31 May 2003
PO Box 14
SUTHERLAND NSW 1499
Dear Mr Rayner
Submission: draft LEP
Congratulations for making a serious attempt to address many concerns raised by residents about development in Sutherland Shire!
We applaud many of the innovations in the dLEP, such as: how to assess ESD; how to assess transport impact from developments; attempting to clawback the environment of the foreshore by shifting back the building line; severely restricting what can be built and cleared outside that buildingline; imposing stricter regulations on the clearing of endemic, native vegetation in strategic locations; and making a serious attempt at considering how to encourage the use of alternative means of transport to the private motorcar. Explicitly realising these issues as fundamental to development considerations has the potential to shift the Shire to a more sustainable footing.
In reviewing the dLEP we began from a truism: The health of the environment - water, biota, air, soil - determines the health of people . Recognition of this truth MUST guide development decisions. Short-term decisions that put environmental contingencies in the background will cost the community dearly. We do not deny that sometimes decisions need to be made that prioritise urban development over conservation of the environment, but these decisions must NEVER be made without a concurrent decision of how to compensate for the loss of that environment.
With these bases in mind, we make the following recommendations:
An essential component of the LEP must be the Housing Strategy. It must be underpinned by the capacity of the natural and built environment to provide for people and ensure their health and wellbeing. Clearly this is not the case at present: In rapidly growing areas - such as Menai - there are significant social problems; traffic problems plague many areas (too much dependence on the private motor car, too little public transport, too few opportunities for equitable access to community facilities by all members of the public); degradation of the environment continues (all waterways continue to degrade and, in spite of significant efforts by Council and the communitythrough programs such as bushcare and greenweb, bushland is still being lost to weeds and development); air quality is a concern; and the list goes on.
To deal with these issues, it is essential that Council commit to a growth in housing commensurate with its capability - and the capacity of the environment and community - to adjust to increasing densities and change. The LEP commits to a 12,000 new dwellings in the 1996-2011 period but there is no plan to ensure that this figure will be adhered to.
Recommendation: Unambiguously state where 12,000 new dwellings will be located in the 1996-2011 period, and provide annual dwelling provision targets which can not be exceeded.
Zoning by itself is a poor means of achieving development controls. There aretoo many examples around the Shire where the eventual development is the outcome of a "negotiated" set of controls rather than a faithful interpretation of plans. To be successful, zoning must be accompanied by innovative ways of enforcing compliance and providing incentives. We take up this issue again in our discussion of foreshore zoning below..
We laud the motives behind some environmental zoning changes in the dLEP and the objectives these zonings aim to achieve. However the consequence is that some people in the community bear a bigger burden for providing the Shire with a "clean and green" environment than others. If these zoning issues are to work, Council must introduce incentives/rewards for people to behave appropriately while ensuring that those who are not obliged to provide a public benefit from their property are appropriately "taxed". Council has in part recognised the need for incentives in its Greenweb Strategy and should actively pursue means to expand such incentives.
Recommendation: Council should supplement restricted zoning with incentives for achieving objectives for the zoning.
The dLEP leaves us uncertain about the way that rezoning will be carried out under the Housing Strategy. Council's moves to rezone the Sharks' site provide an example of the deep suspicion that must accompany an open-ended clause providing a poor mechanism for public decision-making regarding the desirability of rezoning. We are particularly concerned about zonings that will increase the number of highrise and increased density development. At the very least we would seek that zone changes be in accordance with the Mayoral Minute of October 2002: ".controls beintroduced to permit additional residential flat buildings on two sites only: precinct 8 East Sutherland, and Former Telstra site Sutherland. No other rezonings are suggested in the LEP, including Miranda, other than down zonings." Such a sentiment should be echoed in masterplans to ensure they do not enable higher density rezoning.
Recommendation : Rezoning of areas should be the subject of transparent and inclusive public decision-making and should ensure that neither the natural nor social aspects of neighbourhoods are degraded.
Special zoning issues:
Restrictions around Lucas Heights Reactor: In 1993, Sutherland Council adopted a policy confirming that special restrictions were to apply to developments within certain radii of the Lucas Heights reactor. These were:
No development within the 1.6 km exclusion zone
No residential development within 3.2 km in the Woronora River Valley
No residential re-zonings or increased densities within 4.8 km if population will exceed 5000 per sector
No food related development or institutions within 4.8 km
Recommendation: That the notification currently attached to s149 certificates be included in the People's LEP.
Commonwealth Government owned Mill Creek/Georges River Land: This land has high conservation value and should be treated as an integral ecological unit. Such units are becoming scarce in the Sydney Basin and all efforts should be made to conserve what is left. Zoning in the dLEP only partially protects the land. The whole area should be zoned Environment Protection (Bushland).
Recommendation : That the Commonwealth Government owned Mill Creek/Georges River Land be entirely zoned Environment Protection (Bushland).
The role of masterplans, locality plans, locality statements, and schedules :
Clause 16 (2) Where there is any inconsistency between a masterplan, locality plan or locality statement and the general provisions of this Plan, or any schedule, the requirements or controls of the masterplan, locality plan or statement prevail . We believe this clause has dangers. LEPs are documents that should set the standard. They should provide "certainty" to both residents and developers about what can and can't be developed. Unfortunately the trend has been for clauses in currently operating LEPs to be overridden by the use of instruments such as SEPP1 and DCPs. In more extreme cases, the LEP is simply ignored and another plan is drawn up - such as is being attempted with the Sharks Club's development. Those who benefit under this regime are the privileged interests with money - or political power - that enables them to argue their case in court or carry out intensive lobbying of councillors/politicians. The backlash by voters at State and Local Government elections since 1999 has been a reaction to the disintegration of neighbourhoods brought about by lack of implementation of controls. To allow masterplans and locality plans and locality statements the power proposed in the draft simply perpetuates the capacity of developers and those with political agendas to make individual gains at public expense. We do not believe that the undertaking provided in the LEP - that masterplans will only be developed using the principles stated in the dLEP - is sufficient to ensure that the LEP will not be undermined. Some flexibility should be built into the LEP to enable appropriate development decisions. But the decisions need to be bounded by strict guidelines.
Recommendation: That Master Plans, locality plans and local statements be made subservient to clearly stated constraints (not only principles)in the LEP. Where changes need to be made, the LEP should be amended through processes stipulated in the EP&A Act.
Similarly, schedules should not be a "back-door" way of changing controls. The behaviour of Councillors does not always provide the public with the confidence that they will make decisions for the long-term benefit of the community - rather than short-term political gain.
Recommendation: That a protocol for the change to schedules be developed that ensures transparency and rights of appeal to independent arbiters.
Repeal of all Regional Environmental Plans and SEPPs . - Clauses 4.2 and 4.3.
These are unnecessary clauses which do not guarantee benefit to the Sutherland community. Presumably they have been included because the dLEP attempts to incorporate the many state policies and plans. While understanding the sentiment, the effect will be to cut the Shire off from the rapidly evolving moves towards more coordinated regional planning - attractive to voters and to the Federal Government. Recommendation: That the clauses repealing REPs and SEPPs be eliminated from the dLEP.
Reclassification of Public Land
SSEC supports the stand taken by the Total Environment Centre on this issue:
TEC notes clause 28 of the dLEP which reclassifies public land in Schedule L from Community to Operational Land . It is perplexing, however, that no parcels of land have been listed in this schedule. In view of this we question the need for clause 28.
TEC also believes that reclassification of land through the current LEP process would be inappropriate. Given the scope and complexity of the Draft LEP document it is unlikely that the public would have sufficient time and opportunity to identify and comment upon any reclassification issues. In the interests of transparency and public participation it would be preferable for reclassification issues to be separately dealt with through the reclassification process detailed in the Local Government Act 1993. This would allow proper attention to be given to each parcel of land in isolation of the complex LEP process. It would ensure the identification of each parcel via public advertising and allow for relevant issues to be canvassed through public consultation, submissions and public hearings.
The dLEP makes significant gains in attempting to address the many issues confronting development (destruction) of the waterfront. There are, however, a number of inherent problems in the dLEP proposals.
The major issues confronting the foreshore have not arisen because of a lack of legal controls to limit development, but a lack of capacity or will to enforce the controls. Simply providing yet another set of controls is unlikely to overcome the problems.
The dLEP should clearly state the target that foreshore controls aim to achieve. These targets should specify the degree of equity of access, retention of native vegetation and natural foreshore structures, and increase in scenic amenity of foreshores to be achieved within a particular time period. Simply moving the building line and rezoning some areas will not achieve such targets - nor are these clauses likely to achieve the objectives for the foreshore stated in the dLEP. That is not to say that the initiatives in the dLEP to impose stricter controls is not welcome. They must, however, be accompanied by clear penalties and incentives to ensure that the objectives (clarified in targets) for the foreshore are achieved.
We have worked closely with the Port Hacking Protection Society in examining the requirements of foreshore development and support the recommendations in its submission. In summary:
Recommendations: Rezoning of the foreshore be accompanied by statements of time-bound targets and innovative means of achieving compliance . These innovations should include incentives and penalties for non-compliance.
Sutherland Shire Council is to be commended in the efforts it has made over the past few years to have a more transparent and inclusive discussion over major developments. Much can still be done, however, and a significant step would be to include a statement in the dLEP on how the public can participate in decision making arising from dLEP initiatives. For example, how will residents be able to participate in the housing strategy objective: "To protect and enhance the character of residential neighbourhoods."
Recommendation : Include a statement in the dLEP to require transparency and public participation in major decisions regarding changes to neighbourhoods and community centres.
Transportation and access
Council is to be congratulated for including transport considerations in the dLEP. We realise that many private and public transport decisions are in the hands of State and Federal governments. The ability of people to move around and through neighbourhoods safely and pleasantly as pedestrians and cyclists, however, is largely the role of Council. There is recognition of this in the dLEP. However, there is scope to ensure that there should be no compromise on the provision of pedestrian (including cycling) amenity in neighbourhoods. Thus, for example, if there is insufficient room for a dual carriageway plus room for parking cars in a particular street as well as wider paths for pedestrians and cyclists, then the sacrifice should be made in favour of pedestrians and cyclists. This should be non-negotiable.
In addition, every effort should be made to signpost and upkeep pedestrian accessways and avoid their resumption by adjoining property owners. Such accessways should have at least as much - if not more - priority for upkeep as roads.
Recommendation : Pedestrian and cycleways should be clearly zoned as such, and schedules should safeguard their use for pedestrian and cycleway access as a priority over motorised vehicular traffic.
SSEC and Council have been working together to establish the best route for the Great Kai'Mia Way . This pedestrian and cycleway system has the potential to deliver access between areas of the Shire which is away from road traffic and links with public transport nodes. Council should include appropriate zoning to enable the Way to be completed.
Recommendation: The dLEP should appropriately zone, map and amend schedules to ensure the realisation of the Great Kai'Mia Way as an integral part of the Shire's transport, access and recreational objectives.
Heritage and neighbourhood amenity
The LEP is unavoidably complex and detailed. The unfortunate consequence is that many people who could and should contribute to its accuracy and fairness find it inaccessible. If an analysis of submissions shows that community groups have not commented on the specific needs and details of their areas, Council should investigate the feasibility of targeting such groups. This would involve Council in preparing relevant information free from the clutter of other detail for examination by those groups. For example, history or heritage groups might be asked to comment on the accuracy of heritage listings, and precinct groups on the issues specific to their community. In part Council has done this in its briefing sessions, but this was on subject groupings (foreshore, environment, commercial, etc.) and was too broad to pick up specific community concerns.
Recommendation : Proactively target members of the community who could provide input to ensure the accuracy of heritage and neighbourhood amenity.
The dLEP recognises that both natural and cultural heritage are significant for the welfare of communities. The burden of maintaining these heritage items, however, falls almost entirely on those property owners who happen to have them on their land. This is neither fair nor sustainable, leading to behaviour such as "accidental" destruction or to simple decay. At the very least Council should have clear protocols to help people care for heritage items. Perhaps some of these protocols could be written into the schedules, but this is unlikely to be sufficient. To achieve heritage objectives, it is essential that Council also implement innovative ways to encourage people to maintain and take pride in the area's heritage.
Recommendation: Council consider how schedules for the care and maintenance of heritage items can be recast to relieve property owners from the burden of care, and simultaneously seek to implement ways of providing incentives to property owners to maintain such heritage items.
Reinstate (as in LEP 2000) the minimum width of a villa development to 25m to reduce "corridor effects".
Increase the buffer zones between multi-storey developments and lower density housing to ensure that privacy and access to sunlight are safeguarded for the latter housing.
Provide for adequate setbacks to residential flats to ensure that "canyoning" of streets does not occur.
Landscaping for high density areas is essential. While often Council requires developers to provide landscape plans, there are few controls that ensure landscaping works are effective in the long-term. The LEP should seek to address this problem, perhaps by providing penalties or incentives for achievement of landscape objectives several years after development completion. For example bonds could be held for five or ten years, or developers could be required to contract landscapers for care and maintenance of works for several years after completion of the works.
Be strict regarding height restrictions. If loft rooms are allowed in developments, then they become defacto three storey developments. If the intent is to allow three storey developments, then the dLEP should transparently say so.
In general we view with suspicion those clauses in the dLEP that use words such as "minimise" or "consider". Results show that these effectively make the clause a useless control. Either stipulate the conditions under which the development can or cannot proceed or be honest about an unwillingness to control the development.
The lack of a comprehensive index is a problem with trying to use the dLEP. No doubt there are moves afoot to provide the index. We hope that plans are also well underway to ensure that computer search facilities are fully utilised to make the dLEP accessible: Thus, it should be possible for a developer, say, to type in the location of the proposed development and have the computer pull up material relevant to that location (and only to that location) which the developer can then progressively cull by adding more detail about the type of development proposed.
The major danger to the character and sustainability of the Shire's social and natural amenity is decision-making that does not consider cumulative impacts. Too often we witness decisions that allow a small overstepping of the mark as if each of these decisions do not matter. Every decision large or small does matter. Encroachment on public land, oversized developments, and the like are often not planned outcomes, but the result of an accumulation of small decisions that together produce an outrageous effect.
When this "incremental" destruction is added to the apparent incapability of Council to reverse blatant transgressions of controls, then planning becomes useless. We have implicitly pressed this point in several of the sections above.
We look forward to the opportunity to work further with you on the development of the People's LEP. We understand there will be a re-exhibition period once all submissions have been analysed and appropriate changes made.
Miriam Verbeek (Dr)