Agenda of Ordinary Council Meeting

MURRAY RIVER COUNCIL Ordinary Council Meeting Agenda

23 March 2021

9.4.2 Extension to existing single storey dwelling including part demolition

File Number: -

Author: Gayan Wickramasinghe, Town Planner

Authoriser: Rod Croft, Interim Director Planning & Environment

Applicant: Rick Driscoll

Owner: B Driscoll

Proposal: Extension to existing single storey dwelling including part demolition

Location: Lot: 462 DP: 748396, 161 North Barham Road BARHAM 2732

Recommendation

That the Officer’s report be received and noted; and

That Development Application 10.2020.360.1 be refused for the following reason:

1. The application relates to prohibited development under Part 6 Section 6.6 (2) (b) of the Wakool Local Environmental Plan (WLEP) 2013 being related to extension of an existing building which will be located closer to the riverbank than the existing building. The resulting non-compliance results in the development not satisfying Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979.

Background

This report considers a development application for extension to existing single storey dwelling including part demolition at the subject site which is not consistent with Section 6.6 (2)(b) of the WLEP 2013 and provides an assessment of the application in accordance with the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000 and WLEP 2013. Following exhibition of the Development Application, Council did not receive any submissions.

Council is being asked to consider the following issue with respect to this application:

The proposed extension to existing single storey dwelling including part demolition is proposed under Section 2.3, Section 2.7 and Section 6.6 of the WLEP 2013. As part of the Development Application, the applicant has provided a site plan outlining the existing and proposed setbacks to the high bank of the Murray River (Localised Site Plan; Dated 07/10/22020; Drawn by SM; Job No: 20-4329). As per the submitted plan the proposed development is not consistent with Section 6.6 of the WLEP 2013.

As the subject development application is related to a river front development, Section 6.6 of the WLEP 2013 (Development on river front areas) is explicitly applicable in this instance.

As per WLEP 2013 river front area means —

(Also available at: https://www.legislation.nsw.gov.au/view/whole/html/inforce/current/epi-2013-0655#sec.6.6)

(a) in Zone RU5 Village, Zone R1 General Residential, Zone R5 Large Lot Residential, Zone B2 Local Centre, Zone B6 Enterprise Corridor, Zone IN1 General Industrial, Zone RE1 Public Recreation, Zone RE2 Private Recreation or Zone SP2 Infrastructure—the land within 40 metres of the high bank of the river, or

(b) in Zone RU1 Primary Production, Zone RU3 Forestry or Zone E2 Environmental Conservation—the land within 100 metres of the high bank of the river.

The subject development site is zoned RU1 Primary Production. It is noted however as the subject development site already contains a single-story dwelling, the proposed development (extension) is not required to meet a 100m setback from the high bank of the Murray River. Instead, the proposed development relies upon the provisions outlined in Section 6.6 (2) of the WLEP 2013, as below: (also available at: https://www.legislation.nsw.gov.au/view/whole/html/inforce/current/epi-2013-0655#sec.6.6)

(2) Despite any other provision of this Plan, development consent may be granted to development on land in a river front area only for the following purposes—

(a) boat building and repair facilities, boat launching ramps, boat sheds, charter and tourism boating facilities or marinas,

(b) the extension or alteration of an existing building that is wholly or partly in the river front area if the extension or alteration will be located no closer to the riverbank than the existing building,

(c) environmental protection works,

(d) extensive agriculture and intensive plant agriculture,

(e) environmental facilities, recreation areas and recreation facilities (outdoor),

(f) water recreation structures.

As the proposed additions will not be located no closer to the Murray River high bank than the existing building, the proposal is inconsistent with Section 6.6 (2)(b) of the WLEP 2013. Council has previously received legal advice regarding interpretation of Section 6.6(2)(b) of the WLEP 2013 on 8 August 2016 from Kell Moore Lawyers. In summary the legal interpretation was that Section 6.6 (2)(b) is not a development standard and written with prohibition, hence Section 4.6 of the LEP (exception to development standards) and the Planning Circular PS 20-002: Variations to development standards, cannot be utilized to vary Section 6.6 of the WLEP 2013.

As per Environmental Planning and Assessment Act 1979 development standards means:

provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of—

(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,

(b) the proportion or percentage of the area of a site which a building or work may occupy,

(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,

(d) the cubic content or floor space of a building,

(e) the intensity or density of the use of any land, building or work,

(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,

(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,

(h) the volume, nature and type of traffic generated by the development,

(i) road patterns,

(j) drainage,

(k) the carrying out of earthworks,

(l) the effects of development on patterns of wind, sunlight, daylight or shadows,

(m) the provision of services, facilities and amenities demanded by development,

(n) the emission of pollution and means for its prevention or control or mitigation, and

(o) such other matters as may be prescribed.

Discussion

Please refer to the section “Background” above.

Subject Site

The site subject to this development application is located at 161 North Barham Road Barham 2732 on Lot: 462 DP: 748396. Land size is 8.997 ha.

The site is zoned RU1 Primary Production. The subject site is an irregular shaped block, with the rear property boundary backing on to the Murray River and bordered by Lot 41 DP 756571 to the south and Lot 813 DP 1270172 to the west. The site is essentially flat and has significant vegetation cover scatted all around the site. (Refer to site inspection photos). Existing access is provided from all-weather sealed North Barham Road. It is however noted that no upgrade is required to the access as part of the development consent.

The development site is mapped as Murray Regional Environmental Plan No. 2 – Riverine Land. It is also noted that the land is not formally mapped as Flood Prone Land under the LEP, however the entire development site is mapped as a Flood Prone Area as per previous Wakool Shire Council’s Barham flood study. The existing residence is positioned toward the west of the Murray River and setback approximately 80m from the high riverbank.

Proposal

The applicant is seeking Council permission for extension to existing single storey dwelling including part demolition work.

The development comprises the following:

· A new first floor with approximate 92.2sqm

· Add three (03) new balconies to first floor;

· Renovation of 22.4sqm internal floor area within the ground floor.

The applicant has also provided the following documents to support the application:

· A site plan, floor plan, elevation diagrams of existing and the proposed dwelling;

· Statement of Environmental Effects (SOEE);

· Completed application form;

· An AHIMS Search.

The proposed cost of development is $150,000.

The existing subdivision pattern and location of existing development within the locality is shown in the following aerial photograph.

Figure 1 – Locality. Source: ePlanning Spatial Viewer

Figure 2 – Aerial photograph of subject site. Source: ePlanning Spatial Viewer

Figure 3 – Proposed Site Plan by the applicant

Figure 4 – Existing Floor Plan by the applicant

Figure 5 – Plan outlining the demollition proposed within the first floor by the applicant

Figure 6 – Proposed ground floor Plan by the applicant

Figure 7 – Proposed first floor Plan by the applicant

Figure 8 – Proposed west and south elevation diagrams by the applicant

Figure 9 – Proposed east and north elevation diagrams by the applicant

Figure 10 – 3D view of the proposed development by the applicant

Statutory Assessment Process

2.1 Environmental Planning and Assessment Act 1979

Section 1.3 Objects

Comment: It is considered that the proposed development is not inconsistent with the objects of the Act.

Section 1.7 Application of Part 7 of Biodiversity Conservation Act 2016 and Part 7A of Fisheries Management Act 1994

Comment: It is considered that the proposed development will not have a significant effect on the terrestrial and aquatic environment, threatened species, populations or ecological communities, or their habitats as no bed or bank works are proposed as part of this application. As per the completed SOEE, the applicant has indicated that no vegetation is required to be removed as part of this application. It is therefore noted Council officers are satisfied that the proposal is not inconsistent with Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994. In the event if Council approves the development application, it is recommended to apply a condition of any consent granted to reflect this requirement.

Section 4.14 Consultation and development consent—certain bush fire prone land

Comment: The subject land is not being identified as a bushfire prone as per ePlanning Spatial Viewer Bush Fire Prone Land Map (BFPLM).

Section 4.15 Evaluation

Comment: This report provides the necessary review and evaluation of the development application. See below.

Section 4.46 What is “integrated development”?

Comment: The application is not classed as Integrated Development as it does not require a separate approval from any other Acts mentioned under this section.

2.2 Chronology of events and public notification and statutory referral process.

The below table provides an overview of the timeline with respect to the lodgement and assessment of the application.

Application history/timeline

Application lodged	01/12/2020
DA Panel	25/11/2020
Neighbour Notification	From 2 December 2020 to 17 December 2020
Further information requested	24/2/2021
Further information received	9/03/2021
Site Inspection	15/01/2021

2.2 Referrals and Owners Consent

Internal Referrals- DA Panel

External Referrals- Not required.

Advertised- The application was advertised on the Council’s website from 2 December 2020 to 17 December 2020.

Public Notification- The application was notified to adjoining property owners from 2 December 2020 to 17 December 2020 in accordance with the Wakool DCP 2013 A.3 Notification & Advertising policy. (Please refer to section 3.5(d) within the report for additional comment).

Owners Consent- Provided.

2.4 Contributions

Section 7.11 (formerly Section 94) Development Contributions are not required.

Section 64 contributions are not required.

Town Planning Assessment

Assessment of the development application has been undertaken in respect to relevant considerations arising from Section 4.15 of the Environmental Planning and Assessment Act 1979 as follows:

3.1 Section 4.15 Evaluation

(1) Matters for consideration-general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

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

(v) (Repealed)

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

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

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

Matters for consideration

3.2(a) the provisions

3.2(a)(i) Environmental Planning Instruments

3.2(a)(i)a Wakool Local Environmental Plan 2013 (Available: https://www.legislation.nsw.gov.au/#/view/EPI/2013/655)

Part 1 Preliminary

Section 1.2 Aims of Plan

Comment: The proposed development is not specifically consistent with the aims of Wakool LEP 2013 as it does not comply with a specific assessment criterion.

Section 1.9A Suspension of covenants, agreements and instruments
Comment: For the purpose of enabling development on land in any zone to be carried out in accordance with this plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

Part 2 Permitted or prohibited development

Section 2.3 Zone objectives & Land Use Table (development permissibility)

Zone: RU1 Primary Production

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

§ To encourage diversity in primary industry enterprises and systems appropriate for the area.

§ To minimise the fragmentation and alienation of resource lands.

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

§ To promote the use of agricultural land for efficient and effective agricultural production without the encroachment of urban land uses.

§ To allow the development of processing, service and value-adding industries related to agriculture and primary industry production.

§ To allow the development of complementary non-agricultural land uses that are compatible with the character of the zone.

Comment: The proposed development is not considered to be inconsistent with the objectives of the RU1 Primary Production Zone of the Wakool LEP 2013. The applicant is seeking Council permission for part demolition and extension to existing single storey dwelling. Due to the use being continuous, there will be no conflict between the subject site and the neighbouring land uses. The applicant has also indicated that no vegetation is proposed to be removed as part of this application. Therefore, the proposed development will not have any adverse impact on the natural resource base of the land. As such the proposal is consistent with the Wakool LEP 2013 and the objectives of land zoned RU1 Primary Production. Dwelling Houses are permitted with consent on land zoned RU1, as such the proposal for extension to existing dwelling including part demolition is considered to be consistent with the above objectives.

Section 2.7 Demolition requires development consent

Comment: The proposed demolition requires a development consent as it is not being identified as exempt development under this plan or State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

Part 3 Exempt and complying development

Comment: The proposed development cannot be classed as complying or exempt development.

Part 4 Principal development standards

Comment: No Principal Development Standards are applicable to the proposed development.

Part 5 Miscellaneous provisions

Section 5.10 Heritage conservation

Comment: As per the submitted AHIMS search, the site does not contain any known items of Environmental Heritage Significance. It is the responsibility of the Applicant to ensure compliance with the Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales. Any consent issued will contain the standard Heritage NSW condition regarding protection of Aboriginal Cultural Heritage.

Part 6 Additional local provisions

Section 6.1 Earthworks

Comment: No significant earthworks will incorporate for the proposed development. As per the submitted plans (demolition floor plan & the proposed floor plans), most of the new development will utilise the existing footprint. As the applicant is proposed to construct a double storey extension, to support the double storey the applicant is required to install beams on ground, which requires some earth works. As these earthworks are only to be limited to the foundation (i.e. boring footing for structural foundations) the assessing officer does not believe that any ancillary earthworks will bring any detrimental impacts on existing drainage patterns and soil stability in the locality. The assessment officer of this application believes that subject to appropriate conditions on the consent (i.e. sediment control measures, protection of any potential Aboriginal items etc.) the similar consistency can also be achieved and the proposal meets the objectives of this section and the relevant assessment criteria outlined in Section 6.1(3).

Section 6.2 Flood planning

Comment: The subject development site has not been identified as a flood prone area in accordance with the Wakool LEP 2013. The applicant in their respective SOEE has indicated that the subject development site is not being inundated with flood. It is however noted that the subject development site is covered by the flood study carried out by the previous Wakool Shire Council in 2014. Therefore, Council as the consent authority is required to consider if the proposed development complies with assessment guidelines outlined in Section 6.2(3) and meets the objectives as outlined in Section 6.2(3). In this regard the following is noted:

1. As per the proposed ground floor plan, the only external works proposed include construction of a concrete veranda and installation of beams to support for the proposed first floor. The proposed concrete veranda will be approximately 46.72sqm and is to be located around the proposed Bedroom One (1) & Two (2). As the proposed concrete veranda is not considered to be a habitable component of the dwelling it is considered that the proposal will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development and is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. Please also refer to assessment against Section B.2.4 Flood Planning of the Wakool DCP 2013 for additional information.

2. The applicant however has failed to provide specific flood height applicable to the development site. As part of the development, the applicant has proposed to build a double storey extension. As no specific data has been presented by the Applicant Council officers cannot verify if the proposed extension is compatible with flood hazard of the land or it will significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation or if it is likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

It is therefore noted in the event if Council approves the development application, a deferred commencement condition will be included on any consent granted stating that “proponent must submit a certificate from an NSW Registered Land Surveyor showing that the finished floor level of the proposed double storey extension approved under this consent is 500mm above the 1 in 100 Year ARI Flood Level for the site.”

Section 6.4 Riparian land and watercourses

Comment: As per the submitted site plan the proposed development is located approximately 72m from the high bank of the Murray River. The applicant is only seeking Council consent for extension to existing single storey dwelling and demolition of an existing portion of the dwelling). As per the submitted SOEE, the applicant is not seeking to remove any vegetation or is not intending to extract water from the Murray River. It is therefore considered that the proposed development is consistent with the assessment criteria outlined in Section 6.4 (3) of the WLEP 2013. As a result, Council is satisfied that the proposed development will not have any significant adverse environmental impact (including cumulative and concurrent impact) and meets the following objectives of this section:

(a) water quality within watercourses,

(b) the stability of the bed and banks of watercourses,

(d) ecological processes within watercourses and riparian areas.

It is therefore considered that the proposed development is consistent with this section.

Section 6.5 Wetlands

Comment: The objective of this Section is to ensure that wetlands are preserved and protected from the impacts of development. Small portions of the far western and eastern sections of the development site is mapped as wetlands. As per submitted plans no works are proposed to occur on those specific sections. As discussed previously within the report the proposed development does not warrant removal of trees. In fact, the proposed development is largely to use the existing footprint. It is therefore considered that the proposed development is unlikely to have any significant adverse impact on the existing native fauna and flora or quality of habitats on the land for indigenous and migratory species and considered to be met the assessment criteria in Section 6.5 (4) and Council as the consent authority is satisfied that the proposed development is sited and designed to manage any potential adverse environmental impacts.

Section 6.6 Development on river front areas

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

(a) to support the natural migration of the river channel, including riverine processes,

(b) to protect and improve the bed and bank stability of rivers,

(c) to maintain or improve the water quality of rivers,

(d) to protect the amenity, scenic landscape values and cultural heritage of rivers,

(e) to protect public access to riverine corridors,

(f) to conserve and protect riverine corridors, including wildlife habitat.

Comment: The proposed development is not considered to be inconsistent with the above objectives. Importantly, the proposed development will not have detrimental impacts on the amenity, scenic landscape values and cultural heritage of river.

(2) Despite any other provision of this Plan, development consent may be granted to development on land in a river front area only for the following purposes—

(a) boat building and repair facilities, boat launching ramps, boat sheds, charter and tourism boating facilities or marinas,

(c) environmental protection works,

(d) extensive agriculture and intensive plant agriculture,

(e) environmental facilities, recreation areas and recreation facilities (outdoor),

(f) water recreation structures.

Comment: Council consent is required for the proposed development as per Section 6.6 (2)(b) of the WLEP 2013. It is noted however, as the proposed extension will not be located no closer to the riverbank than the existing building the proposed development is not consistent with this section. As discussed within the background of this report, this matter was previously raised with Kell Moore Lawyers. In summary the legal interpretation was that if the Applicant proposes to extend the existing dwelling which does not meet relevant setback provisions (100m) the applicant is required to maintain the existing setback to the high bank of the river.

Of note, as per WLEP 2013, river means the Murray River, the Edwards River, the Wakool River and the Murrumbidgee River.

The applicant however made a submission in support of the development application seeking a variation to the above provision (6.6 (2)(b)). The submitted submission is outlined in Section 3.5(d) of this assessment report.

(3) Development consent must not be granted for a purpose specified in subclause (2) unless the consent authority is satisfied of the following—

(a) that the development will contribute to achieving the objectives for the zone in which the land is located,

Comment: As outlined previously, the proposed development is consistent with the objectives of the RU1 Primary Production zone of the Wakool LEP 2013. Due to the use being continuous, there will be no conflict between the subject site and the neighbouring land uses. The applicant has also indicated that no vegetation is proposed to be removed as part of this application. Therefore, the proposed development will not have any adverse impact on the natural resource base of the land.

(b) that the appearance of the development, from both the river and adjacent river front area, will be compatible with the surrounding area,

Comment: As noted during the site inspection and as per NSW ePlanning Spatial Viewer, the western and north western sections of the development site contains mature vegetation. As no vegetation is proposed to be removed and due to the considerable distance to the high bank of the Murray River, it is considered that the proposal will not drastically change the appearance of the existing development site.

(c) that the development is not likely to cause environmental harm such as—

(i) pollution or siltation of the river, or

(ii) an adverse effect on surrounding uses, marine habitat, wetland areas, fauna or flora habitats, or

(iii) an adverse effect on drainage patterns,

Comment: As no trees are planned to be removed or no bed and bank works are proposed Council as the determination authority is satisfied that the proposed development will not cause environmental harm. It is noted however a condition will be recommended to include on the consent regarding the management of stormwater, in the event Council approves the application.

(d) that the development will only cause minimal visual disturbance to the existing landscape,

Comment: As noted previously and evident on the Aerial Images within the report, the development site contains mature trees on the front end facing the North Barham Road and along the southern, northern and western boundaries. The existing vegetation on the site act as a screen and reduces the visual impacts. Importantly the proposed extensions are to be located at the rear end of the existing dwelling. Also, the existing dwelling is located approximately 460m from the North Barham Road. It is therefore considered that the proposal will only have minimal visual disturbance to the existing landscape. Please also refer to assessment against 6.6 (3)(b) for further comment.

(e) that continuous public access, and opportunities to provide continuous public access, along the river front and to the river, will not be compromised,

Comment: There is no public access to the river through the development site. It is therefore considered that the proposal consistent with this sub-section.

(f) that any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained.

Comment: The submitted AHIMS Search indicates that with a Buffer of 50 meters there are no known Aboriginal sites are recorded in or near the subject development site.

In summary, even though an assessment against Section 6.6 (3) has been carried out by the officer, due to non-compliance with Section 6.6 (2)(b) of WLEP 2013 the development is required to be refused.

Section 6.8 Essential services

Development consent must not be granted for development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

*Subclause*	Comment
(a) the supply of water,	The applicant noted that an existing two (2) 22,500L rainwater tanks are available on site. The applicant further noted that this arrangement is in addition to extract water from the Murray River. It is however noted that as per Wakool DCP 2013 a rainwater tank of minimum storage of 90,000 litre is required if no Council reticulated water supply is available. It is therefore a condition will be recommended in the event should Council approves the development to reflect that requirement.
(b) the supply of electricity,	Electricity is available.
(c) the disposal and management of sewage,	The proposed development will utilise existing toilet facilities on site. It is however not clear if the existing system can service the proposed development. It is therefore noted a condition will be recommended stating that the applicant is required to provide a suitability assessment report of the existing on-site-sewage system prior to any work.
(d) stormwater drainage or on-site conservation,	The applicant noted that the additional storm water generated on site will be directed to existing rainwater tank or will be managed on site. It is therefore a condition will be recommended in the event should Council approves the development to reflect that requirement.
(e) suitable vehicular access	Existing access to the property.

Schedule 1 Additional permitted uses

Comment: No additional permitted uses outlined in the Schedule are applicable to the proposed development.

3.2(a)(i)b Murray Regional Environmental Plan No. 2—Riverine Land

Comment: The subject site is mapped as Murray Regional Environmental Plan 2 – Riverine Land. Consistent with objectives and principles.

3.2(a)(i)f State Environmental Planning Policy (Koala Habitat Protection) 2020

Comment: The subject land is not considered to be core koala habitat or potential koala habitat.

3.2(a)(i)g State Environmental Planning Policy No 55—Remediation of Land

Comment: The subject land is not considered to be contaminated or likely to be contaminated and is not listed on Council’s Contaminated Land Register. In accordance with Section 7 of SEPP 55, Council is satisfied that, the land is suitable in its current state for the purpose for which the development is proposed to be carried out.

3.2(a)(i)l State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Comment: The proposal relates to a BASIX affected development.

BASIX affected development means any of the following development that is not BASIX excluded development—

a) development that involves the erection (but not the relocation) of a BASIX affected building,

b) development that involves a change of building use by which a building becomes a BASIX affected building,

c) development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimated construction cost of the development is—

(i) $100,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or

(ii) $50,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,

As the construction cost of the development is $150,000, the proposed development requires a BASIX Certificate. A valid BASIX Certificate (A395822 dated 12 November 2020) has been submitted with the application and the commitments have been shown on the plans. Plans appear to be consistent with BASIX commitments.

3.2(a)(i)o State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Comment: The proposed development cannot be classed as exempt or complying development as it does not meet all of the development requirements.

3.2(a)(ii) Proposed instruments

Comment: Murray River Council Draft LEP 2021 soon applies. Same non compliance with river front area Section applies.

3.2(a)(iii) Any development control plan

Comment: Wakool Development Control Plan 2013: Amendment 2 dated April 2015 applies to the proposal. Sections B.1, C.1, C.2, C.3, C.4 and C.5 are relevant. Sections B.2, B.3, B.4, B.5, and B.6, are not applicable.

Section B LAND USE TYPES

B.1 RESIDENTIAL & ANCILLARY USES

B.1.1 Site Planning

1) Objective(s): All development must:

a) Consider and respond to the environmental opportunities and constraints on the site;

b) Avoid, or if it cannot avoid, minimise or mitigate against any environmental impacts

or hazards or land use conflicts;

c) Protect and enhance any heritage items or historic streetscapes;

d) Integrate with the surrounding building and landscape character.

Comment: The supplied SOEE and the above assessment against Sections 5.10, 6.1 and 6.8 of the Wakool LEP 2013 concluded that the proposed development is likely to have a nil or minor impact on adjoining landowners or surrounding environment. The site does not contain any heritage items that are listed and described in Schedule 5 of Wakool LEP 2013. Importantly this application relates to rebuilding (by demolition of an existing portion of dwelling) of an existing dwelling largely to the same footprint. Therefore, the proposed development is expected to be compatible with the adjoining land uses.

B.1.2 Building Height

Objective(s): To ensure that any development:

1) Integrates with the height, bulk and scale of adjacent development and the character of the area;

2) Minimises overlooking and overshadowing of adjacent dwellings and their private open spaces; and

3) Encourages innovative roof forms that increase solar access to buildings (in winter months) and/or have architectural merit.

As per the submitted elevation diagrams, the proposed development is to have a total height of 7.92m to the ridge. As discussed within the report due to the vegetation cover around the existing single storey dwelling and substantial setbacks (approximately 28m to the nearest dwelling on adjacent allotment) it is considered that the proposal will not overlook or overshadow the adjacent dwellings and their private open spaces. Therefore, the proposed development is not inconsistent with this part.

B.1.3 Building Setbacks

Objective(s): Buildings should be setback from the lot boundaries:

a) To maximise amenity for the proposed dwelling and any adjacent dwellings (including, but not limited to, separation from road noise, adjacent building noise, privacy, reasonable views, and overshadowing);

b) To allow for sufficient fire protection and/or address fire requirements;

c) To allow an area for landscape on the site for environmental and privacy benefits and to reduce the visual impacts of any building(s);

d) To ensure the proposed building is consistent in setback (and the appearance of bulk and scale) with the adjacent buildings whilst defining the street edge and creating desirable street proportions;

e) To provide some articulation and/or variation to the building elevations to provide visual interest.

In RU1 Primary Production zone where Lots are more than 1 ha

· 25m (Increased setback may be required if lot fronts an unsealed road).

· 15m (Inc. setbacks may be required if likelihood of impact on “right to farm” of adjacent lot).

· 25m (Increased setbacks may be required if likelihood of impact on “right to farm” of adjacent lot).

Comment: As per submitted proposed site plan, the proposed development complies with these controls. Therefore, no variation is required. It is therefore considered that the proposal meets the objectives of this Section.

B.1.5 Site Coverage

Objective(s): All residential development should provide sufficient site area without buildings or impermeable hard surfaces:

a) To avoid overdevelopment of the site and protect the area character;

b) To encourage development that responds to the site opportunities and constraints;

c) To protect existing significant trees and their root systems;

d) To allow for infiltration of water, and significant landscape and plantings;

e) To provide ground level open spaces and recreation areas for the development;

f) To encourage passive solar design and energy efficiency; and

g) To maximise residential amenity and privacy.

Comment: As discussed within the report, the site subject to this development application contains mature vegetation along the boundaries. It is therefore considered the proposed development positively responds to the attributes of the site. The proposed first floor plan and the ground floor plan indicate that the total floor area of the dwelling is to be approximately 280.7 m², which is well below the maximum site coverage of 70% given that the extent of the development site is approximately 8.997 ha. Also, the proposed development orientated to the east providing maximum solar access to the dwelling. The living, kitchen and bedrooms of the proposed development are designed to provide natural cross ventilation through the Aluminum sliding windows on either side of the walls.

B.1.6 Orientation, Solar Access and Cross Ventilation

Objective(s): All residential developments should seek to incorporate passive design principles that will contribute to the overall energy efficiency of residential dwellings and reduce energy consumption including management of solar access and natural cross ventilation.

Comment: All the primary living areas within the proposed extension is orientated directly to the east direction. Also, the elevation diagrams and floor plans indicate that the proposed development incorporates large windows and doors to be able to maximise solar access to the development. To support the applicant’s argument, the applicant has provided a valid BASIX Certificate. It is therefore considered that the proposed rebuilding and additions are generally consistent with this part.

B.1.7 Private Open Space

Objective(s): Residential development should incorporate sufficiently sized and suitably located outdoor private open space and landscape areas:

a) To maximise amenity for each dwelling and

b) To maximise solar access to private open spaces and living areas.

Comment: The proposed development complies with this section.

B.1.8 Acoustic (Noise) & Visual Privacy

Objective(s): Development must demonstrate how it will:

a) Preserve the visual privacy and minimise overlooking of the living area(s) and private open space(s); and

b) Minimise unreasonable noise impacts;

Note: Single storey dwelling development that meets the setback controls does not require specific privacy controls

Comment: The application relates to rebuilding and additions to existing single storey dwelling. As discussed in the Section B 1.3 the proposed development meets the relevant setback requirements. Therefore, it is considered that the proposed development meets the objectives of this standard and is acceptable in this instance.

B.1.9 Building Articulation, Design & Materials

Objective(s): Building facades (especially for larger buildings or those facing public spaces such as a public road, reserve, railway or adjoining residential area) must incorporate variations in the façade treatments, roof lines and building materials to avoid large blank walls, reduce bulk and scale of the building, minimise reflective material, and provide visual interest.

Comment: The applicant has indicated that the proposed development is to have timber weather board walls with steel roof. As per north and east elevation diagrams, the roof incorporates varying pitch with degrees. Therefore, it is considered that the proposed development would provide visual interest and will blend into the natural landscape in keeping with the area’s character.

B.1.10 Landscape

Objective(s): Landscape design for residential development should address:

a) The shading of buildings in summer and their solar access in winter, privacy, security, recreation and amenity of the subject site and adjacent lots;

b) Suitability of species to the climate and local ecology and minimising maintenance and watering requirements.

Comment: No Landscaping Plan is required as no trees are to be removed and the subject development site already contains mature trees.

B.1.13 Access & Parking

1) Objective(s): To ensure that all development is designed:

a) To promote safe and efficient access/egress to each lot/development;

b) To provide appropriate areas for vehicle manoeuvring and turning; and

c) To provide sufficient on-site parking to minimise reliance on public roads for parking.

Comment: As per, B.4 access & parking of the Wakool DCP 2013 (Page 90) the proposed development should incorporate two car parking spaces within the property boundary. During the site inspection it was witnessed that the subject development site has ample room for car parking purposes. Therefore, this standard is considered to be met.

C.1 NATURAL ENVIRONMENT

River front areas: For the purposes of determining whether development consent is

granted for development that would result in tree removal in river front areas then an “adverse impact” or “environmental harm” or “visual disturbance” is deemed likely to occur

when the tree(s) for removal:

a) Are identified in WLEP2012:

i) within 40m of the top of bank of a watercourse identified on the Watercourse

Map in WLEP2012; or

ii) within 40m of a wetland identified on the Wetland Map in WLEP2012; or

iii) within an area identified as „Biodiversity‟ on the Biodiversity Map in WLEP2012

and form part of a significant corridor of biodiversity; and

b) Exceed the following dimensions:

i) Height greater than 6 metres; or

ii) Diameter greater than 30 centimetres (when measured 1.4 metres above

ground); and

c) There is a reasonable alternative location for the proposed development that would

not cause this adverse impact/ environmental harm/ visual disturbance.

Comment: As no vegetation is proposed to be removed, the proposal complies with this section.

B.1.2 WATERCOURSES & WETLANDS

Building Setbacks: WLEP2012 – Section 6.6 – Riparian Land and the Murray River and other watercourses sets the minimum setbacks for all buildings (and ancillary on-site sewerage management systems) from the top of bank of key watercourses as follows:

· In all urban zones (Zones R1 General Residential, Zone B2 Local Centre, Zone B6 Enterprise Corridor, Zone IN1 General Industry, Zone RU5 Village, Zone R5 Large Lot Residential, Zone RE1 Public Recreation, Zone RE2 Private Recreation, Zone SP2 Infrastructure) – 40 metres;

· In all other rural and environmental zones – 100m.

Comment: As discussed within this report, the development site is zoned RU1 Primary Production. Therefore, the applicant is required to comply with 100m setback as per this section. It is however due to the nature of the proposal (being identified as extension and alteration to the existing building), the applicant relies upon Section 6.6 (2)(b) of WLEP 2013 to proceed. The above assessment against the relevant section concluded that the proposal is inconsistent with that section.

B.2.3 Stormwater & Drainage

Objective(s):

a) To improve water conservation;

b) To reduce the volume and increase the water quality of stormwater run-off;

c) To maintain existing stormwater drainage corridors and watercourses to provide for extreme surface water flows;

d) To increase on-site storage of rainwater (where suitable); e) To minimise damage to private and public property from surface water flows during and after high intensity rainfall events.

Comment: As noted in Section 6.8 - essential services, in the event if Council approves the development application, a condition will be included to ensure that the applicant is required to manage the stormwater on-site.

C.2 Hazards

B.2.4 Flood Planning

9) Residential Development outside a controlled levee bank:

g). Rebuilding part of a dwelling below the Flood Planning Level may be permitted provided the building maintains the same dimensions which result in the same impact on flood behaviour

Comment: As discussed within Section 6.2 of this report, the proposed development is located outside a controlled levee bank and the subject development site is mapped as a flood prone land. The Barham Flood Study carried out by the Wakool Shire Council indicates that 1 in 100 flood height for the site is 77.00m AHD. It is however noted the applicant has not provided a site-specific flood height to support the application. In fact, the applicant has indicated that the subject development site is not prone to flood. It is therefore noted Council has no record if the existing dwelling is above the required flood planning height.

In determining this application Council as the consent authority is therefore required to ascertain if the proposed extension (first floor) is above the relevant flood planning level. Of note, as per submitted proposed floor plans, the applicant is planned to increase the floor area by 92.2sqm which is approximately 40% of the floor area of the existing dwelling. As no record of the flood level is found the officer cannot ascertain if the development site is located below the flood planning level or above the flood planning level. Council officers believe that this should be determined prior to activating any potential development consent. It is therefore noted in the event if Council approves this application a deferred condition will be included on the consent stating that the applicant must prove that the finished floor level of the new section is above the 500mm freeboard to the flood planning level.

C.3 Heritage & Culture

Comment: No known Aboriginal Items are recorded within the site. A general condition however will be imposed to ensure consistency.

C.5 URBAN AREA CHARACTER STATEMENTS

Comment: The proposed development will promote greater housing choice, diversity and affordability within the Barham urban area. The supplied SOEE indicates that no vegetation is required to be removed as part of this application. Therefore, the proposed development is considered to comply with the Wakool Development Control Plan desired future urban character of the Barham area.

3.2(a)(iv) The regulations

Comment: Sections 92-98 of the Environmental Planning and Assessment Regulation 2000 outline the matters to be considered in the assessment of a development application. It is therefore noted in the event if Council approves the application it is recommended that the prescribed conditions to be included with any consent granted to ensure consistency.

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

Site & Context

The subject site is located within a rural-residential area currently zoned RU1 Primary Production under the provisions of Wakool Environmental Plan 2013. As noted above, the bulk and scale of the proposed addition is compatible with the site. The proposal will have minimal impact on the North Barham Road streetscape due to the considerable setback and significant vegetation within the development site. The assessment against Section 6.6(3) concluded that the proposed extension will have minimal impact on the existing build form within the neighbourhood.

Social Impacts

The proposed development is unlikely to create any adverse social impact.

Economic Impacts

No adverse impacts. A likely positive impact is that the development will maintain employment in the construction industry, which will lead to flow impacts such as expenditure in the area.

Traffic and Parking

The development will not unreasonably increase vehicle movements beyond the capacity of the local road network. No upgrades to the existing separate points of ingress / egress are required.

Noise

It is anticipated there will be standard construction noise and/or vibration associated with the proposed development. Given the distance to adjoining dwellings (minimum of 27m from proposed construction site) these impacts are deemed acceptable. In the event if Council approves the development application, it is recommended that a condition which outlining the standard construction hours be imposed with any consent granted to mitigate potential adverse impacts.

Amenity

All required utilities are available to the subject site as discussed under Section 6.8 within the report. It is noted however the assessing officer is not satisfied that the existing on-site-sewage system is capable of serving the proposed development. A condition is therefore recommended to be included on any consent granted, in the event if Council approves the development application.

Aboriginal Cultural Heritage

No known items identified on the subject land. It is however a general condition will be imposed to ensure that the proposed development will have minimum impact on any potential Aboriginal Cultural Heritage.

Soils, soil erosion

Minor soil disturbance will be required to enable the construction of the development as outlined in Section 6.1 within the report. It is however noted that subject to recommending standard erosion and sediment conditions the proposal can still proceed.

Flora & Fauna

Construction of the proposed development will not require any removal/clearing of any significant vegetation and therefore will be unlikely to have any significant adverse impacts on biodiversity or threatened species of flora and fauna. Please also refer to comment against Section 1.7 within the report.

3.4(c) The suitability of the site for the development

Comment: Even though, the proposal will adequately fit into the locality, as per the above assessment the proposed development does not conform to the specific assessment guidelines of the WLEP 2013. The legal interpretation is that the specific assessment criterion (Section 6.6(2)(b)) is not a development standard which Council may vary. As such Council officers believe that the location of the site is deemed to be unsuitable for the particular development.

3.5(d) any submissions made in accordance with this Act or the regulations,

Government Agencies

· The development application was not required to refer to Government Departments. Therefore, no submissions received.

Public Submissions:

· The development application was notified to public for 14 days. Council did not receive any public submission objecting to the development. A submission (attachment -03) was however made by Mcknight & Bray Building Design in support of the development application seeking a variation to the provisions for the following reasons:

Wakool Local Environmental Plan 2013

Part 6, 6.6 Development on river front areas

(2) Despite any other provision of this Plan, development consent may be granted to development on land in a river front area only for the following purposes—

(e) environmental facilities, recreation areas and recreation facilities (outdoor)

(f) water recreation structures.(pools)

The above clause e and f allows the possibility for an outdoor area and or pool to be approved closer to the river than the existing residence provided the objectives to the clause are complied with.

In this instance the non-compliant structure Veranda & balcony (highlighted in attached plans approximately 7m2) that we are trying to get approved is classified as recreation areas and recreation facilities (outdoor).

In this instance we ask planning to use their discretion to allow the reduction in the setback based on the following points:

1. The client could submit a DA for an outdoor and even pool area closer to the river

2. The use of the non-compliant area is classified as recreation areas not living floor area

3. The distance off the river is still 72m a reduction of only 4m from existing

4. The extension complies with the objectives to this clause and has no negative effect on the amenity of the river or adjoining neighbours.

End of the submission.

Assessment officer’s comments:

The submission maker’s comments are noted. Several points in the applicant’s submission require comment and/or clarification as below: -

· The officer acknowledges that subject to an assessment to ensure suitability for an outdoor area or a swimming pool, Council may grant consent for such ancillary developments despite not meeting relevant setback requirements;

· As the proposed veranda and the balcony (non-compliant area as per the submission) are attached to the dwelling, they are identified as part of the dwelling. It is noted therefore, the proposed additions are required to comply with the relevant setback provisions as outlined in WLEP 2013;

· As noted previously Council cannot vary Section 6.6 (2)(b) of WLEP 2013;

· The officer acknowledges that the objectives of this Section (Clause) can be achieved despite not meeting the relevant assessment guidelines. The above assessment concluded that the proposal will not have detrimental impacts on the amenity of the river or adjoining neighbours.

3.6(e) The public interest.

The public interest is a broad consideration relating to many issues and is not limited to the demand upon public services and infrastructure. Taking into account the full range of matters for consideration under Section 4.15 (1),(a),(b),(c) and (d) of the Environmental Planning and Assessment 1979 and it is considered that approval of the application is inconsistent with the public interest. The applicant has provided a submission as to why this proposal be supported, however it is considered that the proposal would remain inconsistent with the Wakool Local Environment Plan 2013, it is therefore considered that the proposal is not in the public interest.

Conclusion

The proposed development has been assessed in accordance with the provisions of the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, Murray REP 02, Wakool Local Environmental Plan 2013, and the Wakool Development Control Plan 2013.

As noted above the proposed development results in non-compliance with Section 6.6 (2)(b) of Wakool Local Environmental Plan 2013. Should the application be approved the precedent created by the approval of this application may lead to additional similar applications been lodged with the Council and is inconsistent with the legal advice that Council officers have received. It is therefore due to the reason outlined in the Executive Summary the application is recommended to be refused.

Alternatively, if Council resolve to approve Development Application 10.2020.360.1 for extension to existing single storey dwelling including part demolition at Lot: 462 DP: 748396, 161 North Barham Road BARHAM NSW 2732, a deferred commencement consent is being recommended subject to the conditions outlined in the attachment four (04).

Attachments

1. DA 10.2020.360.1 - Attachment 01 - Plans ⇩

2. DA 10.2020.360.1 - Attachment 02 - BASIX Certificate ⇩

3. DA 10.2020.360.1 - Attachment 04 - Recommended Conditions ⇩

4. Applicant Submission ⇩


AGENDA Ordinary Council Meeting Tuesday, 23 March 2021
I hereby give notice that an Ordinary Meeting of Murray River Council will be held on:
Date:	Tuesday, 23 March 2021
Time:	2:00pm
Location:	Council Chambers Moama Administration Office 52 Perricoota Road, Moama
Terry Dodds Chief Executive Officer

Funding Source	Funding Body	Amount
Grant – Building Better Regions Fund	Commonwealth	$1,123,999
Grant – Regional Growth Fund	Commonwealth	$751,271
Grant – Community Building Partnerships Fund *	NSW State	$50,000
Grant – Crown Reserves Improvement Fund *	NSW State	$86,363
Council Contribution *	Council	$488,367
Council Contribution – In Kind for Project Management	Council	$125,000
Total Project Costs		$2,625,000

Location	Project Title	Construction Complete
Barham	Community Hub – Stage 1	July 2020
Barham	Recreation Reserve Skate Park	March 2019 *
Barham	Bridge Road Access	December 2019
Barham	Riverside Park Development – Pontoon	October 2020
Barham	Lawson Pavilion Refurbishment 1-2	February 2021
Mathoura	Recreation Reserve Pavilion Ext, Kitchen & Bar	May 2019
Mathoura	Picnic Point Development (footbridges)	June 2020
Mathoura	Picnic Point Boat Ramp	July 2020
Moama	Recreation Reserve Zone 4 Lights / Criterion Track/ Landscape	March 2019 *
Moama	New Office Car Park Upgrade	December 2019
Moama	Recreation Reserve Road Sealing and Drainage	December 2019
Moama	HQ refurbishment Stage 1	January 2020
Moama	Rec Reserve Zone 2 – Installation of sports field lighting, car park upgrade, field extension (Eddy Oval)	August 2020
Moama	Rec Reserve Zone 3 – Off Leash Area (due for completion end of August)	August 2020
Moama	Moama Recreation Reserve – Showground Stimulus Funding	October 2020
Moama	Business Park (Industrial Estate) Upgrade water pressure pump	January 2021
Moulamein	Merran Creek Bridge - Moulamein-Swan Hill Road	June 2020
Moulamein	Pre-School	October 2020
Moulamein	South Rec Reserve renewal surface and lights and shelter shed / Tennis courts	June 2020
Tooleybuc	Recreation Reserve Irrigation System Upgrade	January 2020
Tooleybuc	Foreshores Development - Pontoon	November 2019
Tooleybuc	Mensforth Park Footpath and Lighting	November 2019
Tooleybuc	Mensforth Park Upgrade	March 2020
Tooleybuc	Recreation Reserve Amenities Building	October 2020
Wakool	New Toilet Block	July 2020
Wakool	Ezy Dump installation – Wakool Recreation Reserve	February 2021
Various	Playgrounds – Wakool Rec Reserve, Moulamein South Rec Reserve, Tooleybuc Mensforth Park, Moama Adventure Playpark, Wakool Township Exercise Equipment	July 2019

23 February 2021	Applications open
4pm, 8 April 2021	Applications close
11 May 2021	Assessment of applications completed
25 May 2021	Council to approve funding for recommended projects
June 2021	Applicants notified of outcome
June 2021	Successful applicants to submit invoice for payment
By 30 June 2022	Projects completed and funding acquittal submitted
23 February 2021	Applications open

Murray River Council	Barham Recreation Reserve Stabilisation and upgrade of internal road, upgrade existing amenities pavilion and purchase and install of new BBQ facilities	$115,000 (inc GST)
	Horseshoe Lagoon Upgrade existing pedestrian footbridge	$95,000 (inc GST)
	Picnic Point Caravan Park Upgrade failing retaining wall	$140,000 (inc GST)
	Moulamein Centennial Recreation Reserve Construction of multi purpose shelter pavilion, toilet block and renovation to the catering and admin building	$266,770 (inc GST)
	Barham Bowling Club Purchase and install of solar lighting along new shared path	$35,000 (inc GST)

Murray River Council	Jimaringle Creek Bridge – Rangemore Road, Tullakool	$450,000
	Barber Creek Bridge ~ Sandys Bridge Road, Barham	$1,200,000
	Merran Creek Bridge – Drysdale Lane, Gonn	$900,000
	Murrain Yarrein Creek Bridge – Frasers Road, Niemur	$970,000
	Yarrein Creek Bridge – Torranie Road, Mallan	$1,300,000

Building Better Regions Fund – Round 5	Moama Foreshore	$1,124,000
Building Better Regions Fund – Round 5	Moama Preschool	$2,902,469
Civil Construction Market Program	Multi Shredder	$250,000