DEVELOPMENT ASSESSMENT PANEL SUB COMMITTEE CHARTER

Adopted: Ordinary Council 2022 09 15

1.0 OBJECTIVES

To assist in managing Council's development assessment function by providing independent, transparent and expert determinations of development applications that fall outside of staff delegations.

2.0 KEY FUNCTIONS

· To review development application reports and conditions. The focus of the Panel’s review is to be on those issues raised in submissions received following exhibition of development applications;

· To determine development applications where there are 3 or more unique submissions or where an application is outside of staff delegations;

· To refer development applications to Council for determination where necessary;

· To provide a forum for objectors and applicants to make submissions on applications before the Development Assessment Panel(DAP);

· To maintain transparency in the determination of development applications.

Delegated Authority of Panel

Pursuant to Section 377 of the Local Government Act, 1993 delegation to:

· Determine (approve or refuse) development applications under Part 4 of the Environmental Planning and Assessment Act 1979 having regard to the relevant environmental planning instruments, development control plans and Council policies.

· Vary, modify or release restrictions as to use and/or covenants created by Section 88B instruments under the Conveyancing Act 1919 in relation to development applications being considered by the panel.

· Determine Koala Plans of Management under State Environmental Planning Policy (Biodiversity and Conservation) 2021 associated with development applications being considered by the Panel.

Noting the trigger to escalate decision making to Council as highlighted in section 5.2.

3.0 MEMBERSHIP

3.1 Voting Members

· 3 independent external members will be selected for each scheduled DAP meeting from an appointed pool of members. One of the independent external members to be the Chairperson. Independent members will be rostered onto meeting on a rotational basis where possible.

· Group Manager Development Services (alternate - Director Community, Planning and Environment or Development Assessment Planning Coordinator).

The independent external members shall have expertise in one or more of the following areas: planning, architecture, heritage, the environment, urban design, economics, traffic and transport, law, engineering, government and public administration.

3.2 Non-Voting Members

Not applicable.

3.3 Obligations of members

· Members must act faithfully and diligently and in accordance with this Charter.

· Members must comply with Council's Code of Conduct.

· Except as required to properly perform their duties, DAP members must not disclose

any confidential information (as advised by Council) obtained in connection with the DAP functions.

· Members will have read and be familiar with the documents and information provided by Council prior to attending a DAP meeting.

· Members must act in accordance with Council's Workplace Health and Safety Policies and Procedures

· External members of the Panel are not authorised to speak to the media on behalf of Council. Council officers that are members of the Committee are bound by the existing operational delegations in relation to speaking to media.

3.4 Member Tenure

The independent external members will be appointed for the term of 4 years or until such time as an expression of interest process to source panel members is completed for the proceeding 4 year term.

3.5 Appointment of members

· A pool of independent external members (including the Chair) shall be appointed by the Chief Executive Officer following an external Expression of Interest process. Previous Panel members are eligible to be reappointed on the Panel following this expression of interest process.

· Independent members will be rostered on to Panel meetings on a rotational basis where possible to suit Panel member availability and Panel operational needs.

· Staff members on the Panel shall be appointed by the Chief Executive Officer.

4.0 TIMETABLE OF MEETINGS

· The Development Assessment Panel will generally meet on the 1st and 3rd Wednesday each month at 2.00pm at the Port Macquarie offices of Council. Meetings may be conducted on-line or a combination of in person and on-line.

· Special Meetings of the Panel may be convened by the Director Community, Planning and Environment Services with 3 days notice.

5.0 MEETING PRACTICES

5.1 Meeting Format

· At all Meetings of the Panel the Chairperson shall occupy the Chair and preside. The Chair will be responsible for keeping order at meetings.

· Meetings shall be open to the public.

· The Panel will hear from an applicant and objectors or their representatives. Speakers are required to register to speak by close of business on the day prior to the Panel meeting.

· The Panel shall have the discretion to ask the applicant and objectors questions relating to the proposal and their submission. There is no ‘right of reply’ for an objector or applicant.

· Where there are a large number of persons making submissions with common interests, the Panel shall have the discretion to hear a representative of those persons rather than multiple persons with the same interest.

· Council assessment staff will be available at Panel meetings to provide technical assessment advice and assistance to the Panel.

· Where considered necessary, the Panel will conduct site inspections prior to the meeting.

5.2 Decision Making

· Decisions are to be made by consensus. Where consensus is not possible on any item, that item is to be referred to Council for a decision.

· All development applications involving a proposed variation to a development standard greater than 10% under Clause 4.6 of the Local Environmental Plan will be considered by the Panel and recommendation made to the Council for a decision.

5.3 Quorum

3 members must be present at a meeting to form a quorum.

5.4 Chairperson and Deputy Chairperson Chairperson Independent Chair (alternate - independent member).

5.5 Secretariat

· The Director Community, Planning and Environment is to be responsible for ensuring that the Panel has adequate secretariat support. The secretariat will ensure that the business paper and supporting papers are circulated at least 3 days prior to each meeting. Minutes shall be appropriately approved and circulated to each member within 3 weeks of a meeting being held.

· The format of and the preparation and publishing of the Business Paper and Minutes shall be similar to the format for Ordinary Council Meetings.

5.6 Recording of decisions

Minutes will be limited to the recording of decisions of the DAP and how each member votes for each item before the Panel. Meetings may be recorded via an on-line platform where practical.

6.0 CONVENING OF “OUTCOME SPECIFIC” WORKING GROUPS

Not applicable.

7.0 CONFIDENTIALITY AND CONFLICT OF INTEREST

· Members of the Panel must comply with Council’s Code of Conduct. It is the personal responsibility of members to comply with the standards in the Code of Conduct and regularly review their personal circumstances with this in mind.

· Panel members must declare any conflict of interest at the start of each meeting or before discussion of a relevant item or topic. Details of any conflicts of interest are to be appropriately minuted. Where members are deemed to have a real or perceived conflict of interest, it may be appropriate they be excused from deliberations on the issue where the conflict of interest may exist. A Panel meeting may be postponed where there is no quorum.

8.0 LOBBYING

All members and applicants are to adhere to Council’s Lobbying policy. Outside of scheduled Development Assessment Panel meetings, applicants, their representatives, Councillors, Council staff and the general public are not to lobby Panel members via meetings, telephone conversations, correspondence and the like. Adequate opportunity will be provided at Panel inspections or meetings for applicants, their representatives and the general public to make verbal submissions in relation to Business Paper items.

9.0 CONDUCT AT MEETINGS

All parties in attendance at a DAP meeting shall conduct themselves respectfully i.e. not disrupt the conduct of the meeting, interject, act courteously and with compassion and empathy and sensitivity and will not insult, denigrate or make defamatory or personal reflections on or impute improper motives to the DAP, Council staff or other members of the public.

Development Assessment Panel

ATTENDANCE REGISTER

Member

1/06/22

6/7/22

20/7/22

17/8/22

08/9/22

21/9/22

19/10/22

02/11/22

16/11/22

07/12/22

18/01/23

15/02/23

David Crofts

(Independent Chair)

Chris Gee

(Independent Member)

Michael Mason

(Independent Member)

Dan Croft

(Group Manager

Development Services)

Tony McNamara

(Independent Member)

Other attendees

Mayor Peta Pinson

Grant Burge

(Development Engineering Coordinator)

Kerrod Franklin

(Acting Development Engineering Coordinator)

Patrick Galbraith-Robertson

(Development Planning Coordinator)

Steven Ford

(Development Assessment Planner)

Chris Gardiner

(Development Assessment Planner)

Vanessa Penfold (Development Assessment Planner)

Clinton Tink

(Development Assessment Planner)

Jon Power

(Act Development Engineer Coordinator)

Beau Spry

(Development Assessment Planner)

Ben Roberts

(Development Assessment Planner)

Councillor Josh Slade

Councillor Sharon Griffiths

Kate Kennedy

(Building Surveyor)

Warren Wisemantel

Deputy Mayor Adam Roberts

Bob Slater

(Development Assessment Planner)

Alton Dick

(Stormwater Engineer)

Key: P = Present, A = Absent With Apology X = Absent Without Apology

Development Assessment Panel

Meeting Dates for 2023

18/01/2023	Function Room	2.00pm
01/02/2023	Function Room	2.00pm
15/02/2023	Function Room	2.00pm
01/03/2023	Function Room	2.00pm
15/03/2023	Function Room	2.00pm
05/04/2023	Function Room	2.00pm
19/04/2023	Function Room	2.00pm
03/05/2023	Function Room	2.00pm
17/05/2023	Function Room	2.00pm
07/06/2023	Function Room	2.00pm
21/06/2023	Function Room	2.00pm
05/07/2023	Function Room	2.00pm
19/07/2023	Function Room	2.00pm
02/08/2023	Function Room	2.00pm
16/08/2023	Function Room	2.00pm
06/09/2023	Function Room	2.00pm
20/09/2023	Function Room	2.00pm
04/10/2023	Function Room	2.00pm
18/10/2023	Function Room	2.00pm
01/11/2023	Function Room	2.00pm
15/11/2023	Function Room	2.00pm
06/12/2023	Function Room	2.00pm

AGENDA

Development Assessment Panel

01 Mar 2023

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 Chief Executive Officer, such a disclosure is to be made to the staff member’s manager. In the case of the Chief Executive Officer, 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 Chief Executive Officer, 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 Chief Executive Officer, 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 Chief Executive Officer 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

01 Mar 2023

Item: 05

Subject: DA2012 - 381.5 - Modification to Design of Previous Approved Subdivision at Lot 12 DP 1226839 Summer Circuit and Whitewater Terrace, Lake Cathie

Report Author: Development Assessment Officer (Planning), Patrick Galbraith-Robertson

Applicant: Land Dynamics

Owner: Catarina Village Pty Ltd & Seawide Pty Ltd

Estimated Cost: N/A

Parcel no: 65985 & 70679

Alignment with Delivery Program

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

RECOMMENDATION

That DA2012 - 381.5 for a modification to design of previous approved subdivision at Lot 3, DP 1247192 (now known as Lot 300 DP1278057) & Lot 12 DP1226839, Summer Circuit and Whitewater Terrace, Lake Cathie, be determined by granting consent subject to changes to the following conditions:

1. Amend condition A(1)

2. Amend condition B(3)

3. Add new condition A(30)

4. Amend condition E(22)

Executive Summary

This report considers an application to modify a previous approved 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, four (4) submissions were received.

The modification application has been the subject of a lengthy assessment period to address key assessment issues. The proposal has been amended in this regard during assessment with the following key changes made:

1. Maintain the originally approved east-west ocean Blue Boulevard/main street;

2. Delete the previous Bombora Way connection between Ocean Blue Boulevard to Whitewater Terrace;

3. Delete the east-west mid-block laneways to the north and south of Ocean Blue Boulevard;

4. Provide new pedestrian north-south linkages between Ocean Blue Boulevard and Whitewater Terrace; and

5. Subdivide the land in a staged progression.

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

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

The reason for the application being referred to Council’s Development Assessment Panel (DAP) is because three (3) or more objections to the proposal have been received or the application. A copy of the DAP Charter outlining the delegations and functions of the DAP is available on Council’s website.

1. BACKGROUND

Existing Sites Features and Surrounding Development

The site (2 lots as highlighted below) is zoned part B4 Mixed Use and part R3 Medium Density 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 (as at time of report writing):

2. DESCRIPTION OF DEVELOPMENT

Key aspects of the modified proposal (as amended) include the following:

· Maintain the originally approved east-west Ocean Blue Boulevard/main street (originally was proposing to change when application lodged April 2021).

· Delete the previous Bombora Way connection between Ocean Blue Boulevard to Whitewater Terrace.

· Delete/remove the east-west mid-block laneways from the current approved subdivision to the north and south of Ocean Blue Boulevard.

· Provide new pedestrian north-south linkages between Ocean Blue Boulevard and Whitewater Terrace.

· Subdivide the land in a staged progression.

· The subdivision plan shows the proposed revised subdivision layout, includes deletion of Bombora Way and laneways from the plans, connection along Ocean Blue Boulevard between Seaside Drive and Surfers Drive, and identifies the vehicular access points to the future basement parking areas.

· Changes to consent conditions requested.

The current approved subdivision plan is as per below:

The original proposed plan submitted with the modification application is as below:

Refer to Attachment 2 for the amended plans submitted for the proposed modified development.

Application Chronology

· 13 April 2021 - Modification application lodged with Council.

· 16 April to 29 April 2021 - Neighbour notification of original modification proposal.

· 27 April 2021 - Advice received from Essential Energy.

· 3 May 2021 - Applicant requested assessment update.

· 4 May 2021 - Assessment update provided to applicant.

· 17 May 2021 - Advice received from the Department of Planning, Industry and Environment of an application received to modify the Cathie Concept Approval (MP 07_0010 MOD1).

· 28 May 2021 - Advice of initial Council staff assessment concerns provided to DPIE.

· 1 June 2021 - Advice of initial Council staff assessment concerns sent to applicant.

· 9 August 2021 - Follow up on applicant as to status of addressing assessment issues.

· 8 September 2021 - Applicant provided initial advice that application will be amended.

· 12 September 2021 - Prelodgement meeting organising and amended concept submitted.

· 14 September 2021 - Prelodgement meeting to discuss amendments with the applicant.

· 26 November 2021 - Applicant follow up on status of assessment.

· 29 November 2021 - Applicant advised that formal amendments to be submitted for consideration and outcome of DPIE advice to be obtained on Part 3A concept approval.

· 8 December 2021 - Applicant advice that specialist reports and amendments to be submitted in early 2022.

· 19 May 2022 - Applicant followed on status of amendments to modification application noting significant time passed.

· 20 May 2022 - Applicant advised intentions to lodge amendments still.

· 14 June 2022 - Applicant advised of intentions of amendments to the proposal to be submitted and note the DPIE timeframes lengthy to obtain advice on change in subdivision layout.

· 1 September 2022 - Applicant followed up on status of submitting additional information and amended plans.

· 1 September 2022 - Applicant submitted advice from DPIE and update on plan changes to be made.

· 27 September 2022 - Applicant submitted formal amendments to modification proposal including number of specialist reports.

· 1 November 2022 - Applicant followed up assessment status.

· 3 November 2022 - Assessment update provided to applicant.

· 3 November 2022 - Applicant provided update that DPIE still assessing the Part 3A modification application.

· 10 to 23 November 2022 - Re-notification to neighbouring properties of amended modification proposal and specialist reports.

· 22 November 2022 - Applicant followed up assessment status.

· 23 November 2022 - DPIE request for Council staff opinion on amended Part 3A modification with amendments.

· 24 November 2022 - Assessment update provided to applicant including update on DPIE communication and key submission issues raised. Applicant requested to provide details on submission issues raised.

· 1 December 2022 - Advice provided to DPIE that with current amendments Council staff now of opinion that modification to Part 3A concept approval no longer considered required.

· 5 December 2022 - Applicant advised by DPIE that the Part 3A modification can be withdrawn if required.

· 7 December 2022 - Applicant submitted additional information including comments on submission issues raised, revised traffic report and subdivision plan amendments.

· 13 December 2022 - Assessment update provided to applicant.

· 14 December 2022 - Applicant advised of further amendments intended to be made.

· 16 January 2023 - DPIE advised applicant that they can withdraw the Part 3A modification.

· 25 January 2023 - Assessment update provided to applicant.

· 30 January 2023 - Additional information requested to address engineering/main street design concept matters.

· 1 February 2023 - Applicant advised that Part 3A modification application recommended to be withdrawn is considered not fundamental to the final assessment and determination of the modification to the DA.

· 8 February 2023 - Additional information submitted to address engineering/main street design concept matters.

3. STATUTORY ASSESSMENT

The application has been lodged pursuant to Section 4.55(1A) on the basis that it is

substantially the same development to that which was originally lodged and

consented and will have minimal environmental impact (Attachment 3).

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.

In determining the modification 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 modification application relates:

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

environmental impact?

The proposal is sufficiently consistent with the original development consent and provides an efficient use of land for subdivision purposes. The modification does

not radically transform the approved development as modified and is of minor environmental impact.

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

The applicant has submitted details during assessment of the application that the modified proposal is substantially the same development for the following primary reasons:

· The overall development remains for subdivision purposes;

· The development is still for the same use with no material element of change with no additional land use or varying component added;

· The modification does not radically transform the approved development and the key issues relating to the lot layout, acoustic and aesthetic impacts, ecological impacts, and bushfire remain satisfactory and manageable;

· The changes to the road and removal of the laneway layouts in the Hilltop Village will not significantly increase or intensify the use of the development;

· The removal of the laneways is based upon the integrated basement design still provides landscaping and development opportunities as envisaged for the village precinct and maintains vehicular and pedestrian connectivity through the development.

Having regard to guidance principles set out in NSW Land and Environment Court caselaw Moto Projects (No 2) Pty Ltd v North Sydney Council 1999, the above general justification details submitted are considered acceptable to be satisfied that the proposal is substantially the same development. A comparison of the qualitative and quantitative elements of the original approved proposal to the modified proposal (as amended) reveals the proposal will present materially and essentially as a subdivision in the same general building footprint and associated works.

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 Development Control Plan 2013. The proposal has been exhibited on two (2) occasions due to the amendments made to the proposal during assessment.

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

Four (4) 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
Owners of No.31 Summer Circuit of understanding that there would be a laneway between Summer Circuit and Whitewater Terrace to service the houses that would be built on the southern side of Whitewater Terrace.	The current approved planned laneway access is proposed to be removed and propose an alternative integrated vehicle access arrangement for the developments to have frontage to the planned main street/Ocean Blue Boulevard. Any new development of R3 zoned land known as Lot 12 DP 1226839 (with a 11m building height limit) on the immediate southern side of Summer Circuit would need to have regard to driveway access and parking requirements contained in Council’s Development Control Plan 2013. Visitor parking and driveway widths and positioning would require detailed assessment consideration with development of this site. As the access arrangements can be satisfied for the Main Street higher density developments it is considered that removal of the laneway which was conceptually shown as a desired access arrangement in the part 3A concept approval would be unable to be refused. Lot 12 has ample street frontage to Summer Circuit.
Traffic impacts to Summer Circuit solely with removal of laneway and houses to be built on Summer Circuit.
Removing the laneway between Summer Circuit and Ocean Blue Boulevard and adding traffic calming devices to Ocean Blue Boulevard would direct road traffic towards Coast Way and Summer Circuit.
Difficult for vehicles to pass each other on Summer Circuit particularly with vehicles parked on each side of the road.	The 7m width of Summer Circuit in particular has been considered in the assessment of the application. It is noted that all dwellings constructed and approved along Summer Circuit have double garage and driveway lengths which should accommodate for satisfactory visitor parking without interfering with the traffic being able to pass along the road.
Garbage collection vehicles unable to drive through Summer Circuit due to vehicles parked on both sides of road.
Emergency and service vehicles will not be able to access Summer Circuit with cars parking on both sides of road.
The 150mm (SA) kerbing on the southern side of Summer Circuit is not suitable for a normal vehicle to park up on the kerb which in turn leads to the vehicles parking on both sides of Summer Circuit.	It is noted that the northern side of Summer Circuit has roll over kerb Type SE. There is opportunity for the kerb type to be revisited on the southern side of Summer Circuit with future development to be considered and assessed on Lot 12 DP1226839 (R3 zoned land northern part of Hilltop Village).
The proposal will make Summer Circuit one of the main thoroughfares, which is not anticipated by existing residents.	The proposed modification does not involve works within Coast Way or Summer Circuit. The 7m width of Summer Circuit in particular has been considered in the assessment of the application.
Coast Way and Summer Circuit at 7m pavement width have not been designed as collector roads particularly for beach road traffic.
The current Development Control Plan and the Concept/Project Approval for this land has Ocean Blue Boulevard acting as a primary Collector Road between Seaside Drive and Surfers Drive.	The proposed modification (as amended) now maintains the current approved planned main street/Ocean Blue Boulevard having east-west connectivity between Seaside Drive and Surfers Drive. No additional traffic would be directed to Coast Way and Summer Circuit with the new road providing opportunity for visiting road traffic to travel along the new planned main street. The application (as amended) is generally consistent with the Concept Approval for this land, including Ocean Blue Boulevard acting as the intended primary Collector Road between Seaside Drive and Surfers Drive.
Safety and well-being concerns for residents, visitors, cyclists and pedestrians with additional traffic on Summer Circuit.	The existing Summer Circuit road pavement and design is not proposed to change and has been constructed to applicable AUSPEC standards. No additional traffic would be directed to Coast Way and Summer Circuit with the new road providing opportunity for visiting road traffic to travel along the new planned main street. A public footpath maybe warranted (generally greater > than 3 dwellings under 1 DA) for the full frontage of the R3 zoned land on the southern side of Summer Circuit with future development of this site.
There is no roundabout or similar intersection treatment at Coast Way and Seaside Drive.	No roundabout or other intersection treatment is considered warranted for the intersection of Coast Way and Seaside Drive.
If the proposed modification is to be approved it would be expected Council would require the proponent to re-kerb the entire southern side of Summer Circuit to roll-over kerb to facilitate footpath parking of vehicles.	The 7m width of Summer Circuit in particular has been considered in the assessment of the application. There is opportunity for the kerb type to be revisited on the southern side of Summer Circuit with future development to be considered and assessed on Lot 12 DP1226839 (R3 zoned land northern part of Hilltop Village).

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.

(a) The provisions (where applicable) of:

(i) Any Environmental Planning Instrument

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 part B4 Mixed Use and part R3 Medium Density Residential.

· The objectives of the B4 and R3 zones are as follows:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

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

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure that new developments make a positive contribution to the public domain and streetscape.

· In accordance with Clause 2.3(2), the proposal is consistent with the zone objectives having regard to the following:

o The proposal is a permissible landuse;

o The subdivision will enable future development of the site as anticipated by the zoning.

· Clause 4.1 - The modified lot sizes (only ones that are changing to that already approved in the R3 zone) within the proposed subdivision range from 1589m2 to 5822m2. All proposed lots comply with the minimum 1000m2 lot size identified in the Lot Size Map relating to the site.

· Clause 7.13 - Satisfactory arrangements are noted to have been in place for provision of essential services including water supply, electricity supply, sewer infrastructure, stormwater drainage and suitable road access to service the original approved development. Provision of appropriate satisfactory arrangements certification prior to the issue of a Subdivision Certificate will remain to apply with the modified subdivision proposed.

(iii) Any Development Control Plan in force

Port Macquarie-Hastings Development Control Plan 2013 (DCP)

This DCP has Locality based specific provisions relating to a planned development precinct known as Precinct B within the Rainbow Beach locality of Lake Cathie-Bonny Hills.

The DCP recommends that the any development proposed be sufficiently consistent with the Stage Significant Part 3A 07_0010 Residential, Commercial and Tourist Development (Concept Plan) being an approval for:

• Residential uses for about 217 low density dwellings and about 82 medium density dwellings;

• A ‘Hill-Top Village’ neighbourhood centre, including tourist and residential uses of about 160 apartments;

• Environmental works associated with the Littoral Rainforest and Duchess Creek;

• Provision of perimeter road, pedestrian, cycle paths and opens space and access to Rainbow Beach;

• Provision of associated infrastructure including stormwater, drainage and utilities.

The general road layout is recommended to be in accordance with this Part 3A concept approval.

During assessment of the application the applicant proposed to change the original alignment of the main street approved and sought to also modify the Part 3A application approval. Subsequent to this the applicant amended the proposal to reintroduce the key Main Street alignment however has retained a proposed removal of the indicative laneways shown in the Part 3A concept approval. These laneways have been considered in the assessment of the application to be desirable access points for future planning of the precinct and are considered to now not warrant modification to the Part 3A.

It is noted that the DCP prescribes the following for Precinct B:

− Road layout is consistent with Figure 220 (extract shown below) and provides:

o an east west main street road as part of the Hilltop Village,

o a public perimeter road, incorporating walking and cycle park for the full

frontage of the rainforest,

o a public car park and local park adjoining the beach access path,

o a shared pathway link to the existing formed pathway along Ocean Drive, and

o a road connection to Precinct C.

Assessment issues relating to the suitability of the laneways being removed and associated traffic and pedestrian matters are addressed elsewhere in this report.

(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 site design impacts

The following assessment comments are provided in regards to the modified proposal:

· The amended proposal is to provide access to the future built form on the northern and southern side of Ocean Blue Boulevard via integrated or connected basements.

· The applicant intends to propose a southern basement (stages 1 and 2) across proposed Lots 101 and 102 which will be accessed from two (2) vehicular access points off Whitewater Terrace.

· The applicant intends to propose a northern basement (Stage 3) across proposed Lot 301 will be accessed from two (2) vehicular access points off Ocean Blue Boulevard located at the eastern and western end of the proposed apartment buildings/basement.

· The integrated basement arrangement would allow for waste collection from the basement entry turnarounds. It is likely that an on-street loading bay would be the most practical means of servicing the ground floor commercial premises on Ocean Blue Boulevard, and on-street loading bays have been incorporated along Ocean Blue Boulevard.

· In relation to the laneways, there is considered to be scope to provide a similar function through an integrated basement design and service point(s) as proposed. It is acknowledged that this approach will likely assist with managing the ground level interface with adjoining land holdings.

· Any potential issues relating to potential crossover / pedestrian conflict and servicing arrangements along Ocean Blue Boulevard are capable of being managed as shown in the amended conceptual design plans.

· The function of the laneways to provide vehicular access between buildings will now be accommodated by the integrated basement on either side of Ocean Blue Boulevard. Two (2) vehicular access points to the basements to the north of Ocean Blue Boulevard and Whitewater Terrace will provide access to the developments located above the basements, whilst reducing conflict between users.

· The applicant intends to provide pedestrian connectivity and circulation space between the buildings at ground level, and a public access pedestrian pathway between Whitewater Terrace and Ocean Blue Boulevard which will link residents and visitors to the commercial uses, residential accommodation, and public open spaces within the Hilltop Village precinct.

· This basement approach proposed provides satisfactory intention to manage through traffic flow between buildings and proposed Lots 101 and 201, instead of requiring the previously identified laneway.

· Similarly, as previously identified only two (2) direct vehicular access points are proposed on the northern side into proposed Lot 301 off Ocean Blue Boulevard. Vehicular access is located at each end of a single, below ground basement, which provides satisfactory intention to manage through traffic flow between buildings instead of requiring the previously identified laneway.

· Any development within Lot 12 DP 1226839 will have access from Summer Circuit consistent with the adjoining and surrounding development pattern within Seawide Estate and is unable to be refused on this matter alone.

· The removal of Bombora Way and the laneway connections on the north and south onto Ocean Blue Boulevard and adoption of the integrated basement design will result in reduced potential conflict points along Ocean Blue Boulevard. The outcome provides a higher level of urban design, increased amenity in the locality, and less points of potential conflict between residents, visitors, and commercial supply trucks, as there are limited vehicular accesses crossing pedestrian pathways.

· Additional on-street visitor parking, disabled access carpark spaces, bus bay, and loading bays are also incorporated into the design of Ocean Blue Boulevard. Details of the construction of these elements will be subject to a subdivision works certificate.

Access, roads and traffic

The following assessment comments are provided in regards to the modified proposal:

· The applicant has submitted a traffic report prepared by Streetwise Road Safety and Traffic Services and dated 7 December 2022. This report included details of intended development capacities for the planned village and changes to roads and removal of the laneways as detailed earlier in this report.

· An example of a similar operating development was used a base case for the traffic modifications being assessed, being The Piazza, Wentworth Point (Old Sydney Olympic Village).

· The Austroads Guide to Traffic Management, Part 7 – Activity Centre Transport Management refers to this type of arrangement as being a “Neighbourhood Activity Centre” where they have limited mix of uses servicing the local needs dominated mainly by small business and retail shops. They can offer some local convenience services and some public transport.

· The Austroads guide goes on the state this type of activity centre can contain circulatory street systems minimising through traffic, where through traffic can be managed so it can be directed to other routes outside the centre (ie. Bennelong Way and Hill Drive). The potential conflicts for the various road users for this type of operation, are the activities of the centre and how these are managed.

· This report has assessed that the proposed road alignment modifications will provide an improved amenity with regard to:-

- Road Safety,

- Removal of unwanted traffic (Rat Runs),

- Improved access for pedestrians and cyclists, and

- Possible internalisation creating shared spaces.

· It is important to note that this development is still in the planning phase and will require further detailed assessment and design as part of any ongoing Development Application submissions for individual buildings.

· This modification is proposing to remove the original service lanes to be provided. Site servicing would have been via the service lane with minimal impacts on the public traffic using the proposed local road network.

· Garbage refuse removal for the residential and retail components fronting both Whitewater Terrace and Ocean Blue Boulevard will via driveway / servicing accesses to be provided as part of the development utilising sub-basement levels.

· Site deliveries for the retail components fronting Ocean Blue Boulevard will be via on street set down / pickup. Loading bays are to be provided on each side of the road formation to address the servicing requirements for the retail component.

· All site servicing for any intended future planned Tavern / Hotel and Serviced Apartments will be completed from off street locations to be determined in the final designs that are yet to be completed.

· Further detailed designs including vehicle swept turn path assessments and height clearance requirements (ie. for commercial vehicles) are be completed for the detailed designs of all driveway / site servicing access locations.

· As part of the original planning for the area required a bus route to loop through the Seawide and Rainbow Beach Estate are including the to be constructed Ocean Blue Boulevard. As part of this modification report an assessment of the future bus route was completed. The outcome of the assessment indicated the already constructed sections of the bus route do not meet the current design requirements. It is recommended that Council complete a number of investigations to minimise any road safety issues that may occur as a result of the non conforming bus route. A minimum it is recommended parking restriction signage be installed along the route to minimise any conflicts with parked vehicles.

· A high level assessment of the carparking required for the development has been completed where can be expected there will be between 515 and 558 off street carparking spaces provided as a minimum. The site has capacity to achieve minimum parking requirements.

· As part of ongoing detailed assessments, considerations for internalisation will be considered for the retail and commercial components of the village which may result in a reduction in the amount of carparking spaces for these land use components. Further detailed assessment considerations may be:-

• Internalisation

• Accessibility when considering security parking, and

• Specialise requirements of the land use in question.

· Further detailed assessment and detailed designs will be completed with each development application submission with regard to the geometric design of the carparking areas including driveways.

· The comments regarding the existing roads and bus route will be forwarded to Council’s Traffic department for further investigation.

· The Streetwise recommendation was as follows:

“In accordance with the traffic impacts assessments completed for this planning modification in this report it is recommended the following be adjusted / deleted and approved as proposed:

- Deletion of Bombora Way between Ocean Blue Boulevard and Whitewater Terrace.

- Deletion of the Service Lane between Whitewater Terrace and what was Bombora Way.

- Deletion of the Service Lane between the eastern end of Ocean Blue Boulevard and Seaside Drive including redirection of access by properties fronting Summer Circuit (Lot 12 DP 1226839, Seawide Estate). “

· The Streetwise report has been assessed and is considered that the modification to change the road network and delete the laneways and Bombora Way can be supported. The concerns raised during the assessment regarding the manoeuvring from the central parking spaces in Ocean Blue Boulevard have been resolved by a Swept path diagram submitted by the applicant during assessment.

The follow amendments will be required to the current consent conditions:

· Condition A(1) - Add Traffic Management date 7 December 2022

· Condition B(3) - Remove Road 8

· Condition E(22) - Add restriction to require access points as per the proposed modification subdivision plan.

Water and Sewer

The water and sewer considerations of the modification have been reviewed. From a Water and Sewer prospective the addition of the following condition to modification is recommended:

· Notwithstanding any other conditions of this consent, a Subdivision Certificate may be issued for the Master Lots within the Hilltop Village area being Proposed Lots 101, 401 and 402, provided that:

i) Adequate arrangements have been made to facilitate servicing of those lots, to the satisfaction of Council; and

ii) Compliance is demonstrated with Conditions E3 and E4 as they relate to the lots being created; and

iii) If unserviced Master Lots are proposed, a suitable restriction to the satisfaction of Council, must be provided to alert prospective purchasers that the subject lots are not serviced and that the servicing of the lots is to be provided at the expense of the owner of the land.

(c) The suitability of the site for the development

The amendment relates to road and laneway layouts, which has also amended the subdivision layout. The changes will permit traffic movements as envisaged within

the original approvals, but the design has considered the topography of the land, reduced conflict between users by limiting vehicular access points but maintains a main street with bus stops, loading bays and visitor and disabled carparking on the street.

Satisfactory amenity and public pedestrian connections are achieved between Seaside Drive and Surfers Drive, Ocean Blue Boulevard and Whitewater Terrace.

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

Site constraints have been adequately addressed and appropriate conditions maintained and modified as recommended.

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.

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.

Existing consent conditions are in place to address the above matters and are not recommended to be modified.

5. CONCLUSION AND STATEMENT OF REASON

The application has been assessed in accordance with Section 4.15 and 4.55 of the Environmental Planning and Assessment Act 1979.

Issues raised during assessment and public exhibition of the modification application have been considered in the assessment of the application.

The proposed modification development does not raise any significant general public interest issues beyond matters already addressed in this report. Overall, the proposed development is consistent with the provisions and objectives of the relevant planning controls and will have an acceptable impact on the surrounding natural and built environment. Approval of the application is considered to be in the public interest as it achieves the LEP objectives for development in the zone. No significant adverse environmental, social or economic impacts on the locality have been identified. Accordingly, the proposal is considered to be in the public interest.

Attachments

1 ⇩. DA2012 - 381.5 Recommended Modified Conditions

2 ⇩. DA2012 - 381.5 Plans

3 ⇩. DA2012 - 381.5 Additional Information