NAMBUCCA

SHIRE COUNCIL

 


Ordinary Council Meeting

AGENDA ITEMS

5 May 2011

 

Council has adopted the following Vision and Mission Statements to describe its philosophy and to provide a focus for the principal activities detailed in its Management Plan.

 

Our Vision

Nambucca Valley ~ Living at its best.

 

Our? Mission Statement

 

?The Nambucca Valley will value and protect its natural environment, maintain its assets and infrastructure and develop opportunities for its people.?

 

Our Values in Delivery

?                Effective leadership

?                Strategic direction

?                Sustainability of infrastructure and assets

?                Community involvement and enhancement through partnerships with Council

?                Enhancement and protection of the environment

?                Maximising business and employment opportunities through promotion of economic development

?                Addressing social and cultural needs of the community through partnerships and provision of facilities and services

?                Actively pursuing resource sharing opportunities

 

Council Meetings:? Overview and Proceedings

 

Council meetings are held on the first and third Thursday of each month commencing at 5.30 pm.? Council meetings are held in the Council Chamber at Council's Administration Centre?44 Princess Street, Macksville.

 

How can a Member of the Public Speak at a Council Meeting?

 

1??????? Addressing Council with regard to an item on the meeting agenda:

 

Members of the public are welcome to attend meetings and address the Council.? Registration to speak may be made by telephone or in person before 2.00 pm on a meeting day.? The relevant agenda item will be brought forward at 5.30 pm in agenda order, and dealt with following preliminary business items on the agenda.? Public addresses are limited to five (5) minutes per person with a limit of two people speaking for and two speaking against an item.?

 

2??????? Public forum address regarding matters not on the meeting agenda:

 

Council allows not more than two (2) members of the public per meeting to address it on matters not listed in the agenda provided the request is received before publication of the agenda and the subject of the address is disclosed and recorded on the agenda.

 

Speakers should address issues and refrain from making personal attacks or derogatory remarks.? You must treat others with respect at all times.

 

Meeting Agenda

 

These are available from the Council's Administration Building, the Regional Libraries in Macksville and Nambucca Heads as well as Council?s website: www.nambucca.nsw.gov.au


 

NAMBUCCA SHIRE COUNCIL

 

Ordinary Council Meeting - 5 May 2011

 

Acknowledgement of Country????????? ? (Mayor)

 

I would like to acknowledge the Gumbaynggirr people who are the Traditional Custodians of this Land.? I would also like to pay respect to the elders both past and present and extend that respect to any Aboriginal People present.

 

AGENDA?????????????????????????????????????????????????????????????????????????????????????????????????? Page

 

1??????? APOLOGIES

2??????? PRAYER

3??????? DISCLOSURE OF INTEREST

4??????? CONFIRMATION OF MINUTES ? Ordinary Council Meeting - 21 April 2011

5??????? Notices of Motion

5.1???? Notice of Motion - Australian Rural Roads Group - Invitation to Join ??

6??????? PUBLIC FORUM

7??????? ASKING OF QUESTIONS WITH NOTICE

7.1???? Questions With Notice - Macksville Saleyards ??

8??????? QUESTIONS FOR CLOSED MEETING WHERE DUE NOTICE HAS BEEN RECEIVED

9??????? General Manager Report

9.1???? Outstanding Actions and Reports

9.2???? Grant Application Status Report - 30 April 2011

10????? Director Environment and Planning Report

10.1?? Outstanding DA's greater than 12 months, applications where submissions received not determined to 21 April 2011

10.2?? DA's and CDC's Received and Determined under Delegated Authority to 11 April 2011

10.3?? Fee for the Issue of Bush Fire Safety Certificates

10.4?? Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla ???

11????? General Manager's Summary of Items to be Discussed in Closed Meeting

11.1?? Loans Program 2010/2011

It is recommended that the Council resolve into closed session with the press and public excluded to allow consideration of this item, as provided for under Section 10A(2) (d) of the Local Government Act, 1993, on the grounds that the report contains commercial information of a confidential nature that would, if disclosed (i) prejudice the commercial position of the person who supplied it; or (ii) confer a commercial advantage on a competitor of the Council; or (iii) reveal a trade secret.

 

11.2?? Comet Windmills - Donation of Windmill in Lieu of Outstanding Loan Balance

It is recommended that the Council resolve into closed session with the press and public excluded to allow consideration of this item, as provided for under Section 10A(2) (b) of the Local Government Act, 1993, on the grounds that the report contains a discussion in relation to the personal hardship of a resident or ratepayer.

??

???????????


a????????? Questions raised by Councillors at 8 above

 

?????? i???????? MOTION TO CLOSE THE MEETING

?????? ii??????? PUBLIC VERBAL REPRESENTATIONS REGARDING PROPOSAL

???? TO CLOSE

?????? iii?????? CONSIDERATION OF PUBLIC REPRESENTATIONS

?????????????????? iv??????? DEAL WITH MOTION TO CLOSE THE MEETING

12????? MEETING CLOSED TO THE PUBLIC

13????? REVERT TO OPEN MEETING FOR DECISIONS IN RELATION TO ITEMS DISCUSSED IN CLOSED MEETING.

 

????????? SPECIAL GENERAL PURPOSE COMMITTEE MEETING ? 5 APRIL 2011

 

 


NAMBUCCA SHIRE COUNCIL

 

 

DISCLOSURE OF INTEREST AT MEETINGS

 

 

Name of Meeting:

 

Meeting Date:

 

Item/Report Number:

 

Item/Report Title:

 

 

 

I

 

declare the following interest:

????????? (name)

 

 

 

 

Pecuniary ? must leave chamber, take no part in discussion and voting.

 

 

 

Non Pecuniary ? Significant Conflict ? Recommended that Councillor/Member leaves chamber, takes no part in discussion or voting.

 

 

Non-Pecuniary ? Less Significant Conflict ? Councillor/Member may choose to remain in Chamber and participate in discussion and voting.

 

For the reason that

 

 

 

 

 

 

Signed

 

Date

 

 

 

 

 

Council?s Email Address ? council@nambucca.nsw.gov.au

 

Council?s Facsimile Number ? (02) 6568 2201

 

(Instructions and definitions are provided on the next page).

 


Definitions

 

(Local Government Act and Code of Conduct)

 

 

Pecuniary ? An interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.

(Local Government Act, 1993 section 442 and 443)

 

A Councillor or other member of a Council Committee who is present at a meeting and has a pecuniary interest in any matter which is being considered must disclose the nature of that interest to the meeting as soon as practicable.

 

The Council or other member must not take part in the consideration or discussion on the matter and must not vote on any question relating to that matter. (Section 451).

 

 

Non-pecuniary ? A private or personal interest the council official has that does not amount to a pecuniary interest as defined in the Act (for example; a friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).

 

If you have declared a non-pecuniary conflict of interest you have a broad range of options for managing the conflict.? The option you choose will depend on an assessment of the circumstances of the matter, the nature of your interest and the significance of the issue being dealt with.? You must deal with a non-pecuniary conflict of interest in at least one of these ways.

 

?        It may be appropriate that no action is taken where the potential for conflict is minimal.? However, council officials should consider providing an explanation of why they consider a conflict does not exist.

?        Limit involvement if practical (for example, participate in discussion but not in decision making or visa-versa).? Care needs to be taken when exercising this option.

?        Remove the source of the conflict (for example, relinquishing or divesting the personal interest that creates the conflict or reallocating the conflicting duties to another officer).

?        Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in section 451(2) of the Act apply (particularly if you have a significant non-pecuniary conflict of interest).

 

???


Ordinary Council Meeting?????????????????????????????????????????????????????????????????????????????????????????????????????? 5 May 2011

Notice of Motion

ITEM 5.1????? SF1595??????????? 050511???????? Notice of Motion - Australian Rural Roads Group - Invitation to Join

 

AUTHOR/ENQUIRIES:???? Rhonda Hoban, Councillor ????????

 

Summary:

 

Council has been invited to join the Australian Rural Road Group (ARRG) at an annual fee of $100.? The ARRG has a current membership of 115 rural based councils Australia wide and its purpose is to promote the allocation of additional Federal Government funding towards our rural local roads.

 

 

Recommendation:

 

That Council join the Australian Rural Road Group in an effort to attract additional Federal Government funding toward the cost of maintaining our local rural road network.

 

 

OPTIONS:

 

Council can take no action.

 

 

DISCUSSION:

 

The ARRG was formed in 2010, initially as an alliance of rural local governments that were highly productive with over $100 million of agricultural production in one year.? Its focus was on the economic importance of the local rural road network to agricultural production.? However, as it researched the issues involved, the social importance of the rural road network added a wider dimension.

 

The adopted objectives of the Group are as follows:

 

?????? To secure new, ongoing Government funding for the local rural road network, which is essential to support sustainable agriculture production for Australia.

 

?????? To collate and disseminate data that will assist agriculturally productive Local Government areas in Australia to obtain funding for their rural roads networks.

 

?????? To work cooperatively with both industry and community bodies that recognize and support the importance of the local road network to the Australian economy and lifestyle.

 

The ARRG recognizes that all councils share a common problem ? a complete lack of adequate funding to meet the extensive range of obligations to its residents, including in relation to rural roads.? The Group has for the past twelve months been actively involved in lobbying both State and Federal Government, including representations to the Hon Anthony Albanese MP (Minister for Infrastructure and Transport), the Hon Simon Crean MP (Minister for Regional Australia, Regional Development and Local Government) and the former NSW Shadow Minister for Roads and now Deputy Premier, the Hon Andrew Stoner MP.

 

Formed less than twelve months ago the Group has already produced an impressive report titled ?Going Nowhere: The Rural Local Road Crisis Its National Significance and Proposed Reforms and has featured in the March/April edition of Council Manager Magazine.

 

Given Nambucca Shire Council?s 590 kilometre network of rural roads, 345 kilometres of which are unsealed, the annual fee of $100 seems a relatively minor expense in the pursuit of additional funding

 


SUSTAINABILITY ASSESSMENT:

 

Environment

 

No environmental impacts identified.

 

Social

 

There are potential social advantages in the improvement of the Shires rural road network.

 

Economic

 

There are potential financial benefits to Council if the Australian Rural Roads Group are successful in securing additional State and Federal Government funding for rural roads as well as savings to our ratepayers and economic benefit to rural businesses.

 

Risk

 

There is the risk that the Australian Rural Roads Group will not be effective in securing additional funding for local rural road networks.? However, the risks associated with continuing to fall behind in the maintenance of rural roads are well known to Council.

 

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

Membership of the Australian Rural Roads Group will require an annual allocation of $100.

 

Source of fund and any variance to working funds

 

A variance of $100 to working funds will be required if funds cannot be found within the budgeted allocation for subscriptions and memberships.

 

 

Attachments:

There are no attachments for this report. ???


Ordinary Council Meeting?????????????????????????????????????????????????????????????????????????????????????????????????????? 5 May 2011

Question with Notice

ITEM 7.1????? SF15??????????????? 050511???????? Questions With Notice - Macksville Saleyards

 

AUTHOR/ENQUIRIES:???? Michael Moran OAM, Councillor ????????

 

Summary:

 

Cr Moran OAM requests answers to the following Questions with Notice in relation to the Macksville Saleyards:

 

1??????? When did Councillors decide to tender to lease in the Land Newspaper?

 

2??????? Effluent ? When did Councillors receive their report on the functions of the effluent?

 

3??????? After the last Notice of Motion we were told a meeting was to be held with farmers ? Has it been held?

 

4??????? Mr George Hicks was elected to the Committee by Notice of Motion by Councillors Ainsworth moving and seconded by Cr Finlayson.? Has Mr Hicks attended any meeting yet?

 

 

 

Recommendation:

 

That information concerning the Questions with Notice regarding the Macksville Saleyards be received.

 

 

DISCUSSION:

 

1??????? When did Councillors decide to advertise the Tender for the lease of the saleyards

 

????????? Council resolved on 15/07/2010 as follows:

 

1??????? That Council note the contents of this report in considering the recommendations in the report on workshop for saleyard safety and compliance presented to Council 17 June 2010.

 

2??????? That Council consult with the Showground committee of Management to clearly identify an area of approximately 7950sq m immediately around the saleyards for the exclusive use for the saleyards and contain the area with appropriate fencing and signage.

 

3??????? That Council undertake the minimum work required to make ready the saleyards for a long term lease arrangement (say 15 years.)

 

4??????? That Council advertise by Tender for suitably qualified parties to operate the saleyard under a 15 year lease arrangement on terms deemed necessary by councils legal advisors.

 

5??????? That a report come to Council on the response to the Tender for suitable parties to operate the saleyard under a long term lease arrangement.

 

Staff have sought feedback from the Showground Committee, The Saleyards Advisory Committee and Legal Advisors on the matter to determine the scope of a proposed lease arrangement and in a particular the minimum work required to render the yard ready for leasing. The objective was to seek to limit expenditure where possible.

 

There was a delay in obtaining definitive (at least as definitive as is possible in the circumstances) legal advise on the minimum work required.

 


2??????? When did Councillors receive the report on the effluent management plan for the saleyards?

 

????????? The Saleyards Advisory Committee reviewed the proposed Effluent Management Plan at the Saleyards Advisory Committee Meeting 29 November 2010. The minutes to this meeting were endorsed by Council on 16 December 2010.

 

????????? It should be noted that the Plan is not finalised.

 

????????? A representative from DECCW, G J Kennedy, Dingo Australia as well as the Property Officer and the Manager Water and Sewerage will be on site on 27 May 2011 to review the proposed Plan and amend it as required. The outcome however might be irrelevant as there is, at this stage, no budget allocation for the required works.

 

3??????? When will there be a meeting with the farmers?

 

????????? Council resolved on 04/11/2010:

 

????????? ?That a Saleyard seminar be held for the community after Council has received the report from Council?s Property Officer and prior to making any final decision on the future of the Saleyards?.

 

????????? Council resolved amongst other matters to undertake the minimum work required to make ready the Saleyards for long term lease arrangement.? Investigation was required therefore to determine the scope of work and cost of such work.

 

????????? By way of review Council has received numerous reports on the operation of the saleyards and in particular the concern that the current operation and facility presents an unacceptable level of risk to Saleyard patrons, livestock workers, Council and the community. This is reflected in the Risk Register compiled in 2010 wherein the Saleyard operation is listed as the third highest risk area for Council.

 

????????? Council has demonstrated a preference to continue the operation of the Saleyards wherever possible.? Accordingly the following investigation and consultation has been completed:

 

1??????? Reconvened the saleyard advisory committee to consult on? industry requirements and to obtain first hand feedback on the risks identified in the? safety and risk audit complied by South Eastern Work Place Safety . Council has received minutes of the meetings of the Saleyard Advisory Committee.

?

2??????? Meeting with the Showground Committee of Management to determine the impact of proposed changes to the showground and Saleyards and the cost to ameliorate the impact on the showground.

 

3??????? Report on the management of effluent at the Saleyards having regard to the significant site constraints and the environmental issues including SEPP62 (sustainable Aquaculture).

 

4??????? Consideration of legal advice on the management of risk at the Saleyards noting that the only way to avoid ongoing liability in relation to the premises is to either close the yards or sell the yards.

 

5??????? Formulation of a Traffic Management Plan to address heavy vehicle and light vehicle movements and parking on sale days.

 

????????? Mitigation of risk at the yards:

 

????????? The premise for leasing the yards is to reduce the risk the current operation and facility presents to the Council and community.? It must be understood however that leasing the yards does not remove liability under s10 of the Occupational Health and Safety Act. Similarly, whilst Council is afforded some protection from public liability claims in accordance with the provisions of a Lease, it is not uncommon for injured plaintiffs to claim against the landlord if the tenant has insufficient funds to meet a claim or where the cause was the landlords act or omission.

 

????????? Should Council pursue a leasing option for the continued operation of the yards it would be necessary to clearly and explicitly disclose that no warranty is made as to the compliance or otherwise of the structures at the yards.

 

????????? Notwithstanding the above staff have received legal advice which recommends that a substantial part of the facility be rendered ?fit for purpose? at the time of leasing. The ongoing risk s associated with the operational aspects and the infrastructure aspects would then be carried by the Lessee.

 

????????? The shared use of the area immediately surrounding the yard means that Council cannot remove itself from the burden of risk for this area unless it excises part of the showground for the exclusive use of the Saleyards. The Showground Committee have expressed a strong reluctance to accept any further excise of showground land pointing out that there is no land surplus to their needs.

 

????????? Further Council will remain liable for rectification of pollution if it cannot be demonstrated that the tenant was responsible for or caused the pollution. The proposed effluent management system is designed to overcome this liability.

 

????????? The EOI process is being run to identify the parties willing to operate the yards and on what terms. It is proposed that a report come to Council with details of the investigation to date as well as the outcome of the EOI. It is envisaged that the report to Council will contain? sufficient information to determine the future management of the yards and to present to a community forum . EOI close Thursday 12 May 2011.

 

????????? Overall if Council?s primary goal in dealing with the yards is to minimise its liability to outside claims the only definitive options are to either close the yards or sell the yards.

 

????????? Council can distance itself from operational risk if it attends to basic infrastructure works such as effluent management.

 

 

Outcome of consultation and investigation.

 

1??????? Council adopted the recommendations of the Saleyard Advisory Committee?s prioritisation of risk and work required at the ordinary meeting on 20 May 2010.? The Committee sought also for consideration to be made to allocate sufficient funds to the saleyard improvement budget to complete the work ?requiring urgent and immediate attention?? which was estimated at $279,000. More recent estimation of effluent control works amount to $200,000 alone.? There is currently NO budget allocation for this work.

 

2??????? The Showground Committee of Management has requested:

 

a??????? that two banks of stallion stables (totalling 10 stables) proposed for removal to accommodate the on site effluent management system be replaced;

 

b??????? that the proposed car parking and truck parking areas remain under Council control as they are necessary for the show day marshalling activities. In this regard a Lease Agreement would need to include provision for the grant of a Licence in favour of the Lessee to use the car and truck parking areas.

 

3??????? Council?s Saleyard Advisory Committee has received a report on the on site management of effluent and stormwater generated from and through the yards

 

????????? Fundamental to the proposed system is the requirement for the yards to be thoroughly washed down after each sale to enable stormwater run off to be directed to a wetland drainage system adjacent to Rodeo Drive. In the event this cannot be achieved and maintained the system will not comply and Council?s risk exposure will not be improved.

 

NOTE:? Saleyards Advisory Committee, and more particularly the current auction Licensee has advised that the requirement to thoroughly wash down the yards after each sale is not practical and cannot be economically achieved.

 

4??????? The only measures Council can take to remove itself from liability to outside claims is to either close or sell the yards. The option to lease serves to remove Council from day to day operational risk albeit not completely.

 

5??????? One of the significant risk issues indentified in the Risk and Safety Audit completed in 2010 was the nature of shared use areas in and around the yard.

 

With regard to the proposed leased area the use of the yards by community groups will be at the discretion of the Lessee as Council will not retain control of the area once leased.

 

With regard to the area immediately surrounding the yards, used for marshalling on show days and otherwise for light and heavy vehicle parking on sale days, it has been suggested that Council exclude this area from the Lease Agreement so as to retain control of the land to ensure availability to the showground committee. The lease will require specific provision for the licensed use of the parking areas by the Lessee on sale days. Council will otherwise remain responsible for the structures, maintenance and operation of this area.

 

It is difficult to envisage a management regime that will adequately control heavy vehicle movements in the shared use areas on days outside of the sale day operations as it is the authors experience that heavy vehicles frequent the yard at any time. The outcome is that Council will continue to carry the risk of this part of the Saleyard enterprise.

 

 

4??????? Has Mr Hicks attended a Saleyards Advisory Meeting yet?

 

????????? Council resolved to appoint Mr George Hicks OAM to the Macksville Saleyards Advisory Committee at the Ordinary Meeting of Council on 16 December 2010. Mr Hicks had attended the previous meeting and will be included in future meetings invitations.

 

 

 

Attachments:

There are no attachments for this report. ??


Ordinary Council Meeting?????????????????????????????????????????????????????????????????????????????????????????????????????? 5 May 2011

General Manager

ITEM 9.1????? SF959????????????? 050511???????? Outstanding Actions and Reports

 

AUTHOR/ENQUIRIES:???? Michael Coulter, General Manager ????????

 

Summary:

 

The following table is a report on all outstanding resolutions and questions from Councillors (except development consents, development control plans & local environmental plans). Matters which are simply noted or received, together with resolutions adopting rates, fees and charges are not listed as outstanding actions. Where matters have been actioned they are indicated with strikethrough and then removed from the report to the following meeting. Please note that the status comments have been made one week before the Council meeting.

 

 

Recommendation:

 

That the list of outstanding actions and reports be noted and received for information by Council.

 

 

 

No

FILE

NO

COUNCIL

MEETING

SUMMARY OF MATTER

ACTION

BY

STATUS

JULY 2009

1

SF1272

16/07/09

Council consider as a first priority the provision of a data link and adequate server for backup in the quarterly review.? That Council consider suitable remote office space to house disaster recovery equipment at the quarterly review.

 

GM

Fibre optic cable has been laid and computer hardware (backup server) has been ordered.? Hardware has been installed being:

1. ESXi host server in the library. This server runs VMware ESX which is then capable of hosting our servers in a virtual environment if required.

2. Platespin Protect. Installed on the ESX host is a virtual server dedicated to handling replications from our physical servers. Each physical server has a Platespin agent installed to facilitate this replication.

3. Fibre link between admin office and library DR site.

 

Planning is underway to update and then test Council?s disaster recovery and business continuity plan.

AUGUST 2009

2

SF544

20/08/09

Council adopt the Draft Bellwood Local Roads and Traffic Infrastructure Developer Contribution Plan and review within 12 months.

 

GM

September 2010.

Plan currently being reviewed.

Deferred to October 2010.

Not completed ? deferred to November 2010.

MANEX agreed to rehabilitate Bellwood between Pacific Hwy & Mumbler St with existing contributions.

To be included in Works Program for 2011/2012.

Enquiry to be made with D of P re progress of subdivision application.

 

DoP confirmed that subdivision application submitted, but not ready for public exhibition yet (8/3/11)

 

 

JANUARY 2010

3

SF839

21/01/10

General Manager and Directors be reminded to report on potential revotes at quarterly reviews.

 

GM

On-going.

 

 

 

 

MARCH 2010

4

SF820

20/05/10

Quarterly performance review be presented to Clrs for comment at the first Council meeting of the month; with comments to be received by the next business paper deadline; and with the Performance review + Councillors comments to be considered at the following GPC.? Also dot points be replaced with no?s & an electronic copy to be provided to those Councillors who want it.

 

GM

On-going

 

 

5

SF46

20/05/10

Council consider becoming a member of the NSW Cemetery and Crematoria Association in 12 months time.

 

DEP

Report in May 2011.

JULY 2010

6

SF638

15/07/10

Council formulate a plan of management for land which is occupied by the Valla Beach Pre-School.

 

GM

Scheduled for October 2010.

Deferred to November 2010.

Pre School unable to secure an easement over adjoining land for maintenance of bushfire buffer.? Plan of Management to be prepared following resolution of Pre School extensions.

 

7

SF218

15/07/10

Council review investigations to extend sewer to the Lower Nambucca and investigate effluent disposal issues in Eungai.

 

GM/

DEP

Letter sent to owners in Lower Nambucca.? Briefing and discussion with property owners to be arranged.

DEP to investigate Eungai.

De Groot Benson contacted concerning a meeting date in February 2011.

Information sent through to consultant.? Meeting now not likely to late March 2011.

 

Consultant advised that meeting will need to be deferred to May 2011 due to unavailability.

 

SEPTEMBER 2010

8

SF1471, SF611

2/9/2010

Write to Minister for Local Govt requesting that the LG (manufactured Home Estates etc) Regulation 2005 be amended to require proposals to locate new dwellings in caravan parks to be notified to council prior to placement

DEP

Letter sent on 10/9/2010.

No response as at 26/10/2010.

Response received from Minister for Local Government 5 November 2010 advising that the matter has been referred to the Minister for Planning for consideration. See Trim document 27096/2010.

No response from Minister for Planning as at 22/2/11.

 

No response from Minister for Planning as at 28/3/11.

 

New round of letters sent by weekending 21 April 2011.

9

SF741

16/09/10

Council pursue the potential of recovering the cost (of the enlarged sludge lagoon at the Nambucca Heads STP) from the Public Works Department.

 

GM

Contracts have been reviewed and a letter containing a claim has been sent to the PWD on 29 September 2010.? Response received from PWD on 11 October denying liability.? Meeting to be held on 28 October 2010.? Awaiting finalisation of a design for bank of sludge lagoon.

Council?s solicitor, Terry Perkins has been instructed to act on Council?s behalf in pursuing the claim.

 

GM met with PWD representatives on 2 March.? Verbal agreement has been reached on a $48,000 settlement being the foregone subsidy on the additional work.? PWD to put in writing to Council.?

 

Written offer from PWD received.? To be reported to Council.

 


OCTOBER 2010

12

SF1031

21/10/10

New policies be reported back to Council for determination.

 

GM

January 2011.

IPR current priority. Deferred to March 2011.

IPR and reformatting of Management Plan remain priorities.? Have had to defer again to April 2011. Now May 2011.

 

NOVEMBER 2010

13

SF1471

04/11/10

That a Saleyard seminar be held for the community after Council has received the report from Council?s Property Officer and prior to making any final decision on the future of the Saleyards.

 

GM

Report scheduled for December 2010.

Report scheduled for January 2011.

Property Officer to write to CMA requesting funds for improving Saleyards effluent issue.

 

Awaiting response from CMA.

 

14

PRF54

18/11/10

Council approach LPMA re future management of Boultons Crossing (Gumma) Reserve

 

GM

Letter written to LPMA 26 November 2010.? Meeting with LPMA and Committee of Management arranged for 27/1/2011.

 

Meeting held on 27/1/2011.? Awaiting advice from LPMA on bringing more crown land into the reserve and grant opportunities.

 

DECEMBER 2010

15

DA2004/136

2/12/10

That a report be provided to Councillors, as part of the quarterly budget review, regarding all costs to Council of all legal issues.

 

DEP

DES

GM

To come with quarterly budget review.

Defer to April 2011.

 

17

SF341

2/12/10

Council request from CoM involved with markets info regarding their insurance cover and a copy of any policies.

 

GM

Letters sent on 10 December 2010.

 

Responses received from 2 of 3 Committees of Management.? Information from 3rd Committee has been followed up.

To be reported in April 2011.

 

18

SF296

2/12/10

Signage at Ferry Street Macksville ? Council review after the Christmas break.

 

DEP

Report to Council in February 2011

Signs unable to be erected prior to Christmas.? Report deferred to April 2011.

 

Report further deferred to after April school holidays.

 

19

PRF53

16/12/10

Council write to Country Energy asking if electricity cables can be bundled in River Street to reduce pruning as a community service.

 

DES

Letter sent 9 February 2011.

 

Response received from Country Energy advising that the matter is being investigated.

21

SF1372

16/12/10

Council?s Strategic Planner prepare a Climate Change Adaptation Policy for future adoption by Council to ensure that actions contained in the Climate Change Adaptation Strategy are given consideration in future decision making, policy implementation, strategy development & Council staff.

 

DEP

Targeting April 2011.

 

Due to workloads this report has been deferred ? now likely to be May 2011.

22

SF844

16/12/10

That a Project Implementation Management Plan for the off-stream dam be developed to include provision for hollow bearing trees that are removed as part of the pre-clearing survey to be replaced by nesting boxes of similar dimension provided in suitable vegetation, with the catchment above the dam top water level.

 

DES

GHD commissioned.? Plan anticipated in March 2011.

 

To be included within the contract documentation as a condition imposed on the contractor obligations and compliance with the EIS.

 

JANUARY 2011

24

SF84

20/1/11

Council seek further information from the LGSA re the property based levy (for emergency services)

 

GM

Letter sent 21/1/11

25

SF84

20/1/11

Council write to RFS Commissioner re undertaking that increases in RFS contributions would be subject to review by IPART.

 

GM

Letter sent 21/1/11

FEBRUARY 2011

30

SF1508

3/2/11

Council revert to in-house monitoring of energy consumption and greenhouse gas production and revisit the option of engaging consultants for benchmarking in 12 months time.

 

DES

Report in February 2012.

32

SF755

17/2/11

Council defer demolition of the old rugby league amenities at Coronation Park for a period of 3 months to allow the Trust to complete their proposal to restore parts of the building and to demonstrate their ability to fund the project.

 

DES

Report June 2011 GPC.

33

SF1291

17/2/11

Paveline patching machine ? a further report be prepared of the year July 2010 to June 2011 for comparison with the same period in the previous year.

DES

Report to April 2011.

 

Report to August 2011.

34

SF775

17/2/11

Council liaise with the Saltwater Freshwater Festival Committee with a view to conducting the Festival in the Nambucca Valley in 2013.

 

GM

Letter sent to Committee on 21 February 2011.

35

SF787

17/2/11

Council write to the relevant Minister and Federal Government Department concerned with pest control seeking a more active approach to the control of the Indian Myna and requesting that it be officially declared as a pest.

 

DEP

Letters sent 3 March 2011.

 

Response from Minister Sartor received 15/3/11 advising that matter is being considered and a formal response will be sent in due course.? See Trim doc 6789/2011

 

New round of letters to be sent to the Relevant Minister and State Government

MARCH 2011

37

RF275

17/3/11

Council write to the Minister for Roads requesting an immediate decision on the total reconstruction of the Bowraville to Bellingen Road.

 

GM

Letter sent 22/3/2011

38

SF261

17/3/11

 

Council request the RTA to provide a breakdown of the $10m expenditure on safety improvements to the Pacific Highway between Urunga and Nambucca Heads.

 

GM

Letter sent 22/3/2011

39

SF1595

17/3/11

Council be provided with a report on other councils? (Mid North Coast Group of Councils) garbage services inclusive of waste management processes, environmental outcomes and the rate per annum.

 

DES

Report May 2011

40

SF788

17/3/11

Council write to CHCC requesting the audit report (on biomass solutions) as soon as it?s received and request a presentation on the 3 options with the opportunity to comment before CHCC determines their position.? Copy of letter to go to Bellingen SC.

 

GM

Letter sent 22/3/2011

41

DA2010/234

17/3/11

Council develop a policy as to the cumulative impacts of locating fill on the floodplain at Macksville and also review the matrix in the Floodplain Risk Management Plan

 

DEP

Brief to be prepared and new floodplain study to be undertaken during 2011.

42

PRF53

17/3/11

Further concept plans on the River Street foreshore redevelopment be prepared for Council?s consideration.

 

DES

Report April 2011.

APRIL 2011

43

 

7/4/2011

Council approach the Minister for Roads and the Local Member to request Taylors Arm Road, MR533 be reinstated as a Regional Road.

 

DES

Letter sent week ending 15 April 2011

44

 

7/4/2011

Council commence the formal procedure to rename the Congarinni Bridge the, ?Howard ?Pud? Langford? bridge.

DES

Process commenced

45

 

7/4/2011

Council receive a report on options for addressing waste disposal for the residents of Burrapine.? One of the options to be considered is a waste transfer station.

 

DES

Report to be prepared by June 2011

46

SF1595

7/4/2011

A report to come back to Council on the terms of reference for an Economic Directions Committee, including its role, selection of members, frequency of meeting, voting arrangements and any delegations of authority.

 

GM

Report to Council in May 2011

47

SF841

7/4/2011

Council request the RTA to conduct a safety review of the Pacific Highway between Eungai and Nambucca Heads with a view to undertaking interim safety works including consideration of speed zones and speed cameras.? Council seek the support of its Local Member and Deputy Premier to the request.

 

DES

Letter forwarded week ending 15 April 2011

48

SF29

7/4/2011

That a Committee be formed comprising the Mayor, library delegates, MCCS to investigate the possibility of forming a relationship with other local Council libraries and that the Committee report back to Council by Feb 2012.

 

DEP

MCCS to arrange an Inaugural Meeting

49

SF29

7/4/2011

Council write to the Clarence Valley Council asking what they anticipate future contributions to the Clarence Regional Library will be when the Strategic Plan has been completed and the planned outcomes achieved.

 

GM

Letter sent 13 April 2011

50

SF358

7/4/2011

That the GM report on the options for the use of the funds in the S94 reserve for public recreation in the Macksville/Scotts Head catchment including foreshore redevelopment at River Street, Macksville.

 

GM

Report to Council in May 2011

51

SF878

7/4/2011

That Council request a presentation from the Executive of the Mid North Weight of Loads Group at a GPC meeting.

 

DES

Request forwarded to Mid North Weight of Loads to present at a GPC

52

PRF53

21/4/2011

Foreshore redevelopment ? River Street, Macksville ? Option A stage 1 (with modifications) be placed on public exhibition for 28 days.

DES

 

53

SF84

21/4/2011

Council write to the Minister for Police and Emergency Services & complain about RFS cost increases and controls re use of fuel cards and phones.? Also why IPART don?t review cost increases and why there is a prepayment for the Volunteer & Statewide Support contribution.

DES

 

54

SF84

21/4/2011

Council submit a motion to the Shires Association Conference that the Associations write to the Minister for Police and Emergency Services raising concerns about the cost of the RFS to local government; the annual increases in Council contributions; the method of advance payment and level of reporting to local government.? Further the Minister consider improvements to the process to reduce the financial impacts on local government.

GM

 

55

SF84

21/4/2011

Council write to the Minister for Local Government, Minister for Police and Emergency Services and Local Member advising that increases in contributions to the RFS well exceed rate pegging and express Council?s concern about the lack of transparency in the increases sought.

GM

 

56

SF84

21/4/2011

Council write to the head of the local district of the RFS and request copies of annual reports of expenditure in this district for the past 5 years.

DES

 

Attachments:

There are no attachments for this report.

?


Ordinary Council Meeting?????????????????????????????????????????????????????????????????????????????????????????????????????? 5 May 2011

General Manager's Report

ITEM 9.2????? SF1389??????????? 050511???????? Grant Application Status Report - 30 April 2011

 

AUTHOR/ENQUIRIES:???? Colleen Henry, Grants Officer ????????

 

Summary:

 

At Council?s meeting on 7 December 2006 it was resolved that there be a quarterly return submitted to Council on grant programs.

 

Recommendation:

 

That the list of grant applications and their status to 30 April 2011 be received.

 

Successful grant applications:

Grant and date of approval

Funding Amount

Amount -Council

Description

Regional and Local Community Infrastructure Program

November 2010

$165,000

None required

Macksville Park ? Storage Building $45,000

Macksville Pool ? Additional Lane $20,000

E J Biffin Fields ? carpark rehabilitation $68,000

Bowraville Public amenities ? upgrade $32,000

International Women?s Day, Office of Women?s Policy

December 2010

$1,000

 

 

None required

Women?s Way Forum to celebrate efforts of women in Nambucca Shire, on International Women?s Day 8 March 2011

Office of the Premier

Community Building Partnership Program

December 2010

$70,938

Matching funding

Amenities Anderson Park, Valla Beach - $34,000

Playground Anderson Park, Valla Beach - $15,000

2NVR Assistance for relocation - $10,000

History in Print Project (Microfilm Reader) $11938

Sport and Recreation Participation Program

December 2010

$9,888

None required

Staying Strong exercise program to be delivered as part of Safe and Savvy Seniors (SASS), at Macksville Senior Citizens? Centre

Federal government election commitment? (confirmed)

$120,000

None required

Relocation of 2NVR radio station to Tewinga Hall

Better Boating program

 

$40,750

 

$14,290

Matching funding

Matching funding

Public pump-out facility at Nambucca Heads jetty

 

Lions Park Boat Ramp widening Macksville

NSW Department Ageing, Disability and Home Care

$500

None required

A Celebration in Dance

Department of Sustainability, Environment, Water etc

 

$1 million

None required

Detailed design for off river water storage

TOTAL GRANT FUNDING R?cvd

$1,422,366

 

Additions since last report:

Grant and Date of Notice

Amount

Amount - Council

Description

Saluting Their Service, Department of Veterans Affairs (Grant Officer Assisted Community Group)

$4,000

NA

Rebuilding of Taylors Arm War Memorial

Total year to date

$426,366


Applications made but not yet determined:

 

Funding Body

Amount

Amount - Council

Project Name

Department of Sustainability, Environment, Water, Population and Communities

No closing date

 

$10 million

TBC

Off-river water storage (subject to a number of conditions including detailed plans, relevant approvals, Council funding, confirmation of final project costs.

Coastline Cycleway Grant 2010-2011

Closed November 2011

$50,000

$50,000

Completion of 350m section of cycleway between Nambucca Heads and Macksville.

Department of Health and Ageing

Closed 18 February 2011

$703,607

NA

Healthy Communities Initiative

Indigenous Sport and Recreation Program

Closed 25 February 2011

$168,000

NA

Nambucca Valley Sports Facilitation Program (Ritchie Donovan)

Department of Families, Community Services and Indigenous Affairs

Closed 25 March 2011

 

$14,000

 

$6,310

Matching dollar and in kind (from 2011/2012 budget)

1 Bowraville Folk Museum internal and external access upgrades

2 Nambucca Senior Citizens Centre external access upgrade

Department of Sport and Recreation Facilities Grant

Closes 15 April 2011

$960

NA (matching funds to come from NHTTC)

1 Table Tennis Tables for NH Table Tennis Club (NHTTC)

 

$406,870

$206,870 (2011/12 budget)

2. EJ Biffen Drainage Improvement

 

$19,042

NA (matching funds to be provided by group)

3 Bowraville Cricket Club Nets and Pitch

 

$62,194

$20,000 (2011/12 budget)

4 Unkya Reserve Playground equipment and toilets.

 

Department of Regional Australia, Regional Development and Local Government - Regional Development Australia Fund

Closes 13 May 2011

$500,000

None required

Community Transport Project ? Purchase of land and building for Nambucca Heads depot.

 

 

Unsuccessful applications in this period:

 

Grant and date of application close

amount

Amount - Council

Description

Cancer Council Alive and Well

Closed 18 February 2011

$4,000

$4,000

Trees and works associated with Macksville Foreshore and Bellwood Park

 

 

 

Attachments:

There are no attachments for this report. ?


Ordinary Council Meeting?????????????????????????????????????????????????????????????????????????????????????????????????????? 5 May 2011

Director Environment & Planning's Report

ITEM 10.1??? SF1589??????????? 050511???????? Outstanding DA's greater than 12 months, applications where submissions received not determined to 21 April 2011

 

AUTHOR/ENQUIRIES:???? Barbara Parkins, Executive Assistant ????????

 

Summary:

 

In accordance with Council resolution from 15 May 2008 meeting, the development applications listed below are in excess of 12 months old (Table 1) (none are in excess of 12 months old).

 

Table 2 are development applications which have been received but not yet determined due to submissions received. In accordance with Minute 848/08 from Council meeting of 18 December 2008, should any Councillor wish to ?call in? an application a Notice of Motion is required specifying the reasons why it is to be ?called in?.

 

If an application is not called in and staff consider the matters raised by the submissions have been adequately addressed then the application will be processed under delegated authority. Where refusal is recommended the application may be reported to Council for determination.

 

 

Recommendation:

 

That the applications where submissions have been received be noted and received for information by Council.

 

 

DEVELOPMENT APPLICATIONS WHERE SUBMISSIONS HAVE BEEN RECEIVED AND ARE NOT YET DETERMINED

 

DA NO

DATE OF RECEIPT

PROPOSAL

PROPERTY DESCRIPTION

SUBMISSIONS RECEIVED/
STAFF COMMENTS

2008/139/01 Modification

22/11/2010

Pre-cast Concrete Plant

Lot 4, DP 549892, 2 Centra Park Street, Macksville

? Concerns with long term noise issues

? Disregard for operating hours noted in original consent

To be presented to Council at a future General Purpose Business Meeting

 

2011/010

01/02/2011

2 Lot Subdivision

Lot 11 DP 805157, 21 Dudley Street, Macksville

? Flooding issues ? not suitable for housing

? Area should be zoned for public recreation

? Noise issues

? Drainage problems

 

Awaiting the Planning Proposal Amend 4 to be progressed and the determination of DA 2010/234

 

 


 

DA NO

DATE OF RECEIPT

PROPOSAL

PROPERTY DESCRIPTION

SUBMISSIONS RECEIVED/
STAFF COMMENTS

2011/011

01/02/2011

13 Lot Large Lot Residential Subdivision plus new road

Lot 1 DP 1087301, Wirrimbi Road, Newee Creek

? Entrance to property compromised

? Traffic concerns

? Co-ax cable underneath subdivision

? Protection of natural waterways and erosion and siltation

? Area floodprone

? Fire hazard concerns with bushland

Concerns will be addressed when assessing the application

Awaiting additional information from applicant in relation to flora and fauna, stormwater drainage and flooding.

Additional information to be lodged week of 11/04/2011

 

2011/031

01/03/2011

4 Lot Rural and Large Lot Residential Subdivision

Lot 2 DP 828150, Upper Warrell Creek Road, Macksville

? Proposed residence too close to cattle yards

? Possible future conflicts with rural use of property

 

Awaiting additional information requested by email on 08/03/2011. Additional information not received to date. 7 day letter to be sent 21/4/11.

 

2011/053

18/03/2011

16 Unit Residential Dwellings & Associated Landscaping, Driveway and Communal Areas

Lot 1 DP 1108420, 17-23 Piggott Street, Nambucca Heads

? Use of open space area

? Loss of views

? Traffic issues

? Water run-off and drainage

? State of the road surface

? No footpaths

 

Additional information received 18/4/11.

Second referral provided to Engineering Department to address drainage issues.

 

2007/007/02

14/04/2011

Modification of Driveway for multi-housing units

Lot 1 DP 758749, 7 Bemago Street, Nambucca Heads

? Requesting centre markers of road be moved

? Speed humps to be installed

? Double lines for road safety

 

Amended plans to be submitted by the applicant for improvement works proposed within the existing road reserve.

 

 

Attachments:

There are no attachments for this report. ?


Ordinary Council Meeting?????????????????????????????????????????????????????????????????????????????????????????????????????? 5 May 2011

Environment and Planning

ITEM 10.2??? SF1589??????????? 050511???????? DA's and CDC's Received and Determined under Delegated Authority to 11 April 2011

 

AUTHOR/ENQUIRIES:???? Barbara Parkins, Executive Assistant ????????

 

Summary:

 

For Council?s information, below are listed Development Applications and Complying Development Applications received by Council and applications determined under Delegated Authority.

 

 

Recommendation:

 

That Council note the Development Applications/Complying Development Applications received and determined under delegated authority.

 

 

DEVELOPMENT APPLICATIONS RECEIVED TO 21 APRIL 2011

 

DA Number

Application Date

Applicant/Owner

Development

Address

Estimated Value

2011/059

08/04/2011

Ms J Osborne

Dwelling Additions - Verandah

Lot 4 Section 47 DP 758749, 44 Charlton Street, Nambucca Heads

10,000

2011/060

12/04/2011

Yarra Steel/A & D Sims

Dwelling Additions

Lot 21 DP 572394, 85 Sturdee Street, Macksville

27,850

2011/061

13/04/2011

Ms M Lawler

Change of use to deli/caf?/mini supermarket, sign, flooring and sinks

Lot 6 Section 2 DP 2037, 29 Wallace Street, Macksville

5,000

2011/062

19/04/2011

Mr B Wilson

Rural Shed

Lot 27 DP 723080, 135 Helliwells Road, Missabotti

23,900

2011/063

19/04/2011

Cavalier Homes North Coast/G & B Baxter

Dwelling-House and Shed

Lot 14 DP 1099448, Strawberry Road, Congarinni

332,774

 

 

COMPLYING DEVELOPMENT APPLICATIONS RECEIVED TO 21 APRIL 2011

 

DA Number

Application Date

Applicant/Owner

Development

Address

Estimated Value

2011/613

14/04/2011

Valleys to Plateau/W Frank

Dwelling Additions

Lot 1 DP 354448, 2907 Taylors Arm Road, Taylors Arm

$11,500

 

 


DEVELOPMENT APPLICATIONS/COMPLYING DEVELOPMENTS AND MODIFICATIONS DETERMINED UNDER DELEGATED AUTHORITY TO 21 APRIL 2011

 

CONSENT/ DA

PROPERTY DESCRIPTION

DEVELOPMENT DETERMINED

EST VALUE $

2011/613

Lot 1 DP 354448, 2907 Taylors Arm Road, Taylors Arm

Dwelling Additions

11,500

2010/169

Lot 86 DP 755560, 172 Mitchells Road, Valla

Legalise unauthorised dwelling and construct bathroom and laundry facilities

5,000

2011/038

Lot 2 DP 1045654, 197 Congarinni Road North, Congarinni North

Rural Shed

40,000

2002/241/01

Lot 4 DP 20529, 28 Loftus Street, Nambucca Heads

Dwelling Additions Modification

15,000

2011/030

Lot 13 DP 1057791, 7 Edgewater Drive, Nambucca Heads

Dwelling-House

235,266

2011/036

Lot 33 DP 245574, 4 Bismark Street, Nambucca Heads

Home Business to undertake food preparation in a household kitchen to prepare pizzas and transport the food in a mobile trailer for sale at local community markets and similar events

0

2011/040

Lot 3 DP 1140719, 5 Centra Park Street, Macksville

?Men?s? Shed (Community Facility)

98,000

 

Attachments:

There are no attachments for this report.

?


Ordinary Council Meeting?????????????????????????????????????????????????????????????????????????????????????????????????????? 5 May 2011

Director Environment & Planning's Report

ITEM 10.3??? SF1306??????????? 050511???????? Fee for the Issue of Bush Fire Safety Certificates

 

AUTHOR/ENQUIRIES:???? Greg Meyers, Director Environment and Planning ????????

 

Summary:

 

Council at its 17 February 2011 meeting resolved to advertise? the proposed fee of $250 for Council to issue Bush Fire safety Certificates.

 

The proposed fee was advertised from 24 February ? 25 March 2011. There were no written submissions received during the exhibition period.

 

Staff however, attended a training session during early March when the extent of consideration and work required for the Certificates was identified. In addition discussion of fees arose and the minimum charge that the RFS and Private Certifiers were contemplating was $400 plus.

 

After considering the additional information, a revised fee is proposed which is above the figure advertised.

 

 

Recommendation:

 

That Council adopt a fee of $400 for the issue of Bush Fire Safety Certificates for Complying Development proposals and this fee be reviewed annually in conjunction with fees and charges review.

 

 

OPTIONS:

 

Council could adopt a lesser fee noting that it a contestable activity that can be provided by the RFS an appropriately accredited Private Consultant or Council.

 

Council could choose to readvertise the increased fee but it is not obliged to do so.

 

DISCUSSION:

 

Council at its 17 February 2011 meeting Council considered a report on the changes to the Environmental Planning and Assessment Act regarding Complying Development and bush fire prone land. Council subsequently resolved to advertise a proposed fee of $250 for Council to issue Bush Fire safety Certificates in accordance with the legislation.

 

The proposed fee was advertised from 24 February ? 25 March 2011. There were no written submissions received during the exhibition period.

 

Staff however, attended a training session on the proposed changes during early March, when the full extent of consideration and work required prior to the issue of the Certificates was identified. The original recommended fee of $250 was reviewed and it was considered that it was not cost recoverable for the process and investigation required for the issue of the certificate.

 

Discussion on fees was also covered at the training seminar and the minimum charge that the RFS and Private Certifiers were contemplating was $400. Some certifiers in the northern rivers areas were suggesting $450 - $500 per certificate.

 

The legislation provides that this is a contestable activity which may be undertaken by the RFS, Private Certifiers or Council provided they hold the relevant qualification and accreditation.

 

It is therefore proposed that the fee for the issue of Bush Fire Safety Certificates for Complying Development should be $400.

 

Council is not bound to readvertise this proposed fee and may proceed to adopt the new fee for service for the issue of the certificate.

 

CONSULTATION:

 

RFS

Manager Health and Building Services

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

Bushfire assessment is but one step in the environmental sustainability consideration

 

Social

 

The transfer of bush fire safety assessments form a State agency to private or Council certifiers should not have any social impacts.

 

Economic

 

The costs incurred for both Council and the community will increase the costs for development application and additional workloads for staff.

 

Risk

 

It is proposed to minimise Council's risk by having only appropriately qualified and experienced staff undertake the assessment and issue of certificate.

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

This is a fee for service and income generated will cover the cost of providing the service

 

Source of fund and any variance to working funds

 

N/A

 

Attachments:

There are no attachments for this report.


Ordinary Council Meeting?????????????????????????????????????????????????????????????????????????????????????????????????????? 5 May 2011

Environment and Planning

ITEM 10.4??? DA2004/136????? 050511???????? Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 

AUTHOR/ENQUIRIES:???? Arthur Tsembis, Manager Planning and Assessment ????????

 

 

Applicant:???????????????????? Amos & McDonald

 

Proposal:????????????????????? Community Title subdivision comprising one neighbourhood lot, 5 rural residential development lots and a residue rural lot.

 

Property:?????????????????????? Lot 2 DP 548175, 346 East West Road, Valla

 

Zoning:????????????????????????? Part Rural (1a2) & part Rural (1a1) ? Rural-Residential under NLEP 1995 and part R5 (Large Lot Residential) & part RU2 (Rural Landscape) under NLEP 2010.

 

Addendum to Report presented to Council on 21 April 2011

 

This matter for a Community Title rural-residential subdivision was considered by Council at its meeting on 21 April 2011, when Council resolved:

 

'That the matter be deferred to the first available Council meeting to clarify any contested conditions.'

 

At the meeting some Councillors raised concerns about the draft condition relating to the standards applying to the construction of a private internal road. Draft condition 8 generally applies to the standard for a public road. The proposed internal road will not be dedicated as a public road or maintained by Council. The proposed road will form part of the Community Title. It is therefore considered appropriate that a reduced width should apply for the construction of a private road.

 

Council is advised that condition 8 of the draft conditions considered by Council at its meeting on 21 April 2011 included a requirement for roll top kerbing. This requirement was an RFS condition in accordance with a previous bush fire safety authority dated 31 March 2008. However, the latest bushfire safety authority dated 7 March 2011, which relates to the most up to date amended plan for the proposed Community Title subdivision, did not specifically require roll top kerbing. It should be noted that this is not a normal requirement by Council for a rural residential subdivision. As such, it is not considered necessary for roll top kerbing to be included as a condition of any development consent that may be granted by Council

 

Council previously considered the application at its meeting on 21 August 2008. With respect to the proposed internal road, Council was advised in terms of the following:

 

'Whilst, no objections are raised to the proposal subject to the imposition of a number of conditions of consent addressing access and servicing of the land, the requirement for a public road over a private road is preferred.'

 

Having regard to the above, a draft condition of consent required the proposed internal road to be constructed to a public road standard. Notwithstanding, Council resolved, inter alia, that approval be granted 'subject to changes to the conditions so as to provide for a private internal road as part of the community title.' However, the condition in the consent, which was subsequently made void by the Land & Environment Court, was not amended to reflect the change in status from a public road standard to a private road standard.

 

The standard of road construction is required to comply with the terms and conditions of the bush fire safety authority dated 7 March 2011. These requirements are included in draft condition 21. However, draft condition 8 maintained a public road construction standard (12m wide road reserve). Given that the proposed internal road is intended to be a private road, it is considered that this condition can be amended to require a lesser width for the proposed road, providing it complies with the RFS requirements.

 

Having regard to the above, it is suggested that draft condition 8 should be amended to delete the requirements for roll top kerbing, passing bays and a 12m wide road reserve.

 

The requirement under section 4.1.3(1) of Planning for Bush Fire Protection 2006 requires a two way access on a minimum 8m wide carriageway. The RFS also requires passing bays in accordance with draft condition 21.

 

The applicant previously requested the RFS to reconsider the standard for the proposed private internal road be 4m wide within a 6m carriageway, and the inclusion of passing bays to compensate for the reduced width of the carriageway. However, no specific response was received other than the Bushfire Safety Authority referring to Section 4.1.3(1) of ?Planning for Bushfire Protection 2006?

 

The requirements for the proposed internal road were discussed with the applicant and it was agreed that if a two way access road is required it negates the necessity for passing bays. However, these requirements cannot be altered without approval from the RFS.

 

In discussions with the applicant it was agreed that the best course of action would be to seek approval from Council for the proposed community title subdivision having an internal private road with an 8m wide carriageway, 12m outer radius turning circle at the end of the cul-de-sac, and passing bays in accordance with the RFS requirements. However, the applicant advised that he may need to lodge a subsequent modification application to amend the RFS requirements to either reduce the width of the carriageway and maintain the passing bays or delete the requirement for passing bays and maintain an 8m wide two way carriageway.

 

The proposed new draft condition deletes the requirements for roll top kerbing and a 12m wide road reserve, and allows a 4m wide, 2 coat bitumen sealed road within an 8m wide carriageway.

 

SUMMARY

 

The original application for a rural-residential subdivision has been amended on several occasions. The last amendment for a Community Title subdivision, comprising one neighbourhood lot, 5 rural-residential development lots and a residue rural lot, was considered by Council at its meeting on 21 August 2008. Council resolved to conditionally approve the application; however, a subsequent third party appeal against Council's determination of the application was successful.

 

Council is advised that the judgement handed down by the Court made no orders and therefore determination of the application is still pending. The application is submitted to Council for it to make a final determination of the proposed development.

 

Only two of the five challenges to the validity of the development application were successful. The first related to a failure to address mandatory relevant considerations. This failure related to consideration of Clause 13 under NLEP 1995 and consideration of all submissions lodged in respect of the development application. The other matter related to a failure to advertise the amended proposal.

 

Clause 13 of NLEP 1995 has been addressed, and all submissions are attached to this report. As such, it is considered that the mandatory provisions have now been addressed in accordance with the judgement handed down by the Court.

 

The current amended application for a Community Title subdivision, comprising one neighbourhood lot, 5 rural-residential development lots and a residue rural lot, was advertised and notified in accordance with the provisions of the Nambucca Development Control Plan 2010. This therefore addresses the procedural matter raised by the Court in that the 'amended application to which consent was eventually granted was not advertised as required by statute.'

 

 

Having regard to the judicial review and Council's legal advice, it is considered that Council is now able to make a final determination of the application.

 

NOTE: This matter requires a ?Planning Decision? referred to in Section 375A of the Local Government Act 1993 requiring the General Manager to record the names of each Councillor supporting and opposing the decision.

 

 

 

Recommendation:

 

1????????? That in accordance with Section 80(3) of the EP&A Act, development application DA 2004/136 for a Community Title subdivision comprising one neighbourhood lot, 5 rural-residential development lots and a residue rural lot be approved subject to the conditions attached to this report.

 

2???????? That those persons making submission to the application be notified of Council?s decision.

 

 

OPTIONS:

 

In accordance with Section 80(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) Council has the option to determine the application by:

 

1????????? Granting consent to the application unconditionally or,

2????????? Granting consent with conditions, or

3????????? Refusing consent to the application.

 

It should be noted that if Council decides to determine the application by refusing to grant consent, Council will need to provide reasons for the refusal.

 

Council has the option to amend the draft conditions of the development consent and/or include the following conditions suggested by the Nambucca Valley Conservation Association and the Nambucca Heads Local Aboriginal Land Council:

 

c??????? the Neighbourhood Management Statement include a requirement to submit regular reports (annually) including photos which demonstrate compliance with the Koala Plan of Management, Environmental Management Plan, tree planting and maintenance program.

 

d??????? the applicant shall make arrangements for a representative of the Nambucca Heads Local Aboriginal Land Council to be present and monitor any clearing of vegetation and whilst the soil is being turned during subdivision works.

 

Council also has the option to:

 

e??????? provide a written assurance to the Nambucca Valley Conservation Association that Council staff will undertake random audits to ensure compliance with all environmental conditions. (Noting that if Council was to include this requirement a fee should also be included )

 

 

BACKGROUND:

 

The development application for an 11 lot rural-residential subdivision was originally lodged with Council on 13 October 2003. The application was amended on several occasions and the last amendment for a Community Title subdivision comprising one neighbourhood lot, 5 rural-residential development lots and a residue rural lot was considered by Council at its meeting on 21 August 2008. A copy of this report is attached for Council?s information. Council resolved, inter alia, in terms of the following:

 

1??????? That Development Application 2004/136 be approved subject to changes to the conditions so as to provide for a private internal road as part of the community title.

 

2??????? Consent for Development Application 2004/136 be granted subject to the conditions of consent attached to this report.

 

Consent was duly issued; however, the Environmental Defender's Office Ltd (EDO) lodged a third party appeal on behalf of Nambucca Valley Conservation Association Inc (NVCA).

 

The outcome of the appeal was considered by Council at its meeting on 1 April 2010. A copy of this report is attached for Council?s information. A copy of the judgement is available online at

Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 or upon request from the Manager Planning and Assessment.

 

As noted in the report, only two of the five challenges to the validity of the development application were successful. The first related to a failure to address a relevant provision in the planning instrument and the other matter related to a failure to advertise the amended proposal.

 

With respect to the first matter, the Court held that Clause 13 under Nambucca Local Environmental Plan (NLEP) 1995 was not referred to in the report considered by Council and therefore the matter was not properly considered under the provisions of Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (EP&A Act). Similarly the Court held that the amended proposal should have been advertised and all submissions previously received should have been annexed to the report.

 

Council when dealing with the matter was advised in terms of the following:

 

'In accordance with the judgement handed down by Justice Biscoe no orders were made under 25B of the Land and Environment Court Act 1979. This essentially means that the development application is as it was on the date before Council granted development consent. As such, determination of the application is still pending. Given that the application is still outstanding it is considered that the only option for Council is address the issues raised in the judgement and make a final determination of the development application.'

 

It should be noted that the Court did not find the development assessment was deficient in terms of any matters relating to flora and fauna, including any significant impact on the koala and its habitat. The concerns raised by the Court related to procedural matters. Notwithstanding, Council's solicitor advised that a full and proper assessment should be undertaken before Council makes its final determination. As such it was considered prudent that the applicant should be required to submit an up to date flora and fauna assessment report. Council at its meeting on 1 April 2010 resolved to adopt the following recommendations:

 

That Council process DA 2004/136 by advertising and notifying the amended community title rural-residential subdivision and addressing all the relevant matters, including consideration of any new and previous submissions, relevant matters for consideration under Section 79C of the EP&A Act, including Clause 13 of the NLEP 1995, before final determination of the application by Council.

 

That the applicant be advised that before Council can further consider DA 2004/136 an updated supplementary flora and fauna report is required for Council?s consideration. Such report shall address any new information not previously considered that may impact on threatened species, populations or ecological communities, or their habitats. The report should determine the significance of any such impact and if a Species Impact Statement (SIS) is required in accordance with the Threatened Species Conservation Act 1995.

 

The applicant was advised in terms of the above by letter dated 7 April 2010. An updated flora and fauna assessment report prepared by Darkheart Eco-Consultancy dated 5 June 2010 was submitted to Council on 15 June 2010.

 

Following a preliminary assessment of the updated flora and fauna assessment report the consultant was verbally advised that the 7 Part Test was incomplete and additional information was required to fully address all the threatened species identified in the report. Further additional information to address this issue was submitted to Council by letter dated 30 July 2010.

 

 

CONSULTATION:

 

The application was referred to: the Department of Environment Climate Change and Water (DECCW); Nambucca Heads Local Aboriginal Land Council (NHLALC); the Department of Planning (DoP); and, the NSW Rural Fire Service (RFS).

 

DECCW (Office of Water:

 

The Office of Water provided its General Terms of Approval (GTA) by letter dated 30 August 2010. If the proposed development is approved, Council is required to include the GTA as conditions of any development consent granted.

 

A copy of the letter is attached for Council?s information.

 

DECCW (Environment Protection and Regulation):

 

The Environment Protection and Regulation Branch of DECCW advised Council by letter dated 19 August 2010 in terms of the following:

 

'Given that DECCW does not have any statutory responsibilities with respect to the above sections of the EP&A Act, we do not wish to make any further submission on the DA or the supplementary information provided to Council by Darkheart Eco-Consultancy.'

 

A copy of the letter is attached for Council?s information.

 

Nambucca Heads Local Aboriginal Land Council

 

The NHLALC advised Council by letter dated 16 August 2010 it does not object to the development application progressing. Notwithstanding, the NHLALC has requested that a representative be present on the site to monitor clearing of vegetation and whilst the soil is being turned.

 

Council may wish to consider including the request for a site monitor as an additional condition of any development consent that may be granted. However, there is a standard condition that requires work to cease 'in the event of any bones, or stone artefacts, or discrete distribution of shell, being unearthed during earthworks' and the LALC and the NP&WS to be informed of the discovery.

 

A copy of the letter is attached for Council?s information.

 

Department of Planning

 

The DoP advised Council by letter dated 2 September 2010 that the number of lots approved by Council was at odds with the subdivision layout provided in the approved Koala Plan of Management (KPoM). The DoP states:

 

'While the amended subdivision plan is not considered problematic in terms of impacts on koala habitat, it would appear that the development consent issued by Council does not correspond with the approval granted by the Department.'

 

Having regard to the above, a revised KPoM was required for approval by the DoP. The applicant submitted an updated KPoM on 5 November 2010. The DoP subsequently advised Council by letter dated 21 December 2010 that an Environmental Management Plan (EMP) should be prepared in accordance with the original conditions of approval granted by the Department.

 

Any approval granted by Council will require the preparation of an EMP in accordance with condition 3 of the previous consent made void by the Court.

 

The DoP has requested the inclusion of another requirement to 'prohibit the clearing of native vegetation, restrict the keeping of domestic cats and dogs and require certain design features for swimming pools on the site.'

 

The DoP also raised the question of rezoning the proposed Community Lot to an environmental protection zone. The owner previously advised Council by letter dated 28 October 2010 that he had no objection to rezoning of the subject land to an environmental protection zone. Council can initiate an appropriate amendment when a review is undertaken of Council's current planning instrument (NLEP 2010).

 

A copy of the DoP letters dated 2 September 2010 and 21 December 2010 are attached for Council?s information.

 

NSW Rural Fire Service

 

The RFS advised Council by letter dated 13 September 2010 that an updated bushfire assessment report was required.

 

The applicant submitted an amended Bushfire Hazard Assessment report prepared by Holiday Coast Bushfire Solutions dated 27 October 2010.

 

The RFS advised Council by letter dated 21 December 2010 that further additional information was required to enable the Service to properly assess the application. After receipt of the additional information the RFS provided its bushfire safety authority by letter dated 7 March 2010. The terms and conditions of the RFS approval will be included in any development consent that may be granted by Council.

 

A copy of the RFS letters dated 13 September 2010, 21 December 2010 and 7 March 2011 are attached for Council?s information.

 

 

SUBMISSIONS:

 

Council is advised that no submissions were received during the exhibition period of the original proposal for an 11 lot rural-residential subdivision. However, eight (8) letters of objection were received in September and October 2006, including submissions from the Nambucca Valley Conservation Association, the National Parks Association of NSW and the Scotts Head Protection Group. The objections primarily related to clearing of land, likely impact on threatened species and potential for pollution of Buchanan's Creek.

 

An amended proposal for an 8 lot rural-residential Community Title subdivision was renotified to adjoining residents by letter dated 15 January 2008. All those that previously objected to the original proposal were also notified of the amended proposal. Only one submission was received from a local resident during the exhibition period. This submission maintained their original objection relating to loss of koala habitat, impact on threatened species and potential contamination of Deep Creek. A further submission dated 30 July 2008 was lodged by these residents requesting that Council not make a decision on the application due to the closeness of Council going into caretaker mode.

 

A letter of objection dated 21 July 2008 was received from the Nambucca Valley Conservation Association. This submission maintained its previous objections and also raised concern that Council should not deal with the application whilst it is in a 'caretaker' role.

 

Another letter dated 22 September 2008 expressed concern about the approval granted after Council's determination of the application on 21 August 2010.

 

The current proposal for a Community Title subdivision was advertised for a period of 28 days from 2 July 2010 until 2 August 2010. The application was also notified to adjoining residents and all those that previously lodged a submission. Having regard to the controversial nature of the application, it was considered necessary to renotify and readvertise the application with the additional flora and fauna information. As a result of such action three (3) submissions were received.

 

Two (2) of the submissions raised concern about the amount of dust likely to occur during construction. There is a standard condition relating to dust suppression during construction that can be included in any development consent that may be issued by Council.

 

The third submission was from the Nambucca Valley Conservation Association (NVCA). The NVCA advised that it previous concerns and objections remain unchanged. The objections essentially relate to impacts on biodiversity, clearing of native vegetation and impacts on koala habitat.

 

Notwithstanding the objection, the NVCA has suggested certain condition should be included in any consent if the proposed development is approved by Council. In this regard Council is advised that a requirement to rezone the Community Title Lot to an environmental protection zone has been addressed. The request for a prohibition of cats and dogs has also been addressed and a condition will be included in any consent that may be granted. Council may wish to consider including the other request for regular reports and random audits as additional conditions of any development consent that may be granted. However, it is considered that adequate conditions of consent will be included to address and mitigate any likely environmental impacts. It is also considered that random audits may not be warranted because Council is obliged to act on any breach of any development consent conditions that are brought to Council's attention.

 

In addition to the three submissions, there have been another 12 submissions which were either previously circulated and/or addressed in other reports dealing with the proposed development. To ensure the concerns raised by the Court are fully addressed, copies of all 15 submissions are attached to this report for Council?s information.

 

MATTERS FO CONSIDERATION UNDER S79C EP&A ACT:

 

Council is required to evaluate the proposed development and address the relevant matters for consideration under the provisions of Section 79C of the EP&A Act.

 

S79C(1)(a)(i) ? the provisions of any planning instrument

 

Council's current planning instrument is NLEP 2010. However, Clause 1.8A of NLEP 2010 states:

 

'If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.'

 

Having regard to the above, the application is only required to be assessed in accordance with the relevant provisions of NLEP 1995.

 

Except for Clause 13 of NLEP 1995, it is considered that the previous development assessment undertaken in the report considered by Council at its meeting on 21 August 2008 adequately addressed all the relevant provisions in accordance with the matters for consideration under Section 79C(1)(a)(i) of the EP&A Act.

 

Clause 13 of NLEP 1995 relates to 'What general considerations apply to development?' Clauses 13(1) and (2) are relevant. These provisions state:

 

1??????? The Council must not consent to development on rural land (except where shown inside the indicative broken black line on the map) without taking into consideration the effect of the carrying out of that development on:

 

a??????? the present use of the land, the potential use of the land for the purpose of agriculture and the potential of any of the land which is prime crop and pasture land for sustained agricultural production;

 

b??????? vegetation, timber production, land capability (including soil resources and soil stability) and water resources (including the quality and stability of water courses and ground water storage and riparian rights);

 

c??????? the future recovery of known or prospective areas of valuable deposits of minerals, coal, sand, gravel or other extractive materials;

 

d??????? the protection and conservation of areas of significance for nature conservation (including wildlife habitat areas and corridors, significant wetlands, dunes or remnant rainforest vegetation systems) or of high scenic or recreational value, and places and buildings of archaeological or heritage significance, including Aboriginal relics and places; and

 

e??????? the cost of providing, extending and maintaining public amenities and services to the development.

 

2??????? As well as the matters referred to in Subclause (1), the Council must take into consideration the relationship of the proposed development to development on adjoining land or on other land in the locality.

 

The provisions under Clause 13 only relate to rural zoned land that is not within the 'broken black line'. The previous MPA considered Clause 13 in the original development assessment for the proposed 11 lot rural-residential subdivision. In this regard he stated:

 

'The proposed development will generally occur within the rural-residential zone and not the rural zoned land. The SW corner of the land is zoned Rural 1(a2). This portion will be split between proposed Lots 1 and 2. The dwelling envelopes for both of these lots will be established in the rural-residential zone, not the Rural 1(a2) zone.

 

The NE portion of the land is zoned 1(a1) and will not be affected by the proposed development. Therefore, there will be very little impacts likely within the Rural zones. The majority of expected impacts will be within the rural-residential zone.

 

The lot numbers may have changed but the development assessment undertaken by the previous MPA in accordance Clause 13 still remains relevant. In as far as the Court was concerned this matter should have been included in the development assessment for the amended proposal for the Community Title subdivision, which is now the subject of this report for Council's further consideration. It is considered that having regard to the above, Clause 13 of NLEP 1995 has now been adequately addressed to satisfy Council's due consideration of the application relating to 'the provisions of any environmental planning instrument' in accordance with Section 79C(1)(a)(i) of the EP&A Act.

 

It is considered that the other aspects of S79C(1)(a)(ii)(iii)(iv) & (v) have been adequately addressed in the report considered by Council at its meeting on 21 August 2008.

 

S79C(1)(b) ? likely impacts of the development

 

It is considered that that the provisions of S79C(1)(b) have been adequately addressed in the report considered by Council at its meeting on 21 August 2008.

 


S79C(1)(c) ? suitability of the site for the development

 

It is considered that that the provisions of S79C(1)(c) have been adequately addressed in the report considered by Council at its meeting on 21 August 2008.

 

S79C(1)(d) ? any submission made in accordance with the Act or Regulation

 

Having regard to the judgement handed down by the Court, it is not considered that that the provisions of S79C(d) have been adequately addressed in the report considered by Council at its meeting on 21 August 2008.

 

The current amend application has been advertised and notified in accordance with the provisions of the Nambucca Development Control Plan 2010. As a result of such action three (3) submissions were received. However, the proposed development previously attracted eleven (11) other submissions. All submissions have been attached to this report for Council's information and due consideration. This now overcomes the perceived problem as far as the Court was concerned that not all submissions were annexed to the report considered by Council at its meeting on 21 August 2010.

 

79C(1)(e) ? the public interest

 

It is considered that the provisions of S79C(1)(e) have been adequately addressed in the report considered by Council at its meeting on 21 August 2008.

 

 

CONDITIONS

 

It is considered the conditions attached to the consent dated 28 August 2008, made void by the Court, are generally appropriate for any new consent that may be granted by Council. The conditions have been modified to reflect the most up to date information, and conditions added to ensure any approval granted is in keeping with Council's current requirements.

 

A copy of the proposed conditions of approval are provided at the end of this report, for Council's consideration.

 

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

It is considered that the following previous advice provided to Council at its meeting on 21 August 2008 is still relevant:

 

The overriding concern with the rural-residential development of the land is the loss of vegetation and disturbance to the natural environment resulting from the development of the land. To overcome these concerns and ensure that the development is consistent with clause 16, Council?s Planning Department has successfully negotiated with the applicant to amend the proposed development to a community title subdivision with a reduced number of private lots. As a result, the development of the land will largely be restricted to existing cleared and disturbed areas. Further impacts associated with the development of the land will be effectively managed by the adoption of an ongoing environmental management regime over the whole of the development site.

 

Social

 

It is considered that the social aspects of the proposed development have been adequately address in this report and the previous report considered by Council at its meeting on 21 August 2008.

 


Economic

 

As previously advised, 'there are no economic issues arising from the development.'

 

Risk

 

Having regard to the judgement handed down by the Court, it is considered unlikely there will be a risk of any further appeal against Council's determination of the application.

 

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

There is not likely to be any further impact on Council's current or future budgets.

 

Source of fund and any variance to working funds

 

Not applicable.

 

 

PROPOSED CONDITIONS OF CONSENT

 

GENERAL CONDITIONS

 

Development is to be in accordance with approved plans

 

1??????? The development is to be implemented generally in accordance with the plans and supporting documents endorsed with the Council stamp and authorised signature, set out in the following table except where modified by any conditions of this consent.

 

Plan No/Supporting Document

Version

Prepared by

Dated

Neighbourhood Plan (Sheet 1)

Ref: 04338MR

William James McDonald (Surveyor)

28/11/07

Plans of Subdivision (Sheets 1-6 and Access Way Plan)

Ref: 04338MR

William James McDonald (Surveyor)

28/11/07

SEPP44 Koala Habitat Management Plan

 

Jason Berrigan (Senior Ecologist) of DARKHEART Eco-Consultancy

November 2010

Addendum to Ecological Impact Assessment report (2005)

 

Jason Berrigan (Senior Ecologist) of DARKHEART Eco-Consultancy

4 November 2010

Neighbourhood Management Statement

 

 

undated

Bushfire Hazard Assessment Report

Cert No: BPD-PA-09420

Holiday Coast Bushfire Solutions

27/10/2010

 

In the event of any inconsistency between conditions of this development consent and the plans/ supporting documents referred to above, the conditions of this development consent prevail.

 

Note: The Neighbourhood Management Statement (NMS) endorsed by Council is stamped and dated 28 August 2008. The final NMS shall be submitted to Council in accordance with condition 14 and include the Environmental Management Plan (EMP) in accordance with conditions 3 & 15.

 


Design Changes: Amended plans required

 

2??????? The design of the development is to be modified as set out in the following table. Amended plans and specifications incorporating the following design amendments must be incorporated in the plans and specifications submitted with the application for a Construction Certificate:

 

Design Amendment

Reason for Amendment

Survey plan confirming that building envelopes for each lot are located wholly within existing cleared areas.

To ensure vegetation clearing is minimised in the provision of building envelopes and asset protection zones.?

 

No works on environmentally sensitive land

 

3??????? Except for works required to construct the internal road and emergency bushfire track, no other works are to take place on that part of the land identified as proposed Lots 1 and 7. In particular no trees are to be damaged or removed, and no buildings or structures are to be erected.

 

 

CONDITIONS TO BE COMPLIED WITH PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE FOR SUBDIVISION WORKS

 

Environmental Management Plan required

 

4??????? An Environmental Management Plan (EMP) must be prepared by a suitably qualified Environmental

Consultant and submitted for Council's approved. The EMP must satisfy the following criteria:

 

?????????? Compliance with Action Plans A-H inclusive and required monitoring and reporting measures as detailed in KPM dated November 2010 prepared by Darkheart Eco-Consultancy, noting that a compensatory replanting ratio of 10:1 is required as part of Action Plan A.

 

?????????? Compliance with ameliorative measures and recommendations as detailed in Addendum to Ecological Impact Assessment report (2005) prepared by Darkheart Eco-Consultancy dated 4 November 2010.

 

The EMP must also include a comprehensive planting and regeneration programme that details:

 

?????????? The actual area proposed for compensatory plantings and how it relates to and connects to the koala habitat. A compensatory replanting ratio of 10:1 is required.

?????????? The flora species/vegetation communities to be planted (and the basis for choosing such) and the relationship to habitat that will be lost.

???????? The final density to be achieved within the area through compensatory plantings and the basis for choosing such density.

???????? Management and monitoring activities to be undertaken to ensure the successful establishment of the plantings at the targeted density (including watering, mulching, use of tree guards, replacement of failed plants, fencing of the area and their on-going protection, and to determine koala use.

???????? An annual monitoring program of koala usage of the site for a minimum period of five years from completion of the construction of the dwelling.

???????? The length of the proposed monitoring and management period , the establishment and time frame for key milestones and reporting requirements (including koala sightings, injuries and mortalities).

???????? Measurable performance indicators that can be used to determine success and compliance.

???????? The value of the proposed replanting works and the method of financial assurance to be provided to ensure work is completed to set requirements.

???????? A contingency plan for application in the event of failure of the plantings or other potential occurrences which may affect koalas on the site.

 

Erosion and Sedimentation Control Plan

 

5??????? The plans and specifications to accompany the construction certificate application are to include a sediment and erosion control plan to indicate the measures to be employed to control erosion and loss of sediment from the site. The sediment and erosion control plan is to be designed in accordance with the requirements of the NSW Department of Housing Manual (1989), Managing Urban Stormwater, Soils and Construction.

 

????????? The sediment and erosion control plan must be prepared by a suitably experienced person such as a person certified by:

 

??????????? The Institution of Engineers, Australia, for engineering and hydrology matters.

??????????? The International Erosion Control Association for soil conservation matters.

??????????? The Australian Society of Soil Science for collection or analysis of soil data.

 

????????? The plan must incorporate (without being limited to) information on general site management, material handling practices, soil stabilisation, water control, sediment control, wind erosion control and access measures.

 

Controlled Activity Approval

 

6??????? A Controlled Activity Approval under the Water Management Act 2000, in accordance with the conditions of the General Terms of Approval (GTA) dated 30 August 2010, must obtained from the NSW Office of Water for the installation of piped drainage culvert within the proposed new road.

 

On-site sewage management facility Section 68 approval required

 

7??????? An approval under Section 68 of the Local Government Act 1993 for on-site effluent disposal must be obtained from Council. The application for Section 68 approval must be accompanied by a report prepared by a suitably qualified professional with demonstrated experience in effluent disposal matters, which addresses the site specific design of sewage management in accordance with the requirements of the NSW Local Government Act, and Approvals Regulation and Guidelines approved by the Director General.

 

Engineering Construction Plans

 

8??????? Three (3) copies of engineering construction plans and specifications must accompany the construction certificate application. Such plans are to provide for the works in the following table in accordance with Council?s current Design and Construction Manuals and Specifications.

 

Required work

Specification of work

Roads Rural ? sealed roads (Private)

Private internal road having a 4m wide, 2 coat bitumen seal within a minimum 8m wide carriageway.

 

Sealed cul-de-sac with 12m outer radius turning circle.

 

Intersection

The intersection of the proposed new private road with East West Road shall be constructed to the requirements of Council?s Aus-Spec Design and construction specifications.

 

Street Name Signs

Street name signs and posts to all proposed new roads. (Note: street/road names proposed for the subdivision must be submitted for Council approval prior to lodgement of the Subdivision Certificate application. A suitable name for any new road/s must be in accordance with Council?s adopted policy).

Culverts required across drainage channels or streams

Culvert to be designed to ensure that peak flow rates for the 1 in 100 year storm event are not affected. The applicant is to obtain any necessary approvals from the NSW Office of Water.

 

All weather fire trail surrounding the development and linking with East West Road

The access is to be suitable for two (2) wheel drive vehicles with 4m wide gravel pavement of 150mm depth within a 6m wide formation.

 

Fire Trails shall comply with 4.1.3(3) of Planning for Bushfire Protection 2006.

 

Vegetation clearing around the site of the subdivision

Construction plans for road works shall include a plan of vegetation clearing identifying trees to be removed during the construction phase.

 

 

 

THE FOLLOWING CONDITIONS MUST BE COMPLIED WITH PRIOR TO COMMENCEMENT OF SUBDIVISION WORKS

 

Written Notification

 

9??????? Written notification of intention to commence works must be forwarded to the Council seven (7) days prior to work commencing. Notification is to include contact details of the supervising engineer and site contractor.

 

Erosion & sediment measures

 

10????? Erosion and sedimentation controls are to be in place in accordance with the approved Erosion and Sediment Control Plan.

 

Note: Council may impose on-the-spot fines of up to $600 for non-compliance with this condition.

 

Consent required for works within the road reserve

 

11????? Consent form Council must be obtained for all works within the road reserve pursuant to Section 138 of the Roads Act 1993. Three (3) copies of engineering construction plans must accompany the application for consent for works within the road reserve. Such plans are to be in accordance with Council?s adopted Engineering Standard.

 

 

THE FOLLOWING CONDITIONS MUST BE COMPLIED WITH DURING CONSTRUCTION OF SUBDIVISION WORKS

 

Construction times

 

12????? Construction works must not unreasonably interfere with the amenity of the neighbourhood. In particular construction noise, when audible on adjoining residential premises, can only occur:

 

a??????? Monday to Friday, from 7.00 am to 6.00 pm.

b??????? Saturday, from 8.00 am to 1.00 pm.

 

No construction work is to take place on Sundays or Public Holidays.

 

Construction dust suppression

 

13????? All necessary works are to be undertaken to control dust pollution from the site.

 

These works must include, but not are limited to:

 

a??????? restricting topsoil removal;

b??????? regularly and lightly watering dust prone areas (note: prevent excess watering as it can cause damage and erosion;

c??????? alter or cease construction work during periods of high wind;

d??????? erect green or black shadecloth mesh or similar products 1.8m high around the perimeter of the site and around every level of the building under construction.

 

Maintenance of fencing to protect trees

 

14????? Fencing (or other means of visual identification) required to protect trees to be retained is to be maintained for the duration of the site clearing, preparation and construction works. During site works and construction all measures are to be taken to prevent damage to trees and other vegetation (including root systems) to be retained.

 

Responsibilities under the National Parks and Wildlife Act 1974

 

15????? All earthmoving contractors and operators must be instructed that, in the event of any bone, or stone artefacts, or discrete distributions of shell, being unearthed during earthmoving, work must cease immediately in the affected area, and the Local Aboriginal Land Council and officers of the National Parks and Wildlife Service, informed of the discovery. Work must not recommence until the material has been inspected by those officials and permission has been given to proceed. Those failing to report a discovery and those responsible for the damage or destruction occasioned by unauthorised removal or alteration to a site or to archaeological material may be prosecuted under the National Parks and Wildlife Act 1974, as amended.

 

 

CONDITIONS TO BE COMPLIED WITH PRIOR TO ISSUE OF SUBDIVISION CERTIFICATE

 

Plan of Subdivision

 

16????? An application for a Subdivision Certificate must be made on the approved form. The Subdivision Certificate fees, in accordance with Council's adopted schedule of fees and charges, must accompany such application. Seven (7) copies of the plan of subdivision are to be submitted with the application for a subdivision certificate. The location of all buildings and/or other permanent improvements including fences and internal access driveways/roads must be indicated on 1 of the copies.

 

Plan of Subdivision, Section 88B Instrument and Neighbourhood Management Statement requirements

 

17????? A Neighbourhood Management Statement and 1 copy are to be submitted with the application for a subdivision certificate. The final plan of subdivision and accompanying Management Statement are to provide for the items listed in the following table:

 

Item for inclusion in Plan of Subdivision and/or Section 88B Instrument

Details of Item

Dwelling Envelope

Restrictions to limit the erection of dwellings to the nominated dwelling envelope.

Effluent Disposal Area

Restrictions to limit any development, other than effluent disposal systems and associated works, to the nominated effluent disposal areas.

Easements

Easement to provide access by Rural Fire Service for Bushfire prevention maintenance and fire fighting purposes.

Bushfire Prevention

20,000 litre dedicated water supply for each lot with 65mm storz fittings.

 

Management Statements

 

18????? The Neighbourhood Management Statement and one (1) copy are to be submitted with the application for a subdivision certificate.

 

The Neighbourhood Management Statement shall include the Environmental Management Plan (EMP) (required by condition No 4) as an acknowledged appendix to the document.

 

Completion of All Works

 

19????? All roads, drainage and civil works, required by this development consent and associated Construction Certificate, are to be completed.

 

All lots to be hazard reduced so that adequate APZ?s are provided around the perimeter of the building envelopes as outlined within Planning for Bushfire Protection 2006 and the NSW Rural Fire Service document standards for asset protection zones.

 

All physical requirements for ameliorative measures and recommendations and action plans as detailed in the ecological assessment and KPM, including compensatory landscaping.

 

Erection of Street Signs

 

20????? The subdivider is to supply and erect street signs for the approved street names in accordance with this development consent and the Construction Certificate approval.

 

Bush Fire Management Plan to be implemented

 

21????? Bushfire protection measures must be undertaken in accordance with the Bush Fire Management Plan submitted with the application. Additional details to comply with NSW Rural Fire Service requirements shall include:

 

a??????? A restriction to the land use pursuant to Section 88B of the Conveyancing Act 1919 shall be placed on all lots within the subdivision requiring the provision of asset protection zones (APZ) as identified on the drawing prepared by Amos & McDonald Surveyors numbered 04338 dated 29/10/2010. APZ shall be managed as outlined within Section 4.1.3 and Appendix 5 of the ?Planning for Bushfire Protection 2006? and the NSW Rural Fire Service?s document Standards for Asset Protection Zones?.

 

b??????? Water, electricity and gas are to comply with Section 4.1.3 of the ?Planning for Bushfire Protection 2006?.

 

c??????? The access road shall comply with the following requirements of Section 4.1.3 (1) of the ?Planning for Bushfire Protection 2006?:

 

?????????? Road(s) shall be two-wheel drive, all weather roads.

?????????? A minimum carriageway width of 4m is provided.

?????????? Dead end roads are not recommended, but if unavoidable, dead end roads incorporate a 12m outer radius turning circle, are clearly signposted as dead end and direct traffic away from the hazard.

?????????? All roads to have a cross fall not exceeding 3 degrees.

?????????? Maximum grades for sealed roads do not exceed 15 degrees and an average grade of not more than 10 degrees or other gradient specified by road design standards, whichever is the lesser gradient.

?????????? There is a minimum vertical clearance to a height of 4m above the road at all times.

?????????? The capacity of road surfaces and bridges is sufficient to carry fully loaded fire fighting vehicles (approximately 15 tonnes for areas with reticulated water, 28 tonnes or 9 tonnes per axle for all other areas). Bridges clearly indicate load rating.

?????????? Passing bays are to be provided adjacent to the building envelopes on proposed Lots 2, 3, 4, 5 and 6. Parking is not permitted within the passing bays.

 

d??????? Fire trails shall comply with Section 4.1.3 (3) of ?Planning for Bushfire Protection 2006?.

 

e??????? A Statement of Management is to be established that addresses the creation and ongoing maintenance of the suite of bushfire protection measures identified in Section 7.5 of the Bushfire Hazard Assessment Report prepared by Holiday Coast Bushfire Solutions dated 27/10/2010.

 

Certificates for Engineering Works

 

22????? The submission of all test certificates, owners manuals, warranties and operating instructions for civil works, mechanical and/or electrical plant, together with a certificate from a suitably qualified engineer certifying that all works have been constructed in accordance with the approved plans and Council?s Adopted Engineering Standard.

 

Works-As-Executed Plans

 

23????? Works-as-executed plans, certified by a suitably qualified engineer or a registered surveyor, are to be submitted with the application for a subdivision certificate. Where the design is carried out utilising computer aided design CAD, all cad computer files are required to be provided on CD (Compact Disc) with the final drawings. The CAD files must include all lot and road boundaries, lot numbers and easements. The data is to be supplied in accordance with the requirements of Council?s GIS Officer.

In the case where development involves filling of flood prone land, an additional copy of the works-as-executed plan relating to earthworks and final plan of subdivision must be submitted detailing the 1% flooding contour.

 

Electricity Supply Certificate

 

24????? Written evidence from an electricity supply authority is to be submitted with the application for a subdivision certificate stating that satisfactory arrangements have been made for the provision of electricity supply throughout the subdivision.

 

Telephone Supply Certificate

 

25????? Written evidence from Telstra is to be submitted with the application for a subdivision certificate stating that satisfactory arrangements have been made for the provision of telephone supply throughout the subdivision.

 

Contribution to be paid towards provision or improvement of amenities or services

 

26????? Contributions set out in the following Schedule are to be paid to Council. The following contributions are current at the date of this consent. The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. The contribution rates for specific dates are available from Council offices during office hours.

 


Schedule of Contributions pursuant to Section 94 of the Environmental Planning and Assessment Act 1979

 

Public amenity or service

Unit type

No of Units

Contribution Rate (Amount per Unit)

Contribution Levied

Date until which Contribution rate is applicable

Community Facilities and Open Space

Lot

5

$1,760.66

$8,803.30

30 June 2011

Surf Lifesaving Equipment

Lot

5

$98

$490.00

30 June 2011

Rural Roads Maintenance

Lot

5

$4,922.00

$24,610.00

30 June 2011

Administration? Charge

 

 

6%

$2,034.20

30 June 2011

TOTAL

 

 

 

$35,937.50

 

 

Maintenance Bond

 

27????? A maintenance bond of 5% of the value of the works associated with public roads and facilities, is to be lodged with Council. A copy of the contract construction cost of the public road and facilities associated with the subdivision works is to be submitted with the bond. The maintenance period is 6 months and will commence from the date of issue of the final Compliance Certificate. The security may be provided, at the applicant's choice, by way of cash bond or a satisfactory bank guarantee. An application in writing for the release of the bond must be made at the satisfactory completion of the maintenance period.

 

NOTES

 

The clearing of native vegetation may require approval from the Catchment Management Authority (CMA) under the Native Vegetation Act 2003. Where clearing does require approval, landowners shall apply to their local CMA, either to prepare a Property Vegetation Plan (PVP) or make an application for Development Consent for clearing. All relevant approvals need to be to be obtained before native vegetation can be legally cleared.

 

The conditions of this consent have been determined by Council following consideration of Section 79C of the Environmental Planning and Assessment Act 1979, the Building Code of Australia, Australian Standards and Council?s Policies and Guidelines relevant to this proposal.

 


 

Attachments:

1View

19980/2008 - Report for determination of DA2004/136 - Community Title Rural Residential Subdivision

 

2View

6975/2010 - Report on outcome of Appeal - DA 2004/136

 

3View

20503/2010 - Response regarding DA 2004/136 from Dept of Environment, Climate Change and Water

 

4View

21321/2010 - Office of Water Integrated Development Referral - General terms of Approval for DA 2004/136

 

5View

20273/2010 - DA 2004/136 request to have a representative from Nambucca Heads Local Aboriginal Land Council present when vegetation is cleared and soil turned for this development

 

6View

21771/2010 - DA 2004/136 Response regarding Koala Plan or Management and advice of conflicting information for proposed Rural-Residential Subdivision

 

7View

32067/2010 - DA 2004/136 Department of Planning response regarding SEPP 44 Koala Plan of Management

 

8View

22980/2010 - DA 2004/136 RFS response requesting additional information

 

9View

38/2011 - RFS advice that further information will need to be provided before an assessment for bush fire safety can be made - DA2004/136

 

10View

6474/2011 - RFS advice of Bush Fire Safety Authority with conditions - DA2004/136

 

11View

18071/2010 - Submission in relation to DA 2004/136 - D and M Ellis

 

12View

8781/2006 - DA 2004/136 Objection to proposed subdivision and concerns regarding clearing that has already taken place

 

13View

8788/2006 - DA 2004/136 Objection to proposed subdivision and request for re exhibition of proposal

 

14View

8790/2006 - DA 2004/136 Objections to proposed development

 

15View

8792/2006 - DA 2004/136 Objections and submission regarding proposed development

 

16View

8914/2006 - DA 2004/136 Objections to proposed development

 

17View

8943/2006 - DA 2004/136 Objections to proposed development

 

18View

9011/2006 - DA 2004/136 objection to subdivision

 

19View

9110/2006 - DA 2004/136 objection to subdivision

 

20View

24479/2008 - Submission in relation to DA 2004/136 - D and M Ellis

 

21View

18307/2010 - Submission in relation to DA 2004/136 - V Hammer

 

22View

18875/2008 - Submission in relation to DA 2004/136 request to consider after elections - P & R Davies

 

23View

18468/2008 - Further submission in relation to DA 2004/136 and request for application not to be determined by Council is in caretaker mode prior to 2008 LG election

 

24View

3070/2008 - DA 2004/136 Original objections to be maintained on amended application- P Davies

 

25View

9802/2011 - Submission relating to DA2004/136 - Nambucca Valley Conservation Association Inc

 

??


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 

Director Environment & Planning's Report

ITEM 9.6????? DA2004/136????? 210808???????? Report for determination of DA2004/136 - Community Title Rural Residential Subdivision - Lot 2 DP548175, 346 East West Road Valla

 

AUTHOR/ENQUIRIES:???? Ben Oliver, Senior Town Planner ????????

 


 

Summary:

 

Applicant:?????????????????????????? Amos and Mc Donald Surveyors for Mr Paul Joseph

 

Proposal:??????????????????????????? Community Title Subdivision comprising 5 Rural Residential Lots and 1 Community Title Lot

 

Property:??????????????????????????? Lot 2 DP 548175, No 346 East West Road Valla

 

Zoning:?????????????????????????????? Part Rural (1a2) & part Rural (1a1) Rural/Residential

 

The development application was lodged with Council on 13 October 2003 and originally proposed an 11 lot rural residential subdivision. Since that time the proposal has been amended on a number of occasions and the application now proposes a community title subdivision comprising one neighbourhood lot (Lot 1) with an area of 7.82 ha and 5 rural-residential allotments (Lots 2-6) with site areas ranging from 1.04 -1.3h.

 

Processing of the application has proven to be complicated by a number of issues which have delayed the timely assessment of the development. The overriding concern with the application has been the inadequate level of information submitted to enable a comprehensive assessment of the proposal, combined with concerns that the subdivision design would have adverse impacts on native vegetation and wildlife.

 

The application was reported to Council on 2 June 2005 with a recommendation that Council authorise staff to use delegation to refuse the development, on the basis that the proposal was not supported by an adequate level of flora and fauna and cultural heritage assessment. It was subsequently resolved that the applicant be given an extension of time to submit the required information. Further flora and fauna assessment and Aboriginal cultural heritage assessment were undertaken and the design of the subdivision was modified to a 9 lot rural residential subdivision. However, Council staff raised similar concerns with the amended proposal regarding the level of adverse impacts on native vegetation.

 

Following further discussions with Council staff, the application was further amended to a community title subdivision with a reduced number of lots. It is considered that the proposed community title subdivision, with a reduced number of lots, is a significant improvement on the original proposal and addresses the major concerns expressed by Council?s Planning staff. The development will have significantly less adverse environmental impacts by reducing vegetation clearing required for roads, building envelopes and asset protection zones. Furthermore, the koala plan of management (KPoM) and the requirement for an environmental management plan will assist in identifying and protecting environmentally sensitive areas and promoting a conservation ethic for the further development of the land.

 

The amended application has attracted three (3) submissions objecting to the development of the land, copies of which are attached for Council?s information. The submissions also requested that Council defer any decision on this application while in caretaker role on the basis that the application is both ?controversial and significant?. Conversely, the applicant has sought the matter to be dealt with by the current Council considering the age of the application and the extent of variation conceded by his client to minimise the concerns raised.

 

It is not considered that the development application is a policy matter or having significance due to the many amendments associated with the proposal that would preclude Council?s determination of the proposed development at this Council meeting. The application was ?called up? and therefore this report has been prepared for Council?s consideration.

 

However, in light of the advice from the Department of Local Government, Council may wish to apply the ?precautionary rule? and defer the determination of this application until after the 13 September 2008 Council elections. Notwithstanding, the matter is presented to this meeting and it is recommended that Council should first determine whether it is an application that may or may not be dealt with during the Caretaker period.

 

 


 

Recommendation:

 

1??????? That having regard to the submissions received and the advice from the Department of Local Government, Council defer the determination of Development Application 2004/136 whilst Council is in a ?caretaker? role.

 

????????? Should Council resolve that the matter may be determined, then it is recommended that:

 

2??????? Consent for Development Application 2004/136 be granted subject to the conditions of consent attached to this report.

 

3??????? That those persons making submissions in respect of the proposal be advised of Council's decision.

 


OPTIONS:

 

If Council is of the opinion that the application is considered controversial or of considerable significance then the application be deferred whilst Council is in a ?Caretaker? role.

 

If Council is satisfied that the application is not controversial or significant, Council is able to proceed to determine the application in accordance with recommendation 2 above.

 

Alternatively, Council may refuse the application subject to Council identifying the grounds for refusal.

 

PROPOSAL:

 

The Site

 

The land contains a significant area of native vegetation dominated by Eucalyptus species and includes a diversity of rainforest species within the existing drainage lines. The northern portion of the property is heavily vegetated and identified as scenic protection under clause 18 of the LEP. The modified subdivision proposal is restricted to the southern portion of the property. The predominant age of the canopy within the southern area of the land proposed to be developed appears relatively young (20-50 years) which would appear to indicate a history of pastoral activities and disturbances including logging, selective clearing and bushfire events. The site has undergone some further clearing and under scrubbing within defined areas. These areas generally correspond with the location of the proposed new building envelopes within the subdivision layout. It appears that the most recent clearing predates changes to the Native Vegetation Act, which would have been exempt under the provisions that allowed for native vegetation clearing of up to 2 ha per annum.

 

An existing 4WD gravel access road off East West Road has been constructed through the property, providing access to a residence occupied by the landowner.

 

The Development

 

The proposal involves a community title subdivision comprising one neighbourhood lot (Lot 1) with an area of 7.82 ha and 5 rural-residential allotments (Lots 2-6) with site areas ranging from 1.04 - 1.3ha.

 

It is proposed that access to the development involves the construction of a new private road which forms part of the community lot and follows the alignment of the existing access track through the property. The private road is proposed to be a single lane (4m wide) bitumen sealed with passing bays located at regular intervals along the frontage of individual lots. The road will terminate with a cul de sac, however an alternative emergency fire trail access is available through the land connecting the private road to East West Road.??

 

The design and layout of the subdivision has been substantially amended from the initial proposal which consisted of an 11 lot torrens title subdivision accessed by a new public road.

 

The main concern with the development of the land was the loss of vegetation required to facilitate road construction, building envelopes and asset protection zones, and the potential impacts on native flora and fauna. Bearing this in mind, the final subdivision design has adopted a community title subdivision which incorporates the majority of the significant vegetation and habitat within the community lot. The initial impacts of vegetation clearing and disturbance is limited by the design of the subdivision which locates the new road over the alignment of the existing track and positions building envelopes within existing cleared areas. The advantages of community title subdivision in these circumstances is that it better protects native vegetation and wildlife habitat and promotes an ongoing environmental management regime over the whole of the development site.?

 

Whilst discussions included a lesser standard road, it is preferred that the road be a public road and not a private road as proposed. The lesser standard relates to the width of the road reserve and this is due to the identified need to preserve vegetation identified as critical habitat. A reduced road reserve width would ensure that the minimum of vegetation removal would be required whilst still providing the adopted pavement width standard? for two way traffic.

 

Internal Referrals

 

Department Operations and Technical Services

 

Whilst, no objections are raised to the proposal subject to the imposition of a number of conditions of consent addressing access and servicing of the land, the requirement for a public road over a private road is preferred.

 

Health and Building

 

No objections are raised to the proposal subject to the imposition of a number of conditions of consent including the requirement for the submission of a formal application for a Construction Certificate.

 

Government Departments

 

NSW Rural Fire Service

 

The proposal has been submitted to the NSW Rural Fire Service on 3 separate occasions. Approval was granted to the community title subdivision subject to conditions requiring the provision of asset protection zones (APZ?s) around the perimeter of nominated building envelopes, dedicated water supply and construction of an adequate standard of access.

 

Department of Water and Energy (formerly Department of Natural Resources)

 

The proposal relies on a vehicular crossing of an intermittent watercourse requiring installation of a piped culvert. An engineering design has been prepared for the works and the necessary approval have been gained from the Department to enable the works to proceed.?

 

Department of Planning

 

An ecological assessment of the land in relation to threatened species identified the existence of resident koalas on the land and abundance of koala feed trees and therefore concluded that it satisfied the criteria for core koala habitat.

 

On this basis, a KPoM was prepared by Darkheart Eco-Consultancy. In accordance with the requirements of SEPP44, the plan of management was reviewed and approved by the DoP. Notwithstanding their approval to the plan, the Department questioned the suitability of the land for the development and expressed concerns at the potential loss of vegetation to accommodate building envelopes and APZ?s

 

A full and proper assessment has been undertaken and it is considered that the proposed community title subdivision is a good outcome, and resolves many of the concerns raised by the DoP regarding the development of the subject land.

 

Department of Environment and Conservation

 

The department has noted the environmental sensitivity of the land and raised concerns with the proposal in terms of its impact on native flora and fauna. The DECC has recommended that Council consider amending the new Local Environmental Plan (LEP) to include areas identified as core koala habitat within an environmental protection zone.

 

It is considered that the KPoM and an environmental management plan required as part of the community title subdivision will provide adequate protection of native flora and fauna, without the need to rezone any part of the land to environmental protection.

 

Local Aboriginal Land Council

 

NHLALC was notified of the application in accordance with Council?s notification policy. Aboriginal Cultural Heritage Assessment was undertaken by a representative of the Nambucca Heads Lands Council and no objects or relics of significance were revealed. On this basis no objections were raised to the proposal.

 

 

MATTERS FOR CONSIDERATION ? SECTION 79C(1) EP&A ACT

 

a(i)? The Provisions Of Any Environmental Planning Instruments

 

Nambucca Local Environmental Plan 1995

 

Clause 11 and 12 - Zoning and Lot sizes

 

The subdivision of the land for rural residential purposes is permissible with Council?s development consent pursuant to clause 16 of NLEP 1995. All of the proposed lots satisfy the minimum lot size of 1 hectare.

 

The main concern with the application was its consistency with clause 16 (l) which states:

?

(l)???? The proposed development will maintain, where possible, the existing amount, diversity and form of native vegetation and wildlife habitat areas;

 

It is reasonable to conclude that the original proposal would have resulted in significant clearing of native vegetation and did not satisfy the above requirement. However the amended proposal is a substantial improvement on the original proposal, which limits clearing and provides an effective mechanism for future conservation and environmental improvement by the operation of an environmental management plan (EMP) contained within the neighbourhood management statement.

 

The proposed new road will follow the alignment of the existing track. To limit additional clearing required to provide an acceptable standard of access, it is recommended that Council?s Aus-Spec Design standards be reduced in this instance.

 

The private lots will each contain a building envelope and APZ?s within existing cleared areas. Further clearing of these lots outside of the identified building envelopes and APZ?s, will not be allowed under the terms of the EMP and KPoM.

 

The community lot will include the main concentration of preferred koala feed tree species as well as EEC?s and will be retained in its natural condition. The land will have no dwelling entitlement and will be protected and regenerated as recommended by the EMP and KPoM. .

 

North Coast Regional Environmental Plan

 

The proposal complies with the objectives and controls as set out in the Regional Environmental Plan.

 

State Environmental Planning Policies (SEPP?s)

 

SEPP44 ? Koala Habitat

 

An ecological assessment undertaken by Darkheart Ecological Consultancy concluded that the land satisfied the criteria for core koala habitat and a KPoM was therefore required. Two KPoM?s were subsequently prepared by Darkheart for the proposed development of the land.

 

The first KPoM was for the subdivision of the land into 9 rural residential lots with the construction of a new public road. The plan was referred to the DoP, but was not approved on the basis that the development of the land would have an unacceptable impact on native vegetation and specifically koala habitat.

 

Following discussions with Council staff, the applicant agreed to amend the subdivision by incorporating community title and reducing the number of lots. A further KPoM was prepared for the 6 lot community title subdivision.

 

The DoP raised concerns regarding the suitability of the land for rural residential subdivision, given the lands value to several threatened species and two endangered ecological communities. To address their concerns, the DoP have given conditional approval subject to the preparation of an EMP as part of the KPoM which details the proposed planting and regeneration program and uses a compensatory planting ratio of 10:1, rather than 3:1. The department?s requirements have been incorporated as conditions of consent.???

 

The main features of the approved KPoM are:

 

Retention and protection of habitat areas

 

?????????????? Primary koala habitat and a large proportion of secondary habitat have been retained in the community property, with clearing restrictions on private lots.

 

Extent of habitat modification

 

?????????????? The magnitude of vegetation loss and disturbance has been significantly reduced from the original estimates of 5.5 ha. The approved KoPM indicates that tree removal will now be within the range of approx 20-30 Grey gums and Tallowwood trees to accommodate road construction, building envelopes and APZ?s. Some additional trees may need to be removed to accommodate a wider road in accordance with Council?s requirements. However, the additional clearing will still be well below the original estimate of 5.5 ha.?

 

Habitat replacement and enhancement

 

?????????????? The KPoM recommends a replacement ratio of 3 new plantings for each tree removed. The Department have advised Council that this figure should be increased to 10 new plantings for each tree removed. In addition there are requirements for ongoing environmental management regimes including periodic weed control. The preparation of an EMP which details the proposed planting, regeneration program and compensatory planting at a ratio of 10:1, have been incorporated as a condition of consent.

 

a(ii)? The Provisions Of Any Draft Environmental Planning Instrument

No draft environmental planning instruments apply to the land or the development.


 

a(iii)? Any Development Control Plan

 

DCP(4) - Subdivision

 

The development of the land has adopted a community title subdivision to address concerns regarding initial vegetation clearing and ongoing protection and management of the land.

 

One aspect of community title is that Council would have no responsibility for the maintenance of the new private road which becomes a private road maintained by the owners of the private lots within the subdivision. Council?s standard requirements for new public roads servicing rural residential subdivisions is a 20m wide road reserve with a 6m wide bitumen sealed pavement. This allows for 2 traffic lane widths and sufficient area to accommodate service vehicles such as garbage trucks and emergency vehicles. As such it is recommended that the road be dedicated as a public road with a reduced reserve width to 14m to minimise the extent of vegetation loss in this instance.

 

The applicant, however proposes a private road 500 metres in length, with a 10m wide road reserve, 4m wide road pavement with 4 passing bays (20m x 2m) provided at regular intervals adjacent to building envelopes. On this basis vehicles would not be able to pass in opposite directions and unrestricted access by service vehicles such as garbage trucks and emergency vehicles could be compromised.

 

With regard to access, the Planning for Bushfire Protection Guidelines highlight the importance of having an adequate standard of access for new subdivisions in bushfire prone areas. The key issues determining the adequacy of access include the construction standard of the road as well as its width and grade. Generally speaking, roads that are utilised by a number of separate owners and service vehicles in a new subdivision (irrespective of whether the land is torrens titled or community titled) should provide at least 2 traffic lane widths with shoulders on each side of the road, allowing traffic to pass in opposite directions. This allows for unrestricted access for service vehicles, emergency vehicles as well as private vehicles. A condition has therefore been included requiring the new road be a dedicated public road and to be constructed to Council?s Aus-Spec Design and Standards for a road servicing a rural residential subdivision, although the road reserve is permitted to be reduced to a minimum width of 14 metres.

 

a(iv)? Any Matters Prescribed By The Regulations

 

b????????? The Likely Impacts Of The Development

 

The site has significant environmental value in terms of habitat for seven (7) threatened species, most notably the koala and glossy black cockatoo and two (2) ecological endangered communities. An ecological assessment undertaken by Darkheart Eco-Consultancy attributed the main impacts of the development to the direct loss of habitat and disturbance from the establishment of roads, building envelopes and APZ?s. A further impact was the fragmentation of the habitat and loss of its environmental attributes and value by human interactions such as fencing and the introduction of domesticated pets and exotic species.

 

Several recommendations have been made by Darkheart Eco-Consultancy to minimise the adverse impacts of the proposal. Generally speaking, the recommendations are designed to minimise environmental impact during the initial construction phase of the subdivision and provide opportunities for environmental enhancement and improvement as the land is developed for rural residential housing. The major recommendations include retention of canopy trees and critical habitat components including hollow bearing trees and EEC?s within the community lot and ensuring that the road and building envelopes are located over existing cleared or degraded areas.

 

The major recommendations from the ecological assessment have been effectively integrated in the design of the community title subdivision. All other recommendations are likewise incorporated as specific condition into the approval of the development application.

 

Overall it is considered that the major adverse impacts associated with the development of the land will be minimised by restricting development within existing cleared or degraded areas. This will ensure that the development satisfies clause 16 (l) by maintaining where possible, the existing amount, diversity and form of native vegetation and wildlife habitat areas. Furthermore, the adoption of permanent environmental management mechanisms such as the KPoM and EMP over the land, will assist in protecting and enhancing the natural environmental attributes which have been identified by the ecological assessment of the land.

 

c????????? The Suitability Of The Site For The Development

 

The site is heavily constrained by native vegetation which provides both environmental value in its natural state and contributes to a bushfire threat when the land is developed for rural residential purposes. Notwithstanding the constraints over the land, the land proposed to be developed has been identified where rural residential development may be considered. The suitability of the site for rural residential development therefore depends on good site analysis and sympathetic design, which allows for rural residential development opportunities, but also minimises adverse environmental impacts and does not compromise natural environmental attributes. These are the issues which are addressed by Clause 16 of LEP 1995.

The development proposal has been assessed having regard to Clause 16 and it is considered that the final proposal satisfies the considerations for rural residential subdivisions. On this basis the development of the land for rural residential purposes is acceptable and the suitability of the site for the development has been confirmed.?

Services

 

The necessary services such as electricity and telephone can be made available for the residential development of the land. The land will be serviced by an existing domestic garbage collection and recycling service currently available in the locality.

 

 

d????????? Any Submissions Made In Accordance With The Act Or The Regulations

 

The application as initially submitted and subsequently amended has been notified and exhibited in accordance with Council?s requirements on two separate occasions. On both occasions several submissions were received, objecting to the development of the land. The objections have been submitted by private landowners as well as environmental community groups including Nambucca Valley Conservation Association and National Parks Association of NSW. Some of the objections submitted to the current amended proposal have argued that the application is both ?significant and controversial? and have requested that Council not determine the application while in a caretaker role leading up to the election of a new Council.

 

The issues raised in the objections are generally concerned with the loss of vegetation and adverse impacts on the flora and fauna which occur over the site.

 

Council?s response to these concerns has been detailed in other areas of this report.

 

e????????? The Public Interest

 

The length of time the application has remained with Council, and the number of submissions objecting to the proposal, are an indication that it has generated a significant amount of public interest. The original proposal for 11 lots and subsequent proposal for 9 lots did not give proper regard to the environmental constraints and sensitive environmental characteristics of the site and would have resulted in unacceptable impacts. Clearly these proposals did not satisfy clause 16 requirements and were unacceptable.?

 

The final proposal for a community titled subdivision of the land with the number of private lots being restricted to five (5), is however a significant modification and improvement on the original proposal. The public interest in ensuring appropriate development of rural land for rural residential housing has therefore been taken into consideration and satisfied by Council?s negotiated outcome for appropriate amendments to the proposal.?

 

 

SUSTAINABILITY ASSESSMENT:

 

Environment

 

The overriding concern with the rural residential development of the land is the loss of vegetation and disturbance to the natural environment resulting from the development of the land. To overcome these concerns and ensure that the development is consistent with clause 16, Council?s Planning Department has successfully negotiated with the applicant to amend the proposed development to a community title subdivision with a reduced number of private lots. As a result, the development of the land will largely be restricted to existing cleared and disturbed areas. Further impacts associated with the development of the land will be effectively managed by the adoption of an ongoing environmental management regime over the whole of the development site.?

 

The environmental impacts of the development will be acceptable, provided that the development proceeds in accordance with the recommended condition of consent attached to this report.

 

Social

 

There are significant social benefits in having a community title subdivision, which will ensure that conservation measures are put in place by future purchases of the subject land.

 

Economic

 

There are no economic issues arising from the development.?

 

Risk

 

The potential risk to Council in approving the application would be dependent on the likelihood of a challenge to the validity of the approval on procedural grounds. In this regard, Council has followed proper process by requiring all technical information required to make an assessment of the application under the relevant heads of consideration.

 

 

FINANCIAL IMPLICATIONS:

 

Direct and indirect impact on current and future budgets

 

No impact on the current budget or future budgets.

 

Source of fund and any variance to working funds

Not applicable

 


Attachments:

1

19981/2008 - Conditions DA2004/136

5 Pages

2

18468/2008 - Nambucca Valley Conservation Association - Submission

1 Page

3

18658/2008 - National Parks Association of NSW - Submission

1 Page

4

18875/2008 - Paul and Rhonda Davis - Submission

1 Page

?


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 

Director Environment & Planning's Report

ITEM 9.4????? SF1254??????????? 010410???????? Nambucca Valley Conservation Association vs Nambucca Shire Council & Mr Paul Joseph - DA 2004/136, East West Road, Valla

 

AUTHOR/ENQUIRIES:???? Greg Meyers, Director Environment and Planning ????????

 


 

Summary:

 

The Nambucca Valley Conservation Association (NVCA) commenced a Class 4 action against Council in regard to its determination of DA 2004/136 for a rural residential subdivision (Lot 2 DP 548175, 346 East West Road Valla).?

 

Justice Biscoe of the Land and Environment Court heard the matter and handed down his judgement on 18 March 2010. Justice Biscoe states:

 

2????????? The challenge to validity (of the DA) is on five grounds:

 

1??????? the Council refused development application on about 8 July 2004 and all else done thereafter was inconsistent with the refusal;

2??????? essential documents were not before the Council:

a??????? a species impact statement, and

b??????? an environmental management plan or a draft condition requiring an environmental management plan;

3??????? The Council failed to consider mandatory relevant considerations;

4??????? The Council impermissibly deferred for later consideration important matters of environmental assessment;

5??????? The amended development application to which consent was eventually granted was not advertised as required by statute.

 

3????????? I uphold grounds 3 and 5, do not accept the other grounds and propose to grant relief.

 

Justice Biscoe Ordered:

 

245?????? The orders I propose are as follows:

 

1??????? Declaration that the development consent granted by Nambucca Shire Council on 21 August 2008 to development application DA 2004/136 for a subdivision at 346 East West Road Valla, is void.

 

2??????? The respondents (ie Council and Mr Joseph) are to pay 60 per cent of the applicant?s costs.

 

246?????? The orders will be as I have proposed unless by 4pm on 22 March 2010 a party delivers competing short minutes of proposed orders to me. The exhibits may be returned.

 

 


 

Recommendation:

 

1????????? That Council note the outcome of the Class 4 action in the Land and Environment Court by the Nambucca Valley Conservation Association Inc in regard to Development Application 2004/136.

 

2????????? That Council note that on advice from its legal advisors competing short minutes were not submitted and no challenge was made to the ?Short Minutes of Order? lodged by the Second Respondent (Mr Joseph) that the First Respondent (Council) pay 60% of the applicant?s costs.

 

 

 

3????????? That Council process DA 2004/136 by advertising and notifying the amended community title rural-residential subdivision and addressing all the relevant matters, including consideration of any new and previous submissions, relevant matters for consideration under Section 79C of the EP&A Act, including Clause 13 of the NLEP 1995, before final determination of the application by Council.

 

4????????? That the applicant be advised that before Council can further consider DA 2004/136 an updated supplementary flora and fauna report is required for Council?s consideration. Such report shall address any new information not previously considered that may impact on threatened species, populations or ecological communities, or their habitats. The report should determine the significance of any such impact and if a Species Impact Statement (SIS) is required in accordance with the Threatened Species Conservation Act 1995.

 

 


OPTIONS:

 

In accordance with the judgement handed down by Justice Biscoe no orders were made under 25B of the Land and Environment Court Act 1979. This essentially means that the development application is as it was on the date before Council granted development consent. As such, determination of the application is still pending. Given that the application is still outstanding it is considered that the only option for Council is address the issues raised in the judgement and make a final determination of the development application.

 

 

DISCUSSION

 

Justice Biscoe provided his findings of the Nambucca Valley Conservation Association (NVCA) Class 4 action against Council in regard to its determination of DA 2004/136 for a rural residential subdivision (Lot 2 DP 548175, 346 East West Road Valla) on 18 March 2010. The judicial review is provided in some detail in the 74 page judgement of the key issues, a copy of which has been circulated for Council?s information. Whilst Justice Biscoe has declared the development consent void, the NVCA were unsuccessful in the environmental considerations. These matters were addressed by Justice Biscoe in paragraphs 126, 144 & 165, which are reproduced below.

 

126:

Taking all relevant factors into account, I am satisfied on the evidence that the development is not likely to significantly affect the EEC or its habitat. Accordingly, S78A(8)(b) did not require the development application to be accompanied by a species impact statement on account of the effect on the EEC or its habitat.

 

144:

Taking all relevant factors into account, I am satisfied that the development is not likely to significantly affect the koala or its habitat. Accordingly, S78A(8)(b) of the EPA Act did not require the development application to be accompanied by a species impact statement on account of the effect on the koala or its habitat.

 

165:

?It would be anomalous if the Director could give conditional approval in the way that she did under the Koala SEPP but the Council could not do so in the same way on the same subject matter when granting development consent. In my view, the Council had power to impose such a condition under S80A(1)(a), (2) and (4) of the EPA Act.

 

Justice Biscoe upheld grounds 3 and 5 relating to a failure to consider mandatory relevant considerations and failure to advertise the amended proposal. The Court identified in [180] that Council did not take into account mandatory provisions by not referring to Clause 13, despite Council arguing that the relevant matters were considered. The Court identified [186] that Council failed to consider issues raised in a submission by not specifically addressing those issues in the Council report, despite Council staff believing that the issues were addressed through the subsequent amendments to the proposal including a revised lot layout and reduction in the number of proposed lots. The Court identified in [238] that Council failed to advertise the final amendment that was subsequently approved by Council.

 

The last point regarding readvertising as presented by Council was not supported by the Court. It was the view of the Director that the advertising of the final amendment was not required due to clause 9 of the 2000 DCP which provides for the dispensation of advertising in a number of circumstances with the following being the consideration applied at the time:

 

Where a development application has been publicly advertised or notified in accordance with this Plan, and the application is amended or substituted in response to submissions received

 

Justice Biscoe in paragraphs [202 ? 238] provides the basis for his determination that the current advertising DCP should apply. However, in paragraph [99] Justice Biscoe determined that the previous Section 5A, with its eight part test, should apply.

 

The judgement provided different interpretations in applying the provisions of the old and new DCPs relating to advertising, and the relationship between the old and subsequent legislation relating to Section 5A of the EP&A Act. This will direct future consideration by staff and Council.

 

Of concern is the order that the respondents are required to pay 60% of applicant?s costs. However, Councils barrister has advised that in light of recent case law, the 60% figure is a fair result. Further, she advised that ?it was not worth the risk in submitting short minutes to this point, as it could result in His Honour imposing a higher cost figure?.

 

The barrister advised that ?His Honour has not apportioned the Applicant?s costs between the two Respondents in order that they can agree on the apportionment between themselves.? However, before any agreement was reached the Second Respondent lodged ?Short Minutes of Order? that the First Respondent (Council) should pay the entire 60% of the Applicant?s costs. Council?s solicitors confirmed that Council is not well placed to contest the ?Short Minutes of Order? put in by the Second Respondent and therefore the General Manager and Mayor decided not to contest the submission.

 

Council?s barrister reviewed the judgement and Norton Rose has provided the following summary of her comments:

 

1??????? It was not possible to avoid the outcome on the first component of Ground 3 (the ground on mandatory considerations). Clause 13 was not referred to in the report to Council. The Court requested clarification of the section of the LEP maps showing the zoning, in particular the way in which the black edged circled areas operated and the coverage of zones, and as the LEP applied to the site. Council had an obligation to the Court to provide that clarification. Since clause 13 applied and was not referred to in the report, the conclusion followed that s 79C(1)(a)(i) was not observed. 

 

2??????? The other component of Ground 3 concerned the submissions. The problem for the Council was that some of the submissions were not annexed to the report. The Court apparently rejected the Council's submission that only the submissions made in response to the third amendment needed to be annexed. Biscoe J's approach at [187] - [191] to the presumption  raised some real questions about Biscoe J's fact finding. There was no evidence to rebut the presumption in relation to what occurred before the meeting. To some extent Biscoe J reversed the presumption and required the Council to adduce evidence as to what councillors read before the meeting. However if all the submissions had been annexed to the report  that was circulated to councillors, Biscoe J would probably have drawn an inference in favour of the Council. 

 

3??????? As to Ground 5, Council's primary position, that DCP 2000 applied, was not accepted. Biscoe J does not address the Council's submission that the  2000 DCP continued to apply to applications lodged while the 2000 DCP was in force. There are no transitional provisions  but literally the 2000 DCP applied. His Honour does not explain in [227] why the 2004 DCP applied to pending applications. Once he accepted that the 2004 DCP applied, Council was exposed to Biscoe J's tendency to require a council's opinion (here the opinion under reg 90(1)(b) that the amendments were minor)  to be spelled out in writing rather than inferred. I think the inference at [236] - [238] that Council did not form the opinion is difficult to draw. However this is a factual finding by the Court. 

 

With respect to the status of the development application, Council?s solicitor provided the following advice:

 

?The development application (as amended) is likely still pending - that is, it is open to Council to determine the DA in the near future. Of course Council will need to cure all the defects outline in His Honour's judgment prior to consenting to the application should it be mindful to do so.?

 

 

CONCLUSION:

 

Having regard to the judicial review and Council?s legal advice, it is now open for Council to continue its consideration and final determination of the development application. However, Council?s solicitor has cautioned that a full and proper assessment of the application should be undertaken before Council makes its final determination. In this regard it is considered prudent to require the applicant to submit an updated supplementary flora and fauna report for Council?s consideration. Such report should address any new information not previously considered that may impact on threatened species, populations or ecological communities, or their habitats. The report should determine the significance of any such impact and if a Species Impact Statement (SIS) is required in accordance with the Threatened Species Conservation Act 1995.

 

 

CONSULTATION:

 

General Manager

Norton Rose

Manager Planning and Assessment

Senior Town Planner

 

 

SUSTAINABILITY ASSESSMENT:

 

Nil

 

 

FINANCIAL IMPLICATIONS:

 

Council has incurred considerable costs associated with this court challenge which have an impact on General Fund.

 


Attachments:

1

?- CIRCULARISED DOCUMENT - Judgement on Nambucca Shire Council ats Nambucca Valley Conservation Association

 

?


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 





Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 



Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 



Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 



Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 



Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 




Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 



Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 



Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 



Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 



Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 


Ordinary Council Meeting - 5 May 2011

Determination of DA 2004/136 For a Community Title Rural-Residential Subdivision ? Lot 2 DP 548175, 346 East West Road, Valla

 

 

The General Manager

Mr Michael Coulter

Nambucca Shire Council

Princess St, Macksville 2447 NSW

 

Dear Sir,

 

Re: Submission re DA 2004/136 rural residential subdivision at East West Road

 

I write on behalf of the Nambucca Valley Conservation Association regarding the above Development Application:

 

???? Reference is made to this Association?s submission of January 2004 objecting to the original DA 2004/136 and subsequent correspondence over the ensuing four years until determination in 2008, raising our ongoing concerns.

 

???? NVCA?s concerns and objection to this DA remain unchanged on the basis of the unacceptable impacts to biodiversity as a direct result of clearing of native vegetation and introduction of urban-style development, in particular impacts to koala habitat (up to 20% koala habitat) and loss of hollow bearing trees.

 

???? We are appalled that an area identified as koala high significance (feed trees) will be cleared in the south east corner of the property to enable the creation of an Asset Protection Zone.? If a dwelling envelope and APZ cannot be found on this lot without clearing of core koala feed trees then the lot should not be created.? The loss of core koala feed trees will have a direct impact on individual animals and will be likely to result in nutritional stress related diseases such a Chlamydia.? This clearly constitutes unsustainable development.

 

???? We are aware that as a result of the Land and Environment court ruling, the applicant?s consultant was requested by NSC to provide further assessment of the proposal under the Threatened Species Conservation Act seven part test.

 

We note with extreme interest the findings of the assessment in regard to part (f) of the seven part test which requires consideration of ?whether the action proposed is consistent with the objectives or action of a recovery plan? Berrigan concludes that ?as the proposal will remove or modify habitat and contribute to secondary impacts it will not be considered strictly consistent with objectives of a [koala] recovery plan, threat abatement plan or priority action plan now or in the future, as it will contribute to the primary cause of the decline of these entities via the removal of some eucalypts and most of all prevent the potential regeneration of the disturbed areas? and part (g) which requires consideration of ?whether the action proposed constitutes or is part of a Key Threatening Process or is likely to result in the operation of or increase the impact of a Key Threatening Process? and where Berrigan concludes ?Loss and fragmentation of habitat due to urban and residential development is a recognised threat to these species. The proposal thus generically qualifies as a class of activity that is considered a threatening process as it will remove or modify native vegetation?.

 

Berrigan goes on to conclude that ?For? all of the subject species the proposal will contribute to the following Key Threatening Processes: clearing of native vegetation, human induced climate change via clearing of native vegetation and urban development, invasion of native plant communities by exotic perennial grasses [lawn] and loss of hollow bearing trees.?

 

It is clear from Berrigan?s comments that the proposal does not satisfy the seven part test assessment.? We are most concerned that as such, Berrigan has not recommended the proposal be modified to a point where it does satisfy the seven part test.

 

???? We find Berrigan?s overall conclusion that ?It is readily apparent that the revised community title proposal will have significantly less ecological impacts on the site?s threatened species and Endangered Ecological community hence in terms of rural residential development options is the preferred outcome.? rather wanting in the sense that simply because the proposal presents less of an impact than the original 11 lot proposal, it does not make it appropriate, acceptable or sustainable.?

 

???? The applicant?s consultant Darkheart (Berrigan) identified a Masked Owl on the site whilst undertaking survey, but failed to refer to this species as one of the ?Large Range species? considered as part of the 7-part test.? Was this species given the consideration required under the Act?

 

???? Will further soil testing be undertaken to confirm the extent of the alluvium soil and hence by definition the extent of the EEC Subtropical Floodplain Forest, which exists on the 1st and 2nd order streams on the property?

 

???? Berrigan fails to consider cumulative impacts of the loss of native vegetation in the local area.? No monitoring of the local population has been undertaken to establish whether it is in fact already in decline due to earlier local clearing of core koala habitat.? Nor has consideration been made of the loss of core koala habitat which will be occurring when the Pacific Highway upgrade ploughs through Nambucca State forest and known koala populations to the north, south and east of the DA site.? This should be addressed if long term impacts to biodiversity are truly to be considered.? The NVCA is aware that at least 64 koalas were killed during the construction of the Bonville Pacific Highway upgrade where the highway bisects Pine Creek State Forests.? History has shown that the existence of a koala population is unlikely to change the route of the highway, so we can assume there will be significant loss of koala feed trees when the upgrade occurs in a few years time.? NSC itself has acknowledged the importance of koalas in this area with its request last year to the RTA for koala crossing signage on the Pacific Highway north of Nambucca Heads in which it states ?It has recently been brought to Council?s attention that there have been a significant number of Koala sightings on the Pacific Highway from Nambucca Heads to Oyster Drive turn-off to the north of Nambucca Heads.? There have also been a number of cases of dead Koalas on the Highway in this area.? It appears that sightings have also occurred around the Valla rural and Valla Beach village areas indicating that the Koalas may be migrating?.

 

Although the NVCA strongly objects to this proposal and sincerely urges Councillors to REFUSE this DA, we wish to make suggestions regarding consent conditions if Council determines to approve it:

 

???? Council must include a mechanism to ensure amelioration measures proposed in the Koala Plan of Management are in fact undertaken and maintained. We request that this be addressed by requiring the developer to submit regular reports including photos which demonstrate compliance with the Koala Plan of Management, Environment Management Plan, tree planting and maintenance program.

???? Council must ensure its compliance unit undertakes ongoing random audits to ensure compliance with all environmental conditions.

???? We seek assurance from Council via a condition of consent, that the applicant will be required to make application to Council to rezone Portion 1 (Community Title land) for vegetation conservation as stated in the Darkheart Addendum Report.

???? A no dogs or cats covenant should be applied, managed and audited including assurance that no companion animal registration applications for those addresses are accepted by Council.

 

Thank you for your consideration of our submission.

Sincerely,

 

Lyn Orrego

 

Committee Member

Nambucca Valley Conservation Association (NVCA)

 

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