Agenda of Special City Planning Committee Meeting

Item No. 2.1.1

Agenda (Open Portion)

Special City Planning Committee Meeting

Page 8

6/2/2017

REPORT TITLE: Hobart Interim Planning Scheme 2015 - Planning Scheme Amendment 6/2016 and S43A permit application - 191 & 199 New Town Road, New Town - Consideration of Representations

REPORT PROVIDED BY: Manager Planning Policy and Heritage

Director City Planning

1. Report Purpose and Community Benefit

1.1. The purpose of this report is to discuss the merits of two representations received during the public exhibition of Hobart Interim Planning Scheme 2015 amendment 6/2016 and associated S43A permit at 191 & 199 New Town Road, New Town (Attachment C).

1.2. The proposed amendment is to rezone the title at 199 New Town Road from Inner Residential to Urban Mixed Use (Attachment A), and the permit is for ‘partial demolition, new building for hotel industry (bottle shop), signage, alterations and extensions to carparking and access and consolidation of titles’ (Attachment B).

1.3. Recommendations to the Tasmanian Planning Commission (TPC) regarding the need for any modifications to the amendment or S43A permit as a result of the representations are considered.

1.4. The proposal benefits the community by ensuring that land is appropriately zoned, that development is undertaken in a fair and orderly manner, and that public consultation has been considered.

2. Report Summary

2.1. The purpose of the report is to consider two representations received in relation to the exhibition of a planning scheme amendment and concurrent S43A permit for rezoning and a bottle shop development.

2.2. The representations raised concerns relating to the rezoning itself, the physical development associated with the bottle shop, noise and hours of operation issues and traffic and access issues.

2.3. Each concern is responded to in detail, and it is concluded that while no changes to the rezoning are considered justified, amendments to the S43A permit to address some of the concerns of representors would result in an improved outcome.

2.4. It is proposed that Council recommend to the TPC that the planning scheme amendment is approved as certified, and that the S43A permit be amended to include one additional condition and two additional advice clauses.

3. Recommendation

That:

1. Pursuant to Section 39(2) of the former provisions of the Land Use Planning and Approvals Act 1993, the Council endorse this report as the formal statement of its opinion as to the merit of the representations received during the exhibition of the draft 6/2016 amendment and S43A permit.

2. Pursuant to Section 39(2) of the Land Use Planning and Approvals Act 1993, the Council recommend to the Tasmanian Planning Commission that the 6/2016 Amendment to the Hobart Interim Planning Scheme 2015 be approved as certified.

3. Pursuant to Section 39(2) of the Land Use Planning and Approvals Act 1993, the Council recommend to the Tasmanian Planning Commission that the S43A permit (PLN-16-00655-01) be amended by including the following condition and advice:

Condition

PLNs1

Noise generated by the operation of the bottle shop, use of the delivery bay and lockable trolley cages must not cause environmental harm when measured at the north-eastern boundary of the site.

Measures to reduce the potential for noise emanating from the delivery bay and trolley cage area at the north-eastern corner of the site towards adjacent properties to the north/north-east must be incorporated into the overall development. Such measures may incorporate acoustic screens or similar to achieve a reduced noise impact, particularly for deliveries occurring during the evening or early morning.

Design drawings and/or details of the chosen method of reducing noise impact, supported by evidence from a suitably qualified person, must be submitted and approved prior to the issue of building consent for the development, with all works required to be implemented prior to the first use of the new development.

All work required by this condition must be undertaken in accordance with the approved drawings.

Advice: Once the drawing has been approved the Council will issue a condition endorsement (see general advice on how to obtain condition endorsement).

Reason for condition

To ensure noise emissions do not cause environmental harm and do not have an unreasonable impact on residential amenity.

Advice

AMENITY IMPACT

Noise, dust, odour or other pollutants emitted from any activities associated with the development must not unreasonably cause any disturbance, annoyance or nuisance to owners/occupiers in the vicinity and shall comply with the Environmental Management and Pollution Control Act 1994 and subsequent regulations.

RIGHT OF WAY

The private right of way must not be reduced, restricted or impeded in any way, and all beneficiaries must have complete and unrestricted access at all times. If the proposed development requires alteration in order to meet this requirement, any such change should be discussed and if necessary approved by Council prior to the submission of any plans for building consent.

You should inform yourself as to your rights and responsibilities in respect to the private right of way particularly reducing, restricting or impeding the right during and after construction.

4. Background

4.1. At its meeting of 7 November 2016, Council considered an application under the Land Use Planning and Approvals Act 1993 (LUPAA), from Pitt & Sherry on behalf of Findella Pty Ltd/Mantzis Holdings Pty Ltd, to amend the Hobart Interim Planning Scheme 2015 (HIPS 2015) by rezoning the property at 199 New Town Road from Inner Residential to Urban Mixed Use.

4.2. Pursuant to S43A of the former provisions of LUPAA, the planning scheme amendment application was combined with a planning permit application for ‘partial demolition, new building for hotel industry (bottle shop), signage, alterations and extensions to carparking and access and consolidation of titles’ (PLN-16-00655).

4.3. The planning permit was granted and the amendment certified, and both were placed on public exhibition on 17 November 2016 until 15 December 2016.

4.4. The exhibition process resulted in two representations being received within the statutory period. Copies of the representations are provided in Attachment C.

5. Proposal and Implementation

5.1. The proposal is to consider two statutory representations made in relation to planning scheme amendment 6/2016 and S43A permit PLN-16-00655).

5.2. The concerns raised in the representations can be summarised into four categories as follows:

Rezoning

5.2.1. The rezoning of 191 and 199 New Town Road expands the commercial footprint of the area by approximately 28%;

5.2.2. The expansion of the commercial element is contrary to the Inner Residential Zone Purpose Statements;

5.2.3. The rezoning of 199 New Town Road to Urban Mixed Use would adversely affect the amenity of the area;

5.2.4. The rezoning provides additional uses, less restrictive use standards for commercial uses and reduced consideration of residential scale and amenity through the development standards;

5.2.5. The purposes of the existing Inner Residential Zone are largely related to encouraging residential use and restricting commercial uses whereas the proposed zone, while providing for a mixture of uses, is focussed on commercial development;

5.2.6. The Inner Residential Zone only provides for commercial uses where they do not displace residential uses, whereas the Urban Mixed Use Zone provides permitted status for uses such as ‘Business and professional services’ and ‘Food services’ and discretionary status to a wide range of other non-residential uses;

5.2.7. While the proposed rezoning does not introduce a new zone into the area it will increase the number of residential properties that share a boundary with the commercial site;

5.2.8. Given all three titles are in common ownership, the increase in area of the Urban Mixed Use Zone provides for a scale of development which would not have been possible without the additional land being rezoned;

5.2.9. Although the current proposal for the rezoned area of land (199 New Town Road) is only for car parking, signage and landscaping, there is no limitation proposed in the amendment which prevents alternate proposals once the land is rezoned;

5.2.10. The scale of the site and the rezoned area encourages a scale of development which is contrary to the zone statements in the UMUZ to ‘encourage the retention of existing residential uses and the greater use of underutilised sites as well as the reuse and adaptation of existing buildings for uses with a scale appropriate to the site and area’.

Bottle shop development

5.2.11. The development of a large bottle shop building and associated facilities near a boundary will affect the amenity of both the residential and professional aspects of neighbouring properties;

5.2.12. The development does not demonstrate integration or harmony with surrounding buildings;

5.2.13. The substantial development on the boundary does not adequately demonstrate integration with neighbouring residential uses in accordance with the purpose of the zone to ‘provide for integration of residential, retail, community services and commercial activities in urban locations’;

5.2.14. The proposed development substantially expands the intensification of the ‘Hotel Industry’ to a proportion that is not consistent with the zone or with the surrounding areas;

5.2.15. The claim that the building is more than 10m from a residential zone is untrue, and therefore the development does not meet the acceptable solution for building height within 10m of a residential zone, and also does not meet the performance criteria requiring development to be compatible with the height of existing buildings and reduce visual impact when viewed from adjoining lots;

5.2.16. The adjoining residential dwelling at 8/12 Risdon Road is located within the Urban Mixed Use Zone, however a significant part of the property is within the Inner Residential zone and therefore the property is still considered to be a residential property in a residential zone;

The large wall proposed very close to the shared boundary with this dwelling is of substantial height given its minimal setback in close proximity to an existing dwelling. The area of the dwelling most affected is a habitable living room with 3 highlight windows providing afternoon sunlight and mountain views across the development site;

5.2.17. The token narrow strip of lawn dividing the development from the closest boundary will be an area that will be difficult to maintain. If unable to be maintained, this would impact on neighbouring residential amenity;

5.2.18. Should the ‘bizarrely out-of-proportion development’ be allowed to proceed, the warehouse/bottle shop and associated facilities should be located as far from the boundaries of adjacent properties as possible to demonstrate natural justice towards ratepayers who have for many years ‘striven to enhance the residential amenity, rather than to destroy it’;

5.2.19. There has been no consideration of the impact on adjacent properties and Council should reject the proposal.

Noise and hours of operation

5.2.20. The loading bay and lockable trolley cage are in close proximity to the neighbouring dwelling where noise and other impacts have the potential to substantially impact on amenity;

5.2.21. While the proposed development claims it meets the noise emissions acceptable solution as the operation is not noisy and delivery trucks will operate within the permitted standard, there was not a noise report which details potential noise from the site;

5.2.22. Given commercial vehicles can start from 7am and the hours of operation hours until 10pm will presumably include use of the trolley cage, it appears unlikely the noise provision will be met, particularly outside daytime hours where the potential impact on residential amenity is greater;

5.2.23. The layout of the development, particularly the location of the potentially impacting elements, have not adequately considered or addressed the noise standard.

Traffic and access

5.2.24. 19m semi-trailer trucks operating outside of normal operating hours, including performing reversing manoeuvres across all lanes of Risdon Road, will impact on residential amenity;

5.2.25. It appears the application includes car parking and retaining wall structures that encroach on a right-of-way benefiting 8/12 Risdon Road.

5.3. Detailed responses to the concerns raised are as follows:

Rezoning

5.3.1. The rezoning does extend the area of land within the Urban Mixed Use Zone (UMUZ), which allows for a greater range of uses than the Inner Residential Zone (IRZ).

5.3.2. However, given the site constraints of the parcel to be rezoned (the high voltage transition tower and wayleave easement over the majority of the site), the actual development potential of this area is very limited, even under the UMUZ.

5.3.3. Very little built development could occur on the rezoned area of land. The rezoning essentially accommodates only car parking and access related to the development of the adjacent land in common ownership, which is already in the UMUZ. Without the rezoning, carparking and access for a commercial use would be prohibited on 199 New Town Road and would have to be contained within 191 New Town Road.

5.3.4. It is considered that allowing for the consolidation of access and parking over the rezoned area allows for improved access outcomes for an existing commercial site, which is a reasonable outcome. This is particularly the case given the current Inner Residential zoning of 199 New Town Road effectively sterilises the site of development potential.

5.3.5. It is accepted that the rezoning does increase the ability for the site to be utilised, and this has more potential to affect amenity compared to a vacant site. It is reasonable, however, to allow for a well-located parcel of land that is currently unusable to be utilised in some form.

5.3.6. One representation raises concerns that the expansion of the ‘commercial footprint’ of the area ‘runs contra to the existing uses’ as outlined by the IRZ purpose statement 11.1.1.6, which limits displacement of existing residential uses and considers amenity.

Given the proposal is to rezone the site to the UMUZ, however, the IRZ purpose statements are not a relevant consideration.

5.3.7. Concerns are also raised that the IRZ largely relates to encouraging residential use and restricting commercial uses, whereas the Urban Mixed Use Zone focuses on commercial development.

This is not considered to be the case, as the Zone Purpose Statements of the UMUZ include encouraging the retention of existing residential uses and maintaining an appropriate level of residential amenity (without unreasonable restriction or restraint to commercial activities). The zone is considered to have a true ‘mixed use’ focus, although this does mean it is less residentially focussed than the IRZ.

5.3.8. It is accepted that the UMUZ provides for additional uses and more relaxed use and development standards compared to the IRZ. However, given the proximity of the rezoned site to existing Urban Mixed Use land and the significant restrictions on the site for any built development, this is not seen to be an unreasonable outcome for neighbouring properties.

5.3.9. Concerns are raised that while the rezoning does not introduce a new zone to the area, it will increase the number of residential properties that share a boundary with the zone, and that given all three titles are in common ownership the increase in the UMUZ area provides for a scale of development that would otherwise not be possible without the rezoning.

The rezoning does increase the number of residential titles that share a boundary with the UMUZ. However, the UMUZ contains provisions specifically relating to building height, setbacks and landscaping in close proximity to residential zones. In addition, the wayleave easement will continue to preclude built development on 199 New Town Road in any instance, which will provide an open space ‘buffer’ between residential properties to the north-west and new buildings within the UMUZ.

5.3.10. The presence of the easement also disputes the claim by one representor that that although the current proposal for the rezoned area is for car parking, signage and landscaping, there is ‘no limitation proposed in the amendment which prevents alternate proposals once the land is rezoned’, and that the scale of the site encourages a scale of development inappropriate to the site and area.

In practical terms, due to the existing site constraints of 199 New Town Road, there are very few alternative uses for the site other than what is proposed in the S43A development application.

5.3.11. Without the rezoning component, the development could still have been submitted in a very similar form, but with reduced car parking and less efficient access, which could in fact have resulted in greater amenity impacts to neighbouring properties.

5.3.12. Overall, it is not considered that the rezoning of 199 New Town Road itself introduces the opportunity for an unreasonable increase in amenity impacts on neighbouring properties.

Bottle shop development

5.3.13. The current proposal has been assessed as acceptable in terms of setbacks from adjoining properties and in terms of impact upon residential amenity, the protection of which is limited given applicable development standards and the immediately adjacent zones and uses. The proposal is consistent with the purpose of the Urban Mixed Use Zone given the existing character and mix of uses in the surrounding area.

5.3.14. As proposed, the development demonstrates compliance with Zone standards for setbacks and height where abutting adjoining properties, some of which are within residential zones. A setback discretion occurs in terms of the development’s distance from front boundaries on New Town and Risdon Roads. As the site of the proposed building exhibits some cross-slope and is lower than the surrounding street levels and in parts lower than adjacent properties, the overall scale of the proposed building in terms of height would be reduced relative to existing buildings on adjacent properties.

5.3.15. Whilst there is no doubt that the proposed building is located within 10m of a residential zone, the scheme simply limits the height of buildings within 10m of a residential zone. The proposed building demonstrates compliance with the acceptable height limit of 8.5m where within 10m of a residential zone, and as such is not subject to assessment against the corresponding performance criteria.

5.3.16. The adjacent dwelling on the 8/12 Risdon Road strata lot is a residential use within the Urban Mixed Use Zoned portion of 12 Risdon Road. The remainder of 12 Risdon Road is zoned Inner Residential, however no part 12 Risdon Road within the Inner Residential Zone abuts the subject site. As such development standards applicable to adjacent residential zones do not apply to 8/12 Risdon Road. There are no relevant standards controlling setbacks to another property within the same zone.

5.3.17. The maintenance of any landscaping around the site as well as the associated car park would be the responsibility of the landowner.

5.3.18. Any relocation of the proposed building on the site would warrant a new planning application.

Noise and hours of operation

5.3.19. The proposal incorporates a new Hotel Industry use upon a site with a long history of commercial use within a defined commercial hub. There are minimal adjacent residential properties and in an overall sense, residential amenity in the area would to some extent be already secondary to the operation of existing commercial uses. As an example, the existing Kmart opposite on Risdon Road has a 24 hour operation. The Maypole hotel on the same site would reasonably operate to at least the hours proposed for the operation of the bottle shop.

5.3.20. The proposed development essentially backs onto adjoining properties given the corner nature of the subject site and the positioning of the existing Maypole Hotel and carpark. Although introducing what is likely to become a busier operation to the site, the positioning of the new building would act to provide a shield to the closest residential properties. The proposed use is not considered a particularly noisy one. In this case the main noise of the operation of the site would be focused towards the middle of the subject site and would mostly be linked to vehicle movements, which outside of normal business hours would likely be reduced.

5.3.21. Opening until 10pm seven days per week is not atypical of other bottle shops throughout the state.

5.3.22. The proposal originally stated that the acceptable noise limit standards for non-residential use in the Urban Mixed Use Zone would be met by the development, particularly with regard to commercial vehicle movements which would be limited to the specified acceptable times.

Nevertheless as a result of the assessment of traffic movements through the site by large delivery vehicles by the Council’s Manager Traffic Engineering, a condition was included that requires delivery vehicles greater than 12.5m in length to make deliveries outside of operating hours between closing time each day and 7.30am the following morning. This requirement was included to address conflicts between large trucks passing through the site impacting on potentially occupied parking spaces during operating hours, and to ensure that impacts on traffic flows on Risdon Road were limited to less busy periods. Larger vehicles were shown in vehicle movement information to need to encroach out onto the roadway whilst manoeuvring into the loading bay of the proposed building.

Complying with this condition means that the development could not fully meet the relevant acceptable solutions as originally claimed.

5.3.23. It should be noted however that the submitted Traffic Impact Assessment states that during normal trading periods 12.5m fixed axle trucks will be used for all deliveries, so the abovementioned condition does not restrict their use during normal trading hours.

Given deliveries by such vehicles will be the most regularly occurring, it is expected the majority of deliveries to the site will occur during or either side of normal operating hours, and the application’s statement that the proposal will comply with the scheme requirements for noise and commercial vehicle movements is therefore for the most part likely to be accurate. The submitted TIA also states that 19m semi-trailers would only be used during peak periods only (i.e Christmas, sporting finals etc.) and would not be at the site on normal day to day operations. As such, potential amenity and traffic impacts caused by larger delivery vehicles would be minimised.

5.3.24. The delivery bay, and also the trolley cage for the proposed development are located clear of any adjacent residential use, closer to Risdon Road along the north-eastern side boundary of the site, where there is also a landscaped grass area atop a retaining wall.

5.3.25. The ground level inside the development site, particularly where closest to the delivery bay door would be lower than the properties immediately adjacent to the north-east. Given the confined area proposed for deliveries in one corner of the site close to Risdon Road, and not immediately adjacent to any residential dwelling, it is not expected that noise produced by out of hours deliveries would unreasonably impact any existing residential amenity in the area.

Nevertheless, given the proposal to include retained grassed areas between the delivery area and the north-eastern property boundary, there is additional scope to include noise reducing structures or even screen planting if deemed necessary and effective.

Taking all of the above into account, and in order to reduce the potential for noise impacts towards adjacent properties and assist in reducing the concerns of representors, it is recommended that a condition be placed on the permit to require an acoustic screen or similar to be installed between the loading bay of the proposed building and the adjacent lockable trolley cage and the north-eastern side boundary of the subject site, in the area detailed for landscaping with low maintenance grass.

The screen would need to be demonstrated to assist in reducing the extent of noise emanating from the loading bay and trolley cage area, with final details to be submitted to the Council’s satisfaction prior to the issue of building consent for the development. The screens would need to be installed prior to the first use of the building.

The following condition is considered appropriate:

Noise generated by the operation of the bottle shop, use of the delivery bay and lockable trolley cages must not cause environmental harm when measured at the north-eastern boundary of the site.

All work required by this condition must be undertaken in accordance with the approved drawings.

Advice: Once the drawing has been approved the Council will issue a condition endorsement (see general advice on how to obtain condition endorsement).

Reason for condition

To ensure noise emissions do not cause environmental harm and do not have an unreasonable impact on residential amenity.

5.3.26. Additional general advice should also be added on the permit regarding noise impact:

Traffic and access

5.3.27. As mentioned previously, the use of 19m semi-trailer trucks for deliveries to the site would not be a regular occurrence. The impact of the use of such delivery vehicles upon the surrounding road network and traffic flows has been considered in detail by the Council’s Manager Traffic Engineering. A condition has previously been included which limits the time of day such delivery vehicles can visit the site in order to reduce the potential for disruption of traffic flows and the operation of the site. With this condition, and others suggested above to manage noise impacts, overall amenity impacts should not be unreasonable.

5.3.28. The proposed carparking under the wayleave easement across 199 New Town Road does appear to encroach part-way into an existing 3.0m wide private right-of-way from New Town Road benefitting the adjacent property at 8/12 Risdon Road. This was not previously identified in the assessment of the proposal.

Ideally a matter such as this could have been addressed prior to the advertising and determining of an application, however the standard approach is to apply advice to any permit granted to highlight the responsibilities of landowners with regard to right-of-ways. Access over such a right-of-way cannot legally be prevented by the owner of the land. Ultimately it is a matter for the landowner to address.

It may be that adjustments to the parking arrangement will need to be made in order to preserve this right-of-way. Given the proposal is well in excess of required parking numbers some loss of parking through parking layout adjustment could be absorbed into any approval granted for the development. The acceptability of any such change will be at the discretion of Council.

5.3.29. The following advice should be added to the previously compiled and endorsed permit:

You should inform yourself as to your rights and responsibilities in respect to the private right of way particularly reducing, restricting or impeding the right during and after construction.

5.4. Given the reasons stated above, it is not considered that the concerns raised in the two representations received are sufficient to warrant changes to the amendment component of the proposal. In terms of the S43A permit component, it is recommended that one additional condition be added to the permit relating to acoustic screening on the north-eastern boundary, and two advice clauses be added relating to environmental nuisance and not impeding the right of way over 199 New Town Road.

6. Strategic Planning and Policy Considerations

6.1. The proposal is consistent with the objectives of the Capital City Strategic Plan 2015-2025 in regard to Strategic Objective 2.3 – ‘City and regional planning ensures quality design, meets community needs and maintains residential amenity’.

7. Financial Implications

7.1. The proposal should not result in any additional significant Council expenditure.

8. Legal, Risk and Legislative Considerations

8.1. The proposed planning scheme amendment, including the reporting process on representations which is the subject of this report, will be subject to the usual amendment process under LUPAA.

9. Environmental Considerations

9.1. There are no additional environmental considerations relating to this report.

10. Social and Customer Considerations

10.1. The proposal is not considered to have any negative impact on social inclusion.

11. Marketing and Media

11.1. There are no marketing or branding implications of this proposal.

12. Community and Stakeholder Engagement

12.1. This report considers the results of a 28 day public consultation process. The two representations would indicate a reasonably low level of community concern about the proposed amendment and permit. This report gives Council the opportunity to recommend to the TPC modifications or refusal of the permit or amendment in response to community feedback.

13. Delegation

13.1. Delegation rests with the Council.

As signatory to this report, I certify that, pursuant to Section 55(1) of the Local Government Act 1993, I hold no interest, as referred to in Section 49 of the Local Government Act 1993, in matters contained in this report.

James McIlhenny Signature

James McIlhenny

Manager Planning Policy and Heritage

Neil Noye Signature

Neil Noye

Director City Planning

Date: 2 February 2017

File Reference: F16/140711

Attachment a: Attachment A - Amendment Document ⇩

Attachment b: Attachment B - S43A Permit ⇩

Attachment c: Attachment C - Representations ⇩

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