ORANGE CITY COUNCIL

Planning and Development Committee

 

Agenda

 

2 August 2016

 

 

Notice is hereby given, in accordance with the provisions of the Local Government Act 1993 that a Planning and Development Committee meeting of ORANGE CITY COUNCIL will be held in the Council Chamber, Civic Centre, Byng Street, Orange on Tuesday, 2 August 2016.

 

 

Garry Styles

General Manager

 

For apologies please contact David Waddell on 6393 8261.

    

 


Planning and Development Committee                                                2 August 2016

Agenda

  

1                Introduction.. 3

1.1            Declaration of pecuniary interests, significant non-pecuniary interests and less than significant non-pecuniary interests. 3

2                General Reports. 4

2.1            Items Approved Under the Delegated Authority of Council 4

2.2            Development Application DA 92/2016(1) - 238 and 238A McLachlan Street 8

2.3            Development Application DA 314/2008(6) - 7 Murphy Lane. 60

2.4            Development Application DA 341/2009(2) - 7 Murphy Lane. 86

 


Planning and Development Committee                                                2 August 2016

1       Introduction

1.1     Declaration of pecuniary interests, significant non-pecuniary interests and less than significant non-pecuniary interests

The provisions of Chapter 14 of the Local Government Act, 1993 (the Act) regulate the way in which Councillors and designated staff of Council conduct themselves to ensure that there is no conflict between their private interests and their public role.

The Act prescribes that where a member of Council (or a Committee of Council) has a direct or indirect financial (pecuniary) interest in a matter to be considered at a meeting of the Council (or Committee), that interest must be disclosed as soon as practicable after the start of the meeting and the reasons given for declaring such interest.

As members are aware, the provisions of the Local Government Act restrict any member who has declared a pecuniary interest in any matter from participating in the discussion or voting on that matter, and requires that member to vacate the Chamber.

Council’s Code of Conduct provides that if members have a non-pecuniary conflict of interest, the nature of the conflict must be disclosed. The Code of Conduct also provides for a number of ways in which a member may manage non pecuniary conflicts of interest.

Recommendation

It is recommended that Committee Members now disclose any conflicts of interest in matters under consideration by the Planning and Development Committee at this meeting.

 


Planning and Development Committee                                                2 August 2016

 

 

2       General Reports

2.1     Items Approved Under the Delegated Authority of Council

TRIM REFERENCE:        2016/1429

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 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

Nil

 

Recommendation

That the information provided in the report by the Acting Manager Development Assessments 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 130/2009(4)

Determination Date

7 July 2016

PR Number

PR26990

Applicant/s:

Mr PA and Mrs K Nicholson

Owner/s:

Mr PA and Mrs K Nicholson

Location:

Lot 2 DP 1209535 - 6 Spencer Lane, Orange

Proposal:

Modification of development consent - subdivision (20 lot rural residential). The modification involves altering the approved building envelope.

Value:

$0

 

Reference:

DA 41/2014(2)

Determination Date

29 June 2016

PR Number

PR3849

Applicant/s:

Mr JJ Norris

Owner/s:

Arthurs Nominees Pty Limited

Location:

113 Endsleigh Avenue, Orange

Proposal:

Modification of development consent - food and drink premises, outdoor dining and business identification signage. The modification involves opening the business earlier in the morning (at 5am) and thus extending the operational hours.

Value:

$15,000 (being the same value as the original development)

 

Reference:

DA 337/2014(2)

Determination Date

27 June 2016

PR Number

PR17577

Applicant/s:

Orange City Council

Owner/s:

Orange City Council

Location:

Lots 2, 3, 4, 5, 6, 13, 14, 15, 16 and 17 Sec 29 DP 5600 - Orange Showground - Leeds Parade, Margaret Street and Phillip Street, Orange

Proposal:

Modification of development consent - recreation facility (major) new pavilion. The modification involves slightly altering the external appearance, design and size of the new pavilion, resulting in a simpler, less expensive design.

Value:

$1,300,000 (being $550,000 more than the original development)

 

Reference:

DA 97/2016(1)

Determination Date

21 June 2016

PR Number

PR27048

Applicant/s:

Mr BP and Mrs AM Reidy

Owner/s:

Mr BP and Mrs AM Reidy

Location:

Lot 100 DP 1204869 – 65 Sampson Street, Orange

Proposal:

Dwelling (alterations and additions), garage (detached), swimming pool, demolition (shed) and ancillary works

Value:

$600,000


 

 

Reference:

DA 452/2015(2)

Determination Date

30 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:

Modification of development consent - shop (alterations and additions to existing premises) and demolition (tree removal). The modification involves moving condition (4) within the consent from “Prior to the Issue of a Construction Certificate” to “Prior to the Issue of an Occupation Certificate”. Condition (4) requires all of the requirements from the previous consent (DA 235/2012(2)) to be completed.

Value:

$65,000 (being the same value as the original development)

 

Reference:

DA 148/2016(1)

Determination Date

11 July 2016

PR Number

PR22203

Applicant/s:

Statspan Pty Ltd C/O Peter Basha Planning & Development

Owner/s:

Statspan Pty Ltd

Location:

Lot 1 DP 1109351 – 120-122 Summer Street, Orange

Proposal:

Office Premises (Alterations and Additions)

Value:

$500,000

 

Reference:

DA 157/2016(1)

Determination Date

29 June 2016

PR Number

PR20835

Applicant/s:

Mr MJ Pearce and Mr TA Webb

Owner/s:

Mr MJ Pearce and Mr TA Webb

Location:

Lot 84 DP 1090820 – 17 McCarron Place, Orange

Proposal:

Dual occupancy and subdivision (two lot residential)

Value:

$460,000

 

Reference:

DA 161/2016(1)

Determination Date

8 July 2016

PR Number

PR11676

Applicant/s:

Mrs E A Johnson and Mr J Johnson

Owner/s:

Mrs E A Johnson and Mr J Johnson

Location:

Lot B DP 161732 – 366 Summer Street

Proposal:

Health Services Facility and Business Identification Signage (Medical Centre – Midwives and Lactation Consultancy)

Value:

$20,000

 

Reference:

DA 169/2016(1)

Determination Date

30 June 2016

PR Number

PR12242

Applicant/s:

Mr TS and Mrs RL Mackay

Owner/s:

Mr TS and Mrs RL Mackay

Location:

Lot 13 DP 542229 – 16 Victoria Street, Orange

Proposal:

Subdivision (three lot Strata)

Value:

$0

 


 

 

Reference:

DA 178/2016(1)

Determination Date

29 June 2016

PR Number

PR23595

Applicant/s:

OCTEC Limited

Owner/s:

Eastern Developments (NSW) Pty Ltd

Location:

Lot 100 DP 1137775 – 171 Lords Place, Orange

Proposal:

Business Identification Signage

Value:

$9,050

 

Reference:

DA 180/2016(1)

Determination Date

28 June 2016

PR Number

PR17470

Applicant/s:

Winter Magic Services

Owner/s:

Sentinel Orange Homemaker Pty Ltd

Location:

Lot 4 DP 270204 – 168-200 Lone Pine Avenue, Orange

Proposal:

Recreation facility (indoor) (temporary ice skating rink)

Value:

$3,000

 

TOTAL NET* VALUE OF ALL DEVELOPMENTS APPROVED IN THIS PERIOD:          $2,142,050

* 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                                                2 August 2016

 

 

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

TRIM REFERENCE:        2016/1655

AUTHOR:                       Michael Glenn, Senior Planner    

 

 

EXECUTIVE Summary

This report was presented to Council on 5 July 2016, where Council resolved to defer consideration pending a Councillor Inspection. This inspection was undertaken on Saturday 23 July 2016, and the report is therefore resubmitted for determination.

 

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

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 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

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

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

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

(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 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:

(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 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

(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 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)

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)

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, D16/31765

2          Plans, D16/31774

3          Submission, D16/31775

 


Planning and Development Committee                                                         2 August 2016

2.2                       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 PR27307

 

 

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:

2 August 2016

  Determination:

CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

 

 

Consent to Operate From:

3 August 2016

Consent to Lapse On:

3 August 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

(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.

 

(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

 

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:

 

3 August 2016

 


Planning and Development Committee                                                                          2 August 2016

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

Attachment 2      Plans

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Planning and Development Committee                                                    2 August 2016

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

Attachment 3      Submission

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Planning and Development Committee                                                2 August 2016

 

 

2.3     Development Application DA 314/2008(6) - 7 Murphy Lane

TRIM REFERENCE:        2016/1657

AUTHOR:                       Rishelle Kent, Senior Planner    

 

 

EXECUTIVE Summary

This report was presented to Council on 5 July 2016, where Council resolved to defer consideration pending a Councillor Inspection. This inspection was undertaken on Saturday 23 July 2016, and the report is therefore resubmitted for determination.

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

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 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

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

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

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,

(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,

(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.

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.

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 3 August 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 location of the educational establishment has never been ideal, with two major arterial roads intersecting the general urban catchment to which it serves. The site is situated within a large lot residential area where quiet enjoyment of the land is highly valued by the existing residents.

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)

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 and the Engineering Development Section are included in the attached Notice of Approval.

 

Attachments

1          Notice of Approval, D16/31792

2          Submissions, D16/31795

 


Planning and Development Committee                                                         2 August 2016

2.3                       Development Application DA 314/2008(6) - 7 Murphy Lane

Attachment 1      Notice of Approval

 

leaflogo

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:

2 August 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

(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, 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.


 

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 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.


 

(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 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.

 

(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)    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.

 

(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 3 August 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.

 

 


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)

(c)      School Facilities Standards – Specification Standard (Version 1/11/2008)

 

 

 

 

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

 

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:

 

3 August 2016

 


Planning and Development Committee                                                    2 August 2016

2.3                       Development Application DA 314/2008(6) - 7 Murphy Lane

Attachment 2      Submissions

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Planning and Development Committee                                                2 August 2016

 

 

2.4     Development Application DA 341/2009(2) - 7 Murphy Lane

TRIM REFERENCE:        2016/1660

AUTHOR:                       Rishelle Kent, Senior Planner    

 

 

EXECUTIVE Summary

This report was presented to Council on 5 July 2016, where Council resolved to defer consideration pending a Councillor Inspection. This inspection was undertaken on Saturday 23 July, and the report is therefore resubmitted for determination.

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 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 (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.

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

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 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

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

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

(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,

(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,

(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 (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.

7.6 - Groundwater Vulnerability

This clause seeks to protect hydrological functions of groundwater systems and protect resources from both depletion and contamination.

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.

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 341/2009(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 341/2009(1). 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 approval of the RMS, the contents of the draft AOGS Travel Policy,  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 (26) be amended as follows:

(26)   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 3 August 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 and implements its draft Travel Policy which was submitted in support of the application.

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 location of the educational establishment has never been ideal, with two major arterial roads intersecting the general urban catchment to which it serves. The site is situated within a large lot residential area where quiet enjoyment of the land is highly valued by the existing residents. 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 (26) 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 (26) 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 the same property in Hewitt Close. Issues raised in these submissions have been outlined below.

·    The amenity of my property will be affected by substantially increasing vehicle traffic in Hewitt Close

There will be no increase in vehicular traffic in Hewitt Close as a result of this proposal. The application seeks consent for pedestrian and bicycle access, with drop-offs and pick-ups in Hewitt Close prohibited. This will be reflected in the Plan of Management to the satisfaction of Council prior to the operation of the 12 month trial period.

·    The proposal lacks the infrastructure necessary for the safety of children

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 nonetheless 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. Given the fact that the RMS do not object the proposed arrangements, the current opportunity available within Council’s Active Travel Plan and the commitments made by the applicant in their draft Travel Policy submitted in support of the application a 12 month trial is considered a reasonable outcome in this respect. The applicants will be required to formally submit a further application towards the end of the trial period so that this arrangement can be further evaluated.

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 and the Engineering Development Section are included in the attached Notice of Approval.

 

 

Attachments

1          Notice of Approval, D16/31822

2          Submissions, D16/31825

 


Planning and Development Committee                                                         2 August 2016

2.4                       Development Application DA 341/2009(2) - 7 Murphy Lane

Attachment 1      Notice of Approval

 

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ORANGE CITY COUNCIL

 

Development Application No DA 341/2009(2)

 

NA16/                                                                                             Container PR23406

 

 

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 2)

 

 

Building Code of Australia

  building classification:

 

Class 9b

 

 

Determination

 

  Made On:

2 August 2016

  Determination:

CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

 

 

Consent to Operate From:

2 December 2009

Consent to Lapse On:

2 December 2014

 

Terms of Approval

 

The reasons for the imposition of conditions are:

 

(1)      To ensure compliance with relevant statutory requirements.

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

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

(4)      To maintain neighbourhood amenity and character.

(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 Site plan; Floor plan Wilpour house; 07_052 3/6 to 6/6 inclusive

 

(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)      A detailed plan showing landscaping adjacent to the car park shall be submitted to and approved by Council's Manager Development Assessments prior to the issue of a Construction Certificate.

 

(5)      A Fire Safety Schedule specifying the fire-safety measures (both current and/or proposed) to be implemented in the building is to be submitted with the Construction Certificate application, in accordance with Part 9 Clause 168 of the Environmental Planning and Assessment Regulation 2000.

 

(6)      Council/Accredited Certifier is to be provided with a Fire Safety Upgrade Report prepared by a suitably qualified person. The report is to specify upgrade works proposed in order to bring the existing building into compliance with the Building Code of Australia. Where the report recommends the use of an alternative fire engineered solution, specific design details must be provided to Council/Accredited Certifier with the report. Please note that an alternative solution must be carried out by a certified Fire Engineer.

 

(7)      Detailed plans indicating the layout of all sanitary and access facilities for people with disabilities is to be submitted. These designs must be in accordance with Part D3 of the Building Code of Australia, Australian Standard 1428.1:2001 - Design for Access and Mobility: General Requirements for Access - New Building Work.

 

(8)      A Waste Management Plan is to be submitted to, and approved by Council/Accredited Certifier, prior to the issuing of a Construction Certificate.

 

(9)      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.


 

(10)    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.

 

(11)    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.

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 or an Accredited Certifier prior to the issue a Construction Certificate.

 

(12)    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.

 

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 3 ET’s for water supply headworks and 3 ET’s for sewerage headworks.

 

(13)    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 roadworks, sewer, water and stormwater, are to be submitted to Orange City Council or an Accredited Certifier upon application for a Construction Certificate.

 

 

PRIOR TO WORKS COMMENCING

 

(14)    Soil erosion control measures shall be implemented on the site.

 

 

DURING CONSTRUCTION/SITEWORKS

 

(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)    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

-    frame inspection

-    wet area waterproofing

-    stormwater drainage

-    internal sewer/sanitary drainage

-    external/sanitary drainage

-    hot and cold water plumbing

-    recycled water and rainwater 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 complete structure.

 

(17)    The following inspections will be required to be carried out by Council as the Water and Sewer Authority:

-    internal sewer

-    hot and cold water installation

-    external sewer

-    stormwater drainage

-    final on water, sewer and stormwater drainage and Council services.

 

(18)    All plumbing and drainage (water supply, sanitary plumbing and drainage, stormwater drainage and hot water supply) is to comply with the Local Government (Water, Sewerage and Drainage) Regulation 1998, 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.

 

(19)    The floor surfaces of bathrooms, shower rooms, laundries and WC compartments are to be of an approved impervious material properly graded and drained and waterproofed in accordance with AS3740. Certification is to be provided to the Principal Certifying Authority from a licensed applicator prior to the fixing of any wall or floor tiles.

 

(20)    Tactile ground surface indicators are to be provided for the orientation of people with vision impairment in accordance with the provisions of Australian Standard 1428 Part 4.

 

(21)    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.

 

(22)    Any adjustments to existing utility services that are made necessary by this development proceeding are to be at the full cost of the developer.  All works associated with the development are to be at no cost to Orange City Council and the RTA.

 

(23)    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 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.


 

(24)    A copy of the Soil and Water Management Plan must be kept on site at all times and made available to Council officers on request.

 

(25)    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.

 

(26)    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 3 August 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.

 

 

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

 

(27)    Landscaping shall be installed in accordance with the approved plans and shall be permanently maintained to the satisfaction of Council's Manager Development Assessments.  Landscaping required as part of Stage One which has not been planted and/or adequately maintained is to be completed prior to the issue of the Occupation Certificate.

 

(28)    All construction waste is to be removed from the site prior to the issue of an Occupation Certificate.

 

(29)    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.

 

(30)    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.

 

(31)    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 compliance certificate issued, prior to the issue of an Occupation Certificate.

 

(32)    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.

 

(33)    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.


 

(34)    The Plan of Management for travel to the Orange Anglican Grammar School by students, teachers and staff is to be approved by Orange City Council and the RTA prior to the issue of an Occupation Certificate.

 

(35)    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.

 

 

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

 

(36)    The owner is required to provide to Council and to the NSW Fire Commissioner an Annual Fire Safety Statement in respect of the fire-safety measures, as required by Clause 177 of the Environmental Planning and Assessment Regulation 2000.

 

(37)    This approval is for a maximum of 250 pupils. Any further development will require the consent of Orange City Council. Additional civil engineering works and water and sewer augmentation charges will be required for the future stages of this development.

 

(38)    All vehicular access to the Orange Anglican Grammar School is to be from Murphy Lane. Vehicular access off Hewitt Close is to be limited to emergency and domestic traffic only. Electronic control of a gate off Hewitt Close will be required for future stages.

 

 

 

 

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:

 

3 August 2016

 


Planning and Development Committee                                                    2 August 2016

2.4                       Development Application DA 341/2009(2) - 7 Murphy Lane

Attachment 2      Submissions

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