final planning committee agenda - 6 march 2014€¦ · thursday 6 march 2014 . held at murwillumbah...

Mayor: Cr B Longland Councillors: M Armstrong (Deputy Mayor)

G Bagnall C Byrne K Milne W Polglase P Youngblutt

Agenda

Planning Committee Meeting Thursday 6 March 2014

held at Murwillumbah Cultural and Civic Centre

commencing at 5.00pm

Planning Committee: Thursday 6 March 2014

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 - SECT 79C 79C Evaluation (1) Matters for consideration-general In determining a development application, a consent

authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public

consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or

any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

that apply to the land to which the development application relates,

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

(c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. Note: See section 75P (2) (a) for circumstances in which determination of development application to be generally consistent with approved concept plan for a project under Part 3A. The consent authority is not required to take into consideration the likely impact of the development on biodiversity values if:

(a) the development is to be carried out on biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act 1995 ), or

(b) a biobanking statement has been issued in respect of the development under Part 7A of the Threatened Species Conservation Act 1995 .

(2) Compliance with non-discretionary development standards-development other than

complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:

Planning Committee: Thurs day 6 March 2014

(a) is not entitled to take those standards into further consideration in determining the development application, and

(b) must not refuse the application on the ground that the development does not comply with those standards, and

(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

and the discretion of the consent authority under this section and section 80 is limited accordingly.

(3) If an environmental planning instrument or a regulation contains non-discretionary

development standards and development the subject of a development application does not comply with those standards:

(a) subsection (2) does not apply and the discretion of the consent authority under

this section and section 80 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the

application of a development standard may be applied to the non-discretionary development standard.

Note: The application of non-discretionary development standards to complying development is dealt with in section 85A (3) and (4).

(4) Consent where an accreditation is in force A consent authority must not refuse to grant

consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.

(5) A consent authority and an employee of a consent authority do not incur any liability as

a consequence of acting in accordance with subsection (4). (6) Definitions In this section:

(a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b) "non-discretionary development standards" means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.


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Items for Consideration of Council: ITEM PRECIS PAGE

CONFIRMATION OF MINUTES 7

1 [CONMIN-PC] Confirmation of Minutes of the Ordinary Planning Committee Meeting held on Thursday 6 February 2014

7

SCHEDULE OF OUTSTANDING RESOLUTIONS 9

2 [SOR-PC] Schedule of Outstanding Resolutions 9

REPORTS THROUGH THE GENERAL MANAGER 13

REPORTS FROM THE DIRECTOR PLANNING AND REGULATION 13

3 [PR-PC] Variations to Development Standards under State Environmental Planning Policy No. 1 - Development Standards

13

4 [PR-PC] Development Application DA10/0800.03 for an Amendment to Development Consent DA10/0800 for Cobaki Estate Subdivision of Precinct 1 and 2 Comprised of 475 Residential Lots (Including 1 Residual Lot) and Lots for Drainage, Open Space and Urban Infrastructure (JRPP) at Lot 1 DP 570076, Lots 54, Pt 199, 200 DP 755740 Piggabeen Road, Cobaki Lakes; Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679, Lot 2 DP 566529 & Lots 46, 55, Pt 199, 201, 202, 205, 206, 209, 228, 305 DP 755740 Sandy Lane, Cobaki Lakes

15

5 [PR-PC] Development Application DA10/0801.02 for an Amendment to Development Consent DA10/0801 for the Cobaki Estate Subdivision of Precinct 6 Comprised of 442 Residential Lots (Including 1 Residual Lot) and Lots for Drainage, Open Space and Urban Infrastructure (JRPP) at Lot 1 DP 570076, Lots 54, Part Lot 199 & Lot 200 DP 755740 Piggabeen Road, Cobaki Lakes; Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679, Lot 2 DP 566529, Lots 46, 55, Part 199, 201, 202, 205, 206, 209, 228, 305 DP 755740 Sandy Lane, Cobaki Lakes

65

6 [PR-PC] Development Application DA13/0624 for a Detached Dual Occupancy, Gazebo & Swimming Pool - Two Stages at Lot 501 DP 1174455 No. 161 Overall Drive, Pottsville

115

7 [PR-PC] Development Application DA02/1983.16 for an Amendment to Development Consent DA02/1983 for Use of Property for Filming and Producing a Television Program at Lot 77 DP 755715 Dungay Creek Road; Part Lot 74 DP 755715 No. 366 Dungay Creek Road; Lot 93 DP 755715 No. 486 Dungay Creek Road, Dungay

147


8 [PR-PC] Development Application DA12/0170.04 for an Amendment to Development Consent DA12/0170 for Alterations and Additions to Motel (Staged) at Lots 9-12 Section 4 DP 31209 Nos. 19-25 Cypress Crescent; Lots 1 & 2 Section 4 DP 29748 Nos. 26- 28 Tweed Coast Road, Cabarita Beach

173

9 [PR-PC] Development Application DA13/0383 for a Redevelopment of 'Jenners Corner' Site Incorporating a Boat Showroom, Boating Facility, Two Cafes and Caretakers Residence at Lot 1 DP 119054, Lot 1 DP 341470, Lot A DP 373769 No. 120 Chinderah Bay Drive, Chinderah; Lot 1 DP 382677, Lot C DP 373769 No. 122 Chinderah Bay Drive, Chinderah; Lot 1 DP 415533 No. 126 Chinderah Bay Drive, Chinderah; Lot 2 DP 415533 No. 128 Chinderah Bay Drive, Chinderah; Lot 3 DP 415533 No. 130 Chinderah Bay Drive, Chinderah

235

10 [PR-PC] Development Application DA13/0502 for a Staged Development - Boundary Adjustment, Boat Storage Facility and One Dwelling as a Caretakers Residence and One Dwelling with a Commercial Premise Component at Lot 23 DP 1130032 No. 7 Chinderah Bay Drive,

285

11 [PR-PC] Class 1 Appeal in Relation to Development Application DA13/0397 for an Extension to Existing Car Park at Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff; Lot 100 DP 1071633 No. 24-26 Pearl Street, Kingscliff

343

CONFIDENTIAL ITEMS FOR CONSIDERATION 347


CONFIRMATION OF MINUTES

1 [CONMIN-PC] Confirmation of Minutes of the Ordinary Planning Committee Meeting held on Thursday 6 February 2014

SUBMITTED BY: Planning and Regulation

LINKAGE TO INTEGRATED PLANNING AND REPORTING FRAMEWORK: 1 Civic Leadership 1.2 Improve decision making by engaging stakeholders and taking into account community input 1.2.2 Decisions made relating to the allocation of priorities will be in the long-term interests of the community

SUMMARY OF REPORT:

The Minutes of the Ordinary Planning Committee Meeting held Thursday 6 February 2014 are attached for information and adoption by Council. RECOMMENDATION:

That the Minutes of the Ordinary Planning Committee Meeting held Thursday 6 February 2014 be adopted as a true and accurate record of proceedings of that meeting.


REPORT:

As per summary. COUNCIL IMPLICATIONS: a. Policy: Code of Meeting Practice Version 2.3. b. Budget/Long Term Financial Plan: Not Applicable. c. Legal: Not Applicable. d. Communication/Engagement: Inform - We will keep you informed. UNDER SEPARATE COVER/FURTHER INFORMATION:

Attachment 1. Minutes of the Ordinary Planning Committee Meeting held Thursday 6 February 2014 (ECM 3286062)


SCHEDULE OF OUTSTANDING RESOLUTIONS

2 [SOR-PC] Schedule of Outstanding Resolutions

LINKAGE TO INTEGRATED PLANNING AND REPORTING FRAMEWORK: 1 Civic Leadership 1.2.1 Council will be underpinned by good governance and transparency in its decision making

processes CODE OF MEETING PRACTICE: Section 2.8 Outstanding Resolutions No debate is to be allowed on Outstanding Resolutions. Any changes to or debate on Outstanding Resolutions should only be by way of a Notice of Motion or a report to Council. COUNCIL MEETING - 23 JANUARY 2014 REPORTS FROM THE DIRECTOR PLANNING AND REGULATION 17 [PR-CM] Development Application DA13/0175 for an 83 Lot Residential

Subdivision in Four Stages Comprising 79 Residential Lots with Dedication of Two Lots as Drainage Reserves, One Lot as Public Reserve and One Lot as Sewer Pump Station Site at Lot 332 DP1158142 Silkpod Avenue, Murwillumbah

Cr G Bagnall Cr M Armstrong RESOLVED that the Development Application DA13/0175 for an 83 lot residential subdivision in four stages with dedication of two lots as drainage reserves, one lot as public reserve and one lot as sewer pump station site at Lot 332 DP 1158142 Silkpod Avenue, Murwillumbah be deferred for a Workshop. Current Status: Workshop scheduled for 27 February 2014.

—————————————


19 [PR-CM] Development Application DA13/0385 for a Three Lot Subdivision and

Single Dwelling with Attached Secondary Dwelling at Lot 63 DP 804148 No. 3-6 Trutes Terrace, Terranora

27

Cr K Milne Cr M Armstrong RESOLVED that Development Application DA13/0385 for a three lot subdivision and single dwelling with attached secondary dwelling at Lot 63 DP 804148 No. 3-6 Trutes Terrace, Terranora, due to the constraints of the site the matter be deferred to 6 March 2014 Planning Committee Meeting. The Director Planning and Regulation to include in the report consideration of the following matters: 1. Allow the proponents the opportunity to consider consolidating proposed Lots 1 and 2

into one single lot. 2. Allow the proponents and Council to agree to the terms of a voluntary planning

agreement that ensures that each allotment created is ultimately serviced by connection to the Council sewerage network, if on site effluent management results are deemed to be unsatisfactory in the long term, and that all other relevant infrastructure costs and environmental provisions (associated with Area E development) are paid.

3. Allow the proponents to submit an updated On Site Effluent Management Report that

seeks to commit to high level treatment of effluent management (including nutrient reduction and potential composting toilets), and that all land application areas are minimised to result in minimal to no removal of existing native vegetation and to maximise the revegetation of native vegetation where possible.

4. The proponent to be responsible for the costs of preparing this Voluntary Planning

Agreement (VPA), including the costs to Council. Current Status: Report to be prepared for a future meeting.


PLANNING COMMITTEE - 6 FEBRUARY 2014 2 [PR-PC] Development Application DA13/0267 for the Demolition of Existing

Building and Construction of 3 Storey Multi-Dwelling Housing Development Incorporating 7 Units Plus Basement Parking at Lot 27 DP 21680 No. 42 Sutherland Street, Kingscliff

P 2 Cr M Armstrong Cr K Milne RECOMMENDED that Development Application DA13/0267 for the demolition of existing building and construction of 3 storey multi dwelling housing development incorporating 7 units plus basement parking at Lot 27 DP 21680 No. 42 Sutherland Street, Kingscliff be deferred to the Planning Committee meeting of 6 March 2014. Current Status: Report to be prepared for a future meeting.


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REPORTS THROUGH THE GENERAL MANAGER

REPORTS FROM THE DIRECTOR PLANNING AND REGULATION

3 [PR-PC] Variations to Development Standards under State Environmental Planning Policy No. 1 - Development Standards

SUBMITTED BY: Director

LINKAGE TO INTEGRATED PLANNING AND REPORTING FRAMEWORK: 1 Civic Leadership 1.4 Strengthen coordination among Commonwealth and State Governments, their agencies and other service providers and Statutory

Authorities to avoid duplication, synchronise service delivery and seek economies of scale 1.4.1 Council will perform its functions as required by law and form effective partnerships with State and Commonwealth governments and

their agencies to advance the welfare of the Tweed community

SUMMARY OF REPORT:

In accordance with the Department of Planning's Planning Circular PS 08-014 issued on 14 November 2008, the following information is provided with regards to development applications where a variation in standards under SEPP1 has been supported/refused. RECOMMENDATION:

That Council notes there are no variations for the month of February 2014 to Development Standards under State Environmental Planning Policy No. 1 - Development Standards.


REPORT:

On 14 November 2008 the Department of Planning issued Planning Circular PS 08-014 relating to reporting on variations to development standards under State Environmental Planning Policy No. 1 (SEPP1). In accordance with that Planning Circular, no Development Applications have been supported/refused where a variation in standards under SEPP1 has occurred. COUNCIL IMPLICATIONS: a. Policy: Corporate Policy Not Applicable. b. Budget/Long Term Financial Plan: Not Applicable. c. Legal: Not Applicable. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Nil.


4 [PR-PC] Development Application DA10/0800.03 for an Amendment to Development Consent DA10/0800 for Cobaki Estate Subdivision of Precinct 1 and 2 Comprised of 475 Residential Lots (Including 1 Residual Lot) and Lots for Drainage, Open Space and Urban Infrastructure (JRPP) at Lot 1 DP 570076, Lots 54, Pt 199, 200 DP 755740 Piggabeen Road, Cobaki Lakes; Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679, Lot 2 DP 566529 & Lots 46, 55, Pt 199, 201, 202, 205, 206, 209, 228, 305 DP 755740 Sandy Lane, Cobaki Lakes

SUBMITTED BY: Development Assessment

FILE REFERENCE: DA10/0800 Pt17

LINKAGE TO INTEGRATED PLANNING AND REPORTING FRAMEWORK: 1 Civic Leadership 1.1 Ensure actions taken and decisions reached are based on the principles of sustainability 1.1.1 Establish sustainability as a basis of shire planning and Council's own business operations

SUMMARY OF REPORT:

Council is in receipt of a Section 96 application for proposed modifications to the approved Cobaki Estate subdivision of Precinct 1 and 2. There is no proposed change to the approved subdivision layout of the development or overall number of allotments. The applicant is seeking to modify the proposed development by way of amending or deleting various conditions of consent. The application was submitted to Council in October 2011. Request for information was provided to the proponent in May 2012. A response was received by Council in October 2013 enabling further assessment of the application. Of the 29 proposed modifications, a total of only seven have been supported in the same format as proposed by the applicant. A further 11 of the proposed modifications are supported, subject to further amendments with the majority of the proposed changes having been accepted by the applicant. 11 of the proposed modifications put forward by the applicant are not supported. One of the major issues with the application is in relation to the requirement for a funding mechanism for the ongoing maintenance of the environmental protection land. There has been considerable discussion on this issue with the applicant, with no clear agreement being achieved to date. There have also been two Councillor workshops to discuss the matter, with the most recent workshop being held on 30 January 2014.


The original conditions of consent were applied as a result of the applicant deciding to not dedicate environmental lands to Council. Concern for the ongoing maintenance of the environmental land (beyond the vegetation/remediation works required by the Site Regeneration and Revegetation Plan) resulted in Condition 51 requiring (amongst other things) a ‘mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council’ prior to the issue of any Construction Certificate. Initially the applicant requested the deletion of this component (Clause (d)) of Condition 51. The proposed deletion of Clause (d) has consistently been opposed in discussions with the proponent, as it is considered that the applicant is responsible for the ongoing management of the environmental land until such time that an agreement can be made with Council. The actual mechanism of the funding (i.e. how the funding can be fairly and equitably achieved) is considered to be a separate matter to the issue of whether the funding requirement should be applied at all. Since the most recent Councillor workshop, the applicant has proposed a new condition of consent deferring the issue of funding mechanism to prior to the issue of Civil Works Construction Certificate, to allow the issue of Construction Certificate for Bulk Earth Works to proceed. Whilst the proposed new condition appears to be a reasonable request so that the Bulk Earthworks of Precinct 1 and 2 are not unduly held up, it is not supported as the mechanism for ensuring that management continues in perpetuity, needs to be determined prior to the time when the major impact occurs, which is at the Bulk Earthworks stage. There are several options available to consider as a funding mechanism which have been discussed at previous Councillor workshops. These options are:

• Capital contribution from land sales;

• Planning agreement (for example as applied in Altitude Aspire, Area E);

• Special Levy (for example as applied in Koala Beach);

• Existing rate base (not supported as it defers the cost of new development to existing residents when Council is already facing an asset management shortfall on existing infrastructure, natural assets and open space);

• Ordinary Rate income from the increased assessments derived from the estate (the ability to fund the management of the lands through the Ordinary Rates generated through the additional assessments of the estate can only be determined once clear costings for the management of the land have been accurately estimated and it is modelled along with Council's other asset management and service delivery obligations of the estate);

• A combination of the above; or

• By the lands being retained, managed and funded by the residents of the estate via a community title scheme.

It is considered appropriate that the applicable option be determined at a separate Council meeting, once the costings of the funding has been accurately estimated and a separate report on the matter put to Council for consideration.


RECOMMENDATION:

That Development Application DA10/0800.03 for an amendment to Development Consent DA10/0800 for Cobaki Estate Subdivision of Precinct 1 and 2 comprised of 475 residential lots (including 1 residual lot) and lots for drainage, open space and urban infrastructure (JRPP) at Lot 1 DP 570076, Lots 54, Pt 199, 200 DP 755740 Piggabeen Road, Cobaki Lakes; Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679, Lot 2 DP 566529 & Lots 46, 55, Pt 199, 201, 202, 205, 206, 209, 228, 305 DP 755740 Sandy Lane, Cobaki Lakes be approved and the consent be modified as follows: 1. Delete Condition No. 16 and replace it with Condition No. 16A which reads as

follows: 16A. Evidence must be submitted to Council prior to the registration of any Plan

of Residential Subdivision, demonstrating that works have been commenced in accordance with the Revised Saltmarsh Rehabilitation Plan by James Warren and Associates dated October 2010 and as specified within Condition 65 of MP08_0200. The works are to be undertaken in accordance with the timing and responsibilities contained within the approved, Final Saltmarsh Rehabilitation Plan.

2. Delete Condition No. 18 and replace it with Condition No. 18A which reads as

follows: 18A. The proponent must maintain Asset Protection Zones (APZs) for Precinct 1

and 2 for a period of five years from the date of the issue of the first subdivision certificate for Precinct 1 or 2. The APZs must be regularly slashed to ensure a reduced fuel zone and Council is to be notified on each occurrence. Council will audit APZs annually, prior to the bushfire danger period, and at other times as appropriate (e.g. when the risk of bushfire is high), to ensure APZs are compliant with Planning for Bushfire Protection 2006 and in order to meet its reporting requirements under the Rural Fires Act 1997. If APZs are not compliant, the proponent must undertake the necessary works as directed by Council and within the timeframe specified by Council. An unconditional bond to the value of 5% of the Asset Protection Zone (including landscaping, fencing, earthworks and fire trail) cost will be held in the favour of Council to be utilised in the event of non-compliance with this condition. Release of the bond will be at the completion of the five year maintenance period dependent upon the performance of carrying out the requirements of this condition.


3. Delete Condition No. 32 and replace it with Condition No. 32A which reads as follows: 32A. Prior to the issue of a Construction Certificate for civil works the following

detail in accordance with Councils Development Design and Construction Specifications shall be submitted to the Principal Certifying Authority for approval. (a) copies of compliance certificates relied upon. (b) four (4) copies of detailed engineering plans and specifications. The detailed plans shall include but are not limited to the following: • Earthworks

o Clearly showing pre and post development levels (spot levels and contours) at a legible scale.

o Comply with the provisions of Council’s Design Specification D6 – Site Regrading.

o Batter slopes on drain cross sections and in public open space areas shall not exceed 1:4 (v:h), unless otherwise authorised by Council.

o The maximum disturbed area (that has not been permanently vegetated) at any time shall not exceed 5ha, unless otherwise approved by the General Manager or his delegate

• Roadworks/furnishings o Providing road profiles complying with Council’s Design

Specification D1 – Road Design, unless approved otherwise by Council.

• Stormwater drainage • Water supply works

o In general accordance with Yeats Consulting Engineers - Water Network Analyses, April 2011, Revision 03, unless modified otherwise by the conditions of this Consent.

• Sewerage works o In general accordance with Yeats Consulting Engineers - Master

Sewer Reticulation Plan Revision C, unless modified otherwise by the conditions of this Consent.

• Landscaping works • Sedimentation and erosion management plans • Location of all service conduits (water, sewer, electricity supply and

telecommunication infrastructure) The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Management Act 2000 and Section 138 of the Roads Act to be certified by an Accredited Certifier.


4. Delete Condition No. 46 and replace it with Condition No. 46A which reads as follows: 46A. Any playgrounds provided must comply with the guidelines established

in the Playground Audit for Tweed Shire Council (July 2009), appendix 3 establishes the procedure for assessing nearby hazards and mitigation measures. The proposed open space areas for this stage as identified in Planit Consulting Drawing Set Dated March 2011 shall be designed to minimise the hazards to designated playground areas consistent with those mitigating features identified in Appendix 3A7 of the Playground Audit for Tweed Shire Council (July 2009). Detailed drawings and reporting outlining mitigation measures to be employed to mitigate risk are to be submitted for approval by the General Manager or his delegate. In proposing mitigation measures consideration of long term maintenance costs shall be considered and evaluated in any reporting.


follows: 51A. One or more detailed Habitat Restoration Plan(s) must be submitted to and

approved by Council in accordance with Council's draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 1, 3, 4, 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated April 2013 and representing compensatory offset for loss of habitat and Endangered Ecological Communities (EEC) on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the Subdivision Plan (that is, other than as an environmental protection area such as park or drainage reserve lots), additional EEC and habit offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken (b ) a s ta tement of commitment by the cons ent ho lde r to mainta in the

works until the re levant pe rformance c rite ria of the S ite Regenera tion and Revege ta tion P lan a re achieved and until such time as an agreement is reached with Council regarding the dedication of that land.

(c) a statement of commitment by the consent holder that the works will

be completed by qualified and experienced bush regeneration personnel.


(d) a mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council.

6. Insert new Condition 51.1 as follows:

51.1. Following the successful rehabilitation of Management Areas 1, 2, 3, 4, 13

of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2013, the landowner shall offer to dedicate that land to Council.


follows: 55A. Asset Protection Zones for Precinct 1 and 2 must be compliant with the

bush fire protection measures for residential subdivisions as outlined in Section 4.1.3 of Planning for Bush Fire Protection 2006. If APZs are not compliant with acceptable solutions as per Section 4.1.3 of Planning for Bush Fire Protection 2006, then as per the guidelines a detailed performance assessment must be prepared by a Bushfire Planning and Design Certified Practitioner (BPAD-A) accredited under the Fire Protection Association of Australia and submitted to Council for approval. The performance assessment must include a detailed assessment and demonstration that the APZ can be maintained in the long term with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate.


follows: 56A. The Plans lodged for Construction Certificate must be certified by a

Bushfire Planning and Design Certified Practitioner (BPAD-A) accredited under the Fire Protection Association of Australia as compliant with Planning for Bushfire Protection Guidelines 2006 or the alternate solutions approved by Council under Conditions 54 and 55.


follows: 59A. Should, following the proponent’s best endeavours, National Rental

Affordability Scheme (NRAS) (or equivalent) funding be available to provide affordable housing within the development in accordance with the approved Cobaki Estate Affordable Housing Study, a staging plan detailing the location, mix and type of dwellings to be provided as affordable rental accommodation is to be submitted to Council in accordance with the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd. by Hill PDA and dated November 2010.


10. Delete Condition No. 68 and replace it with Condition No. 68A which reads as follows: 68A. Prior to the commencement of construction works a Construction

Environmental Management Plan (CEMP) must be prepared that covers the area of works. The CEMP shall be consistent with the Guideline for the Preparation of Environmental Management Plans (DIPNR, 2004). The CEMP shall include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the proposal during construction. The CEMP must include, but not be limited to all matters specified within Condition 25 of Project Application MP08_0200 and be submitted to and approved by the PCA prior to commencement of construction, or within such period otherwise agreed by the General Manager or delegate.


follows: 100A. All waters that are to be discharged from the site during dry weather

periods and wet weather periods up to the Q3 month rain event (as defined in Council’s Design Specification D7 – Stormwater Quality) shall have a pH between 6.5 and 8.5 and suspended solids not greater than 50mg/l. Where water is to be discharged from the site the contractor shall nominate a person responsible for monitoring of the quality of such discharge waters on a daily basis and the results recorded. Such results shall be made available to Council's Environmental Health Officer(s) upon request.


follows: 112A. The proposed passive parks are to be progressively dedicated as

passive open space and suitably embellished at no cost to Council in accordance with the approved landscaping plan. Embellishment arrangements shall be in place prior to the issue of a Subdivision Certificate.


follows: 114A. Prior to the issue of a Subdivision Certificate, a performance bond equal

to 25% of the contract value of the footpath and cycleway construction works shall be lodged for a period of 3 years or until 80% of the lots fronting paved footpaths and cycleways are built on. Alternatively, the developer may elect to pay a cash contribution to the value of the footpath and cycleway construction works plus 25% in lieu of construction and Council will construct the footpath when the subdivision is substantially built out. The cost of these works shall be validated by a schedule of rates.


14. Delete Condition No. 115 and replace it with Condition No. 115A which reads as follows: 115A. A bond shall be lodged to ensure suitable care and maintenance is

provided to plantings and turf over a 12 month establishment period. This care is required to achieve optimal plant establishment and performance. The bond shall be held by Council to ensure that the associated landscaping is maintained by the developer for a period of 12 months from the date of issue of a Subdivision Certificate. The amount of the bond shall be 20% of the estimated cost of the landscaping.


follows: 116A. Cash Bond/Bank Guarantee

(a) A Cash Bond or Bank Guarantee to ensure that the approved Site

Regeneration and Revegetation Plan (SRRP) is implemented and completed, must be lodged with Council prior to the release of the Subdivision Certificate. The amount of such bond will be based on the cost of environmental repair, enhancement and maintenance works remaining to be undertaken in accordance with the approved SRRP. In this regard, two (2) written quotes from suitably experienced and qualified bush regenerators (to the satisfaction of the General Manager or his delegate) must be submitted to Council which detail the cost of all works associated with the SRRP. The amount of the bond will be equivalent to 100% of the estimated cost of works.

(b) One third of the Cash Bond or Bank Guarantee will be refunded one

year after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works are being satisfactorily undertaken in accordance with the approved SRRP. A further one third of the Bond or Bank Guarantee will be refunded 3 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily reached the defined half-way stage of the SRRP. The final one third of the Bond or Bank Guarantee will be released 5 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that the SRRP has been satisfactorily completed.


(c) Monitoring of the effectiveness of environmental repair, enhancement and maintenance works must be undertaken by an independent and suitably qualified and experienced bush regenerator at yearly intervals following initiation of the Environmental Restoration Plan SRRP works. Reports of this monitoring must provide the basis for the person issuing certification for the bond or bank guarantee refunding stages and must be annually submitted to Council as evidence. Any supplementary or approved adaptive management works deemed necessary by the independent bush regenerator during the life of the SRRP must be undertaken once the need is identified.


follows: 129A. The Plan of Proposed Subdivision shall dedicate the proposed drainage

reserve adjacent to that stage of the development at no cost to Council. The proponent shall submit an accurate plan of the proposed drainage reserve to Council 60 days prior to lodgement of Application for Subdivision Certificate to allow the land to be classified.


follows: 144A. The staged embellishment of all areas of casual open space, structured

open space, cycleways, pedestrian links and streetscapes is to be completed, consistent with the approved landscape plans, to the satisfaction of the General Manager Tweed Shire Council or delegate prior to issue of the Subdivision Certificate. The Developer will be responsible for maintaining the installed playground equipment and softfall for a period of 6 months after 20% of the relevant stage’s allotments have been occupied. A maintenance compliance bond of 5% of the total cost of the installed playground equipment and softfall must be paid to Council prior to the release of the relevant Subdivision Certificate for each stage. The bond will be return upon request at the completion of the maintenance period, if not expended during the maintenance period.


follows: 155A. Prior to the release of a Subdivision Certificate the land owner of the site of

the future Cobaki Community Centre under Concept Plan Approval MP06_0316 is to enter into a Deed of Agreement with Council such that the identified land is to be provided with a constructed road frontage and all normal urban services and dedicated to Council at no cost prior to the release of a Subdivision Certificate that would allow the creation of more than 2000 residential lots within the Cobaki development.


REPORT:

Applicant: Leda Manorstead Pty Ltd Owner: Leda Manorstead Pty Ltd Location: Lot 1 DP 570076, Lots 54, Pt 199, 200 DP 755740 Piggabeen Road, Cobaki

Lakes; Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679, Lot 2 DP 566529 & Lots 46, 55, Pt 199, 201, 202, 205, 206, 209, 228, 305 DP 755740 Sandy Lane, Cobaki Lakes

Zoning: 2(c) Urban Expansion, 7(d) Environmental Protection (Scenic/Escarpment), 7(l) Environmental Protection (Habitat), 6(b) Recreation, 7(a) Environmental Protection (Wetlands & Littoral Rainforests)

Cost: Not Applicable BACKGROUND Cobaki Estate has multiple layers of approvals which allow for subdivision of the site, including a town centre, community facilities, sports fields, parks and other infrastructure. The following table summarises the key and more contemporary approvals issued over the site:

Determining Authority Approval Date Tweed Shire Council S94/194 approximately 763 lots

and Cobaki Parkway 1995

Tweed Shire Council S97/54 approximately 430 lots (Parcel 7-10)

1997

Tweed Shire Council K99/1124 approximately 560 lots 2000

Tweed Shire Council Part 12 – Bulk Earthworks across the whole site

Tweed Shire Council 1162/2001DA – Bulk Earthworks and Masterplan for Town Centre

2002

Department of Planning Concept Plan approval for approximately 5000 dwellings

December 2010

Department of Planning Project Application central open space and drainage corridor

February 2011

Northern Joint Regional Planning Panel

DA10/0800 – 475 Residential Lots (Precinct 1 and 2)

May 2011


DA10/0801 – 441 Residential Lots (Precinct 6)

May 2011

Department of Planning & Infrastructure

Concept Plan approval for approximately 5000 dwellings – Mod 1

May 2013


Project Application central open space and drainage corridor – Mod 1

May 2013


Determining Authority Approval Date Planning & Infrastructure Project Application central open

space and drainage corridor – Mod 2

Not Yet Determined

Precinct 1 & 2 comprises of 475 residential lots (including 1 residual lot) and lots for drainage, open space and urban infrastructure was determined by the Joint Regional Planning Panel, being granted on 30 May 2011. PROPOSED DEVELOPMENT: There is no proposed change to the approved layout of the development. The proposed modifications to Development Consent DA10/0800 as submitted by the applicant are noted below, along with a summary of whether or not the proposed modification has been supported by Council officers:

• The deletion of Condition 9 in relation to the modification of old consents in order to achieve consistency with this consent (DA10/0800). The proposed deletion of Condition 9 is not supported;

• The modification of Condition 16 which relates to commencement of works required by the Revised Saltmarsh Rehabilitation Plan. The proposed modification of Condition 16 is supported, subject to further amendments;

• The modification of Condition 18 with regard to the Asset Protection Zones. The proposed modification of Condition 18 is supported, subject to further amendments;

• The modification of Condition 21 in relation to the Cobaki Estate Affordable Housing Study. The proposed modification of Condition 21 is not supported;

• The modification of Condition 32 in relation to the maximum disturbed area. The proposed modification of Condition 32 is supported, subject to further amendments;

• The modification of Condition 46 with regard to the design requirements for playgrounds. The proposed modification of Condition 46 is supported;

• The modification of Condition 47 in relation to the maintenance period for grassing/revegetating the Central Open Space. The proposed modification of Condition 47 is not supported;

• The deletion of Condition 50 which relates to the existing consent conditions across the site. The proposed deletion of Condition 50 is not supported;

• The modification of Condition 51 in terms of the requirements of the Habitat Restoration Plans, including mechanism for funding. Components of the proposed modification of Condition 51 are supported, subject to further amendments;

• Proposed new Condition 51.1 relating to dedication of environmental protection land to Council. The proposed new Condition 51.1 is supported, subject to further amendments;

• The modification of Condition 54 with regard to the required details of the Bushfire Management Plan. The proposed modification of Condition 50 is not supported;

• The modification of Conditions 55 and 56 which relate to Asset Protection Zone certification. The proposed modification of Conditions 55 and 56 are supported;

• The modification of Condition 59 with regard to affordable housing requirements. The proposed modification of Condition 59 is supported;


• Proposed new Condition 60.1 with regard to the timing of an agreement with Council in terms of a mechanism to fund in perpetuity land not being dedicated to Council. The proposed new Condition 60.1 is not supported;

• The modification of Condition 68 in terms of the timing of the Construction Environmental Management Plan (CEMP). The proposed modification of Condition 68 is supported, subject to further amendments;

• The modification of Condition 100 in relation to requirements for discharged water from the site. The proposed modification of Condition 100 is supported, subject to further amendments;

• The modification of Condition 112 with regard to the timing of dedication of passive parks. The proposed modification of Condition 112 is supported;

• The modification of Condition 114 in terms of details regarding the maintenance bond for footpaths and cycleways. The proposed modification of Condition 114 is supported, subject to further amendments;

• The modification of Condition 115 in relation to details regarding the landscaping bond. The proposed modification of Condition 115 is supported, subject to further amendments;

• The modification of Condition 116 with regard to the cash bond/bank guarantee for the Site Regeneration and Revegetation Plan. The proposed modification of Condition 116 is supported, subject to further amendments;

• The modification of Condition 129 in terms of the staging of the dedication of the drainage reserve. The proposed modification of Condition 129 is supported;

• The modification of Condition 132 in relation to standard requirements for underground telephone supply. The proposed modification of Condition 132 is not supported;

• The modification of Condition 144 with regard to the embellishment of casual open space. The proposed modification of Condition 144 is supported, subject to further amendments;

• The deletion of Condition 145 which relates to the management and maintenance plan for Park 2. The proposed modification of Condition 145 is not supported;

• The modification of Condition 146 in terms of the length of the maintenance period for the public open space. The proposed modification of Condition 146 is not supported;

• The deletion of Condition 151 which relates to restrictions on title in terms of environmental restoration and protection. The proposed modification of Condition 51 is not supported;

• The deletion of Condition 154 which relates to an asset protection zone bond. The proposed modification of Condition 154 is not supported; and

• The modification of Condition 155 in relation to the Community Centre site. The proposed modification of Condition 155 is supported.

As noted previously, the applicant has accepted Council’s position on a number of the proposed modifications not being supported and they have also accepted a number of the proposed amendments recommended. A detailed assessment of each of the proposed modifications/deletions has been undertaken as noted later in this report.


SITE DIAGRAM:


PRECINCT 1 AND 2 PLAN


Considerations under Section 79c of the Environmental Planning and Assessment Act 1979: Proposed Modifications The proposed modifications are outlined below, together with the applicant’s justification and officer assessment. Condition 9 (Consent conditions) The applicant proposes to delete Condition 9 which currently reads as follows:

9. Prior to the issuing of a Construction Certificate under DA10/0800, all existing consents over the Cobaki Estate applicable to Precinct 1 & 2, must be modified where relevant, pursuant to Section 80A(1) of the EP&A Act 1979 (as amended) and Regulation, to be consistent with this consent.

Originally in October 2011, the applicant requested that Condition 9 be deleted and replaced with four specific conditions relating to relevant existing consents. The applicant was advised in May 2012 that because the site has a long history of approvals, the issue of compliance with old consents requires clarification to move forward with the proposed development. As such the proposed deletion of Condition 9 and inclusion of the four new conditions was opposed. The applicant confirmed in October 2013 that they accept Council’s position and that the original deletion is no longer being requested. As such Condition 9 remains in its current form and no further assessment is required. Condition 16 (Saltmarsh Rehabilitation Plan) The applicant proposes to modify condition 16 which currently reads as follows:

16. Evidence must be submitted to Council prior to the registration of any plan of residential subdivision, demonstrating that works have been undertaken in accordance with the Revised Saltmarsh Rehabilitation Plan by James Warren and Associates dated October 2010 and as specified with Condition 65 of MP08_0200.

It appears that the applicant may have misinterpreted the timing of this condition as being prior to the issue of a Construction Certificate, rather than the registration of any plan of residential subdivision. The applicant was advised in May 2012 that the proposed modification of Condition 16 was opposed. However, an alternative modification of Condition 16 was proposed by Council officers (amendments shown in bold):

16A. Evidence must be submitted to Council prior to the registration of any Plan of Residential Subdivision, demonstrating that works have been undertaken commenced in accordance with the Revised Saltmarsh Rehabilitation Plan by James Warren and Associates dated October 2010 and as specified within Condition 65 of MP08_0200.

The works are to be undertaken in accordance with the timing and responsibilities contained within the approved, Final Saltmarsh Rehabilitation Plan.

The applicant confirmed in October 2013 that they accept the abovementioned modification of Condition 16, as proposed. Condition 18 (Asset Protection Zones)


The applicant is seeking to modify Condition 18 which currently reads as follows: 18. The proponent must maintain Asset Protection Zones for Precinct 1 and 2 for a

period of five years from the date of the issue of the first subdivision certificate for Precinct 1 or 2. The APZs must be regularly slashed to ensure a reduced fuel zone and Council is to be notified on each occurrence. Council will audit APZs annually, prior to the bush fire danger period, to ensure APZs are compliant with Planning for Bush Fire Protection 2006 and in order to meet its reporting requirements under the Rural Fires Act 1997. If APZs are not compliant, the proponent must undertake the necessary works as directed by Council and within the timeframe specified by Council. An unconditional bond will be held in the favour of Council to be utilised in the event of non compliance with this condition. At the completion of the five year maintenance period the proponent will submit to Council evidence including financial records that the maintenance of the APZ is in accordance with the detailed APZ performance assessment and can be maintained with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate. Release of the bond will be dependant upon the performance of the carrying out the requirements of this condition.

The applicant refers to clause 80A(6)(c) of the Environmental Planning & Assessment (EP&A) Act, which reads:

(6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following: (a) making good any damage caused to any property of the consent authority

(or any property of the corporation) as a consequence of the doing of anything to which the consent relates,

(b) completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,

(c) remedying any defects in any such public work that arise within 6 months after the work is completed

Clause 80A(6)(c) specifies a time limit for holding of a security bond to remedy any defects that may occur to public works to six months (after the work is completed). The applicant argues that the condition requires a bond but does not specify the amount or the method of calculating the bond. The applicant acknowledges that the proposed asset protection zones are subject to an alternate solution and as part of rehabilitation works on other parts of the site, will maintain the Asset Protection Zones (APZ’s) for a period of three years (arguing that this is three times the normal requirement) and proposes the following modification:

“18A. The proponent must maintain Asset Protection Zones for Precinct 1 and 2 for a period of five three years from the date of the issue of the first subdivision certificate for Precinct 1 or 2. The APZs must be regularly slashed to ensure a reduced fuel zone and Council is to be notified on each occurrence. Council will audit APZs annually, prior to the bushfire danger period, to ensure APZs are compliant with Planning for Bushfire Protection 2006 and in order to meet its reporting requirements under the Rural Fires Act 1997. If APZs are not compliant, the proponent must undertake the necessary works as directed by Council and within the timeframe specified by Council. An unconditional bond to


the value of 5% of the fire trail cost will be held in the favour of Council to be utilised in the event of non-compliance with this condition.

At the completion of the five three year maintenance period the proponent will submit to Council evidence including financial records that the maintenance of the APZ is in accordance with the detailed APZ performance assessment and can be maintained with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate. Release of the bond will be dependent upon the performance of carrying out the requirements of this condition.”

A reduction in the maintenance period from five to three years is not supported. The reference to six months in clause 80A(6)(c) relates to defects to public works. This clause in the EP&A Act does not limit the ability of Council to condition an extended maintenance period for public works, nor require a security bond for such works. With regards to the proposed amendment as to how the bond should be calculated, this is generally agreed with but it should reference the whole of the APZ, not just the fire trail. In May 2012 Council officers recommended the following wording for Condition 18A (amendments shown in bold):

18A. The proponent must maintain Asset Protection Zones for Precinct 1 and 2 for a period of five years from the date of the issue of the first subdivision certificate for Precinct 1 or 2. The APZs must be regularly slashed to ensure a reduced fuel zone and Council is to be notified on each occurrence. Council will audit APZs annually, prior to the bushfire danger period, to ensure APZs are compliant with Planning for Bushfire Protection 2006 and in order to meet its reporting requirements under the Rural Fires Act 1997. If APZs are not compliant, the proponent must undertake the necessary works as directed by Council and within the timeframe specified by Council. An unconditional bond to the value of 5% of the Asset Protection Zone (including landscaping, fencing, earthworks and fire trail) cost will be held in the favour of Council to be utilised in the event of non-compliance with this condition. At the completion of the five year maintenance period the proponent will submit to Council evidence including financial records that the maintenance of the APZ is in accordance with the detailed APZ performance assessment and can be maintained with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate. Release of the bond will be dependent upon the performance of carrying out the requirements of this condition.

In October 2013 the applicant responded to the above rewording of Condition 18 advising of their acceptance of the rewording of the bond calculation method. However the applicant maintained their objection to the requirement of maintaining the APZ for a period of five years, claiming that three years is sufficient to establish the maintenance regime. The applicant proposes the inclusion of the word ‘work’ for abundant clarity and the removal of the need to provide records of the cost of maintenance, proposing the following (applicant amendments shown in bold):

“18A. The proponent must maintain Asset Protection Zones for Precinct 1 and 2 for a period of five 3 years from the date of the issue of the first subdivision certificate for Precinct 1 or 2. The APZs must be regularly slashed to ensure a reduced fuel zone and Council is to be notified on each occurrence. Council will audit APZs annually, prior to the bushfire danger period, to ensure APZs are compliant with Planning for Bushfire Protection 2006 and in order to meet its


reporting requirements under the Rural Fires Act 1997. If APZs are not compliant, the proponent must undertake the necessary works as directed by Council and within the timeframe specified by Council. An unconditional bond to the value of 5% of the Asset Protection Zone work (including landscaping, fencing, earthworks and fire trail) cost will be held in the favour of Council to be utilised in the event of non-compliance with this condition.

At the completion of the five year maintenance period the proponent will submit to Council evidence including financial records that the maintenance of the APZ is in accordance with the detailed APZ performance assessment and can be maintained with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate. Release of the bond will be at the completion of the 3 year maintenance period dependent upon the performance of carrying out the requirements of this condition.”

The proposed three year maintenance period is not supported as a five year period will ensure that Council has some rates income from the Precincts' prior to undertaking the costs of APZ maintenance and to limit the burden on the Shires other ratepayers and to ensure that the APZs design is workable. In terms of notification of each occurrence that slashing of the APZs has been undertaken it is noted there is no need to require financial records or detailed APZ performance assessment. However, it should be noted that Council will not only undertake an annual audit but may do random inspections at appropriate times e.g. extended dry periods when fire danger risk may be heightened. With regard to the proposed inclusion of the word ‘work’ in relation to the 5% bond criteria, it is considered that the inclusion adds ambiguity rather than clarification and as such is not supported. The second paragraph of the condition includes a requirement that Council needs proof that the APZs can be maintained with minimal resources in a cost effective manner without compromise of its function to the satisfaction of Council. The applicant proposes to delete this component of the condition. The deletion of this component is not opposed. The applicant was advised in December 2013 that the proposed three year maintenance period and the additional word ‘work’ are not supported. The applicant responded in January 2014, noting that they maintain that five years is an onerous maintenance period for the establishment of a grassed area and that they will…“reserve its rights in relation to this matter should Council insist on a five year maintenance period.” The applicant acknowledged that the inclusion of the word ‘work’ is not essential. In summary, the proposed three year maintenance period is not supported. The five year time frame is considered to be required to avoid placing an onerous burden on the entire Tweed community to fund maintenance works at Cobaki to the benefit of the land owner prior to the anticipated revenue increase related to take up of lots on the Estate, the speed of which cannot be predicted. As such the following amendments to Condition 18 are recommended by Council officers:

18A. The proponent must maintain Asset Protection Zones for Precinct 1 and 2 for a period of five years from the date of the issue of the first subdivision certificate for Precinct 1 or 2. The APZs must be regularly slashed to ensure a reduced fuel zone and Council is to be notified on each occurrence. Council will audit APZs annually, prior to the bushfire danger period, and at other times as appropriate


(e.g. when the risk of bushfire is high), to ensure APZs are compliant with Planning for Bushfire Protection 2006 and in order to meet its reporting requirements under the Rural Fires Act 1997. If APZs are not compliant, the proponent must undertake the necessary works as directed by Council and within the timeframe specified by Council. An unconditional bond to the value of 5% of the Asset Protection Zone (including landscaping, fencing, earthworks and fire trail) cost will be held in the favour of Council to be utilised in the event of non-compliance with this condition.

At the completion of the five year maintenance period the proponent will submit to Council evidence including financial records that the maintenance of the APZ is in accordance with the detailed APZ performance assessment and can be maintained with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate. Release of the bond will be at the completion of the five year maintenance period dependent upon the performance of carrying out the requirements of this condition.

Condition 21 (Affordable Housing Study) The applicant is seeking to modify condition 21 which currently reads as follows:

21. The recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd. by Hill PDA and dated November 2010 is to be undertaken.

The Affordable Housing Strategy was required through Concept Plan approval requirement C11. The applicant states: “the strategy to provide affordable rental housing within the Cobaki Estate is not mandatory under the Concept Plan conditions, but it is conditional upon the approval of NRAS funding or equivalent, in order to make the concept financially viable. Council will note that the Affordable Housing Strategy includes the following statement. 'In this regard it is important to note that should Leda Manorstead not be successful in achieving NRAS funding for the provision of affordable housing dwellings, it may not be reasonable to assist upon their provision at sub market rent or value for reasons of financial viability. At this preliminary stage of the project there is insufficient detail available for Hill PDA to test this position using a development feasibility model.' "

The applicant goes on to assert that Condition 21 does not recognise this important element of the Strategy, which has substantial impact upon the viability of the proposal and requests the following modification to Condition 21 (amendments shown in bold):

“21A. Subject to the successful application for NRAS funding, the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Ply Ltd by Hill PDA and dated November 2010 is to be undertaken.”

The Hill PDA Affordable Housing Study has been reviewed by Council officers with the following advice provided to the applicant in May 2012:

“Council is of the opinion that the requested amendment to the two related conditions (21 and 59 regarding affordable housing) would appear to weaken the commitment recommended in the Hill PDA Nov 2010 Cobaki Estate Affordable Housing Study. Among other things the Hill PDA Study commits to “NRAS funding or the equivalent” and Leda Manorstead using their “best endeavours”. As such, Council objects to the proposed modification of Condition 21.”


Correspondence submitted by the applicant in October 2013 accepts Council’s position in terms of Condition 21. As such Condition 21 remains in its current form and no further assessment is required. Condition 32 (Maximum disturbed area) The applicant is seeking to modify Condition 32 which currently reads as follows:

32. Prior to the issue of a Construction Certificate for civil works the following detail in accordance with Councils Development Design and Construction Specifications shall be submitted to the Principal Certifying Authority for approval. (a) copies of compliance certificates relied upon (b) four (4) copies of detailed engineering plans and specifications. The

detailed plans shall include but are not limited to the following:

• Earthworks




o The maximum disturbed area (that has not been permanently vegetated) at any time shall not exceed 5ha.

• Roadworks/furnishings

o Providing road profiles complying with Council’s Design Specification D1 – Road Design, unless approved otherwise by Council.

• Stormwater drainage

• Water supply works


• Sewerage works

o In general accordance with Yeats Consulting Engineers - Master Sewer Reticulation Plan Revision C, unless modified otherwise by the conditions of this Consent.

• Landscaping works

• Sedimentation and erosion management plans

• Location of all service conduits (water, sewer, electricity supply and telecommunication infrastructure)

The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Management Act 2000 and Section 138 of the Roads Act to be certified by an Accredited Certifier.


The applicant is seeking to modify the limitation on disturbing only 5 hectares at a time as it is considered “unreasonable” and proposes the deletion of the five hectare requirement. Initially Council provided to the applicant in May 2012 acceptance of the proposed modification, as ultimately the development needs to comply with the requirements of D7 and Council’s Engineers would be on site for the majority of the development period to ensure compliance. These initial comments were made when Council was the certifying authority for the development. Following the withdrawal of the Construction Certificate from Council and the use of a Private Certifier who is responsible for inspecting the site, and only visiting the site once every two weeks, the applicant was advised in December 2013 that the proposed deletion of Condition 32 was no longer supported. The applicant responded in January 2014, noting the following:

“Further to Council’s intention to limit the extent of any disposed area in an earthworks operations exercise to 5Ha in area Leda make the following points:

• Both Precincts 1 and 2 are currently heavily disturbed with exposed areas far in excess of 5Ha;

• A 5Ha limit makes a cut to fill earthworks operation in these precincts inefficient and impractical when the volumes of material and length of leads (haulage distances) are considered;

• A detailed sediment and erosion control management regime has been successfully implemented for the Central Open Space Corridor and it is proposed that a similar system is established for these precincts; and

• Even though a Private Certifier only inspects the site on a fortnightly basis, Leda’s engineering consultants, Sedgman Yeats, are working directly under his instruction and carry out additional inspections at a greater frequency. Sedgman Yeats are effectively the certifiers eyes and ears on the ground and are able to attend site and respond to both the certifier’s and Council Officers’ requests as and when needed. As such there is no lesser control of the construction activities due to the involvement of the Private Certifier than is the case for developments where Council is the certifying authority.

For the above reasons and since Council’s comments discriminate against the use of Private Certification Leda maintains the original request to delete Condition 32.”

The proposal to delete the requirement of Condition 32 to limit exposed areas to 5ha is not supported. The success of the applicant’s "Sediment and Erosion Control Management" is not valid as the site has not yet been subjected to significant rain events to test the proposed regime. Given that dust management on the subject site (with particular regard to Precinct 1 and 2) in relation to current earthworks (associated with the Central Open Space approval) has been a continuing problem resulting in Council receiving several dust complaints from nearby residents, it is not considered to be acceptable to allow additional land to be "opened up" with no maximum limit in place. It is noted that Planning and Infrastructure’s (former NSW Department of Planning and Infrastructure) Project Approval for the Central Open Space corridor limits the maximum exposed areas with the following condition of consent:

21A(b) Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of


5Ha at any time to reduce exposed areas, unless otherwise approved by the Director-General.

As such, it is considered reasonable to modify Condition 32 in a similar fashion, as recommended below (amendment shown in bold). This will effectively allow a certain degree of flexibility for the applicant if they can provide a plan to Council showing the proposed extent of maximum exposed areas for Precinct 1 and 2.

32A. Prior to the issue of a Construction Certificate for civil works the following detail in accordance with Councils Development Design and Construction Specifications shall be submitted to the Principal Certifying Authority for approval. (a) copies of compliance certificates relied upon (b) four (4) copies of detailed engineering plans and specifications. The


• Earthworks










• Sewerage works







Condition 46 (Playgrounds) The applicant is seeking to modify condition 46 which currently reads as follows:

46. Any playgrounds provided must comply with the guidelines established in the ‘Playground Audit for Tweed Shire Council’ (July 2009). Appendix 3 of this establishes a procedure for assessing nearby hazards and mitigation measures. New subdivisions approved after development of these guidelines must ensure no playground facility has a Facility Risk Rating exceeding 13 as defined in Table 3A7 of that document, unless otherwise approved by the General Manager or delegate.

The applicant states that this condition cannot be achieved without modifying the approved lot layout and request that the following condition is imposed instead:

“46A. Any playgrounds provided must comply with the guidelines established in the Playground Audit for Tweed Shire Council (July 2009). Appendix 3 of this establishes the procedure for assessing nearby hazards and mitigation measures. New subdivisions approved after development of these guidelines must ensure no playground facility has a Facility Risk Rating exceeding 13 as defined in Table 3A7 of that document, unless otherwise approved by the General Manager or delegate. The proposed open space areas for this stage as identified in Planit Consulting Drawing Set Dated March 2011 shall be designed to minimise the hazards to designated playground areas consistent with those mitigating features identified in Appendix 3A7 of the Playground Audit for Tweed Shire Council (July 2009). Detailed drawings and reporting outlining mitigation measures to be employed to mitigate risk are to be submitted for approval by the General Manager or his delegate. In proposing mitigation measures consideration of long term maintenance costs shall be considered and evaluated in any reporting.”

In this instance, it is considered that the proposed modification of Condition 46 is acceptable. The narrow nature of park 2 (Precinct 1) located between the central drain and roadway, and incorporating the restrictive ‘vegetation covenant area’ appears to make it impossible to achieve the desired safe distance from play equipment to water holding areas. Given it is now impossible to achieve the safety levels required by Council, mitigation measures may in this instance be undertaken. Note - this is a cooperative approach by Council to assist the developer in overcoming initial design problems. The developer has been advised that playgrounds and park design in future stages must meet the minimum requirements rather than depend on mitigation measures. Condition 47 (Grassing/Revegetation of the Central Open Space) The applicant is seeking to modify condition 47 which currently reads as follows:

47. Further consideration is required regarding the grassing or revegetation of the central drain, and the two northern branches of this drain. A consultant skilled in natural area as well as landscape design is to assess the options available and, with particular reference to minimising maintenance requirements and weed incursion, recommend an appropriate planting plan. The plan is to be prepared to


the satisfaction of the General Manager or his delegate and incorporated into the amended landscape plans for the public open space. Areas identified for planting or regeneration will require a 3 year maintenance period, and areas to be grassed will require 12 months maintenance after the Subdivision is registered with the Land Titles Office.

The applicants proposal again references clause 80A(6)(c) of the EP&A Act and states that they are willing to accept a three year maintenance period for environmental areas (pursuant to approved ecological reports and management plans accompanying the concept plan) but considers the maintenance period for the grassed areas should be…“subject to the normal statutory limits applying to maintenance bonds for the work”. Accordingly, the applicant proposed the following modification to Condition 47:

“47A. Further consideration is required regarding the grassing or revegetation of the central drain, and the two northern branches of this drain. A consultant skilled in natural area as well as landscape design is to assess the options available and, with particular reference to minimising maintenance requirements and weed incursion, recommend an appropriate planting plan. The plan is to be prepared to the satisfaction of the General Manager or his delegate and incorporated into the amended landscape plans for the public open space. Areas identified for planting or regeneration will require a 3 year maintenance period, and areas to be grassed will require 12 6 months maintenance after the Subdivision is registered with the Land Titles Office.

The applicant was advised in May 2012 that it was not agreed that clause 80A(6)(c) relates to maintenance bonds, but relates only to defects to public work and that the proposed modification to six months is not supported. Correspondence submitted by the applicant in October 2013 accepts Council’s position in terms of Condition 47. As such Condition 47 remains in its current form and no further assessment is required. Condition 50 (Consent Conditions) The applicant is seeking to delete Condition 50 which currently reads as follows:

50. In accordance with Condition C18 of Concept Plan MP06_0316, a detailed description is to be provided to the satisfaction of the General Manager or delegate demonstrating compliance with previous Tweed Shire Council consent conditions intended to preserve wildlife corridors and protect and offset threatened species, populations and ecological communities and their habitats outside of the Concept Plan habitat requirements, or relevant reasons (such as subsequent amendments) as to why compliance was not required or may be transferred to current DAs. Such description is to include extracts of all relevant plans referred to in the conditions listed below sufficient to understand the land areas of relevance to the conditions and any overlap with current applications. Additional offset must be proposed if clearing of native vegetation has been undertaken not in accordance with the below development consents. Conditions to be addressed are as follows: (a) D94/0438.04 Conditions 23, 24, 34a, 35, 36a, 37 and 38. (b) K99/1124.06 Conditions 10, 15A, 30, 31, 41, 81, 83A, 90, 91, 92A, 93, 94A,

95A, 96, 97, 98, 99, 100, 101, 102A, 103, 104, 105, 106, 107, 108, 109 and Schedule B (National Parks imposed conditions via concurrence for Species Impact Statement.


(c) 1262/2001DA.02 Condition 9, 16, 17, 18. Where required the development consents are to be modified in accordance with Section 80A(1) of the Environmental Planning and Assessment Act and Regulations to be consistent with this consent.

The applicant is seeking to delete condition 50 and argues that this condition is…“seeking to enforce unrelated development consents for subdivision (K99/1124 and 1262/2001) that will not be implemented to completion, do not relate to the area affected by the proposed development and which are inconsistent with the Concept Plan Approval”. The applicant goes on to assert that no further work is to be undertaken in accordance with the old bulk earthworks consent D94/438 and asserts that the item A4(2) of the Minister’s Concept Plan Approval will prevail to the extent of any inconsistency. As discussed above in relation to Condition 9, the applicant was advised in May 2012 that that because the site has a long history of approvals, the issue of compliance with old consents requires clarification to move forward with the proposed development. As such the proposed deletion of Condition 50 was opposed. The applicant confirmed in October 2013 that they accept Council’s position. As such Condition 50 remains in its current form and no further assessment is required. It should also be noted that the applicant has submitted a compliance report in relation to the provisions of Condition 50 of DA10/0800. The documentation is currently being assessed in light of previous unlawful works within Precinct 1 and 2 (Northern Hillside). The results of the final assessment will be reported to Council at a later date. Condition 51 (Habitat Restoration Plans) The applicant is seeking to modify condition 51 which currently reads as follows:

51. One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council in accordance with Council’s draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 1, 2, 3, 4 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the subdivision plan (that is, other than as a an environmental protection area such as park or drainage reserve lots), additional EEC and habitat offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken. (b) a statement of commitment by the consent holder to funding the proposed

works for a minimum 5 year period. (c) a statement of commitment by the consent holder that the works will be

completed by qualified and experienced bush regeneration personnel. (d) a mechanism to fund in perpetuity the ongoing maintenance of the

environmental protection land not proposed to be dedicated to Council.


The applicant has a concern with the maintenance period of five years, the approval authority of the detailed Habitat Restoration Plans and parts of Management Area 2 which are to be rehabilitated, as well as funding in perpetuity of the environmental protection land not proposed to be dedicated to Council. The applicant asserts that the regeneration areas are to be maintained for three years (as per the Ecological Reports and Management Plans accompanied the Concept Plan) and Condition C4 of the Concept Plan states that DECCW is the relevant approval authority of the detailed plans. Furthermore, the applicant states that funding of works to comply with a condition of consent on private land is…“not a matter for Council to be involved in and the requirement to fund the maintenance in perpetuity is onerous and unprecedented.” The applicant asserts that a more logical approach would be for Council to use its power under the EP&A Act to ensure compliance with consent conditions. Accordingly, the applicant proposed the following modification to Condition 51:

“51A One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council DECCW in accordance with Council's draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 1, 3, 4, and 13 and part of Management Area 2 (which is nominally of 50m width adjacent to Precinct 2 and to the south of the gravel access track between Precincts 2 and 4) of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the Subdivision Plan (that is, other than as an environmental protection area such as park or drainage reserve lots), additional EEC and habit offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include:

(a) a schedule and timing of works to be undertaken. (b) a statement of commitment by the consent holder to funding the

proposed works for a minimum 5 3 year period. (c) a statement of commitment by the consent holder that the works will



(d) a statement of commitment that any environmental protection land that is not proposed to be dedicated to Council is to be maintained to a reasonable standard by the landowner.”

The intent of the applied condition was to ensure that environmental protection lands were restored in a timely manner in accordance with approved plans and that these lands are managed for conservation outcomes in perpetuity.


The applicant was advised in May 2012 of the following: “Condition 51 requires Habitat Restoration plans for Management Areas 1, 2, 3, 4 and 13, and that such plans must include funding for a minimum 5 year period and provide a mechanism to fund in perpetuity. Council reads the wording of the approved James Warren Plan as 2-3 years to achieve canopy closure, then an additional three years of maintenance after canopy closure. Also, Council guidelines have been accepted and specify minimum 5 years. The intent of the applied condition was to ensure that the land parcels which were earmarked for protection or offset at the Concept Plan stage were restored in a timely manner and managed for conservation outcomes in perpetuity. The manner in which this outcome is achieved is open to negotiation, so long as a reasonable degree of certainty can be gained from such negotiation. No such certainty is yet available. As such, Council objects to the proposed modification of Condition 51.”

Correspondence was submitted by the applicant in October 2013, noting that the habitat restoration areas are to be dedicated to Council and that there is no power under the EP&A Act to require ‘maintenance’ other than defects liability, which is limited to 6 months. Notwithstanding this, the applicant has given an undertaking to revegetate/remediate the management areas until all agreed completion criteria are met in accordance with the Site Regeneration and Rehabilitation Plan (SRRP). The applicant also noted that the proposed funding in perpetuity is "…not authorised under a Section 94 Plan and would be beyond the scope of Section 94 (as it would relate to maintenance rather than capital cost of establishment). It is also beyond the scope of Section 80A of the Environmental Planning and Assessment Act. Therefore there is no power in the Environmental Planning and Assessment Act, 1979 (as amended) for Council to lawfully impose such a condition.” Accordingly, the applicant proposed the following revised modification of Condition 51:

“51A One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council in accordance with Council's draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 1, 3, 4, 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the Subdivision Plan (that is, other than as an environmental protection area such as park or drainage reserve lots), additional EEC and habit offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken.

(b) a statement of commitment by the consent holder to funding the proposed works for a minimum 5 year period.

(b) a s ta tement of commitment by the cons ent ho lde r to mainta in the works until the re levant pe rformance c rite ria of the S ite Regenera tion and Rehabilita tion P lan a re achieved .


(c) a statement of commitment by the consent holder that the works will be completed by qualified and experienced bush regeneration personnel.


The applicant also advised that they intend to offer to dedicate the environmental protection land to Council following rehabilitation in accordance with the endorsed Management Plans, proposing the following new Condition 51B:

“51B Following the successful rehabilitation of Management Areas 1, 3, 4, 13 and part of Management Area 2 (which is nominally of 50m width adjacent to Precinct 2 and to the south of the gravel access track between Precincts 2 and 4) of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2013, the landowner shall offer to dedicate that land to Council in accordance with Tweed Section 94 Plan No. 10.”

The applicant was advised in December 2013 that the proposed modification of Condition 51 to delete the requirement for a funding mechanism is not supported. In addition the applicant was advised that the proposed new condition regarding the dedication of environmental land was under consideration, noting that a map delineating the proposed staging of management areas to be dedicated to Council (linked to each precinct) is required. Correspondence submitted by the applicant in January 2014 noted that the ‘funding in perpetuity’ issue is not able to be agreed at this point. While the applicant reserved the right to further challenge the matter, as a "…practical interim measure and so that the matter does not unduly prevent the issue of a Construction Certificate” the applicant requested that the funding in perpetuity issue be deferred until the Subdivision Certificate stage, asserting that the "…implementation and finalisation of the funding mechanism is not required until such time as the rehabilitation works have been undertaken, which is well after Subdivision certificate stage.” As a result, the applicant has proposed the following revised modification of Condition 51:

“51A One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council in accordance with Council's draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 1, 3, 4, 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 April 2013 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the Subdivision Plan (that is, other than as an environmental protection area such as park or drainage reserve lots), additional EEC and habit offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken.






In response to Council comments in relation to the proposed new Condition 51B, the applicant noted that the proposed areas to be dedicated are the same areas to be rehabilitated as shown on the approved application plans and detailed in the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated April 2013. As such, the applicant suggests that no staging plan is required. In terms of the proposed new Condition 51B (which is now being called new Condition 51.1) it should be noted that there is no objection to the offer of land dedication, although it is not considered necessary to condition such dedication. However, should a condition be required, the following wording of new Condition 51.1 is recommended:

51.1 Following the successful rehabilitation of Management Areas 1, 2, 3, 4, 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2013, the landowner shall offer to dedicate that land to Council.

In addition to the above, the applicant proposed the following new Condition 156: “156. Prior to the issue of a Subdivision Certificate the proponent must reach an

agreement with Council regarding a mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council.”

Following the 30 January 2014 Council workshop attended by Council officers and Leda representatives to discuss the issue of funding for the environmental land, the applicant submitted further correspondence in February 2014. It was acknowledged that concept of deferring the funding in perpetuity issue was not preferred by Council officers on the basis of "…potential delays to the issuing of a Subdivision Certificate could result if the matter was not resolved prior to that stage.” As an alternative, the applicant now proposes to a deferment of the funding in perpetuity issue to prior to the issue of a Construction Certificate for Civil Works, to "…allow the matter to be separated from the immediate need to obtain a construction certificate for Bulk Earthworks so that works may progress on the site.” This results in a new Condition 60.1 being proposed by the applicant as noted below. There are no further changes to the modifications noted above to Condition 51 (as requested by the applicant in January 2014).

“60.1 Prior to the issue of a Construction Certificate for Civil Work the proponent must reach an agreement with Council regarding a mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council.”


For the purposes of clarity, the applicant has noted that if the proposed new Condition 60.1 is adopted then the previously requested new Condition 156 would no longer be required. The applicant’s proposed modification of clause (b) in Condition 51 is considered to align more closely with the current wording of the SRRP and is considered acceptable subject to the following recommended amendments (shown in bold):

b) a statement of commitment by the consent holder to maintain the works until the relevant performance criteria of the Site Regeneration and Revegetation Plan are achieved and until such time as an agreement is reached with Council regarding the dedication of that land.

With regard to the proposed deletion of the funding mechanism in Clause (d) of Condition 51, it should be noted that the Concept Approval to carry out the project was determined according to the requirement to:

• Ensure adequate mitigation of environmental impacts of future development, and

• Ensure protection and restoration of threatened species and their habitat. This necessitates both immediate and ongoing management of the proposed environmental lands in the face of ongoing pressures from the development. Restoration and management of these lands is proposed by the applicant as the key mechanism for mitigating the impacts of removal of threatened species habitat and Endangered Ecological Communities from the site. It is appropriate that the mechanism for ensuring that management continues in perpetuity needs to be determined prior to the time that the major impact occurs, which is at the Bulk Earthworks stage. At the time of writing of the original condition, it was understood that the applicant was to retain the environmental protection land. The applicant now proposes to offer dedication of the environmental protection areas to Council once the performance criteria in the SRRP are reached. The offer of dedication is not opposed, provided the cost burden of management of these lands does not fall on existing ratepayers whether or not these lands are dedicated to Council. The proposed new Condition 60.1 is not supported in the form proposed by the applicant. The proposed deferment of the agreement to prior to Civil Earthworks Construction Certificate is not considered to be appropriate and should be resolved prior to Bulk Earthwork Construction Certificate. This outcome is essentially the same as that required under the current provisions of clause (d) of Condition 51. As such, the new Condition 60.1 is not considered to be necessary and the deletion of clause (d) from Condition 51 is not considered to be acceptable. If however, it should be determined that clause (d) is to be deleted, it is highly recommended that Condition 60.1 be approved with the following amendments shown in bold:

60.1 Prior to the issue of a Construction Certificate for Bulk Earthworks the proponent must reach an agreement with Council regarding a mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council.

The proposed amendment of the date of the Revised Site Regeneration and Revegetation Plan to the most recent version (April 2013) is not opposed. For the purposes of clarity, the following wording of Condition 51 is recommended:

51A One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council in accordance with Council's draft guidelines (attached), and


in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 1, 3, 4, 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 April 2013 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the Subdivision Plan (that is, other than as an environmental protection area such as park or drainage reserve lots), additional EEC and habit offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken.


(b) a s ta tement of commitment by the cons ent ho lde r to mainta in the works until the re levant pe rformance c rite ria of the S ite Regenera tion and Revege ta tion P lan a re achieved and until such time as an agreement is reached with Council regarding the dedication of that land.



Condition 54 (Bushfire Management Plan) The applicant is seeking to modify Condition 54 which currently reads as follows:

54. A detailed Bushfire Management Plan must be provided and approved by Council which demonstrates compliance with Planning for Bushfire Protection Guidelines 2006 or provides alternate solutions acceptable to Council and sufficient to ensure protection to life, property and environmental areas. The plan must illustrate that compliance with the following specific matters can be achieved or acceptable alternate solutions agreed with Council: a. All slopes/batters within Precinct 1 and 2 APZs must be less than 18

degrees to ensure APZ maintenance is practical, soil stability is not compromised and the potential for crown fires negated.

b. The 20m wide APZ, excluding the fire trail, is to be grassed or turfed. No trees or shrubs or tussock forming species are to be planted within the 20m wide APZ.

c. Native trees, shrubs and groundcovers may be planted beyond the surveyed and marked 20m wide APZ to provide a buffer to environmental protection areas. Information on plant species, densities and maintenance must be included within the site specific buffer management plan for Precinct 1 and 2.


d. All fire trails must have a minimum width of four metres, with an additional one metre wide cleared area on each side of the trail.

e. All fire trails must have a maximum grade of 15 degrees if sealed and not more than 10 degrees if unsealed. The crossfall of all fire trails must not be more than 10 degrees.

f. All fire trails must have a minimum vertical clearance of four metres to any overhanging obstructions.

g. Reversing bays along all fire trails must be six metres wide and eight metres deep to any gates and with an inner minimum turning radius of six metres and outer minimum radius of 12 metres.

h. All fire trails must be connected to the property access road and/or through road system at intervals of 200m or less.

i. All fire trails must be gated and locked. Gates must be a minimum of 4m wide and must be locked with a key/lock system authorised by Council.

j. Fire trails are not to be promoted/formally used as an "off-road bike trail" as specified in the Planit Consulting "Cobaki Overall Connectivity Network Plan". Informal recreational use of fire trails is acceptable (i.e. walking/bike-riding).

k. All roads, including laneways, must comply with the minimum width and turning circle dimensions as detailed in Table 4.1 of Planning for Bushfire Protection 2006.

l. All roads, including laneways, must not have a crossfall exceeding 3 degrees and must have a maximum grade of 15 degrees.

m. Curves of all roads must have a minimum inner radius of six metres and curves must be minimal in number, to allow for rapid access and egress.

n. All roads, including laneways, must have a minimum vertical clearance to a height of four metres above the road.

o. All dead end roads (shown as road no. 4 and 17 on Yeats drawing YC0229-2M5-D03) must not be more than 200 metres in length and must incorporate a minimum 12 metre outer radius turning circle and must be clearly signposted as a dead end road and direct traffic away from the hazard.

p. Fire hydrant spacing, sizing and pressures must comply with AS 2419.1 - 2005.

q. Fire hydrants must not be located within any road carriageway and must be located outside of parking bays to ensure accessibility to reticulated water for fire suppression.

r. A Monitoring and Fuel Management Program for asset protection zone maintenance in Precinct 1 and 2 must be prepared by the proponent and approved by Council.

The applicant asserts that these matters are contained in Planning for Bushfire Protection Guidelines and that there is no need to reproduce them in a condition. The applicant also states that the ‘off-road bike trail’ relates to riding push bikes. The applicant proposed to simplify this condition by providing the following modifications to Condition 54 as follows (i.e. deletion of the specific matters needing compliance or acceptable alternate solutions agreed with Council):


“54A. A detailed Bushfire Management Plan must be provided and approved by Council which demonstrates compliance with Planning for Bushfire Protection Guidelines 2006 or provides alternate solutions acceptable to Council and sufficient to ensure protection to life, property and environmental areas.”

The applicant was advised in May 2012 that the condition is not interpreted in a prescriptive way as includes the following statement…“or alternate solutions agreed with Council”. Therefore, the proposed modification to Condition 54 is not supported. Correspondence submitted by the applicant in October 2013 accepts Council’s position in terms of Condition 54. As such Condition 54 remains in its current form and no further assessment is required. Condition 55 (Asset Protection Zone - BPAD Certification) The applicant is seeking to modify Condition 55 which currently reads as follows:

55. Asset Protection Zones for Precinct 1 and 2 must be compliant with the acceptable solutions for bush fire protection measures for residential subdivisions as outlined in Section 4.1.3 of Planning for Bush Fire Protection 2006. If APZs are not compliant with acceptable solutions as per Section 4.1.3 of Planning for Bush Fire Protection 2006, then as per the guidelines a detailed performance assessment must be prepared by a Bushfire Planning and Design Certified Practitioner (BPAD) accredited under the Fire Protection Association of Australia and submitted to Council for approval. The performance assessment must include a detailed assessment and demonstration that the APZ can be maintained in the long term with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate.

The applicant argues that “the statement that the APZs must comply with the acceptable solutions under Planning for Bush Fire Protection 2006 is out of context with the balance of the condition.” The applicant also argues that alternate solutions are to be undertaken by BPAD-A accredited practitioners and request the following modification:

“55A. Where practical, Asset Protection Zones for Precinct 1 and 2 must be compliant should achieve compliance with the acceptable solutions for bush fire protection measures for residential subdivisions as outlined in Section 4.1.3 of Planning for Bush Fire Protection 2006. If APZs are not compliant Where it is not practical for APZs to comply with acceptable solutions as per Section 4.1.3 of Planning for Bush Fire Protection 2006, then as per the guidelines a detailed performance assessment must be prepared by a Bushfire Planning and Design Certified Practitioner (BPAD-A) accredited under the Fire Protection Association of Australia and submitted to Council for approval. The performance assessment must include a detailed assessment and demonstration that the APZ can be maintained in the long term with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate.”

The applicant was advised in May 2012 that the proposed inclusion of the term “where practical” was not supported. The APZ must comply with the guidelines. However, the proposed modification in terms of BPAD certification was supported. It was acknowledged that the guidelines provide both deemed to satisfy and alternate solutions. If alternate solutions are sought, they still need to comply with the NSW RFS


guidelines and obtain certification from a BPAD-A Certifier. The following modification was proposed (amendments shown in bold):

55A. Asset Protection Zones for Precinct 1 and 2 must be compliant with the acceptable solutions for bush fire protection measures for residential subdivisions as outlined in Section 4.1.3 of Planning for Bush Fire Protection 2006. If APZs are not compliant with acceptable solutions as per Section 4.1.3 of Planning for Bush Fire Protection 2006, then as per the guidelines a detailed performance assessment must be prepared by a Bushfire Planning and Design Certified Practitioner (BPAD-A) accredited under the Fire Protection Association of Australia and submitted to Council for approval. The performance assessment must include a detailed assessment and demonstration that the APZ can be maintained in the long term with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate.

In October 2013 the applicant responded to the above rewording of Condition 55 advising of their concern regarding the inconsistencies of the awkwardly worded condition. They proposed to correct the inconsistency by way of removing the words “acceptable solutions” from the first sentence:

“55A. Asset Protection Zones for Precinct 1 and 2 must be compliant with the acceptable solutions for bush fire protection measures for residential subdivisions as outlined in Section 4.1.3 of Planning for Bush Fire Protection 2006. If APZs are not compliant with acceptable solutions as per Section 4.1.3 of Planning for Bush Fire Protection 2006, then as per the guidelines a detailed performance assessment must be prepared by a Bushfire Planning and Design Certified Practitioner (BPAD-A) accredited under the Fire Protection Association of Australia and submitted to Council for approval. The performance assessment must include a detailed assessment and demonstration that the APZ can be maintained in the long term with minimal resources in a cost effective manner without compromise of its function to the satisfaction of the General Manager or delegate.”

The applicant’s latest proposed modification of Condition 55 is now supported, as shown above. Condition 56 (BPAD Certification) The applicant is seeking to modify condition 56 which reads as follows:

56. The Plans lodged for Construction Certificate must be certified by a Bushfire Planning and Design Certified Practitioner (BPAD) accredited under the Fire Protection Association of Australia as compliant with Planning for Bush Fire Protection 2006.

The applicant considers this condition to be ambiguous as Condition 55 and 56 describe and invite alternate solutions. The applicant proposes the following alternate condition (amendments shown in bold):

“56A. The Plans lodged for Construction Certificate must be certified by a Bushfire Planning and Design Certified Practitioner (BPAD-A) accredited under the Fire Protection Association of Australia as compliant with Planning for Bushfire Protection Guidelines 2006 or the alternate solutions approved by Council under Conditions 54 and 55.”


The proposed changes are not seen as necessary, however if the applicant wants to limit their allowed Certifiers to only BPAD-A (who can certify both deemed to satisfy and alternate solutions) instead of BPAD-D who can only certify deemed to satisfy solutions, then no objection is raised. As such, the proposed modification of Condition 56 is supported. Condition 59 (Affordable Housing Study) The applicant is seeking to modify condition 59 which currently reads:

59. A staging plan detailing the location, mix and type of dwellings to be provided as affordable rental accommodation is to be submitted to Council in accordance with the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd. by Hill PDA and dated November 2010.

The applicant asserts that the strategy to provide affordable rental housing within the Cobaki Estate is not mandatory under the Concept Plan conditions, but is conditional upon the approval of NRAS funding. The applicant refers to the following statement from the affordable rental strategy as justification to modify this condition:

“In this regard it is important to note that should Leda Manorstead not be successful in achieving NRAS funding for the provision of affordable housing dwellings, it may not be reasonable to insist upon their provision at sub market rent or value for reasons of financial viability. At this preliminary stage of the project there is insufficient detail available for Hill PDA to test this position using a development feasibility model.”

The applicant proposes the following modification of Condition 59 (amendments shown in bold):

“59A. Subject to the successful application for NRAS funding, a Staging Plan detailing the location, mix and type of dwellings to be provided as affordable rental accommodation is to be submitted to Council in accordance with the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd by Hill PDA and dated November 2010.”

As noted for Condition 21, The Hill PDA Affordable Housing Study was reviewed by Council officers with applicant being advised in May 2012 that no change to the wording of Condition 59 is supported as the Hill PDA Study commits to “NRAS funding or the equivalent” and Leda Manorstead using their “best endeavours”. As such, the proposed modification of Condition 59 is not supported. In October 2013 the applicant responded by way of suggesting additional clarification so that there is no misconception as to when an affordable housing plan is required. The following amendment to Condition 59 was proposed by the applicant (amendments shown in bold):

“59A. Should, following the proponent’s best endeavours, NRAS (or equivalent) funding be available to provide affordable housing within the development in accordance with the approved Cobaki Estate Affordable Housing Study, a staging plan detailing the location, mix and type of dwellings to be provided as affordable rental accommodation is to be submitted to Council in accordance with the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd. by Hill PDA and dated November 2010.”

The proposed modification provides an acceptable outcome in terms of the applicant using their ‘best endeavours’ to deliver an NRAS program. As such, the applicant’s latest proposed modification of Condition 59, as shown above, is supported.


Condition 68 (CEMP) The applicant is seeking to modify condition 68 which currently reads as follows:

68. Prior to the commencement of construction works a Construction Environmental Management Plan (CEMP) must be prepared that covers the area of works. The CEMP shall be consistent with the Guideline for the Preparation of Environmental Management Plans (DIPNR, 2004). The CEMP shall include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the proposal during construction. The CEMP must include, but not be limited to all matters specified within Condition 25 of Project Application MP08_0200 and be submitted to and approved by the PCA no later than one month prior to commencement of construction, or within such period otherwise agreed by the General Manager or delegate.

The applicant asserts that the requirement for approval of the CEMP one month prior to commencement is an anomaly and may potentially delay commencement of works. The following modification is recommended by the applicant:

“68A Prior to the commencement of construction works a Construction Environmental Management Plan (CEMP) must be prepared that covers the area of works. The CEMP shall be consistent with the Guideline for the Preparation of Environmental Management Plans (DIPNR, 2004). The CEMP shall include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the proposal during construction. The CEMP must include, but not be limited to all matters specified within Condition 25 of Project Application MP08_0200 and be submitted to and approved for approval by the PCA no later than one month prior to commencement of construction, or within such period otherwise agreed by the General Manager or delegate.”

The applicant was advised in May 2012 that the proposed modification of Condition 68 is not supported as CEMP’s generally have pre-construction recommendations. It was noted that the applicant’s request to remove the reference of “no later than one month” is supported, as it is the responsibility of the developer to manage the project to ensure that all Prior to Commencement of Works (PCW) matters are addressed prior to the commencement of works. As such, the following modification is recommended (amendments shown in bold):

68A. Prior to the commencement of construction works a Construction Environmental Management Plan (CEMP) must be prepared that covers the area of works. The CEMP shall be consistent with the Guideline for the Preparation of Environmental Management Plans (DIPNR, 2004). The CEMP shall include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the proposal during construction. The CEMP must include, but not be limited to all matters specified within Condition 25 of Project Application MP08_0200 and be submitted to and approved by the PCA no later than one month prior to commencement of construction, or within such period otherwise agreed by the General Manager or delegate.

The applicant confirmed in October 2013 that they accept the abovementioned modification of Condition 68, as proposed. Condition 100 (Discharged Water) The applicant is seeking to modify condition 100 which currently reads as follows:

100. All waters that are to be discharged from the site shall have a pH between 6.5 and 8.5 and suspended solids not greater than 50mg/l. The contractor shall nominate a person responsible for monitoring of the quality of such discharge


waters on a daily basis and the results recorded. Such results shall be made available to Council's Environmental Health Officer(s) upon request.

The applicant does not consider this condition to be practical during wet weather events and proposes the following modification:

“100A. All waters that are to be discharged from the site during dry weather periods shall have a pH between 6.5 and 8.5 and suspended solids not greater than 50mg/l. Where water is to be discharged from the site the contractor shall nominate a person responsible for monitoring of the quality of such discharge waters on a daily basis and the results recorded. Such results shall be made available to Council's Environmental Health Officer(s) upon request.”

As per Council’s Design Specification D7 – Stormwater Quality, the control on stormwater discharge is imposed up to the Q3 month rain event. The applicant was advised in May 2012 that the proposed modification of Condition 100 was not supported. However, the following modification (amendments shown in bold) was suggested:

100A. All waters that are to be discharged from the site during dry weather periods and wet weather periods up to the Q3 month rain event (as defined in Council’s Design Specification D7 – Stormwater Quality) shall have a pH between 6.5 and 8.5 and suspended solids not greater than 50mg/l. Where water is to be discharged from the site the contractor shall nominate a person responsible for monitoring of the quality of such discharge waters on a daily basis and the results recorded. Such results shall be made available to Council's Environmental Health Officer(s) upon request.

The applicant confirmed in October 2013 that they accept the abovementioned modification of Condition 100, as proposed. Condition 112 (Dedication of Passive Parks) The applicant is seeking to modify condition 112 which currently reads as follows:

112. The proposed passive parks are to be dedicated as passive open space and suitably embellished at no cost to Council in accordance with the approved landscaping plan. Where a developer pays Council to acquire and install play equipment, Council will NOT install the equipment until a minimum of 20% of the lots in that stage of the development are occupied. Embellishment arrangements shall be in place prior to the issue of a Subdivision Certificate.

The applicant asserts that for marketing purposes, it will be important that park embellishment relevant to each stage be provided up front. The applicant proposes the following replacement condition:

“112A. The proposed passive parks are to be progressively dedicated as passive open space and suitably embellished at no cost to Council in accordance with the approved landscaping plan. Where a deve loper pa ys Counc il to acquire and ins ta ll p lay equipment, Counc il will NOT ins ta ll the equipment until a min imum of 20% of the lo ts in tha t s tage of the de ve lopment a re occupied . Embellishment arrangements shall be in place prior to the issue of a Subdivision Certificate.”

The applicant’s proposed modification of Condition 112 is supported.


Condition 114 (Maintenance Bond) The applicant is seeking to amend Condition 114 which currently reads as follows:

114. Prior to the issue of a Subdivision Certificate, a maintenance bond equal to 25% of the contract value of the footpath and cycleway construction works shall be lodged for a period of 3 years or until 80% of the lots fronting paved footpaths and cycleways are built on. Alternatively, the developer may elect to pay a cash contribution to the value of the footpath and cycleway construction works plus 25% in lieu of construction and Council will construct the footpath when the subdivision is substantially built out. The cost of these works shall be validated by a schedule of rates.

The applicant is concerned with this condition as outlined below: “The provision of the proposed cycleway network will be progressively constructed in accordance with the development program and will not be delayed until the construction of dwellings in that stage have been substantially completed. The maintenance of the cycleways will be limited to material and workmanship and will not extend to damage caused by construction activities on private lots fronting the cycleway. Such damage should reasonably be the responsibility of the builder and/or owner of the adjoining lot. Condition 80A(6)(c) of the Environmental Planning and Assessment Act 1979 (as amended) prescribes a time limit for conditions of development consent that relate to the holding of security to remedy any defects that may occur to public works, that period being 6 months. It is also considered that the amount of the bond should be equal to 5% of the value of the work. Accordingly the following modification is proposed.”

The applicant proposes the following modification to Condition 114: “114A. Prior to the issue of a Subdivision Certificate, a maintenance bond equal to 25%

5% of the contract value of the footpath and cycleway construction works shall be lodged for a period of 3 years or until 80% of the lots fronting paved footpaths and cycleways are built on 6 months.

Alte rna tive ly, the deve loper ma y e lec t to pa y a cas h contribu tion to the va lue of the footpa th and c yc lewa y cons truc tion works plus 25% in lieu of cons truc tion and Counc il will cons truc t the footpa th when the s ubdivis ion is s ubs tan tia lly built ou t. The cos t o f the s e works s ha ll be va lida ted by a s chedule of ra tes .”

The imposition of a Defects Liability Bond in accordance with Section 80A(6)(c) is imposed under Condition 113, not 114 (or 115). Condition 113 imposes the appropriate 6 months timeframe, however it is noted that Section 80A(6)(c) doesn’t reference a limit on the percentage that can be applied, however Council have already imposed the requested 5% amount. Council’s imposition of conditions equivalent to Condition 114 became a standard condition in order to resolve the damage that was occurring to concrete footpaths in new developments. Concrete footpaths were being damaged and it was extremely difficult to prove who caused the damage. The applicant was advised in May 2012 that the condition was designed to encourage the construction of the paths after much of the house building was complete. It is not linked in any way to the standard 5% defect security bond to protect Council against faulty


workmanship (i.e. Condition 113). The confusion may exist because Condition 114 contains the word “maintenance bond”. To rectify this, it is suggested that as part of this s96 application, the words “maintenance bond” are replaced with “performance bond” in Condition 114A. Under Section 80A(6)(b) Council may impose a condition (as per Condition 114) allowing the Consent Authority to enter into an agreement with the applicant, for the applicant to provide security for the payment of the cost to complete any public works. Section 80A(6)(b) does not limit to the amount or timeframe of this security, other than the security shall be of a reasonable amount, as determined by the Consent Authority. As such, the applicant’s proposed modification to Condition 114 is not supported. However, in order to remove any ambiguity between Condition 113 and Condition 114, it is recommended that Condition 114 is amended as follows:

114A. Prior to the issue of a Subdivision Certificate, a maintenance performance bond equal to 25% of the contract value of the footpath and cycleway construction works shall be lodged for a period of 3 years or until 80% of the lots fronting paved footpaths and cycleways are built on. Alternatively, the developer may elect to pay a cash contribution to the value of the footpath and cycleway construction works plus 25% in lieu of construction and Council will construct the footpath when the subdivision is substantially built out. The cost of these works shall be validated by a schedule of rates.

The applicant confirmed in October 2013 that they accept the abovementioned modification of Condition 114, as proposed. Condition 115 (Landscaping Bond) The applicant is seeking to modify Condition 115 which currently reads as follows:

115. A bond shall be lodged prior to the issue of the Subdivision Certificate to ensure that the associated landscaping is maintained by the developer for a period of 12 months from the date of issue of a Subdivision Certificate. The amount of the bond shall be 20% of the estimated cost of the landscaping or $3000 whichever is the greater.

As per with Condition 114, the applicant indicates that Condition 80A(6)(c) of the Environmental Planning and Assessment Act 1979 (as amended) states that the holding of security to remedy any defects that may occur to public works, is limited to a period of 6 months and that the bond should be equal to 5% of the value of the work. Accordingly the Applicant proposes to modify Condition 115 as follows:

“115A. A bond shall be lodged prior to the issue of the Subdivision Certificate to ensure that the associated landscaping is maintained by the developer for a period of 12 6 months from the date of issue of a Subdivision Certificate. The amount of the bond shall be 20% 5% of the estimated cost of the landscaping or $3000 whichever is the greater.

As noted in Condition 114 above, the imposition of a Defects Liability Bond in accordance with Section 80A(6)(c) is imposed under Condition 113, not 115 (or 114). Under Section 80A(6)(b), Council may impose a condition (as per Condition 114), allowing the Consent Authority to enter into an agreement with the applicant, for the applicant to provide security for the payment of the cost to complete any public works. Section 80A(6)(b) does not limit to the amount or timeframe of this security, other than the security shall be of a reasonable amount, as determined by the Consent Authority.


The amendment regarding maintenance period cannot be supported as Council’s Development Design Specification D14 ‘Landscaping Public Open Space’ specifies 12 months maintenance for any Landscape Works (Appendix H, Sect.7). Note the ‘maintenance period’ refers to plant establishment and care, and is not related to defects as referenced in Section 80A(6)(c). The amount of 20% is recorded in Council’s ‘standard condition PSC 0235’. Similar to that with Condition 114, the confusion with Condition 115 lies within the condition’s current reference of the word “maintained”, possibly being interpreted by the applicant as “maintenance”. To rectify this, it is suggested that as part of this s96 application, Condition 115 be amended to clarify that it does not refer to defects / maintenance (i.e. Section 80A(6)(c)) but “establishment and performance” (i.e. Section 80A(6)(b)). The applicant was advised in May 2012 that the proposed modification to Condition 115 was not supported; however, in order to remove any ambiguity between Condition 113 and Condition 115, it is recommended that Condition 115 is amended as follows.

115A. A bond shall be lodged prior to the issue of the Subdivision Certificate to ensure that the associated landscaping is maintained by the developer for a period of to ensure suitable care and maintenance is provided to plantings and turf over a 12 month establishment period. This care is required to achieve optimal plant establishment and performance. The bond shall be held by Council to ensure that the associated landscaping is maintained by the developer for a period of 12 months from the date of issue of a Subdivision Certificate. The amount of the bond shall be 20% of the estimated cost of the landscaping or $3000 whichever is the greater.

The applicant confirmed in October 2013 that they accept the abovementioned modification of Condition 115, as proposed. Condition 116 (Cash bond / Bank Guarantee – SRRP) The applicant is seeking to modify Condition 116 which currently reads as follows:

116. Cash Bond/Bank Guarantee (a) A Cash Bond or Bank Guarantee to ensure that the approved Site

Regeneration and Revegetation Plan (SRRP) is implemented and completed, must be lodged with Council prior to the release of the Subdivision Certificate. The amount of such bond will be based on the cost of environmental repair, enhancement and maintenance works to be undertaken in accordance with the approved SRRP. In this regard, two (2) written quotes from suitably experienced and qualified bush regenerators (to the satisfaction of the General Manager or his delegate) must be submitted to Council which detail the cost of all works associated with the SRRP. The amount of the bond will be equivalent to 100% of the estimated cost of works.

(b) One third of the Cash Bond or Bank Guarantee will be refunded one year after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works are being satisfactorily undertaken in accordance with the approved SRRP. A further one third of the Bond or Bank Guarantee will be refunded 3 years after the initiation of works on submission of certification by a suitably experienced


and qualified bush regenerator stating that works have been satisfactorily reached the defined half-way stage of the SRRP. The final one third of the Bond or Bank Guarantee will be released 5 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that the SRRP has been satisfactorily completed.


The applicant acknowledges that the regeneration areas will require a 3 year maintenance period, as per the Ecological Reports and Management Plans that accompanied the Concept Plan, however they believe that under Section 80A(3), the maintenance period should legally be limited to 6 months. The applicant also states that the bond should relate to ‘uncompleted works’ only (if applicable) and ‘maintenance’. Accordingly, the applicant proposes to delete Condition 116 and replace it as follows:

“116A. Cash Bond/Bank Guarantee (a) A Cash Bond or Bank Guarantee to ensure that the approved Site

Regeneration and Revegetation Plan (SRRP) is implemented and completed and maintained for 3 years must be lodged with Council prior to the release of the Subdivision Certificate. The amount of such bond will be based on the cost of environmental repair, enhancement uncompleted work (if any) and maintenance work to be undertaken in accordance with the approved SRRP. In this regard, two (2) written quotes from suitably experienced and qualified bush regenerators (to the satisfaction of the General Manager or his delegate) must be submitted to Council which detail the cost of all works associated with the SRRP. The amount of the uncompleted work bond will be equivalent to 100% of the estimated cost of the uncompleted works and the maintenance work bond will be 5% of the value of the work.

(b) One third of the Cash Bond or Bank Guarantee The uncompleted work bond will be refunded one year after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily completed in accordance with the approved SRRP. A further one third of the Bond or Bank Guarantee will be refunded 3 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily reached the defined half-way stage of the SRRP. The final one third of the Bond or Bank Guarantee will be released 5 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that the SRRP has been satisfactorily completed.


(c) Monitoring of the effectiveness of environmental repair, enhancement and maintenance works must be undertaken by an independent and suitably qualified and experienced bush regenerator at yearly intervals following initiation of the Environmental Restoration Plan SRRP works. Reports of this monitoring must provide the basis for the person issuing certification for the bond or bank guarantee refunding stages and must be annually submitted to Council as evidence. Any supplementary or approved adaptive management works deemed necessary by the independent bush regenerator during the life of the SRRP must be undertaken once the need is identified. The maintenance bond will be refunded after 3 years and on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been maintained in accordance with the approved SRRP. “

Condition 116 requires a cash bond or bank guarantee based on the value of restoration works, to be progressively refunded based upon success shown by monitoring reports. The applicant states that the bond should relate to ‘uncompleted works’ only (if applicable) and ‘maintenance’ because the work is to be commenced prior to the issue of the Construction Certificate. The condition actually reads “prior to the release of the Subdivision Certificate”, i.e. after the construction is complete. The applicant was advised in May 2012 that the proposed modification of Condition 116 was not supported. However, the following modification of Condition 116 (amendments shown in bold) was proposed:

116A. Cash Bond/Bank Guarantee (a) A Cash Bond or Bank Guarantee to ensure that the approved Site

Regeneration and Revegetation Plan (SRRP) is implemented and completed, must be lodged with Council prior to the release of the Subdivision Certificate. The amount of such bond will be based on the cost of environmental repair, enhancement and maintenance works remaining to be undertaken in accordance with the approved SRRP. In this regard, two (2) written quotes from suitably experienced and qualified bush regenerators (to the satisfaction of the General Manager or his delegate) must be submitted to Council which detail the cost of all works associated with the SRRP. The amount of the bond will be equivalent to 100% of the estimated cost of works.

(b) One third of the Cash Bond or Bank Guarantee will be refunded one year after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works are being satisfactorily undertaken in accordance with the approved SRRP. A further one third of the Bond or Bank Guarantee will be refunded 3 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily reached the defined half-way stage of the SRRP. The final one third of the Bond or Bank Guarantee will be released 5 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that the SRRP has been satisfactorily completed.



The applicant confirmed in October 2013 that they accept the abovementioned modification of Condition 116, as proposed. Condition 129 (Dedication of Drainage Reserve) The applicant is seeking to modify Condition 129 which currently reads as follows:

129. Prior to the release of the Subdivision Certificate the proponent shall: (a) Dedicate the proposed drainage reserve at no cost to Council. (b) Submit an accurate plan of the proposed drainage reserve to Council 60

days prior to lodgement of Application for Subdivision Certificate to allow the land to be classified.

The applicant proposes to modify Condition 129, to clarify staging dedication requirements, as follows:

“129A. Prior to the release of the Subdivision Certificate the proponent The Plan of Proposed Subdivision shall dedicate the proposed drainage reserve adjacent to that stage of the development at no cost to Council. The proponent shall submit an accurate plan of the proposed drainage reserve to Council 60 days prior to lodgement of Application for Subdivision Certificate to allow the land to be classified.”

The applicant’s proposed modification of Condition 129 is supported. Condition 132 (Underground Telephone Supply) The applicant is seeking to modify Condition 132 which currently reads as follows:

132. The production of written evidence from the local telecommunications supply authority certifying that the provision and commissioning of underground telephone supply at the front boundary of all allotments associated with the Subdivision Certificate has been completed.

The applicant proposes to amend the reference for the “provision and commissioning of underground telephone supply” to be provided to the “satisfactory arrangements have been made”, believing that this is Council’s standard. As such, the applicant proposed to modify Condition 132 as follows:

“132A. The production of written evidence from the local telecommunications supply authority certifying that the provision and commissioning satisfactory arrangements have been made for the provision of underground telephone supply at the front boundary of all allotments associated with the Subdivision Certificate has been completed for each Subdivision Certificate Application.”


The applicant was advised in May 2012 that the current wording of Condition 132 has been Council’s standard wording since 19 August 2009 and as such, the proposed modification of Condition 132 is not supported. Correspondence submitted by the applicant in October 2013 accepts Council’s position in terms of Condition 132. As such Condition 132 remains in its current form and no further assessment is required. Condition 144 (Embellishment of Casual Open Space) The applicant is seeking to modify Condition 144 which currently reads as follows:

144. Embellishment of all areas of casual open space, structured open space, cycleways, pedestrian links and streetscapes is to be completed, consistent with the approved landscape plans, to the satisfaction of the General Manager Tweed Shire Council or delegate prior to issue of the Subdivision Certificate. Installation of playground equipment and softfall however will not occur until 20% of the relevant stage’s allotments are occupied. The developer must contribute the appropriate financial contribution for these items as a bond prior to the release of the relevant Subdivision Certificate for each stage. Council will undertake the installation at the appropriate time.

For marketing purposes, the applicant intends to embellish the parks with each stage. The applicant does not propose to utilise Council to acquire and install the equipment. As such, the following replacement condition is proposed by the applicant:

“144A. The staged embellishment of all areas of casual open space, structured open space, cycleways, pedestrian links and streetscapes is to be completed, consistent with the approved landscape plans, to the satisfaction of the General Manager Tweed Shire Council or delegate prior to issue of the Subdivision Certificate. Installation of playground equipment and softfall however will not occur until 20% of the relevant stage’s allotments are occupied. The developer must contribute the appropriate financial contribution for these items as a bond prior to the release of the relevant Subdivision Certificate for each stage. Council will undertake the installation at the appropriate time.”

The applicant was advised in May 2012 that the proposed modification of Condition 144 was not supported, with the exception of the inclusion of the word ‘staged’. Council officers propose the following modification to Condition 144 (amendments shown in bold):

144A. The staged embellishment of all areas of casual open space, structured open space, cycleways, pedestrian links and streetscapes is to be completed, consistent with the approved landscape plans, to the satisfaction of the General Manager Tweed Shire Council or delegate prior to issue of the Subdivision Certificate. The Developer will be responsible for maintaining the installed playground equipment and softfall for a period of 6 months after 20% of the relevant stage’s allotments have been occupied. A maintenance compliance bond of 5% of the total cost of the installed playground equipment and softfall must be paid to Council prior to the release of the relevant Subdivision Certificate for each stage. The bond will be return upon request at the completion of the maintenance period, if not expended during the maintenance period.


The applicant confirmed in October 2013 that they accept the abovementioned modification of Condition 144, as proposed. Condition 145 (Management & Maintenance Plan Park 2) The applicant is seeking to delete Condition 145 which currently reads as follows:

145. A management and maintenance plan is to be prepared for the site described as ‘vegetation covenant area’ within park 2 (Lot 101). This plan is to describe the site, vegetation on the site to be conserved, its significance and hence why it is a ‘vegetation covenant area’. The plan shall also specify management and maintenance actions required, and any restrictions to be imposed in terms of maintenance or public access. The plan must be approved by the General Manager or his delegate.

The applicant proposes to delete Condition 145 as they consider the current condition pointless as the area covered by the Covenant is intended to be dedicated to Council as part of the land comprising a casual open space park. The applicant was advised in May 2012 that the proposed deletion of Condition 145 was not supported. Condition 145 requires a management and maintenance plan for the vegetation covenant area within Park 2. This area contains threatened rainforest plants and was to be set aside, buffered and regenerated within the SRRP. Additional rainforest offset is needed to offset this loss and the area requires specific management, different from general park maintenance. Correspondence submitted by the applicant in October 2013 accepts Council’s position in terms of Condition 145. As such Condition 145 remains in its current form and no further assessment is required. Condition 146 (Maintenance Period) The applicant is seeking to modify Condition 146 which currently reads as follows:

146. The developer is to undertake maintenance operations on all casual and structured public open space for a minimum of 12 months after the Subdivision is registered with the Land Titles Office. Such maintenance will include all soft landscaping, particularly mowing and weed control. Any power and water consumption costs during this period must also be met by the developer.

Similar to that for Condition 47, the applicant proposes to amend this condition to replace the currently proposed 12 month maintenance period on all casual and structures public open space to “the standard” 6 months period. (The applicant references Section 80A(3) of the EP&A Act as justification). The applicant proposed to modify Condition 146 as follows:

“146A. The developer is to undertake maintenance operations on all casual and structured public open space for a minimum of 12 6 months after the Subdivision is registered with the Land Titles Office. Such maintenance will include all soft landscaping, particularly mowing and weed control. Any power and water consumption costs during this period must also be met by the developer.”

The applicant was advised in May 2012 that the proposed modification of Condition 146 was not supported. Council’s Development Design Specification D14 ‘Landscaping Public Open Space’ specifies 12 months maintenance for any Landscape Works (Appendix H, Sect.7). It is also noted the ‘maintenance period’ refers to plant establishment and care, and is not related to defects as referenced in Section 80A(6)(c).


Correspondence submitted by the applicant in October 2013 accepts Council’s position in terms of Condition 146. As such Condition 146 remains in its current form and no further assessment is required. Condition 151 (Environmental Restoration & Protection) The applicant is seeking to delete Condition 151 which currently reads as follows:

151. Suitable restrictions on title, easements and/or enabling instruments must be created for all allotments containing areas designated for environmental restoration and protection in order to give effect to each of the following items: a. All areas described as Management Areas 1, 2, and 4 as shown in Figure 4

of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 or any alternate biodiversity offset sites agreed by Tweed Shire Council must be rehabilitated and maintained in perpetuity in accordance with the Council-approved site specific Site Regeneration and Revegetation Plan (SRRP).

b. In the event the environmental management areas named above are not managed in accordance with the approved Site Regeneration and Revegetation Plan (SRRP), Tweed Shire Council access must be enabled on an ongoing basis for the purpose of undertaking environmental restoration and management works in accordance with the Council-approved site specific Site Regeneration and Revegetation Plan (SRRP).

c. In the event that Council is required to manage any or all of the environmental management areas named above, the owner will be charged for the cost of undertaking environmental restoration and management works at the current market rate.

The applicant proposes to delete Condition 151 as they are of the opinion that proposed amended condition 51A adequately addresses the matters raised in Condition 151. The applicant was advised in May 2012 that the proposed deletion of Condition 151 was not supported. The condition proposes restrictions on title for those areas of environmental protection land forming offsets approved by the Concept Plan to ensure they are managed in accordance with the Revised Site Regeneration and Revegetation Plan, and if not, that Council may step in and do works at a charge to the owners. The condition could be altered or removed if the future land tenure was clearly established and a mechanism for funding in perpetuity was established. Correspondence from the applicant in October 2013 noted that the proposed deletion of Condition 151 was maintained on the basis that…‘it is not required due to the proposed dedication of the land to Council.’ The applicant was advised in December 2013 that given the mechanism for funding issue had not yet been resolved, the proposed deletion of Condition 151 is not supported. Further correspondence from the applicant in January 2014 notes that in accordance with the proposed new Condition 51.1 the land owner, following successful rehabilitation of the areas named in the condition, is to offer to dedicate to Council. As such, the applicant maintains that the condition should be deleted. The applicant proposes deletion of Condition 151 on the basis that they intend to offer dedication of the environmental protection lands to Council following successful rehabilitation of the areas named in this condition. These ongoing works are required, whether or not the lands are dedicated to Council. As such, there remains a responsibility to


make it clear to any future owner that the lands are protected and their ongoing management is required. The deletion of Condition 151 is not supported. Condition 154 (APZ Bond) The applicant is seeking to delete Condition 154 which currently reads as follows:

154. Submission to Council of the bond for the asset protection zone maintenance.

The applicant proposes to delete Condition 154 as they are of the opinion that proposed amended Condition 18A adequately addresses the matter of bond payment. The applicant was advised in May 2012 that the proposed deletion of Condition 154 was not supported. The condition stipulates the timing of the payment of the bond, which is not addressed within Condition 18. Correspondence submitted by the applicant in October 2013 accepts Council’s position in terms of Condition 154. As such Condition 154 remains in its current form and no further assessment is required. Condition 155 (Community Centre Site) The applicant is seeking to modify Condition 155 currently reads as follows:

155. The land designated as the community centre site is to be dedicated to Council at no cost in accordance with the Section 94 Plan No. 10 Cobaki Lakes Public Open space and Community Facilities.

The applicant notes that the community centre site is not proposed within Precincts 1 & 2. As it is located within Precinct 17 it is not subject to a lot layout or infrastructure planned for under the development consent. As such, the applicant proposes to modify Condition 155 as follows:

“155A. The land designated as the community centre site is to be dedicated to Council at no cost in accordance with the Section 94 Plan No. 10 – Cobaki Lakes Public Open Space and Community Facilities. The land will be unserviced and will have frontage to Sandy Lane in its present state.”

The applicant was advised in May 2012 that the proposed modification of Condition 155 was not supported. Although it is acknowledged that the Community Centre Site is not located within Precinct 1 & 2, it is noted that it is not located within Precinct 17 either. The approved Concept Plan indicates that the site is within the Central Open Space. Despite this, S94 No 10 – Cobaki Lakes Public Open Space and Community Facilities requires 150m2 of floor area at the start of the development. This would require the site to be serviced. As a result of being inconsistent with the section 94 plan, as proposed modification of Condition 155 is not supported. In October 2013 the applicant responded, noting that the construction of services to the Community Centre is not economically viable unless it is associated with the creation of residential lots. The applicant proposed the following amendment to Condition 155 (amendments shown in bold):

“155A. The land designated as the community centre site is to be dedicated to Council at no cost in accordance with the Section 94 Plan No. 10 – Cobaki Lakes Public Open Space and Community Facilities. Prior to the release of a Subdivision Certificate the land owner of the site of the future Cobaki Community Centre under Concept Plan Approval MP06_0316 is to enter into a Deed of Agreement with Council such that the identified land is to be provided with a constructed road frontage and all normal urban services


and dedicated to Council at no cost prior to the release of a Subdivision Certificate that would allow the creation of more than 2000 residential lots within the Cobaki development.”

The applicant’s proposed Condition 155A is not considered to be consistent with the intention of Contribution Plan 10 in that the land will not be dedicated and a 150m2 Multipurpose Hall will not be constructed at the initial stages of the development. However, as there are significant financial impediments to providing the land, the likely use of this hall will be limited, and the Hall may detract from the ultimate facility intended for this site, provision of the land at the 2000 lot stage and construction of a facility sometime after this stage is considered an appropriate strategy. As such, the applicant’s proposed modification of Condition 155 is supported. Considerations under Section 96 of the Environmental Planning and Assessment Act 1979: Although the original application was determined by the Joint Regional Planning Panel (JRPP), this S96(1a) application can be determined by Council. Section 96(1A) of the Act states that in order to grant consent, the consent authority must consider the following:

“(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with: (i) the regulations, if the regulations so require and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations.”

Likely Environmental Impact An extensive assessment has been undertaken with regard to the proposed modifications to the approved residential subdivision development, as noted in the 79C assessment above. In conclusion, the proposed amendments that have been supported are not considered to result in any significant environmental impact, subject to appropriate conditions of consent. Substantially the Same Development The proposed modifications being recommended for approval are considered unlikely to result in any significant changes to the originally approved development, with no additional parcels of land being proposed. As such, the proposed modifications are considered to be substantially the same development as that originally approved. Consideration of Submissions The application did not require advertising or notification. As such, no submissions were received.


Public interest The proposed modifications to Development Consent DA10/0800 which are being supported are considered to be acceptable in terms of public interest. The proposed modifications being supported are not considered to result in a significant negative impact upon the surrounding area, subject to the recommended conditions of consent. OPTIONS: 1. Approve the proposed modifications, subject to the recommended conditions of

consent; or 2. Refuse the proposed modifications; or 3. Approve the proposed modifications as proposed by the applicant; or 4. Approve/Refuse individual condition modifications. Council officers recommend Option 1. CONCLUSION: This assessment has had regard for all of the issues raised by the applicant in terms of potential impact and acceptability of the proposal. As a result, the proposed modifications which are being supported are considered to be acceptable and it is considered that the proposal warrants approval, subject to the recommended amendments to Development Consent DA10/0800. COUNCIL IMPLICATIONS: a. Policy: Policies/Controls as detailed in the body of the report. Section 8 (Charter) of the Local Government Act 1993 states that "…to have regard to the long term and cumulative effects of it's decisions. To bear in mind that it is the custodian and trustee of public assets and to effectively plan for, account for, and manage the assets for which it is responsible." b. Budget/Long Term Financial Plan: As detailed in the summary and body of the report. c. Legal: The applicant has identified that they reserve the right to challenge several of the conditions being proposed for modification. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Nil.


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5 [PR-PC] Development Application DA10/0801.02 for an Amendment to Development Consent DA10/0801 for the Cobaki Estate Subdivision of Precinct 6 Comprised of 442 Residential Lots (Including 1 Residual Lot) and Lots for Drainage, Open Space and Urban Infrastructure (JRPP) at Lot 1 DP 570076, Lots 54, Part Lot 199 & Lot 200 DP 755740 Piggabeen Road, Cobaki Lakes; Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679, Lot 2 DP 566529, Lots 46, 55, Part 199, 201, 202, 205, 206, 209, 228, 305 DP 755740 Sandy Lane, Cobaki Lakes




SUMMARY OF REPORT:

Council is in receipt of a Section 96 application for proposed modifications to the approved Cobaki Estate subdivision of Precinct 6. There is no proposed change to the approved subdivision layout of the development or overall number of allotments. The applicant is seeking to modify the proposed development by way of amending or deleting various conditions of consent. The application was submitted to Council in October 2011. Request for information was provided to the proponent in May 2012. A response was received by Council in September 2013 enabling further assessment of the application. Of the 29 proposed modifications, a total of only seven have been supported in the same format as proposed by the applicant. A further 12 of the proposed modifications are supported, subject to further amendments with the majority of the proposed changes having been accepted by the applicant. 10 of the proposed modifications by the applicant are not supported and one new condition is recommended as a result of one of the applicant’s proposed modifications. One of the major issues with the application is in relation to the requirement for a funding mechanism for the ongoing maintenance of the environmental protection land. There has been considerable discussion on this issue with the applicant, with no clear agreement being achieved to date. There have also been two Councillor workshops to discuss the matter, with the most recent workshop being held on 30 January 2014.


The original conditions of consent were applied as a result of the applicant deciding to not dedicate environmental lands to Council. Concern for the ongoing maintenance of the environmental land (beyond the vegetation/remediation works required by the Site Regeneration and Revegetation Plan) resulted in Condition 55 requiring (amongst other things) a ‘mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council’ prior to the issue of any Construction Certificate. Initially the applicant requested the deletion of this component (Clause (d)) of Condition 55. The proposed deletion of Clause (d) has consistently been opposed in discussions with the proponent, as it is considered that the applicant is responsible for the ongoing management of the environmental land until such time that an agreement can be made with Council. The actual mechanism of the funding (i.e. how the funding can be fairly and equitably achieved) is considered to be a separate matter to the issue of whether the funding requirement should be applied at all. Since the most recent Councillor workshop, the applicant has proposed a new condition of consent deferring the issue of funding mechanism to prior to the issue of Civil Works Construction Certificate, to allow the issue of Construction Certificate for Bulk Earth Works to proceed. Whilst the proposed new condition appears to be a reasonable request so that the Bulk Earthworks of Precinct 6 are not unduly held up, it is not supported as the mechanism for ensuring that management continues in perpetuity, needs to be determined prior to the time when the major impact occurs, which is at the Bulk Earthworks stage. There are several options available to consider as a funding mechanism which have been discussed at previous Councillor workshops. These options are:

• Capital contribution from land sales;

• Planning agreement (for example as applied in Altitude Aspire, Area E);

• Special Levy (for example as applied in Koala Beach);

• Existing rate base (not supported as it defers the cost of new development to existing residents when Council is already facing an asset management shortfall on existing infrastructure, natural assets and open space);

• Ordinary Rate income from the increased assessments derived from the estate (the ability to fund the management of the lands through the Ordinary Rates generated through the additional assessments of the estate can only be determined once clear costings for the management of the land have been accurately estimated and it is modelled along with Council's other asset management and service delivery obligations of the estate);

• A combination of the above; or

• By the lands being retained, managed and funded by the residents of the estate via a community title scheme.

It is considered appropriate that the applicable option be determined at a separate Council meeting, once the costings of the funding has been accurately estimated and a separate report on the matter put to Council for consideration.


RECOMMENDATION:

That Development Application DA10/0801.02 for an amendment to Development Consent DA10/0801 for the Cobaki Estate subdivision of Precinct 6 comprised of 442 residential lots (including 1 residual lot) and lots for drainage, open space and urban infrastructure (JRPP) at Lot 1 DP 570076, Lots 54, Part Lot 199 & Lot 200 DP 755740 Piggabeen Road, Cobaki Lakes; Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679, Lot 2 DP 566529, Lots 46, 55, Part 199, 201, 202, 205, 206, 209, 228, 305 DP 755740 Sandy Lane, Cobaki Lakes be approved and the consent be amended as follows: 1. Delete Condition No. 10 and replace it with Condition No. 10A which reads as

follows: 10A In accordance with Condition 38 of Project Application MP08_0200, no

works shall be undertaken within the Precinct 6 area that may impact upon (or contribute to an impact upon) the freshwater wetlands and Wallum Froglet habitat area until an appropriate agreement is entered into between the Proponent and the Office of Environment and Heritage that offsets the project's impact on biodiversity. This agreement shall include provision for alternative offsets to be delivered should monitoring indicate than an appropriate wetland environment is not achieved after an appropriate time. Evidence of such an agreement shall be forwarded to the Director General no later than 5 working days prior to works commencing in those areas. Notwithstanding the above, the proponent shall prepare a detailed Wallum Froglet Compensatory Habitat Plan as per Section 4.3 of the Revised Freshwater Wetland Rehabilitation Plan prepared by James Warren and Associates, dated October 2010. In addition to these requirements, the Wallum Froglet Compensatory Habitat Plan must include the following information on the core breeding habitat areas: (i) Detail on how Wallum Froglet core breeding areas will be constructed

and maintained; (ii) Detail on the design of fauna crossings where the fauna corridor is

bisected by a road to ensure Wallum Froglet movement between core breeding habitat ponds is available;

(iii) How threats to the survival of Wallum Froglet Habitat will be managed; (iv) Monitoring and reporting requirements including monitoring of Wallum

Froglet usage of the core breeding habitat area, usage of fauna corridors, Wallum Froglet population size and breeding success, water quality, habitat suitability and presence of exotic species (particularly Cane Toad and Gambusia); and

(v) A contingency planning option in the case of system failure


2. Insert new Condition 10.1 as follows: 10.1 The Proponent is responsible for the management of all Offset Areas for

conservation purposes and the implementation of ongoing management and maintenance activities specified in all Environmental Management Plans, until such time that an agreement is reached with Council regarding the dedication of that land.


follows: 11A. The proponent must design, construct, operate and maintain the project to

ensure that it does not adversely affect any remaining Wallum Froglet populations on, or adjacent the site.


follows: 19A. Evidence must be submitted to Council prior to the registration of any Plan

of Residential Subdivision, demonstrating that works have been commenced in accordance with the Revised Saltmarsh Rehabilitation Plan by James Warren and Associates dated October 2010 and as specified within Condition 65 of MP08_0200. The works are to be undertaken in accordance with the timing and responsibilities contained within the approved, Final Saltmarsh Rehabilitation Plan.


follows: 34A. Prior to the issue of a Construction Certificate for civil works the following

detail in accordance with Councils Development Design and Construction Specifications shall be submitted to the Principal Certifying Authority for approval. (a) copies of compliance certificates relied upon (b) four (4) copies of detailed engineering plans and specifications. The detailed plans shall include but are not limited to the following: • Earthworks






• Roadworks/furnishings o Providing road profiles complying with Council’s Design

Specification D1 – Road Design, unless approved otherwise by Council.

• Stormwater drainage • Water supply works


• Sewerage works o In general accordance with Yeats Consulting Engineers - Master

Sewer Reticulation Plan Revision C, unless modified otherwise by the conditions of this Consent.

• Landscaping works • Sedimentation and erosion management plans • Location of all service conduits (water, sewer, electricity supply and

telecommunication infrastructure) The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Management Act 2000 and Section 138 of the Roads Act to be certified by an Accredited Certifier.


follows: 47A. Any playgrounds provided must comply with the guidelines established

in the Playground Audit for Tweed Shire Council (July 2009). Appendix 3 establishes the procedure for assessing nearby hazards and mitigation measures. The proposed open space areas for this stage as identified in Planit Consulting Drawing Set Dated March 2011 shall be designed to minimise the hazards to designated playground areas consistent with those mitigating features identified in Appendix 3A7 of the Playground Audit for Tweed Shire Council (July 2009). Detailed drawings and reporting outlining mitigation measures to be employed to mitigate risk are to be submitted for approval by the General Manager or his delegate. In proposing mitigation measures consideration of long term maintenance costs shall be considered and evaluated in any reporting.


follows: 55A One or more detailed Habitat Restoration Plan(s) must be submitted to and

approved by Council in accordance with Council’s draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 10 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated April 2013 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the subdivision plan (that is, other


than as a an environmental protection area such as park or drainage reserve lots), additional EEC and habitat offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken. (b ) a s ta tement of commitment by the cons ent ho lde r to mainta in the

works until the re levant pe rformance c rite ria of the S ite Regenera tion and Revege ta tion P lan a re achieved and until such time as an agreement is reached with Council regarding the dedication of that land.

(c) a statement of commitment by the consent holder that the works will


(d) a mechanism to fund in perpetuity the ongoing maintenance of the


8. Insert new Condition 55.1 as follows:

55.1 Following the successful rehabilitation of Management Areas 10 and 13 of

the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2013, the landowner shall offer to dedicate that land to Council.


follows: 62A. Should, following the proponent’s best endeavours, National Rental

Affordability Scheme (NRAS) (or equivalent) funding be available to provide affordable housing within the development in accordance with the approved Cobaki Estate Affordable Housing Study, a staging plan detailing the location, mix and type of dwellings to be provided as affordable rental accommodation is to be submitted to Council in accordance with the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd. by Hill PDA and dated November 2010.


follows: 63A. Detailed design drawings for all road crossings over the nominated fauna

corridor are to be submitted to the General Manager or his delegate for approval. Each crossing design shall incorporate three 2.4 x 1.8m culverts (or two 2.4 x 1.8m culverts connected with a slab) in the centre of the corridor and an additional culvert (minimum 2.4 x 1.2m) on either side of the


central culverts to enable a range of fauna to cross through the corridor and facilitate east-west connectivity for fauna across the site.


follows: 73A. Prior to the commencement of construction works a Construction

Environmental Management Plan (CEMP) must be prepared that covers the area of works. The CEMP shall be consistent with the Guideline for the Preparation of Environmental Management Plans (DIPNR, 2004). The CEMP shall include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the proposal during construction. The CEMP must include, but not be limited to all matters specified within Condition 25 of Project Application MP08_0200 and be submitted to and approved by the PCA prior to commencement of construction, or within such period otherwise agreed by the General Manager or delegate.


follows: 105A. All waters that are to be discharged from the site during dry weather

periods and wet weather periods up to the Q3 month rain event (as defined in Council’s Design Specification D7 – Stormwater Quality) shall have a pH between 6.5 and 8.5 and suspended solids not greater than 50mg/l. Where water is to be discharged from the site the contractor shall nominate a person responsible for monitoring of the quality of such discharge waters on a daily basis and the results recorded. Such results shall be made available to Council's Environmental Health Officer(s) upon request.


follows: 117A. The proposed passive parks are to be progressively dedicated as passive

open space and suitably embellished at no cost to Council in accordance with the approved landscaping plan. Embellishment arrangements shall be in place prior to the issue of a Subdivision Certificate.


follows: 119A. Prior to the issue of a Subdivision Certificate, a performance bond equal to

25% of the contract value of the footpath and cycleway construction works shall be lodged for a period of 3 years or until 80% of the lots fronting paved footpaths and cycleways are built on. Alternatively, the developer may elect to pay a cash contribution to the value of the footpath and cycleway construction works plus 25% in lieu of construction and Council will construct the footpath when the subdivision is substantially built out. The cost of these works shall be validated by a schedule of rates.


15. Delete Condition No. 120 and replace it with Condition No. 120A which reads as follows: 120A. A bond shall be lodged to ensure suitable care and maintenance is

provided to plantings and turf over a 12 month establishment period. This care is required to achieve optimal plant establishment and performance. The bond shall be held by Council to ensure that the associated landscaping is maintained by the developer for a period of 12 months from the date of issue of a Subdivision Certificate. The amount of the bond shall be 20% of the estimated cost of the landscaping.


follows: 121A. Cash Bond/Bank Guarantee

(a) A Cash Bond or Bank Guarantee to ensure that the approved Site Regeneration and Revegetation Plan (SRRP) is implemented and completed, must be lodged with Council prior to the release of the Subdivision Certificate. The amount of such bond will be based on the cost of environmental repair, enhancement and maintenance works remaining to be undertaken in accordance with the approved SRRP. In this regard, two (2) written quotes from suitably experienced and qualified bush regenerators (to the satisfaction of the General Manager or his delegate) must be submitted to Council which detail the cost of all works associated with the SRRP. The amount of the bond will be equivalent to 100% of the estimated cost of works.

(b) One third of the Cash Bond or Bank Guarantee will be refunded one

year after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works are being satisfactorily undertaken in accordance with the approved SRRP. A further one third of the Bond or Bank Guarantee will be refunded 3 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily reached the defined half-way stage of the SRRP. The final one third of the Bond or Bank Guarantee will be released 5 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that the SRRP has been satisfactorily completed.

(c) Monitoring of the effectiveness of environmental repair, enhancement

and maintenance works must be undertaken by an independent and suitably qualified and experienced bush regenerator at yearly intervals following initiation of the Environmental Restoration Plan SRRP works. Reports of this monitoring must provide the basis for the person issuing certification for the bond or bank guarantee refunding stages and must be annually submitted to Council as evidence. Any supplementary or approved adaptive management works deemed


necessary by the independent bush regenerator during the life of the SRRP must be undertaken once the need is identified.


follows: 133A. The Plan of Proposed Subdivision shall dedicate the proposed drainage

reserve adjacent to that stage of the development at no cost to Council. The proponent shall submit an accurate plan of the proposed drainage reserve to Council 60 days prior to lodgement of Application for Subdivision Certificate to allow the land to be classified.


follows: 148A. The staged embellishment of all areas of casual open space, structured

open space, cycleways, pedestrian links and streetscapes is to be completed, consistent with the approved landscape plans, to the satisfaction of the General Manager Tweed Shire Council or delegate prior to issue of the Subdivision Certificate. The Developer will be responsible for maintaining the installed playground equipment and softfall for a period of 6 months after 20% of the relevant stage’s allotments have been occupied. A maintenance compliance bond of 5% of the total cost of the installed playground equipment and softfall must be paid to Council prior to the release of the relevant Subdivision Certificate for each stage. The bond will be return upon request at the completion of the maintenance period, if not expended during the maintenance period.


follows: 155A. Prior to the release of a Subdivision Certificate the land owner of the site of

the future Cobaki Community Centre under Concept Plan Approval MP06_0316 is to enter into a Deed of Agreement with Council such that the identified land is to be provided with a constructed road frontage and all normal urban services and dedicated to Council at no cost prior to the release of a Subdivision Certificate that would allow the creation of more than 2000 residential lots within the Cobaki development.


follows: 158A. Lots 602, 603 and 605 adjoining the central drain are to be dedicated as

drainage reserve, not environmental open space as indicated on the 'Plan of Proposed Subdivision, Precinct 6 Drainage Reserves & Parks', reference Michel Group Services 6400-218, Issue A, dated 24/11/2010.


REPORT:

Applicant: Leda Manorstead Pty Ltd Owner: Leda Manorstead Pty Ltd Location: Lot 1 DP 570076, Lots 54, Part Lot 199 & Lot 200 DP 755740 Piggabeen

Road, Cobaki Lakes; Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679, Lot 2 DP 566529, Lots 46, 55, Part 199, 201, 202, 205, 206, 209, 228, 305 DP 755740 Sandy Lane, Cobaki Lakes

Zoning: 2(c) Urban Expansion, 7(d) Environmental Protection (Scenic/Escarpment), 7(l) Environmental Protection (Habitat), 6(b) Recreation, 7(a) Environmental Protection (Wetlands & Littoral Rainforests)

Cost: Not Applicable BACKGROUND Cobaki Estate has multiple layers of approvals which allow for subdivision of the site, including a town centre, community facilities, sports fields, parks and other infrastructure. The following table summarises the key and more contemporary approvals issued over the site:

Determining Authority Approval Date Tweed Shire Council S94/194 approximately 763 lots

and Cobaki Parkway 1995

Tweed Shire Council S97/54 approximately 430 lots (Parcel 7-10)

1997

Tweed Shire Council K99/1124 approximately 560 lots 2000

Tweed Shire Council Part 12 – Bulk Earthworks across the whole site

Tweed Shire Council 1162/2001DA – Bulk Earthworks and Masterplan for Town Centre

2002

Department of Planning Concept Plan approval for approximately 5000 dwellings

December 2010

Department of Planning Project Application central open space and drainage corridor

February 2011


DA10/0800 – 475 Residential Lots (Precinct 1 and 2)

May 2011


DA10/0801 – 441 Residential Lots (Precinct 6)

May 2011


Concept Plan approval for approximately 5000 dwellings – Mod 1

May 2013


Project Application central open space and drainage corridor – Mod 1

May 2013

Planning & Infrastructure Project Application central open space and drainage corridor –

Not Yet Determined


Determining Authority Approval Date Mod 2

Precinct 6 comprises of 441 residential lots (including 1 residual lot) and lots for drainage, open space and urban infrastructure was determined by the Joint Regional Planning Panel, being granted on 30 May 2011. PROPOSED DEVELOPMENT: There is no proposed change to the approved layout of the development. The proposed modifications to Development Consent DA10/0801 as submitted by the applicant are noted below, along with a summary of whether or not the proposed modification has been supported by Council officers:

• The deletion of Condition 9 in relation to the modification of old consents in order to achieve consistency with this consent (DA10/0801). The proposed deletion of Condition 9 is not supported;

• The modification of Condition 10 which relates to Freshwater Wetlands and Wallum Froglet area. The proposed modification of Condition 16 is supported, subject to the inclusion of new Condition 10.1;

• New Condition 10.1 relates to the management of all offset areas. The proposed new condition is recommended as a result of the proposed modification of Condition 10;

• The modification of Condition 11 which relates to Wallum Froglet protection. The proposed modification of Condition 11 is supported, subject to further amendments;

• The modification of Condition 19 which relates to commencement of works required by the Revised Saltmarsh Rehabilitation Plan. The proposed modification of Condition 19 is supported, subject to further amendments;

• The modification of Condition 23 in relation to the Cobaki Estate Affordable Housing Study. The proposed modification of Condition 23 is not supported;

• The modification of Condition 34 in relation to the maximum disturbed area. The proposed modification of Condition 34 is supported, subject to further amendments;

• The modification of Condition 47 with regard to the design requirements for playgrounds. The proposed modification of Condition 47 is supported;

• The modification of Condition 48 in relation to the maintenance period for grassing/revegetating the Central Open Space. The proposed modification of Condition 48 is not supported;

• The modification of Condition 51 in terms of the low flow drain realignment. The proposed modification of Condition 51 is not supported;

• The deletion of Condition 52 with regard to the low flow drain location. The proposed deletion of Condition 52 is not supported;

• The deletion of Condition 54 which relates to the existing consent conditions across the site. The proposed deletion of Condition 54 is not supported;

• The modification of Condition 55 in terms of the requirements of the Habitat Restoration Plans, including mechanism for funding. Components of the proposed modification of Condition 55 are supported, subject to further amendments;


• Proposed new Condition 55.1 relating to dedication of environmental protection land to Council. The proposed new Condition 55.1 is supported, subject to further amendments;

• The modification of Condition 62 with regard to affordable housing requirements. The proposed modification of Condition 62 is supported;

• The modification of Condition 63 which relates to the fauna road crossing requirements. The proposed modification of Condition 63 is supported, subject to further amendments;

• Proposed new Condition 64.1 with regard to the timing of an agreement with Council in terms of a mechanism to fund in perpetuity land not being dedicated to Council. The proposed new Condition 64.1 is not supported;

• The modification of Condition 65 which relates to primary revegetation and regeneration works. The proposed modification of Condition 65 is not supported;

• The modification of Condition 73 in terms of the timing of the Construction Environmental Management Plan (CEMP). The proposed modification of Condition 73 is supported, subject to further amendments;

• The modification of Condition 105 in relation to requirements for discharged water from the site. The proposed modification of Condition 105 is supported, subject to further amendments;

• The modification of Condition 117 with regard to the timing of dedication of passive parks. The proposed modification of Condition 117 is supported;

• The modification of Condition 119 in terms of details regarding the maintenance bond for footpaths and cycleways. The proposed modification of Condition 119 is supported, subject to further amendments;

• The modification of Condition 120 in relation to details regarding the landscaping bond. The proposed modification of Condition 120 is supported, subject to further amendments;

• The modification of Condition 121 with regard to the cash bond/bank guarantee for the Site Regeneration and Revegetation Plan. The proposed modification of Condition 121 is supported, subject to further amendments;

• The modification of Condition 133 in terms of the staging of the dedication of the drainage reserve. The proposed modification of Condition 133 is supported;

• The modification of Condition 136 in relation to standard requirements for underground telephone supply. The proposed modification of Condition 136 is not supported;

• The modification of Condition 148 with regard to the embellishment of casual open space. The proposed modification of Condition 148 is supported, subject to further amendments;

• The modification of Condition 149 in terms of the length of the maintenance period for the public open space. The proposed modification of Condition 149 is not supported;

• The modification of Condition 156 in relation to the Community Centre site. The proposed modification of Condition 156 is supported.

• The modification of Condition 158 with regard to the dedication of the drainage reserve. The proposed modification of Condition 158 is supported.


As noted previously, the applicant has accepted Council’s position on a number of the proposed modifications not being supported and they have also accepted a number of the proposed amendments recommended. A detailed assessment of each of the proposed modifications/deletions has been undertaken as noted later in this report.


SITE DIAGRAM:


PRECINCT 6 PLAN


Considerations under Section 79c of the Environmental Planning and Assessment Act 1979: Proposed Modifications The proposed modifications are outlined below, together with the applicant’s justification and officer assessment. Condition 9 (Consent conditions) The applicant proposes to delete Condition 9 which currently reads as follows:

9. Prior to the issuing of a Construction Certificate under DA10/0801, all existing consents over the Cobaki Estate applicable to Precinct 6, must be modified where relevant, pursuant to Section 80A(1) of the EP&A Act 1979 (as amended) and Regulation, to be consistent with this consent.

Originally in October 2011, the applicant requested that Condition 9 be deleted and replaced with two specific conditions relating to relevant existing consents. The applicant was advised in May 2012 that because the site has a long history of approvals, the issue of compliance with old consents requires clarification to move forward with the proposed development. As such the proposed deletion of Condition 9 and inclusion of the two new conditions was opposed. The applicant confirmed in September 2013 that they accept Council’s position and that the original deletion is no longer being requested. As such Condition 9 remains in its current form and no further assessment is required. Condition 10 (Freshwater wetlands and Wallum Froglet area) The applicant proposes to modify Condition 10 which currently reads as follows:

10. In accordance with Condition 38 of Project Application MP08_0200, no works shall be undertaken within the Precinct 6 area that may impact upon (or contribute to an impact upon) the freshwater wetlands and Wallum Froglet habitat area until an appropriate agreement is entered into between the Proponent and the Office of Environment and Heritage that offsets the project's impact on biodiversity. This agreement shall include provision for alternative offsets to be delivered should monitoring indicate than an appropriate wetland environment is not achieved after an appropriate time. Evidence of such an agreement shall be forwarded to the Director General no later than 5 working days prior to works commencing in those areas. Notwithstanding the above, the proponent shall prepare a detailed Wallum Froglet Compensatory Habitat Plan as per Section 4.3 of the Revised Freshwater Wetland Rehabilitation Plan prepared by James Warren and Associates, dated October 2010. In addition to these requirements, the Wallum Froglet Compensatory Habitat Plan must include the following information on the core breeding habitat areas: (i) Detail on how Wallum Froglet core breeding areas will be constructed and

maintained; (ii) Detail on the design of fauna crossings where the fauna corridor is bisected

by a road to ensure Wallum Froglet movement between core breeding habitat ponds is available;

(iii) How threats to the survival of Wallum Froglet Habitat will be managed;


(iv) Monitoring and reporting requirements including monitoring of Wallum Froglet usage of the core breeding habitat area, usage of fauna corridors, Wallum Froglet population size and breeding success, water quality, habitat suitability and presence of exotic species (particularly Cane Toad and Gambusia);

(v) A mechanism for the on-going funding of this Wallum Froglet Habitat areas to ensure the long-term viability of the population; and

(vi) A contingency planning option in the case of system failure.

In September 2013 the applicant proposed a modification of Condition 10, in terms of the deletion of the mechanism for on-going funding of the Wallum Froglet area, following the recent deletion of the same wording from Condition 38 of the Project Approval for the Central Open Space. As such, the applicant has proposed the following modification to Condition 10 (amendments shown in bold):

“10A In accordance with Condition 38 of Project Application MP08_0200, no works shall be undertaken within the Precinct 6 area that may impact upon (or contribute to an impact upon) the freshwater wetlands and Wallum Froglet habitat area until an appropriate agreement is entered into between the Proponent and the Office of Environment and Heritage that offsets the project's impact on biodiversity. This agreement shall include provision for alternative offsets to be delivered should monitoring indicate than an appropriate wetland environment is not achieved after an appropriate time. Evidence of such an agreement shall be forwarded to the Director General no later than 5 working days prior to works commencing in those areas. Notwithstanding the above, the proponent shall prepare a detailed Wallum Froglet Compensatory Habitat Plan as per Section 4.3 of the Revised Freshwater Wetland Rehabilitation Plan prepared by James Warren and Associates, dated October 2010. In addition to these requirements, the Wallum Froglet Compensatory Habitat Plan must include the following information on the core breeding habitat areas: (i) Detail on how Wallum Froglet core breeding areas will be constructed and

maintained; (ii) Detail on the design of fauna crossings where the fauna corridor is bisected

by a road to ensure Wallum Froglet movement between core breeding habitat ponds is available;

(iii) How threats to the survival of Wallum Froglet Habitat will be managed; (iv) Monitoring and reporting requirements including monitoring of Wallum

Froglet usage of the core breeding habitat area, usage of fauna corridors, Wallum Froglet population size and breeding success, water quality, habitat suitability and presence of exotic species (particularly Cane Toad and Gambusia);

(v) A mechanism for the on-going funding of this Wallum Froglet Habitat areas to ensure the long-term viability of the population; and

(vi) A contingency planning option in the case of system failure.

The applicant proposes to delete clause (v) of Condition 10, removing the requirement for the management plan to provide detail on a mechanism for on-going funding for


management of the Wallum Froglet Habitat Area. At this stage, the Wallum Froglet Habitat Management Plan applies only to approximately 2ha of freshwater wetland which is being retained onsite, however negotiations are ongoing with regard to provision of additional offsite offsets for Freshwater Wetland/Wallum Froglet habitat. The intent of the condition was to ensure that the Wallum Froglet Habitat Area was restored in a timely manner in accordance with approved plans and that these lands are managed for this purpose in perpetuity. It is understood that the applicant proposes to dedicate this area to Council, however no agreement has yet been reached regarding the mechanism for funding of its ongoing management. In December 2013 the applicant was advised that the proposed modification of Condition 10 was under consideration. Correspondence from the applicant in January 2014 noted…“in order to maintain consistency with the Department of Planning, Council is requested to modify Condition 10 as requested.” Whilst it is acknowledged that the Department of Planning did agree to remove the requirement for on-going funding from Condition 38, it should be noted that the requirement for funding was not removed from the consent. Rather, the Department of Planning incorporated a new Condition 11B(a) as follows:

11B Management and Maintenance of Environmental Lands a. The Proponent is responsible for the management of all Offset Areas for

conservation purposes and the implementation of ongoing management and maintenance activities specified in all Environmental Management Plans from the date of the project approval modification (08_0194 Mod 1), until such time that an agreement is reached with Council regarding the dedication of that land.

Accordingly, to be consistent with the Department of Planning the proposed modification of Condition 10 is supported, subject to the inclusion of a new Condition 10.1 as follows, requiring the landholder to be responsible for the ongoing management and maintenance of the land until an agreement with Council is reached regarding its dedication:

10.1 The Proponent is responsible for the management of all Offset Areas for conservation purposes and the implementation of ongoing management and maintenance activities specified in all Environmental Management Plans, until such time that an agreement is reached with Council regarding the dedication of that land.

Condition 11 (Wallum Froglet) The applicant is seeking to delete Condition 11 which currently reads as follows:

11. The proponent must design, construct, operate and maintain the project to ensure that it does not adversely affect Wallum Froglet populations on, or adjacent the site.

The Applicant proposes to delete Condition 11 stating that it cannot be complied with and is…“appropriately addressed by Condition 10 and 64”. Condition 10 pertains to the provision of offsets for impacts on Wallum Froglet and the preparation of a management plan for compensatory habitat areas. Condition 11 is a general condition requiring the development to avoid unnecessary impact on Wallum Froglet populations and remains relevant.


The applicant was advised in May 2013 that Condition 11 requires the project to be managed to avoid impact on Wallum Froglets. The location of the Wallum Froglet Habitat area needs to be finalised and endorsed by Council and rehabilitation works commenced, prior to any works that will damage existing habitat areas commencing. At the moment that is still not clear or agreed. Therefore, the proposed modification of Condition 11 was not supported. Correspondence submitted by the applicant in September 2013 acknowledged that an area of approximately 2ha of compensatory freshwater wetland habitat is to be provided on the eastern side of the Cobaki Parkway. The applicant reiterated their original comments that the intent of Condition 11 is more effectively covered by Conditions 10 and 64 and request that Condition 11 be deleted. It is noted that the Department of Planning’s recent approval of the Project Approval modification incorporates amended Condition 39 which reads as follows (amendment shown in bold):

39. The proponent must design, construct, operate and maintain the project to ensure that it does not adversely affect any remaining Wallum Froglet populations on, or adjacent the site.

Accordingly, to be consistent with the Department of Planning it is recommended that Condition 11 of DA10/0801 be amended in a similar fashion, as opposed to the applicants request for deletion altogether. The proposed modification of Condition 11 (amendments shown in bold) is as follows:

11A. The proponent must design, construct, operate and maintain the project to ensure that it does not adversely affect any remaining Wallum Froglet populations on, or adjacent the site.

Condition 19 (Saltmarsh Rehabilitation Plan) The applicant proposes to modify Condition 19 which currently reads as follows:

19. Evidence must be submitted to Council prior to the registration of any plan of residential subdivision, demonstrating that works have been undertaken in accordance with the Revised Saltmarsh Rehabilitation Plan by James Warren and Associates dated October 2010 and as specified with Condition 65 of MP08_0200.

It appears that the applicant may have misinterpreted the timing of this condition as being prior to the issue of a Construction Certificate, rather than the registration of any plan of residential subdivision. The applicant was advised in May 2012 that the proposed modification of Condition 19 was opposed. However, an alternative modification of Condition 19 was proposed by Council officers (amendments shown in bold):

19A. Evidence must be submitted to Council prior to the registration of any Plan of Residential Subdivision, demonstrating that works have been undertaken commenced in accordance with the Revised Saltmarsh Rehabilitation Plan by James Warren and Associates dated October 2010 and as specified within Condition 65 of MP08_0200. The works are to be undertaken in accordance with the timing and responsibilities contained within the approved, Final Saltmarsh Rehabilitation Plan.

The applicant confirmed in September 2013 that they accept the abovementioned modification of Condition 19, as proposed.


Condition 23 (Affordable Housing Study) The applicant is seeking to modify Condition 23 which currently reads as follows:

23. The recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd. by Hill PDA and dated November 2010 is to be undertaken.

The Affordable Housing Strategy was required through Concept Plan approval requirement C11. The applicant states: "…the strategy to provide affordable rental housing within the Cobaki Estate is not mandatory under the Concept Plan conditions, but it is conditional upon the approval of NRAS funding or equivalent, in order to make the concept financially viable. Council will note that the Affordable Housing Strategy includes the following statement. 'In this regard it is important to note that should Leda Manorstead not be successful in achieving NRAS funding for the provision of affordable housing dwellings, it may not be reasonable to assist upon their provision at sub market rent or value for reasons of financial viability. At this preliminary stage of the project there is insufficient detail available for Hill PDA to test this position using a development feasibility model.' ”

The applicant goes on to assert that Condition 23 does not recognise this important element of the Strategy, which has substantial impact upon the viability of the proposal and requests the following modification to Condition 23 (amendments shown in bold):

“23A. Subject to the successful application for NRAS funding, the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Ply Ltd by Hill PDA and dated November 2010 is to be undertaken.”

The Hill PDA Affordable Housing Study has been reviewed by Council officers with the following advice provided to the applicant in May 2012:

“Council is of the opinion that the requested amendment to the two related conditions (23 and 62 regarding affordable housing) would appear to weaken the commitment recommended in the Hill PDA Nov 2010 Cobaki Estate Affordable Housing Study. Among other things the Hill PDA Study commits to “NRAS funding or the equivalent” and Leda Manorstead using their “best endeavours”. As such, Council objects to the proposed modification of Condition 23.”

Correspondence submitted by the applicant in September 2013 accepts Council’s position in terms of Condition 23. As such Condition 23 remains in its current form and no further assessment is required. Condition 34 (Maximum disturbed area) The applicant is seeking to modify Condition 34 which currently reads as follows:

34. Prior to the issue of a Construction Certificate for civil works the following detail in accordance with Councils Development Design and Construction Specifications shall be submitted to the Principal Certifying Authority for approval. (a) copies of compliance certificates relied upon (b) four (4) copies of detailed engineering plans and specifications. The


• Earthworks





o The maximum disturbed area (that has not been permanently vegetated) at any time shall not exceed 5ha.






• Sewerage works






The applicant is seeking to modify the limitation on disturbing only 5 hectares at a time as it is considered, “unreasonable” and proposes the deletion of the five hectare requirement. Initially Council provided to the applicant in May 2012 acceptance of the proposed modification, as ultimately the development needs to comply with the requirements of D7 and Council’s Engineers would be on site for the majority of the development period to ensure compliance. These initial comments were made when Council was the certifying authority for the development. Following the withdrawal of the Construction Certificate from Council and the use of a Private Certifier who is responsible for inspecting the site, and only visiting the site once every two weeks, the applicant was advised in December 2013 that the proposed deletion of Condition 34 was no longer supported.


The applicant responded in January 2014, noting the following: “Further to Council’s intention to limit the extent of any disposed area in an earthworks operations exercise to 5Ha in area Leda make the following points:

• A 5Ha limit makes a cut to fill earthworks operation in these precincts inefficient and impractical when the volumes of material and length of leads (haulage distances) are considered;

• A detailed sediment and erosion control management regime has been successfully implemented for the Central Open Space Corridor and it is proposed that a similar system is established for these precincts; and

• Even though a Private Certifier only inspects the site on a fortnightly basis, Leda’s engineering consultants, Sedgman Yeats, are working directly under his instruction and carry out additional inspections at a greater frequency. Sedgman Yeats are effectively the certifiers eyes and ears on the ground and are able to attend site and respond to both the certifier’s and Council Officers’ requests as and when needed. As such there is no lesser control of the construction activities due to the involvement of the Private Certifier than is the case for developments where Council is the certifying authority.

For the above reasons and since Council’s comments discriminate against the use of Private Certification Leda maintains the original request to delete Condition 34.”

The proposal to delete the requirement of Condition 34 to limit exposed areas to 5ha is not supported. The success of the applicant’s "Sediment and Erosion Control Management" is not valid as the site has not yet been subjected to significant rain events to test the proposed regime. Given that dust management on the subject site in relation to current earthworks associated with the Central Open Space approval has been a continuing problem (resulting in Council receiving several dust complaints from nearby residents), it is not considered to be acceptable to allow additional land to be "opened up" with no maximum limit in place. It is noted that Planning & Infrastructure's (former NSW Department of Planning & Infrastructure) Project Approval for the Central Open Space corridor limits the maximum exposed areas with the following condition of consent:

21A(b) Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5Ha at any time to reduce exposed areas, unless otherwise approved by the Director-General.

As such, it is considered reasonable to modify Condition 34 in a similar fashion, as recommended below (amendment shown in bold). This will effectively allow a certain degree of flexibility for the applicant if they can provide a plan to Council showing the proposed extent of maximum exposed areas for Precinct 6.

34A. Prior to the issue of a Construction Certificate for civil works the following detail in accordance with Councils Development Design and Construction Specifications shall be submitted to the Principal Certifying Authority for approval. (a) copies of compliance certificates relied upon (b) four (4) copies of detailed engineering plans and specifications. The


• Earthworks











• Sewerage works






Condition 47 (Playgrounds) The applicant is seeking to modify Condition 47 which currently reads as follows:

47. Any playgrounds provided must comply with the guidelines established in the ‘Playground Audit for Tweed Shire Council’ (July 2009). Appendix 3 of this establishes a procedure for assessing nearby hazards and mitigation measures. New subdivisions approved after development of these guidelines must ensure no playground facility has a Facility Risk Rating exceeding 13 as defined in Table 3A7 of that document, unless otherwise approved by the General Manager or delegate.

The applicant states that this condition cannot be achieved without modifying the approved lot layout and request that the following condition is imposed instead:

“47A. Any playgrounds provided must comply with the guidelines established in the Playground Audit for Tweed Shire Council (July 2009). Appendix 3 of this


establishes the procedure for assessing nearby hazards and mitigation measures. New subdivisions approved after development of these guidelines must ensure no playground facility has a Facility Risk Rating exceeding 13 as defined in Table 3A7 of that document, unless otherwise approved by the General Manager or delegate. The proposed open space areas for this stage as identified in Planit Consulting Drawing Set Dated March 2011 shall be designed to minimise the hazards to designated playground areas consistent with those mitigating features identified in Appendix 3A7 of the Playground Audit for Tweed Shire Council (July 2009). Detailed drawings and reporting outlining mitigation measures to be employed to mitigate risk are to be submitted for approval by the General Manager or his delegate. In proposing mitigation measures consideration of long term maintenance costs shall be considered and evaluated in any reporting.”

In this instance, it is considered that the proposed modification of Condition 47 is acceptable. Note - this is a cooperative approach by Council to assist the developer in overcoming initial design problems. The developer has been advised that playgrounds and park design in future stages must meet the minimum requirements rather than depend on mitigation measures. Condition 48 (Grassing/Revegetation of the Central Open Space) The applicant is seeking to modify Condition 48 which currently reads as follows:

48. Further consideration is required regarding the grassing or revegetation of the central drain, and the two northern branches of this drain. A consultant skilled in natural area as well as landscape design is to assess the options available and, with particular reference to minimising maintenance requirements and weed incursion, recommend an appropriate planting plan. The plan is to be prepared to the satisfaction of the General Manager or his delegate and incorporated into the amended landscape plans for the public open space. Areas identified for planting or regeneration will require a 3 year maintenance period, and areas to be grassed will require 12 months maintenance after the Subdivision is registered with the Land Titles Office.

The applicant proposes again references clause 80A(6)(c) of the EP&A Act and states that they are willing to accept a three year maintenance period for environmental areas (pursuant to approved ecological reports and management plans accompanying the concept plan) but considers the maintenance period for the grassed areas should be…“subject to the normal statutory limits applying to maintenance bonds for the work”. Accordingly, the applicant proposed the following modification to Condition 48:

“48A. Further consideration is required regarding the grassing or revegetation of the central drain, and the two northern branches of this drain. A consultant skilled in natural area as well as landscape design is to assess the options available and, with particular reference to minimising maintenance requirements and weed incursion, recommend an appropriate planting plan. The plan is to be prepared to the satisfaction of the General Manager or his delegate and incorporated into the amended landscape plans for the public open space. Areas identified for planting or regeneration will require a 3 year maintenance period, and areas to be grassed will require 12 6 months maintenance after the Subdivision is registered with the Land Titles Office.


The applicant was advised in May 2012 that it was not agreed that clause 80A(6)(c) relates to maintenance bonds, but relates only to defects to public work and that the proposed modification to six months is not supported. Correspondence submitted by the applicant in September 2013 accepts Council’s position in terms of Condition 48. As such Condition 48 remains in its current form and no further assessment is required. Condition 51 (Low Flow Drain Realignment) The applicant is seeking to modify Condition 51 which currently reads as follows:

51. The low flow drain adjacent to park 6 in the central drainage area, and the drain adjacent to park 5 (fauna corridor) must be realigned to be a minimum of 30m from playground equipment and softfall.

The applicant notes that the location of the swale in the fauna corridor was altered at the request of Council during the assessment of the development application. The applicant also notes that the drain is only ‘wet’ during a rainfall event and as such presents minimal hazard to the park. As such, the applicant proposes to modify Condition 51, as referenced below:

“51A. The low flow drain adjacent to park 6 in the central drainage area, and the drain adjacent to park 5 (fauna corridor) must be realigned to be a minimum of 30m from playground equipment and softfall. The proposed open space area identified as Park 5 and Park 6 in Planit Consulting Drawing Set Dated March 2011 shall be designed to minimise the hazards to designated playground areas consistent with those mitigating features identified in Appendix 3A7 of the Playground Audit for Tweed Shire Council (July 2009). Detailed drawings and reporting outlining mitigation measures to be employed to mitigate risk are to be submitted for approval by the General Manager or his delegate.”

The applicant was advised in May 2012 that the low flow drain within the central drainage reserve should be so located so as to allow the play equipment in the park to be at least 30m distance. It was also noted that Park 6 is proposed as a larger district park and is likely to have more play equipment and higher usage than other parks. Therefore, Council objects to the proposed modification of Condition 51. The applicant confirmed in September 2013 that they accept Council’s position. As such Condition 51 remains in its current form and no further assessment is required. Condition 52 (Low Flow Drain Location) The applicant is seeking to delete Condition 52 which currently reads as follows:

52. The low flow drain within the central drain is to be located a minimum of 30 metres from the top of the eastern batter in areas adjacent to the sportsfields.

The applicant advises that the swale presents minimal hazard to the park users and has been located in the current position to share the cycleway as an access path for Council maintenance access. The applicant states that the specified 30m setback would make it unable to deliver the multiple sports fields and would remove proposed all weather access for Council maintenance. Hence the applicant proposed to delete Condition 52. The applicant was advised in May 2012 that "…Council staff have continuously stated that, following the developers insistence on the small sportsfield being located adjacent to the central drain, design must ensure there is no issue with sportsfield use and the central drain. The latest design of the central drainage area has the low flow drain within approximately 14


metres of the likely edge of the sportsfield despite requests to address the matter. Council considers that compliance with this condition is achievable. The intent of the rock lined drain is to create a minimal maintenance situation and ‘easy’ all weather maintenance access is not sufficient justification for the location of the drain.” As such, the proposed deletion of Condition 52 is not supported. The applicant confirmed in September 2013 that they accept Council’s position. As such Condition 52 remains in its current form and no further assessment is required. Condition 54 (Consent Conditions) The applicant is seeking to delete Condition 54 which currently reads as follows:

54. In accordance with Condition C18 of Concept Plan MP06_0316, a detailed description is to be provided to the satisfaction of the General Manager or delegate demonstrating compliance with previous Tweed Shire Council consent conditions intended to preserve wildlife corridors and protect and offset threatened species, populations and ecological communities and their habitats outside of the Concept Plan habitat requirements, or relevant reasons (such as subsequent amendments) as to why compliance was not required or may be transferred to current DAs. Such description is to include extracts of all relevant plans referred to in the conditions listed below sufficient to understand the land areas of relevance to the conditions and any overlap with current applications. Additional offset must be proposed if clearing of native vegetation has been undertaken not in accordance with the below development consents. Conditions to be addressed are as follows: (a) D94/0438.04 Conditions 23, 24, 34a, 35, 36a, 37 and 38. (b) K99/1124.06 Conditions 10, 15A, 30, 31, 41, 81, 83A, 90, 91, 92A, 93, 94A,

95A, 96, 97, 98, 99, 100, 101, 102A, 103, 104, 105, 106, 107, 108, 109 and Schedule B (National Parks imposed conditions via concurrence for Species Impact Statement.

(c) 1262/2001DA.02 Condition 9, 16, 17, 18. Where required the development consents are to be modified in accordance with Section 80A(1) of the Environmental Planning and Assessment Act and Regulations to be consistent with this consent.

The applicant is seeking to delete Condition 54 and argues that this condition is…“seeking to enforce unrelated development consents for subdivisions that will not be implemented to completion, does not relate to the area affected by the proposed development and which is inconsistent with the Concept Plan Approval”. The applicant goes on to assert that no further work is to be undertaken in accordance with the old bulk earthworks consent D94/438 and asserts that the item A4(2) of the Minister’s Concept Plan Approval will prevail to the extent of any inconsistency. As discussed above in relation to Condition 9, the applicant was advised in May 2012 that that because the site has a long history of approvals, the issue of compliance with old consents requires clarification to move forward with the proposed development. As such the proposed deletion of Condition 54 was opposed. The applicant confirmed in September 2013 that they accept Council’s position. As such Condition 54 remains in its current form and no further assessment is required.


It should also be noted that the applicant has submitted a compliance report in relation to the provisions of Condition 54 of DA10/0801. An assessment of the documentation has been completed and the applicant advised that Condition 54 is now considered satisfied. Condition 55 (Habitat Restoration Plans) The applicant is seeking to modify Condition 55 which currently reads as follows:

55. One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council in accordance with Council’s draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 10 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the subdivision plan (that is, other than as a an environmental protection area such as park or drainage reserve lots), additional EEC and habitat offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken. (b) a statement of commitment by the consent holder to funding the proposed

works for a minimum 5 year period. (c) a statement of commitment by the consent holder that the works will be

completed by qualified and experienced bush regeneration personnel. (d) a mechanism to fund in perpetuity the ongoing maintenance of the


The applicant has a concern with the maintenance period of five years, as well as funding in perpetuity of the environmental protection land not proposed to be dedicated to Council. The applicant asserts that the regeneration areas are to be maintained for three years (as per the Ecological Reports and Management Plans accompanied the Concept Plan). Furthermore, the applicant states that funding of works to comply with a condition of consent on private land is…“not a matter for Council to be involved in and the requirement to fund the maintenance in perpetuity is onerous and unprecedented.” The applicant asserts that a more logical approach would be for Council to use its power under the EP&A Act to ensure compliance with consent conditions. Accordingly, the applicant proposed the following modification to Condition 55:

“55A One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council in accordance with Council’s draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 10 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the subdivision plan (that is, other than as a an environmental protection area such


as park or drainage reserve lots), additional EEC and habitat offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken. (b) a statement of commitment by the consent holder to funding the proposed

works for a minimum 5 3 year period. (c) a statement of commitment by the consent holder that the works will be

completed by qualified and experienced bush regeneration personnel.


(d) a statement of commitment that any environmental protection land that is not proposed to be dedicated to Council is to be maintained to a reasonable standard by the landowner.”

The intent of the applied condition was to ensure that environmental protection lands were restored in a timely manner in accordance with approved plans and that these lands are managed for conservation outcomes in perpetuity. The applicant was advised in May 2012 of the following:

“Condition 55 requires Habitat Restoration plans for Management Areas 1, 2, 3, 4 and 13, and that such plans must include funding for a minimum 5 year period and provide a mechanism to fund in perpetuity. Council reads the wording of the approved James Warren Plan as 2-3 years to achieve canopy closure, then an additional three years of maintenance after canopy closure. Also, Council guidelines have been accepted and specify minimum 5 years. The intent of the applied condition was to ensure that the land parcels which were earmarked for protection or offset at the Concept Plan stage were restored in a timely manner and managed for conservation outcomes in perpetuity. The manner in which this outcome is achieved is open to negotiation, so long as a reasonable degree of certainty can be gained from such negotiation. No such certainty is yet available. As such, Council objects to the proposed modification of Condition 55.”

Correspondence was submitted by the applicant in September 2013, noting that the habitat restoration areas are to be dedicated to Council and that there is no power under the EP&A Act to require, ‘maintenance’ other than defects liability, which is limited to 6 months. Notwithstanding this, the applicant has given an undertaking to revegetate/remediate the management areas until all agreed completion criteria are met in accordance with the Site Regeneration and Rehabilitation Plan (SRRP). The applicant also noted that the proposed funding in perpetuity is "…not authorised under a Section 94 Plan and would be beyond the scope of Section 94 (as it would relate to maintenance rather than capital cost of establishment). It is also beyond the scope of Section 80A of the Environmental Planning and Assessment Act. Therefore there is no power in the Environmental Planning and Assessment Act, 1979 (as amended) for Council to lawfully impose such a condition.” Accordingly, the applicant proposed the following revised modification of Condition 55:


“55A One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council in accordance with Council’s draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 10 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 April 2013 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the subdivision plan (that is, other than as a an environmental protection area such as park or drainage reserve lots), additional EEC and habitat offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken.

(b) a statement of commitment by the consent holder to funding the proposed works for a minimum 5 year period




The applicant also advised that they intend to offer to dedicate the environmental protection land to Council following rehabilitation in accordance with the endorsed Management Plans, proposing the following new Condition 55B:

“55B Following the successful rehabilitation of Management Areas 10 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2013, the landowner shall offer to dedicate that land to Council in accordance with Tweed Section 94 Plan No. 10.”

The applicant was advised in December 2013 that the proposed modification of Condition 55 to delete the requirement for a funding mechanism is not supported. In addition the applicant was advised that the proposed new condition regarding the dedication of environmental land was under consideration, noting that a map delineating the proposed staging of management areas to be dedicated to Council (linked to each precinct) is required. Correspondence submitted by the applicant in January 2014 noted that the ‘funding in perpetuity’ issue is not able to be agreed at this point. While the applicant reserved the right to further challenge the matter, as a "…practical interim measure and so that the matter does not unduly prevent the issue of a Construction Certificate” the applicant requested that the funding in perpetuity issue be deferred until the Subdivision Certificate stage, asserting that the "…implementation and finalisation of the funding mechanism is not required until such time as the rehabilitation works have been undertaken, which is well after Subdivision certificate stage.”


As a result, the applicant has proposed the following revised modification of Condition 55: “55A One or more detailed Habitat Restoration Plan(s) must be submitted to and

approved by Council in accordance with Council’s draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 10 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 April 2013 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the subdivision plan (that is, other than as a an environmental protection area such as park or drainage reserve lots), additional EEC and habitat offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken.





In response to Council comments in relation to the proposed new Condition 55B, the applicant noted that the proposed areas to be dedicated are the same areas to be rehabilitated as shown on the approved application plans and detailed in the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated April 2013. As such, the applicant suggests that no staging plan is required. In terms of the proposed new Condition 55B (which is now being called new Condition 55.1) it should be noted that there is no objection to the offer of land dedication, although it is not considered necessary to condition such dedication. However, should a condition be required, the following wording of new Condition 55.1 is recommended:

55.1 Following the successful rehabilitation of Management Areas 10 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2013, the landowner shall offer to dedicate that land to Council.

In addition to the above, the applicant proposed the following new Condition 159: “159. Prior to the issue of a Subdivision Certificate the proponent must reach an

agreement with Council regarding a mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council.”


Following the 30 January 2014 Council workshop attended by Council officers and Leda representatives to discuss the issue of funding for the environmental land, the applicant submitted further correspondence in February 2014. It was acknowledged that concept of deferring the funding in perpetuity issue was not preferred by Council officers on the basis of…“potential delays to the issuing of a Subdivision Certificate could result if the matter was not resolved prior to that stage.” As an alternative, the applicant now proposes to a deferment of the funding in perpetuity issue to prior to the issue of a Construction Certificate for Civil Works, to "…allow the matter to be separated from the immediate need to obtain a construction certificate for Bulk Earthworks so that works may progress on the site.” This results in a new Condition 64.1 being proposed by the applicant as noted below. There are no further changes to the modifications noted above to Condition 55 (as requested by the applicant in January 2014).

“64.1 Prior to the issue of a Construction Certificate for Civil Work the proponent must reach an agreement with Council regarding a mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council.”

For the purposes of clarity, the applicant has noted that if the proposed new Condition 64.1 is adopted then the previously requested new Condition 159 would no longer be required. The applicant’s proposed modification of clause (b) in Condition 55 is considered to align more closely with the current wording of the SRRP and is considered acceptable subject to the following recommended amendments (shown in bold):

b) a statement of commitment by the consent holder to maintain the works until the relevant performance criteria of the Site Regeneration and Revegetation Plan are achieved and until such time as an agreement is reached with Council regarding the dedication of that land.

With regard to the proposed deletion of the funding mechanism in Clause (d) of Condition 55, it should be noted that the Concept Approval to carry out the project was determined according to the requirement to:

• Ensure adequate mitigation of environmental impacts of future development, and

• Ensure protection and restoration of threatened species and their habitat. This necessitates both immediate and ongoing management of the proposed environmental lands in the face of ongoing pressures from the development. Restoration and management of these lands is proposed by the applicant as the key mechanism for mitigating the impacts of removal of threatened species habitat and Endangered Ecological Communities from the site. It is appropriate that the mechanism for ensuring that management continues in perpetuity needs to be determined prior to the time that the major impact occurs, which is at the Bulk Earthworks stage. At the time of writing of the original condition, it was understood that the applicant was to retain the environmental protection land. The applicant now proposes to offer dedication of the environmental protection areas to Council once the performance criteria in the SRRP are reached. The offer of dedication is not opposed, provided the cost burden of management of these lands does not fall on existing ratepayers whether or not these lands are dedicated to Council. The proposed new Condition 64.1 is not supported in the form proposed by the applicant. The proposed deferment of the agreement to prior to Civil Earthworks Construction Certificate is not considered to be appropriate and should be resolved prior to Bulk


Earthwork Construction Certificate. This outcome is essentially the same as that required under the current provisions of clause (d) of Condition 55. As such, the new Condition 64.1 is not considered to be necessary and the deletion of clause (d) from Condition 55 is not considered to be acceptable. If however, it should be determined that clause (d) is to be deleted, it is highly recommended that Condition 64.1 be approved with the following amendments shown in bold:

64.1 Prior to the issue of a Construction Certificate for Bulk Earthworks the proponent must reach an agreement with Council regarding a mechanism to fund in perpetuity the ongoing maintenance of the environmental protection land not proposed to be dedicated to Council.

The proposed amendment of the date of the Revised Site Regeneration and Revegetation Plan to the most recent version (April 2013) is not opposed. For the purposes of clarity, the following wording of Condition 55 is recommended by Council officers:

55A One or more detailed Habitat Restoration Plan(s) must be submitted to and approved by Council in accordance with Council’s draft guidelines (attached), and in accordance with specific matters listed in Condition C4 of Concept Plan MP 06_0316. Such plan(s) must be prepared for Management Areas 10 and 13 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 April 2013 and representing compensatory offset for loss of habitat and Endangered Ecological Communities on the site in areas adjacent to the development. Where offset areas as detailed in the Revised Site Regeneration and Revegetation Plan are proposed as an alternate use within the subdivision plan (that is, other than as a an environmental protection area such as park or drainage reserve lots), additional EEC and habitat offset areas must be designated elsewhere in a location suitable to the vegetation community and/or threatened species to be protected and their habitat restored, with such areas totalling at least as committed within Concept Plan MP06_0316. The Habitat Restoration Plan(s) must also include: (a) a schedule and timing of works to be undertaken.


(b) a s ta tement of commitment by the cons ent ho lde r to mainta in the works until the re levant pe rformance c rite ria of the S ite Regenera tion and Revege ta tion P lan a re achieved and until such time as an agreement is reached with Council regarding the dedication of that land.



Condition 62 (Affordable Housing Study) The applicant is seeking to modify Condition 62 which currently reads as follows:

62. A staging plan detailing the location, mix and type of dwellings to be provided as affordable rental accommodation is to be submitted to Council in accordance with the recommended strategy contained in the Cobaki Estate Affordable Housing


Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd by Hill PDA and dated November 2010.

The applicant asserts that the strategy to provide affordable rental housing within the Cobaki Estate is not mandatory under the Concept Plan conditions, but is conditional upon the approval of NRAS funding. The applicant refers to the following statement from the affordable rental strategy as justification to modify this condition:

“In this regard it is important to note that should Leda Manorstead not be successful in achieving NRAS funding for the provision of affordable housing dwellings, it may not be reasonable to insist upon their provision at sub market rent or value for reasons of financial viability. At this preliminary stage of the project there is insufficient detail available for Hill PDA to test this position using a development feasibility model.”

The applicant proposes the following modification of Condition 62 (amendments shown in bold):

“62A. Subject to the successful application for NRAS funding, a Staging Plan detailing the location, mix and type of dwellings to be provided as affordable rental accommodation is to be submitted to Council in accordance with the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd by Hill PDA and dated November 2010.”

As noted for Condition 23, The Hill PDA Affordable Housing Study was reviewed by Council officers with applicant being advised in May 2012 that no change to the wording of Condition 62 is supported as the Hill PDA Study commits to “NRAS funding or the equivalent” and Leda Manorstead using their “best endeavours”. As such, the proposed modification of Condition 62 is not supported. In September 2013 the applicant responded by way of suggesting additional clarification so that there is no misconception as to when an affordable housing plan is required. The following amendment to Condition 62 was proposed by the applicant (amendments shown in bold):

“62A. Should, following the proponent’s best endeavours, NRAS (or equivalent) funding be available to provide affordable housing within the development in accordance with the approved Cobaki Estate Affordable Housing Study, a staging plan detailing the location, mix and type of dwellings to be provided as affordable rental accommodation is to be submitted to Council in accordance with the recommended strategy contained in the Cobaki Estate Affordable Housing Study (Final Version print date 14.1.2011) prepared for Leda Manorstead Pty Ltd by Hill PDA and dated November 2010.”

The proposed modification provides an acceptable outcome in terms of the applicant using their ‘best endeavours’ to deliver an NRAS program. As such, the applicant’s latest proposed modification of Condition 62, as shown above, is supported. Condition 63 (Fauna Road Crossing) The applicant is seeking to delete Condition 63 which currently reads as follows:

63. Detailed design drawings for all road crossings over the nominated fauna corridor are to be provided illustrating replacement of culverts with bridges to enable a range of fauna to range through the corridor and facilitate east-west connectivity for fauna across the site.


The applicant proposes to delete Condition 63 asserting that it is not acceptable to the developer and the proposed culverts in the flora and fauna assessment were found to be suitable. In addition, despite the additional cost associated with bridges, the applicant asserts "…construction of bridges within Precinct 6 would not remove the culverts that are to be constructed across the same fauna corridor at the Cobaki Parkway”. The applicant was advised in May 2012 that the reasoning for deletion of the condition based on cost is not supported by Council officers. The east/west corridor should remain as open as possible to provide the best fauna connection possible in the only east-west location provided on the site and to maximise the conveyance of stormwater. The inclusion of a box culvert crossing across this corridor will segment the corridor and take up dedicated open space. As such, Council objects to the proposed deletion of Condition 63. Following an exchange of correspondence, the applicant was advised in August 2012 of an acceptable fauna crossing, incorporating three 2.4 x 1.8m culverts in addition to two smaller culverts at section H and three smaller culverts at section I as shown in Figure 1 below:

Figure 1: Applicant’s fauna crossing plan with Council markup in red (August 2012). Correspondence submitted by the applicant in September 2013 proposed a new culvert design incorporating the requested number of culverts, but reduced sizes. The applicant was advised in December 2013 that their request to use culverts (instead of bridges), has been accepted on the basis of providing additional culverts with dimensions of 2.4m x 1.8m. The proposed reduction in height of the culverts (from 1.8m to 1.2m) is not supported. Correspondence submitted by the applicant in January 2014 notes that the required size of culverts is excessive…“due to the fact that only one (1) 2.4m wide x 1.8m high culvert is required under the adjacent approved Cobaki Parkway South road crossing.” The applicant also notes that the higher fauna culverts will impact on the surrounding road network. As an alternative, the applicant now proposes two x 2.4m x 1.8m culverts with a link slab to create three x 2.4m wide and 1.8m high openings, with the culverts at either end having a fauna ledge to provide dry passage, as noted below in Figure 2:


Figure 2: Applicant’s fauna crossing plan submitted Jan 2014 (Part of Plan No YC0229-11E1-FC01 Revision E) with blue notation added for clarity by Council Accordingly, the applicant now proposes to modify Condition 63 as follows:

“63A Detailed design drawings for allThe design of the road crossings over the nominated fauna corridor are to be provided illus tra ting rep lacement of cu lve rts with bridges to enable a range of fauna to range through the corridor and fac ilita te eas t-wes t connectivity for fauna ac ros s the s ite consistent with the concept sketches prepared by Yeats Consulting No YC0229-11E1-FC01 Revision E, dated 20 January 2014.”

It is not considered that any further compromise is available regarding the number of openings forming each road crossing. The use of two 2.4 x 1.8m culverts connected with a slab is acceptable, and it is suggested that this approach be used at the centre of each crossing with three 2.4 x 1.8m culverts connected with two slabs. The addition of one or two (minimum 2.4 x 1.2m) culverts at the edge of each crossing will be necessary to meet Council's requirements. The use of ledges in culverts is supported. The justification for a reduction in available crossing opportunity based on cost, the size of fauna likely to use the crossing or the single culvert under Cobaki Parkway is not accepted. As such the proposed modification of Condition 63 is not supported. However the following amendment to Condition 63 is recommended (amendments shown in bold).

63A. Detailed design drawings for all road crossings over the nominated fauna corridor are to be provided illustrating replacement of culverts with bridges submitted to the General Manager or his delegate for approval. Each crossing design shall incorporate three 2.4 x 1.8m culverts (or two 2.4 x 1.8m culverts connected with a slab) in the centre of the corridor and an additional culvert (minimum 2.4 x 1.2m) on either side of the central culverts to enable a range of fauna to cross through the corridor and facilitate east-west connectivity for fauna across the site.

Condition 65 (Primary Revegetation & Regeneration Works) The applicant is proposing to modify Condition 65 which currently reads as follows:

65. Primary revegetation and regeneration works for all areas indicated as representing offset for loss of Swamp Sclerophyll Forest EEC in Figure 4 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates dated October 2010 must be undertaken to the satisfaction of Council prior to the loss of any Swamp Sclerophyll Forest on site. Such areas are to total at least 15.25ha as committed within MP06_0316.


The applicant proposes to replace the word “undertaken” with the word “commenced”, to remove any ambiguity to Condition 65. As such, the applicant proposes to modify Condition 65 as referenced below:

“65A Primary revegetation and regeneration works for all areas indicated as representing offset for loss of Swamp Sclerophyll Forest EEC in Figure 4 of the Revised Site Regeneration and Revegetation Plan by James Warren and Associates, dated October 2010 must be undertaken commenced to the satisfaction of Council prior to the loss of any Swamp Sclerophyll Forest on site. Such areas are to total at least 15.25ha as committed within MP06_0316.

The applicant was advised in May 2012 that Condition 65 requires Primary revegetation and regeneration works for all areas indicated as representing offset for loss of Swamp Sclerophyll Forest EEC prior to the loss of any Swamp Sclerophyll Forest on site. The key word is “primary” revegetation or regeneration which means the first stage, i.e. for revegetation it means that planting has been completed and the area in under maintenance. For regeneration, it means the first thorough weed removal work has been completed throughout the nominated site. Such works are considered a reasonable stage to have been reached before clearing of additional habitat. Therefore, the proposed modification of Condition 65 is not supported. The applicant confirmed in September 2013 that they accept Council’s position. As such Condition 65 remains in its current form and no further assessment is required. Condition 73 (CEMP) The applicant is seeking to modify Condition 73 which currently reads as follows:

73. Prior to the commencement of construction works a Construction Environmental Management Plan (CEMP) must be prepared that covers the area of works. The CEMP shall be consistent with the Guideline for the Preparation of Environmental Management Plans (DIPNR, 2004). The CEMP shall include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the proposal during construction. The CEMP must include, but not be limited to all matters specified within Condition 25 of Project Application MP08_0200 and be submitted to and approved by the PCA no later than one month prior to commencement of construction, or within such period otherwise agreed by the General Manager or delegate.

The applicant asserts that the requirement for approval of the CEMP one month prior to commencement is an anomaly and may potentially delay commencement of works. The following modification is recommended by the applicant:

“73A Prior to the commencement of construction works a Construction Environmental Management Plan (CEMP) must be prepared that covers the area of works. The CEMP shall be consistent with the Guideline for the Preparation of Environmental Management Plans (DIPNR, 2004). The CEMP shall include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the proposal during construction. The CEMP must include, but not be limited to all matters specified within Condition 25 of Project Application MP08_0200 and be submitted to and approved for approval by the PCA no later than one month prior to commencement of construction, or within such period otherwise agreed by the General Manager or delegate.”

The applicant was advised in May 2012 that the proposed modification of Condition 73 is not supported as CEMP’s generally have pre-construction recommendations. It was noted that the applicant’s request to remove the reference of “no later than one month” is supported, as


it is the responsibility of the developer to manage the project to ensure that all Prior to Commencement of Works (PCW) matters are addressed prior to the commencement of works. As such, the following modification is recommended (amendments shown in bold): 73A. Prior to the commencement of construction works a Construction Environmental

Management Plan (CEMP) must be prepared that covers the area of works. The CEMP shall be consistent with the Guideline for the Preparation of Environmental Management Plans (DIPNR, 2004). The CEMP shall include details sufficient to understand and avoid, mitigate and remedy all potential environmental impacts of the proposal during construction. The CEMP must include, but not be limited to all matters specified within Condition 25 of Project Application MP08_0200 and be submitted to and approved by the PCA no later than one month prior to commencement of construction, or within such period otherwise agreed by the General Manager or delegate.

The applicant confirmed in September 2013 that they accept the abovementioned modification of Condition 73, as proposed. Condition 105 (Discharged Water) The applicant is seeking to modify condition 105 which currently reads as follows:

105. All waters that are to be discharged from the site shall have a pH between 6.5 and 8.5 and suspended solids not greater than 50mg/l. The contractor shall nominate a person responsible for monitoring of the quality of such discharge waters on a daily basis and the results recorded. Such results shall be made available to Council's Environmental Health Officer(s) upon request.

The applicant does not consider this condition to be practical during wet weather events and proposes the following modification:

“105A. All waters that are to be discharged from the site during dry weather periods shall have a pH between 6.5 and 8.5 and suspended solids not greater than 50mg/l. Where water is to be discharged from the site the contractor shall nominate a person responsible for monitoring of the quality of such discharge waters on a daily basis and the results recorded. Such results shall be made available to Council's Environmental Health Officer(s) upon request.”

As per Council’s Design Specification D7 – Stormwater Quality, the control on stormwater discharge is imposed up to the Q3 month rain event. The applicant was advised in May 2012 that the proposed modification of Condition 105 was not supported. However, the following modification (amendments shown in bold) was suggested:

105A. All waters that are to be discharged from the site during dry weather periods and wet weather periods up to the Q3 month rain event (as defined in Council’s Design Specification D7 – Stormwater Quality) shall have a pH between 6.5 and 8.5 and suspended solids not greater than 50mg/l. Where water is to be discharged from the site the contractor shall nominate a person responsible for monitoring of the quality of such discharge waters on a daily basis and the results recorded. Such results shall be made available to Council's Environmental Health Officer(s) upon request.



Condition 117 (Dedication of Passive Parks) The applicant is seeking to modify condition 117 which currently reads as follows:

117. The proposed passive parks are to be dedicated as passive open space and suitably embellished at no cost to Council in accordance with the approved landscaping plan. Where a developer pays Council to acquire and install play equipment, Council will NOT install the equipment until a minimum of 20% of the lots in that stage of the development are occupied. Embellishment arrangements shall be in place prior to the issue of a Subdivision Certificate.

The applicant argues that for marketing purposes, it will be important that park embellishment relevant to each stage be provided up front. The applicant proposes the following replacement condition:

“117A. The proposed passive parks are to be progressively dedicated as passive open space and suitably embellished at no cost to Council in accordance with the approved landscaping plan. Where a deve loper pa ys Counc il to acquire and ins ta ll p lay equipment, Counc il will NOT ins ta ll the equipment until a min imum of 20% of the lo ts in tha t s tage of the de ve lopment a re occupied . Embellishment arrangements shall be in place prior to the issue of a Subdivision Certificate.”

The applicant’s proposed modification of Condition 117 is supported. Condition 119 (Maintenance Bond) The applicant is seeking to amend Condition 119 which currently reads as follows:

119. Prior to the issue of a Subdivision Certificate, a maintenance bond equal to 25% of the contract value of the footpath and cycleway construction works shall be lodged for a period of 3 years or until 80% of the lots fronting paved footpaths and cycleways are built on. Alternatively, the developer may elect to pay a cash contribution to the value of the footpath and cycleway construction works plus 25% in lieu of construction and Council will construct the footpath when the subdivision is substantially built out. The cost of these works shall be validated by a schedule of rates.

The applicant is concerned with this condition as outlined below: “The provision of the proposed cycleway network will be progressively constructed in accordance with the development program and will not be delayed until the construction of dwellings in that stage have been substantially completed. The maintenance of the cycleways will be limited to material and workmanship and will not extend to damage caused by construction activities on private lots fronting the cycleway. Such damage should reasonably be the responsibility of the builder and/or owner of the adjoining lot. Condition 80A(6)(c) of the Environmental Planning and Assessment Act 1979 (as amended) prescribes a time limit for conditions of development consent that relate to the holding of security to remedy any defects that may occur to public works, that period being 6 months. It is also considered that the amount of the bond should be equal to 5% of the value of the work. Accordingly the following modification is proposed.”


The applicant proposes the following modification to Condition 119: “119A. Prior to the issue of a Subdivision Certificate, a maintenance bond equal to 25%

5% of the contract value of the footpath and cycleway construction works shall be lodged for a period of 3 years or until 80% of the lots fronting paved footpaths and cycleways are built on 6 months.

Alte rna tive ly, the deve loper ma y e lec t to pa y a cas h contribu tion to the va lue of the footpa th and c yc lewa y cons truc tion works plus 25% in lieu of cons truc tion and Counc il will cons truc t the footpa th when the s ubdivis ion is s ubs tan tia lly built ou t. The cos t o f the s e works s ha ll be va lida ted by a s chedule of ra tes .”

The imposition of a Defects Liability Bond in accordance with Section 80A(6)(c) is imposed under Condition 118, not 119 (or 120). Condition 118 imposes the appropriate 6 months timeframe, however it is noted that Section 80A(6)(c) doesn’t reference a limit on the percentage that can be applied, however Council have already imposed the requested 5% amount. Council’s imposition of conditions equivalent to Condition 119 became a standard condition in order to resolve the damage that was occurring to concrete footpaths in new developments. Concrete footpaths were being damaged and it was extremely difficult to prove who caused the damage. The applicant was advised in May 2012 that the condition was designed to encourage the construction of the paths after much of the house building was complete. It is not linked in any way to the standard 5% defect security bond to protect Council against faulty workmanship (i.e. Condition 118). The confusion may exist because Condition 119 contains the word “maintenance bond”. To rectify this, it is suggested that as part of this s96 application, the words “maintenance bond” are replaced with “performance bond” in Condition 119A. Under Section 80A(6)(b) Council may impose a condition (as per Condition 119) allowing the Consent Authority to enter into an agreement with the applicant, for the applicant to provide security for the payment of the cost to complete any public works. Section 80A(6)(b) does not limit to the amount or timeframe of this security, other than the security shall be of a reasonable amount, as determined by the Consent Authority. As such, the applicant’s proposed modification to Condition 119 is not supported. However, in order to remove any ambiguity between Condition 118 and Condition 119, it is recommended that Condition 119 is amended as follows:

119A. Prior to the issue of a Subdivision Certificate, a maintenance performance bond equal to 25% of the contract value of the footpath and cycleway construction works shall be lodged for a period of 3 years or until 80% of the lots fronting paved footpaths and cycleways are built on. Alternatively, the developer may elect to pay a cash contribution to the value of the footpath and cycleway construction works plus 25% in lieu of construction and Council will construct the footpath when the subdivision is substantially built out. The cost of these works shall be validated by a schedule of rates.



Condition 120 (Landscaping Bond) The applicant is seeking to modify Condition 120 which currently reads as follows:

120. A bond shall be lodged prior to the issue of the Subdivision Certificate to ensure that the associated landscaping is maintained by the developer for a period of 12 months from the date of issue of a Subdivision Certificate. The amount of the bond shall be 20% of the estimated cost of the landscaping or $3000 whichever is the greater.

As per with Condition 119, the applicant indicates that Condition 80A(6)(c) of the Environmental Planning and Assessment Act 1979 (as amended) states that the holding of security to remedy any defects that may occur to public works, is limited to a period of 6 months and that the bond should be equal to 5% of the value of the work. Accordingly the Applicant proposes to modify Condition 120 as follows:

“120A. A bond shall be lodged prior to the issue of the Subdivision Certificate to ensure that the associated landscaping is maintained by the developer for a period of 12 6 months from the date of issue of a Subdivision Certificate. The amount of the bond shall be 20% 5% of the estimated cost of the landscaping or $3000 whichever is the greater.

As noted in Condition 119 above, the imposition of a Defects Liability Bond in accordance with Section 80A(6)(c) is imposed under Condition 118, not 120 (or 119). Under Section 80A(6)(b), Council may impose a condition (as per Condition 119), allowing the Consent Authority to enter into an agreement with the applicant, for the applicant to provide security for the payment of the cost to complete any public works. Section 80A(6)(b) does not limit to the amount or timeframe of this security, other than the security shall be of a reasonable amount, as determined by the Consent Authority. The amendment regarding maintenance period cannot be supported as Council’s Development Design Specification D14 ‘Landscaping Public Open Space’ specifies 12 months maintenance for any Landscape Works (Appendix H, Sect.7). Note the ‘maintenance period’ refers to plant establishment and care, and is not related to defects as referenced in Section 80A(6)(c). The amount of 20% is recorded in Council’s 'standard condition PSC 0235’. Similar to that with Condition 119, the confusion with Condition 120 lies within the condition’s current reference of the word “maintained”, possibly being interpreted by the applicant as “maintenance”. To rectify this, it is suggested that as part of this s96 application, Condition 120 be amended to clarify that it does not refer to defects/maintenance (i.e. Section 80A(6)(c)) but “establishment and performance” (i.e. Section 80A(6)(b)). The applicant was advised in May 2012 that the proposed modification to Condition 120 was not supported; however, in order to remove any ambiguity between Condition 118 and Condition 120, it is recommended that Condition 120 is amended as follows.

120A. A bond shall be lodged prior to the issue of the Subdivision Certificate to ensure that the associated landscaping is maintained by the developer for a period of to ensure suitable care and maintenance is provided to plantings and turf over a 12 month establishment period. This care is required to achieve optimal plant establishment and performance. The bond shall be held by Council to ensure that the associated landscaping is maintained by


the developer for a period of 12 months from the date of issue of a Subdivision Certificate. The amount of the bond shall be 20% of the estimated cost of the landscaping or $3000 whichever is the greater.

The applicant confirmed in September 2013 that they accept the abovementioned modification of Condition 120, as proposed. Condition 121 (Cash bond / Bank Guarantee – SRRP) The applicant is seeking to modify Condition 121 which currently reads as follows:

121. Cash Bond/Bank Guarantee (a) A Cash Bond or Bank Guarantee to ensure that the approved Site

Regeneration and Revegetation Plan (SRRP) is implemented and completed, must be lodged with Council prior to the release of the Subdivision Certificate. The amount of such bond will be based on the cost of environmental repair, enhancement and maintenance works to be undertaken in accordance with the approved SRRP. In this regard, two (2) written quotes from suitably experienced and qualified bush regenerators (to the satisfaction of the General Manager or his delegate) must be submitted to Council which detail the cost of all works associated with the SRRP. The amount of the bond will be equivalent to 100% of the estimated cost of works.

(b) One third of the Cash Bond or Bank Guarantee will be refunded one year after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works are being satisfactorily undertaken in accordance with the approved SRRP. A further one third of the Bond or Bank Guarantee will be refunded 3 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily reached the defined half-way stage of the SRRP. The final one third of the Bond or Bank Guarantee will be released 5 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that the SRRP has been satisfactorily completed.


The applicant acknowledges that the regeneration areas will require a 3 year maintenance period, as per the Ecological Reports and Management Plans that accompanied the Concept Plan, however they believe that under Section 80A(3), the maintenance period should legally be limited to 6 months.


The applicant also states that the bond should relate to ‘uncompleted works’ only (if applicable) and ‘maintenance’. Accordingly, the applicant proposes to modify Condition 121 as follows:

“121A. Cash Bond/Bank Guarantee (a) A Cash Bond or Bank Guarantee to ensure that the approved Site

Regeneration and Revegetation Plan (SRRP) is implemented and completed and maintained for 3 years must be lodged with Council prior to the release of the Subdivision Certificate. The amount of such bond will be based on the cost of environmental repair, enhancement uncompleted work (if any) and maintenance work to be undertaken in accordance with the approved SRRP. In this regard, two (2) written quotes from suitably experienced and qualified bush regenerators (to the satisfaction of the General Manager or his delegate) must be submitted to Council which detail the cost of all works associated with the SRRP. The amount of the uncompleted work bond will be equivalent to 100% of the estimated cost of the uncompleted works and the maintenance work bond will be 5% of the value of the work.

(b) One third of the Cash Bond or Bank Guarantee The uncompleted work bond will be refunded one year after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily completed in accordance with the approved SRRP. A further one third of the Bond or Bank Guarantee will be refunded 3 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily reached the defined half-way stage of the SRRP. The final one third of the Bond or Bank Guarantee will be released 5 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that the SRRP has been satisfactorily completed.

(c) Monitoring of the effectiveness of environmental repair, enhancement and maintenance works must be undertaken by an independent and suitably qualified and experienced bush regenerator at yearly intervals following initiation of the Environmental Restoration Plan SRRP works. Reports of this monitoring must provide the basis for the person issuing certification for the bond or bank guarantee refunding stages and must be annually submitted to Council as evidence. Any supplementary or approved adaptive management works deemed necessary by the independent bush regenerator during the life of the SRRP must be undertaken once the need is identified. The maintenance bond will be refunded after 3 years and on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been maintained in accordance with the approved SRRP."

Condition 121 requires a cash bond or bank guarantee based on the value of restoration works, to be progressively refunded based upon success shown by monitoring reports. The applicant states that the bond should relate to ‘uncompleted works’ only (if applicable) and ‘maintenance’ because the work is to be commenced prior to the issue of the Construction Certificate.


The condition actually reads “prior to the release of the Subdivision Certificate”, i.e. after the construction is complete. The applicant was advised in May 2012 that the proposed modification of Condition 121 was not supported. However, the following modification of Condition 121 (amendments shown in bold) was proposed: 121A. Cash Bond/Bank Guarantee

(a) A Cash Bond or Bank Guarantee to ensure that the approved Site Regeneration and Revegetation Plan (SRRP) is implemented and completed, must be lodged with Council prior to the release of the Subdivision Certificate. The amount of such bond will be based on the cost of environmental repair, enhancement and maintenance works remaining to be undertaken in accordance with the approved SRRP. In this regard, two (2) written quotes from suitably experienced and qualified bush regenerators (to the satisfaction of the General Manager or his delegate) must be submitted to Council which detail the cost of all works associated with the SRRP. The amount of the bond will be equivalent to 100% of the estimated cost of works. (b) One third of the Cash Bond or Bank Guarantee will be refunded one year

after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works are being satisfactorily undertaken in accordance with the approved SRRP. A further one third of the Bond or Bank Guarantee will be refunded 3 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that works have been satisfactorily reached the defined half-way stage of the SRRP. The final one third of the Bond or Bank Guarantee will be released 5 years after the initiation of works on submission of certification by a suitably experienced and qualified bush regenerator stating that the SRRP has been satisfactorily completed.


The applicant confirmed in September 2013 that they accept the abovementioned modification of Condition 121, as proposed. Condition 133 (Dedication of Drainage Reserve) The applicant is seeking to modify Condition 133 which currently reads as follows:

133. Prior to the release of the Subdivision Certificate the proponent shall: (a) Dedicate the proposed drainage reserve at no cost to Council. (b) Submit an accurate plan of the proposed drainage reserve to Council 60

days prior to lodgement of Application for Subdivision Certificate to allow the land to be classified.


The applicant proposes to modify Condition 133, to clarify staging dedication requirements, as follows:

“133A. Prior to the release of the Subdivision Certificate the proponent The Plan of Proposed Subdivision shall dedicate the proposed drainage reserve adjacent to that stage of the development at no cost to Council. The proponent shall submit an accurate plan of the proposed drainage reserve to Council 60 days prior to lodgement of Application for Subdivision Certificate to allow the land to be classified.”

The applicant’s proposed modification of Condition 133 is supported. Condition 136 (Underground Telephone Supply) The applicant is seeking to modify Condition 136 which currently reads as follows:

136. The production of written evidence from the local telecommunications supply authority certifying that the provision and commissioning of underground telephone supply at the front boundary of all allotments associated with the Subdivision Certificate has been completed.

The applicant proposes to amend the reference for the “provision and commissioning of underground telephone supply” to be provided to the “satisfactory arrangements have been made”, believing that this is Council’s standard. As such, the applicant proposed to modify Condition 136 as follows:

“136A. The production of written evidence from the local telecommunications supply authority certifying that the provision and commissioning satisfactory arrangements have been made for the provision of underground telephone supply at the front boundary of all allotments associated with the Subdivision Certificate has been completed for each Subdivision Certificate Application.”

The applicant was advised in May 2012 that the current wording of Condition 136 has been Council’s standard wording since 19 August 2009 and as such, the proposed modification of Condition 136 is not supported. Correspondence submitted by the applicant in September 2013 accepts Council’s position in terms of Condition 136. As such Condition 136 remains in its current form and no further assessment is required. Condition 148 (Embellishment of Casual Open Space) The applicant is seeking to modify Condition 148 which currently reads as follows:

148. Embellishment of all areas of casual open space, structured open space, cycleways, pedestrian links and streetscapes is to be completed, consistent with the approved landscape plans, to the satisfaction of the General Manager Tweed Shire Council or delegate prior to issue of the Subdivision Certificate. Installation of playground equipment and softfall however will not occur until 20% of the relevant stage’s allotments are occupied. The developer must contribute the appropriate financial contribution for these items as a bond prior to the release of the relevant Subdivision Certificate for each stage. Council will undertake the installation at the appropriate time.

For marketing purposes, the applicant intends to embellish the parks with each stage. The applicant does not propose to utilise Council to acquire and install the equipment.


As such, the following replacement condition is proposed by the applicant: “148A. The staged embellishment of all areas of casual open space, structured open

space, cycleways, pedestrian links and streetscapes is to be completed, consistent with the approved landscape plans, to the satisfaction of the General Manager Tweed Shire Council or delegate prior to issue of the Subdivision Certificate. Installation of playground equipment and softfall however will not occur until 20% of the relevant stage’s allotments are occupied. The developer must contribute the appropriate financial contribution for these items as a bond prior to the release of the relevant Subdivision Certificate for each stage. Council will undertake the installation at the appropriate time.”

The applicant was advised in May 2012 that the proposed modification of Condition 148 was not supported, with the exception of the inclusion of the word ‘staged’. Council officers propose the following modification to Condition 148 (amendments shown in bold):

148A. The staged embellishment of all areas of casual open space, structured open space, cycleways, pedestrian links and streetscapes is to be completed, consistent with the approved landscape plans, to the satisfaction of the General Manager Tweed Shire Council or delegate prior to issue of the Subdivision Certificate. The Developer will be responsible for maintaining the installed playground equipment and softfall for a period of 6 months after 20% of the relevant stage’s allotments have been occupied. A maintenance compliance bond of 5% of the total cost of the installed playground equipment and softfall must be paid to Council prior to the release of the relevant Subdivision Certificate for each stage. The bond will be return upon request at the completion of the maintenance period, if not expended during the maintenance period.

The applicant confirmed in September 2013 that they accept the abovementioned modification of Condition 148, as proposed. Condition 149 (Maintenance Period) The applicant is seeking to modify Condition 149 which currently reads as follows:

149. The developer is to undertake maintenance operations on all casual and structured public open space for a minimum of 12 months after the Subdivision is registered with the Land Titles Office. Such maintenance will include all soft landscaping, particularly mowing and weed control. Any power and water consumption costs during this period must also be met by the developer.

Similar to that for Condition 48, the applicant proposes to amend this condition to replace the currently proposed 12 month maintenance period on all casual and structures public open space to “the standard” 6 months period. (The applicant references Section 80A(3) of the EP&A Act as justification). The applicant proposed to modify Condition 149 as follows:

“149A. The developer is to undertake maintenance operations on all casual and structured public open space for a minimum of 12 6 months after the Subdivision is registered with the Land Titles Office. Such maintenance will include all soft landscaping, particularly mowing and weed control. Any power and water consumption costs during this period must also be met by the developer.”


The applicant was advised in May 2012 that the proposed modification of Condition 149 was not supported. Council’s Development Design Specification D14 ‘Landscaping Public Open Space’ specifies 12 months maintenance for any Landscape Works (Appendix H, Sect.7). It is also noted the ‘maintenance period’ refers to plant establishment and care, and is not related to defects as referenced in Section 80A(6)(c). Correspondence submitted by the applicant in September 2013 accepts Council’s position in terms of Condition 149. As such Condition 149 remains in its current form and no further assessment is required. Condition 156 (Community Centre Site) The applicant is seeking to modify Condition 156 currently reads as follows:

156. The land designated as the community centre site is to be dedicated to Council at no cost in accordance with the Section 94 Plan No. 10 Cobaki Lakes Public Open space and Community Facilities.

The applicant notes that the community centre site is not proposed within Precincts 6. As it is located within Precinct 17 it is not subject to a lot layout or infrastructure planned for under the development consent. As such, the applicant proposes to modify Condition 156 as follows:

“156A. The land designated as the community centre site is to be dedicated to Council at no cost in accordance with the Section 94 Plan No. 10 – Cobaki Lakes Public Open Space and Community Facilities. The land will be unserviced and will have frontage to Sandy Lane in its present state.”

The applicant was advised in May 2012 that the proposed modification of Condition 156 was not supported. Although it is acknowledged that the Community Centre Site is not located within Precinct 6, it is noted that it is not located within Precinct 17 either. The approved Concept Plan indicates that the site is within the Central Open Space. Despite this, S94 No 10 – Cobaki Lakes Public Open Space and Community Facilities requires 150m2 of floor area at the start of the development. This would require the site to be serviced. As a result of being inconsistent with the section 94 plan, as the proposed modification of Condition 156 is not supported. In September 2013 the applicant responded, noting that the construction of services to the Community Centre is not economically viable unless it is associated with the creation of residential lots. The applicant proposed the following amendment to Condition 156 (amendments shown in bold):

“156A. The land designated as the community centre site is to be dedicated to Council at no cost in accordance with the Section 94 Plan No. 10 – Cobaki Lakes Public Open Space and Community Facilities. Prior to the release of a Subdivision Certificate the land owner of the site of the future Cobaki Community Centre under Concept Plan Approval MP06_0316 is to enter into a Deed of Agreement with Council such that the identified land is to be provided with a constructed road frontage and all normal urban services and dedicated to Council at no cost prior to the release of a Subdivision Certificate that would allow the creation of more than 2000 residential lots within the Cobaki development.”

The applicant’s proposed Condition 156A is not considered to be consistent with the intention of Contribution Plan 10 in that the land will not be dedicated and a 150m2 Multipurpose Hall will not be constructed at the initial stages of the development.


However, as there are significant financial impediments to providing the land, the likely use of this hall will be limited, and the Hall may detract from the ultimate facility intended for this site, provision of the land at the 2000 lot stage and construction of a facility sometime after this stage is considered an appropriate strategy. As such, the applicant’s proposed modification of Condition 156 is supported. Condition 158 (Dedication of Drainage Reserve) The applicant is seeking to modify condition 158 which currently reads as follow:

158. Lots 602, 603 and 605 adjoining the central drain are to be dedicated as drainage reserve, not environmental open space as indicated on the ‘Plan of Proposed Subdivision, Precinct 6 Drainage Reserves & Parks’ reference Michel Group Services 6400-218 Issue A dated 24/11/2010. In this regard additional offset for Swamp Sclerophyll Forest totalling 2936m2 is to be included in the site specific Site Regeneration and Revegetation Plan.

The applicant considers that the requirement of additional off-set land is addressed in modified Condition 55A. As such, the Applicant proposes to modify Condition 158 as follows:

“158A. Lots 602, 603 and 605 adjoining the central drain are to be dedicated as drainage reserve, not environmental open space as indicated on the 'Plan of Proposed Subdivision, Precinct 6 Drainage Reserves & Parks', reference Michel Group Services 6400-218, Issue A, dated 24/11/2010. In th is regard additiona l offs e t for Swamp Sc le rophyll Fores t to ta lling 2936m 2 is to be inc luded in the s ite s pec ific S ite Regenera tion and Revege ta tion P lan .”

The applicant’s proposed modification of Condition 158 is supported. Considerations under Section 96 of the Environmental Planning and Assessment Act 1979: Although the original application was determined by the Joint Regional Planning Panel (JRPP), this S96(1a) application can be determined by Council. Section 96(1A) of the Act states that in order to grant consent, the consent authority must consider the following:





Likely Environmental Impact An extensive assessment has been undertaken with regard to the proposed modifications to the approved residential subdivision development, as noted in the 79C assessment above. In conclusion, the proposed amendments that have been supported are not considered to result in any significant environmental impact, subject to appropriate conditions of consent.


Substantially the Same Development The proposed modifications being recommended for approval are considered unlikely to result in any significant changes to the originally approved development, with no additional parcels of land being proposed. As such, the proposed modifications are considered to be substantially the same development as that originally approved. Consideration of Submissions The application did not require advertising or notification. As such, no submissions were received. Public interest The proposed modifications to Development Consent DA10/0801 which are being supported are considered to be acceptable in terms of public interest. The proposed modifications being supported are not considered to result in a significant negative impact upon the surrounding area, subject to the recommended conditions of consent. OPTIONS: 1. Approve the proposed modifications, subject to the recommended conditions of

consent; or 2. Refuse the proposed modifications; or 3. Approve the proposed modifications as proposed by the applicant; or 4. Approve/Refuse individual condition modifications. Council officers recommend Option 1. CONCLUSION: This assessment has had regard for all of the issues raised by the applicant in terms of potential impact and acceptability of the proposal. As a result, the proposed modifications which are being supported are considered to be acceptable and it is considered that the proposal warrants approval, subject to the recommended amendments to Development Consent DA10/0801. COUNCIL IMPLICATIONS: a. Policy: Policies/Controls as detailed in the body of the report. Section 8 (Charter) of the Local Government Act 1993 states that "…to have regard to the long term and cumulative effects of it's decisions. To bear in mind that it is the custodian and trustee of public assets and to effectively plan for, account for, and manage the assets for which it is responsible." b. Budget/Long Term Financial Plan: As detailed in the summary and body of the report.


c. Legal: The applicant has identified that they reserve the right to challenge several of the conditions being proposed for modification. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Nil.


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6 [PR-PC] Development Application DA13/0624 for a Detached Dual Occupancy, Gazebo & Swimming Pool - Two Stages at Lot 501 DP 1174455 No. 161 Overall Drive, Pottsville




SUMMARY OF REPORT:

Consent is sought for a detached dual occupancy, gazebo and swimming pool in two stages. Stage 1 comprises the construction of Dwelling 1, gazebo and swimming pool. Stage 2 comprises the construction of Dwelling 2. Both dwellings are single storey and the site is located on the corner of Overall Drive and Kellehers Road, in Black Rocks Estate, Pottsville. The application is being reported to Council under the provisions of Clause 32B(4)(b) of the North Coast Regional Environmental Plan 1988 whereby development is not permitted to overshadow waterfront open space prior to 4pm midwinter or 7pm mid summer. The proposed development will result in a small amount of overshadowing of the foreshore area to the rear of the site prior to 3pm in both summer and winter. A SEPP 1 Objection to the standard is also contained within the application. Whilst Council has assumed concurrence in relation to this standard, the Department of Planning’s Circular PS08-014 issued on 14 November 2008 requires all SEPP No. 1 variations greater than 10% to be determined by full Council. Given the Department of Planning and Infrastructure have advised Council Officers to be conservative with the application of the 10% rule, and it is virtually impossible to calculate 10% of the shadow development standard as it is time based, officers have resolved to report this application to full Council, with a recommendation of approval subject to conditions of consent.


RECOMMENDATION:

That: A. State Environmental Planning Policy No. 1 objection to Clause 32B(4)(b) of the

North Coast Regional Environmental Plan regarding overshadowing of beaches or adjacent open space before 3pm midwinter or 7pm midsummer be supported and the concurrence of the Director-General of the Department of Planning and Infrastructure be assumed.

B. Development Application DA13/0624 for a detached dual occupancy, gazebo & swimming pool – two stages at Lot 501 DP 1174455 No. 161 Overall Drive, Pottsville be approved subject to the following conditions: GENERAL 1. The development shall be completed in accordance with the Statement of

Environmental Effects and Plans as listed in the table below, except where varied by the conditions of this consent:

TITLE PREPARED BY DATED Site Plan - Ground Floor (Sheet 4 of 27)

Stuart Osman Building Designs

Rev I dated 22/01/14

House 1 - Floor Plan (Sheet 8 of 27)



House 1 - Roof Plan (Sheet 9 of 27)



Elevation 1 and Elevation 2 (Sheet 10 of 27)






House 2 - Floor Plan (Sheet 17 of 27)



House 2 - Roof Plan (Sheet 18 of 27)









Site Elevation - East Boundary (as amended in red and highlighted)



[GEN0005]

2. The issue of this Development Consent does not certify compliance with

the relevant provisions of the Building Code of Australia. [GEN0115]


3. A Sewer manhole is present on this site. This manhole is not to be covered with soil or other material. Should adjustments be required to the sewer manhole, then application shall be made to Council's Community and Natural Resources Division for approval of such works.

[GEN0155]

4. The owner is to ensure that the proposed building is constructed in the

position and at the levels as nominated on the approved plans or as stipulated by a condition of this consent, noting that all boundary setback measurements are taken from the real property boundary and not from such things as road bitumen or fence lines.

[GEN0300]

5. This is a staged consent as follows:

• Stage 1 comprises the construction of Dwelling 1, gazebo and

swimming pool. • Stage 2 comprises the construction of Dwelling 2. All conditions apply equally to both stages unless otherwise specified.

6. The Dwelling 2 site must be maintained in a clean and tidy manner and grassed until such time as Dwelling 2 is constructed.

[GENNS01]

PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE 7. In accordance with Section 109F(i) of the Environmental Planning and

Assessment Act 1979 (as amended), a construction certificate for SUBDIVISION WORKS OR BUILDING WORKS shall NOT be issued until any long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986 (or where such levy is payable by instalments, the first instalment of the levy) has been paid. Council is authorised to accept payment. Where payment has been made elsewhere, proof of payment is to be provided.

[PCC0285]

8. A detailed plan of landscaping containing no noxious or environmental

weed species and with a minimum 80% of total plant numbers comprised of local native species is to be submitted and approved by Council's General Manager or his delegate prior to the issue of a Construction Certificate. This plan must also consider the landscape plan requirements of DCP A1 - Residential Development Code, especially with regard to native indigenous plant species.

[PCC0585]


9. A single dwelling or group of up to three attached or detached dwellings, having a Building Code classification of 1a, must be connected by means of a single water service pipe each of which is connected to an individual Council water meter to allow individual metering. Application for the meters shall be made to the supply authority detailing the size in accordance with NSW Code of Practice - Plumbing and Drainage and BCA requirements.

[PCC1305]

10. If the development is likely to disturb or impact upon telecommunications

infrastructure, written confirmation from the service provider that they have agreed to the proposed works must be submitted to the Principal Certifying Authority prior to the issue of a Construction Certificate or any works commencing, whichever occurs first. The arrangements and costs associated with any adjustment to telecommunications infrastructure shall be borne in full by the applicant/developer.

[PCC1325]

PRIOR TO COMMENCEMENT OF WORK 11. The erection of a building in accordance with a development consent must

not be commenced until: (a) a construction certificate for the building work has been issued by the

consent authority, the council (if the council is not the consent authority) or an accredited certifier, and

(b) the person having the benefit of the development consent has: (i) appointed a principal certifying authority for the building work,

and (ii) notified the principal certifying authority that the person will carry

out the building work as an owner-builder, if that is the case, and (c) the principal certifying authority has, no later than 2 days before the

building work commences: (i) notified the consent authority and the council (if the council is not

the consent authority) of his or her appointment, and (ii) notified the person having the benefit of the development consent

of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(d) the person having the benefit of the development consent, if not

carrying out the work as an owner-builder, has: (i) appointed a principal contractor for the building work who must

be the holder of a contractor licence if any residential work is involved, and


(ii) notified the principal certifying authority of any such

appointment, and (iii) unless that person is the principal contractor, notified the

principal contractor of any critical stage inspection and other inspections that are to be carried out in respect of the building work.

[PCW0215]

12. Prior to work commencing, a "Notice of Commencement of Building or

Subdivision Work and Appointment of Principal Certifying Authority" shall be submitted to Council at least 2 days prior to work commencing.

[PCW0225]

13. Residential building work:

(a) Residential building work within the meaning of the Home Building Act

1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information: (i) in the case of work for which a principal contractor is required to

be appointed:

* in the name and licence number of the principal contractor, and

* the name of the insurer by which the work is insured under

Part 6 of that Act,

(ii) in the case of work to be done by an owner-builder: * the name of the owner-builder, and * if the owner-builder is required to hold an owner builder

permit under that Act, the number of the owner-builder permit.

(b) If arrangements for doing the residential building work are changed

while the work is in progress so that the information notified under subclause (1) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

[PCW0235]


14. A temporary builder's toilet is to be provided prior to commencement of work at the rate of one closet for every 15 persons or part of 15 persons employed at the site. Each toilet provided must be: (a) a standard flushing toilet connected to a public sewer, or (b) if that is not practicable, an accredited sewage management facility

approved by the council [PCW0245]

15. Where prescribed by the provisions of the Environmental Planning and

Assessment Regulation 2000, a sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: (a) showing the name, address and telephone number of the principal

certifying authority for the work, and (b) showing the name of the principal contractor (if any) for any building

work and a telephone number on which that person may be contacted outside working hours, and

(c) stating that unauthorised entry to the site is prohibited. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

[PCW0255]

16. Prior to commencement of work on the site all erosion and sedimentation control measures are to be installed and operational including the provision of a "shake down" area, where required to the satisfaction of the Principal Certifying Authority. These measures are to be in accordance with the approved erosion and sedimentation control plan and adequately maintained throughout the duration of the development. In addition to these measures the core flute sign provided with the stormwater approval under Section 68 of the Local Government Act is to be clearly displayed on the most prominent position of the sediment fence or erosion control device which promotes awareness of the importance of the erosion and sediment controls provided. This sign is to remain in position for the duration of the project.

[PCW0985]


DURING CONSTRUCTION 17. Construction and/or demolition site work including the entering and leaving

of vehicles is limited to the following hours, unless otherwise permitted by Council: Monday to Saturday from 7.00am to 6.00pm No work to be carried out on Sundays or Public Holidays The proponent is responsible to instruct and control subcontractors regarding hours of work.

[DUR0205] 18. All building work (other than work relating to the erection of a temporary

building) must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate was made).

[DUR0375]

19. Building materials used in the construction of the building are not to be

deposited or stored on Council's footpath or road reserve, unless prior approval is obtained from Council.

[DUR0395]

20. The Principal Certifying Authority is to be given a minimum of 48 hours

notice prior to any critical stage inspection or any other inspection nominated by the Principal Certifying Authority via the notice under Section 81A of the Environmental Planning and Assessment Act 1979.

[DUR0405]

21. All cut or fill on the property is to be battered at an angle not greater than

45º within the property boundary, stabilised and provided with a dish drain or similar at the base in accordance with Tweed Shire Councils Design and Construction Specifications, Development Control Plan Part A1 to the satisfaction of the Principal Certifying Authority. Please note timber retaining walls are not permitted.

[DUR0835] 22. The development is to be carried out in accordance with the current BASIX

certificate and schedule of commitments approved in relation to this development consent.

[DUR0905] 23. All work associated with this approval is to be carried out so as not to

impact on the neighbourhood, adjacent premises or the environment. All necessary precautions, covering and protection shall be taken to minimise impact from: • Noise, water or air pollution. • Dust during filling operations and also from construction vehicles. • Material removed from the site by wind.

[DUR1005]


24. All works shall be carried out in accordance with Councils Acid Sulfate Soils Management Plan for Minor Works. A signed copy of this Management Plan shall be submitted to Council prior to the commencement of works.

[DUR1075] 25. Any damage caused to public infrastructure (roads, footpaths, water and

sewer mains, power and telephone services etc) during construction of the development shall be repaired in accordance with Councils Development Design and Construction Specifications prior to the issue of a Subdivision Certificate and/or prior to any use or occupation of the buildings.

[DUR1875]

26. Swimming Pools (Building)

(a) The swimming pool is to be installed and access thereto restricted in accordance with Australian Standard AS 1926.1 - 2012 & AS 1926.2 -2007, the Swimming Pool Act 1992 and the Swimming Pool Regulation 2008.

(b) Swimming pools shall have suitable means for the drainage and

disposal of overflow water. (c) The pool pump and filter is to be enclosed and located in a position so

as not to cause a noise nuisance to adjoining properties. (d) Warning notices are to be provided in accordance with Part 3 of the

Swimming Pool Regulations 2008. (e) Once your pool or spa is complete please register it at

www.swimmingpoolregister.nsw.gov.au. [DUR2075]

27. Backwash from the swimming pool is to be connected to the sewer in

accordance with Australian Standard AS 3500.2 Section 10.9. [DUR2085]

28. Council is to be given 24 hours notice for any of the following inspections

prior to the next stage of construction: (a) internal drainage, prior to slab preparation; (b) water plumbing rough in, and/or stackwork prior to the erection of

brick work or any wall sheeting; (c) external drainage prior to backfilling. (d) completion of work and prior to occupation of the building.

[DUR2485]


29. Plumbing (a) A plumbing permit is to be obtained from Council prior to

commencement of any plumbing and drainage work. (b) The whole of the plumbing and drainage work is to be completed in

accordance with the requirements of the Plumbing Code of Australia and AS/NZS 3500.

[DUR2495]

30. An isolation cock is to be provided to the water services for each unit in a

readily accessible and identifiable position. [DUR2505]

31. Overflow relief gully is to be located clear of the building and at a level not

less than 150mm below the lowest fixture within the building and 75mm above finished ground level.

[DUR2545] 32. All new hot water installations shall deliver hot water at the outlet of

sanitary fixtures used primarily for personal hygiene purposes at a temperature not exceeding: * 45ºC for childhood centres, primary and secondary schools and

nursing homes or similar facilities for aged, sick or disabled persons; and

* 50ºC in all other classes of buildings. A certificate certifying compliance with the above is to be submitted by the licensed plumber on completion of works.

[DUR2555]

33. Swimming pool pumps, air conditioning units, heat pump water systems

and the like shall be located, installed and operated so as not to be heard in a habitable room of a residence during restricted hours or where it would create offensive noise as defined within the NSW Protection of the Environment Operations (Noise Control) Regulation 2008.

[DUR2835]

34. All batters shall remain clear of any easements. 35. All fencing shall comply with DCPA1 - Residential and Tourist Development

Code. [DURNS01]

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE 36. A person must not commence occupation or use of the whole or any part of

a new building or structure (within the meaning of Section 109H(4)) unless an occupation certificate has been issued in relation to the building or part (maximum 25 penalty units).

[POC0205]


37. Prior to occupation of the building the property street number is to be clearly identified on the site by way of painted numbering on the street gutter within 1 metre of the access point to the property. The street number is to be on a white reflective background professionally painted in black numbers 100mm high. On rural properties or where street guttering is not provided the street number is to be readily identifiable on or near the front entrance to the site. For multiple allotments having single access points, or other difficult to identify properties, specific arrangements should first be made with Council and emergency services before street number identification is provided. The above requirement is to assist in property identification by emergency services and the like. Any variations to the above are to be approved by Council prior to the carrying out of the work.

[POC0265]

38. A final occupation certificate must be applied for and obtained within 6 months of any Interim Occupation Certificate being issued, and all conditions of this consent must be satisfied at the time of issue of a final occupation certificate (unless otherwise specified herein).

[POC0355]

39. Section 94 Contributions

Payment of the following contributions pursuant to Section 94 of the Act and the relevant Section 94 Plan. Prior to the occupation of the building or issue of any Interim or Final Occupation Certificate (whichever comes first), all Section 94 Contributions must have been paid in full and the Certifying Authority must have sighted Council's "Contribution Sheet" signed by an authorised officer of Council. A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT. These charges include indexation provided for in the S94 Plan and will remain fixed for a period of 12 months from the date of this consent and thereafter in accordance with the rates applicable in the current version/edition of the relevant Section 94 Plan current at the time of the payment. A copy of the Section 94 contribution plans may be inspected at the Civic and Cultural Centres, Tumbulgum Road, Murwillumbah and Brett Street, Tweed Heads.


(a) Tweed Road Contribution Plan: 1.3 Trips @ $1330 per Trips $1,729 ($1,284 base rate + $46 indexation) S94 Plan No. 4 Sector8_4

(b) Open Space (Casual):

0.75 ET @ $543 per ET $407 ($502 base rate + $41 indexation) S94 Plan No. 5

(c) Open Space (Structured):


(d) Shirewide Library Facilities:


(e) Bus Shelters:


(f) Eviron Cemetery:


(g) Community Facilities (Tweed Coast - North)

0.75 ET @ $1389 per ET $1,042 ($1,305.60 base rate + $83.40 indexation) S94 Plan No. 15

(h) Extensions to Council Administration Offices

& Technical Support Facilities 0.75 ET @ $1860.31 per ET $1,395.23 ($1,759.90 base rate + $100.41 indexation) S94 Plan No. 18

(i) Cycleways:


(j) Regional Open Space (Casual)

0.75 ET @ $1091 per ET $818 ($1,031 base rate + $60 indexation) S94 Plan No. 26


(k) Regional Open Space (Structured): 0.75 ET @ $3830 per ET $2,873 ($3,619 base rate + $211 indexation) S94 Plan No. 26

[POC0395]

40. Prior to the issue of a final occupation certificate adequate proof and/or

documentation is to be submitted to the Principal Certifying Authority to identify that all commitment on the BASIX "Schedule of Commitments" have been complied with.

[POC0435] 41. All landscaping work is to be completed in accordance with the approved

plans prior to the issue of a final occupation certificate for the building. [POC0475]

42. A certificate of compliance (CC) under Sections 305, 306 and 307 of the

Water Management Act 2000 is to be obtained from Council to verify that the necessary requirements for the supply of water and sewerage to the development have been made with the Tweed Shire Council. Prior to the occupation of the building or issue of any Interim or Final Occupation Certificate (whichever comes first), all Section 64 Contributions must have been paid in full and the Certifying Authority must have sighted Council's "Contribution Sheet" and a “Certificate of Compliance” signed by an authorised officer of Council. Annexed hereto is an information sheet indicating the procedure to follow to obtain a Certificate of Compliance: Water DSP6: 1 ET @ $12575 per ET $12,575 Pottsville/Burringbar Water Levy: 1 ET @ $2113 per ET $2,113 Sewer Hastings Point: 1 ET @ $6042 per ET $6,042 These charges to remain fixed for a period of twelve (12) months from the date of this consent and thereafter in accordance with the rates applicable in Council's adopted Fees and Charges current at the time of payment. A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT. Note: The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Management Act 2000 to be certified by an Accredited Certifier.

[POC0675]

43. Upon completion of the pool the builder is to submit to the Principal

Certifying Authority a certificate stating that the “Water Recirculation System” has been installed in accordance with AS 1926.3-2010.

[POC0905]


44. Prior to the occupation or use of any building and prior to the issue of any occupation certificate, including an interim occupation certificate a final inspection report is to be obtained from Council in relation to the plumbing and drainage works.

[POC1045]

USE 45. All externally mounted air conditioning units and other mechanical plant or

equipment are to be located so that any noise impact due to their operation which may be or is likely to be experienced by any neighbouring premises is minimised. Notwithstanding this requirement all air conditioning units and other mechanical plant and or equipment is to be acoustically treated or shielded where considered necessary to the satisfaction of the General Manager or his delegate such that the operation of any air conditioning unit, mechanical plant and or equipment does not result in the emission of offensive or intrusive noise.

[USE0175]

46. Swimming Pools (Building)

(a) It is the responsibility of the pool owner to ensure that the pool fencing

continues to provide the level of protection required regardless of and in response to any activity or construction on the adjoining premises. Due regard must be given to the affect that landscaping will have on the future effectiveness of the security fencing. (Section 7 Swimming Pool Act 1992).

(b) The resuscitation poster must be permanently displayed in close

proximity to the swimming pool (Section 17 Swimming Pool Act 1992). (c) Warning notices required under Part 3 of the Swimming Pool

Regulations 2008 shall be maintained at all times. [USE1295]


REPORT:

Applicant: Mr L Watts and Mrs R Watts Owner: Mr Lee Watts & Mrs Robyn Watts Location: Lot 501 DP 1174455 No. 161 Overall Drive, Pottsville Zoning: 2(a) Low Density Residential Cost: $490,000 Background: Consent is sought for a detached dual occupancy, gazebo and swimming pool in two stages. Stage 1 comprises the construction of Dwelling 1, gazebo and swimming pool. Stage 2 comprises the construction of Dwelling 2. The site is known as Lot 501 DP 1174455, 161 Overall Drive and is within Black Rocks Estate. The site has an area of 1000m² in the 2(a) Low Density Residential zone. As the land area exceeds 900m², a dual occupancy is permissible. The land is flat, vacant and grassed and is bound by Council owned public reserve (adjoining Mooball Creek). A 1.5m high fence and small retaining wall already exist on the site. The application is being reported to Council under the provisions of Clause 32B(4)(b) of the North Coast Regional Environmental Plan 1988 whereby development is not permitted to overshadow waterfront open space prior to 4pm midwinter or 7pm mid summer. The proposed development will result in overshadowing of the foreshore area to the rear of the site prior to the prescribed times. A SEPP 1 Objection to the standard is also contained within the application. A State Environmental Planning Policy No. 1 (SEPP No. 1) is sought for a variation to the provisions of Clause 32B of the North Coast Regional Environmental Plan (NCREP) 1988, relating to overshadowing of foreshore open space before 3pm midwinter and 7pm midsummer. The extent of overshadowing is minor and falls only upon a small portion of the public reserve. It does not fall upon the creek or any vegetated areas and is not anticipated to impact on the recreational integrity of foreshore open space. Further assessment is provided later in this report and it is concluded that compliance with the standard is unreasonable and unnecessary in this instance. On this basis this development application is being reported to Council due to the Department of Planning’s Circular PS08-014 issued on 14 November 2008 requiring all SEPP No. 1 variations greater than 10% to be determined by full Council. Given the Department of Planning and Infrastructure have advised Council Officers to be conservative with the application of the 10% rule, and it is virtually impossible to calculate 10% of the shadow development standard as it is time based, officers have resolved to report this application to full Council, with a recommendation of approval subject to conditions of consent.


SITE DIAGRAM:


DEVELOPMENT/ELEVATION PLANS:


Considerations Under Section 79c of the Environmental Planning and Assessment Act 1979: (a) (i) The provisions of any environmental planning instrument

Tweed Local Environmental Plan 2000 Clause 4 - Aims of the Plan The Tweed Local Environmental Plan 2000 aims to manage the growth of the shire whilst retaining the area’s natural and environmental features. The proposed development is consistent with this aim. Clause 5 - Ecologically Sustainable Development The development remains consistent with the provisions of ecologically sustainable development. Clause 8 - Consent Considerations The development is consistent with the primary objective of the zone within which it is located, and the proposed residential development is considered to be consistent with all other relevant aims and objectives of the Tweed Local Environmental Plan 2000. Council officers are satisfied that the development would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of Tweed as a whole. Clause 11 - Zone Objectives The site is zoned 2(a) low density residential. The 2(a) zone objectives state:

Primary objectives In the case of land within Zone 2 (a) between the Tweed Heads Bypass and Cobaki Bridge: • to minimise the number of dwellings subject to unacceptable aircraft

noise and to limit development within the Kennedy Drive traffic catchment so that development is compatible with Kennedy Drive traffic capacity.

In the case of all other land within Zone 2 (a): • to provide for and maintain a low density residential environment with a

predominantly detached housing character and amenity.

Secondary objectives • to allow some diversity of housing types provided it achieves good

urban design outcomes and the density, scale and height is compatible with the primary objective.

• to allow for non-residential development that is domestically based, or services the local needs of the community, and does not detract from the primary objective of the zone.

The proposal is considered consistent with the zone objectives by providing detached low density residential development in a dedicated residential area.


Clause 15 - Essential Services Essential services are available to the site and connection proposed as part of this application. Clause 16 - Height of Building The locality has a 2 storey height limit. The proposed buildings are both single storey in nature with a maximum height of 4.5m each. As such, they are consistent with the height permitted for a ‘storey’ as well as being within the proposed 2 storey limit. Clause 17 - Social Impact Assessment The proposed development is minor and negligible social impacts are envisaged. Clause 35 - Acid Sulfate Soils (ASS) The site contains Class 3 ASS. Minimal ground disturbance is required as the proposed dwellings are of slab on ground construction. However, excavation will be required for the proposed swimming pool and Council’s standard condition requiring compliance with an ASS Minor Works Management Plan has been applied. Other Specific Clauses Clause 28 – Development in Zone 7(l) Environmental Protection (Habitat) and on adjacent land This clause aims to protect wildlife habitat from adverse impacts of development. In relation to development on land which is adjacent to the 7(l) zone, the clause provides that the consent authority must consider the likely effects of the development on flora and fauna and any plan of management that may exist to minimise potential impacts. In this instance, the 7(l) land represents the foreshore of Mooball Creek. The land is owned by Council and has a public footpath that provides access to Kelleher’s Road. The footpath is located in a cleared space and vegetation then forms a buffer to the creek. There is a clear delineation between the footpath and the vegetation buffer by way of a bollard barrier. It is thus considered that the proposed development for a dual occupancy on dedicated residential land will not have any adverse impacts on the 7(l) land, especially when considered that the eastern most boundary of the subject site is in excess of 10m to the vegetated buffer and in excess of 50m to the waterway. It is also worth noting that the footpath and associated buffer area is located along the rear of many properties along Overall Drive which contain various forms of residential development. There is no relevant plan of management and based on the above, Clause 28 is considered to be satisfied. Clause 31 – Development Adjoining Waterbodies The development adjoins land which forms part of the Mooball Creek foreshore. Clause 31 applies only to land which adjoins the mean high water mark of a waterbody. As the subject development is on a separate torrens title lot, this Clause does not apply.


Clause 34 – Flooding The site has a design flood level of 3.3m AHD (which has a corresponding minimum floor level of 3.8m AHD). The site is also covered by the Probable Maximum Flood (PMF). The proposed dwellings have floor levels that exceed 4.11m AHD which are sufficient. The objectives of the clause are as follows:

• To minimise future potential flood damage by ensuring that only appropriate compatible development occurs on flood liable land.

• To minimise the adverse effect of flooding on the community. The site is located within a recently constructed residential estate which has addressed flooding requirements. Council’s Flooding Engineer has advised that further consideration in this regard is not required. The proposal is not considered to accentuate the risk of flooding to the locality and on this basis satisfies the objectives of the clause. Clause 38 – Future Roads Part of the site is covered by mapping under Clause 38 for future roads. The objective of the clause is to cater for the alignment of and development in proximity to future roads. It is evident that the future road mapping was part of the LEP prior to the subdivision of Black Rocks Estate. The future road corridor is in proximity to the Kellehers Road/Overall Drive intersection which provides appropriate road access to all properties in this location. It is thus considered that the proposed development, which relates to residential development on an existing torrens title lot, would not have any ramifications for any future roads in this location which are not required. There are no further concerns with regard to Clause 38. Clause 52 – Stormwater and Fill The development does not require significant earthworks and standard conditions regarding the disposal of stormwater will be applied. It is not considered that the proposed development would impact adversely on stormwater drainage or runoff in the wider locality and Clause 52 is considered to be satisfied. Clause 54 – Tree Preservation Order The site is subject to Council’s 2004 Tree Preservation Order and Council’s 2011 Koala Habitat Study Area TPO and therefore this clause applies. The site has already been cleared of vegetation and is the proposal is thus unlikely to impact on Koala habitat or amenity values of the site. Clause 54 is considered to be satisfied. State Environmental Planning Policies SEPP (North Coast Regional Environmental Plan) 1988 Clause 32B – Coastal Lands The subject land is designated coastal land and therefore this clause applies. The clause requires the consideration of the NSW Coastal Policy 1997 which seeks to: protect, rehabilitate and improve the natural environment; protect and enhance aesthetic qualities and cultural heritage; and to provide for ecologically sustainable human development in the coastal zone.


A SEPP 1 Objection has been submitted in relation to the overshadowing controls of this Clause (Clause 32B(4)(b)) which is discussed in detail under SEPP 1 below. The SEPP 1 objection is considered to be reasonable and approval warranted. The extent of overshadowing is minor. In relation to the other matters for consideration, given the development comprises the construction of a single storey dual occupancy development, on residential zoned land in a previously approved subdivision, it is considered unlikely that the proposal will impact on the coastal values or cultural heritage. Clause 43 – Residential Development Clause 43 of the NCREP advises that Council shall not consent to residential developments unless it is satisfied that the density of dwellings have been maximised without adversely affecting environmental features of the site, the surrounding road network has been taken into consideration, and erosion impacts have been considered. The proposed development is not considered to adversely affect environmental features of the site or generate any unreasonable burden onto the local road network. As a dual occupancy development, the proposed density is considered to be a reasonable response to the land use character of the area and will not result in the creation of any adverse physical impacts upon the locality. Clause 81: Development adjacent to the ocean or a waterway The development does not restrict access to the adjacent foreshore open space and is not considered to detract from the amenity of the waterway, given the contemporary coastal design of the proposed homes and the considerable (in excess of 50m) buffer distance from the waterway itself. There is no foreshore management plan and the development is thus considered to be consistent with Clause 81. SEPP No. 1 - Development Standards The proposed development does not comply with the development standard contained in Clause 32B(4)(b) of State Environmental Planning Policy (North Coast Regional Environmental Plan) 1988 as it relates to overshadowing of foreshore open space. A SEPP No. 1 Objection in relation to the provisions of Clause 32B of the NCREP 1988 has been lodged as the proposed development will result in overshadowing of the adjacent foreshore reserve prior to 3.00pm mid winter and 7pm mid summer. The extent of overshadowing in this case has not been quantified by the applicant however it is considered that the extent of overshadowing created is relatively minor and importantly, it does not fall directly upon the waterway, vegetation or any access to the waterway. SEPP No. 1 provides a mechanism by which Council can consent to a variation to a development standard where it is considered unreasonable or unjustified to request strict adherence to the standard, or where the granting of such a variance will not result in the compromising of the objects of the Act. The objective of Clause 32B of the NCREP 1988 is related to the protection of the recreational integrity of the foreshore open space areas and the need to restrict adverse impacts upon the same by the erection of buildings in close proximity.


The applicant’s justification for the objection centres around their assertion that adherence to the standard is unreasonable and unnecessary because:

• Existing buildings in Overall Drive which also back onto the reserve result in overshadowing of the foreshore area prior to the relevant times in both mid winter and mid summer.

• Existing trees on the foreshore area of the creek result in significant overshadowing of the foreshore reserve and creek prior to the relevant times.

• The immediate foreshore area to the rear of the site to be overshadowed is not useable passive open space area and does not contain any public amenities or facilities at which members of the community would be expected to congregate, the overshadowing shall therefore not alienate the physical use of the area.

• The reserve will still gain more than reasonable solar access throughout the day in both winter and summer.

• The shadows do not extend to the creek area during summer and winter.

In their justification, the applicant has appropriately considered the SEPP No. 1 aims and objectives, as well as the SEPP No. 1 tests supplied by Lloyd J in Wintern Property Group Limited v North Sydney Council (2001) 130 LGERA 79 and Webhe v Pittwater Council (2007) NSW LEC 827. The proposed buildings comply with the prevailing height limit and the height of the dwellings has been reduced at the request of Council officers to achieve a lesser extent of overshadowing. The application will result in some afternoon shadowing of the adjacent foreshore reserve however due to the nature of the foreshore area (i.e.: wide grass strip with footpath abutting buildings and then coastal heath vegetation) and the temporal and casual uses of the space, the resultant impact on the amenity of the open space is considered minor, particularly in the context of foreshore open space available in the wider locality. Planning assessment generally concurs with the applicant’s justification and it is considered that the principles for assessing a SEPP No. 1 Objection presented in Lloyd J in Wintern Property Group Limited v North Sydney Council (2001) 130 LGERA 79 and Webhe v Pittwater Council (2007) NSW LEC 827 have been satisfied. That is, the objection is well founded, upholding the standard is both unreasonable and unnecessary in this instance and the objection is consistent with the SEPP No. 1 aims. Additionally, the non compliance is not considered to raise any matters of State or Regional planning significance and there is not considered to be great public benefit in maintaining the control. Council has assumed concurrence with regard to the foreshore overshadowing standard and accordingly, it is recommended that the SEPP No. 1 Objection be supported. SEPP No 71 – Coastal Protection The site is approximately 50m from Mooball Creek and backs onto the coastal foreshore. Given the subject site is located within an established residential zone and the development proposes the construction of a single storey dual occupancy development, it is unlikely that the development will impact on the coastal foreshore in terms of public access, loss of view or overshadowing (the extent of


overshadowing is considered to be minor, as discussed elsewhere in this report). The proposed development is not considered to cause any unacceptable cumulative impact on the environment or impact on items of archaeological or conservation value, given the site is located within an established residential zone and has already been cleared of vegetation. Appropriate conditions of consent are recommended in relation to adequate landscaping utilising native species. The proposal is considered to be consistent with SEPP 71.

(a) (ii) The Provisions of any Draft Environmental Planning Instruments Under the Draft LEP 2012, the site is nominated within the R2 – Low Density Residential Zone. The objectives of the zone are:

• To provide for the housing needs of the community within a low density residential environment, and

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

The permitted floor space ratio is 0.8:1 with a permitted building height of 9 m. The proposed dual occupancy (detached) development would be permissible with consent within the R2 Zone and is considered to be consistent with the objectives of the zone in the provision of low density residential development. The proposed height is single storey with a maximum height of 4.5m, the proposed FSR is 0.32:1. The proposal is considered consistent with the plan.

(a) (iii) Development Control Plan (DCP) Tweed Development Control Plan A1-Residential and Tourist Development Code The development contains minor variations to DCP A1 in relation to the garage setback and rear setback. Detailed justification for the variations is available in the DCP A1 assessment report. It is considered that the development is well designed and the proposed variations are worthy of support. A2-Site Access and Parking Code The development meets the car parking controls of DCP A2 with 2 double garages and driveway space for the parking of visitor’s vehicles. A3-Development of Flood Liable Land The site is located within a recently constructed residential estate which would have addressed flooding requirement. Section A3 of the DCP does not require dual occupancies located within a residential (urban) area to make provision for evacuation or refuge from the PMF. Council’s Flooding Engineer has advised that further consideration in this regard is not required. The proposal is not considered to accentuate the risk of flooding to the locality and on this basis satisfies the objectives of the plan. A11-Public Notification of Development Proposals The application was notified development for a period of 14 days from Wednesday 13 November 2013 to Wednesday 27 November 2013. During this period Council did not receive any submissions relating to the application.


B21 – Pottsville Locality Based Development Code The development comprises the construction of a single storey detached duplex within a previously approved Council subdivision. It is considered that the development would be consistent with the surrounding residential area and the design and density are in keeping with the general character and surrounding development. The development is considered to be in accordance with section B21.

(a) (iv) Any Matters Prescribed by the Regulations Clause 92(a) Government Coastal Policy The development does not contravene the Government Coastal Policy. Clause 92(b) Applications for demolition No demolition is proposed. Clause 93 Fire Safety Considerations Appropriate conditions have been applied with regard to fire safety. The development does not comprise a change of building use under the BCA. Clause 94 Buildings to be upgraded There are no buildings to be upgraded.

(a) (v) Any coastal zone management plan (within the meaning of the Coastal Protection Act 1979) The development does not contravene the provisions of any coastal zone management plan, or the NSW Government Coastal Policy. Tweed Shire Coastline Management Plan 2005 This Plan is not applicable to the application. Tweed Coast Estuaries Management Plan 2004 This Plan is not applicable to the application. Coastal Zone Management Plan for Cobaki and Terranora Broadwater (adopted by Council at the 15 February 2011 meeting) This Plan is not applicable to the application.

(b) The likely impacts of the development and the environmental impacts on both the natural and built environments and social and economic impacts in the locality Context and Setting The development is considered to be consistent with surrounding development and is considered appropriate for the existing residential context of Black Rocks Estate. Access, Transport and Traffic Access to both dwellings is from Overall Drive. Cars exiting both dwellings will reverse into the street (as in the case of a standard residential dwelling) which is appropriate.

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Staging The proposed staging will result in the construction of Dwelling 1 with associated gazebo and swimming pool first. The applicant has advised that the second dwelling will be constructed shortly after the first with the dwelling site remaining undisturbed and grassed until that time. A condition will be applied to the effect that the Dwelling 2 site must be maintained in a clean and tidy manner and grassed until such time as Dwelling 2 is constructed. Developer Contributions Contribution charges are applicable for a dual occupancy, minus 1 ET credit for the allotment. A detailed breakdown of the contribution charges is available on the DA file.

(c) Suitability of the site for the development Surrounding Landuses/Development The surrounding land is residential and the site is thus considered to be suitable for the development of a dual occupancy.

(d) Any submissions made in accordance with the Act or Regulations No submissions were received with regard to this application, either from the public or from any government agencies.

(e) Public interest Subject to the recommended conditions the proposed development is not considered to jeopardise the public interest and is considered worthy of support.

OPTIONS: 1. Approve the development in accordance with the recommended conditions; or 2. Refuse the development for specified reasons. Council officers recommend Option 1. CONCLUSION: This application proposes the construction of a detached dual occupancy on an appropriately sized land parcel within a dedicated residential area. Subject to the recommended conditions, the impacts of the development are considered to be minor and approval of the application, inclusive of the SEPP No. 1 variation is warranted. COUNCIL IMPLICATIONS: a. Policy: Corporate Policy Not Applicable. b. Budget/Long Term Financial Plan: Not Applicable.


c. Legal: If dissatisfied with the decision, the applicant may appeal the determination in the Land and Environment Court. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Nil.


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7 [PR-PC] Development Application DA02/1983.16 for an Amendment to Development Consent DA02/1983 for Use of Property for Filming and Producing a Television Program at Lot 77 DP 755715 Dungay Creek Road; Part Lot 74 DP 755715 No. 366 Dungay Creek Road; Lot 93 DP 755715 No. 486 Dungay Creek Road, Dungay




SUMMARY OF REPORT:

Council is in receipt of a Section 96 (S96) Application to amend the Development Consent for the Granada Productions Pty Ltd T/AS ITV Studios site located at Dungay ('I’m a Celebrity Get Me Out of Here'), which is a survival reality format program set in a ‘jungle’ environment. The original Development Application was approved on 20 December 2002. One of the original conditions was to time limit the development as the applicant at the time considered the activity would be completed by 1 June 2004 and consequently the development consent was time limited to that date. Due to the success of the programs internationally there have been opportunities for further productions and as such this is the sixth application that the applicant has submitted for an extension on the time frame. The last of these time limit extensions approved continued operations from June 2011 to June 2014. The proposed extension is to time limit the consent to 1 June 2017, being a further 36-month extension. No changes are proposed to the nature, scale, intensity and operational details of the development. The proposed modification was advertised for a period of 14 days from 8 January 2014 to 22 January 2014. One submission has been received in that period, the contents of which are discussed within this report. The following report addresses the relevant provisions of the Environmental Planning and Assessment Act 1979 (EP&A Act 1979), and the objections received by Council. The recommendation is for the extension in time to be granted subject to modified and further conditions as detailed further within this report.


RECOMMENDATION:

That Development Application DA02/1983.16 for an amendment to Development Consent DA02/1983 for use of property for filming and producing a television program at Lot 77 DP 755715 Dungay Creek Road; Part Lot 74 DP 755715 No. 366 Dungay Creek Road; Lot 93 DP 755715 No. 486 Dungay Creek Road, Dungay be approved and the consent be amended as follows: 1. Amend the Consent to state at the end:

The consent to expire on 1 June 2017. 2. Replace Condition 1B with Condition 1C as follows:

1C. The development shall be completed in accordance with the Statement of Environmental Effects; Drawing No 34504 prepared by Brown and Haan Surveyors and dated 27/11/2002; Drawing No 34505 prepared by Brown and Haan Surveyors; Plans No A1219 prepared by Edwin Shirley Stage Australia Pty Ltd dated 28/11/2002; Plan No A1-221102 Sheets 1 & 2 prepared by Richard Harry Engineering Services and dated 11/2002; Plan No 232311 prepared by Waco Kwikform and dated 26/11/2002, except as amended by Drawing No.20345 Sheets 1 to 5 prepared by Brown and Haan and dated 26/2/2003; Plans and documentation prepared by Richard Harry Engineering Services dated 3/2/2003. Where amended the development shall be completed in accordance with Plan No.20345 Dwg 345C6 prepared by Brown and Haan dated 22/9/2003, and plans and documentation prepared by Richard Harry Engineering Services Pty Ltd dated 23/9/2003, except where varied by these conditions. Where amended the development shall be undertaken in accordance with Sheet Nos. 2,3 & 4 of Site Plan 20345 prepared by Brown & Haan Surveyors, Floor Plan Nos. B12052-01 & B12052-02, 4034531, BH5-1230, MP3630, 4036921_1, 4044234-01 and 4044417_01 prepared by Ausco Building Systems and submitted with the amendment application dated 9 September 2006, Dungay Creek Road Environmental Management Plan ('EMP') Report for Granada Productions dated September 2013 prepared by Ecosure, Flora and Fauna Assessment Final Report for Granada Australia / ITV Studios dated 26 August 2013 prepared by Ecosure including Addendum to Flora and Fauna Assessment Report, for Granada Australia / ITV Studios dated 26 August 2013 prepared by Ecosure and the Site Management Plan as submitted on 27 August 2010.

3. Delete Condition 1.1 in its entirety as the provisions have been satisfied. 4. Replace Condition 1.3 with Condition 1.3A as follows:

1.3A The applicant shall amend the Habitat Restoration Plan ('HRP') being Habitat Restoration Plan Final Report, for Granada Australia/ITV Studios, dated 26 August 2013, prepared by Ecosure to reflect updated scheduling and timeframes for ecological restoration to 2017. Specifically, Table 14 titled Implementation schedule for restoration works shall be amended to replicate frequency of 'Maintenance Works' as shown on the table for upcoming periods during 2014 - 2017. The amended HRP shall be submitted and approved by Council's General Manager or delegate prior to


commencement of the first filming and production session in 2014 approved by this consent. Works are to be implemented in accordance with the approved amended Habitat Restoration Plan (unless otherwise modified and approved by Councils General Manager or delegate) to Council's satisfaction throughout the consent period and including final site remediation phase.

5. Replace Condition 4B with Condition 4C as follows:

4C. Any removal or relocation of protected fauna on the property shall only be undertaken in accordance with scientific licence or under written advice from the NSW Department of Environment and Heritage. No planting of exotic species or weeds is to occur on the site. Any introduced fauna is to be sourced from agents certified to be free of pests and diseases with potential to impact native fauna, in particular introduction of Plague Minnow or Mosquito Fish (Gambusia holbrooki) with aquatic species; chytrid fungus causing the disease chytridiomycosis with amphibians; Psittacine circoviral (beak & feather) disease with birds and Phytophthora cinnamomi with plants.

6. Delete Condition 34.1 in its entirety as the provisions have been satisfied. 7. Replace Condition 1.2 with Condition 1.2A as follows:

1.2A. A current approval to operate the on-site sewage management system shall be in place at all times.


REPORT:

Applicant: Granada Productions Pty Ltd Owner: Mr Craig D Parker & Ms Ellen L Parker Location: Lot 77 DP 755715 Dungay Creek Road; Part Lot 74 DP 755715 No. 366

Dungay Creek Road; Lot 93 DP 755715 No. 486 Dungay Creek Road, Dungay

Zoning: 1(a) Rural; 7(d) Environmental Protection (Scenic/Escarpment) Cost: Not Applicable Background: Council is in receipt of a S96 Application to amend the subject Development Consent for the Granada Productions Pty Ltd T/AS ITV Studios site located at the upper end of Dungay Creek Road, Dungay ('I’m a Celebrity Get Me Out of Here'). Lots 74 and 77 are zoned Rural 1(a) within the current Tweed Local Environmental Plan (LEP) 2000. Lot 93 is zoned primarily 7(d) Environment Protection Scenic Escarpment, with a small portion in its south zoned 1(a) Rural. The land zoning within the Draft LEP 2012 is generally consistent with the current LEP mapping however land-use descriptions have been altered to be designated E3 Environmental Management and RU2 Rural Landscape respectively. The original Development Application was approved on 20 December 2002. One of the original conditions was to time limit the development as the applicant at the time considered the activity would be completed by 1 June 2004 and consequently the development consent was time limited to that date. Council’s Development Assessment Panel originally considered a report on the proposed activity on 20 December 2002 and approved the activity subject to a number of conditions. One of the conditions was to time limit the development, as the applicant at the time foreshadowed the activity would be completed by 1 June 2004 and consequently the development consent was time limited to that date. At the time of considering the proposal there was some uncertainty in relation to potential complaints and environmental impacts during operation. As such Council implemented a time limited consent and a requirement for a cash bond to the amount of $20,000 for the rectification of any non-compliance with the conditions of this consent which may not be addressed upon completion of filming. These conditions have provided Council with an opportunity to review the activity and ensure the site is appropriately remediated. Use of the site to date has been for up to seven months of the year in three distinct activity modes:

• the ‘pre-production’ period (up to 3 months) for the installation of temporary structures, site preparation and staff facilities;

• the ‘production’ period (up to 3 months) with up to 600 staff working in shifts 24 hour per day; and

• the ‘wrap up’ (about one month) when many of the structures and facilities are dismantled and de-rigged.

The intensity of activity and number of people on site varies between the three periods, with the production period of some twelve weeks being the most intensive. For the remainder of the year (hibernation), there are a limited number of people accessing the site sporadically for maintenance purposes or environmental monitoring purposes. Due


to the success of the programs internationally there have been opportunities for further productions and as such this is the fifth application that the applicant has submitted for an extension on the time frame. The last extension of the approval lapses on 1 June 2014. The proposed extension is to time limit the consent to 1 June 2017, being a further 36 month extension on the previous 120 month (10 year) extension already granted. The applicant advises that implementation of the proposed extension can be achieved by amending the final page of the Consent to state that the Consent will expire on 1 June 2017.


SITE DIAGRAM:


DEVELOPMENT PLANS:


CONSIDERATIONS UNDER SECTION 96 & 79C OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979: Section 96 (1A) of the Act states that in order to grant consent, the consent authority must consider the following:





Minimal Environmental Impact The applicant has noted that the proposed extension to the time limit is not expected to have any environmental impacts and that this conclusion is consistent with Council's determination of the three previous S96 Applications to extend the life of the consent. The Statement of Environmental Effects (SEE) advises that: 'Potential operational issues arising from filming and production are managed, monitored and mitigated by way of a Site Management Plan submitted on August 2010, the Environmental Management Plan and Conditions 34B (Community Liaison Committee) and 34C (Community Liaison Officer) of the consent. Operational experience over the past ten years has demonstrated that filming and production does not give rise to significant impacts because of the nature of the development, the relatively short time during which the site is used (maximum period of seven months per year) and the management and mitigation measures implemented by the production team'. The SEE provides a table scheduling compliance with a number of conditions of consent as requested within the most recent S96 Application (DA02/1983.14 approved on 10 December 2010). This consent required the submission of a Flora and Fauna Assessment Report and Habitat Restoration Plan as well as the inclusion of Environmental Compliance Reports to be submitted to Council at the end of each 'wrap up' period as well as to ensure that water supplied for human consumption meets the relevant health requirements. It is considered that the relevant conditions of the previous S96 Application have been satisfied, as detailed within this report. Flora and Fauna The majority of high use key activity areas have been established within the 1(a) Rural zone, however facilities and infrastructure set up within the more sensitive areas of the 1(a) Rural zone include canopy walkways, dressed sets, series of access roads and trails, artificial ponds. It is understood that high activity areas where permanent and temporary buildings have been established occur within previously cleared areas of the site (i.e. prior to lodgement of the original application), which is evident upon review of historical aerial imagery.


The site features an extensive well connected tract of remnant vegetation comprising several different vegetation communities including an Endangered Ecological Community - Lowland Rainforest in the NSW North Coast and Sydney Basin bioregions. During previous ecological survey seven listed flora species and six listed fauna species (Threatened Species Conservation Act) were recorded onsite. As such the site is considered to represent an area of high ecological value. To ensure filming and production activity in the past has not had an adverse unacceptable impact on the sites high ecological values, several plans of management have been prepared in accordance with conditions of consent and have subsequently been approved by Council for adoption/implementation by the applicant. These plans include:

• Dungay Creek Road Environmental Management Plan ('EMP') Report for Granada Productions, dated September 2013 prepared by Ecosure;

• Habitat Restoration Plan Final Report, for Granada Australia / ITV Studios, dated 26 August 2013, prepared by Ecosure;

• Flora and Fauna Assessment Final Report for Granada Australia / ITV Studios dated 26 August 2013 prepared by Ecosure including Addendum to Flora and Fauna Assessment Report for Granada Australia / ITV Studios, dated 26 August 2013, prepared by Ecosure.

The SEE advises that flora and fauna issues have been addressed in the Flora and Fauna Reports prepared by Ecosure (July 2011 and August 2013) with mitigation and management measures being adequately addressed by Conditions 1.1 and 4B of the Consent and the provisions contained within the Flora and Fauna Reports. Council Officers can concur that the quarterly compliance reporting as requested within the EMP have been generally submitted within timeframes, compliance actions noted and rectified during the following compliance period. The performance of the applicant in meeting environmental management responsibilities and restoration targets was reviewed during an inspection of the site. The operation appeared to be well coordinated. The applicant demonstrated that various management measures had been implemented consistent with the plans and that restoration targets had generally been met as witnessed onsite and from review of the latest annual restoration progress report being Habitat Restoration Works Summary Report July 2012 - December 2013 for Granada / ITV Studios dated 20 January 2014, prepared by Ecosure. A number of issues have been considered and either addressed through recommended modified conditions or accepted as being minor variations which can be satisfactorily addressed during the operation period, given the adaptive nature of the restoration plan as detailed below: Exotic species Exotic species remain within some of the dress set locations (Main Camp in pots of planted directly in ground). A requirement of the EMP indicates that exotic planted species are not permitted and that only native species sourced from a reputable nursery should be installed. Whilst a large proportion of previously installed exotics have been removed, a number still remain. The applicant has committed to the progressive removal and replacement during the upcoming hibernation/pre-production period following discussions with Council Officers. As this requirement is already reflected in the approved EMP it is not considered necessary that a stand-alone condition is imposed. Compliance with the EMP is required and will be monitored.


Restoration Several areas of the site identified for restoration may not be suitable or practical (particularly in respect to an area identified to be revegetated in the vicinity of B-tank). Given the expense of revegetation it is considered more effective/productive that an area identified for assisted regeneration area be expanded proportionate with that proposed for revegetation. This is considered a minor variation and can be done via consultation with Council Officers. As such a stand-alone condition or modification of the RMP is not considered to be necessary. Tree removal The proves of approving any tree removal across the site has been discussed with the applicant and their ecological consultant. The EMP does indicate offsetting requirement (in respect to the EEC); requirement for arborist and spotter catcher; and assigned general roles and responsibilities. However, it is evident that clear direction is necessary and protocols established given the sensitive nature of the site. Clarification has been provided to the applicant in regards to Council's roles/responsibilities and jurisdiction as assessment managers, with respect to vegetation removal associated with both the film approval and standalone rural use. It is understood that the applicant is seeking further advice in respect to any state permits/approvals to be issued under the Native Vegetation Act. Council is responsible for ensuring that the EMP is complies with and Council Officers consider that sufficient controls are prescribed within the EMP. On this basis further modification is not considered to be required at this stage, however further discussions with the applicant are required to ensure their obligations are met through the establishment of an agreed protocol. Trail It appears that a newly formed trail within the vicinity of B-tank and the Trials Area has been created, as shown in the figure below:


Track that appears to have been updated - extract of EMP dated September 2013

(Ecosure) Concerns were raised that the track may be used for filming and production service vehicles on a regular basis and that frequent use may have an impact on the adjacent waterway and adjoining vegetation. These concerns have been relayed to the applicant in order to clarify the future intended use of the trail for production purposes. The applicant has advised that the trail was constructed by the landholders for legitimate rural purposes and that the track/trail was not to be used for filming or production operation (with Health and Safety Officers deeming that the track was not suitable for production use). Given the trail is not identified on the approved suite of site plans and with respect to recent correspondence rejecting the desire to use the trail for filming/production purposes, Council Officers are satisfied that a stand-alone condition restricting access is not required. Future monitoring to ensure that use is restricted to landholder activities in this location is required and to ensure that no further disturbance occurs. Recommended modification to Conditions: The EMPs have only recently been approved by Council and given the high degree of responsibility in terms of land management and general compliance demonstrated by the applicant with the approved plans, Council Officers are satisfied that the current suite of environmental conditions are adequate to ensure the ecological values are not adversely impacted by the extension of the filming and production period. It is considered that with


successful restoration effort and adherence to the EMP and negative impacts may be sufficiently mitigated. Notwithstanding, the timeframes for restoration are to be modified to ensure investment/effort is maintained over the proposed extension period to 2017 and that final site remediation occurs. Previous conditions relating to the submission of management plans are to be modified to reference the recently approved contemporary plans. As such the following conditions are to be modified as detailed below: Condition 1B currently reads: 1B. The development shall be completed in accordance with the Statement of

Environmental Effects; Drawing No 34504 prepared by Brown and Haan Surveyors and dated 27/11/2002; Drawing No 34505 prepared by Brown and Haan Surveyors; Plans No A1219 prepared by Edwin Shirley Stage Australia Pty Ltd dated 28/11/2002; Plan No A1-221102 Sheets 1 & 2 prepared by Richard Harry Engineering Services and dated 11/2002; Plan No 232311 prepared by Waco Kwikform and dated 26/11/2002, except as amended by Drawing No.20345 Sheets 1 to 5 prepared by Brown and Haan and dated 26/2/2003; Plans and documentation prepared by Richard Harry Engineering Services dated 3/2/2003. Where amended the development shall be completed in accordance with Plan No.20345 Dwg 345C6 prepared by Brown and Haan dated 22/9/2003, and plans and documentation prepared by Richard Harry Engineering Services Pty Ltd dated 23/9/2003, except where varied by these conditions. Where amended the development shall be undertaken in accordance with Sheet Nos. 2,3 & 4 of Site Plan 20345 prepared by Brown & Haan Surveyors, Floor Plan Nos. B12052-01 & B12052-02, 4034531, BH5-1230, MP3630, 4036921_1, 4044234-01 and 4044417_01 prepared by Ausco Building Systems and submitted with the amendment application dated 9 September 2006, and Dungay Creek Road Environmental Management Plan prepared by Ecosure dated June 2008 (and any subsequent amendments) and the Site Management Plan as submitted on 27 August 2010.

Replace Condition 1B with Condition 1C as follows: 1C. The development shall be completed in accordance with the Statement of

Environmental Effects; Drawing No 34504 prepared by Brown and Haan Surveyors and dated 27/11/2002; Drawing No 34505 prepared by Brown and Haan Surveyors; Plans No A1219 prepared by Edwin Shirley Stage Australia Pty Ltd dated 28/11/2002; Plan No A1-221102 Sheets 1 & 2 prepared by Richard Harry Engineering Services and dated 11/2002; Plan No 232311 prepared by Waco Kwikform and dated 26/11/2002, except as amended by Drawing No.20345 Sheets 1 to 5 prepared by Brown and Haan and dated 26/2/2003; Plans and documentation prepared by Richard Harry Engineering Services dated 3/2/2003. Where amended the development shall be completed in accordance with Plan No.20345 Dwg 345C6 prepared by Brown and Haan dated 22/9/2003, and plans and documentation prepared by Richard Harry Engineering Services Pty Ltd dated 23/9/2003, except where varied by these conditions. Where amended the development shall be undertaken in accordance with Sheet Nos. 2,3 & 4 of Site Plan 20345 prepared by Brown & Haan Surveyors, Floor Plan Nos. B12052-01 & B12052-02, 4034531, BH5-1230, MP3630, 4036921_1, 4044234-01 and 4044417_01 prepared by Ausco Building Systems and submitted with the amendment application dated 9 September 2006, Dungay Creek Road Environmental Management Plan ('EMP') Report for Granada Productions dated September 2013 prepared by Ecosure, Flora and Fauna Assessment Final Report for Granada Australia / ITV Studios dated 26 August 2013 prepared by Ecosure including Addendum to Flora and Fauna Assessment Report, for Granada Australia / ITV


Studios dated 26 August 2013 prepared by Ecosure and the Site Management Plan as submitted on 27 August 2010.

Condition 1.1 currently reads: 1.1 Prior to commencement of filming in the 2011 Filming Session the applicant is to

provide to Council a Flora and Fauna Assessment report detailing results of survey undertaken in accordance with the Threatened Biodiversity Survey and Assessment: Guidelines for Developments and Activities - Working Draft dated November 2004 (DEC 2004) for approval by Director Planning and Regulation. Survey is to stratify the site and sample each stratification unit but is to concentrate effort on ‘use’ areas and their surrounds, including activity nodes, trials areas and helicopter pad. Particular targeted survey is to be undertaken to determine species’ reliance upon particular sites or localities (such as important roost or home range habitat) within parts of the site that are, or are intended to be, used during any part of the filming or associated activities or where native vegetation is proposed to be cleared. Direct and indirect impacts and Key Threatening Processes on native flora and fauna must be considered and recommendations for impact avoidance formulated, including a training and education package for site employees.

Delete Condition 1.1 in its entirety as the provisions have been satisfied. Condition 1.3 currently reads: 1.3 Prior to commencement of filming in the 2011 Filming Session the applicant is to

provide to Council a Habitat Restoration Plan in general accordance with Council’s draft guidelines (attached) as applicable to the use, for approval by Director Planning and Regulation. The Plan is to target removal of weed species from the areas under use and their surrounds and is to detail methods to encourage natural regeneration of these areas. Works are to be implemented in accordance with the approved Habitat Restoration Plan throughout the consent period.

Replace Condition 1.3 with Condition 1.3A as follows: 1.3A The applicant shall amend the Habitat Restoration Plan ('HRP') being Habitat

Restoration Plan Final Report, for Granada Australia/ITV Studios, dated 26 August 2013, prepared by Ecosure to reflect updated scheduling and timeframes for ecological restoration to 2017. Specifically, Table 14 titled Implementation schedule for restoration works shall be amended to replicate frequency of 'Maintenance Works' as shown on the table for upcoming periods during 2014 - 2017. The amended HRP shall be submitted and approved by Council's General Manager or delegate prior to commencement of the first filming and production session in 2014 approved by this consent. Works are to be implemented in accordance with the approved amended Habitat Restoration Plan (unless otherwise modified and approved by Councils General Manager or delegate) to Council's satisfaction throughout the consent period and including final site remediation phase.

Condition 4B currently reads: 4B. Relevant recommendations within the approved Flora and Fauna Assessment Report

referred to within Condition 1.1A shall be included within a revised Environmental Management Plan within four (4) weeks of the approval of the Flora and Fauna Assessment Report.


Any removal or relocation of protected fauna on the property shall only be undertaken in accordance with scientific licence or under written advice from the Department of Environment, Climate Change and Water. No planting of exotic species or weeds is to occur on the site. Any introduced fauna is to be sourced from agents certified to be free of pests and diseases with potential to impact native fauna, in particular introduction of Plague Minnow or Mosquito Fish (Gambusia holbrooki) with aquatic species; chytrid fungus causing the disease chytridiomycosis with amphibians; Psittacine circoviral (beak & feather) disease with birds and Phytophthora cinnamomi with plants.

Replace Condition 4B with Condition 4C as follows: 4C. Any removal or relocation of protected fauna on the property shall only be undertaken

in accordance with scientific licence or under written advice from the NSW Department of Environment and Heritage. No planting of exotic species or weeds is to occur on the site. Any introduced fauna is to be sourced from agents certified to be free of pests and diseases with potential to impact native fauna, in particular introduction of Plague Minnow or Mosquito Fish (Gambusia holbrooki) with aquatic species; chytrid fungus causing the disease chytridiomycosis with amphibians; Psittacine circoviral (beak & feather) disease with birds and Phytophthora cinnamomi with plants.

Condition 34.1 currently reads: 34.1 The Dungay Creek Road Environmental Management Plan prepared by Ecosure dated

June 2008 is to be amended to include Tweed Shire Council to receive Environmental Compliance Reports at the end of each ‘wrap-up’ period of filming, inclusive of the 2010/2011 filming season. The Environmental Management Plan is to be amended to include Tweed Shire Council to receive a copy of the completed environmental compliance checklist, following each site visit.

Delete Condition 34.1 in its entirety as the provisions have been satisfied. Noise The SEE advises that 'Filming and production will continue in accordance with the management and mitigation measures contained in the Site Management Plan (SMP) (Section 8.2) and the Environmental Management Plan (EMP) (Sections 2 and 3). Within the assessment of the previous S96 Application Council Officers advised that:

'A review of Council’s records does not indicate the receipt of any noise complaints received in the preceding 12 months. No further assessment required. Adequate conditions have been previously applied to address any issues that may arise’.

No further noise complaints have been received within the 12 months preceding the current S96 Application and it is considered that no further assessment is required on this basis. Traffic In respect to the Traffic Report included within the original development, the SEE advises that the 'Report concludes that upgrading of Dungay Creek Road (previously undertaken by Granada) will permanently improve the safety and amenity of Dungay Creek Road and ensure that the temporary inconvenience resulting from increased traffic for the short time period involved will be negligible. In addition, in the report to Council's meeting of 4 December 2007 in relation to the Section 96 Application to extend the consent, Council's Traffic Engineer advised that the existing roads are suitable and capable of accommodating the required traffic'.


It is noted however that the justification provided within the SEE relates to original Traffic Report as submitted within the original application (for 1 year only) and the increase in traffic volume being 'short term'. Within the latest S96 Application assessment reported to Council (being DA02/1983.14) it was advised that 'whilst the impact of continued traffic impact is acknowledged, it would be difficult to refuse the application on this basis, when previous assessments have not done so. Further, it was advised that the Community Liaison Officer for Granada is aware of the impacts to neighbours and has attempted to put mitigation measures in place in order to reduce any potential impact in relation to traffic (and other) matters. It is Council’s understanding that the Community Liaison Officer will continue to do so, in the event of any warranted complaint from neighbouring properties. Therefore, the proposed extension of time is supported in relation to traffic'. In respect to the S96 Application currently before Council, Council Officers have raised no objection to the proposed modification in respect to the impact of the proposal on the local road network as the proposed extension of time does not increase the traffic above what has been previously approved. Waste Disposal The applicant notes that the volume and type of solid and liquid wastes generated by the development will remain essentially the same and will continue to be managed in accordance with the SMP and the EMP. A current approval to operate an Onsite Sewage Management System has been approved and is scheduled to expire on 9 January 2015. Council Officers have raised no concerns with this regard subject to the requirement for a further approval to operate OSSM is in place under the provisions of the Local Government Act 1997. Recommended modification to Condition: Condition 1.2 of DA02/1983.16 currently reads: 1.2. Prior to commencement of the filming in the 2008/2009 Filming Session the applicant

is to obtain a current approval to operate an on-site sewerage management system. Replace Condition 1.2 with Condition 1.2A as follows: 1.2A. A current approval to operate the on-site sewage management system shall be in

place at all times. Water Quality The SEE notes that water quality monitoring and management (both potable and surface) will continue in accordance with the EMP. Within the assessment of the previous S96 Application Council Officers advised the following:

‘Source of potable water supply - ground water. Guidelines for Private Water Suppliers were introduced in 2008 by NSW Health to assist operators to comply with the requirements of the Australian Drinking Water Guidelines 2004. Council now maintains a register of Suppliers to assist in surveillance. Condition accordingly. The Guidelines have been forwarded with these comments so as to be included within any consent issued.

Amendments to conditions relating to the provision of an adequate water supply were made to the consent to ensure that water supplied for human consumption is in compliance with the NSW Health Private Water Supply Guidelines 2008 and the Australian Drinking Water Guidelines 2004. Water quality/management issues are also controlled by existing conditions of consent applied by The Department of Primary Industry (Office of Water), formerly known as DECCW. There are no proposed changes to the General Terms of Approval under Part 3A of the Rivers & Foreshores Management Act.


Council Officers have not raised any concerns in respect of water quality in respect of the subject application. Food Safety A routine inspection regime is in place and the food premises is registered with Council. Economic Analysis The SEE provides an Economic Impact Statement that addresses expenditure and employment effects. The key points are summarised below:

• Filming takes place at a site in Dungay at the edge of the Numinbah Nature Reserve and Springbrook National Park. Filming has been carried out in this location since 2004 however between 2004 and 2008 filming was irregular;

• Granada directly employs a total of 405 workers who reside in the Tweed Shire during filming with approximately 80-100 of these workers also reside in the Shire permanently. The remaining workers come from overseas and elsewhere in Australia;

• Direct expenditure of $9.9 million for a 6 month period in 2012/13 resulted in the addition of $17.9 million and 253 full-time jobs to the Australian economy including $10.2 million and 130 full-time equivalent jobs to the NSW economy;

• Should the production continue for another five years this would result in a cumulative impact to the Australian economy of approximately $89.5 million, including approximately $51 million to the NSW economy;

• Given the location of the production site within the Shire and the propensity for Granada to spend at local businesses it is likely that the majority of the economic benefits accruing to NSW will occur within the Shire;

• Other non-economic benefits also result from the production such as donations to local organisations and road maintenance and including benefits to international tourism since the shows have been produced;

• Significant economic and non-economic benefits from production, such as increased full-time equivalent jobs, community support and tourism, will continue to accrue in the Shire if permission is granted for the continuation of filming.

The positive economic benefit of the proposed development is not disputed and the non-economic benefits acknowledged. Conclusion The proposed development has been assessed against all relevant heads of consideration pursuant to Section 79C of the Environmental Planning and Assessment Act. In accordance with the above comments from Council officers, the amended/additional conditions above have been incorporated into the recommendation. Based on adoption and compliance with these conditions (in addition to all original conditions) it is considered that the proposal amendment is not considered to raise significant environmental impacts.


Substantially the Same Development Section 96(1A) of the Act relating to modifications involving minimal environmental impact states:

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact,

and (b) it is satisfied that the development to which the consent as modified relates is

substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has

made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

The applicant has provided an assessment of case law in respect to S96 and ensuring that the modified development is 'essentially or materially' the same as the (currently) approved development (Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) and 'substantially the same development' (Wolgan Action Group Incorporated v Lithgow City Council (2001)). The following key principles have been applied:

• The comparison is undertaken at a general level rather than between detail;

• The question is whether the development as a whole is essentially or materially the same development;

• If the impacts of the modifications are minor, the modified development is more likely to be essentially or materially the same development; and

• It is relevant to consider the magnitude of any physical changes to the development and any changes to the use of the land.

The SEE advises that, having regard to the fact that operational details of the development will not change and the key principles discussed above, the threshold question is satisfied on the basis that:

• ‘The development as a whole, being for filming and producing a television program, will remain unchanged.

• The proposed modifications will not alter the statutory or policy compliance of the proposal, create any other material difference and do not give rise to any significant environmental impacts.

• The siting, bulk and scale of the buildings essentially remain the same.

• The likely impact of the modification is minor.


• No changes to the nature, scale, intensity and operational details of the development will occur.

The SEE states that the proposed modification will not represent a radical transformation of the originally approved development and that the proposed modification to the consent will represent substantially the same development as the development for which the consent was originally granted. It is generally considered that as the proposed S96 Application does not seek any alterations to the operation on the subject sites that the proposal may be defined as substantially the same development to that originally approved. It is noted however that the original application intended that the activity would be completed in June 2004. The activity has now been in operation for an additional ten years and the granting of approval of the current S96 Application will result in an additional three years with the consent expiring in June 2017. The question may be asked whether the activity therefore remains 'temporary' in nature and therefore whether it may be classified as substantially the same development. The assessment undertaken for the previous S96 Application (DA02/1983.14) advised the following:

"The proposed activity is not being modified by the changes. The development will still be “temporary” in nature (in that it is a time limited consent) and the site will still be required to be remediated. The recommended conditions of consent will require a Habitat Restoration Plan, with works to be implemented in accordance with the approved Habitat Restoration Plan throughout the consent period. The proposed modifications are considered to satisfy the key principles for determining the threshold requirements. It is not considered that a 36 month extension changes the nature of the development and as such the proposed modifications are considered to be acceptable, subject to the proposed additional conditions of consent."

On the basis of the above and given the S96 Application currently before Council does not propose any modifications to the activity itself, it is considered that the proposal may still be deemed as substantially the same development and approved, subject to the amended and additional conditions of consent. Concurrence or Integrated Authority Consultation The Act provides for consultation with state government authorities in the event that conditions to be amended are those imposed by or of interest to such agencies. The activity operates under a Part 3A Permit under the Rivers and Foreshore Improvement Act 1948. The time frame extension does mean that permits will need to be extended, however, none of the conditions of consent are proposed to be removed and as such formal consultation in relation to the proposed amendment is not required. Despite not being required to formally consult with the Department of Primary Industries (Office of Water), the NSW Office of Water has been advised of the proposed S96 Application to further extend the activity for an additional three years and did not wish to provide any comment with this regard, other than the applicant's obligation to ensure that all permits are up to date. Advertising and Consideration of Submissions The proposed amendment was notified for a period of 14 days from Wednesday 8 January 2014 to Wednesday 22 January 2014.


During this period Council received one submission from a local resident. The submissions raising an objection to the proposed S96 addressed the following issues: Issue Response from applicant Traffic is intolerable, difficulty entering and exiting property

At the start of the pre-production period there is a notable increase, especially with deliveries being made to the site (but is permissible under the SMP) and this has been acknowledged in the application before Council. Granada has also acknowledged that there is an increase in traffic when the site is in use for production. Granada endeavours to manage traffic in a manner that best mitigates and negative impacts. Granada's management practices are set out in the Transport Policy document and Granada also notes that it manages traffic in accordance with its SMP obligations. Granada monitors the daily number of delivery trucks and staff vehicles coming to the site and follows the management measures in the SMP. In particular, Granada: (a) Has introduced the car park for crew on

Campbell's Road (that can accommodate up to 50 cars);

(b) Instructs staff that they must car pool and use the car park; and

(c) Implements a bus service to and from the site, which has been reduced to ensure bus trips do not exceed that required by staff.

Traffic management measures continue to be improved each year and Granada continues to look at implementation of additional measures to minimise the impact on residents.

Speeding cars Granada agrees that no one should exceed the speed limit and continues to address this concern, including increased signage and regular surveillance by the security staff. Surveillance includes the use of a radar speed gun. In accordance with the SMP signs have been erected at the beginning of Dungay Creek Road and at the top of Dungay Creek Road (near the entrance to 366 Dungay Creek Road) alerting drivers to the speed limits imposed. Any time Granada becomes aware of an employee or local contractor exceeding the speed limit on the road, they are advised that it is a breach of their contract to fail to obey the speed limits and they must obey speed limits in the future. Granada has daily meetings during production regarding compliance with its traffic policy, among other things. Local residents can report instances of infringements by providing


Issue Response from applicant specific details of the vehicle involved to the Production Manager. Granada would not hesitate to terminate an employee or contractor if they repeatedly breached the policy. Granada administers its traffic policy strictly and takes all possible steps in the circumstances to manage speed. Granada submits that many instances of speeding reported to it, which it has investigated, have in fact not been caused by its employees or contractors.

Loud music from vehicles Granada is not aware of any of its employees or contractors playing loud music from vehicles. If at any time Granada was to be made aware it would take prompt management action.

High beams at night Granada has placed cones or witches hats at certain locations along Dungay Creek Road as a reminder to employees and contractors not to use high beams around residences that are positioned particularly close to the road. Granada can also implement this outside the property of the submitter and would be happy to do so.

Alleged abusive truck drivers Granada is not aware of the incident raised in the submission. Granada notes that Hardings Earthmoving is a well established Tweed Valley business, which is based in Uki. Granada has engaged Hardings Earthmoving from time to time as have other residents and businesses in and around Dungay.

Verbal assault on local resident Granada has discussed this particular incident with the submitter. It is alleged that a local resident was taking pictures at a nearby property on Dungay Creek Road when he was questioned by a security guard. Granada has explained to the submitter that security are vigilant to ensure unauthorised journalists and paparazzi do not create a nuisance for local residents. Unfortunately it appears that the person in question was mistaken for a journalist due to the camera and apologised for any offence caused. Granada had understood that this matter had been resolved.

Rubbish (including beer bottles) and littering of roadside gutters and creek

No alcohol is kept on site for use by the crew and Granada believes that it is unlikely that its crew are throwing empty beer bottles out of car windows as drinking whilst working (even on the drive to or from work) would put them in breach of their employment contracts and they would be counselled accordingly. Granada has staff whose job it is to conduct litter patrol along the length of Dungay Creek Road during the pre-production and production


Issue Response from applicant periods. As with speeding (above), such behaviour would be in breach of Granada's policies. Granada monitors breaches closely (including with daily compliance meetings) and administer its policy strictly.

Noise nuisance from August to the end of January and also during maintenance and ongoing security the remainder of the time and general disruption to lifestyle and peace of the area with residents losing the use of the area

The submitter notes that the site is most active during August to the end of January and there is ongoing maintenance and security in the remaining months of the year. Granada has permission under the SMP to use the use for 7 months (up to 3 months for pre-production and up to 3 months for production and up to 1 month for de-rigging). Additional use for maintenance with limited staff on site is permitted. These visits are very small both in frequency and the number of staff involved (typically less than 10 people at a time). Visits take place with permission from the site's landowners and only in exceptional circumstances, including for essential maintenance and environmental compliance purposes. Granada believes that it is important to carry out essential maintenance, especially due to flood damage if it occurs on the site. Equally, re-rigging of suspension bridges to prevent any damage to the trees is important and can only be carried out when the site is in hibernation. Granada takes its environmental and site specific issues seriously, especially if there could be impact upon the site and / or to land owners further downstream. Granada does its upmost to keep the site visits during hibernation to a minimum. This year this site is only being used in Pre-production for approximately 2 months (not 3 months) and for 18 days de-rigging, not an entire month. Wherever possible, Granada tries to minimise the time spent on the site.

Unresponsive on-site management Granada notes that its Production Managers have been in contact with the submitter whenever her raised an issue and addressed any issues at that time. In Granada's view it has been very responsive and Granada suggests that it is likely that many of the issues raised by the submitter are not caused by its crew, particularly in the light of the fact that Council has received a single objection to its Section 96 Application.


In addition to the response raised to the matters raised within the submission, Granada advises the following:

"That the project provides significant social and economic benefits to the broader community as addressed in the Section 96 Application. In particular, the programs inject millions of dollars into the local economy as set out in the Economic Impact Statement'. In addition, they advise that 'Council should note that Granada has invested significantly in the local community in response to matters raised by the local residents from time to time (on Dungay Creek Road in particular). Below is a summary of some specific actions undertaken by Granada for the benefit of local residents: (a) Dungay Creek Road related:

• Payment for bitumen on the length of Dungay Creek Road in 2002 (approximately 3.6km);

• Payment to Council for the upgrade of the Dawes Crossing culvert ($167,000);

• Payment for the provision of convex mirrors on narrow corners on Dungay Creek Road in 2007;

• Erection of signs to manage speeding and supplier delivery access times;

• Organising for Council to erect signs regarding wildlife on the road;

• Organising for Council to undertake weed management on the road reserve on Dungay Creek Road;

• $3,312 was spent on road repairs including new gravel and the installation of drainage pipes in late 2012.

(b) Resident specific:

• Employment of the children of local residents;

• Lump sum cash payments;

• Payment for sundry items including, amongst other things, overseas trips, purchase of a worm farm, purchase of a ride-on mower, provision (free of charge) of all materials no longer used on site, purchase of building materials, erection of fencing, planting of trees (at least 60 trees), purchase of personal computers, purchase of solar panels.

(c) School specific:

• $1,150 to Dungay Public School in 2009, another $5,000 in 2010, $1,000 in February 2013 and a further $1,000 in November 2013;

• $1,000 in November 2013;

• $8,850 to local high schools in Murwillumbah area in 2009;

• $1,000 worth of prizes for a raffle in Murwillumbah Public School in 2010;

• $500 to the local Scouts club in January 2012 and a further $500 in November 2013.

We submit that these wider benefits, together with the significant measures undertaken to date to manage and mitigate potential adverse impacts, adequately address the reasonable issues raised by the objector and therefore, in the circumstances, Council's approval of the modification is considered to be sustainable and in the public interest.


Granada has been a responsible, long term and genuine member of the Tweed community. The matters set out above show the significant contribution which Granada has made to the locality in which the programs are filmed, to nearby residents, and more broadly within the Shire."

Previous assessments of earlier S96 Applications have also provided a detailed assessment of the issues raised within submissions from local residents. It is acknowledged that local residents are impacted during the times of filming, during the pre-production and during the wrap period, particularly on account of traffic generation. However, as only one submission has been received this may be attributed to the efforts that Granada has made during their filming activities as detailed above. The operation of the filming activity is to be carried out in accordance with the various management plans and additional conditions of consent have been recommended for the proposal. Based on this assessment, the S96 Application for a time extension is recommended for approval. Public Interest As detailed within the assessment of the previous S96 Application, Granada Productions appear to be a well run organisation who have agreed to comply with all of the recommendations of Council staff to date. The provision of the Site Management Plan and Environmental Management Plan provides Council with the opportunity to ensure that any potential impacts of the activity can be satisfactorily mitigated. Although the issue of continual extension of time is of concern, the proposed conditions of consent relating to this application are considered to result in an acceptable outcome in terms of flora and fauna issues. The social / economic benefits of the proposal must also be taken into consideration in terms of balancing any negative issues raised by the development. The proposed extension of time is therefore not considered to be in conflict with the public interest. OPTIONS: 1. Approve the S96 Application in accordance with the recommendation. 2. Refuse the S96 Application. Council officers recommend Option 1. CONCLUSION: The original assessment of the application concluded by providing that:

"The subject land is considered to be suitable for the proposed development. The environmental attributes of the site have made it desirable as a location for the proposed filming. These attributes are valued by the applicant and as such will be protected through environmental management measures within a plan for the site. The remediation of the land following completion of the development will be of benefit. It is considered that the addition of activity in the Dungay Creek area will be able to be undertaken in a manner to limit nuisance to other residences.”

These comments are still concurred with and furthermore the economic impacts as a result of the continuation of the production are considered beneficial to the community and to the Shire as a whole. Subsequently, this application is recommended for approval.


COUNCIL IMPLICATIONS: a. Policy: Corporate Policy Not Applicable. b. Budget/Long Term Financial Plan: Not Applicable. c. Legal: Should the applicant be dissatisfied with the determination they have a right to appeal the decision in the Land & Environment Court. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Attachment 1. Site Management Plan (ECM 3290043) Attachment 2. Environmental Management Plan (ECM 3290044) Attachment 3. Economic Impact Assessment (ECM 3290046)


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8 [PR-PC] Development Application DA12/0170.04 for an Amendment to Development Consent DA12/0170 for Alterations and Additions to Motel (Staged) at Lots 9-12 Section 4 DP 31209 Nos. 19-25 Cypress Crescent; Lots 1 & 2 Section 4 DP 29748 Nos. 26- 28 Tweed Coast Road, Cabarita Beach




SUMMARY OF REPORT:

Council on 11 September 2013 received a Section 96 application (S96) DA12/0170.04 that applies to the Hideaway Motel, Cabarita. On 1 May 2012 Tweed Shire Council received Development Application DA12/0170 seeking approval for a number of alterations and additions to the existing Hideaway Motel at Cabarita. DA12/0170 originally proposed a number of ancillary facilities for guests of the motel such as a new at grade parking facilities, restaurant, lounge room, outdoor food and beverage service area and swimming pool to be constructed in three stages. A number of submissions were received from neighbouring residents raising concerns in relation to overlooking, overshadowing of the foreshore and residential properties, noise and disturbance in relation to the proposed modifications to the existing land use. The application was later amended seeking approval to allow the facilities to be open to the general public and the premises to be used for functions and events. Council at the meeting of 14 February 2013, resolved to approve DA12/0170 for 'Alterations and Additions to Motel'. Council also resolved to amend Condition No. 9 of the Consent to allow the facilities (such as restaurant/dining area, lounge room and outdoor food and beverage service area) to be used by guests of the motel only, with the exception of ancillary functions and events consistent with the use of the premises as a motel and linked to guests residing on site. Conditions No. 11 and No. 12 were also amended to permit the use of the motel by members of the general public or for functions, parties or the like is to be permitted on an ancillary basis to the primary function of the premises as a motel. Also, Condition No. 15, that required the 'multipurpose space' to be used as storage area and games room for guests of the motel only, was deleted. Council on 11 July 2013 received a Section 96 application (S96) DA12/0170.01 seeking to modify the staging of contribution payments in line with the staging as approved within DA12/0170, and modifying the conditions to shift the payment of contributions from prior to issue of a construction certificate, to prior to the issue of the occupation certificate in line with Council's newly adopted policy. The application was approved on 12 September 2013.


The current S96 application seeks a number of amendments to the approved development. It should be noted that the majority of the proposed modifications relate to relatively minor alterations to the previously approved development. However, Council officers were particularly concerned about the following matters, these being:

• Changes to the operating hours - Dining areas including the Food and Beverage Service Area (under roof) 7am to 12 midnight Monday to Sunday and Public Holidays.

• The provision of roof top terrace, associated access and stainless steel balustrade for the use of low intensity activities (yoga, photography, informal pre-dinner drinks and not for parties or loud activities).

• The impact of the proposed roof top terrace and private terrace for the South Apartment (above the food and beverage area) on the adjoining resident properties to the south of the site.

• The proposed windows on the southern boundary of the building within the outdoor dining area which may also increase noise and disturbance to adjoining resident properties to the south of the site.

• The integration of the previously approved outdoor dining and beverage area with the existing building and whether this structure would comply with the provisions of Section B25 - Coastal Hazards of the Tweed Development Control Plan 2008.

• The deletion of the condition requiring the applicant to construct a footpath along the length of Cypress Crescent fronting the site.

During the public exhibition of the S96 application seven submissions were received. The submissions raised a number of concerns in relation to both the current S96 application as well as the original development application. The issues raised within the submissions are considered further within this report. Discussions were held between the applicant and Council Officers regarding issues raised within the submissions as well as officer's concerns regarding the proposed roof top terrace, private terrace for the south apartment and noise issues. As a result of these discussions, the applicant submitted amended plans/details on 23 October 2013. The amended plans proposed the following changes to address concerns raised, these being:

• Proposed rooftop terrace In response to Councils concerns, the main roof terrace has been converted back to roof only.

• Private terrace In response to Councils concerns the area of usable space of the private balcony terrace has been reduced by 2/3 and is now in keep with the size of the balconies approved for the adjoining motel rooms.

• Southern side windows to dining/bar area The amended plans have reduced the number of windows on the southern elevation of the Dining/Bar area from four (4) to three (3). The proposed southern windows are not considered to present an amenity impact and are appropriately treated to prevent amenity impacts.


The amendments to the S96 application resulted in it being readvertised and one submission was received raising concerns as to the land uses ability to comply with the NSW Office of Liquor, Gaming and Racing (OLGR) Guidelines for Licensed Premises. Based on the amendments, the Section 96 application is generally supported with the exception of the requested changes to the approved hours of operation for the dining/lounge/bar area. Whilst the structure housing the dining/lounge/bar area incorporates measures to reduce noise, no measures are proposed to minimise noise generated by patron's movement in and around the premises and the car park area. Given the surrounding is of a residential nature, enduring such noise from 7am to 12 midnight Monday to Sunday and Public holidays is unreasonable. Furthermore, the removal of the condition requiring the construction of a footpath along the Cypress Crescent frontage is also not supported. This section of Cypress Crescent forms a critical pedestrian link between the subject site and the commercial development along Tweed Coast Road. As Council previously resolved to grant approval to Development Application DA12/0170 for 'Alterations and Additions to Motel', this matter is now being reported to Council for consideration. RECOMMENDATION:

That Development Application DA12/0170.04 for an amendment to Development Consent DA12/0170 for alterations and additions to motel (staged) at Lots 9-12 Section 4 DP 31209 Nos. 19-25 Cypress Crescent; Lots 1 & 2 Section 4 DP 29748 Nos 26- 28 Tweed Coast Road, Cabarita Beach be approved and the consent be amended as follows: 1. Insert Condition No. 1.1 which reads as follows:

1.1. The development shall be completed in accordance with the

Statement of Environmental Effects and Plan Nos: • Site Plan Proposed, S96 02 Revision G, dated 23/10/2013; • Ground Floor Plan, S96 03 Revision G, dated 23/10/2013; • First Floor Plan Proposed, S96 04, Revision G, dated 23/10/2013; • Second Floor Plan Proposed, S96 05, Revision G, dated

23/10/2013; • Roof Plan Proposed, S96 06, Revision G, dated 23/10/2013; • North Elevation, S96 07, Revision G, dated 23/10/2013; • South Elevation, S96 08, Revision G, dated 23/10/2013 • East Elevation, S96 09, Revision G, dated 23/10/2013 • West Elevation, S96 10, Revision G, dated 23/10/2013 • Section A, S96 11, Revision G, dated 23/10/2013; • Section B, S96 012, Revision G, dated 23/10/2013; • Section C, S96 13, Revision G, dated 23/10/2013; All prepared by Virginia Kerridge Architect, except where varied by the conditions of this consent.


2. Delete Condition No. 1A and replace it with Condition No. 1B which reads as follows: 1B. The development shall be carried out in three (3) stages as follows:

Stage 1: • Construction of new covered entry including common

amenities; • Conversion of existing caretakers dwelling, laundry, reception

and restaurant service kitchen area to new circulation space, reception, reception office, restaurant dining space, new kitchen, chef office, dry store, cold store, freezer, wine store and lift;

• Renovation of rooms 1 through 5 including room enlargement and new individual ground level balcony areas;

• Conversion of room 6 and adjoining storage space into new kitchen store and communal lounge room;

• Renovation of existing serviced apartment and existing rooms 7 through 12 (identified as rooms 6 through 11 pm proposed plans) including room and balcony enlargement;

• Conversion of rooms 14 and 15 into a second serviced apartment;

• Renovation of existing external staircase access upgraded to comply with the Building Code of Australia (BCA)

• Construction of outdoor food and beverage service area; • Construction lounge, bar and outdoor bar area; • Construction of external bin storage area, equipment store and

new at grade car parking; • Partial site landscaping; • Renovation of existing stair access to foreshore reserve; and • Retention and renovation of existing swimming pool. Stage 2: • Construction of third level including new motel rooms 12

through 19; • Extension of existing external stairs to provide access to third

level; and • Partial site landscaping. Stage 3: • Construction of new caretakers dwelling, storeroom, common

amenities and multipurpose space.


3. Add the following new Condition No. 15.1 under the GENERAL heading which reads as follows: 15.1. The roof top of the dining/lounge/bar area not forming part of the private

terrace for the south apartment is not to be used for trafficable purposes. 4. Add the following new Condition No. 15.2 under the GENERAL heading which

reads as follows: 15.2. The 'chicken run' referenced on the Ground Floor Plan Drawing No. S9603,

Issue G dated 23/10/2013 does not form part of this approval. 5. Add the following new Condition No. 15.3 under the GENERAL heading which

reads as follows: 15.3. The proposed height of the timber 'privacy screen' along the southern side

of the private terrace for the south apartment is to be increased from 1.6m to 2.0m in height.


follows: 23A. Application shall be made to Tweed Shire Council under Section

138 of the Roads Act 1993 for works pursuant to this consent located within the road reserve. Application shall include engineering plan and specifications undertaken in accordance with Councils Development Design and Construction Specifications for the following required work: (a) Vehicular access: construction of two (2) vehicular footpath

crossings. (b) Construction of a 1.2m wide concrete footpath to the

following standards (100mm thick concrete reinforced with S72 mesh over 50mm compacted crusher dust) constructed along the entire site frontage on Cypress Crescent and linking into the existing concrete footpath on Tweed Coast Road The above mentioned engineering plan submission must include copies of compliance certificates relied upon and details relevant to but not limited to the following: • Road works/furnishings • Stormwater drainage • Water and sewerage works • Sediment and erosion control plans • Location of all services/conduits • Traffic control plan

[PCC0895]


7. Delete Condition No. 29 and replace it with Condition No. 29A which reads as follows: 29A. An updated noise management plan shall be prepared and submitted to the

satisfaction of the General Manager or his delegate which details the type of plant and equipment proposed, proposed location of all plant and equipment, and proposed noise mitigation measures to ensure that the emission of intrusive noise is prevented. Such management plan shall be submitted and approved prior to the issue of the construction certificate.

8. Delete Condition No. 69. 9. Delete Condition No. 89 and replace it with Condition No. 89A which reads as

follows: 89A. The outdoor food and beverage service area is to be constructed as a

separate structure and be demountable or relocatable. 10. Delete Condition No. 93 and replace it with Condition No. 93A which reads as

follows: 93A. Section 94 Contributions

Payment of the following contributions pursuant to Section 94 of the Act and the relevant Section 94 Plan. Pursuant to Clause 146 of the Environmental Planning and Assessment Regulations, 2000, a Construction Certificate shall NOT be issued by a Certifying Authority unless all Section 94 Contributions have been paid and the Certifying Authority has sighted Council's "Contribution Sheet" signed by an authorised officer of Council. A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT. These charges include indexation provided for in the S94 Plan and will remain fixed for a period of 12 months from the date of this consent and thereafter in accordance with the rates applicable in the current version/edition of the relevant Section 94 Plan current at the time of the payment. A copy of the Section 94 contribution plans may be inspected at the Civic and Cultural Centres, Tumbulgum Road, Murwillumbah and Brett Street, Tweed Heads. Stage 1 (a) Tweed Road Contribution Plan:

12.92 Trips @ $1186 per Trips $15,323 ($1145 base rate + $41 indexation) S94 Plan No. 4 Sector7_4


Heavy Haulage Component Payment of a contribution pursuant to Section 94 of the Act and the Heavy Haulage (Extractive materials) provisions of Tweed Road Contribution Plan No. 4 - Version 5.1.1 prior to the issue of a construction certificate or subdivision certificate, whichever occurs first. The contribution shall be based on the following formula:- $Con TRCP - Heavy = Prod. x Dist x $Unit x (1+Admin.) where: $Con TRCP - Heavy heavy haulage contribution and: Prod. projected demand for extractive material to be hauled to the

site over life of project in tonnes Dist. average haulage distance of product on Shire roads

(trip one way) $Unit the unit cost attributed to maintaining a road as set out in

Section 6.4 (currently 2.5c per tonne per kilometre) Admin. Administration component - 5% - see Section 6.5



(c) Shirewide Library Facilities:


(d) Community Facilities (Tweed Coast - North)

2.1 ET @ $1389 per ET $2917 ($1305.6 base rate + $83.4 indexation) S94 Plan No. 15

(e) Extensions to Council Administration Offices

& Technical Support Facilities 2.1 ET @ $1860.31 per ET $3906.65 ($1759.9 base rate + $100.41 indexation) S94 Plan No. 18

(f) Regional Open Space (Casual)

2.1 ET @ $1091 per ET $2291


($1031 base rate + $60 indexation) S94 Plan No. 26

Stage 2 (a) Tweed Road Contribution Plan:

12.4 Trips @ $1186 per Trips $14706 ($1145 base rate + $41 indexation) S94 Plan No. 4 Sector7_4 Heavy Haulage Component Payment of a contribution pursuant to Section 94 of the Act and the Heavy Haulage (Extractive materials) provisions of Tweed Road Contribution Plan No. 4 - Version 5.1.1 prior to the issue of a construction certificate or subdivision certificate, whichever occurs first. The contribution shall be based on the following formula:- $Con TRCP - Heavy = Prod. x Dist x $Unit x (1+Admin.) where: $Con TRCP - Heavy heavy haulage contribution and: Prod. projected demand for extractive material to be hauled to the

site over life of project in tonnes Dist. average haulage distance of product on Shire roads

(trip one way) $Unit the unit cost attributed to maintaining a road as set out in

Section 6.4 (currently 2.5c per tonne per kilometre) Admin. Administration component - 5% - see Section 6.5



(c) Shirewide Library Facilities:



(d) Community Facilities (Tweed Coast - North) 6.5 ET @ $1389 per ET $9029 ($1305.6 base rate + $83.4 indexation) S94 Plan No. 15

(e) Extensions to Council Administration Offices

& Technical Support Facilities 6.5 ET @ $1860.31 per ET $12092.02 ($1759.9 base rate + $100.41 indexation) S94 Plan No. 18

(f) Regional Open Space (Casual)


[POC0395]


follows: 99A. A certificate of compliance (CC) under Sections 305, 306 and 307 of the

Water Management Act 2000 is to be obtained from Council to verify that the necessary requirements for the supply of water and sewerage to the development have been made with the Tweed Shire Council. Prior to the occupation of the building or issue of any Interim or Final Occupation Certificate for Stage 1 (whichever comes first), all Section 64 Contributions must have been paid in full and the Certifying Authority must have sighted Council's "Contribution Sheet" and a “Certificate of Compliance” signed by an authorised officer of Council. Annexed hereto is an information sheet indicating the procedure to follow to obtain a Certificate of Compliance: Stage 1 Water DSP6: 2.3612 ET @ $12575 per ET $29,692.10 Sewer Hastings Point: 3.8827 ET @ $6042 per ET $23,459.30 Stage 2 Water DSP6: 1.5 ET @ $12575 per ET $18,862.50 Sewer Hastings Point: 2.25 ET @ $6042 per ET $13,594.50 Stage 3 Water DSP6: 0.0658 ET @ $12575 per ET $827.40 Sewer Hastings Point: 0.0987 ET @ $6042 per ET $596.30 These charges to remain fixed for a period of twelve (12) months from the date of this consent and thereafter in accordance with the rates applicable in Council's adopted Fees and Charges current at the time of payment.


A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT. Note: The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Management Act 2000 to be certified by an Accredited Certifier.

[POC0675]


follows: 107A. As the development subject of this consent has been identified as being

within one or more of the Coastal Hazard Zones as described in Tweed Development Control Plan B25 this consent is subject to the owner of the subject land PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE creating a positive covenant under section 88E of the (Conveyancing Act, 1919) on the following terms: “(i) The registered proprietor of the subject land acknowledges that the

subject land is within a Coastal Hazard Zone as described in Tweed Development Control Plan B25 or any other subsequent iteration of that planning instrument.

(ii) The registered proprietor also acknowledges that any development

within the subject land must comply with the terms set out herein as follows: a. In the event that the erosion escarpment comes within 20 metres

of any building/s on the subject land then the use of any building/s shall cease and the registered proprietor of the subject land shall remove any or all buildings to a location on the subject land that is further than 20 metres from the erosion escarpment where possible, or off site where not possible. In the event that relocation is not possible, then any affected building shall be demolished.

b. The registered proprietor of the subject land shall bear all costs

in relation to the relocation or demolition of any or all buildings located on the subject land.

c. The terms "Coastal Hazard Zones", "erosion escarpment' and any

other references of this covenant are to be read as having the meaning in accordance with their definitions in the Tweed Development Control Plan B25”.


13. Delete Condition No. 111 and replace it with Condition No. 111A which reads as follows: 111A. The LAeq, 15 min noise level emitted from the premises shall not exceed the

background noise level (LA90) in any Octave Band centre frequency (31.5 Hz - 8KHz inclusive) by more than 5dB(A) between 7am and 12 midnight, at the boundary of any affected residence. Notwithstanding the above, noise from the premises shall not be audible within any habitable room in any residential premises between the hours of 12 midnight and 7am weekdays and 12 midnight and 8am weekends.


follows: 113A. Hours of operation of the business are restricted to the following

hours: • Enclosed Dining/Lounge/Bar areas and Outdoor Bar - 7am to

10pm Sunday to Thursday and 7am to 12 midnight Friday, Saturday and Public holidays.

• Outdoor facilities, including Pool and BBQ Areas - 7am to 10pm Monday to Sunday.

15. Delete the GENERAL TERMS OF APPROVAL UNDER SECTION 100B OF THE

RURAL FIRES ACT 1997 and replace it with the following: GENERAL TERMS OF APPROVAL UNDER SECTION 100B OF THE RURAL FIRES ACT 1997 1. The motel re-development proposal is to comply with the plans;

attached to the Bush Fire Safety Authority (BFSA) application, referred by Tweed Shire Council under S100B of the Rural Fires Act and received by the NSW RFS 5/12/13, along with amendments made by the attached conditions. The plans referred to (and used for this assessment) are noted as being prepared by Virginia Kerridge Architect, and are identified as: • Site Plan Proposed, S96 02 Revision G, dated 23/10/2013; • Ground Floor Plan, S96 03 Revision G, dated 23/10/2013; • First Floor Plan Proposed, S96 04, Revision G, dated 23/10/2013; • Second Floor Plan Proposed, S96 05, Revision G, dated

23/10/2013; • Roof Plan Proposed, S96 06, Revision G, dated 23/10/2013; • North Elevation, S96 07, Revision G, dated 23/10/2013; • South Elevation, S96 08, Revision G, dated 23/10/2013; • East Elevation, S96 09, Revision G, dated 23/10/2013; • West Elevation, S96 10, Revision G, dated 23/10/2013.


Asset Protection Zones The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits to prevent direct flame contact with a building. To achieve this, the following conditions shall apply: 2. At the commencement of building works and in perpetuity the entire

property shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of ‘Planning for Bush Fire Protection 2006’ and the NSW Rural Fire Service’s documents ‘Standards for asset protection zones’.

Water and Utilities The intent of measures is to provide adequate services of water for the protection of buildings during and after the passage of a bushfire, and to locate gas and electricity so as not to contribute to the risk of fire to a building. To achieve this, the following conditions shall apply: 3. Water, electricity and gas are to comply with sections 4.1.3 and 4.2.7

of ‘Planning for Bush Fire Protection 2006’ Evacuation and Emergency Management The intent of measures is to provide suitable emergency and evacuation (and relocation) arrangements for occupants of special fire protection purpose developments. To achieve this, the following conditions shall apply: 4. Arrangements for emergency and evacuation are to comply with

section 4.2.7 of ‘Planning for Bushfire Protection 2006’ Design and Construction The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack. To achieve this, the following conditions shall apply: 5. New construction shall comply with Sections 3 and 5 (BAL 12.5)

Australian Standard AS3959-2009 ‘Construction of buildings in bush fire-prone areas’ and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

6. Exits are to be located away from the hazard side of the building.

7. Roller doors, tilt-a-doors and other such doors shall be sealed to

prevent the entry of embers into the building.

8. No brushwood fencing shall be used.


9. Roofing of the single storey buildings shall be gutterless or guttering and valleys are to be screened to prevent the build up of flammable material. Any materials used shall be non-combustible.

Landscaping 10. Landscaping to the site is to comply with the principles of Appendix

5 of ‘Planning for Bush Fire Protection 2006’.

General Advice – consent authority to note Bushfire-Resisting Timber • The following bushfire-resisting timbers have been determined as being

acceptable to withstand exposure up to BAL-29 conditions as per Australian Standard AS 3959-2009 ‘Construction of buildings in bush fire-prone areas’ and are identified with Appendix F of the standard. These species include: Silvertop Ash, Blackbutt, River Red Gum, Spotted Gum, Red ironbark, Kwila (Merbau) and Turpentine.


REPORT:

Applicant: Western Trust Partnership Owner: Flaskas Bickle Pty Ltd & Wadley Bickle Pty Ltd Location: Lots 9-12 Section 4 DP 31209 Nos. 19-23 Cypress Crescent and Lots 1-2

Section 4 DP 29748 Nos. 26-28 Tweed Coast Road, Cabarita Beach Zoning: 2(a) Low Density Residential Cost: Not Applicable Background: Council originally received a development application for alterations and additions to the existing motel building on 1 May 2012. The application proposed 'alterations and additions' to the existing motel building including a number of ancillary facilities for guests of the motel such as a new at grade parking facilities, restaurant, lounge room, outdoor food and beverage service area and swimming pool. A number of submissions were received from neighbouring residents raising concerns in relation to overlooking, overshadowing of foreshore and residents, noise and disturbance in relation to the proposed modifications of the existing land use. The application was later amended seeking approval to allow the facilities to be open to the general public and the premises to be used for functions and events. The Council Report for DA12/0170 included commentary advising that a search of Council's records revealed a number of approvals pertaining to the construction of the motel itself (circa 1960) and in relation to the renovation and addition of motel units. It was also advised that existing use rights were evident for the motel over Lots 9, 10, 11 and 12 in DP 31209. Whilst it was acknowledged that the motel itself had existing use rights, the same could not be said for a restaurant and/or communal dining area. A search of Council’s record did not reveal any such approvals. Council Officers recommended that DA12/0170 be approved, subject to the inclusion of reasonable and relevant conditions being imposed on the Development Consent, particularly in relation to hours of operation and restriction of use by motel guests only, to safeguard the residential amenity of surrounding area and ensure that the development complied with relevant statutory legislation. Council at the meeting of 14 February 2013, resolved to approve DA12/0170 for 'Alterations and Additions to Motel'. Council also resolved to amend Condition No. 9 of the Consent to allow the facilities (such as restaurant/dining area, lounge room and outdoor food and beverage service area) to be used by guests of the motel only, with the exception of ancillary functions and events consistent with the use of the premises as a motel and linked to guests residing on site. Conditions No. 11 and No. 12 were also amended to permit the use of the motel by members of the general public or for functions, parties or the like is permitted on an ancillary basis to the primary function of the premises as a motel. Also, Condition No. 15, that required the 'multipurpose space' to be used as storage area and games room for guests of the motel only, was deleted. Council on 11 July 2013 received a Section 96 application (S96) DA12/0170.01 seeking to modify the staging of contribution payments in line with the staging as approved within DA12/0170, and modifying the conditions to shift the payment of contributions from prior to issue of a construction certificate, to prior to the issue of the occupation certificate in line with Council's newly adopted policy.


The application was approved on 12 September 2013 and the consent was amended as follows:

• Insertion of a new Condition 1A to include staging of development;

• Deletion of Condition No. 17, No. 18 and No. 19 of the Development Consent (in relation to developer contributions) and 30 of the Consent (repetition of Condition 32);

• Insertion of a new POC contribution conditions;

• Renumbering of conditions appropriately;

• Redistribution of conditions. PROPOSED DEVELOPMENT: The current S96 application seeks a number of modifications to the previously approved development as detailed below:

• Removal of covered service entry roof from over the services easement, this area is now to be landscaped;

• Reconfiguration of toilets, cold store, kitchen, reception, reception office and southern stair case;

• Relocation of existing lift next to the reconfigured toilets, cold store, kitchen, reception, reception office and southern stair case area and the bathrooms for rooms 1, 6, 7,13 & 14 have been increased in size to take up this now vacant space;

• The restaurant dining has been amended to include fire place including stainless steel flue;

• The food and beverage service area has been enclosed and the roof height increased to RL9.42;

• Relocation of bar to the eastern most end;

• Deletion of proposed children's pool;

• Equipment store dimensions amended from 7.28m X 1.98m to 6.10m by 2.155m;

• Removal of existing BBQ area next to equipment store and provision of new BBQ and bench area;

• Amendment to lounge room layout including relocation of wall toward western boundary and relocation of kitchenette to within the store room. The WC has also been removed from the area;

• Amended bathroom layout in room 1 through to room 19;

• Extension to balconies and room length. Rooms 1 though to 5 now include fireboxes and bench seating;

• Addition of clear polycarbonate roof structures to walkway and other outdoor areas for weather protection;

• Provision of new brick fencing;

• Reconfiguration of South and North apartments including provision of private terrace above food and beverage service area for use of the private use of the south apartment;


• Provision of roof top terrace, associated access and stainless steel balustrade for the use of low intensity activities (yoga, photography, informal pre-dinner drinks and not for parties or loud activities);

• Inclusion of air condition units within screen enclosures atop the stairwells;

• Increase in the overall development height from RL 16.05 to RL 16.72;

• Inclusion of timber bi-fold screening to the front of the balcony balustrades;

• Removal of rainwater tanks from southern boundary adjacent to kitchen, restaurant dining and food and beverage service area;

• Amendments to windows types and materials detailing within the facades;

• Amendments to the level of construction required for bushfire purposes;

• Amendments condition 113 to amend operating hours as a result of additional noise control measures proposed through design changes and further acoustic work undertaken (to allow for the following hours of operation: Dining areas including the Food and Beverage Service Area (under roof) 7am to 12 midnight Monday to Sunday and Public Holidays and Outdoor facilities including Pool, BBQ Areas and roof top terrace (not including private south apartment terrace), 7am to 10pm Monday to Sunday);

• Removal of the requirement to construct a footpath along the length of Cypress Crescent fronting the site;

• Delete condition 69 requiring the construction of a footpath along the entire Tweed Coast Road frontage;

• Amend condition 84 to reference the supplementary noise impact assessment report;

• Replace all existing General Terms of Approval under Section 100B of the Rural Fires Act 1997 to reflect the new General Terms of approval provided by the NSW Rural Fire Service on 13/12/2013.

To facilitate the abovementioned modifications, the applicant has sought changes to the following conditions:

1. Add new condition 1.1 to reference the amended plans, condition 1 was removed from the consent as part of S96 DA12/0170.01 and an appropriate condition is required to reference the amended plans: 1.1 The development shall be completed in accordance with the

Statement of Environmental Effects and Plan Nos:

• Site Plan Proposed, S96 02 Revision G, dated 23/10/2013;

• Ground Floor Plan, S96 03 Revision G, dated 23/10/2013;

• First Floor Plan Proposed, S96 04, Revision G, dated 23/10/2013;

• Second Floor Plan Proposed, S96 05, Revision G, dated 23/10/2013;

• Roof Plan Proposed, S96 06, Revision G, dated 23/10/2013;

• North Elevation, S96 07, Revision G, dated 23/10/2013;

• South Elevation, S96 08, Revision G, dated 23/10/2013


• East Elevation, S96 09, Revision G, dated 23/10/2013

• West Elevation, S96 10, Revision G, dated 23/10/2013

• Section A, S96 11, Revision G, dated 23/10/2013;

• Section B, S96 012, Revision G, dated 23/10/2013;

• Section C, S96 13, Revision G, dated 23/10/2013; All prepared by Virginia Kerridge Architect, except where varied by the conditions of this consent.

Officer Comment As part of the assessment and approval of the previous S96 application, a condition referencing the approved plans was inadvertently omitted. As such, the request to include a new condition 1.1 is supported. The applicant has advised that the amended plans are a result of further design development made during the detail design phase. The proposal has seen amendments to the internal layout and external appearance. The amended design provides a more modern internal layout in line with market expectation for boutique motels, while providing an architectural form that is now more in keeping with the historical design cues and materials provided by the existing building. The amended plans as proposed are considered acceptable and the applicant's request to include a condition referencing the approved plans is supported. It should be noted that new conditions are proposed requiring the height of the timber privacy screen on the southern side of the South Apartment (level one) be increased from 1.6m to 2.0m in height (recently agreed to by the applicant), the roof top area above the dining/lounge/bar not forming part of the private terrace for the south apartment is not to be used for trafficable purposes and the 'Chicken Run' use referenced on the Ground Floor Plan does not form part of this approval.

2. Amend condition 1A to reflect amended proposal plans. This condition is sought to be amended to reference the elements of the new plans which differ from the old plans. This includes changes in room and area names, removing items which are no longer proposed and reference new items which are now proposed. The general elements and structure of the staging remain as currently approved. Condition 1A currently reads: 1A. The development shall be carried out in three (3) stages as

follows: Stage 1: • Construction of new covered service entry including common

amenities, common laundry and bin store;

• Conversion of existing caretakers dwelling, laundry, reception and restaurant service kitchen area to new circulation space, reception, reception office, restaurant dining space, new kitchen and cold room;



• Conversion of room 6 and adjoining storage space into new store and communal lounge room with amenities and serving kitchenette;

• Renovation of existing serviced apartment and existing rooms 7 through 12 (identified as rooms 6 through 11 pm proposed plans);



• Construction of outdoor food and beverage service area;

• Construction of external equipment store;

• Construction of external bin storage area and new at grade car parking;

• Partial site landscaping;

• Renovation of existing stair access to foreshore reserve; and

• Retention of existing swimming pool. Stage 2: • Construction of third level including new motel rooms 12

through 19;

• Extension of existing external stairs to provide access to third level;

• Construction of new pool;

• Construction of tennis court and tennis court cabana; and

• Partial site landscaping Stage 3: • Construction of new caretakers dwelling, storeroom, common

amenities and multipurpose space; It is proposed to amend condition 1A to read as follows: 1B. The development shall be carried out in three (3) stages as follows:

Stage 1: • Construction of new covered entry including common amenities;

• Conversion of existing caretakers dwelling, laundry, reception and restaurant service kitchen area to new circulation space, reception, reception office, restaurant dining space, new kitchen, chef office, dry store, cold store, freezer, wine store and lift;



• Conversion of room 6 and adjoining storage space into new kitchen store and communal lounge room;

• Renovation of existing serviced apartment and existing rooms 7 through 12 (identified as rooms 6 through 11 pm proposed plans) including room and balcony enlargement;



• Construction of outdoor food and beverage service area;

• Construction lounge, bar and outdoor bar area;

• Construction of external bin storage area, equipment store and new at grade car parking;

• Partial site landscaping;

• Renovation of existing stair access to foreshore reserve; and

• Retention and renovation of existing swimming pool. Stage 2: • Construction of third level including new motel rooms 12

through 19;

• Extension of existing external stairs to provide access to third level; and

• Partial site landscaping Stage 3: • Construction of new caretakers dwelling, storeroom, common

amenities and multipurpose space. Officer Comments The requested changes are considered acceptable.

3. Amend Condition 23 to remove reference to the ‘construction of concrete path paving for the Cypress Crescent frontage’. Condition 23 currently reads: 23. Application shall be made to Tweed Shire Council under Section


crossings. (b) Construction of concrete path paving from the Cypress

Crescent frontage.


The above mentioned engineering plan submission must include copies of compliance certificates relied upon and details relevant to but not limited to the following:

• Road works/furnishing


• Water and sewerage works

• Sediment and erosion control plans

• Location of all services/conduits

• Traffic control plan

It is proposed to amend Condition 23 to read as follows: 23. Application shall be made to Tweed Shire Council under Section


crossings. The above mentioned engineering plan submission must include copies of compliance certificates relied upon and details relevant to but not limited to the following:







Officer Comment The applicant did not provide any justification for the removal of part (b) of Condition 32. It is recommended that part (b) of this condition be retained and amended to give clearer guidance to the applicant that a 1.2m wide concrete footpath is required along the site frontage of Cypress Crescent linking up with the existing footpath on Tweed Coast Road. Furthermore, this section of Cypress Crescent forms a critical pedestrian link between the subject site and the commercial development along Tweed Coast Road. The applicants request is not supported and it is proposed that part (b) be retained and the wording be modified to provide greater clarity: 23A. Application shall be made to Tweed Shire Council under Section

138 of the Roads Act 1993 for works pursuant to this consent located within the road reserve. Application shall include engineering plan and specifications undertaken in accordance with Councils Development Design and Construction Specifications for the following required work:


(a) Vehicular access: construction of two (2) vehicular footpath crossings.

(b) Construction of a 1.2m wide concrete footpath to the following standards (100mm thick concrete reinforced with S72 mesh over 50mm compacted crusher dust) constructed along the entire site frontage on Cypress Crescent and linking into the existing concrete footpath on Tweed Coast Road

The above mentioned engineering plan submission must include copies of compliance certificates relied upon and details relevant to but not limited to the following:







4. Delete Condition 69, this makes reference to a concrete footpath to be constructed along the entire Tweed Coast Road frontage, this path is existing and this condition is unnecessary. Officer Comment The condition as it currently stands is not required given there is an existing footpath on Tweed Coast Road. It is therefore recommended that Condition 69 be deleted

5. Amend condition 84 to reference the attached supplemental noise impact assessment; Condition 84 currently reads: 84. The development shall be carried out in accordance with the

provisions of the Environmental Noise Impact report prepared by CRG Acoustical Consultants (ref: crgref12008a report dated 10 April 2012) except where modified by this consent.

It is proposed to amend Condition 84 to read as follows: 84. The development shall be carried out in accordance with the

provisions of the Environmental Noise Impact report prepared by MWA Environmental (ref: I15413/PAK/13-048 report dated 31 July 2013) except where modified by this consent.

Officer Comment The applicant has requested Condition 84 be amended to reflect the supplemental noise impact assessment, however, the report demonstrates compliance only and in some instances conflicts with the original report significantly in rating background levels for evening periods. Variations have not been substantiated and therefore cannot be supported however, the modelled noise levels are below the original report and therefore have been accepted on this basis. The applicant's request to amend Condition 84 is not supported.


To amend minor anomalies in existing conditions and address outstanding matters in relation to noise issues, officers propose the following changes be made to existing conditions 29 & 111: Condition 29 currently reads: 29. A noise management plan shall be prepared and submitted to the


It is proposed to amend Condition 29 to read as follows: 29A. An updated noise management plan shall be prepared and submitted to the


Officer Comment As a result of the amendment to the lounge/dinning/ bar area, the applicant is required to submit an updated noise management report to address this change to satisfy this condition. Condition 111 currently reads: 111. The LAeq, 15 min noise level emitted from the premises shall not exceed the

background noise level (LAeq) in any Octave Band centre frequency (31.5 Hz - 8KHz inclusive) by more than 5dB(A) between 7am and 12 midnight, at the boundary of any affected residence. Notwithstanding the above, noise from the premises shall not be audible within any habitable room in any residential premises between the hours of 12 midnight and 7am weekdays and 12 midnight and 8am weekends.

It is proposed to amend Condition 111 to read as follows: 111A. The LAeq, 15 min noise level emitted from the premises shall not exceed the

background noise level (LA90) in any Octave Band centre frequency (31.5 Hz - 8KHz inclusive) by more than 5dB(A) between 7am and 12 midnight, at the boundary of any affected residence. Notwithstanding the above, noise from the premises shall not be audible within any habitable room in any residential premises between the hours of 12 midnight and 7am weekdays and 12 midnight and 8am weekends.

Officer Comment A number of submissions have been received relating to the potentially for adverse impact on the amenity of the area due to unacceptable noise levels. One such submission raises the adequacy of Condition 111 with regard to referencing appropriate noise descriptors. The submission is correct in that the background descriptor has been described as LAeq and not LA90 and therefore will need to be amended.


The submission also questions the reference to the LAeq and not the LA10 as utilised by the liquor licensing authority (OLGA). The LA10 was superseded with the introduction of the NSW Industrial Noise Policy (EPA 2000) and is the preferred descriptor of source noise for most situations. OLGA referred complaints relate to disturbance of patrons particularly when departing and antisocial behaviour etc and does not generally incorporate mechanical plant for example. OLGA however applies the LA10 descriptor to any liquor licence granted.

6. Amend condition 113 to reflect altered operating times in accord with the supplementary noise impact assessment. Condition 113 currently reads: 113. Hours of operation of the business are restricted to the following

hours and in accord with the recommendations of the CRG Acoustical Consultants (ref: crgref12008a report dated 10 April 2012):

• Dining areas, not including BBQ or Outdoor Bar and Dining Areas, 7am – 10pm Sunday to Thursday, 7am – 12am Friday and Saturday and Public Holidays

• Outdoor facilities, including Pool, BBQ and Bar and Outdoor Dining Areas, 7am to 10pm Monday to Sunday

It is proposed to amend Condition 113 to read as follows: 113. Hours of operation of the business are restricted to the following

hours and in accord with the recommendations of the MWA Environmental (ref: I15413/PAK/13-048 report dated 31 July 2013):

• Dining areas including the Food and Beverage Service Area (under roof) 7am to 12MN Monday to Sunday and Public holidays

• Outdoor facilities, including Pool, BBQ Areas and roof top terrace (not including private south apartment terrace), 7am to 10pm Monday to Sunday

Officer Comment The requested change to the approved hours of operation for the dining/lounge/bar area is not supported. Whilst the structure housing the dining/lounge/bar area incorporates measures to reduce noise, no measures are proposed to minimise noise generated by patron's movement in and around the premises and the car park area. Given the surrounding is of a residential nature, enduring such noise from 7am to 12 midnight Monday to Sunday and Public holidays is unreasonable. The applicant's request is therefore not supported and it is proposed to retain the condition subject to the inclusion of the following amended wording: 113A. Hours of operation of the business are restricted to the following

hours:


• Enclosed Dining/Lounge/Bar areas and Outdoor Bar - 7am to 10pm Sunday to Thursday and 7am to 12MN Friday, Saturday and Public holidays.

• Outdoor facilities, including Pool and BBQ Areas - 7am to 10pm Monday to Sunday.

7. Replace all existing General Terms of Approval under Section 100B of the Rural Fires Act 1997 to reflect the new General Terms of approval provided by the NSW Rural Fire Service on 13/12/2013. The General Terms of Approval currently read as follows: GENERAL TERMS OF APPROVAL UNDER SECTION 100B OF THE RURAL FIRES ACT 1997 1. The motel re-development proposal is to comply with the plans attached to

the Bush Fire Safety Authority (BFSA) application, referred by Tweed Shire Council under S 100B of the Rural Fires Act and received by the NSW RFS 16 May 2012, along with amendments made by the attached conditions. The plans referred to (and used for this assessment) are noted as being prepared by Virginia Kerridge Architect, and are identified as:

• Site Plan DA106, Revision A, Dated 29/3/12;

• Ground Floor Plan, DA107, Revision B, Dated 13/09/12;

• First Floor Plan Proposed, DA108, Revision A, Dated 29/3/12;

• Second Floor Plan Proposed, DA109, Revision A, Dated 29/3/12;

• Roof Plan Proposed, DA110, Revision A, Dated 29/3/12;

• Elevations North South, DA201, Revision A, Dated 29/3/12;

• Elevations East West, DA202, Revision A, Dated 29/3/12;

• Sections DA300, Revision A, Dated 29/3/12. 2. At the commencement of building works and in perpetuity the entire

property shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of ‘Planning for Bush Fire Protection 2006’ and the NSW Rural Fire Service’s document ‘Standards for asset protection zones’.

3. Water, electricity and gas are to comply with sections 4.1.3 and 4.2.7 of ‘Planning for Bush Fire Protection 2006’.

4. Arrangements for emergency and evacuation are to comply with section 4.2.7 of ‘Planning for Bush Fire Protection 2006’.

5. Exits are to be located away from the hazard side of the building. 6. Roller doors, tilt-a-doors and other such doors shall be sealed to prevent the

entry of embers into the building. 7. No brushwood fencing shall be used. 8. Structure and shade materials in the inner protection area shall be non-

combustible or have a Flammability Index of no greater than 5 when tested in accordance with Australian Standard AS1530.2-1993 ‘Methods for Fire


Tests on Building Materials, Components and Structures - Test for Flammability of Materials’.

9. New construction on the Northern, Eastern and Southern elevations of the existing motel building, with a setback distance greater than 16.8m from the Eastern boundary (generally balcony additions), shall comply with Sections 3 and 7 (BAL - 29) Australian Standard AS3959-2009 ‘Construction of buildings in bush fire-prone areas’ and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

10. New construction on the Western elevation of the existing motel building and all other additions located to the West of the existing motel, shall comply with Sections 3 and 6 (Bal - 19) Australian Standard AS3959-2009 ‘Construction of buildings in bush fire-prone areas’ and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

11. The ‘Outdoor food and beverage service area’ and the ‘Equipment store’ shall either be constructed from non-combustible materials or comply with Sections 3 and 9 (BAL-FZ) Australian Standard AS3959-2009 ‘Construction of buildings in bush fire-prone areas’ and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’. However, any material, element of construction or system when tested to the method described in Australian Standard AS1530.8.2 ‘Methods for fire tests on building materials, components and structures Part 8.2: Tests on elements of construction for buildings exposed to simulated bushfire attack - Large flaming sources’ shall comply with Clause 13.8 of that Standard except that flaming of the specimen is not permitted and there shall be no exposed timber. Window assemblies shall comply with one of the following: a) Clause 9.5.2 of AS 3959-2009 as modified above; or b) They shall comply with the following:

i. Completely protected by a non-combustible and non perforated bushfire shutter that complies with Section 3.7 of AS3959-2009 excluding parts (e) & (f).

ii. Window frames and hardware shall be metal. iii. Glazing shall be toughened glass minimum 6mm. iv. Seals to stiles, heads and sills or thresholds shall be

manufactured from materials having a flammability index no greater than 5 or from silicone.

v. The openable portion of the window shall be screened internally or externally with screens that comply with Clause 9.5.1A.

External doors and door frames (not including garage doors) shall comply with one of the following: a) Clause 9.5.3 or 9.5.4 of AS 3959-2009 as modified above; or b) They shall comply with the following:

i. Completely protected by a non-combustible and non perforated bushfire shutter that complies with Section 3.7 of AS 3959-2009 excluding parts (e) & (f).


ii. Doors shall be non-combustible. iii. Externally fitted hardware that supports the panel in its function of

opening and closing shall be metal. iv. Where doors incorporate glazing, the glazing shall be toughened

glass minimum 6mm. v. Seals to stiles, head and sills or thresholds shall be manufactured

from materials having a flammability index no greater than 5 or from silicone.

vi. Doorframes shall be metal. vii. Doors shall be tight fitting to the doorframe and to an abutting

door if applicable. viii. Weather strips, draught excluders or draught seals shall be

installed at the base of side-hung external doors. 12. Roofing of the single storey buildings shall be gutterless or guttering and

valleys are to be screened to prevent the build up of flammable material. Any materials used shall be non-combustible.

13. New construction, located generally on the Eastern side of the motel building, and having a setback of between 16.8m and 21.3m from the Eastern boundary (i.e. additions to: serviced apartments and restaurant), shall comply with Sections 3 and 8 (BAL -40) Australian Standard AS3959-2009 ‘Construction of buildings in bush fire-prone areas’ and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

14. Landscaping to the site is to comply with the principles of Appendix 5 of ‘Planning for Bush Fire Protection 2006’. Note The following bushfire-resisting timbers have been determined as being acceptable to withstand exposure up to BAL -29 conditions as per Australian Standard AS 3959-2009 ‘Construction of buildings in bush fire-prone areas’ and are identified within Appendix F of the standard. These species include: Silvertop Ash, Blackbutt, River Red Gum, Spotted Gum, Red Ironbark, Kwila (Merbau) and Turpentine.

It is proposed to amend the General Terms of Approval to read as follows: GENERAL TERMS OF APPROVAL UNDER SECTION 100B OF THE RURAL FIRES ACT 1997 1. The motel re-development proposal is to comply with the plans;

attached to the Bush Fire Safety Authority (BFSA) application, referred by Tweed Shire Council under S100B of the Rural Fires Act and received by the NSW RFS 5/12/13, along with amendments made by the attached conditions. The plans referred to (and used for this assessment) are noted as being prepared by Virginia Kerridge Architect, and are identified as:

• Site Plan Proposed, S96 02 Revision G, dated 23/10/2013;

• Ground Floor Plan, S96 03 Revision G, dated 23/10/2013;


• First Floor Plan Proposed, S96 04, Revision G, dated 23/10/2013;

• Second Floor Plan Proposed, S96 05, Revision G, dated 23/10/2013;

• Roof Plan Proposed, S96 06, Revision G, dated 23/10/2013;

• North Elevation, S96 07, Revision G, dated 23/10/2013;

• South Elevation, S96 08, Revision G, dated 23/10/2013;

• East Elevation, S96 09, Revision G, dated 23/10/2013; and

• West Elevation, S96 10, Revision G, dated 23/10/2013. Asset Protection Zones The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits to prevent direct flame contact with a building. To achieve this, the following conditions shall apply: 2. At the commencement of building works and in perpetuity the entire

property shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of ‘Planning for Bush Fire Protection 2006’ and the NSW Rural Fire Service’s documents ‘Standards for asset protection zones’.

Water and Utilities The intent of measures is to provide adequate services of water for the protection of buildings during and after the passage of a bushfire, and to locate gas and electricity so as not to contribute to the risk of fire to a building. To achieve this, the following conditions shall apply: 3. Water, electricity and gas are to comply with sections 4.1.3 and 4.2.7

of ‘Planning for Bush Fire Protection 2006’. Evacuation and Emergency Management The intent of measures is to provide suitable emergency and evacuation (and relocation) arrangements for occupants of special fire protection purpose developments. To achieve this, the following conditions shall apply: 4. Arrangements for emergency and evacuation are to comply with

section 4.2.7 of ‘Planning for Bushfire Protection 2006’. Design and Construction The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack. To achieve this, the following conditions shall apply: 5. New construction shall comply with Sections 3 and 5 (BAL 12.5)

Australian Standard AS3959-2009 ‘Construction of buildings in bush fire-prone areas’ and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

6. Exits are to be located away from the hazard side of the building.


7. Roller doors, tilt-a-doors and other such doors shall be sealed to prevent the entry of embers into the building.

8. No brushwood fencing shall be used. 9. Roofing of the single storey buildings shall be gutterless or guttering

and valleys are to be screened to prevent the build up of flammable material. Any materials used shall be non-combustible.

Landscaping 10. Landscaping to the site is to comply with the principles of Appendix 5

of ‘Planning for Bush Fire Protection 2006’. General Advice – consent authority to note Bushfire-Resisting Timber

• The following bushfire-resisting timbers have been determined as being acceptable to withstand exposure up to BAL-29 conditions as per Australian Standard AS 3959-2009 ‘Construction of buildings in bush fire-prone areas’ and are identified with Appendix F of the standard. These species include: Silvertop Ash, Blackbutt, River Red Gum, Spotted Gum, Red ironbark, Kwila (Merbau) and Turpentine.

Officer Comment Agree that such be amended to reflect the new General Terms of Approval provided by the NSW Rural Fire Service on 13/12/2013.

The S96 application was placed on public exhibition for 14 days between Wednesday 25 September and Thursday 10 October 2013. During this period seven submissions were received, all of which were objections to the proposal. The submissions raised a number of concerns in relation to both the current S96 application as well as the original development application. The issues raised within the submissions are considered further within this report. Discussions were held between the applicant and Council Officers regarding issues raised within the submissions as well as officer's concerns regarding the proposed roof top terrace, private terrace for the south apartment and noise issues. As a result of these discussions the applicant submitted amended plans/details on 23 October 2013. The amended plans proposed the following changes to address concerns raised, these being:

• Proposed rooftop terrace In response to Councils concerns, the main roof terrace has been converted back to roof only. The access stairs have been removed and it is no longer proposed to allow or possible for guests of the motel to have access to this area. This roof will only be accessed by contractors in the event that servicing of air conditioning units or general maintenance is required. It is noted the elevations and design of the building is being kept as currently proposed to maintain the architectural styling of the amended design. As the roof has always intended to be constructed of concrete, the addition of the roof terrace was only made as an opportunity was present to provide some additional alternative space for low key uses within the development. The applicant has noted Councils and the adjoining properties concern and in wishing to achieve an amicable outcome has removed the terrace


• Private balcony terrace In response to Councils concerns the area of usable space of the private balcony terrace has been reduced by 2/3 and is now in keep with the size of the balconies approved for the adjoining motel rooms. The amended design keeps the proposal consistent with the balconies already approved. The reduced private balcony is also provided with privacy screening consistent with the other balconies approved within the development and will not result in any amenity impact to the adjoining properties. It is noted the balustrade and privacy screen has been removed from the remainder of the adjoining roof area ensuring this is non trafficable.

• Southern side windows to dining/bar area The amended plans have reduced the number of windows on the southern elevation of the Dining/Bar area from four (4) to three (3). We note these windows are positioned centrally, avoiding the nominated dining and bar areas. The windows are provided for light penetration only and are not provided to take in views or other features. Further we note a 1.8m high double skinned brick fence is proposed along the length of the boundary between the dining/bar area and the adjoining properties. The fencing cuts any possible site lines between the dining and bar area to the adjoining properties to the south. The proposed southern windows are not considered to present an amenity impact and are appropriately treated to prevent amenity impacts.

The amendments to the proposed S96 application were readvertised notified in accordance with Council policy for 14 days from 20 November 2013 to 4 December 2013. During this period one submission was received raising concerns as to the land uses ability to comply with the NSW Office of Liquor, Gaming and Racing (OLGR) Guidelines for Licensed Premises.


SITE DIAGRAM:


CONSIDERATIONS UNDER SECTION 79C OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979: The Section 96 Modification only requests the consideration of the proposed modifications to the previously approved development application. Therefore this S96 Modification only requests reconsideration of the policies relevant to the proposed amendments. CONSIDERATIONS UNDER SECTION 96 & 79C OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979: S96 of the Act specifies that:

“(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal

environmental impact, and (b) it is satisfied that the development to which the consent as modified

relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council

that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification. (3) In determining an application for modification of a consent under this

section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

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

Accordingly the following report addresses these heads of consideration. 79C (1) Assessment – Environmental Planning and Assessment Act 1979 To determine if the S96 Applications are of minimal environmental impact and substantially the same development a 79C (1) Assessment has been undertaken in the first instance. This assessment is as follows:


(a) (i) The provisions of any environmental planning instrument Tweed Local Environmental Plan 2000 Clause 4 - Aims of the Plan A principle aim of the Plan is to ensure:

The management of growth so that the unique natural and developed character of the Tweed Shire is retained, and its economic vitality, ecological integrity and cultural fabric is enhanced [and] to encourage sustainable economic development of the area of Tweed compatible with the area’s environmental and residential amenity qualities.

The proposed modifications, as readvertised (with the exception of the amended hours of operation of the dining/lounge/bar area and deletion of the requirement for the construction of a footpath along the Cypress Crescent frontage) are considered acceptable and meet the provisions of Clause 4. Clause 8 - Consent Considerations This clause specifies that the consent authority may grant consent to development (other than development specified in Item 3 of the table to clause 11) only if:

(a) it is satisfied that the development is consistent with the primary objective of the zone within which it is located, and

(b) it has considered that those other aims and objectives of this plan (the TLEP) that are relevant to the development, and

(c) it is satisfied that the development would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of Tweed as a whole.

The subject site is located within the 2(a) Low Density Zone and the provisions of the Tweed LEP 2000 prohibit the use of a 'Motel' in the 2(a) zoned. The subject motel therefore relies on existing use rights (with regard to Clause 106 of the Environmental Planning and Assessment Act 1979). Given the land use was previously approved, the proposed modifications as readvertised (with the exception of the amended hours of operation of the dining/lounge/bar area and deletion of the requirement for the construction of a footpath along the Cypress Crescent frontage) are considered to meet the provisions of Clause 8. Clause 11 - Zone Objectives The subject site is located in the 2(a) Low Density Residential Zone. The objectives of which are as follows:

Primary objective: To provide for and maintain a low density residential environment with a predominantly detached housing character and amenity.

Secondary objectives: To allow some diversity of housing types provided it achieves good urban design outcomes and the density, scale and height is compatible with the primary objective.


To allow for non-residential development that is domestically based, or services the local needs of the community, and does not detract from the primary objective of the zone.

The proposed modifications (with the exception of the amended hours of operation of the dining/lounge/bar area and deletion of the requirement for the construction of a footpath along the Cypress Crescent frontage) are considered to meet the provisions of Clause 11. Clause 16 - Height of Building The proposed amendments retain the three storey height limit and would therefore be consistent with this clause. Other Specific Clauses Clause 36 - Coastal erosion outside Zone 7(f) The subject land is located on land that is subject to coastal erosion outside of Zone 7(f) and therefore this clause applies. The objective of the clause is to protect land that may be subject to coastal erosion (but not within Zone 7(f)) from inappropriate development. The clause also states: In determining whether to grant consent to development involving the erection of a building or the carrying out of a work at or above the surface of the ground on land that in the consent authority’s opinion may be subject to coastal erosion, the consent authority must: (a) consider

(i) the likelihood of the proposed development adversely affecting the behavior or being adversely affected by the behavior of the sea, or of water in an arm of the sea or any other body of water, and

(ii) the likelihood of the proposed development adversely affecting any beach or dune or the bed, bank, shoreline, foreshore, margin or flood plain of the sea, any arm of the sea or any other body of water, and

(iii) the likelihood of the proposed development adversely affecting the landscape or scenic quality of the locality, and

(iv) the potential impacts of climate change including sea level rise.

As part of the assessment of the original application Council Officers recommended that appropriate conditions be applied in respect to coastal hazards, particularly in respect to the proposed outdoor food and beverage service area that is proposed to be constructed forward of the building line. The following conditions were applied to the consent as follows: 37. The proponent is to prepare a report, to the satisfaction of the Principal

Certifying Authority, prior to the issue of the Construction Certificate, detailing how the outdoor food and beverage area is to be dismantled and removed from the site if the erosion escarpment comes within 20 metres of the building.

89. The outdoor food and beverage service area is to be constructed as a separate structure and be demountable or relocatable. The structure does not require screw piles as it will be sacrificial.

107. As the development subject of this consent has been identified as being within one or more of the Coastal Hazard Zones as described in Tweed


Development Control Plan B25 this consent is subject to the owner of the subject land PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE creating a positive covenant under section 88E of the (Conveyancing Act, 1919) on the following terms: “(i) The registered proprietor of the subject land acknowledges that the


(ii) The registered proprietor also acknowledges that any development within the subject land must comply with the terms set out herein as follows: a. In the event that the erosion escarpment comes within 20 metres

of any habitable building/s on the subject land then the use of any building/s shall cease and the registered proprietor of the subject land shall remove any or all buildings to a location on the subject land that is further than 20 metres from the erosion escarpment where possible, or off site where not possible. In the event that relocation is not possible, then any affected building shall be demolished.

b. The registered proprietor of the subject land shall bear all costs in relation to the relocation or demolition of any or all buildings located on the subject land.

c. The terms "Coastal Hazard Zones", "erosion escarpment' and any other references of this covenant are to be read as having the meaning in accordance with their definitions in the Tweed Development Control Plan B25”.

The Section 96 application proposes a redesign of the dining/lounge/bar area and the structure to be constructed of a concrete roof, brick walls and operable door and window elements. The applicant advises that the proposal has been structurally designed as a separate element, although when finished will appear to be a single structure, the food and beverage service area will be removable. The applicant was requested to clarify whether the proposed modifications to the food and beverage area satisfies the intent of the above mentioned conditions of the consent. The applicant has since advised that the requirements of Condition 89 have been considered in the structural design and the dining/lounge/bar area has been designed so it can be sacrificial and can be removed from the main building structure. A letter from the applicant's structural engineer (Farr Engineers dated 23 October 2013) has been provided to confirm such. Council Officers are of the opinion that the detail provided by the applicant regarding the construction and crane removal technique for the proposed alterations to the dining/lounge/bar area (from a lightweight structure to a masonry structure) satisfies the intent of condition. It is therefore considered that the proposed modifications are consistent with the Clause 36 - Coastal erosion outside Zone 7(f). To rectify minor anomalies within Conditions 89 and 107, the following amendments are proposed:


Condition 89 currently reads: 89. The outdoor food and beverage service area is to be constructed as a

separate structure and be demountable or relocatable. The structure does not require screw piles as it will be sacrificial.

It is proposed to amend Condition 89 to read as follows: 89. The outdoor food and beverage service area is to be constructed as a

separate structure and be demountable or relocatable. Officer Comment Remove the advice regarding screw piles as Council should not be commenting on engineering aspects of the design and screw piles can be sacrificial. Condition 107 currently reads: 107. As the development subject of this consent has been identified as being

within one or more of the Coastal Hazard Zones as described in Tweed Development Control Plan B25 this consent is subject to the owner of the subject land PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE creating a positive covenant under section 88E of the (Conveyancing Act, 1919) on the following terms: “(i) The registered proprietor of the subject land acknowledges that the



of any habitable building/s on the subject land then the use of any building/s shall cease and the registered proprietor of the subject land shall remove any or all buildings to a location on the subject land that is further than 20 metres from the erosion escarpment where possible, or off site where not possible. In the event that relocation is not possible, then any affected building shall be demolished.



It is proposed to amend Condition 107 to read as follows: 107. As the development subject of this consent has been identified as being

within one or more of the Coastal Hazard Zones as described in Tweed Development Control Plan B25 this consent is subject to the owner of the subject land PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE creating a positive covenant under section 88E of the (Conveyancing Act, 1919) on the following terms:


“(i) The registered proprietor of the subject land acknowledges that the subject land is within a Coastal Hazard Zone as described in Tweed Development Control Plan B25 or any other subsequent iteration of that planning instrument.


of any building/s on the subject land then the use of any building/s shall cease and the registered proprietor of the subject land shall remove any or all buildings to a location on the subject land that is further than 20 metres from the erosion escarpment where possible, or off site where not possible. In the event that relocation is not possible, then any affected building shall be demolished.



Officer Comment The word Habitable has been removed from (ii) a, this is because the requirement to ‘remove or cease’ applies to all buildings. Clause 39A – Bushfire Protection The subject site is partially bushfire prone and the proposed modifications have been referred to the NSW Rural Fire Service (RFS) for comment, in accordance with Section 91 of the EPA Act 1979. The RFS has provided revised standard general terms of approval in respect to bushfire, conditions to be amended accordingly to reflect correspondence dated 13 December 2013. State Environmental Planning Policies SEPP (North Coast Regional Environmental Plan) 1988 Clause 32B: Coastal Lands The original application proposed the construction of an additional storey that resulted in the overshadowing of the waterfront open space (Crown Reserve) before 3pm midwinter and before 7pm midsummer (daylight saving time). On this basis the original application required the preparation of a SEPP 1 Objection seeking a variation to the provisions of Clause 32B94). As part of the assessment of the original application it was considered that the extent of overshadowing was relatively minor in scale in mid-summer and virtually nonexistent in mid winter and the shadow occupies only a marginal area of a large foreshore, a significant proportion of which is undeveloped. The proposed modification originally sought to increase the height of the building from RL 16.05 to RL 16.75 to accommodate the proposed rooftop terrace


balustrade. However, this component of the proposed modification has since been deleted and therefore no increase in the building height. The proposal is therefore consistent with this clause. Clause 33: Coastal hazard areas As detailed within the original assessment, the subject site is identified as being subject to the effects of coastal erosion as shown in the following diagram:

Extract of Council’s Geographical Information System (GIS) indicating

portion of site subject to Coastal Erosion Hazard 2007 The Coastal Hazards Report (Cozens, Regan, Williams, Prove dated September 2012) advised that the portion of the proposed development beyond Coastal Hazard 2050 line is in the order of 90m2, being the dining/lounge/bar area. The report stated that this area can be considered a temporary structure and therefore sacrificial. As detailed within this report, the modification seeks to construct the dining/lounge/bar area of solid masonry (concrete roof, brick walls). Council Officers are of the opinion that the details provided regarding the construction and crane removal technique for the proposed modification to the dining/lounge/bar area are consistent with this clause, which seeks to protect development and to secure property.

(a) (ii) The Provisions of any Draft Environmental Planning Instruments The Draft Tweed LEP 2013 is yet to be formally gazetted. Under the provisions of the Draft LEP the site is located within the R2 Low Density Residential Zone. Akin to the provisions of the current Tweed LEP 2000, tourist and visitor accommodation would be prohibited under the provisions of the Tweed Draft LEP 2012. However, as detailed within this report, the motel has existing use rights and Council granted approval for the use of the motel by members of the general public or for functions, parties or the like. The proposed modifications do not raise any further implications in respect of the provisions of the Draft LEP 2013.


(a) (iii) Development Control Plan (DCP) Tweed Development Control Plan A1-Residential and Tourist Development Code A detailed assessment against the requirements of DCP A1 was carried out for the original application (see attached report). In general, the proposed development was considered to be consistent with the provisions of DCP A1 in respect of site setbacks, landscaping provision, orientation, building design and so on. The applicant has advised that the proposed modifications remain generally consistent with DCP A1, with the proposed amendments being supported by a noise assessment report that addresses the proposed design changes. The applicant advises that the proposed design amendments include elements that enable greater noise control and overall improvements to prevent noise amenity impacts. A number of the proposed modifications seek relatively minor alterations to the internal configuration of the building, most of which do not raise any significant implications in respect to DCP A1. However, the S96 application as originally proposed sought to construct a roof top terrace. This component has since been deleted following concerns raised in relation to overlooking, privacy and noise. Furthermore, the proposed S96 application included a private terrace for the south apartment (Level 1) extending over the entire flat roof area above the dining/lounge/bar area, as shown below:

Extent of private terrace over food and beverage area on Level 1 and

increase in extent of private terrace on Level 2 (as originally proposed)


Extract of southern elevation as approved under DA12/0170

Concerns were raised with the applicant in respect to the modifications to the proposed private balconies in terms of overlooking, noise and loss of privacy to the properties located to the south of the site. On this basis amended plans were received as follows:

Proposed southern elevation indicating approximate extent of proposed

private terrace on the first floor with timber privacy screens 1.6m in height and clear polycarbonate roof (outlined in red) and new windows on second

floor

First floor plan as approved under DA12/0170 showing extent of private

terrace


Proposed floor plan under DA12/0170.04 showing first floor apartment and private terrace (outlined in red)

Second floor plan as approved under DA12/0170 showing extent of private

terrace

Proposed second floor plan showing second floor apartment and private

terrace


The amended details included a reduction in the length of the proposed private terrace for the southern apartment on Level 1 so that it no longer extended over the full length of the dining/lounge/bar area and includes a timber privacy screen 1.6m in height to minimise impacts on adjoining properties to the south. Recent discussions with the applicant have resulted in a new condition being proposed requiring the height of the timber privacy screen being increased from 1.6m to 2.0m in height.

Above is a snapshot from Council's GIS imagery showing the location of adjacent properties. The primary outdoor area of No 7 Palm Avenue is outlined in red. The proposed modifications to the private terrace will minimise overlooking and loss of privacy for residents of this property. It should however be noted that the existing dwellings at both 5 & 7 Palm Avenue are two storey and both overlook the subject site. It is considered that the proposed reduction in the size of the private terrace and increase in the height of the privacy screen are acceptable. The proposed built form outcome is consistent with what would/can occur in an area with a three story height limit. A2-Site Access and Parking Code The applicants advised that the proposed amendments do not generate the requirement for additional parking spaces with 25 spaces being proposed as approved within the original consent. It should be noted that car parking requirements were originally calculated on the basis of the use of the premises as a motel only and did not consider any required car parking for the use of the dining/lounge/bar areas for members of the general public, or for the use of the premises for functions or the like. Given Council at the meeting 14 February 2013 approved the use of the motel for members of the general public or for functions, parties or the like is permitted on an ancillary basis to the primary function of the premises as a motel, the car parking requirement has not been revisited.


A11-Public Notification of Development Proposals The original Section 96 Modification application was notified from 25 September 2013 to 10 October 2013. A total of seven submissions were received all of which were objections to the proposed development. Upon receipt of the proposed modification to the application, the application was readvertised in accordance with Council policy for 14 days from 20 November 2013 to 4 December 2013. During this period one submission was received in relation to the modified details. The issues raised in submissions are detailed further within this report. B19-Bogangar/Cabarita Beach Locality Plan As detailed in the original assessment of the application, the proposed alterations and expansion to the motel will impact on the residential amenity of surrounding area in terms of noise and disturbance. It was for this reason that reasonable and relevant conditions were recommended to be applied to the original consent to ensure that amenities of the motel were to be used by guests only. Council at the meeting of 14 February 2013, resolved to allow the use of the facilities by members of the general public. Whilst Council officers recognise the requirement to improve and modernise an existing building/business within the Cabarita Beach locality, it is also recognised that this should not be to the detriment of surrounding residential amenity or the general character of the area. It is for this reason the proposed amendment to the hours of operation of the dining/lounge/bar area and deletion of the condition requiring the construction of a footpath along the Cypress Crescent frontage are not supported. B25 – Coastal Hazards As detailed within the original assessment of the application, the existing motel is currently located forward of the 2100 Hazard Line, with proposed extensions to the motel being located forward of the 2050 Hazard Line, as shown in the following diagram:

Extract from Council’s GIS showing location of Hazard Lines in relation to

existing motel


Council Officers are of the opinion that the details provided by the applicant regarding the construction and crane removal technique for the proposed alterations to the dining/lounge/bar area (from a lightweight structure to a masonry structure) are satisfactory. On this basis it is considered that the proposed modifications are consistent with DCP B25. Council at its meeting of 20 February 2014 approved revised Hazard Lines. It should be noted the revised 2050 Hazard Line has moved eastward therefore the impacts have been reduced.

(a) (iv) Any Matters Prescribed by the Regulations Clause 92(a) Government Coastal Policy The subject modifications do not raise any significant implications in respect to Government Coastal Policy. Clause 92(b) Applications for demolition The subject modifications do not raise any significant implications in respect to demolition. Clause 93 Fire Safety Considerations The subject modifications do not raise any significant implications in respect to fire safety. Clause 94 Buildings to be upgraded Council’s Building Services Unit considers the proposal is adequate in this regard and will generally comply with the requirements of the BCA.

(a) (v) Any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), The subject modifications do not raise any significant implications in respect of any coastal zone management plan, as detailed within this report. Tweed Shire Coastline Management Plan 2005 It was considered that the proposed alterations and additions as originally approved would be unlikely to impact on the natural environment, coastal processes, the visual amenity or scenic quality of the area. Appropriate conditions were applied in relation to the use of the building ceasing should the erosion escarpment reach 20m of the building as well as the proposed outdoor eating area to be relocatable. On this basis it was considered that the original development was generally consistent with the objectives of the Tweed Shire Coastline Management Plan 2005. However, as detailed within this report the subject modification proposes to construct the structure housing the dining/lounge/bar area from brick and concrete so that it would be fully amalgamated with the existing building. As a result of additional information being provided by the applicant Council Officers are of the opinion that the construction and crane removal technique for the proposed alterations to the dining/lounge/bar area are satisfactory and meets the intent of the management plan.




(b) The likely impacts of the development and the environmental impacts on both the natural and built environments and social and economic impacts in the locality Context and Setting In general it is considered that the proposed modifications will not significantly alter the general design or appearance of the previously approved building, particularly as the roof top terrace has now been deleted.

(c) Suitability of the site for the development Surrounding Land uses/Development Residential development is located to the north and south of the subject site, as shown in the image below:

A number of submissions have been received from neighbouring properties, as detailed further within this report. Key concerns included:

• Changes to the operating hours - Dining areas including the Food and Beverage Service Area (under roof) 7am to 12MN Monday to Sunday and Public Holidays.

• The provision of roof top terrace, associated access and stainless steel balustrade for the use of low intensity activities (yoga, photography, informal pre-dinner drinks and not for parties or loud activities).

• The impact of the proposed roof top terrace and private terrace for the South Apartment (above the food and beverage area) on the surrounding residential amenity.

• The proposed windows on the southern boundary of the building within the outdoor dining area which may also increase noise and disturbance to neighbouring properties to the south of the site.


• The impact on the amenity in terms of allowing functions etc to occur. CONSIDERATIONS UNDER SECTION 96(1A) OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979: (d) Any submissions made in accordance with the Act or Regulations

The S96 application was advertised for a period of 14 days from 25 September 2013 to 10 October 2013. A total of seven submissions were received. The issues raised within these submissions are summarised below: Submission 1:

• Previously objected to original DA on account of noise.

• Amendments will result in an upmarket boutique motel/wedding venue/party venue open to the general public.

• Number of modifications - should a new DA be required?

• Concerns in relation to rooftop terrace. How would activities on the rooftop terrace be supervised? Terrace will completely destroy privacy and associated noise.

• Relocation of public bar to south eastern corner will also be a privacy issue and will increase noise issues.

• Ashes/soot etc from restaurant fire on the southern boundary will be problematic.

• Increased restaurant roof height with its terrace top will exacerbate problems.

• Increasing public toilets to eight is a good indication of the number of general public expected to drink there and for functions such as weddings etc.

• Development would not be in keeping with surrounding residential development and would be detrimental to all landowners.

• Cabarita is a unique part of Australia with the Hideaway Motel and Cabarita being special due to the peace and quiet it offers and the motel should be in keeping with the low key and understated feel of the village.

• The DA should be approving an understated, quiet and tasteful venue and the Hideaway Motel should always reflect the natural beauty of Cabarita Beach.

Submission 2 and Submission 3:

• Previously objected to original DA.

• Existing use rights - subject site is located in the 2(a) Low Density Zone and every adjoining property is a single residential property. Whilst it is acknowledged that the motel has established existing use rights, it appears these rights have now extended to the use of the facilities by the general public which has not occurred previously. Property in Cabarita was bought in 1982 and it is known that the motel has never provided meals or alcohol or any other amenity to the general public.

• There has been no prior approval given or use made of the motel for functions that are generated by the general public and the initial application


(and related amendments) seek to make this a primary function of the motel. It also appears that these activities are also formally required to be limited to guests residing on the site and this has the ability to change the whole nature of the site and surrounds.

• Noise - the applicant has not submitted a noise report and every residential dwelling has habitable rooms (including bedrooms) within 5m of the property.

• Dining areas - amendments seek to increase dining areas to include previous outdoor food and beverage area and also to increase the hours of dining areas which will have a detrimental effect on surrounding residents.

• Rooftop terrace - amendments are totally unacceptable due to both privacy and noise violations on surrounding amenity, combined with proposed hours of operation being 7am to 10pm, seven days a week.

• Operating hours - amendments seek to extend operating hours in relation to dining areas from 7am to 12am 365 days a year which is incompatible with the CRG Acoustical Consultants report dated 10 April 2012 and on surrounding amenity. These hours were not supported within the original DA and should not be supported now.

• Footpath - the footpath should be provided as it will improve local residential amenity.

• Food and Service Beverage Area - enclosure of the area and increased roof height would be incompatible with safeguarding the residential amenity of surrounding properties.

• Zoning - amendments would be incompatible with the 2(a) Low Density Residential Zone with all other land uses being sympathetic to that zone.

• Fencing - amendments requested have no regard to Dividing Fences Act 1991 and adjoining neighbour has not been consulted.

• Pre-meditated amendments - strategy to increase activities on the site and the changes to the use of the motel would have the ability to change the environment and surrounding amenity of the Cabarita Beach area.

Submission 4:

• Surprised that no fewer than 24 amendments are being requested less than 12 months since the approval of the original application.

• When home was built in 1980 the neighbouring motel had no liquor licence and no restaurant and was therefore appropriate for a residential area.

• Substantial amendments propose a very different type of establishment with the multiple public toilets, the restaurant and bar and events venue, a facility removed from the motel's current and historic usage.

• Roof top terrace would impinge on the privacy of surrounding households and in intended 'low intensity' activities are likely to be difficult to police.

• Amendments would pose a threat of unacceptable noise, loss of privacy and problems with street parking which have no place in a quiet residential zone.


Submission 5 (prepared by a Planning Consultancy on behalf of a nearby resident):

• Modifications sought are considered to result in a substantially different development contradicting Section 96(1A)(b) and would result in increased negative impacts to the residential amenity of the area for the following reasons:

• Inclusion of roof terrace for use by guests and general public introduces a new space of considerable area (450m2) that will be used for new activities and the inclusion of the roof terrace removes the dining and associated facilities from being an ancillary use subservient to the motel to a new use that would require development consent;

• Increase in space will encourage larger events that would exceed capacity of the motel and would therefore no longer be ancillary to a motel use;

• Use of roof terrace and proposed hours will place an unnecessary additional burden on adjoining residents (loss of privacy and acoustic impacts);

• Contrary to Section A2 of the DCP and does not appear to account for the caretakers cabin / increase in dining area/use of motel for dining facilities, wedding receptions or the like;

• The fact that significant additional car parking (double) would be required to account for the new spaces and the general amendments infers that the proposed amendments are not minor in nature;

• Internal alterations to the building relocate high intensity activities (particularly the bar area), closer to the adjoining properties impacting on the amenity of these noise sensitive receptors;

• Bar and associated spaces were previously oriented away from the residential properties to the south and was inward facing, encouraging people to congregate in a central location. The proposed amendments will focus patrons gathering to the eastern portion of the building away from acoustic treatment;

• General increase in operating hours to 12am in a predominantly residential location is out of context and will result in detrimental impacts to residents particularly from the large scale events that would be prompted by the inclusion of the roof terrace;

• Proposed development has incrementally increased in scale from the original application to now be considered wholly inconsistent with established existing use rights. The preceding approvals (Conditions 9-12) limit access and use by the general public. The proposed changes seek to erode and undermine the allowable 'existing use rights' and the public's ability to access the site;

• The new fire place has the potential to cause amenity impacts in terms of odour and emissions to adjoining residential properties;

• Concerns about how the conditions will be enforced and how the spaces would be correctly managed - particularly in relation to the public access provisions and the use of the roof terrace.


Submission 6:

• Consider that the SEE contains a number of misrepresentations in relation to the location of the bar being in the middle of a quiet family residential area and there is very little traffic noise from Cypress Crescent which is not a through road and services residents, the motel and some beachgoers.

• Development of the motel will lead to a large increase in noise for the street and local residents.

• The proposed fixed structures, including the bar, that are replacing existing open and timber shelters are being built on the boundary of the site to residential properties in which case some residents are only a metre or so from the bedrooms and therefore more rigorous requirements should be applied for commercial buildings in a residential area that are likely to generate noise from 7am to 12pm 7 days a week.

• The current noise level in the area is low (acoustic report focuses on noise generated by rubbish trucks however this only occurs once a week for 30 minutes, quite different to an ongoing liquor licence/restaurant/bar operation.

• Consider that the amendments are more than mere modifications and should be assessed under S79C(1)(a) to consider existing controls or plans.

• Inclusion of a fourth floor would set a precedent for the Cypress Crescent locality of the Local Plan and is not considered to be a minor amendment. This is higher than the allowable height limit and most properties in the area are only one or two storeys.

• Commercial building with a fourth floor in quiet area will dominate its surroundings.

• The inclusion of the fourth floor would be contrary to the Bogangar/Cabarita Local Plan (B19) that nominates the area as one of 'tranquil, peaceful surroundings'.

• Motel would constitute severe overlooking onto neighbouring residences impacting on privacy and amenity.

• Use of fourth floor for a bar area with an extended liquor licence and possibly including music and dining facilities in the future will have a substantial negative impact on the amenity for neighbouring residents and use may intensify in the future (with inclusion of bar, fridges and the like for example).

• Noise, whether boisterous or not, from the open higher level will generate unacceptable noise, overlooking and loss of amenity for adjoining and nearby occupants.

• Other changes including 2 large private rooftop terraces and an increase in the height of an already substantial building expanding the full width of the block, the extension of the alcohol licence to 7am to 12 midnight 7 days a week and other amendments make it substantial alterations to the original plan, to which the general community have already objected.

• Example of an appeal (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002]) in


respect of an additional storey and that the issue of precedent should be taken into consideration, particularly if there are also significant amenity impacts from the use of the space on adjoining residents. Was also advised that approving a roof top terrace would impact on the amenity of local residents to a greater extent than an approval for a bedroom on that level.

• Therefore a legal precedent has been set and that the approval of a rooftop terrace would have the potential for future legal challenges against that decision.

• Acoustic report is misrepresentative of the likely impact of noise on residents and we are commissioning our own acoustic report that will be forwarded separately.

• Amendments are clearly not minor and will have significant impact on nearby residents as excluded under S96 of the Act and many of the amendments will lead to unacceptable and additional noise and intrude on residents privacy and amenity.

• Approving S96 would fail to take any notice of residents' concerns or the fact that the application would set a precedent, will be intrusive to the surrounding community and cannot be in the public interest to approve.

Submission 7(from Cabarita Beach / Bogangar Residents Association):

• The original DA was accepted as a redevelopment on existing use rights and the proposal indicated renovations in keeping with a small boutique motel in the 2(a) Zone.

• The DA was approved recently and it is 'suspicious' that the S96 has been lodged quite soon after DA was submitted and the amendments are indicative of a more extensive business plan being conducted.

• Area is on a coastal fringe of heath and bushland, namely the Cudgen Reserve and the motel should be subject to a rigorous bushfire management plan.

• The footpath should be constructed from the motel to join the current footway into the CBD as this would be the direction of foot traffic from the motel.

• Privacy issues are a major issue with the two suggested decks, which would have a 100 person capacity, abut private property and need a quality visual screen and suitable sound mitigation devices.

• Proposed 8 public toilets when the 19 rooms have private bathroom facilities - this alarms residents and indicates possible extension of activities within this facility - namely the opening of a large function centre for which it is not zoned.

• Flat roof top would require a shade canopy for shade/weather protection which should be considered at this stage and sympathetically designed.

• Proposed south deck is of solid construction 1m from the seaward boundary and on the 50 year coastal hazard line which needs closer examination.

• Proposed car park is quite small for the current 19 rooms and as the site is close to a major roundabout which directs traffic from the freeway and Kingscliff towards the town centre (and Woolworths site), overflow car


parking would greatly impact on Cypress Crescent residents. This would be a major problem should the business expand into a function centre.

As detailed within this report, amendments to the proposed modification were received on 23 October 2013. As a result the S96 was readvertised in accordance with Council policy for an additional 14 days from 20 November 2013 to 4 December 2013. One submission was received. The issues raised within this submission are as follows: Submission 1:

• We are still concerned that the amendment does not comply with the NSW Office of Liquor, Gaming and Racing (OLGR) Guidelines for Licensed Premises. We request Council to provide a revised noise report addressing our concern.

Council officer assessment of submissions received during the two advertisement periods Substantially the same development An assessment of the proposed modifications has been undertaken and it is considered the proposal generally remains ‘substantially the same development’ and can be modified subject to the provisions of S96(1)(a) of the Environmental Planning and Assessment Act 1979. The applicant has advised that changes to the built form are as a result further design development made during the detail design phase. These changes are unlikely to adversely impact on the amenity of neighbouring area. However, the applicants request to amend the operating hours is considered unacceptable given the locality of the subject site. Based on the amendments, the Section 96 application is generally supported with the exception of the requested changes to the approved hours of operation for the dining/lounge/bar area (under roof) and the removal of the condition requiring the construction of a footpath along the Cypress Crescent frontage. Existing use rights The original application proposed alterations and additions to the motel only, however this was amended to include the use of the restaurant area for guests and members of the public. Council officers have previously advised that existing use rights were evident for the motel only. No such evidence has been identified to confirm use rights for a restaurant and/or communal dining area. Furthermore, it was advised that the motel has never had an approval for functions, parties or the like. Council at its meeting of 14 February 2013, resolved to support the applicant's request to allow the motel facilities to be open to members of the general public and for the use of the premises for functions and the like, on an ancillary basis to the primary function of the premises as a motel (please note Condition No. 12 of the Development Consent). Whilst concerns raised by submitters regarding existing use rights are acknowledged, this issue is not relevant to this application as it was addressed as part of the approval granted by Council at its meeting 14 February 2013.


Car parking requirement A total of 25 parking spaces have been provided. These parking spaces are in association with the tourist accommodation component of the building. Parking calculations undertaken as part of the assessment of DA12/0170 were prepared on the basis of the motel facilities being used by guests of the motel only as recommended by Council officers. The applicant advised that the proposed S96 application amendments do not generate the requirement for additional parking spaces as no additional units are proposed. Council Officers note the submitters concerns regarding insufficient parking on the site to accommodate the use of the premises open to the general public and for ancillary functions. Given, Council at its meeting 14 February 2013 resolved approved the use of the motel for members of the general public or for functions, parties of the like, on an ancillary basis to the primary function of the premises as a motel, car parking rates have not been revisited. Residential amenity As detailed above, a number of the submissions raised specific concerns in relation to the impact of the proposed modifications on the residential amenity of neighbouring properties, in particularly the proposed roof top terraces, private terrace for the south apartment and the number of windows on the southern side of the dining/lounge/bar area. Subsequent discussions with the applicant have resulted in the proposed rooftop terrace being deleted, the size of the private terrace for the Southern Apartment being reduced (with the inclusion of a 2m high privacy screen) and the number of windows on the southern side of the dining/lounge/bar area being reduced from four to three. The proposed modifications have been assessed by Council officers and it is considered the modifications address the concerns raised by the submitters. Hours of operation Council officers agree that the proposed increase in the hours of operations for the dining/lounge/bar area is unacceptable. The movement of patrons in and around the premises and the car park area cannot be controlled and the noise will adversely impact on the surrounding low density residential setting. Footpath Council Officers consider that the requirement to construct the footpath along the frontage of the site to Cypress Crescent is warranted and should not be deleted. This is particularly important given the motel now has approval to carry out functions, parties and the like, in association with the motel that may increase the number of patrons to the premises. Furthermore, this section of Cypress Crescent forms a critical pedestrian link between the subject site and the commercial area along Tweed Coast Road. Coastal hazards Council Officers are of the opinion that the details provided regarding the construction and crane removal technique for the proposed alterations to the dining/lounge/bar area (from a lightweight structure to a masonry structure) are consistent with the Clause 36 - Coastal erosion outside Zone 7(f).


Increased building height The proposed modification originally sought to increase the height of the building from RL 16.05 to RL 16.75 to accommodate the proposed rooftop terrace balustrade. However, this component of the proposed modification has since been deleted and therefore no alterations are proposed to the previously approved building height. Fire The concerns raised by the adjoining land owner regarding the proposed fireplace are noted. The plans submitted indicate that the masonry fireplace will comply with AS2918. Fence The applicant proposes a double skinned brick fence, 1.8m in height along the on the southern boundary for the entire length of the building. The construction of this fence will assist in reducing noise impacts on surrounding residential properties. Noise report A number of submissions raised concerns regarding the potential adverse impact on the amenity of the area due to unacceptable noise levels from the development. One such submission raises the adequacy of Condition 111 with regard to referencing appropriate noise descriptors. The submission is correct in that the background descriptor has been described as LAeq and not LA90. A condition has been included rectifying this error.

(e) Public interest Approval has already been granted by Council in respect of the use of the premises by members of the general public, as well as for carrying out functions and events or the like. This assessment does not consider the merits of the previous Council resolution. The application seeks to modify the consent by way of proposes a number of minor modifications to the previously approved plans (built form), most of which are supported and are unlikely to impact on the amenity of neighbouring area. The application also seeks to amend the approved hours of operation for the dining/lounge/bar area (under roof) and the removal of the condition requiring the construction of a footpath along the Cypress Crescent frontage. These changes are not supported as they are likely to have an adverse impact on the amenity of neighbouring area.

Contributions - Section 64 & 94 As part of the assessment of the S96 application, the contributions have been recalculated based on Council's decision to allow the motel facilities to be open to members of the general public and for the use of the premises for functions or the like on an ancillary basis to the primary function of the premises as a motel. The Section 94 assessment included the following areas of the development - Lounge Room, Multipurpose Space and the Dining/Lounge/Bar (10.44 trips @ $1186 per trip = $12.382). The Section 64 assessment included the following areas of the development - Dining/Lounge/Bar (Water 1.2ET @ $12575 per ET = $15,090 & Waste Water 2.08 ET @ 6042 per ET = $12,567.40). The applicable conditions will be amended to include the additional charges.


OPTIONS: 1. Approve the development application in accordance with the recommendations within

this report; or 2. Refuse the development application. The Officers recommend Option 1. CONCLUSION: The application seeks to modify the consent by way of proposing a number of minor alterations to the previously approved plans (built form), most of which are supported and are unlikely to impact on the amenity of neighbouring area. The application also seeks to amend the approved hours of operation for the dining/lounge/bar area (under roof) and the removal of the condition requiring the construction of a footpath along the Cypress Crescent frontage. These changes are not supported as they are likely to have an adverse impact on the amenity of neighbouring area. The application is recommended for approval subject to the inclusion of reasonable and relevant conditions. COUNCIL IMPLICATIONS: a. Policy: Corporate Policy Not Applicable. b. Budget/Long Term Financial Plan: Not Applicable. c. Legal: Not Applicable. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Attachment 1. Report on DA12/0170 submitted to the Council meeting of 14 February 2013 (ECM 3288307)


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9 [PR-PC] Development Application DA13/0383 for a Redevelopment of 'Jenners Corner' Site Incorporating a Boat Showroom, Boating Facility, Two Cafes and Caretakers Residence at Lot 1 DP 119054, Lot 1 DP 341470, Lot A DP 373769 No. 120 Chinderah Bay Drive, Chinderah; Lot 1 DP 382677, Lot C DP 373769 No. 122 Chinderah Bay Drive, Chinderah; Lot 1 DP 415533 No. 126 Chinderah Bay Drive, Chinderah; Lot 2 DP 415533 No. 128 Chinderah Bay Drive, Chinderah; Lot 3 DP 415533 No. 130 Chinderah Bay Drive, Chinderah




SUMMARY OF REPORT:

This application proposes the construction of a boat showroom (756m2) and sales office (33.1m2), boat storage yard (116 covered bays) and office building (120m2), two tenancies for café/restaurant use (renovation of existing shop and café) and caretakers dwelling (renovation of the existing dwelling). The site is currently zoned 3(d) Waterfront Enterprise and the development would be defined as a ‘Boat Showroom’, ‘Boating Facility’, ‘Refreshment Room’ and ‘Dwelling House’ under the current Tweed Local Environmental Plan 2000. Whilst the proposed Boating Facility is permissible under the 3(d) zone, it is prohibited under the proposed B4 Mixed Use zone of the Draft Tweed Local Environmental Plan 2012. Despite the prohibition, the proposal is considered to be consistent with the objectives of the B4 Mixed Use zone under the draft plan. Various decisions in the NSW Land and Environment Court have considered draft LEP’s, which have required consent authorities to give greater weighting to their draft environmental planning instruments which are ‘certain and imminent’. Previous case law suggests that this weighting has greater relevance once a draft LEP has been publicly exhibited, adopted by Council, and forwarded to the Minister for final making and gazettal. Following an earlier public exhibition, Council at its meeting of 31 May 2013 resolved to adopt the exhibited Draft Tweed LEP 2012, subject to certain changes. The modified draft LEP has been referred to the Department of Planning and Infrastructure, and gazettal of the plan is expected soon.


Taking into consideration the proposals consistency with the objectives of the B4 zone, which states:

• To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in

accessible locations so as to maximise public transport patronage and encourage walking and cycling.

The application is recommended for approval. The development application has been referred to Council to determine given the draft LEP prohibiting the development which does not preclude Council from granting consent to the Development Application. It should be noted that approval of the application would result in Existing Use Rights being relied upon once the Draft LEP 2012 is gazetted and the development proceeds. RECOMMENDATION:

That Development Application DA13/0383 for a Redevelopment of 'Jenners Corner' Site Incorporating a Boat Showroom, Boating Facility, Two Cafes and Caretakers Residence at Lot 1 DP 119054, Lot 1 DP 341470, Lot A DP 373769 No. 120 Chinderah Bay Drive, Chinderah; Lot 1 DP 382677, Lot C DP 373769 No. 122 Chinderah Bay Drive, Chinderah; Lot 1 DP 415533 No. 126 Chinderah Bay Drive, Chinderah; Lot 2 DP 415533 No. 128 Chinderah Bay Drive, Chinderah; Lot 3 DP 415533 No. 130 Chinderah Bay Drive, Chinderah be approved subject to the following conditions: GENERAL 1. The development shall be completed in accordance with the Statement of

Environmental Effects and Plan Nos 334-DA07 prepared by Greg Everding Architect and dated 04.11.13, Plan Nos 334-DA06 prepared by Greg Everding Architect and dated 04.11.13, Plan Nos 334-DA01 prepared by Greg Everding Architect and dated 25.07.13, Plan Nos 334-DA03 prepared by Greg Everding Architect and dated 15.08.13, Plan Nos WD 2/413 prepared by PFK Building Design and dated 24/04/13 except where varied by the conditions of this consent.

[GEN0005]

2. The issue of this Development Consent does not certify compliance with the

relevant provisions of the Building Code of Australia. [GEN0115]

3. Approval is given subject to the location of, protection of, and/or any necessary

approved modifications to any existing public utilities situated within or adjacent to the subject property.

[GEN0135]

4. A Sewer manhole is present on this site. This manhole is not to be covered with

soil or other material. Should adjustments be required to the sewer manhole, then application shall be made to Council's Engineering Division for approval of such works.

[GEN0155]


5. The development is to be carried out in accordance with Councils Development Design and Construction Specifications.

[GEN0265]

6. Waste management on the site shall be carried out in accordance with the

approved Waste Management Plan. [GENNS03]

7. The occupants of the caretakers dwelling must only be employees of any of the

approved uses under this consent. [GENNS04]

PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE 8. The developer shall provide 36 parking spaces including parking for the

disabled in accordance with Tweed Shire Council Development Control Plan Part A2 - Site Access and Parking Code. Full design detail of the proposed parking and manoeuvring areas including integrated landscaping shall be submitted to Tweed Shire Council and approved by the General Manager or his delegate prior to the issue of a construction certificate.

[PCC0065]

9. In accordance with Section 109F(i) of the Environmental Planning and Assessment Act 1979 (as amended), a construction certificate for SUBDIVISION WORKS OR BUILDING WORKS shall NOT be issued until any long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986 (or where such levy is payable by instalments, the first instalment of the levy) has been paid. Council is authorised to accept payment. Where payment has been made elsewhere, proof of payment is to be provided.

[PCC0285]

10. All imported fill material shall be from an approved source. Prior to the issue of

a construction certificate details of the source of fill, description of material, proposed use of material, documentary evidence that the fill material is free of any contaminants and haul route shall be submitted to Tweed Shire Council for the approval of the General Manager or his delegate.

[PCC0465]

11. All fill is to be graded at a minimum of 1% so that it drains to the street or other

approved permanent drainage system and where necessary, perimeter drainage is to be provided. The construction of any retaining wall or cut/fill batter must at no time result in additional ponding occurring within neighbouring properties. All earthworks shall be contained wholly within the subject land. Detailed engineering plans of cut/fill levels and perimeter drainage shall be submitted with a S68 stormwater application for Council approval.

[PCC0485]

12. A detailed plan of landscaping containing no noxious or environmental weed

species and with a minimum 80% of total plant numbers comprised of local native species is to be submitted and approved by Council's General Manager or his delegate prior to the issue of a Construction Certificate.

[PCC0585]


13. Site filling and associated drainage is to be designed to address drainage on the

site as well as existing stormwater flows onto or through the site, and minimising the impact of filing on local drainage. Detailed engineering plans of fill levels and perimeter drainage shall be submitted for Council approval.

[PCC0675] 14. Design detail shall be provided to address the flood compatibility of the

proposed structure including the following specific matters: (a) Design flood level of RL 3.2m AHD. (b) All building materials used below Council's design flood level must not be

susceptible to water damage. (c) Subject to the requirements of the local electricity supply authority, all

electrical wiring, outlets, switches etc. should, to the maximum extent possible be located above the design flood level. All electrical wiring installed below the design flood level should to suitably treated to withstand continuous submergence in water and provide appropriate earth leakage devices.

(d) Define adequate provision for the flood free storage for goods and

equipment susceptible to water damage. [PCC0705]

15. Fencing detail is to be provided detailing a form that will either allow the free

passage of flood water or be of a light construction such as timber paling that will collapse as a result of any build up of floodwater or debris.

[PCC0725]

16. Application shall be made to Tweed Shire Council under Section 138 of the

Roads Act 1993 for works pursuant to this consent located within the road reserve. Application shall include engineering plans and specifications undertaken in accordance with Councils Development Design and Construction Specifications for the following required works: - (a) Vehicular access (dwelling house and boating facility) (b) Minor road pavement widening of Walsh Street to facilitate vehicular access

to the site, to accord with the depicted access arrangement as shown on ‘Proposed Site Plan’ no. 334-DA07 by Greg Everding Architect dated 04.11.13.


The above mentioned engineering plan submission must include copies of compliance certificates relied upon and details relevant to but not limited to the following: • Road works/furnishings • Stormwater drainage • Sediment and erosion control plans • Location of all services/conduits • Traffic control plan

[PCC0895]

17. Permanent stormwater quality treatment shall be provided in accordance with

the following: (a) The Construction Certificate Application shall detail stormwater

management for the occupational or use stage of the development in accordance with Section D7.07 of Councils Development Design Specification D7 - Stormwater Quality.

(b) Permanent stormwater quality treatment shall comply with section 5.5.3 of

the Tweed Urban Stormwater Quality Management Plan and Councils Development Design Specification D7 - Stormwater Quality.

(c) The stormwater and site works shall incorporate water sensitive design

principles and where practical, integrated water cycle management. (d) Specific Requirements to be detailed within the Construction Certificate

application include: (i) Shake down area along the haul route immediately before the

intersection with the road reserve. [PCC1105]

18. A construction certificate application for works that involve any of the following:

• connection of a private stormwater drain to a public stormwater drain • installation of stormwater quality control devices • erosion and sediment control works will not be approved until prior separate approval to do so has been granted by Council under Section 68 of the Local Government Act. a) Applications for these works must be submitted on Council's standard

Section 68 stormwater drainage application form accompanied by the required attachments and the prescribed fee.

b) Where Council is requested to issue a construction certificate for

subdivision works, the abovementioned works can be incorporated as part of the construction certificate application, to enable one single approval to be issued. Separate approval under Section 68 of the Local Government Act will then NOT be required.

[PCC1145]


19. Erosion and Sediment Control shall be provided in accordance with the

following: (a) The Construction Certificate Application must include a detailed erosion

and sediment control plan prepared in accordance with Section D7.07 of Development Design Specification D7 - Stormwater Quality.

(b) Construction phase erosion and sediment control shall be designed,

constructed and operated in accordance with Tweed Shire Council Development Design Specification D7 - Stormwater Quality and its Annexure A - “Code of Practice for Soil and Water Management on Construction Works”.

[PCC1155]

20. An application shall be lodged together with any prescribed fees including

inspection fees and approved by Tweed Shire Council under Section 68 of the Local Government Act for any water, sewerage, on site sewerage management system or drainage works including connection of a private stormwater drain to a public stormwater drain, installation of stormwater quality control devices or erosion and sediment control works, prior to the issue of a construction certificate.

[PCC1195] 21. In accordance with Section 68 of the Local Government Act, application shall be

made to Council for any proposed sewerage drainage system. Detail shall include hydraulic drawings, pipe sizes, details of materials and discharge temperatures.

[PCC1225]

22. Where any existing sewer junctions are to be disused on the site, the connection

point shall be capped off by Council staff. Applications shall be made to Tweed Shire Council and include the payment of fees in accordance with Councils adopted fees and charges.

[PCC1235]

23. In accordance with Section 68 of the Local Government Act, 1993, any premises

proposing to discharge into Councils sewerage system waste water other than domestic sewage, shall submit to Council a completed application for a Trade Waste Licence. This application is to be approved by the General Manager or his delegate PRIOR to the issuing of a Construction Certificate to discharge to Councils sewerage system.

[PCC1255]

24. Pursuant to Section 68 of the Local Government Act, 1993 an approved pre-

treatment device (eg. Oil/grease traps, separators, etc) shall be installed in accordance with Tweed Shire Councils Trade Waste Policy. Submission of detailed hydraulic plans and specifications indicating size, type, location and drainage installations in accordance with AS 3500 shall be submitted to Council for approval.

[PCC1265]


25. Three copies of detailed hydraulic plans shall be submitted with all trade waste applications which indicate size, type and location of pre-treatment devices. All plumbing and drainage installations to these devices shall comply with AS3500.

[PCC1275]

26. Prior to the construction certificate being issued, three copies of plans drawn to

a scale of 1:50 detailing the following with regards to all food related areas shall be provided to Council’s Environmental Health Officers for assessment and approval: a. Floor plan b. Layout of premises showing all equipment c. All internal finish details including floors, wall, ceiling and lighting d. Hydraulic design in particular method of disposal of trade waste e. Mechanical exhaust ventilation as per the requirements of AS1668 Pts 1 & 2

where required f. Servery areas including counters etc.

27. Prior to the issuing of a construction certificate, a Dewatering Management Plan is to be prepared and submitted to Council. The Dewatering Management Plan is to be prepared by a suitably qualified consultant, and is to be to the satisfaction of the General Manager or his delegate.

[PCCNS01]

28. A Construction Certificate will not be issued over any part of the site requiring a

controlled activity approval until a copy of the approval has been provided to Council.

29. Prior to the issuing of a Construction Certificate a construction waste

management plan is to be provided to Council. The Waste management plan is to include: i. The type of waste generated during construction ii. The method and location of waste storage on site iii. How any recyclable materials will be managed iv. The location of the disposal facility for residual waste

[PCCNS02]

30. The proposed site works are required to avoid the existing Drainage Easement

that encumbers Lot A DP 373769 and Lot 3 DP 415533. 31. The proposed “gravel” surface for the boat storage facility will only be

acceptable if it is an all-weather, high bearing capacity porous surface - as per TSC DCP A2. Verification of a surface that complies with this requirement will need to be provided by a qualified engineer, otherwise all internal access and parking areas will need to be bitumen sealed.

[PCCNS03]

32. Sewer Easements - A three meter easement over the existing and/ or new

sewerage infrastructure is required. References to permit the proposed carport structure should be included in the easement document.

33. Building in proximity sewer - Sewer depth and actual location must be confirmed

on site and recorded on construction plans prior to construction.


34. Building in proximity water and/ or sewer - A suitably qualified engineer shall

design the walls and/or footing depths based on the geotechnical conditions on site and the plans must be submitted to Council to demonstrate the Council Sewers - Works in Proximity Policy has been adhered to.

35. Works are to be undertaken to terminate the sewer prior to storage bays 7 to 13

and a new manhole will be required at the new endpoint. [PCCNS04]

PRIOR TO COMMENCEMENT OF WORK 36. The proponent shall accurately locate and identify any existing sewer main,

stormwater line or other underground infrastructure within or adjacent to the site and the Principal Certifying Authority advised of its location and depth prior to commencing works and ensure there shall be no conflict between the proposed development and existing infrastructure prior to start of any works.

[PCW0005]

37. The erection of a building in accordance with a development consent must not

be commenced until: (a) a construction certificate for the building work has been issued by the


(b) the person having the benefit of the development consent has:

(i) appointed a principal certifying authority for the building work, and (ii) notified the principal certifying authority that the person will carry out

the building work as an owner-builder, if that is the case, and (c) the principal certifying authority has, no later than 2 days before the

building work commences: (i) notified the consent authority and the council (if the council is not the

consent authority) of his or her appointment, and (ii) notified the person having the benefit of the development consent of

any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(d) the person having the benefit of the development consent, if not carrying

out the work as an owner-builder, has: (i) appointed a principal contractor for the building work who must be the

holder of a contractor licence if any residential work is involved, and (ii) notified the principal certifying authority of any such appointment, and


(iii) unless that person is the principal contractor, notified the principal contractor of any critical stage inspection and other inspections that are to be carried out in respect of the building work.

[PCW0215]



[PCW0225]

39. A temporary builder's toilet is to be provided prior to commencement of work at

the rate of one closet for every 15 persons or part of 15 persons employed at the site. Each toilet provided must be: (a) a standard flushing toilet connected to a public sewer, or (b) if that is not practicable, an accredited sewage management facility




certifying authority for the work, and (b) showing the name of the principal contractor (if any) for any building work

and a telephone number on which that person may be contacted outside working hours, and

(c) stating that unauthorised entry to the site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

[PCW0255]

41. Prior to start of works the PCA is to be provided with a certificate of adequacy of

design, signed by a practising Structural Engineer on all proposed retaining walls in excess of 1.2m in height. The certificate must also address any loads or possible loads on the wall from structures adjacent to the wall and be supported by Geotechnical assessment of the founding material.

[PCW0745] 42. Prior to commencement of work on the site all erosion and sedimentation

control measures are to be installed and operational including the provision of a "shake down" area, where required. These measures are to be in accordance with the approved erosion and sedimentation control plan and adequately maintained throughout the duration of the development. In addition to these measures the core flute sign provided with the stormwater approval under Section 68 of the Local Government Act is to be clearly displayed on the most prominent position of the sediment fence or erosion control device which promotes awareness of the importance of the erosion and sediment controls provided.


This sign is to remain in position for the duration of the project.

[PCW0985]

43. All roof waters are to be disposed of through properly jointed pipes to the street

gutter, interallotment drainage or to the satisfaction of the Principal Certifying Authority. All PVC pipes to have adequate cover and installed in accordance with the provisions of AS/NZS3500.3.2. Note All roof water must be connected to an interallotment drainage system where available. A detailed stormwater and drainage plan is to be submitted to and approved by the Principal Certifying Authority prior to commencement of building works.

[PCW1005]

44. An application to connect to Council's sewer or carry out plumbing and drainage

works, together with any prescribed fees including inspection fees, is to be submitted to and approved by Council prior to the commencement of any building works on the site.

[PCW1065]

DURING CONSTRUCTION 45. All proposed works are to be carried out in accordance with the conditions of

development consent, approved management plans, approved construction certificate, drawings and specifications.

[DUR0005]

46. Construction and/or demolition site work including the entering and leaving of

vehicles is limited to the following hours, unless otherwise permitted by Council: Monday to Saturday from 7.00am to 6.00pm No work to be carried out on Sundays or Public Holidays The proponent is responsible to instruct and control subcontractors regarding hours of work.

[DUR0205] 47. All reasonable steps shall be taken to muffle and acoustically baffle all plant and

equipment. In the event of complaints from the neighbours, which Council deem to be reasonable, the noise from the construction site is not to exceed the following: A. Short Term Period - 4 weeks.

LAeq, 15 min noise level measured over a period of not less than 15 minutes when the construction site is in operation, must not exceed the background level by more than 20dB(A) at the boundary of the nearest likely affected residence.

B. Long term period - the duration.

LAeq, 15 min noise level measured over a period of not less than 15 minutes when the construction site is in operation, must not exceed the background level by more than 15dB(A) at the boundary of the nearest affected residence.

[DUR0215]


48. The wall and roof cladding is to have low reflectivity where they would otherwise cause nuisance to the occupants of buildings with direct line of sight to the proposed building.



[DUR0375]



[DUR0395]

51. The Principal Certifying Authority is to be given a minimum of 48 hours notice

prior to any critical stage inspection or any other inspection nominated by the Principal Certifying Authority via the notice under Section 81A of the Environmental Planning and Assessment Act 1979.

[DUR0405]

52. It is the responsibility of the applicant to restrict public access to the

construction works site, construction works or materials or equipment on the site when construction work is not in progress or the site is otherwise unoccupied in accordance with WorkCover NSW requirements and Work Health and Safety Regulation 2011.

[DUR0415]

53. During filling operations

• No filling is to be placed hydraulically within twenty metres (20m) of any

boundary that adjoins private land that is separately owned. Fill adjacent to these boundaries is to be placed mechanically.

• All fill and cut batters shall be contained wholly within the subject land. • All cut or fill on the property is to be battered at an angle not greater than

45º within the property boundary, stabilised and provided with a dish drain or similar at the base in accordance with Tweed Shire Councils Design and Construction Specifications and to the satisfaction of the Principal Certifying Authority.

and upon completion • All topsoil to be respread and the site to be grassed and landscaped

including battered areas. [DUR0755]

54. Proposed earthworks shall be carried out in accordance with AS 3798,

"Guidelines on Earthworks for Commercial and Residential Developments". The earthworks shall be monitored by a Registered Geotechnical Testing Consultant to a level 1 standard in accordance with AS 3798. A certificate from a registered Geotechnical Engineer certifying that the filling operations comply


with AS3798 shall be submitted to the Principal Certifying Authority upon completion.

[DUR0795] 55. The use of vibratory compaction equipment (other than hand held devices)

within 100m of any dwelling house, building or structure is strictly prohibited. [DUR0815]

56. All cut or fill on the property is to be battered at an angle not greater than 45º

within the property boundary, stabilised and provided with a dish drain or similar at the base in accordance with Tweed Shire Councils Design and Construction Specifications, Development Control Plan Part A1 to the satisfaction of the Principal Certifying Authority. Please note timber retaining walls are not permitted.

[DUR0835] 57. No soil, sand, gravel, clay or other material shall be disposed of off the site

without the prior written approval of Tweed Shire Council General Manager or his delegate.

[DUR0985]

58. The surrounding road carriageways are to be kept clean of any material carried

onto the roadway by construction vehicles. Any work carried out by Council to remove material from the roadway will be at the Developers expense and any such costs are payable prior to the issue of a Subdivision Certificate/Occupation Certificate.

[DUR0995]

59. All work associated with this approval is to be carried out so as not to impact on

the neighbourhood, adjacent premises or the environment. All necessary precautions, covering and protection shall be taken to minimise impact from: • Noise, water or air pollution. • Dust during filling operations and also from construction vehicles. • Material removed from the site by wind.

[DUR1005] 60. All works shall be carried out in accordance with the Acid Sulfate Soils

Investigation and Management Plan prepared by HMC Environmental Consulting, dated October 2013 and numbered HMC2013.048 ASS.

[DUR1065] 61. The Proposed development where necessary shall be constructed with flood

compatible materials, details of the materials area to be submitted for approval with the Construction Certificate application.

[DUR1375] 62. Subject to the requirements of the local electricity authority, all electrical wiring,

power outlets, switches, etc, should, to the maximum extent possible be located above the design flood level. All electrical wiring installed below the design flood level shall be provided with earth leakage devices.

[DUR1415]


63. All walls in the food preparation and storage areas shall be of solid construction. For this purpose walls in such areas may be of masonry or stud wall construction. If stud wall construction is used then the wall shall be lined as a minimum with 9mm thick high impact resistant material eg. Villaboard or Versilux lining or other suitable material(s) approved by Council’s Environmental Health Officer and tiled to a height of at least 2 meters. Masonry walls where not tiled may be cement rendered to provide a smooth faced impervious finish up to the underside of the ceiling. Metal stud wall framing in lieu of timber framing shall be used in areas where the walls and floor surfaces will be subjected to high levels of moisture or alternatively as directed by Council’s Environmental Health Officer. All penetrations of the wall surface in food preparation areas shall be effectively sealed to the satisfaction of Council’s Environmental Health officer.

[DUR1495] 64. All flooring materials in the food preparation and storage areas are to be

impervious, non slip, non abrasive and capable of withstanding heavy duty operation. Where tiling is to be used epoxy grout finished flush with the floor surface is to be used in joints or alternatively all tiles are to be butt joined and free of cracks or crevices.

[DUR1505]

65. Windows and doors opening into food handling, preparation and storage areas

shall be pest proofed in accordance with the provisions of Food Safety Standard 3.2.3.

[DUR1515]

66. Access to the building for people with disabilities shall be provided and

constructed in accordance with the requirements of Section D of the Building Code of Australia. Particular attention is to be given to the deemed-to-satisfy provisions of Part D-3 and their requirement to comply with AS1428.

[DUR1685]

67. Where access for people with disabilities is required to be provided to a

building, sanitary facilities for the use of the disabled must also be provided in accordance with the provisions Part F-2 of the Building Code of Australia.

[DUR1705]

68. Where the construction work is on or adjacent to public roads, parks or drainage

reserves the development shall provide and maintain all warning signs, lights, barriers and fences in accordance with AS 1742 (Manual of Uniform Traffic Control Devices). The contractor or property owner shall be adequately insured against Public Risk Liability and shall be responsible for any claims arising from these works.

[DUR1795]

69. Any damage caused to public infrastructure (roads, footpaths, water and sewer

mains, power and telephone services etc) during construction of the development shall be repaired in accordance with Councils Development Design and Construction Specifications prior to the issue of a Subdivision Certificate and/or prior to any use or occupation of the buildings.

[DUR1875]


70. Where the kerb is to be removed for driveway laybacks, stormwater

connections, pram ramps or any other reason, the kerb must be sawcut on each side of the work to enable a neat and tidy joint to be constructed.

[DUR1905]

71. During construction, a “satisfactory inspection report” is required to be issued

by Council for all works required under Section 138 of the Roads Act 1993. The proponent shall liaise with Councils Engineering and Operations Division to arrange a suitable inspection.

[DUR1925]

72. No portion of the structure may be erected over any existing sullage or

stormwater disposal drains, easements, sewer mains, or proposed sewer mains. [DUR1945]

73. All retaining walls in excess of 1.2 metres in height must be certified by a

Qualified Structural Engineer verifying the structural integrity of the retaining wall after construction. Certification from a suitably qualified engineer experienced in structures is to be provided to the PCA prior to the issue of an Occupation/Subdivision Certificate.

[DUR1955]

74. The builder must provide an adequate trade waste service to ensure that all

waste material is suitably contained and secured within an area on the site, and removed from the site at regular intervals for the period of construction/demolition to ensure no material is capable of being washed or blow from the site.

[DUR2185]

75. Regular inspections shall be carried out by the Supervising Engineer on site to

ensure that adequate erosion control measures are in place and in good condition both during and after construction. Additional inspections are also required by the Supervising Engineer after each storm event to assess the adequacy of the erosion control measures, make good any erosion control devices and clean up any sediment that has left the site or is deposited on public land or in waterways. This inspection program is to be maintained until the maintenance bond is released or until Council is satisfied that the site is fully rehabilitated.

[DUR2375]

76. During construction, a “satisfactory inspection report” is required to be issued

by Council for all s68h2 permanent stormwater quality control devices, prior to backfilling. The proponent shall liaise with Councils Engineering and Operations Division to arrange a suitable inspection.

[DUR2445]

77. Council is to be given 24 hours notice for any of the following inspections prior

to the next stage of construction: (a) internal drainage, prior to slab preparation; (b) water plumbing rough in, and/or stackwork prior to the erection of brick

work or any wall sheeting;


(c) external drainage prior to backfilling. (d) completion of work and prior to occupation of the building.

[DUR2485]

78. Plumbing

(a) A plumbing permit is to be obtained from Council prior to commencement

of any plumbing and drainage work. (b) The whole of the plumbing and drainage work is to be completed in


[DUR2495]

79. Back flow prevention devices shall be installed wherever cross connection

occurs or is likely to occur. The type of device shall be determined in accordance with AS 3500.1 and shall be maintained in working order and inspected for operational function at intervals not exceeding 12 months in accordance with Section 4.7.2 of this Standard.

[DUR2535]

80. Overflow relief gully is to be located clear of the building and at a level not less

than 150mm below the lowest fixture within the building and 75mm above finished ground level.

[DUR2545] 81. All new hot water installations shall deliver hot water at the outlet of sanitary

fixtures used primarily for personal hygiene purposes at a temperature not exceeding: * 45ºC for childhood centres, primary and secondary schools and nursing

homes or similar facilities for aged, sick or disabled persons; and * 50ºC in all other classes of buildings. A certificate certifying compliance with the above is to be submitted by the licensed plumber on completion of works.

[DUR2555]

82. The Storage shelter structures are to be sited at least one metre horizontally

clear of sewer main on site. All footings and slabs within the area of influence of the sewer main are to be designed by a practising Structural Engineer. The engineer is to submit a certification to the Principal Certifying Authority that the design of such footings and slabs will ensure that all building loads will be transferred to the foundation material and will not affect or be affected by the sewer main.

[DUR2645] 83. Any structures that are to be constructed over or within the zone of influence of

Council's sewer main are to comply with Tweed Shire Council's "Sewers - Building in Proximity” policy.

[DUR2705]

84. Any local exhaust system is to be constructed and installed in accordance with

the certified plans.


85. Premises to be fitted out in accordance with the Council approved fit-out plans. 86. During construction, all dewatering activities are to be carried out in accordance

with the Council approved Dewatering Management Plan, including recommendations of the Dewatering Management Plan.

[DURNS01]

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE 87. Prior to issue of an occupation certificate, all works/actions/inspections etc

required at that stage by other conditions or approved management plans or the like shall be completed in accordance with those conditions or plans.

[POC0005]

88. A person must not commence occupation or use of the whole or any part of a

new building or structure (within the meaning of Section 109H(4)) unless an occupation certificate has been issued in relation to the building or part (maximum 25 penalty units).

[POC0205]

89. The building is not to be occupied or a final occupation certificate issued until a

fire safety certificate has been issued for the building to the effect that each required essential fire safety measure has been designed and installed in accordance with the relevant standards.

[POC0225]

90. A final occupation certificate must be applied for and obtained within 6 months

of any Interim Occupation Certificate being issued, and all conditions of this consent must be satisfied at the time of issue of a final occupation certificate (unless otherwise specified herein).

[POC0355]


Payment of the following contributions pursuant to Section 94 of the Act and the relevant Section 94 Plan. Prior to the occupation of the building or issue of any Interim or Final Occupation Certificate (whichever comes first), all Section 94 Contributions must have been paid in full and the Certifying Authority must have sighted Council's "Contribution Sheet" signed by an authorised officer of Council. A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT. These charges include indexation provided for in the S94 Plan and will remain fixed for a period of 12 months from the date of this consent and thereafter in accordance with the rates applicable in the current version/edition of the relevant Section 94 Plan current at the time of the payment. A copy of the Section 94 contribution plans may be inspected at the Civic and Cultural Centres, Tumbulgum Road, Murwillumbah and Brett Street, Tweed Heads.


(a) Tweed Road Contribution Plan:

21.6 Trips @ $1176 per Trips $25,402 ($1,137 base rate + $39 indexation) S94 Plan No. 4 Sector6_4

[POC0395/PSC0175]

92. All landscaping work is to be completed in accordance with the approved plans

prior to the issue of a final occupation certificate for the building. [POC0475]

93. Prior to commencement of operations and on completion of fit out an inspection

is to be arranged with Council's Environmental Health Officer for final approval. [POC0615]

94. The proprietor of the food premises shall provide appropriate notification to the

NSW Food Authority prior to commencement of operations by completing the “Notify a Food Business” form under the NAFSIS Heading on the following website www.foodnotify.nsw.gov.au or alternatively by contacting the NSW Food Authority on 1300650124.

[POC0625] 95. The premises is to be treated on completion of fit-out and prior to

commencement of trading and thereafter on a regular basis by a Licensed Pest Control Operator. A certificate of treatment is to be made available for Council inspection on request.

[POC0635]


Payment of the following contributions pursuant to Section 94 of the Act and the relevant Section 94 Plan. Prior to the occupation of the building or issue of any Interim or Final Occupation Certificate (whichever comes first), all Section 94 Contributions must have been paid in full and the Certifying Authority must have sighted Council's "Contribution Sheet" signed by an authorised officer of Council. These charges will remain fixed for a period of 12 months from the date of this consent and thereafter in accordance with the rates applicable in the current version/edition of the relevant Section 94 Plan current at the time of the payment. A copy of the Section 94 contribution plans may be inspected at the Civic and Cultural Centres, Tumbulgum Road, Murwillumbah and Brett Street, Tweed Heads. Heavy Haulage Component Payment of a contribution pursuant to Section 94 of the Act and the Heavy Haulage (Extractive materials) provisions of Tweed Road Contribution Plan No. 4 - Version 5 prior to the issue of a construction certificate. The contribution shall be based on the following formula:


$Con TRCP - Heavy = Prod. x Dist x $Unit x (1+Admin.) where: $Con TRCP - Heavy heavy haulage contribution and: Prod. projected demand for extractive material to be hauled to the site over

life of project in tonnes Dist. average haulage distance of product on Shire roads

(trip one way) $Unit the unit cost attributed to maintaining a road as set out in Section 7.2

(currently 5.4c per tonne per kilometre) Admin. Administration component - 5% - see Section 6.6

[POC0715]

97. Prior to the issue of an occupation certificate, the applicant shall produce a copy

of the “satisfactory inspection report” issued by Council for all works required under Section 138 of the Roads Act 1993.

[POC0745]

98. Redundant road pavement, kerb and gutter or foot paving including any existing

disused vehicular laybacks/driveways or other special provisions shall be removed and the area reinstated to match adjoining works in accordance with Councils Development Design and Construction Specifications.

[POC0755] 99. The lots are to be consolidated into one lot under one title. The plan of

consolidation shall be registered with the Lands Titles Office prior to issue of an occupation certificate. Option: Lot C DP 373769 is not actively included in this proposal and can be excluded or separately consolidated with Lot 1 DP 382677.

[POC0855]

100. Prior to the issue of an occupation certificate, the applicant shall produce a copy

of the “satisfactory inspection report” issued by Council for all s68h2 permanent stormwater quality control devices.

[POC0985]

101. Prior to the occupation or use of any building and prior to the issue of any

occupation certificate, including an interim occupation certificate a final inspection report is to be obtained from Council in relation to the plumbing and drainage works.

[POC1045]

102. Certification to be provided that any local exhaust system was constructed and

installed in accordance with the certified plans and in accordance with AS1668.2.

[POCNS01]


103. The stormwater management plan includes a pipe system to drain Lot A DP

374685 (No.124 Chinderah Bay Drive), which will need to be covered by an appropriate easement, to benefit that lot. This easement can be created in conjunction with the required consolidation of the site.

[POCNS02]

104. The use to be conducted so as not to cause disruption to the amenity of the

locality, particularly by way of the emission of noise, dust and odours or the like. [USE0125]

105. All externally mounted air conditioning units and other mechanical plant or

equipment are to be located so that any noise impact due to their operation which may be or is likely to be experienced by any neighbouring premises is minimised. Notwithstanding this requirement all air conditioning units and other mechanical plant and or equipment is to be acoustically treated or shielded where considered necessary to the satisfaction of the General Manager or his delegate such that the operation of any air conditioning unit, mechanical plant and or equipment does not result in the emission of offensive or intrusive noise.

[USE0175]

106. Hours of operation are limited to the following:

• Boat Showroom 7am to 6pm Monday to Sunday, • Boating Facility 7am to 6pm Monday to Sunday, • Café/Restaurant and café 7am to 10pm Monday to Sunday and 7am to 8pm

Sunday, • All waste collection, deliveries and pickups relating to the businesses are

to occur between 7am and 6pm. [USE0185]

107. All externally mounted artificial lighting, including security lighting, is to be

shielded to the satisfaction of the General Manager or his delegate where necessary or required so as to prevent the spill of light or glare creating a nuisance to neighbouring or adjacent premises.

[USE0225]

108. Upon receipt of a noise complaint that Council deems to be reasonable, the

operator/owner is to submit to Council a Noise Impact Study (NIS) carried out by a suitably qualified and practicing acoustic consultant. The NIS is to be submitted to the satisfaction of the General Manager or his delegate. It is to include recommendations for noise attenuation. The operator/owner is to implement the recommendations of the NIS within a timeframe specified by Council's authorised officer.

[USE0245]

109. Any vehicles that remain on site for periods in excess of two minutes are

required to switch off their engines. [USE0255]

110. The development shall be carried out in accordance with the provisions of the

acoustic assessment report prepared by CRG Acoustical Consultants and dated 23 October 2013 and addendum dated 28 November 2013, except where as varied by this consent.

[USE0305]


111. The use being restricted to the areas designated on the approved plan.

[USE0415]

112. No items or goods are to be stored or displayed outside the confines of the

premises. [USE0445]

113. All loading/unloading to take place within the boundary of the subject property.

[USE0525]

114. Any premises used for the storage, preparation or sale of food are to comply

with the Food Act 2003, FSANZ Food Safety Standards and AS 4674-2004 Design, construction and Fit-out of Food Premises and other requirements of Councils Environmental health Officer included in this approval.

[USE0835] 115. Deliveries and waste collection activities shall be limited to 8:00 am to 5:00 pm,

Monday to Friday. [USENS01]

GENERAL TERMS OF APPROVAL UNDER SECTION 91 OF THE WATER MANAGEMENT ACT 2000 Number Condition Plans, standards and guidelines 1 These General Terms of Approval (GTA) only apply to the controlled

activities described in the plans and associated documentation relating to DA13/0383 and provided by Council. Any amendments or modifications to the proposed controlled activities may render these GTA invalid. If the proposed controlled activities are amended or modified the NSW Office of Water must be notified to determine if any variations to these GTA will be required.

2 Prior to the commencement of any controlled activity (works) on waterfront land, the consent holder must obtain a Controlled Activity Approval (CAA) under the Water Management Act from the NSW Office of Water. Waterfront land for the purposes of this DA is land and material in or within 40 metres of the top of the bank or shore of the river identified.

3 The consent holder must prepare or commission the preparation of: (i) Vegetation Management Plan (ii) Erosion and Sediment Control Plan

4 All plans must be prepared by a suitably qualified person and submitted to the NSW Office of Water for approval prior to any controlled activity commencing. The plans must be prepared in accordance with the NSW Office of Water's guidelines located at www.water.nsw.gov.au/Water-Licensing/Approvals/default.aspx (i) Vegetation Management Plans (ii) Riparian Corridors (iii) Outlet structures

5 The consent holder must (i) carry out any controlled activity in accordance with approved plans and (ii) construct and/or implement any controlled activity by or under the direct supervision of a suitably qualified professional and (iii) when required, provide a certificate of completion to the NSW Office of Water.


Number Condition Plans, standards and guidelines Rehabilitation and maintenance 6 The consent holder must carry out a maintenance period of two (2) years

after practical completion of all controlled activities, rehabilitation and vegetation management in accordance with a plan approved by the NSW Office of Water.

7 The consent holder must reinstate waterfront land affected by the carrying out of any controlled activity in accordance with a plan or design approved by the NSW Office of Water.

Reporting requirements 8 The consent holder must use a suitably qualified person to monitor the

progress, completion, performance of works, rehabilitation and maintenance and report to the NSW Office of Water as required.

Security deposits 9 N/A Access-ways 10 N/A 11 N/A Bridge, causeway, culverts, and crossing 12 N/A 13 N/A Disposal 14 The consent holder must ensure that no materials or cleared vegetation that

may (i) obstruct flow, (ii) wash into the water body, or (iii) cause damage to river banks; are left on waterfront land other than in accordance with a plan approved by the NSW Office of Water.

Drainage and Stormwater 15 The consent holder is to ensure that all drainage works (i) capture and

convey runoffs, discharges and flood flows to low flow water level in accordance with a plan approved by the NSW Office of Water; and (ii) do not obstruct the flow of water other than in accordance with a plan approved by the NSW Office of Water.

16 The consent holder must stabilise drain discharge points to prevent erosion in accordance with a plan approved by the NSW Office of Water.

Erosion control 17 The consent holder must establish all erosion and sediment control works

and water diversion structures in accordance with a plan approved by the NSW Office of Water. These works and structures must be inspected and maintained throughout the working period and must not be removed until the site has been fully stabilised.

Excavation 18 The consent holder must ensure that no excavation is undertaken on

waterfront land other than in accordance with a plan approved by the NSW Office of Water.

19 N/A Maintaining river 20 The consent holder must ensure that (i) river diversion, realignment or

alteration does not result from any controlled activity work and (ii) bank control or protection works maintain the existing river hydraulic and


Number Condition Plans, standards and guidelines

geomorphic functions, and (iii) bed control structures do not result in river degradation other than in accordance with a plan approved by the NSW Office of Water.

21 N/A River bed and bank protection 22 N/A 23 The consent holder must establish a riparian corridor along the drainage

channel at the rear of the site in accordance with a plan approved by the NSW Office of Water.

Plans, standards and guidelines 24 N/A 25 N/A 26 N/A 27 N/A END OF CONDITIONS


REPORT:

Applicant: MacKay Ellis Group Owner: MacKay Ellis Group Pty Ltd Location: Lot 1 DP 119054, Lot 1 DP 341470 & Lot A DP 373769 No. 120 Chinderah

Bay Drive, Chinderah; Lot 1 DP 382677, Lot C DP 373769 No. 122 Chinderah Bay Drive, Chinderah; Lot 1 DP 415533 No. 126 Chinderah Bay Drive, Chinderah; Lot 2 DP 415533 No. 128 Chinderah Bay Drive, Chinderah; Lot 3 DP 415533 No. 130 Chinderah Bay Drive, Chinderah

Zoning: 3(d) Waterfront Enterprise and Uncoloured Land Cost: $500,000 Background: The site is commonly identified as Jenner’s Corner, Chinderah which is located at Nos. 120, 122 and 126-130 Chinderah Bay Drive, Chinderah. The site has frontage to Chinderah Bay Drive, Wommin Bay Road and the Walsh Street Road Reserve (road not currently formed). The site is irregular in shape and provides a total area of 8935.5m2. The site contains an existing café takeaway shop and existing dwelling house. The proposal includes four distinct land uses including: Boat Showroom; Boat Storage Facility; café/restaurant and café; and Caretakers Residence. The following summary is provided for each element. Boat Showroom The Boat Showroom is located on the western most corner of the site fronting Chinderah Bay Drive. The Boat Showroom is an at-grade display with a demountable sales office building. The total area associated with the Boat Showroom is approximately 756m2, this area is to be covered to shelter boats against adverse weather conditions. The proposed demountable sales office provides a total area of 33.1m2 of GFA and is single storey with maximum height of 4.6m. Vehicle access to the Boat Showroom will be provided internally through the site from the Walsh Street access point. Five dedicated car parking spaces are provided directly adjacent to the Boat Sales office. The proposed boat showroom is permissible with consent within the Tweed LEP 2000 (3b zone). The proposed boat showroom (defined as a Marina) is prohibited within the Draft Tweed LEP 2012 (B4 zone). Boat storage yard and storage shed and office The Boat Storage Yard is located on the south and south western portion of the site. The boat storage yard provides a total of 116 storage bays. Each storage bay is 3m wide by 6m deep to accommodate small ‘trailer-able’ boats. Each storage space is covered by a fixed shelter structure which is single storey with a maximum height of 3.8m. The shelter structures provide a site cover of approximately 2090m2. The Boat Storage Yard also proposes an Office/Shed building which provides a total of 120m2 of GFA and provides for customer reception area, office space for administration duties, kitchen and amenities for staff and small items secure storage space. The Office/Shed building is single storey with a maximum height of 5.0m.


Vehicle access to the Boat Storage Yard will be provided internally through the site from the Walsh Street access point. Six dedicated car parking spaces are provided directly adjacent to the Office/Shed building, these parking bays are to be sheltered for acoustic purposes, in accordance with the recommendations of the submitted acoustic report. The proposed boat storage yard and storage shed and office (defined as a boating facility) is permissible with consent within the Tweed LEP 2000 (3b zone). The proposed boat storage yard and storage shed and office (defined as a Marina) is prohibited within the Draft Tweed LEP 2012 (B4 zone). Café/restaurant and cafe The proposed two tenancies for café/restaurant and cafe are to be located within the existing building on the corner of Wommin Bay Road and Chinderah Bay Drive. As noted the site previously provided a cafe and shop servicing the Old Pacific Highway prior to the Chinderah Bypass being constructed. The proposal will see this existing building renovated and the café/restaurant and cafe use instated. The existing building footprint and height is to be retained as part of the proposal. The café/restaurant and cafe building provides the following areas and proposed staff numbers:

• Café/restaurant 67m2 of dining area and 4 staff. • Cafe 42m2 of dining area and 2 staff.

The proposed café/restaurant (defined as a refreshment room) is permissible with consent within the Tweed LEP 2000 (3b zone). The proposed café/restaurant (defined as a retail premise - food and drink premise - restaurant/café) is permissible with consent within the Draft Tweed LEP 2012 (B4 zone). Caretaker’s Dwelling The proposed caretakers dwelling will be located within the existing house on the site. The existing building will be renovated. The proposed caretaker’s dwelling (defined as a dwelling house) is permissible within the Tweed LEP 2000 as the dwelling house is associated with the café/restaurant which encourages recreation and tourism therefore is consistent with the primary objectives of the zone being a requirement under clause 8(1)(a) of the Tweed LEP2000 (3b zone). The proposed caretakers dwelling (defined as a residential accommodation – dwelling house) is prohibited within the Draft Tweed LEP 2012 (B4 zone). It is important to note that the dwelling is existing with the application for renovation of the existing dwelling.


SITE DIAGRAM:


Considerations under Section 79c of the Environmental Planning and Assessment Act 1979: (a) (i) The provisions of any environmental planning instrument

Tweed Local Environmental Plan 2000 Clause 4 - Aims of the Plan The proposal is considered consistent with the aims of the plan. Clause 5 - Ecologically Sustainable Development The proposed development is consistent with the four principles of ecological sustainable development by:

a) not creating irreversible environmental damage. b) the environment is maintained for the benefit of future generations. c) the biological diversity and ecological integrity is retained and a

fundamental consideration. d) the environmental qualities of the locality are retained.

Clause 8 - Consent Considerations The proposed development is consistent with the primary objectives of the zone. All other aims and objectives of the plan relevant to the development have been considered and addressed within the body of this report. The proposed development is considered not to have an unacceptable cumulative impact on the local community. Clause 11 - Zone Objectives The subject land is zoned 3(d) Waterfront Enterprise pursuant to the provisions of the TLEP 2000. The uses of ‘Boat Showroom’, ‘Boating Facility’, ‘Refreshment Room’ and ‘dwelling house’ are permissible subject to consent within the zone. The objectives of the 3(d) Waterfront Enterprise zone are:

• to encourage development related to waterfront and marine activities, recreation or tourism.

• to allow for residential development in association with waterfront, tourist or recreational uses.

• to allow for other development that is compatible with the primary function of the zone.

The proposed development is considered consistent with the objectives of the zone. The proposed uses relate to waterfront, marine, recreation and tourism activities. The development compliments the established recreation and marine activities within the locality. The dwelling house is associated with the café/restaurant which encourages recreation and tourism therefore is consistent with the primary objectives of the zone being a requirement under clause 8(1)(a) of the Tweed LEP2000 (3b zone). It is important to note that the dwelling is existing with the application for renovation of the existing dwelling.


Clause 13 – Development of uncoloured land on the zone map A small portion of the site is unzoned land under the TLEP 2000, refer to the figure below titled TLEP 2000 Zoning.

TLEP 2000 Zoning map

As required by Clause 13 development of un-zoned land is to be undertaken with consideration of the uses permissible in the adjoining zones. The use on the part of the site which is un-zoned does not differ from that proposed for the 3(d) Waterfront Enterprise zoned land and is therefore consistent with the requirements of Clause 13. Clause 15 - Essential Services The site is provided with all urban services. The proposal is compliant with Clause 15 of the TLEP 2000. Clause 16 - Height of Building The site is located within a three storey area. The proposal includes an existing building with a maximum height of two storeys and 7.1m; all new structures are single storey in height. The proposal is considered to comply with Clause 16 of the TLEP 2000. Clause 17 - Social Impact Assessment The objectives of clause 17 are to ensure proper consideration of development that may have a significant social or economical impact. The proposed development is considered not to create any negative social or economic impact. Clause 22 – Development near Designated Roads The site fronts Chinderah Bay Drive and Wommin Bay Road. Both are identified as Designated Roads.


Council’s Traffic Engineer provided the following comment: "Access to the development is proposed via Walsh Street; however the access driveway is located immediately onto Wommin Bay Road. It is recommended that the plans be modified to relocate the driveway access at least 10m south from the boundary of Wommin Bay Road reserve. Turning templates are required to be submitted showing the largest proposed vehicle entering Walsh Street from Wommin Bay Road (west bound). The turning template would need to provide for a vehicle with a boat trailer on Walsh Street waiting to enter Wommin Bay Road. Any proposed widening or modifications for Walsh Street are to be identified."

Plans have been submitted by the applicant detailing amended access and turning templates. The amended plans are considered acceptable and appropriate conditions are recommended. It is considered that the proposed development will not impact upon the function of either road nor will it result in a traffic hazard or materially reduce the capacity or efficiency of the roads. A section 138 is required for works relating to both the proposed driveway access for the dwelling and the access for the boating facility, this has been recommended as a condition. Clause 23 – Control of Access Consent is sought for a new access point to Chinderah Bay Drive to service the Caretakers Dwelling and a new access to Walsh Street in accordance with the provisions of this clause. Council’s Traffic Engineer did not object to the two proposed accesses subject to recommended conditions. Clause 31 – Development Adjoining Waterbodies The site adjoins the bank of a naturalised drainage channel with direct connection to the Tweed River. The proposal is considered not to impact upon the adjoining Tweed River or the drainage channel along the southern boundary. The proposal will see a landscape buffer established, weed management and tree planting undertaken to the naturalised drain. Sufficient foreshore open space is available within the locality with the subject site separate from the foreshore by Chinderah Bay Drive. The proposed structures are a combination of existing buildings to be renovated and low key single storey sheds and demountable structures. The proposal will not create an adverse impact on the existing visual amenity and will not be affected by biting midge. Clause 34 – Flooding The site is identified as being subject to a defined flood level of RL 3.2m AHD; Minimum Habitable Floor Level of RL 3.7m AHD and a PMF level of RL 7.7m AHD. The proposal was assessed by Council’s Flooding Engineer with the proposal considered compliant with the requirements of the clause subject to recommended conditions. Clause 35 - Acid Sulfate Soils The subject property is identified as containing Class 3 Acid Sulfate Soils. An acid sulfate soils management plan has been prepared and assessed by Council’s Environmental Health Unit. Conditions relating to the acid sulfate soils management plan are recommended if the application were to be approved. The proposal is compliant with the requirements of the Clause.


Clause 39 – Soil Contamination It is considered the proposal is consistent with the provisions of this clause and SEPP 55 Remediation of Contaminated Land. Council’s Environmental Health Unit did not object to the proposal in regards to soil contamination. The proposal complies with the Clause. Clause 39A – Bushfire Protection The site is mapped as bushfire prone land vegetation buffer 30m and 100m. A Bushfire Report has been prepared and included with the application that concludes the proposal is consistent with Planning for Bushfire Protection 2006. The proposal is considered not likely to have a significant adverse effect on the implementation of any strategies for bushfire control, significant threat to the lives of residents, visitors or emergency services personnel. The proposal is considered compliant with the Clause. Clause 47 – Advertising Signs The proposal includes four signs. A sign is located on each of the cafe/refreshment room building, boat sales office building, boat store office/shed building and covered boat displayed. The proposed signage is integrated into the overall architectural style of the proposal. The signs are not illuminated and do not lead to visual clutter through the proliferation of signs. The proposal is compliant with Clause 47 of the TLEP 2000. Clause 54 – Tree Protection Order The site is mapped as subject to the Tree Protection Order 2011. The proposal does not require the removal of trees. The proposal is considered to comply with the Clause. State Environmental Planning Policies SEPP (North Coast Regional Environmental Plan) 1988 The provisions of the NCREP apply to the proposal. Clause 15 - Wetlands or Fishery Habitats Clause 15 - Wetlands or Fishery Habitats states the following:

“The council shall not consent to an application to carry out development for any purpose within, adjoining or upstream of a river or stream, coastal or inland wetland or fishery habitat area or within the drainage catchment of a river or stream, coastal or inland wetland or fishery habitat area unless it has considered the following matters: (a) the need to maintain or improve the quality or quantity of flows of water

to the wetland or habitat, (b) the need to conserve the existing amateur and commercial fisheries, (c) any loss of habitat which will or is likely to be caused by the carrying out

of the development, (d) whether an adequate public foreshore reserve is available and whether

there is adequate public access to that reserve, (e) whether the development would result in pollution of the wetland or

estuary and any measures to eliminate pollution,


(f) the proximity of aquatic reserves dedicated under the Fisheries Management Act 1994 and the effect the development will have on these reserves,

(g) whether the watercourse is an area of protected land as defined in section 21AB of the Soil Conservation Act 1938 and any measures to prevent soil erosion, and

(h) the need to ensure that native vegetation surrounding the wetland or fishery habitat area is conserved, and

(i) the recommendations of any environmental audit or water quality study prepared by the Department of Water Resources or the Environment Protection Authority and relating to the river, stream, wetland, area or catchment.“

The proposal is considered not to impact upon the adjoining Tweed River. Water quality will be maintained as detailed within the submitted Stormwater Management Plan, which is considered acceptable by Council’s Planning and Infrastructure Engineer. The proposal complies with Clause 15. Clause 32B - Coastal Lands Clause 32B - Coastal Lands states the following:

“(1) This clause applies to land within the region to which the NSW Coastal Policy 1997 applies.

(2) In determining an application for consent to carry out development on such land, the council must take into account: (a) the NSW Coastal Policy 1997, (b) the Coastline Management Manual, and (c) the North Coast: Design Guidelines.

(3) The council must not consent to the carrying out of development which would impede public access to the foreshore.

(4) The council must not consent to the carrying out of development: (a) on urban land at Tweed Heads, Kingscliff, Byron Bay, Ballina,

Coffs Harbour or Port Macquarie, if carrying out the development would result in beaches or adjacent open space being overshadowed before 3pm midwinter (standard time) or 6.30pm midsummer (daylight saving time), or

(b) elsewhere in the region, if carrying out the development would result in beaches or waterfront open space being overshadowed before 3pm midwinter (standard time) or 7pm midsummer (daylight saving time).”

The site is located within the area, which the NSW Coastal Policy 1997 applies. The proposal is not located on the coastal foreshore as such, will not impede access or create overshadowing of beaches or adjacent open space. The proposal does not negate the NSW Coastal Policy 1997, the Coastline Management Manual, and the North Coast: Design Guidelines.


Clause 43: Residential development The proposed density is considered to be a reasonable response to the land use character of the area and will not result in the creation of any adverse physical impacts upon the locality. The existing roads widths are not excessive for the function of the proposal and a detailed sedimentation and erosion control plan will be enforced in relation to the construction of the development. Clause 47 Principles for Commercial and Industrial Development The proposal occurs within the 3 (d) Waterfront Enterprise zone, all-relevant services are available to the site with the subject site being adequately located within the existing local and regional road networks. The proposal is therefore considered to comply with the objectives of Clause 47 of the NCREP. Clause 81: Development adjacent to the ocean or a waterway (1) The council shall not consent to a development application for development

on land within 100 metres of the ocean or any substantial waterway unless it is satisfied that: (a) there is a sufficient foreshore open space which is accessible and open

to the public within the vicinity of the proposed development, (b) buildings to be erected as part of the development will not detract from

the amenity of the waterway, and (c) the development is consistent with the principles of any foreshore

management plan applying to the area. (2) Nothing in subclause (1) affects privately owned rural land where the

development is for the purpose of agriculture. Sufficient foreshore open space is available within the locality. The site is separated from the foreshore by Chinderah Bay Drive. Council has recently completed an upgrade and expansion of park facilities along this section of the Tweed River. The proposal has no impact on these foreshore open space areas. The proposal will not create an adverse impact on the existing visual amenity, through the renovation of the existing commercial premise and exiting dwelling and the development of the vacant land. The proposal complies with Clause 81. SEPP No. 64 – Advertising and Signage The proposal includes four signs. A sign is located on each of the cafe/refreshment room building, boat sales office building, boat store office/shed building and covered boat display area. The signs are consistent with that allowed for the frontage length and width under the policy. The proposed signage is integrated into the overall architectural style of the proposal, none of the signs to be are to be illuminated. With regards to Clause 10 of the SEPP, the 3(d) Waterfront Enterprise zone is considered a ‘mixed residential and business or similar zone’. In this regard commercial uses are permissible in the 3(d) zone including refreshment rooms, boat storage facilities and boat sales yards. As such the display of advertisements is not prohibited on the site. The proposed signage is considered compatible with the existing amenity and visual character of the area, with the sign providing clear business identification in a suitable location.


Schedule 1 Assessment criteria

Matters for consideration

Criteria Response

1. Character of the area

- Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? - Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

The proposed signage is contained on the building structures setback from the front property boundary which will not block, obstruct or detract from the principal view of aspect from any adjoining residential properties or impact the desired character of the area. Chinderah Bay Drive consists of mix of land uses and advertising signage. The proposed signage is considered minor in size and scale and consistent with the character of the area.

2. Special areas

- Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?

The proposed signage is considered minor in size and scale which is contained on the building structure setback from the front property boundary. The proposed signage will not impact on special areas.

3. Views and vistas

- Does the proposal obscure or compromise important views? - Does the proposal dominate the skyline and reduce the quality of vistas? - Does the proposal respect the viewing rights of other advertisers?

The proposed signage is considered minor in size and scale which is contained on the building structure setback from the front property boundary. The proposed signage will not impact on views and vistas.



Criteria Response

4. Streetscape, setting or landscape

- Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape? - Does the proposal contribute to the visual interest of the streetscape, setting or landscape? - Does the proposal reduce clutter by rationalising and simplifying existing advertising? - Does the proposal screen unsightliness? - Does the proposal protrude above buildings, structures or tree canopies in the area or locality? - Does the proposal require ongoing vegetation management?

The proposed signage will not impact on the streetscape or landscape in terms of visual clutter and does not protrude above buildings.

5. Site and building

- Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located? - Does the proposal respect important features of the site or building, or both? - Does the proposal show innovation and imagination in its relationship to the site or building, or both?

The proposed signage is contained on the building structures setback from the front property boundary. The signage is consistent in terms of scale in relation to the building and does not impact on important features of the site or building.

6. Associated devices and logos with advertisements and advertising structures

- Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

Not Applicable.



Criteria Response

7. Illumination - Would illumination result in unacceptable glare? - Would illumination affect safety for pedestrians, vehicles or aircraft? - Would illumination detract from the amenity of any residence or other form of accommodation? - Can the intensity of the illumination be adjusted, if necessary? - Is the illumination subject to a curfew?

Illumination is not proposed.

8. Safety - Would the proposal reduce the safety for any public road? - Would the proposal reduce the safety for pedestrians or bicyclists? - Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

No sign inhibits the passage of vehicles or pedestrians as they are contained wholly on private property, on the wall of the buildings and structures.

The proposal is considered compliant with the relevant clauses of SEPP 64. SEPP No. 71 – Coastal Protection The provisions of SEPP 71 apply as the site is located within the coastal zone. Having regard to the matters contained within the SEPP the following comments are made:

• The site is landward of the identified coastal erosion zones and will not be affected by coastal erosion processes;

• The proposed development will not overshadow foreshore open space;

• The proposed development will not affect public access to the beach or foreshore areas;

• The proposed development will not impact upon marine habitats;

• The proposed development will not impact upon threatened species of flora or fauna as listed under the Threatened Species Conservation Act 1995;


• The site is suitable serviced with water, sewer, and stormwater infrastructure.

It is considered the proposed development is consistent with the provisions of the SEPP including but not limited to Clause 8.

(a) (ii) The Provisions of any Draft Environmental Planning Instruments Draft LEP 2012 The site is proposed to be zoned B4 - Mixed Use with the proposal being defined as ‘Marina’, ‘Restaurant or Cafe’, and ‘Dwelling House’ under the DTLEP 2012. The use of ‘Marina’ is prohibited in the B4 Mixed Use Zone. The Draft LEP 2012 defines a ‘Marina’ as:

marina means a permanent boat storage facility (whether located wholly on land, wholly on a waterway or partly on land and partly on a waterway), and includes any of the following associated facilities:

(a) any facility for the construction, repair, maintenance, storage, sale or hire of boats,

(b) any facility for providing fuelling, sewage pump-out or other services for boats,

(c) any facility for launching or landing boats, such as slipways or hoists,

(d) any car parking or commercial, tourist or recreational or club facility that is ancillary to the boat storage facility,

(e) any berthing or mooring facilities.

The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other

development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

The applicant provided the following comments in regards to the Draft LEP 2012 in the statement of environmental effects, which is provided below.

“1 Objectives of zone • To provide a mixture of compatible land uses.

Chinderah includes a wide range of varying uses and despite the technical change in the definition the proposed recreational boat storage component remains a compatible land use in the locality. It is unclear what has prompted the zoning change in the preparation of the DTLEP 2012 as the B4 Mixed Use Zone does not appear to be an ‘equivalent zone’ to that of 3(d) Waterfront Enterprise. The proposal is ideally located adjacent to existing water front and recreation facilities within the locality and will complement what has been Councils long term vision for this area of Chinderah. Further as a measure of comfort the capital investment of boat storage component is relatively low and as such would not be an impediment to future development of the site for alternative uses. Removal of the storage space covers and building can be undertaken easily.


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

The subject site is located on a well serviced public transport route and the establishment of the boat storage component will not impact upon this objective.

Figure 10 – DTLEP 2012 Zoning Extract. Source: TSC GIS. Further to the above it is noted Clause 1.8A of the DTLEP 2012 provides that developments which are lodged prior to commencement of the plan and which may not be determined before its adoption is to be determined as though the plan had been exhibited but not made. The proposed uses are permitted under the Tweed Local Environmental Plan 2000 and the sites location is such that it does not compromise the objectives of the B4 zone. The proposal is appropriate given the sites location. Council can and should issue consent for the development.”

A recent article published in a Planning Institute of Australia (PIA) NSW Newsletter (June 2013) from Gadens Lawyers noted the following with respect to the determining weight of a draft LEP: “Question: I would like to understand why a Draft LEP is highly relevant to the assessment of a DA when the draft LEP is ‘certain and imminent’, and what exactly that means? The starting point is that s.79C of the Act expressly requires a consent authority, when assessing any development application, to take into consideration the provisions of any draft planning instrument (for example, an LEP or SEPP) that “is or has been the subject of public consultation” and that has been notified.


However taking something into account is one thing – the remaining question is how much weight or emphasis to place on that EPI’s provisions when it is only a draft document, and may well be quite inconsistent with a current and in-force LEP. In that regard, the Courts have developed a body of caselaw to the effect that a Draft LEP will be given greater weight when it is “certain and imminent”. Funnily enough, this phrase does not appear anywhere in the Act or Regulations, nor in any savings or transitional provisions that we are aware of, and although it is bandied about by judges, commissioners, lawyers, and government authorities, you’d have to search hard to find its source of origin. It actually dates back to a 1980 Judgment (Balgownie Pty Ltd v Shoalhaven City Council (1980), which well and truly predates s.79C of the Act. In that matter, the Court had some limited regard to a draft proposal to rezone the site, but only because it was said to be “the latest and best informed expert opinion” relating to the site. It is therefore surprising that this has morphed into a general principle that any draft LEP that is ‘certain or imminent’ should be given considerable weight in the s.79C balancing act (in fact, the courts have used confusing terminology here too, referring variously to ‘"significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" – see the discussion of this in Blackmore Design Group v North Sydney (2000)). Nevertheless, what is clear is that the weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003).) Where the LEP has been exhibited and sent by the council to the Minister for approval and gazettal, it will often be given great weight, even more than the existing and in force LEP. But is that approach fair and correct? The answer is probably not. It can be very hard to predict when an LEP is ‘certain’ and ‘imminent’, because this depends on the future decision of the Minister and his staff at the Department. For example, our team at Gadens was involved in an appeal in the Warringah local government area in 2011 where the Court ruled that a change to the zoning of the site was certain and imminent and should be given ‘determinative weight’, and refused the DA. About a month later, the Minster made the LEP but carved out the site as a ‘deferred’ matter (its zoning did not change). The Court and Council’s assessment that the proposed rezoning was ‘certain and ‘imminent’ had been dead wrong. But such a task is inherently uncertain because it relies on predictions as to a decision of the Minister that has not yet been made. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. As the Court said in the Blackmore Design Group v North Sydney Council matter:

“In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith [or “antipathetic’ thereto].”


In light of the above advice, it is considered that the approval of the proposed development is the appropriate course of action. The draft LEP has been exhibited and sent by Council to the Minister for approval and gazettal. Approval of the development would result in creating Existing Use Rights for the development if the development proceeded. It is considered that, the development does accord with the objectives of the B4 zone which are as follows:

• To provide a mixture of compatible land uses.


Approval is recommended based on consistency between the proposed development and the objectives of the zone.

(a) (iii) Development Control Plan (DCP) Tweed Development Control Plan A1-Residential and Tourist Development Code The proposal includes the reuse of the existing Dwelling House upon the site for the purposes of a caretaker’s dwelling. The existing dwelling house is to be internally and externally renovated. No extension or change is made to the footprint of the dwelling proposed. The provisions of Section A1 are not considered to be applicable in this instance as the proposal does not alter the existing dwelling footprint. A2-Site Access and Parking Code Car Parking A total of 36 car parking spaces are provided as part of the proposal. This figure excludes the boat storage bays and delivery bay. The following table breaks down the car parking required. The proposal provides car parking in accordance with Section A2.

Parking Table Use Parking Rates Units Spaces

required 20% ESD Reduction

Dwelling House 1 space per dwelling plus provision for driveway parking of another vehicle

1 dwelling

2 2

Boat Showroom Staff - 1/staff Customer - 1/10 displayed boats, min 5 spaces

1 staff 50 boats

1 5

0.8 4

Café Staff - 1/staff at peak operating time Customer - 1/7m2 dining area

2 staff 42m2 GFA

2 6

1.6 4.8



required 20% ESD Reduction

Café/Restaurant Staff - 1/staff at peak operating time Customer - 1/7m2 dining area

4 staff 67m2 dining area

4 9.57

3.2 7.65

Boat Storage No Specific Rate nominated

- - -

Total Required 29.57 24.05 Total Provided 36 36

With regards to car parking required for the boat storage facility component, Section A2 does not include a specific parking rate. In this regard the facility is setup such that customers will collect and return their boats before and after use. The site is not designed or equipped to allow customers to stay onsite for extended periods. However to ensure the odd occasion where a customer stay onsite for an extended period six dedicated parking spaces are provided outside the Storage Shed and Office building. The proposed car parks are considered adequate to service parking demand. Service Vehicle & Loading/Unloading

Parking Table Use Service Vehicle and Rate Units Vehicle

Required Dwelling House - - - Boat Showroom 1/20 boats, min 1 truck park

HRV 50 boats

2.5 HRV

Café 1 HRV - 1 HRV Café/Refreshment Room

1 HRV - 1 HRV

Boat Storage No Specific Vehicle Nominated

- -

The service vehicle requirements as per Section A2 is summarised above. The site has been design to accommodate SRV (Small Rigid Vehicle) with the site providing two SRV loading bays. The proposal allows the service vehicles to enter and exit in a forward direction. Council’s Traffic Engineer assessed the proposal, with no objection raised. The proposal is compliant with the requirements of Section A2 of the TDCP 2008.


A3-Development of Flood Liable Land This site is mapped as flood prone land. The site is identified as being subject to a defined flood level of RL 3.2m AHD; Minimum Habitable Floor Level of RL 3.7m AHD and a PMF level of RL 7.7m AHD. The proposal consists of an existing dwelling which is two storeys in height. The ground floor level consists of a study and entry hall only, with the remainder of the dwelling located in the upper floor at 3.89m AHD. Dwelling houses are exempt from providing PMF refuge, evacuation routes and Flood Response Assessment Plan. Council’s Planning and Infrastructure Engineer advised that the proposal is consistent with Council’s flooding policy subject to recommended conditions and that the proposal is acceptable in terms of flooding. The proposal is compliant with the requirements of Section A3. A4-Advertising Signs Code The proposal includes four signs which are in accordance with the maximum number of signs per business. A sign is located on each of the cafe/refreshment room building, boat sales office building, boat store office/shed building and covered boat display area. The signs are consistent with that allowed for the frontage length and width of the site. None of the signs to be are to be illuminated. The proposed signage is integrated into the overall architectural style of the buildings and structures. The proposed signage is considered consistent with the code. A11-Public Notification of Development Proposals The application was advertised for a period of thirty days from Wednesday 31 July 2013 to Friday 30 August 2013. During the advertised period Council received one submission supporting the proposal, which is addressed later within this report. A13-Socio-Economic Impact Assessment Section A13.5.1 illustrates the types of proposals which require the preparation of a Social Impact Assessment (SIA). The proposal does not exceed the threshold trigger for the preparation of a Social Impact Assessment (SIA), therefore a SIA is not required. A15-Waste Minimisation and Management The proposal is to be serviced via two x 140lt wheelie bins, two x 240lt wheelie bins and one x 3m3 bulk bin for refuse; three x 240lt wheelie bins and two x 360lt wheelie bins for recycling; one x 240lt wheelie bin for green waste. The bins are located as shown on the plan within the Preliminary Waste Management Plan. Onsite waste management will be undertaken by staff. The bins will be serviced onsite by Solo Waste with adequate access available. The application was assessed by Council’s Waste Management Unit. No objections were raised subject to recommended conditions.

(a) (iv) Any Matters Prescribed by the Regulations Clause 92(a) Government Coastal Policy The site is covered by the Government Coast Policy (The NSW Coastal Policy 1997). It is considered that the proposal would be consistent with the provisions of the NSW Coastal Policy 1997.


Clause 92(b) Applications for demolition No demolition is proposed as part of this application. Clause 93 Fire Safety Considerations Council’s Building Services Unit advised that the proposal satisfies the requirements of Clause 93. Appropriate conditions have been recommended to ensure all building works are to comply with Clause 93. Clause 94 Buildings to be upgraded Council’s Building Services Unit advised that the proposal satisfies the requirements of Clause 94. Appropriate conditions have been recommended to ensure all building works are to comply with Clause 94.

(a) (v) Any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), Tweed Shire Coastline Management Plan 2005 Not applicable to the development proposal. Tweed Coast Estuaries Management Plan 2004 Not applicable to the development proposal. Coastal Zone Management Plan for Cobaki and Terranora Broadwater (adopted by Council at the 15 February 2011 meeting) Not applicable to the development proposal.

(b) The likely impacts of the development and the environmental impacts on both the natural and built environments and social and economic impacts in the locality The proposed development is considered not to create significant impacts on the natural and built environments or significant social or economical impacts on the locality. Context and Setting The site and surrounding land is zoned 3(d) Waterfront Enterprise, 6(a) Open Space, 2(a) Low Density Residential and 1(a) Rural. There is a mixture of land uses within the locality. The site is surrounded by mostly residential dwellings; however the site contains an existing commercial premise which has previously been used as a café and shop and more recently used as a real-estate office. Stormwater Quality Council’s Planning and Infrastructure Engineer reviewed the submitted Stormwater Management Plan dated June 2013 and advised that the proposal is acceptable in terms of stormwater quality subject to recommended conditions. The Stormwater Management Plan dated June 2013, states that the need for mitigation of the peak stormwater discharge is not required. Therefore the provision of onsite detention is not required. The provision of an Oil and Grit Separator for the hardstand areas is recommended. The development proposes approximately 2671m2 of porous gravel pavement (the display area and area between the storage bays) and 1550m2 of bitumen hardstand.




Local Drainage Council’s Planning and Infrastructure Engineer reviewed the application and advised that “subject to further design details, the concept proposal in respect to filling and grading is generally in accordance with theTweed DCP Section A3 - Development of Flood Liable Land. Local drainage impacts on the adjacent properties fronting Chinderah Bay Drive shall be mitigated during these works.” The following condition was recommended.

Site filling and associated drainage is to be designed to address drainage on the site as well as existing stormwater flows onto or through the site, and minimising the impact of filing on local drainage. Detailed engineering plans of fill levels and perimeter drainage shall be submitted for Council approval. Specific details shall be provided to demonstrate that the adjoining properties are not impacted from a local drainage perspective.

Noise/Amenity An Environmental Noise Impact Report has been submitted with the application which recommended acoustic treatments and hours of operation. The proposed acoustic treatment consists of an acoustic fence to be located on the rear boundary of the existing residence No. 122 and acoustic carport structure located over the carparking spaces located at the rear of residence No. 122. Additional acoustic treatment is recommended for the café/restaurant on the south western elevation of the building. Hours of operation are limited to the following: Boat Showroom 7am to 6pm Monday to Sunday, Boating Facility 7am to 6pm Monday to Sunday, Café/Restaurant and café 7am to 10pm Monday to Sunday and 7am to 8pm Sunday. Council’s Environmental Health Officer has assessed the Environmental Noise Impact Report, no objection was raised subject to recommended conditions of consent which includes the recommendation of the Environmental Noise Impact Report. Dewatering Council’s Environmental Health Officer has assessed the proposal in regards to potential environmental impacts. Council’s Environmental Health Officer concluded that a dewatering management plan is to be prepared and approved prior to the issuing of a construction certificate. Appropriate conditions are recommended. Lighting Conditions relating to lighting are recommended if the application were to be approved. Landscaping A landscape concept plan was submitted with the application that is considered generally acceptable, however, further landscape detail is required particularly in relation to the streetscape in front of the boat sales display and carparking area adjacent to the café. A condition relating to further landscaping detail is recommended if the application were to be approved. Section 64 and Section 94 contributions The development has been assessed in accordance with Council Section 64 and Section 94 contributions plans. Council’s Water Unit provided advice that there is


no charge to water and sewer due to existing credits. There is no charge to Contribution plan number 18 due to existing credits. Council’s Traffic Engineer advised that due to existing credits and discounts a total of 21.6 trips are to be levied.

(c) Suitability of the site for the development The site is considered suitable for the proposed development.

(d) Any submissions made in accordance with the Act or Regulations Public Submissions Comment During the advertised period Council received one submission which supported the proposal subject to appropriate landscaping. A condition relating to landscaping is recommended if the application were to be approved. Public Authority Submissions Comment The application was referred to the Department of Primary Industries Office of Water for works requiring a controlled activity approval under the Water Management Act 2000. The Office of Water provided General Terms of Approval, which are recommended as conditions of consent if the application were to be approved.

(e) Public interest It is considered that approval of the application would not raise any implications in relation to the public interest.

OPTIONS: 1. Approve the application with conditions of approval in accordance with the

recommendation of approval; or 2. Refuse the application. The Council officers recommend Option 1. CONCLUSION: The proposal is permissible with consent under the Tweed LEP 2000, consistent with relevant environmental planning instruments, and Council policy requirements. The proposal is considered suitable and appropriate for the subject site, and considered not to create a significant adverse impact on the natural or built environments or have detrimental social or economical impact on the locality. COUNCIL IMPLICATIONS: a. Policy: Corporate Policy Not Applicable. b. Budget/Long Term Financial Plan: Not Applicable.


c. Legal: The applicant if dissatisfied with the determination may seek to lodge an appeal against a Council determination in the NSW Land and Environmental Court. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Nil.


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10 [PR-PC] Development Application DA13/0502 for a Staged Development - Boundary Adjustment, Boat Storage Facility and One Dwelling as a Caretakers Residence and One Dwelling with a Commercial Premise Component at Lot 23 DP 1130032 No. 7 Chinderah Bay Drive,




SUMMARY OF REPORT:

This application proposes a boundary adjustment between two allotments, the construction of one dwelling on each allotment and the construction of boat storage sheds on one of the allotments. The dwelling located on proposed Lot 22 is a caretakers residence for the boat storage facility. The dwelling located on proposed Lot 23 contains an office located on the ground floor of the dwelling. The site is currently zoned 3(d) Waterfront Enterprise and the development would be defined as a ‘Boundary Adjustment’ ‘Boating Facility’, and ‘Dwelling House’ under the current Tweed Local Environmental Plan 2000. Whilst the proposed Boating Facility is permissible under the 3(d) zone, it is prohibited under the proposed B4 Mixed Use zone of the Draft Tweed Local Environmental Plan 2012. Despite the prohibition under the draft LEP, the proposal is considered to be consistent with the objectives of the B4 Mixed Use zone under the draft plan. The proposed dwelling houses are prohibited under the current Tweed Local Environmental Plan 2000, as a dwelling house is not consistent with the primary objectives of the zone which is a requirement under clause 8(1)(a). The proposed dwelling houses are also prohibited under the Draft Tweed Local Environmental Plan 2012. The applicant proposes to construct a commercial premise (office for boat brokerage) on the ground floor of the proposed dwelling on proposed Lot 23, this creates ‘shop top housing’ which is permissible under the Draft Tweed Local Environmental Plan 2012, and consistent with the primary objectives of the current Tweed Local Environmental Plan 2000. The proposed dwelling on proposed Lot 22 is a caretaker’s residence for the proposed boat storage facility, which is consistent with the primary objectives of the current Tweed Local Environmental Plan 2000 and considered ancillary with boat storage facility. Various decisions in the NSW Land and Environment Court have considered draft LEP’s, which have required consent authorities to give greater weighting to their draft environmental planning instruments which are ‘certain and imminent’. Previous case law suggests that this weighting has greater relevance once a draft LEP has been publicly exhibited, adopted by Council, and forwarded to the Minister for final making and gazettal.


Following an earlier public exhibition, Council at its meeting of 31 May 2013 resolved to adopt the exhibited Draft Tweed LEP 2012, subject to certain changes. The modified draft LEP has been referred to the Department of Planning and Infrastructure, and gazettal of the plan is expected soon. Taking into consideration the proposals consistency with the objectives of the B4 zone, which states:

• To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in

accessible locations so as to maximise public transport patronage and encourage walking and cycling.

The application is recommended for approval. The development application has been referred to Council to determine given the current legal status which does not preclude Council from granting consent to the Development Application. It should be noted that approval of the application would result in Existing Use Rights being relied upon once the Draft LEP 2012 is gazetted. RECOMMENDATION:

That Development Application DA13/0502 for a staged development - boundary adjustment, boat storage facility and one dwelling as a caretakers residence and one dwelling with a commercial premise component at Lot 23 DP 1130032 No. 7 Chinderah Bay Drive, Chinderah; Lot 22 DP 1130032 No. 9 Chinderah Bay Drive, Chinderah be approved subject to the following conditions: GENERAL 1. The development shall be completed in accordance with the Statement of

Environmental Effects and Plan Nos Proposed Site Plan REV 07 prepared by Planit and dated 11/13, Plan Nos 13-049 Lot 22 sheet 3 of 6, 4 of 6, 5 of 6, 6 of 6 prepared by Bush & Beach Homes and dated 12/06/13, Plan Nos 13-049 Lot 23 sheet 3 of 7, 4 of 7, 5 of 7, 6 of 6, 7 of 7 prepared by Bush & Beach Homes and dated 12/06/13, Plan Nos FDHS-RG sheet 1 of 6, 2 of 6, 3 of 6, 6 of 6 prepared by Fairdinkum Sheds and dated 29/07/2013 as amended in Red, Plan Nos FDHS-RG sheet 1 of 6, 2 of 6, 3 of 6, 6 of 6 prepared by Fairdinkum Sheds and dated 18/06/2013 as amended in Red, except where varied by the conditions of this consent.

[GEN0005]

2. The subdivision is to be carried out in accordance with Tweed Shire Council

Development Control Plan Part A5 - Subdivision Manual and Councils Development Design and Construction Specifications.

[GEN0125]

3. Approval is given subject to the location of, protection of, and/or any necessary

approved modifications to any existing public utilities situated within or adjacent to the subject property.

[GEN0135]


4. A Sewer manhole is present on this site. This manhole is not to be covered with soil or other material. Should adjustments be required to the sewer manhole, then application shall be made to Council's Engineering Division for approval of such works.

[GEN0155]

5. Any business or premises proposing to discharge a pollutant discharge greater

than or differing from domestic usage is to submit to Council an application for a Trade Waste Licence. This application is to be approved by the General Manager or his delegate prior to any discharge to sewer being commenced. A trade waste application fee will be applicable in accordance with Councils adopted Fees and Charges.

[GEN0190]

6. The development is to be carried out in accordance with Councils Development

Design and Construction Specifications. [GEN0265]

7. Waste management on the site shall be carried out in accordance with the

approved Waste Management Plan. [GENNS01]

8. The adult occupants of the caretakers dwelling are to be employees of the

approved boating storage facility under this consent. [GENNS02]

9. The development is to be undertaken in three stages. The stages are as follows:

Stage 1 - General Site works, construction of dwelling on proposed Lot 22 and construction of 21 Bay Storage Shed Stage 2 - Undertake boundary adjustment and construction of 17 Bay Storage Shed Stage 3 - Construction of dwelling and commercial premise on proposed Lot 23

[GENNS03]

PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE 10. The developer shall provide ten parking spaces including parking for the

disabled in accordance with Tweed Shire Council Development Control Plan Part A2 - Site Access and Parking Code. Two parking spaces are to be provided per dwelling. Four parking spaces are to be provided for the commercial premise on Proposed Lot 23. Two parking spaces are to be provided for the boat stage facility on Proposed Lot 22.


Full design detail of the proposed parking and manoeuvring areas including integrated landscaping shall be submitted to Tweed Shire Council and approved by the General Manager or his delegate prior to the issue of a construction certificate.

[PCC0065]

11. In accordance with Section 109F(i) of the Environmental Planning and

Assessment Act 1979 (as amended), a construction certificate for SUBDIVISION WORKS OR BUILDING WORKS shall NOT be issued until any long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986 (or where such levy is payable by instalments, the first instalment of the levy) has been paid. Council is authorised to accept payment. Where payment has been made elsewhere, proof of payment is to be provided.

[PCC0285]

12. All imported fill material shall be from an approved source. Prior to the issue of

a construction certificate details of the source of fill, description of material, proposed use of material, documentary evidence that the fill material is free of any contaminants and haul route shall be submitted to Tweed Shire Council for the approval of the General Manager or his delegate.

[PCC0465]

13. All fill is to be graded at a minimum of 1% so that it drains to the street or other

approved permanent drainage system and where necessary, perimeter drainage is to be provided. The construction of any retaining wall or cut/fill batter must at no time result in additional ponding occurring within neighbouring properties. All earthworks shall be contained wholly within the subject land. Detailed engineering plans of cut/fill levels and perimeter drainage shall be submitted with a S68 stormwater application for Council approval.

[PCC0485]

14. A detailed plan of landscaping containing no noxious or environmental weed

species and with a minimum 80% of total plant numbers comprised of local native species is to be submitted and approved by Council's General Manager or his delegate prior to the issue of a Construction Certificate.

[PCC0585]

15. Site filling and associated drainage is to be designed to address drainage on the

site as well as existing stormwater flows onto or through the site, and minimising the impact of filing on local drainage. Detailed engineering plans of fill levels and perimeter drainage shall be submitted for Council approval.

[PCC0675] 16. Design detail shall be provided to address the flood compatibility of the

proposed structure including the following specific matters: (a) Design flood level of RL 2.9m AHD. (b) The minimum habitable floor level for the building is RL 3.4m AHD. (c) All building materials used below Council's design flood level must not be

susceptible to water damage.


(d) Subject to the requirements of the local electricity supply authority, all

electrical wiring, outlets, switches etc. should, to the maximum extent possible be located above the design flood level. All electrical wiring installed below the design flood level should to suitably treated to withstand continuous submergence in water and provide appropriate earth leakage devices.

(e) Define adequate provision for the flood free storage for goods and

equipment susceptible to water damage. [PCC0705]

17. Construction Certificate design detail shall confirm the area below Council's

design flood level is not totally enclosed for the dwelling on proposed Lot 22. The enclosure of laundry, stairway entry and double garage space is permitted provided the area of enclosure does not exceed 50m2 and does not exceed 50% of the site coverage. It is to be noted that the commercial premise on proposed Lot 23 is exempt from the 50m2 provision and that the commercial premise covers less than 50% of the site.

[PCC0715]

18. Fencing detail is to be provided detailing a form that will either allow the free

passage of flood water or be of a light construction such as timber paling that will collapse as a result of any build up of floodwater or debris.

[PCC0725]

19. Application shall be made to Tweed Shire Council under Section 138 of the

Roads Act 1993 for works pursuant to this consent located within the road reserve. Application shall include engineering plans and specifications undertaken in accordance with Councils Development Design and Construction Specifications for the following required works: (a) Vehicular access The above mentioned engineering plan submission must include copies of compliance certificates relied upon and details relevant to but not limited to the following: • Road works/furnishings • Stormwater drainage • Water and sewerage works • Sediment and erosion control plans • Location of all services/conduits • Traffic control plan

[PCC0895]

20. Waste material (soil, concrete, timber, masonry, steel and the like) generated by

the development shall be disposed of in accordance with a Waste Management Plan which shall be submitted to and approved by Tweed shire Council PRIOR to the issue of a construction certificate. The Plan shall specify how the waste is to be treated and/or where the waste is to be disposed of.


Council's Environmental Health Unit shall be notified 24 hrs prior to commencement of demolition works.

[PCC1065]

21. Permanent stormwater quality treatment shall be provided in accordance with

the following: (a) The Construction Certificate Application shall detail stormwater

management for the occupational or use stage of the development in accordance with Section D7.07 of Councils Development Design Specification D7 - Stormwater Quality.

(b) Permanent stormwater quality treatment shall comply with section 5.5.3 of

the Tweed Urban Stormwater Quality Management Plan and Councils Development Design Specification D7 - Stormwater Quality.

(c) The stormwater and site works shall incorporate water sensitive design

principles and where practical, integrated water cycle management. (d) Specific Requirements to be detailed within the Construction Certificate

application include: i) Additional sediment fence return will be added along the rear half of

the northern boundary of proposed Lot 23. Site survey indicates the land falls this way and runoff can potentially exit the site.

[PCC1105] 22. Disposal of stormwater by means of infiltration devices shall be carried out in

accordance with Section D7.9 of Tweed Shire Councils Development Design and Construction Specification - Stormwater Quality.

[PCC1125] 23. Stormwater

(a) Details of the proposed roof water disposal, including surcharge overland

flow paths are to be submitted to and approved by the Principal Certifying Authority prior to the issue of a Construction Certificate. These details shall include likely landscaping within the overland flow paths.

(b) All roof water shall be discharged to infiltration pits located wholly within

the subject allotment. (c) The infiltration rate for sizing infiltration devices shall be 3m per day:

* As a minimum requirement, infiltration devices are to be sized to accommodate the ARI 3 month storm (deemed to be 40% of the ARI one year event) over a range of storm durations from 5 minutes to 24 hours and infiltrate this storm within a 24 hour period, before surcharging occurs.


(d) Surcharge overflow from the infiltration area to the street gutter, inter-allotment or public drainage system must occur by visible surface flow, not piped.

(e) Runoff other than roof water must be treated to remove contaminants prior

to entry into the infiltration areas (to maximise life of infiltration areas between major cleaning/maintenance overhauls).

(f) If the site is under strata or community title, the community title plan is to

ensure that the infiltration areas are contained within common land that remain the responsibility of the body corporate (to ensure continued collective responsibility for site drainage).

(g) All infiltration devices are to be designed to allow for cleaning and

maintenance overhauls. (h) All infiltration devices are to be designed by a suitably qualified Engineer

taking into account the proximity of the footings for the proposed/or existing structures on the subject property, and existing or likely structures on adjoining properties.

(i) All infiltration devices are to be designed to withstand loading from

vehicles during construction and operation of the development.

(j) All infiltration devices are to be located clear of stormwater or sewer easements.

[PCC1135]

24. A construction certificate application for works that involve any of the following:

• connection of a private stormwater drain to a public stormwater drain • installation of stormwater quality control devices • erosion and sediment control works will not be approved until prior separate approval to do so has been granted by Council under Section 68 of the Local Government Act. a) Applications for these works must be submitted on Council's standard

Section 68 stormwater drainage application form accompanied by the required attachments and the prescribed fee.

b) Where Council is requested to issue a construction certificate for civil

works associated with a subdivision consent, the abovementioned works can be incorporated as part of the construction certificate application, to enable one single approval to be issued. Separate approval under Section 68 of the Local Government Act will then NOT be required.

[PCC1145]


25. Erosion and Sediment Control shall be provided in accordance with the following: (a) The Construction Certificate Application must include a detailed erosion

and sediment control plan prepared in accordance with Section D7.07 of Development Design Specification D7 - Stormwater Quality.

(b) Construction phase erosion and sediment control shall be designed,

constructed and operated in accordance with Tweed Shire Council Development Design Specification D7 - Stormwater Quality and its Annexure A - “Code of Practice for Soil and Water Management on Construction Works”.

[PCC1155]

26. Medium density/integrated developments, excluding developments containing

less than four attached or detached dwellings and having a Building Code classification of 1a, will be required to provide a single bulk water service at the road frontage. Individual metering beyond this point shall be managed by occupants. Application for the bulk metre shall be made to the supply authority detailing the size in accordance with NSW Code of Practice - Plumbing and Drainage and BCA requirements. Note: The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Management Act, 2000 to be certified by an Accredited Certifier.

[PCC1185] 27. An application shall be lodged together with any prescribed fees including

inspection fees and approved by Tweed Shire Council under Section 68 of the Local Government Act for any water, sewerage, on site sewerage management system or drainage works including connection of a private stormwater drain to a public stormwater drain, installation of stormwater quality control devices or erosion and sediment control works, prior to the issue of a construction certificate.

[PCC1195] 28. Pursuant to Section 68 of the Local Government Act, 1993 an approved pre-

treatment device (eg. Oil/grease traps, separators, etc) shall be installed in accordance with Tweed Shire Councils Trade Waste Policy. Submission of detailed hydraulic plans and specifications indicating size, type, location and drainage installations in accordance with AS 3500 shall be submitted to Council for approval.

[PCC1265]

29. Three copies of detailed hydraulic plans shall be submitted with all trade waste

applications which indicate size, type and location of pre-treatment devices. All plumbing and drainage installations to these devices shall comply with AS3500.

[PCC1275]

30. Certification from a suitably qualified person that the construction design

achieves the requirements of the Environmental Noise Impact Report (crgref:13104a Report) prepared by CRG Acoustical Consultants dated 8 August 2013 and addendum dated 26 November 2013.


31. All works shall be carried out in accordance with Council’s Acid Sulfate Soils Management Plan for Minor Works. A signed copy of this Management Plan (MP) shall be submitted. Should proposed works exceed the scope of the MP a site specific investigation and management plan shall be prepared and submitted to the satisfaction of the General Manager or delegate.

32. The wash bay shall be designed to ensure the adequate collection, treatment,

where required, and removal of liquid trade waste to the satisfaction of the General Manager or delegate.

[PCCNS01]

33. Prior to the issuing of a Construction Certificate a construction waste

management plan is to be provided to Council. The Waste management plan is to include: i. The type of waste generated during construction ii. The method and location of waste storage on site iii. How any recyclable materials will be managed iv. The location of the disposal facility for residual waste

[PCCNS02]

PRIOR TO COMMENCEMENT OF WORK 34. The proponent shall accurately locate and identify any existing sewer main,

stormwater line or other underground infrastructure within or adjacent to the site and the Principal Certifying Authority advised of its location and depth prior to commencing works and ensure there shall be no conflict between the proposed development and existing infrastructure prior to start of any works.

[PCW0005]

35. The erection of a building in accordance with a development consent must not

be commenced until: (a) a construction certificate for the building work has been issued by the


(b) the person having the benefit of the development consent has:

(i) appointed a principal certifying authority for the building work, and (ii) notified the principal certifying authority that the person will carry out

the building work as an owner-builder, if that is the case, and (c) the principal certifying authority has, no later than 2 days before the

building work commences: (i) notified the consent authority and the council (if the council is not the

consent authority) of his or her appointment, and (ii) notified the person having the benefit of the development consent of

any critical stage inspections and other inspections that are to be carried out in respect of the building work, and


(d) the person having the benefit of the development consent, if not carrying

out the work as an owner-builder, has: (i) appointed a principal contractor for the building work who must be the

holder of a contractor licence if any residential work is involved, and (ii) notified the principal certifying authority of any such appointment, and (iii) unless that person is the principal contractor, notified the principal

contractor of any critical stage inspection and other inspections that are to be carried out in respect of the building work.

[PCW0215]



[PCW0225]

37. Residential building work: (a) Residential building work within the meaning of the Home Building Act

1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information: (i) in the case of work for which a principal contractor is required to be

appointed:

* in the name and licence number of the principal contractor, and * the name of the insurer by which the work is insured under Part 6

of that Act, (ii) in the case of work to be done by an owner-builder:

* the name of the owner-builder, and * if the owner-builder is required to hold an owner builder permit

under that Act, the number of the owner-builder permit. (b) If arrangements for doing the residential building work are changed while

the work is in progress so that the information notified under subclause (1) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

[PCW0235]


38. A temporary builder's toilet is to be provided prior to commencement of work at the rate of one closet for every 15 persons or part of 15 persons employed at the site. Each toilet provided must be: (a) a standard flushing toilet connected to a public sewer, or (b) if that is not practicable, an accredited sewage management facility




certifying authority for the work, and (b) showing the name of the principal contractor (if any) for any building work

and a telephone number on which that person may be contacted outside working hours, and

(c) stating that unauthorised entry to the site is prohibited. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

[PCW0255]

40. Prior to commencement of work on the site all erosion and sedimentation

control measures are to be installed and operational including the provision of a "shake down" area, where required to the satisfaction of the Principal Certifying Authority. These measures are to be in accordance with the approved erosion and sedimentation control plan and adequately maintained throughout the duration of the development.

In addition to these measures the core flute sign provided with the stormwater approval under Section 68 of the Local Government Act is to be clearly displayed on the most prominent position of the sediment fence or erosion control device which promotes awareness of the importance of the erosion and sediment controls provided. This sign is to remain in position for the duration of the project.

[PCW0985]

41. An application to connect to Council's sewer or carry out plumbing and drainage

works, together with any prescribed fees including inspection fees, is to be submitted to and approved by Council prior to the commencement of any building works on the site.

[PCW1065]


DURING CONSTRUCTION 42. All proposed works are to be carried out in accordance with the conditions of

development consent, approved management plans, approved construction certificate, drawings and specifications.

[DUR0005]

43. Construction and/or demolition site work including the entering and leaving of

vehicles is limited to the following hours, unless otherwise permitted by Council: Monday to Saturday from 7.00am to 6.00pm No work to be carried out on Sundays or Public Holidays The proponent is responsible to instruct and control subcontractors regarding hours of work.

[DUR0205] 44. All reasonable steps shall be taken to muffle and acoustically baffle all plant and

equipment. In the event of complaints from the neighbours, which Council deem to be reasonable, the noise from the construction site is not to exceed the following: A. Short Term Period - 4 weeks.

LAeq, 15 min noise level measured over a period of not less than 15 minutes when the construction site is in operation, must not exceed the background level by more than 20dB(A) at the boundary of the nearest likely affected residence.

B. Long term period - the duration.

LAeq, 15 min noise level measured over a period of not less than 15 minutes when the construction site is in operation, must not exceed the background level by more than 15dB(A) at the boundary of the nearest affected residence.

[DUR0215] 45. The wall and roof cladding is to have low reflectivity where they would otherwise

cause nuisance to the occupants of buildings with direct line of sight to the proposed building.



[DUR0375]



[DUR0395]


48. The Principal Certifying Authority is to be given a minimum of 48 hours notice prior to any critical stage inspection or any other inspection nominated by the Principal Certifying Authority via the notice under Section 81A of the Environmental Planning and Assessment Act 1979.

[DUR0405]

49. All demolition work is to be carried out in accordance with the provisions of

Australian Standard AS 2601 "The Demolition of Structures" and to the relevant requirements of the WorkCover NSW, Work Health and Safety Regulation 2011. The proponent shall also observe the guidelines set down under the Department of Environment and Climate Change publication, “A Renovators Guide to the Dangers of Lead” and the Workcover Guidelines on working with asbestos.

[DUR0645] 50. Proposed earthworks shall be carried out in accordance with AS 3798,

"Guidelines on Earthworks for Commercial and Residential Developments". The earthworks shall be monitored by a Registered Geotechnical Testing Consultant to a level 1 standard in accordance with AS 3798. A certificate from a registered Geotechnical Engineer certifying that the filling operations comply with AS3798 shall be submitted to the Principal Certifying Authority upon completion.

[DUR0795] 51. The use of vibratory compaction equipment (other than hand held devices)

within 100m of any dwelling house, building or structure is strictly prohibited. [DUR0815]

52. All cut or fill on the property is to be battered at an angle not greater than 45º

within the property boundary, stabilised and provided with a dish drain or similar at the base in accordance with Tweed Shire Councils Design and Construction Specifications, Development Control Plan Part A1 to the satisfaction of the Principal Certifying Authority. Please note timber retaining walls are not permitted.

[DUR0835] 53. The development is to be carried out in accordance with the current BASIX

certificate and schedule of commitments approved in relation to this development consent.

[DUR0905] 54. No soil, sand, gravel, clay or other material shall be disposed of off the site

without the prior written approval of Tweed Shire Council General Manager or his delegate.

[DUR0985]


55. All work associated with this approval is to be carried out so as not to impact on the neighbourhood, adjacent premises or the environment. All necessary precautions, covering and protection shall be taken to minimise impact from: • Noise, water or air pollution. • Dust during filling operations and also from construction vehicles. • Material removed from the site by wind.

[DUR1005] 56. Where the construction work is on or adjacent to public roads, parks or drainage

reserves the development shall provide and maintain all warning signs, lights, barriers and fences in accordance with AS 1742 (Manual of Uniform Traffic Control Devices). The contractor or property owner shall be adequately insured against Public Risk Liability and shall be responsible for any claims arising from these works.

[DUR1795]

57. Any damage caused to public infrastructure (roads, footpaths, water and sewer

mains, power and telephone services etc) during construction of the development shall be repaired in accordance with Councils Development Design and Construction Specifications prior to the issue of a Subdivision Certificate and/or prior to any use or occupation of the buildings.

[DUR1875]

58. No portion of the structure may be erected over any existing sullage or

stormwater disposal drains, easements, sewer mains, or proposed sewer mains. [DUR1945]

59. The builder must provide an adequate trade waste service to ensure that all

waste material is suitably contained and secured within an area on the site, and removed from the site at regular intervals for the period of construction/demolition to ensure no material is capable of being washed or blow from the site.

[DUR2185]

60. The site shall not be dewatered, unless written approval to carry out dewatering

operations is received from the Tweed Shire Council General Manager or his delegate.

[DUR2425] 61. Council is to be given 24 hours notice for any of the following inspections prior

to the next stage of construction: (a) internal drainage, prior to slab preparation; (b) water plumbing rough in, and/or stackwork prior to the erection of brick

work or any wall sheeting; (c) external drainage prior to backfilling. (d) completion of work and prior to occupation of the building.

[DUR2485]


62. Plumbing (a) A plumbing permit is to be obtained from Council prior to commencement

of any plumbing and drainage work. (b) The whole of the plumbing and drainage work is to be completed in


[DUR2495]

63. Back flow prevention devices shall be installed wherever cross connection

occurs or is likely to occur. The type of device shall be determined in accordance with AS 3500.1 and shall be maintained in working order and inspected for operational function at intervals not exceeding 12 months in accordance with Section 4.7.2 of this Standard.

[DUR2535]

64. Overflow relief gully is to be located clear of the building and at a level not less

than 150mm below the lowest fixture within the building and 75mm above finished ground level.

[DUR2545] 65. All new hot water installations shall deliver hot water at the outlet of sanitary

fixtures used primarily for personal hygiene purposes at a temperature not exceeding:- * 45ºC for childhood centres, primary and secondary schools and nursing

homes or similar facilities for aged, sick or disabled persons; and * 50ºC in all other classes of buildings. A certificate certifying compliance with the above is to be submitted by the licensed plumber on completion of works.

[DUR2555]

66. The structure is to be sited at least one metre horizontally clear of sewer main

on site. All footings and slabs within the area of influence of the sewer main are to be designed by a practising Structural Engineer. The engineer is to submit a certification to the Principal Certifying Authority that the design of such footings and slabs will ensure that all building loads will be transferred to the foundation material and will not affect or be affected by the sewer main.

[DUR2645] 67. A trade waste agreement will be issued and a permit number allocated once the

device has been installed, inspected and Council has received a copy of the Waste Contractor's Service Agreement

[DUR2685]

68. Any structures that are to be constructed over or within the zone of influence of

Council's sewer main are to comply with Tweed Shire Council's "Sewers - Building in Proximity” policy.

[DUR2705]

69. All works shall be carried out in accordance with the approved Acid Sulfate Soil

Management Plan. [DURNS01]


PRIOR TO ISSUE OF OCCUPATION CERTIFICATE 70. A person must not commence occupation or use of the whole or any part of a

new building or structure (within the meaning of Section 109H(4)) unless an occupation certificate has been issued in relation to the building or part (maximum 25 penalty units).

[POC0205]

71. The building is not to be occupied or a final occupation certificate issued until a

fire safety certificate has been issued for the building to the effect that each required essential fire safety measure has been designed and installed in accordance with the relevant standards.

[POC0225]

72. A final occupation certificate must be applied for and obtained within 6 months

of any Interim Occupation Certificate being issued, and all conditions of this consent must be satisfied at the time of issue of a final occupation certificate (unless otherwise specified herein).

[POC0355]


Payment of the following contributions pursuant to Section 94 of the Act and the relevant Section 94 Plan. Prior to the occupation of the building or issue of any Interim or Final Occupation Certificate (whichever comes first), all Section 94 Contributions must have been paid in full and the Certifying Authority must have sighted Council's "Contribution Sheet" signed by an authorised officer of Council. A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT. These charges include indexation provided for in the S94 Plan and will remain fixed for a period of 12 months from the date of this consent and thereafter in accordance with the rates applicable in the current version/edition of the relevant Section 94 Plan current at the time of the payment. A copy of the Section 94 contribution plans may be inspected at the Civic and Cultural Centres, Tumbulgum Road, Murwillumbah and Brett Street, Tweed Heads. Stage 1 (a) Tweed Road Contribution Plan:

4 Trips @ $1176 per Trips $4,704 ($1,137 base rate + $39 indexation) S94 Plan No. 4 Sector6_4


(b) Extensions to Council Administration Offices & Technical Support Facilities 0.309641 ET @ $1860.31 per ET $576.03 ($1,759.90 base rate + $100.41 indexation) S94 Plan No. 18

Stage 2 (a) Extensions to Council Administration Offices

& Technical Support Facilities 0.22519 ET @ $1860.31 per ET $418.92 ($1,759.90 base rate + $100.41 indexation) S94 Plan No. 18

Stage 3 (a) Tweed Road Contribution Plan:

5.9904 Trips @ $1176 per Trips $7,045 ($1,137 base rate + $39 indexation) S94 Plan No. 4 Sector6_4

(b) Extensions to Council Administration Offices

& Technical Support Facilities 0.20499 ET @ $1860.31 per ET $381.34 ($1,759.90 base rate + $100.41 indexation) S94 Plan No. 18

[POC0395/PSC0175]

74. Prior to the issue of a final occupation certificate adequate proof and/or

documentation is to be submitted to the Principal Certifying Authority to identify that all commitment on the BASIX "Schedule of Commitments" have been complied with.

[POC0435] 75. All landscaping work is to be completed in accordance with the approved plans

prior to the issue of a final occupation certificate for the buildings. [POC0475]

76. A certificate of compliance (CC) under Sections 305, 306 and 307 of the Water

Management Act 2000 is to be obtained from Council to verify that the necessary requirements for the supply of water and sewerage to the development have been made with the Tweed Shire Council. Prior to the occupation of the building or issue of any Interim or Final Occupation Certificate (whichever comes first), all Section 64 Contributions must have been paid in full and the Certifying Authority must have sighted Council's "Contribution Sheet" and a “Certificate of Compliance” signed by an authorised officer of Council.


Annexed hereto is an information sheet indicating the procedure to follow to obtain a Certificate of Compliance: Stage 1 Water DSP4: 0.1667 ET @ $12575 per ET $2,096.30 Sewer Kingscliff: 0.219 ET @ $6042 per ET $1,323.20 Stage 3 Water DSP4: 1.2496 ET @ $12575 per ET $15,713.70 Sewer Kingscliff: 1.3744 ET @ $6042 per ET $8,304.10

These charges to remain fixed for a period of twelve (12) months from the date of this consent and thereafter in accordance with the rates applicable in Council's adopted Fees and Charges current at the time of payment. A CURRENT COPY OF THE CONTRIBUTION FEE SHEET ATTACHED TO THIS CONSENT MUST BE PROVIDED AT THE TIME OF PAYMENT. Note: The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Management Act 2000 to be certified by an Accredited Certifier.

[POC0675/PSC0165]

77. The use to be conducted so as not to cause disruption to the amenity of the

locality, particularly by way of the emission of noise, dust and odours or the like. [USE0125]

78. Hours of operation of the Boat Storage business are restricted to the following

hours: * 7am to 6pm - Mondays to Sundays

[USE0185]

79. All deliveries to the premises are to occur only within the hours of 8am to 6pm

Monday to Sarurdays, unless otherwise approved by Councils General Manager or his delegate. Urgent or medical related deliveries exempted.

[USE0195]

80. All externally mounted artificial lighting, including security lighting, is to be

shielded to the satisfaction of the General Manager or his delegate where necessary or required so as to prevent the spill of light or glare creating a nuisance to neighbouring or adjacent premises.

[USE0225]

81. Upon receipt of a noise complaint that Council deems to be reasonable, the

operator/owner is to submit to Council a Noise Impact Study (NIS) carried out by a suitably qualified and practicing acoustic consultant. The NIS is to be submitted to the satisfaction of the General Manager or his delegate. It is to include recommendations for noise attenuation. The operator/owner is to


implement the recommendations of the NIS within a timeframe specified by Council's authorised officer.

[USE0245]

82. The servicing of waste facilities shall be limited to between the hours of 0800hrs

to 1800hrs Monday to Saturday. [USE0285]

83. The development shall be carried out in accordance with the provisions of the

Environmental Noise Impact Report (crgref:13104a) prepared by CRG Acoustical Consultants and dated 8 August 2013 and addendum dated 26 November 2013.

[USE0305]

84. The use being restricted to the areas designated on the approved plan.

[USE0415]

85. No items or goods are to be stored or displayed outside the confines of the

premises. [USE0445]

86. All loading/unloading to take place within the boundary of the subject property.

[USE0525]

87. A backflow containment device will be installed adjacent to Councils water

meter installation at the property boundary in accordance with AS3500. The device is to be maintained in accordance with the provisions of AS3500 by the owner of the property at the owners expense.

[USE1455]

88. A maximum of four customers per day is permitted with a maximum of seven

customers per week permitted. 89. A maximum of four engines shall be flushed within any one day of operation.

Engines shall operate at idle only and only for a maximum period of 2 mins. 90. A The maintenance of boats and equipment is not permitted. 91. All liquid trade waste collection, treatment and drainage systems shall be

adequately maintained at all times. [USENS01]

92. Noise Treatment

• Hours of operation be limited to the daytime period between 7am and 6pm, 7 days per week.

• The wash bay should be enclosed with solid walls along the northern, western and eastern perimeters of the bay and a solid roof over the bay as detailed in Sketch 1 in Appendix A of this report. Walls should be constructed to achieve a minimum surface mass of 11 kg/m2 (i.e. 9mm FC sheeting or masonry).

• The roof of the wash bay enclosure should have an absorptive ceiling lining with a minimum Noise Reduction Coefficient (NRC) rating of 0.8 (i.e. a minimum 50mm thick, 22kg/m2 fibreglass batts) as detailed in Sketch 1 in Appendix A of this report. Ceiling absorption batts may have a perforated foil facing having an open space area of no less than 12 % (this will protect the batts from damage).


• There should be no gaps or holes between the connection with the wash bay enclosure and the adjacent storage shed (i.e. no gaps or holes at the connecting walls or roofing).

• There should be no gaps or holes between the roof and the walls, between the ground and the walls and along the walls themselves (with the exception of the proposed roller door entries) at wash bay enclosure and the two boat storage sheds.

• The recycling (bottle) bins storage area should be located to the east of the proposed onsite sheds (i.e. between the sheds and the Chinderah Bay Drive road corridor) to maximum the separation distance between the offsite and future residential dwellings as detailed in Sketch 1 in Appendix A of this report.

• No boat repairs or maintenance be undertaken onsite. • No high pressure water hoses are to be used onsite or at the wash bay. • Engine flushing is to occur for a maximum period of 2 minutes (within any

15 minute period). • Engines are to run at idle during engine flushing (i.e. no revving of engine). • Staff should minimise metal impacts when hitching/unhitching trailers. • Driveway hardstand areas be finished with surface coatings which prevent

tyre squeal (an uncoated surface is acceptable). • Drainage grating over trafficable areas be well secured to prevent rattling.

[USENS02]

PRIOR TO ISSUE OF SUBDIVISION CERTIFICATE 93. A Subdivision Certificate will not be issued by the General Manager until such

time as all conditions of this Development Consent have been complied with. [PSC0825]

94. The creation of easements for services, rights of carriageway and restrictions as

to user (including restrictions associated with planning for bushfire) as may be applicable under Section 88B of the Conveyancing Act including (but not limited to) the following: (a) Easements for sewer, water supply and drainage over ALL public

services/infrastructure on private property. (b) 3m wide easement is to be registered over the existing sewer main. Pursuant to Section 88BA of the Conveyancing Act (as amended) the Instrument creating the right of carriageway/easement to drain water shall make provision for maintenance of the right of carriageway / easement by the owners from time to time of the land benefited and burdened and are to share costs equally or proportionally on an equitable basis. Any Section 88B Instrument creating restrictions as to user, rights of carriageway or easements which benefit Council shall contain a provision enabling such restrictions, easements or rights of way to be revoked, varied or modified only with the consent of Council. Privately owned infrastructure on community land may be subject to the creation of statutory restrictions, easements etc in accordance with the Community Land


Development Act, Strata Titles Act, Conveyancing Act, or other applicable legislation.

[PSC0835]

95. Prior to registration of the plan of subdivision, a Subdivision Certificate shall be

obtained. The following information must accompany an application: (a) original plan of subdivision prepared by a registered surveyor and 7 copies

of the original plan together with any applicable 88B Instrument and application fees in accordance with the current Fees and Charges applicable at the time of lodgement.

(b) all detail as tabled within Tweed Shire Council Development Control Plan,

Part A5 - Subdivision Manual, CL 5.7.6 and Councils Application for Subdivision Certificate including the attached notes.

Note: The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Supplies Authorities Act, 1987 to be certified by an Accredited Certifier.

[PSC0885]

96. Prior to issuing a Subdivision Certificate, reticulated water supply and outfall

sewerage reticulation shall be provided to all lots within the subdivision in accordance with Tweed Shire Council’s Development Control Plan Part A5 - Subdivisions Manual, Councils Development Design and Construction Specifications and the Construction Certificate approval. The Environmental Planning and Assessment Act, 1979 (as amended) makes no provision for works under the Water Management Act, 2000 to be certified by an Accredited Certifier.

[PSC1115]

97. The production of written evidence from the local telecommunications supply

authority certifying that the provision and commissioning of underground telephone supply at the front boundary of the allotment has been completed.

[PSC1165]

98. The production of written evidence from the local electricity supply authority

certifying that reticulation and energising of underground electricity (residential and rural residential) has been provided adjacent to the front boundary of each allotment.

[PSC1185]


REPORT:

Applicant: E Norris Owner: Mr Edward T Norris & Ms Pamela J Norris Location: Lot 23 DP 1130032 No. 7 Chinderah Bay Drive, Chinderah; Lot 22 DP

1130032 No. 9 Chinderah Bay Drive, Chinderah Zoning: Part 3(d) Waterfront Enterprise, Part 6(a) Open Space, Part Unzoned land Cost: $832,000 Background: The site is commonly identified as Nos. 7 and 9 Chinderah Bay Drive, Chinderah. The site has frontage to Chinderah Bay Drive and directly adjoins the Tweed River. The site is generally regular in shape and provides a total area of 5090m2. To the north and south each site adjoins a dwelling house, to the east across Chinderah Bay Drive the site adjoins a BP service station, Chinderah indoor sports centre, boat storage facility and storage units. To the west is the Tweed River. The proposal includes three distinct elements including boundary adjustment, boat storage facility and two dwelling houses. The following summary is provided for each element. Boundary Adjustment The proposal will see a boundary adjustment undertaken between the two allotments. The boundary adjustment will transfer land (695.9m2) from Lot 23 DP1130032 to Lot 22 DP1130032. This will allow the development of Lot 22 for the proposed boat storage yard. The boundary adjustment will see Lot 23 have a proposed area of 1772.1m2 and 10.26m frontage to Chinderah Bay Drive and Lot 22 with a proposed area of 3317.9m2 and 30.57m frontage to Chinderah Bay Drive. The proposed boundary adjustment is permissible with consent within the Tweed LEP 2000 (3b zone). The proposed boundary adjustment is permissible with consent within the Draft Tweed LEP 2012 (B4 zone). Boat Storage Facility The Boat Storage Yard will be located on Proposed Lot 22. The boat storage yard provides a total of 38 storage bays. The bays are located within two shed structures, the southern shed will contain 22 storage bays and the northern shed will contain 16 storage bays. The sheds measure 72.6m x 9m and 52.8m x 9m respectively. Both sheds are 4.375m high. The Boat Storage Yard is proposed to be staffed by a single person (the proposed staff member is the applicant for the subject application). It is proposed that the applicant/staff member will live on the site within the dwelling house on Proposed Lot 22 in a caretaker’s capacity. In addition to the boat storage bays, the site provides two car parking spaces to accommodate enquires, the site also includes a 9m x 9m storage shed for storage of general items relating to the business. The proposed hours of operation are 7am to 6pm Monday to Sunday. The site will include a boat wash facility. The wash facility will provide for the hand (bucket and brush) washing of boats and the flush through of boat motors. The applicant acknowledges that strict requirements will be placed on how these areas are to be used, particularly with regards to the flushing of motors and this only being done at engine idle. A Noise Impact Assessment has been submitted with the application.


The proposed boat storage facility (defined as a boating facility) is permissible with consent within the Tweed LEP 2000 (3b zone). The proposed boat storage facility (defined as a Marina) is prohibited within the Draft Tweed LEP 2012 (B4 zone). Two Dwelling Houses The application proposes the construction of a dwelling house on both proposed Lot 22 and Lot 23. The dwelling house on Proposed Lot 22 will be utilised as a ‘caretakers dwelling’ for the boat storage facility. The dwelling house on proposed Lot 23 will be utilised as a ‘dwelling’ and ‘commercial premise’ (62.4m2) for boat brokerage business. The proposed dwelling houses are permissible with consent within the Tweed LEP 2000 as the dwellings are associated with the boat storage facility and boat brokering business (being waterfront and marine activities) and therefore consistent with the primary objectives of the zone which is a requirement under clause 8(1)(a) of the Tweed LEP2000 (3b zone). The proposed dwelling houses (defined as a residential accommodation – dwelling house) are prohibited within the Draft Tweed LEP 2012 (B4 zone). Car Parking and Access A total of ten car parking spaces are provided as part of the proposal. This figure excludes the 38 boat storage bays. The two dwelling houses each have two undercover parking spaces. Two spaces are assigned to the boat storage facility on proposed Lot 22 and four spaces are assigned to the commercial premise on proposed Lot 23. Access will be provided to the site via Chinderah Bay Drive. Signage The proposal includes a single business identification wall sign. The wall sign will be attached to the east elevation (fronting Chinderah Bay Drive) of the 22 Bay (southern) storage shed. The sign will be 6m2 in area and will not be illuminated. Landscaping The proposal includes landscaping to the Chinderah Bay Drive frontage and generally throughout the site. Landscaping is to be predominately native in accordance with Council requirements. The site adjoins land identified as CPA land (accreted land) and the bank of the Tweed River. The proposal will not impact upon the existing bank and no works are proposed to the existing bank or CPA land. Fencing The proposed fencing is for the front and return of the site consisting of 1.8m aluminium slat fencing with gate. The proposed front fence is proposed along the front property boundary and will return to the wall of the sheds being approximately 4.8m to the wall of the shed on the southern boundary and the 6.08m to the wall of the shed on the northern boundary. Fencing is not proposed at the rear of the site (Tweed River) and CPA Lands. Demolition The proposal will see the removal of an existing shed upon the site. Staging The proposal will be undertaken in three stages. The stages will be as follows: Stage 1 – General Site works, construction of dwelling on Proposed Lot 22 and construction

of 22 Bay Storage Shed


Stage 2 – Undertake boundary adjustment and construction of 16 Bay Storage Shed Stage 3 – Construction of dwelling and 62.4m2 commercial premise on Proposed Lot 23


SITE DIAGRAM:


Considerations under Section 79c of the Environmental Planning and Assessment Act 1979: (a) (i) The provisions of any environmental planning instrument

Tweed Local Environmental Plan 2000 Clause 4 - Aims of the Plan The proposal is consistent with the aims of the plan, with the development retaining Tweed Shire’s unique natural and built environments and economic and social fabric. Clause 5 - Ecologically Sustainable Development The proposed development is consistent with the four principles of ecological sustainable development by: a) not creating irreversible environmental damage. b) the environment is maintained for the benefit of future generations. c) the biological diversity and ecological integrity is retained and a fundamental

consideration. d) the environmental qualities of the locality are retained. Clause 8 - Consent Considerations The proposed development is consistent with the primary zone objectives, with all other aims and objectives of the plan relevant to the development have been considered and addressed within the body of this report. The proposed development is considered not to have an unacceptable cumulative impact on the local community. Clause 11 - Zone Objectives The subject land is zoned 3(d) Waterfront Enterprise pursuant to the provisions of the TLEP 2000. The uses of, ‘Boundary Adjustment’, ‘Boating Facility’, and ‘Dwelling House’ are permissible subject to consent within the zone. The objectives of the 3(d) Waterfront Enterprise zone are:

Primary objective • to encourage development related to waterfront and marine activities,

recreation or tourism. Secondary objectives • to allow for residential development in association with waterfront, tourist

or recreational uses. • to allow for other development that is compatible with the primary function

of the zone.

The proposed development is considered consistent with the objectives of the zone, by encouraging waterfront, marine, recreation and tourism activities being the commercial boat brokerage business and boat storage facility and associated residential development. The boat brokerage business and boat storage facility are directly related to waterfront and marine activities and consistent with the primary objectives of the zone.


It is important to note that the land identified as “CPA” is land that is partly unzoned and zoned 6(a) Open Space. This land does not form part of this application and is not proposed to be used by the development. Clause 15 - Essential Services The site is provided with all urban services. The proposal is compliant with Clause 15 of the TLEP 2000. Clause 16 - Height of Building The site is located in a three storey area. The proposal includes two dwellings that have a maximum height of two storeys and two storage sheds that are single storey in height. The proposal is compliant with Clause 16 of the TLEP 2000. Clause 17 - Social Impact Assessment The objectives of clause 17 are to ensure proper consideration of development that may have a significant social or economical impact. The proposed development is considered not to create significant social or economic impact. Clause 19 – General The provisions of clause 19 apply to this development. This clause states:

(1) Objective • to provide a comprehensive system of planning controls for the

subdivision of land in the Tweed local government area. (1A) Despite Part 2 but subject to this Part, a person must not subdivide land

without consent. (2) Subdivision under the Strata Schemes (Freehold Development) Act

1973 or the Strata Schemes (Leasehold Development) Act 1986 may be carried out without consent if the land is within Zone 2 (a), 2 (b), 2 (c), 2 (d), 2 (e), 2 (f), 3 (a), 3 (b), 3 (c), 3 (d), 3 (e), 4 (a), 5 (a), 6 (a) or 6 (b).

(3) A person may, with consent, carry out a minor boundary adjustment, notwithstanding that the new lots may not comply with any relevant development standards applicable to the zone in which the land is situated.

(4) Consent is not required for a subdivision effected for the purposes of widening a public road, creating an allotment for use by a public utility undertaking, or as a public reserve or the like, notwithstanding that an allotment created by the subdivision may not comply with the minimum lot size applicable to the zone in which the land is situated.

The proposal is considered to comply with the provisions of this clause as development consent is sought for the boundary adjustment as required under Clause 19 subclause 1A. Clause 22 – Development near Designated Roads The site fronts Chinderah Bay Drive which is identified as a Designated Road. The proposed development is considered not to impact upon the function of the road nor will it result in a traffic hazard or materially reduce the capacity or efficiency of the road.


Clause 23 – Control of Access Consent is sought for two new access points to Chinderah Bay Drive to service the developments in accordance with the provisions of this clause. Council’s Traffic Engineer did not object to the two proposed accesses subject to recommended conditions. Clause 31 – Development Adjoining Waterbodies The site adjoins the Tweed River with the proposal considered not to impact upon the adjoining Tweed River. Sufficient foreshore open space is available within the locality. Council has recently completed an upgrade and expansion of park facilities along this section of Tweed River. The proposal has no impact on these foreshore open space areas. The proposal will not adversely impact on the existing visual amenity and will not be affected by biting midge. Clause 34 – Flooding The site is flood prone with a design flood level of RL 2.9m AHD, a minimum habitable floor level of RL 3.4m AHD and a PMF level of RL 7.3m AHD. The Westernmost fringes of the site are in the modelled high flow areas. Council’s Planning and Infrastructure Engineer, has advised that the proposal is considered acceptable in terms of flooding. The proposal is considered compliant with the requirements of the Clause 34 of the TLEP 2000. Clause 35 - Acid Sulfate Soils The subject property is identified as containing Class 1 and Class 2 Acid Sulfate Soils. Council’s Environmental Health Officer advised that the proposal is considered acceptable in terms of Acid Sulfate Soils, subject to recommended conditions relating to Acid Sulfate Soils. The proposal is compliant with the requirements of Clause 35 of the TLEP 2000. Clause 39 – Soil Contamination A Preliminary Site Investigation Report has been submitted with the application which identified minor contamination of groundwater however concludes the site is suitable for the proposed use and no further investigation or remediation is warranted. Council’s Environmental Health Officer advised that the proposal is considered acceptable in terms of Soil Contamination. The proposal complies with Clause 39. Clause 39A – Bushfire Protection A small portion of the northeast part of the site is mapped as bushfire prone land vegetation buffer 30m and 100m. A Bushfire Report has been prepared and included with the application. The application was referred to the NSW Rural Fire Service in accordance with section 91 of the Environmental Planning and Assessment Act 1979. The NSW Rural Fire Service did not object to the proposal and issued a bush fire safety authority without any specific conditions. The proposal is considered compliant with Clause 39A. Clause 47 – Advertising Signs The proposal includes one wall sign will be attached to the east elevation of the 22 Bay Storage Shed. The sign will be 1.5m x 4m (6m2) in area. The signs are not illuminated and do not lead to visual clutter through the proliferation of signs. The proposal is considered compliant with Clause 47.


Clause 54 – Tree Protection Order The site is mapped as subject to the Tree Protection Order 2011 – Koala Habitat Study. The proposal does not require the removal of trees. The proposal complies with Clause 54. State Environmental Planning Policies SEPP (North Coast Regional Environmental Plan) 1988 The provisions of the NCREP apply to the proposal. Clause 15 - Wetlands or Fishery Habitats Clause 15 - Wetlands or Fishery Habitats states the following:

“The council shall not consent to an application to carry out development for any purpose within, adjoining or upstream of a river or stream, coastal or inland wetland or fishery habitat area or within the drainage catchment of a river or stream, coastal or inland wetland or fishery habitat area unless it has considered the following matters: (a) the need to maintain or improve the quality or quantity of flows of water

to the wetland or habitat, (b) the need to conserve the existing amateur and commercial fisheries, (c) any loss of habitat which will or is likely to be caused by the carrying out

of the development, (d) whether an adequate public foreshore reserve is available and whether

there is adequate public access to that reserve, (e) whether the development would result in pollution of the wetland or

estuary and any measures to eliminate pollution, (f) the proximity of aquatic reserves dedicated under the Fisheries

Management Act 1994 and the effect the development will have on these reserves,

(g) whether the watercourse is an area of protected land as defined in section 21AB of the Soil Conservation Act 1938 and any measures to prevent soil erosion, and

(h) the need to ensure that native vegetation surrounding the wetland or fishery habitat area is conserved, and

(i) the recommendations of any environmental audit or water quality study prepared by the Department of Water Resources or the Environment Protection Authority and relating to the river, stream, wetland, area or catchment."

The proposal is considered not to impact upon the adjoining Tweed River. Water quality will be maintained as detailed within the submitted Stormwater Management Plan, which is considered acceptable by Council’s Planning and Infrastructure Engineer. The proposal complies with Clause 15.


Clause 32B - Coastal Lands Clause 32B - Coastal Lands states the following:

“(1) This clause applies to land within the region to which the NSW Coastal Policy 1997 applies.

(2) In determining an application for consent to carry out development on such land, the council must take into account: (a) the NSW Coastal Policy 1997, (b) the Coastline Management Manual, and (c) the North Coast: Design Guidelines.

(3) The council must not consent to the carrying out of development which would impede public access to the foreshore.

(4) The council must not consent to the carrying out of development: (a) on urban land at Tweed Heads, Kingscliff, Byron Bay, Ballina,

Coffs Harbour or Port Macquarie, if carrying out the development would result in beaches or adjacent open space being overshadowed before 3pm midwinter (standard time) or 6.30pm midsummer (daylight saving time), or

(b) elsewhere in the region, if carrying out the development would result in beaches or waterfront open space being overshadowed before 3pm midwinter (standard time) or 7pm midsummer (daylight saving time).”

The site is located within the area, which the NSW Coastal Policy 1997 applies. The proposal is not located on the coastal foreshore or on waterfront open space as such, will not impede access or create overshadowing of beaches or adjacent open space. The proposal does not negate the NSW Coastal Policy 1997, the Coastline Management Manual, and the North Coast: Design Guidelines. Clause 43: Residential development The proposed density is considered to be a reasonable response to the land use character of the area and is not considered to result in the creation of any adverse physical impacts upon the locality. The existing roads widths are not excessive for the function of the proposal and a detailed sedimentation and erosion control plan will be enforced in relation to the construction. Clause 47 Principles for Commercial and Industrial Development The proposal occurs within the 3 (d) Waterfront Enterprise zone, all-relevant services are available to the site with the subject site being adequately located within the existing local and regional road networks. The proposal is therefore considered to comply with the objectives of Clause 47 of the NCREP. Clause 81: Development adjacent to the ocean or a waterway (1) The council shall not consent to a development application for development

on land within 100 metres of the ocean or any substantial waterway unless it is satisfied that: (a) there is a sufficient foreshore open space which is accessible and open

to the public within the vicinity of the proposed development,


(b) buildings to be erected as part of the development will not detract from the amenity of the waterway, and

(c) the development is consistent with the principles of any foreshore management plan applying to the area.

(2) Nothing in subclause (1) affects privately owned rural land where the development is for the purpose of agriculture.

Sufficient foreshore open space is available within the locality. Council has recently completed an upgrade and expansion of park facilities along this section of the Tweed River. The proposal has no impact on these foreshore open space areas. The proposal will not adversely impact on the existing visual amenity. The proposed structures are single storey sheds and two storey dwelling houses. The proposal complies with Clause 81. SEPP No. 64 – Advertising and Signage The proposal includes a single wall sign to be attached to the east elevation of the 22 Bay Storage Shed. The sign will be 6m2 in area and the sign will not be illuminated. With regards to Clause 10 of the SEPP, the 3(d) Waterfront Enterprise zone is considered a ‘mixed residential and business or similar zone’. In this regard commercial uses including boat storage facilities are permissible within the 3(d) zone. As such the display of advertisements is not prohibited on the site. The proposed signage is considered compatible with the existing amenity and visual character of the area, with the sign providing clear business identification in a suitable location. Schedule 1 Assessment criteria


Criteria Response

1 Character of the area

- Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located? - Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

The proposed signage is 6m2 in size and is contained on the building structure setback approximately 6m from the front property boundary which will not block, obstruct or detract from the principal view of aspect from any adjoining residential properties or impact the desired character of the area. Chinderah Bay Drive consists of mix of land uses and advertising signage. The proposed signage is considered minor in size and scale and consistent with the character of the area.



Criteria Response

2 Special areas - Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?

The proposed signage is considered minor in size and scale which is contained on the building structure setback approximately 6m from the front property boundary. The proposed signage will not impact on special areas, such as the adjoining waterway as the sign will not be visible from the waterway.

3 Views and vistas

- Does the proposal obscure or compromise important views? - Does the proposal dominate the skyline and reduce the quality of vistas? - Does the proposal respect the viewing rights of other advertisers?

The proposed signage is considered minor in size and scale which is contained on the building structure setback approximately 6m from the front property boundary. The proposed signage will not impact on views and vistas.

4 Streetscape, setting or landscape

- Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape? - Does the proposal contribute to the visual interest of the streetscape, setting or landscape? - Does the proposal reduce clutter by rationalising and simplifying existing advertising? - Does the proposal screen unsightliness? - Does the proposal protrude above buildings, structures or tree canopies in the area or locality? - Does the proposal require ongoing vegetation management?

The proposed signage will not impact on the streetscape or landscape, in terms of visual clutter and does not protrude above buildings.



Criteria Response

5 Site and building

- Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located? - Does the proposal respect important features of the site or building, or both? - Does the proposal show innovation and imagination in its relationship to the site or building, or both?

The proposed signage is 6m2 in size which is contained on the building structure setback approximately 6m from the front property boundary. The sign is consistent in terms of scale in relation to the building and does not impact on important features of the site or building.

6 Associated devices and logos with advertisements and advertising structures

- Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

Not Applicable.

7 Illumination - Would illumination result in unacceptable glare? - Would illumination affect safety for pedestrians, vehicles or aircraft? - Would illumination detract from the amenity of any residence or other form of accommodation? - Can the intensity of the illumination be adjusted, if necessary? - Is the illumination subject to a curfew?

Illumination is not proposed.

8 Safety - Would the proposal reduce the safety for any public road? - Would the proposal reduce the safety for pedestrians or bicyclists? - Would the proposal reduce the safety for pedestrians, particularly children, by obscuring

No sign inhibits the passage of vehicles or pedestrians as they are contained wholly on private property, on the wall of the building.



Criteria Response

sightlines from public areas?

The proposal is considered compliant with the relevant clauses of SEPP 64. SEPP No. 71 – Coastal Protection The provisions of SEPP 71 apply as the site is located within the coastal zone. Having regard to the matters contained within the SEPP the following comments are made:

• The site is landward of the identified coastal erosion zones and will not be affected by coastal erosion processes;

• The proposed development will not overshadow foreshore open space;

• The proposed development will not affect public access to the beach or foreshore areas;

• The proposed development will not impact upon marine habitats;

• The proposed development will not impact upon threatened species of flora or fauna as listed under the Threatened Species Conservation Act 1995;

• The site is suitable serviced with water, sewer, and stormwater infrastructure.

It is considered the proposed development is consistent with the provisions of the SEPP including but not limited to Clause 8.

(a) (ii) The Provisions of any Draft Environmental Planning Instruments Draft LEP 2012 The site is proposed to be zoned B4 - Mixed Use with the proposal being defined as ‘Marina’, and ‘Residential accommodation’ under the DTLEP 2012. The use of ‘Marina’ and ‘Residential accommodation’ is prohibited in the B4 Mixed Use Zone. The Draft LEP 2012 defines a ‘Marina’ as:

“marina means a permanent boat storage facility (whether located wholly on land, wholly on a waterway or partly on land and partly on a waterway), and includes any of the following associated facilities:

(a) any facility for the construction, repair, maintenance, storage, sale or hire of boats,

(b) any facility for providing fuelling, sewage pump-out or other services for boats,


(c) any facility for launching or landing boats, such as slipways or hoists,

(d) any car parking or commercial, tourist or recreational or club facility that is ancillary to the boat storage facility,

(e) any berthing or mooring facilities.”

The Draft LEP 2012 defines a ‘Residential accommodation’ as: residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers’ dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, but does not include tourist and visitor accommodation or caravan parks.

The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other

development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.”

The applicant provided the following comments in regards to the Draft LEP 2012 in the statement of environmental effects, which is provided below.

“1 Objectives of zone • To provide a mixture of compatible land uses.

Chinderah includes a wide range of varying uses and despite the technical change in the definition the proposed recreational boat storage component remains a compatible land use in the locality. It is unclear what has prompted the zoning change in the preparation of the DTLEP 2012 as the B4 Mixed Use Zone does not appear to be an ‘equivalent zone’ to that of 3(d) Waterfront Enterprise. The proposal is ideally located adjacent to existing water front and recreation facilities within the locality and will complement what has been Councils long term vision for this area of Chinderah. Further as a measure of comfort the capital investment of boat storage component is relatively low


and as such would not be an impediment to future development of the site for alternative uses. Removal of the storage space covers and building can be undertaken easily.


The subject site is located on a well serviced public transport route and the establishment of the boat storage component will not impact upon this objective. The locality currently provides for the integration of suitable business and residential uses. The construction of boat storage facility and dwelling houses upon the site complies with this objective.

DTLEP 2012 Zoning

Further to the above it is noted Clause 1.8A of the DTLEP 2012 provides that developments which are lodged prior to commencement of the plan and which may not be determined before its adoption is to be determined as though the plan had been exhibited but not made. The proposed uses are permitted under the Tweed Local Environmental Plan 2000 and the sites location is such that it does not compromise the objectives of the B4 zone. The proposal is appropriate given the sites location. Council can and should issue consent for the development.”

It is considered that the approval of the proposed development is appropriate in this instance. Despite the prohibition, the development is considered to accord with the objectives of the B4 zone which are as follows:

• To provide a mixture of compatible land uses.



Approval is recommended based on consistency between the proposed development and the objectives of the zone.

(a) (iii) Development Control Plan (DCP) Tweed Development Control Plan A1-Residential and Tourist Development Code The proposal includes two dwelling houses one on each allotment. Each dwelling is considered to be consistent with the provisions of Section A1 applying to residential development. However the following variations are proposed and considered acceptable in the specific instance. Control C1. The minimum setback from the street and rear boundary for a dwelling is to

comply with Table 3 - Front and Rear Setbacks in DCP A1 - Part A (page 38).

Comment The minimum required rear setback for both dwellings is 15m. Both dwellings are proposed to be setback 1.5m from the rear property boundary. An assessment against each objective is provided below. Objectives 01 To establish the desired spatial framing of the street, define the street edge

and enable transition between public and private space. The proposed rear setback variation has no impact upon the spatial framing of the street or definition of the street edge. In terms of the transition between public and private space the adjoining lands to the rear are CPA lands as shown on DP1130032 and are not public land. The rear setback variation does not prevent a transition between public and private space. The proposal complies with this objective. 02 To provide flexibility for steeply sloping and corner allotments to best

address streetscape, solar orientation and location for outdoor amenity areas and access points.

This objective does not relate to the site. The site is flat and not a corner allotment. The proposal does not impact upon this objective. 03 To provide appropriate separation between dwellings for sunlight access,

ventilation, visual and acoustic privacy and access to the rear of the allotment.

There are no dwellings adjoining the rear of the site. The site fronts CPA land and the river, no dwelling houses will be built in this area. The proposed rear setback variation does not impact the adequate provision of sunlight access and visual and acoustic privacy for any adjoining buildings. Rear access to the site is maintained via the dwellings design with the houses being elevated and not enclosed under. The proposal complies with this objective.


04 To minimise overlooking and overshadowing to the site and of adjoining allotments.

There are no dwellings adjoining the rear of the site. The site fronts CPA land and the river, no dwelling houses will be built in this area. The proposed rear setback variation does not increase overlooking or overshadowing, further the provision of a compliant rear setback would place the proposed dwellings closer to existing dwellings on the adjoining allotments. The proposal complies with this objective. 05 To facilitate a landscape setting for residential buildings and retention of the

rear yard landscaping zone. The proposed design provides significant areas of landscaping onsite including between the rear of the proposed dwellings and the old mean high water mark. The proposal complies with this objective. 06 To maintain views and vistas along canal frontages. This objective does not relate to the site. The site does not front a canal. The proposal does not impact upon this objective. The proposed variation is considered acceptable in this instance. A2-Site Access and Parking Code Car Parking A total of six car parking spaces are provided as part of the proposal. This figure excludes the boat storage bays and delivery bay. The following table breaks down the car parking required and provided. The proposal provides car parking in accordance with Section A2.


required Proposed

Dwelling House

1 space per dwelling plus provision for

driveway parking of another vehicle

2 dwellings

4 4

Boat Storage

No Specific Rate nominated

- - 2

Total Required 4 4

Total Proposed 6

With regards to car parking required for the boat storage facility component, Section A2 does not include a specific parking rate. In this regard the facility is setup such that customers will collect and return their boats before and after use. The site is not designed or equipped to allow customers to stay onsite for extended periods. However, to ensure the odd occasion where a customer stays onsite for an extended period two dedicated parking spaces are provided. The proposed car parking is considered adequate to service parking demand.


Service Vehicle & Loading/Unloading No specific service vehicle is specified for the proposed uses. All boats will be towed to and from the site by private vehicles or the operator’s own vehicle (car), no service vehicle access will be required. The proposal is complaint with the requirements of Section A2. A3-Development of Flood Liable Land The site is flood prone with a design flood level of RL 2.9m AHD, a minimum habitable floor level of RL 3.4m AHD and a PMF level of RL 7.3m AHD. The Westernmost fringes of the site are in the modelled high flow areas. Enclosure below design flood level will be restricted to a maximum of 50m2 for the residential component of the two dwellings (not applicable to the boat storage facility and the commercial premise (office)). The dwellings are two storeys in height, with the ground floor proposed to be open (not enclosed) for the dwelling on proposed Lot 22, therefore complying. The dwelling on proposed Lot 23 proposes a commercial premise (office) of 62.4m2 on the ground floor. This is permitted as the commercial premise is less than 50% of the site. The development proposes filling of the site to be 2.2mAHD with the habitable floor level of the dwellings to be at 4.5mAHD. Council’s Planning and Infrastructure Engineer advised that the proposal is consistent with Council’s flooding policy and that the proposal is acceptable in terms of flooding. The proposal is compliant with the requirements of Section A3. A4-Advertising Signs Code The proposal includes a single business identification wall sign. The wall sign will be attached to the east elevation (fronting Chinderah Bay Drive) of the 22 Bay (southern) storage shed. The sign will be 6m2 in area and will not be illuminated. The proposed signage is considered consistent with the code. A5-Subdivision Manual Council’s Development Engineer advised that the proposal is consistent with Council’s subdivision policy. A11-Public Notification of Development Proposals The application was advertised for a period of 30 days from Wednesday 25 October 2013 to Monday 28 October 2013. During the advertised period Council received one submission objecting to the proposal, which is addressed later within this report. A13-Socio-Economic Impact Assessment Section A13.5.1 illustrates the types of proposals which require the preparation of a Social Impact Assessment (SIA). The proposal does not exceed the threshold trigger for the preparation of a Social Impact Assessment (SIA), therefore a SIA is not required. A15-Waste Minimisation and Management The proposal is to be serviced via two x 140lt wheelie bins and four x 240lt wheelie bins for refuse, four x 240lt wheelie bins for recycling and two x 240lt wheelie bins for green waste. The bins are located as shown on the site plan. Onsite waste management will be undertaken by staff. The bins will be serviced


onsite by Solo Waste with adequate access available. The proposal is considered compliant with Section A15. The application was assessed by Council’s Waste Management Unit. No objections were raised subject to recommended conditions.

(a) (iv) Any Matters Prescribed by the Regulations Clause 92(a) Government Coastal Policy The site is covered by the Government Coast Policy (The NSW Coastal Policy 1997). It is considered that the proposal would be consistent with the provisions of the NSW Coastal Policy 1997. Clause 92(b) Applications for demolition Demolition of an existing shed is proposed as part of this application. Appropriate conditions have been recommended to ensure all building works are to comply with Clause 92(b). Clause 93 Fire Safety Considerations Council’s Building Services Unit advised that the proposal satisfies the requirements of Clause 93. Appropriate conditions have been recommended to ensure all building works are to comply with Clause 93. Clause 94 Buildings to be upgraded Council’s Building Services Unit advised that the proposal satisfies the requirements of Clause 94. Appropriate conditions have been recommended to ensure all building works are to comply with Clause 94.

(a) (v) Any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), Tweed Shire Coastline Management Plan 2005 Not applicable to the development proposal. Tweed Coast Estuaries Management Plan 2004 Not applicable to the development proposal. Coastal Zone Management Plan for Cobaki and Terranora Broadwater (adopted by Council at the 15 February 2011 meeting) Not applicable to the development proposal.

(b) The likely impacts of the development and the environmental impacts on both the natural and built environments and social and economic impacts in the locality The proposed development is considered not to create significant impacts on the natural and built environments or significant social or economical impacts on the locality. Context and Setting The site and surrounding land is zoned 3(d) Waterfront Enterprise, with a mixture of land uses within the locality. The site is surrounded by residential dwellings to the immediate north and south. Commercial developments such as a caravan park, restaurant and café and bottle shop are located further to the north and south. A petrol station, commercial boat hire, sports centre, storage facility for marine craft, self storage facility is located to the east.




Stormwater The applicant proposes to pipe roof water from the dwellings to infiltration pits with overflows to the Tweed River. The boat storage facility has pervious paving and is also piped to an infiltration pit with overflows to the existing swale in Chinderah Bay Drive road reserve. No onsite detention is proposed, however, the infiltration pits will provide some informal detention. Council’s Planning and Infrastructure Engineer reviewed the Engineering Report, no objections were raised. Conditions relating to stormwater are recommended if the application were to be approved. The proposal is acceptable in terms of stormwater drainage. Erosion and Sediment Control The proposed erosion and sediment control plan is acceptable provided the sediment fence at the rear of the lots has an additional return along the Northern boundary of Proposed Lot 23. Site survey indicates the land slopes this way somewhat and runoff is likely to flow off the site. Council’s Development Engineer reviewed the application, no objections were raised. Conditions relating to erosion and sediment control are recommended if the application were to be approved. Noise/Amenity An Environmental Noise Impact Report has been submitted with the application which recommended the following acoustic treatments:

• Hours of operation be limited to the daytime period between 7am and 6pm, 7 days per week.

• The wash bay should be enclosed with solid walls along the northern, western and eastern perimeters of the bay and a solid roof over the bay as detailed in Sketch 1 in Appendix A of this report. Walls should be constructed to achieve a minimum surface mass of 11 kg/m2 (i.e. 9mm FC sheeting or masonry).

• The roof of the wash bay enclosure should have an absorptive ceiling lining with a minimum Noise Reduction Coefficient (NRC) rating of 0.8 (i.e. a minimum 50mm thick, 22kg/m2 fibreglass batts) as detailed in Sketch 1 in Appendix A of this report. Ceiling absorption batts may have a perforated foil facing having an open space area of no less than 12 % (this will protect the batts from damage).

• There should be no gaps or holes between the connection with the wash bay enclosure and the adjacent storage shed (i.e. no gaps or holes at the connecting walls or rooves).

• There should be no gaps or holes between the roof and the walls, between the ground and the walls and along the walls themselves (with the exception of the proposed roller door entries) at wash bay enclosure and the two boat storage sheds.

• The recycling (bottle) bins storage area should be located to the east of the proposed onsite sheds (i.e. between the sheds and the Chinderah Bay Drive road corridor) to maximum the separation distance between the offsite and future residential dwellings as detailed in Sketch 1 in Appendix A of this report.

• No boat repairs or maintenance be undertaken onsite.

• No high pressure water hoses are to be used onsite or at the wash bay.


• Engine flushing is to occur for a maximum period of 2 minutes (within any 15 minute period).

• Engines are to run at idle during engine flushing (i.e. no revving of engine).

• Staff should minimise metal impacts when hitching/unhitching trailers.

• Driveway hardstand areas be finished with surface coatings which prevent tyre squeal (an uncoated surface is acceptable).

• Drainage grating over trafficable areas be well secured to prevent rattling.

It is important to note that refuse recycling bin storage area has been relocated to the eastern side of the storage sheds adjacent to Chinderah Bay Drive and the wash bay is located adjacent to the northern storage bay and constructed of sound reduction material. The maximum number of engines to be flushed per day is four. Engines shall operate at idle only and only for a maximum period of 2 mins. Council’s Environmental Health Officer has assessed the Environmental Noise Impact Report, and recommended appropriate conditions of consent. Lighting Conditions relating to lighting are recommended if the application were to be approved. Demolition The Preliminary Site Investigation Report has been submitted with the application that states the existing the garage/storage shed is constructed of materials which includes bonded asbestos and advises. The report recommends:

“The material is to be managed in accordance with Workcover NSW requirements and the approved Waste Management plan. The volumes need to be assessed and if >10m2 a licensed contractor would be required to remove this material during the demolition."

Council’s Environmental Officer has assessed the Preliminary Site Investigation Report, and recommended appropriate conditions of consent to ensure the adequate handling and removal of asbestos material. Liquid Trade Waste The application states the boats will be washed by hand with bucket and brush and flushing of motors will also be undertaken within the area. No maintenance of boats is proposed on the site. Conditions to ensure discharge of wastewater to sewerage is required and no maintenance of equipment is permitted are recommended if the application were to be approved. Landscaping A landscape concept plan was submitted with the application that is considered generally acceptable, however, further landscape detail is required particularly in relation to the streetscape in front of the boat storage sheds adjacent to Chinderah Bay Drive. A condition relating to further landscaping detail is recommended if the application were to be approved.


Section 64 and Section 94 contributions The development has been assessed in accordance with Council Section 64 and Section 94 contributions plans. Council’s Water Unit provided advice regarding charges to water and sewer. There are additional charges to contribution plan number 18 due to the additional storage sheds and commercial office. Council’s Traffic Engineer provided advice regarding trips to be levied.

(c) Suitability of the site for the development The site is considered suitable for the proposed development.

(d) Any submissions made in accordance with the Act or Regulations Public Submissions Comment During the advertised period Council received one submission objecting to the proposal. The table below list the issues and comment in relating to the issue.

Issue Comment 3 metre easement located between Lot 21 and Lot 22.

The easement is located on the objectors property Lot 21 and does not affect the proposal.

Noise from vehicles and boats impacting on amenity.

Council’s Environmental Health Officer has assessed the Environmental Noise Impact Report, and recommended appropriate conditions of consent.

Flooding. Council’s Planning and Infrastructure Engineer advised that the proposal is consistent with Council’s flooding policy and that the proposal is acceptable in terms of flooding.

The applicant provided the following response to the subject submission. “The objection is obviously from a joint owner of 11 Chinderah Bay Drive, Chinderah. The owners of 11 Chinderah Bay Drive have not lived on the property for approximately 5 years and the property has been for sale during this time. The Owners have obviously sought a sale price that the market did not support and it is considered that the current objection to DA13/0502 is more financially motivated than for concerns of amenity. Their property is currently leased to a tenant that has several trucks and items of earth moving equipment stored on site (see photo 1 & photo 2 below) and this does not support the claim of “residential” priority use for the area. The Owners of 11 Chinderah Bay Drive have in fact always promoted their property as being suitable for Development, including “Boating Facilities” whilst for sale over the last 5-7 years.


Photo 1

Photo 2

I make the following specific comments

Easement

• The proposed development does not impinge on the mentioned easement. The 1952 Subdivision Plan shows a “proposed drainage easement, 12 foot wide”, on the complainant’s property lot 21, not lot 22 the property subject to DA13/0502, however this easement was not required or registered, (see attachment A for surveyor’s letter).

Noise and privacy

• Detail provided with DA13/0502 provides the “considered” level of usage based on significant research and this is maintained to be accurate.

• The plans submitted with DA13/0502 clearly show the position of the wash bay, which is not adjacent to the boundary of 11 Chinderah Bay Drive, and the noise levels have been assessed and are considered in DA13/0502. The statement “This will impact our privacy immensely” seems to be an emotive based comment without basis. The wash bay is


approximately 30 meters from the ”back veranda” which is screened by mature growth palm trees, located on the complainant’s property. It is the owners of 11 Chinderah Bay Drive that will decide whether they will keep these trees in-situ. The existing palms provide a screen along the whole of the northern side of the complainant’s house, (see photo 3 below).

Photo 3

• The complainant’s bed rooms location is not considered relevant given the type of development proposed and the obvious hours of operation, however there are no bedrooms on the northern boundary of the residence at 11 Chinderah Bay Drive that face out over the proposed development, rather a main bathroom, stair well, study, built in robes and ensuite.

• The business viability of the proposed development discussed by the complainant is irrelevant and is not dependent on the number of people visiting the premises on a daily basis. Storage fees will be paid regardless of the clients usage.

Floodwaters • The development is in a majority of Low Flow flood area, and the impact

of this has been considered within DA13/0502. The 2 photos shown lodged with the complainant’s submission were in fact taken at a time when their property was minimally affected by flood water, (see photo 4 below). One of the photos submitted by the complainant is not of 11 Chinderah Bay Drive at all. The complainant’s property has been filled and is elevated above the development site.


Residential references

• The complainant’s reference that they do not consider this as an appropriate development for this site is facetious. Refer attachment B for a copy of the complainant’s advertisement of 2007 when the property at 11 Chinderah Bay Drive was offered for sale. The advertisement clearly promotes their property as being suitable for Development including reference to Boating Facilities, which are allowable under the current LEP zoning. The current complainant was in fact an owner at the time of that advertisement.”

The applicant’s response to the submission is considered valid, with recommended conditions of consent considered suitable to mitigate potential impacts. Public Authority Submissions Comment The application was referred to the Department of Primary Industries Office of Water for works requiring a controlled activity approval under the Water Management Act 2000. The Office of Water advised that the proposal is exempt and therefore a controlled activity approval is not required. The application was referred to the NSW Rural Fire Service in accordance with section 91 of the Environmental Planning and Assessment Act 1979. The NSW Rural Fire Service did not object to the proposal and issued a bush fire safety authority without any specific conditions.

(e) Public interest It is considered that the approval of the application would not raise any implications in relation to the public interest.


OPTIONS: 1. Approve the application with conditions of approval in accordance with the

recommendation of approval; or 2. Refuse the application and provide reasons for refusal. The Council officers recommend Option 1. CONCLUSION: The proposed is permissible with consent under Tweed LEP 2000, consistent with relevant environmental planning instruments, and Council policy requirements. The proposal is considered suitable and appropriate for the subject site, and considered not to create a significant adverse impact on the natural or built environments or have detrimental social or economical impact on the locality. COUNCIL IMPLICATIONS: a. Policy: Corporate Policy Not Applicable. b. Budget/Long Term Financial Plan: Not Applicable. c. Legal: The applicant if dissatisfied with the determination may seek to lodge an appeal against a Council determination in the NSW Land and Environmental Court. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Nil.


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11 [PR-PC] Class 1 Appeal in Relation to Development Application DA13/0397 for an Extension to Existing Car Park at Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff; Lot 100 DP 1071633 No. 24-26 Pearl Street, Kingscliff




SUMMARY OF REPORT:

At its meeting on 21 November 2013, Council refused Development Application DA13/0397 for an extension to existing car park at Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff and Lot 100 DP 1071633 No. 24-26 Pearl Street, Kingscliff. Council has been served notice of a Class 1 Appeal against Council’s determination in the NSW Land and Environment Court. A telephone directions hearing has been set down for Monday 10 March 2014 and it is requested that Council’s position on defending the Appeal be determined to enable engagement of solicitors and consultants. RECOMMENDATION:

That in respect of its decision to refuse DA13/0397 for an extension to existing car park at Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff and Lot 100 DP 1071633 No. 24-26 Pearl Street, Kingscliff, Council determines its preferred option in regards to the appeal.


REPORT:

The proposed development (DA13/0397) is for an extension to existing car park at Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff and Lot 100 DP 1071633 No. 24-26 Pearl Street, Kingscliff. The proposal covers a total area of approximately 410m2 and would result in an additional 25 spaces being provided to serve Kingscliff Shopping Centre. The development is to be undertaken on school land. The development area is grassed and used as open play area for the school. The Development Application was lodged over two allotments as identified above. The proposed car park is to be developed on Lot 2 DP 1059784 which is a rectangular lot and covers a total area of approximately 0.53ha with road frontage to Pearl Street. This allotment is presently developed with a residential property/church administration building to the roadside (northern) boundary and a 50 space car park (approved under DA11/0085) which covers approximately 1,390m2 associated with and accessed from Kingscliff Shopping Centre to the north-west. The remainder of this allotment is grassed and forms part of an open area which, in addition to two other allotments to the south east, comprises of St Anthony’s Catholic Primary School and a Church. This allotment has a dual zoning, being 3(b) General Business and 5(a) Special Uses- School. The proposed development would be located over both zones. Lot 100 DP 1071633 covers a total area of approximately 1.8ha and is developed with the Kingscliff Shopping Centre building, associated car parking and a service station. No development works are proposed to this site, however the proposed car park development would be associated with the shopping centre on this site and accessed from this site. The development application was notified to surrounding properties for a period of 14 days, during which time approximately 25 submissions were received, objecting to the proposal. Subsequent to the public exhibition period petitions objecting to the development were presented to elected Councillors totalling over 400 signatories. Council officers submitted a report to Council’s meeting of 21 November 2013 recommending approval of DA13/0397, subject to conditions. At this meeting Council resolved to refuse the application based on the following reasons: 1. Pursuant to Section 5 Objects of the Environmental Planning and Assessment Act

1979 (as amended), the proposed development cannot be determined to satisfy subsection (a)(i), promoting the social and economic welfare of the community. The impact of the proposed development on Kingscliff, in particular the school community of St Anthony's Primary School, Kingscliff, of the substantial reduction in playing fields and green areas has not been adequately justified.

2. Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act 1979 (as amended) the proposed development has not demonstrated acceptable impacts on the built environment. The development is considered to have a negative impact on the amenity of St Anthony's Primary School, Kingscliff particularly arising from the substantial reduction in playing fields and green areas for student use.

3. Pursuant to Section 79C(1)(e) of the Environmental Planning and Assessment Act 1979 (as amended) the proposed development is contrary to the public interest. The development is considered to be contrary to the public interest through the substantial reduction in St Anthony's Primary School playing fields and green areas for student areas which will reduce the opportunity for the student body to engage in physical activity, engage in health promoting activities arising from physical activity,


and poses a significant risk for increasing obesity in the student body of St Anthony's Primary School Kingscliff.

OPTIONS: 1. That Council in respect of its decision to refuse DA13/0397 for an extension to existing

car park at Lot 2 DP 1059784 No. 16 Pearl Street, Kingscliff and Lot 100 DP 1071633 No. 24-26 Pearl Street, Kingscliff engages its solicitors to negotiate Consent Orders for an extension to existing car park; or

2. Defend the Appeal. Option 1 is preferred. COUNCIL IMPLICATIONS: a. Policy: Corporate Policy Not Applicable. b. Budget/Long Term Financial Plan: Not Applicable. c. Legal: Council will be required to engage legal representation regarding the Appeal. As Council staff recommended approval for the application it will also be necessary to engage a planning consultant to be an expert witness on behalf of Council if it is resolved to defend the Appeal. Considerable legal costs will be incurred as a result of the Appeal. d. Communication/Engagement: Not Applicable. UNDER SEPARATE COVER/FURTHER INFORMATION:

Nil.


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CONFIDENTIAL ITEMS FOR CONSIDERATION

Nil


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final planning committee agenda - 6 march 2014€¦ · thursday 6 march 2014 . held at murwillumbah...

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