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Byron Shire
September 20, 2021

Staged rollout change for large OS DA

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Bian Court, Ocean Shores. Image Google maps

Plans by a developer to change the staged rollout for a large Ocean Shores subdivision, and nine dwellings on 11 and 13 Warrambool Rd and 9 Bian Crt, Ocean Shores, are now on exhibition on Council’s website. 

In February 2021, Callum Sked won in the L&E Court against Council to proceed with his DA 10.2018.552.1, despite universal objections from the entire neighbourhood and questions around stormwater management, environmental destruction, and loss of amenity. 

The DA was also mired by poor Council process. 

The case highlighted the lack of Council planning policies to protect residents from inappropriate developments, and how secret deals made between Council appointed lawyers and developers do not reflect community expectation around development.

Greens mayoral candidate, Duncan Dey, says he’ll be lodging an objection to the proposal, and that the ‘Staging arrangements are not clear, as approved or under the proposed changes’.

He says, ‘Fundamental is that infrastructure required for a development must precede the lucrative part of the development’.

‘On this project, no dwellings should be built or sold off the plan before the stormwater works are complete. A new bunfight might later remove the requirement to do the stormwater works at all. They must be done first, so they can’t be avoided.  

‘Changes to municipal infrastructure under the current approval include shifting and lengthening the trunk stormwater line and flood mitigation works on Akira Way’.

Neighbour Paul Wilsher told The Echo he shared Mr Dey’s concerns, and added the developer wants words of latitude like ‘generally’ in the staging and proposes the certifier make further amendments.

Mr Wilsher provided The Echo with his objection:

I object to the S4.55 application to modify the development of DA 10.2018.552 on the following grounds:

‘The original development was determined by the Land and Environment Court on the 11th February 2021.

‘Condition 2 of the consent outlined the four stages of the development and the order that they must be undertaken in. 

‘At the bottom of condition 2 it states:

“Each stage must be undertaken in the above order.”

‘The modification put forward by the applicant proposes 5 stages (numbered stage 1, stage 1A, stage 2, stage 3, and stage 4.

‘The new staging raises some concerns which I will discuss below but most alarming is that the proposed wording for the amendment to condition 2 being sought by the applicant reads;

“Each stage must be undertaken generally in the order above or in an alternative order subject to the satisfaction of the PCA (either construction or strata based)”

‘If this wording was to be adopted in the consent, it would override the courts approval and enable the applicant to carry out the work in any order he wishes as long as his PCA allows it. The staging set-out by the court was done so for reasons, and leaving the development’s staging up to the developer could result in all the buildings being constructed without the proper infrastructure being put in place or upgrading of the stormwater system being carried out.

‘If the development was sold or unfinished, all of the issues raised during the court case in terms of stormwater and slippage would be left unaddressed.

‘The original consent required the road and stormwater system in Arika Avenue to be upgraded during stage 2 – when the first two dwellings are constructed.

The proposed modification puts this back until stage 3 which is actually the fourth stage in the proposed modified stages.

‘As a result, 5 dwellings would already have been built before this work may be done.

‘The proposed modification also seeks to amend conditions 19, 20 and 21 of the consent.

‘These conditions reaffirm the staging setout in Condition 2 by requiring certain things to be completed before a construction certificate can be issued for the subsequent stages

‘The proposed amended wording for these three conditions does a similar thing but adds the following additional sentence:

“NB. Each stage must be undertaken generally in the order above or in an alternative order subject to the prior agreement of the PCA (either construction or strata based).”

‘As with the wording being proposed for condition 2, if this new wording was adopted for these three conditions, the developer would be able to ignore the courts original conditions and be granted construction certificates for the work in any order… once again leaving the possibility that necessary infrastructure work not being done when it should be’.

Mr Dey also supplied his objection letter to Council:

‘Dear GM,

‘Condition 2 defines “Staging” and the changes are hard to discern. The word stormwater appears five times in Condition 2 as approved and four times in the proposed wording. There is obscurity around what gets done when, even under the current consent. The current application to modify is an opportunity for Council to impose clarity on Staging.

‘As a flood hydrologist and designer of stormwater systems, I remain concerned as I have expressed in previous submissions that this proposal breaks fundamental principles. To crowd housing onto one property, it lengthens and adds corners into the trunk stormwater line in the base of the valley. This puts a higher ratio of any storm flow into overland flow.

‘The overland flow is then confined to a human-made channel and culverts. Such culverts must also have an overland flow path, as a contingency for their blockage. No such overflow path is provided.

‘In relation to the changes proposed to Staging, I submit that changes to infrastructure such as this stormwater line that serves the wider community must be in place before the benefits of the development can be realised. This means early in the project. If the modification makes such works later in the project then it should be rejected. Such works include shifting the trunk stormwater line and other works on Akira Way, as required by Consent Conditions 31, 32 and 58.

‘If it is approved, the modification should clarify that the works proposed under Consent Conditions 31 and 32 do not have their staging changed.

‘Loose wording such as “generally” and “alternative order …” should also be removed:

‘Each stage must be undertaken generally in the order above or in an alternative order subject to the satisfaction of the PCA (either construction or strata based)’.


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