Agenda of Development Assessment Panel - Wednesday, 16 April 2025

AGENDA

Development Assessment Panel

16/04/2025

Item: 05

Subject: DA2024 - 792.1 Alterations and Additions to Dwelling at 27 Bourne Street Port Macquarie

Report Author: Development Assessment Planner, Beau Spry

Applicant: Matthew Lumsden-Smee & Sharon Lumsden-Smee, c/- Collins W Collin

Owner: Matthew Lumsden-Smee & Sharon Lumsden-Smee

Estimated Cost: $900,00

Parcel no: 2526

Alignment with Delivery Program

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

RECOMMENDATION

That DA 2024-792.1 for Alterations and Additions to Dwelling at Lot 16, DP 31187, No. 27 Bourne, Port Macquarie, be determined by granting consent subject to the recommended conditions.

Executive Summary

This report considers a development application for a single 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, three (3) submissions were received.

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 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).

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. A copy of the DAP Charter outlining the delegations and functions of the

DAP is available on Council’s website.

REPORT

1. BACKGROUND

Existing Sites Features and Surrounding Development

The site has an area of 656.86m².

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 to the existing dwelling including floorplan alteration, deck extension, addition of third storey, and reconfigured garage.

· Three (3) submissions were received.

Plans of the proposed development are at the end of this report (Attachment 2).

Application Chronology

· 3/12/2024 - Application lodged with Council.

· 9/01/2025 - Referral to Essential Energy.

· 13/01/2025 - Essential Energy comments received.

· 14-28/1/2025 - Notification period.

· 7/2/2025 - Council staff requested additional information.

· 7/2/2025 - Applicant responded to request for additional information

· 26/2/2025 - Council staff requested additional information on the

− updated detail provided by the applicant on 7/2/2025, including establishment of site poles.

· 25/3/2025 - Establishment of two survey accurate height poles and

− submission of additional plans.

· 27/3/2025 - View analysis inspections at #18 and #22 Bourne St.

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 (Biodiversity and Conservation) 2021

Chapter 4 Koala Habitat Protection 2021

Clause 4.4 - This SEPP applies to all non-rural zoned land within the Port Macquarie-

Hastings Local Government Area. The subject lot is zoned R1 General Residential

(non-rural zone), so the SEPP applies.

Clause 4.10 - Having considered the SEPP, the application and on completion of a

site inspection, Council is not prevented from granting consent in this case for the

following reasons:

1) The property is not subject to a KPOM;

2) The subject lot is less than 1ha in size;

3) No significant clearing required. There are also no koala feed trees to be

− removed;

4) The site not considered to be core koala habitat.

State Environmental Planning Policy (Resilience and Hazards) 2021

Chapter 2 Coastal Management

Clause 2.5 - This SEPP prevails over the Port Macquarie-Hastings LEP 2011 in the event of any inconsistency.

The site is located within a coastal use area.

Having regard to clauses 2.10 and 2.11 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.

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 R1 General Residential purposes.

Clause 2.12 - The proposal is not likely to cause increased risk of coastal hazards on the land or other land

Chapter 4 Remediation of Land

Clause 4.6 - 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. In particular, the site also has a long history of residential

accommodation.

There is potential for asbestos within the existing building. However, conditions will

be used to cover the safe removal/demolition of the building.

State Environmental Planning Policy (Building Sustainability Index: BASIX)

2004

Provision	Comment
Chapter 2 - Standards for residential development - BASIX
2.1 Standards for BASIX development and BASIX optional development (1) Schedule 1 sets out the standards that apply to BASIX development referred to in paragraphs (a) and (b) of the definition of *BASIX development* in the Environmental Planning and Assessment Regulation 2021. (2) Schedule 2 sets out the standards that apply to— (a) BASIX development referred to in paragraph (c) or (d) of the definition of *BASIX development* in the Environmental Planning and Assessment Regulation 2021, and (b) BASIX optional development if the development application or the application for a complying development certificate was accompanied by a BASIX certificate. (3) The standard specified in Schedule 2, section 4 extends to a swimming pool or spa that has a capacity of less than 40,000L if the swimming pool or spa is part of development referred to in paragraph (c) of the definition of *BASIX development* in the Environmental Planning and Assessment Regulation 2021. (4) A standard specified in Schedule 1 or 2 does not apply to development involving a heritage item or in a heritage conservation area to the extent that the Planning Secretary is satisfied that the development is not capable of achieving a standard because of other development controls that apply.	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.
(5) Development consent must not be granted to development to which the standards specified in Schedules 1 or 2 apply unless the consent authority is satisfied the embodied emissions attributable to the development have been quantified. (Baseline standards to be published by the Department on the NSW Planning Portal before 1 October 2023).

State Environmental Planning Policy (Transport and Infrastructure) 2021

Clause 2.48 - Development in proximity to electricity infrastructure - referral to Essential Energy has been completed having regard for any of the following:

Essential Energy have no specific concerns regarding the development but have provided some general advice. The advice received from Essential Energy has been forwarded the Applicant for consideration.

The development does not trigger any of the traffic generating development thresholds of Clause 2.121. Referral to the NSW Roads and Maritime Services (RMS) is not required.

Based on the above, the proposed development satisfies the relevant clauses in the SEPP.

State Environmental Planning Policy (Primary Production) 2021

Part 2.5 Division 4 - The proposed development will create no adverse impact on any

oyster aquaculture development or priority oyster aquaculture area.

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 alterations and additions to a dwelling is 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.

· Clause 2.3(2) - The proposal is consistent with the zone objectives as it contributes to the range of housing options in the locality.

· Clause 2.7 - The 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 (existing) is 8.47m 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 0.62:1, which complies with the maximum 1:1 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: 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.	Satisfactory arrangements can be put in place for storage and collection of waste. Standard condition recommended for construction waste management.	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).	Owing to the topography of the site, with approximate 8m fall from north-west/Bourne Street to south-east/rear, the proposal includes cut to a maximum of 2.6m and fill to a maximum of 1.0m and associated retaining walls .	No, variation sought below
5	a) A certified practicing structural engineer must certify any retaining wall greater than 1.0m.	Max 2.64m retaining wall proposed. Condition recommended.	Yes
5	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.	No front fencing and retaining wall combination is proposed.	Yes

*DCP 2013: Part B - General Provision - B3: Hazards Management*
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.	No APZ proposed on environmental land.	Yes
Flooding
19	a) Development must comply with Council’s Floodplain Management Plan and Flood Policies.	Site is not identified as flood prone.	N/A

*DCP 2013: Part B- General Provisions- B4: Transport, Traffic Management, Access and Car Parking*
DCP Objective	Development Provisions	Proposed	Complies
Parking Provision
24	a) Off-street Parking is provided in accordance with Table 3: - 1 parking space per each dwelling for dwelling-house.	Alterations and additions to existing single dwelling proposed. Required: 1x parking space for primary dwelling required. Proposed: Attached double garage proposed + opportunity for stacked parking within the driveway. Proposal exceeds the minimum requirements.	Yes
Parking Layout
28	c) Parking spaces shall generally be behind the building line but may be located between the building line and the street when: − it is stacked parking in the driveway; or − it can be demonstrated that improvements to the open space provided will result; and − the spaces are screened (densely landscaped or similar) from the street by a landscaping with a minimum width of 3.0m for the entire length of the parking area.	Attached double garage proposed. The proposed garage is a reorientation of the existing garage while maintaining the same/similar building line. Additionally, owing to the steep site topography many existing dwellings along the southern side of Bourne St present garages forward of the building line to enable street access. In this instance the DCP objectives are not compromised.	Yes
28	d) Parking design and layout is provided in accordance with AS/NZS 2890.1 - Parking facilities - Off-street car parking.	Capable of complying.	Yes
35	a) All parking and manoeuvring spaces must be designed to avoid concentrations of water runoff on the surface.	Capable of complying.	Yes
35	b) Council will not permit the discharge of stormwater directly into kerbing and guttering or table drains for any development other than that of a minor nature.	Capable of complying.	Yes

*DCP 2013: Part B - General Provisions - B5: Social Impact Assessment and Crime Prevention*
DCP Objective	Development Provisions	Proposed	Complies
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.	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. Adequate casual surveillance is available. Lighting and CCTV can be installed retrospectively by the owner, should they wish to have further security in the future.	Yes

*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.	Entry feature within articulation zone. Minimum setback to portico posts 3.3m from Bourne St.	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	The primary building line setback to Bourne Street is 5.3m and exceeds the minimum 4.5m setback.	Yes
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.	Attached double garage with min 5.3m front setback proposed, and 2.3m behind front entry feature. This represents a minor 200mm variation, which, in the context of the site topography, is considered acceptable. In this instance the DCP objectives are not compromised.	Acceptable
	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.	The garage openings do not exceed 6m or 50% of the width of the building.	Yes
	c) Driveway crossovers are no greater than 5.0m in width.	Existing crossover proposed to be widened to max 4.5m.	Yes
	d) Where a dual occupancy or attached dwelling is proposed on a corner lot a garage and driveway is provided on each road frontage.	Provision does not apply.	N/A
Side and Rear Setbacks
46	a) A minimum rear boundary setback of 4m is to be provided to dwellings (including verandahs, patios and decks).	Min 6.2m setback proposed from rear deck.	Yes
	b) A minimum rear boundary setback of 900mm applies to sheds and swimming pools subject to achieving minimum required private open space area.	No change to existing swimming pool.	Yes.
	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.	Provision not utilised.	N/A
47	a) Ground floors (being <1m above existing ground level) should be setback a minimum of 900mm from side boundaries.	Minimum side setback to ground floor is as existing 1.05m to northern boundary and 3.5m to southern 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.	First floor setback to northern boundary is a minimum 1.05m. The applicant has submitted shadow diagrams confirming adjoining property’s primary living rooms and principle private opens space areas will not be adversely overshadowed for 3 hours between 9am and 3pm midwinter.	Yes
	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.	Max unarticulated length 11.9m where setback less than 3.0m along north-eastern elevation.	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.	The proposal exceeds the minimum 35m2 private open space area provisions, including a 4m x 4m area at appropriate grade and accessible off a living area.	Yes
	b) Private open space may include clothes drying areas and garbage storage.	Capable of complying.	Yes
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.	No change to existing front wall. No new/additional front fencing proposed.	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.	N/A	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,	N/A	N/A
	c) have openings which make it not less than 25% transparent (no individual opening more than 30mm wide);	N/A	N/A
	d) provide a 3m x 3m splay for corner sites, and	N/A	N/A
	e) provide a 900mm x 900mm splay for vehicle driveway entrances.	N/A	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.	The main indoor living areas and kitchen are located on the ground floor of the dwelling. A parents retreat and master bedroom are located on the first floor, which corresponds to the garage and street access. The lower floor includes a multi-purpose/sitting room and deck and corresponds to the pool area. The nominated open space is located off the ground floor multi-purpose/sitting room, deck and pool area. The proposal includes a combination of hi-line windows and privacy screening to proposed living spaces, as well as appropriate setbacks and/or windows to non-habitable areas. No direct views between indoor living rooms and principal private open space of adjacent dwellings, including proposed dwellings approved on adjoining lots within the 9m and 12m radius. Overall, the development is acceptable and meets the objectives of the DCP.	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.	Refer to comments on 51(a) above.	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.	Refer to comments on 51(a) above.	Yes
	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.	Refer to comments on 51(a) above.	Yes
Ancillary Development
56	a) For ancillary development in R1 General Residential, R2 Low Density Residential, R3 Medium Density Residential, R4 High Density Residential, R5 Large Lot Residential and RU5 Village zones: − The height of an outbuilding or the alterations and additions to an existing outbuilding on a lot should not be more than 4.8m above ground level (existing). − The building should be single storey construction with a maximum roof pitch of 24 degrees. − The maximum area of the building should be 60m2 for lots less than 900m² and maximum of 100m² for larger lots. − Ancillary development that is a garage, or an outbuilding, or a rainwater tank should not be located in front of the main building line with the exception of swimming pools.	Ancillary development appropriately located.	Yes

The proposal seeks to vary Development Provision 4 relating to the extent of cut and fill. The provision provides that 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. The proposal includes cut to a maximum of 2.6m and fill to a maximum of 1.0m and associated retaining walls.

The relevant objectives are:

· 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

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

· The site is steep and falls approximately 8m from the Bourne Street frontage to the rear. Maximum retaining is proposed to 2.6m.

· The extent of cut and retaining proposed contributes to the integration of the proposed dwelling into the site having regard to the topography of the land.

· The proposed retaining walls are to be designed and certified by a practising engineer to ensure no damage or instability.

· The management of drainage is achievable without impacting on adjoining properties

· No adverse privacy impacts to adjoining dwellings and private open space areas would result from the proposed cut.

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 dwelling 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 site is located on the south-eastern (ocean-) side of Bourne Street, Port Macquarie and contains an existing ‘older stock’ two storey dwelling house that sits low in the landscape well below the 8.5m height limit.

Existing development in the locality typically comprise a mixture of two storey and

three storey dwellings. The street and broader locality is undergoing change with a mix of ‘older stock’ dwelling, renovations and substantial new builds. Some of the older stock sit well below the existing permissible height limits, while some newer builds take advantage of the height limits.

Immediately opposite at #24 Bourne Street is a 3-storey new build approved in 2014.

See site photo looking north-west from the site below for context:

Further along Bourne Street is #19 that sits high on the southern side of the street. See site photo looking south from the site below for context:

View Sharing

The notion of view sharing is invoked when a property enjoys existing views and a

proposed development would share that view by taking some of it away for its own

enjoyment. Taking it all away cannot be called view sharing, although it may, in some

circumstances, be quite reasonable.

The judgement in Tenacity Consulting v Warringah 2004 NSW LEC 140 is an

established ‘planning principle’ which provides an assessment methodology as to what constitutes view sharing and what constitutes reasonable view sharing. To that end, Commissioner Roseth SC developed a four-step assessment process to assess the impacts of views. The four steps are as follows:

Step 1

Assessment of views to be affected. Water views are valued more highly than land

views. Iconic views (e.g. of the Opera House, the Harbour Bridge or North Head) are

valued more highly than views without icons. Whole views are valued more highly than partial views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

Step 2

Consider from what part of the property the views are obtained. For example, the

protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

Step 3

Assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more

significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

Step 4

Assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

While planning principles may be applied to particular applications they are not

legally binding and they do not prevail over Council’s plans and policies. Planning

principles assist in providing a chain of reasoning and appropriate matters to be

considered when making a planning decision especially when there is no policy or a

void in a policy. Council has no specific policy surrounding assessment of view

impacts and has consistently applied this planning principle when assessing

applications that include view sharing impacts.

Analysis of view impacts from the available submission residences was

undertaken to establish whether the view sharing is acceptable. For the purposes of this assessment, the following was undertaken and where appropriate relied upon:

· 25 March 2025 - Establishment of two survey accurate height poles by proponent to reflect maximum allowable height of building from natural ground level and also maximum proposed building height.

· 27 March 2025 - Site inspections, observations and photographs from the following residences:

− 18 and 22 Bourne Street, (unfortunately, at that time 20 Bourne St was unavailable owing to medical emergency).

· Height poles were in place at the time of inspection;

· Aerial photo showing location of abovementioned residences (yellow) in relation to the site (red) indicated below;

· Direct observations from inspected properties indicated that the view impact perspectives supporting the application provide a relatively accurate representation of the proposed building envelope, however it has not been entirely relied upon for the purpose of this view impact assessment.

· The applicant submitted a view impact assessment. It has not been entirely relied upon for the purpose of this view impact assessment.

Each residence views and impacts are discussed below via the first 3 steps. Step 4 is addressed in conclusion:

18 Bourne Street:

The site contains a two-storey dwelling that fronts Bourne Street.

Step 1 - The dwelling is orientated to the south-east and the primary view is that

of expansive ocean and horizon interface enjoyed to the south-east over the rooftops of dwellings on the south-east/sea-side of Bourne Street, and Middle Brother Mountain to the south along the Bourne Street corridor.

Step 2 - The ocean views south-east to the horizon are enjoyed over the rooftops of similarly oriented dwellings on the south-east/sea-side of Bourne Street. This includes front/rear boundaries for sites immediately opposite and also side boundaries for site further down the street, as the subject site is. The views are enjoyed from both sitting and standing positions from the primary living and private open space (i.e. balcony) areas.

Step 3 - The ocean and horizon view to the south-east will be partially impacted from the proposed development. The view loss is considered negligible, particularly noting the proposal is below the standard 8.5m height limit applying to the site The Middle Brother Mountain view to the south along the Bourne Street corridor will not be impacted by the proposed development.

Figure 1: View from #18 Bourne St al-fresco area. Proposal indicated in red.

20 Bourne Street:

The site contains a two-storey dwelling that fronts Bourne Street.

This dwelling was unable to be inspected at the time of assessment owing to personal reasons for the submission. The dwelling sits between #18 and #22 Bourne Street and is of a similar bulk, scale, setback and layout to these properties. From the site inspections of the adjoining properties, it can be surmised that the impacts would be similar.

22 Bourne Street

The site contains a two-storey dwelling that fronts Bourne Street.

Step 1 - The dwelling is orientated to the south-east and the primary view is that

of expansive ocean, horizon and some beach interface enjoyed to the south-east over the rooftops of dwellings on the south-east/sea-side of Bourne Street, and Middle Brother Mountain to the south along the Bourne Street corridor. There are also glimpses of Tacking Point Light House in the distance to the north-east along the Bourne Street corridor.

Step 2 - The ocean, horizon and beach interface views are enjoyed over the rooftops of similarly oriented dwellings on the south-east/sea-side of Bourne Street. This includes side boundaries for site further down the street, and front/rear boundaries for sites immediately opposite as the subject site is. The views are enjoyed from both sitting and standing positions from the primary living and private open space (i.e. balcony) areas.

Step 3 - The ocean, horizon and beach interface views to the south-east will not be impacted from the proposed development. The proposal will sit lower in the locality than the beachfront interface and will partially obscure the vegetation between Matthew Flinders Drive and the beach. The view loss is considered negligible, particularly noting the proposal is below the standard 8.5m height limit applying to the site. The Middle Brother Mountain view to the south and the glimpses of Tacking Point Light House in the distance to the north-east along the Bourne Street corridor will not be impacted by the proposed development.

Figure 2: View from #22 Bourne St al-fresco area. Proposal indicated in red.

Step 4 of the view impact assessment principle

The key relevant planning controls for the site are the 8.5m maximum height limit and 1:1 floor space ratio for the site which are both complied with. It is noted that the development proposes maximum height of 8.47m and floor-space-ration of 0.62:1, both significantly under the allowable maximums and expected built form and character for the locality.

The dwelling is the component of the proposal that would be impact on views from 18, 20 and 22 Bourne Street. The dwelling complies with the building height and floor space LEP controls. There are no DCP variations proposed.

In determining whether a more skilful design could provide the same development potential and amenity and reduce the impact on the views of neighbours the following comments are provided:

− The dwelling is significantly cut into the site which aids in minimising view sharing impacts

− In reducing the impact upon views of the neighbours across the road on Bourne Street, the top floor of the proposed dwelling would need to be removed in its entirety. The preservation of all existing views would unreasonably limit the development potential of the site and be at odds with the adopted building height and floor ratio space controls adopted for the site. It is considered unreasonable to request further height or design changes.

The proposed development will result in negligible view sharing impacts to neighbouring dwellings as assessed by applying the Tenancity view sharing principle. However, overall and on balance the view sharing impact to neighbouring dwellings over the site is considered acceptable and reasonable owing to the established planning controls applicable to the site.

It is not reasonable for neighbouring property owners who wholly enjoy existing views over the subject site to expect that these existing views will be maintained into the future. The law is clear on this and the issue was dealt with by the High Court in Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) HCA 45, which has been reinforced in subsequent decisions of the Court and as a legal principle remains relatively unchanged today.

It could be argued that the existing views over the subject site from neighbouring properties are largely due to the under-developed nature of the site, and it is not considered reasonable or appropriate to require further design amendments based on the retention of these views.

Access, Traffic and Transport

The proposal will not have any significant adverse impacts in terms access, transport and traffic. No additional residential occupancy is proposed. The existing road network will satisfactorily cater for traffic generation resulting from the development. The existing driveway is to be upgraded as part of the proposed development. Specific details will be required with Section 138 application. Appropriate standard condition is recommended in this regard.

Water Supply Connection

Service available – details required with Section 68 application.

An appropriate standard condition is recommended in this regard.

Sewer Connection

The proposed works are to be clear of the existing sewer junction. The required distance off the junction is to be determined in relation to the depth.

Service available - details required with Section 68 application.

An appropriate standard condition is recommended in this regard.

Stormwater

Collection and disposal of stormwater is capable of being managed. Specific details will be required with Section 68 application. Appropriate standard condition is recommended in this regard.

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 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

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 significant

removal/clearing of any native vegetation, does not trigger any clearing thresholds

and is also not located within a mapped Biodiversity Values area. The site is also

heavily disturbed from past activities onsite and unlikely to contain or impact on any

threatened species. Development is considered to be compliant with the Biodiversity

Conservation Act 2016.

Waste

Satisfactory arrangements are in place for proposed storage and collection of waste

and recyclables. No adverse impacts anticipated. Standard precautionary site

management condition and private collection arrangement 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 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.

Bushfire

The site is identified as being bushfire prone.

The applicant has submitted a bushfire report. An assessment of bushfire risk having

regard to section 4.3.5 of Planning for Bushfire Protection 2019 including vegetation

classification and slope conclude that a Bushfire Attack Level of 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

to ensure BAL 12.5 construction is incorporated into the construction plans.

Safety, security and crime prevention

The proposed development will be unlikely to create any adverse

concealment/entrapment areas or crime spots that would result in any identifiable

loss of safety or reduction of security in the immediate area. The development will

also provide a level of natural surveillance within the locality.

Lighting and CCTV can be installed retrospectively by the owner, should they wish to

have further security in the future.

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. 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 have been adequately addressed and appropriate conditions of

consent recommended.

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

Three (3) 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 proposal will result in unacceptable view loss impacts.	View sharing impacts are discussed in detail under the view sharing heading of this report. The proposal is considered reasonable.
Concerns around changes to Councils planning policies over the years detrimentally impacting height, views and locally amenity.	Proposals are able to comply with planning controls applicable at the time of DA lodgement. These controls may change over time, and Councils planning policies are periodically reviewed and typically involve extensive public consultation. In an area undergoing change, as this locality is, there is often a mix of older housing stock approved under previous controls and newer/updated stock approved under present controls. View sharing implications still need to be considered separately, regardless of the planning controls. The current LEP was adopted in 2011 and the current DCP was adopted in 2013. The proposal complies with the present planning controls and the view sharing implications have been considered elsewhere in this report.
Proposal may not be compliant with the building height limits as it appears to be higher than any existing residence on that side of Bourne street.	The proposal complies with the allowable maximum height of 8.5m applying to the site. Additionally, a condition of consent has been included to require a survey of the roof framework to be provided to the certifier during construction to ensure compliance with the approved plans.
Concern around impact of future addition of solar panels to existing height and views.	Solar panels can be installed post-consent without Council approval under SEPP Transport and Infrastructure 2021.
Characterisation of alterations and additions	The NSW Land & Environment Court (LEC) judgment of Coorey v Municipality of Hunters Hill provides us with the appropriate considerations for determining whether a development application should be characterised as “additions and alterations” or an application for “a new building”. In considering the quantitative and qualitative considerations of the proposal, the use remains the same as a single dwelling, the streetscape amenity remains the same presenting as a single dwelling from the street and with a garage frontage similar to many others in the locality, the setbacks and envelopes are largely the same or more broadly reflect the locality.
Concerns around the clarity and detail of the plans.	The plans clearly illustrate the bulk, scale and height of the both the existing dwelling and the proposed dwelling. Additional information was also provided during the assessment to illustrate the levels to AHD, the height pole locations and also the extent of the potential building envelope on site.

(e) The Public Interest

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

4. DEVELOPMENT CONTRIBUTIONS APPLICABLE

Development contributions will not be required under s64, s7.11 or s7.12 as the proposed alteration and additions to an existing single dwelling does not create additional residential or commercial components to the existing residential use.

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 proposed 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 ⇩. Attachment 1 - Recommended Conditions

2 ⇩. Attachment 2 - Plans

AGENDA

Development Assessment Panel

16/04/2025

Item: 06

Subject: DA2024 - 252.1 Multi Dwelling Housing and Strata Subdivision including Clause 4.6 Variation to Clause 4.4 (Floor Space Ratio) of the Port Macquarie-Hastings Local Environmental Plan 2011 at Lot 1 DP 335428 No 11 Home Street, Port Macquarie

Report Author: Development Assessment Officer (Planner), Benjamin Roberts

Applicant: Chris Jenkins

Owner: TOJO Property Developments Pty Ltd

Estimated Cost: $2,500,000

Parcel no: 9583

Alignment with Delivery Program

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

RECOMMENDATION

That DA 2024 - 252.1 for Multi Dwelling Housing and Strata Subdivision including Clause 4.6 Variation to Clause 4.4 (Floor Space Ratio) of the Port Macquarie-Hastings Local Environmental Plan 2011 at Lot 1, DP 335428, No. 11 Home Street, Port Macquarie, be determined by refusing consent for the following reasons:

1. The proposal is not consistent with the floor space ratio objectives of clause 4.4 of the Port Macquarie-Hastings Local Environmental Plan 2011. Specifically, the proposed buildings are not compatible with the desired future character of the locality having regard to bulk and scale.

2. Having regard to clause 4.6(3) (a) and (b) of the Port Macquarie-Hastings Local Environmental Plan 2011 (LEP), compliance with the floor space ratio is not unreasonable or unnecessary in the circumstances and there are insufficient environmental planning grounds to justify contravention of the development standard.

3. In this instance, it is not in the public interest to support the clause 4.6 variation to the floor space ratio development standard.

Executive Summary

This report considers a development application for a multi dwelling housing and strata subdivision including clause 4.6 variation to clause 4.4 (floor space ratio) of the Port Macquarie-Hastings Local Environmental Plan 2011 at the subject site. The report provides an assessment of the application in accordance with the Environmental Planning and Assessment Act 1979.

Following exhibition of the application, 6 submissions were received.

The proposed variation to the floor space ratio development standard is consider to be not warranted or justified in this instance. Approval of the development application is considered to be contrary to the public's interest.

Accordingly, this report recommends that the development application be refused for the following reasons:

3. In this instance, it is not in the public interest to support the clause 4.6 variation to the floor space ratio development standards.

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. A copy of the DAP Charter outlining the delegations and functions of the DAP is available on Council’s website.

REPORT

1. BACKGROUND

Existing Sites Features and Surrounding Development

The site has an area of 626.8m² and is located on the corner of Home Street and Oxley Crescent, Port Macquarie. The site contains a single storey dwelling and detached garage with driveway and access off Home Street.

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:

· Demolition of the existing dwelling, detached garage and garden areas.

· Construction of 4 attached dwellings and strata subdivision.

Plans of the proposed development are at the end of this report (Attachment 2).

Application Chronology

· 22 April 2024 - Application lodged.

· 2 to 15 May 2024 - Public exhibition via neighbour notification.

· 23 May 2024 - Essential energy comments received.

· 24 May 2024 - Additional information request to show clearances from electricity infrastructure.

· 7 June 2024 - Additional information response with revised plans showing clearances to electricity infrastructure.

· 17 July 2024 - Additional information request seeking clarification on subdivision type proposed and preliminary servicing plans.

· 31 July 2024 - Draft strata plan and preliminary servicing plans provided.

· 17 October 2024 - Additional information request re gross floor area calculations and concern that there are no valid planning grounds for the FSR variation. Appears minor changes could be made to achieve FSR compliance.

· 8 November 2024 - Meeting with applicant to discuss floor space ratio. Noted that the building height and floor space ratio controls don’t appear to correlate. A planning proposal via an LEP amendment would be appropriate process in seeking a change to these controls. Re-iterated that compliance with the FSR is not achievable or unreasonable in this instance and consistent with pre-lodgement advice suggest amending application to achieve FSR compliance.

· 31 January 2025 - Amended plans submitted.

· 3 February 2025 - Additional information request for revised SOEE and Clause 4.6 variation report to support amended application.

· 24 March 2025 - Revised SOEE and Clause 4.6 variation report submitted.

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 (Biodiversity and Conservation) 2021

Chapter 4 Koala Habitat Protection 2021

Clause 4.4 - This SEPP applies to all non-rural zoned land within the Port Macquarie-Hastings Local Government Area.

Clause 4.10 - Having considered the SEPP, the application and on completion of a site inspection, Council is not prevented from granting consent in this case for the following reasons:

1. The property is not subject to a KPOM, and

2. The site not considered to be core koala habitat.

State Environmental Planning Policy (Housing) 2021

Chapter 4 Design of residential apartment development

Clause 144 - The proposal includes class 1a attached dwellings only and therefore this chapter does not apply to the application.

State Environmental Planning Policy (Resilience and Hazards) 2021

Chapter 2 Coastal Management

Clause 2.5 - This SEPP prevails over the Port Macquarie-Hastings LEP 2011 in the event of any inconsistency.

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

Having regard to clauses 2.10 and 2.11 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.

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.

Clause 2.12 - The proposal is not likely to cause increased risk of coastal hazards on the land or other land.

Chapter 4 Remediation of Land

Clause 4.6 - 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 (Sustainable Buildings) 2022

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 (Transport and Infrastructure) 2021

Clause 2.48 - Development in proximity to electricity infrastructure - referral to Essential Energy has been undertaken and the following comments provided for consideration:

“Strictly based on the documents submitted, Essential Energy has the following comments to make as to potential safety risks arising from the proposed development:

· Regarding any buildings etc, A safe distance of 3.8 metres is required to the centreline of the High voltage 11000 volt and low voltage 400/230 volt overhead powerline(s).

· Regarding the proposed plunge pool, A safe distance of 7.2 meters measured horizontally is required from, the pool containers closest edge to the centreline of the High voltage 11000 volt and low voltage 400/230 volt overhead powerline(s) please refer to page 12 of Essential energys DA guide. DA-guide.pdf (essentialenergy.com.au)

· If wanting to encroach (come closer than advised above), then the Next Step for the applicant is, To contact Essential Energy’s network encroachments group using this link, Encroachments (essentialenergy.com.au) and provide where applicable supporting documentation, including a report from a Level 3 Accredited Service Provider calculating the blowout distance of the powerline (if applicable).

Applicants are advised that fees and charges will apply where Essential Energy provides this service.

(Please reach out to Essential’s Network Encroachment team on 132391 for advice),

(Please note Essential Energy’s Network encroachments team would then provide advice from there forward, Technical Enquiry’s cannot provide any further site-specific advice/solutions in the Network encroachments sphere).

Essential Energy makes the following general comments:

1. If the proposed development changes, there may be potential safety risks and it is recommended that Essential Energy is consulted for further comment.

2. Any existing encumbrances in favour of Essential Energy (or its predecessors) noted on the title of the above property should be complied with.

3. As part of the subdivision, an easement/s are/is created for any existing electrical infrastructure (located within the property or adjoining the property as required). The easement/s is/are to be created using Essential Energy’s standard easement terms current at the time of registration of the plan of subdivision. Refer Essential Energy’s Contestable Works Team for requirements via email contestableworks@essentialenergy.com.au.

4. Council should ensure that a Notification of Arrangement (confirming satisfactory arrangements have been made for the provision of power) is issued by Essential Energy with respect to all proposed lots which will form part of the subdivision, prior to Council releasing the Subdivision Certificate. It is the Applicant’s responsibility to make the appropriate application with Essential Energy for the supply of electricity to the subdivision, which may include the payment of fees and contributions. Despite Essential Energy not having any safety concerns, there may be issues with respect to the subdivision layout, which will require Essential Energy’s approval.

5. In addition, Essential Energy’s records indicate there is electricity infrastructure located within close proximity to the property. Any activities within this location must be undertaken in accordance with the latest industry guideline currently known as ISSC 20 Guideline for the Management of Activities within Electricity Easements and Close to Infrastructure. Approval may be required from Essential Energy should activities within the property encroach on the electricity infrastructure.

6. Prior to carrying out any works, a “Dial Before You Dig” enquiry should be undertaken in accordance with the requirements of Part 5E (Protection of Underground Electricity Power Lines) of the Electricity Supply Act 1995 (NSW).

7. Given there is electricity infrastructure in the area, it is the responsibility of the person/s completing any works around powerlines to understand their safety responsibilities. SafeWork NSW (www.safework.nsw.gov.au) has publications that provide guidance when working close to electricity infrastructure. These include the Code of Practice – Work near Overhead Power Lines and Code of Practice – Work near Underground Assets.”

In response to these comments the plans were revised to show indicative clearances to electricity infrastructure. If the application was to be approved a consent condition would need to be applied requiring satisfactory arrangements with Essential Energy be obtained prior to issue of any construction certificate as to ensure the minimum clearances and any encroachments are acceptable. Essential Energy have also provided some general advice. The advice received from Essential Energy has been forwarded to the applicant for consideration.

State Environmental Planning Policy (Primary Production) 2021

Part 2.5 Division 4 - The proposed development will create no adverse impact on any oyster aquaculture development or priority oyster aquaculture area.

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 multi dwelling housing and strata subdivision is permissible with consent.

The objectives of the R1 zone are as follows:

• To provide for the housing needs of the community.

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

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

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

o Will provide for the housing needs of the community; and

o Will provide for a variety in housing type and density.

· Clause 2.7 - The demolition of the existing dwelling and ancillary structures requires consent as it does not fit within the provisions of SEPP (Exempt and Complying) 2008.

· Clause 4.1 - The minimum 450m² lot size for subdivision does not apply to the proposal as it proposes a strata subdivision.

· Clause 4.1A - The minimum lot sizes do not apply to the proposal as it is characterised as multi dwelling housing development

· Clause 4.3 - The maximum overall height of the building above ground level (existing) is below and complies with the height limit of 11.5m applying to the site.

· Clause 4.4 - The floor space ratio of the proposal has been assessed as 0.67:1. The maximum floor space ratio applying to the site is 0.65:1. This represents a variation of 3% and equates to 12.22m2 of floor area. A clause 4.6 variation supports the application. Refer to comments below.

· Clause 4.6 - This clause establishes a degree of flexibility for certain development standards in particular circumstances, which have demonstrated that a better planning outcome will occur from that flexibility. In this regard, the proposal seeks a variation to the floor space ratio standard as identified under Clause 4.4 of this report. Assistance on the approach to a variation is 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

The assessment will now step through and address the requirements of Clause 4.6(3).

Clause 4.6(3) states the following:

4.6(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that:

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

(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

Comments: The applicant has submitted a document consistent with clause 35B(2) of the Environmental Planning and Assessment Regulation 2021 to justify the contravention of the floor space ratio standard for the following reasons (as summarised):

1. The variation remains consistent with the objectives of the floor space ratio clause.

2. The variation is minor and will result in density and traffic generation envisaged for the future character of the locality.

3. The maximum building height of 11.5m is not commensurate with the maximum floor space ratio of 0.65:1 applicable to the site.

4. The proposal is consistent with the objectives of the EPA Act.

5. The proposal is consistent with the R1 zone objectives and the public benefit of the of the development standard is not lost or eroded by the proposed development.

In addressing Clause 3(a), Wehbe established ‘five methods’ to test whether compliance with the standard was unreasonable or unnecessary. They are as follows:

· Establishing that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary.

· Establishing that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable.

· Establishing that the development standard has been virtually abandoned or destroyed by the consent authority’s own actions in granting consents departing from the standard — and hence compliance with the standard is unnecessary and unreasonable.

· Establishing that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary — and that compliance with the standard, in that case, would also be unreasonable or unnecessary.

The objectives of clause 4.4 floor space ratio are:

(a) to regulate density of development and generation of vehicular and pedestrian traffic,

(b) to encourage increased building height and site amalgamation at key locations,

(d) to ensure that buildings are compatible with the bulk and scale of the existing and desired future character of the locality.

Having regard to the ‘five methods’ and objectives of the floor space ratio clause the following comment is provided:

1. The main underling objective of the standard is to regulate density and ensure the bulk and scale of buildings is compatible with existing and future character of the locality. In this regard adoption of the maximum 0.65:1 floor space ratio has established the expectation for future character, building bulk and scale on this site and the immediate locality. It is considered that the underlying objectives of the floor space ratio standard are not achieved.

2. There are no examples of departures from the floor space ratio standard in the immediate locality to suggest abandonment of the standard and that compliance is unreasonable or unnecessary.

3. There are no specific site constraints as to why compliance with the standard is unreasonable or necessary in this circumstance.

4. Some minor changes could be made to the development design to reduce the floor area of the development by 12.22m2 so as to achieve compliance with the floor space ratio standard.

In addressing Clause 3(b) and whether there are sufficient environmental planning grounds to justify contravening the development standard, the following comments are provided:

1. The proposed development does not meet the objectives of floor space ratio standard.

2. While only minor, the floor space ratio variation will result in a development which is out of character and incompatible with the bulk and scale of development envisioned for the immediate locality.

3. Allowing the floor space ratio variation would lead to similar applications with variations that will incrementally erode and undermine the planning objective of the locality.

4. There are no specific site constraints or environmental planning grounds to justify contravention of the floor space ratio standard in this instance.

5. Some minor changes could readily be made to the development design to reduce the floor area of the development by 12.22m2 to achieve compliance with the floor space ratio standard. In this instance it is not considered to be unreasonable or unnecessary to comply with the development standard.

6. The justification provided by the applicant is not supported by the assessing officer.

On the basis of the above, it is considered that compliance with the floor space ratio development standard is not unreasonable or unnecessary in the circumstances. There are insufficient planning grounds to justify the contravention of the floor space ratio development standard.

Having regard to the above, it is recommended that the floor space ratio variation using clause 4.6 not be supported and on this basis the application be refused.

· Clause 4.6(4) states that the consent authority must keep a record of its assessment carried out under subclause (3).

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

(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: 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.	Six units are proposed and consistent with the waste services policy adequate street frontage is available for the proposed kerbside collection arrangement.	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).	A maximum cut of approximately 1.3m is proposed in the north-eastern corner of the site.	No*
5	a) A certified practicing structural engineer must certify any retaining wall greater than 1.0m.	Conditions can be applied requiring engineering certification for retaining walls greater than 1m in height.	Yes
5	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.	No front fence and retaining wall combinations are proposed.	N/A
Tree Management - Land to which State Environmental Planning Policy SEPP (Vegetation in Non-Rural Areas) 2017 Applies
10	a) Prescribed vegetation for the purposes of Chapter 2, Vegetation in Non- Rural Areas of the SEPP (Biodiversity and Conservation) 2021 is any tree identified in Table 1 and any tree on land that is: - 3m or higher in height, or - has a trunk diameter of 100mm at 1m above ground level; or - a hollow bearing tree, or - a mangrove, or cycad, or - is a Norfolk Island Pine (Araucaria heterophylla), or - a threatened species or - a threatened ecological community as listed under the Biodiversity Conservation Act 2016 or Environment Protection and Biodiversity Conservation Act 1999.	The removal of existing planted ornamental trees is proposed. No native vegetation exists on the site.	Yes
10	b) The above criteria does not apply to a tree where the nearside trunk is 5m from the nearest external wall of an existing, permanent dwelling or manufactured home and is located within the same property. Such trees may be removed without a permit or development consent. This provision does not apply to areas mapped as Core Koala Habitat under the LEP, or areas identified as containing a threatened ecological community. A permit will be required in these instances.	N/A	N/A
Tree Management – Private Land
11	a) Pruning must be undertaken in accordance with Australian Standard AS 4373 - Pruning of Amenity Trees.	No pruning proposed or required.	N/A
	b) An application for the removal of a tree listed in Table 1 must be accompanied by an Arborist’s report stating that the tree: - is dangerous; or - is dying and remedial pruning would not improve the deteriorated condition of the tree; or - has a history of branch fall (documented or photographic evidence to be provided); or - is structurally unsound or; - diseased. - Advice on the requirement of an arborist report associated with a tree removal permit can be obtained from Council’s Tree Assessment staff. - The requirement for an arborist report for tree removal associated with a development application will be determined on merit by Council’s Development Assessment.	No trees listed in table 1 exist on the site.	N/A
	c) Where a tree listed in Table 1 is approved for removal it must be compensated with 2 x koala habitat trees. Significant large-scale development will require an advanced size koala food tree or habitat tree (primary Koala browse species) that meets AS2303:2015 Tree Stock for Landscape Use. The compensation tree is to be planted in a suitable location as determined by the Director of Development and Environment or their delegate.	Not proposed.	N/A
	d) Removal of dead branches including palm fronts and the selective removal of branches up to and including a diameter of 50mm may be undertaken without a permit or development consent where the removal: - Does not alter the canopy of the tree, and - Does not destroy the aesthetic appearance of the tree canopy; and - Does not alter the growth structure of the tree, and - − Is carried out in accordance with Australian Standard AS 4373 - Pruning of Amenity Trees.	Not proposed or required.	N/A
	e) The pruning of large garden shrubs in excess of 3 metres in height for the purpose of ornamental shaping is permitted without a permit or development consent.	N/A	N/A
	f) Where a development is proposed adjoining Council controlled land, the plans must identify all trees that fall within 6.0m of the property boundary and any trees proposed to be removed, identified on that plan.	No trees exist on adjoining road reserve.	N/A
	g) Any pruning or removal of any tree on private land must be undertaken in accordance with Council’s tree management specifications.	Removal of the planted ornamental trees can be removed in accordance with tree management specifications.	Yes
	h) A tree removal permit can be sought for tree removal associated with a Complying Development Certificate (CDC), subject to the tree removal meeting the following criteria: - Must be associated with CDC and removal must not occur until CDC issued. - Application must identify and locate all trees within proximity to the development. - No more than 3 trees over 6m in height to be removed. Trees taken to be impacted on by the development are to be determined in accordance with AS 4970 - Protection of trees on development sites (i.e 12 x DBH tree protection zone required for those trees to be retained). - Must not involve removal of hollow bearing trees. - The removal of any koala browse tree species are to be replaced at a ratio of 2:1 on site or at a secure off site location agreed to by Council. Any on site replanting is to have regard for services and buildings and is to be agreed to by Council.	N/A	N/A

*DCP 2013: Part B- General Provisions- B4: Transport, Traffic Management, Access and Car Parking*
DCP Objective	Development Provisions	Proposed	Complies
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.	No new roads proposed.		N/A
	b) Existing direct accesses from a development to arterial and distributor roads are rationalised or removed where practical.	Home Street and Oxley Crescent are not arterial or distributor roads.		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.	The proposal incorporates removal of the existing crossover near the intersection on Home Street and construction of 2 new combined crossovers on Oxley Crescent.		Yes
Parking Provision
24	a) Off-street Parking is provided in accordance with Table 3. 1 parking space per each 1 or 2 bedroom unit 1.5 spaces per each 3 or 4 bedroom unit + 1 visitor’s space per 4 units.	The proposal incorporates 2 x 2-bedroom units and 2 x 3-bedroom units. Total of 6 units. Parking required equates to 2 + 3 = 5 resident spaces + 1 visitor space. Parking proposed incorporates a single garage to each unit with a stacked space in front of each garage. Only stacked visitor spaces are to be include in the assessment of parking provision. Therefore, a total of 4 resident spaces and 3 visitor spaces are proposed. Technically the proposal is 1 resident space short having regard to the parking provisions in table 3.		No*
	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
25	a) A development proposal to alter, enlarge, convert or redevelop an existing building, whether or not demolition is involved, shall provide the total number of parking spaces calculated from the schedule for the proposed use, subject to a credit for any existing deficiency, including any contributions previously accepted in lieu of parking provision.	N/A		N/A
26	a) On street parking, for the purposes of car parking calculations will not be included unless it can be demonstrated that: − there is adequate on street space to accommodate peak and acute parking demands of the area; − parking can be provided without compromising road safety or garbage collection accessibility; − parking can be provided without jeopardising road function; and − that streetscape improvement works, such as landscaped bays and street trees are provided to contribute to the streetscape.	While the proposal is not reliant upon on street parking it is noted that removal of the existing crossover on Home Street will provide additional street parking opportunity.		N/A
	b) On street parking is provided in accordance with AS2890.5.	N/A		N/A
27	a) On street parking will not be permitted unless it can be demonstrated that: − parking does not detract from the streetscape; and − that streetscape improvement works, such as landscaped bays and street trees are provided.	N/A		N/A
Parking Layout
28	a) Visitor and customer parking shall be located so that it is easily accessible from the street.	Visitor parking in front of each garage is easily accessible from the street.		Yes
	b) Internal signage (including pavement markings) should assist customers and visitors to find parking and circulate efficiently and safely through a car park.	The parking spaces are clearly visible and internal signage not required in this instance.		Yes
	c) Parking spaces shall generally be behind the building line but may be located between the building line and the street when: − it is stacked parking in the driveway; or − it can be demonstrated that improvements to the open space provided will result; and − the spaces are screened (densely landscaped or similar) from the street by a landscaping with a minimum width of 3.0m for the entire length of the parking area.	The parking spaces in front of the building line are stacked spaces in the driveways.		Yes
	d) Parking design and layout is provided in accordance with AS/NZS 2890.1 - Parking facilities - Off-street car parking and AS 2890.6 - Off-street parking for individuals with a disability and AS/NZS 2890.2 - Parking facilities - Off-street commercial vehicle facilities.	Capable of compliance.		Yes
	e) Stack or tandem parking spaces will not be included in assessment of parking provision except where: − the spaces are surplus to that required; − in motor showrooms; − for home business; − for exhibition homes; − in car repair stations; − staff parking spaces are separately identified and delineated; − it is visitor parking associated with a dual occupancy multi dwelling and/or terrace housing, directly in front of the garage with a minimum depth of 5.5m.	Three (3) of the proposed stacked spaces in the driveway are visitor spaces. One (1) of the proposed stacked spaces in front of the driveway is a resident parking space which is inconsistent with this provision. All stacked spaces are a minimum of 5.5m in depth.		No*
29	a) Parking is provided in accordance with AS/NZS 2890.1 - Parking facilities - Off-street car parking, AS/NZS 2890.2 - Parking facilities - Off-street commercial vehicle facilities, AS 1428 - Design for access and mobility and AS 2890.6 - Off-street parking for individuals with a disability.	Capable of compliance.		Yes
30	a) Bicycle and motorcycle parking shall be considered for all developments.	Areas exist within ground floor to facilitate bicycle and motorcycle parking.		Yes
	b) Bicycle parking areas shall be designed generally in accordance with the principles of AS2890.3 - Parking facilities - Bicycle parking facilities.	Areas exist within ground floor to facilitate bicycle and motorcycle parking.		Yes
	c) Motorcycle parking areas shall be 1.2m (wide) x 2.5m (long).	Areas exist within ground floor to facilitate bicycle and motorcycle parking.		Yes
Landscaping of Parking Areas
33	a) Landscaping areas shall be provided in the form of large tree planting, understorey plantings, mulch areas, mounding, lawns and the like	Parking areas are confined to the garage and driveways. Adequate landscaping is proposed in and around these areas.		Yes
	b) Landscaping areas shall be used throughout the car park and on the perimeters of the property where it addresses the public domain.	Parking areas are confined to the garage and driveways. Adequate landscaping is proposed in and around these areas.		Yes
	c) Garden beds shall be a minimum of 3m in width between car parking areas and street boundaries.	N/A		N/A
34	a) All plantings on public lands are to be selected from Council’s Indigenous Street and Open Space Planting List from the relevant vegetation community adjacent to the Development.	Plantings proposed within the road reserve can be consistent with the plantings list. Details to be provided as part of the s138 road act application.		Yes
	b) Trees are to be grown and installed in accordance with AS 2303:2015 Tree Stock for Landscape Use and Council’s AUS-SPEC design specifications.	Per above.		Yes
	Surface Finishes
35	a) All parking and manoeuvring areas shall be constructed with a coarse base of sufficient depth to suit the amount of traffic generated by the development, as determined by Council. It shall be sealed with either bitumen, asphaltic concrete, concrete or interlocking pavers. Preliminary details of construction materials for access and car parking areas shall be submitted with the development application. Detailed plans shall be prepared for the construction certificate by a practising qualified Civil Engineer.	Parking and driveway areas are proposed to be concrete.		Yes
	b) In special cases (e.g. where traffic volumes are very low) Council may consider the use of consolidated unsealed gravel pavement for car parks. However, this should not be assumed and will need to be justified by the applicant at the Development Application stage.	N/A		N/A
	Drainage
36	a) All parking and manoeuvring spaces must be designed to avoid concentrations of water runoff on the surface.	Stormwater is capable of being managed. Details to be provided as part of s69 plumbing drainage application.		Yes
	b) Council will not permit the discharge of stormwater directly into kerbing and guttering or table drains for any development other than that of a minor nature.	Noted.		Yes

*DCP 2013: Part B - General Provisions - B5: Social Impact Assessment and Crime Prevention*
DCP Objective	Development Provisions	Proposed	Complies
Social Impact Assessment
42	a) A social impact assessment shall be submitted in accordance with the Council’s Social Impact Assessment Policy.	The proposal does not trigger the requirement for a social impact assessment.	Yes
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 to the public domain is available from the first and second floors of the development. The private and public domain is clearly defined with fencing at ground level.	Yes

*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.	The first-floor terraced landscaping and blockwork screening is located within the articulation zone to Home Street and is setback approximately 3.5m and 4.2m respectively.	Yes
44	c) The primary road front setback shall be: Primary frontage = 4.5m Secondary frontage = 3.0m	4.5m setback to building wall from Home Street frontage. Home Street considered the primary frontage as it has the higher volume of traffic. 3m setback to building wall from Oxley Crescent being the secondary frontage.	Yes Yes
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.	The garage to each dwelling is at least 1m behind the building line. The parking spaces in front of the garage extend slightly forward of the building line however are greater than 5.5m in depth from the front boundary.	Yes No*
	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.	The garage doors are no greater than 6m in width and not more than 50% of the width of the buildings.	Yes
	c) Driveway crossovers are no greater than 5.0m in width.	The proposed combined crossovers are 5.5m in width. There appears to be no reason why the crossovers cannot be reduced to a maximum of 5m in width. If approval was granted a condition has been recommended requiring the driveway crossovers to be reduced to a maximum of 5m in width at the boundary.	Yes subject to conditioning.
	d) Where a dual occupancy or attached dwelling is proposed on a corner lot a garage and driveway is provided on each road frontage.	No dual occupancy proposed.	N/A
Side and Rear Setbacks
46	a) A minimum rear boundary setback of 4m is to be provided to dwellings (including verandahs, patios and decks).	The site is a corner lot with no rear setback requirement.	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.	East side ground floor 900mm. North side ground floor 4.005m
	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.	Upper levels east side 2m setback with shadow diagrams demonstrating 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. Upper levels north side 4.005m setback.	Yes Yes
	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.	The first floor was a central unarticulated wall length of 12.4m facing east.	No*
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.	Each unit is provided with a minimum of 35m2 private open space which incorporate a directly accessible 4m x 4m area from living areas.	Yes
	b) Private open space may include clothes drying areas and garbage storage.	Noted.	Yes
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.	Front fencing is illustrated on the plans.	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.	N/A	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,	Solid masonry front fencing variable in height from 1.6 to 2.41m in height is proposed. No landscapes recesses are proposed rather landscaping in front of the fencing within the road reserve. Having regard to the solid nature, height and length of fencing proposed along the Home Street frontage it is considered that the fence on this frontage should incorporate landscape recesses. If approval was granted condition is recommend ensuring openings are incorporated.	Yes subject to conditions.
	c) have openings which make it not less than 25% transparent (no individual opening more than 30mm wide);	No openings are illustrated on the plans. If approval was granted condition is recommend ensuring openings are incorporated.	Yes subject to conditions.
	d) provide a 3m x 3m splay for corner sites, and	Curved 3m splay is provided on the corner.	Yes
	e) provide a 900mm x 900mm splay for vehicle driveway entrances.	No fencing against driveways.	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.	1.8m boundary and front fencing screens views from ground floor living and open space areas. There are no other views identified within 9m or 12m to adjoining dwellings from primary living areas. It is noted that an east view from first floor terrace/lawn areas of units 11C and 11B is screened with 2m high shrub plantings indicated on the landscape plan. The terraces on the second floor incorporate solid side walls and arches to protect privacy between units and the existing adjoining dwelling to the north.	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.	It is noted that an east view from first floor terrace/lawn areas of units 11C and 11B is screened with 2m high shrub plantings indicated on the landscape plan. The terraces on the second floor incorporate solid side walls and arches to protect privacy between units and the existing adjoining dwelling to the north.	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.	N/A
	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.	Refer to comments above. Suitable screening and fencing is proposed.	Yes
Ancillary Development
56	a) For ancillary development in R1 General Residential, R2 Low Density Residential, R3 Medium Density Residential, R4 High Density Residential, R5 Large Lot Residential and RU5 Village zones: - The height of an outbuilding or the alterations and additions to an existing outbuilding on a lot should not be more than 4.8m above ground level (existing). - The building should be single storey construction with a maximum roof pitch of 24 degrees. - The maximum area of the building should be 60m2 for lots less than 900m² and maximum of 100m² for larger lots. - Ancillary development that is a garage, or an outbuilding, or a rainwater tank should not be located in front of the main building line with the exception of swimming pools.	No outbuildings proposed. Swimming pools are proposed and allowed in front setback.	Yes

The proposal seeks a variation to provision 4 which prescribes that development shall not exceed cut of 1m outside the perimeter of the external walls of the building. The proposal incorporates cut to 1.3m along the boundary in the north-eastern corner of the site outside the perimeter of the building walls.

The objectives of provision 4 are as follows:

· 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:

· Owing to the site topography, the cut is proposed to provide for a balanced levels across the development site.

· The proposed cut would be retained with engineered retaining wall.

· The proposed area of cut is considered minimal and does not represent excessive cut or site disturbance.

· Stormwater drainage is capable of being managed in the retaining wall design.

The proposal seeks a variation to provision 24 which requires off-street parking be provided in accordance with the parking demand rates identified in table 3 of the plan. Specifically, the plan requires 5 resident spaces and 1 visitor space. The proposal incorporates 4 resident spaces and 3 visitor spaces.

The objectives of provision 24 is as follows:

· To ensure adequate provision is made for off-street parking commensurate with volume and turnover of traffic likely to be generated by the development.

· To ensure no adverse impacts on traffic and road function.

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

· Each dwelling will be provided with in essence 2 parking spaces. These spaces can be utilised by either residents or visitors of each unit which is commensurate with the anticipated volume and turnover of traffic likely to be generated by the development.

· The proposed parking arrangement will have no adverse impact on traffic and road function.

The proposal seeks a variation to provision 28 which prescribes that stack or tandem spaces will not be included in assessment of parking provision except where it is surplus to that required or it is visitor parking associated with multi dwelling housing, directly in front of the garage with a minimum depth of 5.5m.

The objectives of provision 28 is as follows:

· Parking areas and access-ways are easy and safe to use by vehicles and pedestrians without conflict.

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

· Each dwelling will be provided with in essence 2 parking spaces.

· The parking arrangement will provide for safe use by vehicles and not result in any pedestrian conflict.

The proposal seeks a variation to provision 45 which prescribes that parking spaces should be at least 1m behind the building line. The proposal incorporates stacked parking spaces that extend slightly forward of the building line. The provision prescribes that driveway crossovers are no greater than 5m in width. The proposal incorporates 2 driveway crossovers of 5.5m in width.

The objectives of provision 45 is as follows:

· 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 for the stacked spaces is considered acceptable for the following reasons:

· The parking spaces slightly forward of the main building line are open and predominantly located underneath the first-floor landscaped terrace. There will be no adverse impact upon the streetscape and amenity.

· The parking spaces are open, predominately located underneath a landscaped terrace and do not incorporate any garage doors or the like that would ordinarily create and visual dominance in the streetscape.

· The parking arrangement will provide for safe and functional vehicle access.

The proposal seeks a variation to provision 47 which prescribes that first floors and above, which are setback closer than 3m, should have buildings walls that step in and out at least every 12m by a minimum of 500mm articulation. The proposal incorporates a central 12.4m unarticulated wall on the first floor facing east.

The objectives of provision 47 is as follows:

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

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

· The wall incorporates two small bathroom windows with privacy screening and is partly screened by the landscaped terrace.

· The extent of the variation (400mm) is minor and will not result in any significant overbearing and perception of building bulk on the adjoining property.

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 61

Demolition work 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 site is located on the corner of Home Street and Oxley Crescent.

Adjoining the site immediately to the north is residential development typically comprising two storey dwellings.

Adjoining the site immediately to the east is a single storey residential development.

Adjoining the site to the south is Home Street with residential development typically comprising two storey dwellings beyond.

Adjoining the site to the west is Home Street with residential development typically comprising single storey and two storey dwellings or units.

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

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. Adequate building separation is proposed/existing.

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 between the hours of 9am and 3pm.

Roads

The site has road frontages to Oxley Crescent and Home Street, Port Macquarie. These are sealed public roads under the care and control of Council. Both streets are classified as Local roads. All 4 garages for the development will have direct access onto Oxley Crescent, via 2 shared driveways (11A & 11B and 11C & 11D). Oxley Crescent has a 7m wide carriageway, within a 15m wide road reserve. There is SA profile (up-right) kerb and gutter present in the street, with on-street parking available. There is also an existing give way sign and a painted yield line for vehicles approaching the Home Street intersection.

Immediately adjacent to the site, Home Street has a 17m wide carriageway, within a 27m wide road reserve. There are painted, on-street bicycle lanes within the carriageway on both sides of the street. There is also SA profile kerb and gutter and on-street parking available.

Traffic and Transport

The site is currently approved for residential use permitted to generate 7 daily trips. This development proposes to generate 28 daily trips. 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 through 2 shared driveways with direct frontage onto Oxley Crescent. Access shall comply with Council AUSPEC and Australian Standards, and conditions have been recommended to reflect these requirements.

Parking and Manoeuvring

A total of 4 parking spaces have been provided on-site within garages, with an additional 4 parking spaces available within each driveway. Two shared driveways have been proposed, with the widths limited to ensure on-street parking opportunities are maximised. The plans demonstrate that the property frontage can accommodate approximately seven on-street parking spaces. Parking and driveway widths on site are capable of complying with relevant Australian Standards (AS 2890) and conditions have been recommended to reflect these requirements

Water Supply Connection

Water Supply is available to the site. A Section 306 Notice of Requirements will be required from the water authority prior to the issue of a Construction Certificate, and a Section 307 Certificate will be required at the completion of work and prior to the issue of an Occupation Certificate and Strata Certificate.

Appropriate conditions are recommended in this regard.

Sewer Connection

Sewer is available to the site. A Section 306 Notice of Requirements will be required from the water authority prior to the issue of a Construction Certificate, and a Section 307 Certificate will be required at the completion of work and prior to the issue of an Occupation Certificate and Strata Certificate.

Appropriate conditions are recommended in this regard.

Stormwater

The site naturally grades towards the street frontage of Oxley Crescent/ Home Street and is currently serviced via an existing kerb outlet to Home Street.

The legal point of discharge for the proposed development is defined as a direct connection to Council’s stormwater pit within Oxley Crescent, near the corner of Home Street.

Stormwater from the proposed development is planned to be disposed via Council’s stormwater pit within Oxley Crescent, which is consistent with the above requirements.

A detailed site stormwater management plan will be required to be submitted for assessment with the S.68 application and prior to the issue of a Construction Certificate. In accordance with Councils AUSPEC requirements, the following must be incorporated into the stormwater drainage plan:

· On site stormwater detention facilities

Appropriate conditions are recommended in this regard.

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.

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

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 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. No adverse impacts anticipated.

Noise and vibration

Bushfire

The site is not identified as being bushfire prone.

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. Adequate casual surveillance is available.

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.

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

Six (6) 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
Impacts upon on-street parking and additional traffic in Oxley Crescent. It is a narrow street.	Sufficient off-street parking is proposed for resident and visitor spaces consistent with the parking requirements of the Development Control Plan. Council’s Development Engineer has reviewed the proposal and is satisfied that the traffic generation from the proposed development is within the capacity of the existing road network.
3 storeys is out of character for the immediate area which is characterised by single and two storey dwellings and units.	The proposal complies with the 11.5m (i.e. 3 storey) maximum building height standard which has been envisaged for the site and locality.
No apparent reasoning for variation to floor space ratio standard, which would set a precedent for future developments in the area.	Refer to detailed comments under clause 4.6 of the Port Macquarie-Hastings Local Environmental Plan 2011 section of this report. The variation is not supported, and refusal of the application recommended.
Privacy impacts.	There are no east facing windows to the kitchens on the first floor of the middle units. All other living areas are either located on the ground floor or greater 12m from adjoining primary living and open space areas on adjoining properties. No adverse privacy impacts are identified.
View impacts.	There are no identified views impacted from the proposal.
Overshadowing impacts.	Having regard to the north-south orientation of the site and supporting shadow diagrams no adverse overshadowing impacts would result.
Vegetation and tree removal impacts.	No native vegetation exists on the site. The removal of planted and ornamental trees will have no adverse impact on native flora and fauna.
Construction impacts	The construction phase is short term and standard construction site management and construction hour conditions would apply to any consent granted.
Lack of affordable housing.	The proposal does not incorporate any affordable housing component and there is no planning requirement to provide affordable housing in this type of development.
The architectural design is not attractive and is dated.	The design of the building (not withstanding the floor space ratio variation) is consistent with other planning controls. The appearance of architectural design elements and colours is subjective and not a relevant planning consideration.
Lack of green space/landscaped areas.	The proposal incorporates adequate landscaping. This is detailed on the landscaping plan.
It is unclear who the owner is behind the proposal as the business has no ABN.	This is not a relevant planning consideration matter.

(e) The Public Interest

The proposed development does not satisfy a key planning control of floor space ratio. In this instance it is not in the public interest to support an application that does not meet this development standard.

Climate change

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

4. DEVELOPMENT CONTRIBUTIONS APPLICABLE

· If approval was to be granted 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.

· I f approval was to be granted 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.

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

The proposed development incorporates a variation to the planning control of floor space ratio. In this instance the objectives of the floor space ratio development standard are not achieved, and the variation is not supported. On this basis it is not considered to be in the public interest to support the application.

Attachments

1 ⇩. Attachment 1 - Recommended Conditions

2 ⇩. Attachment 2 - Plans

3 ⇩. Attachment 3 - Contribution Estimate

4 ⇩. Attachment 4 - Clause 4.6 Assessment

Member	16/10/24	20/11/24	11/12/24	05/02/25	05/03/25	19/03/25
David Crofts (Independent Chair)	A	P	P		A	P
Tony McNamara (Independent Member)	P		P	P	P
Chris Gee (Independent Member)	P	P		P	P	P
Murray Blackburn-Smith (Independent Member)				P		P
Dan Croft (Group Manager Development Services)	P	P	P	P	P	P
Other attendees
Melissa Watkins (Director Community, Planning and Environment)
Grant Burge (Development Engineering Coordinator)	P	P	P	P	P
Kerrod Franklin (Acting Development Engineering Coordinator)
Patrick Galbraith-Robertson (Development Planning Coordinator)			P			P
Steven Ford (Development Assessment Planner)		P
Chris Gardiner (Development Assessment Planner)		P	P		P
Vanessa Penfold (Development Assessment Planner)	P		P
Clinton Tink (Development Assessment Planner)				P
Jon Power (Act Development Engineer Coordinator)
Beau Spry (Development Assessment Planner)
Ben Roberts (Development Assessment Planner)		P
Kate Kennedy (Building Surveyor)
Warren Wisemantel (Building Surveyor)
Bob Slater (Development Assessment Planner)
Alton Dick (Stormwater Engineer)
Fiona Tierney (Development Assessment Planner)
Nicholas Powers (Development Assessment Planner)

5 February	Function Room	2.00pm
19 February	Function Room	2.00pm
5 March	Function Room	2.00pm
19 March	Function Room	2.00pm
2 April	Function Room	2.00pm
16 April	Function Room	2.00pm
7 May	Function Room	2.00pm
21 May	Function Room	2.00pm
4 June	Function Room	2.00pm
18 June	Function Room	2.00pm
2 July	Function Room	2.00pm
16 July	Function Room	2.00pm
6 August	Function Room	2.00pm
20 August	Function Room	2.00pm
3 September	Function Room	2.00pm
17 September	Function Room	2.00pm
1 October	Function Room	2.00pm
15 October	Function Room	2.00pm
5 November	Function Room	2.00pm
19 November	Function Room	2.00pm
10 December	Function Room	2.00pm

1.0 OBJECTIVES

2.0 KEY FUNCTIONS

Delegated Authority of Panel

3.0 MEMBERSHIP

3.1 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

5.1 Meeting Format

5.2 Decision Making

5.3 Quorum

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

9.0 CONDUCT AT MEETINGS

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.