Agenda of Council - Wednesday, 11 June 2025

Council 11 June 2025

Item 8.1

8.1. 2023.159 Mixed Use Development - Tourist Accommodation including a Restaurant and Gymnasium, and 14 attached townhouses

Director Community Environment and Planning

Applicant	Gyde Consulting Pty Ltd
Owner	BG Holder (ACT) Pty Ltd
Site	Lot 1 DP 733858 - 58 Merimbula Drive, MERIMBULA
Zone	R3 Medium Density Residential
Site area	5004m²
Proposed development	Mixed Use Development comprising Tourist and Visitor Accommodation (25 room Hotel) and 14 Townhouses (Multi-dwelling housing)

Precis

The development application proposes the erection of a 25 room Hotel (tourist and visitor accommodation) and 14 attached townhouses (Multi-dwelling housing) on a lot of 5004m² at 58 Merimbula Drive, Merimbula.

The application is being reported to Council as the development would:

a) exceed the height of buildings development standard as prescribed under Clause 4.3 of the Bega Valley Local Environmental Plan 2013 (BVLEP), and

b) exceed the floor space ratio development standard as prescribed under Clause 4.4 of the Bega Valley Local Environmental Plan 2013 (BVLEP).

The application is accompanied by two separate requests for Clause 4.6 variations under BVLEP 2013 to the height of buildings development standard and maximum floor space ratio development standards applying to the land. As both variation requests are greater than 10%, Council assessing staff do not have delegation to determine the application and therefore the application is to be determined by the elected Council.

The development application is recommended for approval subject to conditions.

Officer’s Recommendation

That Council:

1. Support the Clause 4.6 variation requests to vary the height of buildings and floor space ratio development standards, specified in Clause 4.3 and Clause 4.4 of the BVLEP 2013.

2. Approve development application 2023.159 for the erection of a 25 room hotel (tourist and visitor accommodation) and 14 townhouses (multi-dwelling housing) at Lot: 331 DP: 634957, 58 Merimbula Drive, Merimbula, subject to the conditions of consent provided in Attachment 1.

3. Notify submitters of the Council’s decision.

Executive Summary

Development Application (DA) 2023.159 is being reported to Council for determination because the application seeks to vary the height of buildings and floor space ratio (FSR) development standards specified by Clause 4.3 and Clause 4.4 of the BVLEP 2013.

As the variations sought are greater than 10%, Council assessing staff do not have delegation to determine the application and therefore the application is to be determined by the elected Council.

The development proposal has been assessed under Section 4.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act) (Attachment 2 to this report).

The height variation request of a maximum of 4.7m above the 10m height of buildings development standard on part of the site is considered to have merit as the main building components which are non-compliant are the rooftop bar area, which is not a solid mass and is broken up into minor building elements including gazebos, changerooms, toilets, lift wells and stairwell access points, and a small area of the roof elements for two of the townhouses (maximum 2.1m above the 10m height limit). These building elements are generally screened from the street elevations with Merimbula Drive to minimise impact, having regard to the bulk and scale of the development.

The variation to the Floor Space Ratio (FSR) from 0.60:1 to 1.10:1, whilst 84% above the principle development standard for the site, is considered in this specific case to have strong merit as the FSR controls were developed a) with low to medium density housing as the guiding principle, not a mixed use development comprising a multi-level tourist accommodation and b) without any reference to individual site characteristics such as slope or the merits of design excellence provided by the submitted design.

The FSR ratio controls are considered a ‘blunt’ planning instrument in the context of this development application which does not take into account environmental factors such as site slope, desired future urban character and recent strategic directions from the NSW state government such as facilitating a substantial increase in density of housing stock in existing urban areas.

Overall, the design of the hotel and townhouses exhibits a complex yet rhythmic articulation of mass and form which is rare in the Bega Valley. The topography of the site, which slopes away from the ridgeline will minimise visual mass and bulk impacts when viewed from Merimbula Drive.

The development aligns with Council’s adopted strategic direction that recognises the need for denser urban settlement closer to town centres, as reinforced in Council’s adopted Local Strategic Planning Statement (LSPS).

The proposed development is recommended for approval, subject to the conditions of consent provided in Attachment 1.

Background

A separate Development Application (DA 2022.249) to demolish the existing motel was approved by Bega Valley Council on 28 February 2023.

The current development application was lodged on 8 August 2023 and is integrated development as approval is also required from the NSW Rural Fire Service. During the assessment of the DA, several requests for additional information were made by Council staff and the NSW Rural Fire Service to address varied aspects of the development, including identified non-compliance with development standards, but also variations to Bega Valley Development Control Plan 2013 and bushfire safety considerations.

In September 2024, the applicant provided additional information and revised plans addressing the requests for additional information, which was placed out for further public notification.

The NSW Rural Fire Service provided their General Terms of Approval on 7 March 2025.

Site Description

The development site is located 1,200 metres west of the Merimbula Post Office and is legally described as Lot: 1 DP:733858, 58 Merimbula Drive, Merimbula (see Figure 1). The site is an irregular shape with a street frontage of 95 metres.

The site sits within an area containing predominately single dwellings of both single and two storey design with a large undeveloped land parcel to the west. The site is located adjacent to a cluster of 3 two storey units to the south on Monaro Street and a single storey dwelling to the north with a large undeveloped allotment to its west.

The area of the lot is 5004m², is of sloping (and terraced) topography to the west and is occupied by a one and two storey motel (tourist accommodation) built in the 1960s. It includes a small gazebo recreation area at the rear of the site and minor landscaped gardens (see Figures 2 to 4).

Figure 1 – Locality Plan around the Site (Source near Maps March 2025)

Figure 2 - Streetscape view of hotel (source google street view)

Figures 3 – West elevation at northern end of site contains existing tourist accommodation (source site inspection 2024)

Figures 4 – Southwest elevation of motel at southern end of site and adjoining two storey multi-unit dwellings on the adjoining allotment beyond timber fence line (source site inspection 2024)

Description of the Proposal

The proposal comprises a mixed use development that comprises the following:

• Erection of 14 x three bedroom residential townhouses (9 x 3 storey and 5 x 2 storey)

• Erection of a Hotel comprising 25 rooms, reception area, Restaurant, Day Spa, Gymnasium and Rooftop Swimming Pool & Bar

The land uses are defined as ‘Tourist and Visitor Accommodation’ and ‘Multi Dwelling Housing’ under BVLEP 2013 and both are permissible in the R3 zone subject to development consent.

Figures 5 to 6 below provide a ‘snapshot’ of the proposed structures and works for the construction of the hotel and townhouses. Figures 7 to 10 below show the height plane intrusion of the development beyond the 10m height limit. Refer to Attachment 3 for a full set of development plans.

Figure 5 – Streetscape – impression rendering

Figure 6 - Upper townhouses east and West elevations

Figure 7 – Hotel elevations – north and south

Figure 8 – Hotel Elevations - East and West

Figure 9 - Height plane diagram showing intrusions above 10m height limit from SE perspective.

Figure 10 - Height plane diagram showing intrusions above 10m height limit from SW perspective.

Planning Assessment

The development application has been assessed in accordance with the matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979 (refer to Attachment 2).

The application was notified twice for periods of 14 days (revised plans were notified in November 2024). A total of 8 separate submissions were received over both submission periods and are detailed further in this assessment report.

Bega Valley Local Environmental Plan 2013

The development has been assessed in accordance with the relevant provisions of Bega Valley Local Environmental Plan (BVLEP) 2013.

The land is zoned R3 Medium Density Residential under BVLEP 2013.

Figure 11 - Zoning Map (Red = R3 Medium Density Residential)

The proposed land uses, being a hotel (tourist and visitor accommodation) and multi-dwelling housing are permissible in the zone subject to development consent. The application incorporates a swimming pool, gymnasium and restaurant/bar which are considered to be ancillary to the those uses.

Clause 4.3 Height Limit of buildings

A height limit of 10 metres above existing ground level applies to the site.

The design of the development generally meets the height limit of 10 metres except for two components of the buildings which comprise as follows:

· part of roof elements of Townhouses 1 and 2 that seeks a maximum 2.1 metre increase above 10m height limit

· hotel seeking a maximum 4.7 metre increase above the 10m height limit.

The extent of the building elements above the 10 metre height limit are detailed in Figures 9 and 10 above.

A Clause 4.6 Variation Request to the 10 metre height limit was submitted with the application seeking support to the variation of the height limit.

Clause 4.4 Floor Space Ratio

An FSR applies to the site at 0.6:1. The design of the development seeks a variation that would result in an FSR of 1.1:1 of the site.

A Clause 4.6 Variation to the 0.6:1 FSR limit was submitted with the application seeking support to the variation of the FSR.

Clause 4.6 Variations to Development Standards

The DA has been accompanied by a written request under clause 4.6 of the BVLEP 2013 to seek a variation to the development standards specified under Clauses 4.3 and 4.4. (A copy of the Applicant’s Variation Request are provided as Attachment 4 and Attachment 5 of this report.)

Council as the consent authority, may consider variations to development standards with the use of clause 4.6 of the BVLEP, provided the proposal:

a) demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case, and

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

Height of Buildings

A height limit of 10 metres above existing ground level applies to the site under Clause 4.5 of BVLEP 2013

The objectives of Clause 4.3 of the BVLEP 2013 are as follows:

(1) The objectives of this clause are as follows—

(a) to ensure new development is appropriate in the context of the predominant form and scale of surrounding development, including present and likely future development, surrounding landforms and the visual setting,

(b) to protect residential amenity, views, privacy and solar access.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

Whether compliance with the standard is unreasonable or unnecessary

As outlined within the matter of Wehbe v Pittwater Council [2007] NSWLEC 827, it was established that in order to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, an applicant must demonstrate either of the following:

• the objectives of the development standard are achieved notwithstanding non-compliance with the standard; or

• the underlying objective or purpose of the standard is not relevant to the development; or

• the underlying objective or purpose would be defeated or thwarted if compliance was required; or

• the standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard; or

• the zoning of land was unreasonable or inappropriate, such that the standards for that zoning are also unreasonable or unnecessary.

The applicant’s written request for the variation of the Height of Buildings seeks to satisfy this requirement by demonstrating that the objectives of the development standard are achieved, notwithstanding the non-compliance. See Attachment 4 of this report for the full request.

The applicant’s justification can be summarised as follows:

· ‘while there are some limited areas of the development that sit above the 10-metre height plane, these will not cause any issues in terms of compatibility with the future character of the area. Buildings can exist in harmony together without having the same density, scale or appearance;

· the surrounding landform is an important factor in considering the proposed variation. The development has been carefully designed to ensure no adverse impact on views, particularly as a result of the areas where the maximum building height is breached, whilst allowing for the proposed development to maximise the views to the west;

· the proposal has ensured the views from the surrounding areas are not impacted by the proposed development and significant views are protected;

· the majority of the development sits below the maximum height of buildings standard. Particularly, the entire street facing elevation of the development, to the east, is compliant with the maximum 10 metre height standard. The minor projection of the upper-level townhouses is in large part a result of the topography of the site, and will not be easily discernible from the streetscape as being out of context;

· the site benefits from a generous eastern street frontage, irregular shape and considerable slope to the west, which enables the built form/density to be distributed across the site (both on the ground plane and vertically) to ensure adequate on-site and external amenity;

· residential amenity is maintained with the proposed variation as the breach of the maximum building height within the tourist and visitor accommodation building is located at the northern portion of the site. The tourist and visitor accommodation building is oriented in a westerly direction, with any views towards the dwelling at 60 Merimbula Drive restricted by the walls associated with the kitchen/bar, lifts and fire stairs;

· the amenity of the residential dwellings to the south at 88 Monaro Street is also maintained and protected through the design of the upper townhouses. There is a small area at the south-western edge of the upper townhouses that breaches the maximum building height for the subject site;

· when considering the views to and from the subject site, the design components incorporated by the architect will reduce the massing and bulk of the development when viewed from the public domain which ensures an adequate level of visual amenity for adjoining properties, particularly the dwelling to the north and the townhouses to the south.

· key view corridors to Merimbula Lake will also be maintained given the location, orientation and elevated nature of the site. The development as a whole, but specifically, the built form that exceeds the maximum height of buildings will not result in any view loss.

· the privacy of adjoining properties is maintained with the proposed development.

· the existing dwelling at 60 Merimbula Drive is separated from the proposed tourist and visitor accommodation building by approximately 22 metres, which significantly exceeds the minimum setbacks from side boundaries, and for reference, any building separation requirements between habitable rooms in the Apartment Design Guide.

· the area subject to the height breach is the rooftop communal area which also contains services and utilities. The wall along the northern edge of the communal area is part of the height breach and has been provided to maintain visual and acoustic privacy to the dwelling at 60 Merimbula Drive.

· when considering solar access, all proposed dwellings within the development achieve the minimum required solar access to living areas and private open space. The shadow cast by the tourist and visitor accommodation building will not result in any significant or detrimental (internal) impact on the townhouses within the proposed development. The detailed shadow analysis provided as part of the plan set demonstrates the extent of overshadowing cause by the development and confirms the tourist and visitor accommodation building will not result in adverse impacts on the townhouses.

· the shadow modelling demonstrates that the existing hotel on the subject site as well as the existing dwellings at 88 Monaro Street and the boundary fencing cast a shadow that is relatively unchanged with the proposed development.

· there is a portion of the private open space of the existing townhouses at 88 Monaro Street which are impacted between 11am and 1pm, with other minor areas impacted throughout the day. Based on the modelling undertaken, the additional impact is considered minor and will not result in adjoining developments being impacted by overshadowing that would result in an inconsistency with the minimum solar access requirements in the DCP.

· the proposal therefore satisfies objective (b) of the standard.’

Council assessment staff concur with the applicant’s justification as outlined in the Clause 4.6 variation report (Gyde Consulting 20.3.2025) and conclude that the objectives of the development standard have been achieved for the following reasons:

· The skyline / ridgetop view impacts as demonstrated in the site inspection photographs when viewed from various public spaces are considered acceptable given the long distance upward view angles to the ridgeline. In addition, the views up to the ridgeline are not encumbered by any other strong visual elements requiring particular protection.

· Dwellings to the west are well over 100m away and do not have views upwards towards the Merimbula Drive ridgelines. The vast majority of dwellings are focussed to the western views over Merimbula Lake towards Milligandi.

· The visual impacts from Merimbula Drive are largely moderated by virtue of the north south axis of the development parallel to Merimbula Drive. This provides the higher elements of the hotel, set well back from front boundary that will be partially obscured while driving along Merimbula Drive by the existing built development upslope of the site.

· The proposed development does not align with any particular landmark views or result in termination point views which are of any particular significance.

Whether there are sufficient environmental planning grounds to justify the contravention of the development standard

In the matter of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, Preston CJ provides the following guidance (ref: paragraph 23) to inform the consent authority’s finding that the applicant’s written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard:

‘As to the second matter required by clause 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase “environmental planning” is not defined but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in section 1.3 of the EPA Act.’

Section 1.3 of the Environmental Planning and Assessment Act 1979 (EP&A Act) reads as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

The applicant has submitted that there are sufficient environmental planning grounds to justify the contravention of the maximum height of 10 metres as specified in the BVLEP 2013. These grounds are:

· The development will not unduly impact any biodiversity values.

· Stormwater can be detained and gradually discharged without impacting the water quality of Merimbula Lake.

· The development exhibits a strong commitment to high quality architectural design.

· The development is congruent with the Local Strategic Planning Statement (LSPS) which seeks to promote new development within the Merimbula precinct through construction of attractive buildings, particularly a mix of uses including housing and tourist accommodation.

In this regard, the applicant’s written request has demonstrated that the proposed development is an orderly and economic use and development of the land, and that the development will reasonably protect and improve the amenity of the surrounding built environment, thereby satisfying sections 1.3 (c) and (g) of the EP&A Act 1979.

Therefore, the applicant's written request has adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard as required by clause 4.6(3)(b).

Floor Space Ratio

A floor space ratio limit currently applies to the site of 0.6:1, which is calculated under Clause 4.5 of BVLEP 2013. The BVLEP defines Floor Space Ratio as follows:

The proposed development has a FSR of 1.1:1 (5,525m²) of gross floor area for a site area of 5004m²), which represents an 84% variation to increase the development standard.

The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.

The objectives of Clause 4.4 of the BVLEP 2013 are as follows:

4.4 Floor space ratio

1) The objectives of this clause are as follows—

(a) to establish the maximum development density and intensity of land use, taking into account the availability of infrastructure to service that site and the vehicle and pedestrian traffic that the development will generate,

(b) to ensure that buildings are compatible with the bulk and scale of the locality.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

The application has been accompanied by a written request under clause 4.6 of the BVLEP 2013 to seek a variation to the FSR development standard (see Attachment 5 to this report).

Council, as the consent authority, may consider variations to development standards with the use of clause 4.6 of the BVLEP, provided the proposal:

a) demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case, and

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

Whether compliance with the standard is unreasonable or unnecessary

The applicant’s written request for the variation to the FSR seeks to satisfy this requirement by demonstrating that the objectives of the development standard are achieved, notwithstanding the non-compliance.

The applicant’s justification can be summarised as follows:

· The objective is clarified by stating that density and intensity of land use should take into account the availability of infrastructure and services and the traffic that the density/intensity of development will generate. However, it is clear in reviewing the FSR map for the surrounding area that FSR has been established based on the nominated land use zone rather than consideration of the availability of servicing of individual sites and traffic generation from development outcomes. Both of these matters (servicing and traffic) are addressed below, confirming that the site and surrounding area can sustain the traffic impacts of the development, and the site can be adequately serviced by the required infrastructure (i.e., utilities, roads).

Servicing: The proposal incorporates a mix of uses, including a tourist and visitor accommodation component, that currently exists on the site and has been in operation for over 50 years. The site has access to utilities and services and the DA is supported by consultant reports confirming the intensity of the development is suitable with the availability of infrastructure.

Sewer: The existing sewer line that traverses the middle of the site is proposed to be removed and a new sewer line with new pits/connection will be established on the site.

Electricity: The existing overhead electricity services will be decommissioned, and new underground services will be provided. A new padmount substation is also proposed adjacent to Townhouse 9 and the tourist and visitor accommodation driveway.

Gas: Gas services are not proposed to be connected to the development.

Telecommunications: There are existing telecommunications pits located to the north-east and south-west of the site that are available for connection to NBN (Fibre to the Premises).

Drainage: the proposal includes below ground on site detention, and stormwater will be conveyed via a series of pipes and grated drains and pits throughout the development, to the existing stormwater pit to the south-east of the site. A second, smaller on-site detention tank is proposed in the north-west of the site before being discharged via a level spreader.

Roads: The site is accessible by a public road which is available to service the development. The below (and the supporting Traffic Engineering Assessment for the DA) demonstrate adequacy of the surrounding network to absorb the traffic generated by the development.

As can be seen above, the site is capable of accommodating the servicing needs of the development. Any upgrades or augmentation required will be completed as part of the redevelopment.

Therefore, the proposal (including the additional floor space) is not expected to affect the capacity of the existing infrastructure in the locality.

Traffic Generation

· The proposal provides sufficient parking for the development whilst ensuring the impacts on vehicle and pedestrian traffic are managed appropriately. The Traffic Engineering Assessment prepared by Traffix (revision F, dated 9 September 2024) submitted with the application demonstrates there are sufficient parking spaces provided for the land uses proposed and that surplus bicycle parking spaces will be provided to maximise the opportunity for active transport to and from the site. The proposal encourages these active transport modes for future staff and visitors of the tourist and visitor accommodation, as well as future residents, through the provision of bicycle parking.

· In addition to the above, the Traffic Engineering Assessment notes the proposal will result in one (1) additional vehicle movement every 2.3 minutes on average which will have an imperceptible impact on the operation of Merimbula Drive, Monaro Drive and associated intersections.

· The proposal therefore satisfies objective (a) of the standard.

· The site benefits from a generous eastern street frontage, irregular shape and considerable slope to the west, which enables the built form/density to be distributed across the site (both on the ground plane and vertically) to ensure adequate on-site and external amenity.

· Notwithstanding the numerical departure from the applicable maximum FSR, the proposed development utilises these characteristics of the site to ensure the bulk and scale, and streetscape presentation of the development are compatible with the existing and envisaged character of the locality.

· The proposal incorporates varied and generous setbacks (to all 5 boundaries) and perimeter landscaping to assist in the transition from the current dilapidated building on the site to a unique architectural development. In addition, the colours, finishes and materials incorporate natural, earthy materials and tones including timber and stone to reinforce the coastal and natural character of surrounding development. The vertical curves of the townhouses, and the horizontal curves of the tourist and visitor accommodation building make reference to the curves of waves, reflective of the seaside location of Merimbula;

· The streetscape presentation of the development incorporates a mix of vertical and horizontal elements, building separation, round and elevated landscape features and a 3- storey scale to provide visual interest and minimise the perceived bulk to the east. The height and scale also step to the south with the slight fall of the land to further respond to the change in topography across the frontage of the site.

· The projecting arch forms/curves to the townhouses provide a further softening of the scale of the building and give the perception of individual dwellings as opposed to one singular built form mass. This is further demonstrated in the render below.

· In addition to the above, the sections and elevations demonstrate how the built form has responded to the slope of the land to the south, but predominantly, to the west. The bulk and scale have been massaged to reduce overall perception when viewed from the surrounds.

· Combined with a 32.8% landscaped area (+ 3.3% “Planter landscaped area”) across the ground floor plane (which is terraced, across the ground floor, lower level and basement level) and 31.3% deep soil planting, the built form is considered to be appropriate from a visual bulk and scape perspective.

· The proposal has also adequately considered the potential impact of bulk and scale of the development at the southern interface, noting the proximity of the development to 88 Monaro Street. The southern interface of the proposed townhouse building fronting Monaro Street has incorporated a curved façade with greenery to soften the appearance of the built form. The building also minimises the number of openings to ensure visual privacy is maintained to 88 Monaro Street.

· The proposed development has also been sufficiently setback to allow for adequate building separation of approximately 9 metres between the existing townhouses at 88 Monaro Street and the proposed development. The proposed setbacks provide sufficient separation and is therefore considered a suitable outcome when considering the appearance of bulk and scale to the adjoining property to the south.

· The design solutions incorporated by the architect will reduce the massing and bulk of the development as viewed from the public domain, thereby ensuring an adequate level of visual amenity for adjoining properties. Key view corridors to Merimbula Lake will also be maintained given the location, orientation and elevated nature of the site. The development as a whole, but specifically, the additional built form that results from the additional gross floor area will not result in any view loss.

· Further to the above, there are no heritage items or conservation areas in the vicinity of the site that would be adversely impacted by the bulk and scale of the development.

· The character of the locality is emerging through redevelopment of nearby properties. The proposed development would result in a harmonious streetscape and simultaneously respect and complement the established village character of the area. The quantum of floor space proposed is by no means incompatible with the surrounding properties and the recent approvals granted in the Bega Valley region and Merimbula, such as DA 2020.509 for a 40 unit residential development at 95 and 97 Main Street, Merimbula, and DA 202.164 at 21 Beach Street, Merimbula which was approved for a mixed use development comprising ground floor commercial and shop top housing (14 units). Both approvals were granted for variations to building height exceedances and therefore demonstrates that Council are willing and able to support variations to support development in the broader region.

· Further to the above, we reference Project Venture Developments v Pittwater Council [2005] NSWLEC 191, whereby it has been established that compatibility does not necessarily mean the same. For example, a medium density development does not need to be single storey to be compatible with the streetscape, even where most existing buildings are single storey. And this is particularly evident in an area, such as Merimbula, that is subject to ageing housing and other building stock, and that is growing and transitioning.

· In determining the appeal in the Project Venture case, key consideration was given to whether the proposed development was “offensive, jarring or unsympathetic” to the surrounding streetscape. In the circumstances of this case, as evidenced in the architectural package submitted for the DA (as amended), the built form outcome, the bulk and scale and resultant visual impact is not considered to be offensive, jarring or unsympathetic. It is different, but remains compatible with the surrounding, again, through a combination of varied setbacks, building heights, materials, finishes and architectural treatments, stepped built forms and landscaping.

· The proposal therefore satisfies objective (b) of the standard.

Council assessment staff concurs with the applicant’s justification and concludes that the objectives of the development standard have been achieved for the following reasons:

· The overall design exhibits a complex yet rhythmic articulation of mass and form which is rare in the Bega Valley.

· Despite variations to setbacks, the amount of overshowing increase for the residents of 88 Monaro Street is considered to be minor.

· The view loss implications for 60 and 62 Merimbula Drive are moderated by the full retention of non-side views across Merimbula Lake.

· The privacy impacts for 60 and 62 Merimbula Drive are moderated by the design ‘wall’ on the northern edge of the roof top area and the 22m spacing between each the proposed hotel and the southern wall of 60 Merimbula Drive.

· The FSR controls were developed a) with low to medium density housing as the guiding principle and b) without any reference to individual site characteristics or previous lawful uses and are considered are a ‘blunt’ instrument which does not take into account

- environmental factors such as site slope

- desired future urban character

- recent strategic directions from the NSW state government to facilitate an increase density of housing stock in existing urban areas during the current ‘housing crisis’

· About 1/3 of the site is moderately steep and further excavation to reduce mass and bulk would create additional environmental impact.

· Council’s strategic planners are currently exploring ways of moving away from broadly applied FSR ratios towards an individual merit based approach for each parcel of land.

It is considered that the development is consistent with the objectives of Clause 4.4 in that the higher floor space ratio would not unduly impact the existing character and landscape of the locality when viewed from public vantage points and protect the residential amenity, views, privacy and solar access of adjoining residences.

Given the above, Council assessing staff consider that it has been demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.