Agenda of Planning and Development Committee

Planning and Development Committee 5 July 2016

2.1 Items Approved Under the Delegated Authority of Council

TRIM REFERENCE: 2016/1266

AUTHOR: Paul Johnston, Planning Team Leader

EXECUTIVE Summary

Following is a list of development applications approved under the delegated authority of Council.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “13.4 Our Environment – Monitor and enforce regulations relating to City amenity”.

Financial Implications

Council has been advised that as a council included in the NSW Government’s merger proposals under consideration by the Office of Local Government since referral on 6 January 2016, Council must comply with the merger proposal period guidelines issued under S23A of the Local Government Act 1993.

The guidelines instruct Council it should expend money in accordance with the detailed budget adopted for the purposes of implementing the Delivery/Operational Plan for the 2015/16 year.

Any expenditure outside the adopted budget requires the identification of clear and compelling grounds and must be approved by Council at a meeting that is open to the public. The guidelines indicate the resolution of Council for increased expenditure must specify the reasons why the expenditure is required and warranted.

If increased expenditure is greater than $250,000 or 1% of the Council’s revenue from rates in the preceding year, whichever is the greater, Council is required to exhibit the increase to the budget and consider comments received.

Council must also avoid entering into contracts or undertakings were expenditure or revenue is greater than $250,000 or 1% of the Council’s revenue from rates in the preceding year, whichever is the greater, unless the contract or undertaking is as a result of a decision or procurement process commenced prior to the merger proposal period or where entering into a contract or undertaking is reasonably necessary for the purposes of meeting the ongoing service delivery commitments of the Council or was previously approved in the Council’s Delivery/Operational Plan.

Policy and Governance Implications

Nil

Recommendation

That the information provided in the report by the Planning Team Leader on Items Approved Under the Delegated Authority of Council be acknowledged.

further considerations

Consideration has been given to the recommendation’s impact on Council’s service delivery; image and reputation; political; environmental; health and safety; employees; stakeholders and project management; and no further implications or risks have been identified.

SUPPORTING INFORMATION

Reference:	DA 404/2008(5)	Determination Date	2 June 2016
PR Number	PR19361
Applicant/s:	Fenlor Group Pty Ltd
Owner/s:	Fenlor Group Pty Ltd
Location:	Lot 158 DP 1207987 – Tilston Way, Orange (previously part of Lots 7 and 8 DP 1065578 - 384 and 386 Molong Road, Orange)
Proposal:	Modification of development consent – subdivision (78 lot residential, one residue lot). The modification involves an amended layout and eliminates from the plan two areas approved along the eastern side of the site as Community Title private open space areas.
Value:	$0

Reference:	DA 203/2013(3)	Determination Date	9 June 2016
PR Number	PR6596
Applicant/s:	Bunnings Properties Pty Ltd
Owner/s:	Bunnings Properties Pty Ltd
Location:	Lot 3 DP 1185665 and Lot 8 DP 7214 - 235 and 237 Leeds Parade, Orange
Proposal:	Modification of development consent - hardware and building supplies (construction of a new store), subdivision (consolidation of land), demolition (existing dwelling and associated outbuildings), signage and subdivision (two lot industrial). The modification involves altering the Notice of Determination for development application DA 203/2013(2) by amending and deleting various conditions. The development as modified will enable the issue of an Interim Occupation Certificate prior to finalisation of engineering, servicing and landscaping requirements for the development.
Value:	$16,500,000 (being the same value as the original development)

Reference:	DA 418/2015(1)	Determination Date	14 June 2016
PR Number	PR27089
Applicant/s:	Willowdene Constructions Pty Ltd
Owner/s:	Mulgoa Corporations Pty Ltd
Location:	Lot 401 DP 1210576 – 96 William Maker Drive, Orange
Proposal:	Subdivision (two lot residential) and two dwellings
Value:	$460,000

Reference:	DA 452/2015(1)	Determination Date	3 June 2016
PR Number	PR19670
Applicant/s:	Mrs DV Gee
Owner/s:	Mrs DV Gee
Location:	Lot 10 DP 1070599 – 4601 Mitchell Highway, Lucknow
Proposal:	Shop (alterations and additions to existing premises) and demolition (tree removal)
Value:	$65,000

Reference:	DA 38/2016(1)	Determination Date	8 June 2016
PR Number	PR23189
Applicant/s:	Housing Plus
Owner/s:	Tohach Pty Ltd
Location:	Lot 102 DP 1142436 - 9 Albert Street, Orange
Proposal:	Self-contained dwellings (four)
Value:	$1,380,000

Reference:	DA 68/2016(1)	Determination Date	10 June 2016
PR Number	PR25411
Applicant/s:	DFT Australia Pty Ltd
Owner/s:	DFT Australia Pty Ltd
Location:	Lot 82 DP 1167633 – 78 Astill Drive, Orange
Proposal:	Vehicle repair station/vehicle sales or hire premises (mixed use development)
Value:	$400,000

Reference:	DA 117/2016(1)	Determination Date	15 June 2016
PR Number	PR10201
Applicant/s:	Mr JM Gibson
Owner/s:	Mr JM and Mrs KE Gibson
Location:	Lots 3 and 4 DP 129339 - 97 Prince Street, Orange
Proposal:	Demolition (existing laundry and bathroom), and dwelling alterations and additions (includes carport and alfresco area)
Value:	$120,000

Reference:	DA 126/2016(1)	Determination Date	30 May 2016
PR Number	PR2109
Applicant/s:	Ms BJ Gray
Owner/s:	As above
Location:	Lot 1 DP 522647 - 66 Byng Street, Orange
Proposal:	Demolition (tree removal)
Value:	$800

Reference:	DA 130/2016(1)	Determination Date	3 June 2016
PR Number	PR5109
Applicant/s:	Mr FP and Mrs SDM Johnson
Owner/s:	Mrs SDM Johnson
Location:	Lot 122 DP 581317 – 73 Hill Street, Orange
Proposal:	Demolition (tree removal)
Value:	$0

Reference:	DA 146/2016(1)	Determination Date	8 June 2016
PR Number	PR22051
Applicant/s:	Lot 231 DP 1105371 – 21 Emerald Street, Orange
Owner/s:	Pinnacle Building Contractors
Location:	Mr P and Mrs M Montagliani
Proposal:	Home business
Value:	$66,000

Reference:	DA 173/2016(1)	Determination Date	15 June 2016
PR Number	PR25385
Applicant/s:	Hotel Canobolas Pty Limited
Owner/s:	Hotel Canobolas Pty Limited
Location:	Lot 18 SP 82891 – 18/266 Summer Street, Orange
Proposal:	Food and drink premises (pub) (internal reconfiguration)
Value:	$50,000

TOTAL NET* VALUE OF ALL DEVELOPMENTS APPROVED IN THIS PERIOD: $2,541,800

* Net value relates to the value of modifications. If modifications are the same value as the original DA, then nil is added. If there is a plus/minus difference, this difference is added or taken out.

Planning and Development Committee 5 July 2016

2.2 Development Application DA 287/2015(1) - 538 Ophir Road

TRIM REFERENCE: 2016/1379

AUTHOR: Kelly Walker, Town Planner

EXECUTIVE Summary

Application lodged	1 September 2015
Applicant/s	Mr SJ and Mrs GL Cudars
Owner/s	Mr NC and Mrs LM Calton
Land description	Lot 510 DP 263991 - 538 Ophir Road, Orange
Proposed land use	Subdivision (two lot residential)
Value of proposed development	$0

Council's consent is sought for a two lot residential subdivision of Lot 510 DP 263991, known as 538 Ophir Road, Orange. The proposal involves the subdivision of the existing 5.203ha lot into two residential lots, as set out in the table below:

Proposed Lot	Area	Containing
1	2.2ha	Existing dwelling, outbuildings, and driveway
2	3.003ha	Proposed building envelope measuring 35m x 45m, and 10m wide accessway along the northern boundary

The proposal does not involve a dwelling house or onsite effluent system, which will no doubt be subject to a separate future application.

One issue of note is the suitability of providing additional housing in a location that has the potential to be greatly affected by flooding should the Suma Park Dam wall fail in an extreme event, such as during an earthquake. Suma Park Dam has been recently upgraded by raising the Full Supply Level by 1.0m and upgrading the spillway to meet the standards set by the NSW Dam Safety Committee (NSW DSC) and the Australian National Committee on Large Dams (ANCOLD). However, the upgrade was based on the existing infrastructure and population downstream of the dam to meet the societal life safety risk ‘negligible’ threshold.

Council has sought technical advice from specialist dam and water consultant, Entura, in regards to this proposal, which is discussed in detail in the main part of this report. Based on this advice it is considered that the proposed additional residential lot and future dwelling are acceptable in this case, as the ‘negligible’ threshold will still be able to be met, provided that the future dwelling has a flood warning alarm systems installed as with the other existing dwellings downstream of the dam. A condition of consent is therefore recommended that a Section 88b Instrument be registered on the titles of the proposed lots to ensure that alarms are installed in all dwellings, as is the case with the existing dwellings similarly affected.

It is recommended that Council supports this application. It is noted, however, that should the population downstream of the dam increase further by way of additional development, the ‘negligible risk’ threshold may no longer be met. As such, it is recommended that Council amends Orange Local Environmental Plan 2011 in terms of flood risk or minimum lot sizes downstream of Suma Park Dam to restrict the potential to increase the number of lots and dwellings in the extreme event flooding area. This matter will be addressed under separate cover in the near future.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “13.4 Our Environment – Monitor and enforce regulations relating to City amenity”.

Financial Implications

The guidelines instruct Council it should expend money in accordance with the detailed budget adopted for the purposes of implementing the Delivery/Operational Plan for the 2015/16 year.

Council must also avoid entering into contracts or undertakings where expenditure or revenue is greater than $250,000 or 1% of the Council’s revenue from rates in the preceding year, whichever is the greater, unless the contract or undertaking is as a result of a decision or procurement process commenced prior to the merger proposal period or where entering into a contract or undertaking is reasonably necessary for the purposes of meeting the ongoing service delivery commitments of the Council or was previously approved in the Council’s Delivery/Operational Plan.

Policy and Governance Implications

As noted previously, it is recommended that Council amends Orange Local Environmental Plan 2011 in terms of flood risk or minimum lot sizes downstream of Suma Park Dam to restrict the potential to increase the number of lots and dwellings in the extreme event flooding area. Should the potential not be restricted, Council may incur financial implications of having to further upgrade the dam. This matter will be addressed under separate cover.

Recommendation

That Council consents to development application DA 287/2015(1) for Subdivision (two lot residential) at Lot 510 DP 263991 - 538 Ophir Road, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought for a two lot residential subdivision at Lot 510 DP 263991, known as 538 Ophir Road, Orange.

The proposal involves the subdivision of the existing 5.203ha lot into two residential lots, as set out in the table below:

Proposed Lot	Area	Containing
1	2.2ha	Existing dwelling, outbuildings, and driveway
2	3.003ha	Proposed building envelope measuring 35m x 45m, and 10m wide accessway along the northern boundary

The proposal does not involve a dwelling house or onsite effluent system, which will be subject to a separate future application.

MATTERS FOR CONSIDERATION

Section 5A Assessment

In the administration of sections 78A, 79B, 79C, 111 and 112, the provisions of Section 5A must be taken into account for every development application in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities or their habitats. This section includes a requirement to consider any adopted assessment guidelines, which means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995. Assessment guidelines are in force (see DECC-W “Threatened Species Assessment Guidelines - The Assessment of Significance”) which requires consent authority to adopt the precautionary principle in its assessment.

In this instance, site inspection reveals that the subject property has no biodiversity or habitat value.

Section 79C

Section 79C of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The broad aims of the LEP are set out under subclause 2. Those relevant to the application are as follows:

(a) to encourage development which complements and enhances the unique character of Orange as a major regional centre boasting a diverse economy and offering an attractive regional lifestyle,

(e) to provide a range of housing choices in planned urban and rural locations to meet population growth.

While it is considered that the proposed additional residential lot and future dwelling are acceptable in this particular case, the development is not generally consistent with the aims above given the concerns about providing additional housing in a location that has the potential to be greatly affected by flooding. As such, this site is not considered to be a suitable or planned location to provide for population growth, and this application should not serve to set a precedent for any further additional lots or dwellings downstream of the dam in the flooding area.

Clause 1.6 - Consent Authority

This clause establishes that, subject to the Act, Council is the consent authority for applications made under the LEP.

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

This clause provides that covenants, agreements and other instruments which seek to restrict the carrying out of development do not apply with the following exceptions.

· covenants imposed or required by Council

· prescribed instruments under Section 183A of the Crown Lands Act 1989

· any conservation agreement under the National Parks and Wildlife Act 1974

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

· any biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995

· any planning agreement under Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979.

As can be seen in Figure 1 below, the subject site has easements along the northern boundary and through the site (coloured bright blue). These easements have been taken into account in the design and layout of the proposed subdivision and the accessway, and therefore they will not be affected by the proposed development.

Figure 1: easement map of subject site

The site is also restricted by covenants, however these are not affected by the proposed subdivision. Council staff are not aware of the title of the subject property being affected by any of the other above instruments.

Mapping

The subject site is identified on the LEP maps in the following manner:

Land Zoning Map:	Land zoned R5 Large Lot Residential
Lot Size Map:	Minimum Lot Size 2 ha
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse, but nearby to a sensitive waterway
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies

Those matters that are of relevance are addressed in detail in the body of this report.

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the R5 Large Lot Residential zone. The proposed development is defined as ‘subdivision’. Section 4B - Subdivision of Land of the Environmental Planning and Assessment Act 1979 identifies that the subdivision of land means:

the division of land into two or more parts that, after the division, would be obviously used for separate occupation, use or disposition.

Subdivision is permitted with consent for this zone. This application is seeking consent.

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned R5 Large Lot Residential are as follows:

· To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.

· To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.

· To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.

· To minimise conflict between land uses within this zone and land uses within adjoining zones.

· To provide for student housing in close proximity to the Charles Sturt University.

· To ensure development is ordered in such a way as to maximise public transport patronage, and encourage walking and cycling, in close proximity to settlement.

· To ensure development along the Southern Link Road has an alternative access.

As noted previously, concerns have been raised in regards to providing additional housing in a location that has the potential to be greatly affected by flooding. Due to the increased risk resulting from the proposed additional infrastructure and population, the proposal will increase the demand of emergency services should there be an extreme flood event.

The proposed development also has the potential to set a precedent for additional development and an increase in population, which may cause conflict between this zone and the nearby Infrastructure (Water Supply) zone for Suma Park Dam. An increase in population will ultimately increase the risk threshold for the dam, and increase the need for further upgrades to the dam. As this site is not considered to be a suitable or planned location to provide for population growth, this application should not serve to set a precedent for any further additional lots or dwellings downstream of the dam in the flooding area; and appropriate controls to restrict further development are recommended, as discussed previously in this report.

The proposal is generally consistent with the other objectives for the zone.

Clause 2.6 - Subdivision - Consent Requirements

This clause triggers the need for development consent for the subdivision of land. Additionally, the clause prohibits subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal and secondary dwellings being located on separate lots if either of those lots are below the minimum lot size applying to the land.

The proposal does not involve a secondary dwelling. The proposed subdivision meets the minimum allotment requirements.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size

This clause requires the subdivision of land to be equal to or greater than the size nominated for the land under the Minimum Lot Size Map.

In relation to this site, the map nominates a minimum lot size of 2ha. The smallest lot proposed by the application is 2ha, and therefore meets this clause.

Part 5 - Miscellaneous Provisions

Not relevant to the application.

Part 6 - Urban Release Area

Not relevant to the application. The subject site is not located in an Urban Release Area.

Part 7 - Additional Local Provisions

7.2 - Flood Planning

This clause applies to land identified on the Flood Planning Map as a Flood Planning Area and requires that, before any consent is issued, Council must be satisfied that the proposal:

(a) is compatible with the flood hazard of the land, and

(b) is not likely to 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) is not likely to 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.

The site is not identified on the LEP Flood Map, however is mapped on Council’s overland flow mapping, as shown in Figure 2 below. The proposed additional lot will be affected by this overland flowpath, however the proposed building envelope for the future dwelling is outside of this flooding area.

Figure 2: flooding map of subject site (overland flow)

The site is also identified on the inundation mapping carried out by Council’s specialist dam and water consultant, Entura, as shown in Figure 3 below. This map shows the extent of flooding should there be sunny day flood (orange line), a dam crest flood without failure (pink line), and dam crest flood with failure (blue line). The existing dwelling on the subject site will be completely inundated in all of these scenarios, as will the proposed future dwelling.

Figure 3: Suma Park Reservoir inundation map

It is important to note that the flood mapping set out in the LEP generally determines flood extents based on 1:100 ARI flood events, with the consideration of a 0.5m freeboard. The Design Flood Frequency used in Entura’s mapping and the design of the dam upgrade was a 1,000,000 AEP. Planning controls do not normally take into account extremely rare catastrophic events such as dam failure.

As set out in the Technical Memo prepared by Entura, dated 7 April 2016:

“the upgrade of Suma Park Dam should not increase the potential for flood during a 1:100 ARI event. What the upgrade has done, is increase the storage capacity of the dam and improve the structural integrity of the dam. Unless the dam is at full capacity at the time of a 1:100 ARI event, the amount of inundation downstream should actually decrease. The inundation scenario identified in the dam upgrade was based on a flood frequency of 1,000,000 AEP which is far beyond the 100 AEP event normally provided for within planning schemes”.

Previously it was noted that the dam standards are based on Societal Risk thresholds. Entura makes the following comments in regards to risk and the thresholds:

- The application of these standards require the Societal Risk to be assessed which is a consideration of the Dam’s Probability of Failure versus the Number of Fatalities. The Number of Fatalities value is derived, in part, from the calculation of a Population At Risk (PAR) value.

- The development of the upgrade options took into account a PAR value. Potentially, any increase in this value may change the assessment of Societal Risk against a tolerable limit set under ANCOLD standards.

- While it is unlikely that a minor increase in development potential would have a significant impact it is noted that, in the case of Suma Park Dam, the three identified scenarios impact on an Urban Release Area.

It is considered that the minor increase in population resulting from the additional residential lot proposed in this application will increase the societal risk, however is unlikely to increase the risk above the ‘negligible’ threshold. As such, the proposal is acceptable in this case providing that adequate flood warning alarm systems are put in place. Council’s Manager Strategic Water and Sewer advises that the existing affected properties have alarms in place, however the applicant notes that the existing subject dwelling does not have an alarm. It is assumed that the current or a previous owner has removed this, and as such the recommended condition of consent needs to ensure that both the existing and future dwellings have alarm systems installed. It is also recommended that Council checks that other affected properties have retained and adequately maintained their alarms, and that they and are in good working order.

Concerns have been raised that any other additional development downstream of the dam will exponentially increase the risk threshold for the dam, where the ‘negligible risk’ threshold may no longer be met as the population increases. Advice received from Council’s dam consultant, who recommends that planning controls are amended to restrict further development downstream of the dam.

Entura makes the following comments in this regard:

- While development of this land in the future would be required to take into account potential environmental constraints, the concern is that any development may impact upon the outcomes of a future Dam Safety Review and may require further upgrade works to the dam.

- A sensitivity analysis of these scenarios, or a review of the Societal Risk of the dam, would be necessary to quantify this risk. Council has provided additional information on the potential for development downstream of the dam (refer Attachment A) which indicates that there are approximately 31 additional land titles that fall within the potential inundation extent that are likely be subject to development in the future. This would represent an approximate increase in the Population at Risk (PAR) of 78 for flood failure, representing a 62% increase in the current estimate.

- A detailed risk assessment has not been completed for the dam, however, the effect of an additional 31 houses downstream on the Societal Risk has been indicated in Figure 1 (see report Figure 4 below). This shows that the risk posed by the dam will increase over time, however, it will be close to the NSW Dam Safety Committee’s negligible risk line even with the additional development. The increase in risk can be minimised through the extension of the current flood warning system to all new developments in the potential inundation zone and effective emergency planning.

- Another aspect of the Suma Park Dam upgrade is that some of the extreme flood flows will be diverted through the saddle to the west of the main arch dam and then flow down a minor gully back into Summer Hill Creek downstream of the main dam. As a result of this, dangerous flood flows will be directed across Bulgas Road and down the gully under extreme flood events (AEP<1:500). The planning scheme will need to be modified to prevent development within the full extent of this modified flood zone;

Figure 4: Societal Life Safety Risk (from ‘Technical Memo’, by Entura, 7 April 2016)

As such, it is recommended that Council amends the LEP in terms of flood risk or minimum lot sizes downstream of Suma Park Dam to restrict the potential to increase the number of lots and dwellings in the extreme event flooding area. This matter will be addressed under separate cover.

The following recommendations have been made by Entura and Council’s Strategic Manager Water and Sewer:

· The Infrastructure (Water Supply) zone be increased to encompass the increased potential impoundment area of the dam at full supply level, although this is not urgent given the constraints of the current zone.

· The zone downstream of the new auxiliary spillway should be changed to prevent incompatible development (ie no buildings or infrastructure).

· All new dwellings within the potential dambreak inundation extent should be required to install a flood warning system consistent with that of the existing residents.

· Prior to any changes in land use zoning that would increase potential residential development density within the dambreak inundation extent, the risk posed by Suma Park Dam should be reviewed in detail, so as not to require further work on the dam to maintain a suitable PAR value.

· Appropriate emergency planning and preparation should continue to be undertaken to minimise the dam safety risks posed by Suma Park dam.

Those of relevance to this application have been included as conditions of consent in the attached notice. Those recommendations relating to restricting further development will be dealt with under separate cover.

7.3 - Stormwater Management

This clause applies to all industrial, commercial and residential zones and requires that Council be satisfied that the proposal:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting onsite infiltration of water

(b) includes, where practical, onsite stormwater retention for use as an alternative supply to mains water, groundwater or river water; and

(c) avoids any significant impacts of stormwater runoff on adjoining downstream properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

The proposal does not include details of stormwater management, where post- development runoff levels will not exceed the pre-development levels at subdivision stage. Stormwater will be dealt with in detail in the future application for a new dwelling house.

7.5 - Riparian Land and Watercourses

This clause seeks to preserve both water quality and riparian ecological health. The clause applies to land identified as a “Sensitive Waterway” on the Watercourse Map. The subject land contains such a waterway and therefore Council must consider whether or not the proposal:

(a) is likely to have any adverse impact on the following:

(i) the water quality and flows within a watercourse

(ii) aquatic and riparian species, habitats and ecosystems of the watercourse

(iii) the stability of the bed and banks of the watercourse

(iv) the free passage of fish and other aquatic organisms within or along the watercourse

(v) any future rehabilitation of the watercourse and its riparian areas, and

(b) is likely to increase water extraction from the watercourse.

Additionally, consent may not be granted until Council is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, 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.

While the subject site does not contain a sensitive waterway, the site is located nearby to a sensitive waterway and key fish habitat, as shown in Figure 5 below. The proposal has been designed to site the building envelope a sufficient distance from the rear boundary and the waterway to manage the post-development runoff. A condition of consent is recommended to ensure that an onsite effluent system is appropriately sited. It is noted that there will always remain a risk to the waterway under extreme circumstances such as record storms, dam flood/failure etc, however the risk of adverse impact can be appropriately managed to an acceptable level of risk. This matter will be dealt with in greater detail in the future application for a new dwelling house.

Figure 5: sensitive waterway map of subject site (Orange LEP 2011)

7.6 - Groundwater Vulnerability

This clause seeks to protect hydrological functions of groundwater systems and protect resources from both depletion and contamination. Orange has a high water table and large areas of the LGA, including the subject site, are identified with “Groundwater Vulnerability” on the Groundwater Vulnerability Map. This requires that Council consider:

(a) whether or not the development (including any onsite storage or disposal of solid or liquid waste and chemicals) is likely to cause any groundwater contamination or have any adverse effect on groundwater dependent ecosystems, and

(b) the cumulative impact (including the impact on nearby groundwater extraction for potable water supply or stock water supply) of the development and any other existing development on groundwater.

Furthermore consent may not be granted unless Council is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact,

(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.

The site is not connected to town sewer, and an onsite sewage/effluent management system will have to be installed. No details have been provided with the application, and as such a condition of consent is recommended to ensure that an appropriate system can be installed without impacting on groundwater or the neighbouring sites. Notwithstanding this, the proposal is not anticipated to involve the discharge of toxic or noxious substances and is therefore unlikely to contaminate the groundwater or related ecosystems. The proposal does not involve extraction of groundwater and will therefore not contribute to groundwater depletion. Subject to an appropriate onsite sewage management system being installed, the design and siting of the proposal avoids impacts on groundwater and is therefore considered acceptable.

7.11 - 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 proposed 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 onsite conservation,

(e) suitable road access.

The application for the proposed subdivision does not address all of the requirements of this clause, in particular the supply of water and disposal of sewage. Conditions of consent are recommended to ensure that adequate services are provided in relation to water, electricity, onsite effluent disposal, stormwater, telecommunications, and access prior to the issue of a Subdivision Certificate.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 Remediation of Land applies to the subject development. Clause 7(1) of the Policy states that Council must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

The site is not known to be contaminated, and a search of Council’s records demonstrates that there are no previous uses of the site which may have caused contamination. It is noted, however, that the historical use of the site prior to its subdivision in 1982 is likely to have been agriculture, such as grazing, with the potential for chemical residue to be present on the site. As such, a condition of consent is recommended for soil sampling to be carried out prior to the issue of a Subdivision Certificate to ensure that the proposed lots are suitable for residential use.

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy (Infrastructure) 2007 applies to the subject development; specifically clause 45(1)(b) which states:

(1) This clause applies to a development application (or an application for modification of a consent) for development comprising or involving any of the following:

(b) development carried out:

(i) within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or

(ii) immediately adjacent to an electricity substation, or

(iii) within 5m of an exposed overhead electricity power line.

Before determining an application to which this clause applies, the consent authority must notify the electricity supply authority and take into consideration any response.

Essential Energy were notified of the application, where the application proposes a new access to proposed Lot 2 within 5m of an overhead electricity power line, which is located on the north-western corner of the site. Essential Energy responded to note that they have no objection to the proposal providing the applicant meets the requirements set out in their letter dated 17 September 2015. These requirements include the creation of easements, maintaining access, gaining approvals etc, and have been included as conditions of consent on the attached Notice.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION s79C(1)(a)(ii)

There are no draft environmental planning instruments that apply to the subject land or proposed development.

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s79C(1)(a)(iii)

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land. Chapters of the DCP relevant to the proposed subdivision include:

· Chapter 2 - Natural Resource Management;

· Chapter 3 - General Considerations;

· Chapter 4 - Special Environmental Considerations;

· Chapter 5 - General Considerations for Zones and Development; and

· Chapter 6 - Rural Development.

The relevant sections, objectives and planning outcomes of each chapter are addressed below.

Chapter 2 - Natural Resource Management: 2.1 - Water Quality

Section 2.1 - Water Quality identifies that development that concentrates, redirects flows, increases flow rates or disturbs land in close proximity to creeks, has the potential to affect waterways with associated erosion, sedimentation and release of nutrients, which combine to affect downstream water quality. Section 2.1 also identifies that development involving groundwater extraction and/or onsite wastewater disposal is deemed to have the potential to affect groundwater resources.

Stormwater and groundwater quality have previously been addressed under the headings “7.3 - Stormwater Management” and “7.6 - Groundwater Vulnerability”.

The proposed subdivision is not anticipated to have a detrimental impact on stormwater or groundwater quality, subject to a suitable onsite sewage treatment system being installed on the site. A condition of consent is included on the attached Notice in regards to this issue.

Chapter 3 - General Considerations: 3.1 - Cumulative Impacts

Section 3.1 - Cumulative Impacts identifies that Council will consider not only the direct impacts of a particular development but also whether the development, when carried out in conjunction with other development in the locality, has a more significant environmental impact.

The development application is for the subdivision of a rural residential lot adjacent to an established residential estate. Subdivision pattern within the vicinity consists of a range of lot sizes, from approximately 2ha to 5ha. As assessed under the heading Chapter 6.6 - Rural Residential Subdivision, the proposed development is consistent with the subdivision pattern of the locality in conjunction with the minimum allotment size permitted by the LEP. It is likely that the proposed additional lot will have an adequate area for the disposal of wastewater, and can be serviced with regard to water supply, electricity and telecommunications.

As noted previously in this report, concerns have been raised in regards to the increased societal risk should the population downstream of the Suma Park Dam increase. While this proposed development is unlikely to increase the risk to above the ‘negligible’ threshold, further development of this nature is likely to increase the risk and have a cumulative impact. As such, it is recommended that the LEP is amended to restrict further development, which is addressed under separate cover.

Chapter 4 - Special Environmental Considerations: 4.1 - Sewage Disposal

Details of onsite effluent disposal have not been submitted with this application. A condition of consent is recommended to ensure that a system can be designed and implemented in accordance with the relevant guidelines for onsite sewage management systems.

Chapter 5 - General Consideration for Zones and Development: 5.7 - Subdivision

Section 5.7 - Subdivision identifies that subdivision works are to be designed and undertaken in accordance with Council’s adopted standards as outlined in the Orange City Development and Subdivision Code. Council’s Technical Services Division has recommended a condition of consent requiring that the provisions and requirements of the Code are to be applied and all work constructed in accordance with the Code.

Chapter 6.6 - Rural Residential Subdivision

· Subdivision layout addresses topography, heritage, water resources and vegetation features.

The proposed subdivision addresses topography with regard to building envelope location. The chosen site is relatively flat, elevated, and well drained, and clear of existing vegetation. Significant earthworks will not be required to establish a dwelling in the future. The site is sufficiently separated from nearby identified watercourses.

· Subdivision layout complies with bushfire-planning principles.

The land is not identified as bushfire prone land.

· Large lots created in planned estates such as Clifton Grove and Ammerdown are retained to provide for a range of lot sizes.

The applicant makes the following comments in regards to this Planning Outcome:

- the proposal complies with the minimum lot size in the LEP;

- the proposed lots are larger/compatible in size to the neighbouring lots in Kennett Place;

- there is a range of lots between 1.275 to 3.489ha in this street and the proposal will add to the diversity of lot sizes;

- the proposed lots can be adequately serviced;

- the proposed building envelope will not impact on the amenity of neighbouring residential properties;

- there will be no impact on the nearby creek; and

- there will be no impact on the neighbouring rural lands.

Given the minimum allotment size permitted in the LEP, and the merits of the case considering existing subdivision pattern, suitability of the site and environmental considerations, the proposal is supported in this instance.

· Large lots created in subdivision under LEP 2000 due to environmental limitations or due to average lot-size provisions are identified as being restricted from further subdivision.

The subdivision was not created under LEP 2000, where the Deposited Plan identifies the creation of the existing Lot in 1982.

· A suitable area for buildings and sewage management systems is identified on subdivision plans as a “building envelope” with such area located for privacy and separation between dwellings on other sites and other rural activities in the locality.

· Lots are serviced by an appropriate onsite sewage management system.

A building envelope has been identified on the plan and will achieve sufficient privacy and separation between dwellings and adjoining land uses. The onsite sewage management system will need to be provided within this envelope, and a condition of consent requires that this be investigated further before the Subdivision Certificate is issued.

· Development and associated activities are to be kept clear of environmentally-sensitive land.

The site does not comprise environmentally sensitive land.

· Development does not increase the number of entrances to a main road (land prior to development is deemed to have a single opening onto a main road).

The proposed additional lot proposed a new access along the northern boundary of the site. Given the constraints of the site, namely the existing vegetation on the southern part of the site, it is not considered reasonable to use the same access point as the existing dwelling and proposed Lot 1.

It is noted that the proposed access already exists, but has not been formalised. Council’s Development Engineers have assessed the principle of the new accessway and deem it to be acceptable in this case.

· Driveways accessing a lot have sufficient site distance at the entrance to a public road. Development is constructed to the standard required under the Development and Subdivision Code.

The new entrance will be provided in accordance with Council’s normal requirements for driveway access. A condition of consent will be attached to this effect.

· Boundaries to agricultural land are adequately fenced.

The perimeter boundary fencing will be retained and is adequate in this regard.

DEVELOPMENT CONTRIBUTIONS PLAN 2015

Section 94 Development Contributions

The development has been assessed pursuant to Orange Development Contributions Plan 2015. The payment of $9,712.30 is to be made to Council in accordance with Section 94 of the Act and the Orange Development Contributions Plan 2015 (remainder of LGA) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,314.19 x 1 subdivided lot	3,314.19
Community and Cultural	@ $667.50 x 1 subdivided lot	667.50
Roads and Cycleways	@ $5,137.60 x 1 subdivided lot	5,137.60
Stormwater Drainage	@ $310.15 x 1 subdivided lot	310.15
Local Area Facilities	Not required in this area	0
Plan Preparation & Administration	@ $282.86 x 1 subdivided lot	282.86
TOTAL:		$9,712.30

The contribution must be paid prior to the issuing of a Subdivision Certificate, and will be indexed quarterly in accordance with the Orange Development Contributions Plan 2015. This Plan can be inspected at the Orange Civic Centre, Byng Street, Orange.

Section 64 Water and Sewer Headworks Charges

Section 64 water and sewer headwork charges are also applicable to the proposal. Such charges are calculated at the time of release of a Subdivision Certificate for the proposed development. Attached are the relevant conditions of consent.

PROVISIONS PRESCRIBED BY THE REGULATIONS s79C(1)(a)(iv)

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

The proposal does not involve a change of building use for an existing building.

Buildings to be Upgraded (clause 94)

The proposal does not involve the rebuilding, alteration, enlargement or extension of an existing building.

BASIX Commitments (clause 97A)

BASIX does not apply at subdivision stage.

THE LIKELY IMPACTS OF THE DEVELOPMENT s79C(1)(b)

Neighbourhood Amenity

The proposed development will provide and retain a reasonable standard of residential amenity for the existing dwelling and development on adjoining lands in respect of solar access, privacy etc. The proposed development will provide for a continuation of residential landuse, albeit in a more compact form, and will not alter the function of the neighbourhood. The details of the future dwelling will be subject to a full assessment in a separate development application.

Environmental Impacts

The proposed additional lot is clear of any significant vegetation, and therefore threatened species or ecological endangered communities or their habitats are unlikely. A condition of consent is recommended to ensure that an adequate onsite effluent system can be achieved within the proposed building envelope. A condition of consent is also recommended to ensure that the site is free from contamination, or in a state that is suitable for residential use.

Cumulative Impacts

As noted previously in this report, concerns have been raised in regards to the increased societal risk should the population downstream of Suma Park Dam increase. While this proposed development is unlikely to increase the risk to above the ‘negligible’ threshold, further development of this nature is likely to increase the risk and have a cumulative impact. As such, it is recommended that the LEP is amended to restrict further development, which will be addressed under separate cover.

It is noted that this site is not considered to be a suitable or planned location to provide for population growth, and this application should not serve to set a precedent for any further additional lots or dwellings downstream of the dam in the flooding area.

THE SUITABILITY OF THE SITE s79C(1)(c)

The site is within an area identified as containing serpentinite rock formations, which can contain chrysotile, a form of naturally occurring asbestos. As such, a condition of consent is recommended to ensure a written plan is prepared for the site, in accordance with the relevant Regulations.

While there are physical attributes within the site that constrain the development, in particular groundwater vulnerability, asbestos, and flooding, the subject site is considered to be suitable for the proposed development subject to conditions of consent relating to contamination, onsite effluent treatment, flood warning alarms, etc.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s79C(1)(d)

The proposed development is not defined as advertised development under the provisions of the LEP, and as such, no formal exhibition of the application was required. Neighbouring properties were notified of the application, and one submission has been received, which raises concerns about the loss of privacy and amenity from the proposed accessway. The submission seeks an amendment to the proposal, to relocate the accessway along the southern boundary of the site, or widened to include a landscape buffer along the shared boundary.

As noted in the DCP section of this report, there are issues with locating the access to the south, and it is not considered a suitable location in this case. It is considered that the proposed 10m accessway is more than ample to provide an adequate buffer and vehicular access. A condition of consent is recommended that a landscape buffer be provided along the accessway adjacent to the neighbouring dwelling and its area of private open space, with a species that will maintain privacy between the properties. It is not considered reasonable or necessary to provide a buffer along the entire accessway.

PUBLIC INTEREST s79C(1)(e)

The proposed development is considered to be of minor interest to the wider public due to the relatively localised nature of potential impacts. The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines, etc that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of the LEP. A section 79C assessment of the development indicates that the development is acceptable in this instance. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

The requirements of the Environmental Health and Building Surveyor, Water and Sewer Strategic Manager, and the Engineering Development Section are included in the attached Notice of Approval.

Attachments

1 Notice of Approval, D16/27116 ⇩

2 Plans, D16/27039 ⇩

3 Submissions, D16/27042 ⇩

Planning and Development Committee 5 July 2016

2.2 Development Application DA 287/2015(1) - 538 Ophir Road

Attachment 1 Notice of Approval

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ORANGE CITY COUNCIL

Development Application No DA 287/2015(1)

NA16/ Container PR9404

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 81(1)

Development Application
Applicant Name:	Mr SJ and Mrs GL Cudars
Applicant Address:	29 Sophie Drive ORANGE NSW 2800
Owner’s Name:	Mr NC and Mrs LM Calton
Land to Be Developed:	Lot 510 DP: 263991 - 538 Ophir Road, Orange
Proposed Development:	Subdivision (two lot residential)

Building Code of Australia building classification:	Not applicable

Determination
Made On:	5 July 2016
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	6 July 2016
Consent to Lapse On:	6 July 2021

Terms of Approval

The reasons for the imposition of conditions are:

(1) To maintain neighbourhood amenity and character.

(2) To ensure compliance with relevant statutory requirements.

(3) To provide adequate public health and safety measures.

(4) Because the development will require the provision of, or increase the demand for, public amenities and services.

(5) To ensure the utility services are available to the site and adequate for the development.

(6) To prevent the proposed development having a detrimental effect on adjoining land uses.

(7) To minimise the impact of development on the environment.

Conditions

(1) The development must be carried out in accordance with:

(a) Plan/s numbered A01-A04, labelled 'Proposed 2 Lot Subdivision at 538 Ophir Road, CLIFTON GROVE' and dated 26 August 2015 (4 sheets)

(b) statements of environmental effects or other similar associated documents that form part of the approval

as amended in accordance with any conditions of this consent.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(2) Application is to be made for a Construction Certificate for works associated with the proposed vehicle access onto Ophir Road. Engineering plans, showing details of the proposed location of the vehicle access and traffic management works, are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) upon application for a Construction Certificate.

(3) A detailed plan showing a landscape buffer along the proposed access way is to be submitted to, and approved by, Council’s Manager Development Assessments prior to the issuing of a Subdivision Certificate. The landscape buffer shall be located along the northern boundary and extend an appropriate distance to provide privacy screening between the site and the neighbouring dwelling and its area of private open space to the north. The landscape plan should include details of the proposed species, as well as the proposed planting schedule.

DURING CONSTRUCTION/SITEWORKS

(4) Any adjustments to existing utility services that are made necessary by this development proceeding are to be at the full cost of the developer.

(5) A 3.0m wide bitumen sealed driveway is to be constructed for the full length of the 10.0m wide access way. The driveway may also be constructed in hot mix asphalt or concrete and is to be designed for all expected loading conditions (provided however that the minimum pavement depth for gravel and flush seal roadways is 200mm) and be in accordance with the Orange City Council Development and Subdivision Code.

(6) A bitumen sealed vehicular entrance with minimum 200mm thick gravel incorporating the existing pipe culvert is to be constructed to provide access to the proposed Lot 2.

The construction is to be as per the requirements of the Orange City Council Development and Subdivision Code.

(7) All services are to be contained within the allotment that they serve.

(8) The existing water service connection and meter to proposed Lot 1 is to be relocated inside the property boundary of Lot 1.

(9) The site is located within an area identified as containing serpentinite rock formations, which can contain chrysotile, a naturally occurring asbestos. Therefore the applicant or person with management or control of the site shall ensure that a written plan (an Asbestos Management Plan) for the site is prepared in accordance with the provisions of the Work Health and Safety Act 2011 and Work Health and Safety Regulation 2011.

To assist applicants with developing an Asbestos Management Plan, applicants are encouraged to access the “Asbestos Management Plan for Orange City Council” 2014, which is available on Council’s website: www.orange.nsw.gov.au.

PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

(10) Application shall be made for a Subdivision Certificate under Section 109(C)(1)(d) of the Act.

(11) The development has been assessed pursuant to Orange Development Contributions Plan 2015. The payment of $9,712.30 is to be made to Council in accordance with Section 94 of the Act and the Orange Development Contributions Plan 2015 (remainder of LGA) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,314.19 x 1 subdivided lot	3,314.19
Community and Cultural	@ $667.50 x 1 subdivided lot	667.50
Roads and Cycleways	@ $5,137.60 x 1 subdivided lot	5,137.60
Stormwater Drainage	@ $310.15 x 1 subdivided lot	310.15
Local Area Facilities	Not required in this area	0
Plan Preparation & Administration	@ $282.86 x 1 subdivided lot	282.86
TOTAL:		$9,712.30

(12) The landscaping approved by Condition (3) shall be established prior to the issuing of the Subdivision Certificate, and be permanently maintained thereafter to the satisfaction of Council’s Manager Development Assessments.

(13) A Restriction as to User under Section 88B of the NSW Conveyancing Act 1979 shall be created on the title of both proposed Lots 1 and 2 to ensure that the existing dwelling and any future dwelling created on the lots install and permanently maintain a flood warning system, to the satisfaction of Council’s Strategic Manager Water and Sewer.

(14) Prior to the issuing of the Subdivision Certificate, a written statement is to be provided to the Principal Certifying Authority stating that the existing wastewater disposal system/sewer connection, stormwater disposal and water supply are all fully contained within the boundaries of the proposed Lots 1 and 2.

(15) Soil sampling for analysing chemical residue is to be carried out within the proposed Lots in a manner and frequency as determined by an appropriately qualified and experienced consultant giving consideration to previous specific uses and on-site characteristics of the site. A NATA registered laboratory is to carry out such testing. Reference is to be made to the Contaminated Land Management Act 1997 and State Environmental Planning Policy No 55 - “Remediation of Land”. The results of the testing are to be provided to the Principal Certifying Authority and are to demonstrate that the land is suitable for residential use, to enable a Subdivision Certificate to be issued.

(16) No assurance can be given by Council that an onsite sewage management system will be permitted on proposed Lot 2, until full details of the proposed system have been provided and examined. Assessment of the site and soil profile, recommended location and proposed method of on-site disposal of domestic wastes are to be carried out in accordance with the Environment and Health Protection Guidelines for On-Site Sewage Management for Single Households. All assessments are to be carried out within the proposed building envelopes. This report is to be provided to the Principal Certifying Authority prior to the issuing of the Subdivision Certificate.

(17) Payment of contributions for water, sewer and drainage works is required to be made at the contribution rate applicable at the time that the payment is made. The contributions are based on 1 ET for water supply headworks. A Certificate of Compliance, from Orange City Council in accordance with the Water Management Act 2000, will be issued upon payment of the contributions.

This Certificate of Compliance is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(18) Certification from Telstra, stating that telecommunication systems comply with Australian Standards, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(19) Certification from Essential Energy, stating that electricity and street lighting systems comply with Essential Energy’s Networks Division Customer Connection Policy NP11.1, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(20) An easement for water and to provide Council access for maintenance of water mains a minimum of 2.0 metres wide is to be created over the water main serving proposed Lot 1. The Principal Certifying Authority is to certify that the easement is in accordance with the Orange City Council Development and Subdivision Code prior to the issuing of a Subdivision Certificate.

(21) All services are to be contained within the allotment that they serve. A Statement of Compliance, from a Registered Surveyor, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(22) All of the foregoing conditions are to be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions is to be completed prior to the issuing of a Subdivision Certificate, unless stated otherwise.

REQUIREMENTS FROM ESSENTIAL ENERGY

Essential Energy’s requirements are as follows:

(a) A 5m wide easement is to be created for the existing stay wire on the Property;

(b) Uninterrupted access to be maintained to electricity infrastructure;

(d) Obtain approval from Essential Energy prior to any excavation within 10m of electricity infrastructure;

(e) Standard safety clearances from powerlines are maintained;

(f) Electricity structures are adequately protected from vehicle impact;

(g) Roads and driveways required for access to electrical infrastructure must be capable of carrying a 30 tonne truck;

(h) Any required electricity asset relocation be at the developer’s expense; and

(i) It is the responsibility of the person/s completing any works around powerlines to understand their safety responsibilities (see WorkCover NSW guidelines, including the Code of Practice – Work near Overhead Power Lines).

Other Approvals

(1) Local Government Act 1993 approvals granted under section 68.

Nil

(2) General terms of other approvals integrated as part of this consent.

Nil

Right of Appeal

If you are dissatisfied with this decision, section 97 of Environmental Planning and Assessment Act 1979 gives you the right to appeal to the Land and Environment Court within 6 months after the date on which you receive this notice.

* Section 97 of the Environmental Planning and Assessment Act 1979 does not apply to the determination of a development application for State significant development or local designated development that has been the subject of a Commission of Inquiry.

*Disability Discrimination* Act 1992:	This application has been assessed in accordance with the Environmental Planning and Assessment Act 1979. No guarantee is given that the proposal complies with the Disability Discrimination Act 1992. The applicant/owner is responsible to ensure compliance with this and other anti-discrimination legislation. The Disability Discrimination Act covers disabilities not catered for in the minimum standards called up in the Building Code of Australia which references AS1428.1 - "Design for Access and Mobility". AS1428 Parts 2, 3 and 4 provides the most comprehensive technical guidance under the Disability Discrimination Act currently available in Australia.

Disclaimer - S88B Restrictions on the Use of Land:	The applicant should note that there could be covenants in favour of persons other than Council restricting what may be built or done upon the subject land. The applicant is advised to check the position before commencing any work.

Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	DAVID WADDELL - DIRECTOR DEVELOPMENT SERVICES
Date:	6 July 2016

Planning and Development Committee 5 July 2016

2.3 Development Application DA 92/2016(1) - 238 and 238A McLachlan Street

TRIM REFERENCE: 2016/1380

AUTHOR: Michael Glenn, Senior Planner

EXECUTIVE Summary

Application lodged	17 March 2016
Applicant/s	Fast Track Property Investment
Owner/s	Mr D A Sills
Land description	Lots 100 and 101 DP 1218969 - 238 and 238A McLachlan Street, Orange
Proposed land use	Multi Dwelling Housing (three dwellings) and Subdivision (three lot strata)
Value of proposed development	$420,000

Council's consent is sought for the erection of a multi dwelling development consisting of three dwellings and subdivision on Lot 101 at the rear of the site. Stormwater management for the proposed development is proposed to be undertaken on the adjoining Lot 100, located adjacent to McLachlan Street.

The proposed development does not comply with the minimum site area requirements as outlined in Clause 4.1B of the LEP which requires the site to have a minimum area of 1250m². The subject land to which the residential unit development relates comprises an area of 1140.2m². Further, there are amenity impacts arising for both the existing dwelling on 238 McLachlan Street (the effective loss of useable private open space as the yard will be set aside for the rear site's drainage detention) and also for the proposed new units on Lot 101 (the issues for the new dwellings being related to overshadowing, insufficient and poorly positioned private open space areas. and an overall lack of landscaping on the site.)

The areas of non-compliance relate to both the Development Control Plan (DCP) and the Local Environmental Plan (LEP). DCP standards may be varied at the discretion of Council, since a DCP is essentially a Council policy statement. Seeking a variation from the LEP standard is a more formal process requiring the submission of a more formal request for variation under Clause 4.6 of the LEP, that in turn must be set out according to the planning principles set out in Department of Planning and Land & Environment Court formal procedures. The applicant has not adequately addressed the Clause 4.6 variation and has not assessed the amenity implications under the DCP in an adequate fashion.

Despite these obvious shortcomings it is considered that the basic proposal is able to be approved subject to conditions and the Clause 4.6 variation able to be supported, although not for the reasons set out in the applicant's submission. The reason that it is considered reasonable to allow a variation in this case relates to the proximity of the site to the CBD, along with the similarly scaled developments in the locality.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “13.4 Our Environment – Monitor and enforce regulations relating to City amenity”.

Financial Implications

The guidelines instruct Council it should expend money in accordance with the detailed budget adopted for the purposes of implementing the Delivery/Operational Plan for the 2015/16 year.

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 92/2016(1) for Multi Dwelling Housing (three dwellings) and Subdivision (three lot strata) at Lots 100 and 101 DP 1218969 - 238 and 238A McLachlan Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION

Council's consent is sought for multi dwelling housing (three dwellings) and subdivision (three lot strata) at Lots 100 and 101 DP 1218969 - 238 and 238A McLachlan Street, Orange.

THE PROPOSAL

The proposal involves the construction of three units on the site, consisting of 2 x two bedroom units and a 1 x three bedroom unit. Each of the proposed units would be a freestanding dwelling with separately delineated open space and parking for each of the units. The proposed units are single storey.

MATTERS FOR CONSIDERATION

Section 5A Assessment

In the administration of sections 78A, 79B, 79C, 111 and 112, the provisions of Section 5A must be taken into account for every development application, in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities or their habitats. This section includes a requirement to consider any adopted assessment guidelines, which means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995. Assessment guidelines are in force (see DECC-W “Threatened Species Assessment Guidelines - The Assessment of Significance”) which requires consent authority to adopt the precautionary principle in its assessment.

In this instance, site inspection reveals that the subject property has no biodiversity or habitat value.

Section 79C

Section 79C of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The broad aims of the LEP are set out under subclause 2. Those relevant to the application are as follows:

(a) to encourage development which complements and enhances the unique character of Orange as a major regional centre boasting a diverse economy and offering an attractive regional lifestyle,

(b) to provide for a range of development opportunities that contribute to the social, economic and environmental resources of Orange in a way that allows present and future generations to meet their needs by implementing the principles for ecologically sustainable development,

(c) to conserve and enhance the water resources on which Orange depends, particularly water supply catchments,

(e) to provide a range of housing choices in planned urban and rural locations to meet population growth,

The application is not inconsistent with the relevant aims.

Clause 1.6 - Consent Authority

This Clause establishes that, subject to the Act, Council is the consent authority for applications made under the LEP.

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

This Clause provides that covenants, agreements and other instruments which seek to restrict the carrying out of development do not apply with the following exceptions.

· covenants imposed or required by Council

· prescribed instruments under Section 183A of the Crown Lands Act 1989

· any conservation agreement under the National Parks and Wildlife Act 1974

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

· any biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995

· any planning agreement under Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979.

There are easements for sewer and water supply in which Council is a named benefitting party. There are no direct impacts on those restrictions to user as a result of this proposed development.

Mapping

The subject site is identified on the LEP maps in the following manner:

Land Zoning Map:	Land zoned R1 General Residential
Lot Size Map:	No Minimum Lot Size
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Not ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies

Those matters that are of relevance are addressed in detail in the body of this report.

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the R1 General Residential zone. The proposed development is defined as "multi dwelling housing" under OLEP 2011.

Pursuant to the dictionary contain within OLEP 2011 multi dwelling housing means:

3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.

Note. Multi dwelling housing is a type of residential accommodation—see the definition of that term in this Dictionary.

Multi dwelling housing is permissible with consent in the R1 General Residential zone with the consent of Council. However, Clause 4.1(B) has minimum area requirements that this development does not meet for this site. The applicant has submitted a request for a variation to this LEP requirement pursuant to Clause 4.6 of the LEP.

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned R1 General Residential are as follows:

1 - Objectives of the R1 General Residential Zone

· To provide for the housing needs of the community.

· To provide for a variety of housing types and densities.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To ensure development is ordered in such a way as to maximise public transport patronage and encourage walking and cycling in close proximity to settlement.

· To ensure that development along the Southern Link Road has an alternative access.

In relation to the first objective, the proposed development would act to provide additional housing stock within the City. In relation to the second objective, the proposed dwellings will provide a variation of housing type and density for the City. In relation to the third objective, the proposed development has no effect. In relation to the fourth objective, the subject site is within close proximity to routes used by public transport and is also in close proximity to shops and services. In relation to the last objective, the proposed development has no effect.

The proposed development is not inconsistent with the objectives of the zone.

Clause 2.6 - Subdivision - Consent Requirements

The applicant is seeking consent for subdivision in accordance with this Clause.

Part 4 - Principal Development Standards

Clause 4.1B - Minimum Lot Sizes for Dual Occupancy, Multi Dwelling Housing and Residential Flat Buildings

This Clause establishes the minimum lot size required for dual occupancies and multi dwelling housing in the R1, R2 and R3 zones. The proposed multi dwelling housing project is situated on land within the R1 General Residential zone that is not identified on the Minimum Lot Size Map. Accordingly, this clause requires the site to have a minimum area of 1,250m².

The area of the subject land is 1140.2m², which does not meet the requirements of the clause. A request to allow a variation to this development standard as is permitted under Clause 4.6 of the LEP has been submitted.

Clause 4.6 - Exceptions to Development Standards

This Clause is applicable as the multi dwelling housing component of the proposed development would be located on an allotment that is smaller than the required minimum size. Clause 4.1B sets out minimum lot size requirements for multi dwelling housing development, which relevantly states:

Development consent may be granted to development on a lot in a zone shown in Column 2 of the Table to this Clause for a purpose shown in Column 1 of the Table opposite that zone, if the area of the lot is equal to or greater than the area specified for that purpose and shown in Column 3 of the Table.

The table then specifies a minimum allotment size of 1250m², which the medium density housing component of this development does not meet. It is noted that the total area of the two lots nominated in the application do add up to an area greater than the specified minimum but there is no "lot" with the required area to satisfy the clause; and the applicant does not propose under this application to rectify that problem via a consolidation or boundary adjustment with Lot 100 (on which the drainage component of the development is to be located). It is open for Council to require such adjustments to boundaries if it considers it appropriate. However for the reasons outlined below in the assessment of stormwater drainage issues a boundary adjustment to accommodate drainage wholly within the actual development site is not supported in this case given the amenity impacts upon the existing dwelling.

Notwithstanding the above it should be noted that the subdivision that created Lots 100 and 101 is of relatively recent creation, in which easements to allow the discharge of drainage onto Lot 100 from Lot 101 are permitted (and preserved by way of a Section 88b Restriction-as-to-User). This is not considered ideal as a solution to the drainage issue, as effectively that part of Lot 100, which is supposed to provide a private open space area for the existing front dwelling, will not be able to effectively meet that function.

To address the shortfall in lot size, the applicant has lodged a request for variation to this standard under the provisions of Clause 4.6 of the LEP. Clause 4.6 has, in many respects, replaced the older State Environmental Planning Policy One (SEPP 1) objections to development standards, and allows Council the ability to permit such variations on a limited basis where exceptional circumstances can be shown to exist or apply to a given site.

There are set procedures outlined in guidelines published by the NSW Department of Planning encapsulated in a circular published in 2008, and quite strongly supported and upheld in the Land & Environment Court. For obvious reasons the Department advise all Councils to allow variations only where exceptional circumstances exist and where certain other criteria can be shown be achieved. The applicant’s submission submitted with the application generally does not achieve those outcomes and the procedures outlined in the Department’s circulars; and the principals established by the Courts are not even mentioned and certainly not followed in the applicant's submission.

The submission is considered unsatisfactory because it fails to observe recommended procedures and at its core seeks to establish that the standard across the LGA is unreasonable and unnecessary. This is an approach specifically not recommended by the Department of Planning. It has obvious threats to the authority and validity of the LEP, and should Council approve the application, it should be on the basis of reasoning other than what is outlined in the consultant's report. It is acknowledged at this point that Council could validly refuse, or seek amendment of the application, simply on the shortcomings of the supporting information submitted with the application. These elements of the proposed development as submitted provide Council with grounds for refusal if it so chooses.

However, it is considered that notwithstanding these serious shortcomings in the consultant's report, the basic proposal does have merit; and grounds to support the variation can be found without effectively tearing up the LEP. If Council is of a mind to approve the variation to the development standard, it should not do so on the basis of endorsing the applicant's submission if it wants to retain the integrity and authority of the LEP.

The extent of the variation being sought, known as an "exception to the standards" contained in Clause 4.1b, is seeking an 8.7% variation.

The objectives of Clause 4.6 are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances

Council must take into account these objectives.

There is no issue with respect to (a), but with respect to (b) it is important for Council to be able to show in its thinking that a particular and special case or circumstance exists to allow the variation. The applicant’s Statement of Environmental Effects is deficient in this respect in that it fails to effectively draw out the unique circumstances that may apply with respect allowing the variation.

The NSW Department of Planning and Environment have planning circulars that set out criteria that are recommended for Clause 4.6 variation matters. The circulars have been generally applied in the Land & Environment Court. For proponents the circulars require that proponents establish the following:

Matters to Address in an Application

When applicants lodge development applications and associated requests to vary a development standard, they must give grounds of objection to the development standard. Variation of a development standard may be justified where it is consistent with the objectives that the relevant environmental planning instrument is attempting to achieve.

The application must address:

(i) whether strict compliance with the standard, in the particular case, would be unreasonable or unnecessary and why,

and;

(ii) demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard

The Statement of Environmental Effects falls well short of reaching the minimum expectations of the guidelines. It argues that the proposed development fully complies with the DCP, and hence it is not necessary to insist on full compliance with the development standard in terms of achieving minimum amenity standards. The submission made in conjunction with the application is built around some questionable assertions, mostly stating that the minimum lot size provisions are counter-productive to the economic use of the site.

Written applications to vary development standards need to not only address the above matters but may also address matters set out in the ‘five part test’ established by the NSW Land and Environment Court. The NSW Department of Planning strongly advises councils to apply the Five Part Test in their assessments of Clause 4.6 matters.

The Five Part Test

The Five Part Test is rooted in Land and Environment Court Planning Principles. The Department of Planning recommend that consent authorities to apply the test in their assessment of Clause 4.6 variations. The five part test embodies the following:

1 the objectives of the standard are achieved notwithstanding noncompliance with the standard;

2 the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

3 the underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

4 the development standard has been virtually abandoned or destroyed by the council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

5 the compliance with development standard is unreasonable or inappropriate due to existing use of land and current environmental character of the particular parcel of land. That is, the particular parcel of land should not have been included in the zone.

With regard to point (1), the stated objectives of Clause 4.1(B) is to:

achieve planned residential density in certain zones.

Secondarily it should be inferred from the basic objective that allowable densities are set by Clause 4.1(B), whilst at the same time requiring standards with respect to minimum lot size so as to allow the provision of adequate amenity for each of the proposed units.

Whether "planned residential densities" are being achieved can be measured in a surrogate fashion by considering the DCP development standards relevant to the development, and the general densities and patterns of development that exist in the locality (ie is the scale and form of development about the same as those that prevail within the locality).

If the development meets, or substantially meets the DCP performance standards and the general density of development is more or less the same as that contained in the proposal, it can be argued that full compliance with the density controls of Clause 4.1(B) is not required for that special case. In this case, there are some departures from the DCP assessment criteria, but there is a significant similarity between the proposed development and the general scale and form of other nearby and surrounding medium density development.

With regard to point (2), it is considered that the underlying purpose of the standard for which variation is being sought is relevant to the development. Minimum lot size requirements are a blunt assessment tool aimed at achieving good design outcomes whilst at the same time making efficient use of the land at densities likely to achieve a reasonable return for the development; and at the same time ensuring neighbourhood character and amenity is not excessively compromised. The applicant has argued in his submission that the standard is unreasonable and unreasonably impedes the economic and efficient use of land as a resource. This is effectively an attack on the purpose of the clause itself, and as an argument garnered to try and enlist support for the development, is considered a totally untenable position to take. It is in effect an attack on that part of the LEP in its entirety, which is specifically to be avoided according to the Department of Planning guidelines.

The applicant's supporting argument is not considered a valid response in terms of the Department of Planning's guidelines, and further it is considered that the density clauses are relevant to the development. It is considered that justification for the variation can be found in the proximity of the site to the CBD. Further, the overall density of development is comparable to other medium density developments in the locality, which generally are on similar sized blocks to the subject property, and in many instances incorporate scales of development very similar to that contained in this proposal.

With regard to point (3), it is considered that the underlying purpose of Clause 4.1(B) can be achieved either with the minor non-compliance contained in the proposed development as now configured, or if the development were made to fully comply.

With regard to point (4), Council has not demonstrated a general abandonment of this clause in its previous decisions for medium density development under OLEP 2011. There are medium density developments in the vicinity that would not now meet the minimum lot size requirements of the LEP if they were new developments. However, these earlier developments were not approved under the current LEP. They do not establish a precedent with respect to the LEP, but they do establish a precedent regarding development patterns within the locality.

It is considered that Council can approve the development, but not on the basis of the proponent’s submission. It must be satisfied that the form and scale of development is appropriate to the area notwithstanding the non-compliance to the numerical standard, and that special circumstances exist for this site to support such a variation.

It is considered that the proposed development is similar in form and density to other nearby and surrounding medium density developments, and that the proximity to the CBD does allow, or suggest, that support for medium density development close to town is appropriate.

With regard to point (5), because of the scale and densities evident in other similar development and the proximity of the site to the CBD, together with generally satisfactory outcomes in terms of amenity and character (although not fully compliant with the DCP as is suggested in the applicant’s submission) it is considered that an insistence on full compliance with Clause 4.1B for this site is not reasonable, and that it is unnecessary to require full compliance to the standard in this case.

Clause 4.6 establishes the process by which development standards may, in exceptional circumstances, be varied. Before granting a variation under this clause Council must consider a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

· that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

· that there are sufficient environmental planning grounds to justify contravening the development standard.

As indicated above, the written statement submitted with the application falls well short of those criteria and Council is advised not to rely on the submission as it would be contrary to elements of the Department’s five part test to do so and weakens the ability to apply the clause for future similar applications should Council begin to receive similar requests for variation in the future. However, the plans themselves also form a manifest part of the proposed development, and suggest a development consistent with surrounding development scales and densities. By relying solely on the plans and the comments contained in this report, and excluding the positions taken in the written Statement of Environmental Effects, Council can reach appropriate conclusions and support approval without excessive damage to the validity of Clause 4.1(B).

Council may grant consent only if the concurrence of the Director General of the Department of Planning and Infrastructure has been obtained and Council is satisfied that

· the written request has adequately addressed the above, and

· the proposed development will be in the public interest because of:

- consistency with the objectives of the particular standard, and

- consistency with the objectives of the zone applying to the site.

The written request does not adequately address the variation criteria of the clause for reasons previously discussed. At the heart of the criticism of the written submission is that it is essentially a full assault on the validity and sensibilities of Clause 4.1(B) and fails to adequately point out special circumstances that may apply to the subject property. The applicant was, from an early stage in the process, requested to address this serious shortcoming in the submission but has elected not to do so.

The erroneous written assessment is a serious weakness in the submission, but does not work to automatically require Council's refusal as Council is only required under Clause 4.6 to consider the submission. It is, however, a reasonable approach for Council to consider refusal of the application should the Council be of the view that the variation to the development standard and the reasons outlined in this report were unacceptable.

Council may still consider approval provided it can, by its own assessment, be satisfied that special circumstances exist for this site. This approach is the recommended outcome of this report. It should be viewed as an amber light approval (Council should proceed very cautiously in its determination) but as a process it is considered to be valid.

Circular B1 as updated 9 May 2008 gives Council the assumed concurrence of the Director. This was recently confirmed by Senior Planner Nita Scott from the Department of Planning Western Region Office:

your SI LEP automatically gives you the ability to vary the development standard (after consideration etc), with the ‘rural’ and ‘environmental’ exceptions to this spelt out in 4.6.6.

Council does have quarterly reporting obligations as to the number of times it has used Clause 4.6 and for what purposes. The department wants to keep check on the over use of Clause 4.6 to discourage inappropriate use of the clause.

There are some circumstances where Clause 4.6 is prohibited from being used, but this particular situation is not one of those circumstances.

The land is located within the R1 zone, which has the following objectives:

· To provide for the housing needs of the community.

· To provide for a variety of housing types and densities.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To ensure development is ordered in such a way as to maximise public transport patronage and encourage walking and cycling in close proximity to settlement.

· To ensure that development along the Southern Link Road has an alternative access.

The proposed development with its non-compliance to Clause 4.1(B) is not contrary to any of the objectives for the zone; although the non-compliance with certain planning outcomes of the DCP marginalises conformity to the first two objectives. Conversely, the relative proximity to the CBD reinforces the fourth dot point objective. Overall it is considered that the proposed development has a neutral or slightly harmful effect with respect to achieving the objectives of the zone, although such negative impacts could not be considered significant in their effect.

It is considered in an overall and general sense that the proposal, including the variation sought, is consistent with the above objectives.

Part 5 - Miscellaneous Provisions

5.9 - Preservation of Trees or Vegetation

The application states that there are no significant trees on the site, which is not corroborated by site inspection. There are, in fact, trees on the site, including one tree covered by this clause of the LEP. The tree is a eucalypt estimated to be 12-14m high located at the rear of the site.

Figure 1: significant tree on the site requiring consent to remove

The issue of this tree was referred to Council's Manager City Presentation for comment with respect to its proposed removal.

I have inspected 238 McLachlan Street in relation to the scanned copies of plans provided below in your email. The proposed development will impact upon the Eucalyptus tree on the eastern boundary, plus two Lombardy Poplars on the southern boundary and within the subject property, plus a Pinus radiata (Monterey Pine – Plantation pine tree) located upon 236 McLachlan Street.

Should there be a desire to retain the Eucalyptus tree (Eucalyptus viminalis) located on the subject property no construction works/earth works shall be undertaken within the Structural Root Zone, an area in radius from the centre of the trunk of 3.65 metres as a minimum; the TPZ is in the order of 7.7 metres. The subject tree is not deemed to be a significant specimen or one of sound health and structure. The specimen exhibits codominance leaders at the first and second branch junctions. Codominant branch structure has a higher than normal tendency for branch failure to occur. Staining of the bark is evident at the second codominance, an indication that the branch junction is affected by trauma. The subject tree is not of normal form and shape for the species and as such I would not recommended its retention.

There is no issue with the removal of the Lombardy Poplars, as these trees are inappropriate for a smaller urban land holding due to suckering growth amongst other aspects.

Protection of the vegetation on neighbouring properties requires consideration; at this subject site the main tree likely to be impacted by the proposal is a Monterey Pine (Pinus radiata) located approximately 58 metres from the McLachlan Street front boundary and close to the common shared boundary between #238 and #236 and located wholly within the property #236. The tree is located some 2 metres (to centre of trunk) from the property boundary and has a SRZ of 3.4 and a TPZ of 8.4metres radius.

Figure 2: Pinus Radiata on adjoining property likely to be affected by proposed development

To reduce the impact of the proposed development on vegetation on adjoining properties, no built infrastructure, including excavation, trenching for services or the like shall occur within 1.5 metres of the southern property boundary.

It is considered that insufficient justification exists for the retention of the E Viminalis on the site due to its poor structure and evidence of structural weaknesses. It is agreed that the Poplars on the site are not worth retaining either.

With regard to the Pinus Radiata, the form of the development is such that it is not possible to avoid building activity within the root zone of the tree in question. The following condition is included in the consent for the protection of this tree for the neighbour:

"Protection of the Pinus Radiata (Monterey Pine) on the southern property adjoining (236 McLachlan Street) is required. The tree is located some 2 metres (to centre of trunk) from the property boundary. The tree has an estimated Structural Root Zone (SRZ) of 3.4 and a Tree Protection Zone (TPZ) of 8.4 metres radius.

To maximise the survival and ongoing health of this tree, all works constituting built infrastructure, including excavation, trenching for services or the like that occur within 1.5 metres of the southern property boundary shall, prior to any work being approved (in a Construction Certificate) be submitted with a report from a qualified arborist outlining the management measures to be taken for construction within that zone. The arborists report shall unequivocally certify that the tree to be protected will be retained and will not suffer any adverse effects to its health as a result of the work to be carried out.

All work within the 1.5m buffer shall be carried out strictly in accordance with AS 4970-2009 (Protection of Trees on Development Sites). Should any roots greater than 50mm diameter be encountered, all work with machinery is to cease whilst the roots are pruned in accordance with Australian Standard 4373-2007".

Part 7 - Additional Local Provisions

7.2 - Flood Planning

This clause applies to land identified on the Flood Planning Map as a Flood Planning Area, but is not applicable to the subject site as the land is outside designated flood areas.

7.3 - Stormwater Management

This clause applies to all industrial, commercial and residential zones and requires that Council be satisfied that the proposal:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting onsite infiltration of water

(b) includes, where practical, onsite stormwater retention for use as an alternative supply to mains water, groundwater or river water; and

The proposal has been designed to include permeable surfaces and includes onsite retention of stormwater to be undertaken principally from Lot 100 at the rear of that site. Restrictions-as-to-User are in place that burden Lot 100 and benefit Lot 101 for the purposes of stormwater management. Whilst there is no fundamental objection to the provision of stormwater drainage pipes and the like through this easement to support the development, the provision of a more formal detention basin in this locality has the potential to significantly affect the amenity of the existing dwelling on that lot.

The design of a detention basin within Lot 100 (the front dwelling) for the development on Lot 101 would generate the need for a raft of conditions from Council’s Technical Services Division that would effectively eliminate the private open space for the existing dwelling and have a significant adverse impact on its amenity. The conditions that would need to be included relate to fencing off of the detention area, hard engineering the basin and conditions that would severely restrict the use of this area as passive open space. Council’s Technical Services Division advises that there is no physical constraint that would prevent detention systems being designed wholly within Lot 101, probably taking the form of a basin within the driveway.

To this end, in order to protect the amenity of the existing dwelling and eliminate future maintenance issues with a detention system on a separate piece of land, it is recommended that Council supports the development subject to a condition of development consent which requires stormwater retention to be provided wholly within Lot 101.

7.6 - Groundwater Vulnerability

This Clause seeks to protect hydrological functions of groundwater systems and protect resources from both depletion and contamination. Orange has a high water table and large areas of the LGA, including the subject site, are identified with “Groundwater Vulnerability” on the Groundwater Vulnerability Map. This requires that Council consider:

(b) the cumulative impact (including the impact on nearby groundwater extraction for potable water supply or stock water supply) of the development and any other existing development on groundwater.

Furthermore consent may not be granted unless Council is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact,

(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.

The proposal is not anticipated to involve the discharge of toxic or noxious substances and is therefore unlikely to contaminate the groundwater or related ecosystems. The proposal does not involve extraction of groundwater and will therefore not contribute to groundwater depletion. The design and siting of the proposal avoids impacts on groundwater and is therefore considered acceptable.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land applies to the subject development. SEPP 55 states that a consent authority must not consent to the carrying out of any development unless:

(a) it has considered whether the land is contaminated, and

The site is not known to be contaminated, and a search of Council records demonstrates that there are no previous known uses of the site which may have caused contamination. As such, no further enquiry is warranted.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION s79C(1)(a)(ii)

There are no draft environmental planning instruments that apply to the subject land or proposed development.

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s79C(1)(a)(iii)

Development Control Plan 2004

Orange Development Control Plan 2004 is applicable to the proposed development.

Pursuant to Planning Outcome 0.2-1 Interim Planning Outcomes – Conversion of Zones:

· Throughout this Plan, any reference to a zone in Orange LEP 2000 is to be taken to be a reference to the corresponding zone(s) in the zone conversion table.

The corresponding zone to zone 2(a) Urban Residential (Orange LEP 2000) is zone R1 General Residential (Orange LEP 2011). As such, Orange DCP 2004-07 - Development in Residential Areas is relevant to this proposal. The provisions of Part 7 are considered below.

PART 7.2 - SUBDIVISION

There is a single element to the proposed subdivision, being a Strata to create three lots, one for each of the proposed units, plus a common property lot for the driveways and other common property elements.

The subdivision is effectively the second stage of the overall development, intended to follow once the construction of the units is complete.

There are no issues arising from the proposed subdivision.

PART 7.7 - DESIGN ELEMENTS FOR RESIDENTIAL DEVELOPMENT STREETSCAPE

Neighbourhood Character

The DCP sets the following Planning Outcomes in regard to Neighbourhood Character:

· Site layout and building design enables the:

- creation of attractive residential environments with clear character and identity

- use of site features such as views, aspect, existing vegetation and landmarks

· Buildings are designed to complement the relevant features and built form that are identified as part of the desired neighbourhood character.

· The streetscape is designed to encourage pedestrian access and use.

The DCP requires that buildings are designed in a fashion that complements the relevant features and built form that are identified as part of the desired neighbourhood character. The proposed development comprises two detached dwellings at the frontage, each single storey with an identifiable entry and garaging set behind the principal building line. General form and massing of these dwellings is considered to be similar to those that already exist in the street.

The residential units are generally smaller scale units, but of traditional forms and single storey heights. The buildings are adequately spaced so that building bulk will tend to be satisfactory by allowing glimpses past the buildings and adequate spacing between each of the dwellings.

The general form and character of the street is as single storey detached housing, using a plethora of styles and finishes.

It is considered that the proposed development is compatible to the general neighbourhood character of the locality. The character of the neighbourhood is defined by detached dwellings that are orientated to the street on the eastern side of McLachlan Street, and vacant Industrial land on the western side.

Figure 3: typical development for the surrounding residential area

There are some other examples of medium density housing development, the most notable being at 228 McLachlan Street located to the south of the subject property and shown below:

Figure 4: similar development at 228 McLachlan Street

Front yards are landscaped and external finishes include face brick, and painted and clad walls. The finishes of the units are considered appropriate in this neighbourhood. The function of the neighbourhood will not be unreasonably affected by the development. Infill residential development is an acceptable component of established residential areas.

The proposed dwellings located at the rear will not have a streetscape presence in that they will not be significantly visible from the street. Nevertheless, the building design and detailing for these dwellings relate to the bulk, scale and finishes of adjoining established dwellings. The proposed buildings will not have an adverse impact upon the neighbourhood character.

Building Appearance

The DCP sets the following Planning Outcomes in regard to Building Appearance:

· The building design, detailing and finishes relate to the desired neighbourhood character, complement the residential scale of the area, and add visual interest to the street.

· The frontages of buildings and their entries face the street.

· Garages and car parks are sited and designed so that they do not dominate the street frontage.

The external finishes of the proposed dwellings are considered appropriate in this neighbourhood. The single storey dwelling character is consistent with the surrounding low scale development, with brick facades, standard hipped roofs, and simple articulation and variation in building materials. Whilst the buildings will be of a modern appearance, this is considered acceptable for modern infill development within the surrounding area. The proposed dwellings all have clear entrances/openings to the internal driveway, including a front door and dining room window for surveillance. The Landscape Concept Plan provides areas for some minor landscaping, although this in no way replaces the vegetation to be removed. Landscaping will be further addressed below.

Setbacks

The DCP sets the following Planning Outcomes in regard to Setbacks:

· Street setbacks contribute to the desired neighbourhood character, assist with the integration of new development and make efficient use of the site.

· Street setbacks create an appropriate scale for the street considering all other streetscape components.

The subject land comprises a rectilinear shaped development block. The site has been substantially cleared. The proposed location of the dwelling houses when viewed from McLachlan Street will present differently from existing surrounding development, but in an acceptable way. No significant changes to setbacks are proposed.

Fences and Walls

The DCP sets the following Planning Outcomes in regard to Fences and Walls:

· Assist in highlighting entrances and creating a sense of identity within the streetscape.

· Are constructed of materials compatible with associated housing and with fences visible from the sites that positively contribute to the streetscape.

The applicant is not proposing front fencing as part of this application. Fencing around the perimeter will generally be standard Colorbond fencing. In this case it is considered appropriate for this style of boundary fencing to be applied.

Visual Bulk

The DCP sets the following Planning Outcome in regard to Visual Bulk:

· Built form accords with the desired neighbourhood character of the area with:

- side and rear setbacks progressively increased to reduce bulk and overshadowing

- site coverage that retains the relatively low density landscaped character of residential areas

- building form and siting that relates to landform, with minimal land shaping (cut and fill)

- building height at the street frontage that maintains a comparable scale with the predominant adjacent development form

- building to the boundary where appropriate.

The proposed development complies with the visual bulk provisions

Walls and Boundaries

The DCP sets the following Planning Outcome in regard to Walls and Boundaries:

· Building to the boundary is undertaken to provide for efficient use of the site taking into account:

- the privacy of neighbouring dwellings and private open space

- the access to daylight reaching adjoining properties

- the impact of boundary walls on neighbours.

The proposal does not involve building to the boundary. It does propose dwellings that are set at the standard 900mm setback. These arrangements have no significant effect on privacy or overshadowing in themselves. There are no walls on boundaries. The locations of the proposed dwellings are consistent with the requirements of the Building Code of Australia (BCA).

Daylight and Sunlight, and Required Private Open Space

The DCP sets the following Planning Outcome in regard to Daylight and Sunlight:

· Buildings are sited and designed to ensure:

- daylight to habitable rooms in adjacent dwellings is not significantly reduced

- overshadowing of neighbouring secluded open spaces or main living area windows is not significantly increased

- consideration of Council’s Energy Efficiency Code.

To this must be added an assessment of the impacts on neighbours’ properties. In this regard the proposed development has no significant impact.

North-Facing Windows

With regard to internal access, the DCP performance standard is that solar access be provided to at least 75% of north-facing living area windows for a minimum of four hours in midwinter. The proposed development is compliant with this standard.

Solar Access for Private Open Space

With regard to solar access to private open space areas, the specified performance standard is solar access to at least 40% of the main area of private open space. "Main area" is not well defined in the DCP; however, it is considered to be taken as 40% of the 5m x 5m area requirement for private open space.

The proposed development is slightly deficient in the amount of private open space for Unit 3, and Units 1 and 2 do not comply with respect to solar access to the main areas of the private open space. The detailed analysis is set out in the tables below:

Required POS and overshadowing assessment:

	Unit 1 (81.1 m²)	Unit 2 (81.1 m²)	Unit 3 (105.3 m²)
Required POS	40.6 m²	40.6 m²	52.6 m²
Provided POS	52.8 m² (excludes water tank)	52.8 m² (excludes water tank)	51.2 m² (excludes water tank)
Does POS comply	Yes	Yes	No
minimum complying unshaded area (40% of Main area, main area is the 5m x 5m component)	see below (No)	see below (No)	see below (Yes)
5m x 5m main area	Yes	Yes	No must exclude water tank)
main area directly accessible to living areas	No	No	No

9am

10am

11 am

12am

1pm

2pm

3pm

Compliance

Unit 1

(10m²)

7.5 m²

(No)

16m2

(Yes)

25 m²

(Yes)

23 m²

(Yes)

12 m²

(Yes)

<1 m²

(No)

<1 m²

(No)

Unit 2

(10m²)

8.2 m²

(No)

16 m²

(Yes)

25 m²

(Yes)

23 m²

(Yes)

12 m²

(Yes)

<1 m²

(No)

<1 m²

(No)

Unit 3

(10m²)

<10 m²

((No)

>10 m²

(Yes)

>10 m²

(Yes)

>10 m²

(Yes)

16 m²

(Yes)

26 m²

(Yes)

13 m²

(Yes)

Yes

As can be seen from the above tabular analysis, there are a number of areas of non-compliance with respect to both private open space and solar access. The private open space has some minor elements of non-compliance relating to the amounts of open space proposed for Units 1 and 2, but these areas of non-compliance are relatively minor and not of great concern. The main area of non-compliance and of more concern is the shape of the private open space area. The DCP requires the 5m x 5m "main area" to be directly accessible from the living area of the unit, which for each of the three units is not the case. This will have the effect of lessening the functionality of the outdoor private open space of each unit.

In terms of overshadowing, the applicant has produced overshadowing assessments that show that, overall, the private open space for each of the units complies. However, the DCP requires that solar access relate to the "main area” of each open space area, being the 5m x 5m area set up in the DCP. In this respect proposed Units 1 and 2 do not meet the relevant Planning Outcome. The extent of non-compliance for solar access is small (about 30 minutes per day). Whilst the amount of sunlight available to the “main area” of private open space is compromised to a degree by the design there is nonetheless suitable opportunity for reasonable solar access for future residents within the remainder of the private areas proposed. It is recommended that Council in this case accepts a degree of non-compliance.

Views

The DCP states the following in terms of views

· Building form and design allow for residents from adjacent properties to share prominent views where possible.

· Views including vistas of heritage items or landmarks, are not substantially affected by the bulk and scale of new development.

The subject site is not within an important view corridor. The proposed dwellings will not unreasonably diminish views for other properties in the vicinity

Visual Privacy

The DCP sets the following Planning Outcome in regard to Visual Privacy:

· Direct overlooking of principal living areas and private open spaces of other dwellings is minimised firstly by:

- building siting and layout

- location of windows and balconies

and secondly by:

- design of windows or use of screening devices and landscaping.

The proposed development is not likely to present any issues in relation to visual privacy or overlooking internally or for neighbours.

Acoustic Privacy

The DCP sets the following Planning Outcome in regard to Acoustic Privacy:

· Site layout and building design:

- protect habitable rooms from excessively high levels of external noise

- minimise the entry of external noise to private open space for dwellings close to major noise sources

- minimise transmission of sound through a building to affect other dwellings.

The subject site is located within a residential area and will not be subject to high noise sources. The proposed development will not have a significant effect on the acoustic privacy of the locality.

Security

The DCP sets the following Planning Outcomes in regard to Security:

· The site layout enhances personal safety and minimises the potential for crime, vandalism and fear.

· The design of dwellings enables residents to survey streets, communal areas and approaches to dwelling entrances.

The siting and design of the dwellings are appropriate to maintain safety and minimise the potential for crime, vandalism and fear for residents. Habitable room windows will address the common property, thereby providing opportunities for natural surveillance. The proposed landscaping and fencing will not restrict sightlines to public areas and will delineate communal and private spaces. Internal access to the dwellings will be available through the garages.

The development is consistent with the above planning outcomes.

Car Parking

The DCP sets the following Planning Outcomes in regard to Car Parking:

· Parking facilities are provided, designed and located to:

- enable the efficient and convenient use of car spaces and access ways within the site

- reduce the visual dominance of car parking areas and access ways.

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

DWELLING SIZE OR NUMBER OF BEDROOMS	AVERAGE CAR PARKING PER DWELLING
Small (<75m2) or 1-bedroom unit	1.0 spaces per unit
Medium (75m2 – 110m2) or 2-bedroom unit	1.2 spaces per unit
Large (>110m2) or 3+ -bedroom unit	1.5 spaces per unit
*Visitor Parking*	0.2 spaces per unit

The development comprises one large and two medium dwellings. This generates a parking demand of 4.5 onsite parking spaces (rounded up to five spaces). The development provides five spaces in the form of three x single garages and two x visitor spaces.

Open Space and Landscaping

The DCP sets the following Planning Outcomes in regard to Open Space and Landscaping:

· The site layout provides open space and landscaped areas which:

- contribute to the character of the development by providing buildings in a landscaped setting

- provide for a range of uses and activities including stormwater management

- allow cost effective management.

· The landscape design specifies landscape themes consistent with the desired neighbourhood character; vegetation types and location, paving and lighting provided for access and security.

· Major existing trees are retained and protected in a viable condition whenever practicable through appropriate siting of buildings, access ways and parking areas.

· Paving is applied sparingly and integrated in the landscape design.

At this point the applicant has a basic landscape concept plan; however there is adequate open space to allow some landscaping to be provided.

Despite the site’s obvious area constraints, the landscape plan suggests that it is possible to provide a level of softening and improved amenity to the proposed development through effective landscaping. Careful selection of planting is required and adequate care will need to be exercised in order for the landscaping to grow and provide effective relief to the built forms of the development. To this end, the consent includes a condition requiring the completion of the landscaping in accordance with the approved plans.

DEVELOPMENT CONTRIBUTIONS PLAN 2015

The development has been assessed pursuant to Orange Development Contributions Plan 2015. The following table itemises the contributions payable for the development. A condition is attached to reflect the following requirements

The payment of $11,367.56 is to be made to Council in accordance with Section 94 of the Act and the Orange Development Contributions Plan 2015 (LGA Remainder) towards the provision of the following public facilities:

Open Space and Recreation	@ $1,928.27 x 2 additional medium dwgs	3,856.54
Community and Cultural	@ $388.37 x 2 additional medium dwgs	776.74
Roads and Cycleways	@ $3,022.11 x 2 additional medium dwgs	6,044.22
Stormwater Drainage	@ $180.45 x 2 additional medium dwgs	360.90
Local Area Facilities	Not applicable	---
Plan Preparation & Administration	@ $164.58 x 2 additional medium dwgs	329.16
TOTAL:		$11,367.56

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2015 (LGA Remainder).

Section 64 Water and Sewer Headworks Charges

Section 64 water and sewer headwork charges are also applicable to the proposal. Such charges are calculated at the time of release of a Construction Certificate for the proposed development. Attached are draft conditions requiring the payment of the required contributions prior to the issue of a Construction Certificate.

PROVISIONS PRESCRIBED BY THE REGULATIONS s79C(1)(a)(iv)

The development is not inconsistent with the provisions prescribed by the regulations.

THE LIKELY IMPACTS OF THE DEVELOPMENT s79C(1)(b)

Traffic Impacts

The capacity of the road network in the vicinity of the site is sufficient to accommodate additional localised traffic generated by the development. Council’s Technical Services Division advises that the proposed driveways will be appropriately sited so as to prevent vehicle conflicts.

Neighbourhood Amenity

In general, it is considered the proposed development will not have an excessive or unsatisfactory impact on neighbourhood amenity.

Cumulative Impacts

This locality is a new subdivision with an emerging contemporary character. Many of the lots in the subdivision have been built upon, and of these about half have been approved for or are developed for dual occupancy, multi dwelling residential, or further subdivision. These are all forms of residential development with higher than anticipated densities concentrated in a relatively small area. Such proliferation of higher density development does have a cumulative impact on the nature of the locality, and not all of that impact can be regarded as beneficial.

THE SUITABILITY OF THE SITE s79C(1)(c)

The site is considered to be generally suitable for the proposed development, though it is conceded there are obvious constraints impacting the site suitability that have previously been identified and discussed within the report.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s79C(1)(d)

The proposed development is defined as "advertised development" under the provisions of the LEP. The application was advertised for the prescribed period of 14 days and at the end of that period one submission had been received from the tenant of the front property. A summary of the issues raised in the submission is provided below.

Property Access

The objection relates to the possible conflicts in the driveway access for the dwelling the objector occupies on Lot 100. However, satisfactory cross easements exist to ensure continuing shared access for both properties.

Stormwater

The tenant strongly objects to this aspect of the proposed development, correctly pointing out that the use of the rear yard area of Lot 100 as a detention basin will restrict its use as a grassed area of private open space. Matters in relation to stormwater drainage have been addressed in the body of this report relating to Stormwater Drainage.

Privacy and Enjoyment of Property

The objector is concerned that as an occupant of a nearby rental property, two windows in Unit 1 will affect her privacy. At the present time there is no fencing, however a condition of consent is included that will require the provision of fencing around the perimeter of Lot 101. This will reduce the ability of the development on Lot 101 to cause privacy issues.

Increased Traffic Flow and Noise

The objector is concerned that the development if approved will increase the intrusion of noise into her dwelling. It is considered that the proposed development is likely to increase noise intrusion, however it is unlikely to be excessive in terms applicable noise assessment standards.

PUBLIC INTEREST s79C(1)(e)

The proposed development is considered to be potentially of some public interest because of the potential risks that approval this development poses to the dependability of Clause 4.1(B) of the LEP. Overall however, it is considered that the development would be of minor interest to the wider public due to the relatively localised nature of potential impacts. The proposal is inconsistent with the LEP provisions, however it is considered that grounds do exist to allow a small variation for this development.

SUMMARY

The proposed development is permissible with the consent of Council only with recourse to Clause 4.6 Development Standards. The applicant requests Council to support a variation to the minimum lot size requirements outlined in Clause 4.1(B) of LEP 2011. This is further complicated by the form of request for variation contained within the written statement submitted with the application. Council ought not allow the variation on the basis of the applicant's written statement if it wishes to complete its Clause 4.6 assessment in a manner that protects the LEP for future similar situations; and also undertake its assessment in accordance with Land & Environment Court principles and in accordance with the Department of Planning Five Part Test guidelines.

Council is only obligated to consider the written submission and may also undertake its assessment in accordance with the known locality characteristics and the form of the development shown on the plans. Whilst the applicant has placed themselves, and Council, in a position far from satisfactory, the basic development proposal is considered to be sound, and able to be approved. The basic problem confronting this assessment is essentially a legal interpretation of the density provisions, and not any inherent problem to do with the design.

A section 79C assessment of the development indicates that the development is acceptable in this instance. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

The requirements of the Environmental Health and Building Surveyor and the Engineering Development Section are included in the attached Notice of Approval.

Attachments

1 Notice of Approval, D16/27073 ⇩

2 Plans, D16/27065 ⇩

3 Submission, D16/27066 ⇩

Planning and Development Committee 5 July 2016

2.3 Development Application DA 92/2016(1) - 238 and 238A McLachlan Street

Attachment 1 Notice of Approval

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ORANGE CITY COUNCIL

Development Application No DA 92/2016(1)

NA16/ Container PR8204

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 81(1)

Development Application
Applicant Name:	Fast Track Property Investment
Applicant Address:	C/- Anthony Daintith Town Planning PO Box 1975 ORANGE NSW 2800
Owner’s Name:	Mr D A Sills
Land to Be Developed:	Lots 100 and 101 DP 1218969 – 238 and 238A McLachlan Street, Orange
Proposed Development:	Multi Dwelling Housing (three dwellings) and Subdivision (three lot strata)

Building Code of Australia building classification:	As determined by Certifier

Determination
Made On:	5 July 2016
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	6 July 2016
Consent to Lapse On:	6 July 2021

Terms of Approval

The reasons for the imposition of conditions are:

(1) To ensure a quality urban design for the development which complements the surrounding environment.

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

(4) To provide adequate public health and safety measures.

(5) Because the development will require the provision of, or increase the demand for, public amenities and services.

(6) To ensure the utility services are available to the site and adequate for the development.

(7) To prevent the proposed development having a detrimental effect on adjoining land uses.

(8) To minimise the impact of development on the environment.

Conditions

(1) The development must be carried out in accordance with:

(a) Plans numbered Plans by Anthony Daintith Town Planning (ADTP) referenced 2015-052DA dated 11.08.2015, sheets 2-7 (inclusive) (6 sheets)

(b) statements of environmental effects or other similar associated documents that form part of the approval

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

(2) All building work must be carried out in accordance with the provisions of the Building Code of Australia.

(3) A sign is to be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

(a) showing the name, address and telephone number of the principal certifying authority for the work, and

(b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out.

(4) In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of the Act, evidence that such a contract of insurance is in force is to be provided to the Principal Certifying Authority before any building work authorised to be carried out by the consent commences.

(5) Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

(a) in the case of work for which a principal contractor is required to be appointed:

(i) the name and the licence number of the principal contractor, and

(ii) the name of the insurer by which the work is insured under Part 6 of that Act,

(b) in the case of work to be done by an owner-builder:

(i) the name of the owner-builder, and

(ii) if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

If arrangements for doing the residential building work are changed while the work is in progress so that the information under this condition becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the

(6) Where any excavation work on the site extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must, at the person’s own expense:

(a) protect and support the adjoining premises from possible damage from the excavation, and

(b) where necessary, underpin the adjoining premises to prevent any such damage.

Note: This condition does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.

THREE DWELLINGS

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(7) Full details of external colours and finishes of external materials are to be submitted and approved by Councils Manager Development Assessments prior to the issue of a Construction Certificate.

(8) The payment of $11,367.56 is to be made to Council in accordance with Section 94 of the Act and the Orange Development Contributions Plan 2015 (LGA Remainder) towards the provision of the following public facilities:

Open Space and Recreation	@ $1,928.27 x 2 additional medium dwgs	3,856.54
Community and Cultural	@ $388.37 x 2 additional medium dwgs	776.74
Roads and Cycleways	@ $3,022.11 x 2 additional medium dwgs	6,044.22
Stormwater Drainage	@ $180.45 x 2 additional medium dwgs	360.90
Local Area Facilities	(N/A)	(N/A)
Plan Preparation & Administration	@ $164.58 x 2 additional medium dwgs	329.16
TOTAL:		$11,367.56

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2012 (LGA Remainder).

(9) Protection of the Pinus Radiata (Monterey Pine) on the southern property adjoining (236 McLachlan Street) is required. The tree is located some 2 metres (to centre of trunk) from the property boundary. The tree has an estimated Structural Root Zone (SRZ) of 3.4 and a Tree Protection Zone (TPZ) of 8.4 metres radius. To maximise the survival and ongoing health of this tree, all works constituting built infrastructure, including excavation, trenching for services or the like that occur within 1.5 metres of the southern property boundary shall, prior to any work being approved (in a Construction Certificate) be submitted with a report from a qualified arborist outlining the management measures to be taken for construction within that zone. The arborists report shall unequivocally certify that the tree to be protected will be retained and will not suffer any adverse effects to its health as a result of the work to be carried out.

All work within the 1.5m buffer shall be carried out strictly in accordance with AS 4970-2009 (Protection Of Trees On Development Sites). Should any roots greater than 50mm diameter be encountered, all work with machinery is to cease whilst the roots are pruned in accordance with Australian Standard 4373-2007.

(10) An approval under Section 68 of the Local Government Act is to be sought from Orange City Council, as the Water and Sewer Authority, for water, sewer and stormwater connection. Details concerning the proposed backflow prevention between the nominated water tank supply and the potable system are to be provided. No plumbing and drainage is to commence until approval is granted.

(11) Engineering plans, showing details of all proposed work and adhering to any engineering conditions of development consent, are to be submitted to, and approved by, Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing of a Construction Certificate.

(12) A water and soil erosion control plan is to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) for approval prior to the issuing of a Construction Certificate. The control plan is to be in accordance with the Orange City Council Development and Subdivision Code and the Landcom, Managing Urban Stormwater; Soils and Construction Handbook.

(13) The development’s stormwater design is to include stormwater detention contained wholly within Lot 101, designed to limit peak outflows from the land to the pre-existing natural outflows up to the 100 year ARI frequency, with sufficient allowance in overflow spillway design capacity to safely pass flows of lower frequency (that is, a rarer event) without damage to downstream developments. Where appropriate, the spillway design capacity is to be determined in accordance with the requirements of the Dam Safety Committee.

The design of the detention storage is to be undertaken using the ILSAX rainfall-runoff hydrologic model or an approved equivalent capable of assessing runoff volumes and their temporal distribution as well as peak flow rates. The model is to be used to calculate the flow rates for the existing and post-development conditions. The developed flows are to be routed through the proposed storage within the model so that the outflows obtained are no greater than the flows obtained for the pre-existing natural flows. A report detailing the results of the analysis, which includes:

· catchment plan showing sub-catchments under existing and developed conditions;

· schematic diagram of the catchment model showing sub areas and linkages;

· tabulation detailing the elevation, storage volume and discharge relationships; and

· tabulation for the range of frequencies analysed, the inflows, outflows and peak storage levels for both existing and developed conditions;

together with copies of the data files for the model and engineering design plans of the required drainage system are to be submitted and approved by Orange City Council prior to the issue of a Construction Certificate.

(14) Proposed dwellings 1 to 3 are to be provided with interlot stormwater drainage where the surface of the entire lot cannot be drained to the kerb and gutter at the lot frontage. A concrete grated stormwater pit is to be constructed within each lot provided with interlot stormwater drainage. Engineering plans for this drainage system are to be approved by Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing a Construction Certificate.

(15) A 150mm-diameter sewer main is to be constructed from Council’s existing main to serve the proposed dwellings. Prior to issuing a Construction Certificate engineering plans are to be submitted to and approved by Orange City Council for this sewerage system.

(16) Payment of contributions for water, sewer and drainage works is required to be made at the contribution rate applicable at the time that the payment is made. The contributions are based on 1.33 ETs for water supply headworks and 1.33 ETs for sewerage headworks. A Certificate of Compliance, from Orange City Council in accordance with the Water Management Act 2000, will be issued upon payment of the contributions.

This Certificate of Compliance is to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

(17) A fire hydrant and domestic water services are to be located in the common driveway area. Engineering plans are to be submitted to Orange City Council for approval prior to the issuing of a Construction Certificate.

PRIOR TO WORKS COMMENCING

(18) A Construction Certificate application is required to be submitted to, and issued by Council/Accredited Certifier prior to any excavation or building works being carried out onsite.

(19) A temporary onsite toilet is to be provided and must remain throughout the project or until an alternative facility meeting Council’s requirements is available onsite.

(20) The location and depth of the sewer junction/connection to Council’s sewerage system is to be determined to ensure that adequate fall to the sewer is available.

DURING CONSTRUCTION/SITEWORKS

(21) All construction/demolition work on the site is to be carried out between the hours of 7.00 am and 6.00 pm Monday to Friday inclusive, 7.00 am to 5.00 pm Saturdays and 8.00 am to 5.00 pm Sundays and Public Holidays. Written approval must be obtained from the General Manager of Orange City Council to vary these hours.

(22) All materials onsite or being delivered to the site are to be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 are to be complied with when placing/stockpiling loose material or when disposing of waste products or during any other activities likely to pollute drains or watercourses.

(23) All services (water, sewer and stormwater) shall be laid outside the easement unless there is a direct connection to the main within that easement.

(24) Any adjustments to existing utility services that are made necessary by this development proceeding are to be at the full cost of the developer.

(25) The provisions and requirements of the Orange City Council Development and Subdivision Code are to be applied to this application and all work constructed within the development is to be in accordance with that Code.

The developer is to be entirely responsible for the provision of water, sewerage and drainage facilities capable of servicing all the dwellings from Council’s existing infrastructure. The developer is to be responsible for gaining access over adjoining land for services where necessary and easements are to be created about all water, sewer and drainage mains within and outside the lots they serve.

(26) All driveway and parking areas are to be sealed with bitumen, hot mix or concrete and are to be designed for all expected loading conditions (provided however that the minimum pavement depth for gravel and flush seal roadways is 200mm) and be in accordance with the Orange City Council Development and Subdivision Code.

(27) The existing 150mm diameter sewer main that crosses the site is to be accurately located. Where the main is positioned adjacent to dwelling 3, measures are to be taken in accordance with Orange City Council Policy - Building over and/or adjacent to sewers ST009.

(28) Water and sewerage reticulation is to be provided to every dwelling in the proposed development in accordance with the Orange City Council Development and Subdivision Code.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(29) A 1.8m high fence shall be provided around the perimeter of the development excluding the frontage. A 1.5m high fence shall be provided between each unit. The height of the fence shall be measured from the highest finished ground level adjacent to each part of that fence.

(30) A total of 5 off-street car parking spaces shall be provided upon the site in accordance with the approved plans, the provisions of Development Control Plan 2004, and be constructed in accordance with the requirements of Council's Development and Subdivision Code prior to the issue of an Occupation Certificate.

(31) Landscaping shall be installed in accordance with the approved plans and shall be permanently maintained to the satisfaction of Council's Manager Development Assessments.

(32) Where Orange City Council is not the Principal Certifying Authority, a final inspection of water connection, sewer and stormwater drainage shall be undertaken by Orange City Council and a Final Notice of Inspection issued, prior to the issue of either an interim or a final Occupation Certificate.

(33) No person is to use or occupy the building or alteration that is the subject of this approval without the prior issuing of an Occupation Certificate.

(34) A Certificate of Compliance, from a Qualified Engineer, stating that the stormwater detention basin complies with the approved engineering plans is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(35) Certification from Orange City Council is required to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate stating that all works relating to connection of the development to Council assets, works on Public Land, stormwater, sewer and water reticulation mains and footpaths have been carried out in accordance with the Orange City Council Development and Subdivision Code and the foregoing conditions.

(36) All of the foregoing conditions are to be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions is to be completed prior to the issuing of an Occupation or Subdivision Certificate, unless stated otherwise.

THREE LOT STRATA SUBDIVISION

DURING CONSTRUCTION/SITEWORKS

(37) Any adjustments to existing utility services that are made necessary by this development proceeding are to be at the full cost of the developer.

PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

(38) Application shall be made for a Subdivision Certificate under Section 109(C)(1)(d) of the Act.

(39) Prior to the issuing of the Subdivision Certificate, a Surveyor’s Certificate or written statement is to be provided to the Principal Certifying Authority, stating that the buildings within the boundaries of the proposed Lots comply in respect to the distances of walls from boundaries.

(40) Certification from Telstra/NBN, stating that telecommunication systems comply with Australian Standards, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(41) Certification from Essential Energy, stating that electricity and street lighting systems comply with Essential Energy’s Networks Division Customer Connection Policy NP11.1, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(42) An easement to drain sewage and to provide Council access for maintenance of sewerage works a minimum of 2.0 metres wide is to be created over the proposed sewerage works. The Principal Certifying Authority is to certify that the easement is in accordance with the Orange City Council Development and Subdivision Code prior to the issuing of a Subdivision Certificate.

(43) All services are to be contained within the allotment that they serve. A Statement of Compliance, from a Registered Surveyor, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(44) Where stormwater crosses land outside the lot it favours, an easement to drain water is to be created over the works. A Restriction-as-to-User under section 88B of the NSW Conveyancing Act 1979 is to be created on the title of the proposed Lots requiring that no structures are to be placed on the site, or landscaping or site works carried out on the site, in a manner that affects the continued operation of the interlot drainage system. The minimum width of the easement is to be as required in the Orange City Council Development and Subdivision Code.

(45) All engineering conditions of development as required by this development consent as it relates to the servicing of the 3 dwellings are to be completed prior to the issuing of a Subdivision Certificate.

(46) All of the foregoing conditions are to be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions is to be completed prior to the issuing of an Occupation or Subdivision Certificate, unless stated otherwise.

Other Approvals

(1) Local Government Act 1993 approvals granted under section 68.

Nil

(2) General terms of other approvals integrated as part of this consent.

Nil

Right of Appeal

Disability Discrimination Act 1992:

This application has been assessed in accordance with the Environmental Planning and Assessment Act 1979. No guarantee is given that the proposal complies with the Disability Discrimination Act 1992.

The applicant/owner is responsible to ensure compliance with this and other anti-discrimination legislation.

The Disability Discrimination Act covers disabilities not catered for in the minimum standards called up in the Building Code of Australia which references AS1428.1 - "Design for Access and Mobility". AS1428 Parts 2, 3 and 4 provides the most comprehensive technical guidance under the Disability Discrimination Act currently available in Australia.

Disclaimer - S88B Restrictions on the Use of Land:

The applicant should note that there could be covenants in favour of persons other than Council restricting what may be built or done upon the subject land. The applicant is advised to check the position before commencing any work.


Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	DAVID WADDELL - DIRECTOR DEVELOPMENT SERVICES
Date:	6 July 2016

Planning and Development Committee 5 July 2016

2.4 Development Application DA 129/2016(1) - 261 Ophir Road

TRIM REFERENCE: 2016/1387

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	20/04/2016
Applicant/s	Orange City Council
Owner/s	Orange City Council
Land description	Lot 112 DP 1170567 - 261 Ophir Road, Orange
Proposed land use	Waste Disposal Facility (community recycling centre)
Value of proposed development	$246,400

Council's consent is sought to construct a purpose built waste disposal facility for the purposes of a community recycling centre as part of the NSW Environment Protection Agency Community Recycling Program. The program is intended to make it easier for households to safely dispose of materials that can be hazardous to the environment or public health. The application also involves the installation of a 10,000L rain water tank and upgrade of a section of internal road.

Council staff requested that the applicant provide volumes of waste as part of this development to ascertain if the development would exceed the integrated development thresholds or the designated development thresholds. This is further discussed below.

The development meets Council’s relevant planning requirements and is recommended for approval.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “13.4 Our Environment – Monitor and enforce regulations relating to City amenity”.

Financial Implications

The guidelines instruct Council it should expend money in accordance with the detailed budget adopted for the purposes of implementing the Delivery/Operational Plan for the 2015/16 year.

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 129/2016(1) for Waste or Resource Transfer Station (community recycling centre) at Lot 112 DP 1170567 - 261 Ophir Road, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION

Council's consent is sought to construct a purpose built waste or resource transfer station on land described as Lot 112 DP 1170567 known as 261 Ophir Road, Orange (known as the Orange Resource Recovery Centre). The purpose of the development is to establish a community recycling centre as part of the NSW Environment Protection Agency Community Recycling Program. The program is intended to make it easier for households to safely dispose of materials that can be hazardous to the environment or public health. The application also includes a 10,000L water tank to collect roof water and the upgrade of an internal road.

THE PROPOSAL

The proposal involves the construction of a 24m by 18m covered structure which will house a drive-through lane diagonally through the building, with individual storage areas for separate waste types including:

· gas bottles

· fire extinguishers

· smoke alarms

· fluorescent tubes

· paints

· batteries

The development will also incorporate an undercover recycling shop.

MATTERS FOR CONSIDERATION

Section 5A Assessment

The site is currently being used for waste disposal purposes and is highly disturbed. An inspection reveals that the subject property has no biodiversity or habitat value.

Section 79C

Section 79C of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

Section 91

Integrated Development - Protection of the Environment Operations Act

Council staff wrote to the applicant and requested annual processing volumes to be provided so as to be able to glean if the application ought to be treated as a nominated integrated development application. The applicant responded with the following:

The proposed community recycling centre (CRC) represents an opportunity to better manage waste at the Ophir Road Resource Recovery Facility (ORRRC). It provides a means of separating existing waste streams and to better minimise the potential for impact or harm to the environment. The waste being targeted for collection via the CRC is otherwise delivered to the existing ORRRC site either by residents, who deliver to the current recovery facility, or is waste received at the site as a result of kerbside collection. The CRC application proposes to better manage and direct waste from these sources and divert this from ending up in landfill. As such, there is no additional waste received at the facility.

The proponent operates under an existing scheduled activity licence from the NSW Environment Protection Agency (see below excerpt from the Part 3A Application documentation):

Environment Protection Licence (EPL) No. 5956 is held by the Proponent for its Ophir Road RRC, under the Protection of the Environment Operations Act, 1997. This licence, which is renewed in July each year, is due for its next review on 26 Nov 2013.

The licence covers two schedules activities - Contaminated Soil Treatment and Waste Disposal (application to land), and also applies to other activities carried out on the site, including Waste Processing (non-thermal treatment) and Waste Storage.

In light of the above comments from the applicant, the development was not treated as integrated development. Notwithstanding this, the applicant should be cognisant of their licence obligations and make representations to the EPA to ascertain if an amended licence will be required. A condition is attached to this effect obligating the proponent to obtain any relevant licences or amendments to existing licences.

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The broad aims of the LEP are set out under subclause 2. Those relevant to the application are as follows:

(a) to encourage development which complements and enhances the unique character of Orange as a major regional centre boasting a diverse economy and offering an attractive regional lifestyle,

The application is considered to be consistent with aims (a) and (b) listed above.

Clause 1.6 - Consent Authority

This clause establishes that, subject to the Act, Council is the consent authority for applications made under the LEP.

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

This clause provides that covenants, agreements and other instruments which seek to restrict the carrying out of development do not apply with the following exceptions.

· covenants imposed or required by Council

· prescribed instruments under Section 183A of the Crown Lands Act 1989

· any conservation agreement under the National Parks and Wildlife Act 1974

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

· any biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995

· any planning agreement under Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979.

Council staff are not aware of the title of the subject property being affected by any of the above.

Mapping

The subject site is identified on the LEP maps in the following manner:

Land Zoning Map:	Land zoned SP2 Infrastructure
Lot Size Map:	No Minimum Lot Size
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	High biodiversity sensitivity on the site north eastern boundary
Groundwater Vulnerability Map:	Ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies

Those matters that are of relevance are addressed in detail in the body of this report.

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the SP2 Infrastructure zone (Resource Recovery Centre). The proposed development is defined as a waste or resource transfer station under OLEP 2011, which means:

a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport.

The development is considered to be for a purpose consistent with the land-use shown on the relevant zoning Map, i.e. resource recovery centre. The development is not incompatible with the infrastructure use of the land; moreover, the facility will improve the existing management of the nominated waste streams that already enter the existing facility.

The development is permissible in the zone with the consent of Council.

Clause 2.3 of LEP 2011 references the Objectives for each zone in LEP 2011. These objectives for land zoned SP2 Infrastructure (Resource Recovery Centre) are as follows:

1 - Objectives of zone

· To provide for infrastructure and related uses.

· To prevent development that is not compatible with or that may detract from the provision of infrastructure.

The development is not inconsistent with the objectives of the SP2 Infrastructure Zone (Resource Recovery Centre). The development represents a continuation of the well-established resource recovery centre use of the land and will not create any conflicts with the existing infrastructure use of the land.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 6 - Urban Release Area

Not relevant to the application. The subject site is not located in an Urban Release Area.

Part 7 - Additional Local Provisions

7.3 - Stormwater Management

This clause applies to all industrial, commercial and residential zones and requires that Council be satisfied that the proposal:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting onsite infiltration of water

(b) includes, where practical, onsite stormwater retention for use as an alternative supply to mains water, groundwater or river water; and

The proposal has been designed to include permeable surfaces and includes onsite retention of stormwater through the use of a 10,000L rainwater tank. It is therefore considered that the post-development runoff levels will not unreasonably exceed the pre-development levels.

7.4 - Terrestrial Biodiversity

This clause seeks to maintain terrestrial biodiversity and requires that consent must not be issued unless the application demonstrates whether or not the proposal:

(a) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land

(b) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna

(c) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(d) is likely to have any adverse impact on the habitat elements providing connectivity on the land.

Additionally this clause prevents consent being granted unless Council is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, 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.

A small amount of high biodiversity is identified along the north-eastern boundary that appears to be windbreak plantings with limited or no biodiversity value. In any event, the development is well separated from the area identified as high biodiversity.

7.6 - Groundwater Vulnerability

(b) the cumulative impact (including the impact on nearby groundwater extraction for potable water supply or stock water supply) of the development and any other existing development on groundwater.

Furthermore consent may not be granted unless Council is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact,

(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.

Clause 7.11 Essential Services

Clause7.11 applies. This clause states:

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 proposed 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) Storm water drainage or onsite conservation,

(e) Suitable road access.

All utility services are available to the site and adequate for the proposal, in accordance with Clause 7.11.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 - Remediation of Land applies to the subject development, specifically Clause 7 which states:

7 - Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

The subject land has a long history of being used as a landfill site, and as such it is likely that the site has some level of contamination. As the proposal relates to a continuation of the approved use of the site, it is considered reasonable to not require remediation of the land at this time. Remediating the area of concern under this development application only will derive little benefit given the likely wider spread of contamination within the land.

Additionally, it is noted that annual auditing occurs of leachates as part of the site’s land use as a landfill site.

The development is not a change of use to a more sensitive land use, and as such the site is likely to be contaminated; however it is considered suitable in its contaminated state.

Suitable conditions are attached that require excavated material to be disposed of at a licenced landfill site and a further condition is attached that requires a construction management plan to be prepared for the duration of the construction period that deals with amongst other matters, construction works within the contaminated site.

State Environmental Planning Policy (Infrastructure)

State Environmental Planning Policy (Infrastructure) applies to the subject development, specifically clause 104 which states:

104 - Traffic-generating development

(1) This clause applies to development specified in Column 1 of the Table to Schedule 3 that involves:

(a) new premises of the relevant size or capacity, or

(b) an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity.

(2) In this clause, relevant size or capacity means:

(a) in relation to development on a site that has direct vehicular or pedestrian access to any road—the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or

(b) in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection—the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3.

(3) Before determining a development application for development to which this clause applies, the consent authority must:

(a) give written notice of the application to the RTA within 7 days after the application is made, and

(b) take into consideration:

(i) any submission that the RTA provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, the RTA advises that it will not be making a submission), and

(ii) the accessibility of the site concerned, including:

(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.

(4) The consent authority must give the RTA a copy of the determination of the application within 7 days after the determination is made.

The Roads and Maritime Service have provided advice to the effect that the development will not alter the existing situation, and therefore they make no submission in relation to the development.

State Environmental Planning Policy 64 - Advertising and Signage

State Environmental Planning Policy 64 - Advertising and Signage is relevant to the assessment of the application insofar as the applicant is proposing a 4.5m long by 1.2m high sign on the western elevation displaying the words “community recycling centre” and a logo. Pursuant to Clause 6 of the SEPP, given that the sign is displayed inwardly within the site and is not visible from a public space, the SEPP is not applicable. Council staff raise no objections to the proposed sign.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION s79C(1)(a)(ii)

There are no draft environmental planning instruments that apply to the subject land or proposed development.

DESIGNATED DEVELOPMENT

The applicant was requested to provide waste volumes to establish if the development would exceed any of the thresholds for designated development. The applicant responded with the following:

Additionally, the proposed development represents a continuation of the currently approved use, via Part 3A Project Approval MP 09_0025, being an improvement to an existing component of the approved Orange Waste Project. The Orange Waste Project demonstrated the inclusion of an existing recovery and storage shop area (Figure B1-5 of the GHD EIS, 2009) and this application represents a re-organisation and improvement of that arrangement.

In essence therefore, the current application seeks consent for the physical erection of buildings and the carrying out of works to land, to facilitate provision of the necessary infrastructure. The application does not propose or seek consent for any change of use. As the use of the site remains unchanged, the question as to the designation of the use does not arise.

Alternatively, if the above position is not accepted, the development could logically be categorised as being an addition or alteration to the existing designated development currently approved at the site (by virtue of Part 3A Project Approval MP 09_0025), pursuant to clause 35 of Schedule 3 of the Environmental Planning and Assessment Regulations 2000. Clause 35 states:

Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

Pursuant to clause 36 of Schedule 3, there are a number of factors to be taken into consideration in making determination, discussed in the below Table:

Are alterations and additions designated development

Clause 36 Provisions

Response

(a) the impact of the existing development having regard to factors including:

(i) previous environmental management performance, including compliance with the conditions of any consents, licences, leases or authorisations by a public authority and compliance with any relevant codes of practice, and

(ii) rehabilitation or restoration of any disturbed land, and

(iii) the number and nature of all past changes and their cumulative effects, and

(i) Since operations began the applicant has exhibited a strong environmental management performance with ongoing compliance with all conditions of consent and notably, no known complaints from any surrounding land owners or members of the public. The facility represents a best practice arrangement. The applicant continues to comply with the relevant conditions of consent and EPL licence conditions.

(ii) The site is the subject of ongoing and continual rehabilitation in accordance with the measures set down in the 2009 GHD EIS and reflected via the conditions of the Project Approval (specifically conditions 15, 18, 31 and the statement of commitments)

(iii) The project approval of the site has been the subject of one modification which sought to reorganise the physical arrangement of the site and internal management, including consolidation of a number of key site operations into one building. The modification made no change to the volumes of waste being received at the site or to the volume of vehicles visiting the site. No other changes to the site have occurred since. The cumulative impact of the development has been positive as it provides a regional waste management resource utilizing best practice management techniques. The current application is a further example of the ways in which the applicant is committed to reducing waste to landfill.

(b) the likely impact of the proposed alterations or additions having regard to factors including:

(i) the scale, character or nature of the proposal in relation to the development, and

(ii) the existing vegetation, air, noise and water quality, scenic character and special features of the land on which the development is or is to be carried out and the surrounding locality, and

(iii) the degree to which the potential environmental impacts can be predicted with adequate certainty, and

(iv) the capacity of the receiving environment to accommodate changes in environmental impacts, and

(i) As stated, the volume of waste being received at the site will remain unchanged; the application simply provides an improved mechanism to manage existing waste streams.

(ii) The existing environment is described in Section 5 of the SEE. As an existing approved waste management facility, the site is well suited to hosting the proposed CRC. There would be no additional impact to the environment as a result of the physical works and the long term impacts would be positive due to diverting several specific waste types from landfill. This is in line with Council’s strategic targets. In this regard, the proposed CRC will be regularly serviced by the EPA nominated and contracted service provider “Toxfree” with inventory control of collected waste products regularly measured and reviewed in a live format over the web by Toxfree.

(iii) As the operation improves management of existing waste there is confidence that impacts can be adequately determined.

(iv) As waste volumes remain unchanged and the application improves site management, it is considered that the environment has the capacity to accommodate the proposed increased extraction level.

(c) any proposals:

(i) to mitigate the environmental impacts and manage any residual risk, and

(ii) to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities.

(i) The applicant intends to continue to work closely with Council and the Environment Protection Agency to ensure that all required consent and licence conditions are met and all residual impacts are appropriately mitigated

(ii) The site would continue to be operated in accordance with Orange Waste Project Operational Environmental Management Plan.

By virtue of the above, it is considered that the development can legitimately be considered additions and alterations to an existing approved operation and therefore that the development is not designated development.

Council staff accept the above contentions insofar as the development repents a minor expansion of an existing development; an expansion that, in itself, would not result in a significant increase in the environmental impacts of the total development. As such, the development application currently before Council need not be treated as designated development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s79C(1)(a)(iii)

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land (Chapter 0 - LEP 2011, and Chapter 10 - Special Uses and Roads Zone). An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

Pursuant to Planning Outcome 0.2-1 Interim Planning Outcomes - Conversion of Zones:

· Throughout this Plan, any reference to a zone in Orange LEP 2000 is to be taken to be a reference to the corresponding zone(s) in the zone conversion table.

The corresponding zone to zone 5(a) Public Purpose zone (Orange LEP 2000) is zone SP2 Infrastructure (Resource Recovery Centre) (Orange LEP 2011). As such, Orange DCP 2004 - Chapter 10 Special Uses and Roads Zone is of primary relevance to this proposal. The relevant provisions of Chapter 10 are considered below.

PO 0.4-13 INTERIM PLANNING OUTCOMES - MAJOR INDUSTRY AND UTILITY BUFFER.

· Development in the vicinity of major industry and utility installations is sited as far as practicable from the industry or installation.

· Development demonstrates that between 10.00pm and 7.00am internal noise levels will be below Laeq 35dB(A) in all bedrooms and less than Laeq 40dB(A) in all other rooms (excluding garages, kitchens, bathrooms or hallways).

The subject land is located in the Major Industry and Utility Buffer Map 2 (see below). The clause seeks to ensure the protection of ongoing operations of major utilities and to prevent incompatible development from occurring in close proximity to a major utility that would jeopardise the operations of that utility.

In this case the proposed development relates to a minor expansion to the existing facility, and as such the proposed development will not unreasonably impact upon those operations and is not considered incompatible.

Chapter 10 - Special Uses and Roads Zone

Chapter 10 - Special Uses and Roads Zone applies to the subject land and proposed development. The DCP prescribes the following applicable Planning Outcome:

· Development proposals demonstrate how potential impact on adjoining land will be addressed.

The proposal will not have adverse impact on adjoining land due to the following:

· The proposal is essentially an expansion to the existing and longstanding use of the land for waste management. The development will not dramatically alter the current operation nor generate land use conflicts over and above the existing situation.

· Existing access and internal circulation will be maintained, with the internal access road east of the facility being upgraded.

· Traffic associated with the site is an accepted and longstanding component of the neighbourhood. Additional traffic as a consequence of the proposal will reasonably integrate with existing volumes and arrangements.

· Potential emissions associated with the development (eg odour or noise) will be contained within the site building and be typical of the existing land use.

Chapter 15 - Car Parking

The development will not generate the requirement for additional parking as there is no material increase in parking demand due to the transient nature of the drive-through arrangement and the fact that the area is currently being used as an outdoor recycling area. There are a number of existing parking spaces within close proximity to the facility.

PROVISIONS PRESCRIBED BY THE REGULATIONS s79C(1)(a)(iv)

The development is not inconsistent with the provisions prescribed by the regulations.

THE LIKELY IMPACTS OF THE DEVELOPMENT s79C(1)(b)

Context and Setting

The subject land is located to the northeast of the urban area and adjoins an industrial estate and other major utilities. The subject land has a long history of being used for the purposes of a waste facility. The proposed development will be commensurate with that long standing land use, and as such is appropriate in the context and setting.

Traffic Impacts

The existing access arrangements to Ophir Road will be maintained, and as the volumes of the nominated waste type will not change (only changing the way in which the waste will be managed) the development is not likely to result in any unreasonable traffic impacts.

Vehicles utilising the facility will be able to enter and leave the site in a forward direction through the drive-through arrangement, exiting via the internal road (to be upgraded).

Visual Impacts

The development is unlikely to result in any unreasonable visual impacts. The proposed building will be well set back form Ophir Road and will be partially screened by the existing vegetation. The building will be visible some distance away near the Clifton Grove entrance, but due to the extensive separation the building will be far from objectionable. The site and the siting of the building benefit from a rising landscaping, an embankment and existing vegetation, which all assist in screening the development on both northerly and southerly approaches on Ophir Road, save for a small glimpse of the building at the site entrance.

Environmental Impact

The construction of the development will not unreasonably impact upon any significant trees or habitat area. The operation of the development is likely to contribute positively to the environment due to the more appropriate way of dealing with these types of wastes in concert with the EPA.

Construction Impacts

The development is proposed to be constructed over an area of landfill. The geotechnical report from Envirowest concluded that:

the fill material contains inadequate allowable bearing capacity for foundations.

Further details will be required at the Construction Certificate stage.

Pedestrian/Vehicle Conflicts

There is the potential for vehicle and pedestrian conflicts, with vehicles reversing into the waste bays, people perusing the recycling shop and vehicles using this facility. Notwithstanding this, the area experiences typically low vehicle speeds, and vehicles using the facility proposed under this application will maintain a forward direction at all times. Ultimately, the development relates to a waste facility, and people using the facility should be cognisant of vehicles and pedestrians whilst at the facility.

It is expected that the management of the facility will implement suitable arrangements to ensure the safe operations of the facility. Notwithstanding this, a condition is attached that requires suitable warning signage to be installed to raise awareness of the risks associated with vehicles and pedestrians in the area.

Cumulative Impact

Cumulative impacts of a development can arise under four typical scenarios, namely:

· time crowded effects where individual impacts occur so close in time that the initial impact is not dispersed before the proceeding occurs

· space crowded where impacts are felt because they occur so close in space they have a tendency to overlap

· nibbling effects occur where small, often minor impacts, act together to erode the environmental conditions of a locality and

· synergistic effects, where a mix of heterogeneous impacts interact such that the combined impacts are greater than the sum of the separate effects.

As this development represents a minor expansion to the facility as a means of better managing a type of waste that already occurs at the site with no increase in volumes and capacities, the likelihood of cumulative impacts occurring as a result are low. The development is considered acceptable in terms of cumulative impacts.

THE SUITABILITY OF THE SITE s79C(1)(c)

The development will be an appropriate fit in the locality given the commensurate land-uses. Council staff are not aware of any physical, natural or technological hazards that may constrain the development from occurring in a satisfactory manner.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s79C(1)(d)

The proposed development is not defined as advertised development under the provisions of the LEP, and as such, no formal exhibition of the application was required. No submissions have been received in relation to this application.

PUBLIC INTEREST s79C(1)(e)

The proposed development is considered to be of moderate interest to the wider public due to the public infrastructure nature of the development. The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines, etc that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of the LEP. A section 79C assessment of the development indicates that the development is acceptable. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

The requirements of the Environmental Health and Building Surveyor and the Engineering Development Section are included in the attached Notice of Approval.

Attachments

1 Notice of Approval, D16/27134 ⇩

2 Plans, D16/27051 ⇩

Planning and Development Committee 5 July 2016

2.5 Development Application DA 101/2016(1) - 1 and 3 Carwoola Drive

TRIM REFERENCE: 2016/1393

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	22 March 2016
Applicant/s	Mr C and Mrs C Bailey, and Mr J Maurice
Owner/s	Mrs BJ Maurice
Land description	Lots 1 and 2 DP 715252 – 1 and 3 Carwoola Drive, Orange
Proposed land use	Subdivision (21 lot residential)
Value of proposed development	$0

Council's consent is sought to undertake a 21 lot residential subdivision of land described as Lots 1 and 2 DP 715252, known as 1 and 3 Carwoola Drive, Orange.

The proposed subdivision is at variance with the Minimum Lots Size Map pursuant to Orange Local Environmental Plan 2011 (LEP) and the relevant development standard. As such, the applicant has sought a variation to the development standard via clause 4.6 of the LEP.

The development is considered satisfactory and is recommended for approval.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “13.4 Our Environment – Monitor and enforce regulations relating to City amenity”.

Financial Implications

The guidelines instruct Council it should expend money in accordance with the detailed budget adopted for the purposes of implementing the Delivery/Operational Plan for the 2015/16 year.

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 101/2016(1) for Subdivision (21 lot residential) at Lots 1 and 2 DP 715252 – 1 and 3 Carwoola Drive, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought to undertake a 21 lot residential subdivision of land described as Lots 1 and 2 DP 715252, known as 1 and 3 Carwoola Drive, Orange.

The development consists of five lots of 2000m²or more fronting Cargo Road; a new road connecting with Carwoola Drive running east-west; and the balance of lots, save for Lots 15 and 21, provided with frontage to either Carwoola Drive or the proposed new road. Lot 15 will be a battleaxe lot with access to Carwoola Drive and Lot 21 will also be a battleaxe lot with access to the proposed road.

MATTERS FOR CONSIDERATION

Section 138 - Roads Act

The development requires the concurrence of the NSW Roads and Maritime Service (RMS) due to the new access points onto Cargo Road for Lots 1-4. The RMS has issued their concurrence subject two conditions relating to access, which are attached as conditions of consent to the Notice.

Section 5A Assessment

This section includes a requirement to consider any adopted assessment guidelines, which means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995. Assessment guidelines are in force (see DECC-W “Threatened Species Assessment Guidelines - The Assessment of Significance”) which requires consent authority to adopt the precautionary principle in its assessment.

The plans have identified three native trees within the subject land that are being retained. A site inspection reveals that the subject property has no biodiversity or habitat value, save for the three trees that are being retained. It is noted that the three native trees are quite immature and present limited significance. The development will not result in a significant impact.

Section 79C

Section 79C of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The broad aims of the LEP are set out under subclause 2. Those relevant to the application are as follows:

(a) to encourage development which complements and enhances the unique character of Orange as a major regional centre boasting a diverse economy and offering an attractive regional lifestyle,

(e) to provide a range of housing choices in planned urban and rural locations to meet population growth,

(f) to recognise and manage valued environmental heritage, landscape and scenic features of Orange.

The application is considered to be consistent with aims (a), (b), (e) and (f) as listed above.

Clause 1.6 - Consent Authority

This clause establishes that, subject to the Act, Council is the consent authority for applications made under the LEP.

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

This clause provides that covenants, agreements and other instruments which seek to restrict the carrying out of development do not apply with the following exceptions.

· covenants imposed or required by Council

· prescribed instruments under Section 183A of the Crown Lands Act 1989

· any conservation agreement under the National Parks and Wildlife Act 1974

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

· any biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995

· any planning agreement under Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979.

Council staff are not aware of the title of the subject property being affected by any of the above.

Mapping

The subject site is identified on the LEP maps in the following manner:

Land Zoning Map:	Land zoned R2 Low Density Residential
Lot Size Map:	Minimum Lot Size 2000m²and 850m²
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Not ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies

Those matters that are of relevance are addressed in detail in the body of this report.

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the R2 Low Density Residential zone. The proposed development is defined as subdivision of land.

Section 4B of the Environment Planning and Assessment Act defines subdivision of land as

the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition.

Subdivision is permitted with the consent of Council in the R2 Low Density Residential zone.

Clause 2.3 of LEP 2011 references the Objectives for each zone in LEP 2011. These objectives for land zoned R2 Low Density Residential are as follows:

Zone R2 Low Density Residential

1 - Objectives of zone

· To provide for the housing needs of the community within a low density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To ensure development is ordered in such a way as to maximise public transport patronage and encourage walking and cycling in close proximity to settlement.

· To ensure that development along the Southern Link Road has an alternative access.

The development is not inconsistent with the objectives of the R2 Low Density Residential zone. The subdivision will provide for additional housing stock in a manner that is consistent with the low density zoning. The development will have a neutral effect on the other three points.

Clause 2.6 - Subdivision - Consent Requirements

This clause triggers the need for development consent for the subdivision of land, which the applicant has applied for.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size

This clause requires the subdivision of land to be equal to or greater than the size nominated for the land under the Minimum Lot Size Map. In relation to this site, the map nominates a minimum lot size of 2000m²for the five lots adjoining Cargo Road and850m²for the balance of land.

The applicant submits that there is a minor conflict between the minimum lot size map and the DCP lot layout. As a result, Lots 10 and 11, and to a lesser extent Lot 9, will be partly located in the area comprising a 2000m²minimum lot size. As such, those lots will not meet the development standard, and the applicant is seeking recourse through Clause 4.6 - Exception to Development standards to overcome this.

Clause 4.6 - Exceptions to Development Standards

This clause allows development consent to be granted for development which contravenes a development standard imposed by the LEP. It requires a written request from the applicant that seeks to justify the contravention by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

The applicant submits the following justification in support of the contention that compliance with the minimum lot size development standard is unreasonable and unnecessary in the circumstances:

We have attempted to provide a design concept that relate to the general principles of the Ploughmans Valley Strategy and the DCP.

With respect, the DCP lacks detail and accuracy with regard to lot size, shape and regard to the two existing dwellings. We have corresponded to the major performance criteria and planning outcomes regarding road position, access points, setbacks and lot size.

With these matters in mind we also note a discrepancy in the LEP Lot size Map and the DCP road positioning. It is very difficult to have both comply without designing an internal road with frontage only on its northern side. Lots 10 and 11 would effectively be squeezed out between the 2000 square metre area delineation.

The intent of the Lot size map is to allow 2000 square metre lots along Cargo Road and similar 850 square metre lots in the interior areas that do not front Main Roads ..... The crude splay outline is relatively simplistic, designed to ensure larger lots along the frontage of Cargo Road.

The lot Size Map and the DCP road positioning however create some practical design problems to achieve the correct internal road location whilst allowing suitable smaller lots on both sides of this internal road. As a result the location of Lots 10 and 11 and to a minimal degree, lot 9, are required to be slightly situated within the 2000 square metre lot size area.

In this situation, given that the planning outcomes have still been achieved regarding lot size and the need to comply with the DCP road positioning, the variance to the slightly crude Lot Size Map is considered appropriate and justified.

Relevantly, the applicable objectives of clause 4.1A - Minimum Subdivision lot size are:

(a) to ensure that new subdivisions reflect existing lot sizes and patterns in the surrounding locality,

(b) to ensure that lot sizes have a practical and efficient layout to meet intended use.

It is considered that the contravention is acceptable in this case as the proposed development is consistent with the objectives of the minimum lot size standard as intended in the LEP and in the DCP, despite the anomaly with the Minimum Lot Size Map. The intention of the two different lot sizes in this area was to ensure larger lots fronting Cargo Road to act as a buffer between the road and the residential area to the north; and the internal lots were consistent with the remainder of that part of the Ploughmans Valley. Furthermore the development is consistent with the objectives for development within the R2 zone.

On this basis Council can be satisfied that the development is not antipathetic to the relevant objections of Clause 4.1 to the extent that approval of the application will not undermine the minimum lot size provisions relating to Ploughmans Valley. Nor will it create a situation where the lots are impractical or inefficient for the intended residential purposes.

Therefore, compliance with the applicable development standard would be unreasonable or unnecessary in the circumstance and the variation of the development standard should be supported.

Clause 4.6 of the LEP requires Council to obtain concurrence from the Director General of the Department of Planning and Infrastructure, unless the subject variation is within the scope of delegations issued to Council by the Director General. Council is in receipt of an email from the Regional Department of Planning with regards to a similar proposal (DA 346/2012(1) - 1 Elberta Street) advising that Council has delegation to determine applications of this type and that the concurrence of the Director General of the Department of Planning and Infrastructure is not required.

Part 5 - Miscellaneous Provisions

Clause 5.9 - Preservation of Trees or Vegetation

This clause seeks to preserve the amenity of an area through the preservation of tress and other vegetation and requires consent or permit to removed certain types of trees as identified in Council’s DCP.

(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

(3) A person must not ringbark, cut down, top, lop, remove, injure or willfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a) development consent, or

(b) a permit granted by the Council.

The applicant is proposing to remove a large number of mature trees located along the southern and eastern boundaries of the subject land as depicted on the submitted plans (sheet 3). As mentioned below, Council’s Manager City Presentation has reviewed the subject trees and provided an assessment of as to the appropriateness of their removal. The referral from the Manager City Presentation identified the majority of trees along the two respective boundaries as Radiata Pines (Pinus radiata). These species are exempt from the provisions of the above clause and can be removed without consent or permit.

A number of other trees are proposed to be removed which are scattered across the site also shown on the abovementioned plan. These trees do require permit or approval under the above clause and the applicant has sought the consent of Council as part of this application. None of the trees that requiring consent for their removal are identified as native trees.

Council staff raise no objections to the proposed trees to be removed.

5.10 - Heritage Conservation

The subject land is not listed as a heritage item, nor is it located in one of Council’s Heritage Conservation Areas. The land does, however, comprise a right-of-way which is a driveway to the original Carwoola Homestead, which is a heritage item. For the avoidance of doubt the right-of-way is not heritage listed. As such, it remains appropriate to assess the level of impact upon the heritage significance of the item.

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(3) When Consent Not Required

However, development consent under this clause is not required if:

(a) the applicant has notified the consent authority 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:

(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b) the development is in a cemetery or burial ground and the proposed development:

(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or

(d) the development is exempt development.

(4) Effect of Proposed Development on Heritage Significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage Assessment

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses 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.

(6) Heritage Conservation Management Plans

The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

The development does not warrant a heritage impact statement or heritage management plan to be prepared for the development. Whilst the development will change the historic access arrangements of the dwelling, the heritage significance of the accessway itself has diminished somewhat over time with the intensified residential development pattern that has occurred throughout the precinct. It is further noted that the inventory sheet for Carwoola dwelling does not identify the accessway as comprising any level of significance. Access to Carwoola dwelling will eventually occur via the internal proposed road. The proposed development is considered satisfactory in regards to the new access arrangements and the resultant effect upon the heritage significance of the dwelling. The access point will be maintained and used for proposed Lot 5. Furthermore, conditions are attached that require the right of carriage way to be removed from lots 5 and 6 upon satisfactory alternate access being provided.

Part 6 - Urban Release Area

Not relevant to the application. The subject site is not located in an Urban Release Area.

7.3 - Stormwater Management

This clause applies to all industrial, commercial and residential zones and requires that Council be satisfied that the proposal:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting onsite infiltration of water

(b) includes, where practical, onsite stormwater retention for use as an alternative supply to mains water, groundwater or river water; and

Consideration has been given to the effect of additional permeable surfaces resultant from the proposal and to the management of stormwater such that post-development runoffs do not exceed pre-development levels. Relevant conditions are attached in this regard. Additionally, the application will be required to pay a contribution to an off-site stormwater retention facility. Additionally, the stormwater is required to discharge into the wetlands system. A licence will be required to be required from the appropriate authority prior to the works occurring. This development could have been treated as integrated development however the applicant has opted not to apply for an integrated development route. Relevant conditions are attached to require the relevant licence.

7.6 - Groundwater Vulnerability

(b) the cumulative impact (including the impact on nearby groundwater extraction for potable water supply or stock water supply) of the development and any other existing development on groundwater.

Furthermore consent may not be granted unless Council is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact,

(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.

The proposal is not anticipated to involve the discharge of toxic or noxious substances and is therefore unlikely to contaminate the groundwater or related ecosystems. The proposal does not involve extraction of groundwater and will therefore not contribute to groundwater depletion. The design of the proposal avoids impacts on groundwater and is therefore considered acceptable.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 - Remediation of Land applies to the subject development, particularly Clause 7.

Relevantly Clause 7 states:

7 - Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

The subject land and several other surrounding parcels were up-zoned from rural land to rural residential land in circa late 1970’s. Subdivision approval was granted in December 1983 to subdivide those rezoned parcels (including the land the subject of this application) into 2 hectare rural residential parcels and subsequently dwellings were erected on those parcels created at that time. During the assessment of the 1983 subdivision it was suggested that part of the land in question under that application contained an orchard. It is not entirely clear where that orchard was located; as such it is considered necessary to complete chemical residue testing over the proposed lots under this application. It is highly likely that the land, if contaminated, could be suitably remediated. As such, relevant conditions are attached.

State Environmental Planning Policy (Infrastructure)

State Environmental Planning Policy (Infrastructure) applies to the subject land to the extent that Clause 101 of the SEPP is relevant to the consideration of the application. Relevantly Clause 101 states:

101 - Development with Frontage to Classified Road

(1) The objectives of this clause are:

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

The development is not antipathetic to objectives of the clause. Relevant consideration is given to the objectives when addressing the below clauses.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

In response to (a) above, it is not possible to provide access to Lots 1-5 other than via the classified road in the absence of an amendment to the approved concept plan under the DCP.

In response to (b)(i), (ii) and (iii) above, the development is considered appropriate in regards to access and will not compromise the ongoing operations of the classified road. The access points are acceptable and will have reasonable sight distances, particularly with the prevailing speed limit of the road. The development is unlikely to result in any smoke or dust given the residential zoning. Also, again, given the residential zoning and the likelihood of single dwellings occurring on the land, the volume and frequency of traffic movements are not expected to be excessive.

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

The large 2000m²lots frontingCargo Road are intended to provide suitable opportunities for additional setbacks over and above the 15m setback mandated under the DCP, and additionally act as a buffer between the road and the smaller lots to the north.

It is noted that Cargo Road is not a road that requires acoustic assessment under Clause 102 of the SEPP (Infrastructure) due to the road’s daily carrying capacity as stated under the Department of Planning’s Development Near Rail Corridors and Busy Roads - Interim Guideline.

Notwithstanding the above, consideration should be given to the design of future dwellings upon Lots 1-5 so as to ensure that the orientation of habitable rooms and the location of garages can act as means of mitigating noise associated with Cargo Road.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION s79C(1)(a)(ii)

There are no draft environmental planning instruments that apply to the subject land or proposed development.

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s79C(1)(a)(iii)

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land (Part 0 - Local Environmental Plan 2010 and Part 7 - Development in Residential Areas). An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

PART 0 - LOCAL ENVIRONMENTAL PLAN 2010

Part 0.2 of Orange DCP 2004 establishes a conversation table for old zones (under OLEP 2000) to new zones under LEP 2011, and in turn provides which chapters of the DCP are applicable in instances of new zonings under LEP 2011. This is pertinent given the subject land's new zoning, being R2 Low Density Residential. Part 0.2 provides that Part 7 of Orange DCP 2004 is applicable to this zone.

PART 7 - DEVELOPMENT IN RESIDENTIAL AREAS

Planning Outcomes - Residential Subdivision in Ploughmans Valley

Those Planning Outcomes relevant to this application are:

· The allotment layout is generally in accordance with the Conceptual Subdivision Layout at Appendix 16.7.

The DCP Layout (see below) indicates a yield of 16 lots for the subject land. The proposed development presents an alternate layout to that envisaged under the DCP.

The applicant has requested a departure to the DCP conceptual layout for residential subdivision for the following reasons:

Extensive pre lodgement consultation has resulted in a concept that respects the planning outcomes of the Ploughmans Valley Strategy with large lots along Cargo Road and respects the east west road orientation. The proposal has regard to further road design and subdivision opportunities on adjoining land.

The DCP concept has a somewhat indicative layout with some lots showing no road frontage and poor regard to the existing dwelling location upon 3 Carwoola Drive (Lot 2) The DCP concept shows a lot yield of 16 lots with a large lot over the existing lot 1 dwelling. This appears excessive given the minimum lot size criteria and given that this large lot does not front Cargo Road. With regard to the design criteria and the planning outcomes for Ploughmans Valley – Area 3, we consider the lot yield of 21 lots is reasonable and consistent with the planning objectives.

Further as requested the size and shape of proposed lot 19 has been altered to illustrate that a substantial dwelling can easily fit on the land. The shape of this allotment also complements the position of the existing dwelling, landform and orientation upon the adjoining lot 18 whilst still allowing the road position to be complaint with the DCP. An allotment size of 1230 square metres for lot 19 is well above the minimum lot size for the area.

Concept Plan DCP 2004

Proposed Subdivision

The departure to the DCP as proposed by this subdivision has no significant impact upon the subdivision potential of adjoining properties. The proposal does not adversely affect the adjoining land to the west in terms of its subdivision potential, nor will it affect the approved subdivision to the north. It is unclear why the concept plan proposed such a large lot around the existing house south of the proposed internal road. It is also unclear why under the concept plan two lots along the northern boundary of the subject land would be provided without road frontage.

Council’s Technical Services division has advised of no objection to the additional lot yield.

Council staff raise no objections to the alternate lot layout.

· Subdivision design and construction complies with the Orange City Development and Subdivision Code.

Relevant conditions are attached to the Notice of Approval requiring the development to be carried out in accordance with the Orange City Development and Subdivision Code.

· The allotment layout provides for transitional development of the Valley:

· The allotment layout provides a high standard of residential amenity:

- in Areas 2, 3 and 4, lots have a minimum allotment size of 850m²;

The subject land is located within Area 3. The proposed lots easily comply with the minimum allotment size of 850m² that applies to this area under the DCP. Whilst the layout of the development is contrary to the adopted DCP conceptual layout for this site, the applicant has suitably demonstrated that the development is acceptable in this case. The proposed development will enhance the low density landscaped character of the area envisaged by the current zoning of the land. There are no objections to the proposed subdivision design.

· The allotment layout maximises energy-efficiency principles. Where practicable, lots are rectangular rather than splay shaped and oriented to provide the long axis within the range N20⁰W to N30⁰E or E20⁰N to E30⁰S.

The proposed lots are a mix of regular and irregular shaped lots. Notwithstanding this, the majority of lots comprise long axes within the acceptable orientation range to facilitate effective solar access. There are no objections to the proposed size and shape of each lot proposed within the subdivision. Lot 19, whilst irregular in shape, will still allow an appropriate level of residential amenity for a future dwelling.

· Subdivision design retains significant landscape features and minimises disturbance to natural vegetation, landform and overland flowpaths.

The applicant seeks to remove the row of Radiata Pines along Cargo Road and Carwoola Drive. These trees are significant in the landscape and their removal will certainly change the visual appearance of this locality. Council’s Manager City Presentation has carried out an assessment of the significance in the trees in question and has provided reasons as to why their removal could be accepted by Council.

The analysis/referral from Council’s Manager City Presentation has been provided later in this report as a component of the relevant DCP considerations. There is limited natural vegetation within the subject land, all native trees have been identified and are being retained. There will be no significant change to the natural landform, nor have any overland flows been identified. The development is satisfactory in regards to the above planning outcome.

· The road layout comprises a modified grid layout with restrained use of cul-de-sacs, generally in accordance with the Conceptual Subdivision Layout.

The development is consistent with this planning outcome.

· Future road connections to adjoining land are provided and located generally in accordance with the Conceptual Subdivision Layout.

Whilst the lot yield and layout vary from the DCP concept plan, the location of the proposed road remains consistent with the DCP. As such, the development is consistent with the above planning outcome (refer to above comparison of DCP and proposed subdivision plan).

· Lots have direct frontage or access to a public road.

All lots, save for Lots 15 and 21, will have direct frontage to a public road. Lots 15 and 21 will be served by an access handles from Carwoola Drive and the proposed road respectively.

· Stormwater runoff from the site is consistent with pre-development stormwater patterns.

The applicant will be required to pay a contribution under section 94 pursuant to Council’s Development Contributions Plan for a contribution to an off-site stormwater system. Relevant conditions are attached that require all stormwater to be piped to Ploughmans Creek, where a control activity licence will be required from the Department of Planning Infrastructure and Natural Resources for works within the prescribed distance of a watercourse.

· Drainage systems are designed to consider catchment and downstream capacities, onsite retention and reuse and overland flow- paths.

Appropriate stormwater conditions are attached to the Notice of Approval.

· All utility services are provided to the proposed lots.

Appropriate conditions in relation to the provision of utility services are attached to the Notice of Approval. All relevant servicing requirements will need to be satisfied prior to the issue of a Subdivision Certificate.

· Public open space linkages are provided across the subdivision. Approximately 1ha of public open spaces for each development area is provided in the form of local parks, drainage paths and creek corridors. Public open space provides opportunities for passive and active recreation.

The proposal does not impact upon the public open space areas identified in the DCP Layout. On this basis, there is no requirement for the provision of open space.

· Allotments intended for dual occupancies are identified on development application plans. Dual occupancy lots range in area between 1,200m² and 1,450m².

Lot 12 is nominated as a dual occupancy lot. More detailed assessment as to the appropriateness of this lot being used for the purposes of a dual occupancy in the future will be required should development consent be sought at a later stage.

· Development proposals shall demonstrate the appropriate retention of existing trees in order to protect the visual backdrop of the City.

The applicant seeks to remove a large number of advanced Radiata Pines along both Carwoola Drive and Cargo Road and other tress spread across various proposed lots. Council’s Manager City Presentation provided the following referral in relation to the proposed subdivision:

A site inspection of the abovementioned properties was undertaken on Wednesday 6 April 2016 to assess existing vegetation in relation to the subdivision proposal.

Whilst there will be a significant visual impact with the intention of the proposal to remove trees on the Cargo Road and Carwoola Drive frontages, the trees, Radiata Pines (Pinus radiata) are in the order of 80 to 100 years of age and are an unsuitable specimen in an urban residential development.

A careful inspection of each tree would identify faults, eg codominance, structural defects, senescing examples, torn or damage limb. In such a situation where these trees have evolved dependent upon each other, removal of individual specimens and retention of others is not considered an option due to the canopy protection and support each tree offers to another.

The remaining trees identified on Figure 3 Vegetation Management Plan as being removed, whilst in general are healthy and suitable specimens for urban residential blocks, they are semi-mature specimens in the order of between 15 to 30 years of age. Some of the vegetation identified on the abovementioned plan consists of shrubs eg Nerium oleander for which there are no implications on the removal.

It should be noted that removal of some vegetation has been recently undertaken on 1 Carwoola Drive, including vegetation in the south east corner (proposed parcel #1). From a desktop review using Google Earth Street View the vegetation appears to be native species such as Casuarina sp. of an immature age class. There has also been the removal of some semi-mature eucalyptus trees identified as occurring on the proposed parcels 2 and 5.

Street Trees along both Cargo Road (Pyrus sp) and Carwoola Drive (Alnus sp) shall be retained during the subdivision phase of the land use conversion of the subject land from rural residential to residential. Each street tree shall be assessed when development applications are received for the construction of dwellings upon each parcel of land.

The Pryus sp. along Cargo Road are evenly space trees forming an avenue and entrance approach to the Colour City. Removal of individual trees at dwelling DA consent stage may be considered.

The Alnus sp. in Carwoola Drive are broadly spaced and dwelling DAs should account for the retention of each of these specimens. Ie none of these trees should be required to be removed to permit vehicle access (driveways or the like) to be constructed. A considered approach as to where garages are to be built to ensure the retention of the street trees shall be implemented.

Relevant conditions are attached in relation to protection of the existing street trees during construction of the subdivision. The development will have a significant effect on the visual appearance of this entrance into the City; however, for the reasons outlined above, Council staff raise no objections to the proposed tree removal. Based on the recommendations of Council’s Manager City Presentation it is recommended Council supports the proposed tree removal.

· Dual occupancy development within Ploughmans Valley may be subdivided, upon completion of building works, to create two separate allotments with areas less than 850m².

This Planning Outcome is not relevant to the proposal.

ORANGE DEVELOPMENT CONTRIBUTIONS PLAN 2015

The development generates the requirement for development contributions pursuant to Council’s Development Contributions Plan 2015 to be paid on the basis of 19 additional residential lots in the Ploughmans Valley urban release area. To this end the following condition is attached to the Notice:

The payment of $369,763.94 is to be made to Council in accordance with section 94 of the Act and the Orange Development Contributions Plan 2015 (Ploughmans Valley urban release area) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,314.19 x 19 additional lots	62,969.61
Community and Cultural	@ $667.50 x 19 additional lots	12,682.50
Roads and Cycleways	@ $5,137.60 x 19 additional lots	97,614.40
Stormwater Drainage	@ $310.15 x 19 additional lots	5,892.85
Local Area Facilities	@ $9,465.09 x 19 additional lots	179,836.71
Plan Preparation & Administration	@ $566.73 x 19 additional lots	10,767.87
TOTAL:		$369,763.94

Section 64 Water and Sewer Headworks

Water and Sewer Headworks Charges are also applicable to the development based on 19 equivalent tenements for water (due to the two existing lots already on the Council reticulated water supply) and 21 equivalent tenements for sewer headworks. Relevant conditions are attached.

PROVISIONS PRESCRIBED BY THE REGULATIONS s79C(1)(a)(iv)

The development is not inconsistent with the provisions prescribed by the regulations.

THE LIKELY IMPACTS OF THE DEVELOPMENT s79C(1)(b)

Setting and Context

The subject land is located on the periphery of the urbanised area and will provide additional opportunities for residential development at a greater density than currently exists, and will act as an extension to the residential area along the western edge of the urban area. The development is consistent with the predominant development pattern that has occurred recently and is not incongruous with the setting and context of the area.

Size, Shape and Slope of Proposed Lots

The proposed lots will all be of a size, shape and slope capable of providing a reasonable standard of residential amenity for future occupants. The land comprises approximately 10% - 15% slope over the land which future dwellings will easily combat, particularly given the lots sizes of 2000m²and 850m². All lots, save for Lot 19, are regular in shape. The applicant has demonstrated that a dwelling can be designed to fit on Lot 19. The subdivision has been designed appropriately.

Traffic Impacts

It is acknowledged that all development will generate some level of traffic. Levels of traffic are dependent on the type, location and scale of a particular development. It important when assessing the traffic impacts to ensure the development does not cause the adjacent roads to be forced into performing as a de facto higher road classification (RMS 2002).

The development will result in additional traffic in the locality given the increases in residential density at the completion of the subdivision. Notwithstanding this, the surrounding street network will be capable of serving the additional traffic load. The additional traffic load on Cargo Road will not be unreasonable. The prevailing speed limit of Cargo Road where the subdivision is proposed is 60km/h, which will allow for safe vehicle ingress and egress for Lots 1-5.

The RMS has provided their concurrence for the development subject to conditions of consent relating to access standards and sight distances. These are attached as conditions of consent.

A long standing right-of-carriage way burdens the subject land and the adjoining land to the north and benefits lot 2 DP 578668. To ensure suitable access is maintained to Lot 2 DP 578668 relevant conditions are attached to the consent that restricts the release of Lots 5 and 6 until such time as suitable access is provided via the public road. The condition also requires evidence that the right-of-carriage-way will be extinguished at the time of registration of those lots. Additionally, lot 20 is required to be amended such that it is clear of the easement. Lot 21 will continue to have the easement until such time as the approved subdivision on adjoining land to the north is constructed and a new alternate access is provided within that land.

The development is considered satisfactory in regards to traffic impacts.

Environmental Impacts

A number of trees are proposed to be removed as part of the application - none of which have been identified as comprising Endangered Ecological Communities, or habitat of threatened species. The trees proposed to be removed are not considered significant. Council’s Manager City Presentation has raised no objections to the extent of trees proposed to be removed.

Noise Impacts

Some level of noise is to be expected from Cargo Road. A well-considered dwelling design should occur for dwellings on Lots 1-5 - such things as location of garages and the arrangement and location of habitable rooms, particularly bedrooms, afford reasonable noise attenuation from road noise.

Vegetation Impacts/Visual Impacts

The removal of the vegetation within the subject land will undoubtedly change visual appearance and landscape within this important entrance into the City. Notwithstanding this, for the reasons outlined above from Council’s Manager City Presentation, it is accepted that it is appropriate for the subject Radiata Pines to be removed. Additionally, there is no objection to the other identified trees to be removed.

The visual appearance of Cargo Road will remain acceptable due to the existence of an avenue of trees planted in the road reserve. These trees are spaced reasonably close together and form an avenue of trees into the City. Given their spacing and the need for access to Lots 2-4, it is likely that some trees may need to be removed to facilitate the access to those lots.

A condition is attached that requires tree protection zones to be created around the subject street trees so as to protect them during the construction phase of the subdivision.

The rationale behind the larger lots fronting Cargo Road was to provide for a greater setback for residential development to provide a more open and attractive entrance into the City.

The DCP prescribes a 15m setback for residential development fronting Cargo Road. As such, it is appropriate to attach a condition requiring a Restriction-as-to-User on the title of proposed Lots 1-5 precluding any dwelling or associated structures from being built within the 15m setback from Cargo Road. A similar requirement exists for lots fronting Carwoola Drive; a 6m setback applies to Lots 1 and 11-14. Relevant condition attached.

Cumulative impacts

Cumulative impacts of a development can arise under four typical scenarios, namely:

· time crowded effects where individual impacts occur so close in time that the initial impact is not dispersed before the proceeding occurs

· space crowded where impacts are felt because they occur so close in space they have a tendency to overlap

· nibbling effects occur where small, often minor impacts, act together to erode the environmental conditions of a locality and

· synergistic effects, where a mix of heterogeneous impacts interact such that the combined impacts are greater than the sum of the separate effects.

Due to the nature of the development, being only subdivision, it is unlikely that any of the above conditions would be experienced in the locality. The only likely impact that could result in a cumulative impacts sense relates to traffic; however, the traffic levels are expected to be modest in scale and the development will be well catered for by the existing road network.

The development is considered to be acceptable in terms of cumulative effects.

THE SUITABILITY OF THE SITE s79C(1)(c)

The site is considered suitable for the proposed development. Council staff are not aware of any natural, physical or technological hazards that may constrain the development from occurring in a satisfactory manner. Additionally, the development represents a continuation of residential development in this central part of the Ploughmans Valley precinct and will increase the capacity for adjoining land to be further subdivided; also with the necessary provision of services to land the subject of this application.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s79C(1)(d)

The proposed development is not defined as advertised development under the provisions of the LEP, and as such no formal exhibition of the application was required. No submissions have been received in relation to this application.

PUBLIC INTEREST s79C(1)(e)

The proposed development is considered to be of minor interest to the wider public due to the relatively localised nature of potential impacts. The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines etc that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of the LEP, save for the confliction with the minimum lot size provisions under the LEP for which the applicant has sought recourse through Clause 4.6 of the LEP, which has been accepted.

COMMENTS

The requirements of the Environmental Health and Building Surveyor and the Engineering Development Section are included in the attached Notice of Approval.

Attachments

1 Notice of Approval, D16/26989 ⇩

2 Plans, D16/26992 ⇩

Planning and Development Committee 5 July 2016

2.5 Development Application DA 101/2016(1) - 1 and 3 Carwoola Drive

Attachment 1 Notice of Approval

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ORANGE CITY COUNCIL

Development Application No DA 101/2016(1)

NA16/ Container PR2313

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 81(1)

Development Application
Applicant Name:	Mr J Maurice, Mrs C Bailey and Mr C Bailey
Applicant Address:	C/-Saunders & Staniforth 2/204-206 Lords Place ORANGE NSW 2800
Owner’s Name:	Mrs BJ Maurice, and Mr CA and Mrs CE Bailey
Land to Be Developed:	Lots 1 and 2 DP 715252 – 1 and 3 Carwoola Drive, Orange
Proposed Development:	Subdivision (21 lot residential)

Building Code of Australia building classification:	Not applicable

Determination
Made On:	5 July 2016
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	6 July 2016
Consent to Lapse On:	6 July 2021

Terms of Approval

The reasons for the imposition of conditions are:

(1) To ensure a quality urban design for the development which complements the surrounding environment.

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

(4) To provide adequate public health and safety measures.

(5) Because the development will require the provision of, or increase the demand for, public amenities and services.

(6) To ensure the utility services are available to the site and adequate for the development.

(7) To prevent the proposed development having a detrimental effect on adjoining land uses.

(8) To minimise the impact of development on the environment.

Conditions

(1) The development must be carried out in accordance with:

(a) Plans prepared by Andrew Saunders Property and Planning Consultants:

Reference: Carwoola Dated 16.02.2016 Sheets 1 to 3 (inclusive of aerials) (5 sheets)

(b) statements of environmental effects or other similar associated documents that form part of the approval

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

(2) All building work must be carried out in accordance with the provisions of the Building Code of Australia.

(3) A sign is to be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

a. showing the name, address and telephone number of the principal certifying authority for the work, and

b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

c. stating that unauthorised entry to the site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(4) Engineering plans, showing details of all proposed work and adhering to any engineering conditions of development consent, are to be submitted to, and approved by, Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing of a Construction Certificate.

(5) A water and soil erosion control plan is to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) for approval prior to the issuing of a Construction Certificate. The control plan is to be in accordance with the Orange City Council Development and Subdivision Code and the Landcom, Managing Urban Stormwater; Soils and Construction Handbook.

(6) Proposed lots are to be provided with interlot stormwater drainage, including those lots abutting public land, where the surface of the entire lot cannot be drained to the kerb and gutter at the lot frontage. A grated stormwater pit is to be constructed within each lot provided with interlot stormwater drainage. Engineering plans for this drainage system are to be approved by Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing a Construction Certificate.

(7) Stormwater from the site is to be piped to Ploughman’s Creek, where it is to be discharged through a headwall with appropriate scour protection and energy dissipation measures. Engineering plans of this required drainage system are to be approved by Orange City Council and a licence from the Department of Planning Infrastructure and Natural Resources for work within 20 metres of the watercourse is to be submitted prior to the issuing of a Construction Certificate.

(8) A 150mm-diameter sewer main is to be constructed from Council’s existing main to serve the proposed lots. Engineering plans are to be submitted to Orange City Council for approval prior to the issuing of a Construction Certificate.

(9) A water reticulation analysis is to be carried out by Orange City Council on any proposed water-reticulation system for the development. Engineering plans are to be submitted to Orange City Council for approval prior to the issuing of a Construction Certificate. The reticulation system is to be designed to supply a peak instantaneous demand by gravity of 0.15 L/s/tenement at a minimum residual head of 200kPa.

(10) Roads and Maritimes conditions of concurrence are as follows:

· The vehicular accesses from the proposed lots to Cargo Road (3) are to be constructed (proposed lots 2-4) and upgraded (proposed lot 5) in accordance with Austroads Guide to Road Design: Part 4 Figure 7.2 ‘rural property access’ and any relevant Roads and Maritime Supplement. The vehicular access is to be sealed a minimum of 10m from the edge of the travel lane in Cargo Road, match existing road levels and not interfere with existing road drainage.

· Safe Intersection Sight Distance (SISD) is to be provided and maintained at each vehicular access servicing the subdivision.

PRIOR TO WORKS COMMENCING

(11) A Construction Certificate application is required to be submitted to, and issued by, Council/Accredited Certifier prior to any excavation or building works being carried out onsite.

(12) Soil erosion control measures shall be implemented on the site.

DURING CONSTRUCTION/SITEWORKS

(13) Tree Protection Zones as defined by the relevant Australian Standard shall be established around all street trees that are located within the immediate frontage of the subject land. The TPZs are to be installed for the duration of the construction phase for the proposed subdivision.

(14) This consent approves the removal of only those trees identified for removal on the approved plans. Removal of further trees from the subject land may require a permit to remove pursuant to Orange LEP 2011 and Orange DCP 2004.

(15) All construction/demolition work on the site is to be carried out between the hours of 7.00 am and 6.00 pm Monday to Friday inclusive, 7.00 am to 5.00 pm Saturdays and 8.00 am to 5.00 pm on Sundays and Public Holidays. Written approval must be obtained from the General Manager of Orange City Council to vary these hours.

(16) Any adjustments to existing utility services that are made necessary by this development proceeding are to be at the full cost of the developer.

(17) The provisions and requirements of the Orange City Council Development and Subdivision Code are to be applied to this application and all work constructed within the development is to be in accordance with that Code.

The developer is to be entirely responsible for the provision of water, sewerage and drainage facilities capable of servicing all the lots from Council’s existing infrastructure. The developer is to be responsible for gaining access over adjoining land for services where necessary and easements are to be created about all water, sewer and drainage mains within and outside the lots they serve.

(18) Carwoola Drive is to be constructed half road width for the full frontage of the proposed development and to the edge of travel lane in Cargo Road. This work is to include road pavement and pavement surfacing to the centreline, kerb and gutter construction and earth-formed footpath on the development side of the road. The 18m wide road is to be constructed as full urban construction including kerb and gutter and footpaths. Cargo Road frontage shall have longitudinal stormwater drainage installed underneath the open table drain. Surface water is to be collected by grated surcharge surface inlet pits.

(19) For all dual-access battle-axe blocks, a heavy duty concrete driveway, kerb layback and footpath crossing is to be constructed to a minimum width of 4.5 metres and to the requirements and standards of the Orange City Council Development and Subdivision Code.

(20) For all single access battle-axe blocks, a heavy duty concrete driveway, kerb layback and footpath crossing is to be constructed to a minimum width of 3.0 metres and to the requirements and standards of the Orange City Council Development and Subdivision Code.

(21) Heavy-duty concrete kerb and gutter laybacks and footpath crossings are to be constructed for the entrances to the existing dwellings. The location and construction of the laybacks and footpath crossings are to be as required by the Orange City Council Development and Subdivision Code.

(22) Dual water and sewerage reticulation is to be provided to every lot in the proposed residential subdivision in accordance with the Orange City Council Development and Subdivision Code.

The 2 existing dwellings are to be connected to dual water, sewer and stormwater.

(23) The water services to the existing dwellings, where they are not proposed to be used as part of this development, are to be sealed off at their respective Council mains.

(24) A bitumen sealed vehicular entrance incorporating minimum 200mm thick gravel and a pipe culvert is to be constructed to provide access to proposed Lots 2, 3, 4, and 5. Access to Lots 3 and 4 shall be constructed as a dual access.

The pipe culvert is to consist of minimum 375mm diameter stormwater pipes and 2 concrete headwalls and be a minimum 5 metres long. Where it is not possible to construct a pipe culvert, due to shallow depth of table drain or the entrance being located on a crest, a 6 metre long by 2 metre wide by 100mm deep concrete dish drain may replace the pipe culvert.

The location of this entrance and selection of pipe culvert or dish drain are to be as directed by Orange City Council. The entrance is to be constructed in accordance with the Roads and Maritime (RMS) requirements. The construction is to be as per the requirements of the Orange City Council Development and Subdivision Code and the RMS.

Where Cargo Road frontage has kerb and gutter, the vehicular entrances shall be constructed as heavy duty concrete kerb and gutter laybacks and footpath crossings.

(25) Concrete footpaths, a minimum of 1.2 metres wide, are to be constructed on the development side of Cargo Road and Carwoola Drive and one side of the 18m wide road.

Construction work is to be to the requirements and standards of the Orange City Council Development and Subdivision Code.

PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

(26) Application shall be made for a Subdivision Certificate under Section 109(C)(1)(d) of the Act.

(27) The payment of $369,763.94 is to be made to Council in accordance with section 94 of the Act and the Orange Development Contributions Plan 2015 (Ploughmans Valley urban release area) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,314.19 x 19 additional lots	62,969.61
Community and Cultural	@ $667.50 x 19 additional lots	12,682.50
Roads and Cycleways	@ $5,137.60 x 19 additional lots	97,614.40
Stormwater Drainage	@ $310.15 x 19 additional lots	5,892.85
Local Area Facilities	@ $9,465.09 x 19 additional lots	179,836.71
Plan Preparation & Administration	@ $566.73 x 19 additional lots	10,767.87
TOTAL:		$369,763.94

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2015 (Ploughmans Valley urban release area). This Plan can be inspected at the Orange Civic Centre, Byng Street, Orange.

(28) A Restriction-as-to-User under Section 88B of the NSW Conveyancing Act 1979 shall be created on the titles of proposed lots 1-5 prohibiting the erection of a building within 15m from the front boundary of those parcels. An additional restriction shall be placed on the titles of proposed lots 1, and 11 to 14 specifying a 6m building setback from the boundary that has frontage to Carwoola Drive.

(29) Prior to the issuing of the Subdivision Certificate, a Surveyor’s Certificate or written statement is to be provided to the Principal Certifying Authority, stating that the buildings within the boundaries of the proposed Lot 3, 8 and 18 comply in respect to the distances of walls from boundaries.

(30) The contents of the existing septic tank are to be removed by a licensed contractor for disposal into Council’s sewer system. The septic tank is to be excavated and disposed of at a licensed landfill and the absorption trench is to be drained and the voids limed and backfilled with clean compacted material.

Evidence of such work is to be provided to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(31) Payment of contributions for water, sewer and drainage works is required to be made at the contribution rate applicable at the time that the payment is made. The contributions are based on 19 ETs for water supply headworks and 21 ETs for sewerage headworks. A Certificate of Compliance, from Orange City Council in accordance with the Water Management Act 2000, will be issued upon payment of the contributions.

This Certificate of Compliance is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(32) Evidence from a registered NATA laboratory is to be submitted prior to the issuing of a Subdivision Certificate stating that the filling of all dams and low-lying areas has been carried out in accordance with Australian Standard 3798-2007.

(33) Soil sampling for analysing chemical residue is to be carried out within the proposed Lots in a manner and frequency as determined by an appropriately qualified and experienced consultant giving consideration to previous specific uses and on-site characteristics of the site. A NATA registered laboratory is to carry out such testing. Reference is to be made to the Contaminated Land Management Act 1997 and State Environmental Planning Policy No 55 - “Remediation of Land”. The results of the testing are to be provided to the Principal Certifying Authority and are to demonstrate that the land is suitable for residential use, to enable a Subdivision Certificate to be issued.

(34) Certification from Telstra / NBN, stating that telecommunication systems comply with Australian Standards, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(35) Certification from Essential Energy, stating that electricity and street lighting systems comply with Essential Energy’s Networks Division Customer Connection Policy NP11.1, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(36) A Restriction-as-to-User under section 88B of the NSW Conveyancing Act is to be registered on the Deed of Title on Lot 1 where vehicular access is to be denied to Cargo Road.

(37) An easement to drain sewage and to provide Council access for maintenance of sewerage works a minimum of 2.0 metres wide is to be created over the proposed sewerage works. The Principal Certifying Authority is to certify that the easement is in accordance with the Orange City Council Development and Subdivision Code prior to the issuing of a Subdivision Certificate.

(38) A Maintenance Security Deposit, in accordance with the provisions and requirements of the Orange City Council Development and Subdivision Code, is to be provided to Orange City Council prior to the issuing of a Subdivision Certificate.

A Certificate of Compliance, from Orange City Council, certifying that the maintenance security deposit has been paid, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(39) All services are to be contained within the allotment that they serve. A Statement of Compliance, from a Registered Surveyor, is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(40) Where stormwater crosses land outside the lot it favours, an easement to drain water is to be created over the works. A Restriction-as-to-User under section 88B of the NSW Conveyancing Act 1979 is to be created on the title of the proposed Lots requiring that no structures are to be placed on the site, or landscaping or site works carried out on the site, in a manner that affects the continued operation of the interlot drainage system. The minimum width of the easement is to be as required in the Orange City Council Development and Subdivision Code.

(41) Prior to the issuing of a Subdivision Certificate, a Road Naming Application form is to be completed and submitted with a plan of the whole development defining the stage being released - including future road extensions.

(42) A Subdivision Certificate with respect to proposed Lots 5 and 6 shall not be released until such time as appropriate alternate access is provided to Lot 2 DP 578668 via the proposed public road; and legal documentation providing for the extinguishment of the Right of Carriageway within lots 5 and 6 is submitted to Orange City Council.

(43) The western boundary of proposed lot 20 shall be amended such that it is clear of the easement for access (ie moved further east).

(44) All of the foregoing conditions are to be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions is to be completed prior to the issuing of a Subdivision Certificate, unless stated otherwise.

Other Approvals

(1) Local Government Act 1993 approvals granted under section 68.

Nil

(2) General terms of other approvals integrated as part of this consent.

Nil

Right of Appeal

*Disability Discrimination* Act 1992:	This application has been assessed in accordance with the Environmental Planning and Assessment Act 1979. No guarantee is given that the proposal complies with the Disability Discrimination Act 1992. The applicant/owner is responsible to ensure compliance with this and other anti-discrimination legislation. The Disability Discrimination Act covers disabilities not catered for in the minimum standards called up in the Building Code of Australia which references AS1428.1 - "Design for Access and Mobility". AS1428 Parts 2, 3 and 4 provides the most comprehensive technical guidance under the Disability Discrimination Act currently available in Australia.

Disclaimer - S88B Restrictions on the Use of Land:	The applicant should note that there could be covenants in favour of persons other than Council restricting what may be built or done upon the subject land. The applicant is advised to check the position before commencing any work.

Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	DAVID WADDELL - DIRECTOR DEVELOPMENT SERVICES
Date:	6 July 2016

Planning and Development Committee 5 July 2016

2.6 Development Application DA 314/2008(6) - 7 Murphy Lane

TRIM REFERENCE: 2016/1409

AUTHOR: Rishelle Kent, Senior Planner

EXECUTIVE Summary

Application lodged	18/02/2016
Applicant/s	Orange Anglican Grammar School
Owner/s	Anglican Schools Corporation
Land description	Lot 100 DP 1174806 - 7 Murphy Lane, Orange
Proposed land use	Educational Establishment (Stage 1) and Advertisements
Value of proposed development	$0

Council's consent is sought to modify Condition (52) of development consent DA 314/2008(5) to permit pedestrian and bicycle access to and from the Orange Anglican Grammar School via Hewitt Close. The modified proposal would allow rear access to the school for students and staff via an existing gate towards the eastern end of Hewitt Close. The proponent suggests that approximately 17 current students would benefit from the proposed pedestrian and bicycle access from Hewitt Close. Prohibition of pedestrian and bicycle access via Murphy Lane will remain. The amended OAGS School Travel Policy reflects the above proposal, in conjunction with prohibiting students from being dropped off via private vehicle in Hewitt Close.

Council has maintained the importance of providing pedestrian access to the school since pre-DA lodgement discussions dating back to 2007, and as such a condition of consent was imposed in 2008 that pedestrian access be provided to the site to the satisfaction of Council and the RMS.

The condition allowed for deferment until a suitable plan was designed, approved and constructed by February 2011, or further approval of any subsequent stage, whichever occurred first. Whilst further expansion of the OAGS has progressed, an agreed pedestrian solution has been unsuccessful to date.

Pedestrian access along Gorman Road and Hewitt Close, especially for school-aged children, is not an ideal situation. The road reserves are not conducive to pedestrian traffic and suitable footpaths are not available. These public roads are, however, suitable for the rural residential locality which they service. A recent opportunity has developed for the school to connect to Council’s Active Travel Plan within the Molong Road network for the provision of a suitable pedestrian and bicycle link to the main access to the school, at 7 Murphy Lane. The proponent has provided an undertaking that they will commence discussions with Council’s Technical Services Division in this regard.

The RMS does not object to this modification. Given their approval, the future plans to connect the school to the Active Travel Plan and the current Plan of Management satisfactorily enforced by the proponent, it is considered reasonable to allow a 12 month trial to allow school students and staff to walk or ride to the OAGS along Hewitt Close. It is recommended that Council approves the subject proposal for a 12 month trial, in accordance with the attached conditions of consent.

Council has consistently maintained the importance of providing pedestrian access to the school site since pre-DA lodgement meetings conducted in 2007. At the time of lodgement of the original DA in 2008, OAGS had a limited timeframe to commence operations, therefore Council and the RMS agreed to allow the deferment of the provision of pedestrian access due to the limited number of students. This deferment was conditioned to cease in February 2011 or prior to the further approval of any subsequent stage, whichever occurred first (Condition (23)) with a written agreement by OAGS to undertake pedestrian design and construction (Condition (51)). Alternative arrangements could be made via a Plan of Management due to the limited number of students, however this would not be suitable for any larger number.

An application to modify Condition (23) was sought in 2009 to amend the timing of the construction of the pedestrian footpath from prior to approval of subsequent stages to prior to occupation of subsequent stages. This was to allow the construction of a media centre for which OAGS had received Federal funding. The media centre was not permitted to be occupied until the pedestrian access had been completed.

In conjunction with the 2009 application to modify, a pedestrian access design was submitted showing a 2m wide concrete footpath along the southern road reserve of Mitchell Highway and Murphy Lane. The proposed design was not to the satisfaction of the RMS.

A further application to modify the pedestrian access condition (Condition (52)) was submitted in 2013 (DA 314/2008(5)). The condition was amended to read:

All access to the OAGS shall be by bus or private vehicle. All pedestrian and bicycle access to the school is prohibited for students, staff and teachers in accordance with the School Travel Policy.

Pedestrian and bicycle access will only be permitted after Orange City Council and the RMS have approved a suitable design solution and the approved works have been carried out by the OAGS.

As opportunities for pedestrian access are identified by OCC, the OAGS shall undertake design work in consultation with OCC and the RMS.

It is now proposed to amend this condition to read as follows:

That access to the main entrance of OAGS off Murphy Lane is to be by bus or private vehicle only (no pedestrian or bicycle access).

Pedestrian and bicycle access to the rear entrance of OAGS off Hewitt Close is permitted.

All access to the school is to be in accordance with the OAGS Travel Policy (February 2016).

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “13.4 Our Environment – Monitor and enforce regulations relating to City amenity”.

Financial Implications

The guidelines instruct Council it should expend money in accordance with the detailed budget adopted for the purposes of implementing the Delivery/Operational Plan for the 2015/16 year.

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 314/2008(6) for Educational Establishment (Stage 1) and Advertisements at Lot 100 DP 1174806 - 7 Murphy Lane, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION

Council's consent is sought to modify DA 314/2008(5) to permit pedestrian and bicycle access to the Orange Anglican Grammar School from Hewitt Close only. The land is described as Lot 100 DP 1174806 and is known as 7 Murphy Lane, Orange.

MATTERS FOR CONSIDERATION

Section 96(1A) of the Environmental Planning and Assessment Act 1979 (EPAA) states:

A consent authority may…modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan under section 72 that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

With regard to (a), the proposed modification will not have any significant environmental effect. With regard to (b), it is considered that the proposed development as modified is substantially the same development to that originally approved. With regard to (c), the modification is not defined as advertised development. It was, however, notified to neighbours along Hewitt Close and within close proximity to the subject site. With regard to (d), submissions were received and have been considered during the assessment of this modification.

The relevant matters are considered below.

Section 5A Assessment

There is not likely to be a significant effect on threatened species, populations or ecological communities or their habitats as a result of this development.

Section 79C

Section 79C of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

Orange Local Environmental Plan 2011

Clause 1.2 - Aims of Plan

The broad aims of the LEP are set out under subclause 2. Those relevant to the application are as follows:

(a) to encourage development which complements and enhances the unique character of Orange as a major regional centre boasting a diverse economy and offering an attractive regional lifestyle,

(f) to recognise and manage valued environmental heritage, landscape and scenic features of Orange.

The application is considered to be consistent with the aims of the plan as listed above.

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

This clause provides that covenants, agreements and other instruments which seek to restrict the carrying out of development do not apply with the following exceptions.

· covenants imposed or required by Council

· prescribed instruments under Section 183A of the Crown Lands Act 1989

· any conservation agreement under the National Parks and Wildlife Act 1974

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

· any biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995

· any planning agreement under Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979.

The title of the subject property is affected by easements for sewer, drainage and electricity. The development as modified will not impact upon these restrictions.

Mapping

The subject site is identified on the LEP maps in the following manner:

Land Zoning Map:	Land zoned R5 Large Lot
Lot Size Map:	Minimum Lot Size 2ha
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies

Those matters that are of relevance are addressed in detail in the body of this report.

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the R5 Large Lot Residential zone. The proposed development is defined as a school under OLEP 2011, and is permitted with consent pursuant to clause 28(1) of SEPP (Infrastructure) 2007 and clause 2.7 of OLEP 2011. A school is prohibited in the R5 Large Lot Residential zone pursuant to the Land Use Table. The SEPP overrides the provisions of OLEP 2011 to the extent where there is an inconsistency. A school is therefore permissible.

The relevant objectives of the R5 zone include:

· To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.

· To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.

· To ensure development is ordered in such a way as to maximise public transport patronage, and encourage walking and cycling, in close proximity to settlement.

The proposed development is not inconsistent with the relevant provisions of the zone. The proposed alteration to Condition (52) will not unreasonably increase the demand for public services or public facilities.

Condition (52) of the consent currently restricts students or employees walking to the school site due to the location of the school on the Mitchell Highway and the Northern Distributor Road, and the lack of pedestrian access (or ability to construct such) to the school. As such, a Plan of Management exists that requires all students and employees to travel to and from the school via passenger vehicle or school bus. The proposed modification to allow students and employees to utilise Hewitt Close for pedestrian and bicycle access meets the objectives to encourage walking and cycling.

7.6 - Groundwater Vulnerability

This clause seeks to protect hydrological functions of groundwater systems and protect resources from both depletion and contamination.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy (Infrastructure) 2007 applies to the subject development.

As previously discussed, the proposed development is permissible within the R5 zone (being a prescribed zone) pursuant to clause 28(1) of the SEPP, being:

(1) Development for the purpose of educational establishments may be carried out by any person with consent on land in a prescribed zone.

Pursuant to Clause 32 of the SEPP, before determining a development application for development for the purposes of a school, the consent authority must take into consideration all relevant standards in the following State Government publications (as in force on the commencement of this Policy):

(a) School Facilities Standards—Landscape Standard—Version 22 (March 2002),

(b) Schools Facilities Standards—Design Standard (Version 1/09/2006),

(c) Schools Facilities Standards—Specification Standard (Version 01/11/2008).

If there is an inconsistency between a standard referred to in Subclause (2) and a provision of a Development Control Plan, the standard prevails to the extent of the inconsistency. These standards relate to aspects such as site investigation, clearance and preparation, earthworks and level changes, ESD principles, landscaping, pavements, water conservation and the like.

The applicant has not addressed the requirements of the SEPP in the submitted Statement of Environmental Effects. A condition of consent has been previously imposed requiring the development to comply with the relevant standards where applicable as listed in Clause 32 of the SEPP.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION s79C(1)(a)(ii)

There are no draft environmental planning instruments that apply to the subject land or proposed development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s79C(1)(a)(iii)

Development Control Plan 2004

Part 0.4-1 - Interim Planning Outcomes - Scenic Areas

The site falls within the scenic area to the west of Orange. The impact on the scenic area was previously considered under DA 314/2008(1), and will not be affected as a result of the modified development.

Part 0.4-4 - Interim Planning Outcomes - Murphy Lane and Gorman Road

The relevant Planning Outcomes for Part 0.4-4 include:

· Development of the land within the area comprises rural style fencing and does not comprise coloured metal fencing.

· Development of land within the area is accompanied by a landscape plan that demonstrates how the building will be blended into the landscape.

The development as modified does not impact upon the fencing or landscaping of the site.

Part 3.2-1 - Scenic, Landscape and Urban Areas

These matters have been previously addressed above.

Part 3.1-1 - Cumulative Impact

· Applications for development demonstrate how the development relates to the character and use of land in the vicinity.

The Orange Anglican Grammar School is a fairly recent established land use within this precinct. Construction commenced in 2008 and the school has exhibited ongoing expansion since. Allowing pedestrian and bicycle access to Hewitt Close will not negatively impact upon the character of this area, nor will it impact upon the use of land within the vicinity.

PROVISIONS PRESCRIBED BY THE REGULATIONS s79C(1)(a)(iv)

The development as modified is not inconsistent within the provisions as prescribed by the Regulations.

THE LIKELY IMPACTS OF THE DEVELOPMENT s79C(1)(b)

An investigation into the likely impacts of the development was carried out as part of the assessment of DA 314/2008(1) and subsequent modifications. The proposed modification seeks to allow students and staff to walk or ride to the school via Hewitt Close. The likely impacts resulting from the proposed travel arrangements are discussed below.

Context and Setting

The proposed development is situated in a rural residential area, approximately 3.7km northwest of the CBD of the City of Orange. The site is surrounded by larger dwellings on approximately 2ha allotments. The proposed development has had an impact upon the scenic qualities and features of the landscape by removing a number of mature trees, placing a concentration of buildings adjacent to the eastern boundary and constructing internal road works, car parking spaces and designated bus bays.

However; it is considered that these works have been offset by the provision of landscaping to screen the proposed development.

The establishment of an educational facility has altered the character and amenity of the locality by introducing an urban element into the rural residential nature of the locality. Whilst landscaping and noise attenuation measures have been implemented to reduce the impacts, the amenity of the area has been altered (particularly during school hours) which has affected the enjoyment of the neighbouring land to some extent. However, it will not restrict neighbouring properties from being used for rural residential use. To permit students and staff to utilise Hewitt Close for pedestrian and bicycle use for a trial period of 12 months is not considered to give rise to a substantial detrimental impact upon the context and setting of the locality. Further consideration of any impacts which may arise will be determined at the end of the trial period.

Access, Traffic and Transport

Access to the proposed development is principally from Murphy Lane, a local sealed road which connects to Molong Road and Gorman Road. The development has substantially increased the demand of traffic to the site, and as such upgrading of carriageways and the Murphy Lane access has been carried out to cater for this.

The internal roads have been designed to accommodate all expected vehicles including buses, and service and delivery vehicles. The approved road, car parking and drop-off layouts are satisfactory. Council has previously concluded that a satisfactory number of car parking areas and bus bays have been provided on the site.

Pedestrian access is required to be provided to the site. However, until such time that a suitable design can be approved and constructed (to the requirements of Council and the RMS), a Plan of Management has been in place restricting all pedestrian and bicycle access to the site. The proponent and Council’s Technical Services Division both advise that numerous options have been investigated, however none have been deemed acceptable to the RMS to date.

As stated previously, recent developments regarding Council’s Active Travel Plan have given rise to the opportunity for the proponent to facilitate the provision of a suitable pedestrian/bicycle link to the main entrance to the school. As such, the proponent has requested that Hewitt Close be available to children and staff within close proximity for pedestrian and bicycle access only. Drop-offs/pick-ups will be prohibited in Hewitt Close.

The application was referred to the RMS given the site history, with the following response being received:

The proposed modifications are to remove preclusions on students, staff and visitors from walking or riding to Orange Anglican Grammar School. The modifications are designed to allow students and staff who live near the school to walk and ride to the school. Under the modifications, pedestrian and cyclist access to the school would be from Hewitt Close only.

The modifications to DA 314/2008 and DA 341/2009 have been referred to Roads and Maritime in accordance with clause 104 State Environmental Planning Policy (Infrastructure) 2007. In accordance with that policy, Roads and Maritime does not object to the proposed modifications.

Roads and Maritime notes Orange Anglican Grammar School and Orange City Council have committed to discussing measures to improve safety for staff, students and visitors accessing the school by foot or bicycle. Roads and Maritime is supportive of this commitment, and in particular, encourages Council to explore options for providing safe pedestrian facilities to safely cross the Northern Distributor Road.

Given the commitments made in the OAGS draft Travel Policy which accompanied the application, the approval of the RMS, the possibility of connecting to Council’s Active Travel Plan, and in light of other designs being deemed unsuitable, it is considered reasonable that a 12 month trial period be granted, with a review to be undertaken following the trial period to assess any extension to this timeframe.

It is therefore recommended that Condition (52) be amended as follows:

(52) All access to the main entrance of Orange Anglican Grammar School off Murphy Lane shall be by bus or private vehicle. Pedestrian and bicycle access (for all students, staff and teachers) is prohibited for the main entrance. Pedestrian and bicycle access for students, staff and teachers is permitted to and from the Hewitt Close access. Drop-off and pick-up by private vehicle in Hewitt Close is prohibited.

These access arrangements shall be identified in the Orange Anglican Grammar School Travel Policy, and submitted to Council for approval prior to the use of Hewitt Close for pedestrian and bicycle access. As opportunities for pedestrian access are identified by Orange City Council, the Orange Anglican Grammar School shall undertake design and construction work in consultation with Orange City Council and the RMS.

These arrangements are subject to a trial period of 12 months, commencing on 6 July 2016. A modification application may be lodged to extend these arrangements beyond the 12 month trial period. If the modification application is lodged at least two months before the expiry of the trial period, the applicant will be permitted to continue with the pedestrian and bicycle access from Hewitt Close until the modification application has been determined by the Council. If the modification application is not lodged before the expiry of the trial period, then the pedestrian and bicycle access to the school will be prohibited.

The recommended wording will place the onus on the school to provide pedestrian facilities to the school when and if Council identifies suitable opportunities to provide such facilities over time. The amended condition also places the responsibility on the Orange Anglican Grammar School to carry out any necessary design and construction work for these facilities.

In light of the above, the proposed modification will not give cause to a detrimental impact upon the locality in terms of access, traffic and transport.

THE SUITABILITY OF THE SITE s79C(1)(c)

The development of an educational establishment in this locality has undoubtedly altered the amenity of the existing area. An arterial road (being the Mitchell Highway) and the Northern Distributor Road are located in close proximity (and in parts adjacent to) the east and south of the properties. Given the lay of the land and design of the surrounding road network, pedestrian access is not readily available to the school grounds.

Condition (52) of consent currently restricts students or employees walking to the school site due to the location of the school on the Mitchell Highway and the Northern Distributor Road, and the lack of pedestrian access (or ability to construct such) to the school. As such, a Plan of Management exists requiring that all students and employees travel to and from the school via passenger vehicle or school bus. As opportunities for pedestrian access are identified by Orange City Council, the Orange Anglican Grammar School will be required to undertake design and construction work in consultation with Orange City Council and the RMS. Condition (52) of the consent has been amended accordingly.

Despite the issues raised in relation to pedestrian access, the site allows for an adequate area of land to ensure that all car parking and manoeuvring is adequately contained within the school grounds. The development offers a purpose built environment for students with the ability to expand enrolment numbers from preschool through to Year 12 students. The site was not found to be contaminated, and suitable replanting of trees has been undertaken to maintain the vista of the locality and to screen the built form of the school.

The site maintains its suitability for the proposed development.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s79C(1)(d)

A referral was made to the NSW RMS given the nature of the proposal and previous history of the site. In effect, the RMS did not object to the proposed modification of access arrangements as described in the application.

The proposed development is not defined as advertised development under the provisions of the DCP, and as such no formal exhibition of the application was required. However, given the nature of the development, residents along Hewitt Close and those surrounding the subject site were provided with written notification of the application. Following the 14 day exhibition period, two submissions were received by Council. Both of these submissions are from residents of Hewitt Close, and both were principally concerned with the safety of children and staff using Hewitt Close for pedestrian and bicycle access to the School. Further the submissions raise concerns that Hewitt Close will become a de facto kiss-and-drop area.

It is acknowledged that Hewitt Close, and more so Gorman Road, are not ideal for pedestrian or bicycle use, especially by children. That said, these roads are public roads and are permitted for such use by members of the public. The determined safety of these roads for children to walk or ride to school ultimately comes down to parental choice. Pedestrian and bicycle access has always been denied for the school in light of the schools location in relation to the Mitchell Highway, and as such has been consistently conditioned.

The applicant has prepared a draft travel policy which accompanied the application which demonstrates how the school will manage pedestrian and cycle access to the school. Given the previous inability to resolve the pedestrian issue with the RMS, and the current opportunity available with Council’s Active Travel Plan, a 12 month trial is considered a reasonable outcome in this respect.

PUBLIC INTEREST s79C(1)(e)

SUMMARY

COMMENTS

The requirements of the Environmental Health and Building Surveyor and the Engineering Development Section are included in the attached Notice of Approval.

Attachments

1 Notice of Approval, D16/27275 ⇩

2 Submissions, D16/27172 ⇩

Planning and Development Committee 5 July 2016

2.6 Development Application DA 314/2008(6) - 7 Murphy Lane

Attachment 1 Notice of Approval

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ORANGE CITY COUNCIL

Development Application No DA 314/2008(6)

NA16/ Container PR13743

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

(AS MODIFIED)

issued under the Environmental Planning and Assessment Act 1979

Section 81(1)

Development Application
Applicant Name:	Orange Anglican Grammar School
Applicant Address:	C/- Anthony Daintith Town Planning PO Box 1975 ORANGE NSW 2800
Owner’s Name:	Anglican Schools Corporation
Land to Be Developed:	Lot 100 DP 1174806 - 7 Murphy Lane, Orange
Proposed Development:	Educational Establishment (Stage 1) and Advertisements

Building Code of Australia building classification:	Class 5 (office), Class 9b (school) and Class 10a (proprietary shelter)

Determination
Made On:	5 July 2016
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	18 November 2008
Consent to Lapse On:	18 November 2013

Terms of Approval

The reasons for the imposition of conditions are:

(1) To ensure a quality urban design for the development which complements the surrounding environment.

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

(4) To provide adequate public health and safety measures.

(5) Because the development will require the provision of, or increase the demand for, public amenities and services.

(6) To ensure the utility services are available to the site and adequate for the development.

(7) To prevent the proposed development having a detrimental effect on adjoining land uses.

(8) To minimise the impact of development on the environment.

Conditions

(1) The development is to be carried out generally in accordance with:

(a) Plan/s numbered DA01; DA02; DA03; DA04; 080629-01 Rev B; 080629-02 Rev A; 080629-03 Rev A; WC-035; 0820 as modified by A.03 Site Plan 1; A.03 Site Plan 2; 081236 - 01 to 081236 - 08 (10 sheets)

b) statements of environmental effects or other similar associated documents that form part of the approval

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

(2) All building work must be carried out in accordance with the provisions of the Building Code of Australia.

(3) A sign is to be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

(a) showing the name, address and telephone number of the principal certifying authority for the work, and

(b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(4) Engineering plans, showing details of all proposed work and adhering to any conditions of development consent, are to be submitted to, and approved by, Orange City Council or an Accredited Certifier prior to the issuing of a Construction Certificate.

(5) A water and soil erosion control plan is to be submitted to Orange City Council or an Accredited Certifier for approval prior to the issuing of a Construction Certificate. The control plan is to be in accordance with the Orange City Council Development and Subdivision Code and the Landcom, Managing Urban Stormwater; Soils and Construction Handbook.

(6) A Certificate of Compliance, from Orange City Council in accordance with the Water Management Act 2000, is to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate and as specified following.

The Certificate of Compliance will be issued subject to the payment of contributions for water, sewer and drainage works - at the level of contribution applicable at that time. The contributions are based on 6 ET’s for water supply headworks and 7 ET’s for sewerage headworks and payments are to be made to Council on the following schedule:

Prior to issue of Construction Certificate	4 ET’s for water supply headworks	5 ET’s for sewerage headworks
Prior to 1 October 2009	1 ET for water supply headworks	1 ET for sewerage headworks
Prior to 1 February 2010	1 ET for water supply headworks	1 ET for sewerage headworks

(7) The development’s stormwater design is to include stormwater retention within the development, designed to limit peak outflows from the land to the pre-existing natural outflows up to the 100 year ARI frequency, with sufficient allowance in overflow spillway design capacity to safely pass flows of lower frequency (that is, a rarer event) without damage to downstream developments. Where appropriate, the spillway design capacity is to be determined in accordance with the requirements of the Dam Safety Committee.

· catchment plan showing sub-catchments under existing and developed conditions;

· schematic diagram of the catchment model showing sub areas and linkages;

· tabulation detailing the elevation, storage volume and discharge relationships; and

· tabulation for the range of frequencies analysed, the inflows, outflows and peak storage levels for both existing and developed conditions;

together with copies of the data files for the model and engineering design plans of the required drainage system are to be submitted to Orange City Council or an Accredited Certifier upon application for a Construction Certificate.

(8) All stormwater from the site is to be collected and piped to Council’s existing stormwater system. Orange City Council or an Accredited Certifier, prior to issuing a Construction Certificate, is to approve engineering plans for this drainage system.

(9) A Liquid Trade Waste Application is to be submitted to Orange City Council prior to the issuing of a Construction (or Occupation) Certificate. The application is to be in accordance with Orange City Council’s Liquid Trade Waste Policy. Engineering plans submitted as part of the application are to show details of all proposed liquid trade waste pre-treatment systems and their connection to sewer.

Where applicable, the applicant is to enter into a Liquid Trade Waste Service Agreement with Orange City Council in accordance with the Orange City Council Liquid Trade Waste Policy.

(10) A water reticulation analysis by “Watsys” or other Council-approved equivalent flow-modelling computer program, is to be carried out on any proposed water-reticulation system for the development. A professional engineer or other Council-approved person is to carry out the analysis. The analysis is to be submitted to the Principal Certifying Authority for approval with engineering plans prior to the issuing of a Construction Certificate.

The reticulation system is to be designed to supply a peak instantaneous demand by gravity of 0.15 L/s/tenement at a minimum residual head of 200kPa.

(11) Application is to be made for a Construction Certificate for civil works associated with the proposed school development. Engineering plans, showing details of the proposed internal and external roadworks, sewer, water, stormwater and traffic management works, are to be submitted to Orange City Council or an Accredited Certifier upon application for a Construction Certificate.

(12) Engineering plans, showing details and condition of all trees to be removed, are to be submitted to, and approved by, Orange City Council or an Accredited Certifier prior to the issuing of a Construction Certificate.

(13) The intersection of Murphy Lane and school access road is to be designed to accommodate both present and future demands for the development. The intersection shall be designed in accordance with the RTA Road Design Guide and shall incorporate “AUR/AUL” widening on Murphy Lane.

The proposed storage bays on Murphy Lane are to be designed to accommodate a minimum of two (2) school buses.

Any alterations to existing services in Murphy Lane that are necessary to accommodate the proposed intersection are to be at the full cost of the developer.

Engineering plans, showing details of all proposed work and adhering to any conditions of development approval, shall be submitted to Orange City Council or an Accredited Certifier upon application for a Construction Certificate. The engineering plans shall be approved by Orange City Council prior to the issue of a Construction Certificate.

(14) Details of the required barrier or solid fence between the internal road and the dwelling at 9 Murphy Lane is to be submitted and approved by Council prior to the issue of a Construction Certificate. Details are to include the location, dimensions and materials of the proposed fence. The design must be certified by an accredited acoustic engineer as meeting the noise standards established in the Noise Assessment submitted with the development engineer.

(15) A Construction Certificate application is required to be submitted to, and issued by, Council/Accredited Certifier prior to any excavation or building works being carried out on site.

(16) A list which details the Fire Safety Measures that are existing within the building premises and those which are proposed, shall be submitted to the Certifying Authority with the Construction Certificate application, in accordance with Part 9 Clause 168 of the Environmental Planning and Assessment Regulation 2000. Note: A Construction Certificate cannot be issued until a list of fire safety measures is received.

(17) Structural engineering details are to be submitted with the application for a Construction Certificate for all proposed footings and slabs to be constructed as part of this development.

(18) Parking facilities for people with disabilities are to comply with clause NSW D3.5 of the Building Code of Australia and the requirements of Australian Standard 2890.1:1993 - “Parking Facilities - Off-Street Parking”.

(19) All wastes from the demolition and construction phases of this project are to be deposited at a licensed or approved waste disposal site. The project manager is to submit a waste management plan that describes the nature of wastes to be removed, the wastes to be recycled, the destination of all wastes and the route to be taken by vehicles transporting wastes to disposal sites. This information is to be supplied to Council prior to the issuing of a Construction Certificate.

(20) Where a facility is to be constructed primarily for use by children, access and facilities are to be designed in accordance with Australian Standard 1428.3 – Design for Access and Mobility – Requirements for Children and Adolescents With Physical Disabilities.

(21) Prior to the issue of the Construction Certificate, an application under Section 68 of the Local Government Act is to be made to Orange City Council, as the water and sewer authority, for the water, sewer and stormwater connections/works.

(22) Prior to the issue of the Construction Certificate, a report prepared by a suitably qualified person detailing how compliance with Section J “Energy Efficiency” of the BCA, will be achieved for the proposed Junior and Transition School buildings, is to be submitted to Council/accredited certifier for approval.

PRIOR TO WORKS COMMENCING

(23) The approved water and soil erosion control plan is to be implemented prior to construction work commencing.

DURING CONSTRUCTION/SITEWORKS

(24) Any adjustments to existing utility services that are made necessary by this development proceeding are to be at the full cost of the developer.

The developer is to be entirely responsible for the provision of water, sewerage and drainage facilities capable of servicing the development from Council’s existing infrastructure. The developer is to be responsible for gaining access over adjoining land for services where necessary and easements are to be created about all water, sewer and drainage mains within and outside the lots they serve.

(27) Where stormwater crosses land outside the lot it favours, an easement to drain water is to be created over the works. A Restriction-as-to-User under section 88B of the NSW Conveyancing Act 1979 is to be created on the title of the proposed lots requiring that no structures are to be placed on the site, or landscaping or site works carried out on the site, in a manner that affects the continued operation of the interlot drainage system. The minimum width of the easement is to be as required in the Orange City Council Development and Subdivision Code.

(28) Water and sewerage reticulation is to be provided to the proposed school development in accordance with the Orange City Council Development and Subdivision Code.

(29) Water and sewer services, including mains construction, pumping station construction, easements and all associated materials and works, are to be provided for the development at the cost of the developer.

(30) All construction vehicles are required to utilise the Murphy Lane entrance to the site.

(31) A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority upon completion of the foundations and prior to the placement of the buildings on site.

(32) All construction works are to be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans.

(33) All plumbing and drainage (water supply, sanitary plumbing and drainage, stormwater drainage and hot water supply) is to comply with the Local Government (General) Regulation 2005, the NSW Code of Practice – Plumbing & Drainage and Australian Standard AS3500 - National Plumbing and Drainage Code. Such work is to be installed by a licensed plumber and is to be inspected and approved by Council prior to concealment.

(34) All materials on site or being delivered to the site are to be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 are to be complied with when placing/stockpiling loose material or when disposing of waste products or during any other activities likely to pollute drains or watercourses.

(35) All excavated material is to be removed from the site in an approved manner and disposed of lawfully to an authorised disposal area.

(36) Building demolition is to be carried out in accordance with Australian Standard 2601:2001 - The Demolition of Structures, and the requirements of the NSW WorkCover Authority.

(37) All construction/demolition work on the site is to be carried out between the hours of 7.00 am and 6.00 pm Monday to Friday inclusive, 7.00 am to 5.00 pm Saturdays and 8.00 am to 5.00 pm on Sundays and Public Holidays. Written approval must be obtained from the General Manager of Orange City Council to vary these hours.

(38) Where Orange City Council is appointed as the Principal Certifying Authority, the following inspections will be required to be carried out by Council:

· at commencement of building work

· footings excavation

· slab reinforcement

· frame inspection

· wet areas

· stormwater drainage

· internal sewer/sanitary drainage

· external sewer/sanitary drainage

· hot and cold water plumbing

· final inspection

Should any of the above mandatory inspections not be carried out by Council an Occupation Certificate will not be issued on the completed structure.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(39) A Certificate of Compliance, from a Qualified Engineer, stating that the stormwater retention basin complies with the approved engineering plans is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(40) Certification from Orange City Council is required to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate stating that all works relating to connection of the development Council assets, works on Public Land, stormwater, sewer and water reticulation mains and footpaths have been carried out in accordance with the Orange City Council Development and Subdivision Code and the foregoing conditions.

(41) The existing residence is to be connected to the proposed reticulated sewer. The existing tank is to be accurately located and indicated on the submitted engineering plans. The septic tank is to be excavated and disposed of at a licensed landfill and the absorption trench is to be drained and the voids limed and backfilled with clean compacted material.

Evidence of such work is to be provided to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(42) The intersection of Murphy Lane and The Mitchell Highway is to be upgraded prior to the issue of an Occupation Certificate unless suitable alternative traffic arrangements are made to the satisfaction of the RTA and Orange City Council.

(43) An easement to drain sewage and to provide Council access for maintenance of sewerage works a minimum of 2.0 metres wide is to be created over all sewer mains within Lots 67, 68, 70 & 71 in DP 1004166 and Lot 2 in DP 819929. Evidence that the easement has been registered is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(44) A Right of Carriageway is to be created about the proposed roundabout within Lot 67 in 1004166 in favour of Lot 2 in DP 819929. Evidence that the Right of Carriageway has been registered is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(45) The Plan of Management for travel to the proposed school by students, teachers and staff is to be approved by Orange City Council prior to the issue of an Occupation Certificate.

(46) A written agreement to undertake the pedestrian design, approval and construction, in accordance with condition 52, is to be provided to Orange City Council prior to the issue of an Occupation Certificate for the school.

(47) The landscaped area shown on the plan submitted with the application shall be the subject of a detailed working plan by a suitably qualified person. The landscape plan is to be submitted to, and endorsed by Council, prior to the issue of an Occupation Certificate.

This detailed plan should be drawn to scale and include the location of tree and shrub species, height and spread at maturity and elevation of landscaped areas. Dense plantings are to be situated within the Scenic Protection Area, along the eastern boundary of Lot 2 DP 819929 between the proposed buildings and the property boundary, and along the entire western boundary of Lot 67 DP 1004166. These areas are to be planted prior to the issue of an Occupation Certificate for Stage One. Development consent does not relate to the removal of any vegetation outside of the works for Stage One.

(48) The owner of the building/s must cause the Council to be given a Final Fire Safety Certificate on completion of the building in relation to essential fire or other safety measures included in the schedule attached to this approval.

(49) No person is to use or occupy the building or alteration that is the subject of this approval without the prior issuing of an Occupation Certificate.

(50) Certification from Orange City Council, stating that liquid trade waste measures implemented comply with Orange City Council’s Liquid Trade Waste approval, is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(51) All of the foregoing conditions are to be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions is to be completed prior to the issuing of an Occupation Certificate, unless stated otherwise.

These access arrangements shall be identified in the Orange Anglican Grammar School Travel Policy, and submitted to Council for approval prior to the use of Hewitt Close for pedestrian and bicycle access. As opportunities for pedestrian access are identified by Orange City Council, the Orange Anglican Grammar School shall undertake design and construction work in consultation with Orange City Council and the RMS.

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(53) This approval is for Stage 1 (175 pupils) only. Any further development will require the consent of Council. Additional civil engineering works and water and sewer augmentation charges will be required for the future stages of this development.

(54) Vehicular access off Hewitt Close in future stages will be limited to emergency and domestic traffic only. Electronic control of a gate off Hewitt Close will be required.

(55) The height of the sign shall be limited to a maximum height of 2m. Illumination in the form of an LED message board will be permitted during daylight hours only.

(56) The sign shall be permitted to be displayed for a maximum of 15 years, after which time further approval may be required.

(57) The colour scheme of the proposed buildings is limited to Colorbond Dune, Bushland and Woodland Grey.

(58) The findings of the Noise Impact Assessment prepared by Indigo Consultants dated 27 October 2008 are to be implemented at all times during the life of the development.

(59) The perimeter fencing shall be of a type and height comparable to that used within rural localities to maintain the character of the area. Any variation to this provision will require the concurrence of Council.

(60) The transportable buildings have been granted consent until 17 December 2018, after which time permanent structures are to be erected with Council’s consent.

(61) Any ancillary light fittings fitted to the exterior of the building are to be shielded or mounted in a position to minimise glare to adjoining properties.

(62) The owner is required to provide to Council and to the NSW Fire Commissioner an annual Fire Safety Certificate in respect of the fire-safety measures, as required by Clause 177 of the Environmental Planning and Assessment Regulation 2000.

(63) The development shall comply with the relevant provisions of:

(a) School Facilities Standards – Landscape Standard – (Version 22 March 2002)

(b) School Facilities Standards – Design Standard – (Version 1/09/2006)

Other Approvals

(1) Local Government Act 1993 approvals granted under section 68.

Not applicable

(2) General terms of other approvals integrated as part of this consent.

See attached conditions

Right of Appeal

*Disability Discrimination* Act 1992:	This application has been assessed in accordance with the Environmental Planning and Assessment Act 1979. No guarantee is given that the proposal complies with the Disability Discrimination Act 1992. The applicant/owner is responsible to ensure compliance with this and other anti-discrimination legislation. The Disability Discrimination Act covers disabilities not catered for in the minimum standards called up in the Building Code of Australia which references AS1428.1 - "Design for Access and Mobility". AS1428 Parts 2, 3 and 4 provides the most comprehensive technical guidance under the Disability Discrimination Act currently available in Australia.

Disclaimer - S88B Restrictions on the Use of Land:	The applicant should note that there could be covenants in favour of persons other than Council restricting what may be built or done upon the subject land. The applicant is advised to check the position before commencing any work.

Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	DAVID WADDELL - DIRECTOR DEVELOPMENT SERVICES
Date:	6 July 2016

Planning and Development Committee 5 July 2016

2.7 Development Application DA 341/2009(2) - 7 Murphy Lane

TRIM REFERENCE: 2016/1410

AUTHOR: Rishelle Kent, Senior Planner

EXECUTIVE Summary

Application lodged	18 February 2016
Applicant/s	Orange Anglican Grammar School
Owner/s	Anglican Schools Corporation
Land description	Lot 100 DP 1174806 - 7 Murphy Lane Orange
Proposed land use	Educational Establishment (Stage 2)
Value of proposed development	Not applicable

Council's consent is sought to modify Condition (26) of development consent DA 341/2009(1) to permit pedestrian and bicycle access to and from the Orange Anglican Grammar School via Hewitt Close. The modified proposal would allow rear access to the school for students and staff via an existing gate towards the eastern end of Hewitt Close. The proponent suggests that approximately 17 current students would benefit from the proposed pedestrian and bicycle access from Hewitt Close. Prohibition of pedestrian and bicycle access via Murphy Lane will remain. The amended OAGS School Travel Policy reflects the above proposal, in conjunction with prohibiting students from being dropped off via private vehicle in Hewitt Close.

Council has consistently maintained the importance of providing pedestrian access to the school site since pre-DA lodgement meetings conducted in 2007. At the time of lodgement of the original DA in 2008 (DA 314/2008), OAGS had a limited timeframe to commence operations, therefore Council and the RMS agreed to allow the deferment of the provision of pedestrian access due to the limited number of students. This deferment was conditioned to cease in February 2011 or prior to the further approval of any subsequent stage, whichever occurred first (Condition (23)) with a written agreement by OAGS to undertake pedestrian design and construction (Condition (51)). Alternative arrangements could be made via a Plan of Management due to the limited number of students, however this would not be suitable for any larger number.

A further application to modify the pedestrian access condition (Condition (52)) was submitted in 2013 (DA 314/2008(5)). The condition was amended to read:

Pedestrian and bicycle access will only be permitted after Orange City Council and the RMS have approved a suitable design solution and the approved works have been carried out by the OAGS.

As opportunities for pedestrian access are identified by OCC, the OAGS shall undertake design work in consultation with OCC and the RMS.

It is now proposed to amend this condition to read as follows:

That access to the main entrance of OAGS off Murphy Lane is to be by bus or private vehicle only (no pedestrian or bicycle access).

Pedestrian and bicycle access to the rear entrance of OAGS off Hewitt Close is permitted.

All access to the school is to be in accordance with the OAGS Travel Policy (February 2016).

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “13.4 Our Environment – Monitor and enforce regulations relating to City amenity”.

Financial Implications

The guidelines instruct Council it should expend money in accordance with the detailed budget adopted for the purposes of implementing the Delivery/Operational Plan for the 2015/16 year.

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 341/2009(1) for Educational Establishment (Stage 2) at Lot 100 DP 1174806 - 7 Murphy Lane, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION

Council's consent is sought to modify DA 341/2009(1) to permit pedestrian and bicycle access to the Orange Anglican Grammar School from Hewitt Close only. The land is described as Lot 100 DP 1174806 and is known as 7 Murphy Lane, Orange.

MATTERS FOR CONSIDERATION

Section 96(1A) of the Environmental Planning and Assessment Act 1979 (EPAA) states:

A consent authority may…modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

The relevant matters are considered below.

Section 5A Assessment

There is not likely to be a significant effect on threatened species, populations or ecological communities or their habitats as a result of this development.

Section 79C

Section 79C of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s79C(1)(a)(i)

Orange Local Environmental Plan 2011

Clause 1.2 - Aims of Plan

The broad aims of the LEP are set out under subclause 2. Those relevant to the application are as follows:

(a) to encourage development which complements and enhances the unique character of Orange as a major regional centre boasting a diverse economy and offering an attractive regional lifestyle,

(f) to recognise and manage valued environmental heritage, landscape and scenic features of Orange.

The application is considered to be consistent with the aims of the plan as listed above.

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

This clause provides that covenants, agreements and other instruments which seek to restrict the carrying out of development do not apply with the following exceptions.

· covenants imposed or required by Council

· prescribed instruments under Section 183A of the Crown Lands Act 1989

· any conservation agreement under the National Parks and Wildlife Act 1974

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

· any biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995

· any planning agreement under Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979.

The title of the subject property is affected by easements for sewer, drainage and electricity. The development as modified will not impact upon these restrictions.

Mapping

The subject site is identified on the LEP maps in the following manner:

Land Zoning Map:	Land zoned R5 Large Lot
Lot Size Map:	Minimum Lot Size 2ha
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies

Those matters that are of relevance are addressed in detail in the body of this report.

Part 2 - Permitted or Prohibited Development

Land Use Zones

The relevant objectives of the R5 zone include:

· To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.

· To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.

· To ensure development is ordered in such a way as to maximise public transport patronage, and encourage walking and cycling, in close proximity to settlement.

The proposed development is not inconsistent with the relevant provisions of the zone. The proposed alteration to Condition (26) will not unreasonably increase the demand for public services or public facilities.

Condition (26) of the consent currently restricts students or employees walking to the school site due to the location of the school on the Mitchell Highway and the Northern Distributor Road, and the lack of pedestrian access (or ability to construct such) to the school. As such, a Plan of Management exists that requires all students and employees to travel to and from the school via passenger vehicle or school bus. The proposed modification to allow students and employees to utilise Hewitt Close for pedestrian and bicycle access meets the objectives to encourage walking and cycling.