Ecotourism, Hindu Temples, and WTF is a Housekeeping LEP?

On Tuesday night, Council resumed for 2020 and half way in, the meeting descended into chaos. A massive thunderstorm killed the power at a crucial juncture, forcing a second postponement, much to the frustration of a full gallery. The meeting had already been held over one week after flooding shut the Hawkesbury's three major bridges. It wasn't an auspicious start.

Before the storm, Council were able to consider several motions of condolence relating to the bushfire emergency that occurred during the recess.

It also approved a motion I brought which sought an extension of the public consultation period about the Pitt Town Hindu Temple proposal, and directs Council's involvement in a public meeting which will go some way to addressing the community's concerns about it. I raised this after representations from members of the Pitt Town community, and the vote was a victory for common sense.

Later, what we were debating when the power went out was something called a "Housekeeping LEP", and it's more important than it sounds.

Council's LEP, or Local Environmental Plan, governs what zonings prevail in various parts of our city. This in turn governs what can be built and where.

It was last fully updated in 2012 and is vastly in need of an overhaul. We were promised that it would be totally renewed in this term of Council, but the process has dragged on so badly it will fall to the next Council, elected in September, to get the process done. Part of the delay is the refusal of the State Government to properly resource our Council to do the necessary preliminary work, even though other Councils have received State funds for the job.

This is frustrating for many reasons: Changes to planning law mean that Planning Panels -- unelected, unaccountable and bureaucratic bodies, have taken on the job of assessing Development Applications, which used to be what your elected Councillors did in the chamber. The Planning Panels in turn interpret Council's stated policies such as our LEP (and our DCP - the Development Control Plan, which defines things like the scale, shape, quality, aesthetics and building materials that can be used in constructions), to get a sense of what is permissible or desirable.

That Planning Panels are making these decisions with no formal input from your elected Councillors, while drawing on an ancient LEP which does not reflect our current values and expectations, is not good.

In my opinion, the conduit for executing the community's desire for a particular style or scale of development, via elected Councillors, through their limited input into infrequently updated planning instruments, and thence to the interpretive whim of Planning Panels, is now so torturous and diffuse as to be impotent.

I'll give an example why we need an update: The 2012 LEP made very little mention of Ecotourism. It was there in the LEP dictionary, and section 5.12 even laid out some standards. But the words "Ecotourist facilities" were missing from the land-use tables to permit it in any zonings. Meaning, there is presently no permission for this form of economic activity, one our city ought to be promoting as an appropriate and desirable land-use. Ecotourism ticks all the boxes - it aligns well with the Hawkesbury's tourism strategies, it enables a productive use of land that may be unsuitable for other purposes, it encourages environmental awareness and good stewardship, it confers a halo effect on other parts of the local economy, and an Ecotourism framework in the LEP will regulate the sector, providing checks & balances for near neighbours, and certainty to those wishing to invest in those businesses.

Recognising the interminable process of getting a wholly new LEP, Council conceived getting some of the changes we've put off into a Housekeeping LEP, a kind of mini-LEP update, like a software patch issued between major revisions of an operating system.

Here's a slide from a Councillor briefing we received in February 2017 reminding us that the Housekeeping LEP process began in July 2015.

And here we are, five years later, and we're still no closer. Unbelievable!

Fifty such changes were identified for inclusion, including a provision for Ecotourism.

Sadly, a lack of will and strangulating bureaucracy has eroded even this limited proposal for endorsement by the NSW Minister for Planning. The watered-down Housekeeping LEP falls maddeningly short of what I and my fellow Liberals had hoped for .

We had hoped we could make good on our election commitment to permit Detached Dual Occupancies. But it's been removed from the draft. Ditto a more generous definition of Secondary Dwellings (effectively granny flats). And Ecotourism? Included in an earlier draft, but now recommended for elimination based on an apprehension that the Minister will scuttle the whole thing because of dangling threads. This is not good enough.

Complicating public debate is a protracted campaign by feuding millionaires with Polo properties down on the Richmond Lowlands. One of them opposes both the function centre and the ecotourism provisions of the Housekeeping LEP, citing the risk of flooding on the Lowlands. And while that’s probably a valid point, the only reason you’re reading about this via full-page ads in this week's Gazette and the Courier is because these millionaires loath each other and just want to cause grief for one another.

The simple fact is that even if the Housekeeping LEP is ratified in full, individual DA’s for proposals (say) on the Lowlands would still be subjected to a raft of other merit-based assessment criteria. Flood liability may still rule such developments out, but they would be assessed on an individual basis.

On Tuesday, the Liberals were key to an amendment to direct Council to submit the fuller version of the Housekeeping LEP to the Minister, with Ecotourism included. That amendment then became the motion, and based on the same numbers, was likely to pass.

Then, at the key moment, the power went off.

Will it pass when the meeting resumes on Tuesday night (25th)? Let's see.

by Clr. Nathan Zamprogno

Commissioner rejects appeal on the Avina Caravan Park expansion

There has been a major development in the proposal to massively expand the Avina site, and I wanted to give you an update. 

In October 2016, barely a month into this term of Council, concerned residents approached me over the proposed expansion of the Avina Van Village bordering Oakville and Vineyard.

This caravan park has been a fixture within the local landscape for decades, and is permitted under the RU2 and RU4 zoning it sits in, where most other properties in the area are 5 acres or more -- including productive farms.

We have long recognised the utility of a mix of accomodation styles in the Hawkesbury to our tourism strategy. Visitors to our area with a large boat in tow, or a horse float and need for temporary agistment, or maybe even pets that need some space to run about -- they all benefit from the availability of this kind of accommodation.

Unfortunately, some developers see in caravan parks a convenient loophole to push through inappropriate development. The proposal Council received in 2016 was to massively expand the Vineyard site from twelve acres to forty-seven.  247 housing lots as small as 223sq.m were proposed. If this had come to Council as a housing development, it would fail at the first hurdle as completely inappropriate for such a rural lifestyle or agricultural zone.

Bizarrely, the proposal was able to be considered because the proposed structures were regarded as "removable dwellings" -- like caravans. In reality they are houses, on concrete slabs, constructed on-site from prefabricated panels. It stretched credulity to think of them as portable in the same way as caravans. Nor would they have been constructed to conform to norms relating to energy efficiency, insulation, parking or open space required of any other housing proposal. There were also significant issues relating to public transport, road access and public amenity.

Under changes to planning law in NSW, the proposal was assessed by a JRPP -- a Joint Regional Planning Panel. I disagree with planning panels because they remove decision making from democratically elected, and therefore publicly accountable, Councillors. Certainly people approaching me were expecting Councillors to play a role in representing their concerns.

At the planning panel meeting, apart from the mayor (who was on the panel proper), I was the only Councillor that turned up -- on this occasion, to put my view as a private citizen and resident of the area. The JRPP rejected the proposal (unanimously), and I regarded this as a good result for the community.

The developer, Ingenia, immediately lodged an appeal in the Land and Environment Court. Since, I have been approached by people in other areas, like Forster, where Ingenia may attempt a similar playbook: Buy a caravan park, lodge a proposal to massively change and intensify its land-use by proposing an intensive housing estate not subject to the usual controls, advertise it as a "seniors living", propose structures that exploit the loophole of referring to houses as "removable" or "portable" when they are anything but, and then litigate when communities push back.

I am not opposed to some adaptive reuse of land, and I'm not opposed to increasing our area's stock of over-55s living options. However, I do object to inappropriate developments in rural areas that exploit loopholes that really should be closed in our planning instruments.

After a long delay and a failed mediation with Council, the matter was heard in the Land and Environment Court on 29 – 30 October 2018 by Commissioner Susan O’Neill. The evidence heard included testimony from 7 residents affected by the proposal. Hawkesbury Council were the defendants, despite the fact that the decision had been made by a planning panel and despite the fact that Council's own report to the planning panel was to approve the development -- an unwieldy feature of the new laws -- A Council can put a view, be overruled by a Panel, and then have to defend the Panel's ruling in court.

The Commissioner considered these fundamental issues:

•   Whether the proposed development satisfies the objectives of the RU4 Primary Production Small Lots zone under the provisions of the LEP 2012;
•   Whether the scale and density of the proposed development is appropriate having regard to the character of adjoining rural properties and the rural locality;
•   Whether the proposed development should be granted consent having regard to Clause 10 SEPP No.21 – Caravan Parks, with particular regard to whether community facilities and services, including public transport, retail and schools are reasonably accessible to the occupants of the proposed development; and
•   Whether the proposed development provides for adequate physical separation from adjoining land.

Today (7th November), the Commissioner rejected Ingenia's appeal. Click here to read the judgement. It stated

The orders of the Court are:

The appeal is dismissed.

Development Application No. 0685/16 for the staged alterations, additions and expansion of an existing caravan park to accommodate an additional 208 long term residential sites is refused.

(Link to judgement)Hawkesbury City Council won. The development is dead in the water.

This is a pleasing vindication. What do you think?

by Clr. Nathan Zamprogno