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  • Writer's pictureThe Beagle

Should Council rename its DCPs to "Why Bothers"

Above: Image discovering your neighbour has built this directly above your house 4m from the boundary instead of the 12m that the DCP says MUST BE SETBACK and then discover it is all passed by Council and they didn't consider such a variation was worthy of notifying you. That window is a kitchenette and this was going to be a toilet window. So much for an invasion of privacy. Council offer no apology. read on... The current Eurobodalla Rural, R5 Large Lot Residential and E4 Environmental Living Zones Development Control Plan was adopted by Eurobodalla Shire Council on 24 September 2019 and came into operation on 14 October 2019. On that same day Council endorsed the public exhibition of the draft Community Engagement Framework and Participation Plan. In that plan it made refence to Council's obligations of Notification and stated: Notification is the process of informing the community of a proposed development, plan, strategy or local policy. This can include published and written notice, depending on the proposal. Public notice is an advertisement in the local newspaper and notification on Council’s website and written notice is a letter or email sent to property owners of the land adjoining the proposal.

The Community Engagement Framework and Participation Plan is intended to deliver a single document that provides the community clarity on Council’s community participation commitments in the planning process. For development applications that require notification, a written notice in the form of a letter or email will be provided to potentially affected landowners containing the following information: a) A description of the land (including the address) on which development is proposed to be carried out; b) The name of the applicant and the name of the consent authority c) A description of the proposed development d) A statement that the application and the documents accompanying the application may be inspected at the consent authority’s principal office specified in the notice during the consent authority’s ordinary office hours; e) A statement that any person during the period specified may make a written submission in relation to the development application; f) The dates of period specified under paragraph (d); g) A link to the DA tracker on Council’s website; and h) A statement that information contained within the written submissions will be included in reports in relation to the proposal and that the applicant may have access to copies of the submissions and Council is subject to Government Information Public Access (GIPA) legislation. Attachment 2 of the DCP shows what development is required to be either exhibited and/or notified. Development not listed in Attachment 2 will be required to be notified if that development does not comply with a relevant development standard, control or acceptable solution. Note this "If, in the opinion of Council, the proposed development may have a detrimental impact on adjoining properties it must be notified". Translated that means "If, in the opinion of a Council planning staff member..." and NOT Council. Not the Councillors we elected. They have no idea about DAs as these are removed from them and classified as operational matters not worthy of their interest. (unless sh*t hits the fan). In determining whether there may be a detrimental impact on adjoining properties by a proposed development the following matters will be considered (in part): • Views – whether the proposed development would unreasonably obstruct any views, taking into consideration controls in any relevant DCP; • Solar Access –whether the proposed development would unreasonably limit access to sunlight for adjoining properties, taking into consideration controls in any relevant DCP; • Privacy – whether the proposed development would unreasonably overlook private open space areas or living areas of adjoining properties, taking into consideration controls in any relevant DCP; • Bulk & Scale - whether the design of the development would have a potential impact on the enjoyment of adjoining properties and of the streetscape by virtue of its scale, bulk and height; • Siting - whether the development would have potential adverse impact on the adjoining properties due to the siting of the development and its proximity to the boundaries; Based on the above it would be a fair expectation that if your neighbour was to build a house outside of the guidelines of a DCP in terms of views, Privacy, bulk and scale or siting you might have at least expected, as per Council's own policy, a letter of Notification. Expectation is the key word here. But what if the Council staff fail to notify you and then you discover your neighbour has built a house that overlooks yours just 4m off the boundary (rather than the minimum 12m) impinging on your privacy. What if you see the project begin, protest to Council and then have them tell you to put it in writing. 29 days later and the roof is already on. But to a council planner there is no consequence. A neighbour had been compromised. There is no apology, no reasonable explanation. Even the General Manager fails to respond to emails. And it all comes down to the simple fact that a staff member believes a DCP is just a "guideline". Only that guideline includes the word must. It must be a toothless must with no legal bite.

Above: One would imagine if the acceptable solution is "dwellings MUST BE setback a minimum of 12m" then Notification MUST BE made as per Council's own Policy that: Development not listed in Attachment 2 will be required to be notified if that development does not comply with a relevant development standard, control or acceptable solution. But just what is a DCP. Does it have any legal weight?

NSW Department of Planning and Environment says: Development controls in a council’s local environmental plan (LEP) and development control plan (DCP) need to be kept up-to-date and as simple as possible so people can understand what development is permitted on a site. There are currently over 400 different DCPs across NSW which vary significantly from council to council. Division 3.6 of the Environmental Planning and Assessment Act 1979 states that a council may prepare a DCP to provide guidance to persons proposing to carry out development and the consent authority assessing the development.

The RU1, RU4, R5 Large Lot Residential and C4 Environmental Living Zones DCP (879 KB) provides guidance to applicants and development assessment staff on the expectations for development in rural areas, including land zoned RU1, RU4, R5 (for land equal or greater than 5000m2 in area) and E4 (for land equal or greater than 5000m2 in area). But what happens when those expectations are not met? What happens if Eurobodalla Council Planning staff take it upon themselves to allow variations to the guidelines, fail in their obligation to advise neighbours and basically endorse the construction of a residence that does NOT reflect the EXPECTATIONS as described in the DCP? The answer is Nothing. No consequence, no apology. Business as usual. "It is just a guideline" they . In regards to the recent issue of a brand new house built contrary to several "expectations" in Surf Beach it has been revealed that the new house was built 4m from a boundary rather than a minimum for 12m (as per the guideline) and that it is overbearing the soon to be erected neighbours home by metres so that a lovely view can be had from kitchenette in one, to the toilet in the other. Additionally the new build compromises a string of other "variations" to the guidelines but none of that mattered to the Council planner who gave it a tick of approval. Why weren't the neighbours advised of the many variations that would come to impact on them and others in the area? Council have responded to ACM saying: "Council's Community Participation Plan does not require applications for dwelling to be notified to adjoining owners where there is limited impact in terms of view, overshadowing, solar access, privacy, emissions and a number of other items," they said.

"It was considered that while the building was closer to the boundary, it was generally in the same location as the previous dwelling (prior to the fires), and would not impinge on adjoining owners." Since the neighbours presented to Councillors on July 19th 2022 they have received no response from Council however they have been contacted by two councillors in a follow up. The new residence continues in its construction with a large shed soon to be constructed 4m off the fence, with suggestions that neighbours views will be impinged. Adding to it all will be a pool just metres away to ensure midnight swims and spa conversations are heard over the fence. The question has to be asked "If the DCP is a guideline then why does it contain the word 'must'. Is that a toothless must? a superfluous must? Or a must that can simply be ignored at the discretion of a planning staff member with no consequence, and even less apology". A DCP is about expectations. It was endorsed by councillors who understood that it was a guide to ensure development of the Eurobodalla landscape was considered. What are your expectations? Mine are an apology by the General Manager and her senior staff at the least and an enquiry by Councillors of the extent of the issue to ensure that others are not being subjected to the same treatments. None of this would have been known had the neighbours not stepped up and addressed Councillors. Now we wait to hear how the councillors respond.

NOTE: Comments were TRIALED - in the end it failed as humans will be humans and it turned into a pile of merde; only contributed to by just a handful who did little to add to the conversation of the issue at hand. Anyone who would like to contribute an opinion are encouraged to send in a Letter to the Editor where it might be considered for publication

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