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: