Reports
GOV.46
Page 17
28 April 2015
PLANNING PROPOSAL - "BELLS LIVING" AND "BELLS GREEN"
LOT 431 DP755234, HN 121-133 THE SCENIC ROAD & LOT 42
DP1165641, HN 79 MAITLAND BAY DRIVE KILLCARE HEIGHTS
BARKER RYAN STEWART (IR 20543606)
EXECUTIVE SUMMARY
The Planning Proposal originally lodged requested the two lots adjoining the existing Bells tourist
development at Killcare Heights be rezoned to R2 Low Density Residential. The two lots are located to the
immediate east and north of the existing resort. The planning proposal request was to allow complementary
and ancillary “lifestyle”-type development as an adjunct with the lots being used for permanent occupancy,
but this could entail short term rental accommodation, use as weekenders etc, that would have an element
of “tourism” use, similar to a number of other dwellings in the Killcare/Wagstaffe area.
Bells Resort and surrounding lands on the Killcare Heights Plateau, are predominately zoned E4
Environmental Living. A statutory minimum lot size of 4 hectares applies.
The scale of the development proposed for the site is essentially mid to large residential lots, and the
applicant will be seeking to subdivide the land to lot sizes ranging from 600m2 to 2100m2. When averaged
within the overall site will be approximately 1400m2 for Bells Green (which has smaller clustered lots and a
greater amount of “community” space, with the exception of two larger lots within the bushland fronting The
Scenic Road) and 950m2 for Bells Living, which is a more conventional “large lot” residential subdivision will
less “community” space.
Through discussion withe the applicant it is no longer proposed to rezone the parcel of land on which the
existing Bells Resort is located to R2 Low Density Residential, but rather retain the existing E4
Environmental Living zone with site specific controls added to Schedule1 to enable development on this
land parcel as requested by the planning proposal. This amended proposal has the advantage of retaining
the E4 zoning which reflects the characteristics of the land.
The other factor relevant in the consideration of the planning proposal is the form of subdivision of the use.
The lodged Planning Proposal originally sought torrens titled subdivision, with a rezoning to R2 Low Density
Residential zone, which would enable the erection of a dwelling house on each lot. However through the
assessment process, the applicant has communicated a willingness to have the Planning Proposal
amended to a community title subdivision to facilitate the development given this amendment still achieves
the overall goal of the applicant to provide environmental living housing.
Under the existing planning framework (LEP and DCP), the development of the land as a tourist and visitor
accommodation development is permissible. Strata subdivision below the minimum lot size in the LEP (ie 4
ha) has only been made permissible under Amendment 13 to LEP 2014, effective from 27 March 2014,
under Clause 4.1A Minimum subdivision lot sizes for strata plans in certain rural, residential, recreation and
environmental protection zones, of LEP 2014. Therefore, a tourist and visitor development is permissible
and development can include strata titling of the units that could be sold to individual owners.
The manner in which the land is proposed to be developed, with communal areas of open space, informal
roads, areas of vegetation warranting protection, requirements for retardation basins etc is appropriate as a
community titled subdivision.
Following the form of subdivision is the issue of the occupancy of the land. The application seeks the
permanent occupancy of the dwellings, including other occupancy forms such as short term rental
accommodation (limited to under 3 months), use as weekenders, or for permanent occupancy, but within a
non-traditional low density residential development that aligns to Bells which maintains the Environmental
Living Zone.
Tourist and visitor accommodation is currently permissible under the LEP, and can be strata titled under
existing controls. However, a future Planning Proposal would be required in any event to “convert” approved
tourist and visitor accommodation units to permanent dwellings. The approach to managing this issue on its
merits now, when the impacts of permanent occupancy can be contemplated, rather than in the future when
essentially “the same” physical buildings and site works could be constructed (subject to DA approval) is
preferred.
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28 April 2015
Addressing these issues at this stage is a more transparent and accountable approach and provides Council
the opportunity to fully consider the applicant’s original request for an R2 zone, the issue of permanent
occupancy, consider the best methods to further the proposal, etc rather than if the buildings were already
approved/constructed as tourist and visitor accommodation units and then a future Planning Proposal lodged
to provide for their permanent occupancy or subdivision method other than strata titling.
Restrictions on permanent versus “temporary” tourist type/weekender occupancy, or tourist and visitor
accommodation units could also be imposed, however would be difficult to manage and enforce given the
unknown intentions of future owners. Being different forms of “development”, different assessment
considerations would also apply, particularly as “tourist and visitor accommodation” is a Special Fire
Protection development for the purposes of the Rural Fires Act, 1997. There may also be different
construction requirements between dwelling houses and tourist and visitor accommodation, in relation to the
provision of car parking, private landscaping, Building Code of Australia requirements, etc.
There needs to be sufficient scope for flexibility of use of structures as permanent dwelling houses, short
term rental accommodation (as a use of a dwelling), renting out as a tourist unit associated with Bells, or use
as a weekender. There is also a need to limit the number of dwellings on the land, whatever their intended
use.
The best means to establish this statutory framework would be to list the lots in Schedule 1 “Additional
Permitted Uses” of Gosford Local Environmental Plan, to allow community title subdivision, and specify the
quantum number of dwellings that can be erected on each lot. This would provide the appropriate statutory
framework to enable the development to proceed, to allow flexibility of use of the dwellings for weekenders,
permanent occupancy, etc together with retaining the integrity of the overall E4 zoning in this location. This
would ensure an appropriate scale of development, ensuring environmental protection, and overall
integration of the development through a community title subdivision, whilst allowing flexibility of use of
dwellings.
This would also recognise the uniqueness of the situation, remove complications in relation to future
subdivision, resolve management imposts/expectations for Council for services, infrastructure and
maintenance of “public” infrastructure internal to the development, protect the overall integrity of the E4 zone
as it relates to the Plateau, retain suitable environmental protection and provide an outcome that meets both
Council’s and the applicant’s development expectations.
The proposed development is unique and can be substantiated from a landuse planning perspective. It is not
considered that the dwelling houses would be conventional dwellings in the sense of a new urban release
area type of development for “family” type accommodation, due to lower density of development, high
architectural specifications, high “buy in” costs, relative uniqueness of community titles subdivision where
landscaping features, community gardens etc are owned by the residents, location of the land and integration
with Bells resort. A detailed assessment of issues associated with the planning proposal is contained within
Attachment B. A comprehensive suite of DCP provisions would be prepared to supplement the statutory
amendment.
If undertaken in the manner recommended, the Planning Proposal would allow a development that leverages
off the positive benefits of Bells, in terms of land management, advocacy of sustainable development,
alternative residential accommodation within a sensitive community, additional tourism opportunities,
alternate source of weekender accommodation, economic generation, local employment and value-adding to
the unique qualities of the Killcare peninsula. The management of occupancy for the tourist component/use
of dwellings could be managed by Bells. It is acknowledged however that it would be appropriate to consider
the operation of this and the community title scheme in the coming stage of the development process.
Specifying the quantum number of dwelling houses that could be erected, and its subdivision by way of a
community title system, would further differentiate the development from conventional residential
development and ensure the environmental integrity of the land is maintained.
The recommendation of this report is to approve the planning proposal to proceed to Gateway.
BACKGROUND
The wider Killcare peninsula area is characterised by its isolated nature, proximity to extensive National Parks
and beaches and estuaries, scenic qualities of state and regional significance and low key, relatively informal
residential areas and limited local facilities. The plateau is bounded by Maitland Bay Drive, Wards Hill Road and
The Scenic Road, at the top of the Killcare/Bouddi Peninsula. It is characterised by gently sloping land,
significant tracts of remnant vegetation providing connectivity to national parks and COSS lands, native and
introduced landscape/vegetative screening, with dwelling houses generally being used for larger rural
residential type living in large cleared areas.
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There has been pressure on a number of E4 lands to allow further subdivision, mostly for smaller rural
residential lots due to their favourable proximity to the coast, high amenity, demand for rural residential living
and large development returns for relatively low development costs if subdivided into smaller rural residential
“7(c2)” type lots.
A recent determination in the Land and Environment Court in relation to a two lot subdivision of 179, The Scenic
Road, zoned 7(c3)/now E4 land and located some 350 to 550 metres from the land was refused by the Land
and Environment Court (Coastplan Consulting vs Gosford City Council File reference 10194 of 2013, 23 May
2013). In the determination of this case, the importance of the Plateau area for tourist developments, retaining
large lots of sufficient area to accommodate this form of development, the area’s sensitive environmental values
and its desired future character, were ratified by the Court and the case dismissed.
Rezoning to a residential zone could be precedential for other areas zoned for tourist developments to allow
either greater rural residential or low density residential subdivisions. It could also be precedential for rezoning
of rural small holdings areas (existing 7(c2)/proposed E3) to allow urban development. This is currently outside
of any current strategic context, however Council will be progressing a review of fringe areas as part of its
overall strategic works program within Sustainable City and Corporate Planning.
The proposal
The concept as proposed is not “conventional” residential development, but a “lifestyle” type for residential
accommodation, that may incorporate some short term holiday letting, weekender use, options of owners to
rent out dwellings for tourist use associated with Bells etc, together with permanent occupancy.
The design provides for a total of approximately 50 lots. The lots are to be developed in a non-conventional
manner to integrate with the amenity and appeal of the resort. It would provide additional compatible “alternate”
residential accommodation, provide greater opportunities to retain environmental values, scenic quality and
amenity, with urban design, landscape and architectural merit.
The success of the proposal is contingent upon maintaining the high environmental values and character of the
land, and implementing sustainable practices in relation to development, water cycle management and living
options. The main impetus for the proposal is to allow smaller subdivision and permanent residential/lifestyle
opportunities (which would have opportunities for tourist uses of the buildings). Smaller lot subdivision is only
permissible for permitted developments (ie tourist and visitor accommodation) through a strata titling scheme.
Strata titling was only recently permitted under Amendment 13 to LEP 2014. The applicant is not amenable to
strata titling, and not amendable to a restriction on occupancy between dwelling houses vs tourist and visitor
accommodation units.
Dwelling houses and tourist and visitor accommodation units are differently defined uses. The introduction of a
“split” between dwelling houses and tourist and visitor accommodation would be difficult to manage and
regulate from a practical perspective, and it is not known what proportion would be reasonable to apply,
particularly as this would depend on individual owners intentions, need for flexibility (eg rent out for tourists if it
is not the primary place of residence as short term rental accommodation), etc.
The overall development is considered meritorious, however, as it seeks to develop a high quality development
that respects the integrity of the E4 zone in relation to protecting the environment and providing opportunities
for lifestyle living and tourist uses, albeit if not strictly “tourist and visitor accommodation”. Council needs to be
satisfied that it does not provide a precedent for further smaller lot subdivision for residential use alone, nor
create servicing and maintenance imposts for Council.
Conventional torrens title subdivision associated with traditional R2 zoned development would be complicated
and with a number easements, rights of carriageway etc, also create considerable on-going issues for Council
maintenance, residents’ expectation as to servicing, access to services and facilities etc. Through negotiations
with the applicant, they are amenable to a community title subdivision, however this is currently not permitted
by the LEP as lots would be created below the 4 ha minimum lot size. Hence a Planning Proposal is required.
Conventional urban development reflective of the R2 zone is not supported from a landuse planning
perspective due to environmental and scenic value of the land. If the land were to be rezoned to R2, an
“englobo” lot production of approximately 72 lots could be feasible, with a conventional “urban release area”
type subdivision. This would have a significant precedential effect for the rezoning of other E4 plateau lands.
The primary concern if the land were rezoned to R2 is that the lots could be sold separately either as
“development” lot, or individual lots within an “urban release” type subdivision and developed for conventional
urban release area residential development, and the precedential effect for other E4 land on the Killcare
plateau. Conventional residential development is not suitable in this location due to its isolation, state and
regional significance from a visual and scenic perspective, high environmental values (including wildlife corridor
values), proximity to and relationship with extensive areas of National Park, poor road access and distance to
conventional urban centres.
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The E4 area also has several key areas of ecological connectivity between National Parks/reserves, located
generally along the central drainage line and along The Scenic Road frontage, with cleared areas interspersed
within these ecological areas. It is important to be able to retain these high environmental values, and respect
the regional setting of the land.
After meetings with the applicant, manager and owner, to further clarify the type of development proposed and
its permissibility within existing zonings, and on-going discussions with the applicant, it has been agreed to
amend the proposal. The proposal is not for tourist and visitor accommodation, but dwelling houses, to be
separately titled, however to be integrated and designed to be complementary to the resort. The applicant/
owners are amenable to retaining the E4 zone, however allow a smaller minimum lot size though a community
title scheme. This removes management imposts for Council that would be associated with conventional
residential zoning and torrens titling subdivision.
The proposal entails two components: Bells Green, on Lot 431 DP755234, 121-133 The Scenic Road, with a
more clustered area for building envelopes and significant proportions of the land being used for landscaping/
community gardens etc, and Bells Living, on Lot 42 DP 1165641Maitland Bay Drive, which is more
representative of detached larger lot semi-rural residential subdivision. Integration is proposed with a
commonality of landscaping (featuring both exotic and native species), integrated access arrangements, use of
resort facilities by owners/occupiers of the Bells Green and Living components, adoption of sustainable
development principles and integrated water cycle management including flood retardation. Individual
dwellings would however be separately owned, but could be rented out for holiday rentals and managed by the
resort. It is acknowledged however that it would be appropriate to consider the operation of this and the
community title scheme in the coming stage of the development process.
One solution to allow the development to proceed and alleviate on-going management concerns/
responsibilities of Council and expectations of future owners of individual lots in relation to servicing, etc would
be to allow a community title subdivision and specifying the number of dwelling houses that could be
developed for each “parent” lot. This solution is reflected in the recommendation of this report.
Purpose of report
This report discusses merits for Council's consideration and decision of whether or not to prepare a
Planning Proposal (PP), which, if supported by Department of Environment and Planning would result in
an amendment to Gosford LEP 2014, pursuant to Section 55 EP&AA.
Aim of proposal - to facilitate the development of land to the immediate north and east of Bells Resort at
Killcare Heights for non-conventional “residential lifestyle” development complementary to the amenity,
architectural/urban design character of the exiting Bells resort and complementary to the wider environmental
setting of the Killcare peninsula. It is also proposed to maximise synergies with the existing resort, however
allow smaller lot subdivision, though community title subdivision.
The applicant is seeking 100% permanent occupancy of the dwellings/tourist units. Although it would be
desirable to recommend a “split” between permanent and tourist uses, there are difficulties in differentiating
between use of dwelling houses for permanent occupancy, weekender use, short term rental accommodation,
or renting out as conventional “tourist units” associated with Bells. There is also a need for flexibility of use
depending on the desires of individual owners. It also creates assessment complications (ie two different forms
of landuse) and on-going management and landuse regulation if a split between uses is nominated.
The specific aim of this Planning Proposal, as amended and recommended to Council, is:
To list Lot 431 DP755234, HN 121-133 The Scenic Road (Bells Green) and Lot 42 DP1165641, HN 79
Maitland Bay Drive, (Bells Living) Killcare Heights in Schedule 1 of Gosford LEP 2014 to enable a community
title subdivision, with a quantum number of dwellings/tourist and visitor accommodation units to be
erected of 20 and 30 respectively on each lot;
to list “horticulture” in Schedule 1 of LEP 2014. This is to allow locally grown, seasonal produce to be used in
Manfredi@Bells restaurant as a permissible “stand alone” use on Lot 431 DP755234, HN 121-133
The applicant to provide ffuurther details to Council in relation to the exppected use of dwelling houses for
permaanent occupancy, weekender use, short term hhooliday letting, and tourist unit rental asssocociated
with Bells, prior to the submission off the Planning Proposal to the Departmentent of Planning and
Environment, to ensure thaatt the integrity of the E4 zone as it relatess to low impact tourist developments is
maintainneed.
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28 April 2015
Locality Map
Subject Lots
Bells Resort
Application Received / amamended – 21 November 2014. Agreed amamendment to proposal on
21 January 2015 to retain E4 zone with reduced minimumm lot size and allow a torrens title subdivision.
Environmental Planning InInstrument & Zone
E4 Environmental Living ununder Gosford Local Environmental Plan 2014 (GGLEP 2014)
Area – Lot 431
DP755234,
234, 121-133
The Scenic Road - 3.222 hecctares,
Lot 42 DP1165641, 79 Maitland Bay Drive 2.834 hectares – total 6.056 hectarees
Site – the land is located at Killcare Heights and forms part of plateau area surrounded by National Parks,
waterways and the low density, relatively informal residential areas on the Killcare/Wagstaffe Peninsula.
ASSESSMENT OF ISSUES
Pre-Planning Proposal meeting – no formal pre-planning meeting was held with the applicant and Council
staff. However, since lodgement meetings, site inspections, and on-going discussions have been undertaken
with the applicant and owner to determine whether the proposal could be accommodated within the existing
planning framework, as a permissible use (tourist and visitor accommodation) in the current E4 zone.
The development sought is smaller, more residentially scaled lots, which are now proposed to be community
titled, and to offer a range of “lifestyle” options that include permanent occupancy, use as weekenders,
possible rental for short term holiday letting, etc.
Following assessment it is now clear that the proposed development could be achieved by retaining the E4
zoning however listing the land in Schedule 1 “Additional Permitted Uses” of LEP 2014, to allow community
title subdivision with a quantum number of dwellings.
Although it may be desirable to consider a “split” between permanent residential occupancy and tourist use
of dwellings to, the reality is, however, that because of the “lifestyle” nature of the development, and its
setting in an area where a high percentage of existing conventional dwelling houses are used for short term
rental accommodation, weekenders etc, and synergies with Bells, that full “conventional urban release style”
residential occupancy would be unlikely to occur.
It is acknowledged however that it would be appropriate to consider the appropriate means by which the
community title scheme achieves the objectives of Environmental Living Zone in the next stage of the
planning process. It is recommended that Council achieve this during the Gateway phase.
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Applicant's Submission
Bells Green is to be located on the eastern immediately adjoining the existing Bells resort lot fronting The
Scenic Road and comprises the following:
•
•
Two larger lots at the front of the site to retain the majority of the vegetative buffer at the front of the
site (note there may be environmental/ecological issues associated with this component which would
require further investigation)
18 residential-scaled lots ranging from approximately 620m and 800m2 located within cleared areas,
and clustered around existing significant exotic landscaping features, having access to communal
green space (open space, community gardens, landscaped areas and walkways, etc);
•
Access road from The Scenic Road which will then link into existing Bells internal access ways
and also provide emergency alternative access through the Bells Living component to the west
Bells Living is to be located to the immediate north of the Bells resort and is located on 79 Maitland Bay
Drive. It comprises the following features:
Approximately 30 lots of between 600m2 and 2100m2 with access to be via way of an extension of
•
internal access road across the drainage line/upper Mudflat Creek, with lots orientated off one central
access road. Lots will be large enough to provide for urban “farming” opportunities on the individual
lots themselves rather than in a centralised community garden as proposed in Bells Green;
•
Access of Maitland Bay Drive is proposed only for emergency purposes;
Both the components will be subject to detailed design and are not intended to accommodate conventional
urban “greenfields” lot subdivision. Urban release area type subdivisions are characterised by unregulated
residential dwelling houses/potential project home building designs, inconsistent building materials and
colours, mix of landscaping, conventional public roads, kerb, guttering and servicing systems.
The applicant now seeks, and Council supports, to facilitate the development by way of Community title
subdivision, which is not currently permissible due to lot size limitations of Clause 4.1AA and the Community
Land Development Act, 1989, which requires that no lot, other than a “community association lot” (or
“parent”) lot be smaller than the minimum lot size specified under the LEP (ie 4 ha).
The applicant notes that tourist and visitor accommodation is currently a permissible use on the land, and
this could be at a higher density development yield than that sought under the Planning Proposal.
Restrictions on floor space for tourist units of 0.15:1 that applied to the former 7(c3) zone was not brought
into LEP 2014.
The applicant has proposed, and Council would require, Development Control Plan provisions to
ensure that development:
•
is designed so that new dwellings are compatible with the coastal environment and high architectural
specification of the existing resort, including appropriate building height, materials and bulk,
streetscape and setbacks and private open space;
•
public domain strategy that will address general amenity, design, sustainability, common
horticultural plots/community gardens and character/amenity of public areas;
•
•
Landscape design, recommended plantings and other proposed landscape elements,
Promotion of housing types and design appropriate to the lot size, orientation, slope and shape,
•
Is adequately serviced and considers a range of matters to further support the development in
the manner proposed.
There are other requirements that Council would consider necessary in relation to Development Control Plan
provisions specific to this site. These may be also be refined through consultation with government agencies
and the Gateway Determination. This should ensure that at the time of subdivision and development
applications for individual dwellings, there are no insurmountable impediments or unforeseen circumstances
that have not been canvassed as part of the planning proposal process. One component of this could be
demonstrable evidence from the applicant that there is opportunity for tourist/weekender use of the dwellings
to support the integrity of the E4 zone.