REPORTS BY DEPARTMENT REQUIRING …In April 2014, development consent 18/2014 was granted to change...

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Ordinary Meeting of the Council of the Shire of Dungog, to be held Tuesday 17 May 2016 commencing at 6.00pm.

PLANNING DEPARTMENT MANAGERS REPORT

Jenny Webb 1. DEVELOPMENT APPLICATION 17/2016 – LOT 83 DP 880111, NO. 583

WALLARINGA ROAD, WALLARINGADA17/2016

Development Application No. 17/2016

Owner: Kuarka Pty Ltd

Applicant: Hill Top Planners Pty Ltd

Land: Lot 83 DP 880111, No 583 Wallaringa Road, Wallaringa

Current Zone: RU1 – Primary Production

Area: 266.94 ha

Proposal: Construction of a new dwelling house and a change of use from the existing dwelling house to a rural workers dwelling

Issue: Justification for Rural Workers Dwelling

Precis:

The following report considers Development Application No 17/2016, which seeks development consent for the construction of a new dwelling house and to change the use of an existing dwelling house to a rural workers dwelling at No 583 Wallaringa Road, Wallaringa.

Council officers have undertaken a thorough assessment of the development application in accordance with the provisions of the Environmental Planning and Assessment Act, 1979 (EP&A Act) and recommend that Council refuse the development application on the basis that the proposal fails to satisfy the requirements for a rural workers dwelling as set out in clause 6.7 of Dungog Local Environmental Plan 2014.

SUBJECT SITE

The subject property is approximately 266.94 hectares in area, comprising a single, irregular shaped parcel of land ranging from moderate to steep sloping grazing land. The site is zoned RU1 Primary Production pursuant to Dungog Local Environmental Plan 2014. The application states that the land is currently used for cattle grazing and contains one dwelling with associated outbuildings. Vehicular access to the site is from Wallaringa Road and Cox’s Creek Road, which are both Council maintained public roads. A number of watercourses occur on the site and the site is also mapped as bushfire prone land. Native vegetation remains along the more dominant creek lines and on the steeper ridgelines, although the majority of the land has been previously cleared.

The site is not serviced by reticulated water or sewerage systems, although does benefit from electricity and telecommunication services.

A locality plan is provided in Figure 1 below and an aerial photograph in Figure 2.

REPORTS BY DEPARTMENT REQUIRING RESOLUTION BY COUNCIL

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Figure 1: Locality Plan

Figure 2: Aerial Photograph of site PROPOSAL The subject development application seeks consent for the construction of a new dwelling house as well as to change the use of the existing dwelling house to a rural workers dwelling to provide accommodation for a farm manager, who would be employed by the owner of the site. The proposed dwelling comprises a modern single storey, four bedroom dwelling with indoor and outdoor living areas and a double carport. External finishes predominantly comprise vertical Victorian Ash batten and board cladding with zincalume custom orb roof and wall cladding.

Existing Dwelling (Proposed Rural Workers Dwelling)

Proposed Dwelling

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The existing dwelling comprises a two storey green metal clad structure with two bedrooms and living room.

Figure 3: North elevation of proposed dwelling

A copy of the plans is attached at Annexure ‘A’ (B:25). BACKGROUND The subject site was purchased by the current owner in December 2011. At that time, the site contained a shed, which had been modified so as to be capable of being occupied as a dwelling. In April 2014, development consent 18/2014 was granted to change the use from a shed to a dwelling and to undertake alterations and additions to the dwelling, including adding a second storey, containing a bathroom and two bedrooms. In April 2015, a development application was lodged with Council for the construction of a new dwelling on the site, which was proposed to be used as a rural workers dwelling, with the existing dwelling to remain. During the assessment of the application, Council requested confirmation of the nature of the existing land use of the site as defined by Dungog LEP 2014 as well as requesting financial records to demonstrate the economic capacity to support the ongoing employment of rural workers. The applicant submitted further information, although this was deemed to contain insufficient detail for Council to be satisfied that the proposed rural workers dwelling was bona fide. Council was also of the view that the proposed dwelling presented more as a dwelling to be occupied by the owners rather than farm workers. The applicant was subsequently requested to provide additional information. As an alternative, it was suggested to the applicant, that development consent for a dual occupancy could be sought pursuant to Dungog LEP 2014, although this would require the two dwellings to be located within 100 metres of each other. A further alternative was to explore the possibility of subdividing the land, which would afford an additional dwelling entitlement on a vacant portion of the land as long as it was over 60 hectares pursuant to clause 4.2A of Dungog LEP 2014. In October 2015, the development application was withdrawn. In December 2015 a new development application was lodged with Council to change the use of the existing dwelling on the site to a rural workers dwelling. The applicant was advised that by definition a rural workers dwelling is secondary to the primary dwelling on the site and as there was no other dwelling on the property, the proposal did not meet the definition. The applicant was subsequently asked to withdraw the development application. In February 2016, the applicant and owner met with Council planning staff on site and advised that they would not be withdrawing the development application to change the use of the existing dwelling to a rural workers dwelling as they wished to pursue the development. In February 2016, the subject development application was lodged, which seeks consent for the construction of a new dwelling as well as a change of use of the existing dwelling to a rural workers dwelling.

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ANNEXURE ‘A’ TO ITEM NO. 1 – MANAGER PLANNING’S REPORT

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lbrighton.dunFile AttachmentMP 1 A.pdf

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The subject application has been accompanied by the following documentation:

Statement of Environmental Effects Plans of the existing dwelling house (proposed to be changed to a rural workers

dwelling) Plans for the proposed new dwelling house Bushfire Assessments for both the existing and proposed dwellings BASIX Certificate for proposed dwelling Operating Plan for ‘Old Wallaringa Farm’

STATUTORY CONSIDERATIONS The proposal has been assessed under the relevant matters for consideration detailed in Section 79C(1) of the Environmental Planning and Assessment Act (EP&A). The application has been assessed against the relevant heads of consideration (refer to Annexure ‘B’ (B:29)). The main considerations are addressed as follows: (a)(i) Provisions of any environmental planning instrument State Environmental Planning Policy (Rural Lands) 2008 This policy commenced on 9 May 2008 and aims to facilitate the orderly and economic use and development of rural lands for rural and related purposes. The policy identifies Rural Planning Principles and Rural Subdivision Principles so as to assist in the proper management, development and protection of rural lands for the purpose of promoting the social, economic and environmental welfare of the State. Clause 10 applies to land in a rural zone, a rural residential zone or an environment protection zone and sets out the matters to be taken into account in determining development applications for rural subdivisions or rural dwellings, as follows: SEPP Provisions Planners Comment a) the existing uses and approved uses of

land in the vicinity of the development,

b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

c) whether or not the development is likely

to be incompatible with a use referred to in paragraph (a) or (b),

d) if the land is not situated within a rural

residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone,

e) any measures proposed by the

applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d).

Existing and approved uses include extensive agriculture and associated dwelling houses. The proposed residential accommodation is unlikely to have a significant impact on land uses in the vicinity due to the type of agriculture currently occurring in the area and the setbacks of the residential accommodation to adjoining properties. The proposed residential accommodation is unlikely to be incompatible with existing or approved uses. There are no adjoining rural residential zones. No additional measures are considered necessary to mitigate impacts.

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ANNEXURE ‘B’ TO ITEM NO. 1 – MANAGER PLANNING’S REPORT

The following assessment is based on the matters listed for consideration under Section 79C(1) of the Environmental Planning and Assessment Act, 1979.

a) The provisions of:

(i) any environmental planning instrument;

State Environmental Planning Policy No. 44 – Koala Habitat Protection This policy aims to encourage the proper conservation and management of areas of natural vegetation that provide habitat for Koalas to ensure a permanent free-living population over their present range and reverse the current trend of Koala population decline:

a) by requiring the preparation of plans of management before development consent can be granted in relation to areas of corekoala habitat, and

b) by encouraging the identification ofareas of core koala habitat, and

c) by encouraging the inclusion ofareas of core koala habitat in environment protection zones.

Schedule 1 of the policy lists a number of local government areas in which this policy applies. Dungog LGA is included in the Schedule. Therefore the proposal constitutes a development to which SEPP 44 applies.

This SEPP applies to land that has an area of more than 1 hectare.

The subject site has an area of 266 hectares and contains native vegetation.

Before granting consent to an application to carry out development on land to which the policy applies, Council must satisfy itself whether or not the land is a potential or core Koala habitat.

‘Potential Koala habitat’ is defined as areas of native vegetation where the trees listed in schedule 2 of SEPP 44 ‘constitutes at least 15% of the total number of trees in the upper and lower strata of the tree component’. If the site is found to contain potential koala habitat, further investigation for the presence of ‘core Koala habitat’ should be undertaken and if this habitat is found to be present, a detailed Plan of Management should be prepared.

No trees are proposed to be removed as part of the proposed development.

State Environmental Planning Policy (Rural Lands) 2008 Clause 10 applies to land in a rural zone, a rural residential zone or an environmental protection zone and sets out the matters to be taken into account in determining development applications for rural subdivisions or rural dwellings, as follows:

a) the existing uses and approveduses of land in the vicinity of the development,

Existing and approved uses include extensive agriculture and associated dwelling houses.

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b) whether or not the development islikely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

c) whether or not the development islikely to be incompatible with a use referred to in paragraph (a) or (b),

d) if the land is not situated within arural residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone,

e) any measures proposed by theapplicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d).

The proposed residential accommodation is unlikely to have a significant impact on land uses in the vicinity due to the type of agriculture currently occurring in the area and the setbacks from the residential accommodation to adjoining properties.

The proposed residential accommodation is unlikely to be incompatible with existing or approved uses.

There are no adjoining rural residential zones.

No additional measures are considered necessary to mitigate impacts.

Dungog Local Environmental Plan 2014 1. The site is zoned RU1 – Primary

Production under Dungog LEP 2014.The proposal is defined as a dwelling house and Rural Workers Dwelling which are both permissible with consent in the RU1 zone.

2. Clause 2.3 - Zone objectives and LandUse TableThe objectives of the RU1 zone are:a) To encourage sustainable primary

industry production by maintainingand enhancing the naturalresource base.

b) To encourage diversity in primaryindustry enterprises and systemsappropriate for the area.

c) To minimise the fragmentation andalienation of resource lands.

d) To minimise conflict between landuses within this zone and landuses within adjoining zones.

Extensive agriculture currently occurs on the site. Approval of the application to permit a rural workers dwelling may enable the agricultural productivity to be improved, although this would be dependant on the future management and operations of the farming operations. Ideally, the dwellings would be grouped together on the site to reduce the impact on the agricultural land.

The growth of primary production is encouraged for the site, although the existing operations do not adequately demonstrate that a rural workers dwelling is necessary.

The site is considered large enough to sustain two dwellings, although ideally the dwelling and rural workers dwelling would be located closer together in order to reduce the impact on the agricultural land.

The proposed development is unlikely to create any land use conflict.

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e) To provide for recreational and tourist activities that are compatible with the agricultural, environmental and conservation value of the land.

f) To promote the rural amenity and scenic landscape values of the area and prevent the silhouetting of unsympathetic development on ridgelines.

N/A

The proposed single storey dwelling is unlikely to detrimentally impact the rural amenity or scenic landscape. The proposed dwelling site would not create silhouetting on the ridgeline.

3. Clause 4.2A - Erection of dwelling houses and dual occupancies on land in certain rural and environment protection zones (1) The objectives of this clause are as follows: (a) to minimise unplanned rural residential development, (b) to enable the replacement of lawfully erected dwelling houses and dual occupancies in rural and environment protection zones. (2) This clause applies to land in the following zones: (a) Zone RU1 Primary Production, (b) Zone E3 Environmental Management, (c) Zone E4 Environmental Living. (4) Development consent may be granted for the erection of a dwelling house or a dual occupancy on land to which this clause applies if there is a lawfully erected dwelling house or dual occupancy on the land and the dwelling house or dual occupancy to be erected is intended only to replace the existing dwelling house or dual occupancy.

There is an existing lawful dwelling house on the site. Should the application be approved, the existing dwelling house on the site would change from a ‘dwelling house’ to a ‘rural workers dwelling’ and therefore the status of one dwelling house on the site would be maintained. However, if the change of use to a rural workers dwelling is not supported the new dwelling could only be granted consent pursuant to Clause 4.2A(4) of Dungog LEP 2014 if it were to replace the existing dwelling, or if it were approved as a detached dual occupancy (see clause 6.11 below).

4. 6.5 Drinking Water Catchments (1) The objective of this clause is to protect drinking water catchments by minimising the adverse impacts of development on the quality and quantity of water entering drinking water storages. (2) This clause applies to land identified as “Drinking water catchment” on the Drinking Water Catchment Map.

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(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider the following: (a) whether or not the development is likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to the following: (i) the distance between the development and any waterway that feeds into the drinking water storage, (ii) the on-site use, storage and disposal of any chemicals on the land, (iii) the treatment, storage and disposal of waste water and solid waste generated or used by the development, (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse impact on water quality and flows, or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

Wallarobba Creek is located approximately 250 metres away from the proposed dwelling. The proposed dwelling and change of use is unlikely to result in an increase of chemicals on the site. Any future effluent disposal area would need to meet minimum buffer distances. Buffer distances for any future OSSM. The proposed development is not expected to have a significant adverse impact on water quality and flows.

N/A N/A

5. 6.7 Erection of rural workers’ dwellings in Zone RU1 and Zone E3 (1) The objective of this clause is to ensure the provision of adequate accommodation for employees of existing agricultural or rural industries that have a demonstrated economic capacity to support the ongoing employment of rural workers. (2) This clause applies to land in Zone RU1 Primary Production and Zone E3 Environmental Management.

The site is zoned RU1 Primary Production

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(3) Development consent must not be granted to the erection of a rural worker’s dwelling on land to which this clause applies, unless the consent authority is satisfied that:

(a) the development will not impair the use of the land for agricultural or rural industries, and

(b) the agricultural or rural industry being carried out on the land has a demonstrated economic capacity to support the ongoing employment of rural workers, and (c) the development is necessary considering the nature of the agricultural or rural industry land use lawfully occurring on the land or as a result of the remote or isolated location of the land, and (d) the development will not result in more than one rural worker’s dwelling being erected on the lot comprising the agricultural or rural industry.

The proposal is unlikely to significantly impair the use of the land for agricultural purposes. The economic capacity to support a rural worker is based on future predictions and has not yet been demonstrated. The site is not considered to be either remote or isolated given its close proximity to Dungog and other towns and villages. The existing agricultural nature of the farm appears to be routine cattle grazing and breeding. The desire/need for a rural workers dwelling appears to be based on the owners being absent from the site rather than as a result of the agricultural operations. There would only be one rural workers dwelling plus the primary dwelling on the site if the application was approved.

6. 6.10 Williams River Catchment (1) The objective of this clause is to protect and improve the environmental quality of the Williams River Catchment. (2) This clause applies to land identified as “Williams River Catchment Area” on the Williams River Catchment Map. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered whether the development: (a) promotes the sustainable use of land, water, vegetation and other natural resources within the Williams River Catchment, and (b) promotes the protection and improvement of the environmental quality of the Williams River Catchment, and

The site could accommodate two dwellings with minimal environmental impact. The proposal is not expected to have a detrimental impact on the environmental quality of the Williams River Catchment..

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(c) will have any significant adverse impacts on water quality within the Williams River Catchment, and (d) is consistent with the Williams River Catchment Regional Planning Strategy published in September 1997 by the Department of Planning and Environment.

Any future OSSM would need to comply with minimum buffer distances. The proposal is consistent with the Williams River Catchment Regional Planning Strategy

7. 6.11 Dual occupancies (detached) in Zone RU1 (1) The objectives of this clause are as follows: (a) to provide alternative accommodation for rural families and workers, (b) to ensure that development is of a scale and nature that is compatible with the primary production potential, rural character and environmental capabilities of the land. (2) This clause applies to land in Zone RU1 Primary Production. (3) Development consent must not be granted to development for the purpose of a dual occupancy (detached) on land to which this clause applies unless the consent authority is satisfied that: (a) the development is sited and designed in such a way as to give the development the appearance of a unified and consistent built form, and (b) the dwellings will be located within 100 metres of each other, and (c) the 2 dwellings have shared infrastructure, including fire breaks, water supply, electricity supply, sewage disposal and management, stormwater drainage and suitable vehicle access, and (d) the development is on land that is physically suitable for the erection of the dwellings.

The two dwellings are located separately and have differing design and built form. The two dwellings are located in excess of 700 metres apart. Each dwelling would have separate infrastructure. The site could accommodate a detached dual occupancy.

8. 6.12 Protection of rural landscapes in rural and environment protection zones(1) The objective of this clause is to protect the rural amenity and character of the land to which this clause applies by managing visual impact.

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(2) This clause applies to land in Zone RU1 Primary Production, Zone RU5 Village, Zone E3 Environmental Management and Zone E4 Environmental Living.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

(a) any buildings that form part of the development will blend into the landscape and not become silhouetted on a ridgeline, and

(b) the design, bulk and colours of any such buildings will be compatible with the surrounding landscape.

The proposed dwelling is not located so that it would become silhouetted on a ridgeline. The single storey design is compatible with the rural landscape, although the proposed roofing and some wall sheeting is proposed to be zincalume, which is generally not supported due to issues with reflectivity and glare. Should the application be approved, the external materials could be addressed through conditions.

(ii) any draft environmental planning instrument that is or has been placed on

public exhibition and details of which have been notified to the consent authority;

There are no draft environmental planning instruments applying to this land or development proposal.

(iii) any development control plan;

Dungog Development Control Plan No. 1

1. Part C Section 1 Residential Development sets out provisions for residential development.

1.2 Building height plane Building height planes extend vertically from natural ground level at 1.8m and projected from that point 45 degrees to the centre of the lot, the height plane at any point inside the envelope shall not exceed 9m above the natural ground level.

1.3 Setbacks See Section 3 below

1.4 Water Supply Where land is not serviced by a reticulated water supply the development is to be provided with a minimum of 20,000 litres of stored water. If the development is on rural land, the development is to be proved with an additional 22,500 litres of stored water in a non-combustible tank fitted with a 65mm storz coupling for fire fighting purposes.

The proposed building has a maximum height of approximately 5.9 metres above natural ground level, which is compliant with the building height plane.

The proposal complies with the 50 metre setbacks

The site is not serviced by a reticulated water supply and therefore rainwater tanks will be required.

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1.5 Sewerage Where the land is not serviced by reticulated sewer, the development is to be serviced by an approved on-site sewerage management facility. 1.6 Property Access Access to rural properties must comply with the requirements of the latest relevant drawing available from Council. The entrance shall be constructed so as not to impede the flow of water in any table drain. 1.7 Property Identification Rural properties are required to ensure that satisfactory arrangements have been made with Council for the supply and erection of a property identification number in accordance with Council's Rural Addressing Program. 1.8 Energy Efficiency Energy efficient buildings should be designed to maximise the solar access of the property. 1.9 Building Compliance All building work is to meet compliance with the Building Code of Australia, and the associated standards adopted by the BCA. 1.10 Bush Fire Prone Land In the event that is identified as being bush fire prone the development must meet the requirements of Planning for Bush Fire Protection. A Bushfire Assessment must be provided by the applicant that complies with the requirements of Planning for Bushfire Protection.

An application has been made for a new OSSM system. The existing dwelling is already serviced by an approved OSSM.

The existing access would remain, although would be required to be upgraded to comply with RFS requirements is approved.

The site has an existing property identification number. No changes to this are required.

A BASIX Certificate has been submitted with the application.

Standard conditions require compliance with the BCA if the application is approved.

A bushfire threat assessment was submitted with the application, and if approved, the recommendations would need to be conditioned.

2. Part C, Section 3 Building Line Setbacks of DCP No. 1 sets out the general requirements for building line

Both the existing and proposed buildings comply with the 50 metre setback requirement.

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setbacks in the RU1 Primary Production zone (i.e. former Rural 1(a) zone.) Buildings are required to be setback at least 50m from the front, side and rear property boundaries.

3. Part C, Section 5 Bushfire of the DCP No.1 outlines requirements in respect of applications to carry out development on bushfire prone land.

According to Council’s Bushfire Prone Land map, the site is mapped as bushfire prone land. A bushfire threat assessment was submitted with the application, and if approved, the recommendations would need to be conditioned.

(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;

There are no planning agreements or draft planning agreements applying to the

land.

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

Not applicable.

(v) (v) any coastal zone management plan (within the meaning of the Coastal

Protection Act 1979);

Not applicable. a) The likely impacts of that development, including environmental impacts on both

the natural and built environments, and social and economic impacts in the locality,

The likely impacts of the development have been considered in the main body of this

report, under the heading ‘Consideration of Environmental Impacts’.

b) The suitability of the site for the development,

Having an area of approximately 267 hectares, the site is of sufficient size to accommodate two residences and has suitable areas for the construction of dwellings and associated infrastructure, with minimal environmental impact. However, the application has been lodged for a change of use to a rural workers’ dwelling and is not considered to satisfy the requirements under Dungog LEP 2014.

c) Any submissions made in accordance with the Act or the regulations, One submission in support of the application was received during the public notification

period.

d) The public interest.

The NSW Department of Primary Industries have issued a state wide guideline for rural workers dwellings. There are concerns that the nature of the farm activities do not necessitate a rural workers dwelling, particularly given the close proximity of the site from villages, townships and cities. In addition, the location of the proposed dwelling does not meet the considerations listed above in terms of its proximity to the proposed rural workers dwelling and the need for separate infrastructure.

lbrighton.dunFile AttachmentMP 1 B.pdf

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State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 This policy aims to ensure consistency in the implementation of BASIX throughout the State by overriding competing provisions in other environmental planning instruments and development control plans. BASIX aims to encourage sustainable residential development. A BASIX Certificate has been submitted for the proposed new dwelling. State Environmental Planning Policy No. 44 – Koala Habitat Protection As the subject site is more than one hectare in area, SEPP 44 is applicable to the application. However, the location of the proposed dwelling is clear of native vegetation and would not require the removal of any native trees. Dungog Local Environmental Plan 2014 The site is zoned RU1 – Primary Production under Dungog LEP 2014 and rural workers dwellings are listed as being permissible with development consent. A ‘rural workers dwelling’ is defined under Dungog LEP 2014 and means a building or place that is additional to a dwelling house on the same lot and that is used predominantly as a place of residence by persons employed, whether on a long-term or short-term basis, for the purpose of agriculture or a rural industry on that land. A dwelling house is also listed as permissible with consent in the RU1 Primary Production zone and is defined as building containing only one dwelling. A dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. It is also noted that both a dwelling house and a rural workers’ dwelling are types of ‘residential accommodation’. Clause 2.3(2) of Dungog LEP 2014 requires the consent authority to have regard to the objectives for development in a zone when determining a development application. The objectives of the RU1 Primary Production Zone are:

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

To encourage diversity in primary industry enterprises and systems appropriate for

the area.

To minimise the fragmentation and alienation of resource lands.

To minimise conflict between land uses within this zone and land uses within adjoining zones.

To provide for recreational and tourist activities that are compatible with the

agricultural, environmental and conservation value of the land.

To promote the rural amenity and scenic landscape values of the area and prevent the silhouetting of unsympathetic development on ridgelines.

In addition, Clause 6.7 of Dungog LEP 2014 provides further guidelines for the erection of rural workers’ dwellings. While the proposed change of use of the existing dwelling to a rural workers dwelling does not constitute the ‘erection’ of a rural workers’ dwelling, the provisions of this clause are still considered relevant to Council’s assessment of the application. The objective of this clause is to ensure the provision of adequate accommodation for employees of existing agricultural or rural industries that have a demonstrated economic capacity to support the ongoing employment of rural workers.

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Subclause (3) states that development consent must not be granted to the erection of a rural worker’s dwelling on land to which this clause applies, unless the consent authority is satisfied that: (a) the development will not impair the use of the land for agricultural or rural industries,

Applicant’s Comment: The proposal does not require the alienation of any land as the dwelling and associated buildings already exist on the site. Council’s Comment: Even when considering the location of the proposed new dwelling in conjunction with the area of the existing dwelling, there is still sufficient area available to conclude that the development would not impair the use of the land for agricultural purposes.

(b) the agricultural or rural industry being carried out on the land has a demonstrated

economic capacity to support the ongoing employment of rural workers, Applicant’s Comment: An Operating Plan for Old Wallaringa Farm has been prepared and is provided. The Plan provides details of farm management going forward and financial projections. The Plan demonstrates the property has the economic capacity to support the employment of a farm manager to be resident on the site. Council’s Comment: The financial details provided with the application are based on actual figures for the 2014 and 2015 financial years and include projections for the 2016 to 2019 financial years. The figures provided for 2014 and 2015 indicate an overall operating loss (see confidential Attachment ‘1’ for financial details and Operating Plan), as well as a projected loss in 2016. The information provided suggests that a net profit would be achieved in 2017, when sales of Wagyu calves are expected to commence. Based on this information, the ongoing ability to support a rural worker has not been demonstrated and is solely dependent on the future operations and meeting the projected targets. It would therefore be premature to conclude that the existing operation has a demonstrated economic capacity to support the ongoing employment of a rural worker and in this regard, clause 6.7(3)(b) is not met.

(c) the development is necessary considering the nature of the agricultural or rural industry

land use lawfully occurring on the land or as a result of the remote or isolated location of the land, Applicant’s Comment: The property is operated as an intensive cattle breeding and raising enterprise and in order to maximise production it is imperative that an experienced farmer is on site at all times. The absentee owner has up until now engaged the services of a local farmer on a part time basis but this has proved to be inadequate and has resulted in deaths to young cattle which could have been avoided with improved surveillance. Without the offering of a dwelling, the availability of securing quality farm labour is difficult in the Dungog locality. The relative isolated nature of the property which is subject to being cut off after heavy rain, does not assist in securing part time labour when required. This is particularly at times when the cattle are mustered for breeding and vaccination purposes. Having an on-site worker will enable more flexibility in farm management practices and assist in increasing overall agricultural production through the implementation of the Operational plan. Council’s Comment: The applicant has stated that the “property is operated as an intensive cattle breeding and raising enterprise”. However, it is noted that the definition of ‘intensive livestock agriculture’ under Dungog LEP 2014 refers to the ‘keeping or breeding, for commercial purposes, of cattle, poultry, pigs, goats, horses or other

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livestock that are fed wholly or substantially on externally-sourced feed’. As the existing use of the site is primarily for pasture based cattle grazing with associated breeding, it is considered that the existing use is defined as ‘extensive agriculture’ under Dungog LEP 2014 and is listed as permitted without consent in the RU1 Primary Production zone. If the existing use was ‘intensive livestock agriculture’, development consent would be required as intensive livestock agriculture is not permitted without consent. Based on the information provided with the application, the operations of the farm appear to be routine farm activities similar to many other livestock holdings in the LGA and it is considered that the apparent need for a rural workers dwelling is largely a result of the owners being absent from the site for a substantial portion of the week rather than as a result of the scale of the agricultural operations. In terms of the location of the site, it is not considered that the property is either remote or isolated. In this regard, the site is approximately 20 km from the township of Dungog, which can be travelled in less than 20 minutes. The site is also within 50 minutes travelling distance from the larger centres of Raymond Terrace and Maitland. The application does state that the property can be cut off after heavy rain which does not assist in securing part time labour when required. However, in this regard, it is noted that there is an existing dwelling on the site, which already provides an opportunity for someone to be resident at the property. Based on the circumstances of this application, while it may be convenient to have access to an on site rural workers dwelling it has not been demonstrated that it is necessary due to the nature of the agricultural operation or as a result of the remote or isolated location of the land and therefore clause 6.7(3)(c) has not been met.

(d) the development will not result in more than one rural worker’s dwelling being erected on the lot comprising the agricultural or rural industry.

Applicant’s Comment: The proposal does not result in more than one rural workers dwelling on the site. Council’s Comment: If approved, the development would result in one dwelling and one rural workers dwelling being located on the site.

It is considered that clause 6.7(3)(b) and (c) have not been satisfied and therefore approval of the change of use of the existing dwelling to rural workers dwelling is not supported. Other clauses of Dungog LEP 2014 that are applicable to the application include: 4.2A Erection of dwelling houses and dual occupancies on land in certain rural and environment protection zones The objectives of this clause are to minimise unplanned rural residential development and to enable the replacement of lawfully erected dwelling houses and dual occupancies in rural and environment protection zones. The site complies with the minimum lot size of 60 hectares for the erection of a dwelling house in the RU1 Primary Production Zone, having an area of approximately 266 hectares. Should the application be approved, the existing dwelling house on the site would change from a ‘dwelling house’ to a ‘rural workers dwelling’ and therefore the status of one dwelling house on the site would be maintained. However, the change of use to a rural workers dwelling is not supported as detailed previously in the report and therefore, the new dwelling could only be granted consent pursuant to Clause 4.2A(4) of Dungog LEP 2014 if it were to replace the existing dwelling, or if it were approved as part of a detached dual occupancy. While Dungog LEP 2014 does provide for dual occupancies in the RU1 Primary Production zone, the applicant has specifically chosen not to lodge an application for a dual occupancy as the criteria for detached dual occupancies contained in clause 6.11 of Dungog LEP 2014 would not be achieved in terms of the distance between the two dwellings and the provision of shared infrastructure. Clause 6.11 is addressed further in the report.

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6.5 Drinking Water Catchments and Clause 6.10 Williams River Catchment The subject site is located within the Williams River Drinking Water Catchment. The proposed development is unlikely to have any adverse impact on the quality and quantity of water entering the drinking water storage. A full assessment of the proposal against clause 6.5 and 6.10 of Dungog LEP 2014 is contained in Annexure ‘B’. 6.11 Dual occupancies (detached) in Zone RU1 As previously detailed, the applicant has not lodged a development application for a dual occupancy development. However, as the change of use to a rural workers dwelling is not supported, the erection of a new dwelling on the site would result in two dwellings on one lot of land, which is by definition, a dual occupancy (detached). The objectives of this clause are to provide alternative accommodation for rural families and workers and to ensure that development is of a scale and nature that is compatible with the primary production potential, rural character and environmental capabilities of the land. Subclause (3) states that development consent must not be granted to development for the purpose of a dual occupancy (detached) on land to which this clause applies unless the consent authority is satisfied that:

(a) the development is sited and designed in such a way as to give the development the appearance of a unified and consistent built form, and

(b) the dwellings will be located within 100 metres of each other, and (c) the 2 dwellings have shared infrastructure, including fire breaks, water supply,

electricity supply, sewage disposal and management, stormwater drainage and suitable vehicle access, and

(d) the development is on land that is physically suitable for the erection of the dwellings. The proposed new dwelling would not satisfy the provisions of clause 6.11 due to the existing and proposed dwellings not being sited or designed to present as a unified and consistent built form, being located approximately 800 metres apart and having entirely separate infrastructure. 6.12 Protection of rural landscapes in rural and environment protection zones The objective of this clause is to protect the rural amenity and character of the land to which this clause applies by managing visual impact. Before granting development consent, Council must be satisfied that:

a) any buildings that form part of the development will blend into the landscape and not become silhouetted on a ridgeline, and

b) the design, bulk and colours of any such buildings will be compatible with the surrounding landscape.

The proposed dwelling is not located so that it would become silhouetted on a ridgeline. The single storey design is compatible with the rural landscape, although the proposed roofing and some wall sheeting is proposed to be zincalume, which is generally not supported due to issues with reflectivity and glare. Should the application be approved, the external materials could be addressed through conditions. Alternative Options The subject development application has been made specifically for the purpose of permitting a rural workers dwelling on the site and Council needs to be consistent in its application of the clause for rural workers dwellings. Council has previously refused a rural workers dwelling at Gresford because it did not meet the economic capacity test. It is not the

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size of the site, but the current usage of it which must satisfy the LEP provisions. In this instance, there are alternate means available to erect a second dwelling on the property as detailed below. Dungog LEP 2014 permits detached dual occupancies in the RU1 Primary Production zone, pursuant to clause 4.2A and 6.11. The requirements for detached dual occupancies have been detailed previously in the report. For Council to consider an application for a dual occupancy (detached), the proposal would need to be modified to comply with the location and shared infrastructure provisions of Clause 6.11. However, the option of a detached dual occupancy would not require any justification to be provided in terms of agricultural or economic sustainability. Another potential option for the owner of the site would be to subdivide the parcel into two lots. Dungog LEP 2014 has a minimum lot size of 60 hectares for the RU1 Primary Production Zone and therefore, the site could potentially be subdivided into 2 lots or more, each with a dwelling/dual occupancy entitlement. This option is not considered ideal as it would result in two or more smaller land holdings, potentially reducing the agricultural viability of the site. However, there would be nothing preventing the owners from operating the two lots as one holding or amalgamating them for rating purposes. (a)(ii) Provision of any draft environmental planning instrument There are no draft instruments applying to this site. (a)(iii) Any development control plan Dungog Development Control Plan No 1 Development Control Plan No 1 applies to the proposed development, with the relevant sections listed below: Part C – General Section 1 – Residential Development; Section 3 – Building Line Setbacks; Section 1 – Residential Development The proposed dwelling is consistent with the provisions of Section 1 of the DCP. A full assessment of these provisions is included in Annexure ‘B’. Section 3 – Building Line Setbacks As Wallaringa Road is not a Main Road, the building setbacks for the RU1 Primary Production Zone are 50 metres for the front, sides and rear. Both the proposed and existing dwellings comply with these setbacks. (a)(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 There are no planning agreements associated with the subject site. (a)(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph) The construction of the proposed dwelling would be required to comply with the Building Code of Australia. No upgrades would be required for the proposed rural workers dwelling.

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(a)(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979) N/A (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 The key issues associated with the proposed development are addressed below: Bushfire The site is mapped as bushfire prone land and the application has been accompanied by a Bushfire Assessment and Recommendations report for the proposed dwelling. Should the application be supported, conditions regarding bushfire protection as detailed in the report could be conditioned. Access The subject land is accessed via an unsealed road named Cox’s Creek Road. Cox’s Creek Road connects to Wallaringa Road at the eastern boundary of the subject Lot. The proposal would not result in an increase in vehicle movements in excess of the surrounding roads capacity. As such, this type and scale of development would not trigger any upgrade of Cox’s Creek Road or Wallaringa Road. An internal access road connecting to Cox’s Creek Road would be required. The access would need to meet RFS, including a 4 metre wide gravel access track with 1m wide clear verges. Hydraulic and Structural certification of the existing bridge over the creek would also be required and the consent could be conditioned accordingly, should the application be supported. Flooding Council records indicate the proposed dwelling site is not affected by flooding. Stormwater The applicant has proposed an onsite rainwater tank to collect flows from the roof and overflows from the water tank are to be routed to the existing watercourses onsite. Relevant conditions would need to be added to ensure the proposed stormwater system is properly designed and implemented, should the application be supported. On Site Effluent Disposal The existing dwelling (proposed rural workers dwelling) has an existing on-site sewage management system. An application has been made to install a new system for the proposed new dwelling, should consent be granted. (c) The suitability of the site for the development Having an area of approximately 267 hectares, the site is of sufficient size to accommodate two residences and has suitable areas for the construction of dwellings and associated infrastructure, with minimal environmental impact. However, the application has been lodged for a change of use to a rural workers’ dwelling and is not considered to satisfy the requirements under Dungog LEP 2014.

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(d) Any submissions made in accordance with this Act or the regulations The development application was advertised in the local paper and adjoining landowners notified in accordance with Council’s policy. One letter of support was received during the notification period. No objections have been received. The letter of supported can be summarised as follows:

Am aware of the application to build a home on the property and have discussed it with the owner;

No objection to the application; Hope Council can allow the owner to build what will be a beautiful addition to the

outstanding property; The building would not be visible from our property next door – even if it were it would

be a great addition to the countryside; The owner has prepared the surrounds for the house in an impeccable way and it

would look outstanding when built; Absolutely no objection to this development.

(e) The public interest On 11 December 2008, the NSW Department of Primary Industries (DPI) advised Council in writing that development applications for rural workers dwellings should no longer be referred to the NSW DPI. The correspondence also advised that the Rural Workers Dwelling Guideline sets out the NSW DPI recommendations in relation to rural workers dwellings. The DPI guidelines recognises that “providing a principal residence for additional farm workers or a manager can be crucial where the scale and nature of the farm enterprise routinely requires additional employees and it is not feasible for them to travel to the property to work. The animal welfare and 24/7 management needs of large scale intensive livestock enterprises may also require more than one on-site residence. In coastal regions and within 200km of major population centres, additional rural workers dwelling are unlikely to be necessary”. Nevertheless, rural workers dwellings are permissible with consent under Dungog LEP 2014. In terms of developing relevant criteria for rural workers dwellings, the guideline states that verifying the bona fide need for a resident farm worker requires consideration of complex factors such as the nature of farm activities, the relative isolation of a property, primary producer status and financial sustainability. Matters for consideration as recommended in the NSW DPI Guidelines include: To support sustainable primary industry development, all dwellings in rural areas should:

• meet LEP and zone objectives • be consistent with strategies and relevant development control guidelines • have suitable site access and services, and • avoid adverse environmental, heritage and amenity impacts. Additionally, rural workers dwellings should:

• be situated on the same legal title as the principal farm dwelling • share the same road access, power and communication infrastructure as the principal farm

dwelling • be located within reasonable proximity to other farm buildings (e.g. within 300 m), and • be appropriately separated from farm boundaries and potentially conflicting land uses (e.g.

intensive livestock operations, livestock yards, dairies, etc.).

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Having regard for the NSW DPI Guideline, the proposal does meet the criteria relating to the dwellings being located on the same legal title and being appropriately separated from farm boundaries and potentially conflicting land uses. However, there are concerns that the nature of the farm activities do not necessitate a rural workers dwelling, particularly given the close proximity of the site from villages, townships and cities. In addition, the location of the proposed dwelling does not meet the considerations listed above in terms of its proximity to the proposed rural workers dwelling and the need for separate infrastructure. The matters outlined in the NSW DPI Guidelines are similar to those which are included in clause 6.7 of Dungog LEP 2014 and it is in the public interest to consider these guidelines as part of the development assessment process. CONCLUSION The proposal has been assessed against the matters for consideration in Section 79C of the Environmental Planning and Assessment Act 1979. It is considered that the application has not demonstrated compliance with the requirements for a rural workers dwelling in terms of having a demonstrated economic capacity to support the ongoing employment of rural workers, or that the rural workers dwelling is necessary considering the nature of the agricultural land use or as a result of the remote or isolated location of the land. The proposed change of use is therefore not supported. On the basis that the change of use to a rural workers dwelling is not supported, the construction of a new dwelling on the site would become a dual occupancy development and in its current form, would not comply with clause 6.11 of Dungog Local Environmental Plan. It is therefore recommended that the application is refused. OFFICERS RECOMMENDATION It is recommended that Development Application 17/2016 for a change of use from a dwelling to a rural workers dwelling and the construction of a new dwelling at 583 Wallaringa Road, Wallaringa be refused for the reasons listed below: 1. The proposal does not comply with Clause 6.7 of Dungog Local Environmental Plan

2014; 2. The proposal does not comply with Clause 6.11 of the Dungog Local Environmental Plan 2014;

3. The proposal would create an undesirable precedent for the use of the rural workers dwelling clause if approved.

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Jenny Webb 2. REZONING APPLICATION – LOT 1 DP 860372 WEBBERS CREEK ROAD, PATERSON EF07/93 Application No. 171/82/40 Applicant: Mr B M Burgmann & Mrs S M Burgmann Owner: Mr B M Burgmann & Mrs S M Burgmann Subject Land: Lot 1 DP 860372 Webbers Creek Road,

Paterson Area: 4,944 m² Current Zoning: SP2 (Rail Infrastructure Facility) Proposal: To rezone the subject land to RU5 Village under

Dungog Local Environmental Plan 2014

********* Précis: Council has received a request from the owners of Lot 1 DP 860372 for a site-specific amendment to Dungog Local Environmental plan 2014. The proposal seeks to rezone the existing property from SP2 (Rail Infrastructure Facility) to RU5 Village under Dungog LEP 2014 to enable the site to be used for purposes other than rail infrastructure and that are consistent with surrounding uses. A development application for the use of the site as a vehicle repair station has been lodged concurrently with the rezoning application. This report considers the merit of the proposed rezoning, having regard to the relevant local and regional strategic planning framework and recommends that the draft Planning Proposal be supported and that it be forwarded to the Minister for a Gateway Determination. BACKGROUND The site was historically owned by the State Rail Authority of NSW. During its period of public ownership, the site was used for the storage of rail materials and equipment, and as a workshop. It was first sold to a private buyer on 3 February 1999 and then sold to the current owners on 27 November 2015. There has been two major revisions to Dungog Local Environmental Plan since the sale of the land to private owners (Dungog LEP 2006 and Dungog LEP 2014), however, the land remained zoned for rail infrastructure.

SUBJECT LAND The subject land is an irregular shaped parcel of approximately 4,944 m² in area and is bounded by the Main Northern Rail Line and Webbers Creek Road as shown in the locality plan below.

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Figure 1: Locality Plan The land is relatively flat and is predominantly cleared. Access to the property is from Webbers Creek Road, which is a Council-maintained sealed road. There is an existing metal clad shed and concrete water tank on the site as well as a number of concrete slabs where sheds were previously located. Utility services either connected or available to the site include water, electricity, telephone, waste collection and mail delivery services. There is also a current approval to operate an on-site sewage management system, comprising a septic tank and transpiration area. Figure 2 below depicts the subject land and surrounding properties.

Figure 2: The subject site

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The subject land is currently zoned SP2 Rail Infrastructure Facility under Dungog LEP 2014. Land to the north and west of the site, on the opposite side of Webbers Creek Road is zoned RE1 Public Recreation and RU5 Village. The railway line and associated land immediately to the south and east of the site is zoned SP2 Rail Infrastructure Facility and the land to the east of the railway line is zoned RU5 Village. The current zoning of the subject land and surrounding properties is shown in Figure 3.

Figure 3: Current zoning under Dungog Local Environmental Plan 2014 THE PLANNING PROPOSAL The application seeks to rezone the site from SP2 Rail Infrastructure Facility to RU5 Village to enable the site to be used for purposes other than for rail infrastructure. Whilst some land uses permitted in the RU5 Village zone would not be appropriate due to the proximity of the rail line, some commercial or industrial uses may be. The owner in this case is wishing to utilise the site as a vehicle repair station. The applicant has prepared a draft Planning Proposal outlining the proposed rezoning and subsequent use of the site (attached as Annexure ‘C’ (B:38)). Pursuant to division 4B of the Environmental Planning and Assessment Act, two separate development applications have also been lodged, one for an awning to be attached to the existing shed and the other to enable the site to be used as a vehicle repair station.

THE GATEWAY PROCESS Should Council resolve to support the Planning Proposal, it will be sent to the Minister for Planning (or delegate) for a gateway determination. A gateway determination specifies whether a Planning Proposal is to proceed and if so, under what circumstances. It is important to note that a gateway determination under section 56 of the EP&A Act must be obtained authorising a Planning Proposal to proceed before community consultation takes

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ANNEXURE ‘C’ TO ITEM NO. 2 – MANAGER PLANNING’S REPORT

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lbrighton.dunFile AttachmentMP 2C.pdf

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place. Should a favourable gateway determination be given, then the rezoning and the development application will be placed on exhibition simultaneously.

PLANNING ASSESSMENT Dungog Local Environmental Plan 2014 Under Dungog LEP 2014, the SP2 Infrastructure zone only permits development for the purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose. Any other development (other than roads) is prohibited. As the current land zoning map shows this site as being zoned for a Rail Infrastructure Facility, development consent can only be granted for uses that are ordinarily or incidental to railway operations. Given that the land is now owned by private people and has no association with Australian Rail Track Corporation (ARTC), the zoning is inappropriate and prevents effective utilisation of the land. A change of zoning is therefore supported. The RU5 Village zone is considered to be a suitable zone as it is consistent with surrounding land, and permits a range of land uses, including a vehicle repair station for which the owners have lodged a development application. Other zones that would permit a vehicle repair station include the B2 Local Centre, B4 Mixed Use or IN1 Industrial Zone. The B2 or B4 zones are not favoured as these zones are not currently located elsewhere in Paterson and are currently only located in the larger commercial areas of Dungog or Clarence Town where reticulated sewerage systems are in place. There is IN1 Industrial zoned land located further to the south of the subject site, although having regard for the existing land uses opposite the subject site, particularly the primary school, pre-school and public sports ground, an IN1 Industrial zone is not considered appropriate for this site. It should be noted that noise sensitive development such as dwellings, schools and child care centres are permissible in all of the B2, B4, RU5 and IN1 zones under Dungog LEP 2014, although are unlikely to be suitable uses for the subject site.

A copy of the land use tables for the SP2 - Infrastructure and RU5 Village zones are included in Annexure ‘D’ (B:55). Local Planning Direction - 117(2) Directions The proposal is considered to be consistent with the local planning directions issued by the Minister for Planning. A table summarising the applicability and compliance with each direction is included as an attachment to the draft Planning Proposal. State Environmental Planning Policies SEPP 55 – Remediation of Land Having regard for the relevant SEPP’s, it is recommended that further information be provided following the Gateway determination to address potential contamination issues under SEPP 55 – Remediation of Land. In this regard, the Planning Proposal has not acknowledged that the site could be potentially contaminated. In accordance with the SEPP, an investigation is necessary where an activity referred to in Table 1 of the Managing Land Contamination Planning Guidelines is or has been carried out on the land. Railway yards is included in the table and therefore the proposed rezoning should be supported by a Stage 1—Preliminary Investigation and depending on the findings, potentially a Stage 2—Detailed Investigation. SEPP (Rural Lands)

The draft Planning Proposal has identified that SEPP (Rural Lands) is applicable. However, in accordance with the SEPP, the RU5 Village Zone is not included in the definition of a rural zone or a rural residential zone and therefore is not applicable.

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ANNEXURE ‘D’ TO ITEM NO. 2 – MANAGER PLANNING’S REPORT

lbrighton.dunFile AttachmentMP 2D.pdf

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Environmental Considerations Onsite Sewage Management There is an existing OSSM system, servicing a small industrial shed. An inspection of the system in 2015 found it to be satisfactory for the usage at the time, although it is noted that the proposed rezoning could establish a range of land usages, which may require the redesign of the system in the future. However, it is considered that there is sufficient land capability within the allotment and no other limiting factors on site, and therefore it is likely that a complying OSSM could be designed for a range of potential future land uses. Contaminated Land The parcel is not identified on Council’s potentially contaminated land register, however a basic initial investigation of the property reveals that it has previously been used as a workshop associated with the railway, a fabrication workshop and most recently a storage area for second hand building materials and scrap. Railway yards are listed in the Planning Guidelines for SEPP55 – Remediation of land (1998) as activities which are likely to contaminate land and Council’s Development Control Plan also requires a Preliminary Site investigation to be carried out with a rezoning proposal. As detailed previously in the report, it is recommended that further information be provided following the Gateway determination, but prior to public exhibition, to address potential contamination issues under SEPP 55 – Remediation of Land. Rail Noise and Vibration The property is adjacent to the Northern Railway line. The draft Planning Proposal does not reference rail noise as a factor for consideration, however it is considered to be a major consideration due to the range of potential land uses, including residential permitted in RU5. NSW Planning’s “Development near Rail Corridors and Busy Roads – Interim Guideline” sets criteria for considering noise and vibration from existing rail infrastructure. Section 3.5.1 of the Guideline imposes a requirement for a full acoustic assessment of a sensitive development be carried out if it is within 40m of an operational track and some acoustic measures be considered if within 80m. Accordingly, should the planning proposal be supported at the Gateway determination, it is recommended that the proposal be accompanied by an Acoustic Consultants report which identifies the level of noise and vibration impact on the allotment, the level of compliance with noise and vibration criteria for each potential land use, possible noise and vibration mitigation measures to address impacts and some discussion on the likely effectiveness of such measures. Appendix D of the Development near Rail Corridors and Busy Roads – Interim Guideline lists the matters that need to be included in such a report. Flora and Fauna The site is predominantly clear and does not contain potential habitat for threatened species. Bushfire The site is not mapped as being bushfire prone land. Flooding The site is not mapped as being flood affected.

Heritage

The site is not heritage listed and is located outside of the Heritage Conservation Area, which is located further to the north of the site.

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EXTERNAL REFERRALS AND COMMUNITY CONSULTATION Consultation with relevant government agencies and the community in respect of a Planning Proposal is required to be undertaken once a Gateway Determination has been given. IMPLICATIONS Environmental It is anticipated that the following reports/studies would be required at a minimum, should the Planning Proposal proceed through the Gateway:

Preliminary Contaminated Land Investigation report Rail Noise and Vibration Report

Financial In accordance with Council’s Fees and Charges 2015-2016, the fee for a site specific rezoning where there are a limited number of issues and a limited local impact is $6000 at the lodgement of the application. A further $6000 is payable after the Gateway Determination. Policy The proposal has been assessed against relevant State Environmental Planning Policies and Section 117(2) directions. No unjustified inconsistencies have been identified. The proposal is also consistent with Dungog Local Environmental Plan 2014. Statutory The statutory process for preparing an amendment to the Dungog LEP 2014 is detailed in Part 3, Division 4 of the Environmental Planning and Assessment Act 1979. OFFICERS RECOMMENDATION Council resolves to: 1. Support the attached draft planning proposal to amend the Dungog Local Environmental

Plan 2014, pursuant to Section 55 of the Environmental Planning and Assessment Act 1979, in order to rezone Lot 1 DP 860372 from SP2 Rail Infrastructure Facility to RU5 Village under Dungog LEP 2014.

2. Forward the draft planning proposal to the Minister for Planning for gateway

determination pursuant to Section 56 of the EP&A Act 1979.

3. Advise the Director-General of Department of Planning and Environment that Council

does not seek to exercise delegations for undertaking Section 59(1) of the EP&A Act 1979.

4. Consult with the community and relevant government agencies as instructed by the gateway determination.

5. Receive a report back on any planning proposal to which a written objection is received

during consultation with the community as per the requirements of Section 57 of the EP&A Act 1979, otherwise forward the revised planning proposal to the Department of Planning and Environment requesting to make the proposed amendments to Dungog LEP 2014.

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Jenny Webb 3. SECTION 96 MODIFICATION – LOT 2 DP 1171767 NO. 338 DUNGOG ROAD, MARTINS CREEK DA114/2015 Development Application No. 114/2015 (Section 96 Modification) Owner: TW and KE Peach Applicant: TW and KE Peach Land: Lot 2 DP 1171767, No 338 Dungog Road,

Martins Creek Current Zone: RU1 – Primary Production and SP2 - Infrastructure Area: 10.14 hectares Proposal: Approved Dual Occupancy (detached) Issue: Reduction of Section 94 Contributions Precis: An application has been received under Section 96(1A) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to modify Development Consent No 114/2015 for a dual occupancy (detached) at Lot 2 DP 1171767, No 338 Dungog Road, Martins Creek. The modification specifically relates to Condition 21 of the development consent and seeks to reduce the payment of Section 94 Contributions. BACKGROUND Development Application 114/2015 for a dual occupancy (detached) was lodged in October 2015. The application sought consent to place a single storey relocatable dwelling on the site, which would serve as a ‘granny flat’ for an elderly family member of the current owners and residents. The site is constrained due to its proximity to Martins Creek Quarry, which is located to the east of the subject site and approximately 200 metres from the proposed dwelling. The proposed development did not comply with the 500 metre buffer distance between dwellings and extractive industries as specified in Dungog Development Control Plan No 1. However, based on the favourable results of the environmental monitoring that was undertaken as part of the development application, it was considered reasonable to issue a 5 year time-limited consent, after which the environmental issues could be re-evaluated or the relocatable structure removed. The development application was approved following the resolution of Council on the 15 March 2016, subject to conditions of consent including the 5 year limitation and a restriction that the relocatable dwelling is to only be occupied by persons with a direct family link to the current owners and not let for commercial gain. PROPOSED MODIFICATION The subject application seeks to modify the Section 94 contributions that were applied to the development consent for the dual occupancy. Contributions based on one additional dwelling were included on the consent, in accordance with the Section 94 Contributions Plan No 1 adopted by Council on 29 September 2004 and amended in September 2015. The contribution amounted to $14,597.96 as follows:

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Martins Creek Catchment Sports Fields $3,817.66 Parklands $211.72 Swimming Pool $1,020.41 Indoor Sports Facility $1,072.67 Local Community Centre $329.64 District Community Centre $228.47 Youth Venue $186.26 Arts & Craft Centre $60.97 Aged Facility $171.52 Library $492.45 Pre-School $652.58 Rural Sub-Arterial Roads upgrades $669.33 Rural Local Roads and intersection upgrades $2,558.73 Traffic Management $0.00 Bikeway Facilities $690.77 Fire Services $1,105.50 Section 94 Management $778.54 Administration $550.74 Total $14,597.96

The applicant has submitted the following information in support of the application:

We have recently been given approval to have a granny flat put on our property for an elderly family member at 338 Dungog Road, Martins Creek We have been given approval on a 5 year time frame with the view to extend later this period and have been advised that the Council cash contribution fees are $14,597.96. We are applying to modify the contribution amount based on the following: 1. Council have a policy (attached) that covers granny flats under the

affordable housing SEPP, although we couldn’t use that in this instance as the land is rural, we have however, had the same outcome, therefore there should be no s94 levy based on Council’s policy and logic.

2. Other Council’s have a s94 for granny flats charging at a percentage basis e.g. 1/3 given the usage rates and the impacts are less. As the family member moving in to the granny flat is elderly, there would be no usage of things such as sports fields, swimming pools, indoor sports facilities, youth venues, preschool, bikeway facilities etc. and we ask that you take this into account when assigning contribution costs.

3. Given the approval is time limited, we cannot understand how Council can levy the full s94 amount. We feel it should be payable in 5 years time and only if Council extend the approval to being permanent. We feel it is fair to pay a portion of the expected contribution costs at this time and the remainder at a later date should Council issue a permanent approval.

Council’s Policy C4:14 - Section 94 Developer Contributions – What Development is Exempt? states that:

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Council will not levy section 94 developer contributions in respect of the following types of development:

1. Development for the purposes of a Secondary Dwelling (granny flat) approved under

the provisions of State Environmental Planning Policy (Affordable Housing) 2009. In relation to the applicant’s submission, it is acknowledged that the development could not be considered as a secondary dwelling under SEPP (Affordable Rental Housing) due to the RU1 Primary Production zoning, in which neither the SEPP, nor Dungog LEP 2014 permit secondary dwellings. Consequently, consent was sought and granted for a dual occupancy (detached) and therefore this policy is not applicable to the proposed development. However, Section 2.14 of Council’s Section 94 Contributions Plan No 1 does enable Council to consider requests for reassessments or waivers of Section 94 contributions. The Plan states: Council may consider a request by the applicant for the reassessment of the contribution amount in accordance with the EP&A Act, which may result in the contribution being reduced or waived or modified. Options for Councillor Consideration Option 1 – Section 94 Contribution remains as stated in the condition of consent and the full amount is paid prior to the issue of the Section 68 Certificate (not recommended). Option 2 – Section 94 Contribution waived due to 5 year time-limited consent and conditions requiring the occupant to be a direct family member of the owner (not recommended). Option 3 – Reduce the Section 94 Contribution payable upfront and defer the reminder of the payments until the 5 year time limited period lapses and a determination has been made as to whether the relocatable dwelling would remain on the site or be removed (recommended). Option 5 – Defer the full Section 94 Contribution until the 5 year time limited period lapses and a determination has been made as to whether the relocatable dwelling would remain on the site or be removed (not recommended). STATUTORY CONSIDERATIONS Section 94 - Contribution towards provision or improvement of amenities or services Section 94 of the EP&A Act states that:

(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring:

(a) the dedication of land free of cost, or (b) the payment of a monetary contribution,

or both. (2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.

The applicant has put forward an argument that due to the restricted nature of the development consent, the payment of a Section 94 contribution equivalent to a permanent

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dwelling is unreasonable and therefore should be modified as permitted under the adopted Section 94 Contributions Plan No 1. Section 96 – Modification of Consents To alter the required payment of Section 94 contribution, the condition of consent would need to be modified. In accordance with Section 96(1A) of the EP&A Act, the consent authority may modify a development consent if:

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

Comment: The modification application does not amend the proposed development and therefore there would be no environmental impact. The application only seeks to modify/reduce the section 94 contributions included in the development consent conditions.

(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

Comment: The application is considered to be substantially the same development as there is no change to the proposed development. The only change proposed is to the monetary contributions included in the conditions of consent.

(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

Comment: Due to the nature of the proposed modification to the Development Application the proposal was not placed on public exhibition.

(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.

Comment: Not applicable The proposed modification is considered to satisfy the above requirements of Section 96(1A). Section 96(3) of the EP&A Act requires that, in determining an application for modification of a consent, 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. The proposed modification has been assessed under the relevant heads of consideration listed in Section 79C(1) of the Environmental Planning and Assessment Act 1979 as follows: (a)(i) Provisions of any environmental planning instrument The proposed modification does not impact on any matters for consideration under the relevant SEPPs or Dungog LEP 2014. (a)(ii) Provision of any draft environmental planning instrument There are no draft instruments applying to this site.

B: 23


(a)(iii) Any development control plan The proposed modification does not impact on any matters for consideration under Dungog Development Control Plan No 1. (a)(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph) The proposed modification does not impact on any matters for consideration prescribed by the regulations. (a)(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979) N/A (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 The proposed modification to the Section 94 contributions would not have any environmental impact. (c) The suitability of the site for the development The proposed modification does not alter the suitability of the site. (d) Any submissions made in accordance wit

REPORTS BY DEPARTMENT REQUIRING …In April 2014, development consent 18/2014 was granted to change...

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Transcript of REPORTS BY DEPARTMENT REQUIRING …In April 2014, development consent 18/2014 was granted to change...