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Email Link   Emerging Matters of Interpretation - Tweed LEP 2014

Tweed Local Environmental Plan 2014 came into effect on 4 April 2014.

The LEP was prepared in the format of the NSW State Government's Standard Instrument Template. This template introduced many new clauses, zones and definitions that were not previously contained in the Tweed Local Environmental Plan 2000.

As with any new statutory instrument, there has been some querying of interpretation of the new LEP raised through development enquiries and development applications lodged with Council. In some instances, the complexity and uncertainty of these matters will require further investigation and determination through Land and Environment Court proceedings.

Based on a suggestion at a recent Local Consultants Breakfast Forum, it is recognised that it would assist our local consultants and other people making development enquiries if we created a new information page which provides updated information on advice provided by Council officers in the interpretation of the more common and complex LEP 2014 matters.

In providing this advice, it is stressed that this information is provided in good faith and is not a definitive, legally bound source, and that people making any decisions on this matters, should also seek their own advice from suitably qualified persons.

Council strongly suggests that you contact its Development Assessment and Compliance and Building and Environmental Health Units regarding any potential development and property enquiries at an early stage of any development process.

Emerging Matters of Interpretation

Waterway Zone Uses

With the adoption of TLEP 2014 and zoning of the waterways, Council has received a number of enquiries from the proponents of water recreation businesses as to the requirements for development consent and permissibility of activities, such as kayak and boat hire on Council's waterways and launching from public reserves.

Given the complexity of interpreting the new LEP controls, legal advice has been sought and a review has been undertaken regarding how to administer and regulate the commercial use of waterways and public space regarding recreation involving non-motorised watercraft. This has led to the preparation of a report for the 11 December 2014 Council Meeting, seeking Council endorsement to publicly exhibit a new Draft Policy to guide future development enquiries.

Please view a copy of the Draft Report (129kB PDF) and Council Resolution (262kB PDF).

New Standards for Tourist Accommodation in RU2 Zone

Tweed LEP 2000 permitted a range of tourist based accommodation types in the 1(a) Rural zone, with only limited development controls.

However, the State Government's Standard Instrument Template LEP introduced a more onerous set of development standards for "Eco-tourist facilities". These standards have been incorporated in Clause 5.13 of the Tweed LEP 2014. Eco-tourist facilities are permitted in the RU2 zone, whilst the range of other permissible tourist accommodation options is more limited than Tweed LEP 2000.

Proponents for eco-tourist developments will need to address the requirements of Clause 5.13 in any DA lodged with Council.

Holiday Letting in Tweed Coastal Areas

The issue of holiday letting has generated major interest for many NSW coastal councils, including the Tweed.

Under the Tweed LEP 2000, short-term accommodation use was defined as "Tourist Accommodation", and was permitted with consent in the 2(e) and 2(f) tourist based zones, as well as other residential zones. Under the Standard Instrument Template LEP, the former 2(e) and 2(f) zoned have been removed, which necessitated these zones to be adapted to a R2 Low Density Residential zone. Based on prevailing State Government policy direction, the new Tweed LEP 2014 definition of ‘Tourist and Visitor Accommodation’ is prohibited in the R2 zone. This includes the short-term, holiday let operations.

A number of DA's for dual use residential/tourist accommodation use that were lodged before the commencement of LEP 2014 on 4 April 2014 were approved by Council under the provisions of Tweed LEP 2000.

There has since been a broader debate as to the merits of allowing shorter term tourist letting in the Tweed Coast areas. As a result of this debate, Council resolved the following at its meeting of 19 June 2014:

  1. A report be submitted to a future Council meeting which provides the scope for the preparation of a holiday letting strategy paper suitable for public exhibition, similar to that recently prepared for Byron Shire Council, which identifies suitable holiday letting areas in the Tweed Shire, as well as a range of appropriate planning mechanisms needed to support this strategy;
  2. The report also includes areas that are not suitable for holiday letting in those areas which holiday letting is permitted;
  3. This project be afforded a Priority 1 status along with other projects within the Planning Reforms Works Program; and
  4. Holiday Rentals be submitted as an issue for consideration at the Local Government NSW State Conference in October 2014."
It is expected that a report will be submitted back to Council in early 2015 which provides Council with a series of options to consider.

Byron Council is also currently considering a policy position on shorter term tourist accommodation.

Tweed City Centre LEP and Design Excellence Guidelines

With its origins in the NSW State Government's Cities Taskforce Program, a new LEP, DCP and Vision were created and ultimately adopted and approved by Council and the State Government. As part of the gazette Tweed City Centre LEP, Clause 6.10 was included to require an architectural design competition to be held prior to the development of major sites in the Tweed City Centre area. The clause has the following effect for the identified sites and developments:
  • Applies to development involving the erection of a new building or external alterations to an existing building.
  • Development consent must not be granted unless the development exhibits design excellence.
  • The Director-General may waive competition requirement on request.
  • Development consent must not be granted, unless:

    • there has been an architectural design competition;
    • it is consistent with the Design Excellence Guidelines (NSW P&E);
    • it relates to a proposed development with a capital value of more than $2,000,000 on land identified as “Key Sites” on the Key Sites Map;
    • is in respect of a building that is, or will be, higher than 35 metres, or
    • the applicant has chosen to have a competition, for any development.
  • Development consent may be granted for the erection or alteration of a building on land to which this clause applies that has a floor space ratio of up to 10% more than that allowed by clause 4.4 or a height of up to 10% higher than that allowed by clause 4.3 (or both)
Following the adoption of the LEP, it was recognized that the Department's Design Excellence Guidelines were quite limited in detail. Council therefore endorsed the preparation and adoption of Council's own Guidelines for applicants to consider as an alternative. It is important to note that:
  • Council's Guideline has no legislative standing or force and doesn’t require architectural design competitions – the Tweed City Centre LEP 2012 contains the legal provisions triggering a architectural design competition;
  • The Guideline solely exists to establish a clearer process of how a design competition might or could be run - it doesn’t prescribe any ‘awards’ or ‘prize money’ – the Proponent establishes the fees they are willing to pay;
  • The Guideline is to assist Council staff and proponents - it doesn’t establish a layer of ‘red tape’ – the Guideline provides guidance on a relatively new process to the Tweed, it does not introduce that process. Should the proponent wish to undertake an architectural design competition in an alternative format, that is open to them; and
  • The Guideline supplements the NSW Planning & Environment - Director General's Design Excellence Guidelines - It doesn’t prevent an application waive the LEP requirement for an architectural design competition from NSW Planning and Environment – this provision is contained within the Tweed City Centre LEP 2012 and the DPE Guideline.
Council resolved at its meeting of 2 October 2014 to endorse the Design Excellence Guidelines.
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