Agenda of Development Assessment Panel - Wednesday, 14 October 2020

AGENDA Development Assessment Panel 14/10/2020

Item: 04

Subject: DISCLOSURES OF INTEREST

RECOMMENDATION

That Disclosures of Interest be presented

DISCLOSURE OF INTEREST DECLARATION

Name of Meeting:

Meeting Date:

Item Number:

Subject:

I, the undersigned, hereby declare the following interest:

Pecuniary:

Take no part in the consideration and voting and be out of sight of the meeting.

Non-Pecuniary – Significant Interest:

Take no part in the consideration and voting and be out of sight of the meeting.

Non-Pecuniary – Less than Significant Interest:

May participate in consideration and voting.

For the reason that:

Name:

Signed:

Date:

Please submit to the Governance Support Officer at the Council Meeting.

(Refer to next page and the Code of Conduct)

Pecuniary Interest

4.1 A pecuniary interest is an interest that you have in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to you or a person referred to in clause 4.3.

4.2 You will not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision you might make in relation to the matter, or if the interest is of a kind specified in clause 4.6.

4.3 For the purposes of this Part, you will have a pecuniary interest in a matter if the pecuniary interest is:

(a) your interest, or

(b) the interest of your spouse or de facto partner, your relative, or your partner or employer, or

4.4 For the purposes of clause 4.3:

(a) Your “relative” is any of the following:

i) your parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child

ii) your spouse’s or de facto partner’s parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child

iii) the spouse or de facto partner of a person referred to in paragraphs (i) and (i)

(b) “de facto partner” has the same meaning as defined in section 21C of the Interpretation Act 1987.

4.5 You will not have a pecuniary interest in relation to a person referred to in subclauses 4.3(b) or (c)

(a) if you are unaware of the relevant pecuniary interest of your spouse, de facto partner, relative, partner, employer or company or other body, or

(b) just because the person is a member of, or is employed by, a council or a statutory body, or is employed by the Crown, or

(c) just because the person is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the person has no beneficial interest in any shares of the company or body.

Non-Pecuniary

5.1 Non-pecuniary interests are private or personal interests a council official has that do not amount to a pecuniary interest as defined in clause 4.1 of this code. These commonly arise out of family or personal relationships, or out of involvement in sporting, social, religious or other cultural groups and associations, and may include an interest of a financial nature.

5.2 A non-pecuniary conflict of interest exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your official functions in relation to a matter.

5.3 The personal or political views of a council official do not constitute a private interest for the purposes of clause 5.2.

5.4 Non-pecuniary conflicts of interest must be identified and appropriately managed to uphold community confidence in the probity of council decision-making. The onus is on you to identify any non-pecuniary conflict of interest you may have in matters that you deal with, to disclose the interest fully and in writing, and to take appropriate action to manage the conflict in accordance with this code.

5.5 When considering whether or not you have a non-pecuniary conflict of interest in a matter you are dealing with, it is always important to think about how others would view your situation.

Managing non-pecuniary conflicts of interest

5.6 Where you have a non-pecuniary conflict of interest in a matter for the purposes of clause 5.2, you must disclose the relevant private interest you have in relation to the matter fully and in writing as soon as practicable after becoming aware of the non-pecuniary conflict of interest and on each occasion on which the non-pecuniary conflict of interest arises in relation to the matter. In the case of members of council staff other than the general manager, such a disclosure is to be made to the staff member’s manager. In the case of the general manager, such a disclosure is to be made to the mayor.

5.7 If a disclosure is made at a council or committee meeting, both the disclosure and the nature of the interest must be recorded in the minutes on each occasion on which the non-pecuniary conflict of interest arises. This disclosure constitutes disclosure in writing for the purposes of clause 5.6.

5.8 How you manage a non-pecuniary conflict of interest will depend on whether or not it is significant.

5.9 As a general rule, a non-pecuniary conflict of interest will be significant where it does not involve a pecuniary interest for the purposes of clause 4.1, but it involves:

a) a relationship between a council official and another person who is affected by a decision or a matter under consideration that is particularly close, such as a current or former spouse or de facto partner, a relative for the purposes of clause 4.4 or another person from the council official’s extended family that the council official has a close personal relationship with, or another person living in the same household

b) other relationships with persons who are affected by a decision or a matter under consideration that are particularly close, such as friendships and business relationships. Closeness is defined by the nature of the friendship or business relationship, the frequency of contact and the duration of the friendship or relationship.

c) an affiliation between the council official and an organisation (such as a sporting body, club, religious, cultural or charitable organisation, corporation or association) that is affected by a decision or a matter under consideration that is particularly strong. The strength of a council official’s affiliation with an organisation is to be determined by the extent to which they actively participate in the management, administration or other activities of the organisation.

d) membership, as the council’s representative, of the board or management committee of an organisation that is affected by a decision or a matter under consideration, in circumstances where the interests of the council and the organisation are potentially in conflict in relation to the particular matter

e) a financial interest (other than an interest of a type referred to in clause 4.6) that is not a pecuniary interest for the purposes of clause 4.1

f) the conferral or loss of a personal benefit other than one conferred or lost as a member of the community or a broader class of people affected by a decision.

5.10 Significant non-pecuniary conflicts of interest must be managed in one of two ways:

a) by not participating in consideration of, or decision making in relation to, the matter in which you have the significant non-pecuniary conflict of interest and the matter being allocated to another person for consideration or determination, or

b) if the significant non-pecuniary conflict of interest arises in relation to a matter under consideration at a council or committee meeting, by managing the conflict of interest as if you had a pecuniary interest in the matter by complying with clauses 4.28 and 4.29.

5.11 If you determine that you have a non-pecuniary conflict of interest in a matter that is not significant and does not require further action, when disclosing the interest you must also explain in writing why you consider that the non-pecuniary conflict of interest is not significant and does not require further action in the circumstances.

5.12 If you are a member of staff of council other than the general manager, the decision on which option should be taken to manage a non-pecuniary conflict of interest must be made in consultation with and at the direction of your manager. In the case of the general manager, the decision on which option should be taken to manage a non-pecuniary conflict of interest must be made in consultation with and at the direction of the mayor.

5.13 Despite clause 5.10(b), a councillor who has a significant non-pecuniary conflict of interest in a matter, may participate in a decision to delegate consideration of the matter in question to another body or person.

5.14 Council committee members are not required to declare and manage a non-pecuniary conflict of interest in accordance with the requirements of this Part where it arises from an interest they have as a person chosen to represent the community, or as a member of a non-profit organisation or other community or special interest group, if they have been appointed to represent the organisation or group on the council committee.

SPECIAL DISCLOSURE OF PECUNIARY INTEREST DECLARATION

This form must be completed using block letters or typed.

If there is insufficient space for all the information you are required to disclose,

you must attach an appendix which is to be properly identified and signed by you.

[insert full name of councillor]

In the matter of

[insert name of environmental planning instrument]

Which is to be considered at a meeting of the

[insert name of meeting]

Held on

[insert date of meeting]

PECUNIARY INTEREST

Address of the affected principal place of residence of the councillor or an associated person, company or body (the identified land)

Relationship of identified land to councillor

[Tick or cross one box.]

 The councillor has interest in the land (e.g. is owner or has other interest arising out of a mortgage, lease, trust, option or contract, or otherwise).

 An associated person of the councillor has an interest in the land.

 An associated company or body of the councillor has interest in the land.

MATTER GIVING RISE TO PECUNIARY INTEREST[1]

Nature of land that is subject to a change

in zone/planning control by proposed

LEP (the subject land2

[Tick or cross one box]

 The identified land.

 Land that adjoins or is adjacent to or is in proximity to the identified land.

Current zone/planning control

[Insert name of current planning instrument and identify relevant zone/planning control applying to the subject land]

Proposed change of zone/planning control

[Insert name of proposed LEP and identify proposed change of zone/planning control applying to the subject land]

Effect of proposed change of zone/planning control on councillor or associated person

[Tick or cross one box]

 Appreciable financial gain.

 Appreciable financial loss.

[If more than one pecuniary interest is to be declared, reprint the above box and fill in for each additional interest]

Councillor’s Signature: ………………………………. Date: ………………..

This form is to be retained by the council’s general manager and included in full in the minutes of the meeting

Last Updated: 3 June 2019

Important Information

This information is being collected for the purpose of making a special disclosure of pecuniary interests under clause 4.36(c) of the Model Code of Conduct for Local Councils in NSW (the Model Code of Conduct).

The special disclosure must relate only to a pecuniary interest that a councillor has in the councillor’s principal place of residence, or an interest another person (whose interests are relevant under clause 4.3 of the Model Code of Conduct) has in that person’s principal place of residence.

Clause 4.3 of the Model Code of Conduct states that you will have a pecuniary interest in a matter because of the pecuniary interest of your spouse or your de facto partner or your relative or because your business partner or employer has a pecuniary interest. You will also have a pecuniary interest in a matter because you, your nominee, your business partner or your employer is a member of a company or other body that has a pecuniary interest in the matter.

“Relative” is defined by clause 4.4 of the Model Code of Conduct as meaning your, your spouse’s or your de facto partner’s parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child and the spouse or de facto partner of any of those persons.

You must not make a special disclosure that you know or ought reasonably to know is false or misleading in a material particular. Complaints about breaches of these requirements are to be referred to the Office of Local Government and may result in disciplinary action by the Chief Executive of the Office of Local Government or the NSW Civil and Administrative Tribunal.

This form must be completed by you before the commencement of the council or council committee meeting at which the special disclosure is being made. The completed form must be tabled at the meeting. Everyone is entitled to inspect it. The special disclosure must be recorded in the minutes of the meeting.

[1] Clause 4.1 of the Model Code of Conduct provides that a pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person. A person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to the matter, or if the interest is of a kind specified in clause 4.6 of the Model Code of Conduct.

2 A pecuniary interest may arise by way of a change of permissible use of land adjoining, adjacent to or in proximity to land in which a councillor or a person, company or body referred to in clause 4.3 of the Model Code of Conduct has a proprietary interest

AGENDA Development Assessment Panel 14/10/2020

Item: 05

Subject: DA2020 - 682.1 Staged Alterations and Additions to Dwelling at Lot 9 DP 18862, 18 Bartlett Street, Bonny Hills

Report Author: Development Assessment Planner, Benjamin Roberts

Applicant: Davy Watt and Associates

Owner: E A Bullingham

Estimated Cost: $81,470

Parcel no: 1277

Alignment with Delivery Program

4.3.1 Undertake transparent and efficient development assessment in accordance with relevant legislation.

RECOMMENDATION

That DA 2020 - 682.1 for Staged Alterations and Additions to Dwelling at Lot 9, DP 18862, No. 18 Bartlett Street, Bonny Hills, be determined by granting consent subject to the recommended conditions.

Executive Summary

This report considers a development application for alterations and additions to dwelling at the subject site and provides an assessment of the application in accordance with the Environmental Planning and Assessment Act 1979.

Following exhibition of the application, one (1) submission was received.

This report recommends that the development application be approved subject to the attached conditions in Attachment 1.

1. BACKGROUND

Existing Sites Features and Surrounding Development

The site has an area of 328.8m².

The site is zoned R1 General Residential in accordance with the Port Macquarie-Hastings Local Environmental Plan 2011, as shown in the following zoning plan:

The existing subdivision pattern and location of existing development within the locality is shown in the following aerial photograph:

2. DESCRIPTION OF DEVELOPMENT

Key aspects of the proposal include the following:

· Staged alterations and additions to existing dwelling.

· Stage 1 comprising garage alteration and addition.

· Stage 2 comprising north facing first floor verandah addition, south facing roof addition, and replacement of tiled roofing with colourbond.

· Stage 3 comprising lower floor alteration including new wall, new window and top existing slab.

Refer to Attachment 2 at the end of this report for plans of the proposed development.

Application Chronology

· 24 August 2020 - Application lodged.

· 1 to 14 September 2020 - Public exhibition via neighbour notification.

· 3 September 2020 - Additional information request to applicant.

· 14 September 2020 - Additional information response with revised plans incorporating new fencing treatment to Bartlett Street frontage.

3. STATUTORY ASSESSMENT

Section 4.15(1) Matters for Consideration

In determining the application, Council is required to take into consideration the following matters as are relevant to the development that apply to the land to which the development application relates:

(a) The provisions (where applicable) of:

(i) Any Environmental Planning Instrument

State Environmental Planning Policy (Koala Habitat Protection) 2019

Clause 5 - This SEPP applies to the Port Macquarie-Hastings Local Government Area.

Clause 10 - The site is identified on the Koala Development Application Map. However, the site is not under a Koala Plan of Management and the land has an area less than 1 hectare including adjoining land in the same ownership. The SEPP does not prevent the granting of consent on the land being less than 1 hectare in area. The application has demonstrated that no habitat will be removed or modified therefore no further investigations are required.

State Environmental Planning Policy No. 55 – Remediation of Land

Following an inspection of the site and a search of Council records, the subject land is not identified as being potentially contaminated and is suitable for the intended use.

State Environmental Planning Policy (Coastal Management) 2018

The site is located within a coastal use and coastal environment area.

In accordance with clause 7, this SEPP prevails over the Port Macquarie-Hastings LEP 2011 in the event of any inconsistency.

Having regard to clauses 13 and 14 of the SEPP the proposed development is not considered likely to result in any of the following:

a) any adverse impact on integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment;

b) any adverse impacts coastal environmental values and natural coastal processes;

c) any adverse impact on marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms;

d) any adverse impact on Aboriginal cultural heritage, practices and places;

e) any adverse impacts on the cultural and built environment heritage;

f) any adverse impacts the use of the surf zone;

g) any adverse impact on the visual amenity and scenic qualities of the coast, including coastal headlands;

h) overshadowing, wind funnelling and the loss of views from public places to foreshores; and

i) any adverse impacts on existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability.

In accordance with Clause 15 the proposal is not likely to cause increased risk of coastal hazards on that land or other land.

The bulk, scale and size of the proposed development is compatible with the surrounding coastal and built environment. The site is predominately cleared and located within an area zoned for residential purposes.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

A BASIX certificate has been submitted demonstrating that the proposal will comply with the requirements of the SEPP. It is recommended that a condition be imposed to ensure that the commitments are incorporated into the development and certified at Occupation Certificate stage.

State Environmental Planning Policy (Infrastructure) 2007

Clause 45 - Development in proximity to electricity infrastructure - referral to Essential Energy required for any of the following:

(a) the penetration of ground within 2m of an underground electricity power line or an electricity distribution pole or within 10m of any part of an electricity tower,

(b) development carried out:

(i) within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or

(ii) immediately adjacent to an electricity substation, or

(iii) within 5m of an exposed overhead electricity power line,

(i) within 30m of a structure supporting an overhead electricity transmission line, measured horizontally from the top of the pool to the bottom of the structure at ground level, or

(ii) within 5m of an overhead electricity power line, measured vertically upwards from the top of the pool

Site inspection revealed a single exposed overhead power line running along the edge of Jordan Avenue. The line appeared to be approximately 3m (conservatively) from the boundary. See site photo below:

Noting the proposed verandah extension is setback 3m it would be well over 5m from the overhead line. No referral to Essential Energy triggered.

Port Macquarie-Hastings Local Environmental Plan 2011

The proposal is consistent with the LEP having regard to the following:

· Clause 2.2 - The subject site is zoned R1 General Residential. In accordance with clause 2.3(1) and the R1 zone landuse table, the alterations and additions to the dwelling and ancillary garage structure are a permissible landuse with consent.

The objectives of the R1 zone are as follows:

o To provide for the housing needs of the community.

o To provide for a variety of housing types and densities.

o To enable other land uses that provide facilities or services to meet the day to day needs of residents.

In accordance with Clause 2.3(2), the proposal is consistent with the zone objectives as it is a permissible landuse and consistent with the established residential locality. The proposal contributes to the range of housing options in the locality.

· Clause 2.7 - The part demolition requires consent as it does not fit within the provisions of SEPP (Exempt and Complying Development Codes) 2008.

· Clause 4.3 - The maximum overall height of the building above ground level remains unchanged and complies with the standard height limit of 8.5m applying to the site.

· Clause 4.4 - The floor space ratio of the proposal complies with the maximum 0.65:1 floor space ratio applying to the site.

· Clause 5.10 – Heritage. The site does not contain or adjoin any known heritage items or sites of significance.

· Clause 7.13 - satisfactory arrangements are in place for provision of essential services including water supply, electricity supply, sewer infrastructure, stormwater drainage and suitable road access to service the development.

(ii) Any draft instruments that apply to the site or are on exhibition

No draft instruments apply.

(iii) Any Development Control Plan in force

Port Macquarie-Hastings Development Control Plan 2013

*DCP 2013: Dwellings, Dual occupancies, Dwelling houses, Multi dwelling houses & Ancillary development*
	Requirements	Proposed	Complies
3.2.2.2	Articulation zone: • Min. 3m front setback • An entry feature or portico • A balcony, deck, patio, pergola, terrace or verandah • A window box treatment • A bay window or similar feature • An awning or other feature over a window • A sun shading feature	The proposed extension incorporates a verandah within the articulation zone. The verandah is setback over 3m and has the same pitch as the roof of the dwelling.	Yes
3.2.2.2	Front setback (Residential not R5 zone): • Min. 6.0m classified road • Min. 4.5m local road • Min. 3.0m secondary road • Min. 2.0m Laneway	Front building line setback to Jordan Avenue (being the road with the higher volume of traffic) remains unchanged and complies with the minimum 4.5m front setback requirement.	Yes
3.2.2.3	Garage 5.5m min. and 1m behind front façade. Garage door recessed behind building line or eaves/overhangs provided	Garage door setback to Bartlett Street frontage is 1.83m. Garage door recessed.	No*
	6m max. width of garage door/s and 50% max. width of building	Width of garage door is compliant with the maximum width requirements	Yes
	Driveway crossover 1/3 max. of site frontage and max. 5.0m width	Driveway crossing width is compliant with the maximum width requirements	Yes
3.2.2.4	4m min. rear setback. Variation subject to site analysis and provision of private open space	The rear setback remains unchanged.	N/A
3.2.2.5	Side setbacks: • Ground floor = min. 0.9m • First floors & above = min. 3m setback or where it can be demonstrated that overshadowing not adverse = 0.9m min. • Building wall set in and out every 12m by 0.5m	The minimum side setback requirements are complied with. The building wall articulation is compliant and/or satisfactory to address the objective intent of the development provision.	Yes
3.2.2.6	35m2 min. private open space area including a useable 4x4m min. area which has 5% max. grade	The dwelling contains 35m² open space in one area including a useable 4m x 4m space.	Yes
3.2.2.7	Front fences: • If solid 1.2m max height and front setback 1.0m with landscaping • 3x3m min. splay for corner sites • Fences >1.2m to be 1.8m max. height for 50% or 6.0m max. length of street frontage with 25% openings • 0.9x0.9m splays adjoining driveway entrances	No front fencing proposed	N/A
3.2.2.8	Front fences and walls to have complimentary materials to context No chain wire, solid timber, masonry or solid steel front fences	N/A	N/A
3.2.2.10	Privacy: • Direct views between living areas of adjacent dwellings screened when within 9m radius of any part of window of adjacent dwelling and within 12m of private open space areas of adjacent dwellings. ie. 1.8m fence or privacy screening which has 25% max. openings and is permanently fixed • Privacy screen required if floor level > 1m height, window side/rear setback (other than bedroom) is less than 3m and sill height less than 1.5m • Privacy screens provided to balconies/verandahs etc which have <3m side/rear setback and floor level height >1m	The development will not compromise privacy. Screening is proposed to the western elevation of the front verandah being setback 1.6m from that side boundary. The eastern elevation of the verandah is setback 5.715m from the eastern boundary and does not require privacy screening.	Yes

*DCP 2013: General Provisions*
	Requirements	Proposed	Complies
2.7.2.2	Design addresses generic principles of Crime Prevention Through Environmental Design guideline	No concealment or entrapment areas proposed. Adequate casual surveillance available.	Yes
2.3.3.1	Cut and fill 1.0m max. 1m outside the perimeter of the external building walls	Cut and fill <1.0m change 1m outside the perimeter of the external building walls	Yes
2.3.3.2	1m max. height retaining walls along road frontage	None proposed	N/A
	Any retaining wall >1.0 in height to be certified by structure engineer	No retaining wall likely >1m	Yes
	Combination of retaining wall and front fence height max 1.8m, max length 6.0m or 30% of frontage, fence component 25% transparent, and splay at corners and adjacent to driveway	No retaining wall front fence combination proposed.	N/A
2.3.3.8	Removal of hollow bearing trees	No hollow bearing trees proposed to be removed	N/A
2.6.3.1	Tree removal (3m or higher with 100m diameter trunk at 1m above ground level and 3m from external wall of existing dwelling)	Approval is sought for the removal of 4 bangalow palms. 2 within the property and 2 partly on the road reservation to Bartlett Street.	Yes. Council’s tree management section have no objection to their removal without replacement.
2.4.3	Bushfire risk, Acid sulphate soils, Flooding, Contamination, Airspace protection, Noise and Stormwater	Refer to main body of report.	Yes
2.5.3.2	New accesses not permitted from arterial or distributor roads	No new access proposed to arterial or distribution road.	N/A
2.5.3.2	Driveway crossing/s minimal in number and width including maximising street parking	Driveway crossing minimal in width including maximising street parking	Yes
2.5.3.3	Parking in accordance with Table 2.5.1. 1 space per single dwelling (behind building line)	1 or capacity for more than 1 parking space behind the building line has been provided for.	Yes
2.5.3.11	Section 94 contributions	Refer to main body of report.	N/A
2.5.3.12 and 2.5.3.13	Landscaping of parking areas	Single dwelling only with 1 domestic driveway. No specific landscaping requirements recommended.	N/A
2.5.3.14	Sealed driveway surfaces unless justified	Sealed driveway proposed	Yes
2.5.3.15 and 2.5.3.16	Driveway grades first 6m or ‘parking area’ shall be 5% grade with transitions of 2m length	Driveway grades capable of satisfying Council standard driveway crossover requirements. Condition recommended for section 138 Roads Act permit	Yes
2.5.3.17	Parking areas to be designed to avoid concentrations of water runoff on the surface.	Single dwelling only with 1 domestic driveway. Stormwater drainage is capable of being managed as part of plumbing construction.	Yes

Development Provision 45 relates to garages and parking spaces being setback at least 1m behind the building line, where the dwelling has a setback from a front boundary of 4.5m or more. While the Bartlett Street boundary is not the front boundary the objective of this clause is to minimise garage impact and dominance upon the streetscape. The proposed double garage to this frontage is setback 1.83m from this boundary and therefore considered a variation and considered as follows.

The relevant objectives are:

· To minimise the impact of garages and driveways on the streetscape, on street parking and amenity.

· To minimise the visual dominance of garages in the streetscape.

· To provide safe and functional vehicular access.

Having regard for the development provisions and relevant objectives, the variation is considered acceptable for the following reasons:

· There is an existing single garage building setback 1.83m from the Bartlett Street boundary and this is considered to be a secondary frontage.

· The adjoining property at No 20 Bartlett contains an existing double garage fronting Bartlett Street with a similar setback which provides for some precedent.

· There is also an existing driveway crossover off Jordan Avenue with an unrestricted (i.e. no garage doors) secondary parking area available underneath the verandah extension which is more than 5.5m in depth. Having regard to this arrangement, requiring stacked parking in front of the Bartlett Street garage is not considered necessary in this instance.

· The proposal incorporates a new slatted timber fence with openings to replace the old solid timber fence along the Bartlett Street frontage. The fence design helps soften the appearance and dominance of the garage.

· There is also some recessing provided in the new fence either side of the driveway providing for further landscaping treatment.

· Having regard to the existing garage and setback there is considered to be a slight improvement to safety and functionality of the access.

Based on the above assessment, the variation proposed is considered acceptable and the relevant objectives have been satisfied. The variation does not amount to an adverse impact or of a significance that would justify refusal of the application.

(iiia) Any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

No planning agreement has been offered or entered into relating to the site.

(iv) Any matters prescribed by the Regulations

Demolition of buildings AS 2601 - Clause 92

Part demolition of the existing building is capable of compliance with the relevant Australian Standard and suitable consent condition recommended.

(b) The likely impacts of that development, including environmental impacts on both the natural and built environments, social and economic impacts in the locality

Context and setting

The proposal will not have any significant adverse impacts on existing adjoining properties and satisfactorily addresses the public domain.

The proposal is considered to be compatible with other residential development in the locality and adequately addresses planning controls for the area.

The proposal does not have a significant adverse impact on existing view sharing.

The proposal does not have significant adverse lighting impacts.

There are no significant adverse privacy impacts. The extension of the first floor verandah north is setback 5.715m from the eastern side boundary. Consistent with the provisions of DCP 2013 (i.e. setback over 3m from the side boundary) the eastern elevation does not require privacy screening. Given the slope of the land the proposed verandah will be elevated well above the adjoining dwelling and deck. As a result, views enjoyed north east from the verandah will extend over the roof of the adjoining dwelling and associated deck underneath. It is also noted that the adjoining deck at 20 Bartlett Street contains privacy screening on the western elevation. Refers to site photos below for context:

There are no significant adverse overshadowing impacts. The proposal does not prevent adjoining properties from receiving 3 hours of sunlight to private open space and primary living areas on 21 June.

Access, traffic and transport

The proposal will not have any significant adverse impacts in terms access, transport and traffic.

Water supply connection

Service existing and no changes proposed.

Sewer connection

Service existing and no changes proposed.

Stormwater

Service existing and available. Details of new roof connections will be required with S.68 application. Appropriate standard condition recommended.

Other utilities

Telecommunication and electricity services are available to the site.

Heritage

This site does not contain or adjoin any known heritage item or site of significance. The site is considered to be disturbed land.

Other land resources

The site is within an established urban context and will not sterilise any significant mineral or agricultural resource.

Water cycle

The proposed development will not have any significant adverse impacts on water resources and the water cycle.

Soils

The proposed development will not have any adverse impacts on soils in terms of quality, erosion, stability and/or productivity subject to a standard condition requiring erosion and sediment controls to be in place prior to and during construction.

Air and microclimate

The construction and/or operations of the proposed development will not result in any significant adverse impacts on the existing air quality or result in any pollution. Standard precautionary site management condition recommended.

Flora and fauna

Construction of the proposed development will not require any removal/clearing of any significant native vegetation. The four (4) bangalow palms to be removed are not considered to represent any ecological value. The proposal does not trigger the biodiversity offsets scheme and part 7 of the Biodiversity Conservation Act 2016 is considered to be satisfied.

The proximity of the Paperbark trees located on the adjoining western property were noted at the time of site inspection. The applicant subsequently provided further details and measurements confirming no impact would result from the proposed northward verandah extension. Specifically, the verandah post footing is to be incorporated into the existing driveway pavement and will not extend below ground or impact any root zones. See screenshot below of measurements provided:

Waste

Satisfactory arrangements are in place for proposed storage and collection of waste and recyclables. No adverse impacts anticipated. Standard precautionary site management condition recommended.

Energy

The proposal includes measures to address energy efficiency and will be required to comply with the requirements of BASIX.

Noise and vibration

The construction of the proposed development will not result in any significant adverse impacts on the existing air quality or result in any pollution. Standard precautionary site management condition recommended.

Bushfire

The site is identified as being bushfire prone. The applicant has submitted a bushfire report. An assessment of bushfire risk having regard to Planning for Bushfire Protection including vegetation classification and slope concludes that a Bushfire Attack Level 12.5 shall be required.

Management of bushfire risk is acceptable subject to BAL construction levels being implemented and APZ being maintained. An appropriate condition is recommended.

Safety, security and crime prevention

Social impacts in the locality

Given the nature of the proposed development and its location the proposal is not considered to have any significant adverse social impacts.

Economic impact in the locality

The proposal is not considered to have any significant adverse economic impacts on the locality. A likely positive impact is that the development will maintain employment in the construction industry, which will lead to flow impacts such as expenditure in the area.

Site design and internal design

The proposed development design satisfactorily responds to the site attributes and will fit into the locality.

Construction

Construction impacts are considered capable of being managed, standard construction and site management conditions have been recommended.

Cumulative impacts

The proposed development is not considered to have any significant adverse cumulative impacts on the natural or built environment or the social and economic attributes of the locality.

(c) The suitability of the site for the development

The proposal will fit into the locality and the site attributes are conducive to the proposed development. Site constraint of bushfire has been adequately addressed and appropriate condition of consent recommended.

(d) Any submissions made in accordance with this Act or the Regulations

One (1) written submission was received following public exhibition of the application. Copies of the written submission have been provided separately to members of the DAP.

Key issues raised in the submission received and comments are provided as follows:

Submission Issue/Summary	Planning Comment/Response
Loss of amenity and privacy to the deck of the adjoining dwelling at 20 Bartlett Street. Suggest that privacy screening be provided to the eastern elevation of the proposed verandah.	Refer to comment under context and setting heading of this report. There are not considered to be any adverse privacy or amenity impacts that would result from the proposal.

(e) The Public Interest

The proposed development satisfies relevant planning controls and will not adversely impact on the wider public interest.

Ecologically Sustainable Development and Precautionary Principle

Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes.

The four principles of ecologically sustainable development are:

· the precautionary principle,

· intergenerational equity,

· conservation of biological diversity and ecological integrity,

· improved valuation, pricing and incentive mechanisms.

The principles of ESD require that a balance needs to be struck between the man-made development and the need to retain the natural vegetation. Based on the assessment provided in the report and with recommended conditions of consent, it is considered an appropriate balance has been struck.

Climate change

The proposal is not considered to be vulnerable to any risks associated with climate change.

4. DEVELOPMENT CONTRIBUTIONS APPLICABLE

Development contributions will not be required under s64/s7.11 being for alterations and additions to an existing dwelling and no additional residential components are proposed.

5. CONCLUSION AND STATEMENT OF REASON

The application has been assessed in accordance with Section 4.15 of the Environmental Planning and Assessment Act 1979.

Issues raised during assessment and public exhibition of the application have been considered in the assessment of the application. Where relevant, conditions have been recommended to manage the impacts attributed to these issues.

The site is considered suitable for the proposed development and the proposal adequately addresses relevant planning controls. The development is not considered to be contrary to the public's interest and will not result a significant adverse social, environmental or economic impact. It is recommended that the application be approved, subject to the recommended conditions of consent provided in the attachment section of this report.

Attachments

1 ⇩. DA2020 - 682.1 Recommended Conditions

2 ⇩. DA2020 - 682.1 Plans

AGENDA Development Assessment Panel 14/10/2020

Item: 06

Subject: DA2020 - 600.1 Dual Occupancy and Strata Subdivision at Lot 410 DP 1244641 No.18 Octagonal Rise, Port Macquarie

Report Author: Development Assessment Planner, Fiona Tierney

Applicant: F Wholohan & N McGregor

Owner: F Wholohan & N McGregor

Estimated Cost: $566,500

Parcel no: 68035

Alignment with Delivery Program

4.3.1 Undertake transparent and efficient development assessment in accordance with relevant legislation.

RECOMMENDATION

That DA 2020 - 600.1 for a Dual Occupancy and Strata Subdivision at Lot 410, DP 1244641, No. 18 Octagonal Rise, Port Macquarie, be determined by granting consent subject to the recommended conditions.

Executive Summary

This report considers a development application for a Dual Occupancy and Strata Subdivision at the subject site and provides an assessment of the application in accordance with the Environmental Planning and Assessment Act 1979.

Following exhibition of the application, two (2) submissions were received.

This report recommends that the development application be approved subject to the attached conditions in Attachment 1.

1. BACKGROUND

Existing Sites Features and Surrounding Development

The site has an area of 576m².

The site is zoned R1 General residential in accordance with the Port Macquarie-Hastings Local Environmental Plan 2011, as shown in the following zoning plan:

The existing subdivision pattern and location of existing development within the locality is shown in the following aerial photograph:

2. DESCRIPTION OF DEVELOPMENT

Key aspects of the proposal include the following:

· Construction of a single storey attached dual occupancy with 2 x 3 bedroom dwellings and 2 lot Strata title subdivision.

Refer to Attachment 2 at the end of this report for plans of the proposed development.

Application Chronology

· 29 July 2020 - Application lodged.

· 10 August 2020 to 24 August 2020 - Neighbour notification.

· 9 September 2020 - Bush Fire Safety Authority issued by NSW Rural Fire Service.

· 21 September 2020- Additional confirmation stormwater inlets provided.

3. STATUTORY ASSESSMENT

Section 4.15(1) Matters for Consideration

(a) The provisions (where applicable) of:

(i) Any Environmental Planning Instrument

State Environmental Planning Policy (Koala Habitat Protection) 2019

Clause 5 - This SEPP applies to the Port Macquarie-Hastings Local Government Area.

Clause 8 - The site is subject to the adopted Mahers Headland Koala Plan of Management.

Whilst tree removal has been indicated, the removal has been addressed under a separate application and consideration of KPOM matters. Trees were considered dangerous.

Therefore, no tree removal is proposed and the proposal is consistent with the adopted plan of management.

State Environmental Planning Policy No. 55 - Remediation of Land

Following an inspection of the site and a search of Council records, the subject land is not identified as being potentially contaminated and is suitable for the intended use.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

A BASIX certificate (number 1116563M) has been submitted demonstrating that the proposal will comply with the requirements of the SEPP. It is recommended that a condition be imposed to ensure that the commitments are incorporated into the development and certified at Occupation Certificate stage.

Port Macquarie-Hastings Local Environmental Plan 2011

The proposal is consistent with the LEP having regard to the following:

· Clause 2.2 - The subject site is zoned R1 General Residential.

· Clause 2.3(1) and the R1 zone landuse table - The proposed development for a dual occupancy (attached) and strata subdivision is a permissible landuse with consent. Following subdivision, each lot will contain a semi-detached dwelling.

The objectives of the R1 zone are as follows:

o To provide for the housing needs of the community.

o To provide for a variety of housing types and densities.

o To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· Clause 2.3(2) - The proposal is consistent with the zone objectives having regard to the following:

o The development will contribute to the variety of housing types and densities to meet the housing needs of the community.

· Clause 4.1(4) - The minimum 450m² lot size for subdivision does not apply to the proposal as it proposes a strata subdivision. A satisfactory strata plans has been provided and dwellings are proposed as part of this application.

· Clause 4.3 - The maximum overall height of the building above ground level (existing) is 3.767m, which complies with the standard height limit of 8.5m applying to the site.

· Clause 4.4 - The floor space ratio of the proposal is 0.44:1 which complies with the maximum 0.65:1 floor space ratio applying to the site.

· Clause 5.10 - The site does not contain or adjoin any known heritage items or sites of significance.

· Clause 7.13 - Satisfactory arrangements are in place for provision of essential services including water supply, electricity supply, sewer infrastructure, stormwater drainage and suitable road access to service the development.

(ii) Any draft instruments that apply to the site or are on exhibition

No draft instruments apply to the site.

(iii) Any Development Control Plan in force

Port Macquarie-Hastings Development Control Plan 2013

*DCP 2013: Dwellings, Dual occupancies, Dwelling houses, Multi dwelling houses & Ancillary development*
	Requirements	Proposed	Complies
3.2.2.2	Articulation zone: • Min. 3m front setback • An entry feature or portico • A balcony, deck, patio, pergola, terrace or verandah • A window box treatment • A bay window or similar feature • An awning or other feature over a window • A sun shading feature	None proposed	N/A
3.2.2.2	Front setback • Min. 4.5m local road •	5.572 minimum to posts.	Yes
3.2.2.3	Garage 5.5m min. and 1m behind front façade. Garage door recessed behind building line or eaves/overhangs provided	7.786m garage door setback.	Yes
	6m max. width of garage door/s and 50% max. width of building	Width of garage doors 6m and <50% width.	Yes
	Driveway crossover 1/3 max. of site frontage and max. 5.0m width	4m wide driveway crossing width which is < 1/3 width of site.	Yes
3.2.2.4	4m min. rear setback. Variation subject to site analysis and provision of private open space	2.718m min setback. Demonstrated site analysis POS and property at rear setback.	No- but has provided satisfactory justification and site analysis.
3.2.2.5	Side setbacks: • Ground floor = min. 0.9m • Building wall set in and out every 12m by 0.5m	0.95m min The wall articulation is compliant and satisfies the objectives of the development provision.	Yes
3.2.2.6	35m2 min. private open space area including a useable 4x4m min. area which has 5% max. grade	Each occupancy contains 35m² open space in one area including a useable 4m x 4m area.	Yes
3.2.2.10	Privacy: • Direct views between living areas of adjacent dwellings screened when within 9m radius of any part of window of adjacent dwelling and within 12m of private open space areas of adjacent dwellings. ie. 1.8m fence or privacy screening which has 25% max. openings and is permanently fixed • Privacy screen required if floor level > 1m height, window side/rear setback (other than bedroom) is less than 3m and sill height less than 1.5m • Privacy screens provided to balconies/verandahs etc which have <3m side/rear setback and floor level height >1m	No direct views between living areas of adjacent dwellings screened when within 9m radius of any part of window of adjacent dwelling and within 12m of private open space areas of adjacent dwellings. The development will not compromise privacy in the area due to a combination of building design and boundary fencing.	Yes

*DCP 2013: General Provisions*
	Requirements	Proposed	Complies
2.7.2.2	Design addresses generic principles of Crime Prevention Through Environmental Design guideline	No concealment or entrapment areas proposed. Adequate casual surveillance available.	Yes
2.3.3.1	Cut and fill 1.0m max. 1m outside the perimeter of the external building walls	Cut and fill <1.0m change 1m outside the perimeter of the external building walls	Yes
2.3.3.2	1m max. height retaining walls along road frontage	None proposed	N/A
	Any retaining wall >1.0 in height to be certified by structure engineer	No retaining wall likely >1m	Yes
	Combination of retaining wall and front fence height max 1.8m, max length 6.0m or 30% of frontage, fence component 25% transparent, and splay at corners and adjacent to driveway	1.8m high fence with 25% transparency.	Yes
2.4.3	Bushfire risk, Acid sulphate soils, Flooding, Contamination, Airspace protection, Noise and Stormwater	Refer to main body of report.
2.5.3.2	New accesses not permitted from arterial or distributor roads	No new access proposed to arterial or distributor road.	N/A
2.5.3.2	Driveway crossing/s minimal in number and width including maximising street parking	Driveway crossing is minimal in width including maximising street parking.	Yes
2.5.3.3	Parking in accordance with Table 2.5.1. Dwelling/dual occupancies 1 space per dwelling/occupancy (behind building line). Multi dwelling 1 space per 1 & 2 bedroom occupancies 1.5 spaces per 3+ bedroom occupancies 0.25 spaces per occupancy for visitor parking.	Proposal involves dual occupancy, which will be 2 semi-detached dwellings following subdivision. Each dwelling provides 1 parking space behind the building line.	Yes
2.5.3.11	Section 94 contributions	Contributions apply - refer to ET calc and NOP.	Yes
2.5.3.12 and 2.5.3.13	Landscaping of parking areas	Suitable landscaping proposed around driveway/parking locations.	Yes
2.5.3.14	Sealed driveway surfaces unless justified	Sealed driveway areas proposed.	Yes
2.5.3.15 and 2.5.3.16	Driveway grades first 6m or ‘parking area’ shall be 5% grade with transitions of 2m length	Driveway grades capable of satisfying Council standard driveway crossover requirements. Condition recommended for section 138 Roads Act permit	Yes
2.5.3.17	Parking areas to be designed to avoid concentrations of water runoff on the surface.	Stormwater drainage is capable of being managed as part of plumbing construction.	Yes

Note: Subdivision provisions of the DCP (except battleaxe handle width) are aimed at the creation of vacant lots (i.e. not lots within an integrated housing proposal such as this) and have therefore been excluded from the above assessment. Servicing requirements are discussed later in this report.

(iiia) Any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

No planning agreement has been offered or entered into relating to the site.

(iv) Any matters prescribed by the Regulations

No matters prescribed by the regulations are applicable to the proposal.

(b) The likely impacts of that development, including environmental impacts on both the natural and built environments, social and economic impacts in the locality

Context and setting

• The proposal will be unlikely to have any adverse impacts to existing adjoining properties and satisfactorily addresses the public domain.

• The proposal is considered to be consistent with other residential development in the locality and adequately addresses planning controls for the area.

• There are no adverse impacts on existing view sharing.

• There are no adverse privacy impacts.

• There are no adverse overshadowing impacts. The proposal does not prevent adjoining properties from receiving 3 hours of sunlight to private open space and primary living areas on 21 June.

Roads

The site has road frontage to Octagonal Rise. Adjacent to the site, Octagonal Rise is a sealed public road under the care and control of Council.

The addition in traffic associated with the development is unlikely to have any adverse impacts to the existing road network within the immediate locality.

Site frontage and access

Vehicle access to the site is proposed though a shared driveway with direct frontage to Octagonal Rise. Access shall comply with Council AUSPEC and Australian Standards, and conditions have been recommended to reflect these requirements.

Parking and manoeuvring

A total of 2 parking spaces have been provided on-site within garages with additional parking available within the driveway. Parking and driveway widths on site can comply with relevant Australian Standards (AS 2890) and conditions have been recommended to reflect these requirements.

Water supply connection

Council records indicate that the development site is currently serviced by a 100mm water main on the same side of Octagonal Rise. Each Strata Title lot requires a separate metered water connection to Council’s water main. All design & works shall be in accordance with Council’s adopted AUSPEC Specifications.

Detailed plans will be required to be submitted for assessment with the S.68 application.

Sewer connection

Both Strata Title lots can drain to the existing junction provided in the north west corner of the site. All design & works shall be in accordance with Council’s adopted AUSPEC Specifications.

Detailed plans will be required to be submitted for assessment with the S.68 application.

Stormwater

The site can achieve floor level grades towards the front and can drain to Council’s street drainage system. Surface inlets have been provided on the site to suitable manage concentrated flows on the site.

A detailed site stormwater management plan will be required to be submitted for assessment with the Section 68 application and prior to the issue of a Construction Certificate.

Other utilities

Telecommunication and electricity services are available to the site.

Heritage

No known items of Aboriginal or European heritage significance exist on the property. No adverse impacts anticipated. The site is in a residential context and considered to be disturbed land.

Other land resources

The site is within an established urban context and will not sterilise any significant mineral or agricultural resource.

Water cycle

The proposed development will not have any significant adverse impacts on water resources and the water cycle.

Soils

The proposed development will not have any significant adverse impacts on soils in terms of quality, erosion, stability and/or productivity subject to a standard condition requiring erosion and sediment controls to be in place prior to and during construction.

Air and microclimate

Flora and fauna

Construction of the proposed development will not require any removal/clearing of any native vegetation and therefore does not trigger the biodiversity offsets scheme. Part 7 of the Biodiversity Conservation Act 2016 is considered to be satisfied.

Waste

Satisfactory arrangements are in place for proposed storage and collection of waste and recyclables. No adverse impacts anticipated. Standard precautionary site management condition recommended.

Energy

The proposal includes measures to address energy efficiency and will be required to comply with the requirements of BASIX.

Noise and vibration

Bushfire

The site is identified as being bushfire prone. In accordance with Section 100B of the Rural Fires Act 1997, the application proposes subdivision of bush fire prone land that could lawfully be used for residential purposes. As a result, the applicant has submitted a bushfire report prepared by a Certified Consultant. The report was forwarded to the NSW Rural Fire Service who have since issued a Bushfire Safety Authority.

A condition has been recommended incorporating the requirements of the Bushfire Safety Authority.

Safety, security and crime prevention

The proposed development will be unlikely to create any concealment/entrapment areas or crime spots that would result in any identifiable loss of safety or reduction of security in the immediate area. The increase in housing density will improve natural surveillance within the locality and openings from each dwelling overlook common and private areas.

Social impacts in the locality

Given the nature of the proposed development and its location the proposal is not considered to have any significant adverse social impacts.

Economic impact in the locality

Site design and internal design

The proposed development design satisfactorily responds to the site attributes and will fit into the locality. No adverse impacts likely.

Construction

Construction impacts are considered capable of being managed, standard construction and site management conditions have been recommended.

Cumulative impacts

The proposed development is not considered to have any significant adverse cumulative impacts on the natural or built environment or the social and economic attributes of the locality.

(c) The suitability of the site for the development

The proposal will fit into the locality and the site attributes are conducive to the proposed development.

(d) Any submissions made in accordance with this Act or the Regulations

Two (2) written submissions were received following public exhibition of the application. Copies of the written submissions have been provided separately to members of the DAP.

Key issues raised in the submissions received and comments are provided as follows:

Submission Issue/Summary

Planning Comment/Response

The cumulative impact of this development and other similar proposals in the street will result in a significant number of vehicles and congestion of street parking, pedestrian access and degrade the amenity of the neighbourhood.

The proposal is a permissible landuse in the R1 general residential zone.

The proposal complies with the minimum parking requirements in DCP 2013 (one off-street parking space per dwelling for dual occupancies).

Other similar developments within the area have been assessed as adequately addressing relevant planning controls.

Section 4.15(3A) of the Environmental Planning and Assessment Act 1979 provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development

Based on the merits of the proposed development, the site is considered suitable for the proposed development and the proposal adequately complies with relevant planning controls.

Stormwater- issues with surface flows through property at the rear. No stormwater drainage shown.

The applicant has submitted hydraulic engineering details that proposes surface inlets and stormwater drainage to be directed to Octagonal rise. Surface levels to the rear will be raised and a 600mm retaining wall constructed. This will reduce the amount and velocity of surface flows directed into the property to the rear.

(e) The Public Interest

The proposed development satisfies relevant planning controls and will not adversely impact on the wider public interest.

(f) Ecologically Sustainable Development and Precautionary Principle

Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes.

The four principles of ecologically sustainable development are:

· the precautionary principle,

· intergenerational equity,

· conservation of biological diversity and ecological integrity,

· improved valuation, pricing and incentive mechanisms.

(g) Climate change

The proposal is not considered to be vulnerable to any risks associated with climate change.

4. DEVELOPMENT CONTRIBUTIONS APPLICABLE

· Development contributions will be required towards augmentation of town water supply and sewerage system head works under Section 64 of the Local Government Act 1993.

· Development contributions will be required in accordance with Section 7.11 of the Environmental Planning and Assessment Act 1979 towards roads, open space, community cultural services, emergency services and administration buildings.

· A copy of the contributions estimate is included as Attachment 3.

5. CONCLUSION AND STATEMENT OF REASON

The application has been assessed in accordance with Section 4.15 of the Environmental Planning and Assessment Act 1979.

Attachments

1 ⇩. DA2020 - 600.1 Recommended Conditions

2 ⇩. DA2020 - 600.1 Plans

3 ⇩. DA2020 - 600.1 Contributions Estimate

4 ⇩. DA2020 - 600.1 SOEE

AGENDA Development Assessment Panel 14/10/2020

Item: 07

Subject: DA2019 - 681.1 Farm Stay Accommodation at Lot 89 DP 754416, No. 2001 Toms Creek Road, Toms Creek

Report Author: Development Assessment Planner, Chris Gardiner

Applicant: C Patterson

Owner: C M Malvern

Estimated Cost: $98,000

Parcel no: 31331

Alignment with Delivery Program

4.3.1 Undertake transparent and efficient development assessment in accordance with relevant legislation.

RECOMMENDATION

That DA2019 - 681.1 for Farm Stay Accommodation at Lot 89, DP 754416, No. 2001 Toms Creek Road, Toms Creek, be determined by granting deferred commencement consent subject to the recommended conditions.

Executive Summary

This report considers a development application for farm stay accommodation at the subject site and provides an assessment of the application in accordance with the Environmental Planning and Assessment Act 1979.

The application relates to structures that have been erected without development consent, and background on the compliance investigation is included in this report.

Following exhibition of the application, five (5) submissions were received, four (4) of which are in support of the development.

The proposal has been amended through the assessment process including a reduction in the number of accommodation and refuge buildings, changes to internal access roads, and siting of buildings.

This report recommends that the development application be approved subject to the attached conditions in Attachment 1.

1. BACKGROUND

Existing Sites Features and Surrounding Development

The site has an area of 42.5 hectares.

The site is zoned RU2 Rural Landscape in accordance with the Port Macquarie-Hastings Local Environmental Plan 2011, as shown in the following zoning plan:

The existing subdivision pattern and location of existing development within the locality is shown in the following aerial photograph:

Buildings Erected Without Consent

The dome structures on the site have been erected without development consent and are understood to have been previously used for tourist accommodation. In response to a complaint, Council’s Compliance staff investigated the site and subsequently issued an Order on 3 July 2019 to “Stop using the property as an Eco-Tourist Facility. This includes use of the ‘dome’ as any form of accommodation i.e. short term or long term accommodation.”

The unauthorised use of the premises has ceased since the issue of the Order and further action in relation to the dome structures has been deferred pending the outcome of this development application. If consent is not granted to the development, it is likely that the structures would be ordered to be demolished.

Given that the dome structures have been erected without consent, it will not be possible to issue a Construction Certificate for this aspect of the development and the domes will require a Building Information Certificate. The BCA Compliance Report submitted with the application includes insufficient information to demonstrate that the domes will comply with the BCA/NCC in their current form. On this basis, it is recommended that the requirement to obtain a Building Information Certificate should be a deferred commencement condition.

2. DESCRIPTION OF DEVELOPMENT

Key aspects of the proposal include the following:

· Use of the two existing dome structures as farm stay accommodation;

· Construction of shelters with rainwater tanks adjacent to each of the domes for the purpose of water supply;

· Construction of a bushfire refuge building; and

· Use of the existing farm shed as an amenities building for farm workers.

Refer to Attachment 2 at the end of this report for plans of the proposed development.

Application Chronology

· 23 September 2019 - Application lodged.

· 8 October 2019 to 21 October 2019 - Neighbour notification.

· 20 December 2019 - Additional information requested from Applicant.

· 20 February 2020 - Additional information submitted by Applicant.

· 11 March 2020 - Additional information requested by NSW Rural Fire Service.

· 26 March 2020 - Further additional information requested by Council staff.

· 1 April 2020 - Further additional information submitted by Applicant.

· 14 April 2020 - Further additional information submitted by Applicant.

· 2 June 2020 - Bush Fire Safety Authority issued by NSW Rural Fire Service.

· 14 June 2020 - Further additional information requested by Council staff.

· 5 August 2020 - Further additional information and amended plans submitted by Applicant and provided to NSW Rural Fire Service for review.

· 10 September 2020 - Amended Bush Fire Safety Authority issued by NSW Rural Fire Service.

3. STATUTORY ASSESSMENT

Section 4.15(1) Matters for Consideration

(a) The provisions (where applicable) of:

(i) Any Environmental Planning Instrument

State Environmental Planning Policy (Koala Habitat Protection) 2019

Clause 5 - This SEPP applies to the Port Macquarie-Hastings Local Government Area.

Clause 15 - A development application made, but not finally determined, before the commencement of this Policy in relation to land to which this Policy applies must be determined as if this Policy had not commenced. The application was made and not finally determined prior to the commencement of this policy, and the application is therefore required to be assessed under the relevant provisions of State Environmental Policy No 44 - Koala Habitat Protection. See assessment comments below.

State Environmental Planning Policy No. 44 - Koala Habitat Protection

With reference to clauses 6 and 7, the subject land is greater than 1 hectare (including any adjoining land under same ownership) and therefore the provisions of SEPP must be considered.

The Applicant has submitted an assessment prepared by J B Enviro, which addresses the requirements of SEPP 44. The vegetation survey identified that some Tallowwood and Forest Red Gum exist on the property, but Flooded Gum is the dominant species and the proportion of koala food trees does not exceed 15%. The land therefore does not meet the definition of potential koala habitat and no further investigation is required.

State Environmental Planning Policy No. 55 – Remediation of Land

The land has historically been used for grazing. Following an inspection of the site and a search of Council records, the subject land is not identified as being potentially contaminated and is suitable for the intended use.

State Environmental Planning Policy No. 64 – Advertising and Signage

The proposal does not include any details of signage. Standard condition recommended requiring further consent for any future signage that is not Exempt Development.

Port Macquarie-Hastings Local Environmental Plan 2011

The proposal is consistent with the LEP having regard to the following:

· Clause 2.2 - The subject site is zoned RU2 Rural Landscape.

· Clause 2.3(1) and the RU2 zone landuse table - The proposed development for farm stay accommodation is a permissible landuse with consent. The land is also currently used for horticulture and extensive agriculture, which are both permitted without consent in the zone.

farm stay accommodation means a building or place that provides temporary or short-term accommodation to paying guests on a working farm as a secondary business to primary production.

The owners are registered primary producers and sufficient information has been submitted to demonstrate that the income from the working farm will exceed the income anticipated to be generated by the farm stay accommodation. Through the assessment process, the number of accommodation buildings has been reduced from four (4) to two (2), to ensure that the working farm remains the primary use of the land.

The objectives of the RU2 zone are as follows:

o To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

o To maintain the rural landscape character of the land.

o To provide for a range of compatible land uses, including extensive agriculture.

o To provide for rural tourism that does not compromise the primary industry capabilities of the land and is based on the rural attributes of the land.

o To secure a future for agriculture in the area by minimising loss of potential agricultural productivity and fragmentation of rural land.

Clause 2.3(2) - The proposal is consistent with the zone objectives having regard to the following:

o The proposal would maintain primary production, while also providing rural tourism opportunities;

o The proposal would not fragment agricultural land;

o The character of the landscape is capable of being appropriately retained with an alternative external finish to the accommodation buildings. The white dome structures are currently dominant in the rural landscape, and the Applicant has proposed to provide camouflage covers to integrate development with the landscape. This treatment is considered acceptable in principle, subject to the covers being able to meet the requirements of the National Construction Code. A condition has been recommended requiring an appropriate external finish.

· Clause 4.2A - The land does not satisfy any of the provisions of this clause that would allow the erection of a dwelling. A condition has been recommended requiring the ‘Amenities Farm Shed’ to be used by workers associated with the farm only, and prohibiting the use of the building for overnight accommodation or conversion of the building to a dwelling.

· Clause 5.4 - If development for the purposes of farm stay accommodation is permitted under this Plan, the accommodation that is provided to guests must consist of no more than 4 bedrooms. The proposal includes two (2) separate buildings, each containing a single bedroom for guests. The proposal is therefore consistent with this clause.

· Clause 5.10 - The site does not contain or adjoin any known heritage items or sites of significance.

· Clause 7.13 - Satisfactory arrangements are in place for provision of essential services including water supply, electricity supply, on-site sewage management, stormwater drainage and suitable road access to service the development.

(ii) Any draft instruments that apply to the site or are on exhibition

No draft instruments apply to the site.

(iii) Any Development Control Plan in force

Port Macquarie-Hastings Development Control Plan 2013

*DCP 2013: General Provisions*
DCP Objective	Development Provisions	Proposed	Complies
4	Cut and fill 1.0m max. 1m outside the perimeter of the external building walls.	Less than 1m of cut/fill proposed.	Yes
5	1m max. height retaining walls along road frontages	None proposed.	N/A
	Any retaining wall >1.0 in height to be certified by structural engineer	None proposed.	N/A
	Combination of retaining wall and front fence height	No retaining wall and front fence combination proposed.	N/A
7	a) For coastal floodplain endangered ecological communities a minimum, fully vegetated buffer of 35m must be provided. b) For Freshwater Wetland on Coastal Floodplain endangered ecological community a fully vegetated buffer of 100m is to be provided. c) For all other endangered ecological communities, a fully vegetated buffer of 50m must be provided. e) Fully vegetated buffers cannot contain road infrastructure or an asset protection zone. f) Where different buffers (including riparian buffers) apply to an area, the greater of the buffer widths applies.	Site includes Comboyne - Bulga Plateau Cool Scrub - Forest EEC adjacent to refuge building location. The required APZ for the refuge building can be accommodated within existing cleared land.	Yes
13	Removal of hollow bearing trees	None proposed to be removed.	N/A
11	Tree removal (3m or higher with 100mm diameter trunk and 3m outside dwelling footprint	The proposal will involve a small amount of clearing to widen the existing access road for passing bays. No koala food trees are proposed to be removed.	Yes
18	Bushfire risk, Acid sulphate soils, Flooding, Contamination, Airspace protection, Noise and Stormwater	Refer to main body of report.
23	New accesses not permitted from arterial or distributor roads. Existing accesses rationalised or removed where practical	Access to rural road.	Yes
23	Driveway crossing/s minimal in number and width including maximising street parking	Rural road with no street parking.	N/A
24	Off-street parking in accordance with Table 2.5.1. (Provision to consider reduced parking where supported by parking demand study)	Table 2.5.1 doesn’t include a specific parking rate for farm stay accommodation, but includes the following rates under the tourist and visitor accommodation group: · Hotel/motel/serviced apartments - 1.1 space per unit + 1 per 2 employees + 1 for any on-site manager. · Bed and breakfast accommodation - 1 space per bedroom + 1 for any manager. The proposal includes 2 x 1 bedroom accommodation buildings and it is reasonable to assume that a single vehicle would be used by the guests in each of the domes. Given the isolated rural location, it is less likely that guests will have visitors to the accommodation. There is sufficient area near each of the proposed domes for informal visitor parking in the event that this occurs. Each dome site is capable of accommodating at least 1 parking space and this is considered to be adequate for the development. An additional 5 spaces have been proposed at the refuge building.	Yes
25	Parking credits to be calculated for redevelopment or change of use	N/A	N/A
26	On-street parking permitted subject to justification	N/A	N/A
27	On street parking will not be permitted unless it can be demonstrated that: · that streetscape improvement works, such as landscaped bays and street trees are provided. · parking does not detract from the streetscape; and	N/A	N/A
28	Parking layout in accordance with AS/NZS 2890.1 and AS/NZS 2890.2	Capable of complying.	Yes
29	Accessible parking provided in accordance with AS/NZS 2890.1, AS/NZS 2890.2 and AS 1428	Capable of being accommodated.	Yes
32	Section 94 contributions	Refer to main body of report.
35	Sealed driveway surfaces unless justified	Unsealed gravel pavement considered suitable given the rural location (with unsealed public road access) and the separation distance from dwellings on nearby properties.	Yes

Based on the above assessment, the variations proposed to the provisions of the DCP are considered acceptable and the relevant objectives have been satisfied.

(iiia) Any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

No planning agreement has been offered or entered into relating to the site.

(iv) Any matters prescribed by the Regulations

No matters prescribed by the regulations are applicable to the proposal

(b) The likely impacts of that development, including environmental impacts on both the natural and built environments, social and economic impacts in the locality

Context and setting

The site has a general south-westerly street frontage orientation to Toms Creek Road. Adjoining the site are other rural properties generally used for grazing livestock.

Roads

The site has road frontage to Toms Creek Road. Adjacent to the site, Toms Creek Road is a gravel public road under the care and control of Council.

Traffic and transport

The addition in traffic associated with the development is unlikely to have any adverse impacts to the existing road network within the immediate locality.

Site frontage and access

Vehicle access to the site is proposed via an existing access driveway to Toms Creek Road. The existing driveway provides access for farming purposes only and the proposed development will intensify the use of the access, including the introduction of tourists, who would be less familiar with local road conditions.

The application has not demonstrated that there is adequate sight distance available at the driveway location. The Applicant has proposed to set back the access gate to provide a standing area clear of the carriageway while the gate is being opened, and to install a convex mirror to improve sight distance to the east along Toms Creek Road for exiting vehicles.

There does not appear to be a more suitable driveway location for the site due to existing vegetation, steep topography, and the location of Toms Creek.

Given the intensification of the use and the potential safety implications of the access, it is recommended that the access be upgraded to comply with Council AUSPEC and Australian Standards. A deferred commencement condition has been recommended requiring approval of a Section 138 application for the driveway upgrades.

Internal access roads will be required to comply with Planning for Bush Fire Protection. This will involve sealing steeper sections of the access road and construction of passing bays.

A condition has also been recommended requiring amended plans to be provided prior to the issue of a Construction Certificate, which show the loop road around the refuge building being relocated to the northern side of Toms Creek in a position that does not impact any existing vegetation. Furthermore, there are two creek crossings in the locations shown on the current submitted plans, which are not desirable and the environmental impacts have not been appropriately assessed in the application.

Parking and manoeuvring

See comments under Clause 24 of DCP regarding parking.

Water supply

Water supply is proposed to be provided to the farm stay accommodation using rainwater tanks. The water supply system includes a 15,000 litre rainwater tank catching water off a 7m x 4m roof located adjacent to each of the 2 dome structures. The Applicant has submitted a Private Water Supply Quality Assurance Program for the development and appropriate conditions have been recommended to ensure that the quality of drinking water is maintained.

In addition to the potable water supply, the development will require 10,000 litre dedicated fire-fighting supplies located at the refuge building and the ‘Amenities Shed’.

On-site wastewater management

The Applicant has submitted an On-site Domestic Wastewater Management Report prepared by Rosewood Environmental Services Pty Ltd. The report has been reviewed by Council’s Environmental Health Officer and it is considered that wastewater is capable of being satisfactorily managed. Conditions have been recommended requiring Section 68 approval for the installation, plumbing work and operation of the system.

Stormwater

The site naturally grades towards Toms Creek and is currently un-serviced with stormwater infrastructure. On-site dispersal of stormwater is considered appropriate in the rural context without any adverse impacts on neighbouring property and the environment. Section 68 approval will be required for all new stormwater drainage work, as recommended in the conditions.

Other utilities

The application proposes solar power for the development, and no telecommunications service.

Heritage

No known items of Aboriginal or European heritage significance exist on the property. The site is considered to be partially disturbed land due to previous agricultural activities, and the commencement of construction of two of the accommodation buildings without consent.

As a precaution, a condition of consent has been recommended that works are to cease in the unexpected event heritage items are found. Works can only recommence when appropriate approvals are obtained for management and/or removal of the heritage item.

Other land resources

The site is within an established urban context and will not sterilise any significant mineral or agricultural resource.

Water cycle

The proposed development will not have any significant adverse impacts on water resources and the water cycle.

Soils

Air and microclimate

Flora and fauna

The proposed development includes clearing of approximately 80m² of native vegetation for passing bays on the existing access road, and approximately 2500m² of grassland for asset protection zone around the refuge building. The Biodiversity Offset Scheme doesn’t apply for the following reasons:

· The parts of the site on which clearing and development are proposed to be carried out aren’t identified on the Biodiversity Values Map. An extract of the map is included below, which shows that the significant parts of the site are the riparian corridor along Toms Creek and the EEC in the south-east corner of the property. The development has been sited to allow asset protection zones to be maintained in existing cleared areas.

· The extent of clearing is below the thresholds in Clause 7.2 of the Biodiversity Conservation Regulation 2017. Up to 1 hectare of clearing is permitted before the threshold is exceeded.

· The application of test of significance (5 Part Test) demonstrates that the development will not have a significant impact on biodiversity values.

Waste

The Statement of Environmental Effects indicates that guests will be encouraged to take wastes with them when they leave the farm stay, but bins/receptacles will also be provided on site. Organics will be composted on site and used on the vegetable/fruit gardens. The cleaner will remove any recyclables and waste left at the farm stay and take it to an approved waste facility for disposal/recycling. Wastes are not to be buried or burnt on the premises.

Standard precautionary site management conditions recommended for construction and operational waste.

Energy

No adverse impacts anticipated.

Noise and vibration

Bushfire

The site is identified as being bushfire prone.

In accordance with Section 100B of the Rural Fires Act 1997, the application proposes development for a special fire protection purpose. The applicant has submitted a bushfire report with the application. The report was forwarded to the NSW Rural Fire Service (RFS) who have since issued a Bushfire Safety Authority, subject to conditions. The RFS requirements include:

· Establishment and maintenance of an asset protection zone around the refuge building;

· Construction of the refuge building in accordance with AS3959;

· Vehicular access in accordance with Planning for Bush Fire Protection;

· Water and utility services;

· Emergency and evacuation planning.

A condition has been recommended incorporating the RFS requirements.

Safety, security and crime prevention

Social impacts in the locality

Given the nature of the proposed development and its location the proposal is not considered to have any significant adverse social impacts.

Economic impact in the locality

Site design and internal design

The proposed development design satisfactorily responds to the site attributes and will fit into the locality.

Construction

Construction impacts are considered capable of being managed, standard construction and site management conditions have been recommended.

Cumulative impacts

The proposed development is not considered to have any significant adverse cumulative impacts on the natural or built environment or the social and economic attributes of the locality.

(c) The suitability of the site for the development

The proposal will fit into the locality and the site attributes are conducive to the proposed development.

Site constraints have been adequately addressed and appropriate conditions of consent recommended.

(d) Any submissions made in accordance with this Act or the Regulations

Five (5) written submissions were received following public exhibition of the application. Copies of the written submissions have been provided separately to members of the DAP.

Key issues raised in the submissions received and comments are provided as follows:

Submission Issue/Summary

Planning Comment/Response

Support the proposed development for the following reasons:

· Reason 1) The Project displays a unique design and attraction to the region and area of the Hastings valleys. I love the architecture design and landscape concept.

· Reason 2) The development outcome will positively contribute to sustainability. The idea of people enjoying the local Toms Creek and picnic spot provided by the development is consistent with the overall outcomes of the neighbourhood plans which we are a community. Nature Domes encourages the community to enjoy sleeping under the stars and with nature. I support good development outcomes that lead to healthier and more environmentally sustainable region.

· Reason 3) The Proposal is innovative. The Landscape concept plan includes native species and an innovative nature and environment and healthy lifestyle. This is a great opportunity to promote our area to the locals and to visitors this allows Port Macquarie to offer innovative accommodation to travellers and advanced design solution.

· Reason 4) The development will result in Community Extras (including open picnic spot next to Toms Creek for Tourist to stop and rest, public art classes in the rainforest, and much needed support for tourism to increase revenue to a much need drought affected region. Local small businesses in Long Flat and Comboyne and Byabarra will have increase in foot traffic as guest are travelling for all areas of Australia and Overseas.

Noted.

Support the development for the following reasons: · There is no or very little accommodation in the area. · The community is very small and should there be something exciting to visit and enjoy nature at the same time and well that’s just so very positive on the Council and community in which all belong to. · It’s very nice to see something new and effective for tourist to enjoy and to share with people from out of town. · It was all such a great concept to appreciate nature and to have accommodation is just a bonus to sleep amongst the stars we miss out on that in the city.	Noted.
Support the proposal for the following reasons: · This vision will help coordinate local awareness of farmers and demonstrate efforts to collaborate with nature. · This is a specific idea, will boost a very tough area with new money and will continue to show people the importance of this region and habitat there are dedicated to building and ensuring great service to the people of Port Macquarie and surrounding. · It will bring an important resources and there is strong customer focus and care to all involvement, professional with all that’s been seen so far and hopefully for the future.	Noted.
Support the proposal for the following reasons: · It’s a brilliant way to see the local landscape and to experience an overnight stay in the hinterland with farmers. · The development provides a compromise between camping and other forms of accommodation. · It is great for the community to show off its local attractions and great recreation spots to visit and sight see. Nature Domes is a peaceful alternative to the busy streets and great that there could be an option to experience ocean and country all in one holiday.	Noted
What is Council doing about the illegal building which is being used as permanent accommodation?	The building was erected as a farm shed, which did not initially require development consent. However, it appeared from the site inspection that the shed had been fitted out in a manner that would make it capable of being occupied as a dwelling. Clarification was sought as to the intended use of the building through the assessment process, and the application now seeks to retain the building as amenities for workers on the farm. A condition has been recommended restricting the use of the building to this purpose, and prohibiting overnight accommodation or conversion to a dwelling.
The dome accommodation is still in operation.	Council’s Compliance staff have been monitoring the use of the site since the Order was issued in July 2019 and have not been able to obtain any evidence of further use of the accommodation domes.
Income figures provided in the application are not correct. The farm only has 6 weaner cattle and 2 pigs. The agistment of stock referenced in the original farm business plan never actually occurred.	The farm business plan has been amended through the assessment process to better reflect stocking rates consistent with NSW Department of Primary Industries guidelines. The proposal no longer relies upon income from agistment of stock.
The farm is not a viable rural property as a large proportion is overgrown with weeds and dense vegetation.	The definition of farm stay accommodation in the LEP does not require the consent authority to be satisfied that the farm is a viable business. The relevant test is that the property is a working farm, and that the income from the farm exceeds the income from the accommodation. The Applicant has submitted sufficient information to satisfy this requirement.
If creek crossings are used, who maintains them with bridges or causeways to Council approval?	With the amended proposal and recommended conditions of consent, no new creek crossings will be required for the development.
Concerns about boundary gates being left open or guests trespassing on adjoining property.	This is considered capable of being managed through appropriate information for guest staying on the property, or through agreement between the property owners for alterations to the existing boundary fencing.
With the additional traffic generated by the proposal, will it be necessary for the mountain section of Toms Creek road to be upgraded? The road is currently sign posted as four wheel drive only.	The proposed development will only result in a minor increase in the existing traffic on Toms Creek Road (6 trips per day according to the Guide to Traffic Generating Development). Two-wheel drive access to the site is available from the Oxley Highway end of Toms Creek Road. It is not considered that the development creates a nexus for the upgrade of section of Toms Creek Road south of the site (connecting to Innes View Road).

(e) The Public Interest

The proposed development satisfies relevant planning controls and will not adversely impact on the wider public interest.

(f) Ecologically Sustainable Development and Precautionary Principle

Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes.

The four principles of ecologically sustainable development are:

· the precautionary principle,

· intergenerational equity,

· conservation of biological diversity and ecological integrity,

· improved valuation, pricing and incentive mechanisms.

(g) Climate change

The proposal is not considered to be vulnerable to any risks associated with climate change.

4. DEVELOPMENT CONTRIBUTIONS APPLICABLE

· A copy of the contributions estimate is included as Attachment 3.

5. CONCLUSION AND STATEMENT OF REASON

The application has been assessed in accordance with Section 4.15 of the Environmental Planning and Assessment Act 1979.

Attachments

1 ⇩. DA2019 - 681.1 Recommended Conditions

2 ⇩. DA2019 - 681.1 Plans

3 ⇩. DA2019 - 681.1 Contributions Estimate

AGENDA Development Assessment Panel 14/10/2020

Item: 08

Subject: DA2020 - 433.1 Alterations and Additions to Dwelling, Part Change of Use to Secondary Dwelling and Construction of Swimming Pool Including Clause 4.6 Objection to Clause 4.3 (Height of Buildings) of the Port Macquarie-Hastings Local Environmental Plan 2011 at Lot 392 DP 236950, No. 1 Vendul Crescent, Port Macquarie

Report Author: Development Assessment Planner, Chris Gardiner

Applicant: D J & J Weatherley

Owner: D J & J Weatherley

Estimated Cost: $475,000

Parcel no: 24330

Alignment with Delivery Program

4.3.1 Undertake transparent and efficient development assessment in accordance with relevant legislation.

RECOMMENDATION

That it be recommended to Council that DA2020 - 433.1 for alterations and additions to dwelling, part change of use to secondary dwelling and construction of swimming pool including Clause 4.6 Objection to Clause 4.3 (Height of Buildings) of the Port Macquarie-Hastings Local Environmental Plan 2011 at Lot 392, DP 236950, No. 1 Vendul Crescent, Port Macquarie, be determined by granting consent subject to the recommended conditions.

Executive Summary

This report considers a development application for alterations and additions to the existing dwelling, part change of use to a secondary dwelling and construction of a swimming pool at the subject site and provides an assessment of the application in accordance with the Environmental Planning and Assessment Act 1979.

Following exhibition of the application, no submissions were received.

The application includes a Clause 4.6 objection to Clause 4.3 (Height of Buildings) of the Port Macquarie-Hastings Local Environmental Plan 2011. The variation to the standard exceeds 10% and the application is required to be determined by Council following consideration by the Development Assessment Panel.

This report recommends that the development application be approved subject to the conditions in Attachment 1.

1. BACKGROUND

Existing Sites Features and Surrounding Development

The site has an area of 562.8m².

The site is zoned R1 General Residential in accordance with the Port Macquarie-Hastings Local Environmental Plan 2011, as shown in the following zoning plan:

The existing subdivision pattern and location of existing development within the locality is shown in the following aerial photograph:

2. DESCRIPTION OF DEVELOPMENT

Key aspects of the proposal include the following:

· Alterations and additions to dwelling;

· Conversion of part of the ground floor area to a secondary dwelling; and

· Construction of a new swimming pool and fencing.

Refer to Attachment 2 at the end of this report for plans of the proposed development.

Application Chronology

· 1 June 2020 - Application lodged.

· 15 June 2020 to 29 June 2020 - Neighbour notification.

3. STATUTORY ASSESSMENT

Section 4.15(1) Matters for Consideration

(a) The provisions (where applicable) of:

(i) Any Environmental Planning Instrument

State Environmental Planning Policy (Koala Habitat Protection) 2019

Clause 10 - The site isn’t identified on the Koala Development Application Map or under a Koala Plan of Management and the land has an area less than 1 hectare including adjoining land in the same ownership. The SEPP does not prevent the granting of consent on the land being less than 1 hectare in area. The application has also demonstrated that no habitat will be removed or modified therefore no further investigations are required.

State Environmental Planning Policy No. 55 – Remediation of Land

Following an inspection of the site and a search of Council records, the subject land is not identified as being potentially contaminated and is suitable for the intended use.

State Environmental Planning Policy (Coastal Management) 2018

The site is not within areas mapped as a wetland or littoral rainforest area. However, it is located within a proximity area for littoral rainforests. The south-eastern tip of the site is mapped as Coastal Use Area.

In accordance with clause 7, this SEPP prevails over the Port Macquarie-Hastings LEP 2011 in the event of any inconsistency.

In accordance with Clause 11, the proposed development is not expected to significantly impact the biophysical, hydrological or ecological integrity of the adjacent littoral rainforest, or the quality or quantity of water flows to or from the adjacent littoral rainforest. The proposed works are contained within the managed yard of an existing dwelling and conditions have been recommended to ensure adequate stormwater management and erosions and sediment control.

Having regard to clause 14 of the SEPP, the proposed development is not considered likely to result in any of the following:

a) any adverse impact on integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment;

b) any adverse impacts coastal environmental values and natural coastal processes;

c) any adverse impact on marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms;

d) any adverse impact on Aboriginal cultural heritage, practices and places;

e) any adverse impacts on the cultural and built environment heritage;

f) any adverse impacts the use of the surf zone;

g) any adverse impact on the visual amenity and scenic qualities of the coast, including coastal headlands;

h) overshadowing, wind funnelling and the loss of views from public places to foreshores;

i) any adverse impacts on existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability;

In accordance with Clause 15 the proposal is not likely to cause increased risk of coastal hazards on that land or other land.

The bulk, scale and size of the proposed development is compatible with the existing built form. The site has an existing dwelling on it and is located within an area zoned for residential purposes.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Affordable Rental Housing) 2009

Clause 20 - The site is in a prescribed zone and secondary dwellings are permissible with consent pursuant to the SEPP.

Clause 22(2) - The development would not result in there being a dwelling other than the primary dwelling and the secondary dwelling.

Clause 22(3) - The proposed secondary dwelling would not have a floor area exceeding 60m² and the combined floor area of the primary and secondary dwelling would not exceed the maximum permitted under the Port Macquarie-Hastings Local Environmental Plan 2011 (see comments below under LEP).

Clause 22(4) - It is noted that consent cannot be refused on the grounds of site area or parking.

Clause 24 - It is noted that the consent authority must not consent to a development application that would result in any subdivision of a lot on which development for the purposes of a secondary dwelling has been carried out.

The requirements of this SEPP are therefore satisfied.

Port Macquarie-Hastings Local Environmental Plan 2011

The proposal is consistent with the LEP having regard to the following:

· Clause 2.2 - The subject site is zoned R1 General Residential.

· Clause 2.3(1) and the R1 zone landuse table - The dwelling house and secondary dwelling are permissible land uses with consent.

The objectives of the R1 zone are as follows:

o To provide for the housing needs of the community.

o To provide for a variety of housing types and densities.

o To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· Clause 2.3(2) - The proposal is consistent with the zone objectives as it provides a variety of housing types to meet the housing needs of the community.

· Clause 4.3 - The maximum overall height of the building above ground level (existing) is 11.75m, which exceeds the standard height limit of 8.5 m applying to the site by 38%. A Clause 4.6 assessment is provided below, which concludes that the proposed roof extension over the rear deck is minor, and retains open areas. The height is consistent with a number of other dwellings in the neighbourhood and is a reflection of the steep topography of the area.

· Clause 4.4 - The floor space ratio of the proposal is 0.55:1 which complies with the maximum 0.65:1 floor space ratio applying to the site.

· Clause 4.6 - This clause establishes a degree of flexibility for certain development standards in certain circumstances which have demonstrated that a better planning outcome will occur from that flexibility. In this regard, the proposal seeks a variation to the building height standard. Assistance on the approach to variation to this standard is also taken from NSW Land and Environment Court and NSW Court of Appeal decisions in:

1. Wehbe v Pittwater Council (2007) NSW LEC 827 (Wehbe);

2. Four2Five Pty Ltd v Ashfield Council (2015) NSWLEC 1009; and

3. Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) NSWCA 245

Having regard to specific requirements of clause 4.6(3) and 4.6(4) the following assessment comments are provided:

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

Comments: The Applicant has submitted a request in writing (Attachment 3) to justify the contravention of the building height standard for the following reasons (as summarised):

· Compliance with the development standard in unnecessary in the circumstances of the case as the proposal satisfies the objectives of Clause 4.3 notwithstanding the numerical variation.

· Compliance with the development standard is unreasonable and unnecessary due to other height variations approved by Council in the locality. The Clause 4.6 written request includes a number of examples of approved buildings exceeding the height limit in the Lighthouse Beach area.

· The proposed roof addition over the existing upper floor balcony has been designed to be substantially open/openable to reflect the existing situation.

· The site slopes steeply from north to south.

· The existing building already exceeds the height limit and the proposed deck addition will sit below the roof of the existing dwelling.

· The provision of shade to an outdoor area will help reduce the incidence of skin cancer and improve the welfare of the community.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3),

In Wehbe five methods have been developed to test whether compliance with a development standard is unreasonable or unnecessary:

1. The objectives of the standard are achieved notwithstanding the non-compliance with the numerical standard and therefore compliance is unnecessary.

2. The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary.

3. The underlying object or purpose of the standard would be defeated or thwarted if compliance was required and therefore compliance is unreasonable.

4. The development standard has been virtually abandoned or destroyed by the Council’s own actions in granting a consent to proposals departing from the standard and hence compliance is unreasonable and unnecessary.

5. The zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land.

The proposal relies upon the first and fourth tests and it is considered that the Applicant’s written request had satisfactorily demonstrated that that the proposed development will achieve the objectives of the height of building development standard despite the numerical non-compliance. Evidence has also been provided of a history of departures from the height of building standard on similar steeply sloping sites in the Lighthouse Beach area. However, the number of departures is not considered to constitute a total abandonment of the development standard by Council, particularly given that the variations have been appropriately considered in accordance with Clause 4.6. Notwithstanding this, the first test alone is sufficient to establish that compliance with the standard is unnecessary.

The written request also demonstrates that there are sufficient environmental planning grounds for the variation, with the steep topography and height of the existing dwelling being of particular merit. In relation to the comments relating to providing shade to outdoor areas and reducing the incidence of skin cancer in the community, this is an important message more broadly, but it is not considered to add any weight to the case for varying the development standard in this instance. The area is for private use and the shade wouldn’t provide a broader public benefit to the community. There are also a number of opportunities to provide shade to outdoor spaces on the site below the height limit.

Overall, it is considered that the Applicant’s clause 4.6 variation has adequately addressed the matters required to be demonstrated by clause 4.6(3).

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out,

The consistency of the proposal with the zone objectives has been discussed above under Clause 2.3. Consideration of the proposal’s consistency with the objectives of height of buildings standard (Clause 4.3) is provided as follows:

(a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality,

Comments: The height of the proposed building is not out of character with existing development in the area. There are a number of examples of buildings on steeply sloping sites in the area, which are 3 to 4 storeys at the rear. The height of the roof over the upper floor balcony is lower in terms of RL that the ridge of the curved roof of the existing dwelling. The roof has been designed to be largely open to reduce its bulk. The bulk and scale of the proposal is considered to be acceptable and is below the maximum permitted FSR for the area.

The building would continue to present as a two-storey dwelling to the primary street frontage in Vendul Crescent

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

Comments: The impact of the building is considered satisfactory for the following reasons:

1. The development will not result in an increased loss of solar access to adjoining property. The adjoining dwelling to the south of the site has no living area windows on its northern elevation and has its main indoor and outdoor living spaces oriented towards the views to the south and east.

2. The proposal will not result in the disruption of any significant views. The roof addition is located below the level of the top of the existing roof of the dwelling and will not be visible from any angle where key views are obtained across the property.

3. Potential privacy impacts have been satisfactorily addressed in the building design. The height variation would not contribute to any adverse privacy impacts, as it is the deck that creates the potential privacy impact rather than the proposed roof addition.

4. Neighbour notification of the proposal did not identify any concerns regarding loss of amenity to nearby properties.

(c) to minimise the adverse impact of development on heritage conservation areas and heritage items,

Comments: The site does not contain any known heritage items or sites of significance.

(d) to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan.

Comments: The site is surrounded by land with similar zoning and building height controls and is not in a location where development provides a transition in built form or land use intensity.

The development is consistent with the zoning and height objectives of the LEP 2011 and is unlikely to have any implications on State related issues or the broader public interest.

(b) the concurrence of the Secretary has been obtained.

Comments: In accordance with Planning Circular PS 20-002, the Secretary’s concurrence can be assumed for variations to the height of buildings development standard. However, as the extent of the variation exceeds 10% the application is required to be determined by Council, to ensure that there is transparency in the decision-making process.

Having regard to the above requirements it is recommended that the height variation using Clause 4.6 be supported.

· Clause 5.4 - The proposed secondary dwelling has a floor area of 60m2 and does not exceed 33% of the total floor area of the principal dwelling.

· Clause 5.10 - Heritage. The site does not contain or adjoin any known heritage items or sites of significance.

· Clause 7.1 - The site is not mapped as containing any areas of potential acid sulfate soils.

· Clause 7.6 - The site is not mapped as being impacted by Coastline Hazards.

· Clause 7.9 - The site is not mapped as being in an area subject to acoustic controls.

(ii) Any draft instruments that apply to the site or are on exhibition

No draft instruments apply to the site.

(iii) Any Development Control Plan in force

Port Macquarie-Hastings Development Control Plan 2013

*DCP 2013: Part C - Development Specific Provisions - C1: Low Density Residential Development*
DCP Objective	Development Provisions	Proposed	Complies
Front Setbacks
44	a) Dwellings may incorporate an articulation zone to a street frontage at no less than 3m from property boundary. The following building elements are permitted within the articulation zone: - an entry feature or portico; - a balcony, deck, patio, pergola, terrace or verandah; - a window box treatment; - a bay window or similar feature; - an awning or other feature over a window; - a sun shading feature. b) These building elements should not extend above the eave gutter line, other than a pitched roof to an entry feature or portico that has the same pitch as the roof on the dwelling house.	No building works are proposed within the 3m front articulation zone.	Yes
44	c) The primary road front setback shall be: Classified road = any frontage 6.0m Primary frontage = 4.5m Secondary frontage = 3.0m Ancillary Lane = 2.0m Large lot residential and rural zones = 10.0m	Primary frontage - no alteration to the existing garage setback to Vendul Crescent. Secondary frontage - no reduction to the secondary frontage setback is proposed.	N/A
45	a) A garage, carport or car parking space should: - be at least 1m behind the building line, where the dwelling(s) has a setback from a front boundary of 4.5m or more, or - be at least 5.5m from a front boundary, where the dwelling(s) has a setback of less than 4.5m.	There is no change proposed to the location of the garage, garage door or driveway crossover.	N/A
	b) The total width of the garage/carport openings should not be more than 6m and not more than 50 per cent of the width of the building.	There is no change proposed to the location of the garage, garage door or driveway crossover.	N/A
	c) Driveway crossovers are no greater than 5.0m in width.	There is no change proposed to the location of the garage, garage door or driveway crossover.	N/A
	d) Where a dual occupancy or attached dwelling is proposed on a corner lot a garage and driveway is provided on each road frontage.	The granny flat is on the ground level of the dwelling. It has a driveway onto Partridge Street. The main dwelling has a driveway and garages onto Vendul Crescent.	Yes
Side and Rear Setbacks
46	a) A minimum rear boundary setback of 4m is to be provided to dwellings (including verandahs, patios and decks).	Minimum rear boundary does not apply to corner lots.	N/A
	b) A minimum rear boundary setback of 900mm applies to sheds and swimming pools subject to achieving minimum required private open space area.	N/A	N/A
	c) Council may consider varying rear setback requirements where it is demonstrated that the private open space could achieve better solar access between the building and the side setback. In that instance, one side setback should be a minimum 4m in width (for an equivalent length of rear boundary, behind building line) and the rear setback may be reduced to 900mm.	N/A	N/A
47	a) Ground floors (being <1m above existing ground level) should be setback a minimum of 900mm from side boundaries.	All side setbacks are greater than 900mm from side boundary.	Yes
	b) First floors and above (including single storey with floor level >1m) should be setback a minimum of 3m from the side boundary, or reduced down to 900mm where it can be demonstrated that the adjoining property’s primary living rooms and principal private open space areas are not adversely overshadowed for more than 3hrs between 9am - 3pm on 21 June.	The existing north eastern side setback is 1.485m from the side boundary (neighbouring Lot 391 DP 236950). This remains unchanged. The south western most point of the existing dwelling is 1.5m from the side boundary (neighbouring Lot 389 DP 208523). The proposal is to provide a roller shade cover over the balcony on the first floor (south east elevation) and extended to full width of building at 10deg pitch. The corner of the roof will be extended to the dwelling edge at 1.5m from the neighbouring boundary. Due to the existing built form Lot 389 DP208523 is already overshadowed.	No, but acceptable
	c) First floors and above should have building walls that step in and out at least every 12m by a minimum of 500mm articulation. Where first floors and above are setback >3m, wall articulation is not required.	No walls are unarticulated for 12m or greater.	Yes
Private Open Space
48.	a) All dwellings should have a minimum area of private open space of 35m2, which includes a principal private open space area with: - a minimum dimension of 4m x 4m, and - a maximum grade of 5% for minimum 4m x 4m of the total open space requirement, and - direct accessibility from a ground floor living area and orientated to maximise use.	Outdoor living space exceeds 35m2 and includes the pool area. Granny flat has an existing outdoor paved area to achieve the 4m x 4m area. Proposal will provide better connection from the main dwelling to the outdoor area on the southern side of the dwelling.	Yes
	b) Private open space may include clothes drying areas and garbage storage.	Noted.
Public Domain and Fencing
49	a) Front fences built forward of the building line for the primary road frontage should be detailed on the development application plans.	Plan set includes fence detail.	Yes
	b) Solid Front fences up to 1.2m high should be: - Setback 1.0m from the front boundary, and - Suitably landscaped to reduce visual impact, and - Provide a 3m x 3m splay for corner sites.	Proposed fence 1.8m, refer to provision below.	N/A
	b) Front fences proposed to be more than 1.2m high should be a maximum of 1.8m in height, above existing front property boundary level, and either: - Include landscaped recesses having minimum dimensions of 1.8m long x 900mm deep which occupy no less than 50% of the total length of the fence, or - be erected up to the front boundary for a maximum length of 6.0m or 50% of the street frontage,	Vendul Crescent frontage will include a pool fence and compliance for such. Driveway is unfenced. Fence is max 1.8m high and no more than 50% of the length of the property boundary.	Yes
	c) have openings which make it not less than 25% transparent (no individual opening more than 30mm wide);	Fencing provides for transparency and aligns with the splayed property boundary. The proposed fencing will not fully comply with the requirement for 25% transparency, but the fence is replacing an existing Colorbond fence that currently contains no openings. The introduction of some transparency to the proposed fence is considered to be an improvement to the current situation.	No, but acceptable
	d) provide a 3m x 3m splay for corner sites, and	Fence aligns with splayed property boundary	Yes
	e) provide a 900mm x 900mm splay for vehicle driveway entrances.	Driveway is unfenced.	N/A
Bulk and Scale
51	a) Direct views between indoor living rooms and principal private open space of adjacent dwellings, including proposed dwellings approved on adjoining lots, including possible dwellings on future lots, should be obscured or screened where: - Ground and first floor (and above) indoor living room windows are within a 9m radius. - Direct views between principal private open space areas where within a 12m radius. - Direct views between indoor living rooms of dwellings into the principal area of private open space of other dwellings within a 12m radius.	Complies with ground and upper floor privacy areas. Lower areas to be screened by fencing and orientation of windows.	Yes
	b) A balcony, deck, patio, pergola, terrace or verandah should have a privacy screen where there are direct views of: - Indoor living room windows of adjacent dwellings, including proposed dwellings approved on adjoining lots within 9m radius; or - Principal areas of private open space of adjacent dwellings, including proposed dwellings approved on adjoining lots within a 12m radius.	Upper balcony area proposed to include screening on the eastern end.	Yes
	c) Privacy protection is not required for: - Any Indoor living room windows with a sill height of greater than 1.5m above the finished floor level of that room or where fixed non-openable translucent glass is installed to the same height.	Noted.
	d) Direct views described above may be reduced or obscured by one of the following measures (details to be submitted with the development application): - 1.8m high fence or wall between ground-floor level windows or between a dwelling and principal private open space - Screening of minimum 1.7m height, that has 25% openings (max), with no individual opening more than 30mm wide, is permanently fixed and is made of durable materials. - A window, the whole of which has translucent glass and is not able to be opened.	Privacy screen on the eastern end of the upper floor balcony complies with the screening requirements. 1.8m high fencing also proposed for private open space areas of the primary and secondary dwellings.	Yes

*DCP 2013: Part B - General Provisions - B2: Environmental Management*
DCP Objective	Development Provisions		Proposed		Complies
3	a) Development must comply with Council’s Developments, Public Place & Events - Waste Minimisation and Management Policy.		Kerbside collection will remain unchanged.		Yes
Cut and Fill Regrading
4	a) Development shall not exceed a maximum cut of 1.0m and fill of 1.0m measured vertically above the ground level (existing) at a distance of 1.0m outside the perimeter of the external walls of the building (This does not apply to buildings where such cut and fill is fully retained within or by the external walls of the building).		Terraced landscaped areas are proposed which exceed 1m of excavation outside the building footprint. The works are below street level to Vendul Crescent and will not be prominent in the streetscape. There are no adverse privacy impacts associated with the earthworks, and appropriate conditions have been recommended to ensure the stability of the retaining structures and appropriate stormwater management. The proposal is considered to be consistent with the objectives of the provision.		No, but acceptable.
5	a) A certified practicing structural engineer must certify any retaining wall greater than 1.0m.		Condition recommended requiring engineering certification of any retaining walls greater than 1m high.		Yes
	b) Where a combination of a fence and a wall is proposed to be greater than 1.2m high: - be a maximum combined height of 1.8m above existing property boundary level; - be constructed up to the front boundary for a maximum length of 6.0m or 30% of the street frontage, whichever is less; − the fence component has openings which make it not less than 25% transparent; and − provide a 3m x 3m splay for corner sites, and - provide a 900mm x 900mm splay for vehicle driveway entrances.		The fencing along Vendul Crescent will be on top of a retaining wall and the combination of the retaining wall and fence will have a combined height that is greater than 1.8m. The proposal is considered acceptable as the wall is retaining cut within the site and would not be visible in the streetscape. The fence will still present as having a height of 1.8m when viewed from Vendul Crescent.		No, but acceptable
Bushfire Hazard Management
18		a) APZs are to be located outside of environmental protection zones and wholly provided within private land. Note perimeter roads provided as part of a residential subdivision are classified as being part of the subdivision and not a separate permissible land use within environment protection zones.	APZ for the dwelling does not extend into any environmental protection zones.			Yes
		b) Perimeter roads are to be provided to all urban areas adjoining environmental management areas and their buffers. Refer to Figure 2.	N/A			N/A
Road Hierarchy
23	a) New direct accesses from a development to arterial and distributor roads is not permitted. Routes should differ in alignment and design standard according to the volume and type of traffic they are intended to carry, the desirable traffic speed, and other factors.			N/A				N/A
	b) Existing direct accesses from a development to arterial and distributor roads are rationalised or removed where practical.			N/A				N/A
	c) Vehicle driveway crossings are minimal in number and width (while being adequate for the nature of the development), and positioned: − to avoid driveways near intersections and road bends, and − to minimise streetscapes dominated by driveways and garage doors, and − to maximise on-street parking.			Vehicular driveway crossings remain unchanged.				Yes
Parking Provision
24	a) Off-street Parking is provided in accordance with Table 3.			The existing dwelling has a double garage accessed from Vendul Crescent. The granny flat has an existing separate off street parking space accessed from Partridge Street.				Yes
	b) Where a proposed development does not fall within any of the listed definitions, the provision of on-site parking shall be supported by a parking demand study.			N/A				N/A
	c) Where a proposed development falls within more than one category Council will require the total parking provision for each category.			N/A				N/A
Crime Prevention
43	a) The development addresses the generic principles of crime prevention: - Casual surveillance and sightlines; - Land use mix and activity generators; - Definition of use and ownership; - Basic exterior building design; - Lighting; - Way-finding; and - Predictable routes and entrapment locations; - as described in the Crime Prevention Through Environmental Design (CPTED) principles.			No concealment or entrapment areas proposed. Adequate casual surveillance available.			Yes

The proposal seeks to vary Development Provision relating to earthworks, fencing, and side building setbacks.

The relevant objectives are:

Objective 4:

To ensure that design of any building or structure integrates with the topography of the land to:

- Minimise the extent of site disturbance caused by excessive cut and fill to the site. Ensure there is no damage or instability to adjoining properties caused by excavation or filling.

- Ensure that there is no adverse alteration to the drainage of adjoining properties.

- Ensure the privacy of adjoining dwellings and private open space are protected.

- Ensure that adequate stormwater drainage is provided around the perimeter of buildings and that overflow paths are provided.

Having regard for the development provisions and relevant objectives, the variation is considered acceptable for the following reasons:

· The site has significant slope and it is difficult to achieve usable outdoor spaces without large amounts of cut and fill.

· The variation relates to excavation adjacent to the Vendul Crescent frontage and the retaining walls would not be visible from the public domain.

· The excavation would not create any adverse privacy impacts.

· The proposed excavation would not affect stormwater flows around the building.

· Appropriate conditions have been recommended requiring engineering certification of the retaining walls, to ensure that the land is satisfactorily stabilised.

Objective 5:

To ensure retaining walls are functional, safe and positively contribute to the development and/or the streetscape.

Having regard for the development provisions and relevant objectives, the variation is considered acceptable for the following reasons:

· The retaining walls will requiring engineering certification to ensure that they are functional and safe.

· The proposal the proposal includes excavation below street level along the Vendul Crescent frontage. The retaining wall would not be visible from the public domain and the fencing would present as 1.8m high when view from the street.

Objective 47:

To reduce overbearing and perceptions of building bulk on adjoining properties.

To provide for visual and acoustic privacy between dwellings.

Having regard for the development provisions and relevant objectives, the variation is considered acceptable for the following reasons:

· The proposal would not significantly alter the bulk of the existing dwelling, and includes only a minor increase to the existing floor area of the building.

· The roof addition over the upper floor balcony has been designed to be largely open (including pergola and retractable shade sail). This addition will not present as adding to the bulk of the building.

· The proposal will improve privacy between the upper floor balcony and the adjoining dwelling to the east, with provision of a full height privacy screen at the eastern end.

Based on the above assessment, the variations proposed to the provisions of the DCP are considered acceptable and the relevant objectives have been satisfied. Cumulatively, the variations do not amount to an adverse impact of a significance that would justify refusal of the application.

(iiia) Any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

No planning agreement has been offered or entered into relating to the site.

(iv) Any matters prescribed by the Regulations

Demolition of buildings AS 2601 - Clause 92

Demolition of the existing building elements on the site is capable of compliance with this Australian Standard and is recommended to be conditioned.

(b) The likely impacts of that development, including environmental impacts on both the natural and built environments, social and economic impacts in the locality

Context and setting

The proposal will not have any significant adverse impacts on existing adjoining properties and satisfactorily addresses the public domain.

The topography in this area is such that dwellings are often stepped to match the land, which results in multi-level housing that exceeds the height limit. The existing dwelling and proposed alterations and additions are consistent with the local context, which includes dwellings constructed over three to four levels in places. The proposal adequately addresses the objectives of the planning controls for the area.

The proposal does not have a significant adverse impact on existing view sharing.

The proposal does not have significant adverse lighting impacts.

There are no significant adverse privacy impacts.

There are no significant adverse overshadowing impacts. The existing dwelling already substantially overshadows the adjoining property to the south, and given the nature of the building additions below the highest part of the existing roof line, it is not expected that the proposal would significantly change the existing impacts. The adjoining dwelling has no windows in the northern elevation and is generally oriented towards the views to the south-east.

Access, traffic and transport

The proposal will not have any significant adverse impacts in terms access, transport and traffic. The existing road network will satisfactorily cater for any increase in traffic generation as a result of the development.

Water supply connection

The site has an existing water supply connection. New plumbing associated with the development will require a Section 68 application, as recommended in the conditions.

Sewer connection

The site has an existing sewer connection. New plumbing associated with the development will require a Section 68 application, as recommended in the conditions.

Stormwater

The building is currently drained to a kerb adaptor in Vendul Crescent. The proposed building additions are capable of draining to the existing stormwater system serving the site. Details will be required with the Section 68 application, as recommended in the conditions.

Other utilities

Telecommunication and electricity services are available to the site.

Heritage

This site does not contain or adjoin any known heritage item or site of significance. The site is considered to be disturbed land.

Other land resources

The site is within an established urban context and will not sterilise any significant mineral or agricultural resource.

Water cycle

The proposed development will not have any significant adverse impacts on water resources and the water cycle.

Soils

Air and microclimate

Flora and fauna

Waste

Satisfactory arrangements are in place for proposed storage and collection of waste and recyclables. No adverse impacts anticipated. Standard precautionary site management condition recommended.

Energy

The proposal includes measures to address energy efficiency and will be required to comply with the requirements of BASIX.

Noise and vibration

Bushfire

The site is identified as being bushfire prone.

The Applicant has submitted a Section 4.14 bushfire certificate prepared by a Certified Consultant. The certificate concludes that a Bushfire Attack Level 29 shall be required.

Management of bushfire risk is acceptable subject to BAL construction levels being implemented and APZ being maintained. An appropriate condition is recommended.

Safety, security and crime prevention

Social impacts in the locality

Given the nature of the proposed development and its location the proposal is not considered to have any significant adverse social impacts.

Economic impact in the locality

Site design and internal design

The proposed development design satisfactorily responds to the site attributes and will fit into the locality. No adverse impacts likely.

Construction

Construction impacts are considered capable of being managed, standard construction and site management conditions have been recommended.

Cumulative impacts

The proposed development is not considered to have any significant adverse cumulative impacts on the natural or built environment or the social and economic attributes of the locality.

(c) The suitability of the site for the development

The proposal will fit into the locality and the site attributes are conducive to the proposed development.

Site constraints of bushfire have been adequately addressed and appropriate conditions of consent recommended.

(d) Any submissions made in accordance with this Act or the Regulations

No written submissions were received following public exhibition of the application.

(e) The Public Interest

The proposed development satisfies relevant planning controls and will not adversely impact on the wider public interest.

(f) Ecologically Sustainable Development and Precautionary Principle

Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes.

The four principles of ecologically sustainable development are:

· the precautionary principle,

· intergenerational equity,

· conservation of biological diversity and ecological integrity,

· improved valuation, pricing and incentive mechanisms.

(g) Climate change

The proposal is not considered to be vulnerable to any risks associated with climate change.

4. DEVELOPMENT CONTRIBUTIONS APPLICABLE

Development contributions will not be required under S64/S7.11 for the following reasons:

· The proposed secondary dwelling has a floor area not exceeding 60m² and is exempt from development contributions in accordance with Clause 2.5 of Council’s Development Contributions Assessment Policy.

5. CONCLUSION AND STATEMENT OF REASON

The application has been assessed in accordance with Section 4.15 of the Environmental Planning and Assessment Act 1979.

Attachments

1 ⇩. DA 2020 - 433.1 Recommended Conditions

2 ⇩. DA2020 - 433.1 Plans

3 ⇩. DA2020 - 433.1 Clause 4.6 Written Request

AGENDA Development Assessment Panel 14/10/2020

Item: 09

Subject: DA2016.88.9 Subdivision Modification, Lot 146 DP 1256576 (now known as Lot 2 DP 1263561), South Atlantic Drive, Lake Cathie

Report Author: Development Assessment Planner, Steven Ford

Applicant: Gem Life c/- Land Dynamics Australia

Owner: GTH Resorts No 7 Pty Ltd

Estimated Cost: $0

Parcel no: 69224

Alignment with Delivery Program

4.3.1 Undertake transparent and efficient development assessment in accordance with relevant legislation.

RECOMMENDATION

That the Section 4.55(1A) modification to DA 2016.88.9 being a modification to the subdivision layout of the previously approved stage 6 at Lot 146, DP 1256576, South Atlantic Drive, Lake Cathie, be determined by granting consent subject to the recommended conditions.

Executive Summary

This report considers a s4.55(1A) modification of consent to amend the lot layout of Stage 6 of an approved staged subdivision at the subject site and provides an assessment of the application in accordance with the Environmental Planning and Assessment Act 1979.

Being a s4.55 modification, the amended proposal has been assessed against the relevant legislation in place at the time of the original assessment, unless specifically revoked by subsequent legislation.

Following exhibition of the application, two (2) submissions were received.

In addition, the subject site has approval for a Manufactured Housing Estate (MHE) and Ancillary structures under DA2019 - 780.1. The proposed MHE development excluded the Stage 6 area of the subject land due to permissibility within the E4 Environmental Living land zoning. Subsequently, it is noted that the consent for DA2019 - 780.1 requires all previous approvals/stages of DA2016 - 88 to be surrendered. However, at the time of writing this report, DA2019 - 780.1 has not commenced.

Since the modification was lodged, the property description has also changed to Lot 2 DP 1263561 as a result of earlier stages to DA2016 - 88.1 being completed. However, the new lot description does not impact on the footprint of the changes proposed under this modification.

Overall, the site is considered suitable for the modified development and the proposal adequately addresses relevant planning controls. The development is not considered to be contrary to the public's interest and will not result in a significant adverse social, environmental or economic impact.

This report recommends that the development application be approved subject to the attached conditions (Attachment 1).

1. BACKGROUND

Existing Sites Features and Surrounding Development

The original overall site area to which DA2016 - 88.1 applied was 21.16ha. Since being approved, several stages under DA2016 - 88.1, as modified, have been completed leaving a residual area of 12.81ha to which the modified changes relate. However, more specifically, this modification specifically relates to the E4 Environmental Living land being Stage 6 of DA2016 - 88.5

The site is zoned R1 General Residential, E2 Environmental Conservation, E3 Environmental Management and E4 Environmental Living in accordance with the Port Macquarie-Hastings Local Environmental Plan 2011, as shown in the following zoning plan:

The site is located on the corner of Ocean Drive, Houston Mitchell Drive and Forest Parkway, Lake Cathie. The land subject to the modification is zoned E4 Environmental Living, which is currently vacant and contains managed timbered land.

Adjoining the subject area to the North and North/East is an approved Manufactured Housing Estate and Ancillary buildings. The proposed MHE development excludes the Stage 6 area of the subject land due to permissibility within the E4 Environmental Living land zoning.

Adjoining the parent lot to the north is an existing large lot residential subdivision with associated housing and a section of E(2) Environment Conservation and E(3) Environmental Management zoned land in Council ownership. Further north is the Lake Innes Nature Reserve and land approved under DA2016 - 87 for 68 residential lots.

Adjoining the site to the east are the initial completed stages of DA2016 - 88 with associated housing. Further east is an approved manufactured housing estate that is partially complete with further sites to be created.

Adjoining the site to the west is timbered rural land.

Adjoining the site to the south is the Lake Cathie Primary School and the remaining Area 14 residential area.

The existing subdivision pattern and location of existing development within the locality is shown in the following aerial photograph:

2. DESCRIPTION OF DEVELOPMENT

Key aspects of the proposal include the following:

· The Northern Joint Regional Planning Panel (JRPP) approved the original 151 residential lot subdivision on 17 August 2016.

· The modification retains the same footprint of the Stage 6, being the E4 Environmental Land, within the south-western corner of the approved residential subdivision, on Lot 146 DP 1256576, Corner Forest Parkway & Ocean Drive, Lake Cathie.

· The subject modification alters the approved lot layout and public road in the E4 zoned portion of the site only.

· No additional lots are being proposed and Stage 6 will retain 17 environmental living lots.

· Lots sizes will now range from 450m² to 2384.4m² within the R1 zoned land and 2019.2m² to 2650.8m² within the E4 zoned land.

· Access to the development will still occur from Forest Parkway to the west.

· The development was referred back to the NSW RFS for an amended Bushfire Safety Authority under section 100B of the Rural Fires Act 1997.

· As the modification is being considered under s4.55(1A), the Council is the consent authority under Clause 123BA of the Environmental Planning and Assessment Regulation 2000, rather than the JRPP.

· Amend conditions A(1), A(3), A(7), B(18) and E(15).

Refer to (Attachments 2-5) at the end of this report for the applicant’s s4.55 assessment report, plans of the proposed development, JRPP assessment report and associated determination.

Application Chronology for the Site

· 17/8/2016 - DA2016 - 88.1 originally determined by the Northern Joint Regional Planning Panel.

· 27/4/2017 - Modification DA2016 - 88.2 approved by Council to clarify conditions pertaining to kerb design.

· 20/11/2017 - Modification DA2016 - 88.3 approved by Council to amend the road reserve width being dedicated to Council along Ocean Drive and the associated road setback/buffer.

· 24/1/2018 - Modification DA2016 - 88.4 withdrawn.

· 4/10/2018 - Modification DA2016 - 88.5 lodged with Council.

· 2/9/2019 - Modification DA2016 - 88.6 approved by Council to amend the Ocean Drive fence design.

· 24/10/2019 - DA2019 - 780.1 for a Manufactured Housing Estate (MHE) lodged over part of the site the subject of DA2016 - 88. DA2019 - 780.1 has been determined and is subject to the developer/owner having to decide whether they will proceed with the remaining stages of DA2016 - 88 or opt to surrender the consent. DA2019 - 780.1 has been included in the chronology for context only.

· 5/2/2020 - Modification DA2016 - 88.7 approved by Council to amend staging associated with part of the original site/staging not being considered under modification DA2016 - 88.5.

· 1/4/2020 - Modification to DA2016 - 88.9 lodged with Council to essentially amend the access/egress for Stage 6 (E4 zoned lots). See chronology specific to this modification later in the report.

· 20/4/2020 - Modification DA2016 - 88.8 approved by Council to amend a condition pertaining to staging requirements.

· 27/5/2020 - Modification DA2016 - 88.5 approved by Council to modify the number of lots from 151 to 166. In addition, move the central north south habitat corridor.

Application Chronology for DA2016 - 88.9

· 4/04/2020 - Modification DA2016 - 88.9 lodged with Council.

· 08/04/2020 to 23/04/2020 - Notification period. Two submissions received.

· 20/08/2020 - Additional information received including revised plans, and response to submissions.

· 27/08/2020 - Additional information received including revised plans with footpaths and clarifications.

3. STATUTORY ASSESSMENT

Section 4.15(1) Matters for Consideration

The application has been lodged as a Section 4.55(1A) on the basis that it is substantially the same development to that, which was originally lodged and consented, and is considered to have minimal environmental impact.

Section 4.55 of the Environmental Planning and Assessment Act 1979 enables the modification of consents and categorises modifications into Section 4.55(1) for modifications involving minor error, mis-description or miscalculation, Section 4.55(1A) for modifications involving minimal environmental impact and Section 4.55(2) for other modifications. Each type of modification must be considered as being substantially the same to that which was originally consented.

With modifications, the Courts consistently see S4.55 as “beneficial and facultative” and there are essentially two separate legal tests that apply to a S4.55 application, before the consent authority can ultimately determine the application on merit.

The first is that the modification cannot result in a radical transformation. The term “radical transformation” is very broad leaving significant scope to change a development.

In this case, whilst there are changes proposed, they are not considered radical in terms of the land use and layout. The modification proposes access/egress for the Stage 6 area directly onto Forest Parkway with a slightly different lot layout but no additional lots. These changes allow the E4 land to be serviced from Forest Parkway. The amended access/egress is now necessary as a result of the remaining stages of DA2016 - 88 having an approved manufactured housing estate. These changes are not considered radical in terms of the footprint of Stage 6. In particular, the key elements of the development remain.

The second test deals with council being satisfied that the modification is “substantially the same development” as authorised by the original development consent. Council must compare the modified development/potential modified consent against the original approval (Note: it is the consent that is being modified, not just the plans, so the consent authority must have regard to the conditional changes as well). Once Council is satisfied the modification is substantially the same, the remainder of the assessment is dealt with on merit.

It should be noted that some environmental impacts and merit issues can link back to the “substantially the same test” if significant. In particular, for a modification to have a significant environmental impact, one might question whether it is a result of a significant change to the original approval.

In this case, the modification is considered “substantially the same” and there are no significant environmental or merit issues - refer to comments on s4.55(1A)(b) later in this report.

Below is the original approved lot configuration of DA2016 - 88.1 - Stage 6.

Section 4.55(1A)(a) Satisfied that the proposed modification is of minimal environmental impact?

While the proposed subdivision layout of stage 6 is being amended and a new access/egress proposed, no additional environmental impact is considered to be likrely as a result of the changes. In particular, the proposal is considered to be having minimal environmental impact for the following reasons:

· The modified development occupies the same footprint as the subdivision originally granted consent.

· The development will still present as a low density residential subdivision from outside the site.

· The impacts of the modified development, including the extent of vegetation clearing, earthworks and revegetation remain similar to the original approved development.

· The modified development will not create any adverse demand on public infrastructure or services when compared with the original approved development.

· There will be no material change on amenity as a result of the changes.

· The revised north south habitat corridor retains the original intent of the subdivision, whilst creating added benefits of reduced road crossings for fauna.

· There is no numerical change to the original subdivision with regards to proposed residential lots and maintains compliance with minimum lot size provisions.

Section 4.55(1A)(b) Is the proposal substantially the same?

Section 4.55 has been described as “beneficial and facultative” in Houlton v Woollahra Municipal Council (1997) 95 LGERA 201 at [213] and North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 at [440]. Accordingly, the provisions of s4.55 should not be artificially constrained by allowing a narrow construction.

In Vasic Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J held that "substantially" meant "essentially all material or having the same essence."

In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at [56] Bignold J held that the task for determining whether a development as proposed to be modified is substantially the same as the consent granted was as follows:

"The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)."

In the context of the current application, the proposal can be considered to be substantially the same as the development to which consent was originally granted for the following reasons:

· The modified proposal remains as a subdivision for the purpose of residential uses and is consistent with the essence of the original development.

· The reasons listed above under s4.55(1A)(a) for demonstrating minimal environmental impact are conducive to the development being substantially the same.

Section 4.55(1A)(c) Does the application require notification/advertising in accordance with the regulations and/or any Development Control Plan?

Neighbour notification has been undertaken in accordance with the regulations and Council’s DCP (as in force at the time).

Section 4.55(1A)(d) Any submissions made concerning the modification

Two (2) written submissions were received following public exhibition of the application. Copies of the written submissions have been provided separately to members of the DAP.

Key issues raised in the submissions received and comment are provided in the table below:

Submission Issue/Summary	Planning Comment/Response
Traffic, pedestrian, cycleway and public transport impacts.	There is no increase in lot numbers within Stage 6 (ie E4 zoned land component) of DA2016.88. It is considered that there are no additional traffic generation concerns to the precinct from this modification. The new road connection to Forrest Parkway has been suitably designed with respect to site distances. The approved layout had individual lots fronting Forest Parkway and as such had more individual driveway crossovers. The connectivity of the precinct is still available by way of the approved pathway network, which includes along Forest Parkway to connect the future northern collector road and future investigation area to the north. This modification does not alter the ability for public transport to service the proposed lots in the E4 zoned land.
Precinct becoming estates and land uses targeted for over 50s.	This Modification relates to land, which is for residential lots, consistent with that already approved on the site. The lots will not be age restricted. The adjoining developments and MHE’s have been assessed based on individual merit and do not relate to this modification.
No notification of the proposal was made to Gwynvill who owns land adjoining the development that will be significantly affected by the modification application as submitted due to the proposed deletion of a Collector/Significant Road contained in the Area 14 and connectivity provided for in the strategic planning for the area.	All adjoining land owners were notified. At the time of notification, Stage 1 of DA2016/88 had been completed which separates the subject land from Gwynvill’s land. It is also noted that on Council’s records, Gwynvill Trading Pty Ltd was notified with correspondence dated 3 April 2020. This modification has not deleted the southern collector road. The proposed collector road concerns have been resolved under DA2019 - 780.1 Manufactured Housing Estate and Ancillary Buildings, already approved to occur on the subject land to the north and north east.
The proposed modification as submitted has not adequately addressed Sections 4.15 & 4.55 of the Environmental Planning & Assessment Act 1979 and therefore cannot be approved.	The information lodged has addressed the clauses of the Act. Refer to sections earlier in this report.
The deletion of the Collector/Significant Road and the associated inconsistency with the DCP and the original approved development has been neither acknowledged nor addressed in the subject application to modify DA 2016/88.	This modification has not deleted the southern collector road. The Southern Collector road has been reviewed separately under DA2019 - 780.1. DA2019 - 780.1 has been subsequently approved and proposes to delete the southern collector road. The proposed modification has responded to adjoining approvals in the area.
Inconsistency with Strategic Planning & Development Controls for the Area 14 Lake Cathie/Bonny Hills Urban Release Area.	With regards to the LEP, there are no changes from the original assessment. The Stage 6 lots are zoned E4 environmental living and the proposed lots vary from 2019.2m² to 26508m² and comply with the 2000m² minimum lot size. With Regards to the DCP, this modification proposes to delete the reliance of the southern collector road as the primary entrance and associated 4 driveway crossovers to Forest Parkway. In lieu, the proposal now has one driveway crossover to Forest Parkway and one intersection off Forest Parkway to service the remaining proposed Stage 6 lots. The deletion of the southern collector road as referred to in the DCP, has been dealt with separately in DA2019 - 780. This modification responds to the adjoining approval and provides access from the most appropriate location consistent with the Objectives of the DCP for Area 14 Lake Cathie/Bonny Hills Urban Release Area.
Inconsistent with the Area 14 Voluntary Planning Agreements	As part of the Lake Cathie Bonny Hills URA Stage 1A rezoning, all landowners entered into a Voluntary Planning Agreement for payment of development contributions, infrastructure works and dedication of land. Based on the advice received, there are no implications to the Sydmart VPA that applies to the subject land.
Inconsistency with Existing Development Approvals within the Lake Cathie Bonny Hills URA.	The proposed subdivision modification does not compromise existing development connections to Collector/significant roads, being either Forest Parkway, Solomon Drive or Houston Mitchell Drive.

Section 4.55(3) Any matters referred to in section 4.15(1) relevant to the modification, and the reasons given by the consent authority for the grant of the consent sought to be modified.

Overall, the modification remains consistent with the original s4.15(1) assessment and a revised summary follows the Section 4.55(4) comment below. It should be noted that the revised s4.15(1) comments focus on compliance with relevant legislation and whether there has been any change or impact to comments provided on the original assessment.

A copy of the original s4.15(1) JRPP assessment is also attached to this report for context (Attachment 4).

Section 4.55(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

Noted.

Section 4.15(1) Matters for Consideration

(a) The provisions (where applicable) of:

(i) Any Environmental Planning Instrument

State Environmental Planning Policy (Koala Habitat Protection) 2019

As the development was lodged on 1 April 2020 and the SEPP commenced on the 1 March 2020, the legislation is to be considered.

In this case, Clause 8 of the Policy applies as there is an existing Koala Plan of Management (KPOM) in place (ie Area 14 KPOM). The Policy requires the application to be consistent with the approved KPOM.

Having regard to the original approval and provisions of the KPOM, the modification is considered to remain consistent. This was reiterated by comments from an ecologist and peer review by Council’s Natural Resources Team. In summary, the modification will still comply with the following:

· Use koala food trees throughout the site and be implemented via a Vegetation Management Plan (VMP).

· Separation of key koala areas from busier residential development/roads.

· Retention of koala food trees where possible.

· Buffering of koala habitat areas.

· Revegetation of buffers/habitat linkages that are devoid of vegetation.

· Conditions being imposed to manage fauna/koalas during clearing process.

· Covenants being placed on the title of properties regarding pool design being koala friendly.

· Standard street lighting being conditioned.

· Compensatory plantings in accordance with the KPOM.

· A VPA being in place for the management of environmental land and vegetation management.

· Core koala habitat areas being retained/untouched.

· Creation of habitat linkages consistent with the KPOM.

State Environmental Planning Policy (Infrastructure) 2007

Clause 45, no objection was raised from the relevant electricity supplier regarding the modification.

No other change from original assessment.

State Environmental Planning Policy (State and Regional Development) 2011

No change from original assessment.

As the modification is being considered under s4.55(1A), the Council is the consent authority under Clause 123BA of the Environmental Planning and Assessment Regulation 2000. Modification is not required to be determined by the JRPP.

Port Macquarie-Hastings Local Environmental Plan 2011

Unless specified below, no change from original assessment.

· Clause 4.1, the E4 lots comply with the 2000m² minimum lot size.

· Clause 7.13, satisfactory arrangements are in place for provision of essential services including water supply, electricity supply, sewer infrastructure, stormwater drainage and suitable road access to service the development. Provision of electricity and telecommunications will be subject to obtaining satisfactory arrangements certification prior to the issue of a Subdivision Certificate as recommended by the original condition of consent.

(ii) Any draft instruments that apply to the site or are on exhibition

None relevant.

(iii) Any Development Control Plan in force

Port Macquarie-Hastings Development Control Plan 2013

Unless specified below, no change from original assessment.

*DCP 2013: Chapter 3.6 - Subdivision*
DCP Objective	Development Provisions	Proposed	Complies
3.6.3.2	Torrens title lots minimum width of 15m when measured at a distance of 5.5m from front property boundary (excluding cul de sac and battleaxe lots).	All lots within the modification remain compliant with the minimum of 15m width requirement.	Yes
	Minimum depth of 25m.	All lots generally comply with the minimum 25m depth requirement.	Yes
3.6.3.3	Battleaxe lots discouraged in greenfield development.	There are two (2) battleaxe lots proposed. However, the frontage of these lots is just less than the 15m requirement above (ie 14m and 13.6m). As a result, they will still present as standard residential lots to the street and no adverse impact will occur.	No, but acceptable.
*DCP 2013: General Provisions*
DCP Objective	Development Provisions	Proposed	Complies
2.7.2.2	Design addresses generic principles of Crime Prevention Through Environmental Design guideline: · Casual surveillance and sightlines · Land use mix and activity generators · Definition of use and ownership · Lighting · Way finding · Predictable routes and entrapment locations	The modified layout does not create any crime safety issues. The design allows separation from potential habitat/concealment areas and allows surveillance of the street.	Yes
*DCP 2013 - Rainbow Beach*
DCP Objective	Development Provisions	Proposed	Complies
1.1	Development consistent with layout on Figures 62 to 64.	Modification remains consistent with the layout requirements. No impact foreseen with the changes with key perimeter roads to be retained.	Yes
5.1	Cycleways, shareways etc requirements	Provided in accordance with DCP.	Yes
5.2	Pedestrian link requirements.	Provided in accordance with DCP.	Yes
6-8	Noise, visual amenity, SEPP 26 buffer and urban design.	Remain unchanged and reinforced through existing conditions.	Yes
12.1	North south streets to be in accordance with Figure 71.	No impact foreseen with the changes. Key perimeter roads to be retained.	Yes
12.2	20m wide habitat link as per Figure 71.	An equivalent habitat link has been provided to the north and also approved by DA2019 - 780. The connection is consistent with VMP requirements.	Yes
13.1	Development considers existing rural residential areas, KPOM requirements and linkages.	Development complies with the Area 14 KPOM and will be installing/protecting key habitat links. The proposed building envelopes have been reduced in size from the original proposal to maintain an increased likelihood of vegetation retention within the E4 land.	Yes

(iiia) Any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4

The land owner has entered into The Sydmart Area 14 Stage 1A Planning Agreement with Port Macquarie-Hastings Council. In summary the agreement requires:

· Monetary development contributions for water supply, roads, sewerage, open space, and administration purposes

· Specific works by the landowner for the purposes of providing water supply and roads.

· Dedication of specified land to the Council by the landowner on which some works will be situated

The proposed development complies with relevant planning agreements subject to conditions.

(iv) Any matters prescribed by the Regulations

None relevant.

(b) The likely impacts of that development, including environmental impacts on both the natural and built environments, social and economic impacts in the locality:

Roads, traffic, transport, site frontage and access

The road layout and hierarchy remains consistent with the objectives of the Development Control Plan provisions, which connects in with the adjoining properties/roads. Footpaths and street plantings will also be provided throughout the subdivision to improve pedestrian connections and amenity.

Overall, the road layout, traffic impacts, frontages and access associated with the modification were all reviewed by Council’s Engineering Section and deemed to create no adverse impact, subject to conditions.

Conditions have been applied, which do not allow vehicle access from Lots 1 and 17 onto Forest Parkway. Additionally, similar conditions have been imposed restricting vehicle access for Lots 10 to 16 onto Houston Mitchell Drive and Lots 8 & 9 onto Ocean Drive.

Water supply connection

Council records indicate that the modification is still able to be connected to water with details to be shown on the engineering plans at the Subdivision Construction Certificate stage.

Sewer connection

Council records indicate that the modification is still able to be connected to sewer with details to be shown on the engineering plans at the Subdivision Construction Certificate stage.

Stormwater

Council’s Stormwater Engineer has assessed the modification/proposed stormwater design and deemed it acceptable, subject to conditions and detailed design being submitted at the Subdivision Construction Certificate stage. The system will utilise a combination of street drainage, detention and swales to direct the water to the public reserve in a controlled state.

Stage 6 is currently capable of connecting to infrastructure within proposed South Atlantic Drive road reserve. It is noted that any changes to the approved Elanora subdivision by a separate approval will have to resolve any infrastructure issues that arise.

Other utilities

Telecommunication and electricity services are available to the site and/or can be extended at the applicant’s expense.

Flora and fauna

The applicant had a suitably qualified ecologist review the modified design. The ecologist provided the following comment regarding the consistency with the existing VMP:

• n

Mod .05 Approved VMP Changes – The green area is the Habitat Corridor referred to in KPOM

• Road crossings to east, centre being Road 1 and to south.

• Connection to E4 land was onto another road into the larger lots.

• Corridor within private lots 612, 613, 301, 316 & 317.

• Fencing to private lots as barrier.

Proposed MHE - The green area is the Habitat Corridor referred to in KPOM

• Single road crossing only.

• Connection to E4 land is direct with fencing the only barrier between the MHE and E4 lots.

• Fencing is far safer than road crossings and only one fence crossing as opposed to numerous individual lots.

• Corridor remains in private ownership of the MHE, without additional fences as per .05 Mod

The modification has been reviewed and accepted by Council’s Natural Resources Section, subject to conditions on maintenance of the linkage and an amended VMP.

In addition to the above, it is considered that the provisions of the more recently adopted Biodiversity Conservation Act 2016 (commenced after DA2016 - 88.1 was approved) are not triggered in this case. In particular, no additional vegetation removal is proposed or new impact on existing/proposed habitat. Overall, the modification relates to the same footprint as the original approval and associated work/impact could occur regardless of the modification.

Noise and vibration

The original application was referred to Council’s Environmental Health Officer to consider impacts of road noise from Ocean Drive (classified road). In particular, potential existed for noise from road traffic to adversely affect future dwelling occupants.

To negate noise impacts a 1.8m high fence on top of a 400mm mound was approved along the Ocean Drive frontage, consistent with other estates being developed to the east. Vegetation screening was also included to soften the appearance of the fence from Ocean Drive.

Even with the above, some lots were still identified as being affected by road noise. To address this aspect, an 88B instrument was conditioned, requiring future dwellings on the affected lots to have Category 2 construction with additional internal BCA compliant ventilation.

Given the modification impacts on the number of lots and lot numbers, the condition has been amended to capture the relevant lots.

Bushfire

The site is identified as being bushfire prone.

In accordance with Section 100B - Rural Fires Act 1997 - the original application proposed subdivision of bush fire prone land that could lawfully be used for residential purposes.

The applicant has submitted an amended bushfire report prepared by a Certified Consultant. The report assumes that the amended subdivision can occur under Section 100B requirements.

The Commissioner has assessed the modification and has issued a revised Bushfire Safety Authority, which will form part of the modified conditions of consent.

Furthermore, the applicant has demonstrated that the development can comply with the requirements of the Bushfire Safety Authority as well as implementing the requirements of the VMP, without creating any long term maintenance of vegetation burden on Council.

Social impacts in the locality

Given the strategic planning and development controls that have been put in place governing the development of the Area 14 precinct and the compliance of the subdivision with such controls; the modification is unlikely to result in any adverse social impacts.

Economic impact in the locality

No adverse impacts. A likely positive impact is that the development will maintain employment in the construction industry, which will lead to flow impacts such as maintained employment and expenditure in the area.

(c) The suitability of the site for the development

The modification of Stage 6 will fit into the locality and the site attributes are conducive to the proposed development.

Site constraints have been adequately addressed and appropriate conditions of consent recommended.

4. DEVELOPMENT CONTRIBUTIONS APPLICABLE

· Development contributions will be required towards augmentation of town water supply and sewerage system head works under Section 64 of the Local Government Act 1993.

· A copy of the contributions estimate is included as (Attachment 6).

5. CONCLUSION AND STATEMENT OF REASON

The application has been assessed in accordance with Section 4.55 of the Environmental Planning and Assessment Act 1979.

Attachments

1 ⇩. DA2016 - 88.9 Recommended Modification of Consent Conditions

2 ⇩. DA2016 - 88.9 SOEE

3 ⇩. DA2016 - 88.9 Plans

4 ⇩. DA2016 - 88.1 JRPP Assessment Report

5 ⇩. DA2016 - 88.1 JRPP Determination

6 ⇩. DA2016 - 88.9 Contributions Estimate

date of meeting:		Wednesday 14 October 2020
location:		Via Skype
time:		2:00pm

Member	24/06/20	08/07/20	22/07/20	12/08/20	26/08/20	09/09/20	30/09/20
Paul Drake	P	P	P	P	P	P	P
Robert Hussey			P		P	P
David Crofts (alternate member)	P	P		P			P
Dan Croft (Group Manager Development Assessment) (alternates) - Development Assessment Planner	P	P	P	P	P	P	P

22/01/2020	Function Room	2:00pm
12/02/2020	Function Room	2:00pm
26/02/2020	Function Room	2:00pm
11/03/2020	Function Room	2:00pm
25/03/2020	Function Room	2:00pm
8/04/2020	Function Room	2:00pm
6/05/2020	Function Room	2:00pm
27/05/2020	Function Room	2:00pm
10/06/2020	Function Room	2:00pm
24/06/2020	Function Room	2:00pm
8/07/2020	Function Room	2:00pm
22/07/2020	Function Room	2:00pm
12/08/2020	Function Room	2:00pm
26/08/2020	Function Room	2:00pm
9/09/2020	Function Room	2:00pm
30/09/2020	Function Room	2:00pm
14/10/2020	Function Room	2:00pm
28/10/2020	Function Room	2:00pm
11/11/2020	Function Room	2:00pm
25/11/2020	Function Room	2:00pm
16/12/2020	Function Room	2:00pm

1.0 OBJECTIVES

2.0 KEY FUNCTIONS

Delegated Authority of Panel

3.0 MEMBERSHIP

3.2 Non-Voting Members

3.3 Obligations of members

3.4 Member Tenure

3.5 Appointment of members

4.0 TIMETABLE OF MEETINGS

5.0 MEETING PRACTICES

5.2 Decision Making

5.3 Quorum

5.4 Chairperson and Deputy Chairperson

5.5 Secretariat

5.6 Recording of decisions

6.0 CONVENING OF “OUTCOME SPECIFIC” WORKING GROUPS

7.0 CONFIDENTIALITY AND CONFLICT OF INTEREST

8.0 LOBBYING

4.1 A pecuniary interest is an interest that you have in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to you or a person referred to in clause 4.3.

4.2 You will not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision you might make in relation to the matter, or if the interest is of a kind specified in clause 4.6.

4.3 For the purposes of this Part, you will have a pecuniary interest in a matter if the pecuniary interest is:

4.4 For the purposes of clause 4.3:

4.5 You will not have a pecuniary interest in relation to a person referred to in subclauses 4.3(b) or (c)

5.2 A non-pecuniary conflict of interest exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your official functions in relation to a matter.

5.3 The personal or political views of a council official do not constitute a private interest for the purposes of clause 5.2.

5.5 When considering whether or not you have a non-pecuniary conflict of interest in a matter you are dealing with, it is always important to think about how others would view your situation.

Managing non-pecuniary conflicts of interest

5.7 If a disclosure is made at a council or committee meeting, both the disclosure and the nature of the interest must be recorded in the minutes on each occasion on which the non-pecuniary conflict of interest arises. This disclosure constitutes disclosure in writing for the purposes of clause 5.6.

5.8 How you manage a non-pecuniary conflict of interest will depend on whether or not it is significant.

5.9 As a general rule, a non-pecuniary conflict of interest will be significant where it does not involve a pecuniary interest for the purposes of clause 4.1, but it involves:

5.10 Significant non-pecuniary conflicts of interest must be managed in one of two ways:

5.13 Despite clause 5.10(b), a councillor who has a significant non-pecuniary conflict of interest in a matter, may participate in a decision to delegate consideration of the matter in question to another body or person.