Locals are increasingly finding themselves facing large inappropriate development applications (DAs) that dramatically impact on amenity and diminish biodiversity.
Arguably this has already occurred in many areas – real estate values have skyrocketed in recent years and there is not much available to rent or buy unless you are fairly wealthy.
The potential impacts of inappropriate development on residents can be – and are – considerable, so fairness and a clear framework from Council and the state government should be paramount, right?
The Echo’s May 2 editorial (pasted below) outlined how the DA process works and how it largely favours developers.
It also warned of what residents should expect when lumped with a large inappropriate development in their neighbourhood. Without planning knowledge, residents face the daunting task of comprehending large complex documents and even paying experts to assist in their basic defence of a reasonable and acceptable compromise. So what policy improvements by councillors can be made around the process leading up to the approval of developments?
The Echo asked Council’s chief planner, Shannon Burt, about ways to possibly provide more equity between residents and developers.
Q: Can councillors amend the DCP/LEP to require all developments over a certain cost (say $2m) have all DA details completed before submission? There are instances in DAs where “Other approvals from council” including road, plumbing, water supply, stormwater etc are to be supplied later. Where crucial elements to large DAs are to be submitted later, it appears to give uncertainty to Council, the developers and affected neighbours.
A: Schedule 1 of the Environmental Planning and Assessment Regulations 2000 provides what is to be included in a DA. Council cannot mandate over and above the Regulations; the DCP as such provides for further clarity in this regard.
Applicants are also able to make Section 68 applications under the Local Government Act 1993 independently of a development application – this includes roads, plumbing, water supply and stormwater approval. Conditions on any development consent granted would apply where relevant and necessary.
Q: Can councillors amend the DCP/LEP to require all developments over a certain cost (say $2m) be ‘flight checked’ by staff before going on exhibition? What is the general process when a DA is submitted – ie how fast is it put on public exhibition?
A: Once a development application is lodged and checked for completeness against the submission requirements above, notification is arranged. At this time generally speaking, neither a site visit nor preliminary assessment of the development application has occurred by the planner allocated the development application, this would follow. Staff have up until 25 days after lodgement to request additional information on a development application. This request invokes the stop-the-clock provisions.
This is accepted development assessment procedure.
Q: Can councillors amend the DCP/LEP to require more than just immediate neighbours be notified by mail for developments over a certain cost (say $2m)? For example, a larger area of mail notification might be more appropriate given the impact on traffic, amenity and ecology etc.
A: Provisions in the DCP [A14.5] already provide for this to occur. [This is at] Staff/manager discretion. Note also that certain types of development have notification requirements set in the Act and Regulations – eg designated development, integrated development.
Q: Can councillors amend the DCP/LEP to require developments over a certain cost (say $2m) be placed on public exhibition for longer than just two weeks?
A: As above, provisions in the DCP already provide for this to occur. [This is at] Staff/Manager discretion. [There was a] recent report of council and a resolution on community participation plans and review of DCP provisions: https://bit.ly/2MFv2cI.
Q: Can councillors amend the DCP/LEP to require developments over a certain cost (say $2m) that change/add to their developments after public exhibition closes be required to re-exhibit for public submissions again? Presumably there is a trigger for a resubmission of DA when significant details have been changed. What is that trigger?
A: [This is] Staff/manager discretion. The trigger generally is: is the development substantially changed from the first exhibition and/or is information critical to the understanding of the development application now provided.
Q: If a large DA suggests, for example, that its construction would be in operation six days per week, 12 hours per day over a 3-year period, can councillors limit timeframes of such developments? Is there a timeframe or management policy for large developments or is it case by case?
A: Standard conditions of consent for hours of construction and amenity are generally applied to development applications. These, however, can be varied on a case-by-case basis depending on the locality and site circumstances.
Q: Are Council staff keeping a track of how many consolidation lot developments have already occurred and is there any info available on that? How many have occurred in both residential and rural areas?
A: No. Information is not available. Consolidation of land normally occurs to ensure that minimum lot size requirements under the LEP for development are met. There are a number of clauses and a map in the LEP that mandate a minimum lot size.
Echo editorial, May 2, 2018
This may not be applicable to you now, but given the massive increase in real estate value and developer interest in this region, here’s some helpful info to consider should you be facing a large-scale inappropriate development application (DA) in your neighbourhood.
It could be a proposal that massively increases the density of dwellings on your street, or could be a proposal that aims to attract visitors to an event site.
A DA lodged that is valued at over $20m will be decided by the Joint Regional Planning Panel, but mostly Council are the determining authority.
Council’s only obligation is to advise immediate neighbours of any DA submission, and advertise it with a few lines in a newspaper.
Currently, The Byron News (Murdoch’s NewsCorp) carries Council notices for DAs.
If those immediately affected neighbours are absent or aren’t bothered, the DA proposal moves quickly. Two weeks’ public notice is the standard timeframe, unless you make an extension request in writing to staff.
Four weeks in total appears standard to write your submission, and when you consider that the developer has paid experts who have prepared theirs over months in secret, it does appear unfair and inequitable.
Everyone in the surrounding area needs to be letterbox dropped with the DA info and signatures and contacts collated. Call a meeting, draft and share submissions, ask who knows a town planner and associated experts such as engineers. Lobby councillors.
Lodging large, inappropriate DAs with Council also does not adequately meet community expectations, especially for the not- so-computer savvy elderly.
These DAs are often unnecessarily long, and as a PDF, some are unsearchable. It’s not uncommon to be faced with a bundled file size so large it is almost impossible to download from the internet.
Additionally, DA applicants are able to add further reports and information after the public submission process, but that is often as a response to issues raised in submissions or by councillors at the Planning Review Committee.
That committee is another check and balance in this process before the crucial councillor vote.
Those unfamiliar with reports such as geotechnical, statements of environmental effects, civil engineering and ecology reports, erosion and sediment control plans and stormwater management plans will feel overwhelmed. That’s why finding help immediately is so important.
This all appears unfair to non-planning expert residents and it is – NSW planning laws largely favour development at all cost, because growth is the main metric applied to measure wealth creation.
Generally from a developer’s point of view, the only framework they apply is what Council will seriously consider. But that doesn’t stop them from lobbing a proposal that appears way over-scale and out of character with the surrounding area.
There is no requirement to engage with residents prior. The ‘shock and awe’ approach is intended to grab as much as possible, but the strategy is to then reduce the DA’s size to what will still make a profitable project.
Residents opposing unwanted development can argue the need for neighbourhood character considerations under section 79c of the NSW Environmental Planning and Assessment Act 1979.
Council’s Local Environment Plan (LEP), Development Control Plans (DCPs) and settlement, residential, rural and heritage strategies all outline how communities want their neighbourhoods to be.
And these ‘instruments’ all count if it lands in court.
Surprisingly, a judge can favour residents if a council did not provide a clear intent/strategy for the area. Presently, Council is still preparing a residential strategy and are awaiting state approval for their revised rural strategy. For more info visit www.byron.nsw.gov.au.
As Tex Perkins crooned, ‘Better get a lawyer, son.’
You could add a town planner and an engineer and a hydrologist…
Hans Lovejoy, editor