ Having regard to this, it is considered that the proposal is likely to
cause a loss in habitat and the application should be refused in this regard.
(d)
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whether an adequate public foreshore reserve is available and whether
there is adequate public access to that reserve,
The proposal is considered to be generally acceptable in this regard.
(e)
whether the development would result in pollution of the wetland or estuary
and any measures to eliminate pollution,
The subject application is not considered to present an unacceptable application
in this regard. Whilst noise pollution is a element of the proposal that is reviewed
elsewhere in this report, this clause is considered to relate more so to physical
contamination pollution which is not considered to be a likely impact from the
proposal.
(f)
the proximity of aquatic reserves dedicated under the Fisheries
Management Act 1994 and the effect the development will have on these
reserves,
The subject application is not considered to impact on any aquatic reserves as
outlined above.
(g)
whether the watercourse is an area of protected land as defined in section
21AB of the Soil Conservation Act 1938 and any measures to prevent soil
erosion, and
Not applicable to the subject application.
(h)
the need to ensure that native vegetation surrounding the wetland or fishery
habitat area is conserved, and
As outlined under (c) above, the proposed development is considered likely to
cause a loss in habitat due to a cumulative impact of wake waves on the river
bank erosion and the application should be refused in this regard. This is also
considered to be relevant to this clause as wetlands are located within the area
identified for water sports use, including adjacent to Stotts island and to the north
river bank at Tumbulgum and it is recommended that the application be refused
in this regard.
(i)
the recommendations of any environmental audit or water quality study
prepared by the Department of Water Resources or the Environment
Protection Authority and relating to the river, stream, wetland, area or
catchment.
Not considered to be specifically applicable to the subject application.
From the above, it is considered that the primary concern in relation to this clause
is the possible impact on and loss of habitat, including native vegetation due to
river erosion arising from wake waves associated with the water sports boat. As
outlined above, the proposal is inconsistent with Clause 15, in particular (c) and (h)
above and refusal is recommended.
This clause applies to land (coastal river, estuaries and islands) within the region to
which the NSW Coastal Policy 1997 applies. The 1997 Coastal Policy has as its
central focus the ecologically sustainable development (ESD) of the NSW coastline
and is based on the four principles of ESD contained in the Intergovernmental
Agreement on the Environment (IGAE) signed in 1992:
·
conservation of biological diversity and ecological integrity
·
inter-generational equity
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·
improved valuation, pricing and incentive mechanisms, and
·
the precautionary principle.
ESD is particularly relevant to the coastal zone in view of the nature of the coastal
environment and the varied and intense demands placed on its resources.
Of these four principles, the proposed development is considered to be
inconsistent with three. The nature and intensity of the proposed development is
considered to threaten critical habitat and compromises the preservation of
biological diversity through its impact on river erosion.
It does not ensure that essential natural and cultural resources of the coastal zone
are preserved for the benefit and enjoyment of future generations. The
precautionary principle operates in this instance as locational considerations are
critical and environmental impacts are uncertain but potentially significant.
Clause 75: Tourism development
Of particular relevance under this Clause is 75(1)(c) which states that Council must
not grant consent to tourism development unless it is satisfied that the
development will not be detrimental to the scenery or other significant features of
the natural environment. It has been established that the nature and intensity of
the proposal has the capacity to affect features of the natural environment through
a cumulative impact on erosion. As such, the proposal is considered to be
inconsistent with this clause.
Clause 76: Natural tourism areas
The operational area proposed by the applicant is considered to be a natural
tourism area as defined under this clause. It adjoins nature reserves, Crown land,
protected areas and is, in the opinion of Council, considered to be a natural area
with qualities which make it a major attraction.
Assessment of the application must take into account the regional policy: ‘Tourism
Development Near Natural Areas: Guidelines for the North Coast’. This policy
was created to expand upon the basic concepts put forward in the NCREP and
relates specifically to tourism developments the attraction of which depends on
their proximity to major natural areas. The aim of the guidelines is to encourage
the development of viable yet environmentally sensitive tourism developments.
Specifically it aims to:
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·
Promote developments which enhance rather than erode the values of
the adjacent natural areas.
·
Encourage a broader awareness and understanding of the natural areas
of the North Coast.
·
Identify the potential markets for tourism developments adjacent to
major natural areas and the type of facilities suited to those areas.
·
Assist potential developers and landowners in developing appropriate
tourism projects, taking into account location, scale, site, design,
operations and feasibility.
·
Provide guidance for local councils to assess applications for tourism
developments of this type.
·
Set out a feasibility assessment procedure to be followed in developing
a proposal.
The policy states that any tourism development near a natural area needs to be
compatible with the prime purpose of the natural area. In this case, the prime
purpose of the natural area is conservation of critical habitat. Passive recreational
activities within the locality are aimed at the enjoyment of the natural area and
appreciation of conservation initiatives.
The major issues of tourism in natural areas arise from the interaction between
conservation, development and planning objectives. Essential conservation issues
relate to maintenance of the natural and cultural resources of the area and their
protection for the long term benefit of people and for the wildlife dependent on the
area.
Appropriate forms of development are encouraged with regard to the nature of the
recreation use and should allow a greater number and wider cross-section of
visitors to enjoy and appreciate the natural area. It is important that such
developments respect natural character and not detract from the natural values of
the area.
Essential planning issues centre on achieving environmentally sensitive
development – an environmentally sustainable development that can provide
benefits but not decrease the natural values or options available to future
generations. The policy advocates that any tourist development adjacent to a
natural area must limit its proposed activities to those which will not threaten the
value or integrity of the natural area and that activities which pose a threat should
be excluded altogether.
In addition, the tourist development should be sufficiently separated from the
natural area so that the noise it generates does not cause nuisance to users of the
natural area or distress its native fauna. Scale of development must be limited so
that it does not dominate the natural area or cause use of it to exceed its
environmental capacity.
Recreation facilities recommended in coastal lake, estuary and beach areas
include the provision of equipment such as canoes, sail boards and other
unpowered craft which provide access to the area’s main waterways, beaches etc.
Any educational facilities should be aimed at promoting an understanding of the
values of the natural environment.
It is considered that the proposed development is inconsistent with this clause as it
has not been demonstrated that the proposal will not cause a nuisance with
respect to noise or impact negatively on the natural area in which it is proposed to
operate due to erosion concerns.
Clause 81(1)(c) requires Council to be satisfied that the development is consistent
with the principles of any foreshore management plan applying to the area. The
subject application was referred to Councils Natural Resource Management Unit
who have provided advice on the application with respect to the Tweed River
Estuary Bank Management Plan 1998. From this is noted that ‘The above
management plan provides advice on the mechanisms for river bank erosion,
sites for priority stabilisation works, and design options for stabilisation. There is
no advice or policy statement with respect to the operation of vessels which may
cause wake wave erosion.’
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In this regard, it is considered that the proposal would not necessarily contravene
the provisions of this clause and consequently refusal is not recommended in this
regard.
SEPP No. 14 - Coastal Wetlands
The aim of this policy is to ensure that coastal wetlands are preserved and
protected in the environmental and economic interests of the State.
SEPP 14 wetlands are located on the subject site (Fingal Head Boat Harbour) and
on adjacent land to the north managed by the Tweed Byron Local Aboriginal Land
Council. They also cover most of Ukerebagh Nature Reserve, Tony’s Island and
Tim’s Island to the north of the motorway bridge.
To the south of the motorway bridge land on Lillie’s Island, Chinderah Bay,
Chinderah Island, Dodds Island in close proximity to Chinderah display SEPP 14
Wetlands whilst further west a small amount of land adjacent to the Tweed
Broadwater is identified as Coastal Wetland. In the area identified for water sports
operation, there is a small unidentified island off Stotts Island which is mapped
SEPP 14 Coastal Wetlands also.
Clause 4(2) states that ‘this policy does not apply to land dedicated or reserved
under the National Parks and Wildlife Act 1974 as an Aboriginal area, historic
site, national park, nature reserve, state game reserve or state recreation area.’
This would include land zoned 8(a) under the TLEP 2000 (Ukerebagh Nature
Reserve).
Clause 7 outlines ‘restriction on development of certain land’ (clearing, constructing
a levee, draining, filling) that require the concurrence of the Director-General. The
proposal does include these actions.
The proposed development is not consistent with the aim of this SEPP in that it
does not preserve and protect coastal wetlands in the environmental and economic
interests of the State, given the cumulative erosion impact arising from the
proposed development, in particular on the Coastal Wetlands adjacent to Stotts
Island. In this regard, the proposal is contrary to the provisions of this SEPP.
SEPP No. 26 - Littoral Rainforests
The aim of this Policy is to provide a mechanism for the consideration of
applications for development that is likely to damage or destroy littoral rainforest
areas with a view to the preservation of those areas in their natural state.
SEPP 26 areas are located on land within proximity of the Fingal Head boat ramp
to the western side of the river at this location where the 100m buffer area extends
into the river.
In accordance with Clause 7(1), the following acts are considered ‘designated
development’ which require consent and concurrence from the Director-General:
erect a building, carry out work, use land for any purpose, or subdivide it, disturb,
change or alter any landform or disturb, remove, damage or destroy any native
flora or other element of the landscape or dispose of or dump any liquid, gaseous
or solid matter.
Within the 100m buffer zone, the following acts require consent: erect a building,
disturb or change or alter any landform or disturb, remove, damage or destroy
any native flora, or dispose of or dump any liquid, gaseous or solid matter.
The applicant has submitted information stating:
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"The only SEPP 26 mapped areas along the river are located in the sand
dunes of Fingal and on the Coolangatta Tweed Heads Golf Course, The
proposed operation of the Pontoon Boat and Water Sports Boat will not be
within 100m of the mapped areas. The actual towing area is located
approximately 10km upstream, Council Officers could condition the consent
such that the boats are not to be used within 100m of a mapped SEPP 26
area."
Council officers would have concerns with respect to the proposal meeting the
provisions of this SEPP. As the buffer extends into the water adjacent to the
proposed operational area, it is possible that there may be impact upon native flora
within those areas. The applicants recommendation to condition the use of the
boats within 100m of a mapped SEPP 26 area would present concerns with
respect to policing such a condition and in substantiating compliance action in the
event it were required.
It is considered that the proposed development would have the potential to
damage littoral rainforest areas as outlined above, however it is not considered that
the application warrants refusal in this regard.
Aims of this policy are as follows:
a)
to protect and manage the natural, cultural, recreational and economic
attributes of the New South Wales coast, and
b)
to protect and improve existing public access to and along coastal
foreshores to the extent that this is compatible with the natural
attributes of the coastal foreshore, and
c)
to ensure that new opportunities for public access to and along coastal
foreshores are identified and realised to the extent that this is
compatible with the natural attributes of the coastal foreshore, and
d)
to protect and preserve Aboriginal cultural heritage, and Aboriginal
places, values, customs, beliefs and traditional knowledge, and
e)
to ensure that the visual amenity of the coast is protected, and
f)
to protect and preserve beach environments and beach amenity, and
g)
to protect and preserve native coastal vegetation, and
h)
to protect and preserve the marine environment of New South Wales,
and
i)
to protect and preserve rock platforms, and
j)
to manage the coastal zone in accordance with the principles of
ecologically sustainable development (within the meaning of section 6
(2) of the Protection of the Environment Administration Act 1991), and
k)
to ensure that the type, bulk, scale and size of development is
appropriate for the location and protects and improves the natural
scenic quality of the surrounding area, and
l)
to encourage a strategic approach to coastal management.
Land on the subject site and on either side of the river is described as a sensitive
coastal location, in this instance primarily identified as land within 100m above
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mean high water mark of the sea, a bay or an estuary. Some of the operational
area includes land to which SEPP 14 applies and land reserved/ edicated under
the National Parks and Wildlife Act 1974.
Assessment of the proposal involves consideration of the matters for consideration
at Clause 8 of this policy, as follows:
a)
the aims of this Policy set out in clause 2,
The subject application is not considered to be in accordance with the
aims of this policy, in particular with respect to aims a, d and g.
b)
existing public access to and along the coastal foreshore for
pedestrians or persons with a disability should be retained and, where
possible, public access to and along the coastal foreshore for
pedestrians or persons with a disability should be improved,
The subject application is not considered to impact significantly on
existing public accessways to the coastal foreshore.
c)
opportunities to provide new public access to and along the coastal
foreshore for pedestrians or persons with a disability,
The subject application is not considered to generate opportunities to
provide new public access along the coastal foreshore.
d)
the suitability of development given its type, location and design and its
relationship with the surrounding area,
The proposed development is not considered to represent a suitable
development at this location due to its non-compliance with both the
relevant planning policies and concerns with respect to river erosion
and compatibility with the surrounding area due to noise etc.
e)
any detrimental impact that development may have on the amenity of
the coastal foreshore, including any significant overshadowing of the
coastal foreshore and any significant loss of views from a public place
to the coastal foreshore,
The proposed development is not considered to impact on the coastal
foreshore as outlined above with respect to loss of views or
overshadowing.
f)
the scenic qualities of the New South Wales coast, and means to
protect and improve these qualities,
The subject application is not considered to contravene the scenic
qualities of the New South Wales coast.
g)
measures to conserve animals (within the meaning of the Threatened
Species Conservation Act 1995) and plants (within the meaning of that
Act), and their habitats,
The subject development has the potential to impact on habitats as a
consequence of cumulative erosion resulting from this proposal as
outlined elsewhere in this report.
h)
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measures to conserve fish (within the meaning of Part 7A of the
Fisheries Management Act 1994) and marine vegetation (within the
meaning of that Part), and their habitats
measures to conserve fish and marine vegetation as outlined above.
i)
existing wildlife corridors and the impact of development on these
corridors,
wildlife corridors as outlined above.
j)
the likely impact of coastal processes and coastal hazards on
development and any likely impacts of development on coastal
processes and coastal hazards,
The subject application is not considered to result in any specific
impacts with respect to coastal processes or hazards in this instance.
k)
measures to reduce the potential for conflict between land-based and
water-based coastal activities,
The subject application is considered to demonstrate potential for
conflict between land and water based coastal activities. As outlined
elsewhere in this report, Council have received numerous objections to
the proposed development, many of which objected to other
recreational uses on and around the Tweed River. In this regard
Councils Environmental Health Unit requested that a Noise Impact
Assessment be submitted to Council to determine the impact from the
proposed use in terms of noise and amenity. The applicant has
declined to provide this, stating that ‘the boats are standard
recreational boats that do not create excessive noise. Noise impact is
not considered to be a significant issue.’
It is not considered that the proposed development has adequately
demonstrated measures to reduce impact between land and waterbased activities and as such the application is recommended for
refusal in this regard.
l)
measures to protect the cultural places, values, customs, beliefs and
traditional knowledge of Aboriginals,
The subject application was forwarded to NSW Government (Office of
Environment & Heritage) and the Tweed Byron Local Aboriginal Land
Council (TBLALC) through the referral process. Council received
correspondence from NSW Government (Office of Environment &
Heritage) outlining the following:
‘Prior to determining the application, Council should also be
satisfied that an appropriate level of Aboriginal cultural heritage
assessment has been undertaken, and that the proposal is not
likely to impact on areas of cultural significance to the Aboriginal
community. Also, it is important that the views of Aboriginal
community groups be sought in regard to the proposed
development.’
In this regard, Council has received a submission from the TBLALC
outlining concerns with the proposal and requesting that a full Cultural
Heritage Assessment be undertaken.
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The applicant has provided information in response stating that the
proposed use and associated impacts are identical to those of the
numerous other similar boats on the river, and outlining that it would be
impossible to distinguish the impacts of the proposed boats separately
from other boating use. A full Cultural Heritage Assessment is not to
be undertaken according to the applicant.
In this regard it is not considered possible to fully assess the impact of
the proposal with respect to the criteria outlined above. As such, the
application is not supported in the absence of adequate supporting
information to ensure the proposal won’t impact on measures to
protect the cultural places, values, customs, beliefs and traditional
knowledge of Aboriginals.
m)
likely impacts of development on the water quality of coastal
waterbodies,
The proposed development is not considered likely to have a negative
impact with respect to the water quality of coastal waterbodies.
n)
the conservation and preservation of items of heritage, archaeological
or historic significance,
As outlined under l) above the subject application was forwarded to
NSW Government (Office of Environment & Heritage) and the Tweed
Byron Local Aboriginal Land Council (TBLALC) through the referral
process. Council received correspondence from NSW Government
(Office of Environment & Heritage) outlining the following:
‘Prior to determining the application, Council should also be
satisfied that an appropriate level of Aboriginal cultural heritage
assessment has been undertaken, and that the proposal is not
likely to impact on areas of cultural significance to the Aboriginal
community. Also, it is important that the views of Aboriginal
community groups be sought in regard to the proposed
development.’
In this regard, Council has received a submission from the TBLALC
outlining concerns with the proposal and requesting that a full Cultural
Heritage Assessment be undertaken.
The applicant has provided information in response stating that the
proposed use and associated impacts are identical to those of the
numerous other similar boats on the river, and outlining that it would be
impossible to distinguish the impacts of the proposed boats separately
from other boating use. A full Cultural Heritage Assessment is not to
be undertaken according to the applicant.
In this regard it is not considered possible to fully assess the impact of
the proposal with respect to the criteria outlined above. As such, the
application is not supported in the absence of adequate supporting
information to ensure the proposal won’t impact on the conservation
and preservation of items of heritage, archaeological or historic
significance.
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o)
only in cases in which a council prepares a draft local environmental
plan that applies to land to which this Policy applies, the means to
encourage compact towns and cities,
p)
only in cases in which a development application in relation to
proposed development is determined:
i.
the cumulative impacts of the proposed development on the
environment, and
The proposed development is considered to result in an unacceptable
cumulative impact with respect to river erosion as detailed elsewhere
in this report.
ii.
measures to ensure that water and energy usage by the
proposed development is efficient.
There is not considered to be specific measures applicable to this
application with respect to water/ energy usage.
An assessment of the proposal against Clause 8 highlights that the proposal is not
consistent with the aims of the policy as set out in Clause 2, specifically but not
limited to, a), d), g), k), l), n) and p). The nature of the proposal is unsuitable for
and incompatible with the surrounding area. It is considered to conflict with
measures to conserve habitats and aboriginal heritage. The cumulative impact of
the proposed development on the environment is not considered sustainable and
the proposal is not supported with respect to this SEPP and refusal is
recommended in this regard.
(a)
(ii)
The Draft Tweed Local Environmental Plan 2012 which has been adopted by
Council is applicable to the subject site.
Part 1 Preliminary
1.2 Aims of Plan
The aims of this plan as set out under Section 1.2 of this plan are as follows:
(1)
This Plan aims to make local environmental planning provisions for
land in Tweed in accordance with the relevant standard environmental
planning instrument under section 33A of the Act.
(2)
The particular aims of this Plan are as follows:
(a)
to give effect to the desired outcomes, strategic principles,
policies and actions contained in the Council’s adopted strategic
planning documents, including, but not limited to, consistency
with local indigenous cultural values, and the national and
international significance of the Tweed Caldera,
(b)
to encourage a sustainable, local economy, small business,
employment, agriculture, affordable housing, recreational, arts,
social, cultural, tourism and sustainable industry opportunities
appropriate to Tweed Shire,
(c)
to promote the responsible sustainable management and
conservation of Tweed’s natural and environmentally sensitive
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areas and waterways, visual amenity and scenic routes, the built
environment, and cultural heritage,
(d)
to promote development that is consistent with the principles of
ecologically sustainable development and to implement
appropriate action on climate change,
(e)
to promote building design which considers food security, water
conservation, energy efficiency and waste reduction,
(f)
to promote the sustainable use of natural resources and facilitate
the transition from fossil fuels to renewable energy,
(g)
to conserve or enhance the biological diversity, scenic quality,
geological and ecological integrity of the Tweed,
(h)
to promote the management and appropriate use of land that is
contiguous to or interdependent on land declared a World
Heritage site under the Convention Concerning the Protection of
World Cultural and Natural Heritage, and to protect or enhance
the environmental significance of that land,
(i)
to conserve or enhance areas of defined high ecological value,
(j)
to provide special protection and suitable habitat for the recovery
of the Tweed coastal Koala.
The proposed development is considered to be in contravention of aims (c), (d)
and (g) above due to concerns with respect to the impact the proposed
development would have on river erosion on the Tweed River.
1.4 Definitions
The proposed development is considered to be defined as a ‘business premises’
under the provisions of this plan.
business premises means a building or place at or on which:
(a)
an occupation, profession or trade (other than an industry) is carried on for
the provision of services directly to members of the public on a regular
basis, or
(b)
a service is provided directly to members of the public on a regular basis,
and includes a funeral home and, without limitation, premises such as banks,
post offices, hairdressers, dry cleaners, travel agencies, internet access facilities,
betting agencies and the like, but does not include an entertainment facility, home
business, home occupation, home occupation (sex services), medical centre,
restricted premises, sex services premises or veterinary hospital.
Note. Business premises are a type of commercial premises - see the definition
of that term in this Dictionary.
Part 2 Permitted or prohibited development
2.1 Land use zones
As outlined under the TLEP 2000 assessment, the development area
encompasses Fingal Boat Ramp, Barneys Point Bridge, the BP Chinderah site
and the Tweed River between Murwillumbah and Tweed Heads.
The proposed development area is zoned as the following:
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RE1 Public Recreation: Fingal Head Boat Ramp.
W3 Working Waterways: Tweed River between Tweed Heads and Motorway
Bridge.
SP2 Infrastructure: Passenger pick up and set down point at Barneys Point
Bridge.
B4 Mixed Use: Vehicle parking area at BP Chinderah.
W2 Recreational Waterways: Tweed River between M1 Motorway Bridge and
Murwillumbah.
A business premises is prohibited in the RE1, W3, SP2 and W2 zones.
2.3 Zone objectives and Land Use Table
The Draft TLEP 2012 zones the development area as RE1 Public Recreation, W3
Working Waterways, SP2 Infrastructure, B4 Mixed Use and W2 Recreational
Waterways. The objectives of these zones are:
RE1 Public Recreation
Objectives of zone
•
To enable land to be used for public open space or recreational purposes.
•
To provide a range of recreational settings and activities and compatible
land uses.
•
To protect and enhance the natural environment for recreational purposes.
The proposed development is not considered to be consistent with the objectives
of this zone as it does not enable land to be used for open space or recreational
purposes, provide a range of recreational settings or protect and enhance the
natural environment for recreational purposes.
W3 Working Waterways
Objectives of zone
•
To enable the efficient movement and operation of commercial shipping,
water-based transport and maritime industries.
•
To promote the equitable use of waterways, including appropriate
recreational uses.
•
To minimise impacts on ecological values arising from the active use of
waterways.
•
To provide for sustainable fishing industries.
The proposed development is not considered to be in accordance with any of the
above objectives. The proposal does not enable commercial shipping, water
based transport or maritime industries. Furthermore, it is considered that the
proposed development would not promote an equitable use of waterways as it is
considered to be detrimental to various other recreational uses including rowing,
canoeing and fishing. The proposal is not considered to minimise impacts on
ecological values.
SP2 Infrastructure
Objectives of zone
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•
To provide for infrastructure and related uses.
•
To prevent development that is not compatible with or that may detract from
the provision of infrastructure.
The proposed development is not considered to be consistent with the above
objectives. The area of land zoned SP2 is located at Barneys Point Bridge and is
to be used for passenger pick up and set down. This is considered to be
inconsistent in the event that this land is required for the provision of
infrastructure in the future.
B4 Mixed Use
Objectives of zone
•
To provide a mixture of compatible land uses.
•
To integrate suitable business, office, residential, retail and other
development in accessible locations so as to maximise public transport
patronage and encourage walking and cycling.
The proposed use is permissible in this zone.
W2 Recreational Waterways
Objectives of zone
•
To protect the ecological, scenic and recreation values of recreational
waterways.
•
To allow for water-based recreation and related uses.
•
To provide for sustainable fishing industries and recreational fishing.
The proposed development is not considered to protect ecological, scenic or
recreational values of the water through cumulative impacts on river erosion and
potential impacts on the other recreational uses on the river. Furthermore, the
proposal is not considered to encourage sustainable fishing industries or
recreational fishing.
As outlined under clause 2.1 above it is noted that a business premises is
prohibited in the RE1, W3, SP2 and W2 zones. The applicant has not addressed
the objectives of these zones or provided supporting information to demonstrate
that the proposal meets these zone objectives despite being a prohibited use and
it is considered that the proposed use does not meet the objectives above and
the application warrants refusal in this regard.
Part 5 Miscellaneous provisions
5.5 Development within the coastal zone
This clause of the draft LEP states that development consent must not be granted
to development on land that is wholly or partly within the coastal zone unless the
consent authority has considered the following;
(a)
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existing public access to and along the coastal foreshore for pedestrians
(including persons with a disability) with a view to:
(i)
maintaining existing public access and, where possible, improving that
access, and
(ii)
identifying opportunities for new public access, and
The proposed development is not considered to impact upon access to coastal
foreshore.
(b)
the suitability of the proposed development, its relationship with the
surrounding area and its impact on the natural scenic quality, taking into
account:
(i)
the type of the proposed development and any associated land uses or
activities (including compatibility of any land-based and water-based
coastal activities), and
(ii)
the location, and
(iii)
the bulk, scale, size and overall built form design of any building or
work involved, and
The proposed development is not considered to represent a suitable
development at this location as potential cumulative river erosion impacts are
likely to impact on the surrounding area. In this regard the application is not
supported.
(c)
the impact of the proposed development on the amenity of the coastal
foreshore including:
(i)
any significant overshadowing of the coastal foreshore, and
(ii)
any loss of views from a public place to the coastal foreshore,
The proposed development is considered to result in an unacceptable impact on
the amenity of the coastal foreshore through the issues raised elsewhere in this
report including noise and impact on other recreational users of the river.
(d)
how the visual amenity and scenic qualities of the coast, including coastal
headlands, can be protected, and
The proposed development is not considered to protect the scenic qualities of the
coast as it represents a commercial development which has been identified as
having a cumulative impact on river erosion in the Tweed River. In this regard
the proposal is considered to compromise the above provision.
(e)
how biodiversity and ecosystems, including:
(i)
native coastal vegetation and existing wildlife corridors, and
(ii)
rock platforms, and
(iii)
water quality of coastal waterbodies, and
(iv) native fauna and native flora, and their habitats,
can be conserved, and
The proposed development is considered to represent a risk with respect to
existing biodiversity and ecosystems along the Tweed River due to concerns
arising from cumulative erosion associated with the water sports boat.
(f)
the cumulative impacts of the proposed
development on the coastal catchment.
development
and
other
The proposed development is not considered to result in an unacceptable
cumulative impact on the coastal catchment.
This clause goes on to further state:
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(3)
Development consent must not be granted to development on land that is
wholly or partly within the coastal zone unless the consent authority is
satisfied that:
(a)
the proposed development will not impede or diminish, where
practicable, the physical, land-based right of access of the public to or
along the coastal foreshore, and
As outlined elsewhere in this report, the proposal is not considered to impede or
diminish the right of access of the public either to or along the public foreshore.
(b)
if effluent from the development is disposed of by a non-reticulated
system, it will not have a negative effect on the water quality of the
sea, or any beach, estuary, coastal lake, coastal creek or other similar
body of water, or a rock platform, and
The effluent provisions identified by the applicant have been reviewed by
Councils Environmental Health Unit and assessed as being acceptable in this
instance.
(c)
the proposed development will not discharge untreated stormwater into
the sea, or any beach, estuary, coastal lake, coastal creek or other
similar body of water, or a rock platform, and
(d)
the proposed development will not:
(i)
be significantly affected by coastal hazards, or
(ii)
have a significant impact on coastal hazards, or
(iii)
increase the risk of coastal hazards in relation to any other land.
With respect to the submitted information it is not possible to conclude that the
proposed development will not have a significant impact on coastal hazards or
increase the risk of coastal hazards to other lands due to identified impacts with
respect to cumulative river erosion.
5.7 Development below mean high water mark
This clause is applicable to the subject application and states the following:
(1)
The objective of this clause is to ensure appropriate environmental
assessment for development carried out on land covered by tidal waters.
(2)
Development consent is required to carry out development on any land
below the mean high water mark of any body of water subject to tidal
influence (including the bed of any such water).
The subject application has been submitted in order to gain development consent
as the proposal relates to an activity on the Tweed River. The subject application
has been referred to Councils Environmental Health and Natural Resource
Management Units and it has been considered that the proposal represents an
unacceptable development with respect to environmental impact and refusal is
recommended.
Conclusion
The proposed development does not meet the provision of the Draft LEP 2012 as
outlined above. As this LEP is considered to be certain and imminent and the
proposal is not in accordance with the aims and objectives of the instrument it is
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therefore recommended that the proposal be refused.
(a)
The provisions of this DCP do not make specific reference to car parking
requirements for commercial boating operations such as that proposed in this
application. The proposed development is to provide customer car parking at a
designated area adjacent to BP Chinderah. The application was referred to
Councils Infrastructure Engineering Section with respect to traffic and parking who
have advised the following:
"Traffic generation of the proposal is minimal and customers are expected to
park in the adjacent service station. It is recommended that appropriate
signage be conditioned directing those customers to the allocated parking.
These signs would be installed and worded to the satisfaction of Council's
Director of Engineering and Operations and located in Council's car park
located adjacent to the old Barneys Point Bridge and in the proposed
parking area at the Service Station."
As such the application is considered to be acceptable from a parking and traffic
perspective subject to appropriate conditions of consent. The proposal is
considered not to contravene the provisions of DCP A2.
The subject development area is entirely flood prone to varying degrees, having
regard to its location on or adjacent to the Tweed River. It is noted that the subject
application does not propose any building or development works which would be
susceptible to flood damage. In this regard it is considered that the proposal would
not represent an unacceptable development in terms of the provisions of this DCP.
The proposal was advertised in accordance with DCP A11 for a period of 14 days
from Wednesday 29 May 2013 to Thursday 13 June 2013. During this time 27
public submissions were received with a further three late submissions received.
Issues raised within the submissions are discussed elsewhere in this report.
DCP B2- Tweed City Centre
A portion of the Tweed River is mapped as being within the area that this DCP is
applicable to and as such it is required to assess the proposal against the
provisions of this DCP.
In this regard it is noted that the Tweed River adjoins both the Southern Boat
Harbour and the Tweed River Environment and Recreation Precinct, which relate
to the subject application. In this regard the following is offered:
Southern Boat Harbour
An objective of this zone is to ‘promote the maritime theme of the boat harbour,
and to encourage and facilitate tourism and boating on the Tweed River’. In this
regard, the proposed development would be considered to be generally
consistent with this objective.
Tweed River Environment and Recreation Precinct
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The Tweed River Environment and Recreation Precinct is identified as the major
natural area within Tweed Heads City and comprises significant wetland areas,
watercourses and the golf course. It has significant biodiversity value and the
DCP states that ‘development should be minimised to land uses that compliment
the natural qualities of the precinct, and have tourist or recreational qualities’.
In this regard, it is considered that the proposal would have tourist or recreational
qualities, however Council officers would have concerns with respect to
determining satisfactorily that the proposal would complement the natural
qualities of the precinct. In this manner, the proposal is considered not to warrant
a recommendation of refusal against this DCP, however Council officers would
have concerns with respect to same.
Waterways Policy
The subject application has been reviewed by Councils Natural Resource
Management Unit with respect to the applicable waterways policies relevant to
this application. In this regard the following comment is provided:
Impact of wake on river bank erosion Study (2012)
The Impact of Wake on Tweed River Bank Erosion Study has established that
wake wave energy is one of the primary causes of river bank erosion in the
Tweed estuary. While it is recognised that floods and a lack of riparian
vegetation are also significant issues contributing to erosion problems, it is
accepted that wake is a significant contributing factor.
There is no method that can be used to quantify the contribution of wake from the
proposed vessel use and its relative significance with respect to ongoing erosion
in this river reach. Total wake impact created will depend on the intensity of use
of the vessel, and variables associated with its operation. The former is directly
linked to demand for the business product offered, and the latter to the actions of
the vessel driver.
Despite it not being possible to accurately quantify the amount of wake potentially
generated, it can be assumed that wake generation by this individual vessel
would create only a minor increased impact, over and above the total wake wave
energy created by the existing sum of powered vessels already using this reach
of the river for recreational towing activities. It is clear however, that the proposal
would contribute cumulatively to wake wave energy, and as such, is an activity
that will contribute cumulatively to river bank erosion.
Upper Tweed Estuary Management Plan (1996)
Council prepared a management plan for the Upper Tweed Estuary in 1996. The
plan does not specifically address the issue of commercial operation of tow based
water sports in the river.
Relevant objectives of the management plan are to provide an integrated
program of works that will:
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·
Identify, enhance and protect significant habitat, particularly tidal wetlands
and riparian corridors
·
Protect heritage
·
Provide recreation facilities
·
Encourage boating activities
·
Increase awareness
·
Address river bank erosion
·
Improve water quality, particularly in Rous
·
Minimise ASS impacts
·
Conserve scenic qualities of the river
The plan contains a comprehensive list of management constraints and
opportunities.
Most relevant to consideration in the assessment of this
development proposal is the following:
·
There is widespread bank erosion along the upper Tweed Estuary.
Appropriate measures are required in areas where significant assets may
be threatened and where waves from increased boating would exacerbate
erosion.
While the plan does acknowledge and recognise the need to accommodate
recreational boating in the Upper Tweed Estuary, it highlights that protection of
wetland vegetation and riparian corridors and addressing river bank erosion is a
high priority.
It is considered that operation of a commercial water sport vessel engaging in
towing activities is not consistent with the Upper Estuary Management Plan
objectives of, "Identify, enhance and protect significant habitat, particularly tidal
wetlands and riparian corridors."
NSW State Rivers and Estuary Policy (1993)
The objective of the NSW Rivers and Estuary Policy is to manage the rivers and
estuaries of NSW in ways which:
·
Slow, halt or reverse the overall rate of degradation in their systems,
·
Ensure the long-term sustainability of their essential biophysical functions,
and
·
Maintain the beneficial use of these resources.
These objectives are to be achieved through application of the following
management principles:
·
Those uses of the rivers and estuaries that are non-degrading should be
encouraged.
·
Non-sustainable resource uses which are not essential should be
progressively phased out.
·
Environmentally degrading processes and practices should be replaced with
more efficient and less degrading alternatives.
·
Environmentally degraded areas should be rehabilitated and their
biophysical functions restored.
·
Remnant areas of significant environmental values should be accorded
special protection.
·
An ethos for the sustainable management of river and estuarine resources
should be encouraged in all agencies and individuals who own, manage or
use these resources, and its practical application enabled.
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Operation of a commercial water sports vessel that includes towing activities in
the subject reach is not in accordance with the first objective of the NSW Rivers
and Estuaries Policy. The proposed activity will add to the cumulative impact of
wake on river bank erosion, and as such, does not assist in slow, halt or reverse
the overall rate of degradation (in this cases, river bank erosion) in the Tweed
River.
Operation of a commercial water sports vessel has the potential impact of
reducing the amenity that the river provides for passive recreational use, in
particular the established and important use by the Murwillumbah Rowing Club.
As such, approval of the development would be inconsistent with the first
management principal, that being to encourage uses of the estuary that are nondegrading.
It is also noted that Stott's Island would qualify for special protection from any
potential impact by wake creating activities under management principle five, as it
is an area of significant environmental value.
(a)
The NSW Coastal Policy 1997 has as its central focus the ecologically sustainable
development (ESD) of the NSW coastline and is based on the four principles of
ESD contained in the Intergovernmental Agreement on the Environment (IGAE)
signed in 1992:
·
Conservation of biological diversity and ecological integrity;
·
Inter-generational equity;
·
Improved valuation, pricing and incentive mechanisms, and
·
The precautionary principle.
ESD is particularly relevant to the coastal zone in view of the nature of the coastal
environment and the varied and intense demands placed on its resources.
Of these four principles, the proposed development is inconsistent with three. The
nature and intensity of the proposed development threatens critical habitat and
compromises the preservation of biological diversity. It does not assure that
essential natural and cultural resources of the coastal zone are preserved for the
benefit and enjoyment of future generations. The precautionary principle operates
in this instance as locational considerations are critical and environmental impacts
are uncertain but potentially significant.
(a)
(v)
This Plan applies to the Shire’s 37 kilometre coastline and has a landward
boundary that includes all lands likely to be impacted by coastline hazards plus
relevant Crown lands. The subject application is to operate within the navigable
waters of the Tweed River and does not include the coastal foreshore in this
regard. As such the development area is not included in coastal hazards mapping
and this management plan does not apply specifically to this Development
Application.
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The proposed development is not within Cudgen, Cudgera or Mooball Creeks.
This Plan is therefore not applicable to the application.
The subject operation area does not extend to the Cobaki and Terranora
Broadwater Catchment. The submitted application is for operation in the navigable
water of the Tweed River only and as such does not extend into land covered by
this plan. This Plan is therefore not relevant to the proposed development.
(b)
in the locality
Amenity/Noise
The proposed development is considered to warrant particular assessment with
respect to potential amenity and noise impacts. Councils Environmental Health
Unit have requested the applicant to provide a noise impact assessment however
this has not been submitted, with the applicant stating in their response letter in
regards to noise “It is considered unreasonable to require a Noise Impact
Assessment, given that both boats are standard recreational boats and given the
number of other similar boat activity on the river. We are not aware of any other
Noise Assessment that has been undertaken for a commercial boat operation on
the Tweed River.” The further information submitted by the applicant in regards
to noise is considered insufficient to undertake an adequate assessment of the
potential noise impacts arising from the proposed development.
Furthermore, the proposal is considered to impact upon other users of the Tweed
River, including low impact recreational and passive river uses such as fishing,
walking, cycling, picnicking, sailing, paddling, snorkelling, bird-watching, rowing
and kayaking. It is considered that commercial towing activities are inconsistent
with these uses which should be protected.
In this regard, the proposed development is not supported given Council
concerns with the potential noise and amenity impacts on the surrounding area.
River Erosion
The subject application was referred to Councils Natural Resource Management
(NRM) Unit for comment who have advised that the proposed water sport
activities are not supported as this use will add to the cumulative impact of wake
waves on river bank erosion.
It is noted that the river reach in which the activity has been proposed is subject
to serious ongoing erosion, and it is considered that for Council to approve an
activity that will cumulatively add to the worsening of existing erosion is not in the
public interest. There are a number of serious bank slumps adjacent to and
within metres of the Tweed Valley Way within the river reach, and it would be
prudent for Council to prioritise actions that slows, reverses or halts factors
exacerbating this erosion. While it is recognised that the most serious bank
erosion in this river reach will require engineered stabilisation, it is not appropriate
to approve a use that will worsen erosion of areas that are not yet in a critically
eroded condition. Refusal of the application is recommended in this regard.
(c)
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The nature of surrounding land uses is dealt with in detail earlier in this report
under Clauses 8, 11 and 13 of the TLEP 2000. The nature and intensity of the
proposal is inconsistent with surrounding land uses, passive recreational
enjoyment of the natural area and the general lack of intensive development along
the river foreshore.
(d)
Development Proposals for a period of 14 days from Wednesday 29 May to
Thursday 13 June 2013. During this time, 27 submissions were received, with a
further three late submissions received.
Issues raised within the submissions are many and varied. A summary of the
issues is provided below along with any response provided by the applicant
following receipt of submission copies.
Summary of Submissions
Response from applicant
·
Wakeboarding unit would be too noisy in a
populated area.
·
A high intensity water sports operation
would compromise low impact recreational
and passive river uses such as fishing,
walking, cycling, picnicking, sailing,
paddling,
snorkelling,
bird-watching,
rowing and kayaking.
Most of the submissions received are from
residents of Fingal Head. The proposal will
have minimal impact upon Fingal Head. The
Fingal Head boat ramp will be used to launch
the boats but the parking of cars and trailers
is on private property. Towing activities can
only occur upstream of Tumbulgum some
10km away from Fingal Head.
·
The Tweed Rivers natural amenity,
ecosystems and critical habitats should be
preserved and protected from the
proposed use.
The Pontoon Boat is proposed to be used in
other areas including adjacent to Fingal but it
is of very low impact and no different to other
similar pontoon boats operated by other
commercial boat hire businesses in the area.
·
Proposal would impact negatively on
established
business
which
are
sustainable and low impact (eg surf/standup-paddle school)
Only 2 submissions were received from
people that actually reside within the area
intended for the towing activities.
·
Public land should not be used for the
ingress/ egress for a floating pontoon due
to OH & S concerns.
Noise
·
·
Existing recreational wakeboarding in ‘tow
zone’ already causes disruption and
disturbance to
·
Wakeboarding does not have a legislated
measuring system and in this way is
‘lawless’. Also impacts on other river users
inclu7ding fishing, canoeing, houseboats
and swimming.
·
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Tweed public have to pay for River
upkeep/ maintenance and not the
applicant. Tweed River should be
protected and instead promote ecotourism
rather
than
potentially
damaging
proposals.
There are inadequate car parking and
no
toilet/shower
amenities
virtually
provided at Barney’s Point Bridge. Clients
The issues are summarised as follows:
Concerns have been raised relating to the
noise of the boats. The boats are standard
recreational boats that do not create
excessive noise. Noise impact is not
considered to be a significant issue.
Bank Erosion
This issue has been discussed previously.
Refer to comments at Item 3 and 4
(reproduced below). Appropriate conditions
may be applied to manage potential impacts
of the Water Sports Boat. The Pontoon Boat
is similar to other existing hire Pontoon Boats
and should be considered separately.
3. Waterway Management Plans
Council submits that the proposal is
inconsistent with "Waterway Management
Plans" which highlight the need to reduce
erosion within the vicinity of the Tweed River.
are therefore likely to use the nearest
facilities at Tweed Ski Lodge Caravan
Park which is private property.
·
·
Wakeboarding causes a huge amount of
damage to the river bank and property of
residents along the river. Furthermore this
does not contribute to the local economy.
Approval of this DA will increase bank
erosion and disrupt and endanger rowing
and other low impact boating activities.
·
The proposal is to be undertaken where
there is minimal revetment wall, resulting
in this proposal causing river erosion
·
The proposed development would impact
on safety of rowers on Tweed River one of
Australia’s best rowing courses. Wake
waves are typically 0.25m in height and
would swamp a skull boat which has a
freeboard of 0.1m.
·
Stabilisation of riverbank cost in the wake
boarding area would be $7.7 million
upfront with an ongoing maintenance cost
of $1.7 million. Council should not ignore
these costs.
·
It is premature to approve this application
prior to a strategy for use of the river. If
Council were to approve the current
development application, it could be liable
to compensate the operator if towing
activity were to be restricted in the future.
·
The statement of environmental effects is
inadequate and the environmental impacts
of the proposal are not properly
addressed. In many instances the DA
merely states that the impact of the
proposal would be no different to
recreational wakeboarding.
·
Proposal does not address cumulative
impact on the environment and is not
·
A commercial pontoon and wakeboarding
business operating between 8am and 4pm
7 days a week would raise noise issues
and destroy peaceful and quiet enjoyment
of the area.
·
There are inadequate resources in place
to monitor the activities of this type of
business.
·
Proposal is inconsistent with the
recommendations of ‘The Boat Impact and
Wake Study review of the Tweed Estuary
River Bank Management Plan.
·
Proposed development would also impact
In response to this, again, it is pointed out
that the subject boats are already in use on
the Tweed River most weekends and
holidays (in a recreational capacity).
Demand for the operation by members of the
public will be seasonal and the peak times
will be on weekends and holidays. It is not
proposed to use ballast in the commercial
operation.
Therefore the impacts of the proposal are
likely to be similar to the existing recreational
use of the boats and would not significantly
increase erosion impacts.
In order to further address the issue of
erosion the proposal limits the area for tow
sports to upstream of Stotts Island and
downstream of the Cane Rood Bridge. This
is consistent with the most logical and
reasonable recommendation of the "Impact
of Woke on Tweed River Bank Erosion
Study" prepared by SMEC dated 18 January
2012, being Option 3, which is in the
following terms:
"Option 3 represents an option
involving restriction of towing activities
to a purpose built section of estuary
(with protected banks). For example
the area from the Cane Rd (Condong)
Bridge to upstream of Stotts Island
Nature Reserve (east of Tumbulgum)
has been considered for the purposes
of this comparative assessment. This
approximately 7km stretch of waterway
is popular for towing activities as it has
reaches that ore sheltered from the
different prevailing wind directions
providing a good flat water surface for
water skiing and wakeboarding in most
conditions. This option would aim to
consolidate towing activities to on
existing popular area with suitable
facilities.
Subsequently, the remainder of the estuary
would be relieved from the bank erosion
potential of towing boat wakes."
It is noted that bank protection works have
been undertaken in this area and the area is,
and will continue to be popular for tow sport
activities.
4. Suitability of the Site - Bank Erosion
The site (the Tweed River) is subject to on
uncontrolled number of recreational boat
users of any size craft. It is considered that it
is a contradictory position to maintain that the
controlled commercial use of a Pontoon Boat
and a Water Sports Boat would have
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on roosting migratory bird sites and
heritage sites.
·
·
Stotts Island contains at least 8
endangered plants and 47 bird species. As
such it is not appropriate to operate a
commercial water sports operation in this
vicinity.
Commercial operation would set a
precedent for future similar applications.
·
Concerns raised with respect to the
proposals proximity to culturally sensitive
areas including Ukerabagh Island.
·
The proposed commercial operation is
inconsistent with surrounding residential
zones.
·
Congestion at the Fingal Head boat ramp
is a concern.
·
The proposed development would create
noise and air pollution.
unreasonable bank erosion impact while
many similar craft may use the same
waterway.
As previously mentioned the intensity of the
use would be similar to the existing
recreational use of the same boats, but
appropriate conditions may be applied to
manage the potential impacts.
Other River Users
Normal "distances off" and right of way to
unpowered craft regulations apply. The river
is large enough to cater for all different forms
of watercraft and interests. The proposal
seeks to limit the area of tow sports and the
nominated towing area is large enough to
allow avoidance of other users should they
be present. It is on unreasonable position of
any river user to expect exclusive use of the
entire river.
Residential Development
May be controlled by operating hours.
Proximity to Culturally Sensitive Areas
The boats will use the same waterway as
other similar boats.
Impacts of Flora and Fauna
Again the boats are standard recreational
boats using parts of the river that are already
frequented by similar boats. It is unlikely that
the proposal would pose a significant effect
on threatened species or their habitat.
The application is seeking to provide a
business that would enable visitors to the
area to partake in a range of water based
activities. The support of a viable tourism
industry by providing a range of activities is
·
A further late submission has been
received from Destination Tweed in
support of the application.
Not applicable.
Council Assessment of Submissions
Issues raised within the submissions have been dealt with in the body of the report
where Council is the regulatory authority. It is considered that the submitted
application and the applicant’s response to the issues raised does not provide a
level of information which adequately addresses many of the concerns raised
above, particularly with respect to river bank erosion, noise/amenity impacts,
cultural heritage impacts and potential for impacts on protected habitats. In this
regard refusal of the application is recommended.
Public Authority Submissions Comment
Page 244
The application was referred to the following external agencies for consultation
purposes (the proposal was not identified as integrated development):
·
NSW Transport Roads & Maritime Services
·
Tweed Byron Local Aboriginal Land Council (TBLALC)
·
Office of Environment & Heritage (National Parks)
The application was forwarded to NSW Government Crown Lands Department.
Advice was received on 16 May 2013 advising that ‘Crown Lands has no comment
to make on DA13/0221 at this stage.’
TBLALC lodged a submission in June 2013 objecting to the proposed development
due to cultural and environmental concerns.
Concerns raised included the following:
·
Activities outlined in the above described DA will threaten to harm and
desecrate a possible eight (8) government registered Aboriginal
cultural heritage sites.
·
A full Cultural Heritage Assessment is expected to be completed as
the proposed activity is within 200metres of a permanent water course
where there is higher potential to find unregistered cultural
sites/material.
·
Impact on cultural fishing and gathering of resource material in the
Tweed region along the Tweed River.
·
The proposed development will have a negative effect on the ability of
Aboriginal people to continue with cultural fishing practices.
·
The proposal will have a negative impact on the river bank erosion,
seagrasses and fish stock. Ukerebagh Island is a declared Aboriginal
place and was recognised as such by the NSW Government, this
activity may also cause further damage to the already severely eroded
eastern bank of Ukerebagh Island. TBLALC is concerned that the
Aboriginal cultural sites and practices must be considered and
addressed by the applicant when considering this Development
Application.
The Office of Environment & Heritage supplied the following comment on 13 June
2013:
"Council should consider the following matters in its assessment of the
development application:
Disturbance from noise and wake generated by power boats has potential to
impact adversely on key shorebird roosting and feeding areas at Shallow
Bay, Tony's Bar and Wommin Lake, all of which lie between the boat ramp
and the bridge. Further, the western foreshore of the Tweed River is
generally unprotected by revetments and includes dredge spoil that is used
for high tide roosts that are highly prone to erosion from wave action.
A number of threatened shorebirds subject to international conservation
agreements such as the Japan and China Australia Migratory Bird
Agreements inhabit the area. These include Terek Sandpiper, Greater Sand
Plover, Pied and Sooty Oystercatchers, Black-tailed Godwit, Great Knot,
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Red-necked Stint, Sanderling, Beach Stone-curlew and several others. Little
Tern are known to roost on Tony's Bar and Ospreys also nest and feed in
the vicinity.
The 1999 Plan of Management for Ukerebagh Nature Reserve upstream
from the boat ramp has identified foreshore erosion along the eastern
shoreline to be of "particular concern" where the Coastal Saltmarsh
Endangered Ecological Community (EEC) appears at risk from such
erosion. Should the boat operation extend downstream from the boat ramp
then the important conservation values at Kerosene Inlet on Fingal Spit may
be similarly affected.
It is unclear from the information provided whether the proposal will extend
further upstream in future towards Condong and the Stotts Island Nature
Reserve. If so, then although impacts on wading bird habitat are likely to be
reduced due to the, steeper river banks and reduced tidal influence, erosion
from boat wake in the vicinity of the nature reserve would remain a
significant concern.
In addition to the above matters, OEH recommends that Council should
satisfy itself that this proposal will not result in any significant impacts upon
threatened species, populations, ecological communities, or their habitats,
as scheduled under the NSW Threatened Species Conservation Act 1995,
including the Coastal Saltmarsh EEC.
Should Council determine that significant impacts to threatened species
populations, ecological communities, or their habitats are likely, the matter
should be formally referred to OEH for issuing of Director-General's
requirements for the preparation of a Species Impact Statement.
Prior to determining the application, Council should also be satisfied that:
Page 246
·
The proposal is consistent with the provisions of the Protection of the
Environment Operations Act, 1997.
·
The proposal is not likely to cause impacts on areas of native
vegetation, with special reference to threatened or regionally
significant flora and fauna species, populations and ecological
communities.
·
The proposed development is consistent with the threatened species
provisions of the Environment Planning and Assessment Act, 1979,
State Environmental Planning Policy (SEPP) 71 – Coastal Protection
and the Native Vegetation Act, 2003.
·
An appropriate level of Aboriginal cultural heritage assessment has
been undertaken, and that the proposal is not likely to impact on areas
of cultural significance to the Aboriginal community. Also, it is
important that the views of Aboriginal community groups be sought in
regard to the proposed development.
·
Potential direct and indirect impacts on OEH estate, wilderness areas,
wild rivers and recognised areas of high conservation value have been
adequately considered.
·
The proposal is consistent with:
i)
The NSW Coastal Policy 1987, which has as its central focus the
ecologically sustainable development of the NSW coast;
ii)
The Estuary Management Policy, with the general goal to
achieve an integrated, balanced, responsible and ecologically
sustainable use of the State's estuaries, which form a key
component of coastal catchments;
iii)
The Coastline Hazard Policy 1988, with the primary objective to
reduce the impact of coastal hazards on individual owners and
occupiers, and to reduce private and public losses resulting from
natural coastal forces; and
iv)
Relevant Coastal Zone and/or Estuary Management Plans.
Your attention is also drawn to the Commonwealth Environment Protection
and Biodiversity Conservation Act 1999. If the proposal affects any species
requiring consideration under this legislation then approval may be required
from the Commonwealth Department of Sustainability, Environment, Water,
Population and Communities."
The proposed development is considered to raise a number of concerns with
respect to its potential impacts regarding the above. The applicant has not
submitted adequate information to enable Council officers to determine that the
proposal would not have an unacceptable impact and in this regard it is
recommended that the proposed development be refused.
NSW Transport Roads & Maritime Services were requested to provide any
comment within a specified time period. No response has been received with
respect to the proposed development.
(e)
Public interest
The proposed development is inconsistent with relevant environmental planning
instruments, Council policy requirements and Tweed River management plans.
The proposal is considered unsuitable and inappropriate for the subject site,
given its proximity to environmentally sensitive land, where such a proposal is
prohibited.
The proposal is considered likely to impact significantly upon the amenity of the
surrounding area and conflict with passive shore-based and water-based
recreational activities undertaken by locals and tourists within this area.
The application submitted is deficient in detail. However, sufficient information
has been submitted to determine that the nature of the proposal is unsuitable for
the site. This unsuitability is reflected in the proposal’s non compliance with the
statutory and strategic framework applicable to the application.
As such, the application is not considered to be in the public interest and is
recommended for refusal.
OPTIONS:
That Council:
1.
Refuse the application for the recommended reasons; or
2.
Grant in-principle support for the application and a report be submitted to the next
Council meeting with recommended conditions of consent.
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CONCLUSION:
Important operational and cumulative environmental issues have been identified during the
assessment of the proposal that warrant its refusal. Further, management plans produced by
Council and the Maritime Authority highlight the need to protect ecology and reduce erosion
within the vicinity of the Tweed River.
Accordingly, assessment of the proposal against the relevant statutory legislation and an
internal comment from the Natural Resource Management Unit has resulted in a
recommendation for the application to be refused.
a.
Policy:
Not Applicable.
c.
Legal:
The applicant has a right of appeal in the NSW Land and Environment Court if dissatisfied
with the determination.
Not Applicable.
Nil.
Page 248
26
[PR-CM] Development Application DA13/0397 for an Extension to Existing
Car Park at Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff and Lot 100 DP
1071633 No. 24-26 Pearl Street, Kingscliff
SUBMITTED BY:
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
Council is in receipt of an application for the development of a car park extension at the
above address. The proposal covers a total area of approximately 410m2 and would result in
an additional 25 spaces being provided to serve Kingscliff Shopping Centre.
This car park extension is to be located on land associated with St Anthony’s Primary
School and is currently utilised as an open, grassed play area.
The subject development application has been notified to surrounding properties, with a total
of 25 public submissions received. The application has been called up for determination to
the Council meeting by Councillor Byrne.
The proposed development is considered to demonstrate general compliance with the
relevant planning instruments and is recommended for conditional approval.
RECOMMENDATION:
That Development Application DA13/0397 for an extension to existing car park at Lot
2 DP 1059784 No. 16 Pearl Street, Kingscliff and Lot 100 DP 1071633 No. 24-26 Pearl
Street, Kingscliff be approved subject to the following conditions:
GENERAL
1.
Environmental Effects and Plan Nos N-T0056.01 Car Park Layout Plan, Typical
Cross Section and Details and N-T0056.01 Erosion and Sediment Control Plan
prepared by Opus and dated June 2013, except where varied by the conditions
of this consent.
[GEN0005]
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2.
Approval is given subject to the location of, protection of, and/or any necessary
approved modifications to any existing public utilities situated within or adjacent
to the subject property.
[GEN0135]
3.
The development is to be carried out in accordance with Councils Development
Design and Construction Specifications.
[GEN0265]
4.
An application shall be lodged together with any prescribed fees for the car park
including inspection fees and approved by Tweed Shire Council under Section
68 of the Local Government Act and should include any water, sewerage or
drainage works (including connection of a private stormwater drain to a public
stormwater drain or installation of erosion and sediment control works.)
[GENNS01]
5.
The proponent shall accurately locate and identify any existing sewer main,
stormwater line or other underground infrastructure within or adjacent to the
site and Council advised of its location and depth prior to commencing works
and ensure there shall be no conflict between the proposed development and
existing infrastructure prior to start of any works.
[PCW0005]
6.
All imported fill material shall be from an approved source.
Prior to
commencement of filling operations details of the source of the fill, nature of
material, proposed use of material and confirmation that further blending,
crushing or processing is not to be undertaken shall be submitted to the
satisfaction of the General Manager or his delegate.
[PCW0375]
7.
Prior to commencement of work on the site all erosion and sedimentation
control measures are to be installed and operational including the provision of a
"shake down" area, where required. These measures are to be in accordance
with the approved erosion and sedimentation control plan and adequately
maintained throughout the duration of the development.
In addition to these measures the core flute sign provided with the stormwater
approval under Section 68 of the Local Government Act is to be clearly
displayed on the most prominent position of the sediment fence or erosion
control device which promotes awareness of the importance of the erosion and
sediment controls provided.
This sign is to remain in position for the duration of the project.
[PCW0985]
8.
Prior to the commencement of works on the site an Acid Sulfate Soil
Investigation and Management Plan prepared by a suitably qualified consultant
is to be submitted to Tweed Shire Council for approval by the General Manager
or delegate. Note: The development is not considered minor works and
therefore Tweed Shire Council’s Acid Sulfate Management Plan for Minor Works
is not considered suitable for the management of Acid Sulfate Soil. An amended
copy of the Acid Sulfate Soil Management Plan for development consent
DA11/0085 for the previous extension of the car park on the same lots may be
submitted for consideration.
Page 250
[PCWNS01]
9.
Prior to commencement of work, a certificate signed by a practicing NPER civil
engineer is to be submitted to Council to certify compliance with consent
conditions 10-14.
10. Any car parking floodlighting shall not spill beyond the boundaries of the site.
Lighting shall comply with AS 4282 and other relevant Australian Standards. A
plan of the lighting shall be approved by Council PRIOR to the commencement
of works.
11. The developer shall provide 25 parking spaces including parking for the
disabled in accordance with Tweed Shire Council Development Control Plan Part
A2 - Site Access and Parking Code.
Full design detail of the proposed parking and manoeuvring areas including
integrated landscaping shall be submitted to Tweed Shire Council and approved
by the General Manager or his delegate.
12. All imported fill material shall be from an approved source. Details of the source
of fill, description of material, proposed use of material, documentary evidence
that the fill material is free of any contaminants and haul route shall be
submitted to Tweed Shire Council for the approval of the General Manager or his
delegate.
13. All fill is to be graded at a minimum of 1% so that it drains to the street or other
approved permanent drainage system and where necessary, perimeter drainage
is to be provided. The construction of any retaining wall or cut/fill batter must at
no time result in additional ponding occurring within neighbouring properties.
All earthworks shall be contained wholly within the subject land. Detailed
engineering plans of cut/fill levels and perimeter drainage shall be submitted
with a S68 stormwater application for Council approval.
14. Permanent stormwater quality treatment shall be provided in accordance with
the following:
(a)
A detailed stormwater management plan (SWMP) for the occupational or
use stage of the development is to be prepared in accordance with Section
D7.07 of Councils Development Design Specification D7 - Stormwater
Quality.
(b)
Permanent stormwater quality treatment shall comply with section 5.5.3 of
the Tweed Urban Stormwater Quality Management Plan and Councils
(c)
The stormwater and site works shall incorporate water sensitive design
principles and where practical, integrated water cycle management.
(d)
Specific Requirements to be detailed within the stormwater management
plan (SWMP):
(i)
Shake down area along the haul route immediately within the
proposed carpark.
(ii)
Runoff from all hardstand areas, (including car parking and hardstand
landscaping areas and excluding roof areas) must be treated to
remove oil and sediment contaminants prior to discharge to the public
realm. All permanent stormwater treatment devices must be sized
according to Council’s Development Design Specification D7 Page 251
Stormwater Quality, Section D7.12. Engineering details of the
proposed devices, including maintenance schedules, shall be
submitted with a s68 Stormwater Application for approval.
(e)
Roof water does not require treatment, and should be discharged
downstream of treatment devices, or the treatment devices must be sized
accordingly.
15. Erosion and Sediment Control shall be submitted to Tweed Shire Council for
approval of the General Manager or his delegate in accordance with the
following:
(a)
A detailed erosion and sediment control plan prepared in accordance with
Section D7.07 of Development Design Specification D7 - Stormwater
Quality.
(b)
Construction phase erosion and sediment control shall be designed,
constructed and operated in accordance with Tweed Shire Council
Development Design Specification D7 - Stormwater Quality and its
Annexure A - “Code of Practice for Soil and Water Management on
Construction Works”.
[PCWNS02]
16. Screen fencing detail and a landscaping plan for the interface between the
proposed car park and the school site is to be submitted and approved by
Council's General Manager or his delegate. The proposed landscaping is to
contain no noxious or environmental weed species and with a minimum
80% of total plant numbers comprised of local native species. The
proposed fencing design should screen the car park from the school and either
allow the free passage of flood water or be of a light construction such as timber
paling that will collapse as a result of any build up of floodwater or debris.
[PCWNS03]
DURING CONSTRUCTION
17. All proposed works are to be carried out in accordance with the conditions of
development consent, approved management plans, approved screen fencing
design, approved landscaping plan, drawings and specifications.
[DUR0005]
Council:
hours of work.
[DUR0205]
19. All reasonable steps shall be taken to muffle and acoustically baffle all plant and
equipment. In the event of complaints from the neighbours, which Council deem
to be reasonable, the noise from the construction site is not to exceed the
following:
A.
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level by more than 20dB(A) at the boundary of the nearest likely affected
residence.
B.
level by more than 15dB(A) at the boundary of the nearest affected
residence.
[DUR0215]
20. The use of vibratory compaction equipment (other than hand held devices)
within 100m of any dwelling house, building or structure is strictly prohibited.
[DUR0815]
21. No soil, sand, gravel, clay or other material shall be disposed of off the site
without the prior written approval of Tweed Shire Council General Manager or
his delegate.
[DUR0985]
22. The surrounding road carriageways are to be kept clean of any material carried
onto the roadway by construction vehicles. Any work carried out by Council to
remove material from the roadway will be at the Developers expense and any
such costs are payable to Council.
[DUR0995]
23. All work associated with this approval is to be carried out so as not to impact on
the neighbourhood, adjacent premises or the environment. All necessary
precautions, covering and protection shall be taken to minimise impact from:
·
Noise, water or air pollution.
·
Dust during filling operations and also from construction vehicles.
·
Material removed from the site by wind.
[DUR1005]
24. The burning off of trees and associated vegetation felled by clearing operations
or builders waste is prohibited. Such materials shall either be recycled or
disposed of in a manner acceptable to Councils General Manager or his
delegate.
[DUR1015]
25. All practicable measures must be taken to prevent and minimise harm to the
environment as a result of the construction, operation and, where relevant, the
decommissioning of the development.
[DUR1025]
26. Where the construction work is on or adjacent to public roads, parks or drainage
reserves the development shall provide and maintain all warning signs, lights,
barriers and fences in accordance with AS 1742 (Manual of Uniform Traffic
Control Devices). The contractor or property owner shall be adequately insured
against Public Risk Liability and shall be responsible for any claims arising from
these works.
[DUR1795]
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and Construction Specifications prior to the use of the car park.
[DUR1875]
28. All retaining walls in excess of 1.2 metres in height must be certified by a
Qualified Structural Engineer verifying the structural integrity of the retaining
wall after construction. Certification from a suitably qualified engineer
experienced in structures is to be provided to Council prior to the use of the car
park.
[DUR1955]
29. During construction, a “satisfactory inspection report” is required to be issued
by Council for all s68h2 permanent stormwater quality control devices, prior to
backfilling.
The proponent shall liaise with Councils Engineering and
Operations Division to arrange a suitable inspection.
[DUR2445]
USE
30. The use to be conducted so as not to cause disruption to the amenity of the
locality, particularly by way of the emission of noise, dust and odours or the like.
[USE0125]
31. The LAeq, 15 min noise level emitted from the premises shall not exceed the
background noise level (LAeq) in any Octave Band centre frequency (31.5 Hz 8KHz inclusive) by more than 5dB(A) between 7am and 12 midnight, at the
boundary of any affected residence. Notwithstanding the above, noise from the
premises shall not be audible within any habitable room in any residential
premises between the hours of 12 midnight and 7am weekdays and 12 midnight
and 8am weekends.
[USE0165]
32. All externally mounted artificial lighting, including security lighting, is to be
shielded to the satisfaction of the General Manager or his delegate where
necessary or required so as to prevent the spill of light or glare creating a
nuisance to neighbouring or adjacent premises.
[USE0225]
33. Upon receipt of a noise complaint that Council deems to be reasonable, the
operator/owner is to submit to Council a Noise Impact Study (NIS) carried out by
a suitably qualified and practicing acoustic consultant. The NIS is to be
submitted to the satisfaction of the General Manager or his delegate. It is to
include recommendations for noise attenuation. The operator/owner is to
implement the recommendations of the NIS within a timeframe specified by
Council's authorised officer.
[USE0245]
34. On completion of work, a certificate signed by a practicing NPER civil engineer
is to be submitted to Council to certify compliance with the consent and good
engineering practice.
35. Prior to use of the car park, all works/actions/inspections etc required at that
stage by other conditions or approved management plans or the like shall be
completed in accordance with those conditions or plans.
Page 254
36. Prior to use of the car park, the applicant shall produce a copy of the
“satisfactory inspection report” issued by Council for any s68h2 permanent
stormwater quality control devices.
[USENS01]
Page 255
REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Chen YU Pty Ltd
Trustees of the Roman Catholic Church for the Diocese of Lismore.
Sacred Heart Parish
Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff and Lot 100 DP 1071633
No. 24-26 Pearl Street, Kingscliff
3(b) General Business, 5(a) School
$40,000
Background:
Proposed Development
Council is in receipt of an application for the development of an at-grade car park extension
at the above address. The proposal covers a total area of approximately 410m2 and would
result in an additional 25 spaces being provided to serve Kingscliff Shopping Centre. The
development is to be undertaken on school land. The development area is grassed and
used as open play area for the school.
Under DA11/0085 approval was granted for the development of a 50 space car park, also
on school land, to provide staff car parking for the Kingscliff Shopping Centre. The subject
development area is to be utilised by Kingscliff Shopping Centre in a ‘right to occupy’
arrangement for a 20 year period with no actual changes to allotment configurations
proposed as part of this application.
Site Details
The subject application has been submitted over two allotments as follows:
·
Lot 2 DP 1059784 - This allotment is rectangular in shape and covers a total area of
approximately 0.53ha with road frontage to Pearl Street. This allotment is presently
developed with a residential property/church administration building to the roadside
(northern) boundary and a 50 space car park which covers approximately 1,390m2
associated with and accessed from Kingscliff Shopping Centre to the north-west. This
50 space car park was approved under DA11/0085 (see below). The remainder of this
allotment is grassed and forms part of an open area which, in addition to two other
allotments to the south east, comprises of St Anthony’s Catholic Primary School and a
Church. This allotment has a dual zoning, being 3(b) General Business and 5(a) Special
Uses- School. The proposed development would be located over both zones.
·
Lot 100 DP 1071633 - This lot covers a total area of approximately 1.8ha and is
developed with the Kingscliff Shopping Centre building, associated car parking and a
service station. No development works are proposed to this site, however the proposed
car park development would be associated with the shopping centre on this site and
accessed from this site.
History
The Kingscliff Shopping Centre site, which forms part of the application lots but is not subject
to any development works, has an extensive development history relating to alterations to the
building and change of uses within individual tenancies. These are not considered to be
specifically pertinent to the subject application.
As advised above, Lot 2 DP 105784 forms part of the larger St Anthony’s Catholic Primary
School site which demonstrates a development history related mainly to the development of
Page 256
school facilities. The following applications are considered to be of relevance to this
development application:
DA11/0085 - Carpark extension to Kingscliff Shopping Centre. Approved 8 June 2011.
This application relates to the development of 50 at-grade car parking spaces for the
shopping centre. The proposed 25 spaces as part of the current application would
represent an extension to this area.
DA13/0548 - Construction of brick walls for the purpose of internment of ashes
(Columbarium Garden) in association with the Catholic Church. Not yet determined.
Page 257
SITE DIAGRAM:
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Page 259
Page 260
Page 261
Act 1979:
(a)
(i)
2000+ Strategic Plan. The vision of the plan is “the management of growth so
that the unique natural and developed character of the Tweed Shire is retained,
and its economic vitality, ecological integrity and cultural fabric is enhanced”.
Clause 4 further aims to provide a legal basis for the making of a Development
Control Plan (DCP) to provide guidance for future development and land
management, to give effect to the Tweed Heads 2000+ Strategy and Pottsville
Village Strategy and to encourage sustainable economic development of the area
which is compatible with the Shire’s environmental and residential amenity
qualities. The subject development application is considered generally in keeping
with the above, and it is not considered likely to result in a reduction of amenity
for nearby residential properties or the shire as a whole.
Clause 5 aims to promote development that is consistent with the four principles of
ecologically sustainable development, being the precautionary principle,
intergenerational equity, conservation of biological diversity and ecological integrity
and improved valuation, pricing and incentive mechanisms. The proposed
development is considered to be generally consistent with the provisions of this
clause.
11) only if:
(a)
it is satisfied that the development is consistent with the primary objective of
the zone within which it is located, and
(b)
(c)
3(b) General Business zone
The primary objectives of this zone are:
Page 262
·
to provide business centres in which the community’s shopping, business,
welfare and social needs can be met.
·
to provide business locations within residential areas, and to ensure that the
scale and type of development is compatible with the character and amenity
of the surrounding residential areas.
The proposal is ancillary to the provision of a shopping centre and as such is
consistent with the primary objectives of the zone by providing ancillary service to
a business/shopping use in the area.
5(a) Special Uses
The primary objective of this zone is:
·
The landowner, in granting owners consent for the proposed development, is
considered to have identified this land as not being required for school
development and as such the proposed car park would be generally consistent
with the objective of the zone. It is noted that the proposal is permitted with
consent in this zone.
Other relevant clauses of the TLEP 2000 have been considered elsewhere in this
report and it is considered that the proposed development generally complies
with the aims and objectives of each.
The proposal is not considered to contribute to any unacceptable cumulative
impact in the community due to the permissible nature of the development at this
location. The proposal is considered to meet the provisions of Clause 8(a).
The subject development is partially located within both the 3(b) General
Business and 5(a) Special Uses zone.
·
to provide business centres in which the community’s shopping,
business, welfare and social needs can be met.
·
to provide business locations within residential areas, and to ensure
that the scale and type of development is compatible with the
character and amenity of the surrounding residential areas.
The secondary objectives of the 3(b) zone are:
·
to provide for tourist orientated development.
·
to encourage upper floor residential or tourist accommodation.
The proposed development is for a car park associated with Kingscliff Shopping
Centre and as such is considered to be compliant with the above objectives.
The primary objective of the 5(a) zone is:
·
The secondary objective of the 5(a) zone is:
·
to provide flexibility in the development of the land, particularly if it is
not yet or is no longer required for the relevant special use.
It is considered that the proposed development is consistent with the secondary
objective of this zone by virtue of its development for a use associated with the
adjoining shopping centre site.
Page 263
The primary objective of this Clause is to ensure that development does not occur
without adequate measures to protect the environment and the community’s
health. The subject site is adequately serviced with stormwater infrastructure.
Accordingly, the proposal complies with the provisions of this clause.
Clause 16 of the TLEP 2000 ensures development is undertaken in accordance
with the building height plan. The subject land is identified as being in an area
where development of up to three storeys is allowed. The proposed development
is for a car park to be constructed on ground level and does not contravene the
provisions of this Clause.
The subject development allotment displays both Class 2 and Class 5 acid sulfate
soils in accordance with this clause, with the majority of the proposed works
being undertaken on Class 2 land as identified on Council’s GIS mapping system.
This clause of the TLEP 2000 requires acid sulfate soils management in relation
to development where such is likely to be impacted upon.
The applicant has submitted a copy of Councils Acid Sulfate Soil Management
Plan for Minor Works as part of this application. The application was referred to
Council’s Environmental Health Section who have indicated that the Acid Sulfate
Soils Management Plan submitted by the applicant is not sufficient as it is likely
that the proposal would disturb more than 10 tonnes of soil (threshold for minor
works management plan).
It has however been considered that due to Council’s knowledge of the site
(through previous DA11/0085), adequate management of acid sulfate soils can
be implemented on the site. In particular, the following comment is provided from
Councils Environmental Health Unit:
"This demonstrates that the proposed works can suitably manage acid
sulphate soils issues as per the requirement of Clause 35 of the Tweed
Local Environmental Plan 2000. Given the above information, it is
considered appropriate that prior to the commencement of works that the
applicant is conditioned to provide to Council an ASS investigation and
management plan prepared by a suitably qualified person."
It is considered that subject to the implementation of an adequate condition of
consent as recommended, the proposal is acceptable in this regard.
Clause 34- Flooding
The objectives of this clause are:
•
to minimise future potential flood damage by ensuring that only appropriate
compatible development occurs on flood liable land.
•
to minimise the adverse effect of flooding on the community
The site is identified on Council’s mapping as being affected by the Probable
Maximum Flood (PMF) level and as being susceptible to the 1 in 100 year flood
level, with that level identified as 3.3 metres Australian Height Datum (AHD),
requiring a minimum habitable floor level of 3.8 metres AHD.
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The proposed development is for a ground level car park and will not generate any
habitable area. It is therefore considered that there is no requirement for a flood
refuge or high level evacuation route in this instance and that the proposal is
acceptable in this regard.
Under Part (2) of this Clause, Council must not grant consent to development of
flood liable land unless it has considered the following:
(a)
the extent and nature of the flooding hazard affecting the land, and
The extent and nature of the flooding hazard affecting the subject site is
identified on Council’s mapping as being affected by the PMF level and the 1
in 100 year flood level. Having regard to the proposed development of an atgrade car park extension, the proposal is considered to be an acceptable
development given the flooding constraints on the site.
(b)
whether or not the development would increase the risk or severity of
flooding of other land in the vicinity, and
The proposal is not considered to result in an increased risk of flooding of
other land in the area. The proposed development is for a ground level car
park and as such would have a minimal impact in terms of impeding or
displacing floodwaters in the area.
(c)
whether the risk or severity of flooding affecting the development could be
reasonably mitigated, and
It is not considered that the risk or severity of flood risk to this site, in
conjunction with the nature of the proposed development, requires that
mitigation measures be provided on the site.
(d)
the impact of the development on emergency services, and
Councils emergency services provisions with respect to flooding are
outlined under Section A3- Development of Flood Liable Land. Under this
plan Emergency Response Provisions are not required on this development
as it is not considered to represent a critical, sensitive or residential type of
development.
(e)
the provisions of Section A3—Development of Flood Liable Land of Tweed
Development Control Plan.
The application has been assessed with respect to DCP A3 elsewhere in
this report. It is considered that the proposal is in accordance with the
provisions of this DCP.
The subject application is considered to be acceptable having regard to the
requirements of Clause 34.
Clause 39A Bushfire Prone
The object of this Clause is “to minimise bushfire risk to assets and people and to
reduce bushfire threat to ecological assets and environmental assets”. The
proposed car park extension area is mapped as being located within the 30 to
100 metres vegetation buffer area.
The proposed development would not increase any buildings or structures aside
from the asphalt surface, and on this basis is not considered to increase the
threat of bushfire to the site or the locality. The use of the site itself does not
include any storage of combustible fuels.
On this basis the proposed
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development was considered to be acceptable with respect to the provisions of
this clause and referral to the New South Wales Rural Fire Service was not
considered to be necessary.
Clause 54 – Tree Preservation Order
Clause 54 of the TLEP 2000 relates to tree preservation order and aims to protect
vegetation for reasons of amenity or ecology. The subject site is identified as
being covered by the 2011 Tree Preservation Order (TPO) within the koala
habitat study area. This TPO relates to the following species only:
-
Swamp Mahogany Eucalyptus Robusta,
-
Forest Red Gum E. Tereticornis,
-
Tallowwood E. Microcorys,
-
Grey Gum E. Propinqua
The subject application does not require the removal of any significant vegetation
with the proposed development area, with this area being grassed only. As such,
the provisions of this clause are not contravened by this application.
The proposed development is considered to be generally acceptable having
regard to the provisions of the Tweed LEP 2000 and is acceptable in this regard.
Clause 32B of the NCREP is applicable to this proposal as the subject land falls
under the jurisdiction of the NSW Coastal Policy.
(a)
Council is required to consider the NSW Coastal Policy 1997 when assessing
applications for development to which the policy applies.
(b)
Council is also required to consider the Coastline Management Manual.
(c)
A consideration of the North Coast: Design Guidelines is required.
(d)
Public access to the foreshore must not be impeded. This proposal does not
restrict access to any public foreshore area.
(e&f) Council is required to consider whether the development would result in
overshadowing of beaches or adjacent open space.
The proposal is considered consistent with Clause 32B as it is deemed unlikely
that it will impede public foreshore access to the beach or result in significant
overshadowing of adjacent open space, given its distance from the coastal
foreshore. The proposal does not contradict the strategic aims of the NSW Coastal
Policy, the Coastline Management Manual or the North Coast: Design Guidelines.
The subject site is within the coastal zone (as per the NSW Government Coastal
Policy 1997) and as a result is subject to the provisions of State Environmental
Planning Policy No.71. Council is required to consider the matters under Clause
8 and the following comments are made for Council’s consideration.
Clause 8 – Matters for consideration
(a)
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the aims of this Policy set out in clause 2,
The proposal is considered to be generally consistent with the aims of this policy.
(b)
existing public access to and along the coastal foreshore for pedestrians or
persons with a disability should be retained and, where possible, public
access to and along the coastal foreshore for pedestrians or persons with a
disability should be improved,
The subject application does not impact upon any public access way to the coastal
foreshore. Furthermore, it is considered that the proposal does not offer any
opportunity for a formal access way to be created or improved.
(c)
opportunities to provide new public access to and along the coastal
foreshore for pedestrians or persons with a disability,
It is not considered that this application offers any opportunities to provide new
public access to the foreshore.
(d)
the suitability of development given its type, location and design and its
relationship with the surrounding area,
The proposal is considered suitable, having regard to its nature, scale and
permissibility in this area.
(e)
any detrimental impact that development may have on the amenity of the
coastal foreshore, including any significant overshadowing of the coastal
foreshore and any significant loss of views from a public place to the coastal
foreshore,
The proposed development is located over 100 metres from the foreshore and it is
considered that there will be no detrimental impact on the amenity of the foreshore,
or significant overshadowing or the loss of any views from a public place to the
foreshore.
(f)
the scenic qualities of the New South Wales coast, and means to protect
and improve these qualities,
The proposed development is not considered to have a negative impact on the
scenic qualities of the New South Wales coast.
(g)
measures to conserve animals (within the meaning of the Threatened
Species Conservation Act 1995) and plants (within the meaning of that Act),
and their habitats,
The proposal is not considered to impact negatively any animals or their habitats.
The subject site has been previously developed and cleared of significant
vegetation, with the development area currently grassed.
(h)
measures to conserve fish (within the meaning of Part 7A of the Fisheries
Management Act 1994) and marine vegetation (within the meaning of that
Part), and their habitats
The proposal will not have an adverse impact upon marine environments or
habitats.
(i)
existing wildlife corridors and the impact of development on these corridors,
It is considered that there are no wildlife corridors impacted by the proposed
development given the sparse nature of the landscaping on the site.
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(j)
the likely impact of coastal processes and coastal hazards on development
and any likely impacts of development on coastal processes and coastal
hazards,
The proposed development is not considered to have any significant impact of
development on coastal processes and coastal hazards.
(k)
measures to reduce the potential for conflict between land-based and waterbased coastal activities,
The proposal is not considered to cause any conflict between land-based and
water-based activities.
(l)
measures to protect the cultural places, values, customs, beliefs and
traditional knowledge of Aboriginals,
The subject development is not considered to impact on any traditional Aboriginal
cultural values.
(m) likely impacts of development on the water quality of coastal water bodies,
The subject application is not considered to have any significant impact upon the
water quality of coastal waterbodies.
(n)
the conservation and preservation of items of heritage, archaeological or
historic significance,
It is not considered that the proposal impacts upon the conservation or
preservation of any of the above items.
(o)
only in cases in which a council prepares a draft local environmental plan
that applies to land to which this Policy applies, the means to encourage
compact towns and cities,
(p)
only in cases in which a development application in relation to proposed
development is determined:
(i)
the cumulative impacts of the proposed development on the
environment, and
This development is not considered to have a significant cumulative impact on the
environment.
(ii)
measures to ensure that water and energy usage by the proposed
development is efficient.
Not applicable to the subject development application
It is considered the proposed development does not compromise the intent or
specific provisions of State Environmental Planning Policy No. 71 – Coastal
Protection.
(a)
(ii)
The Draft Tweed Local Environmental Plan 2012 (DTLEP 2012) is applicable
to the subject site.
Part 1 Preliminary
1.2 Aims of Plan
The aims of this plan as set out under Section 1.2 of this plan are as follows:
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(1)
This Plan aims to make local environmental planning provisions for land in
Tweed in accordance with the relevant standard environmental planning
instrument under section 33A of the Act.
(2)
The particular aims of this Plan are as follows:
(a)
to give effect to the desired outcomes, strategic principles, policies
and actions contained in the Council’s adopted strategic planning
documents, including, but not limited to, consistency with local
indigenous cultural values, and the national and international
significance of the Tweed Caldera,
(b)
to encourage a sustainable, local economy, small business,
employment, agriculture, affordable housing, recreational, arts,
social, cultural, tourism and sustainable industry opportunities
appropriate to Tweed Shire,
(c)
to promote the responsible sustainable management and
conservation of Tweed’s natural and environmentally sensitive areas
and waterways, visual amenity and scenic routes, the built
environment, and cultural heritage,
(d)
to promote development that is consistent with the principles of
ecologically sustainable development and to implement appropriate
action on climate change,
(e)
to promote building design which considers food security, water
conservation, energy efficiency and waste reduction,
(f)
to promote the sustainable use of natural resources and facilitate the
transition from fossil fuels to renewable energy,
(g)
to conserve or enhance the biological diversity, scenic quality,
geological and ecological integrity of the Tweed,
(h)
to promote the management and appropriate use of land that is
contiguous to or interdependent on land declared a World Heritage
site under the Convention Concerning the Protection of World
Cultural and Natural Heritage, and to protect or enhance the
environmental significance of that land,
(i)
to conserve or enhance areas of defined high ecological value,
(j)
to provide special protection and suitable habitat for the recovery of
the Tweed coastal Koala.
The proposed development is considered to be generally in accordance with the
aims of this plan having regard to its nature, permissible at this location.
1.4 Definitions
Under this Plan, the proposed development would be defined as ‘car park’ defined
as follows:
‘means a building or place primarily used for the purpose of parking motor
vehicles, including any manoeuvring space and access thereto, whether
operated for gain or not.’
This is permitted with consent in both the B4 and R1 zones.
Part 2
Permitted or prohibited development
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2.1 Land use zones
The proposed development area is zoned as B4 Mixed Use and R1 General
Residential under the provisions of this plan.
The objectives of the B4 Mixed Use zone are:
•
To provide a mixture of compatible land uses.
•
To integrate suitable business, office, residential, retail and other
development in accessible locations so as to maximise public transport
patronage and encourage walking and cycling.
The proposed development is considered to be consistent with the objectives of
the zone through the provision of a car park to service the needs of the adjacent
shopping centre which provides facilities and services to meet the day to day
needs of local residents.
The objectives of the R1 General Residential zone are:
•
To provide for the housing needs of the community.
•
To provide for a variety of housing types and densities.
•
To enable other land uses that provide facilities or services to meet the day
to day needs of residents.
•
To encourage the provision of tourist accommodation and related facilities
and services in association with residential development where it is unlikely
to significantly impact on amenity or place demands on services beyond the
level reasonably required for residential use.
The proposed development is also considered to be consistent with the
objectives of this zone through the provision of a car park to service the needs of
the adjacent shopping centre which provides facilities and services to meet the
day to day needs of local residents.
Part 5
Miscellaneous provisions
5.5 Development within the coastal zone
This clause of the draft LEP states that development consent must not be granted
to development on land that is wholly or partly within the coastal zone unless the
consent authority has considered the following:
(a)
existing public access to and along the coastal foreshore for pedestrians
(including persons with a disability) with a view to:
(i)
maintaining existing public access and, where possible, improving that
access, and
(ii)
identifying opportunities for new public access, and
The subject site is located away from the coastal foreshore and is not considered
to either offer opportunities with respect to new public access or impact upon any
existing public access at the coastal foreshore.
(b)
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the suitability of the proposed development, its relationship with the
surrounding area and its impact on the natural scenic quality, taking into
account:
(i)
the type of the proposed development and any associated land uses or
activities (including compatibility of any land-based and water-based
coastal activities), and
(ii)
the location, and
(iii)
the bulk, scale, size and overall built form design of any building or
work involved, and
The proposed development is permissible on the subject site and meets the
prescribed development requirements as outlined throughout this report. As such
the proposal is considered to be acceptable at this location.
(c)
the impact of the proposed development on the amenity of the coastal
foreshore including:
(i)
any significant overshadowing of the coastal foreshore, and
(ii)
any loss of views from a public place to the coastal foreshore,
The proposed development will not result in any overshadowing or loss of views
from a public place to the coastal foreshore.
(d)
how the visual amenity and scenic qualities of the coast, including coastal
headlands, can be protected, and
The proposed development is not considered to compromise the scenic qualities
of the coast as it represents an acceptable development on appropriately zoned
land. Beyond this, the subject development is not considered to generate any
specific opportunities to protect the visual amenity and scenic qualities of the
coast due to its nature, scale and distance from the coast and coastal headlands.
(e)
how biodiversity and ecosystems, including:
(i)
native coastal vegetation and existing wildlife corridors, and
(ii)
rock platforms, and
(iii)
water quality of coastal waterbodies, and
(iv) native fauna and native flora, and their habitats,
can be conserved, and
The proposal is to be undertaken on a site which has been previously cleared,
with the development located on grassed land only. It is considered that the
proposal will have a minimal impact on the local biodiversity or ecosystems in this
regard.
(f)
the cumulative impacts of the proposed
development on the coastal catchment.
development
and
other
The proposed development is not considered to result in an unacceptable
cumulative impact on the coastal catchment given the sites zoning and the
permissibility of the development at this location.
This clause goes on to further state:
(3)
Development consent must not be granted to development on land that is
wholly or partly within the coastal zone unless the consent authority is
satisfied that:
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(a)
the proposed development will not impede or diminish, where
practicable, the physical, land-based right of access of the public to or
along the coastal foreshore, and
As outlined elsewhere in this report, the proposal will not impede or diminish the
right of access of the public either to or along the public foreshore.
(b)
if effluent from the development is disposed of by a non-reticulated
system, it will not have a negative effect on the water quality of the
sea, or any beach, estuary, coastal lake, coastal creek or other similar
body of water, or a rock platform, and
The proposed development does not require effluent provisions due to its nature
as a car park. In any event, it is noted Councils reticulation sewer system is
available in this area.
(c)
the proposed development will not discharge untreated stormwater into
the sea, or any beach, estuary, coastal lake, coastal creek or other
similar body of water, or a rock platform, and
The subject application has been reviewed by Councils Development Engineering
Section with respect to stormwater drainage. It is advised that:
‘..the site will drain into an existing drain network located on 18 Pearl Street, the
LPOD (Legal Point of Discharge) will remain as it is from the DA11/0085, for
that site. The discharge points for these drains are located near the South of
property boundary for 18 Pearl Street Kingscliff.’
In this regard, the proposal is considered not to contravene the above controls
and satisfies the above clause.
(d)
the proposed development will not:
(i)
be significantly affected by coastal hazards, or
(ii)
have a significant impact on coastal hazards, or
(iii)
increase the risk of coastal hazards in relation to any other land.
The proposed development is considered to be acceptable having
regard to coastal hazards as outlined above due to its nature, scale,
and distance from coastal hazards.
The subject application is considered to be generally in accordance
with the provisions of the Draft LEP and would remain permissible
were the draft to be adopted in its current form.
(a)
A2- Site Access and Parking Code
The proposed development will result in the provision of an additional 25 car
parking spaces to service the existing Kingscliff Shopping Centre development.
These spaces are not to be assigned to any specific tenancy or use within the
shopping centre but are instead to ‘serve the purpose of providing for overflow car
parking.’
From this perspective the proposed development does not create a car-parking
demand on the site but instead aims to provide additional car parking spaces.
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The proposed car parking area is to be accessed from the Kingscliff Shopping
Centre site and does not propose any new access point to public road (Pearl St).
The application has been reviewed by Councils Development Engineering Section
with respect to access and parking with the proposed development considered to
be acceptable. In particular it is noted that:
A turning circle assessment is not required because the dimensions of the
driveway areas have not changed and the manoeuvrability assessment for
those areas was conducted for DA11/0085, which approved the car park.
The proposal is considered acceptable as the development application seeks to
provide additional spaces to the development and will be consistent with the aims
of this DCP.
As previously noted, the proposed development is located on land which is
indicated as being flood liable and as such the provisions of DCP A3 apply to the
site. The subject site has a flood level of 3.3m AHD with a design floor level of
3.8m AHD. In addition to this, the site is affected by the Probable Maximum Flood
level (PMF). Having regard to the nature of the proposed development, which is
not considered to be a critical, sensitive or residential development type, the
provisions of this DCP allow development below the design flood level providing
building materials and electrical equipment are flood compatible. The proposed
development is for a ground level car park and will not generate any habitable area
or electrical equipment provisions. The proposal is considered to be compliant with
this DCP.
Under the provisions of this DCP, the proposed development was required to be
notified to surrounding properties as it fell into the category of all development
except for advertisements and exempt/complying development in the 5(a) zone.
As such, the subject application was notified for a period of 14 days from 5 August
2013 to 19 August 2013. During this time approximately 25 submissions were
received, of which the issues raised are detailed elsewhere in this report.
DCP B4 – West Kingscliff
The proposed development is located on land contained within the area covered
by this Plan. The aim of this plan are as follows:
•
to set out objectives for the development of West Kingscliff;
•
to provide detailed guidance to those wishing to develop within the West
Kingscliff area and to indicate Council's policies with respect to that
development;
•
to provide guidelines for determination of the merits of developments within
West Kingscliff as required by Section 90(1)(a) of the Environmental
Planning and Assessment Act, 1979.
The proposal is considered to generally comply with the objectives of this plan, in
particular with those regarding the provision of an efficient traffic network, by
virtue of providing additional car parking to the existing shopping centre.
DCP B9 – Tweed Coast Strategy
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DCP B9 relates to the northern end of the Tweed Coast. The Plan sets
objectives for future development concentrating on public services and design
principals. The Vision Statement for this district identified at Clause B9.3.2 is:
To manage growth so that the unique natural and developed character of
the Tweed Coast is retained, and its economic vitality, tourism potential,
ecological integrity and cultural fabric are enhanced.
Policy Principles are identified at Clause B9.3.3, with characteristics to be
considered including the following which are of particular relevance to this
application:
Business and Tourism: Major tourist developments will be encouraged to
locate in the South Kingscliff locality. Other businesses will generally locate
in designated town centres where mixed land use developments will be
encouraged. The establishment of a regionally focussed business park
adjacent to the Pacific Highway at the northern end of Kingscliff will be
promoted.
The site is indicated as being in an Existing Urban Area under the provisions of
this DCP (Map 2- Structure Plan).
Under this map, the subject area is also indicated as forming part of a Local
Centre, which is envisaged to service a population catchment of up to 10,000
people. When considered the future requirements of the facilities in this area, in
particular the retail developments to serve this anticipated increase in demand, it
is considered that the provision of additional car parking is permissible to facilitate
this increase in demand on services in the area. The proposed development is
considered to be consistent with the policy principles of the DCP.
(a)
The proposed development is located within the area covered by the Government
Coastal Policy, and has been assessed with regard to the objectives of this
policy. The Government Coastal Policy contains a strategic approach to help,
amongst other goals, protect, rehabilitate and improve the natural environment
covered by the Coastal Policy.
It is not considered that the proposed
development contradicts the objectives of the Government Coastal Policy, given
its permissible nature on a site identified for development works.
(a)
(v)
This Plan applies to the Shire’s 37 kilometre coastline and has a landward
boundary that includes all lands likely to be impacted by coastline hazards plus
relevant Crown lands. The primary objectives of the Coastal Management Plan
are to protect development; to secure persons and property; and to provide,
maintain and replace infrastructure.
The proposed development is not considered to impact upon that coastline with
regard to demands and issues identified within the Plan for the whole of the
Tweed coastline (Clause 2.4.1) including: recreation; water quality; heritage; land
use and development potential; coastal ecology; and, social and economic
demand.
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The subject site is located within the Kingscliff- South Kingscliff Area identified
under the Plan at Clause 3.1.4. The subject site however is not directly impacted
upon by the issues identified for that area.
Under this plan, the subject site is not identified as having any key management
actions or specific management strategies. It is considered that the proposal is
consistent with the objectives of the Management Plan.
This Management Plan applies to the estuaries of Cudgen, Cudgera and Mooball
Creeks. Cudgen Creek is located approximately 660m south-west of the subject
development site, however the provisions of this plan are not considered to be
impacted by the subject development.
The subject site is not located within an area that is affected by the Coastal Zone
Management Plan for Cobaki and Terranora Broadwater.
(b)
in the locality
The proposed development is for a car park to serve an established shopping
centre. The car park will be accessed via the existing internal site configuration
which provides access to a public road at Pearl Street and Turnock Street. In this
instance, it is considered that the existing access arrangements to these roads
from the shopping centre are satisfactory to service the proposed development.
Amenity
The subject application has been reviewed by Councils Environmental Health Unit
with respect to amenity with the following noted:
The proposed works have the potential to cause noise and dust impacts at
adjacent premises during construction. However, it is considered that such
potential impacts may be managed by applying appropriate standard
conditions.
Having regard to the above, the proposed development is considered to be
acceptable with respect to amenity.
Free Play Area available to St Anthony’s Primary School
Council has received a number of submissions from members of the public during
the exhibition period for this Development Application. Many of these are from
parent of school children who attend St Anthony’s Primary School who have
concerns that the proposed development will reduce the open play space area
available to students on the site. The need for open space for these students is
highlighted in terms of its importance in promoting physical activity.
In this regard, it is noted that Council does not have a specific policy regarding the
provision of minimum play areas for school students. As such, the application was
discussed with the Regional Asset Planner from NSW Government Education and
Communities.
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‘Primary School Facilities Standards’ were forwarded to Council officers, however it
was noted that ‘these standards are design guides for new schools and upgrades’
and ‘our older schools may not comply.’ The landowner (Trustees of Roman
Catholic Church for Diocese of Lismore) who are responsible for the school have
demonstrated a degree of support for the application in granting landowners
consent to this application and St Anthony’s School as a Catholic School and
would not be subject to these standards.
In any event, it is noted that a school of this size (360 students) is recommended
to have a Free Play Area of 1ha (10,000m2). The applicants response to the
submissions received has indicated that there is approximately 17,600m2 of
children’s play area available on the school site after the proposed development is
taken into account.
From Council’s aerial imagery of the school site, it is considered that there would in
actuality be approximately 11,000m2 of area which could be designated as free
play area on the site, which would meet the NSW Government Education and
Communities optimal standards. In this regard, the proposed development is not
considered to reduce the amount of free play area on the site to an unacceptable
level.
(c)
Natural Hazards
As identified in the report above, the subject site is identified as being on land
prone to bush fire and flooding. The site is designated as bush fire prone buffer
area however given the development does not propose any buildings or structures
and does not increase fuel capacity it is considered that the site is suitable for the
proposed car parking.
In addition to this, the proposal, whilst located on land prone to flooding, does not
contain any habitable area and as such is considered suitable for the proposed
development.
(d)
Development Proposals for a period of 14 days between 5 August 2013 and 19
August 2013. During this time, 24 submissions were received, with a late
submission also received.
Issues raised within the submissions are varied. A summary of the issues is
provided below along with any response provided by the applicant following
receipt of submission copies. The majority of these submissions appear to be
submitted by parents/guardians of school students with concerns associated with
the reduction of play space at the school.
The strip of land proposed for the car park
extension is currently utilised as an informal
grassed school playground space.
The objections seek to have Council refuse
the application on the grounds that the
removal of the area associated with the
proposed car parking will reduce the amount
of the children's play area to unacceptable
levels and that the area being taken is the
best land for this purpose due to drainage.
Many submissions have raised concerns
regarding the loss of play area for the school
students, which it is submitted will impact on
their development.
It is further advised through many submissions
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The proposal will see the school retain
2
17,600m of children's 'play area'. A review
that the area to be developed represents the
best quality play area on the site, with other
areas experiencing drainage problems around
wet periods (one submission states alternative
area is ‘always unusable’).
by the school and Diocese indicates this area
is ample to meet the play area requirements
for the school.
Extracts from various research studies are
provided which outline the importance of
outdoor play areas.
Furthermore, drainage works are to be
undertaken to enable those 'play areas'
which currently become unusable after rain
to be used without constraint.
The proposal will provide a net increase in
usable open space for the school through the
drainage works. The objections based on the
loss of play area are inconsistent with the
facts of the proposal and cannot be
sustained.
Council Officer assessment
It is noted that the proposed development will
2
result in the loss of approximately 410m of
grassed area which forms part of the informal
school play area at the development location.
As noted elsewhere in this report, it is
considered that the subject development
would maintain an acceptable amount of free
play space given the number of students in
attendance on the site.
In terms of play area quality, the applicant
has advised that ‘it is the intention of the
school to address the drainage issues on the
'play area' that is currently unusable after
rain.’
Refusal of the development application is not
considered to be warranted based on this
issue. Any further applications which would
erode play area available to the school would
be assessed on their individual merits.
The continuing encroachment of the car park
into prime playground space will be detrimental
to the school students and will increase car
park noise in the junior school classrooms.
The area of car parking currently located
adjacent the school is predominately used for
staff parking and sees a minimal amount of
vehicle movements per day. The proposed
additional parking is to be used for a similar
purpose and will not alter the existing use
patterns of the parking area. The proposal is
unlikely to result in an increase in noise. The
objections received seeking to have Council
refuse the proposal due to significant noise
increases is not consistent with the facts of
the proposal and cannot be sustained.
The proposed development will result in an
encroachment of the existing car park for the
length of a single car parking space (approx
5.6m) at the south-east of the shopping
centre.
From Councils aerial imagery, it appears that
the proposed spaces will be located
approximately 50m from the main school
Page 277
buildings. At present there are car parking
spaces located approximately40m from these
school buildings. Furthermore, it is noted that
Pearl St, a public road, is located adjacent to
the school site which would generate greater
vehicular noise.
In any event the school is located in an urban
area which is subject to development works
being undertaken and noise from the
surrounding vehicular network. The proposed
development does not warrant refusal in this
regard.
Many of the submissions highlight a lack of
consultation with the parents of students who
attend the school.
The applicant has not provided a response to
this issue.
The submissions do not identify if this lack of
consultation is directed at Councils public
exhibition process or to the landowners
(Diocese of Lismore) consultation with
parents of school children.
In any event, it is noted that the application
was notified to surrounding properties as
required by the provisions of DCP A11 and
met all statutory requirements in this regard.
Advertisement of the DA was not considered
warranted.
Consultation
between
landowner
and
external parties is not a planning
consideration. The proposed development
does not warrant refusal in this regard.
Public safety concerns are raised with
anecdotal reports from children of people
loitering in the car parking area. This is stated
as potentially exposing school children to
inappropriate behaviour.
this issue
Council is requested to reject this application
based on social and economic impacts and the
application not being in the public interest as
well as its impact on the natural and built
environment under the Environmental Planning
and Assessment Act Section 79C Assessment.
The objections seek to have Council refuse
the application on the grounds that it is not in
the public interest. The broad assertions
made that the proposal is not in the public
interest cannot be sustained when all facts
and elements are reviewed.
This is considered to raise a public safety
concern as opposed to a land-use planning
issue and is a matter for the police.
As discussed above the proposal will
maintain 17,600m' of play area for the
school, will see a net increase in the play
area which is unconstrained from water
logging, will not limit or prevent ongoing
development of the school and its facilities
and the income generated will greatly assist
the St Anthony's Parish community in its
entire pastoral works.
It is for these reasons that the school and
Diocese are in support of the proposal, refer
attachment B for a copy of letter provided by
Page 278
the Most Rev. Geoffrey H. Jarrett the Bishop
of Lismore. The proposal is in the public
interest and is warranting of Councils
support.
The proposed development has been subject
to assessment under the provisions of
Section 79C of the Environmental Planning
and Assessment Act, as outlined throughout
this report. It is considered that the proposal is
generally acceptable and does not warrant
refusal in this regard.
Reduction of the land area of the school may
restrict development of the school.
The school has been discussing the
development of a pre-school within the
grounds; however the proposed development
will result in there being insufficient space.
The school and Diocese are in support of the
proposal. The school and Diocese are those
best placed to judge what impact using the
small area of land for car parking purposes
will have on the future development of the
school. The school and Diocese support the
application and have made the determination
that the proposal will not impact or prevent
their ongoing development of the school and
its facilities.
The objections submitted seeking that
Council refuse the application because it will
prevent the future development of the school
are not founded on the full knowledge of the
school and its operations (such information is
only available to the school and Diocese) and
cannot be sustained.
It is not considered appropriate to refuse this
application with respect to notional future
development of the site.
Any future development of the school site
would need to be undertaken having regard
to the applicable development standards.
Reduction of outdoor play area may impact on
outside school hours care services that
operate from the school.
this issue.
The reduction of play area has been
discussed in greater detail above, with it
being determined that the proposal does not
warrant refusal in this respect.
It is advised that recent federal funding
changes has meant that the proposed
development is no longer required by the
school from a funding perspective.
this issue.
This is not considered to raise a substantive
planning issue which warrants the refusal of
this application.
It is stated that a new supermarket
development in the area (Cabarita/ Casuarina)
means there is sufficient supermarket parking
this issue.
Page 279
in the area.
Sustainable transport policies are contained
within the relevant Council policies applicable
to the site. In this regard, it is noted that the
proposed development, as a stand-alone
application is not in itself inconsistent with the
relevant policies and does not warrant refusal
in this regard.
It is further stated that by providing additional
spaces, sustainable transport patterns are not
being promoted.
Furthermore,
car
parking
for
other
developments is not considered to raise a
substantive planning issue which warrants
the refusal of this application.
Concerns that the Church is trying to raise
money to pay for a new school at Pottsville, at
the expense of St Anthony’s School children
wellbeing.
this issue.
This is not considered to raise a substantive
planning issue which warrants the refusal of
this application.
It is stated that this is the second strip of land
to be developed for the purpose of a car park
extension at this location.
this issue.
Under DA11/0085 a car park extension to
Kingscliff Shopping Centre was approved on
8 June 2011 on the subject development
allotment. This comprised of 50 spaces and
covered a total area of approximately
2
1,390m .
This application was assessed on its merits
and notified to surrounding properties, similar
to
the
application
currently
under
assessment.
In this regard, the previous approval on the
site of a car park development does not
warrant the refusal of this DA.
The applicant has also provided the following
comment with respect to the proposed
development:
‘The proposed development has
received twenty five (25) separate
submissions objecting to the proposal.
It is noted a number of the
submissions indicated that the car
parking is to be leased to Woolworths,
this is incorrect and it is the owners of
the Kingscliff shopping centre Chen Yu
Pty Ltd that are seeking to occupy this
area.
There are currently 360 students
attending the school, the receipt of 25
objections from a school population of
this size should be considered in the
appropriate context. The submissions
received represent a small proportion
of the school community and the
assertions that the 'school' does not
Page 280
support the proposal made within
many of submissions cannot simply be
taken as fact.
The school and Diocese are in support
of the proposal. As outlined the school
2
grounds currently provide 17,600m
(after the removal of the 410m2 of
area proposed for car parking) of land
assigned as 'play area'.
As part of the car park construction
works it is the intention of the school to
address the drainage issues on the
'play area' that is currently unusable
after rain, The proposal will provide a
net increase in the usable 'play area' of
the school.
The income generated by the proposal
will greatly assist the St Anthony's
Parish community in its entire pastoral
works. This will provide for broader
third party benefits to the local
community.’
It is considered that the subject development is generally acceptable and in
accordance with the relevant legislative framework. The issues raised in these
submissions are not considered to warrant refusal of the application.
(e)
Public interest
The proposed development is considered to be consistent with the relevant
legislative policies as outlined in this report. Subject to appropriate conditions of
consent, it is considered that the proposal is not considered to result in a significant
negative impact on the public interest.
OPTIONS:
1.
Approve the development application; or
2.
Refuse the development application for specified reasons.
CONCLUSION:
The subject application seeks consent for the creation of an extension to the existing car
park associated with Kingscliff Shopping Centre. The above assessment is considered to
demonstrate that the proposal is generally acceptable with respect to the appropriate
legislative considerations. It is therefore recommended that this development application be
approved.
a.
Policy:
Page 281
Not Applicable.
c.
Legal:
Not Applicable.
Not Applicable.
Nil.
Page 282
27
[PR-CM] Development Application D90/0436.07 for an amendment to
Development Consent D90/0436 for the Erection of a Tavern and Nine
Shops at Lot 171 DP 629328 No. 28-40 Overall Drive, Pottsville
SUBMITTED BY:
FILE REFERENCE: PF3975/145 Pt8
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
Updated Information
Council at its meeting of 17 October 2013 resolved as follows:
"RESOLVED that Development Application D90/0436.07 for an amendment to
Development Consent D90/0436 for the erection of a tavern and nine shops at Lot 171
DP 629328 No. 28-40 Overall Drive, Pottsville be deferred to a Workshop."
A Councillors Workshop was held on 29 October 2013 to further discuss this application.
The report is now submitted to Council for its further determination.
Previous Report
Council is in receipt of a S96(1A) modification application to extend the trading hours of the
Pottsville Tavern. The existing hours for the Tavern are 10.00am to 10.00pm seven days a
week. The applicant has requested the hours to be modified to:
·
Sunday to Thursday – 10.00am to 10.00pm;
·
Friday & Saturday – 10.00am to 12.00 Midnight;
Variation of the above hours are permitted for a maximum of six (6) times per year with
the written approval of the General Manager, or delegate, of Tweed Shire Council
within the 12 month period.
Council have previously approved these hours of operation subject to appropriate ‘Plan of
Management’ measures to mitigate impacts on the surrounding area for a 12 month trial
period. This trial period has not been carried out as the tavern operator has as yet to gain a
variation to the liquor licence to trade beyond 10pm.
The applicant has proposed permanent ameliorative measures in order to allow these hours
of operation on a permanent basis.
Page 283
Council staff do not support the permanent extension of hours proposed by the applicant.
However, an extension of hours to midnight for Friday and Saturday nights is considered
acceptable, subject to appropriate conditions and mitigation measures, including the
provision of a reviewable condition of consent which would be reviewed after 12 months or
upon receipt of a valid complaint, after the extended trading hours commence.
The proposal was advertised for a period of 14 days, during which time seven submissions
and one petition (27 signatories) opposed to the proposal were received. One late
submission has also been received. These are detailed later in this report.
RECOMMENDATION:
That Development Application D90/0436.07 for an amendment to Development
Consent D90/0436 for the erection of a tavern and nine shops at Lot 171 DP 629328
No. 28-40 Overall Drive, Pottsville be approved and the consent be amended as
follows:
1.
Condition No. 10A is to be deleted and replaced with Condition No. 10B which
reads as follows:
10B. Hours of operation:
Sunday to Thursday – 10.00am to 10.00pm
Friday and Saturday – 10.00am to 10pm
Variation of the above hours are permitted for a maximum of six times
per year with the written approval of the General Manager, or delegate,
of Tweed Shire Council.
Notwithstanding this condition, please see condition No 29 regarding the
reviewable condition.
2.
Condition No. 20 is to be deleted and replaced with Condition No. 20A which
reads as follows:
20A. The Tavern shall operate in accordance with the Environmental Noise
Impact Report prepared by CRG Acoustical Consultants dated 23 July
2013. All mitigation works shall be completed prior to commencement
of extended trading hours.
3.
The following new Conditions are to be added:
27. An updated Plan of Management shall be submitted and approved to
the satisfaction of the General Manager or delegate within three
months of the date of this consent.
28. Notification shall be provided within seven days of the commencement
of extended hours of trading accompanied by a compliance audit
report against the operational conditions of the consent inclusive of
the plan of management.
29. Reviewable Condition
This consent is subject to a reviewable condition under Section 80A of
the Environmental Planning and Assessment Amendment Act. The
reviewable condition relates to a condition that permits extended
hours of operation. The purpose of this condition is to enable Council
Page 284
to monitor potential impacts associated with extended hours of
operation at this site on the surrounding area and, if appropriate, to
revert the development consent to its previously approved hours of
operation.
Extended trading is permitted on Friday and Saturday until 12 Midnight
subject to this condition being reviewed by Council after 12 months or
upon receipt of a complaint that Council deems to be reasonable from
the date the extended trading hours commence.
Council is to provide not less than 14 days written notice to the
operator of the development that a review is to be carried out under
this condition. Where requested by Council, the proponent is to
submit a compliance audit against the operational conditions of the
development consent, including the plan of management and noise
audit report. Council may notify such other persons as it thinks fit of
the review, and must take into account any submissions received
within 14 days after notice is given.
Please note see Condition No 10B.
Page 285
REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Pottsville Tavern
Premium Custody Services Pty Ltd
Lot 171 DP 629328 No. 28-40 Overall Drive, Pottsville
3(b) General Business
Not Applicable
Background:
Council records indicate that consent was granted for the construction of a tavern and nine
shops on 21 January 1991. The approved hours of operation for the tavern were restricted
to 10.00am to 10.00pm.
Amended consents were issued on 14 February 1991, 24 May 1991 and 25 January 1994.
These did not modify the approved trading hours for the tavern. A Hotel Liquor Licence was
issued in November 1999. The licence limits the tavern’s trading hours to 10.00am 10.00pm (as per the abovementioned approval), subject to conditions.
An application to modify the hours of operation of the original consent was lodged in July
2001. The proposed hours of operation were:
·
·
·
Mon – Sat 8.00am to 11.00pm;
Sunday 10.00am to 10.00pm; and
Christmas Day/ Good Friday 12 noon to 10.00pm.
The modification to extend the approved trading hours was considered to result in an
increase in adverse impacts on the surrounding residents and was subsequently refused by
Council on 19 December 2001.
An additional Section 96 application was lodged (D90/0436.04) in December 2005. The
proposed trading hours were:
·
·
Mon – Thurs and Sun 10.00am to 10.00pm; and
Fri, Sat and public holidays 10.00am to 12 midnight.
The proposed trading hours were for an initial 12 month time frame from the date of the
approved amended consent. The modification to increase the trading hours was refused on
19 April 2007, as a result of potential for increased community disturbances by noise and
activities of patrons leaving the premises.
The applicant then lodged a Class One Appeal with the Land and Environment Court in
June 2007. Council resolved to engage solicitors to act on Council’s behalf and defend the
appeal. The applicant discontinued the appeal in July 2007.
A further Section 96 application was received (D90/0436.05) in December 2009 with respect
to extending the hours of operation of the Pottsville Tavern. Under this application, Council
amended the consent to allow the following hours of operation for a maximum period of 12
months from the date of this amended consent (20 May 2010):
Friday and Saturday – 10.00am to 12.00 Midnight
Page 286
the written approval of the General Manager, or delegate, of Tweed Shire Council
within the 12 month period.
Following the lapse of the 12 month period the hours of operation shall be restricted to
10.00am to 10.00pm.
Any further application for the variation of hours of operation outside of 10.00am to
10.00pm shall be prepared by a suitably qualified person and accompanied by a noise
impact assessment in accordance with AS 1055 Acoustics – Description and
measurement of environmental noise, the Noise Guide for Local Government June
2004 and any other relevant and accepted guideline.
Additional conditions of consent were also amended in order to provide mitigation measures
for any potential noise impacts arising from the amended hours of operation. It is noted that
this 12 month trial period was not completed, with NSW Police advising that NSW Office of
Liquor, Gaming and Racing (OLGR) denied an application to trade in line with the operating
hours approved under D90/0436.05.
On 22 November 2011, Council received an application to remove the 12 month trial period
element of this condition, however Council received correspondence indicating that approval
from the Casino, Liquor & Gaming Control was not obtained in relation to an extension of
hours of operation on the liquor licence and as such the 12 month trial period had not taken
place. This application was subsequently withdrawn as Council officers advised the
applicant that the extended hours of operation would not be supported without a suitable
trial period being undertaken.
P ROP OS ED DEVELOP MENT:
Tweed Shire Council has received an application under Section 96(1A) of the Environmental
Planning and Assessment Act 1979 proposing to modify the approved trading hours of the
Pottsville Tavern at 28-40 Overall Drive, Pottsville (Lot 171 DP 629328).
This application seeks to permanently implement the operating times outlined under the
D90/0436.05 approval, with the exception of the 12 month limited period outlined in
condition No.10A. It is proposed to provide ameliorative measures, including noise barriers
adjacent to existing outdoor areas of the Tavern, which the applicant states will ensure there
will not be adverse impacts on surrounding residents. The proposal is supported by an
Environmental Noise Impact Report, which includes recommended noise mitigation
measures.
As such, revised condition 10A would outline the following hours of operation:
Friday and Saturday – 10.00am to 12.00 Midnight
the written approval of the General Manager, or delegate, of Tweed Shire Council.
The application was advertised for a period of 14 days from Wednesday 10 April 2013 to
Wednesday 24 April 2013. During this time, seven submissions and one petition (27
signatories) opposed to the proposal were received. The application was also forwarded to
the NSW Police for comment.
Councils Environmental Health Unit have reviewed the subject application and advised that
the request to vary hours of operation is not supported as proposed as it has been
insufficiently demonstrated that a trial period was conducted and therefore the impact on the
surrounding community can not be adequately assessed. It is recommended that a
Page 287
reviewable condition of consent be applied to an approval to ensure the operators can
adequately demonstrate that by adopting noise mitigation measures and satisfactory
operational practices, impacts can be managed. Should this not occur the extended hours
of operation would not be permitted to continue.
Page 288
SITE DIAGRAM:
Page 289
Considerations under Section 79C of the Environmental Planning and Assessment
Act 1979:
(a)
(i)
2000+ Strategic Plan. The proposed amendments are considered to meet the
provisions of Clause 4.
Clause 5 - Ecologically Sustainable Development (ESD)
Clause 5 of the LEP relates to ecologically sustainable development. The TLEP
aims to promote development that is consistent with the four principles of
ecologically sustainable development, being the precautionary principle,
intergenerational equity, conservation of biological diversity and ecological
integrity and improved valuation, pricing and incentive mechanisms.
The proposed amendments are not considered to significantly impact upon the
ESD principles of this development. It is considered that the proposal will
therefore be in accordance with Clause 5 of the LEP.
11) only if:
(a)
(b)
(c)
As noted above, the proposed modifications are considered to result in a
development which is consistent with the primary objective of the 3(b) zone,
subject to conditions of consent.
Other relevant clauses of the TLEP have been considered elsewhere in this
report.
Council’s Development Assessment Unit is satisfied that the proposed
development would not have an unacceptable cumulative impact on the locality
or the community as a whole, subject to appropriate mitigation measures being
acted upon and the inclusion of a reviewable condition of consent with respect to
the hours of operation. As such, the proposal is considered to meet the
provisions of Clause 8 of the LEP.
Clause 11 of the LEP relates to zone objectives. The subject land is zoned 3(b)
General Business under the provisions of the LEP. The primary objective of the
zone is to:
Page 290
•
to provide business centres in which the community’s shopping,
business, welfare and social needs can be met; and
•
to provide business locations within residential areas, and to ensure
that the scale and type of development is compatible with the
character and amenity of the surrounding residential areas.
A tavern is defined as a Hotel, which is permissible with consent under the
provisions of the Tweed LEP 2000. The proposed modifications are considered
to be consistent with the objectives of the zone, subject to conditions of consent.
If all applicable mitigation measures included in the Environmental Noise Impact
Report are acted upon and relevant conditions of consent are imposed, the
proposal is considered to result in a development which is consistent with the
objectives of the zone.
Placing a reviewable condition on the consent is considered to be a reasonable
method of allowing Council to determine if the proposal will impact upon
surrounding residents over a period of time.
(b)
in the locality
Hours of Operation
The applicant has noted the following:
"This application is being prepared at the request of new owners and
subsequent to the carrying out of a new acoustic assessment that attempts
to address the matters previously raised by Council and the impacts that the
Hotel operation has on adjoining residences.
This application seeks to permanently implement the operating times with
the exception of the 12 month limited period outlined in condition No.10A. In
this regard, this application also seeks approval for permanent ameliorative
measures that render a limited time period or trial period, unnecessary.
These ameliorative measures, as recommended in the attached Acoustic
report, will ensure that the increase in operating hours will only occur in the
knowledge that doing so will not create any adverse impacts upon
surrounding residents. We note that the ameliorative measures proposed do
not seek to implement 3m high barriers on the boundary of the subject land,
rather, it seeks to place them on areas immediately surrounding the existing
outdoor areas, therefore again limiting impacts on adjoining residences."
Comment:
As a result of Council officer concerns with respect to the impact of the proposed
operating hours on the surrounding area, the applicant’s proposal to permanently
implement the operating hours without a trial period is not supported. Councils
Environmental Health Unit has provided the following advice in this regard:
"However proposed noise mitigation works include the construction of
permanent barriers surrounding the external areas that may be cost
prohibitive should a further 12 month restriction be placed upon the consent.
To off-set the concerns raised by the surrounding community a reviewable
could be imposed to ensure the operators can adequately demonstrate that
by adopting noise mitigation measures and satisfactory operational
Page 291
practices impacts can be managed and should this not occur the extended
hours of operation would not be permitted to continue."
Under the Environmental Planning and Assessment Amendment Act provisions for
reviewable conditions were introduced within Section 80A with the criteria specified within
subsections (10B) to (10E). This outlines the following:
(10B) Review of extended hours of operation and number of persons permitted
A development consent that is granted subject to a reviewable condition may be
granted subject to a further condition that the consent authority may review that
condition at any time or at intervals specified by the consent and that the
reviewable condition may be changed on any such review.
(10C) The regulations may make provision for or with respect to the kinds of
development that may be subject to a further condition referred to in subsection
(10B), the matters that must be included in such a condition and the procedures
for a review under such a condition.
(10D) A decision by a consent authority to change a reviewable condition on a review is
taken to be a determination of a development consent for the purposes of this
Act.
Note. A review application or an appeal against a determination of a development consent may be
made under this Division or Division 8.
(10E) For the purposes of subsections (10B)–(10D), a reviewable condition means
any of the following:
(a)
a condition that permits extended hours of operation (in addition to other
specified hours of operation),
(b)
a condition that increases the maximum number of persons permitted in a
building (in addition to the maximum number otherwise permitted).
The subject application has also been forwarded to NSW Police for comment, who have
advised that the venue management had made application to the NSW Office of Liquor,
Gaming and Racing to change the trading hours of the venue to be able to trade in line with
the operating hours approved under D90/0436.05. The application was denied, and
therefore a trial of the above hours could not have been undertaken. NSW Police could
therefore not comment on the venue’s affect on the community during the trial period. The
Police had not opposed the variation however conditions had been sought, which have been
taken into account in the amended conditions of this consent.
Councils Environmental Health Units recommendations are considered to represent a
reasonable outcome with respect to the proposed amendment as it allows the tavern to
operate extended opening hours and it also protects the surrounding community from
possible negative impacts associated with same by maintaining the potential to revert the
hours of operation through a reviewable condition of consent.
Noise Impact
The most recent Environmental Noise Impact Report (prepared by CRG Consultants, dated
23 July 2013) submitted as part of this application recommends that the following acoustic
treatments and management principles be incorporated at the tavern to allow operation until
midnight:
·
Page 292
The "Plan of Management" be updated to include the requirements of this
acoustic report (refer to the previous "Plan of Management" in Appendix B) and
be maintained for the Tavern.
·
Recommended 3.0m high acoustic barriers around the perimeters of the outdoor
areas of the tavern.
·
The southern 1.8m high acoustic fence along the common boundary with the
residential dwellings along Windsor Court should be upgraded (if required) and
maintained as a 1.8m high acoustic barrier which is free of gaps and holes.
·
The carpark gates along the western boundary (fronting Royal Drive) be closed at
10pm.
·
No alcohol is to be consumed in the carpark area.
·
Maintain a Neighbourhood Complaints Register.
·
Amplified music and live entertainment be allowed inside the building up to
midnight provided external windows and doors are kept closed. A maximum level
of 91 dB(A) measured at 3m from any speaker would allow for a solo or duo act
under moderate amplification.
·
A sound limiter device be installed for amplified music and live entertainment to
the levels presented below. The levels are measured at 3m from any speaker.
All musical equipment should be connected to the sound limiter device.
Amplified entertainment
inside building with windows
and doors closed
Predicted allowable noise
source level until midnight
(measured at 3m)
SPL Hz Octave Band Centre Frequencies dB(A)
31.5
63
125
250
500
1000
2000
4000
8000
AP
50
59
69
76
85
88
79
80
74
91
·
Speakers for amplified music or live entertainment should be directed towards the
north (i.e. towards the Bottle shop drive-through) away from the nearest dwellings
to the south.
·
The south-western and north-western car spaces should be designated staff
spaces to minimise the number of car movement events from these spaces.
·
Appropriate signage should be erected at the main entry/exit doors asking
patrons to be considerate of surrounding neighbours.
·
Staff of the tavern should be diligent in maintaining acceptable activities and
noise levels at the outdoor areas of the tavern.
·
Provide a security person in the carpark after 10pm to maintain acceptable
activities in the carpark (i.e. noise boisterous activity or drinking or congregating
of patrons).
·
New mechanical equipment (if required) be designed and installed to comply with
applicable noise criterion. If new mechanical plant is required it should be
positioned as far from the nearest offsite dwellings as possible (i.e. the northeastern comer of the building).
Comment:
Council’s Environmental Health Unit has reviewed the Environmental Noise Impact Report
prepared by CRG Acoustical Consultants dated 23 July 2013 and advised that the report
appears to have been prepared in accordance with the NSW Industrial Noise Policy and has
addressed outstanding concerns. In this regard, the proposed mitigation measures
contained within the report are considered to be generally acceptable, however a trial period
Page 293
is to be undertaken through a reviewable condition of consent which would allow monitoring
of the site for a minimum of a 12 month timeframe to determine noise impacts.
CONSIDERATIONS UNDER SECTION 96 OF THE ENVIRONMENTAL PLANNING AND
ASSESSMENT ACT 1979:
Substantially the Same Development
The proposed modification is essentially the same development as originally approved, with
the proposed amendments relate to the hours of operation and are not considered likely to
result in any significant changes to the originally approved development.
Likely Environmental Impact
The proposed amendments to the approved development are not likely to result in any
significant impact upon the surrounding area, as noted in the section 79c assessment
above. The proposed amendments are therefore not considered to result in any significant
environmental impact, subject to appropriate conditions of consent.
Consideration of Submissions
The application was an exhibition for 14 days. During this time, seven written submissions
were received and one petition with 27 signatories. One late submission was also received
with respect to the proposal. The issues raised have been summarised below:
Issue Raised
When the Tavern previously applied for
an extension to hours of operation
there were many conditions with
respect
to
noise
amelioration
measures. None of these have been
undertaken.
Anti-social behaviour and noise from
bands
would
be
worse
with
exacerbated by extended hours of
operation.
The proposal will result in decreased
property values.
Lack of permanent local Police support
in Pottsville means that there is a lack
of protection to neighbouring properties
from anti-social behaviour.
Pottsville does not require extended
hours for the consumption of alcohol
as there are sufficient liquor retailers in
the village. This leads to litter in the
Page 294
Council Officer Assessment
From advice provided to Council by NSW Police it
is considered that the amended hours of
operation approved under a previous S96
application were not enabled as the tavern failed
to obtain a licence from Office of Liquor Gaming
and Racing (OLGR) to operate these times. As
such, the amelioration measures would not have
been required to be implemented.
The issue of anti-social behaviour is a matter for
NSW Police. This matter is a social issue, rather
than planning consideration under the provisions
of the Environmental Planning and Assessment
Act. In any event amelioration measures have
been provided by the applicant with respect to
noise from bands. The proposal does not warrant
refusal on this issue.
This matter is not considered to constitute a
planning consideration under the provisions of the
Environmental Planning and Assessment Act and
the proposal does not warrant refusal on this
issue.
The lack of Police numbers in the Pottsville
locality is not a matter of consideration under the
provisions of the Environmental Planning and
Assessment Act. The proposal does not warrant
refusal on this issue.
The subject site is appropriately zoned for the
existing development on site. Liquor licences deal
with the sale of alcohol and are policed by the
Office of Liquor Gaming and Racing (OLGR).
Issue Raised
streets.
The proposed acoustic treatment is not
considered sufficient and the ability of
the acoustic barrier to operate
adequately is questioned.
Tavern was approved as a small family
tavern, as a quite place for people to
rest, have a meal and go home safely.
Security should be undertaken by a
reputable security firm.
The
proponent
of
a
mixed
residential/commercial
development
approved to the north of the site
objects to the proposed hours of
operation on the basis that increased
trading hours would be detrimental to
their properties development due to
anti-social behaviour.
When the original DA was approved
and Liquor Licensing Court issued a
licence, trading hours were determined
in order to preserve the tranquillity of
the area.
Littering associated with the proposal is a
behavioural issue and not a planning
consideration under the provisions of the
Environmental Planning and Assessment Act.
The application has been reviewed by Councils
Environmental Health Unit with respect to this
matter, with it being assessed that the submitted
Environmental Noise Impact Report is acceptable
to relevant industry standards, subject to
appropriate conditions of consent.
The tavern is defined as a ‘hotel’ under the
Tweed LEP 2000. The behaviour of patrons is a
social issue which is not a planning consideration
under
the
Environmental
Planning
and
Assessment Act but rather an operational
management/ NSW Police issue. Where this
relates to a Plan of Management, the applicant is
required to submit to Council for approval.
Conditions have been attached to the consent in
this regard.
The identity of the security officers is not a
planning consideration under the Environmental
Planning and Assessment Act.
The subject site is zoned appropriately for the
subject tavern development and the hours of
operation are considered acceptable through a
reviewable condition to determine if amelioration
measures negate impacts on surrounding
properties. The behaviour of patrons is a social
issue which is not a planning consideration under
the Environmental Planning and Assessment Act
but rather an operational management/ Police
issue. Where this relates to a Plan of
Management, the applicant is required to submit
to Council for approval. Conditions have been
attached to the consent in this regard.
Liquor licences usually reflect the approved
trading hours imposed on the development
consent. An assessment of the trading hours has
been undertaken with the potential impacts to
residents taken into account. In this regard it is
considered appropriate that a reviewable
condition be provided which allows a trial period
of extended hours of operation to determine any
impacts on the surrounding area. If any extension
of trading hours is approved, the liquor licence
can be amended as a result. NSW Police and
OLGR are responsible for the enforcement of
licensing conditions. The proposal does not
warrant refusal on this issue.
Page 295
Issue Raised
Anti-social
behaviour
(including
littering, vandalism, cars/motorbikes
with loud mufflers) and drink-driving
are issues associated with the
development at present will be
exacerbated by additional hours of
operation.
The applicants argument for extended
opening hours with respect to zoning
objectives, community’s social needs
etc is not supported.
The submission states that some of the
mitigation measures are inconsistent
with the Liquor licence provisions, in
particular with respect to the playing of
live music. It is also noted that
mitigation measures outlined in a 2009
Plan of Management have ‘escaped
full-hearted implementation’.
Amenity of surrounding
must be protected.
properties
The licence (assume this is liquor
licence) restricted trading hours.
Page 296
The issue of anti-social behaviour and drink
driving is a matter for NSW Police. This is a
social issue, rather than planning consideration
under the provisions of the Environmental
Planning and Assessment Act. The proposal does
not warrant refusal on this issue.
The subject tavern is considered to be located on
an appropriately zoned site for such a
development and the hours of operation take into
account surrounding properties. In this regard, the
applicant has submitted an ‘Environmental Noise
Impact Report’ which contains amelioration
measures with respect to impacts on surrounding
properties. It is recommended that these
measures be implemented and a reviewable
condition be attached to the consent in order to
determine actual impacts arising from extended
hours of operation.
The Liquor licence is assessed independently
from the Development Application and the tavern
would be required to comply with the provisions of
same.
The
measures
outlined
in
the
Environmental Noise Impact Report are
considered to mitigate noise impact in the event
of music being played. The approval of an
amended consent does not allow the playing of
music on the site, but rather provide mitigation
measures were it to be approved through the
Liquor license. With respect to the 2009 Plan of
Management, these measures were to be
undertaken in order to allow extended hours of
operation at that time. Council have been advised
by NSW Police that Liquor license approval was
not obtained for the extended operating hours at
this time and as such it is reasonable to assume
that the amended consent which required these
management measures was effectively not acted
upon.
Mitigation measures and a trial period, by way of
a reviewable condition, have been proposed in
order to protect the amenity of the surrounding
properties. The proposed amendment is
considered to be acceptable in this regard.
The applicant would be required to amend the
liquor licence to amend trading hours in this
regard. This is not a matter for Office of Liquor
Gaming and Racing (OLGR) to consider and is
not a planning matter.
Issue Raised
The proposed change in hours of
operation is not minor and it is
requested that Council reject this
application in the interests of the
community.
The subject application has been reviewed by
Councils Environmental Health Unit and it is
advised that subject to the implementation of
amelioration measures and a reviewable
condition with respect to the hours of operation,
the proposal was considered to be acceptable.
The recommended extension of hours through a reviewable condition of consent is
considered to be a reasonable compromise to the applicant’s proposal and the issues raised
by the submissions above. The extension of hours of operation is reliant upon the applicant
applying the recommendations of the Environmental Noise Impact Report, as well as all
additional conditions of consent.
In terms of a negative impact on the community, surrounding residents are encouraged to
use the proposed incident report at the Tavern, or lodge any valid complaints with Council or
the Police. Without complaints being lodged, issues of non-compliance go unnoticed by the
relevant authorities and cannot be substantiated at a later date.
Public interest
The proposed modifications to Development Consent D90/0436 are considered to be
acceptable in terms of public interest. The amended conditions of consent will give the
applicant an opportunity to demonstrate that they are capable of running the Tavern at the
extended hours, with minimal impact on the local area, whilst the public will also have an
opportunity to log any complaints with respect to the extended operating hours, should they
occur. The proposed modifications are not considered to result in a significant negative
impact upon the surrounding residential area, subject to the continual application
amelioration measures as outlined in the Environmental Noise Impact Report and other
recommended conditions of consent.
Recommendation
The request to vary Condition 10A as outlined by the applicant is not supported as proposed
as it has been insufficiently demonstrated that a trial period was conducted and therefore
the impact on the surrounding community has not be adequately assessed.
However proposed noise mitigation works include the construction of permanent barriers
surrounding the external areas that may be cost prohibitive should a further 12 month
restriction be placed upon the consent. To off-set the concerns raised by the surrounding
community a reviewable condition could be imposed to ensure the operators can adequately
demonstrate that by adopting noise mitigation measures and satisfactory operational
practices impacts can be managed and should this not occur the extended hours of
operation would not be permitted to continue.
Therefore the following alternative
amendments and conditions are recommended:
1.
Condition No. 10A is to be deleted and replaced with Condition No. 10B which reads
as follows:
10B. Hours of operation:
Friday and Saturday – 10.00am to 10pm
Page 297
Variation of the above hours are permitted for a maximum of six times per year
with the written approval of the General Manager, or delegate, of Tweed Shire
Council.
Notwithstanding this condition, please see condition No 29 regarding the
reviewable condition.
2.
Condition No. 20 is to be deleted and replaced with Condition No. 20A which reads as
follows:
20A. The Tavern shall operate in accordance with the Environmental Noise Impact
Report prepared by CRG Acoustical Consultants dated 23 July 2013. All
mitigation works shall be completed prior to commencement of extended trading
hours.
3.
The following new Conditions are to be added:
27. An updated Plan of Management shall be submitted and approved to the
satisfaction of the General Manager or delegate within three months of the date of
this consent.
28. Notification shall be provided within seven days of the commencement of
extended hours of trading accompanied by a compliance audit report against the
operational conditions of the consent inclusive of the plan of management.
29. Reviewable Condition
This consent is subject to a reviewable condition under Section 80A of the
Environmental Planning and Assessment Amendment Act. The reviewable
condition relates to a condition that permits extended hours of operation. The
purpose of this condition is to enable Council to monitor potential impacts
associated with extended hours of operation at this site on the surrounding area
and, if appropriate, to revert the development consent to its previously approved
hours of operation.
Extended trading is permitted on Friday and Saturday until 12 Midnight subject to
this condition being reviewed by Council after 12 months or upon receipt of a
complaint that Council deems to be reasonable from the date the extended
trading hours commence.
Council is to provide not less than 14 days written notice to the operator of the
development that a review is to be carried out under this condition. Where
requested by Council, the proponent is to submit a compliance audit against the
operational conditions of the development consent, including the plan of
management and noise audit report. Council may notify such other persons as it
thinks fit of the review, and must take into account any submissions received
within 14 days after notice is given.
Please note see Condition No 10B.
OPTIONS:
1.
Approve the amendment of the development consent as outlined above; or
2.
Refuse the application for stated reasons.
CONCLUSION:
Page 298
The assessment has had regard for the issues raised by the public submissions, the
applicant’s Environmental Noise Impact Report, as well as advice from NSW Police and
Councils Environmental Health unit. As a result, the proposed modification to the trading
hours of the Tavern is considered to be acceptable, subject to the changes recommended
by Council staff, including the provision of a reviewable condition. As such, it is considered
that the proposal warrants approval, subject to the recommended amendments to
Development Consent D90/0436.
a.
Policy:
Not Applicable.
c.
Legal:
Not Applicable.
Not Applicable.
Nil.
Page 299
THIS PAGE IS BLANK
Page 300
28
[PR-CM] Development Application DA13/0246 for a Three Storey Dwelling
and In-Ground Swimming Pool at Lot 598 DP 1076975 No. 40 Marsupial
Drive, Pottsville
SUBMITTED BY:
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
Council is in receipt of a development application seeking approval for the construction of a
new three storey, four bedroom dwelling house with an attached double garage and
swimming pool located at Lot 598 DP 1076975 No. 40 Marsupial Drive, Pottsville.
The site is a battleaxe allotment which forms part of a residential subdivision and
surrounding properties cater to a combination of existing dwelling houses, dwelling houses
under construction and vacant land. The proposal presents potential amenity issues typical
of in-fill development on a battle-axe allotment.
The application was notified to immediately adjacent and surrounding property owners (8
letters) and exhibited for a period of 14 days from Tuesday 28 May to Tuesday 11 June
2013. Council received a total of seven submissions of objection to the proposal from five
individuals and one submission of support. The main reasons for objection are loss of
views, overshadowing, overlooking, and incompatible building height, bulk and scale. To
address objector concerns the applicant submitted a revised design which is the subject of
this report.
The proposal is a largely compliant design with two departures from the design controls of
Section A1 of the Tweed Development Control Plan. The proposal is otherwise consistent
with the other matters of consideration including the Tweed Local Environmental Plan 2000,
the Draft Tweed Local Environmental Plan 2012 and the Tweed Development Control Plan
2008, amongst others. Whilst the application attracted a number of objections, the
application was assessed on its merits and it is recommended for approval, subject to
conditions.
RECOMMENDATION:
That Development Application DA13/0246 for a three storey dwelling and in-ground
swimming pool at Lot 598 DP 1076975 No. 40 Marsupial Drive, Pottsville be approved
subject to the following conditions:
Page 301
GENERAL
1.
The development shall be completed in accordance with the plans approved by
Council and the Statement of Environmental Effects, except where varied by
conditions of this consent.
[GEN0015]
2.
The issue of this Development Consent does not certify compliance with the
relevant provisions of the Building Code of Australia.
[GEN0115]
3.
A Sewer manhole is present on this site. This manhole is not to be covered with
soil or other material.
Should adjustments be required to the sewer manhole, then application shall be
made to Council's Community and Natural Resources Division for approval of
such works.
[GEN0155]
4.
In accordance with the Restrictions as to User applying to the land, the
applicant/owner shall comply with the following.
(a)
All trees of the Banksia integrifolia species greater than 125mm diameter at
a height of 1.5 metres above ground level and those trees in the Koala
Management Plan approved by the Council, and being koala home range
trees, primary browse trees and other trees identified in the map detailing
the location of koala usage trees which are utilised by koalas as a
component of normal ranging patterns, are not to be removed from the lot.
(b)
A minimum clearance of 300 mm shall be maintained between the
underside of any fence and the natural ground level except for swimming
pool fences which shall maintain a maximum ground clearance of 100 mm.
(c)
All swimming pools installed on each lot burdened shall possess a stout
rope (minimum fifty (50) mm diameter) and one end of the rope must be
secured to a stable pool side fixture and the other end must trail in the pool
at all times.
(d)
This property is burdened as to the type of plant species that can be
planted and those that cannot. The owner is directed to conform with the
plant species list contained in Part 5.4 Koala Beach Landscape Species List
of Tweed DCP Section B21 Pottsville Locality Based Development Code.
(e)
No dogs or cats shall be kept either permanently or temporarily on each lot
burdened or at the Koala Beach Estate.
[GEN0280]
5.
The owner is to ensure that the proposed building is constructed in the position
and at the levels as nominated on the approved plans or as stipulated by a
condition of this consent, noting that all boundary setback measurements are
taken from the real property boundary and not from such things as road bitumen
or fence lines.
[GEN0300]
6.
Bushfire Asset Protection Zones
The intent of measures is to minimise the risk of bush fire attack and provide
protection for emergency services personnel, residents and others assisting fire
fighting activities.
Page 302
Bushfire asset protections zones are to be maintained around the house site at
all times to the satisfaction of the NSW Rural Fire Service.
[GEN0320]
7.
Bushfire Water and Utilities
The intent of measures is to minimise the risk of bush fire attack and provide
protection for emergency services personnel, residents and others assisting fire
fighting activities.
The occupier of the property is to participate in the Static Water Supply Project
initiative of NSW Fire Brigade and make available the water in the swimming
pool for use as a static water supply for fire fighting purposes by NSW Fire
Brigade or Rural Fire Service.
[GEN0325]
8.
Bushfire Design and Construction
The intent of measures is that buildings are designed and constructed to
withstand the potential impacts of bush fire attack. To achieve this, the
following conditions shall apply:
Construction shall comply with Australian Standard AS3959-2009 'Construction
of buildings in Bush Fire-prone areas', Bushfire attack Level (BAL) 12.5 for
dwelling.
All Class 10 structures as defined per the Building Code of Australia 2006
attached to or within 10 metres of the habitable building shall be constructed to
the same level of construction required for the habitable building in accordance
with the requirements of planning for bushfire protection 2006 and AS3959-2009
' Construction of buildings in Bush Fire-prone areas'.
[GEN0335]
9.
Any surface rainwater which is intercepted by retaining walls shall not be
directed onto adjoining properties and shall be conveyed through the subject
allotment to the street kerb and gutter.
[GENNS01]
10. The mature eucalyptus tree positioned on the south-east corner of the allotment
shall not be removed by the development. Precautions are to be taken during
construction to protect the tree including as appropriate barriers around the drip
line of the tree and preventing the parking and storing of materials inside the
barrier.
[GENNS02]
11. In accordance with Section 109F(i) of the Environmental Planning and
payable under Section 34 of the Building and Construction Industry Long
Service Payments Act, 1986 (or where such levy is payable by instalments, the
first instalment of the levy) has been paid. Council is authorised to accept
payment. Where payment has been made elsewhere, proof of payment is to be
provided.
[PCC0285]
Page 303
12. If the development is likely to disturb or impact upon telecommunications
infrastructure, written confirmation from the service provider that they have
agreed to the proposed works must be submitted to the Principal Certifying
Authority prior to the issue of a Construction Certificate or any works
commencing, whichever occurs first.
The arrangements
telecommunications
applicant/developer.
and costs associated with any adjustment to
infrastructure shall be borne in full by the
[PCC1325]
13. Prior to the issue of a construction certificate a plan of the swimming pool
showing the proposed cut and fill levels including retaining walls and interface
with the adjoining property boundaries is to be submitted to the Principal
Certifying Authority. The plan is to demonstrate no retaining walls or batters
exceeding a slope of 1:2 (v:h) or height of 500mm within 900mm of the boundary
for cut and 1.5m for fill. The plan must demonstrate suitable means for the
drainage and disposal of overflow water to ensure it is not directed onto
adjoining properties.
[PCCNS01]
14. The erection of a building in accordance with a development consent must not
be commenced until:
(a)
a construction certificate for the building work has been issued by the
consent authority, the council (if the council is not the consent authority) or
(b)
the person having the benefit of the development consent has:
(c)
(d)
(i)
appointed a principal certifying authority for the building work, and
(ii)
notified the principal certifying authority that the person will carry out
the building work as an owner-builder, if that is the case, and
the principal certifying authority has, no later than 2 days before the
building work commences:
(i)
notified the consent authority and the council (if the council is not the
consent authority) of his or her appointment, and
(ii)
notified the person having the benefit of the development consent of
any critical stage inspections and other inspections that are to be
carried out in respect of the building work, and
the person having the benefit of the development consent, if not carrying
out the work as an owner-builder, has:
(i)
appointed a principal contractor for the building work who must be the
holder of a contractor licence if any residential work is involved, and
(ii)
notified the principal certifying authority of any such appointment, and
(iii) unless that person is the principal contractor, notified the principal
contractor of any critical stage inspection and other inspections that
are to be carried out in respect of the building work.
[PCW0215]
Page 304
15. Prior to work commencing, a "Notice of Commencement of Building or
Subdivision Work and Appointment of Principal Certifying Authority" shall be
submitted to Council at least 2 days prior to work commencing.
[PCW0225]
16. Residential building work:
(a)
Residential building work within the meaning of the Home Building Act
1989 must not be carried out unless the principal certifying authority for the
development to which the work relates (not being the council) has given the
council written notice of the following information:
(i)
(ii)
(b)
in the case of work for which a principal contractor is required to be
appointed:
*
in the name and licence number of the principal contractor, and
*
the name of the insurer by which the work is insured under Part 6
of that Act,
in the case of work to be done by an owner-builder:
*
the name of the owner-builder, and
*
if the owner-builder is required to hold an owner builder permit
under that Act, the number of the owner-builder permit.
If arrangements for doing the residential building work are changed while
the work is in progress so that the information notified under subclause (1)
becomes out of date, further work must not be carried out unless the
principal certifying authority for the development to which the work relates
(not being the council) has given the council written notice of the updated
information.
[PCW0235]
17. A temporary builder's toilet is to be provided prior to commencement of work at
the rate of one (1) closet for every fifteen (15) persons or part of fifteen (15)
persons employed at the site. Each toilet provided must be:
(a)
a standard flushing toilet connected to a public sewer, or
(b)
if that is not practicable, an accredited sewage management facility
approved by the council
[PCW0245]
18. All roof waters are to be disposed of through properly jointed pipes to the
satisfaction of the Principal Certifying Authority. All PVC pipes to have
adequate cover and installed in accordance with the provisions of
AS/NZS3500.3.2.
[PCW1005]
DURING CONSTRUCTION
Council:
Page 305
hours of work.
[DUR0205]
20. The wall and roof cladding is to have low reflectivity where they would otherwise
cause nuisance to the occupants of buildings with direct line of sight to the
proposed building.
[DUR0245]
21. All building work (other than work relating to the erection of a temporary
building) must be carried out in accordance with the requirements of the
Building Code of Australia (as in force on the date the application for the
relevant construction certificate was made).
[DUR0375]
22. Building materials used in the construction of the building are not to be
deposited or stored on Council's footpath or road reserve, unless prior approval
is obtained from Council.
[DUR0395]
23. The Principal Certifying Authority is to be given a minimum of 48 hours notice
prior to any critical stage inspection or any other inspection nominated by the
Principal Certifying Authority via the notice under Section 81A of the
Environmental Planning and Assessment Act 1979.
[DUR0405]
24. It is the responsibility of the applicant to restrict public access to the
construction works site, construction works or materials or equipment on the
site when construction work is not in progress or the site is otherwise
unoccupied in accordance with WorkCover NSW requirements and Work Health
and Safety Regulation 2011.
[DUR0415]
25. The finished floor level of the building should finish not less than 225mm above
finished ground level.
[DUR0445]
26. All cut or fill on the property is to be battered at an angle not greater than 1:2
(v:h) within the property boundary, stabilised and provided with a dish drain or
similar at the base in accordance with Tweed Shire Councils Design and
Construction Specifications, Development Control Plan Part A1 to the
satisfaction of the Principal Certifying Authority.
Please note timber retaining walls are not permitted.
[DUR0835]
27. The development is to be carried out in accordance with the current BASIX
certificate and schedule of commitments approved in relation to this
development consent.
[DUR0905]
·
·
Page 306
·
[DUR1005]
and Construction Specifications prior to the issue of a Subdivision Certificate
and/or prior to any use or occupation of the buildings.
[DUR1875]
30. No portion of the structure may be erected over any existing sullage or
stormwater disposal drains, easements, sewer mains, or proposed sewer mains.
[DUR1945]
31. Swimming Pools (Building)
(a)
The swimming pool is to be installed and access thereto restricted in
accordance with Australian Standard AS 1926.1 - 2012 & AS 1926.2 -2007,
the Swimming Pool Act 1992 and the Swimming Pool Regulation 2008.
(b)
Swimming pools shall have suitable means for the drainage and disposal of
overflow water.
(c)
The pool pump and filter is to be enclosed and located in a position so as
not to cause a noise nuisance to adjoining properties.
(d)
Warning notices are to be provided in accordance with Part 3 of the
Swimming Pool Regulations 2008.
(e)
Once your pool or spa is complete
www.swimmingpoolregister.nsw.gov.au.
please
register
it
at
[DUR2075]
32. Backwash from the swimming pool is to be connected to the sewer in
accordance with Australian Standard AS 3500.2 Section 10.9.
[DUR2085]
33. The builder must provide an adequate trade waste service to ensure that all
waste material is suitably contained and secured within an area on the site, and
removed from the site at regular intervals for the period of
construction/demolition to ensure no material is capable of being washed or
blow from the site.
[DUR2185]
34. Council is to be given 24 hours notice for any of the following inspections prior
to the next stage of construction:
(a)
internal drainage, prior to slab preparation;
(b)
water plumbing rough in, and/or stackwork prior to the erection of brick
work or any wall sheeting;
(c)
external drainage prior to backfilling.
(d)
completion of work and prior to occupation of the building.
[DUR2485]
35. Plumbing
(a)
A plumbing permit is to be obtained from Council prior to commencement
of any plumbing and drainage work.
Page 307
(b)
The whole of the plumbing and drainage work is to be completed in
accordance with the requirements of the Plumbing Code of Australia and
AS/NZS 3500.
[DUR2495]
36. Overflow relief gully is to be located clear of the building and at a level not less
than 150mm below the lowest fixture within the building and 75mm above
[DUR2545]
37. All new hot water installations shall deliver hot water at the outlet of sanitary
fixtures used primarily for personal hygiene purposes at a temperature not
exceeding:*
45ºC for childhood centres, primary and secondary schools and nursing
homes or similar facilities for aged, sick or disabled persons; and
*
50ºC in all other classes of buildings.
A certificate certifying compliance with the above is to be submitted by the
licensed plumber on completion of works.
[DUR2555]
38. No retaining walls or similar structures are to be constructed over or within the
zone of influence of Council's sewer main.
[DUR2705]
39. Upon completion of the first floor joists a survey certificate is to be provided to
the Principal Certifying Authority verifying the development has been
constructed to the first floor levels as nominated on the approved plans.
[DURNS01]
PRIOR TO ISSUE OF OCCUPATION CERTIFICATE
40. A person must not commence occupation or use of the whole or any part of a
new building or structure (within the meaning of Section 109H(4)) unless an
occupation certificate has been issued in relation to the building or part
(maximum 25 penalty units).
[POC0205]
41. Prior to the issue of an occupation certificate,
(a)
Certification of termite protection methods performed by the person
carrying out the works is to be submitted to the PCA; and
(b)
A durable notice must be permanently fixed to the building in a prominent
location, such as in the electrical meter box indicating:
(i)
the method of protection; and
(ii)
the date of installation of the system; and
(iii) where a chemical barrier is used, its life expectancy as listed on the
National Registration Authority label; and
(iv) the need to maintain and inspect the system on a regular basis.
[POC0235]
42. A final occupation certificate must be applied for and obtained within 6 months
of any Interim Occupation Certificate being issued, and all conditions of this
Page 308
consent must be satisfied at the time of issue of a final occupation certificate
(unless otherwise specified herein).
[POC0355]
43. Prior to the issue of a final occupation certificate adequate proof and/or
documentation is to be submitted to the Principal Certifying Authority to identify
that all commitment on the BASIX "Schedule of Commitments" have been
complied with.
[POC0435]
44. Upon completion of the pool the builder is to submit to the Principal Certifying
Authority a certificate stating that the “Water Recirculation System” has been
installed in accordance with AS 1926.3-2010.
[POC0905]
45. Prior to the occupation or use of any building and prior to the issue of any
occupation certificate, including an interim occupation certificate a final
inspection report is to be obtained from Council in relation to the plumbing and
drainage works.
[POC1045]
46. Prior to issue of an occupation certificate, a survey certificate is to be provided
to the Principal Certifying Authority verifying the development has been
constructed to the ridge height level as nominated on the approved plans.
[POCNS01]
USE
47. The use to be conducted so as not to cause disruption to the amenity of the
locality, particularly by way of the emission of noise, dust and odours or the like.
[USE0125]
48. All externally mounted air conditioning units and other mechanical plant or
equipment are to be located so that any noise impact due to their operation
which may be or is likely to be experienced by any neighbouring premises is
minimised. Notwithstanding this requirement all air conditioning units and other
mechanical plant and or equipment is to be acoustically treated or shielded
where considered necessary to the satisfaction of the General Manager or his
delegate such that the operation of any air conditioning unit, mechanical plant
and or equipment does not result in the emission of offensive or intrusive noise.
[USE0175]
49. The building is to be used for single dwelling purposes only.
[USE0505]
50. Swimming Pools (Building)
(a)
It is the responsibility of the pool owner to ensure that the pool fencing
continues to provide the level of protection required regardless of and in
response to any activity or construction on the adjoining premises. Due
regard must be given to the affect that landscaping will have on the future
effectiveness of the security fencing. (Section 7 Swimming Pool Act 1992).
(b)
The resuscitation poster must be permanently displayed in close proximity
to the swimming pool. (Section 17 Swimming Pool Act 1992).
(c)
Warning notices required under Part 3 of the Swimming Pool Regulations
2008 shall be maintained at all times.
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[USE1295]
51. The swimming pool is not to be used for commercial purposes without prior
Development Consent.
[USE1305]
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REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Parameter Designs
Mr Andrew L Haywood
Lot 598 DP 1076975 No. 40 Marsupial Drive, Pottsville
2(c) Urban Expansion
$520,000
Background:
The site
The site is a battle-axe shaped allotment with an area of 1,080 square metres.
The battle-axe site with the driveway handle excluded, or the actual building component of
the site, falls from north-east (R.L. 44.99 metres AHD) to south-west (R.L. 41.09 metres
AHD) over a distance of 37 metres with a resultant south-west aspect.
The site is vacant and forms part of a 230 lot residential subdivision being Stages 5 and 6 of
Koala Beach. The Koala Beach estate has undulating topography and the locality includes
various residential designs including single, two and three storey buildings.
The site being a battle-axe allotment is immediately surrounded by six properties.
The proposal
The application seeks approval for the construction of a three storey, 9 metre high dwelling
house with attached double garage and in ground swimming pool.
The dwelling house comprises a double garage and formal entry on the ground floor, three
bedrooms, bathroom, laundry, kitchen and living spaces including a verandah and deck on
the first floor, and the master bedroom and ensuite on the second floor.
The proposal comprises a combination of cladding materials including timber, colorbond wall
sheeting and roofing and rendered board.
The proposal has been amended since the original submission of the development
application to reduce the size of the proposed south facing verandah.
Surrounding properties and development
The following table outlines surrounding property locations in relation to the subject site and
their development status. It details the other applications that have already been
determined in the immediate area. The table assists Council to:
·
Establish the context of surrounding development;
·
Consider the proposal’s consistency with that development in light of all relevant
development standards and controls applicable to the site and the proposal as outlined
in this report; and
·
Consider the cumulative impact of the proposal should it be duplicated in the
immediate locality.
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Lot No
Address
Location Development status
596
44 Marsupial Drive
SW
Site is vacant and Council recently approved
DA13/0407 for a two storey, 7.7m high dwelling
with attached double garage.
597
42 Marsupial Drive
W
Site is vacant and Council is not in receipt of a
599
38 Marsupial Drive
S
The site is currently subject to construction of a
two storey, 9m high dwelling approved by
Council under DA12/0466.
600
36 Marsupial Drive
S
Site improvements include a two storey, 8m high
dwelling approved by Council under DA07/1315.
603
2 Melia Close
E
Site improvements include a two storey, 8.5m
high dwelling approved by Council under
DA08/0219.
605
4 Melia Close
N
Site improvements include a two storey, 8m high
dwelling approved by Council under DA05/0517.
606
5 Melia Close
N
Site is vacant and Council is not in receipt of a
* Storey as per the definition of the Tweed LEP 2000.
** Building height as per definition of Section A1 of Tweed DCP 2008.
Public submissions
The application was notified to adjacent and surrounding property owners (8 letters) and
exhibited for a period of 14 days from Tuesday 28 May to Tuesday 11 June 2013. Council
received a total of seven submissions of objection to the proposal from five individuals and
one submission of support.
The main reasons for objection are loss of views,
overshadowing, overlooking, and incompatible building height, bulk and scale.
Statutory consideration
The proposal requires the lodgement and determination of a development application
pursuant to the Environmental Planning and Assessment Act 1979 (the Act) and has been
considered by Council under Section 79C of the Act, including relevant planning and urban
design matters and public submissions the subject of this report.
The proposal is reasonable development having regard to the matters listed under Section
79C including the Tweed Local Environmental Plan 2000, the Draft Tweed Local
Environmental Plan 2012 and the Tweed Development Control Plan 2008, amongst others.
Whilst the application attracted a number of objections, it is recommended for approval.
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SITE DIAGRAM:
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Act 1979:
(a)
(i)
The Aims of the TLEP 2000 are to give effect to strategic plans and principles that
will shape the natural and built environment of the Tweed Shire into the future.
The proposal is not contrary to these outcomes.
An objective of the TLEP 2000 is to promote development that is consistent with
four principles of ecologically sustainable development, namely the precautionary
principle, inter-generational equity, conservation of biological diversity and
ecological integrity and improved valuation, pricing and incentive mechanisms.
The proposal has been considered against these four principles and is satisfactory.
The TLEP 2000 sets out the consent considerations when determining a
8(1) The consent authority may grant consent to development (other than
development specified in Item 3 of the Table to clause 11) only if:
(a)
It is satisfied that the development is consistent with the primary
(b)
It has considered those other aims and objectives of this plan that are
relevant to the development, and
(c)
It is satisfied that the development would not have an unacceptable
To address Clause 8(1)(a) the primary objective of the 2(c) zone is:
To identify land for urban expansion (which will comprise mainly residential
development focused on multi-use neighbourhood centres) and to ensure its
optimum utilisation consistent with environmental constraints and the need to
minimise residential landtake.
The proposal is residential development and is an acceptable response in regard
to the constraints of the site. The development is consistent with the primary
objective of the zone.
The secondary objectives of the 2(c) zone have also been considered and the
development is satisfactory.
To address Clause 8(1)(b) this report considers those other aims and objectives of
the TLEP 2000 that are relevant to the development.
To address Clause 8(1)(c) this report in its entirety considers the cumulative
impact of the proposal including its interaction with the built and natural
environment, inclusive of existing site opportunities and constraints being views,
proximity to neighbouring properties, orientation and topography, and bushfire. In
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response to the aims, objectives and controls of planning instruments and
documents applicable to the site and these issues the proposal is acceptable
development.
In Hasting Point Progress Association Inc v Tweed Shire Council and Anor;
Hastings Point Progress Association Inc v Tweed Shire Council and Ors [2008]
NSWLEC 180 Justice Pain provided “Assessment of cumulative impact requires
that the impact of similar developments to the one proposed and the
accumulation of such development and successive developments of a similar
type on the community or locality be conducted. The issue of whether a
development establishes a precedent is also required. It follows that it is not
sufficient to assess the impact of the single development on the locality and
community...” [103].
Based on the proposal’s acceptableness under the TLEP 2000 and other
planning provisions applicable to the site and proposal, if the proposal was
accumulated successively in the community, locality or catchment or on the area
of Tweed as a whole, the outcome would also be acceptable and any precedent
that is set is also acceptable. The Tweed historically through the implementation
of its planning instrument and controls has provided for three storey residential
developments in the localities and communities of the Shire, including on sloping
sites, the proposal being consistent with this approach should be supported.
Essential services are available to the site.
The site has a statutory height limit under the TLEP 2000 of three storeys and the
proposal complies with this standard.
The objective of Clause 16 has also been considered which is to ensure that the
height and scale of development is appropriate to its location, surrounding
development and the environmental characteristics of the land.
To address this objective the proposal has also been considered against the Draft
TLEP 2012 and Section A1 of the Tweed Development Control Plan – Part A as it
relates to dwelling houses as a further measure to assess the appropriateness of
the height and scale of the development. These considerations are detailed by this
report and the proposal is considered acceptable. Therefore in addition to
compliance with the three storey statutory height limit applicable to the site the
height and scale of the proposal is also appropriate.
Clause 39A - Bushfire protection
Clause 39A of the TLEP 2000 requires Council to take into account matters with
the objective to minimise bushfire risk to built assets and people and to reduce
bushfire threat to ecological assets and environmental assets.
The site is bushfire prone land. In accordance with Clause 39A of the TLEP 2000
Council has had regard to provisions of Planning for Bushfire Protection 2006.
The proposed dwelling has been assessed as having a Bushfire Attack Level of
12.5. Conditions of consent are recommended to ensure the development
complies with the provisions of PBP 2006.
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State Environmental Planning Policy No 71 – Coastal Protection
Clause 8 of this Policy requires Council to consider various matters when
considering development on land mapped as being located within the coastal
zone. The proposal has been considered against the matters for consideration,
including, amongst others:
·
Retaining and improving existing public access to and along the
coastal foreshore for pedestrians or persons with a disability;
·
Opportunities to provide new public access to and along the coastal
foreshore for pedestrians or persons with a disability;
·
The suitability of development given its type, location and design and
its relationship with the surrounding area;
·
Any detrimental impact that development may have on the amenity of
the coastal foreshore, including any significant overshadowing of the
coastal foreshore and any significant loss of views from a public place
to the coastal foreshore.
The proposal is satisfactory in regard to the Clause 8 Matters for consideration of
the policy.
State Environmental Planning Policy (Building Sustainability Index: BASIX)
2004
This policy requires development applications for certain development, including
new dwelling houses, to be supported by a BASIX certificate and the imposition
of a condition of consent requiring implementation of the statement of
commitments listed in that certificate. The application is supported by a BASIX
certificate and a condition of consent is recommended.
Clause 43 of the NCREP requires Council to not grant consent to development for
residential purposes unless, amongst other things:
·
It is satisfied that the density of the dwellings have been maximised without
adversely affecting the environmental features of the land;
·
It is satisfied that site erosion will be minimised in accordance with
sedimentation and erosion management plans.
The proposal is satisfactory having regard to Clause 43.
An erosion and sediment control plan will be implemented prior to, during and post
construction.
(a)
(ii)
Draft Tweed Local Environmental Plan 2012
The proposal complies with the relevant provisions of the Draft TLEP as follows.
Pursuant to the Draft LEP the site is zoned R2 Low Density Residential. Dwelling
houses are permitted with consent in the zone and the proposal is consistent with
the objectives of the zone.
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4.3 Height of buildings
The objectives of clause 4.3 include as are relevant to the proposal and site:
·
To establish the maximum height for which a building can be designed;
·
To ensure that building height relates to the land’s capability to provide and
maintain an appropriate urban character and level of amenity;
·
To limit the impact of the height of a building on the existing natural and built
environment;
·
To prevent gross overshadowing impacts on the natural and built
environment.
The Draft LEP sets a maximum building height for the site of 9.0 metres. The
proposal pursuant to the definition of building height included in the Draft TLEP is
9.0m.
4.4 Floor space ratio
The site has a FSR standard of 0.8. The FSR is calculated to be approximately
0.33 and complies.
(a)
Part A of Section A1 of the Tweed DCP applies to dwelling houses and the
proposal has been considered against the design themes within this Part.
Each design theme is split into an explanation of the design criteria, where
relevant the over-arching planning and design principles, a range of objectives
and design controls. Where a proposal meets the design controls of the relevant
design theme the proposal is deemed to comply. Nevertheless the design
controls are a guideline and the DCP acknowledges there may be other
acceptable solutions.
A detailed assessment of the proposal against the relevant design themes is
available on Council’s system and the proposal is largely compliant with the
design controls. The proposal includes two departures from the design controls
as follows.
Non-compliance with Design theme-Preliminary for context and site analysis
A site analysis plan was not provided with the development application. Despite
this the application is acceptable for the following reasons:
·
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The development application was received by Council on the 20 May 2013.
Version 1.6 of Section A1 of the Tweed DCP, which introduced the
requirements for a site analysis as a design control, became effective on the
21 May 2013 and while it is noted there are no savings provisions for
development applications lodged prior to the effective commencement of a
DCP, Council officers have been encouraged to apply a pragmatic approach
in the period of transition between the previous and new Section A1. This
approach is consistent with application of new and amended DCP sections
previously adopted by Council.
·
It is apparent the design has considered the site’s opportunities and
constraints and the submitted site plan addresses several of the requirements
of a site analysis pursuant to the DCP.
Non-compliance with Design theme 3-Building envelope controls for rear setback
The design control for the rear setback is 12m as the proposal has a building
height greater than 4.5m. The proposal incorporates a rear setback of 6m which
does not comply.
The variation to the rear setback design control has been considered against the
relevant planning principle and objectives of the design theme related to rear
setbacks. The proposed rear setback is acceptable for the following reasons:
·
The proposed rear setback provides adequate space for landscaping and
open space.
·
It is noted the privacy of the proposal’s rear open space could be impacted
from the second storey south facing balcony of the dwelling on the rear
adjoining allotment. This is an expected outcome of developing a sloping
battleaxe allotment on the low side of existing development and a 12m
setback would not alter the outcome.
·
There is sufficient space within the rear setback of the proposal site for
landscaping and will allow visual screening to mitigate the privacy impact.
·
It is reasonable to expect that the proposal’s western and south-eastern
sides will be primarily utilised for private open space given they cater to the
swimming pool and verandah/decks, hence the proposal will maintain
suitable private open space.
·
If Council pursued compliance with the design control it may lead to further
detriment of the south adjoining allotments of the subject site by reducing
the setback of the proposal from those lot boundaries.
·
The proposed rear setback from the rear adjoining allotments will not impact
sunlight access and ventilation.
·
Shadow diagrams submitted in support of the application indicate
compliance with the design controls for solar access of the DCP and
therefore the shadow impact of the proposed rear setback is acceptable.
·
The proposal complies with the applicable side setback design controls.
In addition to the above two non-compliances the public submissions received by
Council objecting to the proposal also raised a number of issues relating to
Section A1 of the Tweed DCP. A report by exception having regard to those
issues and the proposal’s compliance with the design themes is provided below.
Design theme-Preliminary for Views and Vistas
The proposal will impact the existing views from the adjacent eastern property Lot
603, namely the views of the mountain range north of Mount Warning.
The Tweed DCP Section A1 states “building siting and height is, as far as is
practical, to be designed to minimise the impact on views from surrounding
properties, and follow the Planning Principles of view sharing between properties.”
The Planning Principles reference Tenacity Consulting v Waringah [2004]
NSWLEC 140 in which Senior Commissioner Roseth adopts a four step process to
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assess whether view sharing is reasonable. This process has been followed to
assess the proposal.
1.
Assessment of views to be affected:
Lot 603 currently enjoys primary views to the south-east including the Pacific
Ocean and adjoining coastal foreshore and Cape Byron in the distance from south
and east facing decks part of the building. The house at Lot 603 also has views to
the south-west over the western boundary including Mount Warning and nearby
mountains. The view that would be affected is dependent on the vantage point as
there a number of vantage points on Lot 603 including the side yard, middle of
house deck, western end of the south facing deck and bedrooms. The view from
these vantage points is assessed as valuable.
2.
The part of the property the views are obtained:
The views of these mountains is obtained from the side boundary including the
yard, middle deck, western end of the south facing deck and bedrooms of Lot 603
from both a standing and sitting position. Lot 603 would maintain views of Mount
Warning between the subject building on Lot 598 and the building under
construction on Lot 599 from the western end of the south facing balcony. The
views of the mountains north of Mount Warning would be lost from the other
vantage points. Roseth SC states “The expectation to retain side views...is often
unrealistic” [27].
3.
Assess the extent of impact
Roseth SC states “this should be done for the whole of the property, not just for
the view that is affected” [28]. Lot 603, if the proposal proceeds, will maintain
views of Mount Warning to the west via a view corridor between two houses and
will continue to enjoy views of the Ocean, coastal foreshore and Cape Byron in
the distance. The impact is therefore considered minor.
4.
The reasonableness of the proposal that is causing the impact
The proposal has the potential to cause detrimental impacts because it is infill
development on a battle-axe site. Nevertheless the proposal complies with the
majority of design controls for dwellings and the aims and objectives of the
Tweed LEP 2000. The proposal is therefore reasonable development.
An amended design to fully mitigate the impacts i.e. single storey dwelling would
not only fail in its ability to provide the applicant with the same development
potential and amenity but would not reduce the view loss to Lot 603.
The proposal is therefore reasonable development that will have a minor impact
on valuable views from the side boundary of Lot 603. The view sharing in this
instance, in particular maintenance of views of Mount Warning, is reasonable.
Design Theme 1-Introduction (General)
Surrounding dwellings each consist of a variation of material finishes, articulated
elevations and roof forms, and the proposal will contribute to this character.
The subject allotment, as well as adjacent allotments, is burdened by a Section
88B restriction on use that dictates building materials and finishes. The proposal
complies with the restrictions and will ensure consistency with the character of
surrounding dwellings.
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Surrounding existing dwellings comprise single and two-storey split level
residences as follows:
Lot No
Height – storeys*
596 (proposed) 2
597
Vacant
599 (u/c)
2
600
2
603
2
605
2
606
Vacant
Average
2
*
Definition of storey per Tweed LEP 2000
**
Height – metres**
7.7m
9m
8m
8.5m
8m
8.24m
Definition of building height per Tweed DCP Section A1.
The proposal has a height of 3 storeys/9m. While the proposal includes an
additional storey to the immediately surrounding dwellings, the overall height is
not a significant inconsistency with the height of those dwellings (0.76m
difference to the average). It is also noted that existing 3 storey dwellings occur
within the wider Koala Beach locality. In consideration of these points the
proposal is consistent with the scale of surrounding dwellings.
Design theme 2-Site design for Landscaping, deep soil zones and external living
areas
The existing eucalyptus tree located on the SE corner of the allotment is to be
retained by the proposal through the imposition of a recommended condition of
consent.
Design theme 3-Building envelope controls for front and side setbacks
3.1 Setbacks
The site is a battle-axe allotment. Section A1 of the Tweed DCP refers to State
Environmental Planning Policy (SEPP-Exempt and Complying Development
Codes) in order to define battle-axe. Section A1 does not define front, rear and
side setbacks for battle-axe allotment purposes. Council’s assessing officer has
therefore adopted the definition from SEPP-Exempt and Complying Development
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Codes for the purposes of this assessment which states under Cl3.20(4): “For
the purpose of calculating setbacks for a battle-axe lot, the setback on the
opposite side of the lot to the rear setback is taken to be a side setback.”
The design control for side setbacks is 1.5m and the proposal includes a
minimum setback of 3.8m from the nearest adjoining property boundary.
Compliance with the design control would allow the proposal to encroach a
further 2.3m toward the nearest adjoining boundary and therefore complies.
Design Theme 4 – Building design
4.3 Solar Access and Natural Ventilation
The shadow diagrams submitted in support of the application indicate the
proposal will restrict sunlight to a principle area of private open space of the
southern adjoining allotment by 100% at 9am, 30% at 12 noon and <5% at 3pm
on June 21, therefore the proposal will not restrict sunlight to the principle area of
private open space of the adjoining allotment by more than 50% between 12
noon and 3pm on June 21, or 3 hours. The proposal therefore complies with the
DCP.
Lot 600 has north facing solar panels. Shadow diagrams supporting the proposal
do not indicate overshadowing of these therefore the proposal complies.
4.5 Visual and Acoustic Privacy
The site and surrounding properties have south-east and south-west views which
all surrounding existing development has been designed to capture by including
internal and external living spaces on the south elevations, and the proposal is
consistent. The Koala Beach locality varies in levels from R.L. 40 metres AHD to
less than R.L. 10 metres AHD. The main component of the subject site itself falls
at a grade of approximately 10%. In consideration of the localities and site’s
topography and orientation, the potential for overlooking is unavoidable in this part
of the Tweed.
The design control states external private open space located within 4m of a
property boundary may require visual screening. The proposal complies because:
·
The setback between the proposed verandah and Lot 599 exceeds 4.0m.
·
The setback between the proposed verandah and Lot 600 is 3.8m and
includes an existing mature tree which will aid in visual privacy and precludes
the requirement for additional visual screening.
·
There is over 14m distance between the proposed verandah and the adjacent
dwelling houses which provides a good opportunity for inter-allotment
landscaping and visual screening to minimise the potential for overlooking.
·
The site being a battle-axe has six neighbouring properties and there is a
resultant potential for the proposal to impact the acoustic privacy of those
properties. However ordinary residential use of the proposed external living
areas is not expected to detrimentally impact the adjoining properties.
The proposal provides access and car parking that satisfies the controls for
dwelling houses pursuant to Section A2 of the Tweed DCP.
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The development application was notified and exhibited for a period of 14 days
from Tuesday 28 May to Tuesday 11 June 2013. Council received a total of
seven submissions of objection to the proposal from five individuals and one
submission of support.
The objections focused on loss of views, overshadowing, overlooking and visual
impacts related to the building’s bulk and scale.
Copies of the objection letters were provided to the applicant who responded by
amending the original design as well as outlining reasons why the proposal
should proceed, which has been considered during assessment of the
application.
A response to the objections is included below in this report.
B10-Koala Beach
The proposal is consistent with the aims and environmental design elements of
Section B10 of the Tweed DCP. A detailed assessment of the proposal against
Section B10 of the Tweed DCP is available on Council’s system.
B21-Pottsville Locality Based Development Code
The proposal complies with Section B21 of the Tweed DCP, particularly the area
specific strategy for Koala Beach.
The DCP describes the existing condition of Koala Beach pictorially. An example
is provided below and the proposal will contribute to this condition.
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The proposal also meets the strategy and
implementation requirements in that:
(a)
development control and
·
The proposal complies with the built form controls.
·
The proposal provides adequate space for landscaping for shade and
screening.
·
The proposal minimises cut and fill by incorporating a hybrid slab / post and
beam structure. The DCP provides the following reference for new
development and the proposal complies.
The NSW Coastal Policy 1997 applies to land within one kilometre landward of the
open coast high water mark and one kilometre of coastal rivers, lakes, lagoons,
estuaries and islands. The subject site’s proximity to the coast and Mooball Creek
means the policy applies to the land. The policy requires that the environment
including water quality, habitat and conservation values are assessed and
mitigation measures put in place to protect them.
The proposal is not contrary to the policy’s requirements and no specific mitigation
measures are warranted.
No other matter prescribed by the EP&A Regulation is applicable to the proposal.
(a)
(v)
The subject site is located approximately 990 metres from Mooball Creek and 1.5
kilometres from the ocean and the aims and objectives of the Tweed Shire
Coastline Management Plan 2005 and Tweed Coast Estuaries Management Plan
2004 have been considered. The proposal is not detrimental to these Plans.
(b)
in the locality
Context and Setting/Building Height and Scale
Existing immediately surrounding development to the subject site comprises two
storey dwellings.
There are examples of single, two and three storey
development in the Koala Beach locality.
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While the height in storeys as defined by the Tweed LEP 2000 of the proposal
differs to immediately surrounding development the proposal has been assessed
as having a consistent overall actual height to those developments. In
consideration of the proposal’s general compliance with the controls in force in
Tweed Shire the difference in storey height between the proposal and
surrounding houses is not considered to hinder the application proceeding.
Overshadowing
The proposal will cause overshadowing of the immediately adjacent properties
located to the south of the subject site. This is a result of the site and locality’s
topography and orientation. The design response of the proposal meets the
objectives and relevant controls related to this issue and the proposal should
therefore proceed.
Overlooking
The site is a battle-axe allotment surrounded by several existing dwelling houses.
Infill development of the site presents typical issues related to visual privacy
including the potential for overlooking. The proposal has been assessed as being
largely compliant with the relevant development controls aimed at mitigating
privacy impacts. There are also opportunities to provide visual screening
between allotments to further protect privacy. The proposal is therefore
supported.
(c)
Topography
The proposal has addressed Council’s requirements for a sloping site by
designing a hybrid slab and post and beam structure that maintains the natural
topography of the land.
(d)
Public notification 28 May 2013 to 11 June 2013
Following notification of the development application to surrounding properties
Council received seven objections to the development from five individuals and
one submission of support. A summary of the submissions and responses are
provided below.
Council has provided extensive opportunities for objectors to address Council
regarding the development application including the ability to review the amended
design drawings submitted by the applicant following receipt of the original
objections. The individual who submitted the majority of objections has
maintained through correspondence that the current design does not comply with
Council’s adopted DCP and conditions should be included to mitigate impacts.
Summary of submission
Response
Overlooking and significant visual
and acoustic privacy issues
emanating from the proposed
elevated deck and southern
elevation of bifold doors and
windows which look directly into
rear yard and living space (Refer
DCP A1 4.5 Visual and acoustic
The site and surrounding properties have
south-east and south-west views which all
surrounding existing development has been
designed to capture by including internal and
external living spaces on the south
elevations, and the proposal is consistent. In
conjunction with the site’s slope and
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Response
privacy P1, P3, O3, C1, C2, C3, orientation, there is potential for overlooking.
C4).
In order to mitigate the visual privacy impact
from potential overlooking, and the acoustic
privacy impact, the applicant has revised the
original design which has increased the
setback between the verandah and Lot 599 to
4.0m and Lot 600 to 3.8m. This increase has
resultantly reduced the narrowest portion of
the verandah adjacent to Lot 599 to 1.2m
which the applicant maintains will reduce
usage of this side of the verandah and the
Eastern portion of the verandah will incur
primary external usage.
The revised setback means the distance
between the verandah and the southern
houses is 14.8m to Lot 600’s dwelling and
16m to Lot 599’s dwelling. This distance
allows for inter-allotment landscaping and
visual screening to minimise the potential for
overlooking.
An existing mature eucalyptus tree on the SE
portion of the site should be retained through
the imposition of a condition of consent which
will assist with minimising amenity impacts
between the proposal and Lot 600.
Inappropriate building setback to
rear boundary of adjacent
properties considering the overall
height, bulk and mass of the
proposed building (3.1 Setbacks
P2, O3, O4, O5, C1, C2, C19).
The site is a battleaxe allotment and pursuant
to the definition adopted by Council contained
within SEPP (Exempt and Complying
Development
Codes)
the
boundaries
between the site and adjacent eastern,
southern and western properties are side
boundaries.
The proposed design complies with the side
setback controls. A variation to the rear
setback control between the site and the
northern property is required for the design,
and has been assessed as being acceptable.
In response to the objectives mentioned by
the objector, the proposal provides
appropriate separation between dwellings,
minimises the potential for overlooking and
overshadowing, and allows landscaping
between the buildings and maintenance of
the adjoining southern properties’ rear yard
landscape zone.
Incompatible building height, The proposal has an overall height of 9.0m
scale and mass and visual bulk in which is acceptable under the DCP.
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Response
compatible
with
adjoining
development which would result
in significant amenity impacts
(Refer DCP A1 3.2 Building
Height P1, P5, O1, O2 and
Building Form O1, C1).
The proposal includes articulated elevations,
a combination of material finishes and a low
roof pitch.
Overshadowing
impacts
particularly during winter months
(Refer DCP A1 4.3 Solar Access
and Natural Ventilation P1, O2).
The shadow diagrams submitted in support of
the application indicate the proposal complies
with the controls for solar access and natural
ventilation of Section A1 of the DCP.
Non-compliance
with
requirements of DCP A1 to
prepare and lodge a site analysis
which
documents
the
opportunities and constraints, and
demonstrates how the proposal
has been designed to mitigate
potential amenity impacts (Refer
DCP A1 – 3.0 - Context and Site
Analysis C1).
The application was not supported by a site
analysis that met all of the relevant details
suggested by the DCP. The revised design
nevertheless has given consideration to the
opportunities and constraints of the site.
Noncompliance with passive
design principles and controls
(Refer DCP A1 4.2 Passive
Design P1, P10, O1, C1).
It is noted primary living spaces are located
where they will maximise access to the southeast and south-west vistas on the southern
elevation of the building. All habitable rooms
will be provided access to fresh air and living
spaces maintain access to prevalent winds.
The design incorporates 600mm eaves and
will aid shading of western and eastern walls.
While a site analysis did not accompany the
application the opportunities and constraints
of the site have been balanced by the design.
It is unclear whether the existing
eucalyptus tree (Koala Food tree)
located close to the southern
boundary will be retained.
The subject tree has been identified as a
Grey Ironbark (Eucalyptus siderophloia) by
Council’s Natural Resource Management
Unit. While the tree is not a preferred Koala
Food tree it’s retention is recommended
through the imposition of a condition of
consent because the tree is likely to assist
potential amenity impacts between allotments
as well as providing food and shelter for other
fauna species.
The proposal’s resultant height, scale, mass
and visual bulk is acceptable and compatible
with adjoining development.
The building would cause loss of The view loss and view sharing from the
views
from
neighbouring proposal has been assessed as being
properties.
reasonable.
Three
storey
development The Section 88B Instrument burdening the
breaches the Koala Beach allotment
restricts
dwelling
house
development to a maximum height of 10m
Page 329
Response
covenant requirements.
between the natural ground level and the
ridge line, and the proposal complies with this
restriction.
Three storey dwelling would
create a larger and wider
projection of shade and fall from
the
sun
on
surrounding
residences.
Shadow diagrams submitted in support of the
application indicate the overshadowing of
adjacent properties meets the design controls
for residential development.
The proposal is supported as
changes to the setback of house
or the third storey would impact
rear development views and
cause additional overshadowing.
The proposal currently complies with the side
setback, view sharing and overshadowing
controls. The impacts from the departure from
the rear setback control are able to be
mitigated and are acceptable.
As the applicant has failed to
justify how overlooking and visual
impacts will be mitigated as
demonstrated on a site analysis,
and given part of the deck will be
within 4.0m of the southern
boundary,
privacy
screening
along this elevation would be
required.
Privacy screening is not warranted as the
side setback distances comply with the
design controls of the DCP and there is
adequate
space
for
inter-allotment
landscaping and screening within the subject
properties to ameliorate potential visual
privacy impacts. In addition privacy screening
would be an unreasonable obstruction of the
primary view direction of the subject site.
To mitigate privacy impacts, the This is not warranted given the proposal
balustrade should be made of complies with the side setback controls and
solid material.
opportunities are available to ameliorate
visual privacy impacts between allotments.
To mitigate privacy impacts, the There will remain adequate opportunities for
amount of glazing along this visual screening between allotments and this
elevation should be reduced.
is not warranted.
The third storey should be The predicted overshadowing impacts are
redesigned to be further north to acceptable under the Tweed DCP.
reduce
the
overshadowing
impacts to south adjoining
allotments.
The third storey should be The proposal complies with the design
redesigned to be further north to controls for building height and form of the
reduce the impacts of height and Tweed DCP.
visual bulk to south adjoining
allotments.
(e)
Public interest
There are two opposing views regarding the development application.
The first is the applicant’s interest in maintaining their right to develop a dwelling
house that maximises the opportunities of the site including the statutory height
limit of three storeys.
Page 330
The second is that of five surrounding property owners who maintain the proposal
will have detrimental impacts to their amenity.
Despite these different views the development application has been assessed on
its merits. The proposal sought is acceptable in consideration of the primary
standards and controls applicable to the site and type of development, namely
the Tweed Local Environmental Plan 2000, Draft Tweed Local Environmental
Plan 2012 and Tweed Development Control Plan 2008. Accordingly the
application is recommended for approval.
OPTIONS:
That Council:
1.
Approves the development application, subject to conditions; or
2.
Refuses the development application, providing appropriate reasons.
CONCLUSION:
The site has constraints related to its configuration, topography and proximity to neighbours
and opportunities in terms of its orientation toward views. The assessment of the
application indicates the proposed design has maximised the opportunities while
satisfactorily addressing the constraints which is demonstrated by its compliance with the
Tweed LEP, Draft Tweed LEP and Tweed DCP. The proposal and surrounding property
development is located on the side of a hill and there are predicted amenity impacts that
could be reasonably anticipated given the topography of the Koala Beach locality and these
have the opportunity to be mitigated. The application is therefore recommended for
approval subject to conditions.
a.
Policy:
Not Applicable.
c.
Legal:
Should the applicant be dissatisfied with the determination they have the right to appeal the
decision in the Land and Environment Court which would incur financial costs to Council in
defence.
Should the applications be approved there is potential for the objector to lodge an appeal
against the adequacy of the processing of the application which would incur financial costs
to Council in defence.
Not Applicable.
Page 331
Nil.
Page 332
29
[PR-CM] Section 82A Review of Development Application DA12/0498 for the
Demolition of Existing Dwelling and Construction of a Three Storey
Dwelling at Lot 1 DP 214686 No. 4 Marine Parade, Kingscliff
SUBMITTED BY:
1
Civic Leadership
1.1
1.1.1
SUMMARY OF REPORT:
Updated Information
At its meeting of 17 October 2013, Council resolved the following in respect of this matter:
"RESOLVED that Council supports in-principle approval and conditions be brought
forward to the November Council meeting."
On this basis this Development Application is being reported back to this Council meeting
with an option to approve with conditions. Draft conditions are in the Options section of this
report.
Previous Report
On 27 August 2013 Council received an application for a Section 82A Review of
Determination for DA12/0498 which was determined by refusal at Council’s meeting of 20
June 2013. The refused application sought approval to demolish an existing two storey
dwelling house at No. 4 Marine Parade, Kingscliff and construct a new three storey dwelling
house with a total floor area of 325m2.
The decision to refuse the application stemmed primarily from the noise nuisance that would
be likely to result from the proposed third storey roof top terrace that would only be made
possible on this site by exceeding the 9.0m height limit of the Development Control Plan and
the two storey limit in the Local Environmental Plan.
The applicant has included amended plans with the Section 82A application which show an
overall reduction of the usable roof terrace area of generally 30% and have reduced the spa
area from 15m2 to 11.5m2, lowered the sunlounge deck and added some addition potted
trees and planter boxes. The smaller size of the area is acknowledged but the smaller size
does not necessarily equate to less impact.
Page 333
The Review of Determination was formally re-notified to the surrounding landowners and
resulted in Council receiving one submission of objection who had also objected to the
previously determined application.
The applicant’s Section 82A submission in relation to the reasons for refusal including the
amendments to the plans is not considered sufficient to alter the substance of the previous
report or the recommendation.
On review of the application taking into account the submission of the applicant, the
amended roof terrace plan, the submission of the objector and on the balance of the
relevant planning matters, it is considered that the proposed development is not suitable for
approval and should be refused.
RECOMMENDATION:
That:
1.
ATTACHMENT 1 is CONFIDENTIAL in accordance with Section 10A(2) of the
Local Government Act 1993, because it contains:(a)
2.
personnel matters concerning particular individuals (other than councillors).
The Section 82A Review of Development Application DA12/0498 for the
demolition of existing dwelling and construction of a three-storey dwelling at Lot
1 DP 214686 No. 4 Marine Parade, Kingscliff be refused for the following
reasons:
1.
Pursuant to Section 79C(1)(a)(i) the development proposal has not
demonstrated that compliance with the development standard as being
unreasonable or unnecessary in accordance with State Environmental
Planning Policy No. 1 – Development Standards:
·
2.
Pursuant to Section 79C(1)(b) the development proposal has not
demonstrated acceptable impacts on the built environment:
·
3.
The development is considered to have negative impact on the
amenity of the adjoining property to the southwest.
Pursuant to Section 79C(1)(a)(iii) the development has not demonstrated
compliance with Tweed Shire Council Development Control Plan 2008
Section A1 in particular:
·
Page 334
The impact of the additional storey incorporating a roof top deck has
not been adequately justified.
The development proposal exceeds the nine (9) metre height limit.
REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Mrs K Carter and Mr R Carter
Ms Kristine A Carter
Lot 1 DP 214686 No. 4 Marine Parade, Kingscliff
2(b) Medium Density Residential
$1,225,000
Background:
On the 27 August 2013 Council received an application for a Review of Determination for
DA12/0498, which originally sought approval for the demolition of an existing two storey
dwelling house at No. 4 Marine Parade, Kingscliff and construct a new three storey dwelling
house with a total floor area of 325m2.
At the Council meeting of 20 June 2013, Councillors resolved to refuse development
application DA12/0498 for the following reasons:
"1.
Pursuant to Section 79C(1)(a)(i) the development proposal has not demonstrated
that compliance with the development standard as being unreasonable or
unnecessary in accordance with State Environmental Planning Policy No. 1 –
Development Standards:
·
2.
Pursuant to Section 79C(1)(b) the development proposal has not demonstrated
acceptable impacts on the built environment:
·
3.
The impact of the additional storey incorporating a roof top deck has not
been adequately justified.
The development is considered to have negative impact on the amenity of
the adjoining property to the southwest.
Pursuant to Section 79C(1)(a)(iii) the development has not demonstrated
compliance with Tweed Shire Council Development Control Plan 2008 Section
A1 in particular:
·
The development proposal exceeds the nine (9) metre height limit."
The decision to refuse the application stemmed primarily from the noise nuisance that would
be likely to result from the proposed third storey roof top terrace that would only be made
possible on this site by exceeding the 9.0m height limit of the Development Control Plan and
the two storey limit in the Local Environmental Plan.
The applicant has now included amended plans with the Section 82A application which
show a reduction of the spa area from 15m2 to 11.5m2, lowered the sunlounge deck added
some addition potted trees and planter boxes and deleted the 23m2 artificial turf area. This
equates generally to a 30% reduction of the usable area from 118m2 to 84m2 and this has
been achieved largely by deleting an artificial turf area. It is estimated that the 118m2 may
comfortably accommodate 20 people and the 84m2 may accommodate 13 people. These
numbers are derived by allowing 3m2 per person over the tiled and turfed zones. It is
considered that he potential noise nuisance from the occupancy of the smaller space would
be potentially similar to the larger area.
Loud conversation, laughing, music etc are the likely noises to emanate from the roof
terrace and the proximity of those noises is what would be a disturbance to the amenity of
the neighbours at the rear brought about by a design that does not comply with height
controls.
Page 335
The visual privacy afforded to and between adjoining properties by the design is considered
to be reasonable.
It is considered that the amended proposal is ‘substantially the same development as the
development described within the original development’ therefore satisfies Section 82A
(4)(c).
The smaller size of the area is acknowledged but the smaller size in this instance does not
necessarily equate to less impact.
The Section 82A review application has been notified to the same properties as the original
proposal and one objection has been received. The objector maintains that there will be no
change to the impact on their amenity from the reduced size and that the applicant’s
argument referring to a similar amenity issue from 32 Hungerford Lane is unfounded.
The following is an extract of the applicant's justification for the Section 82A
application dated 26 August 2013:
"……
4.0
Justification
Pursuant to Clauses (1) and (2) of Section 82A of the Environmental Planning and Assessment
Act 1979, this document forms a request for a review of the determination for DA12/0498.
Pursuant to Clause (3)(A), 'in requesting a review, the applicant may make amendment to the
development described in the original application, subject to subsection (4)(c)'. Subsection (4)(c)
states that 'in the event that the applicant has made amendments to the development described in
the original application, the consent authority is satisfied that the development, as amended, is
substantially the same development as the development described within the original application'.
It is considered that minor amendments have been made to the proposed development to further
address the refusal items noted by Tweed Shire Council. These amendments do not substantially
change the proposed development.
The development application was refused by Tweed Shire Council based on the items raised
within Table 1. Comment and justification has been provided for each of the refusal items as
below;
TABLE 1
Justification Provided
Refusal Item
1.
Pursuant to Section 79C( 1)( a)(i)
the development proposal has not
demonstrated compliance with the
development standard as being
unreasonable or unnecessary in
accordance with State Environmental
Planning Policy No. 1 - Development
Standards:
•
The impact of the additional storey
incorporating a rooftop deck has
not been adequately justified.
•
•
•
Page 336
As part of the initial development application,
Council was provided with a SEPP No.1
Objection to address the proposed
developments non-compliance with the building
height controls of the Tweed Local
Environmental Plan 2000 (TLEP2000). The
proposed dwelling exceeds the 9m physical
building height limit by 1.2m. This 1.2m
exceedance is formed by the balustrade
located on the trafficable rooftop deck area.
The application was notified to the adjoining
property owners for comment during the
application period. Correspondence was
received from Tweed Shire Council noting that
the rooftop deck was considered to have the
potential for a negative impact upon
surrounding landowners and further information
and justification was requested.
In response to Council's request, a detail
survey was undertaken to locate surrounding
outdoor living areas and vegetation so as to
relate to the proposed location of the rooftop
deck. Height and distance detail was used and
TABLE 1
Refusal Item
•
2.
Pursuant to Section 79C(1)(b) the
development proposal has not
demonstrated acceptable impacts upon
the built environment:
•
The development is considered to
have negative impact upon the
amenity of adjoining property to
the southwest.
•
•
•
the results of this survey are illustrated within
Drawings 01.10-01.13 of Appendix A Proposed Development Plans. As detailed, the
outdoor living areas of the surrounding
properties are located a significant distance
away from the rooftop deck area. Appendix B Supporting Photographs shows the outdoor
living areas of the properties elevated above
No. 4 Marine Parade.
Direct views are also obstructed by the
vegetation located between No. 4 Marine
Parade and the properties elevated above (See
Appendix B - Supporting Photographs). To
further lessen the potential visual impact of the
rooftop deck on surrounding properties, visual
and acoustic screening has now been
proposed (Drawing No. 08 of Appendix A Proposed Development Plans). This will serve
to create additional privacy for the proponent
as well as retaining the existing level of
amenity enjoyed by surrounding residents.
The adjoining property to the southwest is
commonly known as No. 34 Hungerford Lane,
Kingscliff and is elevated from the subject site.
The outdoor living area of this dwelling has
been picked up as part of the detail survey that
was undertaken (Balcony 3 Drawing No. 01.10
and 01 .12 See Appendix A - Proposed
Development Plans).
The outdoor living area of No. 34 Hungerford
Lane (Balcony 3 Drawing No. 01.10 and 01.12
See Appendix A - Proposed Development
Plans) is located immediately adjacent to the
outdoor living area of No. 32 Hungerford Lane.
No attempt has been made by the owner of No.
34 Hungerford Lane to protect their privacy
when using their outdoor area from this direct
overlooking. As such, any potential privacy
issues as a result of the proposed development
(located substantially lower and therefore much
less invasive) pale in comparison to the
existing privacy issue. The owner has made no
attempt to retain their privacy through the use
of screening or shutters and therefore it is
considered that the proposed rooftop deck
located some 8.5m below will not create any
unreasonable impact.
As demonstrated, the view of Kingscliff Beach,
Cudgen Creek estuary and the Kingscliff Beach
Reserve will not be impeded by the proposed
development. No loss of visual amenity can be
attributed to the proposed development. The
vegetation that is located between No. 34
Hungerford Lane and the subject site will
obstruct direct view from No. 34 Hungerford
Lane onto the rooftop deck area. To further
lessen any potential visual impact of the
rooftop deck on No. 34 Hungerford Lane, visual
screening has been proposed (Drawing No. 08
Page 337
TABLE 1
Refusal Item
•
•
3.
Pursuant to Section 79C(1)(a)(iii)
the development has not demonstrated
compliance with Tweed Shire Council
Development Control Plan 2008 Section
A 1 in particular:
•
The development proposal
exceeds the nine (9) metre height
limit.
•
•
•
Page 338
of Appendix A - Proposed Development
Plans). This will serve to create additional
privacy for the proponent as well as retaining
the existing level of amenity enjoyed by
surrounding residents.
It is noted that the outdoor living area of No. 34
Hungerford Lane in its current state is subject
to noise reception from No. 32 Hungerford
Lane, Marine Parade road traffic as well as
public use of the Kingscliff Beach Reserve. The
outdoor living area of No. 32 Hungerford Lane
is located 5m from the edge of No. 34
Hungerford Lane's outdoor living area (See
Drawing No. 01.10 of Appendix A - Proposed
Development Plans). It is considered that
noise generated from this living area would be
much greater than any potential noise that the
rooftop deck of the proposed dwelling could
generate. Both Marine Parade and the
Kingscliff Beach Reserve are at their highest
use during the summer months when Kingscliff
has a high level of tourist activity. The rooftop
deck will also be at its highest use during the
summer months and will not substantially
increase the level of noise generated by the
current arrangement.
To allay any fears Council may have related to
noise generation, the screening to be located
on the rear elevation of the dwelling is to be
acoustically treated to ensure that the acoustic
amenity of the surrounding properties is
maintained (See Appendix A - Proposed
Development Plans).
As part of the initial development application,
Council were provided with a SEPP No.1
Objection to address the proposed
developments non-compliance with the building
height controls of the Tweed Local
Environmental Plan 2000 (TLEP2000). The
proposed dwelling exceeds the 9m physical
building height limit by 1.2m. This 1.2m
exceedance is the balustrade located on the
trafficable rooftop deck area.
The proposed dwelling is compliant with the 9m
physical height limit as prescribed by Tweed
Shire Council. The exceedance of the height
limit comes from the trafficable rooftop deck
and associated 1.2m high balustrade. The
proposed layout of the rooftop deck has been
reduced in trafficable area to ensure that the
useable portion is set back from the edges of
the dwelling (See Drawing 04 Appendix A Proposed Development Plans). This ensures
that any potential overlooking onto the private
open space of the adjoining properties is
negated.
The additional acoustic and visual screening
proposed within Appendix A is to be measured
from the finished ground level directly below
TABLE 1
Refusal Item
•
5.0
the built element. As such, this results in a total
height of 8.5m which is compliant with the 8m
physical height control.
The trafficable rooftop deck has been proposed
on-site due to the limited lot size (417.3m2).
The site does not allow for a suitable amount of
outdoor private open space due to the steep
escarpment of Kingscliff Hill. As such, the
proposed dwelling and building height variation
is considered to be a well designed and
acceptable solution worthy of Council's
support.
Conclusion
Having reviewed the applicable legislation, it is submitted that the proposed development is generally
consistent with the relevant policy and statutory requirements and demonstrates an appropriate
development of the land. In terms of the built and natural environment, no adverse impacts are likely to
result in relation to the proposed development. The variations requested to Council's development
controls are considered to be justified by the location and constraints applying to the site. The dwelling
will integrate with the existing built character of the Marine Parade and Kingscliff Hill area. Council's
support for the proposed development is respectfully requested.
Should you have any further questions relating to this information it is requested that you contact the
under signed at our office on (02) 6674 5001."
Response to applicant's justification for the Section 82A Review
Table 1 - Refusal item 1
The above document appears not to address the fact that the first reason for refusal was
that the proposed building exceeds the two storey height limit set by the current Local
Environmental Plan. It is in fact the additional storey and the consequence of the roof
terrace on that storey that exacerbates the likely noise impacts on the neighbour at 34
Hungerford Lane and potentially to the occupants of 36 Hungerford although they have not
made any formal submission.
The comparison to the outdoor living area of 32 Hungerford Lane is acknowledged but is
incorrect in part in that the owner of 34 Hungerford Lane does have a substantial privacy
screen on the edge of their verandah that does not adversely obstruct their view and
screens them from the adjacent outdoor verandah at 32 Hungerford Lane. Also they advise
that they have the potential of enclosing that side of their house with a solid wall for acoustic
treatment if they need to in the future without compromising their outlook. The applicants
suggestion that the proposed 2.5m high acoustic wall will ‘ensure that the acoustic amenity
of the surrounding properties is maintained’ is misleading as the acoustic advice by CRG
Acoustic Consultants provided by the applicant, is noted as conservative but suggests that
to be fully effective an acoustic screen would need to be 4.5m high and return half way
along the sides of the building.
The proposal does exceed the 9m height limit contained in the current Development Control
Plan and the Draft Local Environmental Plan 2012 by 1.2m.
The applicant has included amended plans with the Section 82A application which show a
reduction of the spa area from 15m2 to 11.5m2, lowered the sunlounge deck added some
Page 339
addition potted trees and planter boxes and deleted the 23m2 artificial turf area. This
equates generally to a 30% reduction of the usable area from 118m2 to 84m2 and this has
been achieved largely by deleting an artificial turf area. It is estimated that the 118m2 may
comfortably accommodate 20 people and the 84m2 may accommodate 13 people. The
smaller size of the area is acknowledged but the smaller size in this instance does not
necessarily equate to less impact.
It is difficult to evaluate the likely intensity and frequency of use of the proposed roof terrace
and therefore how often nuisance impacts may occur. However what is known is that the
designed variation to the height limit and number of storeys is what has facilitated the
potential nuisance of a roof terrace in this position.
The letter of objection is a confidential attachment.
Page 340
PREVIOUS ROOF TERRACE PLAN:
Page 341
SITE DIAGRAM:
Page 342
Example provided by applicant of a 'green screen'
Assessment under Section 82A:
On 27 August 2013 Council received a Section 82A application for a Review of
Determination for DA12/0498, which originally sought approval for the demolition of an
existing two storey dwelling house at No. 4 Marine Parade, Kingscliff and construct a new
three storey dwelling house with a total floor area of 325m2. At the Council meeting of 20
June 2013, Councillors resolved to refuse development application DA12/0498.
The Section 82A application will be evaluated using the relevant terms of Section 79C of the
Act.
As a part of the assessment process numerous site visits by Council’s assessing officer
have been undertaken to all of the surrounding properties and involving many hours.
Impacts have been discussed by phone with the objectors and concerns raised have been
discussed in meetings with the applicant planning consultant. A further site inspection from
the objectors property was also carried since the Section 82A application was lodged
particularly to assess the position of the external entertaining areas of the property at 32
Hungerford Lane.
The previously determined application assessment also utilised the expertise of Council
Senior Urban Design Planner who gave assistance in gauging the impact of the
development in the context of streetscape and design merit of the building relative to the
adjoining buildings and constraints of the site.
This Section 82A review will include reassessment of the impact of the amended roof
terrace.
Page 343
Considerations Under Section 79C Of The Environmental Planning And Assessment
Act 1979:
(a)
(i)
The aims or objectives of the plan are not compromised by the proposed
development.
For the scale of this development compliance with the submitted BASIX certificate
achieves the objective of this clause.
Zone Objectives
The subject site is zoned 2(b) Medium Density Residential. The primary objective
of the zone is to encourage development for the purpose of medium density
housing that achieves good urban design outcomes. The secondary objectives
relate to allowance for non residential and tourist development and to discourage
the under-utilization of the land for residential purposes, particularly close to the
Tweed Heads sub region area.
The proposed development is not consistent with the primary objective of the
zone but it has been argued by the applicant that there are a number of
constraints to the site that justify the single dwelling being proposed. The
allotment is small, with an area of 417 m2, and is only 17m in depth from front to
rear making the potential for medium density difficult. Also, the applicant points
out that this could be categorised as small lot housing being on a lot less than
450m2 which is an alternative form of medium density.
Cumulative Impacts
The proposed building at three storey's is consistent with other buildings in the
area and is unlikely to be dominant amongst the Kingscliff hill.
There is an argument for cumulative impact on the locality in that the building
does not comply with the two storey height limits of current Local Environmental
Plan (LEP). This is somewhat countered by the existing three storey
development along Marine Parade. In addition, the draft Tweed LEP 2012 seeks
to remove the reference to number of storey and instead limit the height in this
area to 9 metres. The proposed development will have a total height of 10.2m
(RL 14550) measured to the top of the roof top deck balustrade.
As discussed above.
All essential services are available within the area.
In this case a State Environmental Planning Policy No. 1 objection to the number of
permissible storey's has been included in the application.
Page 344
The proposed dwelling exceeds the two storey's permissible and exceeds the total
height of 9m contained in the current DCP part A1 by 1.2m. It should be noted
however that the proposed ‘acoustic green screen’ complies with the height
provisions of the LEP and DCP because the site rises steeply at the rear and
therefore measuring from existing ground level at that point shows compliance.
The proposed building at three storey's is consistent with other buildings in the
area and is unlikely to be dominant amongst the Kingscliff hill.
The roof top deck associated with the extra storey will result in an adverse impact
on the amenity of residence of at least one rear adjoining property.
A social impact assessment is not required given the relatively minor nature of the
proposal being satisfied that it is unlikely to have a significant social or economic
impact in the locality.
The site is classified as having the potential for Class 5 soils under the Acid
Sulphate Soils mapping. The works proposed are not likely to impact on the
affected soils zone.
Clause 39A – Bushfire protection
The site is mapped as bushfire prone however the vegetation resulting in the
mapping no longer exists and therefore no further consideration is required.
None apparent.
This clause controls development which could impede public access to a foreshore
or overshadow the foreshore before 3pm midwinter (standard time) or 6.30pm
midsummer (daylight saving time).
It is recognised throughout all coastal areas that existing urban areas will have
some impact in regards to the shadow of the foreshore.
In this case a State Environmental Planning Policy No. 1 objection has been
included in the application and the facts and argument presented are acceptable.
The extent of the shadow is minor and is in fact intercepted by the shadow cast by
the hillside and vegetation behind. The applicant describes the shadow as
‘invisible’ because of the hillside at the rear and there is no significant adverse
impact resulting on the foreshore parkland to the east of Marine Parade.
The proposed development is consistent with the objectives of the North Coast
Regional Environmental Plan 1988 Division 2 for Urban Housing requiring broader
consideration of roads, access to services, transport, site erosion and of
maximising density.
Page 345
Extract
(1)
(2)
The council shall not consent to a development application for development
on land within 100 metres of the ocean or any substantial waterway unless it
is satisfied that:
(a)
there is a sufficient foreshore open space which is accessible and
open to the public within the vicinity of the proposed development,
(b)
buildings to be erected as part of the development will not detract from
the amenity of the waterway, and
(c)
the development is consistent with the principles of any foreshore
management plan applying to the area.
Nothing in subclause (1) affects privately owned rural land where the
development is for the purpose of agriculture.
The proposed development does not impact on the available foreshore open
space, accessibility or amenity of the waterway.
An objection to development standard contained in the Council’s LEP regarding
number of storeys and the standard contained in Clause 32B of the North Coast
Regional Environmental Plan have been lodged with the development application
and have been addressed under separate headings.
SEPP No 55 – Remediation of land
There is no evidence or past land use activity that would suggest that the land is
contaminated.
The development is generally consistent with the specific provisions and intent of
Clause 8 of SEPP 71.
SEPP (Building Sustainability Index: BASIX) 2004
The applicant has provided a BASIX certificate for the proposal which is
consistent with the required energy target.
NSW Coastal Policy, 1997
The proposed dwelling is not inconsistent with the Coastal Policy.
(a)
(ii)
The Draft Tweed Local Environmental Plan 2012 proposes similar controls to the
site as currently exist with the exception of one significant variation. The Draft
Plan proposes to remove the two storey height limit and instead apply a
maximum building height of 9m.
The proposed building has a height of 9m to the floor level of the roof top deck
and has balustrading, spa, decking and planter boxes up to a further 1.2m higher
again. The proposed development would not comply with the height controls of
the draft plan unless the roof top deck use was removed and therefore not require
the balustrading and spa pool etc.
The Draft Local Environmental Plan is now considered imminent. The implications
are the same in that the 9m maximum height of the building would form part of the
Page 346
Local Environmental Plan and carry more weight than the current 9m control in the
Development Control Plan and therefore not support the proposed building.
(a)
Variation to A1 have been sought for the height of the building, wall plate height,
rear deep soil zone, front building line, rear setback and the floor space ratio
requirement.
Council’s recently adopted amendment to DCP part A1 version 1.5 has effectively
removed or minimised some of the non-compliant aspects of this development.
Wall plate height and floor space ratio have been removed. Deep soil zone
requirements a relaxed and setbacks are also reduced and the consequence is
that there are fewer variations to the DCP applicable to the development.
Complies generally.
If approved, a condition requiring separate approval for front fencing incorporating
driveway sight clearances has been included.
The application was notified in accordance with policy. Please refer to a further
section in the report to view a summary of the submissions and the officer’s
response to those submissions.
B9-Tweed Coast Strategy
The proposal does not contradict any parts of the Tweed Coast Strategy.
(a)
The proposed dwelling is not inconsistent with the Coastal Policy.
Australian Standard 2601 is referred to in the demolition work plan and will be
reinforced by conditions should the application be approved.
Not applicable.
Not applicable.
(a)
(v)
Protection Act 1979)
The proposed building is outside the 2100 erosion escarpment line and no
specific development controls need to be applied.
This plan does not apply to the subject site.
Page 347
The proposed development will not adversely impact on the Cudgen Creek water
quality as the proposal will discharge roofwater only into the existing street
stormwater system.
Coastal zone Management Plan for Cobaki and Terranora Broadwater
This plan does not apply to the subject site.
(b)
in the locality
Context and Setting
An infill development is proposed, within an established residential subdivision
which has been specifically created for residential development. The proposed
development is of a design generally in keeping with the architectural style and
residential character of the area taking into account the redevelopment occurring
overall in the area, with the exception that the roof top deck which has 118
square metres of usable recreation area may result in an undesirable precedent
for development on the lower part of a hillside where higher level dwellings can
be affected.
Minimal impact is envisaged, the proposal is a single residence within an
approved residential subdivision.
Flora and Fauna
Minimal impact is envisaged; the site has no significant plantings and is part of an
existing urban environment.
Site design and Internal design
The roof top deck will have adverse impact on the amenity of the residents of the
property to the rear No. 34 Hungerford Lane.
The inclusion of the roof top deck on the proposed three storey building is the
primary concern in this development. It raises the level of outdoor living area to a
level and position that will impact on the residents of at least one property above.
Noise and potential evening illumination will impact of on their amenity. The
design now incorporates a 2.5m high ‘acoustic green screen’ on the back edge of
the deck which is likely to reduce a little of the noise impact and provide for some
greater visual privacy particularly in relation to the position of the spa/pool. It is to
be noted that the total height of the building measured from natural ground level
at the point of the ‘acoustic green screen’ does comply with the 9m maximum
height requirements of the DCP.
Acoustic advice by CRG Acoustic Consultants has been provided and is noted as
conservative but suggests that to be fully effective an acoustic screen would need
to be 4.5m high and return half way along the sides of the building. That would
be unsightly and contribute further to the non compliant height of the building.
It is difficult to evaluate the frequency of use of the proposed roof top deck which
needs to be taken into account when considering what is reasonable. The design
of this deck at 118 square metres of usable floor area and a spa/pool would
suggest frequent use.
Page 348
Other than the concern about the roof top deck the building is considered to be of
reasonable design taking into account the relationship with the adjacent buildings
on either side. The external finishing is mixed and provides good architectural
merit. The design provides four off street car parking spaces and includes privacy
screening to the second floor balconies to minimise impact on adjoining residences
either side.
(c)
The proposal is consistent with the surrounding land use and the site is suitable
for the proposed development. The property is located within an existing
residential area and utilities including reticulated water, public sewer and power
are provided to the site. A mixture of old and new dwellings with varying
architectural styles exist within the area, the design of the dwelling is considered
to be in keeping with the existing residential character of the area.
Flora and Fauna
Minimal impact is envisaged; the site has no significant plantings and is part of an
existing urban environment.
Topography
The site rises steeply at the rear of the allotment and the geotechnical reports
submitted state that the development could proceed without destabilisation of the
adjoining properties.
Site Orientation
The living areas of the dwelling have been mainly orientated to the north and
northeast to optimise ocean views and breezes and solar access to the north.
(d)
The objector has reiterated concerns regarding the loss of amenity and these
concerns are considered justified.
(e)
Public interest
The development will not have an adverse impact or compromise public interest.
OPTIONS:
1.
Uphold the decision to refuse the application based on the three reasons for refusal
previously determined; or
2.
Resolve to approve the application subject to the following conditions:
GENERAL
1.
Environmental Effects as amended, Demolition Work plan prepared by Planit
Consulting dated 24th October 2012 and Plan Nos 12656 dwg no 01-15 prepared
by RAUNIC design group and dated 14th August 2013, except where varied by
the conditions of this consent.
[GEN0005]
Page 349
2.
The issue of this Development Consent does not certify compliance with the
relevant provisions of the Building Code of Australia.
[GEN0115]
3.
The owner is to ensure that the proposed building is constructed in the position
and at the levels as nominated on the approved plans or as stipulated by a
condition of this consent, noting that all boundary setback measurements are
taken from the real property boundary and not from such things as road bitumen
or fence lines.
[GEN0300]
4.
The proposed front fence is not to obscure a 2.0m x 2.0m splay adjacent to the
driveway in accordance with clause 4.1.2 of Council's 'Driveway Access to
Property- Design Specification'.
[GENNS01]
5.
In accordance with Section 109F(i) of the Environmental Planning and
payable under Section 34 of the Building and Construction Industry Long Service
Payments Act, 1986 (or where such levy is payable by instalments, the first
instalment of the levy) has been paid. Council is authorised to accept payment.
Where payment has been made elsewhere, proof of payment is to be provided.
[PCC0285]
6.
A construction certificate application for works that involve any of the following:
·
connection of a private stormwater drain to a public stormwater drain
·
installation of stormwater quality control devices
·
erosion and sediment control works
will not be approved until prior separate approval to do so has been granted by
Council under Section 68 of the Local Government Act.
a)
Applications for these works must be submitted on Council's standard
Section 68 stormwater drainage application form accompanied by the
required attachments and the prescribed fee.
b)
Where Council is requested to issue a construction certificate for civil works
associated with a subdivision consent, the abovementioned works can be
incorporated as part of the construction certificate application, to enable one
single approval to be issued. Separate approval under Section 68 of the
Local Government Act will then NOT be required.
[PCC1145]
7.
If the development is likely to disturb or impact upon telecommunications
infrastructure, written confirmation from the service provider that they have
agreed to the proposed works must be submitted to the Principal Certifying
Authority prior to the issue of a Construction Certificate or any works
commencing, whichever occurs first.
The arrangements
telecommunications
applicant/developer.
and costs associated
infrastructure shall be
with any adjustment to
borne in full by the
[PCC1325]
Page 350
8.
An application is to be made to Council to disconnect the existing building from
Council's sewerage system, prior to any demolition work commencing.
[PCW0045]
9.
The erection of a building in accordance with a development consent must not be
commenced until:
(a)
a construction certificate for the building work has been issued by the
consent authority, the council (if the council is not the consent authority) or
(b)
the person having the benefit of the development consent has:
(c)
(d)
(i)
appointed a principal certifying authority for the building work, and
(ii)
notified the principal certifying authority that the person will carry out
the building work as an owner-builder, if that is the case, and
the principal certifying authority has, no later than 2 days before the building
work commences:
(i)
notified the consent authority and the council (if the council is not the
consent authority) of his or her appointment, and
(ii)
notified the person having the benefit of the development consent of
any critical stage inspections and other inspections that are to be
carried out in respect of the building work, and
the person having the benefit of the development consent, if not carrying out
the work as an owner-builder, has:
(i)
appointed a principal contractor for the building work who must be the
holder of a contractor licence if any residential work is involved, and
(ii)
notified the principal certifying authority of any such appointment, and
(iii)
unless that person is the principal contractor, notified the principal
contractor of any critical stage inspection and other inspections that
are to be carried out in respect of the building work.
[PCW0215]
10. Prior to work commencing, a "Notice of Commencement of Building or
Subdivision Work and Appointment of Principal Certifying Authority" shall be
submitted to Council at least 2 days prior to work commencing.
[PCW0225]
11. Residential building work:
(a)
Residential building work within the meaning of the Home Building Act 1989
must not be carried out unless the principal certifying authority for the
development to which the work relates (not being the council) has given the
council written notice of the following information:
(i)
in the case of work for which a principal contractor is required to be
appointed:
*
in the name and licence number of the principal contractor, and
*
the name of the insurer by which the work is insured under Part 6
of that Act,
Page 351
(ii)
(b)
in the case of work to be done by an owner-builder:
*
the name of the owner-builder, and
*
if the owner-builder is required to hold an owner builder permit
under that Act, the number of the owner-builder permit.
If arrangements for doing the residential building work are changed while
the work is in progress so that the information notified under subclause (1)
becomes out of date, further work must not be carried out unless the
principal certifying authority for the development to which the work relates
(not being the council) has given the council written notice of the updated
information.
[PCW0235]
12. A temporary builder's toilet is to be provided prior to commencement of work at
the rate of one (1) closet for every fifteen (15) persons or part of fifteen (15)
persons employed at the site. Each toilet provided must be:
(a)
a standard flushing toilet connected to a public sewer, or
(b)
if that is not practicable, an accredited sewage management facility
approved by the council
[PCW0245]
13. Where prescribed by the provisions of the Environmental Planning and
Assessment Regulation 2000, a sign must be erected in a prominent position on
any site on which building work, subdivision work or demolition work is being
carried out:
(a)
showing the name, address and telephone number of the principal certifying
authority for the work, and
(b)
showing the name of the principal contractor (if any) for any building work
and a telephone number on which that person may be contacted outside
working hours, and
(c)
stating that unauthorised entry to the site is prohibited.
Any such sign is to be maintained while the building work, subdivision work or
demolition work is being carried out, but must be removed when the work has
been completed.
[PCW0255]
14. It is a condition of this approval that, if an excavation extends below the level of
the base of the footings of a building on an adjoining allotment of land or is likely
to effect the integrity of the adjoining land, the person causing the excavation to
be made must comply with the following:
(a)
The person must, at the person's own expense:
(i)
preserve and protect the building/property from damage; and
(ii) if necessary, underpin and support the building in an approved
manner.
(b)
Page 352
The person must, at least 7 days before excavating below the level of the
base of the footings of a building on an adjoining allotment of land, give
notice of intention to do so to the owner of the adjoining allotment of land
and furnish particulars to the owner of the proposed work.
[PCW0765]
15. Dilapidation reports detailing the current general condition including the structural
condition of the adjoining buildings/sites, infrastructure and driveway are to be
prepared and certified by a suitably qualified and experienced structural engineer.
The reports are to be submitted to Council prior to commencement of ANY works
on the site.
[PCW0775]
16. The proponent shall provide to the PCA copies of Public Risk Liability Insurance
to a minimum value of $10 Million for the period of commencement of works until
the completion of the defects liability period.
[PCW0835]
17. Prior to commencement of work on the site all erosion and sedimentation control
measures are to be installed and operational including the provision of a "shake
down" area, where required. These measures are to be in accordance with the
approved erosion and sedimentation control plan and adequately maintained
throughout the duration of the development.
In addition to these measures the core flute sign provided with the stormwater
approval under Section 68 of the Local Government Act is to be clearly displayed
on the most prominent position of the sediment fence or erosion control device
which promotes awareness of the importance of the erosion and sediment
controls provided.
This sign is to remain in position for the duration of the project.
[PCW0985]
18. All roof waters are to be disposed of through properly jointed pipes to the street
gutter, interallotment drainage or to the satisfaction of the Principal Certifying
Authority. All PVC pipes to have adequate cover and installed in accordance with
the provisions of AS/NZS3500.3.2. Note All roof water must be connected to an
interallotment drainage system where available. A detailed stormwater and
drainage plan is to be submitted to and approved by the Principal Certifying
Authority prior to commencement of building works.
[PCW1005]
19. An application to connect to Council's sewer or carry out plumbing and drainage
works, together with any prescribed fees including inspection fees, is to be
submitted to and approved by Council prior to the commencement of any building
works on the site.
[PCW1065]
DURING CONSTRUCTION
vehicles is limited to the following hours, unless otherwise permitted by Council: Monday to Saturday from 7.00am to 6.00pm
hours of work.
[DUR0205]
Page 353
21. The wall and roof cladding is to have low reflectivity where they would otherwise
cause nuisance to the occupants of buildings with direct line of sight to the
proposed building.
[DUR0245]
22. All building work (other than work relating to the erection of a temporary building)
must be carried out in accordance with the requirements of the Building Code of
Australia (as in force on the date the application for the relevant construction
certificate was made).
[DUR0375]
23. Building materials used in the construction of the building are not to be deposited
or stored on Council's footpath or road reserve, unless prior approval is obtained
from Council.
[DUR0395]
24. Building materials used in the construction of the building are not to be deposited
or stored on Council's footpath or road reserve, unless prior approval is obtained
from Council.
[DUR0395]
25. The Principal Certifying Authority is to be given a minimum of 48 hours notice
prior to any critical stage inspection or any other inspection nominated by the
Principal Certifying Authority via the notice under Section 81A of the
Environmental Planning and Assessment Act 1979.
[DUR0405]
26. It is the responsibility of the applicant to restrict public access to the construction
works site, construction works or materials or equipment on the site when
construction work is not in progress or the site is otherwise unoccupied in
accordance with WorkCover NSW requirements and Work Health and Safety
Regulation 2011.
[DUR0415]
27. Excavation
(a)
All excavations and backfilling associated with the erection or demolition of
a building must be executed safely and in accordance with WorkCover 2000
Regulations.
(b)
All excavations associated with the erection or demolition of a building must
be properly guarded and protected to prevent them from being dangerous to
life or property.
[DUR0425]
28. If the work involved in the erection or demolition or a building:
(a)
is likely to cause pedestrian or vehicular traffic in a public place to be
obstructed or rendered inconvenient; or
(b)
building involves the enclosure of a public place,
a hoarding or fence must be erected between the work site and the public place
in accordance with the WorkCover Authority of NSW Code of Practice and
relevant Australian Standards.
Where necessary the provision for lighting in accordance with AS 1158 - Road
lighting and provision for vehicular and pedestrian traffic in accordance with AS
1742 shall be provided.
Page 354
Any such hoarding, fence or awning is to be removed prior to the issue of an
occupation certificate/subdivision certificate.
Application shall be made to Tweed Shire Council including associated fees for
approval prior to any structure being erected within Councils road reserve.
[DUR0435]
29. The finished floor level of the building should finish not less than 225mm above
[DUR0445]
30. All demolition work is to be carried out in accordance with the provisions of
Australian Standard AS 2601 "The Demolition of Structures" and to the relevant
requirements of the WorkCover NSW, Work Health and Safety Regulation 2011.
The proponent shall also observe the guidelines set down under the Department of
Environment and Climate Change publication, “A Renovators Guide to the
Dangers of Lead” and the Workcover Guidelines on working with asbestos.
[DUR0645]
31. Minimum notice of 48 hours shall be given to Tweed Shire Council for the
capping of any disused sewer junctions. Tweed Shire Council staff in accordance
with the application lodged and upon excavation of the service by the developer
shall undertake the works.
[DUR0675]
32. All cut or fill on the property is to be battered at an angle not greater than 45º
within the property boundary, stabilised and provided with a dish drain or similar
at the base in accordance with Tweed Shire Councils Design and Construction
Specifications, Development Control Plan Part A1 to the satisfaction of the
Principal Certifying Authority.
Please note timber retaining walls are not permitted.
[DUR0835]
33. The development is to be carried out in accordance with the current BASIX
certificate and schedule of commitments approved in relation to this development
consent.
[DUR0905]
·
·
·
[DUR1005]
35. All works shall be carried out in accordance with Councils Acid Sulfate Soils
Management Plan for Minor Works. A signed copy of this Management Plan
shall be submitted to Council prior to the commencement of works.
[DUR1075]
mains, power and telephone services etc) during construction of the development
shall be repaired in accordance with Councils Development Design and
Page 355
Construction Specifications prior to the issue of a Subdivision Certificate and/or
prior to any use or occupation of the buildings.
[DUR1875]
mains, power and telephone services etc) during construction of the development
shall be repaired in accordance with Councils Development Design and
Construction Specifications prior to the issue of a Subdivision Certificate and/or
prior to any use or occupation of the buildings.
[DUR1875]
38. No portion of the structure may be erected over any existing sullage or
stormwater disposal drains, easements, sewer mains, or proposed sewer mains.
[DUR1945]
39. A certificate from a suitably qualified practicing structural engineer shall be
submitted to Council and the Principle Certifying Authority within seven (7) days
of the site being excavated certifying the adequacy of the sheet piling or other
retaining method used to support adjoining properties.
[DUR1965]
40. The builder must provide an adequate trade waste service to ensure that all
waste material is suitably contained and secured within an area on the site, and
removed from the site at regular intervals for the period of construction/demolition
to ensure no material is capable of being washed or blow from the site.
[DUR2185]
41. Council is to be given 24 hours notice for any of the following inspections prior to
the next stage of construction:
(a)
internal drainage, prior to slab preparation;
(b)
water plumbing rough in, and/or stackwork prior to the erection of brick work
or any wall sheeting;
(c)
external drainage prior to backfilling.
(d)
completion of work and prior to occupation of the building.
[DUR2485]
42. Plumbing
(a)
A plumbing permit is to be obtained from Council prior to commencement of
any plumbing and drainage work.
(b)
The whole of the plumbing and drainage work is to be completed in
accordance with the requirements of the Plumbing Code of Australia and
AS/NZS 3500.
[DUR2495]
43. Dual flush water closet suites are to be installed in accordance with Local
Government Water and Sewerage and Drainage Regulations 1993.
[DUR2515]
44. Overflow relief gully is to be located clear of the building and at a level not less
than 150mm below the lowest fixture within the building and 75mm above
[DUR2545]
Page 356
45. All new hot water installations shall deliver hot water at the outlet of sanitary
fixtures used primarily for personal hygiene purposes at a temperature not
exceeding:*
45ºC for childhood centres, primary and secondary schools and nursing
homes or similar facilities for aged, sick or disabled persons; and
*
50ºC in all other classes of buildings.
A certificate certifying compliance with the above is to be submitted by the
licensed plumber on completion of works.
[DUR2555]
46. No retaining walls or similar structures are to be constructed over or within the
zone of influence of Council's sewer main.
[DUR2705]
47. The excavation and retaining work on the site are to be carried out under
engineers' direction and supervision as appropriate to ensure that the integrity of
adjacent properties and surrounding structures are maintained.
[DURNS01]
PRIOR TO ISSUE OF OCCUPATION CERTIFICATE
48. A person must not commence occupation or use of the whole or any part of a
new building or structure (within the meaning of Section 109H(4)) unless an
occupation certificate has been issued in relation to the building or part
(maximum 25 penalty units).
[POC0205]
49. Prior to occupation of the building the property street number is to be clearly
identified on the site by way of painted numbering on the street gutter within 1
metre of the access point to the property.
The street number is to be on a white reflective background professionally
painted in black numbers 100mm high.
On rural properties or where street guttering is not provided the street number is
to be readily identifiable on or near the front entrance to the site.
For multiple allotments having single access points, or other difficult to identify
properties, specific arrangements should first be made with Council and
emergency services before street number identification is provided.
The above requirement is to assist in property identification by emergency
services and the like. Any variations to the above are to be approved by Council
prior to the carrying out of the work.
[POC0265]
50. A final occupation certificate must be applied for and obtained within 6 months of
any Interim Occupation Certificate being issued, and all conditions of this consent
must be satisfied at the time of issue of a final occupation certificate (unless
otherwise specified herein).
[POC0355]
51. Prior to the issue of a final occupation certificate adequate proof and/or
documentation is to be submitted to the Principal Certifying Authority to identify
that all commitment on the BASIX "Schedule of Commitments" have been
complied with.
Page 357
[POC0435]
52. Upon completion of all works on the site and prior to the issue of an Occupation
Certificate (including interim) , a further dilapidation report is to be prepared and
certified by a suitably qualified and experienced structural engineer detailing the
current general condition including the structural condition of the adjoining
buildings/sites, infrastructure and roads. The dilapidation reports shall take into
consideration the findings of the original reports and shall be provided to Council.
[POC0825]
53. As the development subject of this consent has been identified as having the
potential to cause nuisance from the use of the roof terrace this consent is
subject to the owner of the subject land creating a positive covenant under
section 88E of the (Conveyancing Act 1919) on the following terms PRIOR TO
THE ISSUE OF AN OCCUPATION CERTIFICATE.
·
Large gatherings on the roof terrace must occur between the hours of
7.00am and 10.00pm.
·
Social gatherings will occur at a frequency that is reasonably limited taking
into account the impact on adjacent premises.
·
The provision of music for the social gatherings on the roof terrace will not
be amplified.
·
The landowner shall install planter boxes on the roof terrace and such
planter boxes are to be maintained to ensure that a thick vegetative visual
screen is established to a level of up to 3.0 metres.
·
All externally mounted artificial lighting on the roof terrace, including security
lighting, is to be shielded to prevent the spill of light or glare onto
neighbouring premises.
·
All external lighting on the roof terrace shall be limited between the hours of
7.00am and 10.00pm.
·
The times referred to above will refer to the relevant time zone at any given
date.
[POCNS01]
USE
54. All externally mounted air conditioning units and other mechanical plant or
equipment are to be located so that any noise impact due to their operation which
may be or is likely to be experienced by any neighbouring premises is minimised.
Notwithstanding this requirement all air conditioning units and other mechanical
plant and or equipment is to be acoustically treated or shielded where considered
necessary to the satisfaction of the General Manager or his delegate such that
the operation of any air conditioning unit, mechanical plant and or equipment
does not result in the emission of offensive or intrusive noise.
[USE0175]
55. All externally mounted artificial lighting on the roof to terrace, including security
lighting, is to be shielded to the satisfaction of the General Manager or his
delegate where necessary or required so as to prevent the spill of light or glare
creating a nuisance to neighbouring or adjacent premises. The illumination of the
roof terrace shall not be permitted before 7am or after 10pm.
[USE0225]
Page 358
56. The building is to be used for single dwelling purposes only.
[USE0505]
57. No large gatherings are permitted on the roof terrace before 7am or after 10pm.
Such events shall be at a frequency that is reasonably limited taking into account
the impacts on adjacent premises.
[USENS01]
58. No amplified music is permitted on the roof terrace.
[USENS02]
59. All planter boxes shown on the approved plans are to be maintained so as to
promote growth and a thick visual screen. The height of this planter vegetation is
to be restricted at 3.0m.
[USENS03]
CONCLUSION:
No substantive additional information has been lodged to cause a different recommendation.
The amended plans providing reduction of the usable area of the roof terrace are not
considered likely to remove the potential impact on the amenity of the occupants of 34
Hungerford Lane. The proposed development exceeds the number of storeys permitted by
the current Local Environmental Plan, exceed the 9m height limit in the DCP and the Draft
LEP. The use of the roof as a deck necessitates the provision of a balustrade which then
creates non-compliance in the height of the building of 1.2m. It is these two variations that
will result in the adverse impact on the amenity of the residents behind and although there is
uncertainty in the likely frequency and intensity of use of the deck it is considered that these
variations are not justified and the proposal should be refused.
a.
Policy:
Not Applicable.
c.
Legal:
Should the applicant be dissatisfied with the determination they have the right to appeal the
decision in the Land and Environment Court which would incur financial costs to Council in
defence.
Not Applicable.
(Confidential) Attachment 1. Letter from objector dated 12 September 2013 (ECM 3179353)
Page 359
Page 360
30
[PR-CM] Draft Tweed Development Control Plan - Section B15 Seabreeze
Estate
SUBMITTED BY:
Planning Reforms
FILE REFERENCE: GT1/DCP/B15 pt2
Valid
1
Civic Leadership
1.5
Manage and plan for a balance between population growth, urban development and environmental protection and the retention of
economical viable agriculture land
1.5.2
Land use plans and development controls will be applied and regulated rigorously and consistently and consider the requirements of
development proponents, the natural environment and those in the community affected by the proposed development
SUMMARY OF REPORT:
This report seeks Council's endorsement to proceed with making of amendments to the
Tweed Development Control Plan - Section B15 Seabreeze Estate (draft Seabreeze DCP),
which became effective in January 2000.
Post public exhibition of the draft Seabreeze DCP, Council considered a report
recommending adoption at its meeting of 19 September 2013. At this meeting, Council
resolved 'that this report be deferred to a Workshop which includes the community'. The
public workshop was held on 21 October 2013.
The report identifies the main items of discussion from the public workshop, which primarily
included concerns regarding site size and location between the current 'Town Centre A' site
and the alternate 'Town Centre B' site, which the Proponent now seeks.
This report concludes that the alternate Town Centre site B is acceptable and that the DCP
should be amended to allow the rezoning of this site and subsequent commercial
development to occur. However, in the absence of the rezoning occurring, and which would
allow a broader range of commercial business uses to better service the needs of the local
community, Town Centre site A is to be retained and is not to be developed for a purpose
other than for a shop or other permissible commercial development unless the rezoning of
site B has occurred. The report also concludes that there is no preference from a strategic
planning perspective regarding either the suitability of location A or B, as they are equally
suitable.
The implementation of the draft Seabreeze DCP will enable the development of the final
stages of the Seabreeze Estate, which is consistent with the Council's strategic vision for
the area. The proposed amendments will provide an opportunity for an alternate Town
Page 361
Centre site, but with certainty that the Estate will have a commercial site of a restricted size,
and for these reasons the report recommends that the draft Seabreeze DCP be adopted.
RECOMMENDATION:
That Council:
1.
Receives and notes the summary of the public workshop.
2.
Endorses the Tweed Development Control Plan - Section B15 Seabreeze Estate,
as provided as Attachment 2 to this report.
3.
Endorses the public notice of the adoption of the Tweed Development Control
Plan in accordance with Clause 21(2) of the Environmental Planning and
Assessment Regulation 2000, satisfying the provision of Clauses 53E(5) and
53E(6) of the Tweed Local Environmental Plan 2000 – Specific Provisions for
Seabreeze Estate – Stage 2.
4.
Forwards a copy of the Development Control Plan Section B15 – Seabreeze
Estate to the Director-General of the NSW Department of Planning and
Infrastructure in accordance with Clause 25AB of the Environmental Planning
and Assessment Regulation 2000.
Page 362
REPORT:
On 19 September 2013, Council considered a report regarding draft Tweed Development
Control Plan - Section B15 Seabreeze Estate (draft Seabreeze DCP), resolving 'that this
report be deferred to a workshop which includes the community'. A copy of the Council
report from 19 September 2013 is provided in Attachment 1 of this report.
The public workshop was conducted on 21 October 2013, at the Pottsville Environment
Centre and included speakers from the Pottsville Community Association and the landowner
Newland Pty Ltd. Tweed Shire Councillors' Longland and Armstrong were in attendance, as
well as approximately 30 members of the general public.
During the public workshop presentations primarily focussed on the landowners request to
shift the Town Centre site from Town Centre A to Town Centre B, as identified within Map 1
below. Of particular concern for some participants was the size and site location of the
proposed Town Centre B, however secondary issues relating to the established 'vision' for
Seabreeze Estate were also raised. These matters are discussed further below.
Map 1 - The Location of Town Centre A and Town Centre B
Issue - Site Size
A number of workshop participants raised concern that Town Centre B comprised a
significantly larger site area, than Town Centre A (4,432m2 as opposed to 2,305m2 for Town
Centre A). Concerns were conveyed that the increase in site area could result in an
increase in floor space for shops and the like, which could in-turn threaten the primacy of the
Pottsville Village Centre, contradict Council's established Retail Principles and was not
adequately justified in the material submitted to Council.
Page 363
Representatives of Newland (landowners) conveyed that whilst the site area of Town Centre
B is larger, it was their intention to subdivide the land to create two (2) allotments, including
a 1,080m2 lot which will be marketed for use as a shop, and secondly a 3,352m2 lot which
will be marketed for child care use. To this extent, Newland has lodged with Council a
Development Application (DA13/0577) for a 89-lot subdivision, which includes this
subdivision arrangement for the Town Centre B area.
There appeared to be a level of acceptance from the community at the workshop that should
the Town Centre B site be developed as per the scenario described by Newlands (One
small general store/shop and a child care centre) that this would be a satisfactory outcome.
Notwithstanding the above, DA13/0577 is subject to its own submission period and
assessment process; separate to the draft Seabreeze DCP process.
In addition,
DA13/0577 seeks approval to create allotments, not to construct the shop and/or child care
centre; these activities would be pursued through a separate development application
process. This information was detailed to the workshop attendees.
Post the public workshop, further correspondence was received on behalf of the Pottsville
Community Association, maintaining their opposition to the change in site size from 2,300m2
to 4,400m2. The submission detailed that there is no perceived public interest in the
proposed change and the proposed childcare and shop development/s could be catered for
on the Town Centre A site.
Issue - Site Location
Concern was raised that based upon anecdotal evidence, the Town Centre B site could be
subject to flood inundation. Further concern was raised regarding potential flooding as the
Town Centre B site immediately adjoins an overland flow path to the east and wetlands to
the immediate north. Concern was also expressed that the use of the site for nonresidential purposes could increase the extent of non-permeable surface area on the site,
potentially impacting upon adjoining land. Newlands representatives confirmed that the site
has previously been filled to Council's adopted design flood level, as identified within
Council's report of 19 September 2013. Map 2, below, identifies the relationship between
the Town Centre B site and Council's adopted flood prone land mapping.
Page 364
Page 365
Map 2 - Flood Prone Land
As shown within Map 2, the Town Centre B site is primarily flood free, except for a minor
portion of the south-eastern corner. Finally, the ultimate development form of the site will be
subject to a separate development application process, which will investigate flooding and
site permeability attributes to a greater level of detail. Notwithstanding, flooding does not
represent a barrier to the adoption of the draft Seabreeze DCP.
A further issue was raised in relation to the Town Centre B site being along the primary
movement corridor for students attending the potential future school and utilising the existing
sportsfields on both Seabreeze Boulevard and Tom Merchant Drive. Concern was raised
that the positioning of the Town Centre along this route may result in social issues and
impacts.
The final concern in relation to the site location of Town Centre B related to the expectations
of the existing Seabreeze community. Several workshop participants commented that they
had purchased within the Seabreeze Estate based upon the current masterplan, which
identifies the Town Centre A site as the location of the proposed shops. Participants voiced
their concern that relocating the Town Centre to site B could result negatively on their
properties and that it appeared unfair to make such a big change now that the first stages of
the Estate are almost fully developed. The concerns articulated at the community workshop
were reaffirmed through a further submission received from the Pottsville Community
Association.
Although not directly relevant to the draft Seabreeze DCP, a number of issues regarding
changes to the Seabreeze Estate and perceived lack of upkeep were raised, with several
participants conveying that the movement of the Town Centre site would be another change
from the masterplan and the vision of the area established, a vision they invested in.
In response, Newland representatives stated that it was their opinion that the Town Centre B
site was better suited to the proposed use than the existing Town Centre A site and that the
change was being pursued as a result of Council suggestions. Despite this, Newland
representatives stated that they would revert back to the Town Centre A site if that was the
consensus of the community.
Council offices clarified that the intent for the Town Centre B site, as detailed within Map 7A
of the draft Seabreeze DCP, is to encourage a development of design excellence through
the subdivision and built form to reflect and reinforce the landmark location of the corner
site. The use of the site specifically for a Town Centre was not requested or suggested by
Council officers; however, the use of the corner site should be of higher order than a single
dwelling house and represents a positive opportunity.
Other matters
Several other, general matters were raised during a formal question and answer period,
however these matters were not considered directly relevant to the draft Seabreeze DCP,
for example to quality of street lighting.
Summary
Despite the subsequent lodgement of DA13/0577, which seeks approval for a 1,080m2 'retail
lot' and a 3,352m2 'child care lot' on the Town Centre B, community concern is still present
that the Town Centre B site is not located as well as Town Centre A, which has been
Page 366
earmarked for over 12 years. In addition, several participants commented that Town Centre
B should not be supported without the certainty of the size and location of the discussed
Shop and Child Care development being approved, which is beyond the current DA lodged
with Council. Of note, this level of certainty (i.e. single shop and child care development
only) cannot reasonably be embodied within the draft Seabreeze DCP, particularly as the
Tweed Local Environmental Plan provides a wider spectrum of uses that are permissible
with consent within the low density residential zone.
Throughout the public workshop, Council planning officers re-enforced the position
established within the Council reports of 19 September and 20 June 2013, being that
despite Town Centre A and Town Centre B being similarly unconstrained by environmental
factors, Town Centre A is the preferred Town Centre location. As detailed previously, Town
Centre A is zoned more appropriately (2(c) Urban Expansion as opposed to 2(a) Low
Density Residential) to fulfil the longstanding vision embodied within the draft Seabreeze
DCP. As detailed within the draft Seabreeze DCP, unless this zoning constraint is rectified,
the Town Centre is to be located on the Town Centre A site.
OPTIONS:
1.
That the amendments to the Tweed DCP, Section B15 - Seabreaze Estate, which
includes an alternate town centre site location, be approved in accordance with the
recommendations of this report, or
2.
Council approves the Tweed DCP, Section B15 - Seabreaze Estate in accordance with
the recommendations of this report, except in so far that all references to the alternate
site location for the Town Centre (site B) are removed.
CONCLUSION:
In accordance with the Council resolution of 19 September 2013 a public workshop was
held on 21 October 2013 at the Pottsville Environmental Centre. A number of issues were
raised by workshop participants, which have been detailed within this report.
Following an assessment of the Proponent's request to amend the DCP and the issues
raised both at the workshop and subsequently by correspondence it is concluded that the
amendments are justified and the DCP should be amended.
The draft Seabreeze DCP is provided as Attachment 2 to this report.
In regard to the proposed alternate town centre site the key issues that arose relate to the
potential size of any future commercial development and the ability of the present low
density zoning to accommodate a reasonable mix of commercial / retail land-uses. It was
concluded that the current 2(a) low density zone is not adequate because commercial
development would be restricted to a neighbourhood shop or medical centre. It does not
allow for other reasonable uses that may otherwise be sought in the longer-term and that
would better secure the sustainability of the commercial function of the site, e.g. cafe,
takeaway food and drink premises, shop (other than neighbourhood), and the like.
Likewise, the size of any future commercial development needs to relate to the site's service
Page 367
function and catchment. The proposed alternate site B has an area of about 4,400m2 and
provisions will need to be made to limit or regulate the floor area of any future development.
To provide the security that the alternate site is commercially sustainable in the longer-term
and that new development does not exceed the demand of the local catchment it is a
proposed requirement within the draft DCP that a rezoning first occur. This means that the
current Town Centre site A cannot be used for non commercial development purposes until
such time that the rezoning of site B has been completed. This also provides the added
benefit of a strategic process that will provide opportunity for the local community to have
further input should the Proponent wish to proceed with relocating the Town Centre site.
The adoption of the draft Seabreeze DCP will enable the development of the final stages of
the Seabreeze Estate, facilitating an outcome that is consistent with the current vision for
the area and that is in keeping with the broader locality.
a.
Policy:
b.
Nil
Budget/Long Term Financial Plan:
c.
Legal:
Not Applicable.
Consult-We will listen to you, consider your ideas and concerns and keep you informed.
Attachment 1.
Attachment 2
Page 368
Council Meeting Report of 19 September 2013 (ECM
3212555)
Tweed Development Control Plan – Section B15 – Seabreeze
Estate, Pottsville (ECM 3212556)
31
[PR-CM] Planning Proposal PP10/0007 - Mooball Planning Proposal
SUBMITTED BY:
Planning Reforms
FILE REFERENCE: PP10/0007 Pt2
Valid
1
Civic Leadership
1.5
1.5.3
The Tweed Local Environmental Plan will be reviewed and updated as required to ensure it provides an effective statutory framework
to meet the needs of the Tweed community
SUMMARY OF REPORT:
The purpose of this report is to provide an update on the status of the 'Mooball Planning
Proposal' (the Proposal), detail the ongoing actions following Council's resolution of 19
September 2013 and provide an approach for advancing the Proposal.
The report advises that on 9 October 2013, a meeting between the relevant parties was
facilitated by Council officers in an attempt to resolve a mutually acceptable buffer treatment
between the proposed future development and Lot B DP 419641 (Lot B). At this meeting an
amended Concept Plan was tabled by the proponent, which included the deletion of a
further two conceptual development lots (with that area of land to be retained within a rural
zone). Subsequent correspondence from the Proponent has confirmed this offer and is
reflected in the current concept plan.
The Proponent has also made about nine other commitments relating to the ongoing land
management and it is understood that if the parties reach agreement on those that they are
be made enforceable at law. These commitments and agreements are of a private nature
and collateral to the planning proposal.
Following a review of the Proponent's tabled proposal representatives of Lot B have since
advised Council staff of their objection to the planning proposal and rejection of the
commitments offered. This position remains unchanged since the owner's of Lot B first
raised their issues with Council in December 2012.
From the information submitted to Council officers it appears that establishing a mutually
acceptable buffer treatment is not presently achievable. In light of the parties entrenched
views on the issues deferring a decision on the planning proposal is not likely to result in a
mediated outcome. The planning proposal should be considered on its merit.
Page 369
Despite several other matters being raised in objection, the Proposal is considered to be
adequately justified and on merit warrants its public exhibition. Accordingly, it is
recommended that the Proposal be referred to the NSW Department of Planning and
Infrastructure for a Gateway Determination.
RECOMMENDATION:
That:
1.
The Planning Proposal PP10/0007 relating Lot 2 in DP 534493 and Lot 7 in DP
593200 be updated to align with the preliminary subdivision layout illustrated in
the Concept Master plan detailed within Figure 1 of this report;
2.
The Planning Proposal, as amended in accordance with Resolution 1 above, be
referred to the NSW Department of Planning and Infrastructure requesting a
Gateway Determination under Section 56(1) of the Environmental Planning and
Assessment Act 1979;
3.
On receiving an affirmative Determination Notice all outstanding studies and
works be prepared and the Planning Proposal finalised, following which it is to
be exhibited in accordance with the Determination or where there is no condition
or a condition requiring a public notification less than 28 days, for a period not
less than 28 days; and,
4.
Following public exhibition of the Planning Proposal a report is to be submitted
to Council at the earliest time detailing the content of submissions received and
how those, if any, issues have been addressed.
5
Prior to any public exhibition of the Planning Proposal a Site Contamination
Report demonstrating compliance with the provisions and requirements of State
Environmental Planning Policy 55 - Remediation of Land, Clause 6, is to be
prepared to Council's satisfaction.
Page 370
REPORT:
At its meeting of 19 September 2013, Council considered a report relating to PP10/0007 Mooball Planning Proposal (the Proposal) which provided an approach for advancing both
the Proposal and focussed investigations between Lot B DP 419641 (Lot B) and the
surrounding subject site. Council resolved that the applicant, Jefferson Lane Pty Ltd, be
requested to meet with owners of Lot B to seek a mutually acceptable buffer treatment
between Lot B and the eastern edge of the proposed residential redevelopment area. Post
the Council resolution, a meeting was organised by Council officers and further
correspondence was received from both parties. The details of these further actions are
outlined below.
Buffer Treatment to Lot B
On 9 October 2013 a meeting in relation to the above was held at Council's Murwillumbah
office between the proponent and their representatives, the landowners of Lot B and their
representatives, as well as the Tweed Mayor Councillor Longland and Council's Director
Planning and Regulation. Minutes of this meeting and supporting material have been
distributed to Councillors under separate cover, however the primary amendment from
previous reporting and discussions was the proposed deletion of a further two (2)
development lots, to form rural zoned land and assist with the qualitative retention of Lot B's
rural amenity. The referred lots are displayed within Figure 1.
Page 371
Figure 1 - Proposed Concept Plan (Lots to be deleted annotated by asterisk)
Page 372
Subsequent to the meeting, the proponent submitted further correspondence outlining a
total of nine (9) commitments, which they were willing to make legally binding between the
parties. Representatives on behalf of Lot B have submitted to Council a response regarding
the commitments stated, as well as other concerns regarding the Proposal. These advices
have been forwarded to the Councillors, as well as the proponent, under separate cover,
however its content can be surmised as follows:
·
·
·
·
·
Preamble - Concerns were raised regarding the validity and ability to bind the key
parties to the stated commitments.
The Commitments - A variety of concerns are raised regarding clarity, means of
delivering commitments and inadequacy of the proposed development buffer.
Environmental Pollution Issues - Concerns are raised regarding the level of
assessment undertaken to-date in relation to previous banana plantations on the
site, the Environmental Protection Authority Guidelines for Assessing Banana
Plantations and potential health risks as a result of disturbing this land.
The LUCRA - Concerns are raised in relation to the validity of the submitted Land
Use Conflict Risk Assessment (LUCRA).
The LEP - Concerns are raised that the 'LEP' does not give adequate
consideration to the impacts of flooding, geotechnical challenges including mass
movement, erosion and land slip hazard and land contamination.
The advices conclude that the landowners of Lot B maintain their objection and reject the
commitments offered. The advices also surmise that the Proposal lacks significant and
substantial detail necessary to progress the project.
In addition to above, further concerns regarding the merits of the Proposal have been raised
by representatives of Lot B, (forwarded to Councillors under separate cover) including:
·
·
Compliance with applicable strategic planning policies (subject land is not
identified as a State Significant Development, a State Significant Site, or within
the Far North Coast Regional Strategy (FNCRS) and only part of the subject land
was identified within the ‘Tweed Urban Land Release Strategy’).
Bushfire Hazard.
Planning Comment
In relation to issues raised relating to the Preamble and The Commitments, Council officers
are not in a position to provide direct commentary as the matters contained therein arise
between the parties not for consideration by Council, as these do not bear directly on the
strategic investigation of the site.
In response to The LUCRA, this matter was reported in detail within the Council report of 19
September 2013 (a copy of which is included as Attachment 1 of this report). To-date, no
additional information of significance has been sighted by Council officers that alter the
findings previously reported.
Based on the information submitted to Council officers, it appears that the establishment of
a mutually acceptable buffer treatment between Lot B and the eastern edge of the proposed
residential development area has not been achieved between the parties. In light of the
established positions of both parties, further deferring a decision on the Proposal is not likely
to result in a mediated outcome and the proposal should be considered on its merits.
Page 373
A formal resolution either to support the proposal being forwarded for a Gateway
Determination, or alternatively, the Proposal being refused, provides the clearest path for
both parties and the Council. It should be acknowledged that further discussions and
investigations between the two (2) parties can occur should they choose and should the
proposal proceed to the next stage a formal public exhibition will provide additional
opportunity for broader public comment and input.
In response to the remaining issues raised, the following planning comments are provided.
Environmental Pollution Issues
Contamination reporting submitted with the Proposal request identifies past intensive
agricultural pursuits of the subject site, including banana cultivation and associated
activities. Council's Planning Consultant has advised the contamination assessment
submitted by the Proponent concludes that no residential criteria for contaminants were
exceeded. However, Council's Environment and Health Unit have provided advice that the
submitted report is limited and further more detail contamination assessment is required.
Clause 6 of State Environmental Planning Policy 55 - Remediation of Land (SEPP 55)
applies. Council must be satisfied for the purposes of a rezoning, where the use of the land
will change, that the site is suitable for that purpose. Given the past intensive agricultural
use of the land, identified in the Proponent's report, it is essential that the site be validated
as suitable for residential use or in the case of land requiring remediation that the land will
be remediated before the land is used for that purpose. The extent of land contamination
and or need for remedial works has not be ascertained on the current level of investigation
and enquiry undertaken. Further investigation and reporting is required and is the basis for
a recommendation to this report.
SEPP 55 does not permit the planning authority to duly consider land contamination as a
deferred matter, such as leaving it to the DA stage, as it must be considered prior to the
rezoning being made.
The LEP
Flooding - an area of the subject site is identified as flood prone land on Council's Design
Flood Level Map. The Proposal has responded to this constraint by negating the
development of some of this area through an environmental protection zoning, however the
residue is proposed to be filled and developed for urban purposes. The submitted
documentation concludes that "Q100 flood modelling will therefore be required to ensure
that there are no adverse impacts from the proposed filling". The site is also identified as
affected by the Probable Maximum Flood (PMF), however the majority of the site is above,
or has immediate access to land above the PMF. Comments have been received from
Council's Planning and Infrastructure Unit as well as Council's assessing planning
consultant, whom have not raised any significant concerns. Council's planning consultant
has concluded that the impacts of filling and excavation work can be assessed at the
development application stage.
Geotechnical Challenges - As previously reported, a significant portion of the elevated land
within subject site contains slopes greater than 18 degrees (33%). This land is contiguous
and highly constrained, accordingly traditional an ‘urban’ zoning or lot sizes are not
considered appropriate. In order to reflect the constraint the Proposal seeks to zone this
land 1(c) Rural Living and require a minimum lot size of 1ha.
Page 374
Likewise, where land is between 12 – 18 degrees, or greater than 18 degrees but not in a
contiguous form, the Proposal responds to the site attributes by seeking a minimum lot size
of 700m2. By allowing a larger ‘urban’ lot, the built form can more appropriately respond to
the slope through building citing and construction type. The increased minimum lot size
should assist with reducing potential impacts at the property interface and is a conservative
approach for managing site issues.
Engineering reports supporting the Proposal acknowledge that “no significant geotechnical
issues were noted that would preclude the site from being developed for its proposed usage.
However, it must be noted that this assessment is based on very limited work over a large
area and as such should be considered preliminary only and should be confirmed by a more
detailed geotechnical investigation and assessment”.
The minimum lot sizes prescribed within the Proposal restrict the intensity of development
on the parts of the site with steeper slopes and reduce the level of landslide risk. Beyond
the Planning Proposal process, separate applications are required to subdivide and develop
the land, this represents the appropriate time to pursue further investigations as these
applications will include the final development forms (i.e. precise locations of roads, housing
lots and pads).
Compliance with applicable strategic planning policies
The Far North Coast Regional Strategy (FNCRS) identifies that any development proposed
for greenfield sites in the non-coastal area is either to be within the Town and Village Growth
Boundary, or will be subject to satisfying the Sustainability Criteria specified in Appendix 1 of
that Strategy. The Proposal is not located within the Town and Village Growth Boundary,
however is considered to satisfy the established Sustainability Criteria.
The Proposal has been pursued following the longstanding identification for growth and
expansion of Mooball, most recently through Council's urban release strategy, the Tweed
Urban and Employment Land Release Strategy 2009 (TUELRS). The TUELRS provides a
co-ordinated strategy and assists in establishing planning controls that balance the need for
urban growth against the protection of agriculture, village character and the environment.
The Proposal provides a site specific investigation and implementation of the TUELRS, as it
relates to Mooball.
The TUELRS identifies that where a property is partly identified and partly not, that the
entire property should be considered in any detailed analysis to ensure that the best land is
ultimately identified for future urban use. The extent of 'Area 9' does not follow cadastral
boundaries; rather predominately traces the extent of land with less than 14 degrees slope.
Accordingly the whole of Lot 2 DP 534493 and Lot 7 DP 5932000 have been investigated
within the Proposal, resulting in an amended 'urban footprint'.
Within the NSW Department of Planning and Infrastructure's 'Guide to Preparing Local
Environmental Plans', it is stated that delegation of plan making functions can be exercised
by local councils and provides a list of types of amendments routinely delegated to
Council's. The list includes LEP amendments of a 'minor' nature, i.e. mapping corrections,
Section 73A matters e.g. amending references to documents/agencies, minor errors and
anomalies, spot rezonings consistent with a Regional Strategy or a local strategy endorsed
Page 375
by the Director-General or spot rezonings that will result in an up-zoning of land in existing
areas zoned for residential, business, and industrial purposes.
As has been detailed to Council previously, it is considered appropriate to request planmaking delegations remain with the DP&I as the Proposal is not considered a minor
amendment and comprises a number of complex elements, including:
·
·
·
Subject site is located outside of the established Town and Village Growth
Boundary for urban growth established within the DP&Is Far North Coast
Regional Strategy;
Servicing by way of a future, private, stand-alone sewerage system; and
Proposes to rezone portions of Rural land to Environmental Protection, an
outcome the DP&I have recently been investigating (E-Zone Review).
Bushfire Hazard
The southern edge of the site, on the escarpment, is identified as being part of the 100
metre buffer zone, with an area of Vegetation Category 1 bushfire hazard identified in the
south-western corner of the site. The Proposal has responded to these constraints by
including much of this land within an Environmental Protection zone, or the Rural Living
zone. Land on the fringe of this hazard, whereby suitable buffering can feasibly be
provided, are proposed to be zoned Village. An application for a Bush Fire Safety Authority,
under the Rural Fires Act 1997, will be required within any future development application,
which will include further site specific measures in response to the hazard.
Planning Comment Summary
In light of the information submitted to Council officers since Council's meeting of 19
September 2013, establishing a mutually acceptable buffer treatment appears unachievable
between the parties and further deferring a decision on the Proposal is seen to be
unnecessary. A formal resolution either to support the proposal being forwarded for a
Gateway Determination, or alternatively being refused, provides the clearest path for both
parties.
The concerns raised by the owner's and their representative of Lot B have not introduced
anything more into the assessment that might otherwise persuade Council officers' to form
an opinion on the merit of the proposal different to that previously reported. Without
intending to diminish the impact of the proposal as perceived by the landowner's of Lot B, on
that property, the level of technical evaluation has led to a conclusion that the proposal has
merit and that the proposed buffer zone (see figure 1) is adequate.
The Planning Proposal has now reached a stage were a decision must be made on whether
to progress the Proposal to the Gateway. This is critical for several reasons. Firstly, the
DP&I must consider whether a draft LEP should be made. Secondly, the commercial
decisions about whether to continue the level of expenditure required to complete the
Proposal require a level of certainty that is only likely to be gained by way of a Determination
Notice, and lastly, the broader public notification, which is a statutory process, is essential
for gaining a broader view on what the general public think about the Proposal.
Strategic Compliance and Considerations
Page 376
At its meeting of 19 September 2013, Council also resolved that a report be submitted
addressing the strategic compliance with the aims of the Tweed Urban and Employment
Land Strategy 2009.
The expansion of Mooball has been identified within a number of Council's residential and
urban release strategies continuously over the past 26 years. The Tweed Urban and
Employment Land Release Strategy 2009 (TUELRS) provides the most recent strategic
guidance for potential expansion in Mooball.
The TUELRS identifies 'Area 9' within Mooball for future investigation in the short-term (0-10
years), with a target growth range of 259 – 481 dwellings (7 - 13 dwellings per hectare). In
addition, the TUELRS identifies that 'all investigation areas identified in this Strategy need to
designed to maximise the density yield of the land'.
Whilst it is difficult at this stage to quantify with accuracy the population yield of the previous
concept plans it is estimated on the most recent iteration that there is an anticipated yield of
about 271 lots, which is about 67 lots less than the concept plan reported in December
2012. This later plan while within the TUELRS predicted yield is tracking more heavily
toward the lower yield rates and is likely to be approaching the commercial viability
threshold.
OPTIONS:
That Council:
1.
2.
Proceed with the recommendations within this report and refer PP10/0007 to the NSW
Department of Planning and Infrastructure for a Gateway Determination; or
Reject the planning proposal.
CONCLUSION:
Subsequent to previous Council reporting, negotiations between the landowners of Lot B DP
419641 (Lot B) and the proponent have occurred, however without advancement towards a
mutually acceptable outcome.
The proponent has prepared a Land Use Conflict Risk Assessment (LUCRA) which
establishes that the proposed 50 metre development buffer from Lot B meets the
quantitative needs to mitigate land use conflict between future urban development and the
rural pursuits of Lot B. The Proponent has also stated that the 50m buffer zone is inclusive
of a qualitative buffer.
Previously Council officers had identified concerns regarding the qualitative measures of the
rural amenity currently afforded to Lot B. In response the proponent has deleted a further
two of the conceptual development lots to provide greater setback to Lot B, however and
notwithstanding their offer the Proponent is of the view that increasing this area of buffer will
have minimal benefit to Lot B over and above the area already earmarked. The landowners
of Lot B maintain that this buffer is insufficient and should be extended to 100 metres.
Page 377
Council officers are satisfied that the merit of the Proposal and level of technical detail
submitted is sufficient and warrants progression of the proposal to the NSW Department of
Planning & Infrastructure for a Gateway Determination.
It is recommended that the Planning Proposal is suitable for a Gateway Determination.
a.
Policy:
Not applicable
c.
Legal:
Not Applicable.
Attachment 1 - Council report of 19 September 2013 (ECM 3212905)
Page 378
32
[PR-CM] PP11/0002 Pottsville Employment Land - Wastewater Allocation
SUBMITTED BY:
Planning Reform
FILE REFERENCE: PP11/0002
Valid
1
Civic Leadership
1.5
1.5.2
Land use plans and development controls will be applied and regulated rigorously and consistently and consider the requirements of
development proponents, the natural environment and those in the community affected by the proposed development
3
Strengthening the Economy
3.4
Provide land and infrastructure to underpin economic development and employment
SUMMARY OF REPORT:
This report is in response to three requests from the Proponent of the Pottsville Employment
Lands Planning Proposal. The first seeks Council's endorsement for the allocation of 100
Equivalent Tenements (ETs) (approximately 3.0 litres per second) of waste water per
second within the trunk conveyance system to accommodate waste water disposal from a
proposed future industrial development of the site, to the Hastings Point Waste Water
Treatment Plant, and the corresponding connection of Lot 12 DP 1015369, 39 Kudgeree
Avenue, Cudgera Creek (the site) to the council’s system. This is to be at no cost to the
Council.
The second seeks to change the focus of the planning request back to a 4(a) Industrial
zoning, based on a recent market analysis, in preference to the business park zoning that
was sought in early 2013. This raises no significant issues for the current process and is
consistent with the Gateway Determination, which is presently based on a 4(a) Industrial
and 7(d) Environmental Protection (scenic/escarpment) zoning scheme.
Thirdly, based on the findings of their needs analysis the Proponent is requesting the
inclusion of additional land-use definitions for 'hardware & building supplies', 'landscape
supplies', and 'garden centres', as these are not permissible in the IN1 Industrial zone under
the standard instrument LEP (Draft Tweed LEP 2012).
The issues associated with the Proponent's requests are addressed within the report and it
concludes that the each request is satisfactory, subject to limited qualification.
Page 379
RECOMMENDATION:
That Council endorses the following in respect of the current Planning Proposal
(PP11/0002) over Lot 12 DP 1015369, 39 Kudgeree Avenue, Cudgera Creek:
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.
Page 380
REPORT:
Waste Water Allocation
The ownership of Lot 12 DP 1015369, 39 Kudgeree Avenue, Cudgera Creek ("the site") has
changed since Council last resolved to proceed with a planning proposal in respect of this
land. This has brought about fresh concepts for the site and additional requests from the
Proponent. In particular is a request for a connection of the site into Council’s reticulated
waste water system for the disposal of waste water to the Hastings Point Waste Water
Treatment Plant (WWTP) located on Round Mountain Road.
The Proponent's request is for the allocation of 100 Equivalent Tenements (ETs), equating
to a maximum discharge of about 3.5 litres per second, to accommodate the future
development of the site for industrial purposes.
The property is currently not connected to Council’s WWTP. Until recently the planning
proposal was proceeding on the basis that a privately operated system, relying on the
licensing scheme provided by the Water Industry Competition Act 2006 (WIC Act), would be
provided. This system was reliant on disposing treated effluent on floodplain to the north of
Cudgera Creek Road and formed the basis of a Voluntary Planning Agreement that was to
embody the Proponent's commitments.
The Hastings Point WWTP services the mainly urban areas of Cabarita, Bogangar, Hastings
Point, Koala Beach, Pottsville Beach, Pottsville Waters, Black Rocks and Seabreeze
estates. A provisional allocation had also been set aside for the potential future
development of the urban zoned areas of Tanglewood.
In 2012, the Tweed Coast Wastewater Strategy recommended that any future development
at Tanglewood could make use of the WIC Act to secure a licence for a private treatment
plant rather than tying up a provisional allocation currently not utilised at the Hastings Point
WWTP, making it available for reallocation to development with the ability or intent to
proceed in the near future.
Since that time, Council’s Water Unit has undertaken a feasibility investigation into the
capability of the Hastings Point sewerage system to accommodate future development in
the catchment, including the potential for the property to connect to the existing system, and
provided an estimate of the flow capacity that may be available.
The Water Unit has concluded that it may be possible to connect the property to Council’s
sewer, with the volume of discharge and therefore the amount and type of development to
be restricted by the capacity of the system. Any such development would be subject to
payment of charges and contributions under s64 of the Local Government Act 1993 for any
upgrades that may be required as a result of this connection.
The Council sewer assets located between the property and the Hastings Point WWTP
includes a total of seven existing pump stations. The Coast Road North Pottsville pumping
station (SPS5028) is considered to be operating at capacity and is not planned for any
future upgrades by Council. The remaining surplus flow capacity at this pumping station is
estimated to be seven (7) litres per second, which limits any future developments upstream
to this capacity. Therefore, a nominal flow capacity of seven (7) litres per second has been
identified as the potential available surplus capacity that could be allocated to development
in the catchment.
Page 381
Because of the potential diversity of landuses that could be developed in an industrial
estate, no attempt has been made to convert this flow rate to an ET or Equivalent
Population (EP) figure, but will be undertaken by the Water Unit once details of the future
mix and extent of landuses is available; however the Water Unit has advised that a large wet
industry, an industry which requires large volumes of water and discharges similar volumes,
could not be accommodated on the property.
Notwithstanding the uncertainty associated with developing estimates of potential discharge
volumes without knowledge of the mix and extent of landuses proposed for the property, the
Water Unit has advised that for approximation purposes, if the sewer connection were to be
developed as a pressure system, that the flow for a 100 ET development could be estimated
to be around 2.5 to 3.0 litres per second. It is understood that the landowner is considering
development of the connection as a pressure system.
Due the demand for development of land in the west Pottsville and Seabreeze localities and
therefore opportunity to connect to Council’s reticulated wastewater network, not all of the
available capacity should be allocated to an individual development. As such, it is proposed
that 4.0 litres per second be allocated to the property on the basis that a pressure system
will be constructed, the remainder being available to support other future development in the
catchment.
All infrastructure required to facilitate connection of the property to one of Council’s existing
pump stations in Seabreeze, most likely to be the Urunga Drive (SPS5023) pumping station
approximately 2.5 kilometres away (refer to Figure 1), including any pumping station(s),
rising main(s) and odour/septicity controls necessary to connect to the existing system,
would be provided by the landowner at no cost to Council.
It is also recommended that to avoid provisional allocation of scarce capacity being held
over lands that are not being development in the short-term that a time limitation be placed
on the allocation. Based on the Proponent's stated intentions about bring the development
of the site to the market place in a very short timeframe, it is reasonable to place a limitation
of 5 years from the date the LEP amendment is made.
This will provide the Proponent or any successor a clear 5 year opportunity to lodge a
development application for an industrial-based business park. Within that timeframe the
Proponent will have the certainty of access to the Council's WWTP and that beyond that
timeframe either a fresh request must be made, assuming that it is not reallocated in the
meantime, or that a private scheme under the Water Industry Competition Act 2006 will
need to be secured.
Page 382
Figure 1 Locality Plan
Page 383
Amendment to Proposed Landuse
The initial request for Council to prepare a planning proposal was made by a previous
proponent and was on the basis that the site be rezoned for industrial purposes. This
request formed the basis upon which the Gateway Determination, dated 13 September
2011, was issued. It was premised on a change in zoning from 1(a) Rural to 4(a) Industrial
and 7(d) Environmental Protection (scenic/escarpment).
In the proceeding period the new landowner sought to change the landuse based on a
market needs assessment. A report was presented to the May 2013 Council meeting
seeking support for a request from the landowner to change the landuse to a business park
style of development, which was endorsed by Council.
In correspondence received on 17 September 2013, advice was received that the landowner
now wished to proceed with the original 4(a) Industrial zoning under Tweed LEP 2000, or
the IN1 Industrial zone under Draft LEP 2012, reflecting the findings of a more recent market
analysis.
This request is consistent with the original Gateway Determination and will not impact
progress of the planning proposal.
The request also seeks to have the following land-use definitions under the standard
instrument LEP (Draft Tweed LEP 2012) included with the LEP's "Additional Permitted
Uses" Schedule for the land:
*
"Hardware & Building Supplies";
*
"Landscape Supplies", and
*
"Garden Centres".
Draft Tweed LEP 2012 proposes that Landscape Supplies are to be permissible with
consent, but Hardware & Building Supplies and Garden Centres will be prohibited. While
not generally inconsistent with Landscape Supplies and the ability of an industrial estate to
integrate Hardware & Building Supplies and Garden Centres as part of any industrial
development of the site, the addition of these landuses may be seen as setting a precedent
for other industrial zoned land in the Shire. However, as they are regulated by the LEP
zoning a site specific rezoning (planning proposal) to permit those uses would be required.
The inclusion of the additional permitted uses is not therefore viewed as likely to give rise to
any claim of precedence in other areas.
By definition under Draft Tweed LEP 2012, Hardware & Building Supplies are a type of retail
premises, which has the potential to generate high volumes of vehicle traffic which may
conflict with heavy vehicle traffic associated with general industrial activity.
In addition, Council has seven adopted Retail Principles which, in part, does not support the
establishment of another district retail shopping centre, or development which may threaten
or fracture existing centres, points to the need to limit the scale of new large scale retail
centres in the coastal zone, and reinforces Tweed Heads south as the major district retail
centre.
The Tweed Urban and Employment Land Release Strategy 2009 identifies land immediately
to the north of Kudgeree Avenue as potential Employment Generating Land. While no
masterplan has been developed for this land, a range of landuses which may include some
Page 384
degree of retail development could be possible, but until such time as a Masterplan is
prepared, it will not be possible to determine if any proposed landuse on the property will be
in conflict with landuses proposed on this potential Employment Generating Land.
In light of the above, two options exist, the first, to refuse consideration of the two additional
uses, or secondly, to permit them, but with a qualification on the scale of those uses.
In light of the above it is recommended that Hardware & Building Supplies and Garden
Centres be permitted but with the following controls applying:
·
The scale of development be restricted to not more than 4000 square metres
Gross Floor Area in the aggregate.
The ability of development on the site to present synergies between adjoining landuses will
be an important consideration at the DA stage when details of specific land-uses, their
location and relationship to other land-uses on this and future adjoining sites is considered
in detail.
OPTIONS:
That Council:
1.
Endorse the recommendations provided within this report relating to proposed
amendments to Planning Proposal (PP11/0002); or
2.
Resolve not to support the recommended amendments to PP11/0002.
CONCLUSION:
A request has been received from the owner of the Pottsville Employment Land site, Lot 12
DP 1015369, 39 Kudgeree Avenue Cudgera Creek, the subject of a current planning
proposal for rezoning for predominantly industrial purposes, for connection of the property to
Council’s reticulated waste water system and for the allocation of 100 ETs to be made
available for development of the property.
Investigations by Council’s Water Unit has supported this request; conditional upon advice
that the capacity of any connection would be restricted to a flow rate of not more than seven
(7) litres per second, and that provision of infrastructure be undertaken at no cost to Council.
The provision of a suitable waste water disposal system had been one of the last and most
significant constraints prohibiting the finalisation of the planning proposal prior to placing the
proposal on public exhibition.
Endorsement by Council of an allocation of 3.5 litres per second is recommended for the
support of Council.
The landowner has also requested that the planning proposal be amended to revert back to
the original landuse zones of 4(a) Industrial and 7(d) Environmental Protection
(scenic/escarpment)under Tweed LEP 2000.
Page 385
This request is consistent with the original Gateway Determination for the property and is
recommended for endorsement of Council.
In addition, the landowner has sought to have Hardware & Building Supplies and Garden
Centres added as permissible landuses for the property. This request is conditionally
supported under the provision that the scale and location of development be strictly
managed to prevent the creation of a new retail centre and compete with existing retails
centres in the Shire.
a.
Policy:
b.
Budget/Long Term Financial Plan:
Not Applicable.
c.
Legal:
Not Applicable.
Inform - We will keep you informed.
Nil.
Page 386
33
[PR-CM] Combined Planning Proposal (PP13/0003) and Development
Application (DA13/0469) for a Highway Service Centre, Chinderah
SUBMITTED BY:
Planning Reform
FILE REFERENCE: PP13/0003
Valid
1
Civic Leadership
1.5
1.5.3
SUMMARY OF REPORT:
Council received a combined Planning Proposal and Development Application on 28 August
2013 for a Highway Service Centre. This report deals exclusively with the planning
proposal.
This report has been prepared following a preliminary review of the planning proposal
request and is responding to the 90 day administrative review process established and
managed by the Department of Planning and Infrastructure and the Joint Regional Planning
Panel. The review procedure is enlivened for an applicant when the consent authority either
fails to make a determination within 90 days or resolves not to proceed with making a
planning proposal.
The land on which the service centre and associated facilities is to be located is presently
zoned 1(b2) Agricultural Protection, a zoning that prohibits the proposed use. The planning
proposal request seeks an amendment to the Tweed Local Environmental Plan 2000 by way
of inclusion within Schedule 3 "Additional Permitted Uses" the land-use definition for a
Highway Service Station as prescribed by the Standard-Instrument - Principle Local
Environmental Plan for the purposes of the Standard Instrument (Local Environmental
Plans) Order 2006.
The detailed assessment of and any additional studies relating to the preparation of the
planning proposal will commence should Council resolve to prepare one. This report does
not relate to the assessment or determination of the Development Application (DA) and
cannot be construed in any way as approving or implying an approval, acceptance or
support for any aspect of it; the DA will be assessed and reported under a separate process.
On the limited assessment of the planning proposal request to-date this report recommends
that Council should proceed with preparing a planning proposal, conditional on additional
studies and work being undertaken post Gateway and prior to public exhibition.
Page 387
It is intended that an external consultant will be engaged to assist in the process and
procurement has been commenced to establish a shortlist of available / suitable
consultancies in anticipation of Council resolving to proceed. This will assist in minimising
delay.
A Costs Agreement has been executed between Council and the Applicant. This ensures
all costs arising in association with preparing the planning proposal and making of the
amended LEP are those of the Applicant.
Demonstrating their genuineness and
commitment to the proposal the first funding instalment under the Agreement has been paid.
This report concludes that while there are several significant engineering and planning
issues to be overcome there is presently no evidence suggesting that an appropriate
solution cannot be found for each. On that basis, and given the need for a northbound
service station on the Pacific Highway within the Tweed region, it is recommended that a
planning proposal be prepared.
RECOMMENDATION:
That
1.
A Planning Proposal to facilitate a "Highway Service Centre" on Lot 11 DP
1134229, Lot 1 DP 116567 and Lot 1 DP 210674 be prepared and submitted to the
'Gateway', as administered by the NSW Department of Planning and
Infrastructure, for a determination.
2.
The Minister for Planning and Infrastructure or his Delegate be advised that
Tweed Council is NOT seeking plan making delegations for this planning
proposal.
3.
The Minister for Planning and Infrastructure or his Delegate be advised that the
minimum exhibition period for joint exhibition of the Planning Proposal and
Corresponding Development Application (DA13/0469) should be for a period not
less than 28 days and should be concurrent.
4.
Upon receiving an affirmative Determination Notice from the NSW Department of
Planning and Infrastructure any additional studies or work required in
satisfaction of demonstrating the suitability of the proposed Highway Service
Centre is to be completed.
5.
On satisfactory completion of the Planning Proposal it is to be publicly exhibited
in accordance with the Determination Notice or where there is no such condition
or the condition prescribes a period less than 28 days, for a period not less than
28 days.
6.
Following public exhibition of the Planning Proposal a report is to be submitted
to Council at the earliest time detailing the content of submissions received and
how those, if any, issues have been addressed.
Page 388
REPORT:
The Applicant's proposal is being managed and assessed by the Planning Reform Unit
(Planning Proposal) and the Development Assessment Unit (Development Application)
concurrently. Documentation for both aspects is to be publicly exhibited concurrently and is
subject to both a resolution of the Council to proceed with preparing a Planning Proposal as
well as receiving an affirmative Gateway Determination from the Department of Planning
and Infrastructure (DP&I).
The proposal, as a whole, comprises:
A boundary adjustment is proposed between three existing allotments (Lot 11
DP1134229, Lot 1 DP 1165676 and Lot 1 DP 210674 Tweed Valley Way,
Chinderah) into three new allotments and the dedication of two areas of land as
road widening to enable the construction of a roundabout on Tweed Valley Way.
·
·
·
LEP amendment to include the land-use definition of "Highway Service Station"
within the "Additional Permitted Uses" Schedule of the Tweed LEP.
Stage 1
Stage 2
A highway service centre (Shell is described as the main tenant). The centre
comprises of the following;
§
Service centre single story building with a GFA (Gross Floor Area) of
approximately 1270m2. The building also contains the service centre control
centre and five other tenancies to provide food outlets and a dining area. Two
of the food outlets are proposed to have drive through facilities.
§
97 public car spaces, 20 staff car spaces, 5 caravan / bus spaces and 25 truck
parking spaces
§
Outdoor dining area and playground
§
Truckers lounge and public amenities
§
Landscaped area of 12,334m2
§
Two lane arterial roundabout at Tweed Valley Way to provide ingress and
egress into and out of the service centre.
§
Construction of an off ramp from the Pacific Highway to provide ingress to the
proposed service centre for northbound traffic
§
Filling of the site to RL3.5m AHD to enable the building and refuelling areas to
be above Council’s design flood level.
The proposed highway service centre planning proposal request and statement of
environmental effects document, prepared by Jim Glazebrook & Associates Pty Ltd, is
provided as Attachment 1 to this report.
Figure 1 - Locality Plan
Page 389
Page 390
Figure 2 - Site (development) Plan
Page 391
KEY MATTERS ASSESSED WITH PLANNING PROPOSAL REQUEST
Stormwater Drainage
The site is relatively flat and flood prone, with ground levels varying between -0.6m AHD to
1.1m AHD. The site drains via sheet flow and minor surface drains and then to an open
drain to the west, which then discharges through a series of culverts and drainage channels
and into the Tweed River via a flood-gated outlet.
Stormwater Quality
Standard erosion and sediment control measures are proposed for the construction phase,
and this is considered acceptable given the existing flat grades.
Operational phase water quality requirements will need to be addressed through the
provision of proprietary treatment devices (Humeceptors), and roof water may need to be
separated from the treatable hardstand catchment. An oil separator facility located within
the runoff area of the fuel pumps will need to be assessed for its adequacy, as it proposes to
discharge to the site's effluent management system rather than the stormwater drainage
system. This will occur as part of the DA assessment process.
Stormwater Quantity
Potential impacts on peak stormwater runoff have been taken into account owing to the
increase in the site's impervious fraction from 1% to 45%, and associated reduction in time
of concentration.
Council's Engineering Services have identified the potential underestimation of peak runoff
based on the scale of development proposed and assumptions made, and have identified
the potential need for additional drainage facilities in the vicinity of the proposed roundabout.
This will be required to address road drainage and runoff from Melaleuca Station.
There is no apparent impediment to engineering an appropriate stormwater drainage regime
for the site from a strategic planning perspective. Council's Engineering Services have
identified that further assessment is required and that there will likely be a requirement for
Proponent to acquire or create easements for drainage as part of their subdivision DA and
works. This will be assessed as part of the DA requirement and requires no further
consideration with the planning proposal.
Land Filling
Filling of the site is required and it is proposed to raise the service centre building and
refuelling areas above Council's adopted the design flood level of RL 3.5m AHD. The
remaining areas of the site incorporating the carparking and access areas will be graded
accordingly to an internal drainage system. Current fill levels range from RL 1.8m AHD to
RL 3.675m AHD and will require approximately 62,000m3 of fill to be imported.
Filling of the site is integral to the development and the proposed level of fill is considered
within the context of other supporting engineering reports. There is no apparent impediment
to engineering an appropriate fill regime for the site that works in with other engineered
outcomes for the site.
Council's Engineering Services have identified that further work is required as part of the DA
assessment, but from a strategic planning perspective no further assessment is required; in
other words there is a high probability that the site can be suitably engineered and it remains
only as to how that will be best achieved.
Page 392
Flooding
Most of the site is mapped as "low flow", however some areas around the extremities are
affected by "high flow" classification.
Modelling was performed by BMT WBM using Council's Tweed Valley Flood Model as the
basis. As this base model has a course 40m grid resolution, the consultants refined the
model to provide a 10m grid in the locality. The development was then tested against the
100 year ARI flood event. Results predict peak flood level increases of 0.01m, which is
considered negligible.
These results are not unexpected, given the site is surrounded by filled development,
particularly the Pacific Highway formation. While the area may provide some flood storage
at present, this volume is not significant in the scheme of the wider floodplain. Council's
Engineering Services have advised that for completeness the DA assessment should also
confirm impacts for smaller floods (the 20% and 5% AEP events), and verify whether there
are any significant impacts on the duration of inundation for the 20%, 5% and 1% AEP
floods, as this is most critical to crop losses, particularly sugar cane.
There is no apparent impediment to flood engineering the site and managing other related
engineering and on-site waste management regimes. Minimum floor levels for the building
have been designed to ensure that the building is above the design flood level. No further
assessment is required from a strategic planning perspective.
Water Supply
Section 5.7 of the Statement of Environmental Effects states that: Reticulated water supply
would be via an existing connection on Lot 11 DP 1134229 and Section 9 of Appendix H
provides further details on how they shall meet peak demands. Lot 11 DP 1134229 is
currently connected to water supply off an existing 500mm trunk main in Tweed Valley Way,
which was installed in 2003.
Section 9.2.5 of Appendix H states subject to approval by Tweed Shire Council, upgrading
of the existing connection is proposed to provide a higher level of supply security. Council
policy, implemented since the connection in 2003, is that no new connections to Trunk water
mains shall be allowed, which includes the upgrading of the existing service connections.
Therefore, upgrading of the existing connection will not be approved.
Water supply to the development is only available via an existing 20mm water meter 350
metres south of the proposed service centre site and an upgrade of the existing service
connection is supported. Approval from the relevant roads authority will be required (i.e:
Roads and Maritime Services and/ or Council) to run the service along the road easement
from the water meter to the development site.
The existing water meter cannot be moved from Lot 11 DP 1134229, however it must be
transferred in ownership to the new subdivided lot. Connection of Lot 11 DP 1134229 this
meter is not supported and is contrary to Council's policy, which permits only one meter per
property.
Council's Engineering Services advises that a detailed hydraulic report and detail on an
alternate power supply for booster pumps will be required, along with the relevant approvals.
Page 393
From an engineering perspective the details of water supply remain to be fully addressed
and assessed. From a strategic planning perspective the advice received is that there is no
impediment to the planning proposal, and the detailed design is to be managed as part of
the DA assessment and construction application stages.
Wastewater
Council's Engineering Services have advised that there is no nearby Council wastewater
system for the development (subdivision) to connect to and an onsite sewerage system is
required.
The proponents documentation includes an On-site Sewage Management Report
(2013.034) prepared by HMC Environmental Consulting Pty Ltd, dated June 2013.
Council's Environmental Health Services has advised that the information provided is not
sufficient and a further more detailed report is required. The terms of reference for a further
study have been provided. At this stage there is no evidence to suggest that an on-site
sewage management system cannot be designed for the proposed use of the site. From a
strategic planning perspective this indicates that the planning proposal can proceed, but
conditional on the further study and investigation occurring post Gateway Determination and
prior to public exhibition. This report would be provided to the Department of Planning and
infrastructure (DP&I) as part of the request for the Gateway consideration.
The Proponent will be required to either provide or fund the additional studies and the terms
of reference for it will be included within a memorandum of understanding. This will ensure
that the information specifically required is provided.
Traffic Management
The proposal includes a comprehensive traffic study and engineered road design, which
includes a proposal for a new roundabout installation on Tweed Valley Way.
Council's Engineering Services have identified with the proponent several issues of concern;
these relate to the location and size of the roundabout and the impact on current traffic
flows. Maintaining the efficiency of Tweed Valley Way is essential and requires that access
to it from traffic exiting the highway service station can do so without the need to
unreasonably reduce the current traffic speed. This is of particular concern given the close
proximity to the Pacific Highway intersection and the need for vehicles, including heavy
goods vehicles, to accelerate to safe speeds prior to entering the 110 Kph.
The ultimate design of the traffic management must be determined as part of the DA
assessment, but from a strategic planning perspective there is no impediment to proceeding
with the planning proposal. It is not a question of whether traffic management can be
achieved but instead how it should best be achieved.
Contaminated Land
The proponent's documentation includes a Preliminary Site Contamination Investigation
(HMC2011.066CL) prepared by HMC Environmental Consulting Pty Ltd dated July 2013,
which concluded the site is suitable for the proposed land use.
Council's Environmental Health Services has advised that the planning proposal is suitable
to proceed on the information provided with regards to its contaminated land assessment.
Page 394
Flora and fauna
The subject site consists of a slashed paddock previously used for sugar cane and tea tree
plantation. Vegetation consists of introduced grasses and scattered Camphor Laurel and
Swamp Oak. A dam and a series of drainage lines occur on the site. No significant
vegetation or wetlands are mapped on the site, and it does not form part of a regional or
subregional corridor. Any local corridor value is precluded by the site's proximity to the
highway and existing surrounding land-uses. Vegetation in the vicinity of the site is limited
to very small remnant patches in surrounding agricultural lands.
Council's Natural Resource Management Unit has assessed Proponent's report. It is stated
that the likelihood of impact on threatened flora, fauna and ecological communities has been
assessed though limited on-ground survey and database searches in the Flora and Fauna
Assessment (JWA 2013). The flora and fauna assessment considered that due to the highly
disturbed nature of the site, the site was unlikely to provide habitat for any threatened fauna
species. No threatened flora was recorded on the site.
Recommendations have been made in the Flora and Fauna Assessment, relating to the
inclusion of native species in landscaping species selection, which are supported and can
be conditioned at DA stage. Given the above, it appears that there are no significant
ecological constraints to the proposed development.
Bushfire
The majority of the land subject to the proposal is not mapped as bushfire prone, with the
exception of a small area on the eastern and northern boundary of the site that falls within
the 100 metre buffer to vegetation patches located to the north (an isolated planting of
eucalypts, presumably for screening purposes) and east (a linear patch of Casuarina forest)
adjacent to the Pacific Highway.
A Bushfire Risk Management Plan (BushfireSafe 2013) has been submitted which
demonstrates that all proposed buildings are located greater than 100m from the above
vegetation, and thus the proposal complies with the requirements of Planning for Bushfire
Protection (NSW Rural Fire Service 2006).
Agricultural Assessment Pertaining to the 1(b2) Agricultural Protection Zone
The site is zoned 1(b2) Agricultural Protection and is mapped as Regionally Significant
Farmland.
An Agricultural Assessment prepared by Allen & Associates, dated June 2013, was
submitted with the proponent's documentation and a planning assessment of the relevant
Planning s 117 Directions was provided in the planning proposal request and statement of
environmental effects document, prepared by Jim Glazebrook & Associates Pty Ltd, which is
provided as Attachment 1 to this report.
In summary, the agricultural assessment concludes that the area of land required for the
highway service station has a low agricultural value or rating and that this is due to inherent
physical site characteristics. It is noted in particular that the site (the area designated for the
service centre and associated parking) is of an inconvenient shape, size and location to
allow for purposeful and practical agricultural land use/s to occur, and that the removal of
this area of land from agricultural use is not believed that this will have a significant effect on
the long-term agricultural production potential of the wider region.
Page 395
The proposal request and statement of environmental effects document provides a
compliance assessment for the planning proposal against relevant local and State
Government Policies. In particular, the report (page 38) responds to the compliance matters
with s 117 Direction 5.3 - Farmland of State and Regional Significance on the NSW Far
North Coast, as follows:
The objectives of this Direction are:
“(a) to ensure that the best agricultural land will be available for current and future
generations to grow food and fibre;
(b) to provide more certainty on the status of the best agricultural land, thereby assisting
councils with their local strategic settlement planning; and
(c) to reduce land use conflict arising between agricultural use and non-agricultural use of
farmland as caused by urban encroachment into farming areas.”
This Direction applies when a planning authority prepares a planning proposal for land
mapped as ‘state significant farmland’, ‘regionally significant farmland’ or ‘significant noncontiguous farmland’ on the “Northern Rivers Farmland Protection Project, Final Map 2005”.
The proposed development site is part of a broader land area mapped as Regionally
Significant Farmland. According to clause 4(b) of the Direction, a planning proposal must
not “rezone land identified as ‘Regionally Significant Farmland’ for urban or rural residential
purposes”. Further, clause 5 states that:
“A planning proposal may be inconsistent with the terms of this direction only if council can
satisfy the Director-General of the Department of Planning or (an officer of the Department
nominated by the Director-General) that the planning proposal is consistent with:
(a)
the Far North Coast Regional Strategy; and
(b)
Section 4 of the report titled Northern Rivers Farmland Protection Project- Final
Recommendations, February 2005, held by the Department of Planning.”
With respect to clause 4(b), the application does not seek to ‘rezone’ the land, rather it is
proposed that a site specific clause be inserted into the shire-wide Tweed LEP to enable the
development of a highway service centre on the land. Notwithstanding the fact that a
rezoning is not proposed, the intent of the clause is to ensure that the objectives of the
Direction are met and further discussion follows in that regard.
The agricultural assessment at Appendix F (Agricultural Assessment prepared by Allen &
Associates, dated June 2013) specifically addresses:
•
•
•
•
The agricultural land classification according to the guidelines contained in the Rural
Land Evaluation Manual;
The Northern Rivers Farmland Protection Mapping and its methodology;
The value of the land for agricultural purposes; and
The objectives of the 1(b2) Agricultural Protection Zone pursuant to the Tweed LEP
2000.
Relevant observations and conclusions from the assessment are:
Page 396
“•
This report has shown that the 3.9 hectares of land is classified as Class 4 land; that is
land that is a low agricultural value. Issues of practical and economic land use
management were major considerations in this classification. The parcel of land is of
an inconvenient shape, is in an inconvenient location and is of insufficient size to
enable its purposeful and long term agricultural use. The Northern Rivers Farmland
Protection Project has previously mapped the land as regionally significant farmland.
However, this mapping project was done at a scale of 1:100,000 as opposed to an
individual property scale, and also during the mapping process gave considerable
weight to soil landscape data in contrast to the major agricultural limiting factors that
are inherent to this instance;
•
The existing and previous owners of the studied land have since 1992 utilised the
majority of the land (with the exception of the 3.9 hectare study area and also land for
housing, farm roads and infrastructure) for commercial tea tree and sugar cane
production. More recently the 3.9 hectares of land (study area) has been removed
from agricultural operation due to issues of low productivity and practical land use
management and is currently maintained (slashing) purely for aesthetic purposes and
weed control only;
•
Development of 3.9 hectares of land to a non-agricultural use will not therefore detract
in any significant way from the existing agricultural production potential of the
remainder of the land involved with this subdivision and nor of the wider region.
Furthermore approval of the development will take pressure off surrounding lands that
are of a higher agricultural value for developments of a similar nature; and
•
From an agricultural perspective therefore, it is considered that there should be no
reason why Council and the State Government should not approve the application.”
The agricultural assessment demonstrates the limited agricultural value of the land.
Consequently, objectives (a) and (b) of the Direction are met. With respect to objective (c),
the service centre site is remote from the balance of farming land being surrounded on three
(3) sides by the motorway interchange and on the fourth side by a crematorium, farm dam
and tea tree distillery. Land use conflicts between agricultural and non agricultural land
uses are therefore unlikely to arise and consequently, it is concluded that the proposal is
consistent with objective (c) of the Direction.
Moreover, it is noted that planning principle 9 of section 4 of the Northern Rivers Farmland
Project identifies that public infrastructure is permitted on land mapped as state or regionally
significant where no feasible alternatives are available. While a highway service centre is
not provided by a Council or state agency it is effectively “public infrastructure” as it provides
infrastructure used by the travelling public in accordance with RMS planning for state
highways. The planning process for establishing a highway service centre for northbound
highway traffic at Chinderah undertaken by Tweed Shire Council did not result in any
feasible alternative sites for such a facility. The site nominated in Section 117(2) Direction
5.4 – Commercial and Retail Development along the Pacific Highway, North Coast, within
Chinderah owned by the RMS is not suitable for a highway service centre for traffic and
amenity reasons. It has now been abandoned for that use (refer Section 4.5.2).
Consequently, it is considered that the proposal is consistent with planning principle 9 of
section 4 of the Northern Rivers Farmland Project.
Page 397
As a result of the detailed agricultural suitability analysis it can be concluded that the
proposal is consistent with the Far North Coast Regional Strategy and Section 4 of
the Northern Rivers Farmland Protection Project – Final Recommendations, February
2005. Therefore, if the Department considers that the proposal is a ‘rezoning’ and
consequently inconsistent with clause 4(b) of the Direction, the inconsistency is justified
under the provisions of clause (5) and the Direction is not an impediment to the proposal
proceeding. [Emphasis added].
From a strategic planning point of view the Proponent's Planning Consultant has provided a
comprehensive response to the matters for which consideration is required under the s 117
Directions, and is underpinned by a suitably qualified agricultural report.
Whether the DP&I themselves agree with the assessment and consequently agree to any
inconsistency remains to be tested at the Gateway Determination stage. There is nothing
raised in either report or in the preliminary assessment undertaken that would otherwise
indicate that the planning proposal should not proceed.
Cultural Heritage
A Cultural Heritage Due Diligence Assessment has been prepared by Everick Heritage
Consultants Pty Ltd and submitted in support of the proposal.
The report details the methodology of site investigation and consultation undertaken. In
summary it states that no further cultural assessment is recommended and provides four
precautionary recommendations. These relate to actions that should be observed in the
event that cultural heritage is found through site disturbance during construction activities.
The recommendation can be incorporated into conditions of consent and will need to be
assessed at the DA stage.
From a strategic planning perspective the report is satisfactory at this stage, except in so far
as the responses (comments) from the Tweed Aboriginal Advisory Committee and the
Tweed Byron Local Aboriginal Land Council are omitted from the report. This is noted within
the report and will be required post Gateway Determination and prior to public exhibition.
OPTIONS:
That Council:
1.
2.
Proceed with preparation of a planning proposal in accordance with the
recommendations of this report or
Reject the proposal (noting that this will prevent an affirmative determination of the DA)
and provide reasons for doing so, as these will be required to inform the DP&I and
JRPP should an administrative appeal be sought.
Council staff recommend Option 1.
CONCLUSION:
The Proponent has lodged a combined planning proposal request and development
application for a highway service centre to service the Pacific Highway at Chinderah. The
development is currently prohibited and requires a prior amendment to the Tweed LEP. The
amendment is based on a change to the "Additional Permitted Uses" Schedule of the LEP to
Page 398
include the land-use definition of a "Highway Service Station".
following terms:
That definition is the
"highway service centre" means a building or place used to provide refreshments and
vehicle services to highway users. It may include any one or more of the following:
(a) a restaurant or cafe,
(b) take away food and drink premises,
(c) service stations and facilities for emergency vehicle towing and repairs,
(d) parking for vehicles,
(e) rest areas and public amenities.
The Proponent's planning proposal request and statement of environmental effects
document, prepared by Jim Glazebrook & Associates Pty Ltd, as provided as Attachment 1
to this report, details the background to this proposal at Section 1 (pages 1-2).
In summary, there is an argument advanced that there is limited opportunity for locating a
northbound service centre within the Tweed region and which is presently only serviced by
the current southbound service centre, also at Chinderah. The history of this site is said to
include the Council's previous support for a service station on this site and that planning
studies and an LEP amendment were previously commenced. This occurred prior to the
opening of the Pacific Highway and/or when it was under construction and notably at a time
when the Tweed Valley Way was servicing that function. Consequently, the Roads and
Maritime Services were not supportive of the then proposal and it did not proceed further.
Circumstances have since changed and with the opening of the new highway the service
function of Tweed Valley Way also changed. It remains a crucially important arterial road
connecting the south/southwestern areas of the Tweed to the north /northeast, but is now
more amenable to new access and greater variability in its design speed.
Preliminary assessment has indicated that whilst there are significant site engineering
matters to be addressed and finalised the site appears capable of accommodating the
service centre, without significant adverse impacts to the broader community. It is also
noted that many Tweed residents and tourists alike rely on the Pacific Highway to travel
routinely around the Tweed. The proposed service centre is likely to have a community net
benefit in several ways and noticeably by providing convenience to Tweed commuters, the
possibility of competitive fuel prices, and access to other related conveniences stores.
In concluding, the preliminary assessment has not identified any matters that might
otherwise present as a prohibition to proceeding with a planning proposal and as such it is
recommended that a planning proposal be prepared.
a.
Policy:
Community Engagement Strategy Version 1.1.
Not Applicable
c.
Legal:
Not Applicable.
Page 399
Attachment 1.
Page 400
Planning Proposal Request and Statement of Environmental
Effects, prepared by Jim Glazebrook & Associates Pty Ltd
(ECM 3212655)
34
[PR-CM] Strategic Planning - Murwillumbah Bowls and Sports Club site Lot 1 DP 524512, Lot 1 DP 523131, Lot A DP 390347, and Lot 1 DP 250164
Condong Street, Brisbane Street and Commercial Road, Murwillumbah
SUBMITTED BY:
Planning Reforms
alid
1
Civic Leadership
1.5
1.5.3
SUMMARY OF REPORT:
The Planning Reform Unit has been approached by representatives of the landowners of the
former Murwillumbah Bowls Club. The Club became financially unviable and ceased trading
in June 2012, with the Club's bowler's accommodated at Condong Bowls Club, as well as
others in the district.
This report has been prepared in response to the Club's representations and seeks to
provide guidance on how the Club and Council can capitalise on a suitable planning
outcome for the site. It is arguably one of the Township's most significant remaining
redevelopment opportunities with the land capacity to accommodate a new major
supermarket retailer. Strategic investigations therefore present the opportunity to resolve
outstanding disconnections between community demand for increased chore-based retail
competition and services and the market's ability to meet those needs.
Strategic investigations through a planning proposal will provide the best means for
assessing opportunity and suitability in consultation with the Tweed community. This is
particularly important as any policy change will be required to both the Tweed Local
Environmental Plan and the Tweed Development Control Plan (Section B22 -Murwillumbah
Town Centre).
The redevelopment of this site could act as a local catalyst for further consolidation and
continued economic and social sustainability of the Murwillumbah Town Centre. It is
recommended that a planning proposal should be prepared as a priority and the
Murwillumbah Services Memorial Club Limited be advised to submit a formal planning
proposal request.
Page 401
RECOMMENDATION:
That Council, in respect of Murwillumbah Bowls and Sports Club site - Lot 1 DP
524512, Lot 1 DP 523131, Lot A DP 390347, and Lot 1 DP 250164 Condong Street,
Brisbane Street and Commercial Road, Murwillumbah, endorse the following:
1.
The preparation of a planning proposal:
2.
The landowner be advised of the need to prepare and submit a formal request
for a planning proposal; and
3.
That any amendments needing to be made to the Tweed Development Control
Plan, Section B22 - Murwillumbah Town Centre, are to be carried out
concurrently with the planning proposal and community consultation
undertaken.
4.
ATTACHMENT 1 is Confidential in accordance with Section 10A(2) of the Local
Government Act 1993, because it contains:
(d) commercial information of a confidential nature that would, if disclosed:
(i) prejudice the commercial position of the person who supplied it, or
(ii) confer a commercial advantage on a competitor of the council, or
(iii) reveal a trade secret
Page 402
REPORT:
Investigations have been undertaken in the pursuit of establishing additional retail services
for Murwillumbah Town Centre and in particular a second 'full-line' supermarket, over many
years. The major supermarket retailers have made regular contact with Council staff during
this period, seeking advice on a wide range of sites and localities, but none that have
materialised with a development.
Following the adoption of the Tweed Development Control Plan 2008 - Section B22 Murwillumbah Town Centre (the DCP) in 2008, the search for a suitable site intensified and
many 'potential' opportunities were assessed. Importantly, the DCP was very clear about
the need to consolidate retail activities within the Town Centre. Despite best endeavours for
the DCP to identify potential sites none of those listed have yielded a realistic opportunity.
The predominate constraints which have to-date delayed the provision of a new major
retailer include fragmented land tenure and the need for lot amalgamation, and those few
sites that have been looked at in detail have presented other barriers such as inadequate
site area, flooding and access issues.
When considering these primary factors, the number of opportunities within the Town Centre
is limited to only a few select sites. The difficulty in locating within the Town Centre is
evidenced by the recent approval for an IGA Supermarket on Tweed Valley Way.
One of the few sites that could potentially fulfil the site requirements for a 'full-line'
supermarket is the Murwillumbah Bowls Club (the Site). The Site is located on the Southern
fringe of the Murwillumbah CBD with frontage to the South-western corner of Knox Park,
comprises 4 lots, combining to total 11,406m2 of site area, which is zoned a mix of 6(b)
Recreation and 2(a) Low Density Residential. The Site is displayed within Figure 1.
Page 403
Figure 1 - Locality Plan
Page 404
In August 2013, Council's Planning Reform Unit (PRU) was approached by representatives
of the landowner to discuss strategic options for the site. As discussed above it ceased
trading as a bowls club in June 2012 and has since been vacant, with only limited and
sporadic leased occupation.
Any strategic investigations into the Site would be an addition to the tasks currently tabled
within the PRUs adopted Work Program, which is currently at resource capacity. Despite
the resource implications upon the PRU, these strategic investigations hold the potential to
achieve a significant net community benefit: this Site and the potential opportunity to
consolidate a further major supermarket retailer could be significant for the Town and the
surrounding local communities, and as such the risk of delaying other current projects as
resources are readjusted far outweighs the risk of the development opportunities being lost
to a less beneficial albeit permitted form of development.
A formal strategic process presents a significant opportunity to provide for and guide the
redevelopment of the Site, as well as harness the numerous positive spin-offs for the Town
Centre and the wider public. Accordingly, it considered appropriate to enable the
collaborative investigation of the Site.
It is important to acknowledge that any strategic investigations into the Site may result in a
variety of potential outcomes, not confined just to the suitability of supermarkets or retail
based outcomes. Likewise, the strategic processes could also require the reconsideration
of the Murwillumbah DCP to provide a coordinated suite of visions and development
controls.
OPTIONS:
That Council:
1.
2.
Proceed in accordance with the recommendations in this report; or
Inform the landowner that any Request for a Planning Proposal will need to be
submitted and considered within future Council reporting of the Planning Reform Unit
Work Program.
Council officers recommend option 1.
CONCLUSION:
Despite repeated investigations seeking to provide a second 'full-line' supermarket within
Murwillumbah Town Centre, to-date a suitable site to facilitate the short-term provision of
these services has not been identified.
Council's established planning framework identifies the significant benefits towards
Murwillumbah's place-making and sustainability by continuing to consolidate the Town
Centre as the core activity space. Potentially the most significant short-term development
site to contribute to the established vision is the 'Murwillumbah Bowls Club' site, which is
currently vacant.
An opportunity exists to collaborate with the landowner and undertake a strategic planning
process to unlock development potential of the site, provide a catalyst for the consolidation
Page 405
and continued economic sustainability of the Murwillumbah Town Centre as well as meet
the needs of the wider community.
It is recommended that the landowner be advised to lodge a Request for a Planning
Proposal to commence these investigations with Council.
a.
Policy:
Not applicable
c.
Legal:
Not Applicable.
(Confidential) Attachment 1. Letter from the Murwillumbah Services Club (ECM 3212711)
Page 406
35
[PR-CM] Application for a Site Compatibility Certificate for Seniors Housing
Development Lot 13 DP 868620, Cudgen Road Cudgen
SUBMITTED BY:
1
Civic Leadership
1.2
Improve decision making by engaging stakeholders and taking into account community input
1.2.1
Council will be underpinned by good governance and transparency in its decision making process
SUMMARY OF REPORT:
The NSW Department of Planning and Infrastructure (DP&I) have requested comments from
Council regarding an application for a site compatibility certificate (SCC) for a senior’s
housing development at Cudgen. Council considered a report for the SCC at the October
meeting and resolved to request additional time to review the SCC proposal. The DP&I
have granted Council until 22 November 2013 to provide further comment. As discussed in
the October report the key issues for determination are considered to be the State
significant Farmland mapping and the impact on adjacent agricultural/activities.
It is considered a wider strategic planning assessment for the area should be undertaken
prior to providing support for individual site redevelopment that is contrary to current zonings
and proposed zonings under the draft Local Environmental Plan 2012 (LEP 2012). The ad
hoc nature of strategic compatibility certificates for Seniors Living Development at this key
location is not conducive to sound long term planning. On this basis it is recommended that
the DP&I be advised that Council does not support the SCC due to its conflict with current
strategic planning objectives.
The proposal is for 261 dwellings. Two dwelling types are proposed being 90m2 apartments
and 155m2 town houses. The development site would be split into a northern sector and a
southern sector. The proposal includes an internal road network, on site ancillary facilities,
bus and ambulance. Each dwelling will have one undercover car park and one driveway
parking space. The development falls under the provision of State Environmental Planning
Policy (Housing for Seniors or People with a Disability) 2004.
Under the State Environmental Planning Policy (SEPP) a senior is defined as any of the
following:
(a)
people aged 55 or more years,
(b)
people who are resident at a facility at which residential care (within the meaning of the
Aged Care Act 1997 of the Commonwealth) is provided,
(c)
people who have been assessed as being eligible to occupy housing for aged persons
provided by a social housing provider.
Page 407
Under the SEPP, development proponents have to firstly gain an approved Site
Compatibility Certificate (SCC) from the DP&I as a form of "gateway" to enable a
development application to be lodged with Council.
Council’s water and sewer infrastructure is available in the vicinity and will need extending to
service the site the whole site. For example the sewer may need to be pumped to Council’s
pump station located on Tweed Coast Road to the north of the site rather than utilising the
sewer rising main that is located in Cudgen Road.
The Seniors Living SEPP permits residential development for Senior’s on rural land
provided the site adjoins land zoned primarily for urban purposes. As the site is part zoned
rural and part agricultural protection and part environmental protection, the applicant is
relying on the site’s proximity to the residentially zoned land at Cudgen to pass this
threshold test. There has been judicial review of this test and the DP&I will be required to
make a legal interpretation of this issue. It should be noted that the land immediately to the
east of this site failed this threshold test recently.
It should also be noted that DP&I previously refused to grant concurrence to a development
application for a subdivision for the subject site to enable a new police station facility to be
built, for the following reasons:
1.
The application raises issues of State and regional significance for the
preservation and protection of significant agricultural resources;
2.
The application is inconsistent with the objectives of the 1(a) Rural and 1(b)
Agricultural Protection zones in that it will not result in ecologically sustainable
development of land primarily suited and strategically identified for agricultural
purposes and does not protect identified prime agricultural land from
fragmentation; and
3.
Approval of the application will undermine the commitment of the Tweed Shire
Council and the State government to protect the remaining land of high
agricultural value from urban uses in this locality.
The proposed creation of a new aged residential community in this location poses some
concern for Council officers, in the absence of any broader strategic planning investigation
and justification, particularly in terms of the Council's long held support of retaining the State
Significant Farmland areas of Cudgen.
If the site compatibility certificate is issued a development application can be submitted to
Council for assessment and determined by the Joint Regional Planning Panel as the capital
investment value would exceed 20 million dollars.
RECOMMENDATION:
That Council, in respect of the Application for a Site Compatibility Certificate (SCC)
for Seniors Housing Development on premises Lot 13 DP 868620 Cudgen Road,
Cudgen, writes to the NSW Department of Planning and Infrastructure advising that
Council does not support the site compatibility certificate application due to its
conflict with current strategic planning objectives.
Page 408
REPORT:
Applicant:
Owner:
Location:
Zoning:
Cost:
Kingscliff Land Unit Trust C/- Planit Consulting Pty Ltd
Donald Beck (Director) and Maroun Stephen (Director)
Lot 13 DP 868620 Cudgen Road, Cudgen
1(a) Rural, 1(b1) Agricultural Protection and 7a Environmental Protection
> $20 million
BACKGROUND:
The Department of Planning and Infrastructure has requested Council’s comments on the
site compatibility certificate for a Senior’s Living Development at Cudgen.
The application has identified the following constraints:
·
Zoned a combination of Rural, Agricultural Protection and Environmental
Protection;
·
Mapped as State Significant Farm Land;
·
Located immediately adjacent to existing agricultural operations;
·
Mapped as containing Melaleuca and Swamp She–oak Forest; and
·
Mapped as being partially subject to flooding.
Other issues are town water and sewer services and direct access off Tweed Coast Road
for the southern sector however there are likely to be engineering solutions for these items.
The key issues for determination are considered to be the State Significant Farmland
mapping and the impact on adjacent agricultural land/activities.
It is considered a wider strategic planning assessment for the area should be undertaken
prior to providing support for individual site redevelopment that is contrary to current zonings
and proposed zonings under the draft Local Environmental Plan 2012 (LEP 2012). The ad
hoc nature of strategic compatibility certificates for Seniors Living Development at this key
location is not conducive to sound long term planning.
OPTIONS:
Option 1:
·
Writes to the NSW Department of Planning and Infrastructure declining to support the
SCC application due to its conflict with current strategic planning objectives
Option 2:
·
Writes to the NSW Department of Planning and Infrastructure providing its support to
the SCC application.
CONCLUSION:
Urbanising one parcel of land at this location is considered poor planning and if a move from
rural and agricultural use is envisaged a wider planning exercise should be undertaken.
Page 409
a.
Policy:
Council's Rural Lands Strategy process and broader rural land use and LEP approach to the
Cudgen State Significant Farmland area.
Not Applicable.
c.
Legal:
Not Applicable.
Not Applicable.
Attachment 1.
Page 410
Development Concept Plans (ECM 3181967).
36
[PR-CM] Variations to Development Standards under State Environmental
Planning Policy No. 1 - Development Standards
SUBMITTED BY:
Director
Valid
1
Civic Leadership
1.4
Strengthen coordination among Commonwealth and State Governments, their agencies and other service providers and Statutory
Authorities to avoid duplication, synchronise service delivery and seek economies of scale
1.4.1
Council will perform its functions as required by law and form effective partnerships with State and Commonwealth governments and
their agencies to advance the welfare of the Tweed community
SUMMARY OF REPORT:
In accordance with the Department of Planning's Planning Circular PS 08-014 issued on 14
November 2008, the following information is provided with regards to development
applications where a variation in standards under SEPP1 has been supported/refused.
RECOMMENDATION:
That Council notes the October 2013 Variations to Development Standards under
State Environmental Planning Policy No. 1 - Development Standards.
Page 411
REPORT:
On 14 November 2008 the Department of Planning issued Planning Circular PS 08-014
relating to reporting on variations to development standards under State Environmental
Planning Policy No. 1 (SEPP1).
In accordance with that Planning Circular, the following Development Applications have
been supported/refused where a variation in standards under SEPP1 has occurred.
DA No.
DA13/0096
Description
of
Development:
alterations and use of existing structure as an attached secondary dwelling
Property
Address:
Lot 249 DP 31042 72 Lakeview Terrace Bilambil Heights
Date Granted:
14/10/2013
Development
Standard to be
Varied:
Clause 51A - Multi Dwelling Housing Densities in Zone 2a
Zoning:
Justification:
The Affordable Rental Housing SEPP overrides the inconsistency with Clause 51A.
Authority:
Development standard requires one dwelling per 450m2. Proposal is for one dwelling per
306.7m2. 31.8% variation.
Tweed Shire Council under assumed concurrence
DA No.
DA13/0115
Description
of
Development:
two lot leasehold subdivision
Property
Address:
Lot 17 DP 833570 26-74 Chinderah Bay Drive Chinderah
Date Granted:
21/10/2013
Development
Standard to be
Varied:
Clause 20(2)(a) - Minimum lot size 40ha
Zoning:
1(a) Rural, 7(a) Environmental Protection (Wetlands & Littoral Rainforests)
Justification:
This application aims to create two allotments comprising 10.48ha (proposed lot 1) and
0.87ha (proposed lot 2) in the 1(a) Rural and 7(a) Environmental Protection zone. Clause
20(2)(a) of the Tweed LEP 2000 requires each allotment in the 1(a) and 7(a) zone to be
at least 40ha in size.
Extent:
Extent:
Authority:
The development standard is varied by approximately 74% in the case of Proposed Lot 1
and 98% in the case of Proposed Lot 2.
Director-General of the Department of Planning and Infrastructure
a.
Policy:
Page 412
Not Applicable.
c.
Legal:
Not Applicable.
Not Applicable.
Nil.
Page 413
THIS PAGE IS BLANK
Page 414

Ordinary Council Meeting Thursday 21

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