A Council meeting will be held on Tuesday 16 February 2021 in the Council Chambers located Corner Tozer and Elbow Streets, West Kempsey commencing ...
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A Council meeting will be held on Tuesday 16 February 2021 in the Council Chambers located Corner Tozer and Elbow Streets, West Kempsey commencing at 9:00 AM
INDEX
1 OPENING PRAYER ..............................................................................................................................3
2 ACKNOWLEDGEMENT OF COUNTRY .................................................................................................3
3 APOLOGIES AND APPLICATIONS FOR A LEAVE OF ABSENCE BY COUNCILLORS ................................3
4 CONFIRMATION OF MINUTES ...........................................................................................................3
5 DISCLOSURES OF INTEREST ...............................................................................................................3
6 ITEMS PASSED BY EXCEPTION ...........................................................................................................4
7 MAYORAL MINUTES ..........................................................................................................................5
8 REPORTS OF COMMITTEES ...............................................................................................................6
8.1 AUSTRALIA DAY AWARD COMMITTEE MINUTE(S) ....................................................................................6
9 REPORTS TO COUNCIL .......................................................................................................................7
9.1 SERVICED APARTMENTS AND COMMERCIAL SPACE DEVELOPMENT APPLICATION - LIVINGSTONE
STREET, SOUTH WEST ROCKS - T6-20-357 .................................................................................................7
9.2 QUARTERLY REPORT - FEBRUARY 2021 ...................................................................................................32
9.3 SECONDARY DWELLING - KINKI SPUR ROAD, YARRAHAPINNI - MODIFICATION T6-20-306 (REV01) ......43
9.4 PROPOSED ROAD CLOSURE - PART WAIANBAR AVENUE, SOUTH WEST ROCKS .....................................46
9.5 SOUTH KEMPSEY PRESSURE SEWER SCHEME .........................................................................................49
9.6 SOUTH WEST ROCKS COMMUNITY CENTRE PETITION ............................................................................53
9.7 PROPOSED ROAD CLOSURE AND PURCHASE AT BLEWITTS LANE, SOUTH KEMPSEY ..............................55
9.8 DELIVERY PROGRAM - JULY TO DECEMBER 2020 UPDATE REPORT ........................................................57
9.9 LOAN BORROWINGS ................................................................................................................................59
9.10 CLASSIFICATION OF LAND - SEWAGE PUMPING STATION AT SOUTH WEST ROCKS................................62
9.11 RENAMING THE SHIRE .............................................................................................................................64
9.12 CHANGE OF COUNCIL ORDINARY MEETING DATES .................................................................................67
9.13 ADOPTION OF THE SLIM DUSTY CENTRE FEES AND CHARGES ................................................................69
9.14 DEVELOPMENT ACTIVITY AND LEP VARIATIONS - QUARTERLY SNAPSHOP - 2ND QUARTER ..................71
9.15 STATEMENT OF CASH AND INVESTMENTS - FEBRUARY 2021 .................................................................73
10 NOTICES OF MOTION/QUESTIONS WITH NOTICE ...........................................................................75
10.1 QUESTIONS ON NOTICE ...........................................................................................................................75
11 CONFIDENTIAL MATTERS ................................................................................................................81
11.1 LEGAL MATTERS.......................................................................................................................................81
11.2 SPORTSFIELD LIGHTING TENDER - CENTRAL KEMPSEY SPORTING COMPLEX .........................................82
12 CONCLUSION OF THE MEETING ......................................................................................................82
Ordinary Council Meeting - 16 February 2021 Page 2
1 OPENING PRAYER “Dear Lord, help us in our deliberations today so that our decisions will be for the greater good for the whole of Kempsey Shire - Amen”. 2 ACKNOWLEDGEMENT OF COUNTRY “Council acknowledges that this meeting is being held on the traditional lands of the Dunghutti People”. 3 APOLOGIES AND APPLICATIONS FOR A LEAVE OF ABSENCE BY COUNCILLORS That the apology submitted by Councillors for non-attendance at the meeting be accepted and leave of absence granted. 4 CONFIRMATION OF MINUTES That the minutes of the ordinary meeting of Kempsey Shire Council dated 15 December 2020 be confirmed. Attachments 1. 2020-12-15-draft-minutes-r 1 [4.1.1 - 24 pages] 5 DISCLOSURES OF INTEREST That Councillors' declared interests be noted. Ordinary Council Meeting - 16 February 2021 Page 3
6 ITEMS PASSED BY EXCEPTION
The council or a committee of council may, at any time, resolve to adopt multiple items of business
on the agenda together by way of a single resolution.
Before the council or committee resolves to adopt multiple items of business on the agenda
together, the chairperson must list the items of business to be adopted and ask councillors to
identify any individual items of business listed by the chairperson that they intend to vote against
the recommendation made in the business paper or that they wish to speak on.
The council must not resolve to adopt any item of business that a councillor has identified as being
one they intend to vote against the recommendation made in the business paper or to speak on.
RECOMMENDED:
That the recommendations contained in the following items be adopted:
8.1 AUSTRALIA DAY AWARD COMMITTEE MINUTES(S)
9.5 SOUTH KEMPSEY PRESSURE SEWER SCHEME
9.6 SOUTH WEST ROCKS COMMUNITY CENTRE PETITION
9.7 PROPOSED ROAD CLOSURE AND PURCHASE AT BLEWITTS LANE, SOUTH KEMPSEY
9.8 DELIVERY PROGRAM - JULY TO DECEMBER 2020 UPDATE REPORT
9.9 LOAN BORROWINGS
9.10 CLASSIFICATION OF LAND - SEWAGE PUMPING STATION AT SOUTH WEST ROCKS
9.11 RENAMING THE SHIRE
9.12 CHANGE OF COUNCIL ORDINARY MEETING DATES
9.13 ADOPTION OF THE SLIM DUSTY CENTRE FEES AND CHARGES
9.14 DEVELOPMENT ACTIVITY AND LEP VARIATIONS - QUARTERLY SNAPSHOP - 2ND
QUARTER
9.15 STATEMENT OF CASH AND INVESTMENTS - FEBRUARY 2021
11.1 LEGAL MATTERS
11.2 SPORTSFIELD LIGHTING TENDER - CENTRAL KEMPSEY SPORTING COMPLEX
Ordinary Council Meeting - 16 February 2021 Page 4
7 MAYORAL MINUTES Nil Ordinary Council Meeting - 16 February 2021 Page 5
8 REPORTS OF COMMITTEES
8.1 AUSTRALIA DAY AWARD COMMITTEE MINUTE(S)
Officer Susan Kane, Executive Assistant - Mayor
File No F20/2252
Attachments 1. 20203010 minute [IECA] [8.1.1 - 2 pages]
2. 20201812 minute [JX9G] [8.1.2 - 2 pages]
PURPOSE
The Australia Day Award Committee met 30 October 2020 and 18 December 2020. The minutes for
both these meetings are attached for information.
RECOMMENDATION
That Council:
1. note the Australia Day Award Committee Minutes for 30 October 2020, and
2. note the Australia Day Award Committee Minutes for 18 December 2020.
BACKGROUND
The Australia Day Award Committee met Friday, 30 October 2020 and Friday, 18 December 2020.
The minutes for both meetings are attached for information.
KEY CONSIDERATIONS
Policy and Legislation
Not applicable
Strategic Alignment
Not applicable
Impact on Financial Sustainability
Not applicable
Stakeholder Engagement
Not applicable
Other Matters
Not applicable
CONCLUSION
That the minutes of the Australia Day Award Committee be noted.
Ordinary Council Meeting - 16 February 2021 Page 6
9 REPORTS TO COUNCIL
9.1 SERVICED APARTMENTS AND COMMERCIAL SPACE DEVELOPMENT APPLICATION -
LIVINGSTONE STREET, SOUTH WEST ROCKS - T6-20-357
Officer Melanie Green, Town Planner
File No T6-20-357
Attachments 1. T 6-20-357 Written Statement Clause 4.6 Height Variation [9.1.1 - 26 pages]
2. T 6-20-357 Attachment Recommended Reasons for Refusal [9.1.2 - 1 page]
3. T 6-20-357 Attachment Architectural Plans [9.1.3 - 27 pages]
4. T 6-20-357 Attachment View Sharing Assessment [9.1.4 - 6 pages]
5. T 6-20-357 Attachment Statement of Environmental Effects [9.1.5 - 38
pages]
6. T 6-20-357 Attachment Heritage Advisor Referral Response [9.1.6 - 3 pages]
7. T 6-20-357 Attachment Strategic Planning Referral Response [9.1.7 - 5
pages]
8. T 6-20-357 Attachment Shadow Diagram [9.1.8 - 1 page]
9. T 6-20-357 Attachment Traffic and Parking Study [9.1.9 - 15 pages]
10. T 6-20-357 Attachment Public Submissions [9.1.10 - 180 pages]
11. T 6-20-357 Attachment Applicant Response to Submissions [9.1.11 - 20
pages]
PURPOSE
This report is submitted to Council for determination of Development Application T6-20-357, which
proposes to (1) Demolish two existing dwelling houses, (2) Consolidate Lot A DP 944304 and Lot B
939953 and (3) Erect a six-storey building that provides ground floor commercial space and five
levels of tourist and visitor accommodation (serviced apartments) at 27 & 29 Livingstone Street,
South West Rocks. As the application involves a variation of a development standard (Clause 4.3
Height of Buildings) in the Kempsey Local Environmental Plan 2013 (KLEP) exceeding 10%, the
matter to being reported to Council for determination.
The development application was lodged with Council in late October 2020. The application was
notified to adjoining and nearby property owners and placed on public exhibition for a period of 14
days from the 20th October to the 3rd November 2020. A total of 105 submissions were received
within the public exhibition period. A further 4 individual submissions and a petition with 70
signatures in the form of 70 separate proforma letters were received after the closure of the public
exhibition period. These submissions overwhelmingly opposed the proposal with the most cited
reason for objection being the height of the proposed building.
The development proposal is for a 17.36-metre-high building that is 57.5% over the maximum height
prescribed for the South West Rocks Town Centre, including the subject site, by the KLEP 2013. The
applicant submitted a written request that seeks to justify the contravention of the development
standard (the height limit) prescribed by Clause 4.3 of the KLEP 2013 with the development
application, which is attached to this report (Attachment T6-20-357 Written Statement Clause 4.6
Height Variation). The written request from the applicant and the development application
documentation have been considered on their merits and in accordance with the considerations
prescribed by Clause 4.15 of the Environmental Planning & Assessment Act 1979.
It is considered that the applicant has not demonstrated that the current height limit of 11 metres
applying to the site is unreasonable or unnecessary. Further, it is considered that there are not
sufficient environmental planning grounds to justify contravening the development standard. It is
Ordinary Council Meeting - 16 February 2021 Page 7
therefore recommended that the variation to Clause 4.3 of the KLEP 2013 is not supported. It is also
considered that the proposal will have significant adverse impacts on the amenity of adjoining and
nearby properties, including privacy intrusion, overshadowing and view loss, and an adverse impact
on the local character and heritage value of the area and the scenic qualities of the coast.
Furthermore, it is considered that the building does not sufficiently address or activate the public
realm and that the design of the ground floor of the building presents a public safety risk. It is
therefore recommended that the development application T6-20-357 be refused for the reasons
outlined in Attachment T6-20-357 Recommended Reasons for Refusal.
RECOMMENDATION
1. That the requested variation to Clause 4.3 of Kempsey Local Environmental Plan 2013
(KLEP 2013), regarding height of building, is not supported;
2. That Development Application T6-20-357 be Refused, subject to the Reasons for Refusal
contained in the attachment (Attachment T6-20-357 Reasons for Refusal); and
3. That those who have made a submission be made aware of Council’s decision.
BACKGROUND
The Site
The site is located in the north eastern area of South West Rocks town centre bound by Prince of
Wales Avenue to the west, Paragon Avenue to the south, Memorial Avenue to the east and
Livingstone Street to the North. The site consists of two adjoining lots and is approximately
809.52m2 square metres in area. The site falls 2.85 metres from the south west corner to the north
east corner. At the front boundary, the land also falls 1.22 metres from the west to the east. Existing
improvements are two single storey weatherboard cottages dating from the early 1900’s located
towards the street frontage and a garden shed in the south-east corner of Lot A. The site has a 20.12
metre frontage to the Livingstone Street service road and is serviced with reticulated water, sewer,
electricity, and telecommunication services.
Ordinary Council Meeting - 16 February 2021 Page 8
The site is sandwiched between the three-storey brick ‘Travellers Palms’ holiday units to the west and the three-storey ‘Point Briner’ building, comprising of ground floor commercial and upper-level tourist and visitor accommodation, to the east as shown in the photo below. A residential property adjoins the site to the south, which is developed with a 2-storey dwelling dating from the early 1900’s. According to the property owner, this dwelling is used primarily as a family home and is let out for holiday rental during holiday periods. The site is directly opposite Horseshoe Bay Reserve and close to recent public realm improvements including the children's playground and new footpaths. The site is zoned B2 Local Centre under the KLEP 2013. A building height limit of 11 metres applies to the B2 Local Centre zoned parts of the South West Rocks town centre, including the subject site, pursuant to Clause 3.3 of the KLEP 2013. The Proposal Development Application T6-20-357 proposes to (1) Demolish two existing dwelling houses, (2) Consolidate Lot A DP 944304 and Lot B 939953 and (3) Erect a six-storey building that provides ground floor commercial space and five levels of tourist and visitor accommodation (serviced apartments) at 27 & 29 Livingstone Street, South West Rocks. The application involves a variation of a development standard (Clause 4.3 Height of Buildings) in the KLEP 2013. The tourist and visitor component of the proposal consists of six (6) 3-bedroom apartments and three (3) two-bedroom apartments. The ground floor of the building comprises of 65.48m2 of commercial floor space suitable for a single tenancy, a large terrace area fronting Livingstone Street and the service components of the tourist and visitor accommodation use. A total of eleven (11) carparking spaces are proposed to be provided at the rear of the site which will be accessed from a driveway connecting to the Livingstone Street service road. The site plan and architectural plans of the proposed development, including floor and elevation plans of the building, are attached to this report (Attachment T6-20-357 Architectural Plans). An artistic impression of the proposed building from a high point to the north-east of the site is shown below. Ordinary Council Meeting - 16 February 2021 Page 9
KEY CONSIDERATIONS Policy and Legislation The development application has been assessed under the provisions of Clause 4.15 of the Environmental Planning & Assessment Act 1979, other relevant federal and state legislation, policies and guidelines. A discussion of key legislation and policies applying to the development is provided below. State Environmental Planning Policy (Coastal Management) 2018 This State Environmental Planning Policy (SEPP) applies as the subject site is located on land mapped as being within a “coastal management (coastal use) area”. As such, the provisions of Clause 14, 15 and 16 of the SEPP apply. Clause 14 relates to development on land in the coastal use area. It requires that development consent must not be granted to development on land that is within the coastal area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on various matters, including the visual amenity and scenic qualities of the coast, including coastal headlands and cultural and built environmental heritage. Furthermore, it requires that Council does not grant consent to development to which this clause applies unless it is satisfied that the development is designed, sited and will be managed to avoid, minimise or mitigate against that impact, and has taken into account the surrounding coastal and built environment and the bulk, scale and size of the proposed development. The proposal has been assessed under the criteria prescribed by Clause 14 of the SEPP. It is considered that the development has not been designed or sited to avoid, minimise, or mitigate against adverse impacts on the built environmental heritage of the South West Rocks Heritage Precinct, nearby heritage listed items or the visual amenity and scenic qualities of the area as discussed further under the headings of “Heritage”, “Building Height” and “Local Character and Urban Design” in this report. Furthermore, it is considered that the bulk, scale, and size of the development is inappropriate considering the surrounding built environment and the proximity of the site to high use public foreshore areas and the coastline. It is considered that development Ordinary Council Meeting - 16 February 2021 Page 10
consent cannot be issued to the proposed development pursuant to the SEPP (Coastal Management)
2018.
Kempsey Local Environmental Plan 2013
The KLEP 2013 applies to the development proposal. The property is located within the B2 Local
Centre zone. The proposed development comprises of the following land uses: Commercial Premises
and Tourist and Visitor Accommodation. Both uses are permissible with consent in the B2 Local
Centre zone. The applicant has not nominated the proposed use of the commercial floor space,
although it seems likely it will be a Food and Drink Premises (restaurant or café) given the location
and size of the ground floor terrace. Food and Drink Premises are also permissible with consent in
the B2 Local Centre zone.
The applicant submits that the proposal is not serviced apartments. Despite this, it is considered that
serviced apartments (which are also permissible with consent in the B2 Local Centre zone) is the
most fitting definition of the proposed development, as reproduced below:
serviced apartment means a building (or part of a building) providing self-contained accommodation
to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or
manager of the building or part of the building or the owner’s or manager’s agents.
Note— Serviced apartments are a type of tourist and visitor accommodation.
The application has been assessed under the KLEP 2013. Key areas of significant non-compliance
and/or inconsistency with the provisions and development standards within the KLEP 2013 and
other areas of contention are outlined and discussed in Table 1 below:
KLEP 2013 Subclause Comment
Clause
Clause 4.3 (1) The objectives of this clause are as follows— According to the submitted plans,
Height of the building has a maximum
(a) to preserve the existing character in residential
Buildings height above natural ground level
and business areas within Kempsey,
of 17.36 metres. This exceeds the
(b) to nominate building heights that will provide a maximum height specified for the
transition in built form and land use intensity within land by 57.8%.
the area covered by this Plan,
A Clause 4.6 request for an
(c) to protect the amenity of existing and future exception to a development
dwellings from adverse impacts on privacy, solar standard has therefore been
access and on the urban streetscape. submitted to support the
application (Attachment T6-20-
(2) The height of a building on any land is not to 357 Written Statement Clause 4.6
exceed the maximum height shown for the land on Height Variation). The matter of
the Height of Buildings Map. building height is discussed under
the subheading “Height” in the
“Issues” section of this report.
Clause 4.4 Floor (1) The objectives of this clause are as follows— The FSR ratio nominated for the
Space Ratio site is 1.5:1. The applicant
(a) to provide for a range of densities for
submits that the gross floor of the
development on land in business and industrial
building, as revised, is 1211.77m2.
zones,
Based on a site area of 809.52m2,
(b) to ensure buildings are compatible with the bulk
the applicant submits that the
Ordinary Council Meeting - 16 February 2021 Page 11KLEP 2013 Subclause Comment
Clause
and scale of the locality. FSR of this development is 1.49:1
and therefore complies.
(2) The maximum floor space ratio for a building on
any land is not to exceed the floor space ratio The development is able to meet
shown for the land on the Floor Space Ratio Map. the prescribed FSR, despite its
height and scale, as the rules for
FSR calculation allow for the
exclusion of terraces and
balconies with outer walls less
than 1.4 metres high. The
exclusion of the oversized
“garage’ of Unit 9 and ground
floor terrace from the calculation
of gross floor area is
questionable, however, given it is
enclosed on by solid walls on
three sides.
Clause 4.6 (3) Development consent must not be granted for The applicant submitted a written
Exceptions to development that contravenes a development request to vary the height limit
development standard unless the consent authority has prescribed by Clause 4.3 of the
Standards considered a written request from the applicant KLEP 2013 with the development
that seeks to justify the contravention of the application, which is attached to
development standard by demonstrating— this report (Attachment T6-20-
357 Written Statement Clause
(a) that compliance with the development
4.6 Height Variation).
standard is unreasonable or unnecessary in the
circumstances of the case, and
(b) that there are sufficient environmental planning
grounds to justify contravening the development
standard.
(4) Development consent must not be granted for It is considered that consent to
development that contravenes a development the proposed contravention
standard unless— cannot occur as the applicant has
failed to demonstrate (a) and (b)
(a) the consent authority is satisfied that—
of Clause 4.6 (3) of the KLEP 2013.
(i) the applicant’s written request has adequately
Furthermore, it is considered
addressed the matters required to be demonstrated
that the proposed development is
by subclause (3), and
not in the public interest as it is
(ii) the proposed development will be in the public not consistent with objectives (a)
interest because it is consistent with the objectives and (c) of Clause 4.3 of the KLEP
of the particular standard and the objectives for 2013.
development within the zone in which the
For further commentary on the
development is proposed to be carried out.
matter of height, refer to
subheading “Building Height”
under the “Issues” section of this
report.
Clause 5.10 (5) Heritage assessment The consent authority The subject site is in the vicinity
Ordinary Council Meeting - 16 February 2021 Page 12KLEP 2013 Subclause Comment
Clause
Heritage may, before granting consent to any development— of land on which a heritage item
Conservation is located. As the proposed
(a) on land on which a heritage item is located, or
development is likely to adversely
(b) on land that is within a heritage conservation impact on the heritage
area, or significance of the item, a
heritage management document
(c) on land that is within the vicinity of land (i.e. a heritage impact statement)
referred to in paragraph (a) or (b), should have been submitted with
the application.
require a heritage management document to be
prepared that assesses the extent to which the
carrying out of the proposed development would
affect the heritage significance of the heritage item
or heritage conservation area concerned.
Table 1. KLEP 2013 – Key Areas of Non-Compliance and/or Inconsistency
Kempsey Development Control Plan 2013
The Kempsey Development Control Plan (KDCP) 2013 applies to the subject site and the proposed
development. While there is not yet a chapter for commercial development, components of Chapter
C1 Residential Development including solar access requirements and other amenity considerations
apply as the site adjoins residential development. As the site is located within the South West Rocks
town centre and within a ‘heritage precinct’, the relevant sections of Chapter B13 - Heritage
Areas/Development, Chapter D1-South West Rocks, and the general requirements for development
within Part B of the KDCP 2013 have been taken into consideration in the assessment of the
development application. Key areas of significant non-compliance and/or inconsistency with the
desired outcomes of the controls or the development requirements are outlined below:
KDCP 2013 Chapter Objective/ Desired Outcome/ Comment
Development Requirement
Chapter B13 - (7) DO1: development within The proposed development is not
Heritage Heritage Precincts is compatible with considered to be compatible with the
Areas/Development the heritage significance of the area heritage significance of South West Rocks
as described in the relevant Heritage as described in this Chapter or the
Precinct Significance Statements and Character Analyses. Refer to subheading of
Character Analyses. ‘Heritage’ under “Issues” for further
commentary on the matter.
b) The demolition or removal of any An assessment of the heritage significance
building within a Conservation Area/ of the buildings or a heritage impact
Heritage Precinct may only be statement prepared by a suitably qualified
undertaken where the building: heritage consultant was not prepared to
support the application for demolition.
(i) Does not contain any heritage
While the two dwellings on the site may
qualities or contribute to the
currently be considered ‘derelict’ due to
character of the Conservation neglect, information has not been provided
Area/Heritage Precinct; or to Council that indicates they are beyond
repair and restoration (such as a building
(ii) Constitutes a danger to the users report or structural engineer assessment)
or occupiers of that building or the or that all alternatives to demolition have
Ordinary Council Meeting - 16 February 2021 Page 13KDCP 2013 Chapter Objective/ Desired Outcome/ Comment
Development Requirement
public. been properly considered. Furthermore,
the application for demolition has not been
(iii) A suitable replacement building
accompanied by a suitable replacement
design accompanies any
building. Refer to subheading “Heritage”
Development Application for a under “Issues” for further commentary on
demolition. the matter.
(iv) Full archival recording will be
required in the case of Demolition of
a structure or structures within a
Heritage Conservation Area or
precinct or at the site of a Heritage
Item.
Chapter B15 – Crime (4.5) Walkways and Pathways It is considered that the design of the
Prevention through (including Stairs and Stairwells) building creates possible assault sites. Refer
Environmental to subheading “CPTED” under “Issues” for
D01 – Development is designed and
Design (CPTED) further commentary on the matter.
constructed so that movement
corridors do not become or lead to
possible assault sites.
(4.8) Entrances and Exits It is considered that the recessed entry
point to the apartments is unsafe. Refer to
D01 – Developments incorporate
subheading “Crime Prevention Through
safe and highly visible entry and exit
points. Environmental Design” (CPTED) under
“Issues” for further commentary on the
matter.
Chapter C1 (5.2.5) Solar Access and Energy While it is noted that this control applies to
Residential Conservation 3 storey development, it was considered
Development – the most appropriate solar access control
(b) All buildings shall be designed to
Urban Areas to apply for the proposed development.
ensure that no part of the windows
of any living areas of any adjoining The overshadowing diagrams show that
residential buildings or primary the majority of the property, primary
ground level private open space, are ground level private open space and all of
shaded for more than three (3) hours the dwelling at 1 Memorial Drive will be
between 9.00 a.m. and 3.00 p.m. on overshadowed between 9am and 3pm on
22 June. the 22 June. Refer to subheading
“Overshadowing” under “Issues” for
further commentary on the matter.
(5.2.6) Visual and Acoustic Privacy The design and layout of the building has
failed to prevent direct overlooking of living
(a) Visual privacy between proposed
spaces and private open spaces of
and existing adjoining dwellings is to
dwellings, units and apartments on
be ensured. Overlooking of living
adjoining properties. Refer to subheading
spaces in buildings and private open
“Privacy” under “Issues” for further
spaces is to be avoided.
commentary on the matter.
(b) Strategic use of the following, or The building design has failed to
Ordinary Council Meeting - 16 February 2021 Page 14KDCP 2013 Chapter Objective/ Desired Outcome/ Comment
Development Requirement
alternative measures, are to be incorporate sufficient measures to preserve
utilised to preserve the visual privacy visual privacy between properties. The
between adjoining properties and rear external “metal privacy battens” only
between individual units within screen part of the rear balconies and do
multi-unit developments. not sufficiently protect the privacy of
dwellings and apartments to the south and
south-east of the site. Refer to subheading
“Privacy” under “Issues” for further
commentary on the matter.
(5.9 ) Protection of Views The view sharing assessment (T6-20-357
Attachment View Sharing Assessment)
DO1 - Where existing development
indicates that the development is unlikely
enjoys desired views (e.g. ocean
to completely block valuable/desirable
views, views of hills and mountains
water views from any existing apartments,
etc), new development is designed
holiday units or dwellings.
and sited so that at least a part of
the desired view is visible from the However, with the exception of the
existing development, where information provided for Unit 15 of 2
practicable. Paragon Avenue, there is insufficient
information to properly assess the full
DO2 - Development provides for
extent of the impact of the proposal on
reasonably equitable sharing of
views currently available from other units
views, between neighbouring
at 2 Paragon Avenue, 25 Livingstone Street,
properties, of hills/mountains and
12-14 Prince of Wales Avenue and upper
significant stands of vegetation.
floor apartments of buildings on the
northern side of Paragon Avenue.
There is however sufficient information to
determine that the development does not
provide for equitable sharing of views as
the proposal results in a severe loss of view
from Unit 15 of 2 Paragon Avenue. Refer
discussion under subheading “View
Sharing” under “Issues” in this report for
further information.
Chapter D1 South Objective It is considered that the proposed
West Rocks Town development, which is 3 to 4 stories higher
a) To improve urban design and
Centre than the existing built form on adjoining
amenity within the South West Rocks
and nearby properties is not compatible
town centre by:
with the size and scale of the existing built
• Ensuring development is form. Further it is considered that the
compatible with the size and scale of ground floor component of the building
the existing built form; does not adequately facilitate activation of
the public realm. Refer to discussions
• Facilitating more active street under “Height” and “Local Character and
frontages Urban Design” for further discussion of
these matters.
Objective It is considered that the proposed
Ordinary Council Meeting - 16 February 2021 Page 15KDCP 2013 Chapter Objective/ Desired Outcome/ Comment
Development Requirement
b) To preserve and enhance the development does not preserve or enhance
existing “Seaside Village” character the existing “Seaside Village” character of
of South West Rocks. South West Rocks. Furthermore, it is
considered that it would detract from and
diminish the existing character of the area.
Refer to discussions under “Building
Height” and “Local Character and Urban
Design” for further discussion of these
matters.
6.2 Access, Parking and Pedestrians The development has not provided for a
shared and/or rear of property vehicular
D02 – Development Design
access. This has necessitated provision of
incorporates shared access and/or
vehicular access from the street frontage
rear of property access and parking
that provides access to the rear carpark via
wherever possible and avoids solid
an ‘access tunnel’. This represents a poor
side boundary walls and access
design outcome for the site.
‘tunnels’ from the front.
6.3 Active Street Frontages The site has a street frontage of 20.12
metres. The shop front of the ground floor
D01 – A high proportion of
commercial floor space represents only
commercial uses have open and
43% of the width of street frontage, not all
active street frontages in order to
of which is glazed. The remainder of the
encourage pedestrian and after-
frontage is taken up by the driveway and
hours activity in the town centre.
the access to the tourist and visitor
accommodation.
The shop front is recessed from the front
property boundary several metres.
Furthermore, there is a level difference
between the footpath and the proposed
terrace, necessitating provision of a
balustrade along the northern edge of the
terrace. These factors reduce the
contribution of the building to and
interface with the public domain.
It is considered that the proposal does not
sufficiently provide for an active street
frontage.
D01 – Buildings have appropriate Refer comments under ‘Objectives’ in this
setbacks, height, size and scale which table.
contributes to the “Seaside Village”
character with a compact style and
strong pedestrian focus.
D02 - Development has a maximum 2 The first three storeys of the proposed
storey façade along the front development are built to the front property
boundary. boundary, which does not comply with this
Ordinary Council Meeting - 16 February 2021 Page 16KDCP 2013 Chapter Objective/ Desired Outcome/ Comment
Development Requirement
D03 - Where buildings have a third control.
storey, either:
The building is set back from the
front boundary a significantly
greater distance than adjoining
development and the front
boundary setback area provided
with active street front uses and
landscaping to reduce the visual
impact of the building; or
The third storey is set back
significantly from the façade so
that the building blends with the
predominantly two storey
streetscape.
DO4 - Development contributes to While the development has provided some
the continuity of the streetscape by open shopfront and general consistency
continuing the following, where with the established pattern of side
practicable and relevant: boundary setbacks for new
commercial/mixed use developments
Traditional built forms;
within the South West Rocks Town Centre,
Continuity of verandah/awning style there is an evident lack of consideration of
of bull nosed form already dominant the key built form and streetscape
within the CBD; elements of the area in the design of the
development overall, in particular:
Open shopfront;
Height
Skylines, façade height and building
height; Form
Any established pattern of side Materials
boundary setbacks;
Scale
Colour and materials;
Massing
Table 2. KDCP 2013 – Key Areas of Non-Compliance and/or Inconsistency
Issues
Local Character and Urban Design
Chapter D1 - South West Rocks Town Centre of the KDCP 2013 describes the South West Rocks town
centre as having a “Seaside Village” character, with the elements making up this character being:
Casual relaxed lifestyle.
Natural coastal surrounds.
Low-key residential development - typically single storey cottages with some medium density
development.
Human scale commercial development.
Mix of commercial and tourist residential uses.
Ordinary Council Meeting - 16 February 2021 Page 17o Continuity of scale; and
o Continuity of building setbacks.
Historic built forms in the Heritage Café Precinct.
Streetscapes.
o Pedestrianised streets with wide paths;
o Car parking off-street as much as possible; and
o Vegetation in front and beside the buildings.
Parklands.
Natural foreshore areas.
The Applicant has argued in their Statement of Environmental Effects (Attachment T6-20-357
Statement of Environmental Effects) that the description of South West Rocks town centre as
having a “Seaside Village” character is “outdated and incorrect” (page 7 of the SEE). As such, the
Applicant argues that “it is unreasonable to apply this definition in determining existing character
and consequently in determining building height” (page 7 of the SEE). In essence, the Applicant is
arguing that they do not need to comply with the Chapter D1 South West Rocks Town Centre
planning controls.
This position is not supported. Not only does Chapter D1 of KDCP 2013 describe the character of
South West Rocks town centre as that of a village but so do other planning documents of Council,
including the Kempsey Local Strategic Planning Statement (LSPS). In fact, one of the place planning
priorities for South West Rocks in the LSPS is “maintain the coastal character of the Livingstone
Street village precinct”. The importance of retaining the character of South West Rocks to the
community was made clear during the community consultation process in the development of the
LSPS. Feedback received during this process identified that the community “will say no to
development that is inconsistent with the desired future character of South West Rocks, as expressed
in the planning controls.”
Council’s Strategic Planning team have also provided comments on these matters. Advice received
was that KDCP 2013 clearly reinforces Council’s view that the locality and surrounds of the proposed
development has significant characteristics (including an evident restricted building scale, seaside
village character, heritage values, proximity to open space and the coastline) which are to be
responded to through sensitive design and regulated scale (Attachment T6-20-357 Strategic
Planning Referral Response).
The Applicant has not carefully considered local character and good urban design principles in the
development of the development proposal. The proposal bears no reference to the context, form,
and massing of the surrounding building stock. As discussed under Chapter D1 of the KDCP 2013 in
Table 2 of this report, the building design does not sufficiently provide for activation of the street or
provide for an adequate private/public realm interface. The proposal is inconsistent with the
objectives for and the desired future character of the locality, as identified in Council’s planning
documents, and should not be supported.
Ordinary Council Meeting - 16 February 2021 Page 18Heritage Impacts The site is located within the South West Rocks Heritage Precinct identified in Chapter B13 (Heritage Areas / Development) of KDCP 2013. The site is also near a heritage listed item in Schedule 5 of the KLEP 2013, the Pacific Guest House (Item I75) located at 21-23 Livingstone Street. Chapter B13 identifies the town centre of South West Rocks as having heritage value. The statement of heritage significance of South West Rocks is provided below: South West Rocks is culturally significant because: i. It has historic significance as a record of early settlement of the Macleay Valley coastline and because of its association with Trial Bay and the Gaol; ii. It has aesthetic significance as an example of an Australian “town in a landscape” and retains intact streetscapes and individual buildings; iii. It has social significance for its roles as a centre for commerce and as a holiday destination; and iv. It has technical/scientific significance because of its association with the development as a river/sea port. The applicant has argued that they are not required to consider the heritage values of the two existing cottages on the site that date from the early 1900’s, nor the impacts of the proposed building on the heritage precinct and/or surrounding heritage items. Their argument is that site is not included in the State Heritage Inventory, Schedule 5 of the KLEP 2013 or the Chapter D1 (SWR Town Centre) mapping for Precinct P4 – Village Character & Heritage, so the matter of cultural heritage need not be considered. This argument is not supported. ABOVE: Figure D1-2: Map – Precincts of South West Rocks Town Centre Ordinary Council Meeting - 16 February 2021 Page 19
Precinct P4 - Village Character and Heritage responds to the significant role that a specific group of buildings play as a link to the original town centre. The provisions of Precinct P4 in the KDCP 2013 provide a special level of specific heritage protection for these particular buildings. The designation of Precinct P4 does not invalidate the heritage values of other heritage significant buildings or places in South West Rocks identified by Chapter B13 and/or Schedule 5 – Environmental Heritage of the KLEP 2013. In fact, there are many other sites and buildings identified as within a heritage precinct by Chapter B13 that are not included in Precinct P4, as evident by the map below. Any development on these other sites triggers a requirement to consider the impact of the development on the heritage values of the site and surrounds pursuant to Chapter B13 of the KDCP 2013 and Clause 5.10 of KLEP 2013. ABOVE: Figure B13-17: Map - South West Rocks Heritage Precinct The matter of this development application was referred to Council’s Heritage Advisor for comment who raised significant concerns with the proposed development and the absence of a heritage impact assessment (Attachment T6-20-357 Heritage Advisor Referral Response). His concluding comments are shown below: Ordinary Council Meeting - 16 February 2021 Page 20
There has been no assessment of the fabric of the existing buildings to justify their demolition. There has not been a proper assessment of the impacts of the proposed building on the heritage precinct and/or surrounding heritage items. The applicant has inadequately assessed the likely heritage impacts of the proposal as required by Clause 5.10 (5) of the KLEP 2013 and Chapter B13 of the KDCP 2013 and the development application should not be supported. Building Height The KLEP 2013 height of building standard for this site is 11m above natural surface, as provided in Clause 4.3. The maximum height of the proposed building is shown on the plans as being 17.36m above average natural ground level, excluding the lift overrun as the most recent section plans indicates that the current lift will be replaced by a machine room-less design. However, it is noted that this level is taken from a central point on the site and an average natural ground level of 9.17 metres AHD, so the total height of the building would be marginally higher from natural surface on the lower parts of the site. The proposed building height of 17.36m represents a variation of approximately 57.8% above the building height development standard. The applicant has requested variation to this standard under Clause 4.6 of KLEP 2013 (Attachment T6-20-357 Written Statement Clause 4.6 Height Variation). The approximate location of the 11-metre height limit is indicated as a red line on the following elevations: The objectives of the KLEP 2013 height of building standard (Clause 4.3) are: Ordinary Council Meeting - 16 February 2021 Page 21
1. to preserve the existing character in residential and business areas within Kempsey,
2. to nominate building heights that will provide a transition in built form and land use
intensity within the area covered by this Plan,
3. to protect the amenity of existing and future dwellings from adverse impacts on privacy,
solar access and on the urban streetscape.
The applicant’s request to vary the building height standard under Clause 4.6 of KLEP 2013
(Attachment T6-20-357 Written Statement Clause 4.6 Height Variation) contains several
arguments, including (but not limited to):
· The proposed variation preserves the existing character of South West Rocks; does not
adversely impact on the amenity of existing and future dwellings; or diminution of
streetscape quality.
· The 11m building height is unreasonable because, while there may be parts of Kempsey Shire
where a transition in building form and intensity is appropriate, it would be inappropriate
and impractical to attempt such an exercise in a local centre such as South West Rocks where
building form, height, massing, bulk and style varies from building to building.
· There are sufficient environmental planning grounds to justify the development because
historically, the SWR local centre has been subject to ad hoc development and
redevelopment.
· Incentive to invest in improving development is constrained by the 11m height rule.
As discussed in “Local Character & Urban Design” above and the assessment of the proposal under
the KLEP 2013 and the KDCP 2013, the proposal is not in keeping with the existing or desired
character of the area. Furthermore, the proposed building is clearly inconsistent with the height and
scale of buildings in the area, particularly when viewed in its streetscape context, as shown below.
As discussed in “Privacy”, “View Sharing”, and “Solar Access” elsewhere in this report, the proposal
will have significant impacts on surrounding properties, and in many cases the Applicant has not
sufficiently demonstrated the full extent of those impacts. Council does not agree with the
Applicant’s statements that the proposal will have no significant impacts on the amenity of existing
and future dwellings.
While the incentive to invest in the area is important for the community and is a vital component of
the strategic planning process, it is not a sufficient justification for the proposed height variation. As
such, it is recommended that Council does not support the variation request under Clause 4.6 of
KLEP 2013 to vary Clause 4.3 of KLEP 2013.
Ordinary Council Meeting - 16 February 2021 Page 22View Sharing
The proposed building has the potential to impact on views available from existing tourist
accommodation and residential developments in the area, especially those upslope properties
fronting Prince of Wales Ave and Paragon Ave with upper-level apartments containing north or east
facing windows and/or balconies. Many of these properties have access to foreshore and water
views over Trial Bay, including iconic views of the Heritage-listed Trial Bay Gaol. These are high value
views and must be carefully considered.
The principles for view sharing are provided in the Land & Environment Court case Tenacity v
Warringah. The Applicant’s planner states that the Applicants view sharing assessment (Attachment
T6-20-357 View sharing assessment) examined the impact of the proposal on a total of sixteen
buildings using the principles for view sharing and Part 5.9 Table C1-4 Hierarchy of Considerations
for Assessing Impact on Views from Adjoining Properties of Chapter C1 of the KDCP 2013. The
outcome of this assessment is discussed within Part 3 of the applicants Statement of Environmental
Effects (Attachment T6-20-357 Statement of Environmental Effects) with details of the assessment
findings for each assessed building shown in the Applicants view sharing assessment.
Although the detailed findings described in the Applicants view sharing assessment note that some
view loss will occur from the upper apartments of 12-14 Prince of Wales Avenue (20.5-degree loss of
the current north-easterly view), 25 Livingstone Street (‘oblique’ frontal view loss) and the upper
apartments at 2 Paragon Avenue (worst case scenario view loss of 46 degrees of the current north
easterly view), the SEE reports that the only significant impact would be on Unit 15 of 2 Paragon
Avenue. It is not clear how this conclusion was made as Appendix D provides detailed view
assessment documentation including the view arc and a photo montage of the proposed building
within the north-eastern view from the balcony (see image below) of Apartment 15 of 2 Paragon
Avenue “Jubilee Apartments” only. Without the benefit of such details for other potentially affected
properties described above in addition to all other upper-level units at “Jubilee Apartments”, it is
impossible for Council to ascertain whether the views currently enjoyed from these properties
would also be significantly impacted by the proposed development. Further, many properties along
Paragon Ave were not considered as part of the view sharing assessment at all.
Despite the admission of the applicant's planner that the only significant impact on views would
occur from Apartment 15 of the “Jubilee Apartments” within the Statement of Environmental
Effects, the applicant’s planner argues that “any impact on view sharing created by the proposed
building must be considered to be of a minor nature only”. The principal arguments used to support
this statement were:
The views of Trial Bay Gaol are not iconic as the gaol sits in the background of the view shed,
its detail is indistinct and its contribution to the landscape is limited;
Comment: This argument is not supported. The view of the Trial Bay Gaol itself as well as its
landscape setting from the South West Rocks Town Centre, Horseshoe Bay and Main Beach is
considered iconic despite the distance from the viewer.
Shop top housing in a built-up commercial area cannot have the same expectation of view
sharing as would be expected in a residential area;
Comment: “Shop top housing” is a form of “residential accommodation”. Residents of shop top
housing are just as entitled to views as residents of other forms of residential accommodation.
The view sharing requirements of Chapter C1 Part 5.9 do not apply as it relates to residential
development only.
Ordinary Council Meeting - 16 February 2021 Page 23Comment: The view sharing requirements of Chapter C1 Part 5.9 of the KDCP 2013 do apply to the
development pursuant to Section 1.1 (c) of Chapter C1 as the subject site adjoins residential
development.
The overall view loss from Apartment 15 of “Jubilee Apartments” is minor.
Comment: Council does not agree with the conclusion of this assessment.
Additionally, the applicant’s planner incorrectly assumes that all the affected properties are
commercial in nature and therefore are not entitled to consideration of view sharing impacts. He
states that “a person coming into the occupancy of a tourist and visitor accommodation cannot be
said to ‘lose views’ in the sense that a permanent resident might lose a view”. The assumption is
incorrect. Many of the said commercial units were in fact approved as residential accommodation,
with several of the submissions identifying those currently used as principal places of residence.
Council staff have reassessed the impact of the development on Apartment 15 of “Jubilee
Apartments” under the principles for view sharing as provided by the Tenacity v Warringah case as
they did not believe that the overall assessment of view loss from the balcony of this apartment as
‘minor’ could be correct. While the views obtained from Apartment 15 are across a side-rear
boundary, the proposal will significantly impact on high-value (water and iconic views) views from a
living space. Given the development significantly breaches the planning controls governing the
height of a building and the matters outlined previously, it is considered that the view loss caused by
the proposed development would be both severe and unreasonable.
From the limited information submitted by the Applicant, the full impact of the proposal on views
from all potentially affected properties is unable to be determined although there is sufficient
information to conclude that a severe and unreasonable view loss will occur from Apartment 15 of
the “Jubilee Apartments”. However, it is likely that the proposal may significantly affect valuable
views in several other locations.
Ordinary Council Meeting - 16 February 2021 Page 24Solar Access The applicant submitted shadow diagrams to support their application (Attachment T6-20-357 Shadow Diagram). The shadow diagrams show the shadowing effect of the proposed building at 9am, noon and 3pm at the winter solstice. The applicant acknowledges that the proposed development will create some overshadowing of adjacent properties, particularly the 2-storey dwelling at 1 Memorial Avenue, a photo of which (as provided by the applicant) is shown below. 1 Memorial Avenue is the 2-storey blue weatherboard dwelling in the middle of the photo. At 3pm the proposed building appears to overshadow north-facing windows, the roof and front garden of 1 Memorial Avenue. It also appears that the covered carparking area at the rear of the proposed building as well as the rear wall of the carpark structure will cause overshadowing of the property, including the rear annex and most of the rear private open space area as indicated by the shadow diagram prepared by the applicant (shown below). Ordinary Council Meeting - 16 February 2021 Page 25
However, the applicant argues in their statement of environmental effects (Attachment T6-20-357 Statement of Environmental Effects) that as the dwelling directly abuts the Point Briner building along its northern wall, its main living areas address the east and south and the dwelling is already overshadowed by the Point Briner building, the overshadowing effect of the proposed building would constitute only a very minor exacerbation of an existing situation and would not result in the reduction of available natural light within the building proper. On the basis of the shadow diagrams submitted, Council does not consider that the overshadowing of 1 Memorial Avenue is a minor exacerbation of the current situation. In fact, it is considered that the current solar access enjoyed by the residents of the property in winter afternoons obtainable from north and west facing windows and the rear garden is likely to be substantially reduced. Further, it is considered that the reduced solar access caused by the proposed development would adversely impact on the amenity of 1 Memorial Avenue and the liveability of this dwelling. Privacy The proposed development contains extensive balconies facing all directions, although the main outlook with the most balcony floorspace and external glazing is to the north of the site towards Trial Bay and Horseshoe Bay Reserve. All elevations of the building, except for the east and west facing walls of the lower levels contain windows to habitable rooms and living spaces including bedrooms, kitchens and dining rooms. The building design includes external privacy screens to part of the south facing rear balconies and bedroom windows, which partly screen the view to and from the private open space area of the adjoining property to the south and the north facing elevation of the “Dunbar units” holiday units at 5 Memorial Avenue. Ordinary Council Meeting - 16 February 2021 Page 26
The applicant argues in their statement of environmental effects (Attachment T6-20-357 Statement of Environmental Effects) that the combination of long interface distances between the external walls and balconies of the proposed building and nearby apartments and dwellings, the function of viewpoints and viewed areas and the use of the proposed building as tourist and visitor accommodation militates against any loss of privacy by occupants of adjacent buildings. It is acknowledged that the applicant has made some attempt to prevent direct overlooking of nearby properties from the rear balconies and to provide separation distances between the proposed building and existing developments. Despite this, overlooking of the east facing windows of 25 Livingstone Street “Travellers Palms” and some of the north facing windows and private open space area of the dwelling at 1 Memorial Avenue from the unscreened parts of the rear balconies and the west facing balconies, kitchen and dining room windows of Level 2 and above will occur, adversely impacting on the current levels of privacy enjoyed by the occupants of these buildings. Public Realm Interface and Crime Prevention through Environmental Design The proposal includes a ground-level commercial element. This commercial space is set-back from the street as a large, recessed, covered external area. This recessed area is also the only pathway to the front access door to the upper levels of the building. Roller-doors are expected to be present on the main shopfront, however the recessed area cannot be secured after hours as this would also prevent ingress/egress from this access door. The recessed entry and recessed area behind it present a safety issue. Creation of recessed spaces encourages loitering (especially after closing hours) and presents an ambush opportunity. One or more potential offenders are provided an excuse opportunity to loiter/hide in the recessed area. This creates an ambush opportunity for potential offenders to attack people leaving via the access door, without any ability to view the recessed area before they exit the building. Further, it also creates an entrapment opportunity, as the potential offenders can follow a person entering the building, and then carry out an attack in the enclosed and isolated hallway. In both scenarios, the attack can be carried out with limited threat of detection by the victim, nor any formal or informal guardians. Another key area of concern relates to the narrow corridor that connects the main entrance point with the foyer, lift and fire stairs. While the corridor is not as long as originally proposed, it still contains a 90 degree turn and unnecessary enclosed spaces (foyer) that can present ambush and entrapment opportunities within the building. This design represents an unacceptable risk to the safety of its users and cannot be supported. Traffic Impact and Pedestrian Safety The application submitted a Traffic and Parking study prepared by SCT Consulting to support the application (Attachment T6-20-357 Traffic and Parking Study). In their assessment of the traffic impact of the proposal the consultants concluded that “the proposed development would only be expected to generate an additional 18 vehicle trips per day on the surrounding road network, which is considered negligible given the existing traffic and will not impact current road network performance in any meaningful way”. The development application and the abovementioned study was referred to Council’s Development Engineer who raised no concerns about the likely traffic impact of the proposal on the local road network. However, both Council’s Development Engineers and several community members raised concerns about the proximity of the driveway as originally proposed along the eastern side boundary to the intersection of the service road with Livingstone Street and the pedestrian crossing point from the Ordinary Council Meeting - 16 February 2021 Page 27
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