Council's planners fail to appreciate the intent of their own Development Control Plan

Considering building a house on a rural residential lot in Eurobodalla? Any enquiry to Council will point you towards their Eurobodalla Rural, R5 Large Lot Residential and E4 Environmental Living Zones Development Control Plan that tells you what you should consider. The interesting stop point here is the word SHOULD and not MUST. Council says "Development Control Plans (DCPs) are documents that provide planning and building design guidelines for new development or alterations to existing development. They are used by applicants as a guide to determine what type of development is applicable in the locality and Council staff use these guidelines to determine the merits of the proposal.

DCPs are adopted by Council and describe the controls that development should meet such as building styles, materials used and appropriate locations for development." To you and I the DCP is a document that the community agreed on of how they wanted rural development in the region to look. As a resident it offered lists of considerations that should be considered by a new home project. This gave assurity that the guidelines would be met, or at the least, considered if a variation was required. The assumption being that any variation away from the guidelines would require further discussion with neighbours and, based on the extent of the variation, with councillors as well. It appears that that is just a foolish assumption and the fact is that Council have unapologetically allowed a rural residence and shed to be built that falls well outside of the guidelines, impacts neighbours and makes a mockery of what is little more than a toothless document that Council has waved at many a developer insinuating the DCP needs to be followed yet, through ether laziness, indifference, ineptitude or other the Council has been found to have failed the community and, given half the chance, will continue to do so unless they are questioned by Councillors. The resultant might be to declare the DCP nothing more than a glossy brochure that has no legal bind or, apologise to those who had faith in it as being more than a toothless "guideline" and actually alter the word Should to Must.

Since the presentation to Council on Tuesday July 19th 2022 raising the issue of DCP "failures" in approving a development that did not meet the intent of the DCP there have been questions aimed at Council. "Will they apologise?" "Will Council pay for a fix?" "Has this set a precent that devalues the DCP intent and renders it little more than BlahBlah?" The issue brought to Council needs to have some answers given. As yet there haven't been however Councillor Amber Schutz has written to one enquiring ratepayer saying: The DCP forms part of a range of documents, including the National Construction Code, SEPP’s and LEP’s that control development.

Within all DCP’s there are two columns, Performance Criteria and Acceptable Solutions. The Performance Criteria set out the objectives that need to be met for the development to be considered and the Acceptable Solutions provide guidance on what Council believes meets these criteria.

Applicants can either comply with the acceptable solutions or address the performance criteria with their own solutions. The applicant must demonstrate that their alternative solution complies with the performance criteria. This allows for flexible and innovative solutions while still maintaining development objectives.

This method is also used in the National Construction Code to allow for performance-based solutions, encouraging new and innovative construction that is still safe. The National Construction Code, like our DCP, still needs to be complied with, however the way these documents are written allows for flexibility and adaptability within a changing industry.

So let's put this to the test: The Councillor advises that within all DCP’s there are two columns, Performance Criteria and Acceptable Solutions.

RU1, RU4, R5 Large Lot Residential and C4 Environmental Living Zones DCP (879 KB) There is a house being built (now at lockup) in a Rural, R5 Large Lot Residential and E4 Environmental Living Zone and as such comes under the Rural, R5 Large Lot Residential and E4 Environmental Living Zones DCP.

Figure 1, of the DCP shows a 'tick' against an image of how a development should appear and a 'cross' against the middle image of how the approved house in question does appear. Part 2.1 — Siting of the Development `Intent: to minimise visual and environmental impact of new development on the landscape'. The approved house and its siting have a high visual impact on adjoining properties and those viewing over it. Performance Criteria 2 'The scale, location, footprint and height of buildings is such that: - buildings recede into the landscape - do not compromise ridgelines or areas of high visual significance. But for whatever reason Council offers the approved house is sited on a ridgeline, the highest and most prominent portion of the Lot. - visual impact on scenic, natural landscape and adjoining properties is minimised. The approved house and its siting have a high visual impact on adjoining properties and those viewing over it. The existing property to the south will have its valuable views significantly compromised. If you look at the Acceptable Solution there isn't one - in stead you find the word MUST So now the "guideline" that is written allowing for flexibility and adaptability within a changing industry is a RULE BOOK. There have been countless instances where rural residences have NOT been allowed on ridges or in areas of high visual significance. Those owners were told NO "The DCP doesn't allow it". So how did this happen? At this point it is an opportunity to remind readers, council staff and councillors of Council's Community Engagement Framework and Participation Plan that stipulates that Council must notify the public about some types of DAs.

Above: Community Engagement Framework and Participation Plan (609 KB) Council is not required to notify neighbours or the public for most residential development. This includes new dwellings that comply with all development controls. If Council does need to notify neighbours or the public they state that they will send a letter and a copy of the plans to adjoining and adjacent land owners. Clearly Council has failed to do this. The new construction did not comply with "all the development controls". As such Council was duty bound to notify neighbours as per their own (often ignored) engagement strategy. But wait... there's more

Above: The Performance Criteria and the Acceptable Solution referred to by Councillor Schutz. Note the word MUST The approved house at the centre of the issue around Council's planning failure significantly degrades the rural character with substantially reduced setbacks. In fact it has created the visual of a higher density 'unit development' and the reduced setbacks have significant impact on the views from two properties to the south. Note the Performance Criteria P1.1 'Setbacks, including front and side setbacks, of development are consistent with setbacks elsewhere in the vicinity. The approved house has reduced side setbacks of 4m, one third of the required 12m side setback (A1.1 & A1.2). 4m setbacks have been approved for both the house and a very large, yet unbuilt 12m x 18m shed, which are inconsistent with setbacks on existing neighbouring properties and creating a crowded result with high impact on the neighbours and degrading the 'rural character' which the DCP states is to be reinforced. So what happens next? It is suggested that one of the Councillors puts a Question on Notice to the Director of Planning to: Establish why, as per the Community Engagement Strategy requirements the neighbours were not notified of a development that clearly went outside of the DCP "guidelines" Establish how a building was allowed to be constructed 4 metres of the boundary whilst the DCP is clear that Dwellings MUST be setback 12m. Establish if the DCP is considered by staff as just a "guideline" that can be ignored, and that staff can decide what variations need to be informed to neighbours and have final say on what variations are approved. Establish why staff incorrectly responded to a question as to "why weren't we notified", asked by the neighbour on May 26th, saying “ in some circumstances neighbours don’t need to be notified and the case with this was that it was a fire rebuild and the new property is being built on the same footprint as the previous house”. Establish why the Council refused to move to put a temporarily stop the build whilst an onsite meeting could be arranged as the build only had plumbing in the ground. Establish why the General Manager apparently failed to respond to a 9 June 2022 email on the issue. Establish when the DCP is scheduled for renewal so that it might either be, dispensed with as a document that is a tokenistic, superfluous, toothless guideline, or given improved text that provides the delivery of expectation intended by the document.