Tweed Local Environmental Plan 2014
Current version for 1 July 2020 to date (accessed 7 July 2020 at 17:15)
Part 7
Part 7 Additional local provisions
7.1   Acid sulfate soils
(1)  The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.
(2)  Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.
Class of land
Works
1
Any works.
2
Works below the natural ground surface.
Works by which the water table is likely to be lowered.
3
Works more than 1 metre below the natural ground surface.
Works by which the water table is likely to be lowered more than 1 metre below the natural ground surface.
4
Works more than 2 metres below the natural ground surface.
Works by which the water table is likely to be lowered more than 2 metres below the natural ground surface.
5
Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.
(3)  Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority.
(4)  Despite subclause (2), development consent is not required under this clause for the carrying out of works if—
(a)  a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and
(b)  the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works.
(5)  Despite subclause (2), development consent is not required under this clause for the carrying out of any of the following works by a public authority (including ancillary work such as excavation, construction of access ways or the supply of power)—
(a)  emergency work, being the repair or replacement of the works of the public authority, required to be carried out urgently because the works have been damaged, have ceased to function or pose a risk to the environment or to public health and safety,
(b)  routine maintenance work, being the periodic inspection, cleaning, repair or replacement of the works of the public authority (other than work that involves the disturbance of more than 1 tonne of soil),
(c)  minor work, being work that costs less than $20,000 (other than drainage work).
(6)  Despite subclause (2), development consent is not required under this clause to carry out any works if—
(a)  the works involve the disturbance of less than 1 tonne of soil, and
(b)  the works are not likely to lower the water table.
(7)  Despite subclause (2), development consent is not required under this clause for the carrying out of works for the purpose of agriculture if—
(a)  a production area entitlement is in force in respect of the land when the works are carried out, and
(b)  the works are carried out in accordance with a drainage management plan, and
(c)  the works are not carried out in respect of a major drain identified on the Acid Sulfate Soils Map, and
(d)  the works are not carried out on land identified as “coastal wetlands” on the Coastal Wetlands and Littoral Rainforests Area Map (within the meaning of State Environmental Planning Policy (Coastal Management) 2018).
(8)  In this clause—
drainage management plan means an irrigation and drainage management plan that—
(a)  is prepared in accordance with the NSW Sugar Industry Best Practice Guidelines for Acid Sulfate Soils (2005), and
(b)  is endorsed by the Sugar Milling Co-operative as being appropriate for the land.
NSW Sugar Industry Best Practice Guidelines for Acid Sulfate Soils (2005) means the guidelines approved by the Director-General of the Department of Infrastructure, Planning and Natural Resources on 25 May 2005.
production area entitlement means a contractual arrangement between the Sugar Milling Co-operative and a grower member of that co-operative for the production of sugar cane for milling.
Sugar Milling Co-operative means the New South Wales Sugar Milling Co-operative Limited or its successor.
Note.
 The NSW Sugar Industry Best Practice Guidelines for Acid Sulfate Soils (2005) is available on the Department of Planning and Infrastructure’s website.
7.2   Earthworks
(1)  The objective of this clause is to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
(2)  Development consent is required for earthworks unless—
(a)  the earthworks are exempt development under this Plan or another applicable environmental planning instrument, or
(b)  the earthworks are ancillary to development that is permitted without consent under this Plan or to development for which development consent has been given.
(3)  Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters—
(a)  the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,
(b)  the effect of the development on the likely future use or redevelopment of the land,
(c)  the quality of the fill or the soil to be excavated, or both,
(d)  the effect of the development on the existing and likely amenity of adjoining properties,
(e)  the source of any fill material and the destination of any excavated material,
(f)  the likelihood of disturbing relics,
(g)  the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,
(h)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development,
(i)  the proximity to, and potential for adverse impacts on, any heritage item, archaeological site, or heritage conservation area.
Note.
 The National Parks and Wildlife Act 1974, particularly section 86, deals with harming Aboriginal objects.
7.3   Flood planning
(1)  The objectives of this clause are as follows—
(a)  to minimise the flood risk to life and property associated with the use of land,
(b)  to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,
(c)  to avoid significant adverse impacts on flood behaviour and the environment.
(2)    (Repealed)
(3)  Development consent must not be granted to development on land at or below the flood planning level unless the consent authority is satisfied that the development—
(a)  is compatible with the flood hazard of the land, and
(b)  will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and
(c)  incorporates appropriate measures to manage risk to life from flood, and
(d)  will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and
(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
(4)  A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause.
(5)  In this clause—
land at or below the flood planning level means land at or below the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.
7.4   Floodplain risk management
(1)  The objectives of this clause are as follows—
(a)  in relation to development with particular evacuation or emergency response issues, to enable evacuation of land subject to flooding in events exceeding the flood planning level,
(b)  to protect the operational capacity of emergency response facilities and critical infrastructure during extreme flood events.
(2)  This clause applies to—
(a)  land between the flood planning level and the level of the probable maximum flood, and
(b)  land at or below the flood planning level,
but does not apply to land subject to the discharge of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.
(3)  Development consent must not be granted to development for the following purposes on land to which this clause applies unless the consent authority is satisfied that the development will not, in flood events exceeding the flood planning level, affect the safe occupation of, and evacuation from, the land—
(a)  caravan parks,
(b)  correctional centres,
(c)  emergency services facilities,
(d)  group homes,
(e)  hospitals,
(f)  residential accommodation (except for dwelling houses, secondary dwellings or dual occupancies) on land in Zone RU5 Village, Zone R1 General Residential, Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone R5 Large Lot Residential,
(g)  residential care facilities,
(h)  tourist and visitor accommodation.
(4)  In this clause—
flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.
probable maximum flood has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0), published in 2005 by the NSW Government.
Note.
 
The probable maximum flood is the largest flood that could conceivably occur at a particular location, usually estimated from probable maximum precipitation.
7.5   Coastal risk planning
(1)  The objectives of this clause are as follows—
(a)  to avoid significant adverse impacts from coastal hazards,
(b)  to ensure uses of land identified as coastal risk are compatible with the risks presented by coastal hazards,
(c)  to enable the evacuation of land identified as coastal risk in an emergency,
(d)  to avoid development that increases the severity of coastal hazards.
(2)  This clause applies to the land identified as “Coastal risk” on the Coastal Risk Planning Map.
(3)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—
(a)  is not likely to cause detrimental increases in coastal risks to other development or properties, and
(b)  is not likely to alter coastal processes and the impacts of coastal hazards to the detriment of the environment, and
(c)  incorporates appropriate measures to manage risk to life from coastal risks, and
(d)  is likely to avoid or minimise adverse effects from the impact of coastal processes and the exposure to coastal hazards, particularly if the development is located seaward of the immediate hazard line, and
(e)  provides for the relocation, modification or removal of the development to adapt to the impact of coastal processes and coastal hazards, and
(f)  has regard to the impacts of sea level rise.
(4)  A word or expression used in this clause has the same meaning as it has in the NSW Coastal Planning Guideline: Adapting to Sea Level Rise (ISBN 978-1-74263-035-9) published by the NSW Government in August 2010, unless it is otherwise defined in this clause.
(5)  In this clause—
coastal hazard has the same meaning as in the Coastal Management Act 2016.
7.6   Stormwater management
(1)  The objective of this clause is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters.
(2)  This clause applies to all land in residential, business and industrial zones.
(3)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—
(a)  is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and
(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and
(c)  avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.
7.7   Drinking water catchments
(1)  The objective of this clause is to protect drinking water catchments by minimising the adverse impacts of development on the quality and quantity of water entering drinking water storages.
(2)  This clause applies to land identified as “Drinking water catchment” on the Drinking Water Catchment Map.
(3)  Before determining a development application for development on land to which this clause applies, the consent authority must consider the following—
(a)  whether or not the development is likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to the following—
(i)  the distance between the development and any waterway that feeds into the drinking water storage,
(ii)  the on-site use, storage and disposal of any chemicals on the land,
(iii)  the treatment, storage and disposal of waste water and solid waste generated or used by the development,
(b)  any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—
(a)  the development is designed, sited and will be managed to avoid any significant adverse impact on water quality and flows, or
(b)  if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or
(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact.
7.8   Airspace operations
(1)  The objectives of this clause are as follows—
(a)  to provide for the effective and ongoing operation of the Gold Coast Airport by ensuring that such operation is not compromised by proposed development that penetrates the Limitation or Operations Surface for that airport,
(b)  to protect the community from undue risk from that operation.
(2)  If a development application is received and the consent authority is satisfied that the proposed development will penetrate the Limitation or Operations Surface, the consent authority must not grant development consent unless it has consulted with the relevant Commonwealth body about the application.
(3)  The consent authority may grant development consent for the development if the relevant Commonwealth body advises that—
(a)  the development will penetrate the Limitation or Operations Surface but it has no objection to its construction, or
(b)  the development will not penetrate the Limitation or Operations Surface.
(4)  The consent authority must not grant development consent for the development if the relevant Commonwealth body advises that the development will penetrate the Limitation or Operations Surface and should not be carried out.
(5)  In this clause—
Limitation or Operations Surface means the Obstacle Limitation Surface or the Procedures for Air Navigation Services Operations Surface as shown on the Obstacle Limitation Surface Map or the Procedures for Air Navigation Services Operations Surface Map for the Gold Coast Airport.
relevant Commonwealth body means the body, under Commonwealth legislation, that is responsible for development approvals for development that penetrates the Limitation or Operations Surface for the Gold Coast Airport.
7.8A   Airspace operations—Murwillumbah Airfield
(1)  The objectives of this clause are as follows—
(a)  to provide for the effective and ongoing operation of the Murwillumbah Airfield by ensuring that such operation is not compromised by proposed development that penetrates the obstacle limitation surface for that airfield,
(b)  to protect the community from undue risk from that operation.
(2)  This clause applies in relation to a development application if—
(a)  the proposed development is on land shown on the Obstacle Limitation Surface Map for which an obstacle limitation surface is identified, and
(b)  the consent authority is satisfied the proposed development will penetrate the obstacle limitation surface for the land.
(3)  Before deciding whether to grant development consent for the application, the consent authority must—
(a)  consult the operator of the Murwillumbah Airfield about the application, and
(b)  give the operator of the Murwillumbah Airfield a period of not less than 28 days within which to consider and comment on the application.
(4)  The consent authority must not grant development consent for development referred to in subclause (2) if—
(a)  the operator of the Murwillumbah Airfield—
(i)  is satisfied the development will penetrate the obstacle limitation surface as shown on the Obstacle Limitation Surface Map, and
(ii)  objects to development consent being granted, or
(b)  the consent authority is satisfied—
(i)  the proposed development will adversely impact on the operation of the airfield, or
(ii)  the proposed development is likely to result in undue risk to the local community.
7.9   Development in areas subject to aircraft noise
(1)  The objectives of this clause are as follows—
(a)  to prevent certain noise sensitive developments from being located near the Gold Coast Airport and its flight paths,
(b)  to assist in minimising the impact of aircraft noise from that airport and its flight paths by requiring appropriate noise attenuation measures in noise sensitive buildings,
(c)  to ensure that land use and development in the vicinity of that airport do not hinder or have any other adverse impacts on the ongoing, safe and efficient operation of that airport.
(2)  This clause applies to development that—
(a)  is on land that—
(i)  is near the Gold Coast Airport, and
(ii)  is in an ANEF contour of 20 or greater, and
(b)  the consent authority considers is likely to be adversely affected by aircraft noise.
(3)  Before determining a development application for development to which this clause applies, the consent authority—
(a)  must consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, and
(b)  must consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021:2015, and
(c)  must be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015.
(4)  In this clause—
ANEF contour means a noise exposure contour shown as an ANEF contour on the Noise Exposure Forecast Contour Map for the Gold Coast Airport prepared by the Department of the Commonwealth responsible for airports.
AS 2021:2015 means AS 2021:2015, Acoustics—Aircraft noise intrusion—Building siting and construction.
7.10   Essential services
Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—
(a)  the supply of water,
(b)  the supply of electricity,
(c)  the disposal and management of sewage,
(d)  stormwater drainage or on-site conservation,
(e)  suitable vehicular access.
7.11   Council infrastructure development
(1)  Development may be carried out by or on behalf of the Council without development consent on any land, other than land in a heritage conservation area, land containing a heritage item or land that is an environmentally sensitive area for exempt and complying development.
(2)  Subclause (1) does not apply to the following development—
(a)  the erection of a class 1–9 building under the Building Code of Australia,
(b)  development that is not exempt development under State Environmental Planning Policy (Infrastructure) 2007 and has a capital value of more than $1,000,000.
7.12   Existing and future water storage facilities
(1)  The objective of this clause is to protect existing water storage facilities and identified proposed sites for future water storage facilities from any significant adverse impacts of development.
(2)  This clause applies to land identified as “Existing and Future Water Storage Facilities” on the Existing and Future Water Storage Facilities Map.
(3)  Before determining a development application for development on land to which this clause applies, the consent authority must consider whether the development is likely to have a significant adverse impact on topographic features, landscape or the natural state of the land.
7.13   Development requiring the preparation of a development control plan
(1)  The objective of this clause is to ensure that development on certain land occurs in accordance with a site-specific development control plan.
(2)  This clause applies to development on land identified as “DCP required” on the Key Sites Map.
(3)  Development consent must not be granted for development on land to which this clause applies unless a development control plan that provides for the matters specified in subclause (4) has been prepared for the land.
(4)  The development control plan must provide for all of the following—
(a)  design principles drawn from an analysis of the site and its context,
(b)  phasing of development,
(c)  distribution of land uses, including open space,
(d)  subdivision pattern and provision of services,
(e)  building envelopes and built form controls,
(f)  impact on, and improvements to, the public domain,
(g)  identification and conservation of native flora and fauna habitat and habitat corridors on the site, including any threatened species, populations or ecological communities,
(h)  identification, extent and management of watercourses, wetlands and riparian lands and any buffer areas,
(i)  environmental constraints, including climate change, acid sulfate soils, flooding, contamination and remediation.
7.14   Location of sex services premises
(1)  The objective of this clause is to minimise land use conflicts and adverse amenity impacts by providing a reasonable level of separation between sex services premises, specified land uses and places regularly frequented by children.
(2)  In deciding whether to grant development consent to development for the purposes of sex services premises, the consent authority must consider the following—
(a)  whether the premises will be located on land that adjoins, is directly opposite or is separated only by a local road from land—
(i)  in Zone R1 General Residential, Zone R2 Low Density Residential, Zone R3 Medium Density Residential or Zone RE1 Public Recreation, or
(ii)  used for the purposes of a centre-based child care facility, a community facility, a school or a place of public worship,
(b)  the impact of the development and its hours of operation on any place likely to be regularly frequented by children—
(i)  that adjoins the development, or
(ii)  that can be viewed from the development, or
(iii)  from which a person can view the development.
7.15   Industry—groundwater extraction, etc
(1)  This clause applies to development for the purpose of industry, being a building or place at which groundwater is extracted, handled, treated, processed, stored or packed for commercial purposes.
(2)  Development to which this clause applies is prohibited on land to which this Plan applies, except for the following land—
(a)  Lot 1, DP 735658, being land at 477 Urliup Road, Urliup,
(b)  Lots 1 and 2, DP 883113, being land at 2574 Kyogle Road, Kunghur,
(c)  Lot 121, DP 1111869, being land at 101 Bryens Road, Nobbys Creek,
(d)  Lot 5, DP 1206755, being land at 10–20 Edwards Lane, Kynnumboon,
(e)  Lot 1, DP 593157, being land at 64 Geles Road, Upper Burringbar,
(f)  Lot 3, DP 815475, being land at 350 Rowlands Creek Road, Rowlands Creek.
(3)  Before granting consent to development to which this clause applies, the consent authority must—
(a)  consider any impact of the proposed development on—
(i)  natural water systems, and
(ii)  the potential agricultural use of land, and
(iii)  groundwater dependent ecosystems, and
(b)  be satisfied that the proposed development incorporates appropriate measures to avoid, minimise or mitigate any impact set out in paragraph (a).
7.16   Development at Wulffs Lane, Kielvale
(1)  This clause applies to Lot 3, DP 877860, Wulffs Lane, Kielvale, but only the part of that land that was in Zone RU5 Village immediately before the commencement of Tweed Local Environmental Plan 2014 (Amendment No 20).
(2)  Despite any other provision of this Plan, development consent may be granted for development on land to which this clause applies as if—
(a)  the land had not been rezoned by Tweed Local Environmental Plan 2014 (Amendment No 20), and
(b)  the development standards specified by the Lot Size Map, Height of Buildings Map, Floor Space Ratio Map and Flood Planning Map, and clauses 7.3 and 7.4, as in force immediately before the commencement of Tweed Local Environmental Plan 2014 (Amendment No 20), continue to be in force.
(3)  This clause ceases to have effect 2 years after the commencement of Tweed Local Environmental Plan 2014 (Amendment No 20).
7.17   Use of certain land at Cypress Crescent and Tweed Coast Road, Cabarita Beach
(1)  This clause applies to—
(a)  Lot 100, DP 1208306, 19–25 Cypress Crescent, Cabarita Beach, and
(b)  Lots 1 and 2, Section 4, DP 29748, 26–28 Tweed Coast Road, Cabarita Beach.
(2)  Despite any other provision of this Plan, development consent may be granted for development on land to which this clause applies if the consent authority is satisfied that—
(a)  in the case of Lot 100, DP 1208306—the relevant development will be for the purposes of hotel or motel accommodation and a restaurant or cafe, and
(b)  in the case of Lots 1 and 2, Section 4, DP 29748—the relevant development will be for the purposes of a car park ancillary to the development specified in paragraph (a).