Planning and Development Committee

 

Agenda

 

7 November 2019

 

 

Notice is hereby given, in accordance with the provisions of the Local Government Act 1993 that a Planning and Development Committee meeting of ORANGE CITY COUNCIL will be held in the Council Chamber, Civic Centre, Byng Street, Orange on Thursday, 7 November 2019.

 

 

David Waddell

Chief Executive Officer

 

For apologies please contact Administration on 6393 8218.

  

 


Planning and Development Committee                                            7 November 2019

Agenda

  

1                Introduction.. 3

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

2                General Reports. 5

2.1            Items Approved Under the Delegated Authority of Council 5

2.2            Development Application DA 305/2019(1) - Lot 99 Emerald Street 13

2.3            Planning and Development: Community Participation Plan 2019 - post-exhibition and finalisation. 585

2.4            Development Application DA 232/2018(1) - Helipad - 1083 Forest Road. 721

2.5            Development Application DA71/2019(1) - 118 Bloomfield Road. 793

2.6            Development Application DA 258/2019(1) - 1 Scarborough Street 859

2.7            Development Application DA 310/2019(1) - 21 Scarborough Street 909

 


Planning and Development Committee                                            7 November 2019

 

1       Introduction

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

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

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

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

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

Recommendation

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

 


Planning and Development Committee                                            7 November 2019

 

 

2       General Reports

2.1     Items Approved Under the Delegated Authority of Council

RECORD NUMBER:       2019/2111

AUTHOR:                       Paul Johnston, Manager Development Assessments    

 

 

EXECUTIVE Summary

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

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “7.1 Preserve - Engage with the community to develop plans for growth and development that value the local environment”.

Financial Implications

Nil

Policy and Governance Implications

Nil

 

Recommendation

That Council resolves to acknowledge the information provided in the report by the Manager Development Assessments on Items Approved Under the Delegated Authority of Council.

 

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.

 

Reference:

DA 277/2013(3)

Determination Date

14 October 2019

PR Number

PR126464

Applicant/s:

Mr D M Brus

Owner/s:

Orange City Council

Location:

Lot 200 DP 1195298 - 136 Aerodrome Road, Huntley

Proposal:

Modification to development consent - air transport facility (hangar). The modification seeks to increase the footprint and height of the hangar as well as alterations to the previously approved eastern elevation and internal layout, and constructing the approved skillion during Stage 1 rather than Stage 2.

Value:

$48,000 (being the same value as the original development)

 


 

 

Reference:

DA 233/2015(2)

Determination Date

6 October 2019

PR Number

PR4763

Applicant/s:

Eastern Developments (NSW) Pty Ltd

Owner/s:

Eastern Developments (NSW) Pty Ltd

Location:

Lot 1 DP 581736 - 98 Gorman Road, Orange

Proposal:

Modification to development consent - subdivision (37 lot residential plus public open space and drainage reserves). The modified proposal seeks to address anomalies that have arisen due to the conflict in the stamped DA plans; and replace building envelope requirements with maximum site coverage requirements for some lots. The development remains substantially the same for which consent was granted and will not generate additional impacts above those considered for the original development.

Value:

$0 (being the same value as the original development)

 

Reference:

DA 47/2018(3)

Determination Date

10 October 2019

PR Number

PR18108

Applicant/s:

Hort Enterprises

Owner/s:

Hort Family Properties Pty Ltd

Location:

Lot 20 DP 1022526 - 258 Clergate Road, Orange

Proposal:

Modification to development consent - general Industry (alterations and additions to existing building). The modified proposal is to reorientate the previously approved office building by 90o and change the position of the concrete ramp which connects the office building to the existing factory. The repositioned office building will retain the same footprint, and the internal layout will remain unchanged from what was previously approved.

Value:

$0

 

Reference:

DA 178/2018(3)

Determination Date

2 October 2019

PR Number

PR26723

Applicant/s:

MAAS Group Properties Westwinds Pty Limited

Owner/s:

MAAS Group Properties Westwinds Pty Limited

Location:

Lot 81 DP 1202584, Lot 6 DP 1065578 - 386 Molong Road Orange, Northern Distributor Road, Orange.

Proposal:

Modification to development consent - subdivision (102 lots, comprising 94 residential lots, 6 open space lots, and 2 residue lot). The modification seeks to remove staging from the consent; remove the need for the creation of super-lots; decrease residential lot yield by two (2); introduce an additional residual non-development lot; vary the intersection layout with the NDR; alter some lot shapes and sizes and vary fencing requirements along the creek land.

Value:

$0 (being the same value as the original development)

 


 

 

Reference:

DA 413/2018(2)

Determination Date

30 September 2019

PR Number

PR28340

Applicant/s:

Mr I  Y Zhang

Owner/s:

I  J Zhang Pty Limited

Location:

Lot 300 DP 1248942 – 31A and 31B Clem McFawn Place and 87 Kearneys Drive, Orange (formerly known as Lot 300 DP 1248942 – 31 Clem McFawn Place and 87 Kearneys Drive, Orange)

Proposal:

Modification to development consent - multi dwelling housing (one existing dwelling and two new dwellings) and subdivision (three lot residential Torrens). The two dwellings subject of the original application have been constructed as three-bed dwellings, where they were approved as two-bed dwellings. Some internal changes to the dwellings have also been made to facilitate this change, and Dwelling 1 has an additional window on the southern elevation.

Value:

$280,000 (being the same value as the original development)

 

Reference:

DA 1/2019(2)

Determination Date

30 September 2019

PR Number

PR27987

Applicant/s:

Orange City Council

Owner/s:

Orange City Council

Location:

Lot 804 DP 1240445 - 36 Astill Drive, Orange

Proposal:

Modification to development consent - animal shelter. The modification seeks to alter the position of the previously approved building on the allotment.

Value:

$1,400,000 (being the same value as the original development)

 

Reference:

DA 150/2019(2)

Determination Date

26 September 2019

PR Number

PR25812

Applicant/s:

Mr I A K and Mrs L J Shilling

Owner/s:

Mr I A K and Mrs L J Shilling

Location:

Lot 8 DP 1176470 - 1 Atlas Place, Orange

Proposal:

Modification to development consent - vehicle repair station (additions to existing building). The modification seeks to amend the design of the retaining wall so that it is clear of the both the stormwater and sewer easements on the site.

Value:

$100,000 (being the same value as the original development)

 

Reference:

DA 164/2019(1)

Determination Date

27 September 2019

PR Number

PR5693

Applicant/s:

Mr B A and Mrs R R Westgeest

Owner/s:

Mr B A and Mrs R R Westgeest

Location:

Lot 22 DP 511742 - 7 Johnstone Street, Orange

Proposal:

Demolition and dwelling alterations and additions

Value:

$360,000


 

 

Reference:

DA 208/2019(1)

Determination Date

20 September 2019

PR Number

PR11580

Applicant/s:

CPRAM Investments Pty Ltd

Owner/s:

Alceon Group Pty Limited

Location:

Lot 564  DP 776383 - 212-220 Summer Street and Lot 1 DP 1246899 - 220A Summer Street, Orange

Proposal:

Restaurant or café (first use and fit-out) and business identification signage (tenancy 41)

Value:

$600,000

 

Reference:

DA 224/2019(1)

Determination Date

26 September 2019

PR Number

PR19433

Applicant/s:

Don’t Tell Jo Pty Ltd

Owner/s:

Messrs N  J and P N and Mrs J  F Farrell

Location:

Lot 104 DP 1067744 - 5 Ralston Drive, Orange

Proposal:

General industry (3 industrial buildings containing 18 units) and subdivision (18 lot Strata)

Value:

$1,430,000

 

Reference:

DA 227/2019(1)

Determination Date

24 September 2019

PR Number

PR10852

Applicant/s:

D and T Brown

Owner/s:

GTKC Holdings Pty Ltd

Location:

Lot 1 DP 16593 - 116 Sampson Street, Orange

Proposal:

Health consulting rooms (change of use and site works) and business identification sign (pylon sign)

Value:

$100,000

 

Reference:

DA 228/2019(1)

Determination Date

30 September 2019

PR Number

PR8135

Applicant/s:

Mr T D and Mrs S A Watson

Owner/s:

Mr T D and Mrs S A Watson

Location:

Lot 1 DP 780993 - 39 McLachlan Street, Orange

Proposal:

Demolition (part dwelling and tree removal), dwelling (alterations and additions) and secondary dwelling

Value:

$185,000

 

Reference:

DA 233/2019(1)

Determination Date

30 September 2019

PR Number

PR15084

Applicant/s:

Appledale Processors Co-Operative Pty Limited

Owner/s:

Appledale Processors Co-Operative Pty Limited

Location:

Lot 137 DP 750387 – Hiney Road, Orange

Proposal:

Intensive plant agriculture

Value:

$120,000


 

 

Reference:

DA 234/2019(1)

Determination Date

20 September 2019

PR Number

PR13284

Applicant/s:

Mr R and Mrs J Sinclair

Owner/s:

Mr R T Sinclair and Miss J M Fardell

Location:

Lot 1 DP 826200 - 166 Murphy Lane, Orange

Proposal:

Dwelling, attached garage and secondary dwelling

Value:

$550,000

 

Reference:

DA 240/2019(1)

Determination Date

15 October 2019

PR Number

PR10126

Applicant/s:

Wentworth Golf Club

Owner/s:

Wentworth Golf Club

Location:

Lot 199 DP 756899, Lot 181 DP 1154782 – 130 Ploughmans Lane, Orange

Proposal:

Registered club (ancillary buildings), recreation facility (outdoor)

Value:

$150,000

 

Reference:

DA 242/2019(2)

Determination Date

15 October 2019

PR Number

PR20379

Applicant/s:

Mrs E A Hopwood

Owner/s:

Orange City Council

Location:

Lot 102 DP 1072260 – 142-148 March Street, Orange

Proposal:

Modification of development consent - community facility (change of use from office). The modification seeks to alter Condition (18) relating to the hours and days of operation of the food collection and distribution component of the community facility.

Value:

$0 (being the same value as the original development)

 

Reference:

DA 271/2019(1)

Determination Date

30 September 2019

PR Number

PR12946

Applicant/s:

designs@m

Owner/s:

Orange City Council

Location:

Lot 54 DP 812701 - 2-4 Yarrawong Place, Orange

Proposal:

Centre based child care facility (alterations and additions to existing building)

Value:

$110,000

 

Reference:

DA 284/2019(1)

Determination Date

15 October 2019

PR Number

PR18279

Applicant/s:

Mr P Layton

Owner/s:

Astill Pty Ltd

Location:

Lot 31 DP 1035913 - 25 Astill Drive, Orange

Proposal:

Warehouse or distribution centre

Value:

$800,000


 

 

Reference:

DA 292/2019(1)

Determination Date

9 October 2019

PR Number

PR14058

Applicant/s:

A-Tech Extrusion Systems Pty Ltd

Owner/s:

JCI Group Pty Ltd

Location:

Lot 2 DP 544083, Lot 501 DP 1122616 and, Lot 11 DP 575694 - 5-17 and 46‑60 Edward Street, Orange

Proposal:

Warehousing and storage, and general industry (excavation, additions and alterations for existing buildings 1 and 2)

Value:

$200,000

 

 

Reference:

DA 296/2019(1)

Determination Date

3 October 2019

PR Number

PR11580

Applicant/s:

JNS Project Solution Pty Ltd

Owner/s:

Alceon Group Pty Limited

Location:

Lot 564 DP 776383 - 212-220 Summer Street, Orange (tenancy 39 – Angus and Coote)

Proposal:

Shop (first use and fit-out) and business identification signage

Value:

$150,000

 

 

Reference:

DA 297/2019(1)

Determination Date

26 September 2019

PR Number

PR11580

Applicant/s:

Mr J Lin

Owner/s:

Alceon Group Pty Limited

Location:

Lot 564 DP 776383 and Lot 1 DP 1246899 - 212-220 and 220A Summer Street, Orange (tenancy 40 – Yoshi Sushi)

Proposal:

Restaurant or café (first use fit-out) and business identification signage

Value:

$200,000

 

 

Reference:

DA 311/2019(2)

Determination Date

22 October 2019

PR Number

PR11580

Applicant/s:

Alceon Group Pty Limited

Owner/s:

Alceon Group Pty Limited

Location:

Lot 564 DP 776383 - 212-220 Summer Street, Orange (tenancy 35 – Barber Industries).

Proposal:

Modification of development consent - business premises (first use and fit‑out) and business identification signage The modified proposal seeks to modify the shopfront and remove the rear shampoo chair.

Value:

$0


 

 

Reference:

DA 320/2019(1)

Determination Date

25 September 2019

PR Number

PR11580

Applicant/s:

Mr L G Bargwanna

Owner/s:

Alceon Group Pty Limited

Location:

Lot 564 DP 776383 - 212-220 Summer Street, Orange (tenancy K1- The Alley)

Proposal:

Restaurant or cafe (change of use and fit-out) and business identification signage

Value:

$91,256

 

Reference:

DA 328/2019(1)

Determination Date

27 September 2019

PR Number

PR11580

Applicant/s:

Australian Professional Shopfitters

Owner/s:

Alceon Group Pty Limited

Location:

Lot 564 DP 776383 - 212-220 Summer Street, Orange (tenancy 31 - Adairs)

Proposal:

Shop (first use and fit-out) and business identification signage

Value:

$95,000

 

Reference:

DA 350/2019(1)

Determination Date

21 October 2019

PR Number

PR27531

Applicant/s:

Mrs K L Blacklow

Owner/s:

Eastern Developments Pty Ltd

Location:

Lot 200 DP 1225088 - Lease Area 2a - 132 Kite Street, Orange

Proposal:

Shop (first use and fit-out)

Value:

$0

 

TOTAL NET* VALUE OF ALL DEVELOPMENTS APPROVED UNDER DELEGATED AUTHORITY IN THIS PERIOD:                                                                                                                                $5,141,256.00

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

 

  


Planning and Development Committee                                            7 November 2019

2.2     Development Application DA 305/2019(1) - Lot 99 Emerald Street

RECORD NUMBER:       2019/2288

AUTHOR:                       Summer Commins, Senior Planner    

 

 

EXECUTIVE Summary

Council is in receipt of a development application for multi dwelling housing (19 dwellings) at Lot 99 Emerald Street, Orange (refer locality at Figure 1).

Figure 1 - locality plan

The proposed dwellings will be used and managed for the purposes of affordable housing. The development will be undertaken by Housing Plus, a registered community housing provider, under the NSW Government’s Social and Affordable Housing Fund.

The development involves the following works:

·    Demolition of the existing dwelling house and associated domestic structures (these works have been previously approved under a former development application).

·    Construction of 19 single-storey and self-contained dwellings (comprising 7 x one bedroom dwellings and 12 x two bedroom dwellings).

·    Provision of private open space and undercover car parking for each dwelling.

·    Driveway access via Pearl Court and shared internal roads.

·    Site landscaping, perimeter fencing and communal waste bin storage area.

The capital investment value of the proposed development exceeds $5million, and consequently pursuant to the requirements of State Environmental Planning Policy (State and Regional Development) 2011, the proposal comprises regionally significant development. The Western Regional Planning Panel is the consent authority for regionally significant development. This report is provided to Council for information only.


 

The purpose of this report is to make Council aware that the abovementioned development application is being tabled for the determination of the Western Regional Planning Panel and to make the recommendation that the report be acknowledged. The report also specifies the protocols to be followed should Council wish to provide a written submission relating to the attached report to the Western Regional Planning Panel. The assessment report, draft Notice of Determination, plans and submissions are attached for Council’s reference.

The proposal comprises advertised development pursuant to Orange Development Control Plan (DCP) 2004-5.3. At the completion of the written notice and public exhibition period, 267 submissions had been received in relation to the proposed development. Of these submissions, 192 support the proposal and 75 oppose the development. An additional 2 submissions were received after completion of the exhibition period (at the time of writing). The late submissions were opposed to the proposed development.

The supporting submissions outline the need for affordable rental housing in the City, and the associated community benefits associated with the provision of affordable housing. The issues raised in the opposing submissions generally relate to the adverse impacts on neighbourhood character and function.

The proposal does not contravene the planning regime that applies to the land. Impacts of the development are considered to be within reasonable limit, consistent with applicable standards and addressed by appropriate conditions of development consent. Approval of the application is recommended.

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 resolves:

1        That the information contained in the report for development application DA 305/2019(1) - proposed Multi Dwelling Housing (Affordable Housing) – Lot 99 DP 1234441 - Emerald Street, Orange be acknowledged.

2        That Council determine whether or not it makes a submission upon this application to the Western Regional Planning Panel.

 

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.

DIRECTORS NOTE

This report provides as an attachment the assessment report of staff to the Western Regional Planning Panel for the assessment of the multi-dwelling housing proposal by Housing Plus, pertaining the construction of 19 dwellings at Lot 99 Emerald Street.  The determining authority for this development is the Western Regional Planning Panel, not Council. Council’s role in this matter is to review the assessment report and determine whether or not it wishes to prepare a written submission to the Western Regional Planning Panel regarding the development. 

In accordance with the approach previously taken by Council regarding development proposals considered by the Western Regional Planning Panel, if Council wishes to make a submission to the Panel on this proposal, they will need to advise of the specific planning issues that they want raised in the submission and Council staff, that have had no involvement in the assessment of the Development Application would then draft the submission to the Regional Planning Panel detailing the matters identified by Council.

SUPPORTING INFORMATION

Reference is made to the abovementioned development application. The proposal involves development of the subject land for multi dwelling housing. Proposed works include:

·    Demolition of the existing dwelling house and associated domestic structures (these works were approved under previous DA 4/2015(2)).

·    Construction of 19 dwellings, comprising 7 x one bedroom dwellings and 12 x two bedroom dwellings. The dwellings will be single-storey, with building forms to comprise a mix of single dwellings and duplex style attached dwellings.

The proposed dwellings will be fully self-contained, each with open plan living zones, 1 or 2 bedrooms, and 1 bathroom with laundry facilities. An attached single carport will be provided for each dwelling, with additional tandem parking spaces available for some of the dwellings. An enclosed private open space area will be provided at the rear of each dwelling.

The design of the dwellings will be reflective of modern domestic architecture, with hip and gable roof profiles and front elevation articulation via symmetrical openings and portico elements.

·    Vehicular access to the site will be via the curved road formation at the intersection of Pearl Court and Emerald Street. Internal roads will be no-through and private access roads to service the proposed dwellings only. Internal access roads will have a minimum width of 6m.

·    Site landscaping will be established at the site frontage and common areas. Perimeter fencing (1.5-1.8m high) and fencing between the dwellings will be erected.

·    A communal bin storage area will be provided at the site frontage for the placement of bins on collection days.

The proposed dwellings will be used and managed for the purposes of affordable housing. The development will be undertaken by Housing Plus, a registered community housing provider, under the NSW Government’s Social and Affordable Housing Fund.

The Western Regional Planning Panel is the relevant consent authority for the application given the capital investment value of the development. A copy of the planning assessment report and draft Notice of Approval have been forwarded to the Panel Secretariat of the Western Regional Planning Panel. The Panel Secretariat has advised that the application is listed for consideration by the Western Regional Planning Panel. At the time of writing, a meeting date has yet to be confirmed.

Attached for Council’s information is a copy of the planning assessment report, accompanying plans, draft Notice of Approval and submissions for the subject application. The planning report outlines an assessment of the extent of the environmental impacts, with recommendations presented within the report for the Western Regional Planning Panel’s consideration.

Council may make a submission on the development application that is to be determined by a Regional Panel during and up until seven days before the Panel meeting. In the event that Council chooses to make a written submission in relation to the subject application, the submission is required to be prepared by a consultant or another Council officer who has not been involved in the initial assessment of the application.

 

 

Attachments

1          Planning Report, D19/65038

2          Notice of Approval, D19/65041

3          Plans, D19/62448

4          Submissions part 1, D19/64683

5          Submissions part 2, D19/64684

6          Submissions part 3, D19/64685

7          Submissions part 4, D19/64686

8          Submissions part 5, D19/64687

9          Submissions part 6, D19/64689

 


Planning and Development Committee                                                                     7 November 2019

Attachment 1      Planning Report

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Planning and Development Committee                                                                     7 November 2019

Attachment 2      Notice of Approval

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Planning and Development Committee                                                                      7 November 2019

Attachment 3      Plans

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Planning and Development Committee                                                                     7 November 2019

Attachment 4      Submissions part 1

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Planning and Development Committee                                                                     7 November 2019

Attachment 5      Submissions part 2

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Planning and Development Committee                                                                     7 November 2019

Attachment 6      Submissions part 3

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Planning and Development Committee                                                                     7 November 2019

Attachment 7      Submissions part 4

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Planning and Development Committee                                                                     7 November 2019

Attachment 8      Submissions part 5

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Planning and Development Committee                                                                      7 November 2019

Attachment 9      Submissions part 6

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Planning and Development Committee                                            7 November 2019

2.3     Planning and Development: Community Participation Plan 2019 - post-exhibition and finalisation

RECORD NUMBER:       2019/2305

AUTHOR:                       Kayla Clanchy, Town Planner    

 

 

EXECUTIVE Summary

In line with statutory requirements to do so by 1 December 2019, the Development Services team has put together a Community Participation Plan (‘the Plan’) that seeks to outline how Council will engage with the community on matters of environmental and land-use planning. Before the Community Participation Plan can be finalised, it must be exhibited to the public and endorsed by Council. Exhibition of the draft Plan and associated documents occurred for 28 days, from 13 September to 11 October 2019.

During the exhibition period, four (4) written submissions were received from the public. A survey accompanied the exhibition period through Council’s YourSay website, and twenty‑three (23) respondents engaged with the survey questions.

Many of the submissions were appreciative of the intent of the draft Plan, and reiterated the fact that the draft Plan is only as strong as its consistent use by staff and Council, particularly when making planning and development determinations. Broadly, it seems respondents are keen to learn more about how the NSW planning system as a whole works, and how/when community views fit within the system.

Based on the submissions received and responses to the YourSay survey, some tweaks are proposed to the draft Plan and associated documents. Accordingly, the Development Services Team are recommending the final form of the Plan and associated documents be adopted by Council.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan Strategy “14.3 Collaborate - Provide opportunities for widespread and quality engagement, and where appropriate, shared decision-making.”

Financial Implications

Implementation of the Plan requires more administrative measures to be introduced in order to provide well-rounded community participation opportunities.

Policy and Governance Implications

The Environmental Planning and Assessment Act 1979 (‘the Planning Act’) requires Council to have a Community Participation Plan finalised and accessible online through the NSW Planning Portal, by 1 December 2019.

The provisions of the Development Control Plan 2004 (‘the DCP’) that relate to exhibition of development applications will be superseded by the Community Participation Plan.

The attachment to Council’s Strategic Policy No 24 (‘ST024’) known as Declaration of Planning and Development Assessment Procedures and Protocols will be updated from Version 4 (6 May 2010) to Version 5 in order to align with the Community Participation Plan.


 

Other pragmatic alterations to administration and delegation procedures have been proposed in Version 5 of the attachment to ST024. Advice has been received from the Corporate Services division of Council that updating delegations in line with the changes proposed in the Version 5 attachment is possible subject to Council adopting the Version 5 attachment, and no other underlying arrangements need to be made.

All of the above documents were exhibited for 28 days, per statutory requirements to do so. Council has an obligation to consider submissions received during the exhibition process.

Council resolved (19/431) at its 3 September 2019 meeting:

1        To amend Development Control Plan 2004 (Chapter 5) by removing provisions for exhibition of development applications, and reference instead the Planning and Development: Community Participation Plan 2019.

2        To update the attachment to ST024 being the Declaration of Planning and Development Assessment Procedures and Protocols from Version 4 to Version 5.

3        To update ST024 to ensure the Policy references the correct attachment (being Version 5 attachment).

4        To update delegations in accordance with Version 5 of the attachment to Declaration of Planning and          Development Assessment Procedures and Protocols.

5        To place the draft Planning and Development: Community Participation Plan 2019, the draft Version 5 attachment to ST024, and draft amendment to Development Control Plan 2004 (Chapter 5) on public exhibition for a period of 28 days.

Obviously, points 1, 2, 3, and 4 could only be realised once point number 5 was actioned and completed. Some tweaks to documents associated with points 1, 2, 3, and 4 are required as a result of the exhibition process. Therefore, the following recommendation is intended to follow-on from and reiterate Council’s earlier resolution (19/431).

 

Recommendation

That Council resolves:

1        To adopt the Planning and Development: Community Participation Plan 2019.

2        To amend Development Control Plan 2004 (Chapter 5) by removing provisions for      exhibition of development applications, and reference instead the Planning and  Development: Community Participation Plan 2019.

3        To update the attachment to ST024 being the Declaration of Planning and Development Assessment Procedures and Protocols from Version 4 to Version 5.

4        To update ST024 to ensure the Policy references the correct attachment (being Version 5 attachment).

5        To update delegations in accordance with Version 5 of the attachment to Declaration of Planning and   Development Assessment Procedures and Protocols.

 

 

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.

DIRECTOR’S NOTE

During exhibition of the draft Community Participation Plan, a total of 4 formal written submissions were received.  The plan was also linked to an online survey with 23 people completing a survey through Council’s “Your Say” site.  It is pleasing see public interest in a key strategic document of Council.  Consideration has been given to the issues raised in the submissions.  Some amendments were made to the Plan in order to clarify some queries.  The amendments are minor and do not require readvertising.  The Plan is therefore recommended for approval and will meet the Department of Planning’s December deadline.

SUPPORTING INFORMATION

The Planning and Development: Community Participation Plan 2019 (‘the Plan’) is a strategic document that sets the parameters for community participation in the environmental and land-use planning framework of the Orange Local Government Area (‘LGA’).

The NSW Department of Planning, Industry & Environment (‘DPIE’) requires a Plan to be in place for each LGA and finalised by 1 December 2019, in line with the Act reforms.

The Plan must:

·    outline when and how it applies to planning functions,

·    incorporate statutory community participation objectives, and

·    identify legislated minimum exhibition timeframes.

In order to make the Plan a one-stop-doc, local provisions have been incorporated where possible. For example, the Plan defines the types of development applications that will routinely be ‘advertised’, ‘neighbour notified’, or subject to no exhibition. The Plan also includes clear instructions on how and when submissions can be considered for changes to strategic plans, proposed development, and major Council activities. More importantly, however, the Plan signals a shift in focus from trying to resolve community expectations at the development application stage to focussing engagement efforts more acutely at the strategic plan-making stage.

To accommodate the Plan and the shift in focus for community engagement, Council’s planning and development procedures need to be updated. ST024 is known as the Declaration of Planning and Development Assessment Procedures and Protocols. Attached to ST024 is Version 4 of Declaration of Planning and Development Assessment Procedures and Protocols (‘the Declaration’). It is proposed to attach a Version 5 Declaration to ST024 instead. The scope of changes to the Declaration between Version 4 and 5 generally include:

·    Community engagement methods which are to be drawn from, particularly when undertaking research for (and formulating) strategic plans.

·    Creation of a streamlined scheme for applicants who have demonstrated meaningful pre-lodgement community consultation with community members who are likely to be impacted by a development.

·    Alterations and clarifications to the delegation schedule for determination of development applications, including increasing the monetary threshold from $1.5m to $2.5m for when DAs will – as a default – be considered by Council at a Council meeting.

·    Other administrative tweaks, such as ensuring the Declaration references the Plan.

 

ST024 itself will need to be amended to ensure the correct attachment is being referred to (i.e. Version 5 and not Version 4). As for altering delegations, these changes can be ratified through the appropriate channels, per advice from Corporate Services.

Another corollary to the introduction of the Plan will be the need to remove portions of Chapter 5 of the DCP which relate to the types of proposals that will be advertised or neighbour notified during assessment of a development application. These provisions have all been reviewed and adapted for insertion into the Plan. It is therefore proposed to delete those parts of Chapter 5 of the DCP that will no longer apply as a result of the Plan being endorsed, and insert instead wording to the effect that the reader shall refer to the Community Participation Plan for guidance on exhibition procedures for development applications.

Post-exhibition comments

All of the abovementioned documents were exhibited for 28 days, from 13 September to 11 October 2019. During the exhibition period, four (4) written submissions were received from the public. A survey accompanied the exhibition period through Council’s YourSay website, and twenty-three (23) respondents engaged with the survey questions. All of these submissions and responses are attached to this report. For convenience, the key points of submissions are summarised below.

Submission 1 raises concerns mostly to do with the Plan not being followed in terms of decisions being made that are not based on planning matters. The submission goes on to recommend that more development application decisions should be delegated away from Councillors.

Our response:

·    The Plan itself does highlight how submissions will be considered for individual development applications and proposed land-use plans and strategies.

·    Guidance is provided in the Plan on what are/are not planning matters to primarily help the community in making well-rounded submissions on planning projects.

·    Some clarification and tweaks to thresholds are proposed in the updated Version 5 attachment to the Declaration, but delegations have not been substantially altered.


 

Submission 2 is from the same submitter who made Submission 1. This submission goes into more detail than Submission 1. Specifically, Submission 2 references the planning processes used in determining Housing Plus development applications. The submission requests that the Plan set out precisely what Council’s expectation is for development in the city, how Council will act consistently and fairly in assessing and determining any development applications, and that these procedural matters be outlined in the Plan.

In response the above points:

·    Strategic planning and “expectations for development in the city” arise from particular plans and strategies such as the forthcoming Local Housing Strategy and Local Strategic Planning Statement, and existing instruments/plans such as the Local Environmental Plan and Development Control Plan. All of these plans are required to fulfil requirements of the Planning Act. Use of the Community Participation Plan to outline “expectations for development in the city” is therefore inappropriate and not legally possible.

 

·    Minor updates to procedural and assessment matters are outlined in the Version 5 attachment to the Declaration, which was exhibited alongside the Community Participation Plan.

Submission 3 recommended Council draw from other draft Plans in other local government areas, in particular, the addition of a clarifying introduction to the Plan as modelled off the Northern Beaches Council draft Plan. The submitter also recommends procedural matters for determination be addressed in the Plan, rather than a separate document. The definition of ‘neighbour notification’ should be clarified, and Council needs to ‘close the loop’ in letting interested community members know how a determination is tracking and how their submissions were considered. Finally, the submitter sees value in nominating a review period of the Plan, and seeking feedback from the community on planning matters through Customer Satisfaction Surveys.

The following dot points respond to key matters raised in Submission 3:

·    Our draft Plan contains a ‘Foreword’ which seeks to set the tone for the Plan and its context. Many other councils’ draft Community Participation Plans were referred to during the creation of the Plan and the Department of Planning, Industry & Environment has confirmed that our Plan meets all of its obligations under the Planning Act.

·    The Version 5 attachment to the Declaration outlines procedural matters for determination. Council maintains that the Community Participation Plan shall focus only on our participation methods and obligations (per statutory requirements), and operational/assessment procedures be kept separate so as to not create an overly complex participation document.

·    A succinct definition of ‘neighbour notification’ is provided on page 17 of the Plan. It has been updated in light of this submission to outline what ‘adjoining’ means.


 

·    Council ‘closes the loop’ by notifying submitters that their submissions have been received, and when a determination is made, submitters are sent notices of determination (see page 15 of the Plan). Additionally, the Plan requires all notices of determination to include a ‘statement of reasons’ highlighting how community views were taken into consideration during the assessment process, per the statutory requirements. Submitters are also advised on when a proposal will be going to Council for determination, so that submitters may attend the relevant meeting.

·    The Plan is now proposed to face its first review in synchronisation with when a Community Engagement Strategy is being created/amended (as required by the Local Government Act 1993).

·    Suggestion on contents of future Customer Satisfaction Surveys has been forwarded to the Communications Team of Council.

Submission 4 describes the fact that the Plan is only as strong as its consistent use by members of the community. In this regard, the submitter would like to see the Plan circulated widely and made highly accessible. ‘Neighbour notification’ should be better defined, and the scope for ‘neighbour’ should be expanded beyond the immediate surrounds of a subject site. Lastly, the submitter recommends more parameters be set up for pre-lodgement consultation scenarios.

In response:

·    The Plan will be available online with all of our other plans, policies, and guides. Arrangements can be made for hard copies of the Plan to be available in the foyer of the Civic Administration building.

·    The Plan has been amended to define ‘neighbour notification’ better. There is now an explicit part in the Plan for Council staff to have some latitude in doing neighbour notification at a broader radius, in certain circumstances. For consistency though, ‘neighbour notification’ routinely refers to adjoining/adjacent neighbours even if these neighbours are separated by an intervening creek, road, or similar.

·    “Pre-DA community participation” is referenced in the Plan on Page 9, and again under the heading of “Pre-lodgement consultation with the community” in the Version 5 attachment to the Declaration on Page 12. The details in the Version 5 attachment are considered sufficient for staff to use when checking information for lodgement, and when querying the developer/applicant on the community engagement process of pre-lodgement that they purportedly undertook.

The trends of survey responses are summarised below. The survey helped affirm praxis that underpinned The Plan and the Version 5 attachment to the Declaration.

Survey response theme 1 – Wanting to know more about the planning system

It was unanimous across all respondents that they would like to gain more understanding of the planning system and that this should predominantly happen through the availability of online resources.


 

COMMENT: Development Services and the Communications team are working on producing more materials for people to engage with in understanding the planning system. The Plan and the Version 5 attachment to the Declaration also include key engagement methods that shall be used when undertaking research for strategic plan-making decisions.

Survey response theme 2 – Wanting more convenient access to resources

There was a desire for resources to be available online (including fact sheets), particularly for those respondents who did not express a confident understanding of the planning system. Most respondents stated that they would like to receive letters in the mail on development proposed in proximity to them.

COMMENT: Development Services and the Communications team are working on producing more materials for people to engage with in understanding the planning system. A series of fact sheets are being produced on planning topics. Development Services has trialled a “heritage development exemption” factsheet, which has been successful in responding to minor heritage enquiries.

Survey response theme 3 – Wanting to be more involved in shaping planning outcomes

Overwhelmingly, respondents would like to be involved in both strategic plan-making decisions and individual, site-specific development decisions. At least one respondent did make it known, however, that people were more likely to be interested in individual, site-specific development decisions because strategic-plan making matters can be somewhat abstract and difficult to visualise.

 

COMMENT: The Plan acknowledges that it can be difficult to properly communicate the intent and vision for strategic plans. It is therefore recommended in the Plan for materials such as diagrams, maps, and flowcharts to accompany exhibition of all strategic plans (wherever possible). The Plan itself was exhibited alongside a ‘visualisation’ schematic of where different plans (required by the Planning Act) figuratively sit in relation to each other.

 

Attachments

1          Planning and Development Community Participation Plan 2019 - final version 7 November 2019, D19/63109

2          ST024 - including attachment Version 5 Declaration of Planning and Development Assessment - Procedures and Protocols, D19/62947

3          DCP 2004 Chapter 5 - edited to refer to Community Participation Plan, D19/63102

4          YourSay site - survey responses with graphs, D19/63069

5          YourSay site - Individual survey results, D19/63070

6          Submissions, D19/63679

 


Planning and Development Committee                                                      7 November 2019

Attachment 1      Planning and Development Community Participation Plan 2019 - final version 7 November 2019

 

Planning and Development: Community Participation Plan 2019

 

7 November 2019

 


 

Contents

 

Foreword:  Community participation in the planning system.. 4

Chapter 1:  What is the Plan and how will it be used?. 5

1.1  What is the Plan and why is it being made now?. 5

1.2  In what circumstances does the Plan apply?. 5

1.3  How to use the Plan. 6

1.4  Community participation objectives. 6

Chapter 2:  Strategic planning, plan-making and early engagement 8

Chapter 3:  Development Applications and community views. 9

Chapter 4:  Major Council activities and transparency. 10

Chapter 5:  Feedback and making submissions. 10

5.1  Can I make a submission?. 10

    5.2  When can I make my submission?. 10

    5.3  What does my submission need to include?. 10

    5.4  Before making a submission. 11

    5.5  Where to send my submission?. 12

    5.6  Acknowledgement of submissions received. 13

    5.7  How are submissions considered?. 13

Chapter 6:  Post-determination. 15

6.1  Notices of determination. 15

   Strategic planning and plan-making. 15

   Development Applications. 15

   Council activities. 15

Chapter 7:  Details – Exhibition procedures and timeframes. 16

7.1  What is meant by exhibition types ‘advertised’ and ‘neighbour notified’?. 16

7.2  Advertised proposals. 18

    7.3  Neighbour notified proposals. 21

    7.4  Other proposals – no exhibition. 22

7.5  Timeframes – advertised and neighbour notified exhibition. 23

Questions?. 24

Links of interest 25

Glossary. 26

 


 

List of Tables

 

Table 1. What functions does the Plan apply to?............................................................................ 5

Table 2. Community participation objectives and directions.......................................................... 7

Table 3. Proposals – advertised exhibition...................................................................................... 19

Table 4. Proposals – neighbour notified exhibition......................................................................... 21

Table 5. Minimum exhibition timeframes....................................................................................... 23


 

Foreword:  Community participation in the planning system

Orange City Council recognises community participation throughout the planning system is not only a civic right, but that it also delivers better planning results for the city of Orange.

Ultimately, our responsibility is to deliver on the objectives of various environmental planning documents and legislation, including the Environmental Planning and Assessment Act 1979 (‘the Act’), Orange Local Environmental Plan (‘the LEP’), Central West and Orana Regional Plan 2036, and the forthcoming Local Strategic Planning Statement. The Planning and Development: Community Participation Plan 2019 (‘the Plan’) is intended to be consistent with the principles of any in-force Community Engagement Strategy required under the Local Government Act 1993.

Lost already?

The Glossary section contains some quick definitions for terms commonly used throughout this Plan. Refer to page 26.

 

 

 

The planning system of NSW is shifting focus to enable more meaningful community participation earlier in the planning process. Because of this, the Plan places greater emphasis and weight on strategic planning and plan-making phases when trying to gauge community views on how land and natural resources will be used and protected into the future.

The Plan also consolidates and updates advertising and notification requirements for some types of development proposals, as previously found in Development Control Plans (‘DCPs’). Council’s policy for planning and development assessment procedures has been brought into alignment with the Plan.

In terms of engagement with the community when Council is proposing to undertake major activities or infrastructure projects, the Plan sets out when we will broadcast proposals for those types of activities, to ensure greater transparency in our role as a public authority.

The underpinning community participation objectives of the Plan can be found in Chapter 1: What is the Plan and how will it be used?. Throughout the Plan, references to the three major planning functions (strategic planning and plan-making; development assessment; and Council activities) are made. More information on these three planning functions is embedded in Chapter 1.

The level and extent of community participation will vary depending on the planning function, the scope of the proposal under consideration, and the potential impact of the decision. The Orange community is dynamic and diverse, so community participation needs to involve any individuals, groups, or businesses who are likely to be interested in or affected by planning decisions.

Why is community participation important?

·    It builds community confidence in the planning system

·    Community participation creates a shared sense of purpose, direction, and understanding of the need to balance environmental changes against amenity considerations

·    It provides decision-makers access to community knowledge, expectations, ideas, and expertise.

Chapter 1:  What is the Plan and how will it be used?

1.1  What is the Plan and why is it being made now?

The Planning and Development: Community Participation Plan 2019 is a strategic document that sets the parameters for community participation in the environmental and land-use planning framework of the Orange Local Government Area (‘LGA’).

The NSW Department of Planning, Industry & Environment (‘DPIE’) requires a Plan to be in place for each LGA and finalised by 1 December 2019, in line with the Act reforms.

The Plan must incorporate statutory community participation objectives, which we will use to guide our approach to community engagement.

 

1.2  In what circumstances does the Plan apply?

This Plan is a requirement of the Act (see Division 2.6 and Schedule 1) and applies to the exercise of planning functions by certain authorities. A break-down of the type of functions that the Plan applies to is delineated in Table 1:

Table 1. What functions does the Plan apply to?

Plan-making

Strategic planning is an essential aspect of Council’s planning functions, where the strategic direction for environmental planning and development is set. This involves planning for communities which integrates social, environmental, and economic considerations.

Examples of this work include amendments to or the creation of the LEP, development control plans, contribution plans, specific land use strategies, and the like.

Development Applications

The Regional Planning Panel, the Council, the CEO of the Council, and delegated officers all make planning decisions on a range of developments (Development Applications). When making decisions on these developments, consideration is given to whether land use proposals are in accordance with the strategic priorities of Council, the NSW Government, relevant legislation, and the public interest.

Proposals assessed may be in relation to residential, industrial/commercial, rural, and physical or social infrastructure developments. In these proposals, the planning assessment phase is just one aspect of the overall project lifecycle. At other phases of the project, separate community engagement may be undertaken by proponents/developers, or other government agencies.

Note that this Plan does not apply to “Complying Development”. Complying Development provisions are administered by DPIE and these types of development are not subject to local requirements for exhibition periods, and submissions cannot be considered on proposed Complying Development.

Activities

Council is oftentimes the determining authority for its own activities which relate to Council’s role as a “public authority”, e.g. Council could be the determining authority and the proponent when undertaking works in a public park.

Sometimes, these activities are of such a scale that before the works can occur, an Environmental Impact Statement (‘EIS’) is required to be prepared in accordance with DPIE requirements. These EISs are subject to scrutiny from the public, and so this Plan applies to these types of scenarios.

 


 

The Plan will be reviewed on a periodic basis to make sure it is fit for purpose. The Plan is likely to face its first review in synchronisation with when a Community Engagement Strategy is being created/amended (as required under the Local Government Act 1993). It should be noted that the Plan has been prepared with reference to current requirements in the Act and Environmental Planning and Assessment Regulation 2000 (‘the Regulation’), and that the parent requirements found in that Act and Regulation may change from time to time. We will endeavour to keep the Plan as up-to-date and relevant as possible in light of these broader, State-led changes. Nevertheless, the reader is encouraged to refer to the current legislation – please see Links of interest section of this Plan.

 

1.3 How to use the Plan

This Plan will be consulted by Council staff who undertake certain planning functions. The Plan is likely to help inform staff when analysing:

·    What approaches should be taken in engaging the community,

·    The level of emphasis that should be placed on community participation, relative to the planning function,

·    At what point in time community participation is of most use to the community and to Council, and

·    The method and duration of engagement and exhibition.

It is also envisaged that the Plan will be used by the community to help guide their expectations for when they are likely to be engaged – and why – in relation to certain planning functions. As a result, it is anticipated that the Plan will help community members:

·    Feel empowered in understanding the different planning functions that they may be consulted on,

·    Engage better and more meaningfully with the planning system,

·    Understand how they can use their voice in the planning system, and

·    Keep informed of the planning decisions being made in their area.

 

1.4  Community participation objectives

Table 2 on the following page illustrates the community participation objectives that underpin this Plan, as adapted from the Act. Some directions have been attributed to each objective.

These objectives have helped inform our approach to community engagement and will help inform future revisions of this Plan and our policy for planning and development assessment procedures, especially when analysing if our community engagement approaches are fit for purpose.

 


 

Table 2. Community participation objectives and directions

Objectives

Directions

Community participation is open and inclusive

·    Encourage community participation by keeping the community informed, promoting participation opportunities, and seeking community input.

·    Build strong partnerships with the community.

·    Ensure community engagement accurately captures the relevant views of the community.

·    Conduct community engagement opportunities in a safe environment.

Community participation is easy

·    Clearly set out the purpose of any engagement and how and when the community can participate in respect of a planning function.

·    Prepare information for the community that is relevant, concise, written in Plain English and easy to understand.

·    Use visual representations to make it easier to understand the possible impacts of a proposal.

·    Ensure information is accessible in order to attract input from groups who may find it difficult to participate in standard engagement activities (e.g. young and older people; people with disabilities; Aboriginal and Torres Strait Islander people; people from a culturally and linguistically diverse background).

Community participation is relevant

·    Clearly establish the purpose for engagement and tailor engagement activities to match the context (e.g. location; type of application; stage of the assessment process; previous engagement undertaken), scale and nature of the proposal and its impacts, level of community interest, and community’s preference about how they would like to participate.

·    Adjust engagement activities (if necessary and/or appropriate) in response to community input.

Community participation is timely

·    Start community engagement as early as possible (subject to proper documentation being available), and continue this engagement for an appropriate period.

·    Ensure the community has reasonable time to provide input on proposals.

Community participation is meaningful

·    Explain how community input was taken into consideration, and ensure the response to community input is relevant and proportionate.

·    Give genuine and proper consideration to community input.

·    Keep accurate records of engagement activities and community input.

·    Regularly review the effectiveness of community engagement.

·    Integrate community input into the evaluation process.

·    Comply with any statutory obligations.

·    Protect privacy and respect confidentiality.

 


 

Chapter 2:  Strategic planning, plan-making and early engagement

Council must create and implement strategic plans for the LGA, under both the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993. These plans are informed by overarching State and Federal strategic plans, policies, and legislation, Census data, spatial and temporal trends, specialist studies, and local needs and expectations. For the remainder of this Chapter and the Plan, strategic plans that are referred to do not include strategic plans required by the Local Government Act 1993.

Strategic plans set the vision for our City into the future – how we will grow and change (spatially or otherwise), what we will preserve and value, what we need to provide for our residents, what our land and resource capabilities are, and how we can use these resources responsibly…

Some proponents for creation and implementation of strategic plans are private actors. For example, amendments to the LEP can be floated by bodies other than Council, despite Council being the Planning Proposal Authority. In these instances, proponents are encouraged to look more broadly at a locality and its development and cohesion. This helps prevent “spot rezonings” and encourages precinct planning for more predictable, and less ad-hoc outcomes across the Orange LGA.

In formulating some major strategic plans and particularly when undertaking research to help inform strategic plans, early engagement with communities that are likely to be impacted now and into the future is required. This could involve:

·    Neighbourhood surveys,

·    Focus groups,

·    Open-invite night forums,

·    Creation of podcast series,

·    Seeking specific feedback from community groups and organisations.

How and when these methods might be used are at the discretion of Council, and will largely depend on the scale, complexity, and nature of the strategic plan being formulated or amended. Further guidance on this matter is contained in our policy for planning and development assessment procedures.

When a strategic plan has been drafted, the plan in its entirety will be exhibited to the public and submissions will be able to be made on the draft. Because most strategic plans can be somewhat abstract, we will endeavour during the exhibition process to make available diagrams, flowcharts, maps, and other visual guides to aid the community in understanding the plan. Council staff will also be available to answer questions on the intent of the proposal.

For more information on exhibition procedures and timeframes, see Chapter 7: Details – Exhibition procedures and timeframes. For more information on making a submission, see Chapter 5: Feedback and making submissions.

 

Chapter 3:  Development Applications and community views

Development Applications (‘DAs’) can be made for land-uses and development types that are ‘permissible with consent’ in an environmental planning instrument, such as Council’s LEP. For more information on this point, refer to Table 1 earlier in the Plan under Chapter 1: What is the Plan and how will it be used?.

Pre-DA community participation – the proponent’s role

We are exploring options on how to incentivise proponents to hold community consultation sessions prior to lodging DAs. This could involve a streamlined scheme – meaning that where genuine consultation with a locality has occurred before lodging a DA, that DA may be given priority status in assessment. The proponent would need to submit evidence of the method for engaging the community, and how outcomes of the consultation were considered and implemented into the development’s design. More guidance on this matter is contained in our policy for planning and development assessment procedures

 

 

 

 

 

 

In assessing DAs, assessing staff must have regard to underpinning land-use plans, policies, and other strategic documents. This is why the strategic planning and plan-making phase is so important in the planning process. See Chapter 2: Strategic planning, plan-making and early engagement for details on how Council hopes to enhance community participation in our strategic planning functions.

Assessment of DAs must also take into account community views, particularly those views expressed in a formal submission to Council during an exhibition phase for a Development Application. Not all DAs will be exhibited for public comment, but proposals which are likely to be of interest to the community and to nearby neighbours (mostly due to potential impacts) will usually be exhibited. Refer to Chapter 7: Details – Exhibition procedures and timeframes for guidance on the types of proposals that will be exhibited, how they will be exhibited, and for how long.

Community expectations

Where a lot of groundwork has gone into strategic plan(s), the community should have practical expectations about the types of individual development proposals that might follow from the making of those plans. If we can get the strategic planning framework right – and get as much input in this early phase as possible – we hope that resultant Development Applications will be mostly understood and accepted by the community.

In particular, our Development Control Plans are higher order plans which usually sets the criteria for individual development proposals with respect to built-form, operational matters, design, and the like. Sometimes, local planning provisions are overridden by State policies and plans.

It is important that submitters understand the planning context that applies to each and every Development Application, so that their expectations for a certain outcome are realistic and able to be communicated effectively to the assessing officer.

 

 

 

 

 

 

 

 

 

 

 

 

If you have not had the chance to have your say during the strategic planning phase, you may be more inclined to make submissions on individual DAs during their exhibition. Before making a submission on a DA, you should be familiar with what the submissions process involves – see Chapter 5: Feedback and making submissions.

 

Chapter 4:  Major Council activities and transparency

Council, in undertaking its functions as a public authority, may from time-to-time propose to do activities or provide infrastructure that could have significant environmental impacts. More information on this point can be found under Chapter 1: What is the Plan and how will it be used?

If an Environmental Impact Statement (‘EIS’) is required to be prepared before the activity can occur, the EIS will generally be placed on exhibition. See Chapter 7: Details – Exhibition procedures and timeframes for a break-down on what the exhibition phase involves and how long exhibition is likely to occur.

The EIS will outline what the activity is, what key environmental impacts need to be considered, the magnitude and likelihood of those impacts occurring as a result of the proposed activity, and how the activity is proposed to occur in such a way that mitigates or minimises those impacts.

The public can query, make submissions, and generally scrutinise the EIS during its exhibition. For information on how to make a submission on an EIS for Council activities, see Chapter 5: Feedback and making submissions below.

Chapter 5:  Feedback and making submissions

If you have received a letter in the mail, or have become aware of a proposal through the local newspaper or Council’s website, you may wish to make a submission.

 

5.1  Can I make a submission?

For proposals undergoing exhibition, anyone can make comments on these proposals through a written submission addressed to the CEO of Council. We can give no assurances that submissions received for non-exhibited proposals will be considered as part of the proposal’s assessment. For a break-down of the differences between exhibition types and how things will be exhibited – or what proposals will not be exhibited – see Chapter 7: Details – Exhibition procedures and timeframes.

5.2  When can I make my submission?

The exhibition period is also the submissions period for a proposal. Any submissions received before or after this period may not necessarily be considered in the making of a decision. If early/late submissions are considered, they may not be explicitly mentioned in an assessment report.

5.3  What does my submission need to include?

Your submission must include the following:

·    The reference numbers and address of the proposal to make it clear which proposal you are commenting on. These are the numbers that have prefixes such as ‘DA’ or ‘PR’ or ‘F’ in the exhibition material. The address of the subject site can be found in the exhibition material.

·    A nominated contact person (you, or someone you trust). This contact person must be clearly defined with details such as NAME, POSTAL ADDRESS, TELEPHONE NUMBER, and EMAIL (if applicable). This is so Council can advise the contact person of the progress and outcome of the application.

Anonymous submissions or submissions using aliases may not be considered when assessing the proposal, as there is no accountability on the part of the submitter. Meaning that, the submitter cannot be asked for information to verify the contents of their submission nor be asked to attend a Council meeting, should a proposal end up being subject to a Council meeting.

5.4  Before making a submission

A submission may support a proposal, oppose it, request that amendments be made, or that conditions be imposed. If the matter is complex, you may engage a consultant to prepare and make a submission on your behalf. You are not obliged to lodge a submission simply because you have been alerted of a proposal as a neighbouring property owner.

Please be aware of the following before making a submission:

·    In the context of making a submission, any information provided to, or collected by, Orange City Council is for the purpose of assessing a proposal.

·    The information supplied to Council in a submission will be made publicly available.

·    The intended recipients of the information are Council staff, the proponent, the public, and Councillors.

·    The submitter’s name and general address may be made publicly available.

·    Notwithstanding the above, signatures, personal contact details, personal financial information, personal medical information, photographs depicting persons, and other sensitive information will not be made publicly available.

·    The making of any submission is entirely voluntary.

·    The person providing the information has a right to access the information to correct any personal information supplied.

·    The submission will be placed in Council’s file and a redacted version may appear on Council’s website during the consideration of the proposal.

·    Council’s file on the proposal may be accessed by any person, subject to an information request being received and agreed to by Council.

·    Comments of an abusive or offensive nature should be avoided.

Other parties may view comments within a submission as potentially offensive, slanderous, libellous, or defamatory. In this regard:

·    The views expressed in submissions remain those of the submitter only and do not reflect the views or position of Council, or of any Councillor, staff member, or contractor.

·    Submitters should not rely upon Council’s redaction procedures.

·    Council accepts no liability for, or responsibility to defend or protect the authors of, submissions in respect of any legal proceedings that may arise from the publication of submissions.

If in doubt, ask a friend or advisor to review your comments before making a submission.


 

If you decide to make a submission and object to the proposal, the reasons for your objection must be included in your submission. Your reasons should be based on planning matters relating to the impact on your amenity and environmental outcomes, and not irrelevant considerations. Council acknowledges that there may be peripheral concerns from neighbours to do with a proposal, but assessing officers are limited to considering ‘planning matters’. For example, speculation on devaluation of property or private market fluctuations are not relevant planning matters; however, concerns about noise, visual privacy, view loss or other environmental impacts are relevant planning matters and if raised in your submission, can be considered by assessing officers.

What are ‘planning matters’?

Council’s LEP sets the legislative framework for a lot of land use objectives and development standards. More fine-grain planning outcomes for particular types of development are contained in our Development Control Plans. If a proposal is also relying on the provisions of a State Environmental Planning Policy to justify the proposal, certain objectives and development standards in those State policies may override local plans and policies.

It is important to read the proponent’s own planning report for cues as to what is a ‘planning matter’ that you can comment on. The following are all examples of planning matters, and using these topics to guide your submission is recommended:

·     Air/odour impacts

·     Biodiversity/ecological impacts

·     Infrastructure (access to goods and services) impacts

·     Land/soil suitability and capability

·     Noise/vibration impacts

·     Privacy impacts

·     Solar access impacts

·     Traffic impacts

·     Visual/streetscape impacts

·     Waste impacts

·     Water (surface and ground) impacts.

What are not ‘planning matters’?

Anyone wishing to make a submission on a proposal should be familiar with what is/is not a planning matter. The following are not planning matters, and cannot be given weight by assessing officers in their decision-making role:

·    Speculation on devaluation of property or private market fluctuations

·    Character assessments of the developer, future neighbours, or anyone else

·    Hearsay as to what other neighbours would or would not be concerned about

·    Assumed bad faith or non-compliance with road rules or other laws.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5.5  Where to send my submission?

There are three ways you can send your submission in to Council:

1.   Mail a copy of your written submission to:

CEO/General Manager

Orange City Council

PO Box 35

ORANGE  NSW  2800

 

2.   Bring a printed version of your written submission to the Customer Service Counter at 135 Byng Street (being the corner of Byng Street and Lords Place, opposite Robertson Park), Orange, with “Attention: CEO or General Manager” included in the title of the submission.

 

3.   Email a copy of your written submission to council@orange.nsw.gov.au, making sure to quote the reference number for the proposal and “Attention: CEO or General Manager” in the subject heading or in the title of the submission attachment.

Engagement with Councillors

Correspondence with Councillors or other elected representatives regarding your concerns on a proposal is not a submission. This is because Councillors are not required to forward correspondence to the assessing officer and may have a variety of reasons for opting not to.

 

 

 

 

Note that if a submission is not received in any of the above three (3) modes, the submission is not considered a formal, written submission for the purposes of the Act and may not be taken into consideration in the assessment of a proposal. In particular, ‘make a comment’ or ‘leave a reply’ functions on Council’s website or on Council’s social media platforms such as Facebook page do not constitute formal, written submissions for the purposes of the Act.

How far away are we from accepting submissions online?

We are exploring ways to receive online submissions, such as through Council’s website or the NSW Planning Portal. Setting up online receipt of submissions will be subject to an endorsed works program, and budget/staffing allocations. Until then, however, submissions can only be made in the above modes.

 

5.6  Acknowledgement of submissions received

Council will confirm submissions have been received at the end of the exhibition period, by sending out an acknowledgement letter to the nominated contact person (submitter). If you are a signatory to a petition, but not the nominated contact person, you will not receive an acknowledgement letter.

The acknowledgement letter will not express any opinion on either the submission or the subject proposal. If further clarification is sought from a submitter on the content of their submission, the assessing officer will be in touch separately.

 

5.7  How are submissions considered?

Council must balance several heads of consideration when making a planning decision. One of these heads of consideration is the need to consider submissions received in relation to a proposal. As noted earlier in this Chapter, there is a distinction between relevant and irrelevant issues which may be raised in submissions. Assessing officers’ will turn their mind to and give greater consideration to relevant issues raised in submissions.

The number of submissions (or number of signatures attached to a submission) received in response to a proposal has no bearing on the outcome of the application. Rather, the quality and content of individual submissions will be considered.

Petitions and duplicate submissions

Adding a signature to a petition does not fortify the status of a submission. For example, a petition with pre-amble outlining only 3 planning issues, will be considered 1 submission containing 3 planning issues, regardless of the number of signatures attached.

Copy and paste submission letters outlining the same 2 planning issues will be considered duplicate submissions with duplicate planning issues. We will consider the merits and significance of the planning issues raised with the same regard, no matter how many duplications exist.

The content, individual perspective, and scope of planning issues raised in submissions will be what the assessing officers’ turn their mind to in considering submissions. Therefore, different perspectives on the same issue are more likely to benefit the assessment process than duplication of the same perspective.

 

 

 

 

 

 

 

 

 

In the case of strategic planning and plan-making functions, if many and varied issues are raised through submissions, further consultation through working groups or forums may occur. The proposed plan may be revised, amended, postponed, or made as is, depending on the outcome of any further community consultation and the recommendations of Councillors through a Council meeting and any relevant advice from DPIE. Submitters may be invited to speak or make representations at a Council meeting (usually Council’s Planning & Development Committee meeting), prior to determining whether or not the plan should be finalised.

For Development Applications, if relevant issues are raised through submissions and those issues have merit that could reasonably be negotiated with the proponent, Council will act as neutral negotiator in an attempt to resolve issues or to find a compromise prior to recommending any sort of determination on the proposal. In some circumstances and as outlined in our policy for planning and development assessment procedures, we may offer to undertake formal mediation sessions with interested parties and the proponent.

Where many and varied relevant issues are raised through submissions – and negotiation has been exhausted – the proposal will be assessed and either determined by the General Manager under delegation or referred to Council depending upon the issues (usually Council’s Planning & Development Committee meeting) for determination by the Councillors. If the matter is to be determined by Council’s Planning and Development Committee the determination recommendation could be either ‘approval’ or ‘refusal’, depending on other factors, such as whether or not the proposal as a whole complies with the legislation, strategic plans, and policies.

In the case of Council activities that are subject to advertisement (e.g. where an EIS is required), if many and varied issues are raised through submissions, the proposed activity may be revised, amended, postponed, or sent to a separate determining authority for their consideration.

Objecting to proposals

Community expectations should be realistic when objecting to proposals. If you make a submission on a proposal objecting to it in principle, this position needs to be clearly articulated why – see earlier points about “community expectations” (page 9) and “what are/are not planning matters” (page 12).

We encourage submitters to identify what their ideal result would be in relation to a proposal, but to also list other acceptable middle-ground results in case their ideal result cannot eventuate.

Chapter 6:  Post-determination

Following a determination being made on a proposal, several different parties will be notified. Detailed post-determination notification to submitters will take place when proposals have attracted submissions during their exhibition.

 

6.1  Notices of determination       

Strategic planning and plan-making

If Council determines that a plan should be made/amended, submitters will be advised in writing by letter that the plan has been made/amended.

In most circumstances, a media release will accompany the making of a plan or an amendment to a plan and these releases will be uploaded to https://www.orange.nsw.gov.au/category/media-releases/ or, for matters relating specifically to the LEP, updates will be posted to https://www.orange.nsw.gov.au/planning-directions-and-policies/local-environmental-plan/ .

Development Applications

Broadly, all DAs that have been determined will be listed as a monthly summary in a local newspaper. A ‘notice of determination’ will be sent to the proponent, as well as any submitters that commented on the DA. This notice will be sent to submitters in writing by letter.

The notice of determination will also be uploaded to the NSW Planning Portal website, which can be accessed by anyone through https://www.planningportal.nsw.gov.au/ or, if uploads to the Planning Portal is not available, the notice of determination will be uploaded to Council’s own website. See Links of Interest later in this Plan.

The notice of determination will set out:

·    The result of the determination

·    The reason for the determination (also known as ‘Statement of Reasons’)

·    The reason for imposition of conditions (if the determination is an approval).

The Statement of Reasons will detail how community views were taken into account in making the decision, as well as touching on the statutory requirements that applied to making the decision.

Council activities

If Council determines that an activity – being an activity subject to an EIS – should be undertaken, submitters will be advised in writing by letter that the activity will be undertaken. Public notice of the determination must also occur, and that notice must include:

·    The result of the determination

·    The reason for the determination (also known as ‘Statement of Reasons’)

·    The reason for imposition of conditions (if any apply).

The Statement of Reasons will detail how community views were taken into account in making the decision, as well as touching on the statutory requirements that applied to making the decision.

In most circumstances, public notice will occur by way of a media release through Council’s website https://www.orange.nsw.gov.au/category/media-releases/ .

Chapter 7:  Details – Exhibition procedures and timeframes

We encourage open, inclusive, easy, relevant, timely, and meaningful opportunities for community participation in the planning system. Proponents for development are encouraged to carry out their own consultation with the community, prior to lodging a development application, as recommended by Division 2.6 of the Act – see comments under Chapter 3: Development Applications and community views.

The most common method for involving the community in the planning system is through inviting feedback on proposals during exhibition periods for:

·    the preparation of a strategy or plan, such as an amendment to the LEP,

·    the assessment phase of Development Applications, and

·    the determination of certain Council activities.

The community will be invited to view documents and plans associated with proposals that are on exhibition. If clarification is needed on any of the exhibited material, Council staff will be available to answer enquiries in a prompt manner, usually face-to-face, over the phone, or by email. It should be noted, however, that Council staff are not proponents and so will not defend/advocate the proposal.

By routinely applying the below exhibition approaches for ‘advertised’ and ‘neighbour notified’ proposals, there can be acknowledgement that a process was fair with proper and genuine consideration given to community views and concerns, even where there may not be community-wide consensus on a decision or outcomes.

Safety

To achieve the best planning results, Council must ensure everyone can participate in a safe and open manner. All community members, stakeholders, and our staff have the right to participate in a respectful environment and behave in a manner that supports everyone’s right to present their point of view.

 

7.1  What is meant by exhibition types ‘advertised’ and ‘neighbour notified’?

The two key exhibition streams for proposals are advertisement, and neighbour notification. For advertised proposals, details will be:

·    Advertised in a local newspaper of the region,

·    Included in letters sent out to properties adjoining or forming the land to which the proposal relates (copies of the proposal documents themselves will not be included in the letter),

·    Available online through Council’s website, meaning plans and supporting material will be uploaded to www.orange.nsw.gov.au/development-applications-in-progress/development-applications-on-exhibition/ and

·    Available in hard copy for viewing at the Civic Administration Building located at 135 Byng Street, Orange (being the corner of Byng Street and Lords Place, opposite Robertson Park).

Social media coverage

Council’s Communications Team may, from time-to-time, broadcast proposals of interest through social media channels, such as Council’s Facebook page. This type of broadcasting does not mean that a proposal is ‘advertised’ in accordance with this Plan. Whilst social media has developed to be a significant communication platform in society, please be aware that commenting on social media posts is not an acceptable format for making a formal, written submission. Comments on a social media post are just that – social commentary. If you would like to make a formal submission to Council on a proposal so that it comes to the attention of the CEO, please see Chapter 5: Feedback and making submissions earlier in this Plan.

The other exhibition mechanism for engaging the community is discretionary neighbour notification of proposals by Council. This approach is used mostly for some types of Development Applications.

Neighbour notification of proposals is considered discretionary, as adjoining and adjacent neighbours of a proposed development may be alerted by a letter or other written notification that a proposal is with Council for assessment. More clarification on when this discretion will be exercised is contained later in this Chapter under section 7.3 Neighbour notified proposals.

Neighbour notification involves the following elements:

·    Letters being sent out to properties adjoining the land to which the proposal relates (copies of the proposal documents themselves will not be included in the letter),

·    Proposal documents being available online through Council’s website, meaning plans and supporting material will be uploaded to www.orange.nsw.gov.au/development-applications-in-progress/development-applications-on-exhibition/ and

·    Ability to view proposal documents in hard copy at the Civic Administration Building located at 135 Byng Street, Orange (being the corner of Byng Street and Lords Place, opposite Robertson Park).

For neighbour notified proposals, the details of the proposal will not be advertised in a local newspaper.

Which neighbours are notified?

Only those properties that adjoin the site to which the proposal relates will receive a written notification of the proposal during the exhibition period, unless Council staff are of the opinion that the notification radius should be broadened due to extenuating circumstances. ‘Adjoin’ in this context means ‘sharing a common boundary’ and includes any properties that would adjoin the site, if it were not for an intervening road, creek, or the like.

Neighbour notification letters – for both ‘advertised’ and ‘neighbour notified’ proposals – will only be sent to the postal address that Council has for the identified property, i.e. wherever the rates notice for the property are sent to is where neighbour notification letters will also be sent.

Inherent to the exhibition phase is the ability for anyone to make a submission on the proposal. More information on how to make a submission is contained under Chapter 5: Feedback and making submissions.

 


 

7.2  Advertised proposals

Table 3 on the following page describes the types of proposals that will routinely be advertised. The rationale for inclusion of certain types of proposals in the below Table is embedded in public interest principles, i.e:

·    What would broadly be of interest to the community?

·    What types of proposals would have a notable impact on the dynamics of the local economy, environment, or social fabric?

·    Is advertisement in the public interest, when considering the need to balance timely decision-making and planning outcomes against the ability for the community to have their say?

Council reserves the right to advertise any other type of proposal, even if the proposal is not listed in Table 3. The decision to do this would be based on the scale and nature of the proposal, and whether it is our view that it serves the public interest to advertise the proposal.

Please note that Table 3 has been compiled mostly using definitions found in the LEP Dictionary.


 

Table 3. Proposals – advertised exhibition

Occurring in all land zones

Occurring in residential land zones only

Heritage (all zones)

Consent sought for the purposes of*:

Airstrip

Air transport facility

Attached dwelling

Backpacker’s accommodation

Boarding house

Caravan park

Correctional centre

Development in relation to clause 4.6 of the LEP, where variation from a standard exceeds 10%

Development in relation to ‘existing use rights’

Eco-tourist facility

Educational establishment

Extractive industry

Freight transport facility

Group home

Health services facility

Helipad

Hostel

Hotel or motel accommodation

Mine/Mining

Multi dwelling housing

Place of public worship

Recreation facility (major)

Residential flat building

Seniors housing

Sex services premises

Torrens subdivision which would create three or more additional lots than what has been planned for, per a prior endorsed subdivision concept plan (in a DCP)

Camping ground

Centre-based child care facility

Community facility

Crematorium

Emergency services facility

Entertainment facility

Function centre

Information and education facility

Neighbourhood supermarket

Oyster aquaculture

Pond-based aquaculture

Recreation facility (indoor)

Recreation facility (outdoor)

Respite day care centre

Shop top housing

Tank-based aquaculture

Veterinary hospital

 

 

Advertising structure (not building or business identification signage) in/on heritage item or heritage conservation area

Conservation works which would otherwise be prohibited (clause 5.10(10) of LEP)

Demolition (whole or part) of a building or object, and that building or object contributes to the significance of a heritage item

Tree removal for tree that is or forms part of a heritage item, being a tree of significance or with trunk diameter greater than 300mm at breast height

 

Modifications to consent, made under s4.55(2) or s4.56 of the EP&A Act, are to be exhibited in the same manner that the original development application was exhibited.

*Generally excludes consent sought for modest alterations/additions or other works to an already approved land use, except in the case of development relating to ‘existing use rights’.

There may be other types of proposals that need to be advertised, per overarching legislation that we do not administer. Council wishes to advise that legislation is dynamic, and the requirements for exhibition/advertising are dynamic. That is to say, the below list is indicative of the types of proposals that – at the time of writing – would be required to be advertised:

·    Designated development. The method of exhibiting designated development is contained in the Act and Regulation. Broadly, more in-depth reports from the proponent must accompany a Development Application of this type and these reports are subject to public scrutiny.

·    Nominated integrated development. This refers to certain development types that require other approvals under different Acts or from different government bodies. In particular, some approvals that need to be obtained under the Heritage Act 1977, the Water Management Act 2000, and the Protection of the Environment Operations Act 1997 are considered ‘nominated integrated development’.

·    Threatened species development. This is development which is likely to significantly affect threatened species under the Biodiversity Conservation Act 2016 or Fisheries Management Act 1994. Broadly, more in-depth reports from the proponent must accompany a Development Application of this type and these reports are subject to public scrutiny.

·    Other ‘advertised development’ as nominated in a State Environmental Planning Policy. The relevant State Environmental Planning Policy will generally set the parameters for exhibition of those types of development.

·    Strategic Plans to be made or amended, such as:

Ø the LEP,

Ø contributions plans,

Ø DCPs,

Ø the Local Strategic Planning Statement, and

Ø the Community Participation Plan (this Plan).

·    Certain public authority (Council) activities which require an Environmental Impact Statement (EIS) to be prepared in accordance with Part 5 activities under the Act. The method of exhibiting an EIS is contained in the Act and Regulation. Broadly, EISs are in-depth reports from the proponent that must accompany a proposal, and these reports are subject to public scrutiny.  

The Local Government Act 1993 governs how other types of proposals and plans will be exhibited – such as Community Strategic Plans, Delivery and Operational plans, Annual Budgets, Plans of Management (for community land), and so on. To avoid confusion, it is a recognised action for future versions of the Planning and Development: Community Participation Plan to be merged with a Community Engagement Strategy required under the Local Government Act 1993.

Information on exhibition timeframes for the public to view proposals and make submissions is contained under section 7.5 Timeframes – advertised and neighbour notification exhibition of this Chapter.

 


 

7.3  Neighbour notified proposals

When considering public interest principles and community participation objectives, the types of development applications that will routinely be neighbour notified are per Table 4 below.

Table 4. Proposals – neighbour notified exhibition

Occurring in all land zones

Occurring in residential land zones only

Heritage (all zones)

Consent sought for the purposes of*:

Artisan food and drink industry

Cellar door premises

Dual occupancy, whether or not subdivision will occur first and result in two dwellings being located on separate lots

Exhibition home

Exhibition village

Highway service centre

Innominate use

Plant nursery

Pub

Recreation area

Registered club

Restricted premises

Semi-detached dwelling

Service station

Small bar

Temporary use of land, if the use would ordinarily be prohibited on that land

Bed and breakfast accommodation

Environmental facility

Home business

Home industries

Home occupation (sex services)

Kiosk

Neighbourhood shop

Secondary dwelling

Serviced apartments

Short-term rental accommodation**

 

Building identification sign in/on heritage item

Business identification sign in/on heritage item

Demolition (whole) of a building or object, and that building or object contributes positively to a heritage conservation area

Major alterations/additions to a heritage item or building in a heritage conservation area

Tree removal in a heritage conservation area, being a tree with trunk diameter greater than 300mm at breast height

 

Modifications to consent, made under s4.55(2) or s4.56 of the EP&A Act, are to be exhibited in the same manner that the original development application was exhibited.

*Generally excludes consent sought for modest alterations/additions or other works to an already approved land use.

**Refer to DPIE proposed new land-use definition through the NSW Planning Portal.

 


 

Other types of development applications could be neighbour notified, depending on the assessing officer’s initial view as to the potential impacts of the development. When Council staff are considering whether or not to neighbour notify a proposal during the assessment phase, the following factors are likely to be considered:

·    Is the proposed development ‘out of character’ for the neighbourhood?

·    Is the proposed development inconsistent to a notable degree with local plans, such as the LEP or Development Control Plans? In particular, would there be issues in terms of privacy, overshadowing, visual bulk, noise, traffic generation, or other environmental matters that neighbouring properties are likely to want advanced notice on?

·    Is it anticipated that the development would require the enforcement of stringent conditions and restrictions, in order to mitigate impacts that would otherwise be likely to occur as a result of the development?

·    Is it in the public interest to notify the development, when balancing the likely impacts of the development against timely decision-making obligations under the Act?

Council may elect to elevate a proposal’s exhibition status from simply being “neighbour notified” to “advertised development”. The decision to do this would be based on the scale and nature of the proposal, and whether it is our view that it serves the public interest to advertise the proposal instead of simply undertaking neighbour notification.

Information on exhibition timeframes for the public to view proposals and make submissions is contained under 7.5 Timeframes – advertised and neighbour notified exhibition.

 

7.4  Other proposals – no exhibition

Proposals that fall out of the above two categories will generally not be exhibited for public comment. These proposals will be assessed by staff, having regard to statutory assessment requirements.

 

Did you know…?

Council lists all of its incoming Development Applications as a weekly summary in a local newspaper (excluding “advertised” and “designated” Development Applications that will be formally advertised at a later time). Also, you can do a status search through our website of applications lodged, under assessment, or determined for particular properties, using the DA Tracking Portal: https://www.orange.nsw.gov.au/lodging-a-development-application/track-your-da/

 

Council staff are available during office hours to help clarify the details of any type of proposal. Contact details are contained under the Questions? section of this Plan.

 


 

7.5  Timeframes – advertised and neighbour notified exhibition

Mandatory minimum timeframes for certain proposals are contained in Schedule 1 of the Act. There may be other mandatory minimum timeframes in the Regulation and State Environmental Planning Policies.

We will always exhibit a proposal in accordance with mandatory minimum timeframes, but may elect to extend exhibition timeframes beyond the mandatory minimum when having regard to public interest principles and Council’s policy for planning and development assessment procedures.

Table 5 highlights the minimum exhibition timeframes as formulated by Council or otherwise in accordance with the Act and Regulation (current at the time of writing). This Table does not reference any State Environmental Planning Policies, some of which may include their own minimum requirements for exhibition.

Table 5. Minimum exhibition timeframes

Plan-making

Draft community participation plan

28 days

Draft local strategic planning statement

28 days

Planning proposals for Local Environmental Plan (amendments or new LEP), subject to a Gateway Determination

28 days, or any other period specified in the Gateway Determination

Re-exhibition of any of the above, which is required due to substantial changes being put forward in revised plans/documents received during the processing phase

14 days

Development Applications

Development Application, being advertised

14 days

Development Application, being neighbour notified

14 days

Development Application, being designated development

28 days

Development Application, being nominated integrated development

28 days

Threatened species development

28 days

Modification of a Development Application, made under s4.55(2) or s4.56 of the EP&A Act

However long the original development application was exhibited for, but not exceeding 14 days

Re-exhibition of any of the above, which is required due to substantial changes being put forward in revised plans/documents received during the assessment phase

14 days

Activities

Environment Impact Statement (including a Fauna Impact Statement, or Species Impact Statement) pursuant to Part 5 activities under the EP&A Act

28 days

 


 

Key points to note about exhibition include the following:

·    The exhibition dates will be outlined in the local newspaper ad (for advertised proposals) and in neighbour notification letters. The closing time for an exhibition period will always be “close of business (5pm)”

·    Timeframes are in calendar days and include weekends and public holidays

·    The exhibition period will always be due to close on a weekday

·    If the closing day is a weekday but that weekday is a public holiday, Council may extend the exhibition period to finish on the first available work day

·    The period between 20 December and 10 January (inclusive) is not included in the calculation of a period of public exhibition. This means that extra days (at least 22 calendar days) will be added to the exhibition period if a proposal is exhibited at any point during the Christmas/New Year phase of 20 December to 10 January

·    All exhibited material will exclude sensitive or private information, such as floor plans for residential accommodation, and proponent details such as phone numbers and signatures

·    Determination of plans, applications, or activities will not be finalised until after the exhibition period has closed, and all relevant submissions have been considered, per statutory obligations.

There may be other aspects of exhibition that are not touched on in the above dot points. In this regard, the reader is encouraged to refer to the current legislation – please see the Links of interest section of this Plan.

 

Questions?

If you have questions regarding anything to do with the Planning and Development: Community Participation Plan 2019, please contact Council through any of the following channels:

Phone:                 02 6393 8000

Email:                  council@orange.nsw.gov.au

Street address:    Civic Centre

                            135 Byng Street

                            Orange NSW 2800

In person:            Customer Service, 9am to 5pm, Monday to Friday

Postal address:    Orange City Council

                            PO Box 35

                            Orange NSW 2800

Website:              https://www.orange.nsw.gov.au/contact/

 


 

Links of interest

Throughout this Plan, reference is made to legislation and webpages. These resources can be found through the following links, or by typing into a search engine some key words:

 

‘Environmental Planning and Assessment Act 1979’
https://www.legislation.nsw.gov.au/#/view/act/1979/203/full

 

‘Environmental Planning and Assessment Regulation 2000’ https://www.legislation.nsw.gov.au/#/view/regulation/2000/557/full

 

‘Local Government Act 1993’
https://www.legislation.nsw.gov.au/#/view/act/1993/30/full

 

‘Orange Local Environmental Plan’
https://www.legislation.nsw.gov.au/#/view/EPI/2012/55/full

 

‘Orange Development Control Plans’
https://www.orange.nsw.gov.au/planning-directions-and-policies/development-control-plan/

 

‘Orange City Council Development Applications tracking’
https://www.orange.nsw.gov.au/lodging-a-development-application/track-your-da/

 

‘Orange City Council LEP updates’
https://www.orange.nsw.gov.au/planning-directions-and-policies/local-environmental-plan/

 

‘Orange City Council media releases’
https://www.orange.nsw.gov.au/category/media-releases/

 

‘NSW Planning Portal’
https://www.planningportal.nsw.gov.au/

 

‘Central West and Orana Regional Plan 2036’
https://www.planning.nsw.gov.au/Plans-for-your-area/Regional-Plans/Central-West-and-Orana/Plan

 


 

Glossary

Complying Development. Some types of development which require consent are not subject to a merits assessment, provided they meet a pre-determined checklist which is usually set by NSW Department of Planning, Industry & Environment in State Environmental Planning Policies. Private certifiers or Council can verify that development is Complying Development.

Contribution plans. Plans developed by councils for the purpose of gaining financial contributions from new development towards the cost of new and upgraded public amenities and/or services required to accommodate the new development.

Designated development. Proposed development that – due to its scale, nature, or likely impacts – will require a higher standard of reporting to be undertaken by a proponent, in accordance with Secretarial requirements of the NSW Department of Planning, Industry & Environment (see ‘Environmental Impact Statement’ below).

Determining authority. When Council proposes to undertake an activity as a public authority, it may also be the determining authority. The determining authority could be another government agency, however, such as NSW Office of Environment and Heritage, depending on the type of the activity and associated impacts.

Development Application. When a land-use or development requires consent under the Act (and its associated environmental planning instruments), one way to obtain this consent is through lodging a Development Application. The Development Application is assessed on its merits and considered against any statutory assessment requirements.

Development control plans (‘DCP’). These are plans that provide detailed planning and design guidelines to support the planning controls and objectives in a Local Environmental Plan.

Environmental Impact Statement. A statement prepared for a proposal, where the statement must meet Secretarial requirements of the NSW Department of Planning, Industry & Environment

Environmental Planning and Assessment Act 1979. The principal piece of legislation within which all planning functions exist. Referred to as ‘the Act’ throughout this Plan.

Local Environmental Plan (‘LEP’). This is an environmental planning instrument development by councils. An LEP sets the planning framework for a Local Government Area.

Local Government Act 1993. This Act oversees how councils operate and what their obligations are, as a local government agency. Community engagement principles for certain council functions are stipulated in that Act and its regulations.

Planning proposal authority. Councils are generally the planning proposal authority wherever changes/amendments are being sought to the LEP. 

Proponent. The applicant or person/group facilitating the plan to be made, development to be undertaken, or activity to be completed.

Proposal. Generally, wherever ‘proposal’ is used throughout this Plan, reference is being made to a plan-making proposal, development proposal, or activity proposal. See Table 1 for a break-down of these planning functions.

Public authority. Council, in some of its functions, is a public authority.

 


Planning and Development Committee                                           7 November 2019

Attachment 2      ST024 - including attachment Version 5 Declaration of Planning and Development Assessment - Procedures and Protocols

STRATEGIC POLICY DECLARATION OF PLANNING AND DEVELOPMENT ASSESSMENT PROCEDURES AND PROTOCOLS

ST024                                                                                                                                                                                     F22

 

ObjectiveS

To inform the community of Council’s governance role and practices in planning and development assessment.

Applicability

Council members, staff and community members participating in planning and development assessment.

GENERAL

Outlines practices and procedures relating to Council’s implementation of the planning system.

pROCEDURE

The Declaration is followed when undertaking responsibilities associated with planning and development assessment.

Related Policies/Documents

Declaration of Planning and Development Assessment Procedures and Protocols Version 5(attached)

 

RESPONSIBLE AREA – Development Services

REVISION

 

DATE

RESOLUTION

 

DATE

RESOLUTION

1

January 2006

06/685

6

 

 

2

January 2007

07/207

7

 

 

3

January 2008

-

8

 

 

4

January 2009

09/453

9

 

 

5

November 2019

 

 

 

 

All policies can be reviewed or revoked by resolution of Council, at any time.

 


 

SUMMARY OF AMENDMENTS

Amendment Date

Section/Reference and Amendment

November 2019

Update to Declaration attachment to include:

·    Community engagement methods which are to be drawn from, particularly when undertaking research for (and formulating) strategic plans,

·    Creation of a streamlined scheme for applicants who have demonstrated meaningful pre-lodgement community consultation with community members who are likely to be impacted by a development,

·    Alterations and clarifications to the delegation schedule for determination of development applications, including increasing the monetary threshold from $1.5m to $2.5m for when DAs will – as a default – be considered by Council at a Council meeting, and

·    Other administrative tweaks, such as ensuring the Declaration references the Planning and Development: Community Participation Plan 2019.

 

 

 


 

Strategic Policy

Declaration of Planning and Development Assessment Procedures and Protocols

 

Version 5

Dated 7 November 2019

 

 

 

 

 

 

 

 

 

 

 

 


Contents

 

1     INTRODUCTION.. 5

2     THE PLANNING AND DEVELOPMENT SYSTEM... 5

2.1            Introduction. 5

2.2            The System.. 5

3     PREPARING PLANS. 6

3.1            Strategic Plans. 7

3.2            Statutory Plan Making. 9

3.3            Delegations. 10

3.4            Guidelines. 10

4     DEVELOPMENT ASSESSMENT. 11

4.1            Issues. 11

4.2            Development System.. 11

4.3            Assessment System.. 12

4.4            Pre-Application Guidance. 12

4.4.1    .. Pre-lodgement consultation with the community. 12

4.5            Heritage Advisor. 13

4.6            Lobbying/Preliminary Meetings etc. 13

4.7            Lodgement 14

4.8            Exhibition of development applications. 15

4.9            Application Evaluation. 17

4.10          Delegations - Decision Making. 19

4.11          Determination of Applications. 23

5     COMPLAINT HANDLING PROCEDURES. 24

 


 

1       INTRODUCTION

This document is provided in accordance with Council’s obligation under the Local Government Act (LG Act) to inform the community of its operations. Council acknowledges that frustration may arise from both prospective developers and affected community members where misunderstanding of the system occurs. There is a need to provide clear information about the complex planning system. Transparency and accountability in the decision making process is a commonly expressed objective.

Orange City Council undertakes to apply the following procedures and protocols when implementing its planning and development responsibilities derived from the Environmental Planning and Assessment Act 1979 (EP&A Act). The declaration includes complaint-handling procedures in the event that unreasonable non-compliance with procedures is alleged.

 

2       THE PLANNING AND DEVELOPMENT SYSTEM

2.1    Introduction

Development in NSW is principally regulated through two related documents prepared for each Council area - Local Environmental Plans (LEPs) and Development Control Plans (DCPs). LEPs govern the types of development that are permissible or prohibited in different parts of the City, and also provided some assessment criteria in specific circumstances. DCPs provide detail on design requirements and particular issues that need to be addressed.

A number of overlapping and sometimes complicated planning controls at a State level also apply.

This document seeks to outline the Council commitments to the community in carrying out proper planning assessment of development proposals.

Planning is essentially about the quality of life and the environment in which we live, work and play. Planning is about deciding, or helping elected representatives make decisions on the best use of resources, including land and natural resources, to maximise amenity for all people. It is also about protecting, and where possible, enhancing the biophysical environment (Development Assessment Forum: Agreed Principles of Leading Practice).

2.2    The System

The planning system comprises the following main elements listed generally in sequence from developing a planning framework, to assessing a specific development within that planning framework, and finally certifying that the development is constructed to the required standard:

·    Broad-based strategic planning involving strategies, studies and plans (structure plans or master plans) that give direction to policy but which may not be subject to statutory procedures.


 

·    Statutory planning establishes development controls over specific areas and provides the legal framework for the way development proposals are assessed. Statutory planning affects private development rights for the public good. Development controls in plans are the primary means of implementing strategic planning objectives.

·    Development assessment involves the practical implementation of the statutory planning system whereby an organisation is given responsibility through legislation to assess and determine applications in accordance with established criteria.

·    Certification (for building approvals or subdivision releases) provides a mechanism for determining that particular works carried out in accordance with a consent or criteria established under the statutory planning system meet approved standards.

The detail of the investigation increases as the process moves from strategic planning to assessment and certification. Therefore, issues may arise or more information may need to be sought as a proposal moves through the planning process.

A statutory plan may vary in some respects from strategic planning following consultation, but a development application must be consistent with the relevant statutory plan.

 

3       PREPARING PLANS

Council acknowledges that the purpose of local planning in Orange is to provide quality, sustainable environmental outcomes which are consistently applied through transparent and accountable decision making, and which provide for appropriate community involvement.

In preparing all Plans (and in making any planning or development decision), the principles of ecologically sustainable development must be at the fore.  The following are principles of ecologically sustainable development:

                     (a)  decisionmaking processes should effectively integrate both longterm and shortterm economic, environmental, social and equitable considerations;

                     (b)  if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

                     (c)  the principle of intergenerational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

                     (d)  the conservation of biological diversity and ecological integrity should be a fundamental consideration in decisionmaking;

                     (e)  improved valuation, pricing and incentive mechanisms should be promoted.


 

3.1    Strategic Plans

Strategic planning at its simplest can be described as a planning process comprising three main elements: “survey – analysis – plan”. This simple description relates to the collection of information (which may include detailed environmental investigations), analysis of the information to determine development options and the creation of planning policy consistent with the analysed information. Each phase may involve community consultation and liaison with government agencies with specific planning and environmental responsibilities.

Strategic planning in this case may include the preparation of an environmental study which may be required under the Act, and as such has some statutory elements too. The EP&A Act requires that an environmental study be prepared for Local Environmental Plans (LEPs). LEPs, however, may be prepared on the basis of former environmental studies, and accordingly a new environmental study may not be required for each new plan.

In formulating some strategic plans and particularly when undertaking research to help inform strategic plans, early engagement with communities that are likely to be impacted now and into the future is required. This means, where necessary, seeking community views on major strategic planning initiatives prior to a draft strategic plan being placed on exhibition. Per Council’s endorsed Planning and Development: Community Participation Plan (‘PDCPP’), the following combination of methods will be drawn from for early engagement:

• Community surveys,

• Focus groups,

• Open-invite night forums,

• Creation of podcast series,

• Seeking specific feedback from community groups and organisations.

A combination of the above methods will be used, dependent on the type of strategic plan being formulated and the resources available to Council. How and when these methods should be implemented are described below:

a)   For community surveys, affected community members should be posted surveys in the mail or invited to partake in online surveys. The ability to fill out surveys should occur over a reasonable time period (i.e. 14 to 28 calendar days). Outcomes of the surveys will be considered by Council staff when moving forward in preparing strategic plan(s).

b)   For focus groups, randomly selected persons and/or community representatives from groups likely to be affected will be invited to attend periodic focus groups to discuss matters relating to the strategic plan being formulated. These focus groups may be held in locations such as Council’s Civic Administration Building, the Library, or through online interactive platforms. Written feedback as a result of these focus groups will be considered by Council staff when moving forward in preparing strategic plan(s).


 

c)   For open-invite night forums, a media release by Council will call for anyone interested to register and attend Council’s Civic Administration Building or Library. The media release will be made public at least 14 days before the planned night forum, and the Communications Team of Council will be encouraged to duplicate the media release on Council’s Facebook page. The intent of holding these forums at night is to make sure that people who may not usually be able to make it to an event during daylight hours of a weekday have the ability to partake in the strategic planning process. The forum will be steered by Council staff and points of discussion between staff and attendees will be focussed on particular matters relating to the strategic plan(s). Recurring themes and questions raised by attendees will be considered by Council staff when moving forward in preparing strategic plan(s).

d)   For podcast series, Council staff will investigate what opportunities there are for uploading pre-recorded audio sessions to Council’s website or a subsidiary platform. These audio sessions will be approximately 10-20 minutes per session and will be scripted to be conversational in nature, to ensure that planning matters are communicated in plain English. The public will then be able to access these recordings, and provide written feedback or ask questions on matters covered. Feedback and questions may be able to be received online through a comment function, or otherwise through regular avenues such as by email, post, or phoning through to the Planning section of Council. Written feedback and questions will be considered by Council staff when moving forward in preparing strategic plan(s).

e)   For specific feedback being sought from community groups and organisations, Council staff will make targeted verbal or written contact with key groups and organisations that are likely to be affected by or interested in the strategic plan(s) being formulated. Written feedback will be considered by Council staff when moving forward in preparing strategic plan(s).

Note that when a draft strategic plan has been prepared, the opportunity will still exist for further community participation during the relevant exhibition period of the draft plan. Refer to Council’s endorsed PDCPP for further guidance on exhibition periods and timeframes.

DECLARATIONS FOR STRATEGIC PLANNING

Council undertakes:

·    To prepare strategic plans where a significant shift in existing planning policy is proposed with potential impacts on the function and form of the City, whether or not such strategies may be required by a State Government Directive.

·    That strategic planning will be carried out objectively and impartially, taking into account the objectives of the Act and planning principles that relate to the capabilities of the City’s resources. To ensure objectivity, Council may utilise professional consultants.

·    To establish and articulate the scope of strategic investigations.

·    That the principles of ESD will be applied in strategic plans.

 

·    That community representation will be encouraged in the formulation of major strategic plans utilising appropriate modes and methods as derived from the endorsed Planning and Development: Community Participation Plan and points a) to e) in section 3.1.

·    That, where practicable, community views will be incorporated into strategic plans. It is acknowledged, however, that community opinions may vary and that some local interests may be inconsistent with recognised planning and ESD principles.

3.2    Statutory Plan Making

The Orange Local Government Area is covered by Orange Local Environmental Plan 2011 (OLEP 2011) prepared in accordance with the EP&A Act. This plan has legal status and, within a broad framework, governs what type of development may occur, in what form and where.

OLEP 2011 is supplemented by a number of State Environmental Planning Policies (SEPPs), Ministerial Directions (s117 of the EP&A Act) and DCPs. While there are currently no regional strategies or plans affecting Orange, the City’s planning may also need to relate to these in the future.

Some proponents for creation and implementation of strategic plans are private actors. For example, amendments to the LEP can be floated by bodies other than Council, despite Council being the Planning Proposal Authority. In these instances, proponents are encouraged to look more broadly at a locality and its development and cohesion. This helps prevent “spot rezonings” and encourages precinct planning for more predictable, and less ad-hoc outcomes across the Orange LGA.

Otherwise Council may decide to prepare amendments based on community interest as a consequence of monitoring planning/development issues and trends associated with assessment of development proposals or growth trends.

Council will apply charges for considering submissions to amend LEPs relating to site-specific changes (spot rezonings) where such amendments are beyond the terms of strategic plans or where further environmental investigation is required before plan amendments can be considered.

In accordance with section 57 of the EP&A Act, Council is able to seek contributions from the proponent towards the cost of undertaking an environmental study. To eliminate potential probity issues where a developer contributes to the preparation of the study, such agreement shall be sought on the basis that there are no guarantees that the environmental study will be supported, and that the developer will not attempt to influence the outcome of the study beyond the opportunities provided through the defined community consultation phase, in the same way as any community member may participate in meetings and make formal submissions.

The LEP process is quite lengthy and normally involves:

·    early engagement with communities that are likely to be impacted (where relevant and giving consideration to Council’s endorsed PDCPP)

·    notification to the Department of Planning, Industry & Environment (‘DPIE’) of Council’s decision via the Gateway process

·    consultation with State agencies

·    preparation of the draft plan, taking into account agency requirements

·    certification that the plan is consistent with State and regional policies, plans and directions

·    public exhibition

·    referral to Parliamentary Counsel to ensure that the draft plan meets legal drafting requirements

·    adoption of the draft plan by Council

·    reporting to the Minister on the draft plan

·    making of the plan by the Minister

·    gazettal of the plan.

For highly controversial matters, Council may determine that a Commission of Inquiry should be held on the whole or part of the draft plan; or that the draft plan be considered by the Joint Regional Planning Panel.

3.3    Delegations

As shown above, Council has certain responsibilities in the preparation of local plans, but the process involves a partnership between Council, the community and the State Government. Certain statutory functions can be delegated to allow Council to make the plan and prepare a report to the Minister.

3.4    Guidelines

Council has a number of functions, including owning land and preparing draft plans which may affect Council land. LEPs that have the effect of bestowing particular benefits on Council land are prone to perceptions of unfair advantage. Because of the situation where Council has potentially conflicting interests, guidelines have been prepared to outline appropriate procedures. The 1997 LEPs and Council Land - Best Practice Guidelines prepared by the former Department of Urban Affairs and Planning currently applies.

DECLARATIONS FOR STATUTORY PLANNING

Council undertakes:

·    To prepare statutory plans which are generally consistent with relevant strategic plans and will provide information that explains any variation following additional inquiry and consultation. The ability to proceed with statutory plan amendments may be delayed while strategic planning is undertaken.

·    To prepare LEPs affecting Council land in accordance with any guidelines, regulations and directions applicable at the time to ensure planning decisions are open and transparent, and free from claims of bias.

 

·    To encourage innovation in development through application of a performance-based approach to regulation.

·    To regularly review existing provisions as outlined in Council’s operational plans. Council will attempt to provide for a single annual review of the LEP within the capacity of Council’s resources. Accordingly, some proposals may be held-over pending receipt of others to justify preparing a draft plan. Only where there is a public interest imperative will site-specific LEP amendments be prepared as a single plan.

·    To seek contribution from developers to the cost of preparing Planning Proposals/ Environmental Studies which relate to proposals on specific land and are otherwise not part of a strategic review. The payment of funds towards studies will not necessarily provide for an outcome favourable to the proponent. Payment is at the full risk of the proponent.

·    To charge for LEP amendments for site-specific proposals or proposals beyond the terms of an adopted strategic plan in accordance with Council’s Management Plan effective at the time of applications.

 

4       DEVELOPMENT ASSESSMENT

4.1    Issues

The development assessment system directly affects property rights, and accordingly must be based on legislation (refer DAF Agreed Principles of Leading Practice in Development Assessment).

The way that the development assessment process is managed within councils or State agencies can affect the speed under which determinations are made and the quality of outcomes (Local Development Taskforce - “Bird Inquiry”: 60).

The development assessment system involves complex legislation and a host of complicated planning instruments. The roles that councillors and staff are obliged to fulfil are not always well understood by those involved in the system (ICAC discussion paper - Taking the Devil Out of Development: 10).

4.2    Development System

There are many views on the expectations of the development assessment system, but it is commonly agreed that the system should:

·    focus on achieving high quality sustainable outcomes

·    be cost effective, streamlined, simple and accessible

·    promote transparency and accountability in administration

·    incorporate performance measurement and evaluation

·    promote continuous improvement

·    provide for appropriate community involvement in decision making.

To achieve this requires appropriate systems and policies, appropriate delegation arrangements, clearly defined and articulated roles and responsibilities at various stages of the development assessment process, improved knowledge of the system and awareness of proposals and consistent application of development rules, dispute resolution techniques and monitoring mechanisms.

4.3    Assessment System

The assessment system comprises the following stages:

·    pre-application information gathering

·    lodgement

·    notification/consultation

·    assessment and reporting

·    decision making

·    appeals and dispute management

·    enforcement/compliance.

4.4    Pre-Application Guidance

Council provides, through the Development Coordinating Committee (DCC), the opportunity for to developers to engage with Council staff so that staff are able to advise on possible issues that may affect a development proposal. The DCC comprises staff with skills and experience in the fields of planning, engineering and building control, and meets on a daily basis. Appointments to discuss proposals with the DCC can be made through Council’s Customer Service Team to a Committee member. The DCC is a free service. Opportunity exists for future versions of Council’s Fees and Charges to introduce a pro rata charge for accessing the DCC service, particularly in circumstances where the DCC service has been requested on more than one occasion by the same proponent for the same site.

2.3  4.4.1 Pre-lodgement consultation with the community

In accordance with the endorsed PDCPP, proponents are encouraged to undertake consultation with community members who may be affected by the proposed development prior to lodging a Development Application with Council. For those development designs that have been subject to community consultation at the pre-lodgement stage Council will determine if the matter can be channelled into a more streamlined assessment procedure. This will however depend upon the complexity of the proposed development and the nature of identified issues. If the application is of a proposal type that would need to be exhibited per the PDCPP, the DA will still be exhibited during the assessment process.

The proponent would need to submit evidence for engagement with the community, and how outcomes of the consultation were considered and implemented into the development’s design. Evidence to be submitted would include:

·    The timeframe for active engagement with community members engaged in the pre-DA consultation (‘the consultation group’),

·    An indication as to the members or households in the consultation group and their nexus to the proposed development,

·    Draft plans and documents viewed and commented upon by the consultation group,

·    Log of meeting dates and correspondence with the consultation group, and

·    Details on how feedback from the consultation group influenced the final proposal.

The proponent should be aware that in the making of a Development Application, false or misleading information which is supplied to and then used by a consent authority (such as Council) when coming to a decision may result in that decision being invalid.

The streamlined scheme will occur on a trial basis initially, beginning 1 December 2019 and up for review by 1 June 2020 via the Director of Development Services.

4.5    Heritage Advisor

Council also has an appointed Heritage Advisor available to provide pre-DA advice on both heritage and urban design issues. Appointments with the Heritage Advisor can be arranged with Council staff.

4.6    Lobbying/Preliminary Meetings etc

Council has adopted a Code of Conduct that applies to all staff and councillors. The Code of Conduct applies in interactions with Council officials. Of particular significance are the Code’s requirements in respect to conflict of interest, gifts and bribery, improper or undue influence and conduct of Council officials, including interactions between councillors and staff.


DECLARATIONS FOR DEVELOPMENT ASSESSMENT-

PRE LODGEMENT


Council undertakes:

·    To encourage proponents to perform pre-DA lodgement consultation with community members through implementation of section 4.4.1.

·    To make a panel of relevant staff (currently known as the Development Coordinating Committee or DCC ) freely available for up to 1 hour of staff time to discuss issues and outline aspects of development that may require particular attention according to the panel’s understanding of the site and development.

·    That the advice from the panel is provided in good faith to inform, but the panel is not to be construed as an agent for the proponent; and as such applicants need to make their own independent decisions of how issues may affect their development, and must solely rely on their own investigations and independently utilise or consider advice from their agents and consultants.

·    That a Code of Conduct applies in all interactions with staff and councillors, and that proponents may need to be advised of aspects of the Code where circumstances require.

·    That a written record of any conversation be attached to the relevant property or subject container in Council's electronic records system.

4.7    Lodgement

In receiving development applications Council is obliged to record certain information. Development application information is recorded on electronic systems. These systems are also used to provide support to the subsequent processing and assessment of the application, including preparation of reports and correspondence, and defining responsibilities and performance through workflows.

Council has also established computer-equipped interview rooms to allow for convenient perusal of applications at the time of lodgement. Not all areas of compliance are likely to be able to be determined at this point until a thorough review of the application has been undertaken.

The Act also lists the information that is required to accompany an application. In particular and in accordance with Council resolution 19/381, a schedule shall be submitted with all development applications that involve physical works outlining estimated cost of works:

a)   For development up to $500,000, the estimated cost be estimated by the applicant or a suitably qualified person (such as a licenced builder, architect, accredited building designer, registered quantity surveyor, or a licenced person with suitable experience), with the methodology used to calculate that cost submitted with the DA. 

b)   For development between $500,000 and $3 million, a suitably qualified person (such as a licenced builder, architect, accredited building designer, registered quantity surveyor) should prepare the cost estimate and submit it, along with the methodology, with the DA. 

c)   For development more than $3 million, a detailed cost report prepared by a registered quantity surveyor verifying the cost of the development should be submitted with the DA.

The Planning System Circular PS13-002 Calculating the genuine estimated cost of development dated 14 March 2013 (or later replacement version), issued by the NSW Government is to be consulted in this regard. In particular, Attachment A to PS13-002 shall be used by applicants when providing a breakdown of estimated costs.

 


 

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

LODGEMENT

Council undertakes:

·    To screen applications for lodgement pursuant to the Act and Regulation. If incomplete applications are rejected, staff will provide information to the applicant on what is required for lodgement and work with the applicant to ensure their applications are fit for lodgement.

·    To accept complete applications and process these as soon as practicable. A Statement of Environmental Effects is required to accompany all applications. Such statements are consistent with a performance-based approach to regulation where the applicant demonstrates how the development proposal meets the expected outcomes.

·    To only request additional information necessary to reasonably consider the environmental impacts of the development and the suitability of the site for the proposal, in accordance with Council’s obligations as a consent authority. A Statement of Environmental Effects is a mandatory requirement under the Act.

·    That, where a more detailed review of the application reveals that more information or clarification is required, Council will endeavour to notify the applicant as soon as possible of the nature of the information required for the application to proceed.

·    That a Code of Conduct applies in all interactions with staff and councillors and that proponents may need to be advised of aspects of the Code where circumstances require. In this respect, Council staff will not guarantee a timeframe for determination or be induced to facilitate the progress of an application.

4.8    Exhibition of development applications

The Local Government and Shires Associations (LGSA) has held the view that:

“community control of development assessment is the foundation of local democracy”.

ICAC has acknowledged that:

“many complaints are received each year of councils approving developments where people who feel they are affected by the decision say they did not receive notification of the proposed development. Invariably, allegations are made that the failure to notify them is indicative of some maladministration or corrupt behaviour – the public suspects information is being deliberately concealed. When this occurs, considerable resources can be consumed in assessing and responding to such complaints".

Some years ago, the Land and Environment Court held that notification and consideration of unsolicited submissions beyond the requirements of a planning instrument could raise expectations of rights that were not supported by the legal process; and where objections were taken into account, that councils could be seen to be considering irrelevant matters. This view has since shifted in line with community expectations and legislative reforms.


 

 

A right to make a submission does not necessarily extend to the right to appeal a decision on its merits unless specifically provided for in the Act. Third party appeals (ie appeals by someone other than the consent authority or applicant) on the merits of a development are limited to Designated Development. There are no appeals on the merits of a development for “advertised” or “neighbour notified” development. In those cases, submissions assist the consent authority in making a decision by taking into account community views. Council is not, however, bound by those opinions.

The Act provides procedures for “advertised development” and other forms of exhibition as defined in an LEP and other environmental planning instruments In addition, Council commits to a weekly notification in a local newspaper outlining a list of incoming development applications lodged during the preceding week. This list does not include those development applications that fall under the category of "advertised” development.

The Act provides specific procedures for “advertised development” and “designated development”. See the PDCPP for more details on exhibition and notification procedures.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

COMMUNITY NOTIFICATION

Council undertakes:

·    To publish each week in a local newspaper circulating in the region and on Council’s website (www.orange.nsw.gov.au) a list of all incoming development applications lodged and registered up until and including the previous Friday.

·    That exhibition occurs in accordance with PDCPP.

·    That applications for “advertised development” shall be notified in a separate notice in a local newspaper circulating in the region.

·    To act as neutral negotiator on applications where relevant issues have been raised through submissions and those issues have merit and a compromise could reasonably be negotiated with the proponent.

·    To offer a mediation meeting to all parties where Council receives submissions by at least ten (10) different submitters, and those submitters have expressed objections to or concerns with a proposed development and the issues raised are considered by Council able to be reasonably capable of negotiation. A mediation session may also be offered at the discretion of the Director of Development Services where at least five (5) submitters have responded with an interest and willingness to participate in a mediation session with the applicant and Council, and those submitters have outlined what issues they are willing to negotiate on in the mediation session.

·    That where the PDCPP and this document indicate that the application is required to be considered by the Planning & Development Committee/Council, submitters will have the opportunity to address a Council meeting. The DA tracking system on the web enables residents to follow the progress of an application. Otherwise people can make direct contact with the Development Services staff to determine when an application is expected to be determined.

·    That, as part of the planning review and monitoring system, submissions raising issues of planning policy may be used in future reference in considering if amendments are required to planning instruments or policies.

·    To provide electronic tracking of the progress of all development applications accessible by all interested people on the web through Council’s e‑services system.

·    To extend exhibition timeframes beyond the PDCPP minimum timeframes, at the discretion of the Director of Development Services.

4.9    Application Evaluation

Council is charged with the responsibility as the consent authority for determining applications that can only be carried out with development consent. The Act outlines the criteria that Council must consider when determining an application as stipulated generally in section 4.15. Section 4.15 reads in part as follows:

SECTION 4.15 Evaluation

(1)     Matters for consideration – general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)     the provisions of:

(i)      any environmental planning instrument, and

(ii)     any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)    any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)    the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v)     any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b)     the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)     the suitability of the site for the development,

(d)     any submissions made in accordance with this Act or the regulations,

(e)     the public interest.

In 1997 the former Department of Urban Affairs and Planning (DUAP) released a paper outlining how matters should be considered under (then) section 79C – now section 4.15. Despite some changes to the law since, this Table may still be referred to for guidance, as will case law from the NSW Land and Environment Court (LEC) and higher courts of review. The Land and Environment Court displays planning principals on its website:

http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_planningprinciples 

The requirements of s4.15 are mandatory factors and failure to consider any of the mandated factors in a reasonable manner “where relevant” may result in the determination being declared invalid by a Court. Although s4.15 requires that the listed considerations be taken into account in determining an application, the relevance of each of those factors needs to be determined by the consent authority. Section s4.15 does not require that any particular weight be applied to these factors; however they have to be reasonably considered (Bates, 2002: para 11.7 pp 259-260). Because the provisions of a planning instrument (such as an LEP) are statutory, the first test for Council is to be satisfied that the development the subject of an application may be approved.

Reports by Council’s professional assessment staff are therefore prepared by listing the relevant heads of consideration under s4.15 to ensure that the decision making body has information before it relevant to the application.

The ICAC has expressed concern that Council officers can be subject to significant pressure when undertaking their responsibilities in development assessment. Council’s Code of Conduct outlines appropriate interactions between staff and Councillors.

The following section from the Local Government Act also addresses issues relating to appropriate interactions between councillors and staff.

 

352 Independence of staff for certain purposes

(1)     A member of staff of a council is not subject to direction by the council or by a councillor as to the content of any advice or recommendation made by the member.

(2)     This section does not prevent the council or the mayor from directing the general manager of the council to provide advice or a recommendation.


 

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

APPLICATION EVALUATION

Council undertakes:

·    To prepare and consider reports for applications in accordance with the section 4.15 criteria. Reports will include consideration under headings relating to the relevant prescribed matters.

·    That, where relevant, applications will be considered in accordance with practice notes and guidelines from DoP and planning principals of the Land and Environment Court (http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_planningprinciples).

·    To have reports prepared by staff in the least possible time taking into account the complexity of the development, need for referrals, community submissions, existing workloads and priorities.

·    To provide reports to applicants (and to other interested persons upon a specific request) following preparation of the meeting agenda. All other information shall be provided in accordance with section 12 of the Local Government Act and the relevant provisions of the Privacy Act.

·    That impartiality of staff (or consultant) recommendations are respected and maintained in accordance with the Act and Council’s Code of Conduct.

·    That Council’s adopted Code of Conduct applies in all respects to Councillors and staff in performing their respective responsibilities in evaluating and determining development applications.

·    That, for potentially controversial development applications affecting Council land, the evaluation may be referred to an independent assessor for recommendation to Council.

4.10  Delegations - Decision Making

Councillor’s Role

Like the assessment system, there are many opinions on the role of Council in development assessment. While some believe that Councillors should only be involved in setting of policy through strategic and statutory planning, others see the Councillor’s role in a political setting of representing community aspirations. The ICAC has encouraged delegations to an appropriate level. Issues of transparency and accountability remain.

The ICAC has held the view that:

The Council in Chamber is expected to act as a “board” overseeing policy development and regularly monitoring operational decisions. It is the responsibility of the council to have internal control systems in respect of delegations.

Internal control mechanisms include:

·    a risk management approach that, where public or political concerns may arise, consideration should be given to referring the matter to a more senior body

·    use of delegations when there is no conflict of interest

·    appropriate separation of responsibilities between evaluating staff and decision making.

The risk management approach is achieved where applications are reviewed in the first instance by the staff panel of the Development Coordinating Committee (DCC), secondly by Planning Management peer review, and thirdly by the General Manager via any determining panel that he may establish. Management may also be required to review determinations by staff based on receipt of community submissions. With the involvement of the DCC and the abovementioned review procedure, the ICAC’s concerns for potential probity issues are lessened.

A hierarchy of delegations operates based on the level of assessment and potential for community involvement (submissions) in the determination.

This hierarchy is identified according to the following list, with number 1 being the highest level of authority:

Decision-making Authority

Delegated to

1       Council in Chamber as the consent authority

No delegation

2       Planning & Development Committee

Councillors only

3       General Manager

General Manager and senior staff

4       Staff delegation report prepared for review

Staff supervisor/Manager/Director

5       Staff delegation (minor development)

Staff to assess and issue consent

 

Delegations are based on the type of development and potential issues that are likely to arise from the development – refer to “Declarations for Development Assessment – Delegation” beginning on page 17. Certification is delegated in the following way:

 

CERTIFICATION

(Sub) delegation

Construction (and occupation) Certificate for Class 1 and 10 buildings (dwelling houses and associated outbuildings, swimming pools, garages, garden sheds, patios and pergolas)

General Manager sub-delegated to EHBS - mostly received as a joint DA/CC

Construction (and occupation) Certificate for Class 2-9 buildings

Manager Building and Environment

Construction Certificate - subdivision works

Director Technical Services

Subdivision Certificate

Director Development Services

In exercising their delegated authority, the General Manager may establish a determination panel to assist in the decision-making process. The General Manager, usually at the recommendation of Council staff, reviews DAs received to establish whether the determination of the application should be delegated to the General Manager or to the Planning & Development Committee (‘PDC’). The General Manager and other “lower-level” delegations can only grant consent subject to conditions.


 

Other delegates may advise applicants that applications are incomplete and cannot be determined. In circumstances where a development application remains incomplete after 90 days, despite the request of staff for the submission of additional information to enable the assessment to be formally undertaken, the General Manager may refuse the development application. Council is not in a position to hold applications in abeyance indefinitely.

The DLG Model Code (2004) includes a specific section on “development decisions” as follows:

5.7     It is your duty to ensure that development decisions are properly made and that parties involved in the development process are dealt with fairly. You must avoid impropriety.  You must also avoid any occasion for suspicion and any appearance of improper conduct.

5.8     In determining development applications, it is essential that you are highly conscious of the potential for even the slightest impropriety to lead to suspicion of misconduct.  This means you must ensure that no action, statement or communication between yourself and applicants or objectors conveys any suggestion of willingness to provide concessions or preferential treatment.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT - DELEGATION

Council undertakes:

·    To delegate development assessment decisions to the appropriate level of decision making in order to facilitate efficient development assessment systems:

Proposal type

(Sub) Delegation

1 - BCA Class 1 and 10 buildings (dwelling houses and associated outbuildings, swimming pools, garages, garden sheds, patios, pergolas, and the like) often as combined DA/CC and for many of these proposal they could have been dealt with as Complying Development if it were not for one or two minor factors. This shall also include an application to modify a development consent for development of this type.

Environmental Health & Building Surveyor Team or fast-track Planner

2 All development and subdivision types, subject to 3(a), 3(b), 4, 5(b), 7, 8, 9(a), 10, 11(a), 11(b), 12, 13, 14, 15, and 16 below

General Manager

3(a) In residential zones – Torrens subdivision which would result in eleven (11) or more Lots being created without an existing DCP or prior endorsed subdivision concept plan

Council/PDC

3(b) In business, commercial, recreation, or infrastructure zones – Torrens subdivision which would result in six (6) or more Lots being created without an existing DCP or prior endorsed subdivision concept plan

Council/PDC

4 Designated development

Council/PDC

5(a) Development that meets the performance outcomes of clause 4.6 of LEP and results in a less than 10% variation to the Development Standard being varied

General Manager

5(b) Development that meets the performance outcomes of clause 4.6 of LEP but results in more than 10% variation to the Development Standard being varied

Council/PDC

6   Modifications to development consent

General Manager

7 Development prevented from delegation by statute (some specified development on community land)

Council/PDC

8 Development specifically resolved by Council/PDC to be determined solely by it                                                                                                                                                                  

Council/PDC

9(a) Where an application is recommended for refusal by Council staff                   

Council/PDC

9(b) Where an application is recommended for refusal by Council staff on the grounds that the application remains incomplete following the request for the supply of additional information                                                                                                  

General Manager

10 Any DA with a value exceeding $2.5 million                                                                     

Council/PDC

11(a) Where there is a request to waive development contributions exceeding $20,000                                                                                                                                                    

Council/PDC

11(b) Where there is a request to waive more than half the application lodgement fees

Council/PDC

12 Any DA with a “significant public interest”                                                                        

Council/PDC

13 Any significant Council development where Council will be financial beneficiary                                                                                                                                              

Council/PDC

14 Any DA lodged by, or on behalf of, or benefitting a Councillor or management/director level staff

Council/PDC

15 Where three (3) Councillors have formally approached the General Manager with reasons in writing, and the General Manager, Mayor, and the Chairman of the PDC have agreed to forward the DA to PDC                                                                    

Council/PDC

The above hierarchy depends on the delegate exercising the authority. Where issues arise for the delegate, the matter will be referred to the next higher level (ie from 3 to 2, 2 to 1 etc).

·    To operate formal systems of review applying a risk management approach.

·    That Council’s adopted Code of Conduct applies to all delegates in performing their respective responsibilities in determining development applications.

·    To review delegations according to the requirements of the Local Government Act.

Significant public interest cannot be defined precisely. As a guide in determining significant public interest, consideration will be given to:

·    the number and variety of public submissions received but, more particularly, greater weight will be given to the planning issues raised in those submissions that cannot be addressed through negotiation or by conditions of consent, and

·    development that falls short of many objectives and development standards of environmental planning instruments, and planning outcomes of DCPs.

Where three Councillors have formally approached the General Manager to request that a development application be referred to PDC for determination, the reasons in writing should not indicate a position on the merit of the application, but should demonstrate why it is considered that the application is not one that should be determined under delegation, having regard to the provisions of the relevant delegation.

Where an application is scheduled to be determined by the Planning & Development Committee (PDC) or Council, arrangements can be made for any person to make representation at the relevant meeting. Potential speakers need to complete a Speaker Registration Form and comply with the requirements set out on that form. The form is available on Council’s website at www.orange.nsw.gov.au or from Council’s Customer Service Team at the Civic Centre from 9am to 5pm Monday to Friday. Fully completed forms must be received by Council staff prior to 6.50pm prior to the meeting.

4.11  Determination of Applications

Broadly, all DAs that have been determined will be listed as a monthly summary in a local newspaper. A ‘notice of determination’ will be sent to the proponent, as well as any submitters that commented on the DA. This notice will be sent to submitters in writing by letter.

The notice of determination will also be uploaded to the NSW Department of Planning, Industry & Environment’s Planning Portal website, which can be accessed by anyone through https://www.planningportal.nsw.gov.au/ or, if the Planning Portal is not available for uploads, the notice of determination will be uploaded to Council’s own website.

The notice of determination will set out:

•        The result of the determination

•        The reason for the determination (also known as ‘Statement of Reasons’)

•        The reason for imposition of conditions (if the determination is an approval).

The Statement of Reasons will detail how community views were taken into account in making the decision, as well as touching on the statutory requirements that applied to making the decision.

A development consent becomes effective from the date indicated on the Notice of Determination. Council generally provides a five (5) year period to formally act upon the consent.

 

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

NOTIFICATION OF DETERMINATIONS

Council undertakes:

·    To notify applicants, owners and people who have made a submission of the outcome of the decision on the application as soon as practicable after the determination has been made by the appropriate authority.

·    That Councillors will be advised in reports to the Planning & Development Committee of decisions made under delegation.

·    To keep a register in electronic format in accordance with section 4.58 of the Act.

·    To notify determination of all consents in accordance with the Act and Regulation.

 


 

5     COMPLAINT HANDLING PROCEDURES

The ICAC has expressed the view that:

A decision that represents a ‘loss’ in a development control dispute under a system where the applicant or objector feel that they have not had a ‘fair go’ can lead to an assumption that undue influence or bias may have played a part in the decision making.

Complaints are occasionally received by Council regarding development decisions.

Council has adopted the following policies/procedures that may be applied in relation to allegations of staff performance in the handling of development applications:

·    Customer Service Guarantee Policy

·    Disciplinary Procedures Policy

·    Civic Square Enterprise Agreement

Council has adopted a Code of Conduct that applies to Councillors and staff in undertaking their responsibilities.

Where Council receives written (and signed) allegations of staff non-compliance with accepted standards of performance, then the matter will be investigated according to the above policies and subject to the following summarised actions.

The allegation will be referred to the staff supervisor. The staff member the subject of allegations will be requested to respond to the allegations and a letter of response will be provided to the complainant from the staff member’s supervisor, Director or the General Manager depending on the seriousness of the allegation. In accordance with the disciplinary policy, an investigation of the allegations may be carried out.

Investigations may also be carried out by other organisations such as the Department of Local Government under the terms of the Local Government Act, the ICAC, the Ombudsman or the Police.

Procedures for addressing allegations against Councillors are specifically addressed under Division 3 (Misbehaviour) of Chapter 14 of the Local Government Act - Honesty and Disclosure of Interests.

Chapter 14 also applies in respect to disclosure of interests and corrupt conduct of staff and Councillors.

The Protected Disclosures Act 1994 provides for facilitating disclosures with protection from reprisal to be made by Council employees for the purpose of reporting allegations of corrupt conduct or maladministration as defined.

All letters of complaint regarding staff or Councillors should be addressed to:

The General Manager

Orange City Council

PO Box 35

ORANGE  NSW  2800

Respondents must be responsible in making complaints and be aware of any implications of the Defamation Act 1974. It is important to express views objectively and accurately.

 

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

COMPLAINT HANDLING

Council undertakes:

·    To address all reasonable complaints according to Council policies, procedures and legal requirements.

·    To respond in writing within a reasonable time to written complaints about staff after the staff member has been given an opportunity to respond to any allegations made and following any formal investigation deemed necessary as a consequence of the complaint.

 

 

Originally adopted by Council on 29 August 2005

(resolution number 05/406).

Version 5 adopted on 7 November 2019

(resolution number xx/xxx)

 


GLOSSARY OF TERMS

DAF                                                        Development Assessment Forum

DCC                                                        Development Coordinating Committee

DCP                                                        Development Control Plan

DDS                                                        Director Development Services

DLG                                                        NSW Department of Local Government

DP&E                                                      Department of Planning & Environment

EP&A Act                                                Environmental Planning and Assessment Act

GM                                                         General Manager

ICAC                                                       Independent Commission Against Corruption (NSW)

LEC                                                         Land and Environment Court

LEP                                                         Local Environmental Plan

LGSA                                                       Local Government and Shires Association (NSW)

MBE                                                       Manager Building and Environment

MDA                                                       Manager Development Assessments

PDC                                                        Planning and Development Committee

PDCPP                                                    Planning and Development: Community Participation Plan

 

 

 

            

 


Planning and Development Committee                                                      7 November 2019

Attachment 3      DCP 2004 Chapter 5 - edited to refer to Community Participation Plan

Contents

5.                GENERAL CONSIDERATION FOR ZONES AND DEVELOPMENT. 5.1

5.1              EXEMPT DEVELOPMENT. 5.1

5.2              COMPLYING DEVELOPMENT. 5.2

WHERE COMPLYING DEVELOPMENT DOES NOT APPLY. 5.2

STANDARD CONDITIONS.. 5.2

5.3              ADVERTISED DEVELOPMENT. 5.3

ADVERTISED DEVELOPMENT. 5.3

Table 5.3 - Advertised Development 5.3

NOTIFICATION OF OTHER DEVELOPMENT. 5.4

SUFFICIENT WRITTEN NOTICE.. 5.4

NOTIFICATION OF DEVELOPMENT APPLICATIONS OTHER THAN “ADVERTISED DEVELOPMENT” 5.4

5.4              ANCILLARY DEVELOPMENT. 5.5

PO 5.4-1 PLANNING OUTCOMES FOR ANCILLARY DEVELOPMENT. 5.5

5.5              ZONE BOUNDARIES.. 5.5

PO 5.5-1 PLANNING OUTCOMES FOR DEVELOPMENT AT ZONE BOUNDARIES.. 5.6

5.6              UNZONED LAND.. 5.6

PO 5.6-1 PLANNING OUTCOMES FOR UNZONED LAND.. 5.7

5.7              SUBDIVISION.. 5.7

GENERAL. 5.7

QUALITY ASSURANCE PROCEDURES FOR CONSTRUCTION CERTIFICATES.. 5.7

PO 5.7-1 PLANNING OUTCOMES FOR CERTIFYING SUBDIVISION.. 5.8

 


 

5.   GENERAL CONSIDERATION FOR ZONES
AND DEVELOPMENT

 

5.1   EXEMPT DEVELOPMENT

 

Exempt development is considered to involve minor proposals that have minimal environmental impact.  Exempt development will not require development consent.  Exempt development is subject to established standards and criteria to ensure that it has minimal environmental impact.

 

Section 76(2) of the Environmental Planning and Assessment Act (“the Act”) states that an environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.

 

Orange Local Environmental Plan 2000 (“the LEP”) species exempt in Clause 20.  Clause 20 references exempt development criteria in Schedule 1 of this Development Control Plan (“the DCP”).

 

A development application or an application for a complying development certificate may need to be made for development that does not meet the exempt development criteria under the LEP or this DCP.

 

If development is undertaken without approval and if that development does not meet the exempt development criteria, then Council may require that an application be lodged.  Council may also take action by giving orders or by instituting legal proceedings to rectify any breaches according to the Act.

 

5.2   COMPLYING DEVELOPMENT

 

The complying development category recognises that some development that is subject to established criteria does not require detailed assessment.  The complying development category provides for “fast tracking” of standard or routine development.

A complying development certificate can be issued either by Council or by an accredited certifier within seven days of application where the development complies with established standards and criteria in all respects.

Section 76A(5) of the Environmental Planning and Assessment Act 1979 states that an environmental planning instrument may provide that local development that can be addressed by predetermined development is complying development.  Subsection 6 provides a number of restrictions on applying complying development.

Clause 22 of Orange Local Environmental Plan 2000 (“the LEP”) provides for complying development and outlines the circumstances in which complying development may be used.  The LEP also references the development criteria for complying development in Appendix 2 of this Development Control Plan (“the DCP”).

WHERE COMPLYING DEVELOPMENT DOES NOT APPLY

 

Section 76A(6) provides that complying development does not apply to:

·    State significant development;

·    Designated development;

·    Development that requires concurrence;

·    Land that is critical habitat (with the meaning of the Threatened Species Conservation Act 1995);

·    Land affected by or within a wilderness area (within the meaning of the Wilderness Act 1987);

·    An item of environmental heritage (either subject to a conservation order under the Heritage Act 1977 or listed in Schedule 8 of Local Environmental Plan 2000 (as amended);

·    Land identified as an environmentally-sensitive area.

 

Orange Local Environmental 2000 identifies the following land as environmentally sensitive:

·    Land indicated by diagonal red hatching, being land that is in the vicinity of major industries or utility installations;

·    Land within the Scenic Area adjacent to Orange Botanic Gardens;

·    Land within the Water Supply Quality Protection Area in the vicinity of creeks and water storages within the City’s water supply catchment;

·    Within the Lucknow Village and adjacent areas affected by mining operations.

 

Because these areas define various potential environmental impacts, complying development is not considered appropriate.

 

STANDARD CONDITIONS

·    Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate other than for subdivision are listed in Schedule 3.1.

·    Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for strata subdivision are listed in Schedule 3.6.

·    Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for subdivision creating residential lots in Spring Hill Village are listed in Schedule 3.5.

·    Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for subdivision of residential lots in the urban residential zone are listed in Schedule 3.4.

·    Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for rural subdivision are listed in Schedule 3.3.

·    Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for dual occupancies in residential zones, consulting rooms, industrial and warehouse buildings are listed in Schedules 3.1 and 3.2.

 

5.3   ADVERTISED AND NEIGHBOUR NOTIFIED DEVELOPMENT

 

Council’s Planning and Development: Community Participation Plan (current edition) is to be referred to for guidance on “advertised” and “neighbour notified” development.

 

5.4   ANCILLARY DEVELOPMENT

 

Clause 25 of LEP 2000 outlines where development may be prohibited under Orange LEP 2000.  Subclause 25(2) of LEP 2000 identifies uses that are considered not to be ancillary to a dwelling.  The LEP otherwise does not outline ancillary use.  This section is intended to assist in determining ancillary use issues.

Some development may comprise more than one use.  In the event that a development comprises more than one specific purpose (ie, an industry, showroom and office), then consideration may be given to the development even where one purpose may normally be prohibited in the zone if that purpose is reasonably considered to be ancillary, dependent, incidental or subordinate to a permissible use.

For the purposes of this Plan, the following principles are applied in considering if a use may be ancillary development:

·    The subordinate, dependent, incidental or ancillary purpose is on the same land as the dominant one;

·    Building(s) erected and/or used for ancillary development are necessary for the dominant use to operate effectively;

·    The area required for the subordinate, dependent, incidental or ancillary purposes is substantially less than the area used for the dominant use;

·    The number of employees involved in the subordinate, dependent, incidental or ancillary use are less than the number engaged in the dominant use.

 

Where one or more of the above principles cannot be achieved, an applicant must be able to demonstrate to the satisfaction of Council that the use is subordinate, ancillary or incidental to or dependent on the dominant use and is not an independent use.

 

PO 5.4-1 PLANNING OUTCOMES FOR ANCILLARY DEVELOPMENT

1          Development comprising more than one purpose including a purpose that would normally be prohibited in that zone operates in a manner where any ancillary purpose is subordinate, dependent or incidental or ancillary to the primary purpose of the development according to the ancillary development principles.

 

RELATED INFORMATION – ANCILLARY DEVELOPMENT

1       Farrier, David, 1993 The Environmental Law Handbook:  Planning and Land Use in New South Wales, Second Edition (p:116). Redfern Legal Centre Publishing, Sydney

2       Grainger, Chris. 1993 “The Doctrine of Ancillary Use” in Environmental and Planning Law Journal. Vol 10  pp:267-277. Law Book Company, Sydney

 

5.5   ZONE BOUNDARIES

Zones are used in LEP 2000 to broadly define areas that are considered appropriate for various forms of development subject to more detailed site-specific considerations.

Zones provide for a range of uses within an area while excluding others.  As a consequence, some areas may have a number of different uses being undertaken that generate the character of the locality.  This variety in character occurs particularly where different zones meet at a zone boundary, often referred to as “transitional areas”.  In specific cases, there may be justification to provide some development flexibility adjacent to a zone boundary provided that the planning principles underlying the zone are maintained.

This provision does not allow additional development in a water-supply catchment, since the water-catchment zone boundary is based on topographical limits for the purposes of restricting development that could potentially impact on water quality in the water-catchment area.

Formerly, LEP amendments were required to allow development on land that could otherwise only be carried out on land in the adjoining zone.  In those cases, submissions were required to substantiate a change to the LEP.  Similarly, a proposal to undertake development under clause 26 of LEP 2000 adjacent to a zone boundary must be substantiated.

The following considerations are required to substantiate development in accordance with clause 26 of LEP 2000:

·    Description of the existing land use pattern

·    Suitability of the land (services, character of adjoining development, etc) to provide for the proposed development

·    Evaluation of alternative opportunities within the adjoining zone

·    Review of the development potential for the site, taking into account site-specific opportunities and constraints for development and associated environmental impacts

·    Conclusions on the potential impacts of the development on the character of the area and the extent to which the development is compatible with the character of the area

 

PO 5.5-1 PLANNING OUTCOMES FOR DEVELOPMENT AT ZONE BOUNDARIES

1          Applications for development under clause 26 of LEP 2000 demonstrate to the satisfaction of Council that the land is suitable for the proposed use and is compatible with the character and amenity of the area in accordance with this DCP.

2          The development complements the character of the area.

 

 

5.6   UNZONED LAND

 

Under LEP 2000, railway land, roads and some creeks have been left unzoned.  Under clause 27, unzoned land may be used for a purpose permitted in the adjoining zone.  Development for road and railway purposes undertaken by the relevant transport authorities may be carried out without consent on unzoned roads and railway land respectively.

Where an unzoned road or railway land forms a boundary between two zones, development permitted under clause 27 of LEP 2000 must take into account the character of surrounding land.

Development of unzoned land comprising a public road also requires the consent of the relevant Roads Authority under section 138 of the Roads Act.

Section 138 of the Roads Act 1993 relates to:

a          erecting a structure or carrying out a work in, on or over a public road; or

b          digging up or disturbing the surface of a public road, or

c           removing or interfering with a structure, work or tree on a public road, or

d          pumping water into a public road from any land adjoining the road, or

e          connecting a road (whether public or private) to a classified road.

Applications for development involving any of the matters listed in section 138 affecting a “classified road” (such as a main road or State Highway as indicated with a red line on the LEP map) will be referred to the Roads and Traffic Authority.

Where development involves works on a road that is the responsibility of the adjoining Shire Council (Cabonne or Blayney), the development will be integrated development.

The Council will consider all matters relating to section 138(a) to (e) of the Roads Act affecting local roads under Council’s control.

 

PO 5.6-1 PLANNING OUTCOMES FOR UNZONED LAND

1          Development applications on unzoned land demonstrate that the development is consistent with the nearest adjoining zone or predominant development in the area permitted by an adjoining zone.

2          Applications for development on Main Roads meet the requirements of the Roads and Traffic Authority.

3          Applications affecting roads under another local roads authority (such as Cabonne or Blayney Councils) meet the requirements of the relevant council.

 

RELATED INFORMATION – UNZONED LAND

Roads Act 1993

 

 

5.7   SUBDIVISION

 

GENERAL

 

The Orange City Development and Subdivision Code (in Four Volumes), referred to below as “The Code”, is deemed to form part of this Plan.

 

QUALITY ASSURANCE PROCEDURES FOR CONSTRUCTION CERTIFICATES

 

Quality assurance procedures for construction works that are required to be approved by Council under clause 28 of Orange LEP 2000 refer to the:

1              Quality Manual under section CQS-6 of Volume 4 of the Orange City Development and Subdivision Code (“The Code”) and

2              the Quality Plan under section CQS-7 of Volume 4 of the Orange City Development and Subdivision Code,

For clause 28 to apply, the Principal Certifying Authority must be satisfied that all job-specific requirements and quality-control procedures have been implemented in accordance with section CQS of Volume 4 of The Code.

Works carried out in accordance with the above quality assurance procedures to the standards required in the Orange City Development and Subdivision Code must be completed, or security arrangements made with Council for the completion of works, prior to a Certificate of Compliance under the Water Supplies Authorities Act and a Construction Certificate under the Act being issued.

 

PO 5.7-1 PLANNING OUTCOMES FOR CERTIFYING SUBDIVISION

1          All subdivision works are designed and undertaken in accordance with Council’s adopted standards as outlined in the Orange City Development and Subdivision Code.

 

NOTE              At the time of the adoption of this (draft) Plan, the Development and Subdivision Code was under review.  For the purposes of this Plan, any reference to the Development and Subdivision Code relates to the Code as adopted by Council that applies at the time of issue of a construction certificate for either buildings or subdivision works.

 


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Planning and Development Committee                                                                     7 November 2019

Attachment 5      YourSay site - Individual survey results

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Planning and Development Committee                                                                     7 November 2019

Attachment 6      Submissions

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Planning and Development Committee                                            7 November 2019

 

2.4     Development Application DA 232/2018(1) - helipad - 1083 Forest Road

RECORD NUMBER:       2019/186

AUTHOR:                       Summer Commins, Senior Planner    

 

 

EXECUTIVE Summary

Application lodged

3 July 2018; additional details submitted 23 October 2019

Applicant/s

Mr DM and Mrs JM Brus

Owner/s

Mr DM and Mrs JM Brus

Land description

Lot 2 DP 1069705 - 1083 Forest Road, Spring Creek

Proposed land use

Helipad

Value of proposed development

$10,000.00

The proposal involves the establishment of a helipad at 1083 Forest Road, Spring Creek (refer locality below – Figure 1).

A helipad means ‘a place not open to the public used for the taking off and landing of helicopters’ (Orange Local Environmental Plan (LEP) 2011). Seven (7) flights per week are proposed between 7am and 10pm. A concrete landing pad, 18m x 18m will be constructed. An existing rural shed will be used for the storage of helicopters.

The key issues for consideration include the suitability of the proposal in the water catchment; operational noise emissions; and impacts on the rural character and setting.

The proposal comprises advertised development. At the completion of the public notice and exhibition period, 16 submissions were received.

The proposal is not contrary to the planning provisions that apply to the subject land and particular land use. Subject to compliance with conditions of consent on the attached Notice of Approval, it is considered that the potential impacts of the proposed helipad can be appropriately managed, and are unlikely to have a significant impact on the surrounding environment.


 

 

Figure 1 - locality plan

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.

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 application relates to the construction and operation of a helipad.  A helipad by definition is restricted to 7 movements per week (take off is one, landing is two etc.).  The use is therefore relatively minor in intensity and would like into alternative facilities the operator has and will further construct at the Orange Airport.  Similar development in the LGA has not caused adverse impacts. I consider the proposal is reasonable and the recommendation of approval is supported.

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 232/2018(1) for Helipad at Lot 2 DP 1069705 - 1083 Forest Road, Spring Creek 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 involves the establishment of a helipad at 1083 Forest Road, Spring Creek for Orange Helicopters.

The helipad will be used for taking off and landing of helicopters by the owner or employee of the business. Two (2) helicopters will utilise the helipad, comprising a Bell 206 Jet Ranger and a Bell 212 specialist firefighting helicopter. Seven (7) flights per week are proposed between the hours of 7am and 10pm.

The helicopters will be used for charter, utility and emergency flights. By definition, the helipad will not be open to the public. As such, passengers will be collected offsite for all flights that involve passengers. The facility will provide a venue for the storage of helicopters (and associated flight movements) used in the operation of the subject business.

A concrete landing pad, 18m x 18m will be constructed. An existing rural shed to the south of the landing pad will be utilised as an aircraft hangar when the helicopters are not in use. Aircraft will be manoeuvred into and out of the hangar via a tow cart. The proposed site layout is depicted below (refer Figure 2).

 

Figure 2 - proposed site layout

Helicopter approach and departure paths are nominated for the westerly and easterly directions, as shown below (refer Figure 3). The flightpaths provide an obstacle free gradient from Final Approach and Take Off area (FATO) to the prescribed 500 feet (including dwellings on adjoining parcels). In the event that weather conditions do not permit use of the nominated flightpaths, Orange Airport will provide an alternative landing site.

Figure 3 – approach and departure flightpaths (shown in red)


Refuelling of helicopters will occur onsite via a mobile fuel truck. Refuelling will be undertaken on the concrete landing pad. At other times, the mobile fuel truck will be stored in the helicopter hangar.

History/Background

The subject land has development consent for a resource recovery facility (storage and processing of timber railway sleepers) pursuant to DA 421/2016(1) (7 December 2017). The proposed helipad will have nil impact on the existing operation of the resource recovery facility.

MATTERS FOR CONSIDERATION UNDER THE ENVIRONMETNAL PLANNING AND ASSESSMENT ACT 1979

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 (BC Act) and Part 7A of the Fisheries Management Act 1994 have effect in connection with terrestrial and aquatic environments.

There are four triggers known to insert a development into the Biodiversity Offset Scheme (ie the need for a BDAR to be submitted with a DA):

·    Trigger 1: development occurs in land mapped on the Biodiversity Values Map (OEH) (clause 7.1 of BC Regulation 2017);

·    Trigger 2: development involves clearing/disturbance of native vegetation above a certain area threshold (clauses 7.1 and 7.2 of BC Regulation 2017); or

·    Trigger 3: development is otherwise likely to significantly affect threatened species (clauses 7.2 and 7.3 of BC Act 2016).

The fourth trigger (development proposed to occur in an Area of Outstanding Biodiversity Value (clause 7.2 of BC Act 2016) is generally not applicable to the Orange LGA; as no such areas are known to occur in the LGA. No further comments will be made against the fourth trigger.

Trigger 1

The subject land is not identified as biodiversity sensitive on the Orange LEP 2011 Terrestrial Biodiversity Map.

Trigger 2

The prescribed clearing threshold for the site is 1ha (based on minimum lot size for the subject land of 40-1000ha ((Cl. 7.2 Biodiversity Conservation Regulation 2017). The proposal does not involve clearing or disturbance of native vegetation.

Trigger 3

The subject land is cleared and currently developed for a resource recovery facility. The site does not contain or adjoin mapped biodiversity sensitive lands and is not in proximity to a woodland vegetation community that would provide habitat for significant native fauna species. The proposal does not involve vegetation removal. It is considered that the proposed development will not adversely affect a threatened species.


 

Based on the foregoing consideration, a BDAR is not required and the proposal suitably satisfies the relevant matters at Clause 1.7 EPAA 1979.

Section 4.15 Evaluation

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

(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,

(d)     to manage rural land as an environmental resource that provides economic and social benefits for Orange,

The application is considered to be consistent with the above objectives, as outlined in this report and as follows:

-     The proposal comprises an extension to an existing local business which will contribute to the local economy.

-     There are no aspects of the proposal that are contrary to the principles of ecologically sustainable development.

-     The subject land is located in the City’s water catchment. In order to maintain the quality of surface and groundwater, conditions of consent are included on the attached Notice of Approval in relation to management of helicopter refuelling activities; and prohibition of helicopter maintenance works.

-     The proposal will not alter the existing primary production values of the subject land. This portion of the site is development for a resource recovery facility (DA 421/2016(1)) and is not utilised for agricultural activities. Furthermore, there is no evidence to suggest that an aircraft facility of this scale would adversely impact on adjoining rural farming land or livestock.

Clause 1.6 - Consent Authority

Clause 1.6 is applicable and states:

The consent authority for the purposes of this Plan is (subject to the Act) the Council.


 

Clause 1.7 - Mapping

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

Land Zoning Map:

Land zoned E3 Environmental Management

Lot Size Map:

Minimum lot size 100ha

Heritage Map:

Not a heritage item or conservation area; adjacent to heritage items

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 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 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

Clause 1.9A is applicable and states in part:

(1)     For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

(2)     This clause does not apply:

(a)     to a covenant imposed by the Council or that the Council requires to be imposed, or

(b)     to any prescribed instrument within the meaning of section 183A of the Crown Lands Act 1989, or

(c)     to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or

(d)     to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or

(e)     to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or

(f)      to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or

(g)     to any planning agreement within the meaning of Division 6 of Part 4 of the Act.

In consideration of this clause, 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

The subject land is zoned E3 Environmental Management.

The proposed development is defined as a ‘helipad’ which means:

A place not open to the public used for the taking off and landing of helicopters.

Helipads are permitted with Council’s consent in the E3 zone. The storage of helicopters within the existing rural farm shed is considered to be ancillary component to the overall use of a helipad on the land and is therefore permissible with the consent of Council.

Clause 2.3 - Zone Objectives and Land Use Table

The objectives of the E3 Environmental Management Zone are:

·    To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

·    To provide for a limited range of development that does not have an adverse effect on those values.

·    To manage development within water supply catchment lands to conserve and enhance the city and district’s water resources.

·    To maintain the rural function and primary production values of the area.

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

The application is considered to be consistent with the above objectives, as outlined in this report and as follows:

-     The subject land does not have particular ecological, scientific, cultural or aesthetic value. This portion of the site is developed for a resource recovery facility (DA 421/2016(1)). The proposed helipad will relate to that existing use in character and function.

-     The subject land is located in the City’s water catchment. In order to maintain the quality of surface and groundwater, conditions of consent are included on the attached Notice of Approval in relation to management of helicopter refuelling activities; and prohibition of helicopter maintenance works. Compliance with the conditions will protect water resources.

-     The proposal will not alter the existing primary production values of the subject land. This portion of the site is development for a resource recovery facility (DA 421/2016(1)) and is not utilised for agricultural activities. Furthermore, there is no evidence to suggest that an aircraft facility of this scale would adversely impact on adjoining rural farming land or livestock.

Subject to compliance with conditions of consent on the attached Notice of Approval, the proposed development is considered to be consistent with the foregoing objectives. The relevant matters are outlined in the following sections of this report.

Part 3 Exempt and Complying Development

The application is not exempt or complying development.


 

Part 4 Principal Development Standards

The Principal Development Standards at Part 4 are not applicable to the proposal.

Part 5 Miscellaneous Provisions

Clause 5.10 - Heritage Conservation

The subject land is located nearby to heritage items of Local significance, as follows:

·    Item I138 – ‘Bayoud’ former inn at 365 Cadia Road

·    Item I17 – ‘Glenfield’ country inn at 1007 Forest Road

·    Item I292 – Failford homestead at 45 Failford Lane.

Figure 4 – heritage items nearby to the site (shown in red hatching)

Clause 5.10(4) is applicable and states in part:

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.

In consideration of this clause, the proposal will not adversely impact on the significance of heritage items nearby to the site. The proposal does not involve any works that relate to the adjacent items or their curtilages. Furthermore, the proposed development does not involve improvements that will dominate the adjoining items, or impact on views to or from the items. The proposed helipad is well-removed from the heritage items by the road reserves and rural landholdings.

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

Clause 7.6 - Groundwater Vulnerability

The subject land is identified as Groundwater Vulnerable on the Groundwater Vulnerability Map. Clause 7.6 applies. This clause states in part:

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

In consideration of Clause 7.6, helicopters will be refuelled by a mobile fuel truck. The mobile facility will does permit bunding of the fuel filling area or truck storage/parking areas. A condition is included on the attached Notice of Approval that a fuel spill kit be provided onsite and utilised in the event of fuel spill.

Clause 7.7 - Drinking Water Catchments

The subject land is identified as “Drinking Water” on the Drinking Water Catchment Map. Clause 7.7 is applicable and states in part:

(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.

In consideration of Clause 7.7, the proposed helipad is unlikely to impact on water quality within the drinking water catchment. The subject land does not contain a waterway (subclause (3)(a)); and the development will not generate waste water or solid waste (subclause (3)(c)). As outlined above, a condition is included on the attached Notice of Approval requiring a spill kit to be located on the subject land and utilised in the event of a fuel spill. It is further required by conditions of consent that helicopter maintenance / servicing activities other than emergency maintenance shall not be carried out on the subject land.


 

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 Clause 7.11, utility services required for the proposed helipad are available to the land and adequate for the proposal. Conditions are included on the attached Notice of Approval requiring upgrading of the existing vehicular access from Hiney Road.

STATE ENVIRONMENTAL PLANNING POLICIES

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

(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, a Preliminary Contamination Investigation was submitted in support of previous DA 421/2016(1) for a proposed resource recovery facility (Envirowest Consulting 2017).

The investigation identified heavy metal contaminants over the site associated with past agricultural use of the subject property and more recent use for the storage and processing of railway sleepers. The Investigation confirmed that:

‘The levels of all substances analysed in samples collected from the site were at environmental background levels and less than the assessment criteria for commercial landuse thresholds.’

The subject site is considered suitable in its current form for use as a helipad.


 

State Environmental Planning Policy 33 - Hazardous and Offensive Development

SEPP 33 is applicable by virtue of the mobile fuel truck to be stored on the subject land. Pursuant to Clause 8 Consideration of Departmental Guidelines:

In determining whether a development is:

(a)     a hazardous storage establishment, hazardous industry or other potentially hazardous industry, or

(b)     an offensive storage establishment, offensive industry or other potentially offensive industry,

consideration must be given to current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development.

In accordance with Clause 8, consideration was given to Hazardous and Offensive Development Application Guidelines – Applying SEPP 33 (Department of Planning, January 2011) (SEPP 33 Guideline).

The proposed development does not exceed the Risk Screening threshold limits for quantity stored and boundary proximity, pursuant to the SEPP 33 Guideline. The fuel is classified as Class 3 Packing Group II fuel. A total quantity of 8 tonnes will be stored and handled within 60m of the facility boundary. Consequently, the proposal is not considered to be potentially hazardous.

Part 3 of the SEPP prescribes matters for consideration in determining an application for potentially hazardous or offensive development. This Part is not applicable to the proposal.

Provisions of any Draft Environmental Planning Instrument That Has Been Placed On Exhibition 4.15(1)(A)(Ii)

Draft Remediation of Land State Environmental Planning Policy

Draft Remediation of Land SEPP is applicable. The Draft SEPP requires in part that consideration be given to potential contamination on nearby or neighbouring properties and groundwater. Residential land and public open space adjoining the site is not identified or considered to be contaminated.

Draft Orange Local Environmental Plan 2011 (Amendment 24)

Draft Orange LEP Amendment 24 has recently completed public exhibition (26 July‑26 August 2019). The Draft plan involves various administrative amendments to the LEP, including updated maps and new and amended clauses. Amendment 24 has no effect for the proposed development.

DESIGNATED DEVELOPMENT

Pursuant to Part 1 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000, ‘aircraft facilities’ are designated development in the following circumstances:

Aircraft facilities (including terminals, buildings for the parking, servicing or maintenance of aircraft, installations or movement areas) for the landing, taking-off or parking of aeroplanes, seaplanes or helicopters:


 

(a)     in the case of seaplane or aeroplane facilities:

(i)      that cause a significant environmental impact or significantly increase the environmental impacts as a result of the number of flight movements (including taking-off or landing) or the maximum take-off weight of aircraft capable of using the facilities, and

(ii)     that are located so that the whole or part of a residential zone, a school or hospital is within the 20 ANEF contour map approved by the Civil Aviation Authority of Australia, or within 5 kilometres of the facilities if no ANEF contour map has been approved, or

(b)     in the case of helicopter facilities (other than facilities used exclusively for emergency aeromedical evacuation, retrieval or rescue):

(i)      that have an intended use of more than seven (7) helicopter flight movements per week (including taking-off or landing), and

(ii)     that are located within 1 kilometre of a dwelling not associated with the facilities, or

(c)     in any case, that are located:

(i)      so as to disturb more than 20 hectares of native vegetation by clearing, or

(ii)     within 40 metres of an environmentally sensitive area, or

(iii)    within 40 metres of a natural waterbody (if other than seaplane or helicopter facilities).

The proposed development is not designated development. Whilst the development is located within 1km of a dwelling house the proposal is limited to a maximum of seven (7) helicopters movements per week. For clarification, a helicopter movement comprise one up OR one down. The proposal does not involve native vegetation clearing, and the subject land is not located within 40m of an environmentally sensitive area or natural waterbody.

In order that the land use is not designated development, a condition of consent is included on the attached Notice of Approval that helicopter flight movements shall not exceed seven (7) movements per week without the further consent of Council.

INTEGRATED DEVELOPMENT

Pursuant to Clause 43 and Schedule 1 of the Protection of the Environment Operations Act 1997, an environmental protection licence is required for helicopter-related activities in the following circumstances:

20      Helicopter-related activities

(1)     This clause applies to a helicopter-related activity, meaning the landing, taking-off or parking of helicopters (including the use of terminals and the use of buildings for the parking, servicing or maintenance of helicopters), being an activity:

(a)     that has an intended use of more than 30 flight movements per week (where take-off and landing are separate flight movements), and

(b)     that is conducted within 1 kilometre of a dwelling not associated with the landing, taking-off or parking of helicopters,

but not including an activity that is carried out exclusively for the purposes of emergency aeromedical evacuation, retrieval or rescue.


 

The proposed development is not integrated development. The proposed helipad will not exceed the prescribed 30 flight movements per week. An environmental protection licence is not required.

Provisions of any Development Control Plan S4.15(1)(A)(Iii)

Development Control Plan 2004

DCP 2004-12 Rural Environment Protection Zone

Part 12.1 General Controls for the Water Supply Catchment Zone

DCP 2004-12.1 prescribes the following planning outcomes for General Controls in Water Supply Catchments:

·    Development proposal clearly demonstrate measures that are to be instituted to minimise impacts on the quality and availability of water resources for public water supply use.

Part 12.2 Water Quality Protection Area

DCP 2004-12.2 prescribes the following planning outcomes for Water Quality Protection Areas:

·    Effluent is treated outside the defined protection area.

·    Adjacent waterways, including native riparian vegetation zones, are protected and conserved.

·    Soil and water management measures are incorporated in the development.

As outlined above, the proposed helipad is unlikely to have adverse impact on the quality of groundwater or surface water entering the drinking water catchment. The potential water quality impacts associated with operation of the helipad will be consistent with those associated with operation of other farming machinery and equipment.

The fuel truck used for helicopter refuelling is subject to vehicle and operator licences issued by the Environment Protection Authority. Helicopter refuelling will be undertaken on the concrete landing pad and a spill kit will be kept onsite. Helicopter maintenance/servicing activities other than emergency maintenance will not be undertaken onsite. Conditions are included on the attached Notice of Approval to enforce these arrangements.

Provisions Prescribed by the Regulations S4.15(1)(A)(Iv)

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

Council’s EHBS advises:

‘The helipad is unlikely to generate any fire safety issues.’

 

Buildings to be Upgraded (clause 94)

Council’s EHBS advises:

‘The helipad is well separated from other buildings on the site and no upgrades should be needed.’

BASIX Commitments (clause 97A)

Not applicable.

The Likely Impacts of the Development S4.15(1)(B)

Noise Impacts

Council in determining this proposal is required to be satisfied that the noise impacts generated by the development are acceptable. The nearest affected dwelling is located approximately 230m (Receiver 1) from the proposed helipad. A Noise Impact Assessment was submitted in support of the proposal (Wilkinson Murray October 2018 Report No. 17258 Version B). The assessment concludes:

Based on the proposed number of operations and the type of aircraft to be used:

·    Noise will comply with the ANEF noise criterion proposed at all receivers.

·    Ground operations such as maintenance could result in exceedances of the Noise Policy for Industry 2017 by a small margin, but due to the infrequency of the events would cause negligible noise impact. Ground operations should occur during daytime only and in a located shielded from Receiver 1 where possible.

·    No vibration impacts due to the proposal are predicted.

·    Night time flights will not occur, so sleep disturbance need not be assessed.

·    If the proposed flight paths are not useable due to meteorological conditions, the helipad will not be used for landing or take off.

Council’s Acting Director Development Services concurs with the findings of the submitted Noise Impact Assessment. He advises:

‘I confirm that I have no objection to the proposal as detailed in the application. I am satisfied that the proposal will comply with relevant noise standards relating to such developments. Additionally, I am satisfied that the proposal considers matters that were raised in the recent Land and Environment Court Case (Nessdee Pty Ltd v OCC [2017] NSWLEC 158), albeit that the Nessdee development related to the development of a heliport, not the much smaller helipad as this development application relates.

I am satisfied that the operations proposed, including hours of operations, flight numbers, flight paths and alternative landing sites would ensure that the development does not adversely impact on the surrounding environment and neighbours.

I do not consider that there is a need to restrict the size of aircraft permissible at the site, as the SoEE and noise report details the aircraft considered and proposed. Moreover, the amended Wilkinson Murray Noise Assessment (17258 Version B) concludes that noise from the larger Bell 212 would still comply, although the application only proposes to store the Bell 212 outside the bushfire season (so is limited when it would be onsite – and would not be regularly used from the site).

I confirm that I propose no additional conditions for the development proposal, as the application proposes appropriate controls for the development.’


 

Based on the foregoing, it is considered that the proposed development will not have unreasonable acoustic impacts in the rural setting.

Visual Impacts

The proposed helipad will have negligible visual impacts in the rural setting. The landing pad will be imperceptible from adjoining properties, and the site frontages to Forest Road and Hiney Road. An existing rural shed will be utilised as an aircraft hangar. The subject land is located in proximity to Orange Airport, and aircraft are a recurring and accepted visual element in the skyscape.

Environmental Impacts

Impacts on the natural environment associated with the proposed helipad are considered to be within reasonable limit. The proposal does not involve vegetation clearing and the subject land is not affected by a waterbody. As outlined above, the potential impacts on the water catchment associated with operation of the helipad will be consistent with those associated with operation of other farming machinery and equipment in this rural setting. Conditions are included on the attached Notice of Approval to ensure helicopter refuelling activities will be managed to avoid adverse impacts on the water catchment.

Traffic Impacts

Traffic impacts associated with the proposed helipad will be neutral. The facility will not be open to the public, and traffic generation will be nil-negligible. Vehicular access to the subject land via Hiney Road will be maintained, albeit upgraded, as required by conditions on the attached Notice of Approval. Onsite vehicle arrangements for parking and manoeuvring associated with the proposed helipad and existing resource recovery facility will be managed by the common operator/proponent.

Impacts on Rural Character

The proposed helipad is a permitted use on the subject land. It is the position of Council staff that based on the operations proposed, including hours of operation, flight numbers and flight paths, alternative landing sites and compliance with noise guidelines, the proposed helipad will not adversely impact on the rural character and setting.

Impacts on Orange Airport

The proposed development was referred to Air Services Australia and the Civil Aviation Safety Authority (CASA) for consideration and comment. CASA requested an aeronautical assessment be prepared, in order to demonstrate the suitability of the helipad operations in the vicinity of Orange Airport.

The aeronautical assessment was prepared by Avipro (October 2019). The assessment concludes:

The siting of the helicopter landing site albeit under the extended centre line of an active runway in a common traffic advisory frequency environment should be easily managed with … standard procedures and broadcasts.


 

The helicopter landing site will be a low use location and the proponent will comply with the required standard procedures and broadcasts at all times, therefore minimising any situational awareness risk.

The proponent will also operate into / from the helicopter landing site by day only in a manner that avoids confliction with other traffic. As an experienced local operator, the proponent remains mindful of working with the aviation community and users of the Orange Airport.

Stakeholders were engaged during assessment and they support the operations of helicopters into/from the proposed helicopter landing site. They also expect appropriate application of the procedures and broadcasts necessary to maintain separation and removed the risk of confliction.

Given the above factors and the mitigation strategy attached at Appendix 2 … the risks to other aircraft are no different to the risks that exist with the conduct of operations into/from Orange Airport. The development of standard approach / departure paths into and from the proposed HLS will further reduce the risk of confliction.

CASA provided the following comments in relation to the aeronautical assessment:

CASA has reviewed the aeronautical assessment developed by Avipro … and I am advised that the identified risks and proposed mitigation to ensure an acceptable level of safety for aircraft in the vicinity of the helicopter landing site as presented in the report is appropriate. CASA also considers that the consultant’s level of consultation with industry was adequate.

Council staff are satisfied that the proposed development will not impact on the existing operation of Orange Airport. A condition is included on the attached notice of approval requiring operation of the proposed helipad consistent with the risk mitigation strategy contained in the Avipro aeronautical assessment at Appendix 2.

The Suitability of the Site S4.15(1)(C)

·    the proposal is permitted on the subject zoning

·    nominated flightpaths are clear of improvements on the subject and adjoining sites to the prescribed aircraft height limit

·    the site has direct frontage and access to Hiney Road

·    the land is suitable from a contamination perspective for the proposed land use

·    required utility services are available and adequate, subject to access upgrading

·    the site is not subject to natural hazards

·    the subject land has no particular biodiversity or habitat value

·    the site is not known to contain any Aboriginal, European or archaeological relics.

Any Submissions Made in Accordance with the Act S4.15(1)(D)

The proposed development comprises advertised development. The application was advertised for the prescribed period of 14 days and at the end of that period 16 submissions had been received. The issues raised in the submissions are outlined below.


 

Orange Airport is located nearby to the site and should be utilised as an alternative to the proposed helipad

Consideration of alternatives is not a matter for evaluation in the assessment of a development application pursuant to the EPAA 1979. It is noted that Orange Airport will provide an alternative landing site should weather conditions not permit use of the nominated flight paths. The proponent has operative development consent for an aircraft hangar at Orange Airport that will accommodate the helicopters proposed in this application.

Flightpaths for the proposed helipad will conflict with flightpaths for Orange Airport, with associated safety impacts

This matter was considered in the foregoing assessment. The submitted aeronautical assessment demonstrates that the proposed helipad will not compromise protected airspace associated with Orange Airport; will not compromise instrument or visual protected areas; and can safely operate subject to compliance with a risk mitigation strategy. A condition is included on the attached Notice of Approval requiring compliance with the mitigation strategy.

The proposed helipad will have adverse noise impacts in the rural setting; up to 25 dwellings will be impacted

As outlined in foregoing sections of this report, the submitted Noise Impact Assessment concludes that noise generated by the proposed helipad will comply with prescribed noise criteria for all nearby residential receivers. Council’s Acting Director Development Services concurred with the findings and recommendations of the Noise Impact Assessment.

Proposed flight numbers of seven (7) movements per week are likely to increase

Conditions are included on the attached Notice of Approval that the proposed helipad shall not exceed 7 flight movements per week. Any proposal to increase the number of flights above 7 movements will be subject to separate development consent of Council. The Designated Development provisions under the EPAA 1979 will apply in this circumstance, with associated rigorous environmental assessment and public exhibition.

The proposed helipad will result in devaluation of adjoining properties

The impact of a development on the value of adjoining properties is not a matter for evaluation in the assessment of a development application pursuant to the EPAA 1979.

The proponent is already landing the helicopter on the subject land without development consent being granted

Use of the subject land as a helipad prior to the granting of development consent is a breach of the EPAA 1979. Consistent with Council policy and practice, the proponent will be requested to provide details of the alleged breach. At the time of finalising this report a formal position on this issue has not been reached. Council staff will follow the procedures outlined in Council’s recently adopted Enforcement Policy in resolving this matter.


 

The proponent is failing to comply with conditions of development consent as they relate to the resource recovery facility (DA 421/2016(1))

The conditions relating to DA 421/2016(1) are not relevant in the assessment and determination of the subject application. Council officers will carry out a separate compliance review of DA 421/2016(1).

The nominated easterly flightpath will be directly overhead a future dwelling on the adjoining eastern parcel (Lot 137 DP 750387)

Development consent has been granted for a dwelling and shed on the adjoining land to the east, described as Lots 137 and 200 DP 750387 and Lot B DP 346260 (pursuant to DA 18/2012(1). The approved dwelling is located in the southern portion of the site (refer red star below) and removed from the easterly flightpath for the proposed helipad (see figure).

Figure 4 – location of approved dwelling house on the adjoining eastern parcel

The proposed hours of operation (7am to 10pm) are excessive and will adversely impact on residential amenity

The proposed hours of operation (7am to 10pm) comprise ‘daytime hours’ pursuant to the Noise Policy for Industry 2017, and are accepted and adopted operating hours for industrial and commercial land use. Council’s Acting Director of Development Services concurred that the hours are suitable. A condition is included on the attached Notice of Approval restricting helipad operating hours to 7am to 10pm which includes all warm up and warm down procedures.

Consent is sought for ‘occasional’ and emergency use of the Bell 212 helicopter outside of the proposed hours of operation. It is not possible to quantify ‘occasional use’ and indeed was not considered in the submitted Noise Impact Assessment. The applicant confirmed in the SEE accompanying the application that there would be no flights in the night time period after 10pm. The proposed hours of operation will apply, and be enforced by a condition of consent.


 

Helicopters in flight will impact on livestock and horse welfare

Council’s experience for other helipads and heliports in the city suggest that helicopters in flight do not harm animals. Furthermore, there is no literature or research available which demonstrates that the operation of a helicopter based on seven (7) movements per week would have an adverse impact on livestock enterprises.

Helicopters in flight may cause damage to adjoining intensive agriculture operations

There is no evidence to suggest that the operation of the helipad will impact on adjoining agricultural activities. Dust suppression as required by conditions in the attached Notice of Approval (see following sections of this report) will prevent air pollution and potential impacts on nearby agricultural operations.

The proposed helipad is inconsistent with the rural character and setting

The proposed helipad is a permitted use on the subject land. It is the position of Council staff that based on the operations proposed, including hours of operation, flight numbers and flight paths, alternative landing sites and compliance with noise guidelines, the proposed helipad will not adversely impact on the rural character and setting of the locality. In terms of visual character, the proposed helipad will have negligible impacts in the rural setting. The landing pad will be imperceptible from adjoining properties, and the site frontages to Forest Road and Hiney Road.

Where will the helicopters be stored to avoid breaching seven (7) movements per week?

This is an operational matter for the proponent. It is noted that Orange Airport will provide an alternative landing site if necessitated by restrictions on flight numbers or weather conditions. The proponent has operative development consent for an aircraft hangar at Orange Airport that will accommodate the helicopters proposed in this application.

The proposed helipad will generate nuisance dust, with associated air pollution and damage to surrounding vegetation

Potential dust nuisance associated with the helipad operations is acknowledged. In order to minimise dust impacts, a condition is included on the attached Notice of Approval requiring installation and maintenance of a lawn area adjacent to the Ground Effect Area (surrounding the helipad).

Lighting of helipad and helicopters will impact on localised fauna and neighbouring dwellings

A condition is included on the attached Notice of Approval requiring exterior lighting of the helipad and hangar comply with Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting.

Onsite fuel storage and filling could impact on the natural environment

As outlined in the foregoing sections of this report, the proposed arrangements for onsite fuel storage and refuelling of helicopters are considered suitable within the water catchment. The truck and operator are subject to various licences issued by the Environment Protection Authority.


 

A condition is included on the attached Notice of Approval requiring a spill kit to be located on the subject land and utilised in the event of a fuel spill. It is further required by conditions of consent that helicopter maintenance / servicing activities other than emergency repairs shall not be carried out on the subject land.

Firefighting equipment should be provided on the site

A condition is included on the attached Notice of Approval requiring details of fire safety measures for the proposed helipad (and existing hangar) be provided prior to issue of a Construction Certificate.

Existing site access via Hiney Road is unsuitable for traffic to be generated by the helipad

The proposed helipad is not accessible to the public and will not generate additional localised traffic. Notwithstanding, Council’s Development Engineer has included a condition on the attached Notice of Approval requiring upgrading of the existing site access to Hiney Road.

Helicopters in flight could generate a distraction for motorists

The subject land is located in proximity to Orange Airport, and aircraft are a recurring and accepted visual element in the skyscape. The proposed seven (7) additional flight movements per week are unlikely to exacerbate the existing situation relating to motorist distraction and traffic conflicts.

The proposed commercial use of the subject land is contrary to the rural zoning

Helipads are a permitted use in the E3 Environmental Management zone, subject to receiving development consent. The application is seeking consent.

The proposed hours of operation are unsatisfactory and lack definition

An assessment of hours of operation and the impacts in relation to noise have been considered in the foregoing assessment. A condition is included on the attached Notice of Approval restricting helipad operating hours to 7am to 10pm (inclusive of all warm up and warm down procedures).

The intersection of Forest Road and Hiney Road is dangerous and should be upgraded for additional traffic

The proposed helipad is not accessible to the public and will not generate additional localised traffic. Road upgrading in conjunction with the proposed development will not be required. Any request for road upgrading should be made via Council’s Technical Services Division.

Further details are requested on anticipated flight schedules

Flight schedules are a matter for the proponent and not required for evaluation of the development. As outlined in the foregoing sections of this report, conditions are included on the attached Notice of Approval in relation to operating hours and flight numbers.


 

How will flight numbers and paths be monitored and enforced?

Conditions are included on the attached Notice of Approval that helicopter flight movements shall not exceed seven (7) movements per week without the further consent of Council; additionally, flights shall be recorded/logged and details provided to Council upon request.

More details are requested in relation to flightpaths

Flightpaths are nominated in the application as outlined in foregoing sections of this report. Conditions are included on the attached Notice of Approval that helicopters shall utilise approved flight paths only; further, that if weather conditions do not permit, Orange Airport shall be utilised as an alternative landing site.

The proposal may threaten localised flora and fauna

Council’s Manager City Presentation advised that the proposal is unlikely to impact on localised flora and fauna. The subject land is cleared and currently developed for a resource recovery facility. The proposal will not require vegetation removal. The development site is not in proximity to a woodland vegetation community that would provide habitat for significant native fauna species. Bird life and native macropods (kangaroos and wallabies) will become accustomed to aircraft in flight, and will be less exposed to aircraft due to their crepuscular movements (ie. in the twilight hours between dawn and dusk).

Support is given to the proposed helipad; the operator complies with conditions for approved helipad at Lysterfield Road

Support for the proposed development- based on operation of the proponent’s helipad at 158 Lysterfield Road (DA 307/2009(2)) - is noted.

The approved resource recovery facility does not comply with conditions of development consent; same is anticipated for this development

Any future breach of conditions of development consent relating to the proposed helipad will be addressed via compliance and enforcement provisions contained in the EPAA 1979. Council’s Enforcement Policy will apply to any breaches.

The Touch Down and Lift Off Area (TLOF) and Final Approach and Take Off Area (FATO) should be designed to accommodate the largest aircraft (Bell 212) to use the helipad

The helipad will be designed to accommodate use by the nominated aircraft, consistent with the flight manuals. Helicopter approach and departure paths are nominated for the westerly and easterly directions, as shown below (refer Figure 3). The flightpaths provide an obstacle free gradient from Final Approach and Take Off area (FATO) to the prescribed 500 feet (including dwellings on adjoining parcels). In the event that weather conditions do not permit use of the nominated flightpaths, Orange Airport will provide an alternative landing site. The pilot for the aircraft will be responsible for the safe operation of the facility.


 

The submitted noise report should consider noise impacts associated with the largest aircraft (Bell 212) to use the helipad

A revised Noise Impact Assessment was submitted following receipt of this submission (Wilkinson Murray October 2018 Report No. 17258 Version B), and considers noise impacts for both helicopters (Bell 206 and Bell 212). The Noise Assessment concludes the proposed helipad will comply with prescribed noise criteria for all nearby residential receivers. Council’s Acting Director of Development Services concurred with the findings and recommendations of the Noise Impact Assessment.

The proposed helipad should comply with aviation regulations relating to compliance with aircraft flight manuals

The operation of the helicopter will be the responsibility of the pilot. A condition is included on the attached Notice of Approval requiring use of the helipad in a manner consistent with the flight manuals for the specified aircraft. In the event that weather conditions do not permit use of the nominated flightpaths, Orange Airport will provide an alternative landing site.

A number of submissions expressed concern regarding the safety implications associated with the operation of the helipad. The safe operation of a heliport in Class G air space (uncontrolled) is typically governed by the requirements of CAAP 92-2(2), which sets out guidelines that may be used to determine the suitability of the place for the landing and taking-off of helicopters when the place does not meet the Standards and Recommended Practices (SARPs) for Helicopters.

However, in some circumstances, Government agencies and authorities may require that additional measures be implemented to ensure the safe operation of a facility, such as CASA’s requirement that the proposed heliport be designed in accordance with International Civil Aviation Organisation (ICAO) Annex 14 and the ICAO Heliport Manual.

A copy of the development application has been provided to all relevant emergency service providers for comment. While it is accepted that there is an inherent level of risk associated with the operation of the any heliport, it is considered that those risks would be most appropriately mitigated by the operator of the facility and safe operation of helicopter pilots.

Clarification is required on the number of flight movements in order to determine whether the proposal comprises designated development

Conditions are included on the attached Notice of Approval that helicopter flight movements shall not exceed seven (7) movements per week without the further consent of Council; additionally, flights shall be recorded/logged and details provided to Council on request. Subject to compliance with conditions, the proposed helipad does not comprise designated development.

A condition of development consent relating to aircraft weight limit (as was imposed for Nessdee Pty Ltd v OCC [2017] NSWLEC 158) may preclude use of the helipad by the Bell 212

The proposal involves use of the proposed helipad by a Bell 206 and Bell 212 helicopter. As outlined in the foregoing sections of this report, the amended noise assessment considered the noise impacts associated with both aircraft.


 

Council’s Acting Director Development Services concurs with the findings of the submitted Noise Impact Assessment. A condition of consent is included on the attached Notice of Approval restricting use of the proposed helipad to the Bell 206 and the Bell 212 helicopters only.

It is noted that the requirement for a weight limit was specified in the Nessdee case because that facility had the potential for un-tested (in terms of noise) types of helicopter aircraft landing and taking off from the site. The expert witness in the court case for that development suitably demonstrated that the acoustic analysis allowed for a single engine helicopter with a maximum take-off weight of 3000kg to be acceptable. This avoided the need to specifically nominate the various models of helicopters that could operate from the site.

Helipad use should not involve public access

By definition, helipads are not open to the public. A condition is included on the attached Notice of Approval to this effect.

PUBLIC INTEREST s4.15(1)(e)

The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines etc that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposal is not contrary to the planning provisions that apply to the subject land and particular land use. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. Subject to compliance with conditions of consent on the attached Notice of Approval, it is considered that the potential impacts of the proposed helipad can be appropriately managed, and are unlikely to have a significant impact on the surrounding environment.

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, D19/64433

2          Plans, D19/6673

3          Submissions, D19/6670

 


Planning and Development Committee                                                      7 November 2019

Attachment 1      Notice of Approval

 

ORANGE CITY COUNCIL

 

Development Application No DA 232/2018(1)

 

NA19/                                                                    Container PR20260

 

 

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

 

Development Application

 

  Applicant Name:

Mr DM and Mrs JM Brus

  Applicant Address:

158 Lysterfield Road

ORANGE  NSW  2800

  Owner’s Name:

Mr DM and Mrs JM Brus

  Land to Be Developed:

Lot 2 DP 1069705 - 1083 Forest Road, Spring Creek

  Proposed Development:

Helipad

 

 

Building Code of Australia

 building classification:

 

Class to be determined by the PC

 

 

Determination made under

  Section 4.16

 

  Made On:

7 November 2019

  Determination:

CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

 

 

Consent to Operate From:

8 November 2019

Consent to Lapse On:

8 November 2019

 

Terms of Approval

 

The reasons for the imposition of conditions are:

(1)      To maintain neighbourhood amenity and character.

(2)      To ensure compliance with relevant statutory requirements.

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

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

 

 

 

 

Conditions

 

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

 

(a)      Drawings by Saunders and Staniforth Ref. 1083 Forest – Figures 2, 3 and 4 dated 26.07.2018 (3 sheets)

 

(b)      statements of environmental effects or other similar associated documents that form part of the approval including the Acoustic Report prepared by Wilkinson Murray Report No 17358 Version B October 2018; and Aeronautical Assessment prepared by Avipro V1.2.

 

as amended in accordance with any conditions of this consent.


 

PRESCRIBED CONDITIONS

 

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

 

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

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

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

(c)      stating that unauthorised entry to the site is prohibited.

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

 

 

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

 

(4)      The existing vehicle entrance providing access from Hiney Road shall be upgraded to a bitumen sealed standard with minimum 200mm thick gravel incorporating a pipe culvert.

The pipe culvert is to consist of minimum 375mm diameter stormwater pipes and 2 concrete headwalls. Where it is not possible to construct a pipe culvert, due to shallow depth of table drain or the entrance being located on a crest, a 2 metre wide by 100mm deep concrete dish drain may replace the pipe culvert.

The entrance is to be constructed in accordance with the RTA Guidelines for Intersections at Grade Figure 4.9.7 Rural Property Access with Indented Access and designed to accommodate a 19m semi-trailer. The construction is to be as per the requirements of the Orange City Council Development and Subdivision Code.

Engineering plans, showing details of the vehicle access and traffic management works, are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) upon application for a Construction Certificate.

 

(5)      A Road Opening Permit in accordance with Section 138 of the Roads Act 1993 must be approved by Council prior to a Construction Certificate being issued or any intrusive works being carried out within the public road or footpath reserve. 

 

(6)      Details of fire safety measures (including equipment for firefighting) for the proposed helipad and existing hangar) shall be provided prior to issue of a Construction Certificate.

 

(7)      A written statement demonstrating how the proposed helipad achieves the requirements of Civil Aviation Advisory Publication (CAAP) 92-2(2) Guidelines for the Establishment and Operation of Onshore Helicopter Landing Sites must be submitted to, and approved by, Council’s Manager Development Assessments prior to the issue of a Construction Certificate. The helipad shall be designed to satisfy this criteria.

 

 

PRIOR TO WORKS COMMENCING

 

(8)      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.

 

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

 


 

DURING CONSTRUCTION/SITEWORKS

 

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

 

(11)    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.

 

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

 

 

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

 

(13)    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.

 

(14)    A Road Opening Permit Certificate of Compliance is to be issued for the works by Council prior to any Occupation/Final Certificate being issued for the development.

 

(15)    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.

 

(16)    Approved fire safety measures (including equipment for firefighting) shall be installed prior to issue of an Occupation Certificate.

 

(17)    In order to minimise the impact of nuisance dust a lawn area shall be established and maintained adjacent to the Ground Effect Area of the helipad.

 

(18)    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

 

(19)    The helipad shall not be open to the public. Private helicopter charters shall not take off or land on the subject land.

 

(20)    Operation of the helipad shall comply with the Risk Mitigation Strategies contained in Appendix 2 of “Aeronautical assessment on the suitability of operations into/from a private helicopter landing site 3MN NW of Orange Airport- V1.2” (Avipro October 2019).

 

(21)    Helicopter flight movements shall not exceed a maximum seven (7) movements per week (counted from Sunday to Saturday). Aircraft movements are calculated as a take-off or a landing (ie 2 movements per return trip). Flights shall be recorded / logged and details provided to Council’s Manager Development Assessment upon request.

 

(22)    No aircraft shall be permitted to land or take off except between the hours of 7am to 10pm (inclusive of all warm up and warm down procedures).


 

(23)    Use of the helipad shall be limited to a Bell 206 Jet Ranger helicopter and a Bell 212 specialist firefighting helicopter.

 

(24)    There shall be no servicing or maintenance of the helicopters onsite other than emergency repairs.

 

(25)    All helicopter movements to and from the subject site shall be limited to the approach and departure flight paths shown on the approved plans.  If weather conditions do not permit use of the approved flight paths having regard to any relevant flight manuals that apply, an alternative and approved landing site (eg. Orange Airport) shall be utilised.

 

(26)    Mobile refuelling of helicopters shall be in accordance with requirements of and licences issued by the NSW Environmental Protection Authority.

 

(27)    A fuel spill kit shall be provided onsite at all times, and utilised in the event of fuel spill.

 

(28)    A lawn area shall be maintained adjacent to the Ground Effect Area of the helipad to minimise dust nuisance.

 

(29)    Exterior lighting of the helipad and hangar shall comply with Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting.

 

(30)    Operation of the helipad shall accord with the relevant provisions of the Civil Aviation Act 1988, Civil Aviation Safety Regulations 1998 and Civil Aviation Regulations 1988.

 

 

 

 

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:

 

8 November 2019

 


Planning and Development Committee                                                                      7 November 2019

Attachment 2      Plans

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Planning and Development Committee                                                                     7 November 2019

Attachment 3      Submissions

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Planning and Development Committee                                            7 November 2019

2.5     Development Application DA71/2019(1) - 118 Bloomfield Road

RECORD NUMBER:       2019/2296

AUTHOR:                       Andrew Crump, Senior Planner    

 

 

EXECUTIVE Summary

Application lodged

15 March 2019

Applicant/s

Orange Cycle & Triathlon Club

Owner/s

Orange City Council

Land description

Lots 50 and 58 DP 750401, Lots 3 and 4 DP 216843, - 118 Bloomfield Road and 2 Bloomfield Road, Orange

Proposed land use

Recreation Area (Gosling Creek Cycle Path)

Value of proposed development

$400,000.00

Council's consent is sought to increase the width of part of the existing pathway network on the north side of the Gosling Creek Reserve. The subject section of pathway is currently approximately 3m wide; it is proposed to widen the path to not more than 6m. The section of pathway to be widened is shown in the below figure.

Figure 1 – location of track widening shown heavy black outline

(extract from draft Plan of Management)

The primary purpose of the track widening is to facilitate triathlon events, criterium racing and HPV (human powered vehicle) races/events.


 

The path widening will require clearing of native vegetation to facilitate the increased width.

In addition, the proposal seeks consent to construct a 1.2m wide gravel footpath that will provide an access track when activities are being undertaken that would restrict the accessibility to the normal track (refer below).

Figure 2 - location of additional gravel bypass pathway

In addition to the physical works required to widen the track, the works will also require the removal/relocation of existing infrastructure such as signage, bins, park run markers, fencing etc.

Principally there are two critical aspects of the assessment of this application; namely the impact upon biodiversity as a result of the track widening and secondly; the externalities upon the existing passive recreation area as a direct consequence of providing a pathway suitable for triathlon, track cycling/criterium events. These matters are discussed in detail in the body of the report.

In summary, firstly, the impact upon terrestrial biodiversity as a direct result of the proposed track widening is considered acceptable. Secondly, in order for this development to achieve minimum public safety standards, careful consideration needs to be given to how the public recreation space will be managed outside of sanctioned/organised events to prevent conflict between passive recreation users (current users) and groups of cyclists/HPV’s using the purpose built track at high speed.

Upon implementation of the recommendations detailed below in relation to addressing the potential conflict between user groups, the application is considered satisfactory and 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.

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 proposal relates to development of an enlarged cycle path around the Gosling Creek Reserve.  The project recently was successful in receiving significant State Government Funding.  Delays have occurred with this application due to complexities of the new Biodiversity Legislation and the need for the applicant to confirm compliance of the proposal through a biodiversity assessment, which was eventually achieved.  This is an interesting application and shows that community space evolves over time.  It is considered that the proposal will achieve a reasonable balance and provide great opportunities for the community into the future of both passive and active recreation.

After further discussion with the applicant, I accept that the inclusion of gates and sign posts can be problematic for riders and may well result in significant safety issues.  I recommend that consideration be given to alter draft Condition (4) that requires the gates across the path to slow riders.  The alteration suggestion would be to provide an additional option of compliance for extensive line marking around high pedestrian areas of the track to warn both riders and pedestrians of hazards in lieu of the installation of hard physical barriers.  This condition could be to the satisfaction of the Director of Development Services.

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 71/2019(1) for Recreation Area (Gosling Creek Cycle Path) at Lots 50 and 58 DP 750401, and Lots 3 and 4 DP 216843 - 118 Bloomfield Road and 2 Bloomfield Road, 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 LAND

Gosling Creek Reserve is an identified nature reserve, located to the south of Orange, on the urban fringe of the town. The site was originally set aside to protect Orange’s town water supply following the damning of Gosling Creek in 1890, however, the reserve is no longer used as town water supply.

The various lots that make up the reserve are a combination of Crown and Community land, which is managed by Orange City Council. As such, a Plan of Management has been prepared to guide the management of the reserve. The reserve itself supports a range of recreational activities, including both formal and informal sporting events and is home to various native flora and fauna species.

Gosling Creek is known as Lots 3 and 4 DP 216843 and Lot 58 DP 750401.

It should be noted that the Application Form includes an additional lot, Lot 50 DP 750401. This lot relates to Bloomfield Reserve. Throughout the course of the assessment of this proposal, the applicant was asked to amend the application to relate only to Lot 58 DP 750401 as this is the lot that the proposed works will be carried out on. However, the application was not amended in line with this request.


 

THE APPLICATION/PROPOSAL

The proposal involves the following:

·    widening a section of the existing (approximately) 3m wide walking /cycle track for a total length of 1200m to a maximum width of 6m

·    the removal of trees and shrubs

·    installation of 4% crossfall at various locations to facilitate drainage and provide suitable camber for cyclists and other users

·    installation of under-path drainage to permit transfer of stormwater without adverse impact on the path or users

·    relocation and removal of the existing path in the vicinity of existing mature trees to prevent ongoing damage to root systems and adverse impacts on those trees

·    relocation of the existing north-eastern access to the Reserve, including signage and rubbish bins, to remove safety risks for cyclists and other users

·    relocation of existing infrastructure, including fencing, rubbish bins, signage and Park Run markers

·    the construction of an approximately 1.2m wide gravel path to provide alternative access/bypass linking path when the widened cycle path is in use.

The SEE outlines that the widened path could accommodate triathlon events, cycle training and coaching, criterium racing, junior racing or similar, Human Powered Vehicles events, training and racing, and other community events.

MATTERS FOR CONSIDERATION

CROWN LAND MANAGEMENT ACT 2016

The subject land is a Crown Reserve within the Brandy Corner Reserve Trust (Reserve No. 1000246). Council is the Crown Land Manager. Pursuant to Section 3.21 of the Crown Land Management Act 2016, Council is authorised to classify and manage the Crown Reserve as if it were public land within the meaning of the Local Government Act. This is different to the previous requirements under the previous Act (Crown Lands Act 1989 - repealed) which gave Council the discretion to either prepare or not prepare a PoM for Council Managed Crown Land.

Accordingly, under the Local Government Act, Council is obligated to have in place a plan of management (PoM) for the reserve. PoM’s are a strategic tool that provide strategic planning and governance for the management and use of community land.

The current Plan of Management (PoM) for the land was prepared in August 2017 (original PoM was prepared in 1996). The PoM identifies the reserve as being a highly valued recreation area originally set aside to protect the water quality of the drinking supply in Orange following the damming of Gosling Creek. PoM goes on to state that the reserve and its surrounds of remanent woodland remains a habitat for native wildlife and is also valued as a place for passive recreation and a refuge from the urban development of Orange and the Bloomfield Hospital complex to the north.

The PoM was recently updated to include provision for the proposed track widening. The amended PoM is silent on the management of the subject track in terms of user safety. Accordingly, this is considered in detail below.

The draft PoM has been adopted by Council, however, given the change from the established passive recreation use to more active recreation use, given the purpose of the track widening, the PoM needs to be ratified by the relevant minister. This has not occurred at this point.

The Minister’s office has been provided with a copy of the Council adopted PoM and it is expected that the Minister will endorse the plan in the near future.

 

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

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 (BC Act) and Part 7A of the Fisheries Management Act 1994 have effect in connection with terrestrial and aquatic environments.

There are four triggers known to insert a development into the Biodiversity Offset Scheme (ie the need for a BDAR to be submitted with a DA):

·    Trigger 1: development occurs on land mapped on the Biodiversity Values Map (OEH) (clause 7.1 of BC Regulation 2017);

·    Trigger 2: development involves clearing/disturbance of native vegetation above a certain area threshold (clauses 7.1 and 7.2 of BC Regulation 2017); or

·    Trigger 3: development is otherwise likely to significantly affect threatened species (clauses 7.2 and 7.3 of BC Act 2016).

The fourth trigger (development proposed to occur in an Area of Outstanding Biodiversity Value (clause 7.2 of BC Act 2016) is generally not applicable to the Orange LGA, as no such areas are known to occur in the LGA. No further comments will be made against the fourth trigger.


 

 

Trigger 1The subject land is not identified on the biodiversity values map. Refer below.

Figure 3 - except from OEH Biodiversity Values Mapping


 

Trigger 2

In relation to the second trigger, the subject land does not comprise a minimum lot size. Accordingly, the area of clearing must not exceed the allowable amount corresponding with the actual lot size unless a BDAR is prepared. In this case the subject lot is less than 40 hectares and more than 1 hectare, therefore no more than 0.5 hectares can be cleared before a BDAR is required. The applicant submits the area of clearing for the development including construction impacts equates to 0.98 hectares and as such a BDAR is triggered.

A BDAR or Biodiversity Development Assessment Report is a relatively new assessment tool that was created through the Government’s recent overhaul of biodiversity legislation and the way in which biodiversity is managed through the development assessment process.

A BDAR is required to be prepared in accordance with the legislated Biodiversity Assessment Method and the reports are required to be prepared by an accredited assessor that has been endorsed by the NSW Office of Environment and Heritage.

The BDAR comprises primarily two parts (NB there is a third section of a BDAR but only if the off-set thresholds are triggered which is not the case for this report); part 1 assesses the biodiversity values of the land, and part 2 comprises an assessment of the impacts resultant from the development on the established biodiversity values (part 1).

The purpose of the Biodiversity Assessment Method is to provide for a repeatable and transparent assessment of terrestrial biodiversity values on land in order to:

(a)     identify the biodiversity values on land subject to proposed development, clearing, or land in a biodiversity certification assessment area, or land proposed as a biodiversity stewardship site

(b)     determine the impacts of proposed development, or clearing or biodiversity certification on biodiversity values

(c)      quantify and describe the biodiversity credits required to offset the residual impacts of proposed development or clearing or conferral of biodiversity certification on biodiversity values

(d)     quantify and describe the biodiversity credits that can be created at a biodiversity stewardship site from the improvement in biodiversity values from management actions undertaken at the site

The applicant has provided a summary of the methodology used in the BDAR as follows:

The BAM calculates the number of ecosystem credits and species credits for assessment and the corresponding biodiversity offset requirement for the Proposal. The assessment included an initial desktop study and field surveys. The desktop study involved searches of online databases and review of various other information sources to identify the likely biodiversity values, vegetation types, threatened species and threatened ecological communities that may occur within the Reserve. An initial (non-BAM) field inspection was undertaken on 6 December 2018, with a subsequent BAM-compliant survey undertaken on 29 June 2019.

The June 2019 field assessment included establishment of two BAM-compliant plots. The


 

BAM required one plot only. In addition, incidental observations and data collected during the December 2018 and June 2019 field surveys were used to inform the assessment. AREA (2019) state that the assessment methodology is consistent with that identified in Chapters 5 and 6 of the BAM, Guidelines for Threatened Biodiversity Survey and Assessment (DEC, 2004) and NSW Guide to Surveying for Threatened Plants (OEH, 2016).

The BDAR classed the vegetation as Plant Community Type (PCT) 1101 – Ribbon Gum – Snow Gum grassy open forest on flats and undulating hills of the eastern tablelands, South Eastern Highlands Bioregions. The BDAR describes PCT 1101 as:

·    Open eucalypt forest with sparse shrubs and dense grassy groundcover.

·    Occurs on flat to gently undulating terrain from 600m AHD to 1 150m AHD.

·    Occurs largely on granite or acid volcanic soils.

·    Upper stratum species typically include Ribbon Gum, Snow Gum, Narrow-leaved Peppermint and Black Sallee.

·    Mid stratum species typically include Silver Wattle.

The submitted material states that the vegetation within the Reserve does not provide a specific link between areas of vulnerable habitat.

The BDAR identified the following threatened Flora Species that are recorded by the OEH threatened specifies Database within 10km of the Reserve:

·    Silky Swainson-pea.

·    Black Gum.

·    Silver-Leaf Candlebark.

The BDAR identified the following threatened Fauna Species that are recorded by the OEH threatened species database within 10km if the reserve. In addition to the below list, based on the observations and experience of the assessor, the BDAR also included the Squirrel Glider:

·    Blue-billed Duck.

·    Dusky Woodswallow.

·    Eastern Bentwing-bat.

·    Freckled Duck.

·    Fork-tailed Swift.

·    Little Eagle.

·    Latham's Snipe.

·    Little Lorikeet.

·    Superb Parrot.

·    Rainbow Bee-eater.

·    Speckled Warbler.

·    Pied Honeyeater.


 

·    Varied Sittella.

·    Scarlet Robin.

·    Flame Robin.

·    Diamond Firetail.

·    Yellow-bellied Glider.

·    Greater Glider.

·    Squirrel Glider

·    Grey-headed Flying-fox.

·    Yellow-bellied Sheathtail-bat.

The submitted material provided the following summary of the Vegetation Communities as part of the field assessment:

AREA (2019) completed two BAM-compliant plots. The location of these plots are shown in

Figure 11, with outer plot size modified from the standard 20m x 50m to 3m x 133m to reflect the elongate nature of the Proposed development. The data collected during the assessment of each plot is presented in Appendix 1 of AREA (2019). In summary, AREA (2019) determined that all vegetation within the proposed areas of disturbance may be classified as PCT1101. The community is described as a mix of native and non-native ground cover with a cover of more than 90% exotic ground cover species. There are also groups of planted native trees and shrubs including Eucalyptus, Acacia, Banksia species.

AREA (2019) determined that the vegetation that would be disturbed by the Proposal has a Vegetation Integrity Score of 4.2. As discussed in Section 6.2.6, the threshold for biodiversity offsetting within an Endangered Ecological Community is a Vegetation Integrity Score of 15.

The submitted material provides a summary of the Threatened Species identified as part of field assessment:

AREA (2019) states that BAM assessment tool identified 15 threatened species known to use the area within and surrounding the Reserve. No surveys were required to confirm presence of these species.

The following ecosystem credit species were identified by the BAM assessment tool as requiring assessment. None were excluded from this assessment.

·    Regent Honeyeater (Foraging).

·    Hooded Robin (south-eastern form).

·    Gang-gang Cockatoo (Foraging).

·    Eastern Bentwing-bat (Foraging).

·    Speckled Warbler.

·    Varied Sittella.

·    Spotted-tailed Quoll.

·    Little Lorikeet.

·    Little Eagle (Foraging).


 

·    Square-tailed Kite (Foraging).

·    Barking Owl (Foraging).

·    Scarlet Robin.

·    Flame Robin.

·    Koala (Foraging).

·    Diamond Firetail.

In addition, the BAM assessment tool identified 16 candidate species credits species with potential to use the proposed areas of disturbance, with an additional species, the Squirrel Glider, added to this list based on the experience of Mr Cameron. A number of species were excluded because they were either were not present, were unlikely to present or do not have suitable habitat present. The following species were assessed.

·    Regent Honeyeater (Breeding).

·    Gang-gang Cockatoo (Breeding).

·    Square-tailed Kite (Breeding).

·    Eastern Bentwing-bat (Breeding).

·    Squirrel Glider.

·    Koala (Breeding).

·    Black Gum.

·    Little Eagle (Breeding).

Justification for exclusion of species from further assessment is provided by AREA (2019).

However, that report states that Black Gum is not present within the areas to be disturbed and that the areas to be disturbed do not include breeding habitat for any of the other species identified. Targeted searches for listed species did not identify any as present, with the exception of Squirrel Glider for which suspected feeding scars on trees adjacent to the proposed widened path were observed.

The BDAR provides an assessment of impact type, frequency, intensity, duration and consequence of impact. The BDAR concludes that no Serious and irreversible Impacts will occur as a result of the development. Pursuant to Clause 6.7 of the Biodiversity Conservation Regulations Council can be satisfied that the development is unlikely to contribute significantly to the risk of the identified threatened species and EEC becoming extinct.


 

A summary table is provided within the BDAR.

Figure 4 - summary of impacts tabled in the BDAR


 

The BDAR provides a section on mitigate measures and a table of recommended conditions, which is provided below:

Figure 5 - table of recommended conditions

The above recommended conditions from the BDAR report have been included in the attached notice of approval.

Finally, the BDAR considers the need for offsetting. Based on the Vegetation Integrity Score arrived at under Stages 1 and 2 of the BDAR and the calculations within Biodiversity Assessment Method Credit Calculator; the development does not require any offsets to be provided as Ecosystem Credits or as Species Credits.

Upon receiving the BDAR, Council staff requested OEH assist with the preliminary review of the BDAR. OEH requested that certain matters be further addressed. The matters raised by OEh primarily related to administrative type matter which were addressed/clarified by the applicant. In addition, Council staff critically analysed the findings and recommendations made in the BDAR and subsequently requested further clarification or further consideration of certain matters. A summary of this dialogue is provided below:

Comment from Orange Council – Summary of points raised

Response from AREA

The Gosling Creek Reserve Plan of Management (PoM) is specific about ‘high conservation value’ of the area between existing northern most bitumen pathway and Bloomfield Road, noting it is floristically diverse.

The PoM provides a map of the areas of ‘high conservation value’ in Gosling Creek Reserve (See figure below). Our response separates the areas mapped as ‘high conservation value’ from other areas and public spaces in the reserve.

·      The proposal does not include clearing in ‘high conservation value’ areas. The clearing only occurs on the reservoir side of the fence that bounds this mapped area of ‘high conservation value’.

·      The proposal does include relocation of the fence which will not result in the removal of native vegetation.

·      Biodiversity values in the ‘high conservation value’ areas will not be impacted.

·      The proposal will not prevent revegetation and restoration activities from occurring in the ‘high conservation value’ areas or elsewhere in the reserve.

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Adequacy of floristic survey

Presence of other species (shrubs) in the impact footprint

We recognise ‘adequacy’ depends the perspective i.e. Councils City presentation department’s use of the word had a different measure than when used in our trade. As the proposal is seeking a planning approval, for the purposes of this response ‘adequacy’ relates to the requirement of impact assessments under the Biodiversity Conservation Act 2016.

The Biodiversity Assessment Method (2017) (BAM) has been applied to assess the vegetation in the development site

·      Vegetation plots have been used to the required density as per BAM.

·      Vegetation plots have been used in areas occupied by trees and shrubs as well as in areas where there are no trees or shrubs

·      Floristic assessment of surrounding vegetation, or to record every species in the development site is not required by the BAM. The designated number of plots are designed to capture enough data to be representative of the vegetation in the development site.

·      Ground cover in the development site is mostly already managed for recreation and mown regularly.

The BAM has been followed; therefore, the floristic assessment has been adequate for this proposal. Should Council have an issue with the BAM please contact the NSW DPIE to express your concerns.


 

 

Comment from Orange Council – Summary of points raised

Response from AREA

Reference to 1500 metre area of known Plant Community Types

This method is consistent with the Biodiversity Assessment Method (2017) (BAM)

·      The BAM requires reference to a 1500m meter buffer around the development site.

·      The vegetation map used to consider this is issued by the NSW Government.

Application of the ‘avoid’ principle

The proponent has avoided and minimised impact to native vegetation by

·     largely positioning the proposal over the footprint of the existing path. This equates to reducing the impact to native vegetation by approximately 28%.

·     positioning the proposal in an area where the vegetation integrity score is below the threshold which would require offsetting in under the Biodiversity Offsetting Scheme (avoiding areas mapped as high conservation value and other areas which may have a higher vegetation integrity score).

Identification of the plant community according to Bower 2012.

Bower (2012) appears to be considering the plant community separately from the existing Plant Community Type identification framework:

·      The BAM assessor is required to allocate a Plant Community Type (PCT) described by the NSW government which best describes the vegetation at the development site based on the official and current descriptions and definitions of the PCTs. These can be accessed through the BioNet Vegetation Classification website. 

·      Other descriptions of plant community strictly cannot be used.

·      The process to determine the PCT is described in the BDAR.

Bower 2012 suggests the community at the site would warrant listing under the NSW BC Act

The BDAR describes the plant community type as representative of an Endangered Ecological Community under the BC Act:

·      Tablelands Snow Gum, Black Sallee, Candlebark and Ribbon Gum Grassy Woodland in the South Eastern Highlands, Sydney Basin, South East Corner and NSW South Western Slopes Bioregions (Part) wholly subset of;

·      Tableland Basalt Forest in the Sydney Basin and South Eastern Highlands Bioregions (Part) likely relates;

This classification

·      is consistent with the Gosling Creek Reserve PoM.

·      is captured in the BAM Calculator

This is the process in the Biodiversity Assessment Method for recognising the values associated with an Endangered Ecological Community and it has been applied to Gosling Creek Reserve.

Comment from Orange Council – Summary of points raised

Response from AREA

Barrier created by a six metre pathway

The assessors do not consider a six metre wide pathway would pose an insurmountable barrier to woodland species.

Presence of two specimens of Banksia marginata

Banksia marginata is not a threatened species nor does it have a preliminary listing, an individual or endangered population listing described in the schedules of the Biodiversity Conservation Act 2016 and therefore is not considered separately from the plant community under the Biodiversity Assessment Method. Presence of plants such as this are captured within the ecosystem credit calculation.

Offsets

Offset to impact to the vegetation and associated ecosystem credit species is not required under the Biodiversity Offsetting Scheme as the vegetation integrity score is less than 15.

Offset is not required for species credit species for reasons discussed in the BDAR. In the case of Squirrel Glider (see comment below) offsetting was not triggered.

The BDAR doesn’t address the occurrence of the Squirrel Glider; which is known to occur from survey work undertaken within the precinct.

The BDAR does acknowledge and address the occurrence of Squirrel Glider:

·      The Biodiversity Assessment Method Calculator did not automatically include Squirrel Glider as a candidate species credit species. AREA manually added the Squirrel Glider into the Biodiversity Assessment Method Calculator. 

·      By doing this, a known local occurrence of this species was considered under the Biodiversity Offset Strategy

·      Given the small area of impact to Squirrel Glider habitat, the BAMC determined no offsetting is required for this species.

·      This has been completed in accordance with the NSW Biodiversity Offset Scheme.

Figure 6 – applicant’s response to Council request for clarifying matters in relation the BDAR

Council staff are satisfied that the submitted BDAR has been prepared in accordance with the BAM and the likely impacts upon threatened species, endangered ecological communities and the habitats of threated species is within acceptable levels.

Trigger 3

With regard to the third trigger, the test for determining whether proposed development is otherwise likely to significantly affect threatened species is listed in the BC Act 2016, under s7.3:


 

(a)     in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b)     in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity:

(i)      is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii)     is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(c)     in relation to the habitat of a threatened species or ecological community:

(i)      the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and

(ii)     whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and

(iii)    the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,

(d)     whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),

(e)     whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.

In relation to the third trigger, when the application was first lodged Council staff raised concerns regarding the developments potential to significantly impact upon threatened species and accordingly Council staff requested that a Biodiversity Development Assessment Report (BDAR) be prepared in the support of the application.

A BDAR was subsequently prepared for the development and the veracity of the BDAR is addressed above. Based on the foregoing assessment provided by the BDAR, the development is not considered to significantly affect threatened species.

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 development is not inconsistent with the aims of the plan 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 1.7 - Mapping

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

Land Zoning Map:

Land zoned RE1 Public Recreation

Lot Size Map:

No Minimum Lot Size

Heritage Map:

Heritage item (dam wall)

Height of Buildings Map:

No building height limit

Floor Space Ratio Map:

No floor space limit

Terrestrial Biodiversity Map:

High biodiversity sensitivity on the site

Groundwater Vulnerability Map:

Groundwater 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 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 RE1 Public Recreation zone. The proposed development is characterised as a Recreation Area under OLEP 2011 which means:

a place used for outdoor recreation that is normally open to the public, and includes:

(a)     a children’s playground, or

(b)     an area used for community sporting activities, or

(c)     a public park, reserve or garden or the like,

and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor).

A recreation area is permissible with consent in the RE1 – Public Recreation 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 RE 1 Public Recreation are as follows:

1 - Objectives of the RE1 Public Recreation Zone

·    To enable land to be used for public open space or recreational purposes.

·    To provide a range of recreational settings and activities and compatible land uses.

·    To protect and enhance the natural environment for recreational purposes.

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

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


 

The proposed development is not fundamentally inconsistent with the objects of the RE1 Public Recreation zone. The proposed pathway widening will provide opportunity for a wider range of recreational uses, uses that commensurate with draft PoM such as triathlons, criterium racing and human powered vehicles; and relevantly, the management of possible conflicts between the user groups of the upgraded pathway system has been detailed in the body of the report.

Additionally, the assessment that has been undertaken has had a central focus on the natural environmental aspects of the reserve to ensure the terrestrial biodiversity is protected in line with the Biodiversity Conservation Act.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work. Given the heritage status of the land the removal of trees is characterised as demolition. The applicant has sought consent for the removal of the trees.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

The subject land is identified as a heritage item listed in schedule 5 of Orange LEP. The relevant inventory sheet provides the following statement of significance for the land:

The historic site marks the initial development of urban utilities - water supply, for the growth of Orange and it retains an appropriate character and setting and contributes as a prominent heritage item.

Figure 7 - dam wall valve opening 2016 (image source: PoM)


 

Figure 8 - dam wall 2016 (image source: PoM)

(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 this 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):

(i)      a heritage item,

(ii)     an Aboriginal object,

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

The application involves demolition of trees and shrubs within a heritage item and also alters the exterior of the heritage item by increasing the width of the existing path within the heritage item. As such, this clause applies and the development requires consent which the applicant has sought as part of this application.


 

(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).

In respect of the above subclause, the effect of the proposed development on the heritage significance of the heritage item is considered minor. The area to be development is a considerable distance from the body of water being the listed reservoir. Moreover, the significant fabric of the C.1890s dam wall is on the opposite (southern) side of the reservoir and thus sufficiently separated so as to have little to no impact on the heritage significance of that part of the item.

The development is considered satisfactory in terms of the effect on the significance of the heritage item.

(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 detailed heritage management document is not required for the reasons detailed under Subclause (4) above.

(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.

As detailed above, given the location of the development being well separated from the C.1890s dam wall, the proposed development is not one that warrants the preparation of a Heritage Conservation Management Plan.

(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 subject land 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.

An AHIMS search indicates that the site is not a known Aboriginal Place of Heritage Significance.

(9)     Demolition of Nominated State Heritage Items

          The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item:

(a)     notify the Heritage Council about the application, and

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

The above clause is not relevant to the assessment of this application.

Part 6 - Urban Release Area

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

Part 7 - Additional Local Provisions

7.1 - 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 necessary for the construction of the widened pathway. This includes removal of topsoil and removal of unsuitable material below the topsoil to allow for subbase and compacted base material to be installed. Additionally, excavation will also be required for the installation of surface drainage infrastructure. 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, standard cautionary conditions of consent have been attached in the event of an unexpected find. Excavated materials will be reused onsite as far as practicable.

The earthworks will be appropriately supported onsite and the change in ground level is not substantial.

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. However, conditions may be 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 located in proximity to Gosling Creek Reservoir and Gosling Creek; the land is also located in the water catchment and as such conditions are attached that require erosion and sediment control.

7.3 - Stormwater Management

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

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

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

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

The extent of disruption to the drainage of the site is considered to be minor. The applicant proposes to include two piped drainage lines to improve the conveyance of surface water within the site.

Relevant conditions are attached in relation to stormwater management of the site.

7.4 - Terrestrial Biodiversity

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

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

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

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

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

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

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

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

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

Only a small portion of the site is identified as being an area of high biodiversity as shown on the maps. Notwithstanding this, ground truthing the accuracy of the maps is an essential exercise in any assessment, and in this case Council staff have identified that the site contains areas of unmapped endangered ecological communities. In accordance with the Biodiversity Conservation Act, the applicant was obligated to undertake a BDAR to determine the extent of impact upon this locality. A detailed assessment of the terrestrial biodiversity present on the land; and the subsequent impacts on the biodiversity as a result of the development has been assessed in the foregoing assessment.

7.5 - Riparian Land and Watercourses

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

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

(i)      the water quality and flows within a watercourse

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

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

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

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

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

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

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

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


 

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

Figure 9 - except of sensitive waterways mapping – development site shown heavy red outline

While the subject site does contain a sensitive waterway, the proposal is considered satisfactory. The extent of impact upon the waterway as a result of the track widening will be neutral. The pathway will be used in a similar manner to the current path, there is no new use proposed that would give rise to possible pollution events or the like. There is the possibility of sediment to escape the development site and impact upon the waterway, however this can easily be addressed by conditions requiring sediment control measures to be implemented during the construction phase of the development.

The development is considered satisfactory.

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 does 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 development is considered acceptable in relation impacts upon ground water.

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 land is located within the drinking water catchment. As mentioned above, the development being the widening of the subject portion of existing track is not likely to impact upon the quality of drinking water entering the waterway. The increase in the width of the track will not directly impact the water supply. Notwithstanding, as noted above soil and erosion control measures are required to manage the development. Indirectly, there is the possibility of pollution to occur through littering or the like during an organised triathlon event for example; or to a lesser extent a private gathering for a child’s birth party.

However, these two examples are able to occur within the reserve at present, and there is nothing to suggest this would increase as direct consequence of the widened track.

The development is considered satisfactory in relation to the drinking water catchment.

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

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

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

The subject land has a long history of being used for a public purpose. Prior to the current use of the land as public recreation, the land was pine plantation. Accordingly, there is no historical evidence to suggest that the land has been used for a purpose likely to cause contamination in the past and as such, the development is considered satisfactory in relation to the above.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

From 31 January to13 April 2018 the Department of Planning and Environment publically exhibited an Explanation of Intended Effect (EIE) and Draft Planning Guidelines for the proposed Remediation of Land SEPP, which will repeal and replace State Environmental Planning Policy 55 – Remediation of Land (SEPP 55). Of particular note, the Draft Planning Guidelines state:

“In undertaking an initial evaluation, a planning authority should consider whether there is any known or potential contamination on nearby or neighbouring properties, or in nearby groundwater, and whether that contamination needs to be considered in the assessment and decision making process.”

“If the planning authority knows that contamination of nearby land is present but has not yet been investigated, it may require further information from the applicant to demonstrate that the contamination on nearby land will not adversely affect the subject land having regard to the proposed use.” (Proposed Remediation of Lands SEPP - Draft Planning Guidelines, Page 10).

The relevant provisions of the inforce SEPP are addressed above. Council staff are not aware of any nearby properties that may be contaminated and thereby impact upon the subject land. Accordingly, the development is considered satisfactory in respect to the draft SEPP provisions referenced above.

Draft Orange Local Environmental Plan - Amendment 24

Draft Amendment 24 of the Orange LEP 2011 was formally placed on exhibition from Friday, 26 July 2019, for a period of 28 days.

The Amendment contains various changes. In reviewing the proposed changes, it is considered that no changes contained in this Amendment have effect in regard to this development application.

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

INTEGRATED DEVELOPMENT

The applicant has not sought to have the application treated as an integrated development. It is not expected that any separate approvals are required; however the onus is on the beneficiary of the consent to ensure all approvals are in place.

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 0, 11 and 13). 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 6 Open Space (Orange LEP 2000) is zone RE2 Private Recreational (Orange LEP 2011). As such, Orange DCP 2004 – Chapter 11 – Land used for open space and recreation is relevant to this proposal and considered below along with other relevant chapters of the DCP.

Chapter 11 – Land used for open space and recreation

The subject land is a Crown Reserve and Council is the Crown Land Manager. As detailed above, a PoM is in place for the land, however, it precluded the removal of vegetation as a consequence of any path widening. Accordingly, the PoM has been updated in draft form which requires any track widening that also requires removal of vegetation to be undertaken in accordance with the Biodiversity Conservation Act 2016.

Accordingly, the development is consistent with the draft PoM.

There are no other aspects of Chapter 11 that are of relevance to this assessment.

Chapter 13 – Heritage

The subject land is identified as a heritage item. Assessment of the development impact upon the significance of the heritage item is detailed above.


 

INFILL GUIDELINES

The development site is located on land identified as a heritage item and therefore, the infill guidelines are relevant to the assessment. However, owing to the nature of the development and the separation distance between the development site and the more significant portions of the site, the infill guidelines are not relevant to the assessment of this application.

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

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

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

Context and Setting

The subject land is a large public reserve located on the southern side of the city. The reserve is bounded by Bloomfield Road to the north, Bargwanna Road to the East, Gosling Creek to the south and Forest Road to the west.

The reserve comprises an existing network of sealed pathways that are either bitumen sealed or crushed gavel located on the northern side of the reservoir. The reservoir which formally provided drinking water to Orange occupies the majority of the site. The original c1890s dam wall remains intact on the southern side of the reservoir.

The network of pathways link with the leash-free dog exercise area to the north east which connect with pathways that circumnavigate the Bloomfield precinct and link with Lysterfield Reserve through an underpass under Forest Road.

The site has a long history being used as public reserve, prior to which there was Radiata Pine Plantation in the area that is now cleared parkland on the northern side of the reservoir. This area was cleared in 1999.

There are identified areas of moderate to high biodiversity areas consisting of remnants of a Box Gum Woodland/Tableland Snow Gum, Black Sallee, Candlebark and Ribbon Gum Grassy Woodland Endangered Ecological Communities as detailed in the PoM.

The proposed development, being an increase to the width of a portion of existing pathway, is not incongruous with the context and setting save for the safety/conflicts with various user groups as detailed below.

Environmental Impacts

The extent of environment impacts is addressed in detail above under the considerations of the Biodiversity Conservation Act.

Access, Transport and traffic

The development is not expected to directly result in any additional traffic. It is acknowledged that increases in traffic would occur for planned events such as a triathlon events, however, these occur already and there is nothing to suggest the pathway widening would directly increase the number of athletes competing in planned sporting events at the reserve.

Existing access/parking arrangements will be maintained.


 

Public Safety – potential conflict with various user groups

Casual observations and personal usage of the public reserve suggests that patronage levels of the reserve outside of existing organised events (i.e. parkrun and triathlons) are quite high and the range of user varies. Primarily, observations identified more passive recreation activities such as families with children on push bikes, scooters, and balance bikes etc. parents pushing prams, novice bike riders, joggers/runners and walkers alike utilising the existing network of pathways. As well as the observed users of the pathways, the central area is heavily used for private gatherings such as picnics, parties, BBQs etc. with children playing on the playground.

The installation of a purpose built criterium cycle track that meets Cycling Australia requirements (save for the requirement of a 200m section of track before the finish line that is required to be 8m wide) will encourage cyclists of all skill levels to ride the track outside of planned/sanctioned events. Whilst the pathways are utilised by cyclists at present, the existing pathway is not purpose built for cycling and as such the lure of track cycling at the reserve will be far greater upon the purpose built pathway being constructed.

Council staff are certainly encouraging of creating public recreation spaces that are appealing for the most diverse range of user groups, the potential for this development to add a new user group (cyclists using the criterium track for example), and for those new users to conflict with the users engaging in activities more in line with the historic use of the site for passive recreation needs consideration.

The applicant has offered line marking of the track indicating a shared pathway with cycling on one side (4m width) and walking/running on the other side (2m width). Give way/hold points at the intersecting pathways with the 6m wide track and appropriate signage. These measures are considered important in the management of the pathway and thus supported by Council staff, however, the author is of the view that more physical means of traffic calming should be considered for this development, particularly in relation to the area in an around the amenities building, BBQ area, picnic shelters and playground equipment. There are many options that could be considered in arriving at a suitable solution.

One such solution requires the installation of cycle gates (image provided below – noting in the example below the positioning of the gates are too close together – more judicious arrangement/placing of the gates is required at the detailed design stage) at strategic locations within 6m pathway so as to control speed and thus deter the pathway being used by bunch cyclists outside of sanctioned events. The gates could be designed/engineered in a way whereby they can be opened for events such as parkrun or fully removed similarly to a removable bollard and placed out of the way during planned cycle events.

In order to avoid a scenario where, for example a child unexpectedly runs across the pathway from the BBQ/playground area in front of a group of cyclist travelling at around 40km/h, it is recommended that two sets of cycle gates be installed, one set of gates installed approximately in line with western most BBQ shelter located in the central playground area, and the second set of gates in line with the eastern wall of the amenities building on the northern side of the subject pathway.

Attached is a recommended condition of consent requiring the traffic calming device be installed in specified locations. The detailed design of the required devices will be subject to further sign-off by relevant Council staff.

Figure 10 - example of cycle gates – noting the inappropriate positioning of gates in the image – provided only for illustrative purposes only

Figure 11 – schematic layout of bollards and gates


 

It is noted that the arrangement of gates will shepherd pedestrians into the cycle lane. To combat this, an adjustment of the line marking will be necessary to make the pedestrian lane go out and around the gate on the pedestrian lane side of the pathway. This is shown in the above image as green line markings. 

Visual impacts

The increase width of the subject portion of track will undoubtedly change the visual appearance of the part of the site where the track is proposed. By way of comparison the width of the proposed path will be comparable to the width of Bloomfield Road.

To ameliorate this visual impact and resultant modification of the existing landscape setting, a condition is recommended that requires a detailed landscape plan showing the placement of suitable endemic species adjacent to the proposed pathway. The plan shall be developed in consultation with relevant Council staff and is to be to the satisfaction of Council’s Director Development Services. The landscaping shall be installed prior to occupation/use of the pathway or given the current drought conditions (acknowledging the reserve is currently watered using the reservoir), a bond may be taken as security for the work to be undertaken at a more appropriate time i.e. more favourable weather conditions.

Council’s Manager City Presentation notes that within the proposed footprint of the widened pathway are at least two Silver Banksia (Banksia marginata) that have been grown from seed propagated from one of six known naturally occurring specimens within the Orange Local Government area. This species naturally occurs within the Orange LGA and is at its most westerly extent. The closest recorded population of this species is at Yetholme east of Bathurst. Of the six individual plants known to naturally occur in Berrilee Road, two are on public land and the remaining four are on two separate sites under private ownership. Gosling Creek Reserve is a repository site for the Banksia marginata with less than a handful of specimens of around 15 years of age.

To ameliorate the loss of the above referenced Silver Banksia, ideally the condition requiring additional landscaping should also require propagules from the Berrilee Road specimen. However, it is acknowledged that propagules will take considerable time before the plants able to be planted and doing so would unreasonably hold up the completion of the proposal. As such, as Council is the manager of the reserve, it is recommended that a program to increase the number of appropriately sourced Silver Banksia within the reserve should be explored separate to this application.

Heritage Impacts

The impact of the development upon the heritage significance of the heritage item have been addressed above under the LEP considerations.

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.

The development is not likely to result in any unacceptable cumulative impacts such as two events occurring at the one time given Council is responsible for the management/booking of events.

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

The subject land has a long history of being used as a public reserve with more intensive recreation uses occurring in more recent years (triathlon events commencing in 2017 onwards, Parkrun, etc.) and as such the site is suitable for the proposed development subject to certain measures to ensure public safety of all users.

It is noted that the BDAR concludes that the development does not require off-sets and that the development is acceptable in terms of the impacts upon terrestrial biodiversity.

It is also noted that the development is consistent with the recently adopted PoM for Gosling Creek Reserve.

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 Environmental Planning and Assessment Act. The application was advertised for the prescribed period of 28 days and at the end of that period 10 submissions were received all of which were in support of the development application.

The submissions in support of the development cite primarily that the proposal will; provide a safe place for people of all ages to learn to ride a bicycle, improve the quality of the existing portion of pathway which current has some damage caused by adjacent trees, and will improve health outcomes for the wider population through the likely increase usage of the Gosling Creek Reserve as a consequence of the proposed development. Additionally, several of the submissions cite the improved connectivity with other pathway networks which currently link with Gosling Creek Reserve and the positive externalities such a facility could bring to the region if the site is used for a major HPV event or the like.

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 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 development is consistent with the recently adopted Plan of Management for Gosling Creek. The development triggered the need for a BDAR to be prepared and one was prepared and submitted as an amendment to the application. As detailed above, the BDAR is considered to be consistent with the Biodiversity Assessment Method and Council staff are satisfied that the development is not likely to significantly affect the identified endangered ecological, any threatened species or the habitat of any threatened species. A Section 4.15 assessment of the development indicates that the development is acceptable. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

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

 

Attachments

1          Notice of Approval, D19/64886

2          Plans, D19/64845

3          Submissions, D19/64693

 


Planning and Development Committee                                                      7 November 2019

Attachment 1      Notice of Approval

 

ORANGE CITY COUNCIL

 

Development Application No DA 71/2019(1)

 

NA19/                                                                    Container PR13676

 

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

 

Development Application

 

  Applicant Name:

Orange Cycle and Triathlon Club

  Applicant Address:

62 Hill Street

ORANGE  NSW  2800

  Owner’s Name:

Orange City Council

  Land to Be Developed:

Lots 50 and 58 DP 750401, Lots 3 and 4 DP 216843, - 118 Bloomfield Road and 2 Bloomfield Road, Orange

  Proposed Development:

Recreation Area (Gosling Creek Cycle Path)

 

 

Building Code of Australia

 building classification:

 

Class to be determined by the PC

 

 

Determination made under

  Section 4.16

 

  Made On:

7 November 2019

  Determination:

CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

 

 

Consent to Operate From:

8 November 2019

Consent to Lapse On:

8 November 2024

 

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

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

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

 

 

 

Conditions

 

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

 

(a)      Plans by GHD drawing nos. 22-19696-C001 Rev A; 22-19696-C002 Rev A; 22-19696-C005 Rev B; 22-19696-C010 Rev A; 22-19696-C011 Rev B; 22-19696-C012 Rev B;

Biodiversity Development Assessment Report: Gosling Creek Reserve path widening dated August 2019 prepared by AREA environmental consultants and communication.

 

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

 

as amended in accordance with any conditions of this consent.


 


PRESCRIBED CONDITIONS

 

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

 

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

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

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

(c)      stating that unauthorised entry to the site is prohibited.

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

 

 

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

 

(4)      The applicant shall install a series of gates attached to bollards as a means of calming bicycle traffic using the pathway. Each set of gates shall include as a minimum three bollards not more than 1.2m in height with an attached gate / arm that is a minimum of 2.5m in length that projects towards the centre of the pathway. The bollards shall be positioned at the edge of sealed surface of the pathway and the three bollards within each set of gates shall be positioned in a triangular pattern (two bollards and gates on one side (the bicycle lane side) of the path and the other bollard and gates assembly on the opposite side of the path (pedestrian side)) so as to achieve a chicane within the 6m path. The positioning of each bollard within the respective set of gates shall be at 5m centres along the pathway.

As a minimum, two sets of gates shall be installed on the stretch of track to the north of the playground/BBQ area, one set of gates shall be positioned in line with the western most covered picnic table structure. The second set of gates shall be positioned on the same stretch of pathway and in line with the eastern wall of the amenities block located on the northern side of the track. The positioning of the gates in these locations is approximate.

The gates shall be engineered/designed in a way whereby the arm / gate section is able to be opened or positioned away from the track for running events or the like; and the whole device including the bollard can be removed during events involving bicycles or human powered vehicles.

Details of the gates and their locations shall be clearly shown on the plans submitted with the application for a construction certificate.

For the avoidance of doubt, one set of gates consists of three bollards with gates / arms attached to each bollard arranged in a triangular pattern.

 

(5)      A landscape plan identifying at least 200 large shrubs and trees (60/40 split) endemic to Gosling Creek Reserve Ecologically Endangered Vegetation Community to ameliorate the visual impacts caused by the additional hard surfaces of the widened pathway, shall be submitted to, and approved by, Council Acting Director Development Services.  Species selection shall be undertaken in consultation with Council’s Manager City Presentation.

The landscape plan shall identify an establishment period of 12 months where the proponent shall plant and care for these species, in conjunction with replacing any plants that fail due to neglect, vandalism or environmental conditions.

 

(6)      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 prior to the issuing of a Construction Certificate.

 

(7)      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.


 

(8)      Appropriate line marking and stencilling shall be installed directly upon the proposed pathway. The plans submitted with the application for a construction certificate shall clearly show the line marking and stencilling to be installed. Additionally, appropriate signage providing suitable warning and directions shall be installed in appropriate locations such as all pathways intersecting with the 6m wide pathway. Details of the signage including content and location shall be provided prior to the issue of the construction certificate.

 

 

PRIOR TO WORKS COMMENCING

 

(9)      Prior to works commencing, all temporary infrastructure (set down areas, access tracks, etc.) shall be located in cleared areas away from vegetation to minimise vegetation removal and indirect effects.

 

(10)    Prior to works commencing, a suitably qualified person shall accurately and clearly mark out the limits of clearing as well as clearly marking the vegetation to be retained outside of the construction footprint.

Regular inspections of the site occurring at least once a fortnight during the construction phase shall be undertaken by a suitable qualified person to ensure all retained vegetation / fauna habitat is clearly marked and that fencing is in place, where required.

 

(11)    Prior to works commencing, all stockpile and storage locations shall be clearly identified in already cleared areas away from significant vegetation and fauna habitat. All stockpile areas shall have adequate erosion and sediment control in place during the construction phase of the development.

 

(12)    Prior to works commencing, a construction management plan shall be prepared for the construction of the pathway. The construction management plan shall, as a minimum; provide measures for the control of weeds and foreign soil being brought on to the site by machinery and vehicles associated with the construction of the pathway (this is to be done through regular inspections of vehicles / machinery prior to site entry; and where necessary vehicles and machinery are washed prior to entering the site at an appropriate facility), establish a procedure to ensure any fauna injured during the clearing and construction phase of the development are appropriately managed, procedures for the management of noxious weeds identified within the development footprint during construction, the control of airborne dust, etc.

 

(13)    All clearing associated with the development shall occur outside of Spring time.

 

(14)    Prior to works commencing, Tree Protection Zones (TPZs) in accordance with Australian Standard AS 4970 – 2007 – Protection of Trees on development Sites shall be established around all trees that are to be retained that; i) have a truck measuring 300mm DBH or greater, and ii) that have a structural root zone (SRZ) within 5m of the development / construction area.

 

(15)    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 WorkCover Authority.

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

 

(16)    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.

 

 

DURING CONSTRUCTION/SITEWORKS

 

(17)    Approval is granted only for those trees and shrubs identified as being removed on the approved plans.

 

(18)    All signage is to be located in a position along the pathway so as not to impede the use of the pathway.


 

(19)    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.

 

(20)    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.

 

(21)    In accordance with section 3 of AS4970 – 2007 – Protection of Trees on development Sites all construction works (either the removal of the existing pathway or works associated with the construction of the widened/new pathway) that encroach within the TPZ of any (retained) tree shall be undertaken in direct supervision of a qualified arborist, or another suitably qualified person.  

 

(22)    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.

 

(23)    The finished surface is to have a suitable non slip resistance surface in wet and dry conditions allowing traction for a person using a wheelchair.

 

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

 

(25)    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 AN OCCUPATION CERTIFICATE

 

(26)    Landscaping shall be installed in accordance with the approved plan, with maintenance carried out for an establishment period of 12 months; replacing any plants that fail due to neglect, vandalism or environmental conditions.

 

(27)    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.

 

(28)    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.

 

(29)    All traffic calming devices, line marking, signage, etc. shall be installed prior to the issue of an Occupation Certificate.


 

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

 

(30)    The traffic calming bollards / gates shall be maintained in their closed position at all times except for planned events. 

 

 

 

 

Other Approvals

 

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

 

          S68 required for pedestrian safety while work underway.

 

(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:

 

8 November 2019

 



Planning and Development Committee                                                                      7 November 2019

Attachment 2      Plans

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Planning and Development Committee                                                                     7 November 2019

Attachment 3      Submissions


 

 

 



 


 

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Planning and Development Committee                                            7 November 2019

2.6     Development Application DA 258/2019(1) - 1 Scarborough Street

RECORD NUMBER:       2019/2318

AUTHOR:                       Rishelle Kent, Senior Planner    

 

 

EXECUTIVE Summary

Application lodged

16 August 2019

Applicant/s

Mr G Thornberry

Owner/s

Mr GJ Thornberry

Land description

Lot 129 DP 1237871 - 1 Scarborough Street, Orange

Proposed land use

Dual Occupancy and Subdivision (two lot residential)

Value of proposed development

$460,000.00

Council's consent is sought for a dual occupancy and two lot subdivision at 1 Scarborough Street, Orange, described as Lot 129 DP 1237871. The proposal comprises:

·    construction of two single storey dwellings on the subject land

·    subdivision of the land to create two lots.

The proposed subdivision relies on a variation to the Minimum Lot Size of 500m2 which applies to the subject land. A formal request to vary this development standard pursuant to Clause 4.6 of Orange LEP is provided.

A Section 4.15 evaluation of the application has been undertaken which indicates that the development is acceptable. Attached is a Notice of Determination for Council’s consideration. It is recommended that Council supports the proposed development.

Figure 1 - locality plan


 

DECISION FRAMEWORK

Development in Orange is governed by two key documents Orange Local Environment Plan 2011 and Orange Development Control Plan 2004.

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

The application comes before Council due to a departure from the minimum lot size for dual occupancy.  The site is amongst a new subdivision and not significantly dissimilar to other developments in the area.  The articulation of the elevations fronting the streets and the floor plan of the dwellings results in this being a reasonable development despite the smaller allotment size.  No submissions from neighbours were received.  Approval is recommended.

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 258/2019(1) for Dual Occupancy and Subdivision (two lot residential) at Lot 129 DP 1237871 - 1 Scarborough 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 involves development in two stages.

1.  Proposed Dual Occupancy

It is proposed to construct two (2) single storey detached dwellings on the subject land. Each dwelling will contain three (3) bedrooms, two (2) bathrooms, open plan kitchen/dining/living zone, media room, main bathroom, laundry, alfresco area and attached double garage.

The external finishes of the proposed dwellings will comprise:

·    face brick walls with timber cladding features

·    iron roof sheeting at 27 degree pitch

·    powder coated aluminium framed windows

·    panel lift garage doors.

The proposed dwellings are very similar in appearance, however, they have been designed to each face a different street, with Dwelling 1 fronting Scarborough Street and Dwelling 2 fronting Miriam Drive (refer to Figure 2 below).

The site will be landscaped, and areas for lawn will be established. Private open space with reasonable solar access will be provided. Concrete driveways will be constructed to each dwelling.

Metal fencing, 1.8m high, will be established along the northern boundary of the site and between the proposed dwellings (existing fencing is evident along part of the northern boundary and the western boundary). Retaining walls will be established where indicated.

Figure 2 - site plan


 

2.  Proposed Subdivision

It is proposed to subdivide the subject land to create two (2) urban residential lots as follows:

LOT

AREA (m2) subject to survey

1291

477.51m2

1292

428.23m2

Total

852.4m2

Proposed Lot 1 will comprise Dwelling 1 with vehicular access via Scarborough Street. Proposed Lot 2 will comprise Dwelling 2 with vehicular access from Miriam Drive.

Each of the proposed lots/dwellings will be connected to urban utility services in accordance with the requirements of the relevant supply authority.

It is proposed that the Subdivision Certificate to create proposed Lots 1 and 2 be released at the completion of slabs and service connections for proposed Dwellings 1 and 2.

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 (BC Act) and Part 7A of the Fisheries Management Act 1994 have effect in connection with terrestrial and aquatic environments.

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. The subject property has no biodiversity or habitat value. A Biodiversity Development Assessment Report is not required in this instance.

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

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 the above objectives, 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

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

Land Zoning Map:

Land zoned R1 General Residential

Lot Size Map:

Minimum Lot Size 500m2

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:

Groundwater 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 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.


 

 

Figure 3 - locality plan

An easement to drain sewer burdens the lot in the north eastern corner, where indicated in Figure 2. The building footprint is clear of the easement.

An 88B instrument exists for the subject property, with a number of restrictions regarding building materials, fence heights and materials, and the like. Furthermore, the 88b identifies Lot 129 for dual occupancy development, and permits further subdivision of this lot.

However, it is acknowledged that Clause 1.9A of the LEP has the power to override the subject covenant.

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 “dual occupancy (detached)” and “subdivision of land.”

Pursuant to the OLEP Dictionary:

Dual occupancy (detached) means two detached dwellings on one lot of land, but does not include a secondary dwelling.

[Nb. Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.]

Pursuant to Section 6.2 of the Environmental Planning and Assessment Act 1979:

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 of disposition.

Dual occupancy is a permitted land use in the R1 zone. Subdivision is permitted with consent pursuant to Clause 2.6 (see below).

Clause 2.3 - Zone Objectives

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 proposal is consistent with the zone objectives as follows:

·    The proposal would have a positive effect on the housing needs of the community by creating additional residential accommodation.

·    The proposal contributes to the variety of housing types and densities.

·    The subject land is within an establishing residential area that is serviced by public bus routes and footpath along Leeds Parade.

·    The site does not have frontage or access to the Southern Link Road.

Clause 2.6 - Subdivision - Consent Requirements

Clause 2.6 is applicable and states:

(1)     Land to which this plan applies may be subdivided, but only with development consent.

Consent is sought for a two lot Torrens subdivision of the proposed dual occupancy in accordance with this clause.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size

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

In relation to this site, the map nominates a minimum lot size of 500m². The proposed lots have site areas of 477.5and 428.2. The proposed lots do not satisfy the MLS and a variation is sought pursuant to LEP Clause 4.6 Exceptions to Development Standards.

Proposed Lot 1 with an area of 477.5m2 seeks to vary the MLS by 4.5%. Proposed Lot 2, with an area of 428.2m2, seeks to vary the MLS by 14.35%.

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

Clause 4.1B applies and states in part:

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

Column 1                       Column 2                       Column 3

Dual occupancy            Zone R1                         800m2

The proposed dual occupancy is situated on land zoned R1 General Residential. The subject land comprises a site area of 905.8m2, and exceeds the minimum area of 800m2 required for a dual occupancy. The proposal is consistent with this clause.


 

Clause 4.6 - Exceptions to Development Standards

This clause is applicable as the subdivision component of the proposed development is less than the required minimum lot size of 500m² pursuant to Clause 4.1 of the LEP. The proposed lots have site areas of 477.51m² and 428.23m², representing a variation of 4.5% and 14.35% respectively.

It is noted that the total area of the subject property complies with Clause 4.1B addressing the minimum lot sizes for dual occupancies. The subject land comprises a site area of 905.8m2, and thus exceeds the minimum area of 800m2 required for a dual occupancy within the R1 General Residential zone.

Clause 4.6 is intended to achieve the following objectives:

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

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

At its core, a Clause 4.6 variation may be supported where it can be shown that the objectives of the standard are unreasonable and/or unnecessary to apply in this particular case, and where it can be shown that the objectives of both the plan and the clause to be varied are achieved notwithstanding the non-compliance with the numerical value of the standard.

The Clause 4.6 variation submitted with the application generally achieves the outcomes and procedures outlined in the Department’s circular and guideline; and the principals established by the Courts. The main basis for justification advanced in the submission is that the degree of variation is very small (22.49m2 and 71.77m2- representing a 4.5% and 14.35% variation respectively), and that the proposed dual occupancy is entirely compatible with the expected residential land use pattern in this area. Council has supported similar requests within this particular precinct in the past.

Matters to address in an application

Variation of a development standard may be justified where it is consistent with the objectives that the relevant environmental planning instrument is attempting to achieve.

The application must address:

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

and

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

The applicant has argued that the minimum lot size is unnecessary and unreasonable in this instance for the reasons explained below:

·    The subject land satisfies the minimum lot size to permit a dual occupancy pursuant to Clause 4.1B of Orange LEP 2011.

·    The proposed dual occupancy satisfies the relevant Planning Outcomes for dual occupancy development pursuant to Orange DCP 2004 – 07 Development in Residential Areas.

·    The subdivision of each dwelling onto a separate lot is a reasonable planning outcome and expectation for a dual occupancy development that is demonstrated to satisfy the relevant LEP and DCP provisions.

·    Subdivision of the proposed dual occupancy can actually occur via Clause 4.1(4) of Orange LEP 2011 either as strata subdivision or as community title subdivision because these forms of subdivision are not subject to a MLS. However, the proposed subdivision layout, comprising regular lots each with direct street frontage and access is not conducive to strata or community subdivision.

It should be noted that the 88b applying to the land identifies the site for dual occupancy development, and subdivision of such. This was identified at the time of the overarching subdivision of the site.

There are sufficient environmental planning grounds cited to support the variation. These are as follows:

·    A variation of the development standard is justified in this case because it can be demonstrated that the proposal satisfies the objectives of the R1 General Residential zone and the objectives of the MLS.

·    The proposed lots are demonstrated to accommodate each dwelling in a dual occupancy development that is entirely compliant with the relevant LEP and DCP provisions.

·    As previously mentioned, Clause 4.1(4) of the LEP would actually permit the subdivision either as a community title or strata subdivision. However, it is considered that a subdivision of the land as proposed by this application is more appropriate given that each lot has direct road frontage and does not rely on common or shared elements that typify community or strata schemes.

·    The proposed dual occupancy is entirely compatible with the expected residential land use pattern in this area. A variation of the MLS to allow each proposed dwelling to be excised on a conventional allotment (as opposed to a strata or community lot) does not diminish this aspect of the development.

·    It is demonstrated that non-compliance with the MLS development standard does not generate unacceptable impacts in the locality.

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

The Five Part Test

Written applications to vary development standards should also address matters set out in the ‘five part test’ established by the NSW Land and Environment Court. The five part test embodies the following:

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

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


 

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

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

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

The applicant states that the proposal, including the proposed variation to the MLS, would uphold the objectives of the MLS standard due to the following:

The proposal, including the proposed variation to the MLS would uphold the objectives of the development standard due to the following.

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

       The proposed lots may not necessarily reflect the majority of existing lot sizes in this precinct. However, once the dual occupancy is completed, the two dwellings will become part of the development pattern. The creation of proposed Lots 1291 and 1292 to excise each of these dwellings would indeed reflect this element of the development pattern.

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

       The proposed variation of the MLS remains consistent with this objective. Each lot is intended to excise the proposed dwellings in a dual occupancy development, both of which are demonstrated to satisfy the relevant LEP and DCP provisions. The proposed lots logically recognise each proposed dwelling and its associated private open space, access, and servicing requirements.

(c)   To ensure that lot sizes do not undermine the land’s capability to support rural development

This objective is not relevant as the subject land is not within a rural zone.

(d)   To prevent the fragmentation of rural lands

This objective is not relevant as the subject land is not within a rural zone.

(e)   To provide for a range of lot sizes reflecting the ability of services available to the area

The proposed subdivision is consistent with this objective as the servicing arrangements for each of the proposed lots are readily available.

(f)    To encourage subdivision designs that promote a high level of pedestrian and cyclist connectivity and accommodate public transport vehicles.

There are no aspects of the proposed MLS variation that would be adverse to this objective.


 

The applicant makes the following additional comments in regards to the five part test and the requirements of Clause 4.6:

·    Strict compliance with the 500m2 MLS would not necessarily defeat or thwart the underlying objective or purpose of the development standard. However, the proposal is considered to be consistent with the objectives of the development standard.

·    The development standard cannot be said to be abandoned. However, the Leeds Parade Conceptual Subdivision Layout appears to depict several lots that are less than 500m2. Further the development standard becomes irrelevant if the subdivision was to be undertaken as strata or community title.

·    The zoning of the land is reasonable and appropriate for the site.

·    The proposal including the proposed variation of the MLS remains consistent with the objectives of the R1 General Residential Zone.

·    The contravention of the development standard does not raise an issue of State or regional planning significance as it relates to local and contextual conditions.

·    Public benefit would not suffer as a result of the variation to the development standard. The public would benefit from an increase in the choice of residential accommodation.

·    The creation of the proposed lots would not compromise the broader aims and principles of Orange LEP 2011; or the relevant Planning Outcomes of Orange DCP 2004 – 07 Development in Residential Areas.

Department Of Planning’s Circular

This Circular sets out the circumstance and criteria for applying Council’s assumed concurrence to the determination of development standards under Clause 4.6.

In the event that the variation sought does not exceed 10% of the development standard, the concurrence issued by the Department may extend to a delegate of the Council. The Secretary’s concurrence does not extend to a delegate if the development contravenes a numerical standard by greater than 10%. In this instance, the variation must be considered by Council to be subject to a “greater level of public scrutiny” than decisions made by Council staff under delegation.

In this instance the variation sought is 4.5% and 14.35% and therefore must be determined by Council.

Summary

The LEP MLS requirement is an assessment tool aimed at achieving good design outcomes, making efficient use of land, and ensuring that neighbourhood character and amenity is not compromised. The subject land allows for dual occupancies pursuant to the LEP, and the fact that the proposal seeks to excise the dwellings via subdivision would be largely indiscernible in terms of impact and public perception of the development. Staff generally concur with the applicant, in that if the development strictly complies with the development standard (i.e. remains a dual occupancy on one lot), it is unlikely to result in a better planning outcome. Furthermore, the MLS does not apply to Community or Strata subdivisions, and as such, subdivision could occur in a different arrangement than the proposed Torrens title, however, the site layout does not lend itself to these other types of subdivision.


 

Council may grant consent only if the concurrence of the Director General of the Department of Planning has been obtained (i.e. is assumed, as discussed above) and Council is satisfied that:

·    the written request has adequately addressed the above, and

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

-      consistency with the objectives of the particular standard, and

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

It is considered that the written request adequately addresses the variation criteria of the clause, the Department of Planning guidelines, and the principals and test established by the Court. In particular, the proposed development is not contrary to any of the objectives for the zone or the MLS Clause; or contravene the DCP’s planning outcomes (addressed later in this report).

Overall, it is considered that the proposed variation is unlikely to result in any significant adverse impact on the operation of the LEP or the DCP, and that the proposed development is generally consistent with all relevant objectives and would not result in any significant adverse impact.

It is considered that the proposal, including the variation sought, is consistent with the above objectives.

Part 6 - Urban Release Area

The subject land is contained within an Urban Release Area on the Urban Release Area Map. The provisions in Part 6 of the LEP generally relate to servicing of the land in conjunction with subdivision. The development site was a lot created pursuant to DA 431/2012 (amended) for proposed 88 lot residential subdivision, approved 26 March 2013. The subdivision is reflective of the Leeds Parade DCP/Masterplan for the parent parcel and adjoining lands. Part 6 has no effect for the proposed dual occupancy on a child parcel in the original subdivision.

Part 7 - Additional Local Provisions

7.1 - Earthworks

In consideration of this clause, the proposal is acceptable. Minor earthworks will be required to create level building pads for the proposed dwellings and associated outdoor spaces. The earthworks will be supported onsite and the change in ground level is not substantial. Retaining walls will be constructed within the Miriam Drive frontage to a maximum height of 0.8m and 1.2m, where indicated on the plan. This will result in the finished floor levels of the dwellings being lower than the street, and therefore only a small percentage of the retaining wall will be visible from Miriam Drive. Landscaping in front of these retaining walls will assist with integration to the site.

Disruption to drainage is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways. The site is not known to be contaminated, nor is the site known to contain any Aboriginal, European or archaeological relics. The site is not in proximity to any waterway, drinking water catchment or sensitive area. Conditions are recommended that require sediment control measures to be implemented onsite prior to works commencing to ensure that loose dirt and sediment does not escape the site boundaries.


 

7.3 - Stormwater Management

The proposed development will be connected to the existing stormwater mains in accordance with Council’s standard requirements. Conditions are recommended in relation to stormwater management to satisfy the requirements of Clause 7.3.

7.6 - Groundwater Vulnerability

In consideration of Clause 7.6, the proposal is acceptable. The proposed development does not involve processes or activities that would impact on groundwater resources. The subject land is serviced by reticulated sewer.

Clause 7.11 - Essential Services

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

·    the proposed development will connect to existing stormwater infrastructure in the road reserve

·    the site has direct frontage and access to Scarborough Street and Miriam Drive.

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

(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 terms of potential soil contamination, a contamination assessment was undertaken as part of the subdivision requirements that applied in relation to the creation of the subject land (DA 431/2012 amended). Since its creation as a residential allotment, the subject land has remained vacant.

On this basis, Council will not require further assessment in regard to potential site contamination.


 

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

From 31 January to 13 April 2018 the Department of Planning and Environment publically exhibited an Explanation of Intended Effect (EIE) and Draft Planning Guidelines for the proposed Remediation of Land SEPP, which will repeal and replace State Environmental Planning Policy 55 – Remediation of Land (SEPP 55). Of particular note, the Draft Planning Guidelines state:

“In undertaking an initial evaluation, a planning authority should consider whether there is any known or potential contamination on nearby or neighbouring properties, or in nearby groundwater, and whether that contamination needs to be considered in the assessment and decision making process.”

“If the planning authority knows that contamination of nearby land is present but has not yet been investigated, it may require further information from the applicant to demonstrate that the contamination on nearby land will not adversely affect the subject land having regard to the proposed use.” (Proposed Remediation of Lands SEPP - Draft Planning Guidelines, Page 10).

Land adjoining the site is not identified or considered to be contaminated. As such, the provisions of the draft EPI are considered to have been addressed.

Draft Orange Local Environmental Plan 2011 (Amendment 24)

Draft Orange LEP Amendment 24 was on public exhibition from 26 July to 26 August 2019. Draft Amendment 24 has no effect for 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

DCP 2004-7.1 Urban Residential Subdivision

The DCP sets the following applicable Planning Outcomes for Urban Residential Subdivision:

·    Lots below 500m² indicate a mandatory side setback to provide for solar access and privacy.

·    Lots are fully serviced and have direct frontage and access to a public road.

·    Design and construction complies with the Orange Development and Subdivision Code.

This proposal satisfies the above Planning Outcomes due to the following:

·    Proposed Lots 1 and 2 depict the boundary setbacks for the proposed dwelling in each. As demonstrated in this report, the proposed lots will be of sufficient area to provide a satisfactory standard of residential amenity to the proposed dwellings in respect of solar access and privacy.


 

·    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 are available to the development in accordance with the requirements of the relevant supply authority.

·    The subdivision design and construction will comply with the Orange Development and Subdivision Code.

DCP 2004-7.7 Design Elements for Residential Development

The DCP sets the following Planning Outcomes at Part 7.7:

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 proposal satisfies the above Planning Outcomes due to the following:

·    The site layout and building design is intended to create an attractive residential environment. In this regard:

-      the neighbourhood character in this release area is expected to comprise mostly contemporary, detached single storey dwellings with landscaped front yards and individual driveways. The proposed development displays similar attributes and therefore remains consistent with the expected character of the neighbourhood

-      the proposed development is not influenced or constrained by important views, vegetation or landmarks

-      the development has been designed to provide internal living areas and private open space areas with reasonable solar access.

·    The dwellings adopt a building form and finish that is considered typical of residential development in the City’s newer northern residential areas. In particular, the proposed dwellings comprise the following elements to remain consistent with the expected development form:

-      detached configuration

-      hipped roof lines

-      face brick external walls with timber cladding on front façade

-      front door facing the street

garage door facing the street

-      bulk and sale commensurate with other dwellings

-      landscaped front yards

-      separate driveways.


 

·    Notwithstanding the modest increase in traffic movements (due to one additional dwelling), the proposal will not adversely impact on pedestrian access associated with the streetscape, due to the following:

-      pedestrian movements are expected to be modest in this neighbourhood

-      the reverse egress arrangements for the proposed dwellings will be consistent with those for single dwellings in this neighbourhood and throughout the City generally

-      adequate driver and pedestrian sight lines will be achieved so that vehicles entering and exiting the site are visible to pedestrians and vice versa.

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.

This proposal can be demonstrated to be satisfactory in this regard due to the following:

·    The external finishes (face brickwork walls; iron roofing; and powder coated garage doors and window frames) are considered appropriate in this developing residential neighbourhood.

·    Each of the dwellings will address the street with a contemporary façade comprising windows, front entry door and porch. Landscaping is proposed as indicated in the landscape plan.

·    The garages will not unreasonably dominate the respective street frontage due to the following:

-      each garage is recessed in the front elevation of the respective dwelling

-      the width of the garage door opening in each dwelling is less than 50% of the front elevation of the respective dwelling

-      the garages are setback a minimum of 5.5m from the street boundary as encouraged by the DCP

-      the frontage for each dwelling is to be landscaped.

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.


 

As required by the DCP, the front boundary setback for each of the proposed dwellings will be a minimum of 4.5m.

The DCP allows corner allotments to adopt a 2m setback for the secondary boundary. Given that the proposed design of Dwelling 1 provides a front door and garage that face Scarborough Street, it is submitted that Miriam Drive and the splay would represent the secondary boundary in relation to Dwelling 1. In accordance with the DCP, Dwelling 1 is sited a minimum of 2m from the secondary boundary.

The garage for each dwelling complies with the minimum setback of 5.5m required by the DCP.

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 development proposes to provide 1.8m high aluminium fencing between the two dwellings, with existing 1.8m high metal fencing and unknown height hinge joint fence to the northern and western boundaries respectively. A condition will be attached requiring 1.8m high metal fencing along the northern and western boundaries to provide privacy and security to residents.

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).

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory due to the following:

·    The proposed dwellings are well set back from the site boundaries to ensure that they will be contained within the visual bulk envelope (VBE) generated by planes projected at 45° over the site, commencing 2.5m above existing ground level from each side and rear boundary.

·    Whilst Dwelling 1 is closer to the southern boundary, it will be sited in cut (at a lower ground level) and will therefore be contained within the VBE which applies to that boundary.


 

·    The proposed dual occupancy will comprise a total building area of 414.88m2. Based on the site area of 905.8m2 the development will have a site coverage of just under 46% to comply with the maximum of 50% prescribed in the DCP.

·    The slope of the land will require earthworks and retaining structures along the proposed common boundary and part of the western boundary adjoining Lot 211 DP 1177178. Landscaping will be incorporated into the retaining walls to soften the visual bulk.

·    The proposed finished floor levels of Dwellings 1 and 2 relate reasonably to existing ground levels and are not expected to generate adverse impacts in respect of visual bulk, solar access or privacy.

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.

Building to the boundary is considered unnecessary in this case. As explained later in this report, the proposed dwellings would not unreasonably reduce to amount of daylight that reaches adjoining properties or unreasonably impact upon their privacy.

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.

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 4 hours on 21 June; or not further reduced than existing where already less.

The proposed development satisfies this aspect of the DCP. The shadow diagrams indicate that:

·    the north facing living area windows in each of the proposed dwellings will achieve the required amount of direct sunlight on the winter solstice


 

·    the shadow diagrams indicate that shadowing on the adjoining property to the west occurs at the greatest effect only in the morning period (9am to 10am). As such, the development would meet the DCP requirements in regard to maintaining solar access to the private open space on adjoining land

·    the majority of the overshadowing is toward the south, being the roadways and therefore no impact upon adjoining residential properties.

Overshadowing of Private Open Space

According to the DCP Guidelines and Council’s Energy Smart Homes Code, sunlight is to be available to at least 40% of required open space for dwellings within the development and on neighbouring properties for at least 3 hours between 9am and 3pm.

The proposed development satisfies this aspect of the DCP as follows:

·    Overshadowing of private open space within the development itself is compliant with the DCP. As indicated in the site calculation table:

-      Dwelling 1 has a floor area of 147.5sqm (excluding garage, porch and alfresco) and thus requires a private open space area of 73.75m2. 40% of the required open space area is 29.5m2. The shadow diagrams indicate that the area of direct sunlight will range from 29.51m2 to 39.98m2 between 11am and 2pm on 21 June.

-      Dwelling 2 has a floor area of 132m2 (excluding garage, porch and alfresco) and thus requires a private open space area of 66m2. 40% of the required open space area is 26.4m2. The shadow diagrams indicate that the area of direct sunlight will range from 26.2m2 to 61.5m2 between 9am and 2pm on 21 June.

·    The development would meet the DCP requirements in regard to maintaining reasonable solar access to the private open space of surrounding properties due to the following:

-      the shadow diagrams indicate that no shadowing impact will occur to the adjoining property to the north

-      the shadow diagrams indicate that shadowing impact on the adjoining property to the west would be mostly gone by 11am so unlikely to affect any future development on the property.

Energy Performance Statement

BASIX/NatHERS certificates have been prepared. The dual occupancy will comply with the relevant provisions in respect of water, thermal, comfort and energy.

The proposed development is considered satisfactory in terms of Council’s Energy Efficiency Code due to the following:

·    energy efficient influences in the design include northerly orientation of living areas; slab on ground; and only necessary glazing along the southern and western sides of the dwellings

·    the appropriate star rated water saving devices will be installed

·    the hot water system for each dwelling will be of a type that achieves the star rating recommended in the BASIX certificate for each dwelling.


 

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.

Being single storey and with finished floor levels reasonably commensurate with existing ground level, the proposed dwellings would not unreasonably diminish views for other properties in the vicinity.

Visual Privacy

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

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

-    building siting and layout

-    location of windows and balconies

and secondly by:

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

In consideration of the DCP Guidelines, it is considered that the applicant has suitably demonstrated that the proposal is satisfactory based on the following:

Privacy within the Development

·    The principal living room windows for proposed Dwellings 1 and 2 will overlook their respective private open space area and will not directly oppose each other.

·    The proposed site levels assist to maintain privacy. Generally, the finished floor levels of the dwellings are reasonably commensurate with the existing ground level and well below the DCP Guideline of 1.5m above natural ground level at which point additional privacy measures should be implemented.

·    The front door and garage for each dwelling are orientated so as to ensure that occupants achieve reasonable privacy when entering or exiting their residence.

·    The retaining wall and proposed 1.8m Colorbond fence will visually obstruct overlooking between the proposed common boundary.

Privacy in relation to Neighbours

·    Privacy in relation to the property to the west will be achieved as follows:

-      the dwelling on the property to the west is set back more than 30m from the common boundary and is visibly screened by the existing shed and established vegetation

-      the primary living areas for Dwelling 2 are orientated to the north east and away from the property to the west.


 

·    Privacy in relation to the property to the north will be achieved as follows:

-      the existing 1.8m Colorbond fence along the northern boundary will break direct line of sight between the two properties and will have a height similar to the proposed eave height of Dwelling 2

-      proposed Dwelling 2 will be set at a lower finished ground level

-      whilst the alfresco area and glass sliding door for the living area of Dwelling 2 faces north east, these elements are well set back from the eastern boundary. Further, these do not oppose any similar elements associated with the dwelling on the neighbouring property.

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 given that the site is in an area where ambient noise levels are expected to be low due to the predominant residential land use pattern and the dwellings are detached, thus limiting the potential for sound penetration between them.

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.

In consideration of the DCP Guidelines, the applicants submit that proposal is satisfactory due to the following:

·    the proposed building design will offer reasonable opportunities for surveillance. The dwellings will have a front door and living room windows that address their respective street frontage, thereby providing effective passive surveillance from the dwelling to public areas

·    the site has reasonable access control. The lock-up garages with internal access will enhance security. The private open space areas will be fenced so as to provide a physical barrier for intruders

·    the proposed landscaping limits the opportunity for potential offenders to conceal themselves.

It is agreed that the planning outcomes for safety have been adequately addressed.


 

Public Transport

The DCP sets the following Planning Outcomes in regard to Public Transport:

·    Residential unit development is accessible to public transport.

The proposal is considered to be satisfactory in this regard. The subject land is located within an establishing urban residential area that is to be serviced by public bus routes.

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 proposal is considered to be satisfactory in this regard, due to the following:

·    a reverse exit will be required for each dwelling as is the case for the majority of new estate residential development throughout this City

·    the driveways will be located a sufficient distance from the intersection to avoid vehicle conflicts.

Car Parking

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

·    Parking facilities are provided, designed and located to:

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

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

·    Car parking is provided with regard to the:

-    number and size of proposed dwellings

-    requirements of people with limited mobility or disabilities.

The proposal meets the DCP requirements. According to the car parking table in the DCP, 3.4 (4) spaces will be required for the dual occupancy (based on 1.5 spaces per 3-bedroom dwelling and 0.2 visitor spaces per unit).

As indicated in the site plan, eight (8) off-street car spaces will be provided for the development, comprising a double garage and two (2) tandem spaces for each proposed dwelling.

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 DCP Guidelines require open space to:

·    be provided at a rate of at least 50% of the gross floor space of each dwelling

·    have a minimum dimension of 3m

·    include at least one area with minimum dimensions of 5m x 5m directly accessible to a living area preferably orientated to the north or east of the dwelling

·    be adjacent to dwellings and located behind the primary front wall of the dwelling

·    be allocated to individual dwellings where practicable to minimise the need for management and maintenance of communal open space.

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

Living Area (ex. garage, porches, patios etc.)

(m2)

Private Open Space Required by DCP

(m2)

Private Open Space Provided

(m2)

1

147.5m2

73.75m2

102.68m2

2

132.01m2

66.01m2

112.68m2

The site plan confirms that the private open space for each dwelling will have a minimum dimension of 3m and each yard will be able to provide an area of 5m x 5m.

As previously outlined, the solar access to each area of private open space on the winter solstice is considered satisfactory.

The internal living area for each dwelling will connect to its respective area of private open space via glass sliding doors and an alfresco area. Each private open space area will be enclosed by fencing.

The private open space for each dwelling will be located behind the primary front wall.

Open Space and Landscaping

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

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

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

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

-    allow cost effective management.


 

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

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

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

In consideration of the DCP Guidelines, the proposal is considered to be unsatisfactory due to specific species not being identified, and thus not being able to identify whether the species are suitable to the Orange area, if plantings are of appropriate foliage and of intermediate and taller height to maximise screening and aesthetic appeal. As such, a condition has been attached requiring the submission of a competent landscaping plan.

Stormwater

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

·    Onsite drainage systems are designed to consider:

-    downstream capacity and need for onsite retention, detention and re-use

-    scope for onsite 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.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory due to the following:

·    the submitted landscape plan provides for garden beds and lawn areas which will assist with onsite infiltration

·    preliminary engineering investigations indicate that easements to drain water over adjoining land will not be required

·    stormwater from the development will be directed to existing drainage infrastructure.

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.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory due to the following:

·    an erosion and sediment control plan will be prepared as part of the engineering design plans for the development.


 

DEVELOPMENT CONTRIBUTIONS PLAN 2017

Development contributions are applicable to the proposed dual occupancy (one additional dwelling), pursuant to Orange Development Contributions Plan 2017 (Remainder of LGA), as follows:

Open Space and Recreation

1 additional 3 bed dwelling @ 3,982.01

3,982.01

Community and Cultural

1 additional 3 bed dwelling @ 1,154.78

1,154.78

Roads and Traffic Management

1 additional 3 bed dwelling @5,256.12-

5,256.12

Local Area Facilities

-

-

Plan Preparation and Administration

1 additional 3 bed dwelling @ 311.79

311.79

TOTAL:

 

$10,704.70

A condition is recommended requiring payment of contributions prior to issue of a Construction Certificate for the proposed dual occupancy.

Section 64 Water and Sewer Headworks Charges

Section 64 water and sewer headwork charges are applicable to the proposed development. The contributions for water, sewer and drainage works are based on one additional ET for water supply headworks and one additional ET for sewerage headworks. Conditions are recommended requiring payment of contributions prior to issue of a construction certificate.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

A BASIX Certificate has been submitted in support of the proposed development which demonstrates compliance with respect of water, thermal comfort and energy targets.

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

Visual Impacts

The visual impacts of the proposal are considered acceptable, as outlined in the foregoing sections of this report. The proposed dual occupancy will complement the developing neighbourhood character and streetscape built form in respect of building design, external finishes, height and site layout.


 

Traffic Impacts

The proposal is considered to be satisfactory in terms of traffic impacts. The capacity of the local road network is sufficient to accommodate additional localised traffic generated by the development. The proposed access, parking and manoeuvring arrangements for the development are appropriate.

Cumulative Impacts

The proposal is considered to be satisfactory in terms of cumulative impact. The proposed dwellings will complement the neighbourhood built form in respect of bulk, form, design features and external finishes. The proposed development will not reduce the open space, solar access or privacy afforded to future dwellings. 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. The development will contribute to the diversity of housing forms in the precinct in a manner that is consistent with the developing neighbourhood character.

Environmental Impacts

The subject land is contained within a developing residential precinct and comprises vacant, cleared land. Significant vegetation, threatened species or ecological endangered communities or their habitats are unlikely to be present. The site is not in proximity to any waterway, drinking water catchment or sensitive area. Sediment control measures, as required by conditions, will prevent loose dirt and sediment escaping the site and polluting downstream waterways.

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

The subject land is suitable for the development due to the following:

·    the land is zoned R1 General Residential. The proposal is permitted with consent

·    the site is of sufficient area and dimensions to accommodate the proposed dual occupancy and provide a high standard of residential amenity

·    the site has direct frontage and access to Scarborough Street and Miriam Drive

·    there is no known contamination on the land

·    all utility services are available and adequate

·    the site is not subject to natural hazards

·    the subject land has no biodiversity or habitat value

·    the site is not in proximity to any waterway, drinking water catchment or sensitive area.

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 DCP. The application was advertised 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, guidelines etc that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development is mostly compliant 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          Plans, D19/63653

2          Notice of Approval, D19/63999

 


Planning and Development Committee                                                                      7 November 2019

Attachment 1      Plans

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Planning and Development Committee                                                      7 November 2019

Attachment 2      Notice of Approval

 

ORANGE CITY COUNCIL

 

Development Application No DA 258/2019(1)

 

NA19/                                                                      Container PR27891

 

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

 

Development Application

 

  Applicant Name:

Mr G Thornberry

  Applicant Address:

C/- Peter Basha Planning and Development

PO Box 1827

ORANGE  NSW  2800

  Owner’s Name:

Mr GJ Thornberry

  Land to Be Developed:

Lot 129 DP 1237871 - 1 Scarborough Street, Orange

  Proposed Development:

Dual Occupancy and Subdivision (two lot residential)

 

 

Building Code of Australia

 building classification:

 

Class to be determined by the PC

 

 

Determination made under

  Section 4.16

 

  Made On:

7 November 2019

  Determination:

CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

 

 

Consent to Operate From:

8 November 2019

Consent to Lapse On:

8 November 2024

 

Terms of Approval

 

The reasons for the imposition of conditions are:

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

(2)      To maintain neighbourhood amenity and character.

(3)      To ensure compliance with relevant statutory requirements.

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

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

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

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

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

 

 

 

 

Conditions

 

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

 

(a)      Plans numbered: Peter Basha Planning and Development 19052DA Figure 3;

Sam Morgan Designs dated 20.6.2019 Pages 1/14, 2/14, 3/14, 4/14, 5/16, 6/14 (7 sheets)

BASIX Certificate 1032094M


 

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

 

as amended in accordance with any conditions of this consent.

 

 

PRESCRIBED CONDITIONS

 

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

 

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

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

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

(c)      stating that unauthorised entry to the site is prohibited.

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

 

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

 

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

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

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

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

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

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

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

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

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.


DUAL OCCUPANCY

 

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

 

(7)      A detailed landscaping plan shall be submitted to and approved by Council’s Manager Development Assessments prior to the issue of a Construction Certificate.  The landscape plan shall identify species suitable to the Orange climate, height and spread at maturity, and of appropriate foliage and intermediate and taller height to maximise screening and aesthetic appeal.

 

(8)      The payment of $10,704.70 is to be made to Council in accordance with section 94 of the Act and the Orange Development Contributions Plan 2017 (Remainder of LGA) towards the provision of the following public facilities:

Open Space and Recreation

1 additional 3 bed dwelling @  3,982.01

3,982.01

Community and Cultural

1 additional 3 bed dwelling @  1,154.78

1,154.78

Roads and Traffic Management

1 additional 3 bed dwelling @  5,256.12

5,256.12

Local Area Facilities

-

-

Plan Preparation and Administration

1 additional 3 bed dwelling @  311.79

311.79

TOTAL:

 

$10,704.70

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2017 (Remainder of LGA). This Plan can be inspected at the Orange Civic Centre, Byng Street, Orange.

 

(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)    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.

 

(11)    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.

 

(12)    Dwelling 2 is to be provided with interlot stormwater drainage including a grated concrete stormwater pit. 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.

 

(13)    A 150mm-diameter sewer main is to be constructed from Council’s existing main to serve dwelling 2. Prior to a Construction Certificate being issued engineering plans for this sewerage system are to be submitted to and approved by Orange City Council.

 

(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 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 Construction Certificate.

 

(15)    A Road Opening Permit in accordance with Section 138 of the Roads Act 1993 must be approved by Council prior to a Construction Certificate being issued or any intrusive works being carried out within the public road or footpath reserve. 


 

PRIOR TO WORKS COMMENCING

 

(16)    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 1.8m in height shall be erected prior to any building or construction work being carried out upon this development.

 

(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)    A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority.

 

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

 

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

 

(24)    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.

 

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

 

(26)    A heavy-duty concrete kerb and gutter layback and footpath crossing shall be constructed for each dwelling. The location and construction of the laybacks and footpath crossings are to be as required by the Orange City Council Development and Subdivision Code and Road Opening Permit.

 

(27)    Water and sewerage reticulation is to be provided to both dwellings in accordance with the Orange City Council Development and Subdivision Code.


 

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

 

(28)    A 1.8m high fence shall be provided around the perimeter of the development excluding the frontages. A 1.8m 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.

 

(29)    Landscaping shall be installed in accordance with the approved plans prior to the issue of the Occupation Certificate and shall be permanently maintained. 

 

(30)    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.

 

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

 

(32)    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.

 

(33)    A Road Opening Permit Certificate of Compliance is to be issued for the works by Council prior to any Occupation/Final Certificate being issued for the development.

 

(34)    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.

 

 

TWO LOT SUBDIVISION

 

DURING CONSTRUCTION/SITEWORKS

 

(35)    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

 

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

 

(37)    Application shall be made for a Subdivision Certificate under Section 6.3(1)(d) of the Act.

 

(38)    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.

 

(39)    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.


 

(40)    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.

 

(41)    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.

 

(42)    Where stormwater crosses land outside the lot it favours, an easement to drain water is to be created over the works. A Restriction-as-to-User under section 88B of the NSW Conveyancing Act 1979 is to be created on the title of the burdened Lot 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.

 

(43)    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.

 

(44)    All engineering conditions of this development consent relating to the servicing of each dwelling are to be completed prior to the issuing of a Subdivision Certificate.

 

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

 

 

 

Other Approvals

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

          Nil

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

          Nil

 

 

Right of Appeal

If you are dissatisfied with this decision, Section 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:

 

8 November 2019

 


Planning and Development Committee                                            7 November 2019

2.7     Development Application DA 310/2019(1) - 21 Scarborough Street

RECORD NUMBER:       2019/2319

AUTHOR:                       Kelly Walker, Senior Planner    

 

 

EXECUTIVE Summary

Application lodged

13 September 2019

Applicant/s

Hibbards Pty Ltd

Owner/s

Enterprise Four Pty Ltd

Land description

Lot 119 DP 1237871 - 21 Scarborough Street, Orange

Proposed land use

Dual Occupancy (attached) and Subdivision (two lot residential)

Value of proposed development

$385,000

Council's consent is sought for an attached dual occupancy and two lot subdivision at 21 Scarborough Street, Orange, described as Lot 119 DP 1237871 (see Figure 1).

Figure 1 - locality plan

The proposal comprises:

·    Stage 1 - construction of two single storey attached dwellings on the subject land

·    Stage 2 - subdivision of the land to create two residential Torrens lots.

The attached dual occupancy will comprise one three (3)-bedroom dwelling and one four (4) bedroom, constructed of select face brick, cement cladding, metal roofing, and panel lift single garage doors. Proposed Dwelling 2 has a porch and front door fronting Scarborough Street, while proposed Dwelling 1 has a porch and front door on the side elevation. Both dwellings compromise an attached single garage, fronting the street.

The proposed subdivision relies on a variation to the Orange Local Environmental Plan 2011 (LEP) Minimum Lot Size of 500m2 which applies to the subject land. A formal request to vary this development standard pursuant to Clause 4.6 of Orange LEP is provided.


 

A Section 4.15 evaluation of the application has been undertaken. Overall, despite some departures from the planning guidelines of the DCP, the departures are not considered to be adverse enough to warrant refusal of the application, particularly having regard to the fact that the proposal is almost identical to other developments in the vicinity. As such, approval of the application is recommended.

DECISION FRAMEWORK

Development in Orange is governed by two key documents Orange Local Environment Plan 2011 (LEP) and Orange Development Control Plan 2004 (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 application relates to a dual occupancy.  The design of the building is somewhat basic and the subdivision would result in result in the allotments being smaller than the minimum lot size.  Notwithstanding this, the building presents to street with the look of a single dwelling.  Apart from the minimum allotment size departure, the development provides reasonable north facing open space and would not adversely impact on the adjoining neighbours.  Therefore the recommendation of approval is supported.

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 310/2019(1) for Dual Occupancy (attached) and Subdivision (two lot residential) at Lot 119 DP 1237871 - 21 Scarborough 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 involves development in two stages as follows:

Stage 1 - Proposed Attached Dual Occupancy

It is proposed to construct two (2) single storey attached dwellings on the subject land. Proposed Dwelling 1 will comprise three (3) bedrooms, two (2) bathrooms, open plan kitchen/family room, living room, laundry, alfresco area, and attached single garage. Proposed Dwelling 2 will comprise four (4) bedrooms, two (2) bathrooms, open plan kitchen/family room, living room, laundry, alfresco area and attached single garage.

The external finishes of the proposed dwellings will comprise:

·    face brick walls with cement cladding features

·    metal roof sheeting with skylights

·    powder coated aluminium-framed windows

·    panel lift garage doors.

As shown in the Site Plan (see Figure 2), proposed Dwelling 2 has a porch and front door fronting Scarborough Street, while proposed Dwelling 1 has a porch and front door on the side elevation. It is proposed to landscape the site, and areas for lawn will be established. A central concrete driveway will be constructed to the garages, as well as a path to the side porch (Dwelling 1). New 1.8m high Colorbond fencing will be established between the proposed rear areas of private open space, as well as retaining walls along part of the northern boundary.


 

 

Figure 2 - site plan (from submitted drawings by Peter Basha Planning and Development)

Stage 2 - Proposed Subdivision

It is proposed to subdivide the subject land to create two (2) urban residential lots as follows:

Proposed Lot

Area (m2)

1

395.1m2

2

446.6m2

Total

841.7m2

Proposed Lot 1 will comprise proposed Dwelling 2 with vehicular access via Scarborough Street. Proposed Lot 2 will comprise proposed Dwelling 1, also with vehicular access from Scarborough Street.

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 (BC Act) and Part 7A of the Fisheries Management Act 1994 have effect in connection with terrestrial and aquatic environments.

There are four triggers known to insert a development into the Biodiversity Offset Scheme (ie the need for a BDAR to be submitted with a DA):

·    Trigger 1: development occurs in land mapped on the Biodiversity Values Map (OEH) (clause 7.1 of BC Regulation 2017);

·    Trigger 2: development involves clearing/disturbance of native vegetation above a certain area threshold (clauses 7.1 and 7.2 of BC Regulation 2017); or

·    Trigger 3: development is otherwise likely to significantly affect threatened species (clauses 7.2 and 7.3 of BC Act 2016).


 

The fourth trigger (development proposed to occur in an Area of Outstanding Biodiversity Value (clause 7.2 of BC Act 2016) is generally not applicable to the Orange LGA; as no such areas are known to occur in the LGA. No further comments will be made against the fourth trigger.

Trigger 1

The subject site is not mapped on the Biodiversity Values Map.

Trigger 2

The proposed development does not involve the clearing of native vegetation in excess of the thresholds for the existing or proposed lot sizes, as set out in Clause 7.2 of the Biodiversity Conservation Regulation 2017.

Trigger 3

With regard to the third trigger, the test for determining whether proposed development is otherwise likely to significantly affect threatened species is listed in the BC Act 2016, under s7.3:

(a)     in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b)     in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity:

(i)      is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii)     is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(c)     in relation to the habitat of a threatened species or ecological community:

(i)      the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and

(ii)     whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and

(iii)    the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,

(d)     whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),

(e)     whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.

The subject site is a vacant lot which has been previously cleared to facilitate the subdivision of the area and provide services for future dwellings.


 

The subject site is covered in grass not known to be native, and a site visit carried out did not discover any likely habitats. Although further subdivision of land is considered to be a key threatening process, there are no known endangered or threatened species or ecological communities on the land, nor is it likely to contain any habitat for such species or communities. It is considered that a Biodiversity Development Assessment Report (BDAR) is not required to be submitted with this application.

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,

The application is considered to be consistent with the above objectives, 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

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

Land Zoning Map:

Land zoned R1 General Residential

Lot Size Map:

Minimum Lot Size 500m2

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:

Groundwater 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 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.

An easement to drain sewer burdens the lot along the eastern boundary, and the proposed building footprint is located clear of the easement.

An 88B instrument exists for the subject property, with a number of restrictions regarding building materials, fence heights and materials, and the like. Furthermore, the 88B identifies Lot 119 for dual occupancy development, and permits further subdivision of this lot. However, it is acknowledged that Clause 1.9A of the LEP has the power to override the subject covenant.

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

Part 2 - Permitted or Prohibited Development

Clause 2.1 - Land Use Zones

The subject site is located within the R1 General Residential zone. The proposed development is defined as “dual occupancy (attached)” and “subdivision of land.”

Pursuant to the LEP Dictionary:

Dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other, but does not include a secondary dwelling.

[Note. Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.]

Pursuant to Section 6.2 of the Environmental Planning and Assessment Act 1979:

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 of disposition.

Dual occupancy is a permitted land use in the R1 zone. Subdivision is permitted with consent pursuant to Clause 2.6 (see below).


 

Clause 2.3 - Zone Objectives and Land Use Table

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 proposal is consistent with the zone objectives as follows:

·    The proposal would have a positive effect on the housing needs of the community by creating additional residential accommodation.

·    The proposal contributes to the variety of housing types and densities.

·    The subject land is within an establishing residential area that is serviced by public bus routes and footpath along Leeds Parade.

·    The site does not have frontage or access to the Southern Link Road.

Clause 2.6 - Subdivision - Consent Requirements

Clause 2.6 is applicable and states:

(1)     Land to which this plan applies may be subdivided, but only with development consent.

Consent is sought for a two lot Torrens subdivision of the proposed dual occupancy in accordance with this clause.

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

LEP Clause 4.1 sets out minimum subdivision lot sizes, which relevantly states:

(1)   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.

(2)   This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3)   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 in relation to that land.

(4)   This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme.

In relation to this site, the map nominates a minimum lot size (‘MLS’) of 500m². The proposed lots have site areas of 395.1and 446.6. The proposed lots do not satisfy the MLS. The applicant has requested a variation to this standard, to LEP Clause 4.6 Exceptions to Development Standards, which is addressed below.

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

Clause 4.1B applies and states in part:

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

Column 1                       Column 2                       Column 3

Dual occupancy            Zone R1                         800m2

The proposed dual occupancy is situated on land zoned R1 General Residential. The subject land comprises a site area of 841.7m2, and thus exceeds the minimum area of 800m2 required for a dual occupancy. The proposal is consistent with this clause.

Clause 4.6 - Exceptions to Development Standards

This clause is applicable as the proposed subdivision is less than the required minimum lot size of 500m2 pursuant to Clause 4.1 of the LEP. The proposed lots have site areas of 395.1m² and 446.64m², representing a variation of 20.98% and 10.68% respectively.

It is noted that the total area of the subject property complies with Clause 4.1B addressing the minimum lot sizes for dual occupancies. The subject land comprises a site area of 841.7m2, and thus exceeds the minimum area of 800m2 required for a dual occupancy within the zone.

Clause 4.6 sets out the following objectives:

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

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


 

At its core, a Clause 4.6 variation may be supported where it can be shown that the objectives of the standard are unreasonable and/or unnecessary to apply in this particular case, and where it can be shown that the objectives of both the Plan and the Clause to be varied are achieved notwithstanding the non-compliance with the numerical value of the standard.

The Clause 4.6 variation submitted with the application generally achieves the outcomes and procedures outlined in the NSW Department of Planning’s guideline; and the principles established by the Courts. The main basis for justification advanced in the submission is that the proposed dual occupancy is entirely compatible with the expected residential land use pattern in this area.

Matters to be addressed in an application

Variation of a development standard may be justified where it is consistent with the objectives that the relevant environmental planning instrument is attempting to achieve.

The application must address:

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

and

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

The applicant has argued that the minimum lot size is unnecessary and unreasonable in this instance for the reasons below:

·    A clear aim of Clause 4.6 is for flexibility in the application of a planning control where it can be demonstrated that strict compliance is unreasonable and unnecessary. This proposal relies on such flexibility to have the development approved at the lot sizes proposed in the DA.

·    The subject land satisfies the minimum lot size to permit a dual occupancy pursuant to Clause 4.1B of Orange LEP 2011.

·    As indicated in the Statement of Environmental Effects, the proposed dual occupancy satisfies the relevant Planning Outcomes for dual occupancy development pursuant to Orange DCP 2004 – 07 Development in Residential Areas.

·    The subdivision of each dwelling onto a separate lot is a reasonable planning outcome and expectation for a dual occupancy development that is demonstrated to satisfy the relevant LEP and DCP provisions.

·    Subdivision of the proposed dual occupancy can actually occur via Clause 4.1(4) of Orange LEP 2011 either as strata subdivision or as community title subdivision because these forms of subdivision are not subject to a MLS.

·    However, the proposed subdivision layout, comprising regular lots each with direct street frontage and access is not conducive to strata or community subdivision.

It should be noted that the 88B instrument applying to the land identifies the site for dual occupancy development, and subdivision of such. This was identified at the time of the overarching subdivision of the land.


 

The applicant goes on to state that there are sufficient environmental planning grounds cited to support the variation as follows:

·    A variation of the development standard is justified in this case because it can be demonstrated that the proposal satisfies the objectives of the R1 General Residential Zone and the objectives of the MLS.

·    The proposed lots are demonstrated to accommodate each dwelling in a dual occupancy development that is entirely compliant with the relevant LEP and DCP provisions.

·    As mentioned previously, Clause 4.1(4) of the LEP would actually permit the subdivision either as a community title or strata subdivision. However, it is considered that a subdivision of the land as proposed by this application is more appropriate given that each lot has direct road frontage and does not rely on common or shared elements that typify community or strata schemes.

·    As indicated throughout the SoEE, the proposed dual occupancy is entirely compatible with the expected residential land use pattern in this area. A variation of the MLS to allow each proposed dwelling to be excised on a conventional allotment (as opposed to a strata or community lot) does not diminish this aspect of the development.

·    The Statement of Environmental Effects demonstrates that non-compliance with the MLS development standard does not generate unacceptable impacts in the locality.

The Five Part Test

Written applications to vary development standards should also address matters set out in the ‘five part test’ established by the NSW Land and Environment Court. The five part test embodies the following:

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

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

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

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

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

The applicant states that the proposal, including the proposed variation to the MLS, would uphold the objectives of the MLS standard for the following reasons:

The proposal, including the proposed variation to the MLS would uphold the objectives of the development standard due to the following.


 

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

     The proposed lots may not necessarily reflect the majority of existing lot sizes in this precinct. However, once the dual occupancy is completed, the two dwellings will become part of the development pattern. The creation of proposed Lots 1 and 2 to excise each of these dwellings would indeed reflect this element of the development pattern.

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

     The proposed variation of the MLS remains consistent with this objective. Each lot is intended to excise the proposed dwellings in a dual occupancy development, both of which are demonstrated to satisfy the relevant LEP and DCP provisions. The proposed lots logically recognise each proposed dwelling and its associated private open space, access, and servicing requirements.

(c)  To ensure that lot sizes do not undermine the land’s capability to support rural development

This objective is not relevant as the subject land is not within a rural zone.

(d) To prevent the fragmentation of rural lands,

This objective is not relevant as the subject land is not within a rural zone.

(e)  To provide for a range of lot sizes reflecting the ability of services available to the area

The proposed subdivision is consistent with this objective as the servicing arrangements for each of the proposed lots are readily available

(f)  To encourage subdivision designs that promote a high level of pedestrian and cyclist connectivity and accommodate public transport vehicles

     There are no aspects of the proposed MLS variation that would be adverse to this objective.

The applicant makes the following additional comments in regards to the five part test and the requirements of Clause 4.6:

·    Strict compliance with the 500m2 MLS would not necessarily defeat or thwart the underlying objective or purpose of the development standard. However, the proposal is considered to be consistent with the objectives of the development standard.

·    The development standard cannot be said to be abandoned. However, the Leeds Parade Conceptual Subdivision Layout appears to depict several lots that are less than 500m2. Further the development standard becomes irrelevant if the subdivision was to be undertaken as strata or community title.

·    The zoning of the land is reasonable and appropriate for the site.

·    The proposal including the proposed variation of the MLS remains consistent with the objectives of the R1 General Residential Zone.


 

·    The contravention of the development standard does not raise an issue of State or regional planning significance as it relates to local and contextual conditions.

·    Public benefit would not suffer as a result of the variation to the development standard. The public would benefit from an increase in the choice of residential accommodation.

·    The creation of proposed Lots 1 and 2 would not compromise the broader aims and principles of Orange LEP 2011; or the relevant Planning Outcomes of Orange DCP 2004 – 07 Development in Residential Areas.

Concurrence

The Planning Circular sets out the circumstances and criteria for applying Council’s assumed concurrence to the determination of development standards under Clause 4.6. The Secretary’s concurrence does not extend to a delegate of the Council if the development contravenes a numerical standard by greater than 10%, and the variation must be considered by Council, and subject to a “greater level of public scrutiny” than decisions made by Council staff under delegation. In this instance the variation sought is 10.68% and 20.98% respectively and therefore must be determined by Council.

Summary

The LEP MLS requirement is an assessment tool aimed at achieving good design outcomes, making efficient use of land, and ensuring that neighbourhood character and amenity is not compromised. The subject land allows for dual occupancies pursuant to the LEP, and the fact that the proposal seeks to excise the dwellings via subdivision would be largely indiscernible in terms of impact and public perception of the development. Staff generally concur with the applicant, in that if the development strictly complies with the development standard (i.e. remains a dual occupancy on one lot), it is unlikely to result in better planning outcomes. Furthermore, the MLS does not apply to Community or Strata subdivisions, and as such, subdivision could occur in a different arrangement than the proposed Torrens title, however the site layout does not lend itself to these other types of subdivision.

Council may grant consent only if the concurrence of the Director General of the Department of Planning has been obtained (i.e. is assumed, as discussed above) and Council is satisfied that:

·    the written request has adequately addressed the above, and

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

-      consistency with the objectives of the particular standard, and

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

It is considered that the written request adequately addresses the variation criteria of the clause, the Department of Planning guidelines, and the principles and test established by the Courts. In particular the proposed development is not contrary to any of the objectives for the zone or the MLS Clause; and can achieve all of the relevant DCP planning outcomes (addressed later in this report).


 

Overall, it is considered that the proposed variation is unlikely to result in any significant adverse impact on the operation of the LEP or the DCP, and that the proposed development is generally consistent with all relevant objectives and would not result in any significant adverse impacts on the neighbourhood, land or environment.

Part 5 - Miscellaneous Provisions

Not relevant to the subject land or application.

Part 6 - Urban Release Area

The subject land is contained within an Urban Release Area on the Urban Release Area Map. The provisions in Part 6 of the LEP generally relate to servicing of the land in conjunction with subdivision. The development site was a lot created pursuant to DA 431/2012 (amended) for proposed ‘88 lot residential subdivision’, approved 26 March 2013. The subdivision is reflective of the Leeds Parade DCP/Masterplan for the parent parcel and adjoining lands. Part 6 has no effect for the proposed dual occupancy on a child parcel in the original subdivision.

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 acceptable. Minor earthworks will be required to create level building pads for the proposed dwellings, driveways, and associated outdoor spaces. The earthworks will be supported onsite and the change in ground level is not substantial.

Disruption to drainage is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways. The site is not known to be contaminated, nor is the site known to contain any Aboriginal, European or archaeological relics. The site is not in proximity to any waterway, drinking water catchment or sensitive area. Conditions are recommended that require sediment control measures to be implemented onsite prior to works commencing to ensure that loose dirt and sediment does 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

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

The proposed development will be connected to the existing stormwater mains in accordance with Council’s standard requirements. Conditions are recommended in relation to stormwater management to satisfy the requirements of Clause 7.3.

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.

In consideration of Clause 7.6, the proposal is acceptable. The proposed development does not involve processes or activities that would impact on groundwater resources. The subject land is serviced by reticulated sewer.

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 onsite 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 (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

(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 terms of potential soil contamination, a contamination assessment was undertaken as part of the subdivision requirements that applied in relation to the creation of the subject land (DA 431/2012 amended). Since its creation as a residential allotment, the subject land has remained vacant. On this basis, Council will not require further assessment in regard to potential site contamination.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

From 31 January to13 April 2018 the Department of Planning and Environment publically exhibited an Explanation of Intended Effect (EIE) and Draft Planning Guidelines for the proposed Remediation of Land SEPP, which will repeal and replace State Environmental Planning Policy 55 – Remediation of Land (SEPP 55). Of particular note, the Draft Planning Guidelines state:

“In undertaking an initial evaluation, a planning authority should consider whether there is any known or potential contamination on nearby or neighbouring properties, or in nearby groundwater, and whether that contamination needs to be considered in the assessment and decision making process.”

“If the planning authority knows that contamination of nearby land is present but has not yet been investigated, it may require further information from the applicant to demonstrate that the contamination on nearby land will not adversely affect the subject land having regard to the proposed use.” (Proposed Remediation of Lands SEPP - Draft Planning Guidelines, Page 10).


 

The land to the north of the subject site has been flagged as being previously used for a potentially contaminating activity (former agricultural land). A planning proposal sought to rezone the subject and surrounding land, comprising a number of different zones, including business, business park, tourist, residential, and recreational. It is considered that the previous contamination reporting carried out for the initial subdivision of the subject land (DA 431/2012 amended) is sufficient to determine if that it is suitable for its intended residential use.

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.

DCP 2004-7.1 Urban Residential Subdivision

The DCP sets the following applicable Planning Outcomes for Urban Residential Subdivision:

·    Lots are orientated to optimise energy-efficiency principles.

·    Lots below 500m² indicate a mandatory side setback to provide for solar access and privacy.

·    Lots are fully serviced and have direct frontage and access to a public road.

·    Design and construction complies with the Orange Development and Subdivision Code.

This proposal satisfies the above Planning Outcomes due to the following:

·    Proposed Lots 1 and 2 depict the boundary setbacks and the proposed dwelling in each lot. As demonstrated in this report, the proposed lots will be of sufficient area to provide a satisfactory standard of residential amenity to the proposed dwellings in respect of solar access, energy efficiency, and privacy.

·    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 are available to the development in accordance with the requirements of the relevant supply authority.

·    The subdivision design and construction can comply with the Orange Development and Subdivision Code, and conditions of consent are recommended to this effect.


 

DCP 2004-7.7 Design Elements for Residential Development

The DCP sets the following relevant Planning Outcomes at Part 7.7:

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 site layout and building design is intended to create an attractive residential environment. The neighbourhood character in this release area is expected to comprise mostly contemporary, detached, single storey dwellings with attached garages and landscaped front yards. Although the proposal seeks an attached dual occupancy rather than detached dwellings, the proposed development displays similar attributes and will be consistent with the expected character of the neighbourhood. The proposed development is not influenced or constrained by important views, vegetation or landmarks. The development has been designed to provide internal living areas and private open space areas to the north with adequate solar access.

The proposed dwellings adopt a building form and finish that is considered typical of residential development in the City’s newer northern residential areas. In particular, the proposed dwellings comprise the following elements to remain consistent with the expected development form as follows:

-     attached configuration designed to look like one large dwelling

-     hipped roof lines

-     face brick external walls with cement cladding on front and side facades

-     front door of proposed Dwelling 2 facing the street, and porch to proposed Dwelling 1 facing the street

-     both garage doors facing the street

-     bulk and sale commensurate with other dwellings

-     landscaped front yards

-     double width driveway separated into two by way of landscaping.

Notwithstanding the comments above, it is considered that the proposed landscaping, comprising three small landscape beds, will not adequately soften the building and driveway areas into the streetscape. The design and appearance of the dwellings (discussed in greater detail below) are not adequate in their own right to ensure an attractive streetscape. It is expected that at least one tree is planted in the front garden area for each of the dwellings, and greater detail is provided in terms of species, pot sizes, etc. to ensure sufficient neighbourhood character and an attractive residential streetscape is achieved. A condition of consent is recommended that a revised landscaping scheme is provided to Council for further assessment prior to the construction stage of the development.


 

Notwithstanding the modest increase in traffic movements (due to one additional dwelling), the proposal will not adversely impact on pedestrian access associated with the streetscape, as pedestrian movements are expected to be modest in this neighbourhood, reverse egress arrangements for the proposed dwellings will be consistent with those for single dwellings in this neighbourhood and throughout the City generally, and adequate driver and pedestrian sight lines will be achieved so that vehicles entering and exiting the site are visible to pedestrians and vice versa.

Overall, subject to improved landscaping, the proposal is capable of achieving the neighbourhood character planning outcomes.

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.

As discussed above, the scale and siting of the proposed attached dwellings are generally consistent with the desired neighbourhood character. It appears that the design has attempted to make the proposed development look like a single dwelling to be consistent with the surrounding land, however, poor choice of detailing, materials, fenestrations, landscaping, and garage door positioning results in a building appearance that is below average. Rather than require redesign of the dwellings to make for a more attractive site and streetscape, improved landscaping could be used to soften the dwellings into the setting, particularly the wide driveway and spaced garage doors, which are both fairly dominant in their current form.

Only proposed Dwelling 2 will directly address the street with a contemporary façade comprising a living room window, front entry door, and porch. Proposed Dwelling 1 only has its garage directly facing the street, where the front door and living room window are to the side elevation (east). In an attempt to address this planning outcome, a porch has been located over the side door to demonstrate where the entry is when looking from the frontage, as well as house numbering on the front elevation of the building. Whilst this arrangement is less than desirable it is considered reasonable in this case given the circumstances and constraints of the site. Both garages are set back a minimum of 5.5m from the street boundary as encouraged by the DCP.

Overall, subject to improved landscaping, the building appearance of the proposed development could be accepted in this form.

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.

As required by the DCP, the front boundary setback for each of the proposed dwellings will be a minimum of 4.5m, and garages a minimum of 5.5m. It is noted that the front porch of proposed Dwelling 2 is set forward of this setback requirement, being only 3.9m from the front boundary. There appears no impediment to require the setback to be 4.5m in this case as the proposed open space area of each unit will maintain sufficient dimension to comply with the DCP. It is recommended that Council attaches a condition of consent requiring the building to have a minimum setback of 4.5m.

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.

No front fences or walls are proposed. The frontage of the site will be limited to landscaping, driveways, paths, and mail boxes, which is acceptable, subject to improved landscaping.

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).

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory due to the following:

·    The proposed dwellings are well set back from the site boundaries to ensure that they will be contained within the visual bulk envelope (VBE) generated by planes projected at 45° over the site, commencing 2.5m above existing ground level from each side and rear boundary.

·    Whilst proposed Dwelling 2 is closer to the western boundary, it will be sited in cut (at a lower ground level) and will therefore be contained within the VBE which applies to that boundary.

·    The proposed dual occupancy will comprise a total building area of 344.06m2. Based on the site area of 841.7m2 the development will have a site coverage of just under 41% to comply with the maximum of 50% prescribed in the DCP.


 

·    The slope of the land will require minor earthworks and modest retaining structures along the boundary and part of the western boundary.

·    The proposed finished floor levels of proposed Dwellings 1 and 2 relate reasonably to existing ground levels and are not expected to generate adverse impacts in respect of visual bulk, solar access, or privacy.

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.

Building to the boundary is considered unnecessary in this case. As explained later in this report, the proposed dwellings would not unreasonably reduce the amount of daylight that reaches adjoining properties or unreasonably impact upon their privacy.

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.

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 4 hours on 21 June; or not further reduced than existing where already less.

The applicant’s submitted Statement and shadow diagrams indicate that:

·    the north facing living area windows for proposed Dwelling 2 will achieve the required amount of direct sunlight on the winter solstice

·    as the north facing living room window for proposed Dwelling 1 is under the covered alfresco roof, this window will not achieve the required amount of direct sunlight on the winter solstice, and the applicant requests that this arrangement be accepted for the following reasons:

-      A 1200mm x 800mm skylight is proposed above the internal living area. The DCP does not make a distinction between windows in a wall and windows in a roof. In this case the skylight (roof window) will deliver direct sunlight to the internal living area and thus meet the general intent of the DCP Planning Outcomes pertaining to Daylight and Sunlight.


 

-      In any event, the proposed alfresco should not be discounted as a living area. In effect, it represents an extension of the internal living area to provide residents with improved residential amenity. To remove the alfresco simply to meet the numeric requirements of the DCP would diminish the amenity of the dwelling in other respects. The alfresco provides an outdoor living opportunity that will enhance residential amenity by providing shade in summer, shelter in winter, and weather protection in general.

·    As the subject land is orientated north-south, most shadow impacts on the adjoining properties to the east and west are attributed mostly to boundary fencing, and are unlikely to impact adversely on northern windows given bulk, siting, and rear setbacks are similar to neighbouring dwellings.

It is considered that the applicant’s arguments for proposed Dwelling 1 are acceptable, in that solar access would be reasonable via the proposed skylight. Furthermore, sufficient outlook can still be achieved through doors to the alfresco. Overall, the development can meet the DCP requirements in regard to maintaining reasonable solar access to dwellings.

Overshadowing of Private Open Space

According to the DCP Guidelines and Council’s Energy Smart Homes Code, sunlight is to be available to at least 40% of required open space for dwellings within the development and on neighbouring properties for at least 3 hours between 9am and 3pm.

The proposed development satisfies this aspect of the DCP as follows:

·    Overshadowing of private open space within the development itself is compliant with the DCP. As indicated in the site calculation table:

-      Dwelling 1 has a floor area of 134.39m2 (excluding garage, porch and alfresco) and thus requires a private open space area of 67.2m2. 40% of the required open space area is 26.9m2. The shadow diagrams indicate that the area of direct sunlight will range from 55.6m2 to 96.66m2 between 9.00am and 3.00pm on 21 June.

-      Dwelling 2 has a floor area of 136.03m2 (excluding garage, porch and alfresco) and thus requires a private open space area of 68.02m2. 40% of the required open space area is 27.21m2. The shadow diagrams indicate that the area of direct sunlight will range from 44.5m2 to 89.8m2 between 9.00am and 3.00pm on 21 June.

·    The shadow diagrams indicate that shadow impact on the adjoining properties to the east and west are attributed mostly to boundary fencing, where the impact on the property to the west occurs in the morning period with no impact from midday, and the impact on the property to the east occurs in the afternoon period, with impacts after midday. As such, the development would meet the DCP requirements in regard to maintaining solar access for at least 3 hours to the private open space on adjoining land.

As discussed earlier, it is recommended that the setbacks for the development be slightly increased to comply and hence will impact upon the amount of open space in sunlight Overall, the development would still meet the DCP requirements in regard to maintaining reasonable solar access to the private open space areas.


 

Energy Performance Statement

BASIX and NatHERS certificates have been prepared and submitted with the applicant. The dual occupancy will comply with the relevant provisions in respect of water, thermal, comfort and energy. Thus the proposed development is considered satisfactory in terms of Council’s Energy Efficiency Code due to the following:

·    energy efficient influences in the design include northerly orientation of living areas; slab on ground; and only necessary glazing along the southern and western sides of the dwellings

·    the appropriate star rated water saving devices will be installed

·    the hot water system for each dwelling will be of a type that achieves the star rating recommended in the BASIX certificate for each dwelling.

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.

Being single storey and with finished floor levels reasonably commensurate with existing ground level, the proposed dwellings would not unreasonably diminish views, vistas or outlook for other properties in the vicinity.

Visual Privacy

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

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

-    building siting and layout

-    location of windows and balconies

and secondly by:

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

In consideration of the DCP Guidelines, it is considered that the applicant has suitably demonstrated that the proposal is satisfactory based on the following:

Privacy within the development

·    The principal living room windows for proposed Dwellings 1 and 2 will overlook their respective private open space area and will not directly oppose each other. Furthermore, given the attached arrangement of the proposed dwellings, there will be minimal active interface between them.

·    The proposed site levels will assist to maintain privacy. Generally, the finished floor levels of the dwellings are reasonably commensurate with the existing ground level and well below the DCP Guideline of 1.5m above natural ground level at which point additional privacy measures should be implemented.


 

·    The front door and garage for each dwelling are orientated so as to ensure that occupants achieve reasonable privacy when entering or exiting their residence.

·    The proposed 1.8m high Colorbond fence will prevent overlooking of each of areas of private open space between the proposed common boundary.

Privacy in relation to neighbours

·    Privacy in relation to the property to the west will be achieved as follows:

-      the existing Colorbond 1.8m fence along the western boundary will break direct line-of-sight between the two properties

-      proposed Dwelling 2 will be set at a lower finished ground level than the finished ground level of the adjoining property to the west

-      the primary living areas for proposed Dwelling 2 are orientated to the north and south, and away from the property to the west.

·    Privacy in relation to the property to the east will be achieved as follows:

-      the existing 1.8m Colorbond fence along the eastern boundary will break direct line-of-sight between the two properties

-      proposed Dwelling 1 has a setback of 3m to the eastern boundary providing greater separation between dwellings

-      the alfresco area and glass sliding door for the living area of proposed Dwelling 1 faces north, orientated away from the neighbouring dwelling to the east and its respective private open space.

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 given that the site is in an area where ambient noise levels are expected to be low due to the predominant residential land use pattern. The proposed dwellings are attached, however will be constructed to meet the requirements of the BCA, thus limiting the potential for sound penetration between them.

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.


 

In consideration of the DCP Guidelines, the applicants submit that the proposal is satisfactory due to the following:

·    the proposed building design will offer reasonable opportunities for surveillance, the dwellings have been designed to encourage effective passive surveillance from the dwellings to public areas

·    the site has reasonable access control, the lock-up garages with internal access will enhance security, and the private open space areas will be fenced to provide a physical barrier from public areas

·    the proposed landscaping limits the opportunity for potential offenders to conceal themselves.

Council staff concur with these comments, and it is considered that the planning outcomes for security have been adequately addressed.

Public Transport

The DCP sets the following Planning Outcomes in regard to Public Transport:

·    Residential unit development is accessible to public transport.

The proposal is considered to be satisfactory in this regard. The subject land is located within an establishing urban residential area that is to be serviced by public bus routes.

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 proposal is considered to be satisfactory in this regard, due to the following:

·    a reverse exit will be required for each dwelling as is the case for the majority of new estate residential development throughout this City

·    the driveways will be located a sufficient distance from the intersection to avoid vehicle conflicts

·    Council’s Development Engineers recommend conditions of consent in regards to stormwater and driveway design.

Car Parking

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

·    Parking facilities are provided, designed and located to:

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

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

·    Car parking is provided with regard to the:

-    the number and size of proposed dwellings

-    requirements of people with limited mobility or disabilities.


 

According to the car parking table in the DCP, 3.4 (4) spaces will be required for the dual occupancy, based on 1.5 spaces per 3+ bedroom dwelling and 0.2 visitor spaces per unit.

As indicated in the site plan, four (4) off-street car spaces will be provided for the development, comprising a single garage and one (1) tandem space for each proposed dwelling. As such, the proposal meets the DCP requirements in regards to car parking.

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 (i.e. at least 50% of the gross floor space of each dwelling):

Proposed Dwelling

Living Area (excl. garage, porches, patios etc.)

Private Open Space Required by DCP

Private Open Space Provided

1

134.39m2

67.2m2

126m2

2

136.03m2

68.05m2

112m2

The site plan confirms that the private open space for each dwelling will have a minimum dimension of 3m, provides an area of 5m x 5m directly accessible from the main living areas, and located behind the primary front wall of the dwellings, and are orientated north for solar access. The proposed setbacks do no not comply with the DCP requirements. A condition of consent is attached requiring the setback to be increased. The revised setback will not adversely affect the private open space requirements. As previously outlined, the solar access to each area of private open space on the winter solstice is considered satisfactory.

Open Space and Landscaping

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

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

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

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

-    allow cost effective management.

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

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

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

In consideration of the DCP Guidelines, the proposal is considered to be unsatisfactory due to vegetation species not being identified (only a list of examples has been provided), and thus not being able to identify whether the species are suitable to the Orange area, are water efficient, if plantings are of appropriate foliage and of sufficient height to maximise screening and aesthetic appeal, etc. As discussed previously, three small garden beds are unlikely to achieve adequate landscaping or soften the development into the streetscape, and as such, it is recommended that an amended landscaping plan be submitted for further assessment prior to the construction stage of the development. As well as detailing proposed species, pot sizes, etc., the amended plan shall provide at least two trees in the font garden area, one for each dwelling.

Overall, it is considered that the proposal is capable of achieving the landscaping planning outcomes, subject to improved landscaping and further scrutiny.

Stormwater

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

·    Onsite drainage systems are designed to consider:

-    downstream capacity and need for onsite retention, detention and re-use

-    scope for onsite 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.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory due to the following:

·    an amended landscape plan can provide for suitable vegetation and lawn areas which will assist with onsite infiltration

·    stormwater from the development can be directed to existing drainage infrastructure using an interlot drainage design, and relevant conditions of consent are recommended to this effect.

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.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory as an erosion and sediment control plan will be prepared as part of the engineering design plans for the development, as required by recommended conditions of consent.

DEVELOPMENT CONTRIBUTIONS PLAN 2017

Development contributions are applicable to the proposed dual occupancy (one additional dwelling), pursuant to Orange Development Contributions Plan 2017 (Remainder of LGA), as follows:

Open Space and Recreation

1 additional lot/3-bed dwelling @ $3,982.01

3,982.01

Community and Cultural

1 additional lot/3-bed dwelling @ $1,154.78

1,154.78

Roads and Traffic Management

1 additional lot/3-bed dwelling @ $5256.12

5256.12

Local Area Facilities

-

-

Plan Preparation and Administration

1 additional lot/3-bed dwelling @ $311.79

311.79

TOTAL:

 

$10,704.70

A condition is recommended requiring payment of contributions prior to issuing of a Construction Certificate for the proposed dual occupancy.

Section 64 Water and Sewer Headworks Charges

Section 64 water and sewer headwork charges are applicable to the proposed development. The contributions for water, sewer and drainage works are based on one additional ET for water supply headworks and one additional ET for sewerage headworks. Conditions are recommended requiring payment of contributions prior to issuing of a Construction Certificate.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

Council’s Environmental Health and Building Surveyor comments that fire safety compliance can be achieved and will be assessed at Construction Certificate stage.

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 respect of water, thermal comfort, and energy targets.


 

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

Visual Impacts

As discussed in the DCP assessment section of this report, the proposed building design and landscaping are not considered adequate in their current form, and as such are likely to result in adverse visual impacts to the streetscape, neighbouring dwellings, and the overall desired neighbourhood character of the area. In particular it is considered that three small garden beds are not sufficient to soften the development into the surrounds, building detailing and fenestration is lacking, and the garage and driveway design is dominant on the streetscape. Rather than redesign the proposed development, landscaping can be improved to mitigate these adverse impacts. It is recommended that an amended landscaping plan be submitted to Council for further assessment, detailing species, pot sizes, etc. as well as include at least two (2) trees in the front garden area, one for each of the proposed dwellings. Further scrutiny of landscaping can ensure that the proposed dual occupancy will complement the developing neighbourhood character, and sufficiently mitigate these adverse visual impacts.

Traffic Impacts

The proposal is considered to be satisfactory in terms of traffic impacts. The capacity of the local road network is sufficient to accommodate additional localised traffic generated by the development. The proposed access, parking and manoeuvring arrangements for the development are appropriate.

Environmental Impacts

The subject land is contained within a developing residential precinct and comprises vacant, cleared land. Significant vegetation, threatened species or ecological endangered communities or their habitats are unlikely to be present. The site is not in proximity to any waterway, drinking water catchment, or environmentally sensitive area. Sediment control measures, as required by recommended conditions of consent, will prevent loose dirt and sediment escaping the site and polluting downstream waterways or groundwater. Thus adverse environmental impacts are unlikely.

Cumulative Impacts

Subject to improved landscaping, the proposal will be reasonably consistent with the neighbourhood built form in respect of bulk, form, and siting. The proposed development will not reduce the open space, solar access, or privacy afforded to neighbouring dwellings, and will provide a reasonable standard of residential amenity for the proposed dwellings. Although the proposal does not meet the minimum lot size requirement set out in the LEP, dual occupancies are permitted on the land, and the proposed subdivision around the attached dual occupancy is unlikely to have discernible impacts to neighbours of the public. The Clause 4.6 variation to this minimum lot size standard can be met, as set out in the LEP assessment section of this report. The development will contribute to the diversity of housing forms in the precinct in a manner that is consistent with the developing neighbourhood character. Overall, adverse cumulative impacts are considered unlikely.


 

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

The subject land is considered suitable for the development due to the following:

·    the land is zoned R1 General Residential

·    the proposed attached dual occupancy and subdivision are permitted with consent

·    the site is of sufficient area and dimensions to accommodate the proposed dual occupancy and provide a reasonable standard of residential amenity (subject to amended landscaping as discussed above)

·    the site has direct frontage and legal access to Scarborough Street

·    there is no known contamination on the land

·    all utility services are or can be made available and adequate

·    the site is not subject to natural hazards

·    the subject land has no known biodiversity or habitat value

·    the site is not in proximity to any waterway, drinking water catchment, or environmentally sensitive area.

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 DCP. The application was advertised 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, 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, D19/64455

2          Plans, D19/64486

 


Planning and Development Committee                                                      7 November 2019

Attachment 1      Notice of Approval

 

ORANGE CITY COUNCIL

 

Development Application No DA 310/2019(1)

 

NA19/                                                                      Container PR27881

 

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

 

Development Application

 

  Applicant Name:

Hibbards Pty Ltd

  Applicant Address:

C/- Peter Basha Planning and Development

PO Box 1827

ORANGE  NSW  2800

  Owner’s Name:

Enterprise Four Pty Ltd

  Land to Be Developed:

Lot 119 DP 1237871 - 21 Scarborough Street, Orange

  Proposed Development:

Dual Occupancy (attached) and Subdivision (two lot residential)

 

 

Building Code of Australia

 building classification:

 

Class to be determined by the PC

 

 

Determination made under

  Section 4.16

 

  Made On:

7 November 2019

  Determination:

CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

 

 

Consent to Operate From:

8 November 2019

Consent to Lapse On:

8 November 2024

 

Terms of Approval

The reasons for the imposition of conditions are:

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

(2)      To maintain neighbourhood amenity and character.

(3)      To ensure compliance with relevant statutory requirements.

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

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

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

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

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

 

 

 

 

Conditions

 

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

 

(a)      Plans numbered Reference 19062DA, prepared by Peter Basha Planning and Development, and dated 3.09.2019 (3 sheets); and

Job No. 10427, prepared by Hibbards, and dated 28/07/2019 (15 sheets)


 

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

 

as amended in accordance with any conditions of this consent.

 

 

PRESCRIBED CONDITIONS

 

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

 

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

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

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

(c)      stating that unauthorised entry to the site is prohibited.

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

 

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

 

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

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

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

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

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

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

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

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

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.


 

DUAL OCCUPANCY (CONSTRUCTION OF TWO DWELLINGS)

 

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

 

(7)      An amended detailed landscaping plan shall be submitted to, and approved by, Council’s Manager Development Assessments prior to the issue of a Construction Certificate. The amended landscape plan shall include at least two trees within the front garden of the site (one for each dwelling) to achieve appropriate foliage and height to maximise screening and aesthetic appeal. The Landscaping Plan shall also identify species suitable to the Orange climate, pot sizes to be planted, and height and spread at maturity for each species.

 

(8)      Amended plans shall be submitted with the application for a Construction Certificate that show a minimum setback of the proposed building to be 4.5m from the front property boundary.

(9)      Prior to the issuing of a Construction Certificate, the payment of $10,704.70 is to be made to Council in accordance with Section 7.11 of the Environmental Planning and Assessment Act 1979 and the Orange Development Contributions Plan 2017 (Remainder of LGA) towards the provision of the following public facilities:

Open Space and Recreation

1 additional lot/3 bed dwelling @  3,982.01

3,982.01

Community and Cultural

1 additional lot/3 bed dwelling @  1,154.78

1,154.78

Roads and Traffic Management

1 additional lot/3 bed dwelling @ 5,256.12

5,256.12

Local Area Facilities

-

-

Plan Preparation and Administration

1 additional lot/ 3 bed dwelling @  311.79

311.79

TOTAL:

 

$10,704.70

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2017 (Remainder of LGA). This Plan can be inspected on Council’s website or at the Orange Civic Centre, Byng Street, Orange.

 

(10)    An approval under Section 68 of the Local Government Act is to be sought from Orange City Council, as the Water and Sewer Authority, for alterations to water and sewer. No plumbing and drainage is to commence until approval is granted.

 

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

 

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

 

(13)    A 150mm-diameter sewer junction is to be constructed from Council’s existing main to serve proposed Dwelling 1. Prior to a Construction Certificate being issued engineering plans for this sewerage system are to be submitted to and approved by Orange City Council.

 

(14)    Proposed Dwelling 1 shall be provided with a grated concrete interlot stormwater pit. 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.

 

(15)    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 Construction Certificate.


 

(16)    A Road Opening Permit in accordance with Section 138 of the Roads Act 1993 must be approved by Council prior to a Construction Certificate being issued or any intrusive works being carried out within the public road or footpath reserve. 

 

 

PRIOR TO WORKS COMMENCING

 

(17)    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 1.8m in height shall be erected prior to any building or construction work being carried out upon this development. The height of the fence shall be measured from the highest finished ground level adjacent to each part of that fence.

 

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

 

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

 

(20)    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.

 

 

DURING CONSTRUCTION/SITEWORKS

 

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

 

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

 

(23)    All construction works are to be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans.

 

(24)    A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority.

 

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

 

(26)    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.

 

(27)    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.


 

(28)    A heavy-duty concrete kerb and gutter layback and footpath crossing is to be constructed in the position shown on the plan submitted with the Construction Certificate application. The works are to be carried out to the requirements of the Orange City Council Development and Subdivision Code and Road Opening Permit.

 

(29)    The existing 150mm diameter sewer mains that cross the site are to be accurately located. Where a 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.

 

(30)    A separate water service and sewer junction is to be provided to each dwelling in accordance with the Orange City Council Development and Subdivision Code.

 

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

 

 

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

 

(32)    Prior to the issuing of any Occupation Certificate, 1.8m high fence shall be provided around the perimeter of the development, excluding the frontages. A 1.8m high fence shall be provided between each of the approved dwellings in the rear garden area. The height of the fence shall be measured from the highest finished ground level adjacent to each part of that fence.

 

(33)    Prior to the issuing of any Occupation Certificate, landscaping shall be installed in accordance with the amended approved plans, and shall be permanently maintained thereafter to the satisfaction of Council’s Manager Development Assessments. 

 

(34)    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.

 

(35)    The cut and fill is to be retained and/or adequately battered and stabilised (within the allotment) prior to the issue of an Occupation Certificate.

 

(36)    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.

 

(37)    Finished ground levels are to be graded away from the buildings and adjoining properties and must achieve natural drainage. The concentrated flows are to be dispersed down slope or collected and discharged to the stormwater drainage system.

 

(38)    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.

 

(39)    A Road Opening Permit Certificate of Compliance is to be issued for the works by Council prior to any Occupation/Final Certificate being issued for the development.

 

(40)    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.

 


 

TWO LOT SUBDIVISION

 

DURING CONSTRUCTION/SITEWORKS

 

(41)    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

 

(42)    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.

 

(43)    Application shall be made for a Subdivision Certificate under Section 6.3(1)(d) of the Act.

 

(44)    Prior to the issue of a subdivision certificate evidence shall be provided of the payment of water and sewer headworks charges and s711 contributions for the dual occupancy.

 

(45)    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.

 

(46)    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.

 

(47)    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.

 

(48)    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.

 

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

 

 

 

Other Approvals

 

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

 

          Nil

 

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

 

          Nil

 

 

 


 

 

 

Right of Appeal

 

If you are dissatisfied with this decision, Section 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:

 

8 November 2019

 



Planning and Development Committee                                                                      7 November 2019

Attachment 2      Plans

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