In 2022 the Eurobodalla Council were found to have well and truly cocked up in their botched handling of a development application in Surfbeach. The botch up was a monumental one that has needlessly set one neighbour against another. Basically Council failed on several fronts and the failure was embarrassingly brought to Council's attention by way of several Public Forum presentations that clearly outlined what had, and had not taken place that lead to the fiasco.
Typically the Council planning staff responsible for the monumental cockup took no responsibility and actually further embarrassed themselves by way of feeble and ridiculous excuses on a par with "the dog ate my homework".
The issue was about boundary setbacks. The development control plan outlines what is allowed. But in this instance the minimum allowable of 12m was reduced to just 4m.
A report to Council in August 2022 said:
At a recent Public Access Session a local landowner in Surf Beach raised concerns with Council as to why they were not notified of a development application and provided the opportunity to make comment on the development application prior to it being approved by Council in March 2022.
Because the local landowner was not notified of a development application and provided the opportunity to make comment on the development application prior to it being approved by Council he (and his wife) have been sorely, and unnecessarily compromised.
The Councillors were not at all happy with what they were hearing and were disappointed by the indifference, the audacity and the failure to accept responsibility that was being conveyed in correspondence to the affected landowner.
As a consequence the Councillors passed a motion that they hoped would put an end to future occurrences.
On the 9th of August 2022 they moved:
Moving forward there is a proposed development in Broulee where the height of the building exceeds the 8.5m building height. As you can see in the image below the proposed height for the building is 15.503m
Council's intent in August was that any variation to the DCP requires writing to adjoining owners of land. But it appears that in Broulee the neighbours have not been informed.
Why not - wasn't this the instruction of the Councillors:
From 1 September 2022 notify in writing, adjoining owners of land the subject of a development application that does not apply the acceptable solution for setbacks in the relevant Development Control Plan and provide a period of 14 days for a submission to be made to Council.
If you pull this apart it states "setbacks". Not heights.
Go to the Residential Zones DCP and you will find nothing about heights.
A Council planner might think "well that rule doesn't apply here because the motion was for setbacks in DCPs, therefore I don't have to advise adjoining neighbours"
Drilling down we need to determine what rationale the planning officer thought applied whereby he/she did not need to inform adjoining neighbours
While the DCP makes no mention of height the LEP does - for Broulee it is 8.5m
and as for the legislation:
Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case
The Developers have offered their reasoning as to why the variation should be allowed - Have a read HERE.
So what we have is a development application for a building well in excess of the LEP Height limits with the developers provided reasoning making reference to other variations allowed in NSW. The variations are so well justified that our councillors and our community are going to be hard pressed to challenge them.
But the issue at hand is about Council's obligations to advise neighbours of developments that fall outside of the rules, regulations, codes and plans as this one does.
In August 2022 Council staff were told that any setback variation under a DCP required adjacent owners to be advised. The report from the Mayor stated:
"It is acknowledged that this will create additional work for Council staff and subsequently result in the delay in determination of development applications. Notwithstanding this, I believe it is important that Council take this action and consider any associated impacts while undertaking a review of the CEFPP".
The Eurobodalla Shire Council Community Engagement Framework has been designed as a tool for those at Council who have an interest in and responsibility for coordinating, planning, designing, implementing and evaluating community engagement activities.
Eurobodalla’s One Community: Community Strategic Plan identifies the importance of building and maintaining an engaged and connected community that works together to achieve common goals, where thoughts and ideas are valued, and community members are empowered with knowledge and have the opportunity to participate.
That all sounds good but what does it say about our issue, and more importantly what does it say about neighbours being notified? :
so there it is... a written notice in the form of a letter or email will be provided to potentially affected landholders ie... neighbours.
But did Council do this as per their own Eurobodalla Shire Council Community Engagement Framework irrespective of the motion around the DCP and setbacks that we know now as too limiting in what was a poorly scoped solution to a glaring issue?
Council have erected a little sign on the proposed site advising of the Development Application.
That is all lovely for the random folks who might walk by but it fails to advise the neighbours who might not see the sign, or might well be one of the 40% of non-resident ratepayers who own property but live elsewhere.
The Broulee community are now very interested in the proposal, especially the height variation and the failure of neighbours being advised. T put that in context there might well be an eight apartment complex planned next door to you with a height of 15.505m and you would have no idea unless you saw a small sign out the front of the property or you scanned the Council's Development Application registry looking to discover what developments are planned in your street.
Of interest in the Development Application is the Clause 4.6 Variation pdf
If Broulee residents, or any resident in suburban Eurobodalla, want to make a submission in regards to the potential precedent this development will have then it will be the Variation rationale provided that will have to be challenged.
Good luck with that.
A public meeting is being organised in Broulee to learn more of the proposed development and what the community feel about the proposal.
Additional Note:
The Eurobodalla Land and Environment Plan (LEP) was finally signed off by the Minister after extensive public consultation.
That consultation included the community of Broulee clearly stating that they wanted an 8.5m building limit.
What is now being presented to Council is an application to allow a building in excess of 8.5m.
If Council allows this they will in fact be ignoring the fact that their community clearly instructed them that they wanted a Maximum of 8.5m and NO MORE. If Councillors vote to allow a building in excess of the agreed limit defined by the community in their community owned LEP (as presented to and signed by the Minister) then the councillors will be clearly going against clear the instruction of their community.
Knowing the height limits you and I would design a home to stay within these limits. Knowing that there was a discretion of a further 10% we might chose to push to this limit. But for you and I any variation above that would be out of the question.
So why is it, knowing the height limit as set by the LEP and directed, agreed to and adopted by the community, that an out of town developer think it is reasonable to bring to the Council a design that is well in excess of the building height offering pages on pages challenging that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.
It appears that the community decision to limit the height to 8.5m is open to ignoring. So why bother asking them in the first place. What else in the LEP can be ignored and signed off as a "variation"?
