Meeting Notice and Agenda
An Ordinary Meeting of the Bega Valley Shire Council will be held at Council Chambers, Biamanga Room Bega Valley Commemorative Civic Centre
1.1 Request to vary development standard - 60 McDonald Road, Wandella.............................. 4
Staff Reports – Community, Environment and Planning
09 February 2022
1.1 Request to vary development standard - 60 McDonald Road, Wandella............ 4
Council 9 February 2022
Director Community Environment and Planning
Tammy and Brett Jee
Tammy and Brett Jee
Lot 46 DP 752164 – 60 McDonald Road Wandella
RU1 Primary Production
1. Council provide in-principle support for the erection of a dwelling on Lot 46 DP 752164, known as 60 McDonald Road, Wandella.
2. Council seek the concurrence of the Secretary of the Department of Planning, Infrastructure and Environment (DPIE) pursuant to Clause 4.6 of Bega Valley Local Environmental Plan 2013 for variation to the 120 hectare minimum lot size development standard specified by Clause 4.2A(3a) of the Bega Valley Local Environmental Plan 2013 to allow erection of a dwelling on Lot 46 DP 752164.
3. Should the Secretary of the Department of Planning, Infrastructure and Environment grant concurrence to the proposed variation to the minimum lot size development standard, in the specific exceptional circumstances of this application, that staff be delegated to determine the application subject to conditions, generally as outlined in the Draft Conditions of Consent (Attachment 1).
4. Should the Secretary of the Department of Planning, Infrastructure and Environment refuse concurrence, that staff be delegated to refuse the application.
5. Should the Secretary of the Department of Planning, Infrastructure and Environment grant concurrence to the proposed variation, that Council instigates transfer of ownership of the access road reserve from the Crown to Council.
6. That all costs associated with the transfer of the road reserve, including Council’s legal costs, survey work, plan preparation and registration fees be borne by the Applicant.
7. The costs of works required to construct the road to Council’s engineering standards be borne by the applicant.
8. The Chief Executive Officer and/or Mayor be authorised to execute the necessary documentation to effect the transfer of ownership of the Crown road reserve.
Development application (DA) 2021.1190 is being reported to Council as it seeks a variation of greater than 10% to a development standard under Clause 4.6 of the Bega Valley Local Environmental Plan 2013 (BVLEP 2013). The concurrence of the Secretary of the Department of Planning, Infrastructure and Environment (DPIE) is sought as the property does not have a current dwelling entitlement.
Lot 46 DP 752164, known as 60 McDonald Road, Wandella (Figure 1), formed part of an original holding comprising this lot and Lot 2 DP 598869. This holding had been allocated one dwelling entitlement, which had been assigned to Lot 2 DP 598869. The subject site therefore does not have a dwelling entitlement to construct a dwelling.
A shed was constructed on the property in 2008. This shed was utilised as a dwelling by the landowner without development approval, until it was destroyed in the Black Summer bushfires. The landowner is currently residing in temporary accommodation on the property
With the gazettal of Bega Valley Local Environmental Plan 2013 (BVLEP 2013), the subject site was subsequently required to meet the development standard contained in Clause 4.2A for the erection of a dwelling on land zoned RU1 Primary Production. The applicable development standard under this clause became 120 hectares (ha) identified in the Minimum Lot Size map. The land does not comply with the applicable standards prescribed in Clause 4.2A hence the request for a variation.
Of the 467 dwellings destroyed during the Black Summer bushfires, those on 24 properties did not have a dwelling entitlement. Council has been in discussions with DPIE regarding options for these properties. For a small number of these properties, where the only material barrier to redevelopment is the requirement to meet the minimum lot size, DPIE has agreed, based on the exceptional circumstances presented by the Black Summer bushfires, to consider a dwelling development application. The advice received stated that each application would be required to demonstrate site-specific merit of suitability and capability for a dwelling, consideration of the environmental and risk constraints, and consistency with Council’s Local Strategic Planning Statement 2040.
Figure 1 – Site (outlined in blue)
Description of the Proposal
The DA seeks consent for construction of a six (6) bedroom, single storey dwelling that would replace a dwelling destroyed in the Black Summer Bushfires. The proposed dwelling is proposed to be setback from the southern and western boundaries of the site by 90 metres. A Draft assessment under Section 4.15 of the Environmental Planning & Assessment Act, 1979 is attached (Attachment 3)
The subject allotment is approximately 81% below the minimum lot shown on the Lot Size Map nominated by Clause 4.2A of BVLEP 2013. The DA includes a Statement of Environmental Effects and an application under Clause 4.6 for the variation to the development standard (Attachment 2) including the suitability of the site for a dwelling. An approval for an on-site wastewater disposal system was issued on 15 October 2020.
In addition to construction of the dwelling, a lawful and safe access would need to be provided. This is not part of the formal development application but would need to be established prior to consent for a dwelling.
Description of the Site
The site is described as Lot 46 DP 752164 known locally as 60 McDonald Road, Wandella, and has a site area of 21.98ha.
The site is regular in shape and is mostly devoid of native vegetation due to post fire clean-up works. The site has neighbouring dwellings to the north, west and south, many of which were also destroyed in the Black Summer bushfires.
Access to the site is via an irregularly formed road within a Crown road reserve. An inspection by Council’s Development Engineer noted that there are a number of elements to the existing access that would need to be addressed before it could be used as a direct legal and practical access to an existing Council maintained road.
To address the access constraint to meet Council’s engineering standards, Council has been advised by Crown Lands that the scale of works would trigger a transfer of the relevant portion of the Crown road reserve to Council. This is acceptable to Council officers, providing the road is constructed, at the applicant’s expense, to comply with Council’s engineering standards.
The DA has been assessed in accordance with the matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979. Council officers have highlighted the key issues of the proposal in this report for Council’s consideration.
The subject land is zoned RU1 Primary Production under the BVLEP 2013, with a dwelling permitted with development consent.
The objectives of the 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 encourage development for tourism-related activities and other development that is compatible with agricultural activities, which will not adversely affect the environmental and cultural amenity of the locality.
· To maintain and protect the scenic value and rural landscape characteristics of land in the zone.
The subject site has an area of 21.96 hectares. The Section 4.15 assessment (Attachment 3) 9 identifies that only 50.01% of the land is unconstrained and therefore limits the sites potential for primary production. Compounding this limitation, 16% of this area is isolated from the remaining unconstrained land therefore further fragmenting the limited potential of the site for agriculture.
The erection of a dwelling on the allotment is not in conflict with the RU1 Primary Production zoning of the adjoining and adjacent properties and the existing locality character of Wandella, therefore it is considered that minimal land use conflict would arise.
Despite the limited agricultural potential of the site due to noted site constraints, some development potential may be drawn from the list of other land uses that are permissible in the zone that may even benefit from the addition of a dwelling. Notwithstanding the non-compliance with the minimum lot size standard, the subject site is therefore considered consistent with the objectives of the RU1 Primary Production zone and may have economic potential to contribute to the local economy of the Bega Valley Shire without adversely affecting the environmental or cultural amenity of the locality.
Bega Valley Local Environmental Plan 2013 4.2A ‘Erection of dwelling houses and dual occupancies on land in certain rural, residential and environment protection zones’
Clause 4.2A of the BVLEP 2013 contains the development standard that directly relates to the proposed development. Consistency of the proposed development with this clause is summarised below.
(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, residential and environment protection zones.
The proposed dwelling is not consistent with the objectives of this clause. There is no lawful approval for the subject lot and Council’s records indicate that there is no permissibility to construct a dwelling. The use of the shed that was destroyed by the Black Summer Bushfires for habitable purposes has not been approved by this Clause and therefore is unplanned rural residential development. The applicant however is seeking a variation to the development standard identified by this Clause and this is discussed below.
(2) This clause applies to land in the following zones—
(a) Zone RU1 Primary Production,
(3) Development consent must not be granted for the erection of a dwelling house or dual occupancy on land to which this clause applies, and on which no dwelling house or dual occupancy has been erected, unless the land—
(a) is a lot that is at least the minimum lot size shown on the Lot Size Map in relation to that land, or
The minimum lot size applicable to the land is 120ha. The land parcel has an area of 21.96ha.
(b) is a lot created under an environmental planning instrument before this Plan commenced and on which the erection of a dwelling house or dual occupancy was permissible immediately before that commencement, or
Not applicable as the lot was not originally created under an environmental planning instrument as a Crown portion.
(c) is a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house or dual occupancy would have been permissible if the plan of subdivision had been registered before that commencement, or
Not applicable as the lot was not originally created by a previous subdivision approval as a Crown portion.
(d) is an original holding, or
The land is not identified as an original holding and was not a holding on 7 January 1966.
(e) would have been a lot or a holding referred to in paragraph (a), (b), (c) or (d) had it not been affected by—
(i) a minor realignment of its boundaries that did not create an additional lot, or
(ii) a subdivision creating or widening a public road or public reserve or for another public purpose.
The land is not affected by either of the conditions above.
BVLEP Clause 4.6 ‘Exemptions to development standards’
Clause 4.6 of BVLEP 2013 provides a mechanism for development to occur despite non-compliance with a development standard. The objectives of this clause are to provide a degree of flexibility so that the particular circumstances of each application can be considered on its merit. The provisions of Clause 4.6 are reprinted here for convenience:
(1) The objectives of this clause are as follows—
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless—
(a) the consent authority is satisfied that—
(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Planning Secretary has been obtained.
As the variation sought is greater than 10%, Council officers do not have delegations to determine the application under delegated authority and the matter must therefore be reported to Council for determination. In accordance with Planning Circular PS 20-002, (Attachment 4) given the significant departure from the development standard, Council must attain the concurrence of the Secretary of the DPIE.
A written request seeking to vary the development standard (Attachment 2) was prepared by GLN consulting and submitted with the DA. The consultant’s submission considers that compliance with the standard is unreasonable and unnecessary in this instance, for the following reasons:
Reason 1 – The objectives of the standard are achieved notwithstanding non-compliance with the standard.
(a) Dwelling houses are a permissible use as per the zoning of the site and the erection of a dwelling house is suitable and justified given the sites context and having regard to the environmental capability of the site.
(b) To the extent that there is no evidence discovered as to the legality of the structure, this objective is not relevant. The proposal does not involve the replacement of a dwelling that conforms to the existing minimum lot size standard and consequently is reliant on a variation as requested by the submission.
Reason 2 – The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary.
The subdivision pattern throughout the area has resulted in a number of dwelling houses erected on lots between 15 and 20 hectares. While it is acknowledged that residential and rural land uses are often in conflict, the proposed development does not compromise the ability of surrounding land uses to carry out permissible agriculture or other rural land uses. Furthermore, the proposed development does not affect any primary production or scenic values that exist on the land. The proposals represents the formalisation and re-establishment of the longstanding use of the land …. It would not constitute ‘unplanned’ rural residential development but rather development that meets all relevant planning requirements (except lot size), including with respect to bushfire protection, biodiversity, setbacks and access. Compliance with the Clause 4.2A(3) standard is considered unnecessary given that the underlying objective or purpose of the standard is not relevant in the unique environmental and personal circumstances of this particular case. In any event, reconstruction of a dwelling house and resumption of residential land use on the site would not offend the objective of the standard.
After reviewing the request for variation, it is considered that in this instance, given the exceptional circumstances associated with the Black Summer bushfires, compliance with the minimum lot size development standard of BVLEP 2013 would be unreasonable.
The applicant has adequately addressed the matters of Clause 4.6(3) and has demonstrated the proposal to be in the public interest for the following reasons:
· The proposal is consistent with the objectives of the RU1 Primary Production zone
· The size of the land does not support the purpose for which the allotment was originally created for, and
· The proposal is in keeping with the existing character of the Wandella locality.
Community and Stakeholder Engagement
The subject DA did not trigger notification under Council’s adopted Community Engagement Strategy therefore the proposal has not been publicly notified.
The DA was referred to Crown Lands, as the owner of the Crown road reserve, and the Natural Resource Access Regulator (NRAR), in relation to the section of the road that crosses a drainage line.
Crown Lands advised that the work required to upgrade the access road would trigger transfer of the road reserve to Council. NRAR advised that the work relating to the drainage line may be considered exempt.
Financial and Resource Considerations
Assessing proposals for development is part of the regular business of Council and resourcing to undertake that function is included in Council’s adopted 2020-21 budget.
There are resourcing implications associated with the transfer of a portion of Crown road reserve to Council’s road network. The applicant will be required to cover the cost of capital works to bring the road up to Council’s engineering standards and transfer the road reserve to Council, and to meet Planning for Bushfire Protection 2019 requirements. At this stage, it is proposed that the road be included in Council’s unmaintained unsealed roads category, which will require maintenance to be undertaken by the applicant.
The variation to the minimum lot size is considered reasonable and justified on planning merit grounds in these exceptional circumstances. The reporting of this DA for determination by Council is consistent with the requirements of Planning Circular PS 20-002 in requesting the concurrence of the Secretary of the Department of Planning, Industry and Environment.
Impacts on Strategic/Operational/Asset Management Plan/Risk
The proposed plans are consistent with the goals outlined in the Bega Valley Community Strategic Plan 2040, in particular Goals 7 and 8:
· Goal 7: Our Shire continues to be a vibrant, enjoyable, safe and affordable place to live.
· Goal 8: Our places retain their character and scale, development is well planned, and a range of goods and services are available within our Shire that met local needs.
It is also consistent with the South East and Tablelands Regional Plan 2036:
· Direction 24: Deliver greater housing supply and choice.
The proposed development is not inconsistent with Council’s adopted Residential Land Strategy and Local Strategic Planning Statement.
Environment and Climate Change
The proposed development does not present material environment or climate change impacts. The applicant has demonstrated BAL 12.5 dwelling construction is achievable for the site subject. An onsite effluent disposal system (OSM) has been approved for the site and the site has low habitat value.
The proposed development will have a marginal positive benefit to the local economy. The proposal facilitates an appropriate land use for the locality of Wandella and should provide short term employment opportunities for the construction industry.
The assessment of development is a core function of Council. The transfer of a portion of Crown road reserve to Council is a regular activity, with known risks. These are mitigated by requiring the applicant to construct the access road to Council and Rural Fire Service standards. Measures to address development risks are included as conditions of consent.
Approval of a dwelling on land that does not meet the minimum lot size for a dwelling presents a risk to Council that other landowners in these circumstances may see this as a precedent. As part of work to identify redevelopment pathways for landowners affected by the Black Summer bushfires, Council has worked closely with DPIE to identify whether risks associated with redevelopment of a limited number of properties without a dwelling entitlement can be met. Given the exceptional circumstances of the fires, and the minimum lot size being the only material constraint to development, Council and DPIE have agreed that a development application can be considered for this small number of properties in these very limited circumstances. This agreement expressly excludes a development pathway for landowners of other properties, whether they be bushfire-affected or not, that do not meet the minimum lot size for a dwelling. The ability to lodge a development application under this agreement also only applies to the landowners at the time of the bushfire and not any subsequent landowner.
Social / Cultural
The proposed residential development directly supports bushfire recovery for the landowner and contributes to the rebuilding of the Wandella community.
1⇩. Draft Consent - 60 McDonald Road Wandella
2⇩. Clause 4.6 Variation Request
3⇩. Section 4.15 Assessment Report - 60 McDonald Road Wandella