NOTICE OF MEETING Notice is hereby given that a Planning Authority Committee meeting of the Devonport City Council will be held in the Council Chambers, on Monday 31 July 2017, commencing at 5:15pm. The meeting will be open to the public at 5:15pm. QUALIFIED PERSONS In accordance with Section 65 of the Local Government Act 1993, I confirm that the reports in this agenda contain advice, information and recommendations given by a person who has the qualifications or experience necessary to give such advice, information or recommendation.
Paul West GENERAL MANAGER 26 July 2017
AGENDA FOR A MEETING OF THE PLANNING AUTHORITY COMMITTEE OF DEVONPORT CITY COUNCIL HELD ON MONDAY 31 JULY 2017 AT THE COUNCIL CHAMBERS AT 5:15PM Item
Page No.
1.0
APOLOGIES ............................................................................................... 1
2.0
DECLARATIONS OF INTEREST ........................................................................ 1
3.0
DELEGATED APPROVALS ............................................................................. 2
3.1
Planning Applications approved under Delegated Authority 10 July 2017 - 20 July 2017 (D482874) ................................................................................................................................. 2
4.0
DEVELOPMENT REPORTS .............................................................................. 4
4.1
PA2017.0073 Two Lot Subdivision (House Excision) - 94 Cutts Road Don (D482908) ............ 4
5.0
CLOSURE ................................................................................................ 16
PAGE 1 Planning Authority Committee meeting Agenda 31 July 2017
Agenda of a meeting of the Devonport City Council’s Planning Authority Committee to be held at the Council Chambers, 17 Fenton Way, Devonport on Monday 31, July 2017 commencing at 5:15pm. PRESENT Present Chairman
Ald S L Martin (Mayor) Ald C D Emmerton Ald G F Goodwin Ald J F Matthews Ald T M Milne Ald L M Perry
Apology ✓
IN ATTENDANCE All persons in attendance are advised that it is Council policy to record Council Meetings, in accordance with Council’s Audio Recording Policy. The audio recording of this meeting will be made available to the public on Council’s website for a minimum period of six months.
1.0 APOLOGIES The following apology was received for the meeting. Ald C D Emmerton
Apology
2.0 DECLARATIONS OF INTEREST
PAGE 2 Report to Planning Authority Committee meeting on 31 July 2017
3.0
DELEGATED APPROVALS
3.1
PLANNING APPLICATIONS APPROVED AUTHORITY 10 JULY 2017 - 20 JULY 2017
UNDER
DELEGATED
ATTACHMENTS ⇩ 1.
Delegated Planning Approvals - 10 July 2017 - 20 July 2017
RECOMMENDATION That the list of delegated approvals be received.
Author: Position:
Jennifer Broomhall Planning Administration Officer
Endorsed By: Position:
ITEM 3.1
Brian May Development Manager
PAGE 3 Delegated Planning Approvals - 10 July 2017 - 20 July 2017
ATTACHMENT [1]
Planning Applications Approved Under Delegated Authority – 10 July 2017 - 20 July 2017 Application No. PA2017.0054
Location
Description
101 Oldaker Street Devonport
PA2017.0055
35 Dana Drive Devonport
Multi-tenancy retail development Residential (multiple dwellings x 5 to be used for the purposes of supported accommodation for disabled persons) – assessment against the performance criteria for provisions including 10.4.1, 10.4.2, 10.4.3 and Traffic Generating Use and Parking Code (lesser than permitted number of parking spaces)
PA2017.0067
9 Douglas Street East Devonport
Residential (garage) - assessment under clause 9.1
17/07/2017
PA2017.0071
383 Melrose Road Eugenana
New residential use and development (shed and building envelope for single dwelling) in the Rural Resource Zone
19/07/2017
PA2017.0072
22 Thomas Street East Devonport
Demolition (existing buildings)
13/07/2017
PA2017.0074
1 Dana Drive Devonport
PA2017.0079
18 Devonport Road Quoiba
PA2017.0080
82 Oldaker Street Devonport
PA2017.0081
31 Swilkin Drive Spreyton
PA2017.0084
116-118 North Street Devonport
Residential (shed) - assessment against performance criteria for setbacks and building envelope Residential (garage) - assessment against performance criteria for setback and building envelope Ancillary dwelling- no planning permit required Business and professional services – alterations and additions to existing office building Residential (shed) – assessment against performance criteria for setbacks and building envelope Residential (single dwelling) – assessment against the performance criteria for building outside of the permitted building envelope
ITEM 3.1
Approval Date 14/07/2017
17/07/2017
18/07/2017 18/07/2017 14/07/2017 17/07/2017 17/07/2017
PAGE 4 Report to Planning Authority Committee meeting on 31 July 2017
4.0
DEVELOPMENT REPORTS
4.1
PA2017.0073 TWO LOT SUBDIVISION (HOUSE EXCISION) - 94 CUTTS ROAD DON File: 33948 D482908
RELEVANCE TO COUNCIL’S PLANS & POLICIES Council’s Strategic Plan 2009-2030: Strategy 2.1.1
Apply and review the Devonport Interim Planning Scheme as required, to ensure it delivers local community character and appropriate land use Strategy 2.1.2 Provide high quality, consistent and responsive development assessment and compliance processes
SUMMARY The purpose of this report is to enable Council’s Planning Authority Committee to make a decision regarding planning application PA2017.0073.
BACKGROUND Planning Instrument: Applicant: Owner: Proposal: Existing Use: Zoning: Decision Due:
Devonport Interim Planning Scheme 2013 Lester Franks Mr SA Hernyk & Mr S Algeri Two Lot Subdivision (House Excision) Agricultural and Residential Rural Resource 12/08/2017
SITE DESCRIPTION The 31.2ha site is situated in an elevated and readily visible location at Don. The property adjoins Bass Highway to the west, Cutts Road to the south and Lodder Road along the eastern boundary. It is well established farmland. The site known as Hawthorns is located within a local heritage conservation area. Figure 1 below provides an aerial overview of the site outlined in red.
ITEM 4.1
PAGE 5 Report to Planning Authority Committee meeting on 31 July 2017
Figure 1 – Aerial view. Photo source DCC Geocortex December 2015
APPLICATION DETAILS The proposal submitted to the Planning Authority for consideration is to subdivide the existing house from the property onto a 4,992m2 site. Figure 2 is an excerpt of the plan submitted by the applicant which focusses on the proposed excised house site.
Figure 2 – Subdivision Proposal Plan – Lester Franks, Drawing D15114 dated 22/05/17
ITEM 4.1
PAGE 6 Report to Planning Authority Committee meeting on 31 July 2017
PLANNING ISSUES The land is zoned Rural Resource under the Devonport Interim Planning Scheme 2013 (the DIPS). Clause 26 of the DIPS includes the Zone Standards that must be considered for any proposed use and development within this zone. Subdivision is defined as development and the relevant Development Standards are 26.4.1 – Suitability of a site or lot on a plan of subdivision for use or development and 26.4.4 – Subdivision. Both Standards include a similar objective of ensuring the creation of lots is consistent with the purpose of the zone which allows for sustainable use or development of resources for agriculture et al, as well as providing for other use and development that does not constrain or conflict with rural resource use. In this regard 26.4.1 has an Acceptable Solution (AS) of lots being not less than 1 ha in size and if intended for a building to include an appropriate building area clear of the boundaries and any rights of way and easements. This building area requirement is a common principle applying to most zones. In this proposal the AS cannot be met for Lot 1 because the proposed lot is 4,992m 2 in area. As a consequence, the Performance Criteria (PC) need to be satisfied and although they are framed around the intended use or development for an undeveloped lot rather than what exists it seems appropriate to consider the matters that are identified. These criteria primarily require the lot to be of sufficient size for the intended use or development without likely interference for the building, its access, use or development on adjoining land. In general terms a compliant lot size as prescribed by the AS provides more potential separation between a building envelope and the adjoining rural resource land to mitigate any fettering issues. However, in this instance creating a larger lot to comply would allow conversion of land from rural resource to an extension of the existing residential activity on the smaller lot. The previous commentary regarding the lot being of suitable size for the ‘intended use and development’ begins to make sense if the proposed lot were undeveloped. However, in this instance the existing land uses are not being changed but they will exist on separate titles. The remaining development standards include the usual infrastructure requirements common to all zones. The AS for these are satisfied. The more specific development standards for subdivision are identified in Clause 26.4.4 of the DIPS. The Acceptable Solution provides opportunity for a permitted pathway for subdivision of land if the lot is required for public use by the State Government, a Council or other Statutory Authority. These occupations are the exceptions to the rule as the interim planning schemes were intentionally and originally structured to ensure that all subdivision of land in any zone was required to follow a discretionary permit pathway by satisfying the relevant Performance Criteria (PC) to be satisfied. The permitted pathway was achieved by a recent amendment to the Interim Planning Schemes. Clause 26.4.4 P1 provides three PC options in the assessment of a plan of each new lot on a plan of subdivision. The applicant has submitted that the option under 26.4.4 P1(b) can demonstrate that the proposal has merit. This development standard states that a plan of subdivision to create a new lot must (i)
be required for a purpose permissible in the zone.
ITEM 4.1
PAGE 7 Report to Planning Authority Committee meeting on 31 July 2017
Planners comments: Residential is a permissible use in the zone. Although any application to do so is subject to a planning permit application the PC is satisfied because Residential is not a prohibited use. (ii)
be of a size and configuration that is not more than is required to accommodate the nominated use in accordance with the applicable standards of this planning scheme.
Planners comments: The proposed 4,992m2 lot containing the existing house has been configured to ensure that the minimum area of land is required to ensure that the adjoining arable land is not reduced in effective area. The PC is deemed to be satisfied. (iii)
retain the balance area for primary industry use
Planners comments: the use of the balance area for agricultural purposes is remaining unchanged. The PC is deemed to be satisfied. (iv)
minimise unnecessary and permanent loss of rural resource land for existing and potential primary industry use.
Planners comments: None of the rural resource land that exists on the site is being reduced in area. The minimum area proposed for the house and curtilage reflects what exists at present. An exception may be if the proposed smaller lot contained a building of minimal capital worth or having no heritage significance. If so the merits of demolition and reversion to its previous agricultural use may have some merit versus the creation of a separate lot for the existing house. Due to the subdivision allowing for ownership other than the farmer it could be reasonably predicted that the heritage values will not be lost. The PC are deemed to be satisfied. Figure 3 below is a compilation of both Figure 1 and Figure 2 which illustrates that the land to be divided isn’t contributing to any further fragmentation of land used for primary industry.
Figure 3 – Compilation of proposal plan and aerial overview. Photo source DCC Geocortex December 2015
ITEM 4.1
PAGE 8 Report to Planning Authority Committee meeting on 31 July 2017
(v)
minimise unnecessary and permanent loss of land within a proclaimed irrigation district under Part 9 Water Management Act 1999 or land that may benefit from the application of broad-scale irrigation development.
Planners comments. The land is not within a Water District. Therefore the PC is deemed to be satisfied. The land is also within the Don/Lillico Straight Conservation Area as prescribed in Code E5 (Local Heritage Code) of the DIPS. The Davies Architects Devonport & Environs Heritage Study 2001 identifies ‘Hawthorns’ as a superb example of a Victorian farm comprising a fine Victorian Homestead set in a picturesque and established garden. The homestead is a well detailed timber Victorian residence with a verandah that wraps around three sides. It is also indicated that the house is set in established gardens with dominant plantings of macracarpa trees along the boundaries. This house was specifically identified as a local heritage item in the 1984 Devonport and Environs Planning Scheme. However, the structure of the Devonport Interim Planning Scheme 2013 (DIPS) did not allow previously identified items to be duplicated and individually listed if they were also located within a local heritage conservation area. In this regard the site is within the Don/Lillico Straight Conservation Area marked as Area 11 on the DIPS maps. It seems prudent to be mindful that the house itself has identified heritage values. The Local Heritage Code prescribes subdivision standards for specific properties or others within the mapped heritage conservation areas. The PC for subdivision indicates that a plan of subdivision must not separate buildings or works from their original context of land area having regard for (i)
the historic pattern of the development for the place or area;
(ii)
the physical and cultural setting; and
(iii)
the setting forming part of the attributes or features of value for the building area or other place.
Planners comments: The commentary acknowledges the presence of the property previously listed in the 1984 planning scheme and known as ‘Hawthorns’. The 2001 Davies Report also commented on the established garden and treeline along the ‘boundary’ which in effect is the boundary of the curtilage quite clearly depicted in Figure 3. These features demonstrate that the proposal can be deemed to satisfy the PC because the excision preserves the built heritage form and the established gardens.
COMMUNITY ENGAGEMENT On 07/06/2017, Council received an application for the above development. Under Section 57(3) of the Land Use Planning and Approvals Act 1993, the Planning Authority must give notice of an application for a permit. As prescribed at Section 9(1) of the Land Use Planning and Approvals Regulations 2014, the Planning Authority fulfilled this notification requirement by: (a)
Advertising the application in The Advocate newspaper on 10/06/2017;
(b)
Making a copy of the proposal available in Council Offices from the 10/06/2017;
(c)
Notifying adjoining property owners by mail on 08/06/2017; and
(d)
Erecting a Site Notice for display from the 09/06/2017.
The period for representations to be received by Council closed on 27/06/2017.
ITEM 4.1
PAGE 9 Report to Planning Authority Committee meeting on 31 July 2017
REPRESENTATIONS One representation was received within the prescribed 14 day public scrutiny period required by the Land Use Planning and Approvals Act 1993. This is attached to the report.
DISCUSSION The representation includes ten reasons why the subdivision should not be approved. These can be read in full in the attached copy. A precis of each with related planning comments is submitted below for consideration. (1)
The subdivision is not sustainable and is against the intent of the zone due to the proposed residential use.
Planners comments: The primary purpose of the subdivision is to create a separate title for the existing house on the site. It is submitted that the zone purpose does provide for other use or development but in this instance the agricultural and residential uses exist. The creation of a separate title formally separates the tenure and that development not the use is the primary consideration with the subdivision. (2)
The subdivision does not meet the subdivision objective.
Planners comments: The Rural resource zone purpose does allow for uses other than agriculture as evident by the non-agricultural activities permissible in the Use Table of the Rural resource zone. Also, the Use and Development Standards of the zones and codes allow a further level of assessment measures. It is quite likely that the existing house is not associated with the agricultural use but this is not the issue to consider unless a new residential development was proposed on a rural resource zoned block. If so both the use and development standards would apply. (3)
The subdivision has the potential to create conflicts between residential and agricultural use.
Planners comments: The matters highlighted in the representation are acknowledged and there is evidence in the community that such conflicts exist and it is a difficult balance to achieve on the boundary between the urban and rural fringe. If such conflicts are evident in this locality the subdivision of land isn’t going to alleviate the concerns. Any existing conflicts would be known and accepted. The subdivision proposed does not alleviate or intensify any such events that may already exist. (4)
The subdivision does not satisfy the Performance Criteria for Residential use in Clause 26.3.3 P1 as the potential for further residential development is still permissible in the zone.
Planners comments: This clause only applies if residential use or development is proposed, by either a new house or additions or alterations to an existing house. However, the assertion made in the representation as to potential residential development on the farm title is correct in that Residential use or development is not prohibited. There is no DIPS provision to restrict an application being made, however, satisfying the use and development standards would be unlikely in this location. Essentially any future residential use or development on the balance lot would need to demonstrate that a house is fundamentally required to locate on the site due to the primary industry occurring there. The ability to place a Part 5 Agreement on the Title to restrict further residential development is not without merit and this mechanism is referenced in the State Planning Scheme provisions. The use of such an Agreement now is a reinforcement option to consider. (5)
The application does not satisfy the listed PC in clause 26.4.4. ITEM 4.1
PAGE 10 Report to Planning Authority Committee meeting on 31 July 2017
Planners comments: The PC of 26.4.4 provide three alternative options. In this application, the applicant is relying upon P1(b) to achieve compliance. (6)
The application is for residential use which is not consistent with the zone purpose and objective.
Planners comments: It is acknowledged that the proposed house lot will not have a relationship to the agricultural use on the adjoining arable land. However, from a planning scheme perspective the subdivision is not defined as a ‘use’. The merits of a new residential development or alterations and additions to existing have been discussed previously. (7)
It is contended that a house could be justified by the new owners of the balance agricultural lot.
Planners comments: Although residential use or development has a permissible pathway it would have to be demonstrated as a virtual need and not a want. The comments to point 4 and the ability to place a Part 5 Agreement on the Title would negate this likelihood. (8)
This matter is similar to Point 7 regarding the inappropriate use on prime agricultural land within the balance lot and is supplemented by the subdivision provisions of the Local Heritage Code (E5).
Planners comments: Similar comments apply regarding the ability to require a Part 5 Agreement as part of any permit conditions. (9)
The application will change the physical and cultural setting of the heritage conservation area and allow incremental change to the rural landscape due to its prominent location.
Planners comments: This is another important matter for consideration. If the capital value of a house was insignificant and no heritage values existed then the merits of a subdivision to excise a house would be questionable under the zone and code provisions at the location. It could be argued in principle at least that dilapidated houses on small rural holdings should be demolished and the land reverted and adhered to adjoining agricultural land to defragment the rural areas. However, if it is recognised that a house can better maintain local heritage significance then a subdivision to separate the tenure and allow new ownership should be supported which as a consequence allows the residential use to continue and the values to be maintained as required. (Unfortunately, there is no legal obligation for a new owner to effectively maintain the house and gardens as would be expected). In the unlikely event that the strategic position of the owner is to allow the house to deteriorate beyond repair any support for a permit to demolish the heritage building and replace it with a purpose built contemporary residence cannot be guaranteed in this location. The existing house and gardens have been viewed and the physical condition of each is considered to be above average and it would seem unlikely that any intent by the owner to deflate the capital value to a level justifying new development would occur in the short term. As a consequence it is submitted that the subdivision of land for one additional lot does not impact on the conservation of the heritage house and may actually enhance its cultural worth in the conservation area. The overall conservation and enhancement of environmental places is a broader strategic matter not able to be considered with this application.
ITEM 4.1
PAGE 11 Report to Planning Authority Committee meeting on 31 July 2017
(10) The application contravenes Clause 26.3.3 in that Residential use does not comply with the Performance Criteria which states ‘be on a site – that has been assessed by a land capability assessment to have no potential for primary industry use’. Planners comments: The reference to the PC is acknowledged however this PC was modified by an Urgent Amendment to the regional interim planning schemes in September 2016. The current provision is reproduced in its entirety as Figure 4. It is noted that a land capability assessment to determine primary industry potential is no longer required.
Figure 4 – Performance Criteria P1 from Clause 26.3.3, Devonport Interim Planning Scheme 2013
FINANCIAL IMPLICATIONS No financial implications are predicted unless an Appeal is lodged to the decision and unquantified expenses for legal counsel are required.
RISK IMPLICATIONS No risks are anticipated as a result of misinformation or proven negligence in the undertaking of this planning permit assessment.
CONCLUSION This subdivision was identified as a discretionary planning permit which includes a process inviting community input. The representation has clearly raised the pertinent matters that should be questioned with all rural subdivision applications. This application assessment has considered those matters and provided a response to each point of concern for the Planning Authority to consider in their deliberation. The decision rests on two important issues. Firstly, are there adequate measures available to ensure that the current identified prime agricultural land is protected from conversion to non-agricultural use or development, and secondly, is the heritage significance of the
ITEM 4.1
PAGE 12 Report to Planning Authority Committee meeting on 31 July 2017
residence historically known as ‘Hawthorns’ likely to be compromised or enhanced by being located on a relatively smaller parcel of land? Whether the house is owned and occupied by the adjoining farmer or somebody preferring a rural lifestyle is not the principle issue. The existing residential and the agricultural activities are not being altered by this proposed subdivision. There is in effect only a change of tenure proposed with no anticipated change to the physically built or agricultural environment. Finally, the application of a Part 5 Agreement under Section 71 of the Land Use Planning and Approvals Act 1993 has considerable merit in restricting any residential use or development on the prime agricultural land.
ATTACHMENTS ⇩ 1.
Representation - PA2017.0073 - 94 Cutts Road Don
RECOMMENDATION
That the Planning Authority, pursuant to the provisions of the Devonport Interim Planning Scheme 2013 and Section 57 of the Land Use Planning and Approvals Act 1993, approve application PA2017.0073 and grant a Permit to subdivide land identified as 94 Cutts Road, Don for the following purposes: •
Two lot subdivision (house excision)
Subject to the following conditions: 1.
The subdivision is to be configured substantially in accordance with the submitted plan referenced as Drawing No D15114 dated 22/05/17 by Lester Franks a copy of which is attached and endorsed as a document forming part of this Planning Permit.
2.
Prior to or at the time of sealing the Final Plan the subdivider is to submit a Part 5 Agreement under Section 71 of the Land Use Planning & Approvals Act 1993 to exist between Council and the owner of the balance lot. The scope of the Agreement is to: (a)
prohibit any form of Residential use or development that otherwise may have a permit pathway on the balance lot under the planning instrument in place, and
(b)
Afford protection for the existing row of macracarpa species along Cutts Road in that removal is not to be considered unless justification to do so is submitted that indicates that heritage values can no longer be substantiated or otherwise due for reasons of safety. Any such consideration should be accompanied by the advice of a heritage consultant and arborist respectively.
Author: Position:
Shane Warren Planning & Environmental Coordinator
Health
Endorsed By: Position:
ITEM 4.1
Brian May Development Manager
PAGE 13 Representation - PA2017.0073 - 94 Cutts Road Don
ATTACHMENT [1]
ITEM 4.1
PAGE 14 Representation - PA2017.0073 - 94 Cutts Road Don
ATTACHMENT [1]
ITEM 4.1
PAGE 15 Representation - PA2017.0073 - 94 Cutts Road Don
ATTACHMENT [1]
ITEM 4.1
PAGE 16 Planning Authority Committee meeting Agenda 31 July 2017
5.0
CLOSURE
There being no further business the Chairman declared the meeting closed at
pm.