Part 4 Special provisions relating to the whole of the Shire

23   Replacement of existing dwelling-houses

A dwelling-house may, with the consent of the council, be erected on an allotment of land on which another dwelling-house is erected if the firstmentioned dwelling-house is intended to wholly replace the secondmentioned dwelling-house.

24   Dwelling-houses—dual occupancy

(1)  Subject to subclauses (2)–(7), a person may, with the consent of the council:

(a)  alter or add to a dwelling-house so as to create 2 dwellings on land within Zone No 1 (a), 1 (b), 1 (c), 2 (a), 2 (a1), 2 (a2), 2 (b), 2 (c), 5 (c), 7 (a) or 7 (b), or

(b)  erect a second dwelling-house on an allotment of land within Zone No 2 (a), 2 (a1), 2 (a2), 2 (b) or 2 (c).

(2)  The council shall not grant consent to an addition to a dwelling-house under subclause (1) unless the additional dwelling to be created will have a floor area not exceeding:

(a)  60 square metres, where the land has an area of less than 1,000 square metres, or

(b)  90 square metres, where the land has an area of 1,000 square metres or greater.

(3)  The council shall not grant consent to the erection of a second dwelling-house under subclause (1):

(a)  where the second dwelling-house is to be erected on an allotment of land which has an area of less than 4,000 square metres,

(b)  where the gross floor area of the second dwelling exceeds the gross floor area of the first dwelling by greater than 50 per cent,

(c)  unless the design of the building and its colour, texture, style and type of material finish is compatible with that of the first dwelling, or

(d)  unless adequate separation has been provided between the 2 dwellings so as to maintain privacy.

(4)  The council shall not grant consent pursuant to subclause (1) unless arrangements satisfactory to the council have been made for the provision of a water supply and for the disposal of sewage and stormwater drainage from the land.

(5)  The provisions of this plan relating to residential flat buildings do not apply to a dwelling-house altered or added to, or proposed to be altered or added to, in accordance with this clause.

(6)  Where, in accordance with this clause, a dwelling-house is altered or added to so as to create 2 dwellings, or where a second dwelling-house is placed on an allotment of land, the separate occupation of the several lots illustrated by a proposed strata plan relating to those dwellings is prohibited.

(7)  For the purpose of enabling development to be carried out in accordance with this clause or in accordance with a consent granted under the Act, in relation to development carried out in accordance with this clause, any agreement, covenant or instrument imposing restrictions as to the erection or use of buildings for certain purposes or as to the use of land for certain purposes, to the extent necessary to serve that purpose, shall not apply to the development.

24A   Exhibition gardens—restrictions

(1)  In determining an application for consent to the carrying out of development for the purpose of an exhibition garden the Council must take into account whether adequate provision has been made for:

(a)  all car and coach parking associated with the development, and

(b)  its operation between the hours of 8.00 am and 6.00 pm only, and

(c)  a limitation on the number of visitors to the exhibition garden in consideration of the impact of the development on the amenity of the neighbourhood, and

(d)  the capture and the treatment or reuse (or both) of all effluent water and stormwater runoff without any risk of contamination to any watercourse or ground water resource and in such a way as to ensure that there is no overall adverse impact on the quality of surface water or ground water, and

(e)  in the case of an exhibition garden on land zoned, or partly zoned, 1 (a), 1 (b), 1 (c), 5 (c), 7 (a) or 7 (b), the retention of existing, significant vegetation on that land.

(2)  Consent must not be granted for the carrying out of development for the purpose of an exhibition garden unless the Council places a condition on the consent that prohibits making available:

(a)  any foodstuffs (whether for sale or free of charge), and

(b)  any beverages for sale, and

(c)  in the case of an exhibition garden on land zoned 5 (c), any beverages free of charge,

      in connection with a public inspection of the exhibition garden, from the site of the exhibition garden or its associated dwelling-house.

(3)  Any off-site signage in relation to an exhibition garden may be erected only with development consent granted in accordance with the Council’s Tourism Signage Policy (available for inspection at the office of the Council).

24B   Recreation gardens—restrictions

(1)  This clause applies to all land where development for the purpose of a recreation garden may be carried out.

(2)  Despite any other provision of this plan, a person may only operate a recreation garden if:

(a)  adequate and safe arrangements are in place to accommodate:

(i)  vehicular access to and from the recreation garden or associated dwelling-house, and

(ii)  vehicular parking associated with the recreation garden, and

(b)  activity associated with the recreation garden does not significantly interfere with the amenity of the neighbourhood by reason of the emission of noise, smoke, fumes or otherwise, and

(c)  no foodstuffs are made available for sale or free of charge, and no beverages are made available for sale or, in the case of a recreation garden on land zoned 5 (c), free of charge, at the site of the recreation garden or its associated dwelling-house in connection with a public inspection of the recreation garden, and

(d)  in the case of a recreation garden in connection with the operation of which beverages are to be made available (in accordance with paragraph (c)), public amenities are provided that:

(i)  adequately satisfy the needs of visitors to the recreation garden, and

(ii)  pose no risk of contamination to any watercourse or groundwater resource, and

(e)  the recreation garden is open for public inspection between the hours of 8.00 am and 6.00 pm only.

25   Bed and breakfast establishments

A person may carry out development on land within Zone No 1 (a), 1 (b), 1 (c), 2 (a), 2 (a1), 2 (a2), 2 (b), 2 (c), 5 (c), 7 (a) or 7 (b) for the purposes of a bed and breakfast establishment, but only if:

(a)  in the opinion of the council, the premises would, if they were boarding-houses, be licensed by the council as a boarding-house under Ordinance 42 of the Local Government Act,

(b)  provision is made on the land for a number of vehicular parking spaces equal to the sum of:

(i)  1 space for each 2 travellers to be accommodated in the establishment, and

(ii)  1 space for the occupant of the dwelling-house, and

(c)  the advertising structures to be placed on the land indicating the purpose for which the premises on the land are to be used:

(i)  are limited in number to one, and

(ii)  do not contain a sign which has a maximum total area greater than 1 square metre.

26   Height of buildings

(1)  This clause does not apply to residential flat buildings.

(2)  A person shall not erect a building having more than 2 storeys above ground level except with the consent of the council.

27   Protection of heritage items, heritage conservation areas and relics

(1) Where is consent required?
The following development may be carried out only with development consent:

(a)  demolishing or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area,

(b)  altering a heritage item or a building, work, relic, tree or place within a heritage conservation area by making structural or non-structural changes to its exterior, such as to its detail, fabric, finish or appearance,

(c)  altering a heritage item by making structural changes to its interior,

(d)  disturbing or excavating a place of Aboriginal heritage significance or an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(e)  moving the whole or part of a heritage item,

(f)  erecting a building on, or subdividing, land on which a heritage item is located or which is within a heritage conservation area.

Note. Provisions relating to the conservation of the Joadja site are included in Part 5.

(2) What exceptions are there?
Development consent is not required by this clause if:

(a)  in the opinion of the consent authority:

(i)  the proposed development is of a minor nature or consists of maintenance of the heritage item or of a building, work, archaeological site, tree or place within a heritage conservation area, and

(ii)  the proposed development would not adversely affect the significance of the heritage item or heritage conservation area, and

(b)  the proponent has notified the consent authority in writing of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development will comply with this subclause and that development consent is not otherwise required by this plan.

(3)  Development consent is not required by this clause for the following development in a cemetery or a burial ground if there will be no disturbance of human remains, to relics in the form of grave goods or to a place of Aboriginal heritage significance:

(a)  the creation of a new grave or monument,

(b)  an excavation or disturbance of land for the purpose of carrying out conservation or repair of monuments or grave markers.

(4) What must be included in assessing a development application?
Before granting a consent required by this clause, the consent authority must assess the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

Note. The website of the Heritage Branch of the Department of Planning has publications that provide guidance on assessing the impact of proposed development on the heritage significance of items (for example, Statements of Heritage Impact).

(5) What extra documentation is needed?
The assessment must include consideration of a heritage impact statement that addresses at least the following issues (but is not to be limited to assessment of those issues, if the heritage significance concerned involves other issues). The consent authority may also decline to grant such a consent until it has considered a conservation management plan, if it considers that a development proposed should be assessed with regard to such a plan.

(6)  The minimum number of issues that must be addressed by the heritage impact statement are:

(a)  for development that would affect a heritage item:

(i)  the heritage significance of the item as part of the environmental heritage of Wingecarribee, and

(ii)  the impact that the proposed development will have on the heritage significance of the item and its setting, including any landscape or horticultural features, and

(iii)  the measures proposed to conserve the heritage significance of the item and its setting, and

(iv)  whether any archaeological site or potential archaeological site would be adversely affected by the proposed development, and

(v)  the extent to which the carrying out of the proposed development would affect the form of any historic subdivision, and

(b)  for development that would be carried out in a heritage conservation area:

(i)  the heritage significance of the heritage conservation area and the contribution which any building, work, relic, tree or place affected by the proposed development makes to this heritage significance, and

(ii)  the impact that the proposed development would have on the heritage significance of the heritage conservation area, and

(iii)  the compatibility of any proposed development with nearby original buildings and the character of the heritage conservation area, taking into account the size, form, scale, orientation, setbacks, materials and detailing of the proposed development, and

(iv)  the measures proposed to conserve the significance of the heritage conservation area and its setting, and

(v)  whether any landscape or horticultural features would be affected by the proposed development, and

(vi)  whether any archaeological site or potential archaeological site would be affected by the proposed development, and

(vii)  the extent to which the carrying out of the proposed development in accordance with the consent would have any effect on the historic subdivision pattern, and

(viii)  issues raised by any submission received in relation to the proposed development in response to the notification or advertising of the application.

28   Advertised development

The following development is identified as advertised development:

(a)  the demolition of a heritage item or a building, work, tree or place in a heritage conservation area,

(b)  the carrying out of any development allowed by clause 31B (conservation incentives).

29   (Repealed)

30   Development affecting places or sites of known or potential Aboriginal heritage significance

Before granting consent for development that is likely to have an impact on a place of Aboriginal heritage significance or a potential place of Aboriginal heritage significance, or that will be carried out on an archaeological site of a relic that has Aboriginal heritage significance, the consent authority must:

(a)  consider a heritage impact statement explaining how the proposed development would affect the conservation of the place or site and any relic known or reasonably likely to be located at the place or site, and

(b)  except where the proposed development is integrated development, notify the local Aboriginal communities (in such a way as it thinks appropriate) of its intention to do so and take into consideration any comments received in response within 21 days after the relevant notice is sent.

31   Development affecting known or potential archaeological sites or relics of non-Aboriginal heritage significance

(1)  Before granting consent for development that will be carried out on an archaeological site or a potential archaeological site of a relic that has non-Aboriginal heritage significance (whether or not it is, or has the potential to be, also the site of a relic of Aboriginal heritage significance), the consent authority must:

(a)  consider a heritage impact statement explaining how the proposed development will affect the conservation of the site and any relic known or reasonably likely to be located at the site, and

(b)  be satisfied that any necessary excavation permit required by the Heritage Act 1977 has been granted.

(2)  This clause does not apply if the proposed development:

(a)  does not involve disturbance of below-ground deposits and the consent authority is of the opinion that the heritage significance of any above-ground relics would not be adversely affected by the proposed development, or

(b)  is integrated development.

31A   Development in the vicinity of a heritage item

(1)  Before granting consent to development in the vicinity of a heritage item, the consent authority must assess the impact of the proposed development on the heritage significance of the heritage item and of any heritage conservation area within which it is situated.

(2)  This clause extends to development:

(a)  that may have an impact on the setting of a heritage item, for example, by affecting a significant view to or from the item or by overshadowing, or

(b)  that may undermine or cause physical damage to a heritage item, or

(c)  that will otherwise have any adverse impact on the heritage significance of a heritage item or of any heritage conservation area within which it is situated.

(3)  The consent authority may refuse to grant any such consent unless it has considered a heritage impact statement that will help it assess the impact of the proposed development on the heritage significance, visual curtilage and setting of the heritage item.

(4)  The heritage impact statement should include details of the size, shape and scale of, setbacks for, and the materials to be used in, any proposed buildings or works and details of any modification that would reduce the impact of the proposed development on the heritage significance of the heritage item.

31B   Conservation incentives

The consent authority may grant consent to the use for any purpose of a building that is a heritage item, or of the land on which such a building is erected, even though the use would otherwise not be allowed by this plan, if:

(a)  it is satisfied that the retention of the heritage item depends on the granting of consent, and

(b)  the proposed use is in accordance with a conservation management plan which has been endorsed by the consent authority, and

(c)  the granting of consent to the proposed use would ensure that all necessary conservation work identified in the conservation management plan is carried out, and

(d)  the proposed use would not adversely affect the heritage significance of the heritage item or its setting, and

(e)  the proposed use would not adversely affect the amenity of the surrounding area otherwise than to an insignificant extent.

31C   Development in heritage conservation areas

(1)  Before granting consent for the erection of a building within a heritage conservation area, the consent authority must be satisfied that the features of the proposed building will be compatible with the heritage significance of the heritage conservation area, having regard to the form of, and materials used in, buildings that contribute to the heritage significance of the heritage conservation area.

(2)  In satisfying itself about those features, the consent authority must have regard to at least the following (but is not to be limited to having regard to those features):

(a)  the pitch and the form of the roof (if any),

(b)  the style, size, proportion and position of the openings for windows and doors (if any),

(c)  the colour, texture, style, size and type of finish of the materials to be used on the exterior of the building.

31D   Bowral Landscape Conservation Area

A person must not carry out any development for the purposes of a hotel, motel or tourist facility on land shown distinctively edged with a heavy broken black line and designated “Bowral Landscape Conservation Area” on the map.

32   Acquisition and development of land within Zone No 6 (d), 9 (a) or 9 (b)

Note. Nothing in this clause is to be construed as requiring a public authority to acquire land—see section 27 (3) of the Act.

(1)  The owner of land within Zone No 6 (d), 9 (a) or 9 (b) may, by notice in writing, require:

(a)  in the case of land within Zone No 6 (d) or 9 (b)—the council, or

(b)  in the case of land within Zone No 9 (a)—the Roads and Traffic Authority,

      to acquire the land.

(2)  On receipt of a notice referred to in subclause (1) relating to land within Zone No 6 (d) or 9 (b), the council shall acquire the land.

(3)  On receipt of a notice referred to in subclause (1) relating to land within Zone No 9 (a), the Roads and Traffic Authority must acquire the land if:

(a)  the land is vacant, or

(b)  the land is not vacant but:

(i)  the land is included in a 5 year works program of the Authority or such other works program of the Authority as has been publicly notified by the Authority, or

(ii)  the Authority has decided not to give concurrence to an application for consent to the carrying out of development on the land, or

(iii)  the Authority is of the opinion that the owner of the land will suffer hardship if the land is not acquired within a reasonable time,

      but the Authority is not required to acquire the land if it might reasonably be required to be dedicated under section 94 of the Act as a condition of consent to a development application.

(4)  A person may, with the consent of the council, carry out development on land within Zone No 9 (a), not being land that is included in a works program referred to in subclause (3) (b) (i) for a purpose for which development may be carried out on land in an adjoining zone.

(5)  (Repealed)

(6)  Land acquired under this clause may be developed, with the consent of the council, for any purpose, until such time as it is required for the purpose for which it was acquired.

(7)  In this clause:

vacant land means land on which, immediately before the day on which a notice under subclause (1) is given, there were no buildings, other than fences, greenhouses, conservatories, garages, summer houses, private boat houses, fuel sheds, tool houses, cycle sheds, aviaries, milking bails, hay sheds, stables, fowl houses, pig sties, barns or the like.

33   Community use and other use of certain sites

(1)  This clause does not apply to land zoned 6 (a) (Open Space (Existing Recreation) Zone) or 8 (a) (Existing National Parks and Nature Reserves Zone).

(2)  Where land to which this plan applies is owned by the State government or a council and is not used for the purposes of a school, college or other educational establishment, the land may, with the consent of the council:

(a)  be used by a non-profit community organisation for a community use for no more than 12 days in any calendar year, or

(b)  be used for a commercial operation for no more than one day in any calendar year.

(3)  Where land to which this plan applies is used for the purposes of a school, college or other educational establishment, the land may, with the consent of the council:

(a)  be used for a community use, or

(b)  be used for a commercial operation, or

(c)  be developed for any community purpose, whether or not the development is ancillary to the purposes of a school, college or other educational establishment.

(4)  The council must not grant consent to development under this clause unless the council is satisfied:

(a)  that there is an on-site effluent management system that has sufficient capacity to cater for peak loads generated by the development and that the system will operate effectively, and

(b)  that stormwater run-off from the site will be appropriately collected and treated.

(5)  This clause applies despite any other provision of this plan.

34   Potentially flood affected land

(1)  In this clause, land potentially affected by flooding means land that the Council considers is subject to a one percent probability flood event.

(2)  For the purposes of this clause, a one percent probability flood event means the flood resulting from rainfall falling on a catchment equal to the 1 in 100 year Design Rainfall as derived from Australian Rainfall and Runoff, revised edition 1987, published by The Institution of Engineers, Australia.

(3)  The Council may consent to the carrying out of development on land potentially affected by flooding only after it has made an assessment of:

(a)  the extent and nature of the flood characteristics of the land,

(b)  the likely effect that the development will have on flood behaviour, including the flood peak at any point upstream or downstream of the site of the proposed development and the flow distribution of floodwater over adjoining land,

(c)  the risk of increase of the flood hazard or flood damage to any property that may arise from the proposed development,

(d)  the impact of the proposed development in terms of erosion, siltation and riverbank stability,

(e)  the structural sufficiency of any building the subject of the application for consent and its ability to withstand flooding,

(f)  the effect of the proposed development on the water table in the locality,

(g)  whether or not vehicular and pedestrian access to the site will be possible during a flood up to the level of a one percent probability flood event, and whether at least pedestrian access will be available to the site during a flood that exceeds the level of a one percent probability flood event,

(h)  whether the proposed development is likely to increase demand for assistance from emergency services during a flood,

(i)  the safety of buildings or works that will result from carrying out the proposed development and any of their occupants in time of flood, including matters relating to safe evacuation,

(j)  the effect of the proposed development on the capacity of floodways, as defined in the Council’s Floodplain Management Policy,

(k)  the provisions of the Council’s Floodplain Management Policy that relate to the proposed development,

(l)  the impact of flooding on on-site effluent disposal areas, wherever relevant, and

(m)  the likelihood of any conflict with a water supply system including inter-basin transfers.

(4)  The Council may decline to grant such a consent until it has considered such relevant information, data and reports as the Council considers necessary.

(5)  When granting an application for consent required by this clause, the Council may impose conditions that require filling, structural changes or additions or such other flood proofing measures to reduce the effects of flooding or to assist in emergency situations as are appropriate.

(6)  The Council must make copies of the Council’s Floodplain Management Policy available for inspection at the office of the Council during its office hours.

34A   Development for public purposes

Despite any other provision of this plan, development by or for the Council on land owned or controlled by the Council for the following purposes is development that does not need consent:

(a)  Bridges, staircases in public parks and recreation spaces with a maximum span of 5 metres.

(b)  Goal posts, sight screens and similar ancillary sporting structures on existing sporting or playing fields for use in sporting events (excluding grandstands, dressing sheds and other structures).

(c)  Park or street furniture, seats, bins, picnic tables, minor shelters.

(d)  Playground equipment on land classified as ‘community’.

(e)  Street signs comprising name plates, directional signs and advance traffic warning signs.

(f)  Chainwire fences around Council owned compounds and depots.

All such development to be in accordance with the Building Code of Australia and technical standards prescribed by law.

Note. Environmental Assessment under Part 5 of the Act is applicable to development under this clause.

35   (Repealed)

36   Provision of services

The council shall not consent to the carrying out of any development on an allotment of land if, as a result of the carrying out of that development, it will be necessary to provide potable water or sewerage and drainage facilities to the allotment unless it is satisfied that adequate arrangements have been made for the provision of that water or those facilities.

36A   Infrastructure development

(1)  This clause applies to all land under this plan, except for land within Zone No 8 (a).

(2)  Despite any other provision of this plan, the council may consent to the carrying out of development on the land to which this clause applies for the purpose of infrastructure, whether for private or public use.

(3)  In this clause:

infrastructure means the means through which the following services are provided: transport (including, but not limited to, road, rail, aviation or aerial, pedestrian, equine and cycle); bushfire hazard reduction; telecommunications; supply of water, hydraulic power, electricity or gas; sewerage or drainage; flood mitigation works.

37   Junk yards

A junk yard shall not be established on any allotment of land within 90 metres of any main road.

38   Advertising structures

(1)  A person may, with the consent of the council, erect an advertising structure, but only if:

(a)  the advertisement on or to be placed on the structure indicates or is to indicate the purpose for which the premises on the land are to be used, and

(b)  the advertising structure will not interfere with the amenity of the area in which it will be located.

(2)  A person must not use any public land or a public road for the purpose of parking a vehicle or trailer that includes or carries an advertising structure that is extraneous to the vehicle, that is, a structure that is not a standard fitting on a vehicle or trailer of that kind and that protrudes or extends beyond the ordinary shape of the vehicle or trailer.

38AA   Classification and reclassification of public land as operational land

(1)  The public land described in Schedule 9 is classified, or reclassified, as operational land for the purposes of the Local Government Act 1993, subject to this clause.

(2)  Land described in Part 1 of Schedule 9:

(a)  to the extent (if any) that the land is a public reserve, does not cease to be a public reserve, and

(b)  continues to be affected by any trusts, estates, interests, dedications, conditions, restrictions or covenants by which it was affected before its classification, or reclassification, as the case requires, as operational land.

(3)  Land described in Columns 1 and 2 of Part 2 of Schedule 9, to the extent (if any) that it is a public reserve, ceases to be a public reserve on the commencement of the relevant amending plan and, by the operation of that plan, is discharged from all trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land except those specified opposite the land in Column 3 of Part 2 of Schedule 9.

(4)  In this clause, the relevant amending plan, in relation to land described in Part 2 of Schedule 9, means the local environmental plan cited at the end of the description of the land.

(5)  Before the relevant amending plan inserted the description of land into Part 2 of Schedule 9, the Governor approved of subclause (3) applying to the land.