Agenda of Extraordinary Planning and Development Committee

Extraordinary Planning and Development Committee 17 October 2018

2.1 Development Application DA 445/2011(4) - 47 Byng Street

RECORD NUMBER: 2018/2443

AUTHOR: Kelly Walker, Senior Planner

EXECUTIVE Summary

Application lodged	3 January 2017
Applicant/s	Mr JJ Norris
Owner/s	Mr JJ Norris
Land description	Lot B DP 152339 - 47 Byng Street, Orange
Proposed land use	Restaurant and Shop
Value of proposed development	$150,000

Application has been made to modify development consent DA 445/2011(3) on Lot B DP 152339, known as 47 Byng Street, Orange (see Figure 1). The original application DA 445/2011(1) was approved on 14 May 2012 for a restaurant and shop. The amended modification proposal is depicted in the attached amended drawings by Architecture Raw.

Figure 1 - locality plan

The amended modification involves the demolition of the garage fronting Clinton Street, the removal of four (4) trees, and the construction of an extension to the existing restaurant/café and shop fronting Clinton Street. This extension has been designed as an annex/pavilion to cover the existing outdoor dining area, and includes the relocation of the takeaway window, and improved bin and dry goods storage.

Signage shown on the submitted plans cannot form part of this modification application as discussed later in this report, and does not form part of the following assessment.

The proposed modification does not alter the original overall numbers of seats from the original approved application (DA 445/2011(1)), being a total of 69; nor does it alter the existing hours of operation, being 7am to 10pm Monday to Saturday, and 7am to 6pm on Sundays and public holidays.

In accordance with Council’s Declaration of Planning and Development Assessment Procedures and Protocols (2010), Council’s Director Development Services held a mediation meeting between the applicant and objectors on 29 March 2017. Discussions focussed around the legal principles and tests of modification applications rather than mediate the potential impacts of the proposal, and as such no resolutions were achieved.

Following the first exhibition period and mediation meeting, Council requested that the applicant give further consideration to altering the design of the proposal to address concerns about whether the proposal was a modification, as well as address impacts raised by objectors. Amended drawings and a Noise Report were submitted to Council on 20 September 2017.

That amendment was re-advertised, and neighbours and submitters were re-notified. 39 submissions were received as a result of the second exhibition period. The application was presented to the Planning and Development Committee on 7 December 2017 for consideration. At that meeting, the Committee resolved as follows:

RESOLVED - 17/001 Cr K Duffy/Cr S Munro

That Council defer consideration of the modification of development consent DA 445/2011(4) for Restaurant and Shop at Lot B DP 152339 - 47 Byng Street, Orange pending further discussion with the applicant and objectors.

Following this resolution, Council’s Director Development Services and Manager Development Assessments determined that the best way forward was to hold a ‘design workshop’ with objectors and interested parties. Many of the contested issues relate to ongoing operational breaches and matters which are outside the scope of the modification application (discussed later in the main body of this report). However, design is an issue that could be further discussed and potentially mediated. The applicant, submitters, Councillors and Council staff attended the workshop on 9 May 2018.

Main points and concerns raised included:

· bi-fold doors would cause adverse impacts to neighbours (noise, light spill, visual, privacy, etc.);

· any openable windows and doors would cause noise impacts;

· design is still inconsistent with the Infill Policy and DCP;

· open toilet area will cause adverse impacts (noise, odour); and the takeaway window causes significant impacts (noise, unlawful parking and driving).

Following discussions held in and after the workshop, the applicant further revised the proposal. Changes included removing the bi-fold doors, removing openable windows, enclosing the toilets, and some revised materials. This amendment was re-advertised, and neighbours and submitters were re-notified during a third exhibition period, where eight (8) submissions were received. Another submission was also received prior to the exhibition of this amendment.

Figures 2 and 3 below show a visual representation of how the design has changed and progressed throughout the process of this application over the past 18 months. It shows the proposal in its initial form, and the development of the design following discussions with Council staff, and responding to submissions from neighbours and the community:

Figure 2 - elevational design progression (from submitted drawings by Architecture Raw dated from top to bottom 14 December 2016, 5 October 2017, 15 February 2018 and 10 August 2018)

Figure 3 - perspectives design progression (from submitted drawings by Architecture Raw dated from top to bottom 14 December 2016, 5 October 2017 and 10 August 2018)

This amendment is now before Council for consideration, and an assessment of this revision has been carried out in the main body of this report.

It is important to note that since the Committee last considered this application on 7 December 2017, the EP&A Act has been substantially amended. Changes have also been made to the Environmental Planning and Assessment Regulation 2000 (the “Regulations”), Biodiversity Conservation Act 2016, Fisheries Management Act 1994, and a new NSW noise policy has been implemented. There have also been changes to some Council procedures. These amendments apply to the subject application, and as such a full assessment has been carried out below reflecting changes made to the Acts, Regulations, policies and procedures, as well as changes that have been made to this application.

Furthermore, Council staff acknowledge ongoing breaches of the original consent, as well as breaches of various Acts, which have been highlighted as a major issue in the submissions. Breaches and potential future breaches however are outside the scope of this application, and thus have not been taken into account in the assessment of the modification. It is recommended that Council investigates these matters under separate cover.

Overall, it is considered that the revised proposal meets the principles and tests of being “substantially the same” development as the originally approved development, as set out in Section 4.55 of the amended EP&A Act. A Section 4.15 assessment indicates that the development as modified is acceptable in this case, subject to amended and additional conditions of consent. Attached is an amended Notice of Approval for Council’s consideration.

It is recommended that Council supports the subject proposal.

RECENT LEGISLATIVE CHANGES

On 1 March 2018 the Environmental Planning and Assessment Act 1979 (the “EP&A Act”) was substantially amended. The most immediate change involved the restructuring and renumbering of the Act, with other more substantive changes to be phased in over time. This application was lodged prior to the changes coming into effect, therefore much of the supporting documentation and previous reports to Council on this matter reference the previous numbering regime. In the drafting of this report the content and substance of the supporting material has been considered irrespective of which legislative references were used.

It is noted that amendments to the EP&A Act relating to modifications of Development Consents have entailed the renumbering of from Section 96 to Section 4.55 without substantive alteration to the provisions contained in the section.

DECISION FRAMEWORK

Development in Orange is governed by two key documents Orange Local Environment Plan 2011 (the “LEP”) and Orange Development Control Plan 2004 (the “DCP”). In addition the Infill Guidelines are used to guide development, particularly in the heritage conservation areas and around heritage items.

Orange Local Environment Plan 2011 – The provisions of the LEP must be considered by the Council in determining the application. LEPs govern the types of development that are permissible or prohibited in different parts of the City and also provide some assessment criteria in specific circumstances. Uses are either permissible or not. The objectives of each zoning and indeed the aims of the LEP itself are also to be considered and can be used to guide decision making around appropriateness of development.

Orange Development Control Plan 2004 – the DCP provides guidelines for development. In general it is a performance based document rather than prescriptive in nature. For each planning element there are often guidelines used. These guidelines indicate ways of achieving the planning outcomes. It is thus recognised that there may also be other solutions of merit. All design solutions are considered on merit by planning and building staff. Applications should clearly demonstrate how the planning outcomes are being met where alternative design solutions are proposed. The DCP enables developers and architects to use design to achieve the planning outcomes in alternative ways.

DIRECTOR’S COMMENT

This development application represents the third attempt by the applicant to redesign the existing “Byng St Café” at 47 Byng Street to allow covered seating. The first designs were not pursued due to strong community opposition. The applicant has worked with staff and the Urban Design and Heritage Advisor to provide a less bold design as previously. Notwithstanding this residents still oppose the development on design grounds as well as amenity grounds. The issue of whether this application can be considered by Council as a modification is also raised by several objectors. Staff have satisfied themselves that the application can be legally considered as a modification.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “10.1 Preserve - Engage with the community to ensure plans for growth and development are respectful of our heritage”.

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 445/2011(4) for Restaurant and Shop at Lot B DP 152339 - 47 Byng 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 PROPOSAL

The proposed modification involves the demolition of the garage fronting Clinton Street, the removal of four (4) trees, and the construction of an extension to the existing restaurant/café and shop fronting Clinton Street. This extension has been designed as an annex/pavilion to cover the existing outdoor dining area, and includes the relocation of the takeaway window, and provides improved bin and dry goods storage.

Proposed materials include masonry and EcoClad rendered walls, double glazed timber framed windows to Clinton Street, aluminium framed bi-fold takeaway windows to Clinton Street, steel awning to Clinton Street, Zincalume roofing and a steel gate to Clinton Street. A stone and wood bench seat is proposed within the frontage of the addition to provide outdoor seating.

The proposed modification does not alter the original overall numbers of seats from the original application, being a total of 69; nor does it alter the existing hours of operation, being 7am to 10pm Monday to Saturday and 7am to 6pm on Sundays and public holidays.

Signage shown on the submitted plans cannot form part of this modification application as discussed later in this report, and does not form part of the following assessment.

PROCEDURE AND AMENDMENTS

Figures 2 and 3 in the previous “Executive Summary” section of this report show a visual representation of how the design has changed and progressed during the process of this application. A written description of the changes has been made below:

Initial Proposal

The modification was initially submitted as a pavilion style annex, designed to be a light, airy cover for the outdoor seating area. However, Council officers had initial concerns about the proposal, in particular whether it constituted a modification as set out in Section 4.55(2) of the EP&A Act, and its relationship with the heritage setting, streetscape and neighbourhood. Council took into account the principles and tests established by the Land and Environment Court to determine if a proposed modification is “substantially the same”. Having regard to these principles, it was considered that the proposal needed to be amended to ensure that it did not significantly change its relationship to adjoining properties, the streetscape, and character of the locality; or impact on the amenity of neighbours. This matter is discussed and assessed in detail later in this report. Council’s Urban Design and Heritage Advisor made suggestions for an amended design that would fit better within the setting.

The applicant submitted further supporting information regarding these principles in an attempt to justify the proposal, but declined to revise the proposal at that time other than to remove the roller-door from the proposed takeaway window; requesting that Council assess the application on the basis of the information and plans submitted.

Thus the proposal was placed on public exhibition, and Council received 19 submissions during that exhibition period (two of which were duplicates), and an additional submission received after the exhibition period closed, all in opposition to the proposal. A summary of the issues raised in the submissions has been addressed in the body of this report. The applicant was provided with a summary of points raised by the objectors. Council’s Declaration of Planning and Development Assessment Procedures and Protocols (2010) identifies that upon receipt of at least five submissions objecting to a development application, and where those issues are considered by Council to be reasonably capable of negotiation, a meeting will be offered to all parties in an attempt to resolve issues and find compromise prior to the matter being determined. As such, Council’s Director Development Services held a mediation meeting between the applicant and objectors on 29 March 2017. Discussions focussed around the legal principles and tests of modification applications rather than mediate the potential impacts of the proposal, and as such no resolutions were achieved.

Following the first exhibition period and mediation meeting, Council requested that the applicant give further consideration to altering the design of the proposal to address initial concerns about whether the proposal was “substantially the same” development as the original approval, as well as address impacts raised by objectors. Potential noise impact on adjoining residential properties was raised as a key issue, as was the design of the structure. Discussions took place between Council staff, Council’s Urban Design and Heritage Advisor, and the applicant over the subsequent few months, and revised plans and a Noise Report were submitted to Council on 20 September 2017.

Amended Proposal

Amendments included the removal of the roller door to the takeaway window, increased setbacks from Clinton Street, reduced height and bulk at the frontage, and removal of the upper section of the blade wall. Details of materials, colours and dimensions were also provided.

The revised modification application was re-advertised, and neighbours and submitters were re-notified. 39 submissions were received as a result of the second exhibition period, giving a total of 57 submissions following both exhibition periods, 30 in support of the application, and 27 objecting to the proposal. A summary of the issues raised in the submissions has been addressed in the body of this report.

The application was presented to the Planning and Development Committee on 7 December 2017 for consideration. At that meeting, the Committee resolved as follows:

RESOLVED - 17/002 Cr K Duffy/Cr S Munro

Following this resolution, Council’s Director Development Services and Manager Development Assessments determined that the best way forward was to hold a ‘design workshop’ with objectors and interested parties. Many of the contested issues relate to ongoing operational breaches and matters which are outside the scope of the modification application (discussed later in this report), however design is an issue that could be further discussed and potentially mediated. The applicant requested Council’s comments on potential design revisions, with the assistance of Council’s Urban Design and Heritage Advisor, before the workshop was held. The applicant, submitters and Councillors were invited to attend the workshop on 9 May 2018.

Main points and concerns raised included:

· bi-fold doors would cause adverse impacts to neighbours (noise, light spill, visual, privacy, etc.;

· any openable windows and doors would cause noise impacts;

· design is still inconsistent with Infill Policy and DCP;

· open toilet area will cause adverse impacts (noise, odour); and

· the takeaway window causes significant impacts (noise, unlawful parking and driving).

Recommendations put to the applicant included:

· revising the glazed front elevation;

· enclosing the toilets;

· fixing windows shut; and

· not recommencing the takeaway component of the operation.

Some written comments were submitted outside of the workshop in regards to the revised design. Matters not relating to the design were also raised, which are discussed in detail in the submission section later in this report. A summary of issues and recommendations from workshop attendees and Council staff was forwarded to the applicant following the workshop.

Further Amendment

This amendment was re-advertised and neighbours and submitters were re-notified during the third exhibition period, where eight (8) submissions were received.

This amendment is now before Council for consideration, and an assessment of this revision follows below.

BACKGROUND HISTORY

This application seeks to modify the original consent DA 445/2011(1). The background history of applications is as follows:

- Development application DA 445/2011(1) for restaurant and shop with 69 seats was approved on 14 May 2012

- Modification application DA 445/2011(2) sought to allow earlier operating hours and food production for off-site consumption - Council did not support this application and it was withdrawn

- Modification application DA 445/2011(3) for additions and alterations to open up the dining and shop areas, increase counter space, kitchen fitout, and new takeaway window was approved on 23 December 2015.

Penalty notices have been issued previously in relation to the breach of this consent in regards to hours of operation following numerous complaints from neighbours.

MATTERS FOR CONSIDERATION

Section 1.7 - Application of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994

Section 1.7 of the EP&A Act identifies that Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994 have effect in connection with terrestrial and aquatic environments.

Notwithstanding, Section 28 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 states that the former planning provisions continue to apply to the determination of a pending planning application, being an application for planning approval made before the commencement of the new Act but not determined before that commencement. The relevant provisions are set out at Part 5A of the historical version of the EP&A Act dated 24 August 2017.

Having regard to the relevant provisions and based on an inspection of the subject property, it is considered that the proposed development is not likely to have a significant effect on any threatened species, populations or ecological communities or their habitats.

Section 4.55

Section 4.55(2) of the EP&A Act applies to the subject modification application and states:

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, 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 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 the period prescribed by the regulations or provided by the development control plan, as the case may be.

Background

The applicant initially lodged the application as a Section 96(2) modification under the now historical EP&A Act. The amended modification has been submitted under 4.55(2) of the amended EP&A Act. Both modifications were submitted on the basis that the proposal is “substantially the same” as the original development. The amendments to the EP&A Act in relation to the modification of development consents have entailed renumbering of Section 96 to Section 4.55 without a substantive alteration to the provisions contained in the section. The following is an assessment of the amended proposal before Council against Section 4.55.

It is noted that the original application was approved in accordance with the transitional savings provisions in place in the intervening period between the previous LEP 2000 and the current LEP 2011; as such the premises does not benefit from existing use rights as set out by the EP&A Act. Furthermore, as the uses did not lawfully commence, Sections 4.68 and 4.69 of the EP&A Act also state that no existing use provisions apply. The uses are now prohibited activities under the current LEP, therefore the applicant cannot apply for a new development application to extend the premises and has to rely on the modification provisions.

Modification Principles Established by the Courts

When assessing a modification application, the consent authority has a threshold decision to make, and must be satisfied that what is proposed is “substantially the same” development as the original development, as set out in Section 4.55(2)(a) of the EP&A Act. Whether the development will be “substantially the same” as the original consent is a mixed question of fact and law. This decision can be guided by principles and tests established in the Courts.

The principles regarding Section 96(2)(a) (now Section 4.55(2)(a)) were summarised in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015], NSWLEC 75. The traditional ‘test’ as to whether or not a development as modified will be “substantially the same” development as that originally approved was applied by J Stein and the Court of Appeal in Vacik Pty Limited v Penrith City Council (1992, NSWLEC 8) (hereafter referred to as “Vacik”), and endorsed by J Bignold in Moto Projects (No. 2) Pty. Limited v North Sydney Council (1999) 106 LGERA 298 (hereafter referred to as “Moto”).

J Stein stated in the Vacik case: “In my opinion ‘substantially’ when used in the section [s102, the predecessor of s96] means essentially or materially having the same essence”.

J Bignold expressed in the Moto case: “The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified … not merely a comparison of the physical features or components of the development … rather … involves an appreciation, qualitative as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).”

J Bignold came to deal with the matter of “substantially the same” again in Tipalea Watson Pty. Limited v Kurringai Council (2003) 129 LGERA 351. From this Judgement, one can distil a list of matters or ‘tests’ to consider, being whether the modification involves the following:

(a) significant change to the nature or the intensity of the use;

(b) significant change to the relationship to adjoining properties;

(c) averse amenity impacts on neighbours from the changes;

(d) significant change to the streetscape; and

(e) change to the scale or character of the development, or the character of the locality.

Modification Principles Applied to the Initial Proposal

During discussions with the applicant prior to lodging this modification application, Council officers recommended that a legal view would be required to support the proposal. The applicant provided legal advice from ADK Legal which applied these traditional tests and concluded that the proposed changes are not significant enough to preclude the proposed development being considered “substantially the same” development, and as such Council has the power to approve the proposed modification under Section 96 (now Section 4.55).

The applicant has provided a second legal opinion from Messenger and Messenger which has also confirmed that the application before Council in its current form meets the relevant tests under Clause 4.55 of the Environmental Planning and Assessment Act 1979 and that it would be open to Council to consider the matter as a modification of the original approval.

Ultimately, whether the modification application is substantially the same development as the original development is an opinion that needs to be formed by the consent authority. In determining whether this modification application was capable of being treated as a modification, a quantitative and qualitative comparison was carried out by staff to compare the originally approved consent with the proposed modification as established by the Courts.

Council staff considered that the proposed pavilion as initially submitted would significantly change the relationship to adjoining properties, may have adverse amenity impacts on residential neighbours, and would result in a change to the scale and character of the development, as well as the character of the locality; substantially altering the visual appearance of the site, the streetscape, and the heritage conservation area, compared to the originally approved development. As such, it was initially considered that the proposed modification was not “substantially the same” development as that originally approved. The initial proposal changed the ‘essence’ of the development when taking its context and circumstances into account, and therefore it was considered that a Section 96 (now Section 4.55) modification was not the correct procedure in this case, and that Council did not have the power to grant consent to the subject modification.

To be considered a ‘modification’ under the EP&A Act, the applicant was advised that the proposal needed to be amended to ensure that it did not significantly change its relationship to adjoining properties, the streetscape and character of the locality, or impact on the amenity of neighbours. Council’s Urban Design and Heritage Advisor made suggestions for an amended design that would fit better within the streetscape. The applicant submitted further supporting information regarding these ‘tests’ in an attempt to justify the proposal, but declined to revise the plans at that time other than to remove the roller-door from the proposed takeaway window; requesting that Council assess the application on the basis of the information submitted.

During the mediation meeting held on 29 March 2017, discussions focussed around the legal ‘tests’ of modifications. Following the exhibition period and mediation meeting, Council requested that the applicant give further consideration to altering the design of the proposal to address initial concerns about whether the proposal was “substantially the same” development as the original, as well as address impacts raised by objectors.

Modification Principles Applied to Revised Proposal

As discussed earlier in this report, the applicant has made significant changes to the application over the past 18 months in an attempt to better fit the proposal into the setting and meet the modification principles and tests.

In applying the above principles and tests and a qualitative and quantitative assessment to the revised proposal before Council, staff consider that the modification:

- still seeks the use of the premises as ‘restaurant and shop’, which is in accordance with the originally approved development;

- does not change the nature or the intensity of the use, where the footprint of the development is to be the same, and the capacity of the development is the same (i.e. number of tables and chairs, hours, staff, etc.) as the originally approved development (see Figures 4 and 5);

- involves the demotion of structures fronting Clinton Street (garage and outdoor deck) and replaces them with an annex extension covering the originally approved outdoor area (see Figures 4 and 5);

- somewhat alters the relationship to the immediately adjoining properties to the north and west, but does not involve a significant change in relationship to neighbours’ properties compared to the originally approved development;

- potential adverse noise impacts do not significantly differ from the originally approved development, can be mitigated through operational conditions of consent, and may result in an overall improvement;

- removes vegetation but replaces the substantial tree at the site frontage, thereby retaining streetscape appeal and canopy coverage; and

- would not result in a substantial change to the scale and character of the development or the locality, nor substantially alter the visual appearance of the site, the streetscape and the heritage conservation area.

Figure 4: originally approved plan (by Peter Basha Planning and Development, dated 2012)

Figure 5: amended modification plan (from submitted drawing DA02 D-2, prepared by Architecture Raw, dated 10 August 2018)

Overall, it is considered that the use of the premises remains the same, albeit would be capable of all-weather use. When compared to the original grant of consent, and assessed on a qualitative and quantitative basis, it is reasonable to form the conclusion that the modification application will result in a development that is “substantially the same” development as that approved by the original consent, pursuant to Section 4.55(2)(a) of the amended EP&A Act. Thus, Council may consider this application as a modification application.

Other Modification Matters

Notwithstanding the above, it is considered that the proposed new signage cannot be considered as part of this modification as it does not relate to the original approval and therefore requires separate consent.

In accordance with Section 4.55(2)(b) of the amended EP&A Act, consultation with other bodies was not required for the original consent, and is not required for this modification. Under the provisions of Section 4.55(2)(c) and 5.55(2)(d), and Section 119 of the Regulations, the proposed development was advertised for the prescribed period of 14 days on three separate occasions due to formal amendments of the application. A detailed assessment of the issues raised by the submitters is provided under the heading “Any Submissions Made in Accordance with the Act”.

Amended and additional conditions of consent are recommended to ensure that the development as modified does not impact on the environment or neighbouring residential properties. It is noted that these additional and amended conditions of consent only relate to the proposal as modified, as established by the EP&A Act and in relevant case law. These conditions are discussed in detail throughout the following assessment, and are included in the attached modified Notice of Approval.

Pursuant to Section 4.55(3) of the EP&A Act:

In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in Section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

Reasons for consent were not included the original consent as this is a recent requirement of the amended EP&A Act and was not applicable at the time of the original approval. Matters of relevance under Section 4.15 are considered below.

PROVISIONS OF ANY ENVIRONMENTAL PLANNING INSTRUMENT s4.15(1)(a)(i)

Orange Local Environmental Plan 2000

The original development was approved under the provisions of the previous Orange LEP 2000 and was defined as a ‘shop’ and ‘restaurant’. Pursuant to Clause 38(2)(b) of (now historic) LEP 2000, shops and restaurants were permissible activities in the 2(a) zone with consent. Schedule 7 of LEP 2000 permitted various shops in the 2(a) zone, such as a delicatessen, sandwich shop, shop selling bread, cakes, pies and pastries and the like, shop selling fruit and vegetables etc., all being shops that benefit residents in the area.

As the original application was submitted when LEP 2000 was still operational, but approved after LEP 2011 was adopted, the LEP 2000 provisions apply in assessing this modification application. The modification does not alter the original assessment carried out under LEP 2000, where it is still consistent with its aims and general considerations for development.

Orange Local Environmental Plan 2011

Section 79C of the (now historical) EP&A Act required consideration of the provisions of any draft LEP, which was the status of LEP 2011 prior to its gazettal. Accordingly, the original proposal was also assessed against draft LEP 2011 and was considered to be consistent with relevant provisions.

An assessment of the amended modification now before Council has been carried out against the relevant provisions of the current LEP 2011 below:

Clause 2.1 - Land Use Zones

Under the current LEP 2011, the subject land is zoned R1 General Residential. The development is defined as a ‘restaurant or café’ and ‘shop’ which are prohibited uses within the R1 zone under the current LEP 2011. However, as they were approved under the previous LEP 2000 due to the transitional savings provisions that applied under LEP 2011, they are to be treated as if they were permitted uses.

Clause 2.3 - Zone Objectives

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:

· 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 modification continues to be consistent with the objectives for the zone, where the café/restaurant and shop provide services that meet the day-to day needs of residents (ie fresh food, coffee, food goods, etc.). Walking and cycling continues to be encouraged due to the close proximity of the site to residences and the CBD. The other objectives are not relevant to this proposal.

Clause 2.7 - Demolition

The proposal involves demolition of the existing garage fronting Clinton Street as well as the removal of four trees, and the applicant is seeking the consent of Council. Subject to the works being carried out in accordance with existing conditions of consent, the demolition works proposed will have no significant impact on adjoining lands, the streetscape, or the public realm, subject to the replacement of a tree to the frontage. Existing conditions of consent include construction hours, dust suppression and the need to investigate for, and appropriately manage the presence of any materials containing asbestos. Tree replacement is discussed in greater detail below.

Clause 5.10 - Heritage Conservation

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

Clause 4 applies and states:

(4) Effect of Proposed Development on Heritage Significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

The subject land is within the Central Orange Heritage Conservation Area but is not a listed heritage item under the LEP. The existing setting is varied in terms of scale, ranging from modest to large sized single storey dwellings. Extensive mature vegetation is fairly consistent in the area. The highly valued streetscapes of Byng and Clinton Streets make up part of the conservation area and form part of the site.

Pursuant to Clause 5.10 of the LEP, Chapter 13 of the DCP, and Council’s Infill Guidelines, Council is required to consider the potential impact that the development may have on the heritage setting. The proposal involves the removal of four (4) trees, demolition of the existing garage, and construction of an annex extension to the existing building.

Council’s Urban Design and Heritage Advisor provided advice in relation to this modification application and the various revisions of the proposal. It was initially considered that the proposal had adverse impacts in terms of bulk and scale, height, materials, details and tree loss. It was considered that the scale would visually dominate the streetscape, prominent location and adjoining traditional buildings, and detrimentally impact on the aesthetic significance of the heritage setting. The key heritage objective is for proposed development to relate to the significance of the conservation area, and the initially submitted proposal did not achieve this.

Accordingly the applicant has revised the proposal numerous times, generally in accordance with recommendations from Council staff and as demonstrated in Figures 2 and 3 earlier in this report. Council staff and Council’s Urban Design and Heritage Advisor consider the revised design to be satisfactory, where the proposed additions and alterations do not alter the existing landform or lot patterns, nor the fabric of the existing building or neighbouring buildings. In particular, the annex/pavilion element has been designed to link to the existing building using a connecting section of lesser scale and profile, and appropriately recessed front element. The front wall of the annex aligns with the existing building, and a flat roofed awning provides a continuation of weather protection to the shopfront.

It is noted that some of the colours on the existing premises are not sympathetic to the heritage setting, nor are some of the proposed materials and colours. Recommendations have been made to ensure that the various elements of the building and extension are adequately dominant and subservient, in accordance with design principles applicable to the era of the building and for additions to buildings of historical significance.

Recommendations are as follows:

· Zincalume is not an appropriate material in heritage conservation areas, and the roof should be amended to be in steel, such as Fielders heritage corrugated steel;

· gutters should be in “Monument” or black;

· rendered walls - the proposed colour “Endless Dusk” does not reflect the traditional stone colour associated with render and is unacceptable – “Dune” or similar would be suitable;

· the verandah to the existing building is proposed as black, which is unacceptable for the setting and heritage character - it needs to be a lighter shade of the wall colour such as ¼ tint “Dune” or “Shale Grey”;

· a clear finish should be used on the timber shopfront to distinguish the new work from the existing building;

· the painted steel gate should use a matching bridge paint to clearly distinguish the new work;

· takeaway windows should be timber to match the other new windows in a similar clear expressed timber finish (not aluminium as proposed); and

· the polycarbonate finish on the awning is acceptable provided stained or clear finished timber slats are used beneath tinted polycarbonate sheeting to screen the view of the material, as it has a short life span and shows dirt and leaf litter.

Relevant conditions of consent are attached.

Subject to the changes above, the proposed bulk, scale, form, detailing, and visual appearance of the extension will appropriately relate to the existing café building and neighbouring buildings, and will not adversely impact on the heritage significance or historical character of the immediate setting, or wider conservation area.

The removal of the garage to Clinton Street is supported as it will not adversely impact on the conservation area, being a later addition to the streetscape and not having any significant architectural or heritage merit. Furthermore, the removal of the garage from the site will allow for the existing driveway in Clinton Street to be reinstated, improving the visual amenity of the streetscape and providing better footpath facilities in the locality.

The removal of the Pear trees to the rear of the site is also supported as they do not relate to the heritage significance of the setting. The Silver Birch tree on the Clinton Street frontage of the site is not a heritage tree, however provides for streetscape appeal and tree canopy for the town centre. A statement from the applicant’s town planner was submitted in support of the application, which provides the following justification for its removal:

- “It is requested that Council not require the advice from an arborist, on the basis that there is no debate concerning the health or condition of the trees and reasonable justification is provided below.

- The tree is an introduced species and does not represent habitat for threatened or endangered species.

- It is not possible to retain or prune the tree given the extent of the proposed pavilion and the awning along the eastern elevation.

- It is acknowledged that the tree is contributory to the streetscape. Given that is located very close to the Clinton Street frontage, it is somewhat akin to a street tree… there are 2 nearby street trees with one in the centre of the Clinton Street frontage of the site; and another just to the north. These trees soften this section of the streetscape and may assist to lessen the impact of the loss of the Silver Birch. Also, there is considerable vegetation in this precinct which forms a backdrop. In this context, the loss of the Silver Birch may be less obvious.

- The revised design provides for a small replacement tree to be planted in the Clinton Street frontage of the new work. An appropriate species (such as a Capital Pear or Trident Maple) would fit the relatively small space that is available and reinstate a reasonable element of deciduous foliage to partially compensate for the loss of the Silver Birch tree.”

Council’s Manager City Presentation reviewed the application and concurs that it is not possible to retain or prune the Silver Birch or Pear trees, and notes that the existing Silver Birch tree has thinner than normal canopy with some dieback to the periphery of the upper canopy, and that this species is not well suited to extended dry hot periods, and prefer a moist soil profile with limited hard surfacing. It was initially recommended that a replacement tree be provided within Byng Street, however the revised proposal allows for, and proposes, a replacement within the Clinton Street frontage, which is a vast improvement to the previous proposal. Conditions of consent are attached in regards to the replacement tree, in particular that an advanced specimen is planted.

Subject to a replacement tree planting, it is considered that the proposed demolition of the garage and tree removal will not adversely impact on the heritage significance of the subject and neighbouring buildings, or the heritage setting of the conservation area.

Overall, Council can be satisfied that the development as modified remains compatible with the character of the surrounding heritage conservation area, and the amended proposal is acceptable in this case.

Clause 7.1 - Earthworks

The development as modified involves minor earthworks required for the construction of the proposed addition and the removal of trees, their stumps and root systems. The earthworks can be appropriately supported onsite, and the extent of disruption to the drainage of the site is considered to be minor. Existing conditions of consent provide for mitigation measures during construction, and thus address this matter.

Clause 7.3 - Stormwater Management

The development as modified would cause no adverse impacts in regard to stormwater management, where the proposed extension can be connected to the existing system and existing conditions of consent adequately address stormwater.

Clause 7.6 - Groundwater Vulnerability

The development as modified would cause no impacts in regard to groundwater vulnerability.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) is applicable. Pursuant to Clause 7(1) contamination and remediation are to be considered in determining development applications as follows:

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

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

(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.

As the subject property has a long history of residential use, it is not considered likely that it would be contaminated or unsuitable for the proposed alterations and additions. It is acknowledged that asbestos materials associated with the garage may be present on the subject property, and an existing condition of consent in regards to demolition being carried out in accordance with the relevant standards covers this issue.

State Environmental Planning Policy 64 - Advertising and Signage

New signage shown on the submitted plans cannot be considered as a modification of the original consent, as discussed previously, and therefore does not form part of this assessment. As such, State Environmental Planning Policy 64 - Advertising and Signage is not applicable. A condition of consent is recommended in regards to separate consent being required for signage.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(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.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s4.15(1)(a)(iii)

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land. The relevant planning outcomes were considered as part of the assessment of the original development application. An assessment of the proposed development against the relevant Planning Outcomes that affect the proposal to modify the consent will be undertaken below.

Clause 5.3 - Advertised Development

Section 5.3 - Advertised Development identifies that Council will give written and published notice of applications for advertised development as required by the Regulations. This matter is discussed in more detail previously in the “Procedure and Amendments” section of this report, and later under the heading “Any Submissions Made in Accordance with the Act”.

Chapter 13 - Heritage

Sections 13.1-13.06 of DCP Chapter 13 addresses heritage matters in detail, including objectives, heritage conservation areas, heritage considerations for development, development in the vicinity of heritage items, and heritage proposals as advertised development. These matters have previously been addressed in detail under the LEP heading “5.10 ‑ Heritage Conservation”, where it is considered that the amended proposal, subject to minor changes regarding materials and colours, is compatible with the heritage setting.

Chapter 15 - Parking

The parking analysis carried out in the original assessment of the development (DA 445/2011(1)) demonstrated a shortfall of 20.3 car parking spaces based on the DCP rate of car parking for shops and cafes. At that time, it was considered that there was reasonable opportunity to accommodate the expected parking demands within the surrounding on‑street parking with only minimal impact to neighbouring properties, and as such the variation to the car parking standard was accepted by Council. It was acknowledged that there was the potential for parking to occur in front of nearby dwellings, however would be of short duration.

The applicant submits that the development as modified does not increase the floor area or seating numbers beyond that which was originally approved, but acknowledges that the existing garage would be lost, thus increasing the shortfall by an additional space. The applicant goes on to state that the reinstatement of the driveway to footpath and kerb would provide an additional on-street car parking space, thereby mitigating this increase in shortfall.

Given that the proposal does not involve an increase in the intensity of the use or seating numbers, it is considered that the original parking assessment still applies to the modification, where the one additional space can be accommodated on the street. It is noted that the onsite garage has not been used for the parking of vehicles for some time, therefore this generated demand has already been utilising on-street car parking, and the removal of the garage will not produce any change in on-street parking. The takeaway window will be relocated and reinstated (apparently this has not been operating recently), however was approved under a previous application and is not relevant to this modification.

Although the proposal does not increase seating numbers, neighbours argue that year‑round use of all seating will increase patronage, thereby increasing parking demand. While it is acknowledged that the proposal would allow the café to have the potential of being at full capacity year-round instead of only during good weather, the original assessment of car parking was carried out based on maximum indoor and outdoor seating numbers of 69. Original calculations therefore represented maximum patronage and the worst-case parking demand, which remain unchanged as a result of the modification.

It is noted however, that while the proposed annex will not increase the overall floor area, the proposal involves a new outdoor bench seat which can accommodate seating for additional customers. Given that there is already a significant shortfall in car parking for the premises, and that the modification being “substantially the same” as the original development relies on the intensity remaining unchanged, the bench seat needs to be removed from the proposal. A condition of consent is recommended to this effect.

Council staff acknowledge that on-street parking is in high demand due to the popularity of the premises, however the extent of parking demand generated by the proposal is within the capability of the local road network. Staff also acknowledge that there are unlawful car parking and traffic movements taking place in the vicinity of the premises, such as parking across neighbour’s driveways, car sales promotions taking place within the street, etc.; however, these issues are not within the scope of this application. Unlawful parking and breaches of the EP&A Act need to be monitored by Council and be reported to Council by premises staff and neighbouring residents. Warnings have been issued to relevant parties in relation to known breaches presented to Council in this regard.

It is also noted that the original application was reviewed by the Council’s Traffic Committee who resolved to install ‘No Parking’ signs and lines across the neighbouring driveways where customers regularly parked unlawfully. These measures have at best had limited effectiveness. Customers continue to unlawfully park from time-to-time. Council’s Parking Officers have been directed to carry regular targeted parking patrols of the locality in an attempt to reduce the impact on surrounding residents and educate users of the parking controls that apply.

DCP Infill Guidelines

Council’s Infill Guidelines apply to this application. The intent of this policy is to guide infill development design in heritage areas to ensure that new development ‘harmonises’ with the character of the neighbourhood. The policy states that contemporary designs may be acceptable provided the design is appropriate in character, scale and form, siting, materials and colour, and detailing.

Heritage has been discussed in detail under the LEP “Clause 5.1” assessment earlier in this report. It is considered that the amended design, subject to minor material and colour changes, meets the objectives of the policy. In particular, the design retains an appropriate visual setting, appropriately responds to the character and appearance of the streetscape, does not adversely affect the significance, character or appearance of the conservation area or heritage items, and allows for reasonable change within a conservation area while ensuring all other heritage objectives are met. Although trees are to be removed, an appropriate replacement will be provided in the Clinton Street frontage to assist in maintaining a suitable streetscape appearance.

PROVISIONS PRESCRIBED BY THE REGULATIONS s4.15(1)(a)(iv)

Demolition of a Building (Clause 92)

The proposal involves the demolition of a garage and the removal of trees. The existing condition attached to the consent, requiring the demolition to be carried out in accordance with Australian Standard AS2601 - 1991: The Demolition of Structures, is sufficient to deal with issues arising from this part of the proposal.

Fire Safety Considerations (Clause 93) and Buildings to be Upgraded (Clause 94)

Existing conditions of consent adequately deal with fire safety considerations and upgrading works.

BASIX Commitments (Clause 97A)

BASIX is not applicable to the proposed development. A Section J energy efficiency statement may be required with the Construction Certificate application.

THE LIKELY IMPACTS OF THE DEVELOPMENT s4.15(1)(b)

An assessment of the relevant impacts associated with the development was undertaken as part of the initial assessment of the development application. The potential impacts of the development as modified are considered below.

Heritage, Streetscape, and Visual Impacts

The subject land is located within the Central Orange Heritage Conservation Area and contributes to the heritage setting. The proposal involves additions and alterations to an existing building and the removal of a garage and trees within a heritage setting, therefore has the potential to have visual and heritage impacts. As noted in the LEP and DCP assessments, the proposal as initially submitted was considered to have adverse impacts on the heritage and residential values of the surrounding area. The amended proposal, subject to conditions of consent regarding tree replanting and revised materials and colours, has been designed to meet the objectives and outcomes for heritage, neighbourhood character, building design, setbacks, visual bulk, etc. As such, it is considered that the development as modified is unlikely to have adverse visual impacts on the existing building, neighbouring dwellings, the streetscape or the heritage conservation area.

Neighbourhood Amenity Impacts

As discussed in the LEP assessment, the revised bulk, scale, setbacks and detailing are consistent with the bulk of surrounding buildings, and will not detract from the character of the streetscape or neighbouring properties. The proposal has been designed to step back from the adjacent dwellings to the north and west, and therefore will not impact the neighbours in terms of visual bulk. The building form complies with the residential visual bulk envelopes recommended by the DCP, being contained within planes projected at 45 degrees over the site commencing at 2.5m above existing ground level from each side and rear boundary.

Given the orientation of the site and stepped setbacks from the boundaries, the proposal will not impact the neighbours in terms of daylighting and shadowing. The proposed development has been designed to avoid any direct or close views into the windows or private open spaces of adjoining dwellings. In particular, there are no windows at ground level height other than those that look out onto Clinton Street, which are well separated from the dwelling opposite the site (number 49 Byng Street).

Overall, visual bulk, daylighting, privacy and residential amenity impacts are unlikely. Noise impacts are addressed separately below.

Noise Impacts

Several written submissions were received raising concerns regarding potential noise impacts associated with the existing premises and the proposed modification of the premises. In order to address this issue, Council requested that the applicant provide a Noise Report. A report was submitted in relation to the initial proposal, and more recently a revised report was submitted in regards to the amended proposal.

It is noted that since the application was previously considered by Committee, the NSW Noise Policy for Industry 2017 has replaced the previous NSW Industrial Noise Policy (2000). The revised Noise Report and following assessment take this new Policy into account. The revised proposal reduces the number of openings and encloses the toilets to the rear, as requested by submitters and recommended by Council officers, and the revised Noise Report also takes this into account.

Wilkinson Murray’s Noise Assessment dated July 2018 (number 12055-P2 Version A) identifies that the most potentially affected sensitive receivers are the adjacent dwelling at 45 Byng Street (west of the subject property) and the dwelling at 49 Byng Street (to the east, on the opposite corner of Byng and Clinton Streets). The report notes that the dwelling immediately to the north of the site at 81 Clinton Street is not assessed as a sensitive receiver as it is owned by the Byng Street Local Store.

The Noise Report deals with potential noise associated with the development as modified, that is, the additions and alterations to the premises. It notes that the primary noise source is patron noise, and that existing mechanical plant has not been assessed as these are not relevant to the modification. The report identifies that south facing windows are openable, but recommends that they are not openable, and have assumed this in its assessment. It has also assumed that outdoor seating will only be used during the daytime (7am to 6pm).

The report concludes that the predicted noise levels associated with the operation of the proposed annex/pavilion will comply with the relevant noise criteria, based on the following recommendations:

· No openable glazing is installed in the pavilion, except along the eastern facade;

· The outdoor seating is used in the daytime only; and,

· Doors and windows are to be closed during the evening.

Council’s Manager Building and Environment does not agree that the dwelling to the north is not a sensitive receiver. Whilst the neighbouring property is currently in the same ownership as the cafe, 81 Clinton Street is a residential dwelling house in a residential zone, and is used for residential purposes, thus should also be assessed as a residential receiver.

This issue has been brought up previously, however. the revised report continues to neglect assessing this receiver.

It is noted that conditions of consent from the previous modification (DA 445/2011(3)) and consent to install new windows to the premises (DA 364/2013(1) required an assessment of noise emissions to be provided to Council to monitor noise levels, and if necessary, provide noise mitigation measures. These assessments have not yet been carried out given the ongoing works being undertaken on the premises. Furthermore, the noise assessment needs to be undertaken during peak time and in the summer season, when the café will be at or near full capacity, with all potential openings open. The delay in carrying out this assessment until works are completed has been discussed and agreed with Council’s Manager Building and Environment.

The applicant has requested a modification to the seating numbers condition of consent, as the last modification entailed a typo-error in the number of seats (stating 63 when it should state 69 in accordance with the original consent). The correction of this error is supported.

The applicant also requests that this condition be altered to not limit any particular seating number indoors or outdoors to allow for flexibility. This is not considered acceptable as 69 patrons outside on the verandah and under the proposed awning would cause significant noise disturbance to neighbours. It is therefore recommended that an outdoor seating limit is imposed at a maximum of 13 seats in accordance with previously approved outdoor verandah seating, and in accordance with the assessment in the submitted Noise Report. As noted previously in the DCP Chapter 15 car parking assessment, the proposed additional bench seat is not supported due to its potential to increase patron numbers and car parking demand. It also has the potential to increase noise levels, particularly for neighbours to the north and east.

Based on the above, it is considered that noise compliance can be achieved based on the existing conditions of consent, and the following additional and modified conditions of consent:

(1) An assessment of the development in terms of noise shall be verified through testing at nearby receivers (including the adjacent site to the north at 81 Clinton Street) within three (3) months of the occupation of the development, or as otherwise agreed in writing by Council (but not more than six (6) months after occupation), to ensure that the assessment is undertaken when the premises is at full capacity and eastern windows are open as set out in the conditions of this consent.

(2) Outdoor seating numbers are limited to 13 at any one time, and shall only be used during daytime hours, being between 7am and 6pm. The outdoor bench shown on the drawings is not approved, and shall not be constructed or any substitute installed in its place.

(3) The takeaway window shall only be used during daytime hours, being between 7am and 6pm.

(4) All external doors and windows must be closed during evening periods, being between 6pm and 10pm.

Furthermore, Council’s Manager Building and Environment notes that the implementation of an ‘Operational Management Plan’ for the site also needs to be undertaken to ensure compliance with the Protection of the Environment Operations Act 1997. The previous modification application required a Plan of Management for the site; however based on ongoing complaints and submissions received in relation to this modification application, it has been demonstrated that the existing plan and operations of the premises have not been successful in managing and mitigating adverse impacts on neighbouring properties. A modified condition of consent is recommended in regards to the Plan of Management for the site, which needs to be revised by the applicant.

It is noted that the applicant has a history of being in breach of the conditions of consent, particularly in relation to noise and hours of operation. These breaches have been raised in submissions, however are outside of the scope of this modification. Council will continue to monitor the operation of the premises in relation to breaches of consent and noise pollution under the Protection of the Environment Operations Act 1997 and the NSW Noise Policy for Industry 2017.

Overall, subject to relevant conditions and modified conditions of consent, including further assessment of noise upon the completion of the development, adverse noise impacts can be adequately mitigated.

Waste Management Impacts

The original application stated that waste storage bins will be stored in the rear yard of the property outside public view, and disposed of in the normal Council street collection service. However, some time ago it was brought to Council’s attention that waste storage bins were being stored on the adjoining residential property at 81 Clinton Street, which was not considered to be a satisfactory arrangement for waste management and was inconsistent with the original approval. Alternative arrangements were made for the storage and management of waste onsite and within the existing garage, but this arrangement has been causing problems in terms of noise disturbance and poor visual appearance.

It is considered that the modified proposal provides for a greatly improved arrangement for waste storage and collection on the site, and as such adverse waste management impacts are less likely than the original development.

Traffic Impacts

As discussed in the DCP assessment earlier in this report, the proposed modification would have a neutral effect on current traffic levels and amenity in the locality in terms of car parking as the proposal does not seek to alter the floor area, seating number, staff and customer numbers, or hours of operation. However, this conclusion is subject to the removal of the outdoor stone bench from the proposal, which would provide for additional seating. Although the removal of the garage from the site technically increases the overall shortfall of parking on the site, the garage has not been used for parking of vehicles, and as such the current arrangements and demand for on-street parking will remain largely unchanged. The takeaway window will be relocated, but was approved under a previous application and therefore is not a consideration in this modification.

As discussed previously, there have been regular incidents of unlawful car parking and driving, however the applicant cannot be reasonably held responsible for public adherence to road rules. This matter needs to be monitored by Council and reported by the premises, neighbouring properties and the wider community. Conditions of consent will assist in ensuring that customer numbers stay within reasonable limit so that the capacity of the surrounding car parking network is not exceeded, as well as assisting in the monitoring of unlawful car parking.

Overall, it is considered that the proposed development as modified is unlikely to have an adverse impact upon the surrounding traffic network.

Environmental Impacts

The subject property is unlikely to have any biodiversity or habitat value due to the use of the site for a residential dwelling and commercial premises. Inspections carried out did not indicate any habitat within the subject trees to be removed. As discussed in the LEP assessment, the replacement street tree planting will assist in continuing existing canopy, as well as providing for habitat in the future. The proposal will not impact on groundwater or stormwater. Overall, the proposal is unlikely to have adverse impacts on the environment.

Cumulative Impacts

The proposed development has the potential to have a cumulative impact on the heritage significance of existing buildings and dwellings in the heritage setting and conservation area, the local street network in terms of traffic flow and availability of on-street parking, and residential amenity in terms of waste management and noise associated with the use of the premises. It is considered that each of these potential issues has been appropriately assessed above and in the main body of this report. The proposed development as modified is suitable in its context and is unlikely to have a significant cumulative impact which exceeds reasonable expectations.

While the application does not propose an intensification of development (ie no additional floor area or seating), the improved functionality of the premises may lead to increased usage of the premises/available seating during colder months and inclement weather. It is acknowledged that this may be noticeable to surrounding residents in terms of patronage and car parking on the street, however the original assessment of the development took into account maximum usage of the premises, and was considered acceptable. The proposal as modified continues to be acceptable in this regard.

THE SUITABILITY OF THE SITE s4.15(1)(c)

Council has previously determined that the site is suitable for the proposed development. There are no aspects of the site to indicate that it would be unsuitable to accommodate the modified development. It is noted that the modified development is only suitable for this site on the basis that it is operated within the intensity as originally approved. The proposed modification does not seek to increase or alter the nature of the use of the premises, nor increase seating, staffing, hours of operation, etc.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s4.15(1)(d)

Under the provisions of Section 4.55(2) of the EP&A Act, and Section 119 of the Regulations, the proposed development was advertised for the prescribed period of 14 days. It is noted that no public authorities were identified as having an interest in the determination of the application. Formal exhibition of the initial modification was undertaken by way of an advertisement in the Central Western Daily on 18 February 2017 and neighbouring properties were notified. The first exhibition period closed on 6 March 2017, and at the end of that period 20 submissions were received, two of which were duplicates. One (1) late submission was also received.

As discussed previously in this report, a mediation meeting was held by Council’s Director Development Services on 29 March 2017. As a result of the meeting and the objections received in the first exhibition period, the applicant revised the proposal. The amended proposed was advertised in Orange City Life on 28 September 2017 and neighbouring properties were notified. That exhibition period closed on 13 October 2017, and 39 submissions were received.

Following consideration of the application by the Planning and Development Committee on 7 December 2017, the application was deferred pending further discussion with the applicant and objectors. As discussed previously in this report, a ‘design workshop’ was held on 9 May 2018, after which the applicant further amended the application. The subsequent amendment was advertised in Orange City Life on 16 August 2018 and neighbouring properties were notified. Exhibition closed on 31 August 2018, and 8 submissions were received. Additional submissions where received prior to the third exhibition period.

In summary, a total of 65 submissions were received in relation to this application, 31 of which were in support of the application, and 34 objecting to the application. It is noted that some submitters have made multiple submissions, and some submitters made submissions during more than one of the exhibition periods. These submissions have been taken into consideration in the above assessments. Other submissions were received in relation to the Design Workshop. A summary of objections from all exhibition periods and the Design Workshop have been broken down by topic below, and include Council staff responses:

Council Processes and Unacceptable Applications

· That ‘unacceptable’ applications should not be accepted by Council or be put on public exhibition.

· That Council’s advertising of proposals is inadequate.

The development application and notification process is set out by the EP&A Act, Regulations and Council’s Policies, and the assessment of this application was followed as per those requirements. In this case Council requested amendments/revisions to the proposal prior to the first exhibition period, however the applicant declined to amend that application at that time. Further amendments were sought during the assessment process. These matters have been addressed in detail in the main body of this report.

Modification Principles/Tests

· That the application does not constitute a modification under Section 96/4.55 of the Act.

· That the applicant’s legal advice is inaccurate, and assesses the proposal as a “pavilion”, however it does not meet the common definition of a “pavilion”.

· That Council seek independent legal advice on the question of whether the application is a modification.

· That previous legal advice sought by Council on the question of modifications is insufficient.

· That the proposal should be a new DA and not a modification.

This matter has been addressed in detail in the body of the report, where it was concluded that Council staff are satisfied that the amended proposal meets the modification requirements of the EP&A Act and the modification ‘tests’ established by the Courts. Without waiving any legal professional privilege that attaches to any such advice, Council staff have had regard to legal advice in reaching their decision.”

In regards to the matter of whether the proposed is a “pavilion”, the initial proposal designed an airy pavilion style structure to cover the outdoor area; however as discussed in the main body of this report, it was considered that it did not meet many of the legislative and policy requirements, therefore it was amended to be more of a solid annex extension. The assessment of the amended proposal against all relevant considerations has taken the revised design into account, including the modification principles assessment.

Heritage Impacts

· The proposal is inconsistent with the heritage conservation area, neighbourhood character, streetscape, existing building, and neighbouring dwellings (modern design, poor design, scale, bulk, etc.)

· Design inconsistent with LEP, DCP and Infill Guidelines.

· New signage is too large for the residential and heritage setting.

· Existing signage may not have consent, and is too large for the setting.

These matters have been addressed in the body of this report under the LEP Clause 5.10 and “Likely Impacts” assessments. The proposal has been revised to address most of the initial concerns raised by Council staff, objectors, and Council’s Urban Design and Heritage Advisor. It is considered that the amended proposal, subject to minor changes to materials and colours, will be compatible with the heritage setting and will not have any adverse impacts on the historical character of the area.

As discussed in this report, the new signage cannot be considered as part of this modification and needs separate consent and assessment. Potential breaches of the EP&A Act in relation to existing signage is outside of the scope of this modification, and needs to be investigated and addressed under separate cover.

Inappropriate Use

· The proposal is an inappropriate use in a residential area.

· Does not meet LEP objectives or DCP provisions for a residential zone.

· Does not provide open space in accordance with DCP residential guides.

Neighbours argue that the proposal does not fit in with the residential character of the area, and therefore should be refused. As noted in the main body of this report, the use of the site was approved under the previous LEP 2000, when shops, cafes, and restaurants were permitted in the previous residential zone, and therefore this is not a matter for consideration in the modification of the existing premises.

As discussed in the main body of this report, the amended proposal is considered to be consistent with the relevant provisions of LEP 2000, the DCP and Infill Guidelines. While the original development was approved under LEP 2000, an assessment has also been carried out against LEP 2011 and meets current relevant provisions. The residential chapter of the DCP relates to new residential development such as dwelling houses, boarding houses, residential flat/apartment buildings, etc., and therefore is not relevant in the assessment of this commercial modification.

Amenity Impacts

· Amenity and visual impacts on adjoining properties and streetscape (modern design, poor design, etc.).

· Bulk, height, and scale impacts.

· No open space or landscaping, and loss of trees.

· Increased capacity will have increased impacts on the neighbourhood.

· Kitchen exhaust fan causes noise impacts and other pollution issues.

· Recommendations by submitters have been made to improve the design to mitigate impacts such as no bi-fold doors, acoustic materials used to soundproof the building, enclosing the toilets, remove the takeaway window, adding staff amenities, and moving the kitchen exhaust fan.

These matters have been addressed in detail in the main body of the report under the LEP Clause 5.10 and “Likely Impacts” assessment. The proposal has been revised to address most of the initial concerns raised by objectors and Council’s Urban Design and Heritage Advisor. Ongoing breaches and compliance issues are outside of the scope of this modification, and it is recommended that Council addresses this matter under separate cover.

Noise Impacts

· Noise impacts of premises to neighbouring dwellings (patrons, music, vehicles, open windows, late openings, early servicing, etc.).

· Increased capacity will have increased impacts on the neighbourhood.

· Not limiting outdoor seating numbers (allowing for flexible indoor and outdoor seating as requested by the applicant) will cause significant disturbance to neighbours.

· Takeaway window will cause noise disturbance.

· Recommendations have been made by submitters to improve the design to mitigate impacts such as no bi-fold doors, acoustic materials used to soundproof the building, enclosing the toilets, remove the takeaway window, moving the kitchen exhaust fan away from residences, fixing windows shut, and opening later in the mornings in the weekends.

These matters have been addressed in the “Noise Impacts” assessment of the report. A submitted noise report demonstrates that the modified proposal can comply with relevant noise provisions. Additional and modified conditions of consent have been recommended by the applicant’s noise consultant and Council’s Manager Building and Environment to mitigate potential impacts, and are included in the attached modified Notice of Approval.

The takeaway window and hours of operation were considered under the original and previous applications, and are not matters for consideration in this modification application. Issues relating to ongoing breaches and compliance cannot be considered in this application, and it is recommended that Council considers these points under separate cover.

Traffic and Parking Impacts

· Increased capacity will have increased impacts on the neighbourhood - concerns that the proposal will continue to increase patronage, traffic movements, parking, and congestion (steadily increasing by way of incremental developments).

· The new stone bench at the front needs to be accounted for in the total number of seats available.

· The reinstatement of the takeaway window will increase patronage, parking demand, unlawful parking, erratic/dangerous driving, etc.

· Parking contributions should be applied to monitor unlawful parking.

These matters have been addressed in detail in the DCP and “Likely Impacts” assessments of the report. It is recommended that the stone bench be removed from the proposal.

Car parking contributions cannot be applied to this development as it is outside of the area defined by the Car Parking Development Contribution Plan 2015. It is noted that other commercial premises in the City have entered into agreements with Council to monitor car parking; however as a modification application, this is outside the scope of this assessment.

Issues relating to ongoing breaches and compliance cannot be considered in this application, and it is recommended Council considers these points under separate cover.

Inappropriate Precedent and Cumulative Impacts

· The proposal would set an inappropriate precedent for other commercial uses in the area.

This matter has been addressed in the “Cumulative Impacts” assessment of the report, where cumulative impacts are considered to be unlikely.

Fire Safety

· Fire safety concerns building near the boundaries.

Council’s Environmental Health and Building Surveyor has assessed the modification, and fire safety has been adequately covered by the existing conditions of consent.

Ongoing Breaches

· The applicant’s property next door at 81 Clinton Street is being used unlawfully as an ‘Air BNB’.

· Concerns about the holding of cocktail parties, functions, and other non-compliant activities - objectors have provided advertising material from the premises promoting such activities, being bookable Monday to Saturday evenings.

· Ongoing breaches in trading hours (early and late opening), servicing the premises (grease trap, waste collection, deliveries, etc. in early hours of the morning), noise associated with night time functions, previous commercial bread baking, noise associated with plant equipment, plant equipment being left on overnight, exceeding patron/seating capacity limits, illegal parking by patrons across residential driveways, dangerous driving by patrons, littering by patrons (cigarettes, drink cans, coffee cups), and abuse of residents by patrons.

· That the kitchen exhaust fan does not comply with relevant noise criteria and causes pollution issues.

· Concerns that current issues and ongoing breaches have not been resolved by Council, and that the applicant will continue to operate in breach of the consent and modifications.

· Concerns that increased capacity will increase breaches and impacts on the neighbourhood.

Ongoing breaches of the original consent, as well as breaches of the EP&A Act, Protection of the Environment Operations Act 1997, Roads Act 1993, Liquor Act 2007, etc. are highlighted as a major issue in the submissions. Breaches and potential future breaches, however, are outside the scope of this application, and thus have not been taken into account in the assessment of the modification. It is recommended that Council continues to investigate these matters under separate cover and take action in accordance with Council’s enforcement policies. It is also noted that the NSW Police and NSW Office of Liquor and Gaming also monitor breaches of terms of the premises’ liquor licence.

Submissions of Support

The letters of support are generally from local businesses and visitors to the area, but note that they are in support of the design of the proposed additions, the improved functionality of the café, the positive impacts to local tourism and the marketing of local produce, and the amended design of the proposal.

The letters of support received from nearby residents make the following points:

· the proposal will improve noise impacts by covering the outdoor area;

· the proposal will provide better waste storage;

· the proposal will not generate additional parking demand; and

· the amendments have reduced the height and bulk of the proposed pavilion, sets it further back from the street and will improve the streetscape.

Furthermore, it is noted that while an immediately adjacent neighbour objects overall to the proposal, they support the removal of the courtyard trees as they are inappropriately large and may damage adjoining buildings.

PUBLIC INTEREST s4.15(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 modification is permissible with the consent of Council. The applicant has adequately demonstrated that the proposed development complies with the relevant aims, objectives, and provisions of Orange LEP 2000, LEP 2011, DCP 2004 and the Infill Guidelines. The modification is consistent with the provisions of Section 4.55(2) of the Environmental Planning and Assessment Act 1979. A Section 4.15 assessment indicates that the proposed development as modified is acceptable in this instance, subject to amended and additional conditions of consent. An amended draft Notice of Approval is attached.

COMMENTS

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

Attachments

1 Modified Notice of Approval, D18/53622 ⇩

2 Plans, D18/53612 ⇩

3 Submissions, D18/53607 ⇩

Extraordinary Planning and Development Committee 17 October 2018

2.2 Development Application DA 302/2016(1) - 245 Lords Place

RECORD NUMBER: 2018/2495

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	5 September 2016
Applicant	Smith Property Group Pty Limited
Owner	Smith Property Group Pty Limited
Land description	Lot 1 DP 784423 - 245 Lords Place Orange
Proposed land use	Demolition and Hotel or Motel Accommodation
Value of proposed development	$13,000,000

Council's consent is sought for the demolition of all existing buildings and structures associated with the existing motel (including the commercial building at the front of the site) and the construction of a four storey hotel or motel accommodation (for the sake of brevity hereafter referred to as a “motel” – except where defined under the LEP). The proposed motel will consist of 105 rooms (or 99 rooms under a dual key or two bedroom unit arrangement) and the typical ancillary support areas such as reception, restaurant, lounge, bar and function room. The development is proposed on land described as Lot 1 DP 784423 - known as 245 Lords Place. The location is shown in the figure below:

Figure 1 - locality plan

The critical aspects of the assessment of this application relate to how the building fits within the heritage setting and within the broader context and setting of the location. The other critical aspect relates to the total parking demand of the development, taking into account not only the number of rooms providing accommodation, but also the ancillary components such as the bar, restaurant and function centre.

A detailed analysis of the car parking has been provided in the body of the report, which concluded, allowing for factors such as average occupancy, guest crossover of uses (i.e. guests also using the function centre or restaurant facilities at the same time), that a deficiency in onsite parking of 16 spaces would arise as a result of the development. Accordingly, a monetary contribution is recommended in lieu of the 16 space shortfall in parking.

The development exceeds the applicable building height control and as such the applicant has sought a variation to the development standard which is addressed below under clause 4.6 of the LEP.

The development has been assessed against Council’s relevant planning provisions and is deemed to be satisfactory, and accordingly, the development is recommended for approval.

RECENT LEGISLATIVE CHANGES

On 1 March 2018 the Environmental Planning and Assessment Act 1979 was substantially amended. The most immediate change involves the restructuring and renumbering of the Act, with other more substantive changes to be phased in over time. However, for some applications (particularly where an application was lodged prior to the changes coming into effect) the supporting documentation may still reference the previous numbering regime. In the drafting of this report the content and substance of the supporting material has been considered irrespective of which legislative references were used.

DECISION FRAMEWORK

Development in Orange is governed by two key documents Orange Local Environment Plan 2011 and Orange Development Control Plan 2004. In addition the Infill Guidelines are used to guide development, particularly in the heritage conservation areas and around heritage items.

DIRECTOR’S COMMENT

This is a significant development application which will see a modern multi-storey motel placed in Lords place at the site of the existing Mid City Motor Lodge. The development represents a significant opportunity to fill the gap in the streetscape adjacent to the listed Court House. The developer is to be commended for working with staff to produce a good outcome. Whilst parking is an issue and a shortfall in parking will result, staff have taken the proposed valet parking proposal into consideration in determining the contribution to be levied for any shortfall.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 302/2016(1) for Demolition and Hotel or Motel Accommodation at Lot 1 DP 784423 - 245 Lords Place, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE LAND

The land to which the application relates is described as Lot 1 DP 784423, known as the Mid-City Motor Lodge at 245 Lords Place. The land adjoins Orange Court House to the north; Orange Central Shopping Centre (Coles/K-mart) to the rear (west); a number of retail, business and office premises adjoin on the eastern side of the subject land; and opposite the subject land is Robertson Park.

THE APPLICATION/PROPOSAL

The development firstly involves the demolition of all existing buildings, structures and vegetation on the land.

Following demolition, a new four storey building will be constructed for the purposes of hotel or motel accommodation. The hotel or motel accommodation will comprise a total of 105 rooms for accommodation purposes (or 99 rooms under a dual key arrangement) across Levels 1, 2 and 3. The hotel or motel accommodation will also provide other support areas such as a lobby/lounge area, reception and coffee bar on the ground level; and restaurant, function room, lounge bar and terrace on Level 1. A 97-space car park (or 112 car parking spaces under a valet arrangement during peak periods) will be provided in the under-croft space below Level 1 and behind the reception/lobby area on the ground level. Access to the car park will be provided via a one-way circulation arrangement from Lords Place. A one-way entry/exit will be provided to the porte-cochere at the front of the site, accessed from Lords Place also.

EVOLUTION OF THE DESIGN

The overall design of the subject building has evolved considerably between the pre‑lodgement phase of the application and the most recent iteration of the plans. The evolving nature of the design, culminating at the final design which is being assessed as the proposed building, has been possible because of the proponent’s cooperation and willingness to work collaboratively with Council staff and Council’s Heritage Advisor. It is self-evident from the images below (showing the transformation of the design) that the design has progressed to a higher quality and more sophisticated design from the starting point as a direct result of the collaborative process that has occurred.

Figure 2 - prelodgement design

Figure 3 - design as initially submitted to Council

Figure 4 - second iteration of design after initial submission

Figure 5 - final design

Figure 6 - additional perspective of that shown in the above figure

As can been seen above, the final design shown in Figures 5 and 6 presents a building with three distinct and important architectural parts: a bottom (base), a middle and a top; the various portions of the building are defined by both materiality, modulation and articulation in the façade. The, the materiality, modulation and fine-scale detailing help to reduce the sense of scale and overall bulk of the development, resulting in a more sympathetic development in the context and setting. The size and orientation of opens and other architectural features and detailing of the building have been informed and influenced by those elements that are evident in buildings in the vicinity, particularly the Orange Court House.

MATTERS FOR CONSIDERATION

Section 1.7 - Application of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994

Section 1.7 of the EP&A Act 1979 identifies that Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994 have effect in connection with terrestrial and aquatic environments.

Section 4.15

Section 4.15 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 s4.15(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,

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

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

Clause 1.6 - Consent Authority

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Mapping

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

Land Zoning Map:	Land zoned B3 Commercial Core
Lot Size Map:	No Minimum Lot Size
Heritage Map:	Central Heritage Conservation Area
Height of Buildings Map:	Building height limit - 12m
Floor Space Ratio Map:	Floor space limit - 2.0:1
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 B3 Commercial Core zone. The proposed development is defined as hotel or motel accommodation under OLEP 2011 which means:

hotel or motel accommodation means a building or place (whether or not licensed premises under the Liquor Act 2007) that provides temporary or short-term accommodation on a commercial basis and that:

(a) comprises rooms or self-contained suites, and

(b) may provide meals to guests or the general public and facilities for the parking of guests’ vehicles,

but does not include backpackers’ accommodation, a boarding house, bed and breakfast accommodation or farm stay accommodation.

Hotel or motel accommodation is permissible in the B3 Commercial Core zone with the consent of Council. It is noted that the proposed function room/s are considered ancillary to the dominant use of the land as a motel; they are a typical and expected support facility for many modern motels globally.

The initial demolition component of the development is addressed below under clause 2.7.

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned B3 Commercial Core are as follows:

1 - Objectives of the B3 Commercial Core Zone

· To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

· To encourage appropriate employment opportunities in accessible locations.

· To maximise public transport patronage and encourage walking and cycling.

· To promote development that contributes to the role of the Orange CBD as the primary retail and business centre in the City and region.

The development is not inconsistent with the objects of the zone. The development represents a continuation of the longstanding use of the land for the purpose of tourism. The development is well positioned within the CBD to encourage cycling and walking and will be well serviced by public transport. The development will further strengthen Orange’s status as a major regional centre.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work.

The proposal involves demolition of all existing buildings and structures within the site as shown on the attached demolition plan. The applicant is seeking the consent of Council.

The demolition works proposed will have no significant impact on adjoining lands, streetscape or public realm. Conditions are imposed in respect of hours of operation, dust suppression and the need to investigate for, and appropriately manage the presence of any materials containing asbestos.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.3 - Height of Buildings

This clause limits the height of buildings (HoB) on land identified on the Height of Buildings Map. The subject land is identified on the Map as having a HoB limit of 12m.

Figure 7 - Height of buildings Map - M=12m (subject land shown red line)

The applicant submits that the maximum height of the proposed development at the highest point is 16.5m and therefore contravenes the height of buildings standard by 4.5m. This point has been calculated based on existing ground levels at the rear of the site. The development therefore exceeds the applicable development standard.

The applicant has made application pursuant to Clause 4.6 of OLEP 2011 to vary the development standard. The issue is addressed below.

Clause 4.4 - Floor Space Ratio

This clause limits the floor space ratio (FSR) permitted on land identified on the Floor Space Ratio Map. Clause 4.5 is associated with this clause and establishes the rules for calculating the site area and FSR of any proposal. These rules exclude certain parts of a site and development such as:

· excluding any part of the site upon which the development is prohibited (ie if the site is split zoned only the zone in which the development is permissible may be considered)

· excluding community land and most public places

· lots in a Strata scheme wholly or partly above other lots in the scheme do not increase the site area (ie the site area is the ground level of the scheme only)

· adjoining lots in the same ownership do not form part of the site area unless significant parts of the development are proposed on that land

· the floor area of existing buildings is to be included in the FSR calculation

· any covenant restricting floor space on the lot, due to floor space having been considered as part of the development of another lot, is to be taken into account.

The subject land is identified on the Map as having an FSR of 2:1. The site area has been calculated under clause 4.5 as 4,152m², meaning the site may have up to 8,304m² of floor space. The proposal, minus the exclusions detailed in clause 4.5, has been calculated as having a gross floor area of 4,844.78m² or 1.17:1, and is therefore consistent with the FSR requirements.

Clause 4.6 - Exceptions to Development Standards

The objective of this clause is to provide for a degree of flexibility when applying certain development standards and to achieve better outcomes as a result of the allowance of flexibility in particular circumstances. The clause allows development to be granted despite the fact it contravenes a development standard imposed under Orange LEP 2011, unless such a development is expressly excluded from the clause.

Subclause (3) states that before granting consent to allow 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.

Subclause (4) states that Development consent ….. can only be granted, if:

(a) the Council is satisfied that:

· the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), 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.

(b) The concurrence of the Secretary of the Department of Planning has been obtained^{^[1]}.

The applicant has provided a written request to vary the height of buildings standard pursuant to Orange LEP 2011. As noted above, the building at the highest point exceeds the height of buildings standard (maximum height 12m) by 4.5m which equates to a 37.5% exceedance. It is noted that the highest point relates to the fire egress stairs at the rear of the site.

The applicant has provided a full assessment of the height exceedances across the site and lists the various heights as follows:

· Top of main building:

– at front of site NE Corner (parapet) 15.88 metres

– at front of site SE Corner (parapet) 15.43 metres

– at front of site NE Corner (top wall) 15.29 metres

– at front of site SE Corner (top wall) 14.84 metres

– at rear of site NW Corner (top wall) 13.97 metres

– at rear of site SW Corner (top wall) 13.91 metres

The applicant submits the percentage variation to be as follows:

· Top of front parapet 15.43m - 15.88m = 20 - 32% variation of 12m control

· Top of main wall 13.91m - 15.29m = 16 - 27% variation of 12m control

· Top of fire stair 16.5m = 37.5% variation of 12m control

The request provides justification that seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances; and that there are sufficient environmental planning grounds to justify contravening the development standard.

The applicant has provided the following justification to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case:

A development that strictly complies with the 12 metre height control is unreasonable or unnecessary in this circumstance for the following reasons:

· It would result in a less sympathetic response to the historical court house building that adjoins the site. In this regard:

- The design intent from the early planning stages of the development was to provide a building that adopted a relatively generous setback from the northern boundary and Lords Place boundary in deference to the court house.

- To achieve a building that complies with the height control and provides the required number of rooms, facilities and support areas proposed by this development, would be likely to require a closer building alignment to Lords Place and a closer setback to the heritage significant court house building.

- A generous separation between the new building and the court house building has been provided to minimise the impacts on its setting and significance. This is supported by the Heritage Impact Statement by Urbis, submitted with the development application.

· It would be less likely to hide the dominant back wall of the shopping centre that forms a relatively uninspiring backdrop to the subject land and the Lords Place streetscape. In this regard:

- The elevation drawings submitted with the development application show that the shopping centre wall has an RL of 875.55 which is essentially equivalent to the wall height of the proposed building. As such, the proposed building height is likely to achieve the desired outcome of removing it as an unattractive backdrop element in this streetscape. The appeal of this outcome is summarised in the Heritage Impact Statement by Urbis as follows:

The proposed new building will block views from Lords Place to the Coles Supermarket and Kmart buildings which are located at the rear of the subject site. The proposed new building will be an infill construction reflecting the setback alignment of buildings fronting Lords Place. The proposed new building will complete the streetscape and provide a more cohesive urban environment.

- Strict adherence to the 12 metre standard would only allow the proposed building to achieve a height of RL 872.79 metres, almost 3 metres lower than the top of the shopping centre wall. As such it is not expected to block the shopping centre wall as effectively as the building that is proposed in this application.

· A lower building that provides equivalent floor space to that proposed in this application will require a broader footprint. The broader footprint not only has the potential to impact on the heritage significance of the court house (as suggested above) but it would also impact on the ability to bring service vehicles onto the site because it would require closer side and rear boundary setbacks. In this regard:

- The proposed setback from the side and rear boundaries provides a driveway route that is clear of an overhead building and thus not limited by height.

- The site layout as proposed allows a medium rigid truck; a 12.5 metre bus; and a garbage truck to enter, exit and move through the site in a forward direction.

- The servicing of the development by such vehicles can occur on site and not on Lords Place. This is considered a positive outcome in terms of minimising impacts on traffic flow, safety and amenity.

· The development adopts a relatively modest FSR of 1.16:1 which is well below the maximum allowed FSR of 2:1 pursuant to Clause 4.4 of the LEP. In consideration of this particular aspect, it would be unreasonable to argue that the increased height is due to excessive floor space demands or overdevelopment of a site. Rather, the increase building height is a response to the following outcomes:

- Respect for the heritage item

- Removal of the uninspiring backdrop from the Lords Place streetscape.

- Satisfactory service vehicle arrangements.

The applicant has provided the following to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard:

In the circumstances of the case, there are sufficient grounds particular to the site to justify a variation of the development standard. These are as follows:

· The presence of the court house (State heritage item) requires a site-specific response to ensure an appropriate setback is provided between the development and the item. The redistribution of floor space through increased building height facilitates a building of satisfactory siting, design and scale that respects the heritage item.

· The proposal satisfies the objectives of the B3 Commercial Core zone and the objectives of the building height standards.

· As addressed in the Statement of Environmental Effects, non-compliance with the standard does not contribute to unacceptable impacts in terms of overshadowing, visual impacts or view loss.

· The scale of the proposed development does not rise unreasonably above existing building height along Lords Place or the backdrop to these buildings (refer below and Drawing DA011).

The proposed building is taller than the court house and commensurate with the parapet height of the Royal Hotel building. In the context of the Lords Place streetscape and the heritage significance of the courthouse, the Heritage Impact Statement that accompanies the DA is supportive as follows:

The proposed new building has been setback from the northern side boundary adjoining the Orange Court House, preventing interruption of view to and from the Court House. The Court House is prominent in the streetscape and occupies a corner site, enhancing its exposure (Page 29, Heritage Impact Statement – 245 Lords Place, Orange by Urbis, 9 May 2016).

The building is also setback from the boundary on the southern side boundary, adjoining the two storey late Victorian building.

The proposal provides for the construction of a contemporary hotel building to replace a modern style, 1950s motel building. Having regard to the array of architectural styles and building ages in the existing streetscape, we do not consider that the construction of a contemporary building will have a detrimental impact on the adjoining heritage item. (Page 28, Heritage Impact Statement – 245 Lords Place, Orange by Urbis, 9 May 2016).

Further, in response to scale, the massing of the proposed hotel is articulated via modulated façades; steelwork; glazing; and a mix of materials in order to break down its overall bulk. The top floor has been recessed to reduce bulk and scale and generous glazing assists to lighten this element. Stainless steel balustrading is proposed for the balconies on Levels 1 and 2. However, glass balustrading is proposed on the Level 3 balconies essentially to maintain a glazed, lightweight appearance for the top level.

· The Height of Buildings Map is gazetted and is an established instrument in regard to development control. The delineation of the various building height zones would be based on background information assembled by Council in its preparation of the LEP. However, it is interesting to note the pattern of building height zones in the precinct surrounding Robertson Park (see LEP extract below).

The properties opposite Robertson Park to the north, east (except the Parkview Hotel) and south are all permitted a maximum building height of 16 metres. The properties opposite Robertson Park to the west (including the subject land) are permitted a maximum building height of 12 metres.

The subject land is within a tract of land that is at a similar contour to the land that lies to the north, east and south of Robertson Park. The slope begins to rise as one moves west of the subject land.

Given that the subject land is on a similar contour to the other land around Robertson Park, a case could be made that the properties on the western side of Lords Place could also accommodate the 16 metre height control. The Royal Hotel Building (approximately 15.8 metres) and the Court House (approximately 14.5 metres) already exceed the 12 metre height control. This precinct represents one of the lower tracts within the CBD. The slope begins to rise towards the west. A row of taller buildings along the western side of Lords Place would fit this topography and tie in reasonably with the height of existing and potential development to the west.

· It is acknowledged that building height as defined in the LEP Dictionary includes plant and lift/stair overruns. Despite the numeric reference to their height; the impact of these elements in terms of bulk, scale and streetscape are considered minor for this particular development. The stair overrun is located at the rear of the building and would be difficult to detect in streetscape views at pedestrian and traffic level.

· The proposal has a FSR of 1.16:1 which is well below the maximum allowed FSR of 2:1 pursuant to Clause 4.4 of the LEP. In consideration of this particular aspect, it cannot be argued that the increased height is due to excessive floor space demands or overdevelopment of a site.

· The development is generally compliant with the controls, or the intent of the controls contained in Orange Development Control Plan 2004.

In response to subclause (4)(i), Council staff are satisfied that the applicant has adequately addressed the matters required to be demonstrated by subclause (3).

In response to subclause (4)(ii), the public interest test of the applicant’s request to vary the development standard is undertaken below with regard to the application’s level of consistency with the objectives of the applicable standard and the zone objectives.

The objectives of the height of buildings control are as follows:

(a) to provide for taller buildings in the City centre and to enable a transition in building height in response to varying urban character and function,

The applicant submits the following in relation to the above objective:

….. despite being taller, the building as proposed would achieve a transition in building height because it sits reasonably well in relation to its streetscape neighbours (a point reflected throughout the Heritage Impact Statement by Urbis).

The proposed building transitions reasonably in relation to the shopping centre building at the rear of the site and will improve urban character. It is sufficiently high enough to hide the uninspiring backdrop caused by the shopping centre (again a point reflected throughout the Heritage Impact Statement by Urbis). A building that complies with the 12 metre standard would be unlikely to achieve the same level of screening.

The proposed taller building facilitates the ability to bring service vehicles onto the site rather than have them operate from the public street. In this sense, the building contributes to sensible urban function.

Council staff accept the above comments which align with Council’s Heritage Advisor’s assessment that; the retail buildings in the vicinity detract from the Conservation Area and screening these sites will benefit the town centre and heritage significance of the Conservation Area and moreover, Council’s Heritage Advisor states; The Court House will continue to visually dominate the setting and Byng Street corner.

(b) to protect the amenity of neighbouring properties and public places, with particular regard to visual bulk, scale, overshadowing, privacy and views.

The applicant submits the following in relation to the above objective; despite being taller, the building as proposed does not unreasonably affect the amenity of neighbouring properties and public places. In this regard:

· A taller building (that must achieve the amount of floor space as proposed) is able to be setback from the side boundaries, thus providing reasonable separation in relation to neighbouring properties. If the 12 metre standard was strictly observed, it is likely that the building would need to spread closer to the side boundaries, thus reducing the separation between properties. Whilst the building is taller, it is submitted that the generous side boundary setbacks as proposed would assist to reduce the impacts of bulk and scale in relation to neighbouring properties, particularly in comparison to a height compliant building that is sited much closer to a side boundary.

· The potential impacts pertaining to overshadowing, privacy and views have been addressed in the Statement of Environmental Effects. In effect, a building that complies with the 12 metre standard would not necessarily reduce potential impacts in this regard.

Council staff accept the above comments submitted by the applicant.

The objectives of the B3 Commercial Core are as follows:

· To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

The development is consistent with the above objective. The development will provide for a continuation of the longstanding commercial use of the land and will provide additional entertainment (restaurant and bar) and business (function space) to the local community, and tourism accommodation for the wider community.

· To encourage appropriate employment opportunities in accessible locations.

The development is located in a CBD location and will provide additional employment opportunities in a location that is well connected to public transport.

· To maximise public transport patronage and encourage walking and cycling.

The development is located in a CBD location and as such is well serviced by public transport opportunities in the way of a bus service, and is well positioned to encourage walking and cycling.

· To promote development that contributes to the role of the Orange CBD as the primary retail and business centre in the City and region.

The development will not compete with the role of the CBD, but rather the new motel and the supporting facilities such as the restaurant, bar and function space will make a positive contribution to the role of the CBD and further reinforce the City’s role as a major regional centre.

Council, in assuming the concurrence of the Secretary, must have regard to the matters contained within clause 4.6(5), which requires the Secretary (or Council in this case) to consider:

· whether the development, with respect to the variation sought; would raise any matters of significance for State or regional environmental planning,

· the public benefit of maintaining the development standard and,

· any other matters required to be taken into consideration by the Secretary before granting concurrence.

In relation to the above, given the development’s localised context, Council can be satisfied that the issuing of (assumed) concurrence will not affect state or regional environmental planning matters. The variation to the development standard would have a neutral public benefit, given the justification submitted by the applicant in support of the exceedance as well as the developments demonstrated compliance with the objects of both the relevant clause and the applicable zoning. Finally, Council staff are not aware of any other matter that the Secretary (and therefore Council in assuming the role) ought to consider before granting concurrence.

In summary, the variation to the development standard is considered acceptable. The applicant has made a written request in which justification is presented as to the reasons why it is unreasonable or unnecessary to insist upon compliance with the development standard. Consideration of the variation against the objects of the applicable standard and the relevant zone indicates that the development is not manifestly inconsistent with either set of objectives; and consideration of the concurrence requirements also suggests that the variation is acceptable.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

Clause 5.10 of the LEP lists the provisions that need to be considered where an application relates to a heritage setting. The subject land is not a heritage item under Schedule 5 of the LEP but is located within the Central Heritage Conservation Area; and the land also immediately adjoins the Orange Court House, which is a significant heritage item. The land is also opposite Robertson Park which is also a heritage item. The Royal Hotel (also a heritage item) bookends the southern end of the City block in which the subject land is located.

The Heritage Inventory Sheets for the subject land, the Orange Court House, the Central Heritage Conservation Area and the Royal Hotel list the respective statements of heritage significance as follows:

Mid-City Motor Lodge

An historically significant hotel in the City's history, with the Canobolas Hotel and the Commonwealth Bank, the building forms a key corner grouping complements the streetscape and contributes to the Conservation Area as a heritage item

Orange Court House

The 1882 Orange Court House is a substantial work by James Barnett, Government Architect in the Victorian - Civic Classical style on a prominent corner site including appropriate and sympathetic alterations and additions, complementing the streetscape and contributing to the Orange Conservation area as an item of State heritage significance.

Central Heritage Conservation Area

Consisting of a range of buildings dating from the latter part of the nineteenth century and the early part of the twentieth, the conservation area has historical importance for reflecting the development and prosperity of Orange during this period.

The conservation area exhibits several fine examples of different architectural styles. The building materials used, the mature street trees and the fine parklands all help to bring the area together as an aesthetically pleasing whole and as a townscape of importance.

Representing much of the core of the city, the conservation area has an appreciable level of social significance for the Orange community.

Royal Hotel

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

The development is not inconsistent with the objects of the clause.

(2) Requirement for Consent

Development consent is required for any of the following:

(a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance):

(iii) a building, work, relic or tree within a heritage conservation area,

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

(e) erecting a building on land:

(i) on which a heritage item is located or that is within a heritage conservation area, or

The development comprises demolition of a building in conservation area, as well as the erection of a building in a heritage conservation area. Additionally, given the land’s long history of development and its proximity to the Court House, there is the possibility that relics will be uncovered during the demolition and excavation phase of the development. Accordingly, Council’s standard condition relating to the uncovering of a relic or Aboriginal object is attached.

(4) Effect of Proposed Development on Heritage Significance

The nature of the development generates the need to assess the impact of heritage significance on two fronts: firstly the impacts associated with demolition of the existing building, and then secondly the effect of the new building within the heritage setting.

Demolition of Existing Motel

A heritage impact statement (HIS) has been submitted in support of the demolition of the existing motel. The HIS describes the motel’s heritage significance as follows:

The motel does not meet the threshold for listing on any criteria as, although it represents the time of the expansion of the use of the automobile, it is not distinguished in any manner and is not of social or associative value to the community.

Although not mentioned within the HIS, sources such as a CWD article suggest that the former Belair Motel (now known as the Mid-City Motor Lodge) was not only the first motel in Orange, but the first motel in Australia.

The HIS provides the following conclusions and recommendations:

The subject 1957 motel at Lords place is an altered example of the post second world war motel style, with central car parking and manoeuvring court with accommodation rooms situated along the perimeter of the site. The motel does not meet the threshold for listing on any criteria as, although it represents the time of the expansion of the use of the automobile, it is not distinguished in any manner and is not of social or associative value to the community.

Despite the omission of the possible historical significance of the motel, Council staff accept the recommendation that an archival recording of the buildings be undertaken prior to works commencing. Additionally, given the status of the motel as the first within Orange and arguably the first within Australia, a detailed heritage interpretation plan is required to be undertaken and implemented as part of the new motel complex.

Relevant conditions are attached in relation to the requirement for an archival record and interpretation plan.

Construction of New Motel

Council’s Heritage Advisor has undertaken a detailed assessment of the proposed development and determined that the development will have acceptable impacts upon the heritage setting, subject to certain conditions which have been attached.

A detailed assessment of the development against Council infill guidelines is undertaken below which addresses all relevant issues.

The development is considered acceptable in terms of heritage impacts.

(5) Heritage assessment

The consent authority may, before granting consent to any development:

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

A heritage impact statement accompanied the initial application which was prepared by URBIS and addresses mostly the demolition, but also addressed the initial design. An architectural design statement by Architecture Raw was also submitted and detailed the design intent and the proposed building’s relationship with the Court House.

The subsequent design changes have been accompanied by a heritage impact statement prepared by the planning consultant, Peter Basha Planning and Development.

(6) Heritage Conservation Management Plans

The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

Given that the buildings on the land are proposed to be demolished and replaced with a new development, a CMP is not required for the development.

(7) Archaeological Sites

The consent authority must, before granting consent under this clause to the carrying out of development on an archaeological site (other than land listed on the State Heritage Register or to which an interim heritage order under the Heritage Act 1977 applies):

(a) notify the Heritage Council of its intention to grant consent, and

(b) take into consideration any response received from the Heritage Council within 28 days after the notice is sent.

The site is not a known archaeological site.

(8) Aboriginal Places of Heritage Significance

The consent authority must, before granting consent under this clause to the carrying out of development in an Aboriginal place of heritage significance:

(a) consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place by means of an adequate investigation and assessment (which may involve consideration of a heritage impact statement), and

(b) notify the local Aboriginal communities, in writing or in such other manner as may be appropriate, about the application and take into consideration any response received within 28 days after the notice is sent.

The site is not a known Aboriginal Place of Heritage Significance. This has been confirmed by an AHIMS Search.

Part 6 - Urban Release Area

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

Part 7 - Additional Local Provisions

7.1 - Earthworks

This clause establishes a range of matters that must be considered prior to granting development consent for any application involving earthworks, such as:

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development

(b) the effect of the development on the likely future use or redevelopment of the land

(c) the quality of the fill or the soil to be excavated, or both

(d) the effect of the development on the existing and likely amenity of adjoining properties

(e) the source of any fill material and the destination of any excavated material

(f) the likelihood of disturbing relics

(g) the proximity to and potential for adverse impacts on any waterway, drinking water catchment or environmentally sensitive area

(h) any measures proposed to minimise or mitigate the impacts referred to in paragraph (g).

The earthworks proposed in the application are limited to the extent of cutting and filling required to achieve the desired floor levels on the ground floor, as well as achieve the necessary stormwater drainage to the front of the site. It is noted that the site has already experienced a considerable amount of excavation as a process of constructing the existing motel of the land. The excavation required to achieve the proposed development under this application will only be marginally greater than the existing level of excavation that has occurred within the site.

The extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways.

The extent of the earthworks will not materially affect the potential future use or redevelopment of the site that may occur at the end of the proposed development's lifespan.

The site is not known to be contaminated; however, as mentioned below also, Council’s standard precautionary condition relating to unexpected finds of contamination is attached to the consent.

The earthworks will be appropriately supported onsite, as shown on the long section of the northern boundary showing the contiguous concrete pile wall which manages the change in ground level between the adjoining land and the development site. The change in ground level has the effect of lowering the building in comparison to the adjoining land, and thereby reducing the impacts upon the amenity of the adjoining properties.

The site is not known to contain any Aboriginal, European or archaeological relics. Previous known uses of the site do not suggest that any relics are likely to be uncovered (notwithstanding the comments above). However, conditions are imposed to ensure that should site works uncover a potential relic or artefact, works will be halted to enable proper investigation by relevant authorities and the proponent required to seek relevant permits to either destroy or relocate the findings.

The site is not in proximity to any waterway, drinking water catchment or sensitive area. Notwithstanding this, conditions are imposed to require a sediment control plan, including silt traps and other protective measures, to ensure that loose dirt and sediment does not escape the site boundaries.

7.2 - Flood Planning

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

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

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

The property is located within the low flood risk precinct and immediately adjoins the high-risk flood precinct (Lords Place roadway).

Council’s Technical Service Division has indicated that:

the building has a proposed ground floor level of 860.79. The 1% AEP level in Lords Place in front of the property is approximately 860.29m AHD. The ground floor foyer area is a minimum of 500mm above the 1% AEP level and therefore complies with Councils Blackmans Swamp Creek Floodplain Risk Management Plan. Car parking areas are all above the 1% AEP level.

The development is thus considered acceptable in relation to flooding.

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.

Council’s Technical Services Division has provided the following advice in relation to stormwater:

The applicant will be required to provide on-site detention to limit post development peak flows to that of pre-development peak flows. In addition, the development will require the extension of stormwater drainage to serve the development.

Stormwater detention can be provided in the front setback area or rear car park area.

Subject to relevant conditions which are attached, the development is considered acceptable in relation to stormwater.

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.

Clause 7.11 - Essential Services

Clause 7.11 acts to ensure that all necessary services either are available or at least will be made available to the subject land at an appropriate time. The subject land is located within the Central Business District, and as such all necessary services are available to the land.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) requires that a consent authority must not consent to the carrying out of development of land unless it has considered whether the land is contaminated, is satisfied that the land is suitable in its contaminated state for the development that is proposed, and if the land requires remediation to be made suitable for the proposed development it is satisfied that the land will be remediated before the land is used for that purpose.

Furthermore, SEPP 55 requires that before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying findings of a preliminary investigation of the land concerned. It is noted the development does not involve a change of use.

The land has a long history of being used for commercial purposes. The land has been used for the purposes of a motel since 1957, and prior to that date the land was occupied by McLachlan and Campbell as Eldon Chambers. Accordingly, the past uses of the site are not of a type to indicate that contamination may be present, and as such a detailed contamination study is not required. Notwithstanding this, as is standard practice, a precautionary condition is attached to the consent which stipulates the protocols which need to be followed in the event contamination is encountered during construction.

State Environmental Planning Policy (Infrastructure)

State Environmental Planning Policy (Infrastructure) applies to the subject land, specifically clause 45 which states:

45 Determination of development applications — other development

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

(a) the penetration of ground within 2m of an underground electricity power line or an electricity distribution pole or within 10m of any part of an electricity tower,

(b) development carried out:

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

An underground power line exists at the rear of the site, and a separate power line enters the site midway along the southern boundary and then changes direction at the centre of the site and runs to the front of the site.

It is understood that the underground power line located in the front half of the site is redundant and can be removed. The existing power line at the rear occurs outside of the easement.

The application was referred to Essential Energy for comment. Essential Energy raised no objections to the development subject to a condition being imposed that requires the power line at the rear of the site to be within an easement. A condition is attached requiring this to occur prior to the issue of an Occupation Certificate. A further condition is attached that requires all redundant power lines within the site to be appropriately decommissioned at the source without impacting the supply of nearby properties. Furthermore, the standard requirements of Essential Energy have been incorporated into the Notice of Approval.

It is also noted that two existing street lights within the front of the site would have to be relocated to allow for the proposed vehicle access and exit point within the street. Relevant conditions are attached in this regard.

State Environmental Planning Policy 64 - Advertising and Signage

In terms of proposed signage, the applicant submits that the signage at the top of the building displaying the name ‘Lords Place Motel’ is indicative and shown for illustrative purposes only. As such, it does not form part of this approval, and a separate application for signage will be required. A condition of consent is recommended to inforce this requirement.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(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 s4.15(1)(a)(iii)

Development Control Plan 2004

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

· Chapter 0 - Transitional Provisions;

· Chapter 2 - Natural Resource Management;

· Chapter 3 - General Considerations;

· Chapter 4 - Special Environmental Considerations;

· Chapter 5 - General Considerations for Zones and Development;

· Chapter 8 - Development in Business Zones;

· Chapter 13 - Heritage; and

· Chapter 15 - Car Parking.

CHAPTER 0 - TRANSITIONAL PROVISIONS

Section 0.2 - General Translation of Zones

Section 0.2 - General Translation of Zones provides that any reference to a zone under Orange Local Environmental Plan 2000 is to be a reference to the corresponding zones in the zone conversion table.

The table identifies that the B3 Commercial Core zone corresponds with the 3a Regional Centre zone for the purposes of the DCP.

Chapter 2 - Natural Resource Management

Section 2.1 - Water Quality

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

The relevant matters have previously been addressed in detail under the headings “7.3 ‑ Stormwater” and “7.6 - Groundwater Vulnerability”.

It is considered that the requirements of the DCP have been adequately addressed.

Section 2.2 - Soil Resources

Section 2.2 - Soil Resources identifies that soil characteristics influence land use and development capability, including the suitability for building footings, onsite waste disposal, road engineering and drainage.

Council’s Technical Services Division has recommended a condition of consent requiring that the development is to be constructed in accordance with Council’s Development and Subdivision Code.

It is considered that the requirements of the DCP have been adequately addressed.

CHAPTER 3 - GENERAL CONSIDERATIONS

Section 3.1 - Cumulative Impacts

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

Cumulative impacts of the proposed development are addressed under the heading “Likely Impacts of the Development”.

Section 3.2 - Scenic, Landscape and Urban Areas

Section 3.2 -Scenic, Landscape and Urban Areas identifies that in urban areas consideration should be given to the character of the locality, whether that locality is recognised as having heritage character with formal plantings of exotic trees, or whether the locality comprises areas developed as suburban release areas where informal native planting is common.

The application involves perimeter landscaping on the western and southern boundaries. Council’s Heritage Advisor has recommended landscaping at the boundary along both the northern and southern boundaries with plantings that achieve a mature height of at least 6‑8m. A detailed landscape plan is required showing this detail as a condition of consent. The condition also requires the plan to be prepared by a qualified landscape architect.

Council’s Heritage Advisor has indicated that the proposed development will complement the heritage significance of the heritage setting and the streetscape subject to the above required condition.

Section 3.4 - Waste Generation

Section 3.4 - Waste Generation requires that applications involving demolition indicate measures that will be implemented for reuse and recycling of waste, and that development involving demolition is carried out in a manner that optimises reuse and recycling of waste materials consistent with waste-minimisation principles.

A waste management plan has not been submitted with the application for the demolition phase of the development; however, this is addressed via a condition of consent which requires a waste management plan to be prepared and submitted to Council prior to works commencing onsite.

The management of waste generated by the completed development on an ongoing basis is addressed below under the heading “Likely Impacts”.

The development is considered satisfactory with regards to waste generation.

CHAPTER 4 - SPECIAL ENVIRONMENTAL CONSIDERATIONS

Section 4.1 - Sewage Disposal

Section 4.1 - Sewage Disposal identifies that urban development must be connected to a sewerage system approved by Council prior to occupation. For the purposes of this clause, urban development includes all development within residential, business and industrial zones (and associated open space and special use zones).

Council’s Technical Services Division has advised that:

….. the development will be required to connect to Council’s existing sewerage system crossing the site. The existing east / west sewer serving Kmart will need to be reconstructed at a lower level. The existing sewer running north / south will need to be relined from boundary to boundary.

Relevant conditions are attached in relation sewer.

Section 4.3 - Land Shaping

Section 4.3 - Land Shaping identifies that substantial land shaping, including filling or excavating land, has the potential to generate significant environmental impacts; and that land shaping should not adversely affect land in the vicinity as a result of drainage, erosion or sedimentation, or as a result of leachate entering surface or groundwater.

The relevant matters have previously been addressed under the heading “7.1 ‑ Earthworks”. It is considered that the requirements of the DCP have been adequately addressed.

Section 4.4 - Contaminated Land

Section 4.4 - Contaminated Land identifies that contaminated land can pose a risk to human health and the environment. Contaminants can be released into waterways and humans exposed when contaminated land is disturbed as a consequence of development.

The relevant matters have previously been addressed under the heading “State Environmental Planning Policy 55 - Remediation of Land”.

It is considered that the requirements of the DCP have been adequately addressed.

CHAPTER 5 - GENERAL CONSIDERATION FOR ZONES AND DEVELOPMENT

Section 5.3 - Advertised Development

Section 5.3 - Advertised Development identifies that Council will give written and published notice of applications for advertised development as required by the Environmental Planning and Assessment Regulations.

The development is categorised as advertised development given the demolition of the existing motel in a heritage conservation area.

Accordingly, the development application was advertised on Thursday, 21 December 2017 and exhibited between Friday, 22 December 2018 and Monday, 15 January 2018. The normal 14 day exhibition period was extended due to the Christmas holiday period.

At the end of that period two written submissions were received. A detailed assessment of the issues raised by the submitters is provided under the heading “Any Submissions Made in Accordance with the Act”. In addition to the two submissions received during the exhibition period two subsequent submissions were received after the exhibition period; one from NSW Police and one from the owner of 237 Lords Place. A further submission was received prior to the exhibition period and also prior to the final design being submitted from Source Architects. Thus a total of five submissions received, all of which are addressed below.

CHAPTER 8 - DEVELOPMENT IN BUSINESS ZONES

Section 8.1 - Orange CBD

Section 8.1 - Orange CBD outlines planning outcomes for the Orange Central Business District, with an emphasis on design, character, parking and loading. The relevant planning outcomes are addressed below.

· Buildings have a high level of urban design to contribute to the regional status of the City’s Central Business District with attention given to façade features, external materials, colour and advertising.

Given the scale of the proposed development, the prominent location of the subject property within the Orange CBD and the relationship to nearby heritage items and heritage conservation area, Council staff considered it appropriate to refer the development application to Councils Heritage for his assessment and recommendations.

Council’s appointed Heritage Advisor has assessed the proposed development against Council’s adopted Orange Development Control Plan 2004 Infill Guidelines. In summary, the Heritage Advisor considers that the proposed development has provided a suitable response to each of the applicable design criteria, including character, scale and form, siting, materials and colours, and detailing.

Based on the advice and recommendations provided by Council’s Heritage Advisor, it is considered that the proposed development has been appropriately designed with regard to the site’s context within the Orange CBD, particularly the development’s relationship with Orange Court House, subject to meeting the recommended conditions of consent.

· Urban design demonstrates a clear reference to the CBD Strategic Action Plan.

The Orange Central Business District Strategic Action Plan 2003 (the ‘Strategic Action Plan’) seeks to provide a long-term strategy to address a broad range of issues affecting the CBD.

In general, the Strategic Action Plan identifies the subject property as forming a secondary street retail area adjacent to the CBD core (Figure 8). Key themes of the Strategic Action Plan relevant to the subject property include access and movement, built form and heritage, and landscape and public domain. The Action Plan also identifies the subject land as a Key Site within the CBD, stating that the site has the potential to enhance tourism, employment, and retail opportunities and their support services to strengthen Orange’s role as a regional commercial and retail centre.

Figure 8: Orange Central Business District Strategic Action Plan - Structure Plan (Land Use)

Access and Movement

In terms of access and movement, the proposed development is considered to be consistent with the Strategic Action Plan. The development incorporates a circular entry which can accommodate new arrivals as well as coaches off the street. The development provides 112 parking spaces (in a tandem/valet arrangement) in an accessible and connected location at the rear of the site. Traffic throughout the site is managed in a one‑way circulation around the building, with entry to the north of the building and egress to the south. The development is located in close proximity to public transport as well as a major taxi stand opposite the site. The central location allows suitable pedestrian connectivity to nearby hospitality and retail attractions.

The development is considered acceptable in terms of access and movement.

Built Form and Heritage

With regard to built form, the proposed development is considered to be consistent with the Strategic Action Plan insofar as the ground level will provide an active frontage to Lords Place, with the combination of materials and architectural features achieving a suitably articulated façade.

Landscape and Public Domain

The proposed development is consistent with the landscape and public domain objectives of the Strategic Action Plan. As mentioned above, a condition requiring a detailed landscape plan providing suitable tree planting at the site boundary is attached.

· Provision of adequate fire-safety measures and facilities for disabled persons (according to the BCA) are addressed at the application stage (relevant for all development but particularly important where converting residential buildings for business use).

Council’s Building Surveyor has commented that further detail would be required at the Construction Certificate stage to determine compliance with the BCA.

· Land use complements the role of the CBD as a regional centre for commerce and services.

The proposed development is considered to be complementary to the role of the CBD as a regional centre is it will make a substantial contribution to the existing supply of tourist and visitor accommodation within Orange.

· The reinstatement of verandahs on posts over footpaths is encouraged.

Given that the proposal involves the construction of a new building, the foregoing outcome is not considered applicable.

· Car parking is provided to meet demand either as onsite parking areas or through contributions towards public parking in and adjacent to the CBD.

Section 15.4 - Parking Requirements sets out the minimum parking requirements for specific land uses. A detailed assessment against the requirements of Section 15.4 is undertaken below.

· Advertising comprises business identification signs in accordance with SEPP 64.

No advertising signs have been proposed. The signage shown on the plans at the top of the building is for illustrative purposes only. It is anticipated that a separate application for advertising will be lodged once the applicant has entered into an agreement with a primary tenant for the hotel.

· Loading areas are provided for developments requiring access by large trucks in a manner that doesn’t reduce active frontages for important pedestrian pathways.

The applicant has proposed an internal loading/service area including waste collection at the rear of the front portion of the building on the southern side. The application is accompanied by a plan showing the swept paths of the likely servicing vehicles, including the typical garbage collection vehicle. Council’s Development Engineer has indicated that this is an acceptable.

· Where possible, new buildings or external alterations in the CBD include an element of landscaping.

Landscaping associated with the proposed development is limited to the area within the front setback of the building and along the side boundaries. A condition is attached that requires landscaping to be installed adjacent to both the northern and southern boundaries in the form of 6-8m mature height trees. A condition is attached requiring a landscape plan prepared by a landscape architect showing the required landscaping.

CHAPTER 13 - HERITAGE

Sections 13.1-13.06 of Chapter 13 - Heritage of the DCP address heritage matters in detail, including heritage objectives, heritage items and heritage conservation areas, heritage consideration for development, development in the vicinity of heritage items, heritage proposals as advertised development, and incentives for heritage conservation.

These matters have previously been addressed in detail under the heading “Clause 5.10 - Heritage Conservation” or alternatively below under the consideration of the Infill Guidelines.

It is considered that the requirements of the DCP have been adequately addressed.

CHAPTER 15 - CAR PARKING

Section 15.1 - Background,

Section 15.2 - Objectives and

Section 15.3 - Relationship Between On-Street and Off-Street Car Parking

Sections 15.1-15.3 of Chapter 15 - Car Parking set out the background, objectives and relationship between on-street and off-street car parking in Orange. In particular, these sections highlight the importance of making provision for car parking in order that the demand for parking in the City is met, and ensuring that the design and layout of car parking facilitates the safe and effective use of off-street parking.

The appropriate assessment of car parking requirements is undertaken under the following sections.

Section 15.4 - Parking Requirements

Section 15.4 - Parking Requirements sets out the minimum parking requirements for specific land uses.

Background

The application when initially lodged with Council comprised a motel with 103 rooms (later amended to 105), along with the other offerings such as lobby lounge, bar/restaurant, function centre and gym area. 100 off-street parking spaces were proposed in an under-croft arrangement at the rear of the site. It was identified that the development would result in a 56 space deficiency based on a strict application of the DCP requirements.

Shortly after the application was lodged, a report summarising the application and subsequent shortfall in parking was tabled for the City Of Orange Traffic Development Committee. The committee at that time recommended the following:

That the City of Orange Traffic Development Committee supports in principle development application DA 302/2016(1) – 245 Lords Place, Orange but, because of the car parking spaces shortfall, does not support the proposal in its current form^{^[2]}.

The provision of off-street car parking spaces is a key issue for consideration in the assessment of this application. Notably, during the assessment process the applicant has submitted two separate car parking plans to address concerns raised by Council staff, including an original plan for 100 off-street car parking spaces (since reduced to 97 with the submission of revised layout) and a subsequent plan showing 112 off-street car parking spaces. The additional 15 spaces are achieved under a valet arrangement whereby one of the central aisles is replaced by stacked parking. As shown below.

Figure 9: proposed tandem/valet car parking arrangement

As can be observed in the above figure, the tandem / valet arrangement works reasonably well and, at most, only one car would have to be moved to access a car that is parked in by another car. Notwithstanding the ease with which the valet arrangement could be managed, even with the tandem valet arrangement applied, the development still results in a 43 space shortfall under a strict application of the DCP as detailed below.

The complex issue with this arrangement is not how it would work, as it works quite well; but rather under what circumstances or conditions would this arrangement be required. In other words, what would be the trigger that enacts the tandem valet arrangement: 80% occupancy rate, 50% occupancy and a concurrent function of more than 100 attendees, 100% of the time?

This is an important question in the consideration of whether or not this arrangement is considered satisfactory.

While the applicant has been able to make amendments to the proposed development to increase the number of off-street car parking spaces to be provided, the current design relies on the use of ‘tandem’ and ‘valet’ style car parking spaces, which would effectively require motel staff to undertake all parking operations once the hotel reaches a certain occupancy. If the ‘tandem’ and ‘valet’ style car parking spaces were to be removed from the current car parking plan, the number of spaces provided would be reduced to 97.

It is recommended that a condition be attached that requires the tandem valet arrangement procedure to be activated once the motel occupancy reaches more than 75% of capacity. This would relate to only times of above average occupancy rates whilst still allowing capacity for vehicles associated with the other uses within the facility. A condition is attached in this regard.

It is open to Council to determine whether or not ‘tandem’ and ‘valet’ style car parking spaces should be supported with these considerations in mind.

Car Parking Demand

Section 15.4 - Parking Requirements sets out the minimum parking requirements for hotel or motel accommodation, restaurants and shops within the Orange Central Business District.

Council staff have calculated the likely demand for off-street car parking based on the following:

· The proposed motel comprises 105 one bedroom apartments. However, 12 of the rooms are arranged whereby each group of two adjoining rooms can be let to a single reservation as a two-bedroom apartment (six in total). Under this arrangement the total number of rooms is reduced to 99.

· 44 seats within the restaurant/bar area. The restaurant/bar area comprises a floor area of 179.69m².

· 283.48m²of function room space.

· 10 staff members.

· 1 resident manager.

Section 15.4 - Parking Requirements sets out the following minimum car parking requirements:

Hotel or Motel Accommodation

· 1 space per unit/bedroom/tent or caravan site

· 1 space for every 3 beds (hostel accommodation)

· + 1 space for each resident manager

· + 1 space for every 2 employees

· + 1 space for every 3 seats in the restaurant

· + 1 space per 10m² of entertainment or function room areas.

Restaurants in the CBD

· 1 space per 40m² of GFA.

Alternate rate for function centre

· 1 space per 25m²of GFA.

Notably, the foregoing provisions identify that there is a separate car parking requirement for a restaurant associated with hotel or motel accommodation as opposed to a restaurant in the CBD which is not associated with another use. Depending on the size of the restaurant and the number of seats available, this may result in a substantially different requirement for off-street car parking spaces.

Given that all other recently approved restaurants in the Orange CBD have been subject to the requirement for 1 space per 40m² of GFA, it seems logical that the same rate should be applied in this case as there seems to be no obvious or logical reason to apply the requirement based on seating numbers. This is the same approach taken under the recently approved (and partly constructed) Quest development in Kite Street. The same rationale can be applied to the function area based on the rate for hotels within the CBD. Notwithstanding, the requirement for off-street car parking spaces generated under both requirements is presented below:

Hotel or Motel Accommodation

· 105 units = 105 car parking spaces

· 1 resident manager = 1 car parking space

· 10 full time employees = 5 car parking spaces

· 44 restaurant seats = 14.7 (15) car parking spaces^*

· 283.48m²of function room = 28.3 (29)

Restaurants in the CBD – 1 space per 40m²GFA

· 179.69m² of GFA = 4.5 (5) car parking spaces^*

Alternate rate for a function centre (adopted from the requirements of a hotel in the CBD) at 1 space per 25m²

· 283.48m²of function room = 11.3 (12) car parking spaces^*

Equating to a total demand of 155 spaces based on a strict application of the DCP

128 spaces based on the above alternate rates.

^*Indicates interchangeable car parking requirements

Based on the foregoing, it is considered that the proposed development would generate a requirement for a total of 155 off-street car parking spaces if calculating the car parking requirement for the development based on seating numbers, or 145 off-street car parking spaces if calculating the car parking requirement for the restaurant based on GFA. A further 17 space reduction could be applied if relying on the alternate rate for the function centre equating to a total demand of 128 spaces when applying the reduced rates.

As previously discussed, given that all other recently approved restaurants in the Orange CBD have been subject to the requirement for 1 space per 40m² of GFA, it is recommended that this rate be applied. It is also recommended that the same rationale be applied to the alternate function centre rates based on the requirement for hotels in the CBD. Accordingly it is recommended that the proposed development be assessed as generating a requirement for 128 car parking spaces. Based on the 112 spaces available under the tandem / valet arrangement the proposed development would therefore have a shortfall of 16 car parking spaces.

However, if Council were not of a view to support the proposed ‘tandem’ and ‘valet’ style car parking arrangement, the proposed development would have a shortfall in the order of 31 car parking spaces (based on a standard car park of 97 spaces available).

If Council is willing to support the proposed ‘tandem’ and ‘valet’ style car parking arrangement, it is considered that the shortfall of 16 off-street car parking spaces could adequately be addressed via conditions of consent requiring a contribution in lieu of the physical provision of car parking spaces. In accordance with the Orange Car Parking Development Contributions Plan 2015, a contribution of $14,448.30 would be applied to account for each off-street car parking spaces not provided onsite (ie a total of $231,172.80 to account for 16 car parking spaces).

However, if Council is not willing to accept the proposed ‘tandem’ and ‘valet’ style car parking arrangement, the whole shortfall of 31 car parking spaces could not simply be rectified via a condition of consent requiring a contribution in lieu of the physical provision of car parking spaces. As detailed below, only 23 of the total 31 parking space deficiency could be addressed by contributions.

It is noted that Orange Car Parking Development Contributions Plan 2015 precludes car parking contributions being offered by the developer or required by Council for car parking associated with tourist or visitor accommodation because Council considers that it is inappropriate that those using these types of developments should have to park in public areas physically removed from the development.

As such, a condition of consent could not be applied requiring that a contribution be required to account for each off-street car parking space required for the accommodation aspect (being 105 spaces) of the proposed motel which is not provided onsite. This would amount to a significant departure from Orange DCP 2004 and likely result in an unacceptable environmental impact.

As previously stated, it is open to Council to determine whether or not ‘tandem’ and ‘valet’ style car parking spaces should be supported in this instance.

Summary

Whilst there are a number of potential options available to Council in determining the suitability of the parking arrangements; it is recommended that Council accepts the tandem valet arrangement as it did for the recent Quest Development in Kite Street. In addition to this, it is also recommended that Council allow a degree of flexibility (as was the case for the recent Quest Development in Kite Street) in the assessment of parking demands and calculate the restaurant/bar and the function area using the more generous calculations within the DCP (1 space per 40m²for the restaurant and bar, and 1 space per 25m² for the function area) and apply a contribution accordingly. The applicable contribution being 16 spaces @ $14,448.30 = $231,172.80

The allowance of flexibility within the car parking requirements reflects the acknowledgement that the development is unlikely to experience 100% occupancy 100% of the time. Additionally, there is an acknowledgement that there is shared distribution of uses; that is, that some people staying at the motel would also be guests at a function or diners in the restaurant. Finally, there is an acknowledgement that the majority of the motel’s demand for parking would be generated outside of main business hours, meaning that the competition for parking spaces within the surrounding streets would be lower than compared to core business hours.

It is considered that the requirements of the DCP have been adequately addressed.

Section 15.5 - Parking Area Design and Layout

Section 15.5 - Parking Design and Layout identifies that the design and layout of parking areas are to comply with the applicable Australian Standard.

It is noted that the operation of the proposed car parking layout would rely on the use of a ‘tandem’ and ‘valet’ style parking system depending on the occupancy of the hotel.

While Council’s Development Engineer has indicated that the proposed ‘tandem’ and ‘valet’ style car parking would not meet the applicable Australian Standard, he has confirmed that such an arrangement is a common method of maximising the capacity of a private car park and that the design is acceptable. The implications of the ‘tandem’ and ‘valet’ style car parking spaces and Council’s options have been set out in the foregoing ”Section 15.4 - Parking Requirements”.

Section 15.6 - Parking Area Construction

Section 15.6 - Off-Street Car Parking sets out the following planning outcomes:

· Adequate off-street car parking is provided in accordance with the Table or, alternatively, according to an assessment that demonstrates peak-parking demand based on recognised research.

The requirements for off-street car parking have previously been addressed under “Section 15.4 - Car Parking Requirements”.

· Car parking areas are designed according to Australian Standard.

The implications of the ‘tandem’ and ‘valet’ style car parking spaces and Council’s options have been set out in the foregoing “Section 15.4 - Parking Requirements”.

· Car park areas include adequate lighting and landscaping (preferably deciduous shade trees), which provides for the personal security of users.

All off-street car parking will be provided internally on the ground level of the proposed development. While it is likely that a prospective developer would ensure that adequate lighting is provided, a condition of consent is recommended requiring that lighting be provided for the personal security of users.

· Bicycle parking facilities are provided according to the relevant Australian Standard.

No provisions have been made for bicycle parking. Notwithstanding this, a condition is attached that requires the provision of a minimum of 6 bicycle parking spaces within the site without impacting upon vehicle circulation or parking spaces.

· Facilities for loading and unloading of commercial vehicles are provided according to the relevant Australian Standard.

Loading and unloading, including waste collection, will occur via the loading dock on the southern side of the building.

INFILL GUIDELINES

Council’s Heritage adviser has carried out the following assessment against Council’s Infill Guidelines.

Character A traditional approach to the composition ensures that elements on the elevations interpret similar axes and vertical proportions. The steel screening elements relate to traditional verandahs, cast iron and the general effect of the trees and landscape within the Park opposite.

The porte cochere is a typical feature associated with hospitality venues and interprets traditional details and materials with the lightweight structure.

Scale and Form

The new element in the streetscape is nominally 3m higher than the height limit and higher than the adjoining buildings on each side. In mitigation for the height, the setbacks to the sides and the upper floor ensure that the proposed height does not dominate the adjoining State listed item or the context. The height reduces the views from Lords Place to the existing retail buildings. Colour, material and details also assist in providing the scale with appropriate transitions between the ground and upper levels.

The proposal has width which is comparable to the Court House. The centred composition interprets the symmetry of the Court House and traditional built forms without resorting to replicating elements or details. The forecourt creates an appropriate setting in front of the main form on the streetscape. The 3D views illustrate that the form and bulk will be sympathetic with the more dominant Court House.

Siting

Any proposal in the vicinity of the Court House will need to respond with both elements of deference, and elements of interpretation and referral. Vertical and horizontal setbacks followed by colours which are visually recessive are the key initial aspects. The bulk of the proposal is behind the Court House building line by some 4m. The light porte cochere structure is forward at the nominal property line and is consistent with the southern Lords Place buildings. At the front portion of the site a setback of 7m is provided to the Court House boundary, and the heritage building is some 3m again from its boundary. The first and second floors of the proposal are set behind balconies framed in masonry, while the central portion of the building is recessed behind a lightweight steel trellis screen. This combination of setbacks addresses the primacy of the Court House without over emphasising the gaps in the streetscape.

Materials and Colour

The key materials are reflective of local items, in particular the bluestone base and granite cladding on the ground floor. The steel details in grey will create screens to model the larger elements on the façade and interpret traditional verandahs and sunscreens

Recommendations:

Glazing to the top floor level to be grey tinted to remain sympathetic with the reduced bulk and impact.

The wall cladding to the top floor is to be metal cladding in Woodland Grey or similar to reflect and interpret the roof character evident within the Conservation Area.

Details

The details are a contemporary interpretation of traditional elements evident in the Conservation Area.

Recommendations:

All plumbing and services beneath the first floor are to be fully concealed by a soffit and perimeter bulkhead so as not to detract for the views to and from the courthouse.

Suitable landscaping is to be provided with professionally prepared design and documentation. The plan should include suitable 6-8m trees on both long boundaries for screening and character

From the foregoing assessment of the development against Council’s infill guidelines it can be concluded that the development will be appropriate within the heritage setting subject to the detailed conditions of consent listed above.

SECTION 64 WATER AND SEWER HEADWORKS

Council Technical Services staff have provided the advice in relation to water and sewer headworks charges. Water and sewer contributions are based on Water Directorate rates for motel rooms. Credit for the existing 46 motel rooms and restaurant has been taken into account in these calculations. The development generates a demand for 20.90 equivalent tenements for water supply headworks and 29.75 equivalent tenements for sewer headworks.

PROVISIONS PRESCRIBED BY THE REGULATIONS s4.15(1)(a)(iv)

Demolition of a Building (clause 92)

The proposal involves the demolition of the existing motel and all associated structures, including the commercial tenancy at the front of the site. A condition is attached requiring the demolition to be carried out in accordance with Australian Standard AS2601 - 1991: The Demolition of Structures.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

THE LIKELY IMPACTS OF THE DEVELOPMENT s4.15(1)(b)

Context and Setting

The area surrounding the development site is characterised as a significant heritage precinct as it includes significant heritage items, being Orange Court House and Robertson Park; and is located within the Central Heritage Conservation Area. The other built form within the street comprise more recent buildings with a mix of one and two storey heights.

Lords Place is a relatively wide street comprising significant mature trees on the eastern side of Lords Place and semi-mature trees on the western side. Onsite street parking within Lords Place comprises a mix of parallel and angled parking.

Traffic is controlled to the south by a signalised intersection with Summer Street and a roundabout to the north, intersecting with Byng Street.

The land-uses within Lords Place comprises a significant 2ha public park opposite the subject land and a mix of commercial uses comprising primarily offices.

The development is not incongruous with the context and setting of the subject land.

Visual Impacts

As detailed throughout the report, the development is considered acceptable in terms of how the development will sit within the street, particularly the development’s relationship with the Orange Court House.

The development is considered acceptable in terms of visual impacts.

Heritage Impacts

Council’s Heritage Advisor has undertaken the following assessment in relation to heritage impacts:

The following will enhance significance:

· The proposal will enhance the setting on the Park and reduce the impacts of existing detracting elements;

· The elevations interpret suitable significant features of the court house and traditional buildings;

· The setbacks provide an appropriate setting on the site and spaces between the adjoining buildings;

· The character suits a hospitality building in conjunction with the other accommodation buildings around the Park.

The following aspects could detract from significance:

· The height of the proposal is greater than the height limit and the adjoining buildings. The mitigating measures including setbacks, materials and details are sufficient to ensure that the significance of the Court House and the Conservation Area is not affected.

Additional measures including the glazing, top floor material cladding and landscape planting are recommended to assist as detailed above under the considerations of the infill guidelines.

· The views to and from the Court House will be enhanced by the design;

· The design elements and materials reflect the local sources and character;

· The use and character supports the hospitality activity in the precinct;

· The steel trellis design elements are in keeping with the Park setting;

· The Court House will continue to visually dominate the setting and Byng Street corner.

The impacts are generally acceptable subject to the Recommendations proving acceptable.

The recommendations relating to the finish of the upper level glazing being a grey tint, the exterior material of the uppermost habitable level (being the fourth storey) consisting of a light weight metal material similar to standing seam in Colorbond woodland grey or equivalent, and the boundary landscaping are all attached as conditions of consent.

From the foregoing assessment of the development by Council’s Heritage Advisor it can be concluded the development will result in satisfactory impacts upon the heritage setting.

Traffic, Access and Parking Impacts

Traffic

The subject land has frontage to Lords Place, which is a north-south orientated town centre access road. It is an undivided two lane carriage road and intersects at a signalised interaction to the south with the Mitchell Highway (a distance greater than 90m), and intersects at a roundabout to the north with Byng Street. Council Technical Services Division has not raised any objections in relation to the development’s impact upon traffic within Lords Place and the adjoining road network.

The development is considered acceptable in terms of traffic.

Access

Council’s Technical Services department has provided the following in relation to access for the development:

The proposed driveway locations and vehicle circulation are considered satisfactory. The applicant has demonstrated that the driveway has sufficient width to allow service vehicles to manoeuvre within the site.

A condition controlling height/transparency of side fencing within 4.0m of the Lords Place frontage has been included to ensure satisfactory sight distance for drivers exiting the car park to pedestrians on the footpath.

The existing driveways will need to be replaced with standard kerb and gutter and the footpath reinstated as required for the full frontage of the development.

The two existing street lights on the property frontage will need to be relocated as they are located within proposed driveways.

Accordingly, the development is considered acceptable in terms of access.

Car Parking

Car parking is addressed above in detail under the heading Chapter 15 of the DCP, and is considered acceptable subject to a contribution being paid in lieu of the required physical spaces. The tandem/valet arrangement proposed by the applicant is considered acceptable with the procedure to be put in place once the motel exceeds 75% occupancy rates.

Council’s Technical Services Division has not raised any objections in relation to the proposed car parking arrangements.

Based on the adoption of the recommendations contained in the car parking assessment above, it is considered that the development will have an acceptable impact in terms of parking.

Environmental Impacts

The site does not comprise any significant vegetation. The development is therefore unlikely to impact upon any endangered ecological communities, threatened species or habitat.

Waste Generation

The applicant has undertaken an assessment of likely waste generation for the motel which concludes that there is sufficient capacity to cater for approximately three nights of waste for the development.

It will be necessary for the applicant to enter into a private agreement with a waste contractor for the collection of waste.

As indicated above, the application is accompanied by swept paths that demonstrate the garbage servicing arrangements are satisfactory.

Safety, Security and Crime Prevention

The applicant has undertaken an assessment of the development against the recognised Crime Prevention Through Environmental Design (CPTED) principles and determined that the development is acceptable.

Council staff, however, referred the application to NSW Police who have undertaken an assessment of the development’s crime risk and determined that the development falls within the high risk category. As such the assessment of NSW Police and the recommended conditions therein as discussed below are incorporated into the consent.

The CPTED principles consist of the following considerations: surveillance, access control, territorial reinforcement, and space and activity management; each of which are addressed below.

Surveillance can be achieved by casual surveillance of the general public or physical monitoring by staff. NSW Police have recommended a number measures such as the installation of a CCTV network throughout the public areas of the motel and associated lighting and mirrors located in secluded corners, all of which have been included as conditions consent. NSW Police recommend a reorientation of the front-of-house space and installation of windows addressing the car park. This option has not been adopted by Council staff as it would significantly alter the operation of the front-of-house activities. It is considered that an appropriate degree of surveillance can be achieved via the installation of CCTV.

Access control - can be achieved by physically restricting access to certain areas within a particular area of the site. Conditions are attached as recommended by NSW Police in relation to access control to areas restricted to the public.

Territorial reinforcement – can be achieved by physical means of separating spaces. In this particular circumstance private territories external to the development site (particularly the Court House) will be protected by the retaining walls at the boundary and the fact that the development site is much lower than adjoining land. Internally within the development, access to areas within the motel can be restricted to patrons only during afterhours, for example. The level of territorial reinforcement for the development is acceptable.

Space and activity management – can be controlled through the use of clear markings and wayfinding signage to deter opportunities for loitering. NSW Police have recommended conditions in relation to wayfinding and directional signage within the development; these are attached as conditions of consent. NSW Police also recommended angling the fire egress stairs to avoid an area of seclusion and entrapment.

However, this would considerably alter the visual appearance of the development and disrupt the positive outcomes achieved in terms of the building presentation to the street. The concerns of NSW Police can be overcome by the installation of CCTV and lighting.

With the imposition of the above referenced conditions, the development is considered satisfactory in terms of safety, security and crime prevention.

Cumulative Impacts

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

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

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

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

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

It is anticipated that some of the above scenarios may occur during the demolition and construction phase of the development, resulting in a potential noise impact. However, conditions are attached such as the requirement for a Construction Noise and Vibration Management Plan to be prepared which is to outline measures to reduce noise and vibration impacts will assist in reduced the likelihood of unacceptable cumulative impacts relating to noise.

Once operational, the development is not expected to result in any undesirable cumulative impacts.

THE SUITABILITY OF THE SITE s4.15(1)(c)

The proposed development represents a continuation of the longstanding use of the land for tourism purposes. The site is centrally located within the CBD, providing accessibility to key commercial services and within close proximity to public transport.

Additionally, Council staff are not aware of the site being subject to any natural, physical or technological hazards that would unreasonably constrain the development. Note comments above in relation to flooding.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s4.15(1)(d)

The proposed development is defined as "advertised development" under the provisions of the Regulations and Council’s DCP. The application was advertised for the prescribed period of 14 days and at the end of that period 2 submissions were received during the exhibition period. A further three submissions were received outside of the exhibition period, one of which was received well before the exhibition period and prior to the final design being submitted, and the second was received from NSW Police which relates to safer by design principles and is addressed separately above under “Safety, Security and Crime Prevention”.

The third submission received outside the exhibition period does not raise objections to the development, it is simply submitted so that the author would be advised directly when the application was to be determined (this submission is attached but is not referenced separately below).

Submission 1 - Owner of 21 Lawson Crescent

The submitter references the positive heritage and design outcomes achieved between Council staff and the proponent. The submitter also references the positive and appropriate siting of the development, particularly the front and northern (side) setbacks of the development.

Having said that, the submitter conveys two reservations in relation to the development. The submitters suggests that the height exceedance and the request to vary the development standard by the amount requested (essentially an additional storey) would set a dangerous precedent for the remainder of the zone, with other developers seeking to have the additional height of buildings applied to other parts of the City.

The submitter’s second reservation relates to the bulk of the building, and raises the question if consideration has been given to “deleting the five guest rooms constituting the front of the fourth level, taking the frontage back to the line of stair wells?” The submitter further purports that the deletion of aforementioned guest rooms would further reduce the bulk of the building façade as viewed from Lords Place. The submitter suggests “deleting the five rooms would possibly not reduce revenue to an appreciable extent (given lower capital, maintenance and operating costs). It would also reduce, if not eliminate, the shortfall in car parking spaces on the site”.

Council Staff Response: whilst the comments of the submitter are appreciated, as detailed above under the consideration of Council’s Infill Guidelines, Council’s Heritage Advisor has provided advice to the effect that the development, subject to certain conditions, will make a positive contribution to the setting, and the bulk and scale (inter alia) of the building will not unreasonably impact upon the heritage significance of the heritage setting, particularly the significance of the Court House. The development as proposed is considered acceptable in terms of its height and relationship with the adjoining buildings.

Submission 2 - NSW Department of Justice - Orange Court House

The submission is from the Registrar of the Orange Court House (adjoining land to the north). The submission fundamentally raises concerns in relation to security along the common boundary of the development site and the Court House. The submission also raises concerns in relation to noise during the demolition and construction phases of the development, with concerns that such works may interrupt the day-to-day operations of the Court.

Council Staff Response

The applicant has provided details addressing the security issue. Essentially, a varied height retaining wall will be required along the common boundary with the Court House which will have the effect of providing territorial reinforcement and security between the development site and Court House.

In relation to the potential noise and vibration impacts a condition is attached that requires a construction (and Demolition) noise and vibration management plan to be prepared which is to outline measures which will reduce noise and vibration impacts upon nearby sensitive receivers.

Submission 3 (received prior to exhibition) - Source Architects

The submission raises concerns in relation to the bulk, scale, design and general aesthetic of the development, and how it references and acknowledges the key elements of the significant adjoining Court House.

Council Staff Response:

Council staff generally agreed with much of what is conveyed in the submission when it was received, which must be noted was in response to a much earlier design iteration. Council staff are of the view that with the extensive dialogue and further iterations of the design (following through to the final design which is the subject of this assessment), many of the concerns raised by the submitter have subsequently been addressed or will be addressed by condition of consent, such as landscaping along the long boundaries.

It is noted that the submitter was advised of the application when it was placed on formal exhibition. No further submission was received at that time.

Submission 4 - Central West Police District/Orange Police Station

This submission by NSW Police provides an assessment of the development’s adequacy against the recognised Crime Prevention Through Environmental Design principles, and is addressed in detail above under the heading Safety, Security and Crime Prevention.

PUBLIC INTEREST s4.15(1)(e)

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. It is recommended that Council supports the request to vary the height control applicable to the subject development pursuant to Clause 4.6 of the LEP. A detailed assessment of matters pertaining to parking has been provided in the body of the report. A section 4.15 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, D18/54231 ⇩

2 Plans, D18/54194 ⇩

3 Submissions, D18/54062 ⇩

Extraordinary Planning and Development Committee 17 October 2018

2.2 Development Application DA 302/2016(1) - 245 Lords Place

Attachment 1 Notice of Approval

ORANGE CITY COUNCIL

Development Application No DA 302/2016(1)

NA18/ Container PR6948

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

Development Application
Applicant Name:	Smith Property Group Pty Limited
Applicant Address:	C/- Peter Basha Planning PO Box 1827 ORANGE NSW 2800
Owner’s Name:	Smith Property Group Pty Limited
Land to Be Developed:	Lot 1 DP 784423 - 245 Lords Place, Orange
Proposed Development:	Demolition and Hotel or Motel Accommodation

Building Code of Australia building classification:	As determined by Certifier

Determination made under Section 4.16
Made On:	17 October 2018
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	18 October 2018
Consent to Lapse On:	18 October 2023

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 by Peter Basha Planning and Development:

reference 12111DA dated 21 June 2016 sheets 1 and 2 (including aerials) (2 sheets)

Plans by Designs@M:

Job No. 12-106:

DA00; DA01 issue L; DA02 issue L; DA03 issue L; DA04 issue L; DA05 issue L; DA06 issue L; DA07 issue L; DA08 issue L; DA09 issue L; DA10 issue L; DA11 issue L; DA12 issue L; DA13 issue L; DA14 issue L; DA15 issue L; DA16 issue L; DA17 issue L

(16 Sheets)

One materials board

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

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

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

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

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

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

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

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(4) A heritage interpretation plan shall be prepared for the subject site by a suitably qualified heritage consultant in accordance with NSW Heritage Council guidelines and standard heritage practices. The heritage interpretation plan shall provide such things as murals, memory boards and interpretation signs relating to the historic uses of the land. The heritage interpretation plan shall be submitted to Council’s Manager Development Assessments for approval prior to the issue of a Construction Certificate.

(5) As a minimum trees are to be planted along both the northern and southern boundaries within the subject land. The tree plantings are to commence at a point 6m from the front boundary and extend the entire respective boundary to the rear of the site spaced at approximately 4m centres. The selected tree species shall be of a columnar shape and have a mature height of at least 6m. A landscape plan showing the selected landscaping shall be prepared by a suitably qualified landscape architect. The plan shall be submitted to and approved by Council’s Manager Development Assessments prior to the issue of a Construction Certificate.

(6) The payment of $231,172.80 shall be made to Council in accordance with Section 7.11 of the Act and Orange Car Parking Development Contributions Plan 2015 in lieu of the physical provision of adequate on-site car parking spaces.

PAYMENT MUST BE MADE PRIOR TO THE ISSUE OF ANY CERTIFICATE under part 4A of the Act.

The contribution shall be indexed quarterly in accordance with the Orange Car Parking Development Contributions Plan 2015, which may be inspected at the Orange Civic Centre, Byng Street, Orange.

(7) All glazing on the uppermost habitable level of the motel shall be installed with a grey tint to the glazing.

The exterior wall cladding of the uppermost habitable level of the motel shall be clad in light weight metal cladding such as standing seam or similar and be coloured Colorbond woodland grey or similar.

Amended plans showing the above detail shall be submitted to and approved by Council’s Manager Development Assessments prior to the issue of a Construction Certificate.

(8) All plumbing and services beneath the first floor (ceiling of ground level) that are visible from any public place or adjoining property shall be fully concealed by a soffit and perimeter bulkhead. The height of the soffit / depth of the bulkhead shall not restrict servicing vehicles from traversing the site. Details showing the required soffit and perimeter bulkhead shall be shown on the plans submitted with an application for a Construction Certificate.

(9) 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 alterations to water and sewer. No plumbing and drainage is to commence until approval is granted.

(10) Detailed plans and specifications are to be provided specifying the proposed fitout of the food preparation and storage areas in accordance with the requirements of Australian Standard 4674-2004 "Design and construction and fitout of food premises" and Standard 3.2.3 "Food Premises and Equipment" of the Australian New Zealand Food Standards Code.

(11) The applicant is to submit a waste management plan that describes the nature of wastes to be removed, the wastes to be recycled and the destination of all wastes. All wastes from the demolition and construction phases of this project are to be deposited at a licensed or approved waste disposal site.

(12) Prior to the issue of a Construction Certificate, the applicant is to obtain an approval under Section 68 of the Local Government Act for the temporary closure of any footpath or roadway. A pedestrian/vehicle management plan is to accompany the application. Details are to be provided of the protective hoardings, fences and lighting that are to be used during demolition, excavation and building works in accordance with the requirements of the Occupational Health & Safety Act 2000, Australian Standard AS3798-1996 (Guidelines on Earthworks for Commercial and Residential Developments) and the SafeWork NSW.

Note: On corner properties particular attention is to be given to the provision of adequate sight distances.

(13) Engineering plans providing complete details of the proposed driveway and car parking areas are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) upon application for a Construction Certificate. These plans are to provide details of levels, cross falls of all pavements, proposed sealing materials, proposed drainage works, line marking and signage and are to be in accordance with Orange City Council Development and Subdivision Code.

Any side boundary fence within 4.0m of the Lords Place front boundary shall be either limited in height to 1.0m or constructed as an open palisade style to provide drivers of vehicles exiting the carpark with sufficient sight distance to pedestrians on the footpath. Details of this fencing shall be provided with the carpark plan.

(14) All stormwater from the site is to be collected and piped to the existing street drainage system in Lords Place. The existing stormwater drainage pipes in Lords Place shall be extended to a suitable location on the street frontage and terminating in a junction pit. Prior to a Construction Certificate being issued engineering plans for this drainage system are to be submitted to and approved by Orange City Council.

(15) The existing 150mm-diameter sewer main and sewer manhole on the northern boundary serving Lot 1 DP 606873 is to be re-constructed for the full length of the line. The existing sewer main located under the proposed building shall be reconstructed from the manhole located on the northern boundary of 247 Lords Place to the manhole located on 241 Lords Place. The proposed building shall connect directly to the existing sewer manhole on the northern boundary. Prior to a Construction Certificate being issued engineering plans for this sewerage system are to be submitted to and approved by Orange City Council.

(16) A Liquid Trade Waste Application is to be submitted to Orange City Council prior to the issuing of a Construction 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.

(17) Payment of contributions for water, sewer and drainage works is required to be made at the contribution rate applicable at the time that the payment is made. The contributions are based on 20.90 ETs for water supply headworks and 29.75 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.

(18) 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.

(19) The development’s stormwater design is to include stormwater detention 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/DRAINS 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 upon application for a Construction Certificate.

(20) Backflow Prevention Devices are to be installed to AS3500 and in accordance with Orange City Council Backflow Protection Guidelines. Details of the Backflow Prevention Devices are to be submitted to Orange City Council prior to the issuing of a Construction Certificate.

(21) Prior to the issue of a Construction Certificate the applicant shall pay Orange City Council to undertake the following works:

· Reline the existing 150mm diameter sewer line located under the proposed building from the manhole located on the northern boundary of 247 Lords Place to the manhole located on 241 Lords Place; and

· Construct a new sewer junction into the manhole on the northern boundary.

Evidence of payment for the above works will be required to be submitted to the Principal Certifying Authority prior to the issue of a Construction Certificate.

PRIOR TO WORKS COMMENCING

(22) A full heritage archival recording of the existing Mid-city Motor Lodge (former Belair Motel) shall be undertaken prior to works commencing on the land. The archival recording of the buildings on the land are to be undertaken for the development in accordance with the guidelines and standards prepared by the NSW Heritage Division and Council's "Guidelines for Photographic Recording of Heritage Buildings and Sites"

(23) Prior to works commencing on the land a Construction (and Demolition) Noise and Vibration Management Plan shall be prepared for the development. The Construction (and Demolition) Noise and Vibration Management Plan shall provide measures to mitigate noise and vibration levels at nearby receivers during the demolition and construction phases of the development. The plan shall comply with the NSW Interim Construction Noise Guidelines. The plan shall also detail the consultation processes that will be undertaken with adjoining owners and also provide details of the complaints register protocols.

The Construction (and Demolition) Noise and Vibration Management Plan shall be submitted to and approved by Council’s Manager Development Assessments prior to works commencing on the land.

The terms of the Construction (and Demolition) Noise and Vibration Management Plan shall be adhered to during the entire demolition and construction phase of the development.

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

(25) 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.

(26) 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.

(27) A dilapidation report prepared by a suitably qualified engineer is to be submitted to Council addressing the current condition of the buildings that are adjoining the development site, and also the existing building that is to remain as part of this development.

DURING CONSTRUCTION/SITEWORKS

(28) If Aboriginal objects, relics, or other historical items or the like are located during development works, all works in the area of the identified object, relic or item shall cease, and the NSW Office of Environment and Heritage (OEH), and representatives from the Orange Local Aboriginal Land Council shall be notified. Where required, further archaeological investigation shall be undertaken. Development works in the area of the find(s) may recommence if and when outlined by the management strategy, developed in consultation with and approved by the OEH.

(29) In the event of an unexpected find during works such as (but not limited to) the presence of undocumented waste, odorous or stained soil, asbestos, structures such as underground storage tanks, slabs, or any contaminated or suspect material, all work on site must cease immediately. The beneficiary of the consent must discuss with Council the appropriate process that should be followed therein. Works on site must not resume unless the express permission of the Director Development Services is obtained in writing.

(30) 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.

(31) 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.

(32) Building demolition is to be carried out in accordance with Australian Standard 2601:2001 - The Demolition of Structures and the requirements of Safe Work NSW.

(33) Asbestos containing building materials must be removed in accordance with the provisions of the Work Health and Safety Act 2011 and any guidelines or Codes of Practice published by Safe Work NSW, and disposed of at a licenced landfill in accordance with the requirements of the NSW EPA.

(34) The fit-out of the food preparation and storage areas are to be installed in accordance with the requirements of Food Safety Standard 3.2.3 "Food Premises and Equipment" of the Australian New Zealand Food Standards Code and Australian Standard 4674-2004 "Design and construction and fit-out of food premises".

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

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

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

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

(38) 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.

(39) Heavy-duty concrete kerb and gutter laybacks and footpath crossings are to be constructed for the entrances to the proposed development. The location and construction of the laybacks and footpath crossings are to be as required by the Orange City Council Development and Subdivision Code.

(40) The existing kerb and gutter laybacks that are not proposed to be used are to be replaced with standard concrete kerb and gutter and the concrete footpath reinstated to the requirements in the Orange City Council Development and Subdivision Code.

(41) The existing 150mm diameter sewer mains that cross the site are to be accurately located. Where the mains are positioned under or adjacent to any proposed building work, measures are to be taken in accordance with Orange City Council Policy - Building over and/or adjacent to sewers ST009.

(42) The water and sewerage services to the existing building, where they are not proposed to be used as part of this development, are to be sealed off at their respective Council mains.

(43) The two (2) street lights on the Lords Place frontage shall be relocated at least 1.0m clear of all driveways.

(44) The finished floor level of the ground floor of the proposed building shall be a minimum of RL 860.79m on Australian Height Datum.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(45) 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.

For the avoidance of doubt the tandem/valet arrangement is approved for those circumstances where the occupancy of the motel exceeds 75% of the capacity of the motel.

(46) Mirrors shall be installed within the rear corners of the car park to allow safe passage of vehicles and pedestrians. The mirrors shall be installed prior to the issue of a final Occupation Certificate.

(47) 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.

(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) 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.

(50) Prior to the issue of a final Occupation Certificate, all necessary arrangements shall be made with Essential Energy to have the underground electrical supply line at the rear of the property contained within an easement and the appropriate title documents for the subject land noting such. The width of the easement shall be in accordance with Essential Energy’s requirements. At the same time as the easement is being created all existing redundant underground power lines within the site should be appropriately decommissioned and if necessary, any superfluous easements should be extinguished.

(51) A tandem/valet parking arrangement management plan shall be prepared prior to the issue of a final Occupation Certificate. The tandem / valet parking arrangement management plan shall outline the circumstances when the arrangement will be implemented (being at those times that the motel reaches occupancy levels of 75% or more); and what procedures will be in place in terms of staffing to park vehicles, controls to prevent access to the car park of guests, arrangements for guests to access their vehicles upon departure, etc. The tandem / valet parking arrangement management plan shall be submitted to Council’s Manager Development Assessments for approval prior to the issue of a final Occupation Certificate.

(52) Clear directional signage within the car park shall be installed which identifies the entry and exists and states that the ‘car park is strictly motel patrons only’. Suitable way-finding signage shall be installed within the development identifying the reception, entry, lift locations etc.

(53) 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 existing sewer mains. Evidence that the easement has been registered is to be submitted to the Principal Certifying Authority prior to issuing of an Occupation Certificate.

(54) 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.

(55) 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, works on public roads, 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, and that Council will take ownership of the infrastructure assets.

(56) Certificates for testable Backflow Prevention Devices are to be submitted to Orange City Council by a plumber with backflow qualifications prior to the issue of an Occupation Certificate.

(57) The approved heritage interpretation plan shall be fully implemented prior to the issue of a final occupation certificate.

(58) A minimum of 6 bicycle parking spaces shall be provided upon the site in a manner that does not impact vehicle circulation or parking spaces. The bicycle parking shall be in accordance with the relevant Australian Standard.

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

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(60) Outdoor lighting must be in accordance with the Australian Standard 4282-1997 Control of the obtrusive effects of outdoor lighting.

(61) This approval does not provide approval for any business identification signage within the site. For the avoidance of doubt, the signage displayed on top of the building is for illustrative purposes only and is not approved. A separate application for all signage that requires consent will be required.

(62) The approved tandem/valet parking arrangement management plan shall be enacted at times when the motel occupancy rates are at 75% of capacity or more.

(63) A CCTV network shall be installed within all public areas of the motel and car park areas and be appropriately illuminated so as to improve the quality of the images recorded on the CCTV network. The CCTV network shall be able to be monitored by front of house staff. The vision captured shall be stored for at least 72 hours and be capable of being made available to NSW Police if required.

(64) All access to staff areas or other non-public areas shall be controlled by door locks with pin code or swipe card access to restrict access to authorised persons only. However, doing should not conflict with any fire safety measures.

(65) Glare from internal lighting is not permitted to extend beyond the limits of the building authorised by this approval.

(66) 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.

REQUIREMENTS OF ESSENTIAL ENERGY

(1) If the proposed development changes, there may be potential safety risks and it is recommended that Essential Energy is consulted for further comment.

(2) Any existing encumbrances in favour of Essential Energy (or its predecessors) noted on the title of the above property should be complied with.

(3) In addition, Essential Energy’s records indicate there is electricity infrastructure located within the property. Any activities within this location must be undertaken in accordance with the latest industry guideline currently known as ISSC 20 Guideline for the Management of Activities within Electricity Easements and Close to Infrastructure. Approval may be required from Essential Energy should activities within the property encroach on the electricity infrastructure.

(4) Prior to carrying out any works, a “Dial Before You Dig” enquiry should be undertaken in accordance with the requirements of Part 5E (Protection of Underground Electricity Power Lines) of the Electricity Supply Act 1995 (NSW).

(5) Given there is electricity infrastructure in the area, it is the responsibility of the person/s completing any works around powerlines to understand their safety responsibilities. SafeWork NSW (www.safework.nsw.gov.au) has publications that provide guidance when working close to electricity infrastructure. These include the Code of Practice – Work near Overhead Power Lines and Code of Practice – Work near Underground Assets.

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 8.7 of the Environmental Planning and Assessment Act 1979 gives you the right to appeal to the Land and Environment Court. Pursuant to Section 8.10, an applicant may only appeal within 6 months after the date the decision is notified.

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 of the Conveyancing Act 1919 - 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:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	18 October 2018

Extraordinary Planning and Development Committee 17 October 2018

2.3 Development Application DA 33/2018(1) - 4613 Mitchell Highway, Lucknow

RECORD NUMBER: 2018/2390

AUTHOR: Michael Glenn, Senior Planner

EXECUTIVE Summary

Application lodged	12 February 2018
Applicant/s	Brothers Three Pty Ltd
Owner/s	Brothers Three Pty Ltd
Land description	Lot 101 DP 1053642 - 4613 Mitchell Highway, Lucknow
Proposed land use	Demolition (existing service station), Service Station (includes sales building, fuel dispensing canopy, underground fuel tanks, 24/7 operation), and Business and Site Identification Signs
Value of proposed development	$1,395,000

Council's consent is sought for the demolition of an existing service station and construction of a service station with small convenience store and signs on the subject property. The application is seeking approval to operate on a 24 hour basis. The application has been referred to Council because unresolved submissions have been received for the application.

This application has been delayed because amendments were required to address RMS issues, and also to address heritage and streetscape considerations. The subject property is located on a classified road, requiring the concurrence of the RMS for the proposal. The RMS has now provided its concurrence, subject to a vehicle size limit of 12.5m (equating to a large rigid vehicle) for vehicles other than the delivery vehicle.

The amended proposal lacks effective landscaping, and there are also potential conflicts between pedestrians using the footway and vehicles that tend to park on a concreted verge outside the property. It is reasonable to require the removal of this concreted verge (which does not meet Council’s footpath standards and has not been constructed by Council), and replace it with a footpath that does meet Council’s standards; as well as provide handrails along the boundary and a landscape strip at the edge of the verge, which steps down in a cutting to the level of the highway. The landscaping will assist in maintaining the village character and improving amenity adjacent to the site.

The application involves the removal of the existing underground fuel storage tanks and their replacement with new tanks. Whilst soil testing conducted to this point shows no signs of broad scale contamination of the site, further tests will be required upon removal of the existing tanks to determine if contaminants have coagulated underneath them. In the event that such testing reveals contamination levels that exceed the relevant guidelines (UPSS guidelines), Category 1 remediation (ie remediation that requires further development consent) will be required. This arises due to the environmental sensitivity affecting the subject site, a product of the high water table and the location of the site within a heritage conservation area and the water supply catchment. A condition to address this issue is included in the consent.

Submissions have raised a number of concerns which in general have not been addressed in the applicant responses. The most important issue of concern to the local residents is the 24 hour operation of the development. The applicant has submitted a noise report that suggests a twenty four operation would be acceptable from a noise amenity point of view, but has not addressed light glare or how the proposed 24 hour operation might affect the general village character. It is considered that a twenty four hour operation has a high probability of causing significant nuisance to the local residents, and will have difficulty meeting or reinforcing the objectives of the village zone, where mixed residential and commercial land uses must be sufficiently benign to achieve reasonable co-existence. It is considered that 24 hour operation would not be reinforcing of that objective. The applicant has by late submission indicated that they would be prepared to accept a limit in the hours running from 5am to 12 midnight, but for the current proposal, the configuration remains a 24 hour operation (they have not formally amended the proposal to reflect their revised hours). It is on the basis of a 24 hour operation that this assessment is carried out. However for either of the applicants suggested hours, the impacts on character and amenity is considered to be excessively adverse. As a result, the consent includes a restriction on the hours to 7am to 10pm, seven days per week (which essentially relate to a daytime use).

It is recommended that Council supports the subject proposal subject to the conditions included in the attached Notice of Determination.

Figure 1 - locality plan

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

DIRECTOR’S COMMENT

This development application sees the revamp of the existing service station in Lucknow. Staff and the Heritage Advisor have worked with the applicant to lift the building design. Notwithstanding, access issues have been a concern throughout and are of concern to the neighbouring property owners. Staff do not support a 24 hour operation as the Village zoning mandates that development needs to enhance and maintain the unique village character of Lucknow and Spring Hill. The current operation is not 24 hours. The recommendation is to allow a 7am to 10pm opening regime.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to issue a consent to development application DA 33/2018(1) for Demolition (existing service station), Service Station (includes sales building, fuel dispensing canopy, underground fuel tanks), and Business and Site Identification Signs at Lot 101 DP 1053642 - 4613 Mitchell Highway, Lucknow pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought for the demolition of the existing service station including the removal of tanks and associated infrastructure and the construction and operation of a replacement service station with neighbourhood shop. Business identification signage is also proposed. The applicant proposes to operate the facility on a 24 hour basis. To facilitate the development on a level site, it is proposed to undertake some site regrading and construct retaining walls.

MATTERS FOR CONSIDERATION

Section 1.7 - Application of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994

Development Applications lodged prior to 25 February 2018

Section 4.15

Section 4.15 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 s4.15(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,

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

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

The application is considered to be consistent with aims (b) and (c) as listed above. With respect to (a), changes are required as recommended by conditions in the consent to ensure the DA has outcomes that are sympathetic to the achievement of reasonable character. This matter is discussed in detail later in this report. With regard to (f), conditions are included regarding the architectural detail, protection of landscape , signage impact and certain other issues that will result in the responsible management of the environmental, heritage and scenic landscape setting of the development.

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 1.7 - Mapping

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

Land Zoning Map:	Land zoned RU5 Village
Lot Size Map:	Minimum Lot Size 1,000m²
Heritage Map:	Located in a heritage 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:	Groundwater vulnerable
Drinking Water Catchment Map:	Within a 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
Flood Planning Map:	Not within/within a flood planning area

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Part 2 - Permitted or Prohibited Development

Clause 2.1 - Land Use Zones and Clause 2.3 - Zone Objectives and Land Use Table

The subject site is located within the RU5 Village zone. The proposed development is defined as a Service Station under OLEP 2011 and is permitted with consent for this zone. This application is seeking consent.

“Service Station” is defined under the LEP as

“a building or place used for the sale by retail of fuels and lubricants for motor vehicles, whether or not the building or place is also used for any one or more of the following:

(a) the ancillary sale by retail of spare parts and accessories for motor vehicles,

(b) the cleaning of motor vehicles,

(c) installation of accessories,

(d) inspecting, repairing and servicing of motor vehicles (other than body building, panel beating, spray painting, or chassis restoration),

(e) the ancillary retail selling or hiring of general merchandise or services or both.

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned RU5 Village are as follows:

1 - Objectives of the RU5 Village Zone

· To provide for a range of land uses, services and facilities that are associated with a rural village.

· To enhance and maintain the unique village character of Lucknow and Spring Hill.

In general, the proposed development is considered to be consistent to the zone objectives. However, the proposed 24 hour operation would, if carried out, create land use conflicts with other existing permissible land uses, namely the residential development within the village. The village zone contains a fairly wide range of permissible land uses, but this does not mean that inherent conflicts should be left unconsidered. Whilst the subject development is located on the Mitchell Highway the 24 hour operation of a development is considered to be inconsistent with the general village character of Lucknow. Hence, as alluded to elsewhere in this report it is recommended that the hours of operation be limited to 7.00am to 10.00pm to be more in keeping with the village character in this case.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work. This requirement does not apply to any demolition that is defined as exempt development.

The proposal involves demolition and the applicant is seeking the consent of council. The demolition works proposed will have no significant impact on adjoining lands, streetscape or public realm.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size

There is a minimum lot size applicable to the subject property, however this control is only relevant to applications involving subdivision. Subdivision does not form part of the subject application.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

The subject property is located within the Lucknow Heritage Conservation Area. The original submitted plans called for a flat roofed modern style building with canopy, as well as standard corporate signage.

Figure 2 - preliminary south-eastern elevation

Figure 3 - preliminary north-eastern elevation

The initial plans were referred to Council’s Heritage Advisor who provided a generally negative response:

The issues raised in the DCP to the design of new development – Design of new development should complement heritage character. This can be achieved in three ways:

· Restoration works that return the building to its original form and style.

· Respectful Design: A “low key design approach where heritage building forms, proportions and materials are applied but reproduction of decorative work and detailing is avoided the design should demonstrate that it is a contemporary building whilst respecting the surrounding heritage setting.

· Interpretative Design: Forms and proportions that relate to but do not reproduce heritage features. Good modern architecture is favoured that fits in to the heritage setting

Comment: The proposal is a standard flat roofed building with glazing to the south eastern elevation on the hardstand forecourt and a solid light grey clad wall to the other predominant elevation to the road (the NE elevation). The fascia’s surrounding the roof are standard corporate colours and graphics. The roof is zincalume steel which is not supported in conservation areas. There are no indications on the drawings that the heritage design principals in the form of respectful design or Interpretative design.

Issues: The following checklist is the analytical process established under the key reference document (“Design In context’) and should guide the preferred form of development in this location.

· Character: While recent lack of guidance means very limited character, the ethos is traditional and heritage related with pitched roofs and traditional box built forms with pitched roofs. Several post buildings utilised skillion roofs. There are variable setbacks to accord with vehicle related uses.

· Scale: Single storey buildings with heights that come from traditional roofs

· Form: traditional forms which are often extended either as extrusions or pavilions.

· Siting: the core area has closer setbacks near the roads while residential land has garden setbacks.

· Materials and Colour: There is a predominance of light weight cladding to the core earlier buildings such as timber and tin/steel and later structures in masonry. Generally the colours are lighter as opposed to dark. Tree planting relates to larger trees left over from earlier residential uses and larger lots while commercial uses have generally seen them removed.

· Detailing: Traditional detailing predominates including verandahs awnings and chimneys

There are no flat roofed buildings in the vicinity. The similar buildings such as the skin shop have skillion roofs while the Fat Ladies and the adjoining hotel have traditional pitched roofs.

The Lucknow Strategy developed in 2014 as the Lucknow Scoping Study provides the following guidance for future development and public works:

1 New buildings are to be fine grained and relate to the scale of the existing built forms

2 A sample palette of contemporary materials and forms includes iron, stone recycled timber and muted colours with hipped roofs and verandahs

Recommendations

The applicant submitted amended plans 29 May 2018, along with a written response in support, which are now the subject of this assessment:

1 The fuelling canopy be provided with a hipped pitched roof with 25 deg pitch slope clad in colorbond windspray or basalt and set above the line of the proposed fascias.

2 The fascias shall be horizontal metallic colorbond Astro or similar without the Metro corporate colour

3 The Metro Corporate sign panel shown on the SE Elevation shall be mounted on a framed element to interpret a verandah in a contemporary style with a pair of circular steel columns

4 The cladding to the NE elevation is run horizontally to interpret the local vernacular

5 A full height window is to be inserted into the NE elevation between the cigarette display and office doors

6 The Service building/Convenience store be provided with a similar hipped 25

degree pitched roof

7 All perimeter fencing to be traditional cyclone open mesh type and not colorbond or solid fencing to allow the landscape to be expressed and visually dominate the surrounds

8 All concrete hardstand is to be through coloured using oxide to achieve a dark grey equal to CCS stallion

9 The concrete blockwork on the convenience store shall be clad in horizontal colorbond basalt and not painted to reflect the local vernacular.

10 The site ID sign shall be limited to a maximum height of 5400mm (planners note: it has been submitted as a 6m high structure) or equal to the height of the fuelling canopy to ensure the sign element does not visually dominate the setting and affect other business identification elements, signs and graphics. The base of the sign shall be clad in local stone similar to basalt to the level of the bottom price indicator and replacing the ATM graphic which is redundant.

11 A professionally prepared landscape plan is required to specify the planting to the SW side and northern corner.

12 All lighting in the soffit of the fuelling canopy and the convenience building is to be fully recessed to reduce glare

13 Although internally illuminated graphics are not supported in conservation areas, subject to agreement with the above, the internal signage components for signs under this application will be acceptable (planners note; the applicant did not fully accept all of the heritage advisers recommendations).

Council’s Heritage Advisor provided the following conceptual sketches which were passed on to the applicant prior to the submission of their response.

Figure 4 - heritage recommended amendments

The applicant submitted amended plans on 22 May 2018 which adopted some of the changes sought by the Heritage Advisor and provided additional information in support of varying, or not applying other elements of the initial advice. These amended plans are now the subject of this detailed assessment.

The applicant submitted the following response to the itemised issues raised by the Heritage Advisor:

Issue 1: “This request was deemed unreasonable and addressed by a previous email (sent 04/04/2018) where it was advised that a proposed pitched roof would not be seen when close by on the Mitchell Highway due to the difference in levels and the original proposal would suffice in this instance without disrupting the local character that is trying to be achieved within the Lucknow Scoping Study. On Council’s follow up email on 03/05/2018 it was advised that this would be acceptable provided the sales building signage was modified to not disrupt the form of the proposed pitched roof. This is reflected on the revised Architectural drawings accompanying this application and addressed further below”.

The applicant’s position is accepted; however the refusal to provide a canopy with pitched roof has implications on the assessment of heights for the proposed pylon sign.

Issue 2: “As discussed in a previous response (sent 04/04/2018) it was seen as an unreasonable request to remove Metro corporate colours which are featured throughout all of their service stations Australia wide. We do not believe the request to remove Metro branding would enhance the local character and would make navigation more difficult. It is also believed that the inclusion of the Metro petroleum corporate colours would not detract from the preferred streetscape the Lucknow Scoping Study is trying to promote.

The Heritage Advisor comments were revised and amended as a result of this submission and further negotiations with the applicant.

Issue 3: “This element has been included on the updated Architectural drawings accompanying this application and provides a sympathetic entry statement and allows for a good visual navigation element as well as staying in keeping with the local character the Lucknow Scoping Study has alluded to”.

The Heritage Advisor and the applicant’s architect have reached agreement with respect to this issue.

Issue 4: “The proposed façade treatment has been amended to show a horizontal treatment as requested by Council. The exact nature of this cladding will form part of a future Construction Certificate application”.

A precautionary condition that ensures this amendment is implemented is included in the consent.

Issue 5: The requested full height glazing has been included on the updated Architectural drawings accompanying this application. Security issues will be looked at as part of a future Construction Certificate application.

A condition ensuring that this element is included in the building is attached to the consent.

Issue 6: “As addressed in previous correspondence (sent 04/04/2018) and also shown on the updated elevation drawings & 3D views accompanying this application the service building has been modified to show a Dutch gable roof that is in keeping with the local character and is sympathetic to the Lucknow Scoping Study. Council’s follow up email on 03/05/2018 stated the roof pitch needs to be 30 degrees which is now reflected on the amended Architectural drawings accompanying this application”.

There is agreement between the two experts on this issue. A condition specifying a 30 degree pitch is included in the consent.

Issue 7: “The request of Council for an open mesh fence was deemed as not acoustically suitable due to potential noise source disturbances for neighbouring residences. An Acoustic report was undertaken by Rodney Stevens Acoustics and it was deemed that a 1.8m high solid fence is required for noise attenuation to neighbouring residences instead of an open mesh fence as requested by Council. The Acoustic report has been submitted as part of this application. Council’s follow up email on 03/05/2018 declares that if a block wall is required, it needs to be planted with a creeper plant specified by the Landscape Architect. This is depicted on the Landscape Plans accompanying this application”.

The applicant’s position is accepted, however to achieve some level of restraint in the visual presentation of the site, it is considered appropriate to require the Colorbond fencing that faces into the site to be “Shale Grey” to tie-in better with the canopy and other elements of the development.

Issue 8: “As stated in our previous response (sent 04/04/2018) the addition of the dark grey oxide would be an unreasonable request due to the elevated nature of the fuelling area, making the area unobservable to all but those using the facility. The non-oxide concrete will still form a more formal approach to the fuelling area that will not only enhance the current look but will also be supportive of the Lucknow Scoping Study. Council’s follow up email on 03/05/2018 deemed this as acceptable”.

The applicant’s response is accepted on the proviso that the perimeter fencing is finished in a suitably sympathetic colour.

Issue 9: As depicted on the revised elevation drawings accompanying this application, the concrete block walls have been amended to show a horizontal Colorbond ‘basalt’ treatment as requested by Council.

Conditions are included in the consent to ensure this outcome

Issue 10: The site ID element will remain at 6m in height with the ATM signage removed and base of sign clad in local stone as part of the amended drawings accompanying this application. As depicted on the 3D views accompanying this application, the site ID sign doesn’t visually dominate the site. Council’s response email on 03/05/2018 deems this solution acceptable.

There is a large sign erected at the boundary of the property which is approximately 8m high. This sign has no approval from Council and should not be given a great deal of weight in the assessment as a result. The subject land is zoned RU5 Village, which is a mixed use zone but one in which residential development is the dominant land use. The subject property is located within a designated Heritage Conservation Area.

Council’s DCP 2004 contains chapters with controls applicable within the Lucknow village, and further a separate chapter with controls and guidelines for appropriate signage and includes provisions for advertising with possible effects on residential areas. With respect to the controls on signage, DCP 2004 (Chapter 14) the following provisions are applicable:

a) Freestanding or pylon signs relate to the height of associated buildings in

b) Freestanding signs in residential areas are at a personal scale (i.e. about 2m high or less) within a landscaped setting.

Signs within a residential context have further generally been required to be set back to the building line. The character assessments by the applicant have not taken these underlying character and land use observations into account in their signage assessments.

The building heights are considered the more appropriate surrogate measure to apply in determining the correct sign height. The convenience store proposes a wall height of 4.2m and is immediately set behind the proposed sign, whilst the awning proposes a height of 5.4m but is closer to the street frontage than the store. The proposed pylon sign is forward of these structures by approximately 4m (from the front of the convenience store) and 2m (from the front of the awning). It is not practicable to set the pylon sign further back because of the obstruction caused by the existing adjoining building to the west of the site.

With a height of 6m and a zero setback from the front boundary, it can be expected that the sign would be out of scale with the buildings nearby.

In his initial advice Council’s Heritage Advisor recommended a height comparable to the proposed awning. Under the circumstances this would appear the more appropriate standard to apply. It would result in a 10% reduction in height for the sign compared to what the applicant wants, but should pull the massing and scale of the sign back to a bulk and height that relates to the associated buildings. Attached is a condition of consent addressing this issue.

Issue 11: “A professional landscape design has been undertaken by Taylor Brammer and is included with this application. It specifies the planting to the SW & SE boundaries and northern corner. The design enables an easily maintained natural element to the project. Council’s follow up email on 03/05/2018 declares that if a block wall is required, it needs to be planted with a creeper plant specified by the Landscape Architect. This is depicted on the Landscape Plans accompanying this application”.

The applicant has submitted a landscaping plan, but the densities, planting areas and plant selections are inadequate and/or inappropriate. The consulting landscape designer is known to have landscaping experience, but this particular plan is unsuited to the site conditions. The principal plantings are centred on six trees, of the following species:

Backhousia citriodora (common names lemon myrtle, lemon scented myrtle, lemon scented ironwood): Two specimens proposed. A cultivated ornamental plant theoretically capable of a mature height of 6m, but in practice more usually 3m. It can be grown from tropical to warm temperate climates, and may handle cooler districts provided it can be protected from frost when young. It is unsuitable to the local growing conditions because of this.

Backhousia myrtifolia (common names include carrol, carrol ironwood, neverbreak, ironwood or grey myrtle, Australian lancewood and Cinnamon myrtle): Two specimens proposed. This specimen is a rainforest tree species which grows in subtropical rainforests of Eastern Australia and is known to reach a mature height of over 30m. It is unsuitable for this site because the species is not frost tolerant and the expected height cannot be supported on such a small sized lot.

Melaleuca leucadendra, (common names weeping paperbark, long-leaved paperbark or white paperbark): Two specimens are proposed. This is widespread in northern Australia, South East Asia and New Guinea. It is a tree with an expected mature height in excess of 20 m. Although it will withstand some frost, it is not recommended for cold areas such as mountainous regions or Tasmania. It will grow well in most other areas.

Clearly the species selection is inappropriate. Further, it is considered appropriate for a landscaping strip to be installed in the currently concreted verge area to a bed width not less than 1.5m and incorporating tree plantings that are suited to local climate and growing conditions, and able to achieve a minimum height of 4m. This landscape strip shall be provided on the southern side of the pavement, just above the cutting that steps down to the Mitchel Highway. Attached is a recommended condition of consent addressing this issue.

Issue 12: All lighting within the fuel canopy will be fully recessed to reduce glare as stated in our email response (sent 04/04/2018).

Noted. Conditions to ensure compliance are included in the consent.

Issue 13: The majority of requests of Council have been updated on our drawings accompanying this application and although there is a small amount of internally illuminated signage we believe they work well within the desires of Council and the Lucknow Scoping Study in providing easily navigable streetscape and also easily recognised landmark to the entry of Lucknow.

On planning grounds, it is considered the applicant’s discussion so as to allow internal illumination whilst the business is trading is reasonable. However, at times when the business is not trading it is considered appropriate to require internal lighting, except that needed for security and safety purposes, to be switched off during the overnight period. A condition relating to the ongoing performance standards is included to ensure compliance with this outcome.

Heritage Advisor’s Final Advice (received 1 June 2018)

“I have reviewed the current revised drawings and agree on the conditional approach as they have met or negotiated all of the issues and recommendations made.

On the conditions, you may be wise still to write in some of the items which have been agreed but are not specified on the drawings:

· All blockwork walls are to be fully concealed on all exposed surfaces by planting in the form of a creeper specified by the landscape consultant with appropriate planting media, watering and the means of adhering to the subject walls;

· All lighting to the soffit of the fuelling canopy is to be fully recessed from the soffit surface;

· The soffit to the fuelling canopy is to be equal to the Colorbond standard custom orb profile in Shale Grey

· The colour of the gable infills is to be Windspray”

The supplementary advice by the Heritage Advisor reinforces certain issues, but does not eliminate the original concerns. Conditions are included to address these final heritage matters. In addition to these formal responses, the Heritage Advisor is strongly supportive of additional landscaping along the frontage.

Part 7 - Additional Local Provisions

7.1 - Earthworks

This clause establishes a range of matters that must be considered prior to granting development consent for any application involving earthworks, such as:

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development

(b) the effect of the development on the likely future use or redevelopment of the land

(c) the quality of the fill or the soil to be excavated, or both

(d) the effect of the development on the existing and likely amenity of adjoining properties

(e) the source of any fill material and the destination of any excavated material

(f) the likelihood of disturbing relics

(g) the proximity to and potential for adverse impacts on any waterway, drinking water catchment or environmentally sensitive area

(h) any measures proposed to minimise or mitigate the impacts referred to in paragraph (g).

The earthworks proposed within the application are considered ancillary to the principle development. There are significant earthworks proposed along the southern shared boundary, with an existing sloped batter to be replaced by a retaining wall approximately 1.3m high. Removal of the batter will require excavations at the base of the batter to approximately 3m past its present position to allow the retaining wall to be installed at the boundary. This will require conditions to address the structural adequacy of the retaining wall, as well as ensuring that such works minimise the damage to the adjoining (southern) neighbour’s landscaping.

The proposed earthworks also envisage the removal of the existing underground storage tanks. Other earthworks proposed in the application relate primarily to the grading and filling of the site to provide a more level area for vehicles to utilise the development. The extent of cut/fill required is approximately 300-500mm. The extent of earthworks and the degree of disruption to the drainage of the site are considered to be minor and will not detrimentally affect adjoining properties or receiving waterways.

The site is not known to contain any Aboriginal objects, or European or archaeological relics. Previous known uses of the site do not suggest that any object or relics are likely to be uncovered. The site is not in proximity to any waterway, drinking water catchment or sensitive area. Notwithstanding this, conditions are imposed that require a sediment control plan, including silt traps and other protective measures, to ensure that loose dirt and sediment do not escape the site boundaries.

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

Council’s Technical Services Division has assessed the development in regards to stormwater. Relevant conditions are attached to ensure that the post-development run-off levels do not exceed pre-development levels.

7.6 - Groundwater Vulnerability

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

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

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

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

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

7.7 - Drinking Water Catchments

(1) The objective of this clause is to protect drinking water catchments by minimising the adverse impacts of development on the quality and quantity of water entering drinking water storages.

(2) This clause applies to land identified as “Drinking water” on the Drinking Water Catchment Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider whether or not the development is likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to:

(a) the distance between the development and any waterway that feeds into the drinking water storage, and

(b) the onsite use, storage and disposal of any chemicals on the land, and

(c) the treatment, storage and disposal of waste water and solid waste generated or used by the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

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

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

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

The subject property is located within the City water supply catchment, and the discharge or release of contaminated or unsafe runoff to the catchment tributaries of the town water supply is a matter for concern since the site is relatively close to such water supply watercourses. It is considered that the risks posed by contaminants, particulates or bacterial water can be managed by standard erosion and sediment control, and water quality control measures, and that such risks as may arise are not excessive. It is considered that the effects arising from the proposed development do not pose a significant risk to public health if contained in the manner set out in the application and the attached consent.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) is applicable. Pursuant to Clause 7 Contamination and remediation to be considered in determining development application:

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

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

Under Clause 7 of the SEPP, Council must consider whether the land is contaminated and if the land requires any form of remediation to render it suitable for the purpose for which it is proposed to be used. The previous land uses must be considered, along with any visible or tangible evidence on the site.

The subject property has for many years been used as a service station and convenience store (it is believed that this use extends back to 1947), which acts as a trigger for a preliminary contamination assessment under Council’s draft remediation strategy. The structure of Council's contamination strategy can be found in the quick reference guide produced by Contamination Central at the time of the adoption of the draft policy, and should be used in the assessment of the preliminary site investigation, which the applicant has completed and submitted as part of the application. The submitted report is by NEO Consulting).

There is a flowchart that sets out the procedures when receiving new development applications.

This flow chart is reproduced below:

Figure 5 - development assessment flowchart

Initial Evaluation - matters for consideration

Figure 6 - determining if the property is on the Contaminated Lands Information System (CLIS)

The subject land is not on Council’s local CLIS (contaminated lands register). It is not recorded on the EPA register as being contaminated. The Consultant is silent on whether the site is on a contamination register.

Figure 7 - checking previous reports

There are no reports on the CLIS relevant to this matter. The consultant’s report does not mention any reports or notations on adjoining land.

Figure 8 - site inspections

Site inspections have been carried out by both staff and the applicant’s consultant. Potential sources of contamination on the site were identified as the forecourt and the fuel fill spill box. Petroleum hydrocarbon contamination is possible in delivery, storage and dispensing of fuel and oil products, spills and overflows at refilling, and leakage of underground storage tanks due to corrosion and leakages of feeder lines due to pipe work failures. Contamination is possible from fuel spills and overflows at the time of refilling and pump dispensing.

Potential contaminants include:

· unleaded petrol - detected by laboratory analysis of TRH (C6-C40) and BTEX

· leaded petrol - detected by laboratory analysis of lead TRH (C6-C40) and BTEX

· diesel - detected by laboratory analysis of TRH (C10-C40) and naphthalene

· movement of contaminants is possible in the groundwater or underground electricity, stormwater, sewer and telephone services conduits.

Preliminary test results undertaken by the consultant do not show any significant signs of site contamination, however it is noted that at the underground storage tanks have not been removed, rendering it impossible for the consultant to have tested under the tanks (where contamination hotspots most usually occur).

To address this shortcoming in the available information, a condition requiring further soil testing following removal of the tanks with the results being submitted to Council. In the event that contamination is found post removal of the tanks it will be necessary to stop work and seek further consent for Category 1 Remediation given the location of the development within a heritage conservation area.

Figure 9 - site history

A complete site history is unavailable.

The site has been used as a small service station with convenience store for many years. The known development history is not fully known but does include the following:

On 3 August 1989 and application to upgrade and modify the existing service station was refused. In the report to Council at the time the site was described as having been used as a service station since at least 1947. It had been proposed to increase the size of the building and also to increase the number of fuel dispensing points. The application was refused on the grounds of inadequate parking on the site. There was no mention of possible contamination of the site at that time.

DA 02/044, an application to modify the subdivision boundaries, was approved. No mention of possible site contamination was included in the assessment.

Service stations are included in appendix A as a potential contaminating land use.

Analytical Results Summary

Soil analytical results are summarized and compared to the relevant assessment criteria in the consultant’s report as follows:

The reported concentration of Benzene was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria. Toluene - The reported concentration of Toluene was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria.

Ethylbenzene - The reported concentration of Ethylbenzene was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria.

Xylene (total) - The reported concentration of Xylene (total) was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria.

TPH (C6-C10) Less BTEX (F1) - The reported concentration of TPH (C6-C10) Less BTEX (F1) was 110mg/kg, to which was less than the adopted assessment criteria.

TPH (>C10-C16) Less Naphthalene (F2) - The reported concentration of TPH (>C10-C16) Less Naphthalene (F2) was 100mg/kg, to which was less than the adopted assessment criteria.

TPH (>C16-C34)(F3) - The reported concentration of TPH (>C16-C34) was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria.

TPH (>C34-C40)(F4) - The reported concentration of TPH (>C34-C40) was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria.

Naphthalene - The reported concentration of Naphthalene was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria.

Lead - The reported concentration of Lead was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria. Total PAHs - The reported concentration of Total PAHs was less than the laboratory LOR (limit of reporting –detection limit) to which was less than the adopted assessment criteria.

Field observations and analytical results indicate that there was no hydrocarbon impact in soil at the site from sample locations above the adopted assessment guidelines

Conclusion on the need to submit an Environmental Site Assessment

The preliminary site assessment under the Council draft guidelines indicates a need for an ESA. The applicant has responded to this by submitting a report that generally complies with the Contaminated Lands Assessment Guidelines. However, this assessment does not include the area beneath the underground storage tanks.

A condition is included requiring that further testing is required following the removal of those tanks. In the event that no contamination is detected under the tanks, a validation report is required to be submitted to Council. In the event that contamination levels are found in the soils under the tanks, further work on the development would need to stop pending the processing of an application for Category 1 remediation (remediation requiring further consent), followed only then by a further validation report. In the event that no contamination is revealed after the tank removal, the applicant can proceed simply to validation of the site.

State Environmental Planning Policy 33 - Hazardous and Offensive Development

This policy seeks to ensure that the consent authority has sufficient information to assess whether a development is potentially hazardous or offensive, and to impose conditions to reduce or minimise any adverse impacts. The policy sets out the definition of a ‘potentially hazardous industry’ as follows:

a development for the purposes of any industry which, if the development were to operate without employing any measures (including, for example, isolation from existing or likely future development on other land) to reduce or minimise its impact in the locality or on the existing or likely future development on other land, would pose a significant risk in relation to the locality:

(a) to human health, life or property, or

(b) to the biophysical environment,

and includes a hazardous industry and a hazardous storage establishment.

Guidelines titled Applying SEPP 33 Development Application Guidelines and Multi Level Risk Assessment Guidelines are particularly relevant to this application, among others. The applicant has prepared a Multi-Level Risk Assessment and PHA in accordance with these guidelines which concludes that the proposed development is within the risk thresholds set by the supporting guidelines.

The multi risk assessment’s principal recommendation is that all equipment to be installed on the site be installed strictly in accordance with the manufacturer’s specifications. The following conditions are included in the consent as a result of that recommendation:

· All equipment must be installed to manufacturer’s recommendations and must comply with all the relevant standards listed within.

· Specific safety features of the site, as set out in the submitted Preliminary Hazard Analysis (PHA) submitted with the Development Application shall be adhered to strictly at all times. The applicant shall ensure that safety procedures are well posted on the site and shall further ensure that all staff are adequately inducted as to correct safety procedures and protocols as set out in the PHA.

· Prior to the issuing of an Occupational Certificate, the Applicant shall submit to Council documentation demonstrating that the following plans and systems have been developed and implemented:

(a) TRANSPORT OF HAZARDOUS MATERIALS

Arrangements covering the transport of hazardous materials including details of routes to be used for the movement of vehicles carrying hazardous materials to or from the development. The routes selected shall be consistent with the Department of Planning’s Hazardous Industry Planning Advisory Paper No. 11, ‘Route Selection’. Suitable routes identified in the study shall be used except where departures are necessary for local deliveries or emergencies.

(b) EMERGENCY PLAN

A comprehensive Emergency Plan and detailed emergency procedures for the development. The plan shall be consistent with the Department of Planning’s Hazardous Industry Planning Advisory Paper No. 1, ‘Emergency Planning’.

(c) SAFETY MANAGEMENT SYSTEM

A comprehensive Safety Management System, covering all on-site operations and associated transport activities involving hazardous materials. The Safety Management System shall be consistent with the Department of Planning’s Hazardous Industry Planning Advisory Paper No. 9, ‘Safety Management’.

Assessment Guidelines Appendix 6 - Ongoing Acceptability

The guidelines state:

"If, following the assessment of a PHA and other considerations, Council considers that the proposal can proceed, it should consider imposing relevant hazards-related conditions as recommended by the Department. This condition will help ensure the ongoing safety of a potential development."

Not all of the recommended conditions are considered relevant to this situation. It is recommended that the following condition be included to address this issue.

· Twelve (12) months after the commencement of operations of the development, and every three (3) years thereafter, the Applicant shall carry out a comprehensive Hazard Audit of the proposed development consistent with the Department of Planning’s Hazardous Industry Planning Advisory Paper No. 5, ‘Hazard Audit Guidelines’. The audit shall be carried out by a qualified person or team, independent of the development. Compliance documentation shall be submitted to the Council within 28 days from the date of the audit.

State Environmental Planning Policy (Infrastructure) 2007

Development In Or Adjacent To Road Corridors And Road Reservations

The provisions of the SEPP place a requirement to obtain RMS concurrence to this proposal. This was done early in the process, but there were difficulties in getting the RMS to agree to the proposal until changes were made to the access and vehicle queuing arrangements, and restrictions were placed on the size of vehicles fuelling from the site.

By letter dated 28 August 2018, the RMS has granted conditional concurrence to the proposed development. The conditions are included in the draft Notice. RMS preamble in their concurrence letter notes the following main points:

“I refer to an email from Craig Ridgewell from MCHP Architects on 10 August 2018 referring amended plans (Reference 17-077-DA07 and 17-077-DA08) to Roads and Maritime Services and Council for comment. Reference is also made to Roads and Maritime’s previous submission in relation to this proposal dated 19 June 2018 and a telephone conversation between Roads and Maritime’s Andrew McIntyre and Council’s Michael Glenn on 27 August 2018.

Roads and Maritime notes the amended plans show left and right turn treatments on the Mitchell Highway servicing the site and, includes an undertaking by the proponent to restrict access to the site to vehicles 12.5m and below (with one exception, the 19 metre tanker required to refill storage tanks).

Following review of the amended plans, Roads and Maritime, pursuant to clause 104 of State Environmental Planning Policy (Infrastructure) 2007, does not object to the proposed development and provides the following recommendations for Council’s consideration”:

(the recommendations have been included as conditions in the consent)

State Environmental Planning Policy 64 - Advertising and Signage

State Environmental Planning Policy 64 - Advertising and Signage (SEPP 64) is applicable and states in part:

3 Aims, Objectives etc

(1) This Policy aims:

(a) to ensure that signage (including advertising):

(i) is compatible with the desired amenity and visual character of an area, and

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish, and

(8) Granting of Consent to Signage

A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:

(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.

1 - Character of the Area

· Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

· Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

2 - Special Areas

· Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?

3 - Views and Vistas

· Does the proposal obscure or compromise important views?

· Does the proposal dominate the skyline and reduce the quality of vistas?

· Does the proposal respect the viewing rights of other advertisers?

4 - Streetscape, Setting or Landscape

· Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?

· Does the proposal contribute to the visual interest of the streetscape, setting or landscape?

· Does the proposal reduce clutter by rationalising and simplifying existing advertising?

· Does the proposal screen unsightliness?

· Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

· Does the proposal require ongoing vegetation management?

5 - Site and Building

· Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?

· Does the proposal respect important features of the site or building, or both?

· Does the proposal show innovation and imagination in its relationship to the site or building, or both?

6 - Associated Devices and Logos With Advertisements and Advertising Structures

· Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

7 - Illumination

· Would illumination result in unacceptable glare?

· Would illumination affect safety for pedestrians, vehicles or aircraft?

· Would illumination detract from the amenity of any residence or other form of accommodation?

· Can the intensity of the illumination be adjusted, if necessary?

· Is the illumination subject to a curfew?

8 - Safety

· Would the proposal reduce the safety for any public road?

· Would the proposal reduce the safety for pedestrians or bicyclists?

· Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

The proposed signage for the site is limited to two business identification signs, one being a pylon sign at the front of the site with a proposed height of 6m and a zero setback from the frontage, and the other being a flush-mounted wall sign (with some modification following the advice of Council’s Heritage Advisor). Lucknow is zoned RU5 Village, which is a mixed use zone intended and geared towards small scale development, with linkages to rural lands that surround the village. It is neither a fully-fledged commercial precinct nor a fully urban residential precinct. Council’s DCP 2004 includes some character observations in Chapter 7 (Residential Development) for the village of Lucknow, and Chapter 13 (Outdoor Advertising) that provide some guidance on what signage can be considered appropriate, taking into account location, heights and messaging. It is significant and worthwhile to take into consideration the heritage status of the village as well.

There are competing demands applicable to this site in terms of land use patterns and objectives or preferred outcomes. Such competing demands do not suggest or enable a more or less free-hand in signage outcomes. Compromises are needed to try and serve the competing demands of commercial exposure, residential amenity, and scale and heritage, with safety also a matter for consideration. On the one hand the pylon sign is located within a part of the village identified as predominantly commercial in character; but on the other hand the site is bounded on two sides by residential development. There are competing outcomes applicable to each of these “zones”. In the residential the emphasis is on achieving signage that is at a “human scale”, suggesting sign height limits of 2m and setbacks of at least the building line for the signs. However in this case given the semi-commercial nature of the precinct it is considered appropriate in these circumstances to limit the pylon sign to 5.4m in height being a height comparable to the height of the building.

The following diagrams show the imagery of the signage as proposed, and then with a maximum height of 5.4m and a setback closer to the shop:

LucknowServo as proposed

Figure 10 - proposed 6m height

LucknowServo reduced

Figure 11 -5.4m recommended height

The signs are proposed to be illuminated, which is generally considered acceptable in this case provided the illumination is constructed in a fully recessed receptacle and is switched off when the service station is not open.

Conditions are included that limit the height of the pylon sign to 5.4m, require a minimum setback of 3m for the sign from the front boundary and which require the illumination of the signage to be switched off for periods that are outside the approved hours of operation.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(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.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s4.15(1)(a)(iii)

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land. An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

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

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

The corresponding zone to zone 2v (Village) (Orange LEP 2000) is zone RU5 Village (Orange LEP 2011). As such, Orange DCP 2004 –Chapter 7 is relevant to this proposal. Chapters 12, 13, 14 and 15 are also applicable to the assessment.

CHAPTER 7 - DEVELOPMENT IN RESIDENTIAL AREAS

Shops and Businesses in the Urban Residential Zone

The LEP provides for a range of non-residential activities to be carried out in the Urban Residential zone (it is considered the RU-5 Village zone has a certain equivalency to standard residential zones for the purposes of DCP assessment) provided that the development complements the residential character and amenity of the area. Shops and businesses that are permissible in the RU5 zone are listed in the zoning table applicable to the zone. Business premises permitted in residential areas are restricted to neighbourhood-shopping centres in the City. In the case of the Lucknow village there is no neighbourhood shopping area, however the DCP notes that existing businesses are located within a limited part of the village, essentially the area adjacent to the highway at the western end of the village.

The DCP states that new commercial development in residential areas should aim to provide for the convenience-shopping needs of residents of the locality and should be located within or in association with existing neighbourhood-shopping areas. Neighbourhood-shopping centres should complement the predominantly residential character.

Planning Outcomes

· Development complements the scale of residential development in the area and the predominant heights and form of residential development in the vicinity.

The heights of the building are comparable to surrounding development. The height of the proposed pylon sign as submitted is slightly more than that of the canopy, which is the highest structure otherwise proposed.

· Business premises are located in neighbourhood business areas, existing prior to Orange LEP 2000.

There is no neighbourhood shop area within the village zone, but the DCP discussion identifies the north-western end of the properties facing the Mitchell Highway as the area of the village where commercial development has tended to occur. The proposed development would be located within this area on a site that is already being used as a service station.

· Neighbourhood-business centres are small scale to serve the needs of the residents of the locality. Neighbourhood-business centres have a maximum commercial floor space of 1,000m² for the combined area of adjoining or adjacent shops and businesses, whether or not the premises are on the same land or adjacent to or in close proximity to each other.

The proposed development can be expected to provide services and goods likely to satisfy the local community needs, but also can be expected to rely on passing trade. Such reliance can be expected to lead to an elevated amount of commercial activity for the site. It is considered that such elevated levels of activity are acceptable within the day and early evenings, but would be likely to lead to land use conflicts with the adjacent residential development if permitted to operate in the overnight time slot. Attached is a condition of consent limiting the development to 10.00pm. The adjoining neighbour has indicated a preference for the development to be limited in terms of operating hours to 7.00am to 8.00pm.

· New neighbourhood business centres are located at or near collector intersections, with the buildings addressing the street frontage and rear parking to provide quality urban design.

Not relevant to this application.

· Onsite parking is provided according to Section 15.4 of this Plan.

Refer to the appropriate assessment contained elsewhere in this report.

· Advertising signage is limited to exempt development (ie, sign with a maximum area of 1 square metre) for home businesses or businesses in converted dwelling houses.

This planning outcome is not relevant in this case given that the development does not comprise a home business or a business in converted dwelling houses. Attached is a condition of consent limiting the height of the pylon sign such that the signage will be sufficiently less intrusive as to be considered compatible with the surroundings.

· Advertising signage in neighbourhood centres is not intrusive to the character of the residential locality. No more than 15% of the street façade elevation area of premises in a neighbourhood centre involves signage.

The revised signage scheme complies with this guideline.

Development in the Village of Lucknow

Village Character

The village has a number of areas with distinct characteristics that combine to make up the character of Lucknow. Urban development on the north-eastern side of the Mitchell Highway centred on a round hill comprises school and church buildings, with associated residences on relatively small lots. Commercial development is centrally located fronting the Highway. Land affected by former mining activity is situated on the fringes of the village and on steeper slopes. Residential development on larger lots is located southwest of the Highway, on Beasley and Phoenix Mine Roads, and on Chapel Hill Lane.

The DCP recommends that commercial development continue to centre on the Mitchell Highway and Beasley Road intersection. New development should reflect the historic character and form of the village.

Planning Outcomes

· Development proposals involving new buildings or works on or near land identified as being subject to former mine activity include sufficient information to demonstrate to Council’s satisfaction that the land is suitable for the development. Particular attention is given to the location of former mine shafts, shallow drives, mine spoil or mining relics. A geotechnical professional prepares the information.

The applicant has provided limited information to suitably demonstrate that the site is suitable for development based on previous mining activity. Notwithstanding, Council staff have carried out an assessment of the location of former mine shafts in the general locality together with a review of assessments carried out on land that immediately adjoins the subject property. Applications for development on nearby properties (numbers 9, 11 15 and 19 Chapel Hill lane, all located to the rear of the site) have included geotechnical assessments assessing the risks for mine subsidence and soil contamination, and all have concluded that the risks as very low.

The applicant has submitted a contamination report establishing that no significant levels of contamination exist on the site. Based on the fact that the neighbouring sites are similar in terms of location and site conditions as the subject property it is considered the site is appropriate for the proposed development. The intent of these provisions is to minimise the risk of subsidence due to construction over former mine workings. There is always some risk of subsidence and mine working contamination for any development within the village. To minimise the risks from mine subsidence and contamination on new construction precautionary conditions have been recommended in the consent. The applicant will be required to submit a geotechnical report prior to the issue of a Construction Certificate to confirm that the site is suitable.

· A professionally-prepared report identifying that the land is suitable for development after being investigated for potential land contamination is submitted with a development application for development involving works that will disturb the land.

An Environmental Site Assessment (ESA) has been submitted indicating no substantial contamination on the site. However, this ESA does not include appropriate assessment of the area immediately beneath the underground storage tanks. A condition of consent has been included in the attached Notice to address this issue.

· Commercial development is located within the established business core of the Village centred on the Mitchell Highway/Phoenix Mine Road intersection. Buildings and associated signage are designed to relate to the traditional mining character of the Village to reinforce the mining history of the Village.

The site on which the proposed development is to be located is within the “commercial precinct” of the village. The specifics of the submitted design are not ideal, being essentially a compromise between broad brush heritage and streetscape considerations aiming to soften and control massing and bulk on the one hand; whilst on the other hand permitting a scale of commercialisation of the site that will be viable and functional. The height of signage has been limited to 5.4m.

· Mining relics on land subject to development proposals are identified, interpreted and conserved.

There are no mining relics on the land.

· Mine spoil areas remain undisturbed except for works associated with stabilising the area to prevent erosion.

There are no mine spoil areas on this site.

· Heritage mine sites are made available for the interpretation of the Village’s mining history. Such development includes professional interpretation and conservation of the site.

The subject property is not an identified heritage site within the village precinct.

· Residential lots have a minimum area of 1,000m2. Larger areas are created on land affected by former mining activity to permit an adequate area for development removed from disturbed sites.

The subject site is less than 1,000m² but is also not a residential use.

· Residential buildings are designed to relate to traditional building forms of the Village.

Not relevant to this application

· The development is serviced by the public sewerage and water reticulation system, taking into account the planned capacity of these systems.

Council’s Environmental Health and Building Surveyor has reviewed the application and has raised no objection to the connection of the site to either Council’s reticulated water supply or the reticulated sewage system.

CHAPTER 12 - RURAL ENVIRONMENT PROTECTION ZONE

Water-Catchment Considerations

Whilst the land is zoned RU5 Village it is none the less located within the drinking water catchment for the City. Water supply catchments are areas that provide for public water supplies to service urban centres. The water catchment planning provisions apply the precautionary principle of Ecologically Sustainable Development through a “prudent-avoidance” approach. This approach includes provisions to reduce the chance of serious environmental problems, even where it is not certain when or if such problems will occur

There are no aspects of the proposed development where likely adverse impacts on water quality within the catchment are likely to arise. Conditions are included for such items as trade waste and stormwater management that should lessen the impacts on surface runoff quality to an acceptable limit.

CHAPTER 13 - HERITAGE

Consideration of Heritage Character

The unique and significant character of the village is enhanced by the extent of the remaining aboveground mine shaft structures - particularly the steel head frames of the Wentworth Main and Reform sites, which are rare survivors both within the region and the state, and give the village a striking historic immediacy, accessible to all because of their prominent location on the main road.

The historic significance of the village is enhanced by the degree to which it has retained elements of its early layout (particularly the road network) and various early buildings it has retained, which provide evidence of early residential and associated activities. Several individual buildings are of high historic and aesthetic significance (including “Mamhead” and the Anglican Church) while others are valuable representative examples of early building styles, and provide evidence of early development patterns in the village. The historic and aesthetic significance of many early dwellings in the village has been adversely affected by later alterations and loss of fabric, as well as a more general loss of early/appropriate architectural context.

The aesthetic significance of the village arises in large measure from its attractive siting on the Frederick's Valley Creek, surrounded by low, rolling hills, and the open, largely undeveloped, character of this setting. The simple linear character of the village itself, with its defined entry points, generally low scale development and remaining early structures, assists in maintaining the important early village identity and character, although this has been notably eroded and adversely impacted upon in recent years by inappropriate alterations to early buildings and unsympathetic new developments.

The proposed development is considered an adequate design response. The proposal, now with a pitched roof and with slightly more restrained signage scheme, can be expected to at least not demean or challenge the desirable or valuable character that defines the Lucknow Heritage Conservation area. The new development cannot be described as significantly reinforcing of the village character, but it is sufficiently restrained and limited as to be considered suitable on heritage grounds to the locality.

The imposition of landscaping conditions, the limits placed on signage (particularly height), and the detail changes specified by the Heritage Advisor (including the pitched roof for the store component) provide adequate mitigation to an otherwise uninspired design response to the heritage challenges of the locality. It is considered fair to describe the more modern changes to the Lucknow village architecture as not particularly sensitive to the heritage values of the village, and the current proposal is a continuation of that trend. However, in the case of this proposal, it is considered that sufficient respect and deference is worked into the design as to render its impacts acceptable.

CHAPTER 14 - ADVERTISING

Chapter 14 of the DCP contains the following requirements:

“Controls for advertising seek to ensure that, where advertising is directed towards or across public places (including roads and public areas such as parks) to attract the attention of the public, then the advertising should complement the character of that area. Advertisements should be designed to relate to the land or building. While advertisers may wish signs to stand out, in order that signs complement the character of Lucknow they should fit within the built and landscape environment. It is recognised that business should be able to present their activity to the public in an appropriate manner. Business Identification Signs serve this function

Signs should complement the scale of associated buildings. For signs attached to buildings, the signs should not extend beyond the outline of a building when viewed at the front elevation. Pylon or free-standing signs in business areas should have a height consistent with the height of the main building on the site. In residential areas, free-standing signs should be located in a landscaped garden setting and should be at a personal scale (i.e., generally less than 2 metres in height). Proliferation of signs should be avoided since they detract from the character of the area and provide confusion for the travelling public”.

Planning Outcomes

· The location, size, colour and design of advertisement complement the character of the locality.

The character of the locality is mixed. To the north and west the predominant character is commercial. It is considered that in terms of location, size (and height) and design the proposed signs are compatible with the commercial surroundings. However, there is also a predominantly residential style of development to the south and east of the site, and in this regard the signs are not at a scale or of a design that sufficiently respects that residential scale or character if viewed solely in the context of residential development. However, the applicable zoning does not restrict development to just residential development. The village zone permits a range of mixed uses; and further the DCP identifies that part of the village where the proposed development is to be located as predominantly a commercial precinct. On that basis the signs are satisfactory subject to adoption of the recommended condition of consent.

· Advertisements on buildings fit within the envelope of the building.

The flush wall sign is consistent with this planning outcome.

· Freestanding pole or pylon signs relate to the height of associated buildings in business and industrial areas.

As proposed the pylon sign would not relate to the height of the structures proposed for the site. However, a reduction in the height of the pylon sign of 600mm (10%) required by condition of consent will result in the sign conforming more to the planning outcome.

· Freestanding signs in residential areas are at a personal scale (i.e., about 2-metres high or less) within a landscaped setting.

The proposed signs do not comply with this planning outcome, and the applicant has not submitted any basis to support the variation to the DCP that is needed. However, in this case a limited sign inventory and restrained signage scheme can be justified on the basis that the signs are within the commercial precinct of the village, and the impacts on the neighbouring residential lots are about the same as the existing unapproved signs on the site.

CHAPTER 15 – OFF-STREET PARKING

The exiting development has no statutory requirement to provide parking as no consent is known to exist for the building erected thereon. There is no formal parking area provided onsite, however the configuration of the site does allow off-street parking for the existing activities on the site. There is a gravelled area at the rear of the existing shop with dimensions to accommodate five vehicles. The existing shop has a floor area of 114 m².

Service stations under the DCP have the following car parking rates applied to them:

3 spaces for each work bay plus 1 space per 25m² of gross floor area of shop, convenience store or payment area

For the proposed development there are no work bays proposed. The proposed convenience store has 186m² of gross floor area, representing a net increase in floor area (compared to the existing shop) of 72m².

Adding the previous car parking provision (five spaces) to the requirements arising from the net increase in gross floor area (72m²), the net requirement for parking is 7.88 spaces (rounded to eight).

The plans submitted with the application show eight onsite spaces being provided, which is considered sufficient to meet the demands of the site.

An alternative method for calculating parking, disregarding existing floor areas and existing (estimated) parking provision would simply be to calculate the parking requirements of the new development, without regard to the floor areas and parking provision of the existing situation. This method yields a requirement for 7.44 off street spaces (again rounded up to eight spaces).

The proposed development complies with the off-street parking requirements of Council’s DCP.

Problems arise, however, for larger sized vehicles. To address this the RMS requirements include a prohibition on the fuelling of vehicles larger than 12.5m (the size limit set for a large rigid vehicle). Mitchell Highway permits vehicles up to 26m semi-articulated vehicles. Further, it is noted that the delivery vehicle to provide fuel to the site is 19m. Arrangements in the access and egress geometry make it possible for the delivery vehicle to deliver fuel safely to the site, however the site is considered too small to accommodate trucks to receive fuel larger than the limits specified by the RMS.

INFILL GUIDELINES

The Orange Local Government Area has a number of items and areas of heritage significance (including the whole of Lucknow village) pursuant to Orange Local Environmental Plan (OEP) 2011. These areas are generally valued by the community.

The Burra Charter includes in Article 8 in its section on "Setting":

"Conservation requires the retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate"

Good quality and sensitive design of infill development in heritage areas is of paramount importance in retaining the historic character of precincts within Lucknow. An important aspect of good design is designing in context and having regard to the site and its surroundings, with particular consideration to the surrounding built form and significant landscaping.

What is Infill Development?

The NSW Heritage Office and the Royal Australian Institute of Architects NSW 2005 publication Design in Context defines infill as:

A new building in an established and valued historic context. Good infill is building that is sympathetic to the surrounding buildings and historic context and creates new structures that enhance and complement the existing urban, suburban or rural character.

Purpose of the Guideline

Commercial infill takes advantage of premier business locations whilst contributing to active and vibrant streetscapes. Council’s Development Control Plan 2004 currently requires development to complement and relate to the relevant features and built form within existing streetscapes.

Infill should complement and enhance the local character by relating to the predominant scale, massing, colours and materials of the area. This does not mean that a developer must recreate the buildings nearby; it is acceptable to relate to the above factors with a contemporary design, and this has been expressed through the aims of the guideline.

Prescriptive numerical standards can often be counterintuitive in the sense that they reduce flexibility and can stifle a creative design that would otherwise satisfy the fundamental objects and performance criteria of the applicable provisions through an alternate design solution. Accordingly, the guidelines do not present numerical standards to control development in a heritage context per se.

Objectives of Infill Design

· Retention of appropriate visual setting (Article 8 Burra Charter).

· To ensure new buildings respond to and enhance the character and appearance of the streetscapes of the Heritage Conservation Areas.

· To ensure contributory heritage items retain their prominence and are not dominated by new development within a Heritage Conservation Area and do not compromise the heritage values of the existing area.

· To ensure new buildings do not adversely affect the significance, character or appearance of the Heritage Conservation Area or heritage items.

· To allow for reasonable change within a Heritage Conservation Area while ensuring all other heritage objectives are met.

· To ensure new development facilitates the retention of significant vegetation that contributes to the tree canopy, especially within the Central Orange Heritage Conservation Area.

The proposed development is consistent with the commercial character of the village, but is less consistent with the residential design objectives of the guidelines. The subject property is located just inside the commercial precinct of the village; however it is acknowledged that residential development adjoins the site to the east and south

Principle of Infill Development

“The guidelines emphasise the context of a place and respond to it. Consideration should be given to the nature of adjoining and surrounding heritage items and places, significant vegetation (on the site and adjoining the site) and the overall significance and character of the heritage area where it is located.

New development within a conservation area should not have to replicate the existing built form, but should be compatible and enhance the existing streetscape. Contemporary designs may be acceptable provided the design relates to the assessment criteria”.

The proposed development is essentially a contemporary design with mitigating elements introduced or required by condition into the design, thereby adhering to the principals of the Infill Guidelines.

PROVISIONS PRESCRIBED BY THE REGULATIONS s4.15(1)(a)(iv)

Demolition of a Building (clause 92)

A condition is attached requiring the demolition to be carried out in accordance with Australian Standard AS2601 - 1991: The Demolition of Structures.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

BASIX is not applicable to the proposed development. A Section J energy efficiency statement will be required with the Construction Certificate application.

THE LIKELY IMPACTS OF THE DEVELOPMENT s4.15(1)(b)

The proposed development has likely impacts in the following subject areas:

· hours of operation;

· risks from naturally occurring asbestos

· traffic and loading;

· hazardous goods;

· noise;

· impacts on character;

· heritage;

· changes to site levels; and

· heritage.

Conditions are included in the attached consent to address each of these issues, which have previously been mentioned and commented upon in this report (with the exception of naturally occurring asbestos contamination).

Naturally Occurring Asbestos

Figure 12 (below shows that the subject property is within a mapped area where naturally occurring asbestos can occur in development where soil disturbance is proposed.

Figure 12 - potential asbestos affection mapping

Council mapping system also records that naturally occurring asbestos events have been discovered within a 500m radius of the site.

The information available to Council is predictive only. It does not necessarily follow that naturally occurring asbestos will be found on this site, just that the soil conditions and previous survey mapping suggest a strong possibility. It is considered appropriate in this situation to apply the precautionary principle and impose the following condition to the consent:

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

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

Attached to the Notice is a recommended condition of consent addressing this issue.

THE SUITABILITY OF THE SITE s4.15(1)(c)

The site is currently used for the purposes of a service station. The site is considered suitable for the proposed use. It will be necessary to undertake further contamination testing once the underground storage tanks are removed, and this may trigger a need for further Category 1 remediation if contamination is found. However, even in this eventuality, the site can be considered suitable for the proposed development.

The site is located on the interface between the residential and commercial areas of the village. To achieve a degree of compatibility with the village character, conditions that limit the hours of operation, the height of the pylon sign, the times that the premises may be illuminated, the styles and finishes of the building and landscape treatments to be applied are imposed as conditions in the consent.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s4.15(1)(d)

The proposed development is defined as "advertised development" under the provisions of the LEP. The application was advertised on two occasions for the prescribed period of 14 days. Two exhibitions were necessary because the application underwent some significant amendments in May 2018. At the conclusion of the two exhibitions, seven submissions had been received from the nearby and surrounding residents.

A summary of the objections raised, and the brief responses thereto are set out as follows:

Mr and Mrs Peter Campbell (two submissions)

· Object to the 24 hour operation

As discussed in the body of this report the 24 hour operation of the development is not considered acceptable in this locality. The applicant has amended the application to operate from 5.00am to 12.00pm. However given the character of the surrounding locality, the location of the adjoining residential development and the objectives of the RU5 Village zoning it is recommended that the hours of operation be limited to 7.00am to 10.00pm to align with the evening night time noise criteria. Conditions are included that limit the hours of operation to 7am to 10pm.

· Odour

The objection relates vapours emitted from the vent pipes of the underground tanks and the odour impacts these vapours have on the residential amenity of the neighbouring residence. The objector notes that there are existing vent pipes for the existing tanks which are already causing odour nuisances from the emissions.

Enquiries with the Environment Protection Authority reveal that in comparison to the existing equipment installation on the site, which is essentially obsolete technology with regards to vapour management, there are now heightened industry standards relative to the standard of equipment already installed on the site that should lead to improved vapour venting (and hence odour control) for the subject property.

GB Heinrich

· Objects to the 24 hour operation

As discussed above a condition of consent has been included that limits the hours of operation to 7am to 10pm.

· 19m vehicles not suitable for the site

Consistent with the requirements of the RMS conditions of consent have been recommended in the attached notice of determination that limit the maximum size of vehicles to 12.5m. A 19m long vehicle is only permitted on the site to service the subject development.

· No provision for pedestrian footway

Conditions are included in the consent requiring the removal of the non-approved concrete slab at the front of the property (which tends to be used for unauthorised verge parking), with properly constructed footpath and verge landscaping as well as physical barriers to be installed to prevent the parking of vehicles on the verge.

· There is no right turn capability travelling east

The amended plans, following input from the RMS, resulted in a right capability as well as a slip lane on the southern (westbound) side of the Mitchell Highway. Attached a range of conditions required by RMS to deal with access arrangements onto and off the highway.

A and K Anlezark

· Concerned that the retaining wall proposed along the southern side of the subject land will result in the loss of landscaping from that neighbours property

The submitted plans show the installation of a retaining wall along the southern boundary to replace an existing batter. The batter encroaches approximately 3m to the north of the shared boundary, tapering down to approximately zero at the top of the bank. The installation of the retaining wall will require the removal of some spoil so as to allow the back boundary to be squared off, and if not carried out carefully this work could result in the demolition or killing of vegetation that would otherwise require consent for removal, and which if lost is likely to cause harm to the southern neighbour.

Figure 13 - landscaping of southern neighbour

To address this issue the following condition is included in the consent:

Prior to the issue of a Construction Certificate

Structural details, certified by an engineer are required for the retaining wall to be installed along the southern boundary. A tree management plan is also required to be submitted outlining the details of the retaining wall construction, and including tree protection measures and harm minimisation measures that conform to the Australian Standards that apply to this situation, including AS 4970 – Protection Of Trees on Development sites.

Natalie Selwood (two submissions)

· The Assessment and Traffic and Parking Implication section of the DA does not deal in full of the implications of the traffic in the area. It does not mention that there is no safe access into or out of the site

This submission was made in relation to the original plans submitted for consideration. The amended plans have addressed the traffic and access issues and have received concurrence from RMS, subject to conditions.

· Pedestrian Access

Conditions are included to address the issue of pedestrian access.

· Contrary to the village residential character

The village has a significant heritage character, and a mixed residential and commercial precinct. The subject property is located on the boundary separating the mainly residential parts of the village from the mainly commercial parts.

It is considered appropriate, in the interests of maintaining a village character and reflecting the mixed use zoning provisions of the village zone, to apply conditions that prevent the full 24 hour operation of the development. To this end it is recommended that the development be limited to 7.00am to 10.00pm.

· The proposed development is a visual eyesore and fails to take into account the historic significance of the village

The proposed development is infill development, with aspects in the design that are not ideal to the surroundings in which they are to be placed. Conversely, changes have been incorporated into the amended plans following consultation with Council’s Heritage adviser and conditions are contained in the consent that will reduce these impacts.

Under the circumstances it would be a negative step to insist on a mock heritage solution. The amended plans and the suite of conditions included in the consent aim to contain interpretations of the dominant character of the village, whilst at the same time taking steps to minimise the dominance that the proposed development might otherwise possess.

Gai Fardell (second exhibition period only)

· Objects to the 24 hour operation

As discussed above a condition of consent has been included in the Notice of Determination that limits the hours of operation to 7am to 10.00pm.

· Traffic Safety

See comments above.

PUBLIC INTEREST s4.15(1)(e)

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. The RMS have recommended a suite of conditions to ensure that access/egress from the site is acceptable. A section 4.15 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, D18/53453 ⇩

2 Plans, D18/53465 ⇩

3 Submissions, D18/53502 ⇩

Extraordinary Planning and Development Committee 17 October 2018

2.3 Development Application DA 33/2018(1) - 4613 Mitchell Highway, Lucknow

Attachment 1 Notice of Approval

ORANGE CITY COUNCIL

Development Application No DA 33/2018(1)

NA18/ Container PR18810

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

Development Application
Applicant Name:	Brothers Three Pty Ltd
Applicant Address:	C/- MCHP Architects Pty Ltd Suite 5, 46 Albany Street ST LEONARDS NSW 2065
Owner’s Name:	Brothers Three Pty Ltd
Land to Be Developed:	Lot 101 DP 1053642 - 4613 Mitchell Highway, Lucknow
Proposed Development:	Demolition (existing service station), Service Station (includes sales building, fuel dispensing canopy, underground fuel tanks), and Business and Site Identification Signs

Building Code of Australia building classification:	To be determined by the PC

Determination made under Section 4.16
Made On:	17 October 2018
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	18 October 2018
Consent to Lapse On:	18 October 2023

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 by MCHP Architects:

DA02(REVB), DA03 (REV D), DA05 (REV C) dated 26.08.2017;

DA07 (REV B) DA08 (REV B), DA09 (REV A) dated 17-05-2018;

DA07 (REV B – Roadworks sketch), DA08 (REV A – Roadworks Context Plan)

dated 3.08.2018 (8 sheets)

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

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

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

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

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

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

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

(4) 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 this condition not applying.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(5) 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.

(6) A geotechnical report shall be submitted and approved by Council’s Manager Development Assessments, that certifies that the site is not at risk from mine subsidence and that the site is suitable for the development having regard to mine subsidence.

(7) Structural details, certified by an engineer are required for the retaining wall to be installed along the southern boundary. A tree management plan is also required to be submitted outlining the details of the retaining wall construction, and including tree protection measures and harm minimisation measures that conform to the Australian Standards that apply to this situation, including AS 4970 – Protection Of Trees on Development sites.

(8) Amended plans are required that are to the satisfaction of the Manager Development Assessments, incorporating the following features:

· All lighting to the soffit of the fuelling canopy is to be fully recessed from the soffit surface.

· The soffit to the fuelling canopy is to be equal to the Colorbond standard custom orb profile in “Shale Grey”. The fencing on the side facing the development around the perimeter shall also be finished in “Shale Grey” or “Windspray”.

· The cladding to the north-eastern elevation is run horizontally to interpret the local vernacular.

· A full height window is to be inserted into the north-eastern elevation between the cigarette display and office doors.

· The building be provided with a similar hipped 30 degree pitched roof.

· The colour of the gable infills is to be “Windspray”.

· The concrete blockwork on the convenience store shall be clad in horizontal Colorbond “Basalt” and not painted to reflect the local vernacular.

· The site identification sign shall be limited to a maximum height of 5.4m above existing ground levels to ensure the sign element relates to the maximum height of the structures to be erected on the site and does not visually dominate the setting and affect other business identification elements, signs and graphics. The base of the sign shall be clad in local stone similar to basalt to the level of the bottom price indicator and replacing the ATM graphic which is redundant.

· A revised landscape plan is required that incorporates species suited to the local climate (in particular are frost tolerant), and which have mature heights suited to the growth plots to be provided. Existing species selection in the submitted plans are inappropriate for those reasons. Further, the landscaping plans shall be amended to incorporate a landscaping strip in the currently concreted verge area to a bed width not less than 1.5m and incorporating tree plantings that are suited to local climate and growing conditions, and able to achieve a minimum height of 4m. This landscape strip shall be provided on the southern side of the pavement, just above the cutting that steps down to the Mitchel Highway.

(10) The applicant is to submit a waste management plan that describes the nature of wastes to be removed, the wastes to be recycled and the destination of all wastes. All wastes from the demolition and construction phases of this project are to be deposited at a licensed or approved waste disposal site.

(11) Engineering plans providing complete details of the proposed driveway and car parking areas are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) upon application for a Construction Certificate. These plans are to provide details of levels, cross falls of all pavements, proposed sealing materials, proposed drainage works, line marking and signage and are to be in accordance with Orange City Council Development and Subdivision Code.

The plans shall detail the removal of the concrete slab between the two driveways and this area reinstated as public footpath. All signage shall be located within the site boundaries.

(12) 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.

Engineering plans shall include a road pavement design for widening works and all Roads and Maritime Services requirements as follows:

· “No Entry” (R2-4) signs are to be provided on the land at each side of the exit driveway. The signs are to face the Mitchell Highway to advise motorists not to enter the site from the Mitchell Highway via the exit driveway.

· “No Entry” (R2-4) signs are to be erected on the land on each side of the entry driveway. The signs are to face the site to advise motorists not to exit onto the Mitchell Highway via the entry driveway.

· Prior to occupation of the development, signage on the site facing the Mitchell Highway is to be installed displaying “NO FUELING OF VEHICLES OVER 12.5 METRES LONG”.

· Adequate turning circles, storage room and vertical clearance are to be provided within the site for the largest type of vehicle (19 metre fuel tanker) that will visit the site operation.

· All activities including loading and unloading of goods associated with the development are to be carried out on site in the dedicated areas.

· Landscaping, signage and fencing are not to impede sight lines of traffic within or when passing, entering or departing from the site. Safe Intersection Sight Distance (SISD) requirements outlined in Austroads Guide to Road Design Part 4A is to be provided in both directions at the intersection of driveways and the Mitchell Highway.

· Prior to the occupation of the site, a Channelised Right (Short) [CHR(s)] turn lane generally in accordance with Figure 7.7 Part 4A Austroads Guide to Road Design 2017 and relevant Roads and Maritime supplements, is to be provided in the Mitchell Highway at its intersection with the site entry. The intersection works are to be designed and constructed for a 60km/h speed zone and be able to accommodate the largest vehicle accessing the site.

· Prior to occupation of the site, a Basic Left (BAL) turn treatment as shown in Figure 8.2 Part 4A of the Austroads Guide to Road Design 2017 is to be provided at the intersection of site access and the Mitchell Highway. The BAL facility will also need to be sealed and built for a 60km/h environment.

· A formal agreement in the form of a Works Authorisation Deed (WAD) will be required between the developer and Roads and Maritime for the developer to undertake “private financing and construction” of any works on the Mitchell Highway. This agreement is necessary for works in which Roads and Maritime has a statutory interest. A WAD is to be executed prior to issuance of a Construction Certificate.

· Prior to the commencement of construction works, the proponent is to contact Roads and Maritime’s Field Traffic Manager to determine if a Road Occupancy Licence (ROL) is required. In the event that an ROL is required, the proponent is to obtain the ROL prior to works commencing within three (3) metres of the travel lanes on the Mitchell Highway.

· All entry/exit points onto/from the Mitchell Highway, internal vehicular manoeuvring, parking and loading areas are to be constructed, sealed and maintained generally in accordance with submitted plans reference no.17-077-DA07 and 17-077-DA08 prior to the issuance of an Occupation Certificate.

· Signage is to be in accordance with the Department of Planning and Environment’s Transport Corridor Outdoor Advertising and Signage Guidelines 2017, is not to flash, move or be objectionably glaring or luminous.

(13) All stormwater from the site is to be collected and piped to a stormwater treatment system. The design and construction of the stormwater treatment system for the subject land shall ensure that the quality of stormwater leaving the developed site achieves the following stormwater quality targets:

· 90% reduction in the post development average annual gross pollutant (>5 millimetres) load.

· 85% reduction in the post development mean annual load of Total Suspended Solids (TSS);

· 65% reduction in the post development mean annual load of Total Phosphorus (TP);

· 45% reduction in the post development mean annual load of Total Nitrogen loads (TN);

· No observable Hydrocarbons present in stormwater discharge (<10ppm).

Orange City Council is to approve engineering plans for this stormwater system prior to the issuing of a Construction Certificate. The applicant shall undertake comprehensive water quality modelling on for the site, using an accredited assessment tool (recommended using Music™ or other approved assessment tool) and shall include copies of the electronic data files. Treated stormwater shall be piped to the existing roadside inlet pit that shall be reconstructed as a surcharge pit with a grated inlet.

(14) 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 0.6 ETs for water supply headworks and 0.9 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.

(15) 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.

(16) Backflow Prevention Devices are to be installed to AS3500 and in accordance with Orange City Council Backflow Protection Guidelines. Details of the Backflow Prevention Devices are to be submitted to Orange City Council prior to the issuing of a Construction Certificate.

PRIOR TO WORKS COMMENCING

(17) 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.

(18) 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.

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

DURING CONSTRUCTION/SITEWORKS

(20) 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.

(21) After removal of the underground storage tanks (USTs) from the site, work shall stop until it has been determined that the area under the USTs is free from contamination. Further soil testing for the ground under the USTs shall be completed, with the results also submitted to Council’s Manager Development Assessments. In the event that contamination under the tanks is discovered, work shall cease and further development consent shall be sought for that remediation (note that the remediation of this land must be completed as a Category 1 remediation under State Environmental Planning Policy 55 – Remediation of Land, which is remediation that requires development consent. Work on the site may only recommence on submission and acceptance by Council of the validation report for the related Remediation action Plan.

(22) A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority.

(23) All construction works are to be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans.

(24) 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.

(25) Building demolition is to be carried out in accordance with Australian Standard 2601:2001 - The Demolition of Structures and the requirements of Safe Work NSW.

(26) Asbestos containing building materials must be removed in accordance with the provisions of the Work Health and Safety Act 2011 and any guidelines or Codes of Practice published by Safe Work NSW, and disposed of at a licenced landfill in accordance with the requirements of the NSW EPA.

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

(28) 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.

(29) 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.

(30) Heavy-duty concrete kerb and gutter laybacks and footpath crossings are to be constructed for the entrances to the proposed development. The location and construction of the laybacks and footpath crossings shall accommodate the turn path of a 19m articulated vehicle. The driveway shall be constructed to the standards stated in the Orange City Council Development and Subdivision Code.

(31) A 1.2m wide concrete pathway shall be constructed between the 2 driveways on the property frontage. Pram ramps shall be installed where the path intersects with kerb. The footpath shall be constructed to the standards stated in the Orange City Council Development and Subdivision Code.

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

(33) The site is located within an area identified as containing serpentinite rock formations, which can contain chrysotile, a naturally occurring asbestos. Therefore the applicant or person with management or control of the site shall ensure that a written plan (an Asbestos Management Plan) for the site is prepared in accordance with the provisions of the Work Health and Safety Act 2011 and Work Health and Safety Regulation 2011. To assist applicants with developing an Asbestos Management Plan, applicants are encouraged to access the ‘Asbestos Management Plan for Orange City Council 2014’, which is available on Council’s website: www.orange.nsw.gov.au

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(34) All equipment must be installed to manufacturer’s recommendations and must comply with all the relevant standards listed within.

(35) Prior to the issuing of an Occupational Certificate, the Applicant shall submit to Council documentation demonstrating that the following plans and systems have been developed and implemented:

(a) TRANSPORT OF HAZARDOUS MATERIALS

(b) EMERGENCY PLAN

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

(37) A total of 8 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.

(38) 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.

(39) 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.

(40) 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.

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

(42) 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, works on public roads, 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, and that Council will take ownership of the infrastructure assets.

(43) Certification of the installation and commissioning of testable Backflow Prevention Devices shall be submitted to Orange City Council by a plumber with backflow qualifications prior to the issue of an Occupation Certificate.

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

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(45) Twelve months after the commencement of operations of the proposed development and every three years thereafter, the Applicant shall carry out a comprehensive Hazard Audit of the proposed development consistent with the Department of Planning’s Hazardous Industry Planning Advisory Paper No. 5, ‘Hazard Audit Guidelines’. The audit shall be carried out by a qualified person or team, independent of the development. Compliance documentation shall be submitted to the Council within 28 days from the date of the audit.

(46) Specific safety features of the site, as set out in the submitted Preliminary Hazard Analysis (PHA) submitted with the Development Application shall be adhered to strictly at all times. The applicant shall ensure that safety procedures are well posted on the site and shall further ensure that all staff are adequately inducted as to correct safety procedures and protocols as set out in the PHA.

(47) Internal and external illumination of the service station is permitted only during the approved hours of operation. Outside of the approved hours, all lighting, except that needed for security and safety purposes shall be switched off.

(48) The hours of operation of the premises shall not exceed 7am to 10pm seven days per week.

(49) No sandwich boards or the like are to be placed on Council's footpath.

(50) A separate development application shall be submitted to and approved by Council prior to the erection of any advertising structures (including business identification signs) or signs of a type that do not meet the exempt development provisions of Orange Local Environmental Plan 2000 (amended) and Development Control Plan 2004.

(51) Emitted noise shall not exceed 5dB(A) above background sound level measured at the nearest affected residence.

(52) 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.

(53) 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.

(54) Copies of maintenance records for servicing of the approved stormwater treatment system shall be forwarded to Council on 1 December annually.

(55) POST-STARTUP COMPLIANCE REPORT

Three months after the commencement of operation of the development, the Applicant shall submit to Council, a report verifying that:

(a) transport routes specified under this consent (generated by the HIPAPS requirements) are being followed;

(b) the Emergency Plan required under this consent and generated by the HIPAPs requirements are effectively in place and that at least one emergency exercise has been conducted; and

(c) the Safety Management System required under this consent and brought out by the HIPAPs requirements have been fully implemented and that records required by the system are being kept.

(56) HAZARD AUDIT

Twelve months after the commencement of operations of the proposed development and every three years thereafter, or at such intervals as Council may agree, the Applicant shall carry out a comprehensive Hazard Audit of the proposed development and within one month of each audit submit a report to Council.

The audits shall be carried out at the Applicant’s expense by a qualified person or team, independent of the development, prior to commencement of each audit and shall be consistent with the Department of Planning’s Hazardous Industry Planning Advisory Paper No. 5, ‘Hazard Audit Guidelines’.

The audit shall be carried out by a qualified person or team, independent of the development.

Other Approvals

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

Nil

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

Nil

Right of Appeal

Disability Discrimination Act 1992:

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


*Disclaimer - S88B of the Conveyancing Act 1919 -* 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:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	18 October 2018

Extraordinary Planning and Development Committee 17 October 2018

2.4 Development Application DA 91/2018(1) - 14 Moulder Street

RECORD NUMBER: 2018/2493

AUTHOR: Michael Glenn, Senior Planner

EXECUTIVE Summary

Application lodged	15 March 2018
Applicant/s	Mr PR Gunn
Owner/s	Mr PJ, Mrs CJ, Mr WT and Ms SJ Gunn
Land description	Lot 1 DP 38296 - 14 Moulder Street Orange
Proposed land use	Subdivision (two lot residential), Demolition (existing shed), Dual Occupancy and Subdivision (three lot Community Title)
Value of proposed development	$500,000

Council’s consent is sought for a subdivision of the subject land to excise the existing dwelling on proposed Lot 100 and create a battleaxe lot at the rear of the land known as proposed Lot 101. The development includes the removal of 16 trees from the site, the construction of two new dwellings (as a dual occupancy development) on proposed Lot 101 and a Community title subdivision of the dual occupancy following its construction.

Figure 1 - locality plan

The subject application has attracted a number of public submissions. It is considered that the concerns raised can be satisfactorily addressed by conditions of consent.

The most significant issue relates to the flood affectation for the property, which requires minimum floor levels for the new dwellings so as to achieve compliant freeboards above the 1:100 predicted flooding levels. The minimum floor levels will need to be between 800mm and 900mm above the existing ground levels, effectively 400mm higher than what was initially proposed. This raising of floor levels will have impacts on privacy, overshadowing and the visual bulk of the proposed development. Such effects are considered in more detail within the report, with conditions imposed to address the matters arising where appropriate.

The application is recommended for approval, subject to conditions.

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

Development in Orange is governed by two key documents: Orange Local Environment Plan 2011 and Orange Development Control Plan 2004. In addition the Infill Guidelines are used to guide development, particularly in the heritage conservation areas and around heritage items.

DIRECTOR’S COMMENT

The subject land is affected by flooding impacts. Council’s Technical Services staff have specified minimum floor levels for the new dwellings so as to achieve compliant freeboards above the 1:100 predicted flooding levels. The raising of floor levels generates impacts on privacy, overshadowing and the visual bulk of the proposed development. A detailed assessment of these issues has been provided in the body of this report by staff. Council’s assessment staff have recommended approval of the development. Conditions of consent have been included where considered appropriate to address the above identified issues.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 91/2018(1) for Subdivision (two lot residential), Demolition (existing shed), Dual Occupancy and Subdivision (three lot Community Title) at Lot 1 DP 38296 - 14 Moulder Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought for a staged development

Stage 1: Two lot subdivision to create a separate vacant development lot and place the existing dwelling on its own lot. It is proposed to demolish the existing rear shed.

Stage 2: The construction of a dual occupancy on the newly created vacant lot.

Stage 3: Community title subdivision to create a lot for each of the new dwellings and a further lot to contain the communal driveway and shared landscaped areas.

The details of the development at the completion of this process are summarised below:

Stage 1 - Subdivision
Lot	Area	Private open space	Dwelling	Gross Floor Area	Description
100 (existing dwelling)	472.8m²	94m²	existing	141m²	Single storey, three bedroom dwelling with carport and separate access (existing)
101	877m²	n/a	vacant	n/a	Development Lot
Stage 2 - Dual Occupancy
Lot 101 Unit 1 Unit 2	877m² (283m²) (335m²)	130m² 61m² 69m²	Units 1 + 2 Unit 1 Unit 2	356.7m² 165.9m² 190.8m²	Two bedroom dwelling with double garage Three bedroom dwelling with double garage
Stage 3 - Community Title Subdivision
1 Unit 1	283.8 m²	61m²	Unit 1	Refer Stage 2	Two bedroom dwelling with double garage (see Stage 2)
2 Unit 2	335.3m²	69m²	Unit 2	Refer Stage 2	Three bedroom dwelling with double garage (see Stage 2)
3 Community Land	257.9m²	n/a	(common property)	n/a	n/a

MATTERS FOR CONSIDERATION

Section 1.7 - Application of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994

Development Applications lodged on or after 25 February 2018

Having regard to the relevant provisions and based on an inspection of the subject property, it is considered that the proposed development is not likely to significantly affect a threatened species.

A Biodiversity Development Assessment Report is not required in this instance.

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

Section 4.15

Section 4.15 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 s4.15(1)(a)(i)

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

The application is considered to be consistent with objectives (a), (b), (e) and (f), as outlined in this report.

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 1.7 - Mapping

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

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:	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
Flood Planning Map:	Not a flood planning area (under the LEP, but see comments in this report)

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Part 2 - Permitted or Prohibited Development

Clause 2.1 - Land Use Zones and Clause 2.3 - Zone Objectives and Land Use Table

The subject site is located within the R1 General Residential zone. The proposed development is defined as a “subdivision” and “dual occupancy”.

Pursuant to Section 4B of the Environmental Planning and Assessment Act:

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

Pursuant to the OLEP 2011 Dictionary:

Dual Occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling.

Subdivision and dual occupancy houses are permitted with consent in the R1 zone.

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

Application has been made for the subdivision of the subject land. Clause 2.6 of Orange LEP 2011 permits the subdivision of the subject land only with development consent.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work. This requirement does not apply to any demolition that is defined as exempt development.

The proposal involves demolition and the applicant is seeking the consent of Council. Demolition of a shed in the rear yard is proposed. The demolition works proposed will have no significant impact on adjoining lands, streetscape or public realm. Conditions may be imposed in respect of hours of operation, dust suppression and the need to investigate for, and appropriately manage the presence of, any materials containing asbestos.

Part 3 - Exempt and Complying Development

The application is not exempt or Complying Development.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size

This clause establishes the objectives for minimum lot sizes. The objectives of this clause are as follows:

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

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

(c) to ensure that lot sizes do not undermine the land’s capability to support rural development,

(d) to prevent the fragmentation of rural lands,

(e) to provide for a range of lot sizes reflecting the ability of services available to the area,

(f) to encourage subdivision designs that promote a high level of pedestrian and cyclist connectivity and accommodate public transport vehicles.

The proposed subdivision is considered to general meet the objectives of the clause.

Subclause (2) applies to a subdivision of any land shown on the Lot size map. It is noted that the subject property does not appear on the Lot Size Map.

Subclause (3) requires that the size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map. As indicated above this site is not identified on the Lot Size Map.

Subclause (4) establishes that this clause does not apply in relation to the subdivision of any land by the registration of a Strata plan or by way of a Community title subdivision.

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 development lot to which the dual occupancy component relates has an area of 877m², thereby meeting the minimum lot size requirement (800m²) for this development type.

Part 7 - Additional Local Provisions

7.1 - Earthworks

This clause establishes a range of matters that must be considered prior to granting development consent for any application involving earthworks, such as:

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development

(b) the effect of the development on the likely future use or redevelopment of the land

(c) the quality of the fill or the soil to be excavated, or both

(d) the effect of the development on the existing and likely amenity of adjoining properties

(e) the source of any fill material and the destination of any excavated material

(f) the likelihood of disturbing relics

(g) the proximity to and potential for adverse impacts on any waterway, drinking water catchment or environmentally sensitive area

(h) any measures proposed to minimise or mitigate the impacts referred to in paragraph (g).

In consideration of this clause, the proposal is considered to be acceptable. Earthworks are required to create level building pads for the proposed dual occupancy and private open space areas. The earthworks will be supported onsite and the change in ground level is not substantial. Conditions are recommended to address matters pertaining to overland stormwater flows that traverse the site. The overall disruption to drainage is considered to be relatively minor and will not detrimentally affect adjoining properties or receiving waterways. Conditions are recommended in relation to sediment and erosion control during construction.

7.2 - Flood Planning

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

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

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

The subject land is not located within a flood planning area as identified in the LEP mapping. However, the LEP mapping layers only deal with the major tributaries traversing the City and not the many overland flow paths that exist throughout the City. Whilst specific LEP controls do not necessarily apply, Council still has an obligation to consider the likely impact that the development may have on flooding and stormwater flows in the locality. Council’s Technical Services Division advises that the site is subject to flooding during most storm events due to the natural ground being low lying. In addition, stormwater flows enter the site from the north (overflow from road drainage) and west (natural overland flows) during large storm events.

The applicant has provided preliminary engineering plans that demonstrate that the development can provide onsite stormwater detention and allow for overland flows. The 2017 draft flood study indicates a stormwater depth of approximately 200-300mm above natural ground levels for a 1% AEP storm event (870.60m 1% AEP level). Therefore, the minimum floor level of the dwellings is 1% level +400mm (871m). The garage floor levels are permitted to be at the 1% level (870.60m).

The existing dwelling has a floor level of 871.24 and is unaffected by flooding.

Attached are conditions of consent that specify the required floor level to address the flooding issue. The applicant will also be required to purchase a drainage easement from Council crossing the parkland for a drainage line to service the development.

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

In consideration of Clause 7.3, the proposal is considered to be acceptable. As discussed above the proposed development will be required to be connected to existing stormwater infrastructure in the locality. Conditions are recommended in relation to stormwater management.

7.6 - Groundwater Vulnerability

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

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

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

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

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

Clause 7.11 - Essential Services

Clause 7.11 applies and states:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) storm water drainage or on-site conservation,

(e) suitable road access.

In consideration of this clause, all utility services are available to the land and adequate for the proposal:

· the subject land is connected to reticulated water supply

· electricity and telecommunications are available to the land

· the site is connected to Council’s reticulated sewerage system.

Conditions are recommended requiring stormwater management consistent with the Development and Subdivision Code

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy - BASIX

SEPP (Building Sustainability Index BASIX) 2004 applies to the subject development. A BASIX certificate for the dual occupancy has been submitted in support of the development. The proposal will satisfy the provisions of BASIX in respect of water, thermal comfort and energy. The proposal is consistent with the SEPP. Conditions are recommended requiring the BASIX commitments to be undertaken during construction works.

State Environmental Planning Policy 55 - Remediation of Land

SEPP 55 - Remediation of Land is applicable to the proposed development. Pursuant to Clause 7(1):

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

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

(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.

In consideration of this clause, the subject land does not appear to have been used for a purpose listed in Table 1 of Managing Land Contamination Planning Guidelines SEPP 55- Remediation of Land. Further, it is clear that the site has a long history of being used for residential purposes. The land is well established with a dwelling house, garage and extensive landscaped areas. Further investigation as a precursor to site remediation is considered unnecessary in conjunction with the current proposal.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(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.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s4.15(1)(a)(iii)

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land. An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

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

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

The corresponding zone to zone 2(a) Urban Residential (Orange LEP 2000) is zoned 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 - DESIGN ELEMENTS FOR RESIDENTIAL DEVELOPMENT

SUBDIVISION

Lot Sizes

· Lots below 500m² indicate a mandatory side setback to provide for solar access and privacy.

The Torrens title component of the development (Stage 1) proposes the creation of a standard lot (the vacant lot at the rear), and a “cottage lot’ for the existing dwelling, being lots between 350m² and 500 m².

Special Requirements for “Battleaxe” Lots

The development lot at the rear is a battleaxe allotment which the DCP recommends should be a minimum of 650m² excluding the access handle. The submitted plans indicate that the proposed lot at the rear excluding its access handle is 721.7m².

The DCP requires that a common driveway to two battleaxe lots or an access serving two dwellings (dual occupancy) requires a 4.5m wide driveway within a 6m wide accessway. Unit developments may require a 6m wide driveway to provide for passing cars.

In this case the corridor width is 5.64m and the driveway is 4.5m. There is a minor non-compliance with the corridor width requirement, which is considered to be inconsequential in planning terms.

Dual Occupancy Sites

The subject property is not an identified dual occupancy or multi dwelling site. This has no relevance to the planning assessment.

General Planning Outcomes

The DCP sets the following (applicable) Planning Outcomes in regard to urban residential subdivision:

· Subdivision layouts in areas zoned Urban Residential prior to this plan are generally in accordance with the applicable plan maps in Appendix 1.

There are no relevant ‘plan maps’ for this locality.

· Lots are orientated to optimise energy-efficiency principles.

The proposed dwellings and the associated outdoor spaces and living areas are designed with complying levels of solar access.

· New roads are planned according to modified grid layouts with restrained use of cul‑de-sac roads in new developments according to the UDAS Urban Form principles for Orange.

There are no new roads contained in the proposed development.

· Local open space is provided along creek corridors to create open space linkages for environmental conservation and social interaction. Release areas removed from creeks provide for open-space links incorporating substantial stands of native vegetation.

There are no opportunities presented for public open space on this site, and no riparian land directly affected by the proposed development.

· Release areas indicate trunk cycle and pedestrian ways that link the area to major open space networks and activity centres (schools, shopping centres and employment areas).

The subject property is not located within an urban release area.

· Lots below 500m² indicate a mandatory side setback to provide for solar access and privacy. Lots below 350m² indicate existing or planned house layouts, which identify how privacy, solar access, vehicular access and private open-space needs are to be achieved.

See comments above under the heading “Lot Sizes”.

· Up to 25% of new subdivisions comprise small lots in dispersed locations.

The proposed lots are generally small in nature.

· Lots are fully serviced and have direct frontage and access to a public road.

The proposed lots will each have direct street frontage and legal and practical access to public streets. Access to the rear lot will be via the battle-axe handle. Council’s Technical Services Division has advised no objections to the proposed access arrangements.

· Design and construction complies with the Orange Development and Subdivision Code.

The subdivision design and construction will be required to comply with the Orange Development and Subdivision Code. Attached is a condition of consent addressing this issue.

The proposed development has been considered and assessed against the relevant Planning Outcomes contained in PO 7.2-1 Planning Outcomes for Urban Residential Subdivision. There are no issues arising from that assessment.

· Corner lots provide for a house to front one street.

The proposed subdivision does not relate to a corner allotment.

· Battleaxe lots provide an adequate accessway width for the number of dwellings proposed to be served in order to allow for vehicle and pedestrian access and location of services.

This planning outcome has been addressed above under the heading “Special Requirements for “Battleaxe” Lots”.

· Lots proposed to be used specifically for dual occupancy or units in new residential areas are identified on development application plans to inform prospective purchasers of the mixed residential form of the area and measures are outlined on how prospective residents are to be informed of these identified sites prior to purchasing land.

Refer to the above comments under the heading “Dual Occupancy Sites”.

RESIDENTIAL DWELLINGS

The DCP sets the following Planning Outcomes in regard to Urban Residential Development.

Residential Design Objectives

· To ensure that the development fits into its setting and environmental features of the locality.

· To ensure that the appearance of housing is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

· To ensure that new development complements places with heritage significance and their settings in a contemporary way.

· To develop a sense of place with attractive street frontages.

· To encourage visually appealing cohesive streetscapes.

· To create a safe and secure environment.

· To provide consistent design elements that protect private investment.

In summary, and in reference to the listed design objectives, the proposed development is considered to have compatible scale and materials. It is acknowledged that the proposed development is single storey detached housing, with an identifiable frontage, appropriate setbacks and site coverage. The proposed dwellings are identifiable to the surrounding neighbourhood character, albeit in a more compact form. It is considered that there would be no significant adverse impact on neighbourhood character or safety, and no appreciable environmental effect resulting from an approval of the proposed development.

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 character and identity of the development are influenced by building design that maintains a common theme and consistent use of materials. This part of Orange is characterised by somewhat older residential and generally single storey housing using a mix of materials and styles. he subject property is part of an established precinct. The proposed development should be considered as infill development within that context.

The proposed dwellings are single storey, with brick front facades and Colorbond custom orb roofing. The areas of the proposed allotments are generally smaller than the surrounding subdivision pattern, but as the assessment in this report suggests, the proposed development to be located on the allotments is considered to have no significant adverse impacts arising, and is generally compatible with the surrounding residential context.

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 are considered appropriate in this neighbourhood. The building design and detailing will complement recent dwellings in the locality.

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.

Relevant Guidelines

· In established areas (infill) the setback shall be up to the front building line of the residential part of a building on adjoining (but not adjacent) land.

· A 2m secondary setback applies to corner allotments.

· Garages shall be set back 1.5m behind the building line as established above, or at least 5.5m, whichever is the greater distance. This distance applies to entrances off a secondary boundary on corner allotments.

The setback of the existing dwelling (facing Moulder Street) is not proposed to change. The setbacks of the two rear dwellings (side and rear boundaries) conform with the DCP requirements.

Front Fences and Walls

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

· Front 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 site that positively contribute to the streetscape

- provide for facilities in the street frontage area such as mail boxes.

The proposal does not involve a front fence. With respect to side and rear fencing, suitable conditions are included in the consent.

Bulk and Scale Objectives

· To allow flexibility in siting buildings and to ensure that the bulk and scale of new development reasonably protects the amenity of neighbouring properties and maintains appropriate neighbourhood character.

· To allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring developments.

· To encourage the sharing of views, while considering the reasonable development of the site.

The raising of the minimum floor levels to address flooding related matters will impact upon the visual bulk of the development. An assessment of how the development impacts upon the amenity of surrounding areas has been undertaken below in subsequent sections of this report. The key considerations relate to privacy, overshadowing and visual impact. Conditions of consent have been recommended to address matters pertaining to visual privacy. The proposed development is not located within a significant view corridor as defined under the provisions of the DCP.

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.

As discussed above, it will be necessary to require the minimum floor levels for the buildings to be raised by a further 400mm over and above those proposed in the submitted plans. This will result in the minimum floor levels being up to 900mm higher than the existing ground levels in the case of Dwelling 2 and 800mm higher in the case of Dwelling 1 to accommodate flooding impacts.

The DCP requires dwellings to be contained within the prescribed envelopes generated by planes projected at 45^o over the site commencing 2.5m above existing ground level from each side and rear boundary. After taking into account the requirements needed to meet the minimum freeboard standards for the flooding issue, the proposed development will not comply with the vertical building envelopes of the DCP. However, following an assessment it is considered that the bulk of the new buildings will not have a significant impact on neighbourhood character by reason of excessive bulk, mainly because the new buildings are set behind the existing dwelling. As such, views of the new buildings from Moulder Street will be limited.

When viewed from Elephant Park the elevated bulk and walls of the new buildings will be masked from view by the structures on neighbour’s land. The vegetation in Elephant Park immediately at the rear of the subject property will also provide a certain level of screening to the height and bulk effects of the development when viewed from the park.

However, it should be acknowledged that the neighbours to the east of the site will be impacted to a degree from the increased floor levels of the new dwellings. Whilst the development will be located within the visual bulk envelopes specified in the DCP along this particular boundary, the increased height will raise the potential for privacy impacts that will need to be considered. Matters in relation to privacy have been discussed later in this report in detail.

With regards to the western neighbour, only the garage of Dwelling 2 will generate an impact in terms of visual bulk. However in this case the subject building is located immediately adjacent to an existing garage that has a similar bulk, hence limiting its impact along this boundary.

The overall site coverage (at completion) complies with the minimum 50% site coverage requirement contained within the DCP.

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.

Relevant Guidelines

· There is a side boundary setback of at least 900mm minimum for walls in accordance with the above building envelope planes (unless the wall has been built on the boundary). Eaves and other projections may encroach within this area.

· Adequately fire-rated walls without windows or other openings may be erected on or adjacent to boundaries subject to no projections encroaching on adjoining land. The length of a wall within 900mm of the boundary is a maximum of 15m or 50% of the side boundary length, whichever is less.

· Encroachments within the setback demonstrate that privacy and overshadowing will not affect adjoining land. Council requires evidence that the adjoining owner does not object to the positioning of the building on or near the boundary.

· The position of buildings in relation to boundaries addresses existing trees and landscaping that contribute to the amenity of the locality.

The proposal incorporates side setbacks that comply with the planning guidelines and outcomes of the DCP.

Daylight and Sunlight

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.

Shadow diagrams have been prepared in support of the proposed development. In consideration of the DCP Guidelines, the proposal is considered to be satisfactory as outlined below:

Overshadowing of Dwellings

According to the DCP Guidelines and Council’s Energy Efficiency Code, sunlight to at least 75% of north facing living area windows within the development and on adjoining land is to be provided for a minimum of four hours on 21 June, or not further reduced than existing where already less.

The proposed development provides north facing, full height sliding doors to the living room spaces in the units that will comply with the solar access requirements. This assessment takes into account the changes in height brought on by the need to elevate the floor levels of the new dwellings due to flooding.

Overshadowing of Private Open Space

Under the DCP Guidelines and Council’s Energy Smart Homes Code, complying sunlight access (ie a minimum of three hours’ access between 9am and 3pm on 22 June) is to be available to at least 40% of required open space (and the required open space is at least 50% of the floor area of the dwelling) for dwellings. The revised diagrams and calculations submitted with the application produce the following analysis:

Dwelling	Living Area (excluding garage, porches, patios etc)	Private Open Space Required by DCP	Private Open Space Provided
Existing	141m²	70.5m²	94m²
2	165.9m²	52.6m²	61m²
3	190.8m²	60.3m²	69m²

The applicant’s submission with respect to overshadowing is as follows:

“The plans submitted show substantial separation distance to property to the east with the location of the driveway of 16a Moulder Street and the distance of the dwelling upon 16 Moulder Street over 13 metres away and similarly 10 metres from the dwelling situated on 12 Moulder Street demonstrating that no overshadowing issues will be present between 9am and 3pm. The southern dwelling will be situated close to the southern boundary overlooking Elephant Park. Further sheds are situated at the rear of 124 Woodward Street and would be situated near the garage of dwelling two.

The existing dwelling faces south and has some overshadowing effect on its own yard. There is, however, sufficient space in the South eastern corner of the dwelling lot 101 that is not overshadowed from 8am to 1pm providing compliance with the 40% requirement of the DCP”.

A detailed analysis of the overshadowing and solar access requirements of the DCP has not been provided by the applicant for the revised floor levels required by Council’s Development Engineer. The increased floor height of the development that has been brought about by the need to meet the requirements of the flood assessment has an effect on the overshadowing of the outdoor spaces of the subject property, but only limited effects on the overshadowing of adjoining residential land. However, analysis of the plans shows that all three dwellings have areas of open space that possess clear northerly aspects to proportions of their open space that will conform to the standards of the DCP, notwithstanding the elevated floor levels brought about by the flooding levels.

Views

The DCP sets the following Planning Outcomes in regard to 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 the new development.

The proposed development is single storey and has no measurable impact on primary views. Site inspection does not reveal any significant view lines for nearby and adjoining properties.

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.

Relevant Guidelines

(a) Site and building layout ensures windows do not provide direct and close views into the windows, balconies or private open spaces of adjoining dwellings.

(b) Habitable room windows on upper-floor levels (ie floor level greater than 1.5m above pre-development ground level) within 9m from windows of living areas of adjacent dwellings:

- are off-set sufficient distance to limit direct views; or

- include measures to screen or obscure views between the dwellings (curtains are not sufficient for screening).

(c) Balconies of an upper-floor level (as defined above) within 9m of habitable rooms or private open space are permanently screened to reasonably obscure direct views to adjacent rooms and private open space.

The adjoining neighbour to the east has raised concerns about the impacts of privacy resulting from the units at the rear of the site. The raised floor levels of the two dwellings at the rear will limit the effectiveness of boundary fencing to preserve privacy for the eastern neighbours. An assessment of the plans revealed that there is potential for overlooking of the adjoining property to the east, and also towards the existing dwelling within the development site to the immediate north, from within the new dwellings when looking out of their windows and the glazed doors leading to the alfresco areas. There will also be some mutual privacy issues arising from the existing elevated deck area of the front dwelling and the north facing living room of proposed Unit 1. Whilst a privacy impact has been identified in the assessment, it is considered reasonable to address the privacy issues by way of suitable conditions of consent. To this end it is considered necessary to impose the following suite of conditions in Stage 2 of the development consent (dual occupancy).

Prior to the issue of a Construction Certificate

A detailed plan at a scale of not less than 1:20 professionally drawn by an architect or architectural draftsperson providing specific construction details of privacy screens required by Conditions (xx) and (xx) shall be submitted and approved by Council’s Manager Development Assessments prior to the issue of a Construction Certificate.

Prior to the issue of an Occupation Certificate

Dwelling 1 - Required Privacy Screening

· To provide privacy to the property owner to the east, a screen shall be erected 300mm from the eastern boundary and extending for a distance of not less than 5m along this boundary, measured from the point adjacent to the southern return wall for the alfresco area and extending north. The required screen shall incorporate a minimum height of 2,200mm above existing ground levels. The lower edge of the screen shall be not more than 1.1m above existing ground levels. The screen shall be constructed in solid timber or metal slats with minimum 200mm width slats, fixed at 150mm centres and angled upwards at an angle of not less than 25 degrees.

· The kitchen and laundry windows shall be provided with a privacy screen either on the window or 300mm from the eastern boundary. The screens shall cover the entire glazed area; or if screens are to be erected adjacent to the boundary, for a distance extending at least 1m past the outer edges of each window. In either case the required screen shall incorporate solid timber or metal slats with minimum 200mm width slats, fixed at 150mm centres and angled upwards at an angle of not less than 25 degrees. In the event that the screens are erected adjacent to the boundary, these screens shall be a minimum height of 2,200mm above existing ground levels. The lower edge of the screen shall be not more than 1.1m above existing ground levels.

· The two north facing lounge room windows shall be provided with privacy screens covering the entire glazed area of these windows. The required screens shall incorporate solid timber or metal slats with minimum 200mm width slats, fixed at 150mm centres and angled upwards at an angle of not less than 25 degrees.

Dwelling 2 - Required Privacy Screening

· To provide privacy to the property owner to the east, a screen shall be erected 300mm from the eastern boundary and extending for a distance of not less than 5m along this boundary, measured from the point adjacent to the southern return wall for the alfresco area and extending north. The required screen shall incorporate a minimum height of 2200mm above existing ground levels. The lower edge of the screen shall be not more than 1.1m above existing ground levels. The screen shall be constructed in solid timber or metal slats with minimum 200mm width slats, fixed at 150mm centres and angled upwards at an angle of not less than 25 degrees.

· The kitchen window shall be provided with a privacy screen either on the window or 300mm from the eastern boundary. The screen shall cover the entire glazed area, or if the screen is to be erected adjacent to the boundary, for a distance extending at least 1m past the outer edges of the window. The required screen shall incorporate solid timber or metal slats with minimum 200mm width slats, fixed at 150mm centres and angled upwards at an angle of not less than 25 degrees. In the event that the screen is erected adjacent to the boundary, the screen shall be a minimum height of 2,200mm above existing ground levels. The lower edge of the screen shall be not more than 1.1m above existing ground levels.

Ongoing Performance

Privacy screens required under this consent shall be fixed and permanently retained in accordance with this consent.

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.

In consideration of the DCP Guidelines the proposal is considered to be satisfactory. The site is located in an area where ambient noise levels are expected to be low due to the predominant residential land use pattern.

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 proposed dwellings are appropriate to maintain safety and minimise the potential for crime, vandalism and fear for residents. Habitable room windows will address public roads, thereby providing opportunities for natural surveillance. The proposed landscaping and fencing will not restrict sightlines to public areas, and will provide territorial reinforcement and delineate public and private spaces.

Internal access to the dwellings will be available through the garages, and proposed fencing will provide territorial reinforcement.

Site Access and Circulation Objectives

· To provide convenient and safe access and parking that meets the needs of all residents and visitors.

· To encourage the integrated design of access and parking facilities to minimise visual and environmental impacts.

The development is not inconsistent with the above objectives as detailed below.

Circulation and Design

The DCP sets the following Planning Outcome in regard to Circulation and Design:

· Accessways and parking areas are designed to manage stormwater.

· Accessways, driveways and open parking areas are suitably landscaped to enhance amenity while providing security and accessibility to residents and visitors.

· The site layout allows people with a disability to travel to and within the site between car parks, buildings and communal open space.

With regard to the first dot point, the proposed development is configured so as to conform with the requirements of this planning outcome.

With regard to the second dot point, it is noted that there are two driveways, one leading to the carport for the existing dwelling and the other being the shared driveway to the two units at the rear. Some provision for landscaping of the shared driveway is shown on the plans, and it is further noted that extensive landscaping exists within the front setback area of the existing dwelling.

With regard to the third dot point, it is noted that the flat topography of the site makes it possible to convert the units so as to generally meet the access requirements for people that are mobility impaired. It is acknowledged that at this time the design does not include provisions such as tactile surfaces or shower grab rails, but such provision could be retrofitted into the units if ever the need arose. Outside of the DCP outcome there is no statutory requirement to make every home or its surrounds capable of disabled access. It is noted that the flat terrain makes provision or conversion of the dwellings so as to be wheelchair accessible at least feasible. With regard to other types of common disabilities (such as providing for vision impaired people) there is no provision built into the submitted design, but also no statutory requirement to do so. Similar to the assessment for mobility impaired persons, it would be possible to make alterations to the new buildings as required for other types of disabilities as and if the need arises.

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 accessways within the site

- reduce the visual dominance of car parking areas and accessways.

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

Car Parking Table

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 proposed development seeks approval for the retention of the existing dwelling (which is currently provided with one off-street parking space), the construction of one two bedroom dwelling and one three bedroom dwelling. The net demand for parking under the DCP is 4.3 spaces (rounded up to 5 spaces). The submitted plans show compliance with the DCP requirement in the form of a single car port and stacked space for the existing dwelling and a double garage for each of the new dwellings.

Adequate manoeuvring space is provided to allow the vehicles using the garages at the rear to enter and then leave the site in one turning manoeuvre.

Private Open Space

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

· Private open space is clearly defined for private use.

· Private open space areas are of a size, shape and slope to suit the reasonable requirements of residents including some outdoor recreational needs and service functions.

· Private open space is:

- capable of being an extension of the dwelling for outdoor living, entertainment and recreation

- accessible from a living area of the dwelling

- located to take advantage of outlooks; and to reduce adverse impacts of overshadowing or privacy from adjoining buildings

- orientated to optimise year round use.

The following table demonstrates that each of the proposed dwellings is provided with open space that complies with the minimum requirement in terms of area.

Dwelling	Private Open Space Required by DCP	Private Open Space Provided	Compliance
Existing	70.5m²	94m²	Yes
2	52.6m²	61m²	Yes
3	60.3m²	69m²	Yes

All private open space is provided behind the front building line. The site plan confirms that the private open space for each residential unit will have a minimum dimension of 3m and the yards are able to provide an area of at least 5m x 5m with access to northern sun, consistent with the requirements of the DCP.

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, accessways and parking areas.

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

There are 16 trees proposed to be removed as a result of the proposed development. The plan provides for the retention of 4 trees in the front setback area of the existing dwelling with one tree being retained within the dual occupancy site. However the trees to be removed are considered to be of limited scenic and environmental value, and cannot be justified for retention as a result. It is considered appropriate in this case to allow the removal of the backyard vegetation.

Water and Soil Management Objectives

· To control and minimise the impact of stormwater run-off and soil erosion on adjoining land and downstream.

· To encourage reduced water wastage by reusing, recycling and harvesting stormwater.

The development is not inconsistent with the above objectives as detailed below.

Stormwater

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

· Onsite drainage systems are designed to consider:

- downstream capacity and need for on-site retention, detention and re-use

- scope for on-site infiltration of water

- safety and convenience of pedestrians and vehicles

- overland flow paths.

· Provision is made for onsite drainage which does not cause damage or nuisance flows to adjoining properties.

Council’s Technical Services have advised that the site is affected by an overland flow path that traverses the property. This issue has been addressed elsewhere within this report Relevant conditions of consent are attached to the Notice in relation to address stormwater management of the site.

Erosion and Sedimentation

The DCP sets the following Planning Outcome in regard to Erosion and Sedimentation:

· Measures implemented during construction to ensure that the landform is stabilised and erosion is controlled.

An erosion and sediment control plan will be required to be prepared as part of the engineering design plans for the development. Attached is a condition of consent addressing this issue.

SECTION 7.11 - DEVELOPMENT CONTRIBUTIONS

As previously alluded to in this report, the staging of the proposed development is for a Torrens subdivision in Stage 1, effectively adding 1 Equivalent tenement (ET) at that point. At Stage 2 of the proposed development it is proposed to add a two bedroom and a three bedroom unit to the yield. The contributions that will be required at Stage 1 will effectively reduce the applicable contributions at Stage 2 to that which is applicable to the two bedroom component of the stage. There are no contributions applicable at Stage 3.

Stage 1 Two Lot Subdivision (net yield one lot)

The payment of $10,545.72 is to be made to Council in accordance with Section 7.11 of the Act and Orange Development Contributions Plan 2017 (LGA Remainder) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,922.87 x 1 lot	3,922.87
Community and Cultural	@ $1,137.63 x 1 lot	1,137.63
Roads and Traffic Management	@ $5,178.06 x 1 lot	5,178.06
Plan Preparation & Administration	@ $307.16 x 1 lot	307.16
TOTAL:		$10,545.72

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2017 (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 the Subdivision Certificate for the proposed subdivision. Attached are draft conditions requiring the payment of the required contributions prior to the issue of a Subdivision Certificate.

Stage 2 – Dual Occupancy (net yield adding 1 x two bedroom unit)

The payment of $6,110.36 is to be made to Council in accordance with Section 7.11 of the Act and Orange Development Contributions Plan 2017 (LGA Remainder) towards the provision of the following public facilities:

Open Space and Recreation	@ $2,239.60 x one 2 bedroom dwg	2,239.60
Community and Cultural	@ $649.48 x one 2 bedroom dwg	649.48
Roads and Traffic Management	@ $3,045.91 x one 2 bedroom dwg	3,045.91
Plan Preparation & Administration	@ $175.37 x one 2 bedroom dwg	175.37
TOTAL:		$6,110.36

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2017 (LGA Remainder). This Plan can be inspected at the Orange Civic Centre, Byng Street, Orange.

Section 64 Water and Sewer Headworks Charges

Section 64 water and sewer headwork charges are also applicable to the proposal. Such charges are calculated at the time of release of a Construction Certificate if the buildings are being built first.

PROVISIONS PRESCRIBED BY THE REGULATIONS s4.15(1)(a)(iv)

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

BASIX Commitments (clause 97A)

A BASIX Certificate for the dual occupancy has been submitted in support of the proposed development which demonstrates compliance.

THE LIKELY IMPACTS OF THE DEVELOPMENT s4.15(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 driveway will be appropriately sited so as to prevent vehicle conflicts. As previously considered (see “DCP 2004”), proposed parking and manoeuvring arrangements will ensure that vehicles enter and leave the site in a forward direction.

Flooding

Council’s Development Engineering department provided the following brief comments with respect to the proposed development:

"On investigating the engineering detail for the proposed development at 14 Moulder Street it was found that under Council’s new working draft flood study the property is now indicated as having an overland flow path passing through the site from Moulder Street to Elephant Park. This information was not available to Council until recently when the Consultants gave Council the draft for review. As a result the developer will have to look at a redesign to allow for this flow path and especially the effect on proposed unit 2”.

In the final assessment memo submitted by the Assistant Development Engineer dated 20 September 2018, and following the submission of amended hydraulic details by the applicant, the following comments were made;

“The site is subject to flooding during most storm events due to the natural ground being low lying. In addition, stormwater flows enter the site from the north (overflow from road drainage) and west (natural overland flows) during large storm events.

The applicant has provided preliminary engineering plans that demonstrate that the development can provide on-site stormwater detention and allow for overland flows.

The 2017 flood study indicates a stormwater depth of approximately 200-300mm above natural ground levels for a 1% AEP storm event (870.60m 1% AEP level). Therefore the minimum floor level of the dwellings is 1% level +400mm (871m). The garage floor levels are permitted to be at the 1% level (870.60m).

The existing dwelling has a floor level of 871.24 and is unaffected by flooding.

The applicant will also be required to purchase a drainage easement from Council crossing the parkland for a drainage line to service the development”.

Subject to conditions, Council is now in a position to finalise this matter.

Neighbourhood Amenity

The proposed dwellings will provide and retain a reasonable standard of residential amenity for the proposed dwellings and development on adjoining lands in respect of solar access, privacy etc. The proposed development will provide for a continuation of residential landuse, albeit in a more compact form, and will not alter the function of the neighbourhood. The development will not have adverse impacts on neighbourhood amenity.

Cumulative Impacts

The proposal is considered to be satisfactory in terms of cumulative impact. The proposal will maintain the pattern of single storey detached dwellings that characterise this streetscape. The building design and detailing for the proposed dwellings will generally complement the style of adjoining established dwellings. The proposal provides for a continuation of residential land use, albeit in a more compact form.

The proposed development will not reduce the open space, solar access or privacy afforded to neighbouring properties. Similarly, the site layout and building design will provide a reasonable standard of residential amenity for the proposed dwellings in terms of open space, solar access and privacy.

Impacts on Public Open Space

A small part of Elephant Park to the south would suffer some additional overshadowing as a result of the building proposed to be built close to the shared boundary. Such aspects of the proposed development are likely to have some impact on solar access for the park, however it is considered that such impacts are not sufficiently serious as to constitute a likely significant adverse effect.

THE SUITABILITY OF THE SITE s4.15(1)(c)

Servicing

Council’s Technical Services Division advises that all utility services are available to the site and adequate for the proposal. The proposed development will be connected to Council’s sewer, town water and stormwater reticulations in accordance with normal requirements. Power, telephone and natural gas services will be connected to the dwellings in accordance with the requirements of the relevant supply authority. Attached is a condition of consent addressing this issue.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s4.15(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 three submission had been received. One additional submission (submitted by one of the original objectors) was received just after the close of the exhibition period, but did not raise any new or additional issues for consideration.

A summary of the objections received and comments and responses as appropriate are set out below.

Jane Fuller

· Removing all vegetation from the property will have a significant visual impact from both the front and the rear of the property. The tree line seems to fit into the “tree environment” of the area and most notable the adjoining public space and area known as Elephant Park. The impact of total removal will result in a somewhat bland, featureless and blunt delineation of the outdoor recreation area and the adjoining residential properties.

Comment:

Whilst a significant proportion of the existing landscaping on the site will be removed as a result of the development, it is misreading the plans to claim that all vegetation is to be removed. A small remnant in the form of the trees and landscaping in front of the existing house is proposed to be retained. This small remnant is considered to be significant as it is this vegetation forward of the building line that is most important and most significant to the local amenity and neighbourhood character.

With respect to the rear yard where the majority of tree removals are to occur and the new infill development to be constructed, there will be an impact in terms of vegetation loss, however these losses are not considered to be significant in the context of the neighbourhood character.

With respect to the potential visual impacts arising for the public spaces that form Elephant Park, the following aerial taken from the NSW Government’s “Six Maps” series shows the premises is at the end of a restricted corridor of open space land that in turn tends to limit the visual impacts when viewed from the rest of the park.

Figure 2 - aerial photograph of subject land

It is considered that the screening effect caused by the existing vegetation, the configuration of the park (which presents as a small “alcove” arrangement), and the similarity of other nearby and surrounding development that also face or share a common boundary with the park, render the visual intrusion caused by the development on the integrity of the neighbourhood character, in particular the visual impacts on Elephant Park, as not significant.

· The impact on Avian species and other natives such as insects and possums has not been addressed in the application.

Comment:

The vegetation on the subject land subject land takes the form of “backyard landscaping”, which is largely unprotected under current legislation. It cannot be viewed under any reasonable application of the environmental checks and balances of the current legislation as likely to offer much, if any, environmental benefit to local species. There is obviously some benefit to retention of greenspaces, however the value of this landscaping on both environmental and visual grounds is limited, and far outweighed by the need to undertake urban consolidation and urban renewal in the existing parts of the City.

· Whilst infill development is somewhat reasonable, the proposed additional 5 dwellings (sic erat scriptum – ‘as written’; by the objector) will provide a significant impact by way of bulk of the buildings, traffic volume which might be more hazardous given the proximity of a major intersection at Moulder/Woodward Street and may impact on the amenity of surrounding landowners due to the presumed significant increase in residents.

Comment:

The development does not propose five dwellings. The proposal seeks to retain the existing dwelling and construct a dual occupancy in the rear section of the parcel. The densities and site coverages for the proposed development are higher than the surrounding existing development patterns, but within the limits specified in Council planning controls. In terms of likely impacts on local amenity, the proposed development is considered to be reasonable and satisfactory.

· Elephant Park is a significant open space used by many local groups as well as the general community. A northern building border without the existing trees and the proposed additional residential buildings would create significant adverse interruption of the current view line of trees and fences

Comment:

The amenity of the park is significant, however the impact of the proposed development on that significance is considered to be quite minor. The tree coverage on the residential land is not necessary to maintain the open space benefits of the park; and the impacts arising from the increased density of the development in terms of built form are about the same as for other existing built forms that also adjoin the park.

Candice Duesbury

· Unit 1 living space and outdoor area will be looking straight into our house, deck area and yard. Obviously we aren’t happy having units built next door but have accepted there’s not much we can do. We do request that they heighten the fence by putting screening above the fence for privacy.

Comment:

The elevated floor levels made necessary by the flood planning requirements generates a need for privacy screens for the windows and glazed doors that face in that direction (ie the east facing elevation). A detailed assessment of privacy related matters has been provided above under the heading “Visual Privacy”. Included in that assessment is a suite of conditions of consent that have been recommended to address the privacy issue. In general however, as single storey development it is considered that the proposed development with the recommended conditions imposed will have only limited and minor impacts on the privacy of nearby and surrounding dwellings.

Neil Jones

· The proponent states that “major existing trees retained...through appropriate siting of buildings, access ways and parking areas”.

However, An examination of Fig 1 and Fig 2 show that of the 21 identified trees on the whole site, only 5 in total are being retained, and only 1 of which is in the dual occupancy site. It would appear that the siting of the dual occupancy houses has paid little regard to retention of existing trees. The loss of trees is not able to be compensated by tree plantings in the very limited open space. There is simply not enough room in the current plans and siting.

I would encourage Council staff to request a redesign and full landscape plan that facilitates planting of some medium sized deciduous trees complemented by understory of for example, native shrubs, that are in keeping with the contemporary design of the 2 new houses.

The proposed planting of Camelia and Pittosporum spp might be suitable in front of the existing dwelling, in association with the retained trees, but they certainly do not achieve the many benefits of an appropriate mix of deciduous trees and shrubs.

Comment:

There will be a loss of 16 trees from the site if approved, with little opportunity for replacements to be planted within the dual occupancy component as proposed. For the existing dwelling some space in the front setback is available. Importantly this is the only area of the site with the necessary deep soil zones to enable effective tree planting/retention. It is not feasible to plant trees in areas where such deep soil conditions are not available. Given that the trees proposed to be removed are of low environmental value (in fact may pose an environmental risk due to their non-native specification), have limited visual significance and amenity, and that the proposed development is generally consistent with urban renewal and urban consolidation objectives, it is difficult in this instance to give a great deal of weight to the tree losses on this site.

PUBLIC INTEREST s4.15(1)(e)

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. A section 4.15 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, D18/53781 ⇩

2 Plans, D18/53769 ⇩

3 Submissions, D18/53762 ⇩

Extraordinary Planning and Development Committee 17 October 2018

2.4 Development Application DA 91/2018(1) - 14 Moulder Street

Attachment 1 Notice of Approval

ORANGE CITY COUNCIL

Development Application No DA 91/2018(1)

NA18/ Container PR8832

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

Development Application
Applicant Name:	Mr PR Gunn
Applicant Address:	C/- Saunders & Staniforth 2/204-206 Lords Place ORANGE NSW 2800
Owner’s Name:	Mr PJ, Mrs CJ, Mr WT and Ms SJ Gunn
Land to Be Developed:	Lot 1 DP 38296 - 14 Moulder Street, Orange
Proposed Development:	Subdivision (two lot residential), Demolition (existing shed), Dual Occupancy and Subdivision (three lot Community Title)

Building Code of Australia building classification:	To be determined by the PC

Determination made under Section 4.16
Made On:	17 October 2018
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	18 October 2018
Consent to Lapse On:	18 October 2023

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 by Saunders & Staniforth referenced 14 Moulder, dated 19.09.2018, sheets 1, 2, 3, 4, 5, 6, 7 and 8; except as amended by the further plans submitted by Heath Consulting dated 14 September 2018, REV B, sheets 1 and 2 (10 sheets)

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

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

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

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

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

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

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

(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 council) has given the council written notice of the updated information.

(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.

DEMOLITION, TWO LOT SUBDIVISION

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(7) The applicant is to submit a waste management plan that describes the nature of wastes to be removed, the wastes to be recycled and the destination of all wastes. All wastes from the demolition and construction phases of this project are to be deposited at a licensed or approved waste disposal site.

(8) Proposed Lots 100 and101 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 grated concrete 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 of a Construction Certificate.

(9) Where stormwater crosses Council owned land, an easement is to be created and payment shall be made to Council in accordance with Councils Management Plan current at the time of issue of a Construction Certificate. Payment for the storm water easement shall be made to Orange City Council prior to the issue of a Construction Certificate.

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

(11) Application is to be made for a Construction Certificate for works associated with the proposed vehicle access serving Lot 101. Engineering plans, showing details of the proposed location of the vehicle access, construction details, levels and traffic management works, are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) upon application for a Construction Certificate.

PRIOR TO WORKS COMMENCING

(12) Where any existing fencing at the perimeter of the site needs to be removed, or is of a type which does not ensure the occupants of any adjoining residence adequate privacy, new fencing of the type shown on the approved development application plans, or as referred to elsewhere in this Notice, shall be erected prior to any building or construction work being carried out upon this development.

(13) This consent permits the removal of the trees not shown for retention on the approved development plans. Those trees to be retained, as shown on the approved plan shall be fully protected from prior to works commencing to the issue of an Occupation Certificate, in accordance with AS 4970-2009 – Protection of trees on Development Sites. The trees to be retained cannot be removed except with the approval of Council under its Tree protection Permit system.

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

(15) A Construction Certificate application for the development including the car port is required to be submitted to, and issued by Council/Accredited Certifier prior to any excavation or building works being carried out onsite.

DURING CONSTRUCTION/SITEWORKS

(16) 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.

(17) Building demolition is to be carried out in accordance with Australian Standard 2601:2001 - The Demolition of Structures and the requirements of Safe Work NSW.

(18) Asbestos containing building materials must be removed in accordance with the provisions of the Work Health and Safety Act 2011 and any guidelines or Codes of Practice published by Safe Work NSW, and disposed of at a licenced landfill in accordance with the requirements of the NSW EPA.

(19) No existing street trees shall be removed without Council approval. Where such approval is granted, the trees shall be replaced at full cost by the applicant with super advanced trees of a species nominated by Council's relevant officer.

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

(21) 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.

(22) Proposed Lot 101 shall be provided with a 5.0m wide heavy duty concrete layback and footpath crossing aligning with the 6.0m access handle on the Moulder Street frontage. All work shall be to the requirements and standards of the Orange City Council Development and Subdivision Code.

(23) Water and sewerage reticulation is to be provided to each lot in the proposed residential subdivision in accordance with the Orange City Council Development and Subdivision Code.

(24) Water and sewer services, including mains construction, easements and all associated materials and works, are to be provided for the development at the cost of the developer.

PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

(25) The payment of $10,545.72 is to be made to Council in accordance with Section 7.11 of the Act and Orange Development Contributions Plan 2017 (LGA Remainder) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,922.87 x 1 lot	$3,922.87
Community and Cultural	@ $1,137.63 x 1 lot	$1,137.63
Roads and Traffic Management	@ $5,178.06 x 1 lot	$5,178.06
Plan Preparation & Administration	@ $307.16 x 1 lot	$307.16
TOTAL:		$10,545.72

(26) A Surveyor’s Certificate or written statement is to be provided to the Principal Certifying Authority, stating that the buildings within the boundaries of proposed Lot 100 comply in respect of the distances of walls from boundaries and the common wall construction prior to the issuing of the Subdivision Certificate.

(27) Application shall be made for a Subdivision Certificate under Section 6.3(1)(d) of the Act.

(28) 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 1.0 ETs for water supply headworks and 1.0 ETs for sewerage headworks. A Certificate of Compliance, from Orange City Council in accordance with the Water Management Act 2000, will be issued upon payment of the contributions.

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

(29) Application is to be made to Telstra/NBN for infrastructure to be made available to each individual lot within the development. Either a Telecommunications Infrastructure Provisioning Confirmation or Certificate of Practical Completion is to be submitted to the Principal Certifying Authority confirming that the specified lots have been declared ready for service prior to the issue of a Subdivision Certificate.

(30) A Notice of Arrangement from Essential Energy stating arrangements have been made for the provision of electricity supply to the development, is to be submitted to the Principal Certifying Authority prior to the issue of a Subdivision Certificate.

(31) 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 any sewer mains located within the lots. 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.

(32) 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.

(33) 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 1919 is to be created on the title of the burdened 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.

(34) A 3.0m wide stormwater easement shall be created along the full length of the eastern boundary of proposed Lots 100 and 101 to accommodate overland flows from Moulder Street.

(35) Certification from Orange City Council is required to be submitted to the Principal Certifying Authority prior to the issue of a Subdivision Certificate stating that all works relating to connection of the development to Council assets, works on public land, works on public roads, 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, and that Council will take ownership of the infrastructure assets.

(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.

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(37) The existing carport on proposed Lot 100 is subject to flooding and shall not be enclosed on any side, including the installation of roller doors, without the prior consent of Orange City Council.

DUAL OCCUPANCY

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(38) A detailed plan at a scale of not less than 1:20 professionally drawn by an architect or architectural draftsperson providing specific construction details of privacy screens required by Conditions (63) and (64) shall be submitted and approved by Council’s Manager Development Assessments prior to the issue of a Construction Certificate.

(39) The payment of $6,110.36 is to be made to Council in accordance with Section 7.11 of the Act and Orange Development Contributions Plan 2017 (LGA Remainder) towards the provision of the following public facilities:

Open Space and Recreation	@ $2,239.60 x one 2 bedroom dwg	$2,239.60
Community and Cultural	@ $649.48 x one 2 bedroom dwg	$649.48
Roads and Traffic Management	@ $3,045.91 x one 2 bedroom dwg	$3.045.91
Plan Preparation & Administration	@ $175.37 x one 2 bedroom dwg	$175.37
TOTAL:		$6,110.36

(40) 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. No plumbing and drainage is to commence until approval is granted.

(41) 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.

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

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

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

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

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

(43) 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.

(44) Engineering plans providing complete details of the proposed driveway and car parking areas are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) upon application for a Construction Certificate. These plans are to provide details of levels, cross falls of all pavements, proposed sealing materials and proposed drainage works and are to be in accordance with Orange City Council Development and Subdivision Code.

(45) Proposed dwellings 1 and 2 shall be provided with interlot stormwater drainage. A grated concrete stormwater pit is to be constructed for each dwelling. 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 of a Construction Certificate.

(46) A 150mm-diameter sewer main is to be constructed from Council’s existing main to serve each dwelling. Prior to a Construction Certificate being issued engineering plans for this sewerage system are to be submitted to and approved by Orange City Council.

(47) 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 water supply headworks, sewerage headworks and stormwater for a two bedroom dwelling. 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.

(48) Prior to the issue of a Construction Certificate evidence shall be provided to the Principal Certifying Authority that proposed Lot 100 and 101 has been registered with NSW Land and Property Information.

(49) Prior to the issue of a Construction Certificate the plans shall be amended as follows:

· the finished floor level of proposed dwellings 1 and 2 shall be a minimum of RL 871.10m on Australian Height Datum; and

· the garages shall be a minimum of RL 870.60m on Australian Height Datum; and

· the garages shall be constructed of flood compatible materials and all electrical connections are located a minimum of 1.0m above finished floor level.

PRIOR TO WORKS COMMENCING

(50) 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.

(51) 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.

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

DURING CONSTRUCTION/SITEWORKS

(53) No existing street trees shall be removed without Council approval. Where such approval is granted, the trees shall be replaced at full cost by the applicant with super advanced trees of a species nominated by Council's relevant officer.

(54) 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.

(55) A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority prior to the pouring of the slab or footings.

(56) 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.

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

(58) 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.

(59) Proposed dwellings 1 and 2 shall be provided with a concrete driveway constructed to a minimum width of 4.5 metres within a generally 6.0m wide accessway to the requirements and standards of the Orange City Council Development and Subdivision Code.

(60) 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.

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

(62) Water and sewerage reticulation is to be provided to each dwelling in the proposed dual occupancy in accordance with the Orange City Council Development and Subdivision Code.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(63) Dwelling 1 - Required Privacy Screening

· The kitchen and laundry windows shall be provided with a privacy screen either on the window or 300mm from the eastern boundary. The screens shall cover the entire glazed area; or if screens are to be erected adjacent to the boundary, for a distance extending at least 1m past the outer edges of each window. In either case the required screen shall incorporate solid timber or metal slats with minimum 200mm width slats, fixed at 150mm centres and angled upwards at an angle of not less than 25 degrees. In the event that the screens are erected adjacent to the boundary, these screens shall be a minimum height of 2,200mm above existing ground levels. The lower edge of the screens shall be not more than 1.1m above existing ground levels.

(64) Dwelling 2 - Required Privacy Screening

· To provide privacy to the property owner to the east, a screen shall be erected 300mm from the eastern boundary and extending for a distance of not less than 5m along this boundary, measured from the point adjacent to the southern return wall for the alfresco area and extending north. The required screen shall incorporate a minimum height of 2200mm above existing ground levels. The lower edge of the screen shall be not more than 1.1m above existing ground levels. The screen shall be constructed in solid timber or metal slats with minimum 200mm width slats, fixed at 150mm centres and angled upwards at an angle of not less than 25 degrees.

(65) 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.

(66) A total of five (5) off-street car parking spaces (including at least one space for the existing dwelling) 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.

(67) 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.

(68) 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 either an interim or a final Occupation Certificate.

(69) 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.

(70) 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, works on public roads, 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, and that Council will take ownership of the infrastructure assets.

(71) 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.

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(72) Privacy screens required under this consent shall be fixed and permanently retained in accordance with this consent.

THREE LOT COMMUNITY TITLE SUBDIVISION

DURING CONSTRUCTION/SITEWORKS

(73) 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

(74) A Surveyor’s Certificate or written statement is to be provided to the Principal Certifying Authority, stating that the buildings within the boundaries of proposed Lots 1 and 2 comply in respect of the distances of walls from boundaries and the common wall construction prior to the issuing of the Subdivision Certificate.

(75) Application shall be made for a Subdivision Certificate under Section 6.3(1)(d) of the Act.

(76) Application is to be made to Telstra/NBN for infrastructure to be made available to each individual lot within the development. Either a Telecommunications Infrastructure Provisioning Confirmation or Certificate of Practical Completion is to be submitted to the Principal Certifying Authority confirming that the specified lots have been declared ready for service prior to the issue of a Subdivision Certificate.

(77) A Notice of Arrangement from Essential Energy stating arrangements have been made for the provision of electricity supply to the development, is to be submitted to the Principal Certifying Authority prior to the issue of a Subdivision Certificate.

(78) 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.

(79) 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.

(80) All engineering conditions of development relating to the servicing of the development shall be completed prior to the issuing of a Subdivision Certificate.

(81) Certification from Orange City Council is required to be submitted to the Principal Certifying Authority prior to the issue of a Subdivision Certificate stating that all works relating to connection of the development to Council assets, works on public land, works on public roads, 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, and that Council will take ownership of the infrastructure assets.

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

Other Approvals

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

Nil

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

Nil

Right of Appeal

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

*Disclaimer - S88B of the Conveyancing Act 1919* - 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:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	18 October 2018

Extraordinary Planning and Development Committee 17 October 2018

2.5 Development Application DA 224/2018(1) - 102-110 Autumn Street

RECORD NUMBER: 2018/2494

AUTHOR: Michael Glenn, Senior Planner

EXECUTIVE Summary

Application lodged	28 June 2018
Applicant/s	Havenhand & Mather Architects Pty Ltd
Owner/s	United Protestant Association of NSW Limited
Land description	Lot 50 DP 1130577 - 102-110 Autumn Street, Orange
Proposed land use	Demolition (demolition of 16 existing self-contained dwellings, two carports and removal of trees), and Seniors Housing (construction of eight self-contained dwellings)
Value of proposed development	$3,850,000.00

Council's consent is sought to undertake demolition of existing, obsolete self-care units (totalling 16 in number) and two carports, and to carry out the removal of trees on the site. It is then proposed to construct eight self-contained dwellings (seniors housing). The subject land is described as Lot 50 DP 1130577 - 102-110 Autumn Street, Orange (known as Astill Court).

Figure 1 - locality plan

The development comprises a group of four buildings, each containing two semi-detached units. Each would be provided with its own garage and outdoor private open space. Two internal roads are proposed, known as North Road and Green Place. These are not intended to be Council managed assets.

The dwellings are proposed to be configured and fitted out to a standard suitable for able bodied seniors, but the internal dimensions, gradients and general characteristics of the proposed dwellings are such that they could be converted to accommodation suitable for more mobility impaired occupants if the demand arose. In detail, the proposed units each comprise two bedrooms, combined living/dining and kitchen areas, ensuite, separate bathroom laundry and internally accessed single garage.

The development is consistent with Council’s relevant planning provisions and the Seniors Housing SEPP, and as such is recommended for approval.

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

State Environmental Planning Policy (Housing For Seniors Or People with a Disability 2004)

The provisions of this SEPP set out the principal controls relating to Seniors Living Housing and in general take precedence over the Orange Local Environmental Plan 2011, in any situation where inconsistencies arise between the LEP and the SEPP.

DIRECTOR’S COMMENT

Astill Court is an established retirement village located in Autumn Street. Over recent years the UPA has progressively redeveloped the village in stages. The latest proposal involves the demolition of existing, obsolete self-care units (totalling 16 in number) in the centre area of the site to facilitate the construction of eight self-contained new dwellings (seniors housing). The applicant has suitably demonstrated that the development complies with Council’s LEP and DCP, together with the requirements of SEPP (Housing for Seniors or People with a Disability) 2004. Staff have evaluated the proposal and it is recommended that Council supports the proposal.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 224/2018(1) for Demolition (demolition of 16 existing self-contained dwellings, two carports and removal of three trees), and Seniors Housing (construction of eight self-contained dwellings) at Lot 50 DP 1130577 - 102-110 Autumn Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought for demolition (16 existing self-contained dwellings, two carports and removal of three trees) and the construction of seniors housing (eight self-contained dwellings). The development comprises seniors housing, being eight self-contained dwellings suitable for occupation by able bodied persons, but capable of conversion to suit mobility impaired persons if the need arises. Each of the proposed units would comprise two bedrooms with ensuite, a separate bathroom, and garaging for one vehicle with laundry. Each of the dwellings is proposed to include a combined kitchen/dining/living area. Two toilets for each unit are proposed - one each in the bathroom and ensuite. The development also incorporates private open space areas for each of the proposed units.

The proposed development is seniors living residential accommodation, and as such must either provide essential services on the site, or be within 400m of accessible public transport (for aged persons or people with a disability, including gradients and footpath surfaces) that meets the relevant Australian Standards. It is also critical that, as aged care accommodation, the proposal provide onsite either a holistic level of care for both self-reliant retirees and also people with greater levels of dependence (or demonstrate that the units in the application can be so adapted to meet the relevant design standards); or alternatively show that such capacity as might be required is locally available. In this case the applicant has shown that complying access to public transport is possible within the specified distance, and further demonstrated that supported care facilities are available within the locality; as well as incorporating into the design the ability to convert as many units as might be required in future for occupation by mobility impaired persons.

MATTERS FOR CONSIDERATION

Section 1.7 - Application of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994

Development Applications lodged on or after 25 February 2018

Having regard to the relevant provisions and based on an inspection of the subject property, it is considered that the proposed development is not likely to significantly affect a threatened species. A Biodiversity Development Assessment Report is not required in this instance. A site inspection reveals that the subject property has no biodiversity or habitat value.

Section 4.15

Section 4.15 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 s4.15(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: delete those not relevant

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

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

The application is considered to be consistent with aims (a), (b) and (f) listed above. It is not inconsistent with any of the other aims of the plan.

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 1.7 - 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:	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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Part 2 - Permitted or Prohibited Development

Clause 2.1 - Land Use Zones and Clause 2.3 - Zone Objectives and Land Use Table

The subject site is located within the R1 General Residential zone. The proposed development comprises self-contained dwellings proposed as seniors housing. Seniors housing is defined in OLEP 2011 in the following terms:

seniors housing means a building or place that is:

(a) a residential care facility, or

(b) a hostel within the meaning of clause 12 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, or

(c) group of self-contained dwellings, or

(d) a combination of any of the buildings or places referred to in paragraphs (a)–(c),

and that is, or is intended to be, used permanently for:

(e) seniors or people who have a disability, or

(f) people who live in the same household with seniors or people who have a disability, or

(g) staff employed to assist in the administration of the building or place or in the provision of services to persons living in the building or place,

but does not include a hospital.

Note. Seniors housing is a type of residential accommodation.

Self-contained dwellings are a particular form of seniors housing. Seniors housing is permitted with consent in this zone. It is noted that State Environmental Planning Policy (Housing for Seniors of People with a Disability) is also applicable to the development and that it takes precedence over the LEP (or any other environmental planning instrument) where any inconsistency exists. In the case of land use classification there are no significant differences between the LEP and the SEPP.

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:

· 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 is not inconsistent with the zone objectives listed above. The application seeks to provide for improved residential aged care accommodation in a planned and supported environment.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work. This requirement does not apply to any demolition that is defined as exempt development.

The proposal involves demolition and the applicant is seeking the consent of Council. The demolition works proposed will have no significant impact on adjoining lands, streetscape or public realm.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Not applicable.

Part 5 - Miscellaneous Provisions

Clause 5.10 is applicable and states in part:

(1) The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

(b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,

(c) to conserve archaeological sites,

(d) to conserve Aboriginal objects and Aboriginal places of heritage significance.

(4) The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

The subject land is located in the vicinity of Newman Park at 197 March Street Newman Park comprises a civic landscaped park of 2 hectares, significant for its exotic trees of more than 100 years in age. The park was constructed in 1890 and the trees were planted in the 1890s. The 16 oak trees were added at the end of World War One by servicemen and pupils of East Orange Public School to commemorate former pupils who had died in the war. The park complements the streetscape, contributes to the area and is highly valued by the community. Whilst this item adjoins the subject land, the development site itself is well separated from the park. The development will not have an adverse impact upon the park.

Part 6 - Urban Release Area

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

Part 7 - Additional Local Provisions

7.1 - Earthworks

This clause establishes a range of matters that must be considered prior to granting development consent for any application involving earthworks, such as:

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality of the development

(b) the effect of the development on the likely future use or redevelopment of the land

(c) the quality of the fill or the soil to be excavated, or both

(d) the effect of the development on the existing and likely amenity of adjoining properties

(e) the source of any fill material and the destination of any excavated material

(f) the likelihood of disturbing relics

(g) the proximity to and potential for adverse impacts on any waterway, drinking water catchment or environmentally sensitive area

(h) any measures proposed to minimise or mitigate the impacts referred to in paragraph (g).

The earthworks proposed in the application are limited to the extent of cutting and filling required for the proposed buildings. The extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways.

The extent of the earthworks will not materially affect the potential future use or redevelopment of the site that may occur at the end of the proposed development's lifespan. The site is not known to be contaminated.

The earthworks will be appropriately supported onsite and the change in ground level is not substantial. The effect on the amenity of adjoining properties is considered to be minor.

The site is not known to contain any Aboriginal, European or archaeological relics. Previous known uses of the site do not suggest that any relics are likely to be uncovered. The site is not in proximity to any waterway, drinking water catchment or sensitive area.

7.3 - Stormwater Management

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

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

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

The proposal has been designed to include permeable surfaces and includes onsite retention of stormwater runoff. Conditions of consent have been recommended to address stormwater related matters.

7.6 - Groundwater Vulnerability

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

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

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

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

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

Clause 7.11 - Essential Services

Clause 7.11 applies and states:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) storm water drainage or on-site conservation,

(e) suitable road access.

In consideration of this clause, all utility services are available to the land and adequate for the proposal.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

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

7 - Contamination and Remediation to be Considered in Determining Development Application

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

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

The development has had a long history of being used for residential purposes dating back to circa 1950 or earlier. There is nothing to suggest that the site is contaminated; nor is there any evidence to suggest that the site should not continue to be used for such purposes.

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies to the subject development. As such, the following is provided in consideration of the development.

2 - Aims of Policy

(1) This Policy aims to encourage the provision of housing (including residential care facilities) that will:

(a) increase the supply and diversity of residences that meet the needs of seniors or people with a disability, and

(b) make efficient use of existing infrastructure and services, and

(c) be of good design.

(2) These aims will be achieved by:

(a) setting aside local planning controls that would prevent the development of housing for seniors or people with a disability that meets the development criteria and standards specified in this Policy, and

(b) setting out design principles that should be followed to achieve built form that responds to the characteristics of its site and form, and

(c) ensuring that applicants provide support services for seniors or people with a disability for developments on land adjoining land zoned primarily for urban purposes.

The applicant has suitably demonstrated that the proposal is consistent with the general aims of the policy.

4 - Land to Which Policy Applies

This Policy applies to land within New South Wales that is land zoned primarily for urban purposes or land that adjoins land zoned primarily for urban purposes, but only if:

(a) development for the purpose of any of the following is permitted on the land:

(i) dwelling-houses,

(ii) residential flat buildings,

(iii) hospitals,

(iv) development of a kind identified in respect of land zoned as special uses, including (but not limited to) churches, convents, educational establishments, schools and seminaries, or

(b) the land is being used for the purposes of an existing registered club.

The land is zoned R1 General Residential pursuant to Orange LEP 2011. The objectives of the zone indicate that the land is zoned primarily for urban purposes and is consistent with the identified purposes listed in 1(a) above.

8 - Seniors (definition)

In this Policy, seniors are any of the following:

(a) people aged 55 or more years,

(b) people who are resident at a facility at which residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) is provided,

(c) people who have been assessed as being eligible to occupy housing for aged persons provided by a social housing provider.

9 - People with a Disability (definition)

people with a disability are people of any age who have, either permanently or for an extended period, one or more impairments, limitations or activity restrictions that substantially affect their capacity to participate in everyday life.

With regard to clauses 8 and 9, the Statement of Environmental Effects submitted with the application specifies that the housing is intended for seniors and people with a disability as set out in this clause. Elsewhere the SEPP allows Council the ability to impose as a condition of consent a Restriction-as-to-User limiting future occupants to seniors or disabled people, or people married to a senior or person with a disability, or carers for a senior or person with a disability. Attached is a condition of consent addressing this issue.

10 - Seniors Housing (definition)

In this Policy, seniors housing is residential accommodation that is, or is intended to be, used permanently for seniors or people with a disability consisting of:

(a) a residential care facility, or

(b) a hostel, or

(c) a group of self-contained dwellings, or

(d) a combination of these,

but does not include a hospital.

Note. The concept of seniors housing is intended to be a shorthand phrase encompassing both housing for seniors and for people with a disability. This Policy deals with both kinds of housing.

The proposed development is consistent with 10(c) above of the seniors housing classification, being a group of self-contained dwellings.

Accommodation provided by seniors housing does not have to be limited to seniors or people with a disability. Clause 18 provides that seniors housing may be used for the accommodation of the following:

(a) seniors or people who have a disability,

(b) people who live within the same household with seniors or people who have a disability,

(c) staff employed to assist in the administration of and provision of services to housing provided under this Policy.

13 - Self-Contained Dwellings

The proposed development is consistent with 'infill self-care housing" which under this Policy is:

Seniors housing that consists of self-contained dwellings where the following services are available on the site: meals, cleaning services, personal care, nursing care.

14 - Objectives

The objective of this Chapter is to create opportunities for the development of housing that is located and designed in a manner particularly suited to both those seniors who are independent, mobile and active as well as those who are frail, and other people with a disability regardless of their age.

This clause is a critical assessment issue as Council must be satisfied that a given development for seniors living can cater to the full range of housing needs for seniors and people with a disability, or have access to other facilities able to provide for un-met needs contained in the proposed development. Social Impact Statements can be a requirement, but are not considered necessary in this case as the housing proposed meets the criteria for “adaptable housing” and the UPA already provide more intense levels of nursing home style care at their nearby Spring Street facility (83 Spring Street).

The facility at 83 Spring Street is designed to cater to seniors who are more frail, with less mobility than able bodied seniors. It is considered that this off-site facility will at least partly meet the housing needs of an increasingly ageing population as it moves though their system. The applicant in the Statement of Environmental Effects supporting the application demonstrates that the housing proposed has characteristics (relating to room sizes, doorway widths, access gradients etc) that could be adapted so as to comply with AS 1428 and other mobility related Australian Standards.

18 - Restrictions on Occupation of Seniors Housing

(1) Development allowed by this Chapter may be carried out for the accommodation of the following only:

(a) seniors or people who have a disability,

(b) people who live within the same household with seniors or people who have a disability,

(c) staff employed to assist in the administration of and provision of services to housing provided under this Policy.

(2) A consent authority must not consent to a development application made pursuant to this Chapter unless:

(a) a condition is imposed by the consent authority to the effect that only the kinds of people referred to in subclause (1) may occupy any accommodation to which the application relates, and

(b) the consent authority is satisfied that a restriction as to user will be registered against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act, limiting the use of any accommodation to which the application relates to the kinds of people referred to in subclause (1).

A condition is included in the consent imposing these restrictions.

25 - Application for Site Compatibility Certificate

(3) Nothing in this clause limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies.

A site capability statement is not required for the subject development. Further matters outside of this clause are considered later within the report.

26 Location and Access to Facilities

(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have access that complies with subclause (2) to:

(a) shops, bank service providers and other retail and commercial services that residents may reasonably require, and

(b) community services and recreation facilities, and

(c) the practice of a general medical practitioner.

See sub-clause (2). There is no direct access to these services, however there is access to public transport that in turn leads to these services, and connecting pedestrian access from the public transport (a bus stop in Nile Street) to the proposed units.

(2) Access complies with this clause if:

(a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development that is a distance accessible by means of a suitable access pathway and the overall average gradient for the pathway is no more than 1:14, although the following gradients along the pathway are also acceptable:

(i) a gradient of no more than 1:12 for slopes for a maximum of 15 metres at a time,

(ii) a gradient of no more than 1:10 for a maximum length of 5 metres at a time,

(iii) a gradient of no more than 1:8 for distances of no more than 1.5 metres at a time, or

The proposed development has been shown to comply with this requirement.

(c) in the case of a proposed development on land in a local government area that is not within the Sydney Statistical Division—there is a transport service available to the residents who will occupy the proposed development:

(i) that is located at a distance of not more than 400 metres from the site of the proposed development and the distance is accessible by means of a suitable access pathway, and

(ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the facilities and services referred to in subclause (1), and

(iii) that is available both to and from the proposed development during daylight hours at least once each day from Monday to Friday (both days inclusive),

and the gradient along the pathway from the site to the public transport services (and from the transport services to the facilities and services referred to in subclause (1)) complies with subclause (3).

The submission includes information demonstrating that this requirement is met.

(4) For the purposes of subclause (2):

(a) a suitable access pathway is a path of travel by means of a sealed footpath or other similar and safe means that is suitable for access by means of an electric wheelchair, motorised cart or the like, and

(b) distances that are specified for the purposes of that subclause are to be measured by reference to the length of any such pathway.

(5) In this clause:

bank service provider means any bank, credit union or building society or any post office that provides banking services.

With respect to the provisions of (4) and (5), the applicant is relying on existing off-site services to be accessed either by private motor vehicles; or as the residents age, the potential for seniors to access a bus service, with a bus stop on the opposite side of Nile Street.

The accessibility guidelines attached or relating to the SEPP set a maximum distance of 400m or less from the front door of a unit to the public transport access point, and travel paths in which gradients of the Australian Standard are met. For this application the applicant has submitted information that suggests full compliance with the “suitable access pathway” requirements of the SEPP.

28 - Water and Sewer

(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.

(2) If the water and sewerage services referred to in subclause (1) will be provided by a person other than the consent authority, the consent authority must consider the suitability of the site with regard to the availability of reticulated water and sewerage infrastructure. In locations where reticulated services cannot be made available, the consent authority must satisfy all relevant regulators that the provision of water and sewerage infrastructure, including environmental and operational considerations, are satisfactory for the proposed development.

Adequate provisions have been made in terms of water and sewer. Relevant conditions are attached.

29 - Consent Authority to Consider Certain Site Compatibility Criteria for Development Applications to Which Clause 24 Does Not Apply

(1) This clause applies to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing (other than dual occupancy) to which clause 24 does not apply.

Note. Clause 24 (1) sets out the development applications to which that clause applies.

(2) A consent authority, in determining a development application to which this clause applies, must take into consideration the criteria referred to in clause 25(5)(b)(i),(iii) and (v).

An address of this criteria is provided below

25(5)(b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria:

(i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development,

(iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision

(v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development.

In relation to (i) above, the development site is not subject to known natural resources, hazards or significant environmental value in terms of flora and fauna. The development is not considered to have significant heritage value, although it is noted that the land is beside a public park that is listed in the heritage inventory. The actual location of the development within the site is well separated from the heritage item.

The site comprises essentially a different form of seniors living accommodation, more attune to current market trends and demands, which is not an invalid approach to seniors living housing. It is considered that the existing use as seniors living housing (as also configured in the current proposal) is compatible and non-conflicting with the adjoining residential uses.

In relation to (iii) above, the application shows that complying access to public transport, that in turn leads to the specified services required, is available to the proposed development. It is considered that the existing infrastructure and services will be adequate to meet the needs of the development.

In relation to (v) above, this is discussed extensively under the headings “DCP 2004” and “Likely Impacts of the Development”, and it is appropriate to do so given clause 3 above. Appropriate conditions are attached in response to those considerations.

30 - Site Analysis

(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the applicant has taken into account a site analysis prepared by the applicant in accordance with this clause.

A suitable site analysis plan has been submitted in support of the application.

32- Design of Residential Development

Council can be satisfied that the applicant has given adequate regard in the Statement of Environmental Effects to the principles set out in Division 2 of the SEPP. Further assessment of this criteria has provided in the subsequent sections of this report.

33 - Neighbourhood Amenity and Streetscape

The proposed development should:

(a) recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and

The area is characterised as an established residential precinct. Predominately, the theme of residential development in the locality is characterised as single storey detached dwellings presenting to the street with varied front setbacks. The style and period of dwellings in the locality are also varied; however, in the most part dwellings comprise masonry or weatherboard exterior walls and hip roofs with corrugated iron or tiles.

The proposed development continues the pattern of single storey development of a residential scale. The proposed buildings will not adversely impact upon the quality and identity of the area.

(b) retain, complement and sensitively harmonise with any Heritage Conservation Areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and

The subject land adjoins a heritage item, with the dominant element of that item being the mature tree plantings that come close to the shared boundary. The relationship with the heritage item and the location of the building works is such that the two are well separated.

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing, and

The proposed buildings are separated from other dwellings to the north and east, and there are no dwellings to the south. The site where the new works are proposed has no visible frontage, being tucked away from the frontages of the subject property.

(ii) using building form and siting that relates to the site’s land form, and

The proposed buildings are compatible with the low density residential development that characterises this locality. It is considered that the proposed development would not be out of place with its surrounding environment and is generally suited to the land form.

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and

The development adopts a single storey design, which is consistent with the prevailing development pattern of the area.

(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

There are no buildings proposed close to any boundaries.

(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and

The site where the new works are proposed has no visible frontage, being tucked away from the frontages of the subject property. Setbacks are considered appropriate.

(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and

A landscape master plan has been submitted in support of the application showing the extent of both hard and soft landscape areas both internally within the site and at the site frontage within Spring Street. The concept plans and accompanying documentation are generally acceptable. A detailed landscape plan will be required to be submitted prior to the release of a Construction Certificate that incorporates the landscape strategy submitted with the application. Relevant conditions are attached.

(f) retain, wherever reasonable, major existing trees, and

There are no significant trees on the site. A detailed assessment of the tree removal on the site is discussed later in this report.

(g) be designed so that no building is constructed in a riparian zone.

The subject land is not in the vicinity of a riparian zone.

34 - Visual and Acoustic Privacy

The proposed development should consider the visual and acoustic privacy of neighbours in the vicinity and residents by:

(a) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and

(b) ensuring acceptable noise levels in bedrooms of new dwellings by locating them away from driveways, parking areas and paths.

Note. The Australian and New Zealand Standard entitled AS/NZS 2107–2000, Acoustics - Recommended design sound levels and reverberation times for building interiors and the Australian Standard entitled" AS 3671 - 1989, Acoustics - Road traffic noise intrusion - Building siting and construction, published by Standards Australia, should be referred to in establishing acceptable noise levels.

As discussed below, the development is considered acceptable in terms of visual privacy. The proposal is single storey and well separated from adjoining neighbours, and there is some perimeter fencing around the boundary of the development site. Further discussion in this report relating to the perimeter fencing indicates that it will be necessary to remove and replace that fencing due to the proposal incorporating changed ground levels and retaining works along the boundaries adjacent to the new units.

The development is located in a residential environment away from busy roads and rail corridors, where background noise levels are typically quite low. As such, it is not likely that the development will be unreasonably impacted upon by high noise sources in the locality.

35 - Solar Access and Design for Climate

The proposed development should:

(a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and

(b) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting by locating the windows of living and dining areas in a northerly direction.

Note. AMCORD: A National Resource Document for Residential Development, 1995, may be referred to in establishing adequate solar access and dwelling orientation appropriate to the climatic conditions.

The design approach includes a significant building axis for each of the residential pavilions facing north, which maximises the northern exposure of the development. The private open space areas for each unit are also located on the Northern side of the buildings hence maximising opportunity for northern sunlight into these spaces. The landscape concept provides for shade trees within the areas of private open space.

36 - Stormwater

The proposed development should:

(a) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters by, for example, finishing driveway surfaces with semi-pervious material, minimising the width of paths and minimising paved areas, and

(b) include, where practical, on-site stormwater detention or re-use for second quality water uses.

Suitable arrangements and conditions have been considered and attached in relation to stormwater.

37 - Crime Prevention

The proposed development should provide personal property security for residents and visitors and encourage crime prevention by:

(a) site planning that allows observation of the approaches to a dwelling entry from inside each dwelling and general observation of public areas, driveways and streets from a dwelling that adjoins any such area, driveway or street, and where shared entries are required, providing shared entries that serve a small number of dwellings and that are able to be locked, and

(c) providing dwellings designed to allow residents to see who approaches their dwellings without the need to open the front door.

There are three key principles of crime prevention through environmental design: territoriality, surveillance and access control.

The applicant submits that the design is acceptable in terms of crime prevention through:

· Main entry points to the building are located close to staff areas for surveillance of access.

· Minimum of high structures in courtyards and car parks to minimise potential hiding places for intruders.

· Lighting of car parks, gardens and pathways at night will be provided.

· Perimeter garden fence to be provided with secure gates on access control system.

· Access control and intercom system will provide for night access via external gates and doors.

Council staff agree with the above. The development is considered satisfactory in terms of Safer by Design principles. External lighting providing for security within the site needs to be balanced against not creating nuisance to adjoining sensitive receivers. Relevantly, a condition is attached that requires external lighting to be consistent with the relevant Australian Standard.

38 - Accessibility

The proposed development should:

(a) have obvious and safe pedestrian links from the site that provide access to public transport services or local facilities, and

(b) provide attractive, yet safe, environments for pedestrians and motorists with convenient access and parking for residents and visitors.

As established above, the applicant submits that the provisions relating to accessibility both inside and outside of the site are achieved.

39 - Waste Management

The proposed development should be provided with waste facilities that maximise recycling by the provision of appropriate facilities.

The applicant submits that existing arrangements will be maintained in terms of the disposal and collection of waste.

40 - Development Standards - Minimum Sizes and Building Height

(1) - General

A consent authority must not consent to a development application made pursuant to this Chapter unless the proposed development complies with the standards specified in this clause.

(2) - Site Size

The size of the site must be at least 1,000 square metres.

The subject property on which the proposed development is to be erected is in excess of the required minimum size.

(3) - Site Frontage

The site frontage must be at least 20 metres wide measured at the building line.

The land comprises a frontage greater than 20m.

41 - Standards for Hostels and Self-Contained Dwellings

(1) A consent authority must not consent to a development application made pursuant to this Chapter to carry out development for the purpose of a hostel or self-contained dwelling unless the proposed development complies with the standards specified in Schedule 3 for such development.

A detailed assessment of the submission lodged in support of the application indicates compliance with the requirements of schedule 3.

50 - Standards that Cannot be Used to Refuse Development Consent for Self-Contained Dwellings

A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a self-contained dwelling (including in-fill self-care housing and serviced self-care housing) on any of the following grounds:

(a) building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys),

The proposed development is for single storey buildings only.

(b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 0.5:1 or less,

The proposed floor space ratio is 0.38:1, which is well within the maximum allowable limits.

(c) landscaped area: if:

(i) in the case of a development application made by a social housing provider—a minimum 35 square metres of landscaped area per dwelling is provided, or

(ii) in any other case - a minimum of 30% of the area of the site is to be landscaped,

The Statement of Environmental Effects submits that over 37.8% of the site would be set aside as landscaped area, and it is clear from the plans that each unit would be provided with more than 35m² of landscaped area as private open space.

(d) Deep soil zones: if, in relation to that part of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) that is not built on, paved or otherwise sealed, there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15% of the area of the site (the deep soil zone). Two-thirds of the deep soil zone should preferably be located at the rear of the site and each area forming part of the zone should have a minimum dimension of 3 metres,

Deep soil zones are provided for each of the proposed units. There will be space to plant some significant trees should future residents be inclined to do so.

(e) solar access: if living rooms and private open spaces for a minimum of 70% of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter,

The submission for the proposed development includes solar access diagrams, indicating compliance with the standards set out in this clause.

(h) parking: if at least the following is provided:

(i) 0.5 car spaces for each bedroom where the development application is made by a person other than a social housing provider, or

(ii) 1 car space for each 5 dwellings where the development application is made by, or is made by a person jointly with, a social housing provider.

Note. The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant development consent

The proposed development, notwithstanding being submitted on behalf of a social housing provider within the meaning of the legislation, provides parking well in excess of either standard, being one space for each of the proposed dwellings.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(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.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

PROVISIONS OF ANY DEVELOPMENT CONTROL PLAN s4.15(1)(a)(iii)

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land. An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

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

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

PART 7 - DEVELOPMENT IN RESIDENTIAL AREAS

Design Elements For Residential Development

Streetscape Objectives

· To ensure that the development fits into its setting and environmental features of the locality;

· To ensure that the appearance of housing is of a high visual quality, enhances the streetscape and complements good quality surrounding development;

· To ensure that new development complements places with heritage significance and their settings in a contemporary way.

· To develop a sense of place with attractive street frontages

· To encourage visually appealing cohesive streetscapes

· To create a safe and secure environment

· To provide consistent design elements that protect private investment

An assessment of how the development responds to the applicable streetscape objectives is considered below.

Neighbourhood Character and Building Appearance

The character and identity of a particular area are influenced by the intricate interrelationship of the public and private realms, taking into account the qualitative interplay of built form, vegetation and topographic characteristics - all of which contribute to creating a unique neighbourhood character.

The subject neighbourhood is characterised by an established residential precinct considered to be of a reasonable level of residential amenity. Predominately, the scale of development within the locality comprises single storey detached dwellings on average sized residential parcels. The proposed development is consistent with the scale of development.

Setbacks

The DCP requires setbacks in established areas to be calculated with reference to the setbacks on adjoining land. The proposed building is sited such that it is not visible from any front boundary of the site.

Fences and Walls

The stated Planning Outcomes for Fences and Walls are;

· 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 site that positively contribute to the streetscape

· Provide for facilities in the street frontage such as mailboxes

The boundaries adjacent to the new development are not visible from the street, however some fencing is not adequate to provide suitable privacy, security and safety; and moreover, it is likely that some fencing will be damaged or removed during the construction phase. To address this risk, a precautionary condition requiring replacement fencing where needed is included in the consent.

Bulk and Scale Objectives

· To allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring developments.

· To encourage the sharing of views, while considering the reasonable development of the site.

An assessment of how the development responds to the applicable bulk and scale objectives is considered below.

Visual Bulk

The proposed development is single storey, consistent with the scale of development within the locality, and well set back from adjoining neighbours such that the built form will not unreasonably impact upon adjoining residents. The development is considered satisfactory in relation to visual bulk.

Daylight and Sunlight Access

The SEPP has overshadowing provisions that are different to those contained in the DCP. The proposed development complies with the standards contained in the SEPP, but no assessment has been undertaken with respect to the DCP solar access standards. The provisions of the SEPP in any event prevail.

Security

Suitable arrangements are proposed in terms of the security of the residents within the site. Consideration has been given to the Crime Prevention through Environmental Design model, and the measures taken are considered appropriate. This is discussed further in response to the SEPP provisions above.

Site Access and Circulation Objectives

· To provide convenient and safe access and parking that meets the needs of all residents and visitors.

· To encourage the integrated design of access and parking facilities to minimise visual and environmental impacts.

An assessment of how the development responds to the applicable site access and circulation objectives is considered below.

Public Transport

An assessment of public transport considerations has been undertaken above pursuant to the requirements of the SEPP (Housing for Seniors or People with a Disability). Refer to the assessment of the requirements of that SEPP for public transport.

Circulation Design

An assessment of circulation design has been undertaken above pursuant to the requirements of the SEPP (Housing for Seniors or People with a Disability). Refer to the assessment of the requirements of that SEPP for circulation design.

Car Parking

An assessment of the onsite parking requirements has been undertaken above pursuant to the requirements of the SEPP (Housing for Seniors or People with a Disability). Refer to the assessment of the requirements of that SEPP for onsite parking.

Private Open Space

The DCP has the following Planning Outcomes for Private Open Space:

· Private Open Space is clearly defined for private use

· Private Open Space areas are of a size shape and slope to suit the reasonable requirements of residents including some outdoor recreational needs and service functions

· Private open space is

· Capable of being and extension of the dwelling for outdoor living, entertainment and recreation

· Accessible from a living area of the dwelling

· Located to take advantage of outlooks and to reduce adverse impacts of overshadowing or privacy from adjoining buildings

· Oriented to optimise year round use.

The private open space that is proposed is configured so as to comply with the SEPP requirements rather than the DCP. Both the SEPP and the DCP have provisions relating to private open space, with the SEPP having generally lesser standards, but also having pre‑eminence over the DCP when differences do arise between the Local and State controls.

The principal physical difference arising from this is that under the SEPP there is no prohibition to providing private open space in the front setback area of the units. It is considered that the arrangement of the private open space for the proposed units is in this case acceptable.

Stormwater

Adequate provision for stormwater is proposed. Relevant draft conditions are attached.

Erosion and Sediment Control

A draft condition is attached requiring a copy of the soil and water management plan to be kept onsite at all times and made available to Council officers on request.

PROVISIONS PRESCRIBED BY THE REGULATIONS s4.15(1)(a)(iv)

Demolition of a Building (clause 92)

The proposal involves the demolition of the existing residential self care units already on this part of the site. A condition is attached requiring the demolition to be carried out in accordance with Australian Standard AS2601 - 1991: The Demolition of Structures.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

A BASIX Certificate has been submitted in support of the proposed development which demonstrates compliance with the State Governments water and thermal comfort targets

THE LIKELY IMPACTS OF THE DEVELOPMENT s4.15(1)(b)

Tree Removal and Landscaping

Part of the application seeks approval for the removal of trees from the site. Some of the trees are protected under DCP 2004 and permission can be received for their removal as either a stand-alone permit, or as part of a development application for other works, such as is being sought in this case.

The proposed tree removals shown on the applicant’s plans indicate the prospective loss of three trees from the site. However, the results of an inspection carried out by Council’s Acting Manager City Presentation indicates that up to seven trees are likely to be removed to accommodate the planned works. An assessment indicates that it would be appropriate for all but one of the trees to be removed. It is recommended that the tree shown as T1 in the sketch in Figure 2 below be retained as research indicates that this tree has some historical significance to the facility. A recommended condition of consent has been included to this effect.

The proposed tree removals are shown in Figure 2 below

Figure 2 - tree removal

Tree Number	Common Name	Botanic Name	Comments
Tree 1	Silver Birch	Betula pendula	To be retained, TPZ to be established during building works (TPZ zone of 5m, with a protective fence to be in place), plaque installed with tree planting to be left in place (see photo below table).
Tree 2	Atlantic Fir	Cedrus atiantica	Poorly shaped specimen, not significant.
Tree 3	Silver Birch	Betula pendula	Poor example of tree species.
Tree 4	Malus	Malus species	Flowering deciduous tree – not significant.
Tree 5	Pittosporum	Pittosporum undulatum	Large exotic evergreen shrub – not significant.
Tree 6	Prunus tree	Prunus species	Small flowering deciduous tree – not significant.
Tree 7	Protea	Protea longifolia	Flowering exotic shrub.

Figure 3 - tree schedule

A detailed landscape plan has been submitted in support of the re-development. Council’s Manager City Presentation has carried out an assessment of the landscape concept for the development and has identified some concerns with regards to the identified species proposed to be used within the plan. A condition of consent has been included requiring the submission of an amended landscaping plan prior to the issue of a Construction Certificate.

Context and Setting

The subject site is located in a well-established residential precinct. The subject land is bound by Nile Street to the east, Newman Park to the south and Autumn Street to the west and a series of private dwellings to the north.

The development represents a continuation of the long standing residential use of the land and is proposed at a scale that is commensurate with the predominate scale of the locality.

The development is not antipathetic to the context and setting of the locality.

Residential Amenity

The applicant is proposing to undertake limited cut and fill around the edges of the site so as to achieve gradients consistent with the access and mobility standards of the SEPP. This will result in a step-up around the outer fence lines. There will be somewhat of an enclosing effect caused by the 1.8m fencing along the northern and eastern shared boundaries.

However, this form of self-care units for seniors are popular among able bodied retirees and allow social bonding by association to occur within these complexes. Provision of a generous amount of parking, landscaping in excess of the minimum requirements, and site coverages well within the maximum allowed all suggest development that will provide a high level of residential amenity.

Visual Impacts

The proposed buildings are residential in scale with satisfactory external appearance and finishes. As such, the development is not likely to present any unsatisfactory visual impacts in the locality.

Traffic Impacts

The development is not expected to result in any adverse traffic impact. Sufficient parking exists onsite and no new access points are proposed. A new mini-bus drop-off area is available within the existing complex erected on the remainder of the site.

THE SUITABILITY OF THE SITE s4.15(1)(c)

The site is located in a residential zone and will continue to be used for residential purposes. Council staff are not aware of any physical, natural or technological hazards that may constrain the development from occurring in a satisfactory manner.

ANY SUBMISSIONS MADE IN ACCORDANCE WITH THE ACT s4.15(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 no submissions had been received.

PUBLIC INTEREST s4.15(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, and 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 Orange LEP 2011 (as amended) and DCP 2004. A section 4.15 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, D18/53654 ⇩

2 Plans, D18/53641 ⇩

[1] Planning Circular PS 17-006 – variations to development standards provides the procedure in relation to the assumed concurrence of the Secretary NSW Department of Planning and Environment. The circular notifies Council to inform them that; a) developments involving a variation to the development of > 10% or non-numerical development standards must be determined by “a full Council”; and b) the Council must take into account the Secretary’s mandatory considerations when assuming the Secretary’s concurrence (ie clause 4.6(5)).

[2][2] It is noted that the application with the addition of the below referenced valet arrangement, has not been back before the committee as the committee has since been disbanded.