Agenda of Planning and Development Committee

Planning and Development Committee 7 November 2017

2.1 Items Approved Under the Delegated Authority of Council

TRIM REFERENCE: 2017/1641

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 “13.4 Our Environment – Monitor and enforce regulations relating to City amenity”.

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That the information provided in the report by the Manager Development Assessments on Items Approved Under the Delegated Authority of Council be acknowledged.

further considerations

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

SUPPORTING INFORMATION

Reference:	DA 501/2007(12)	Determination Date	19 September 2017
PR Number	PR27526
Applicant/s:	Coastplan Consulting
Owner/s:	Oak Tree Retirement Villages West Orange Pty Ltd
Location:	Lot 5 DP 1224367 – 109 Ploughmans Lane, Orange
Proposal:	Modification of development consent - housing for seniors or people with a disability (including a community centre and bowling green). The modification seeks to replace some unit type/mixes, as well as alterations to the internal layout of some unit types.
Value:	$12,000,000 (being the same value as the original development)

Reference:	DA 235/2011(2)	Determination Date	18 July 2017
PR Number	PR16738
Applicant/s:	Mr D and Mrs C Gordon
Owner/s:	Mr D and Mrs C Gordon
Location:	Lot 13 DP 871617 – Wallace Lane, Orange
Proposal:	Modification of development consent – dwelling, detached garage and rainwater tank. The modification seeks consent for a house of different layout and in a slightly different location to the dwelling originally approved.
Value:	$250,000 (being the same value as the original development)

Reference:	DA 377/2013(2)	Determination Date	16 October 2017
PR Number	PR27689
Applicant/s:	Mr MA Madden and Mr LW Bevan
Owner/s:	Messrs LW Bevan and MA Madden
Location:	Lot 7 DP – 271075 – 6/8B Majestic Way, Orange
Proposal:	Modification of development consent – subdivision – torrens title (three lot residential), subdivision – community title (seven lot residential and one community lot) and dwelling houses (seven). The modification proposal will change the configuration of one unit, reducing the number of bedrooms from three to two.
Value:	$1,100,000 (being the same value as the original development)

Reference:	DA 379/2014(2)	Determination Date	31 August 2017
PR Number	PR3
Applicant/s:	Taylor Made Buildings Pty Ltd
Owner/s:	Mr EJ Zell
Location:	Lot 3 DP 568571 – 23 Beasley Road, Lucknow
Proposal:	Modification of development consent - subdivision (two lot residential) and dwelling house. The modification involves the erection of a single storey dwelling of different design to that which is currently approved.
Value:	$150,000 (being the same value as the original development)

Reference:	DA 401/2015(2)	Determination Date	13 September 2017
PR Number	PR10749
Applicant/s:	Mr SJ Carrigan
Owner/s:	Mr SJ and Mrs AG Carrigan
Location:	Lot 1 DP 999448 – 61 Sampson Street, Orange
Proposal:	Modification of development consent - serviced apartment (change of use of existing shed)
Value:	$30,000 (being the same value as the original development)

Reference:	DA 437/2015(2)	Determination Date	23 August 2017
PR Number	PR26103
Applicant/s:	Australia Wide Coaches
Owner/s:	Mr RG Dawes
Location:	Lot 7 DP 1183249 – 229 McLachlan Street, Orange
Proposal:	Modification of development consent – transport depot (passenger coaches). The amended proposal replaces the fencing on the eastern boundary with 2.1m palisade fencing, as opposed to the previous fencing shown as 1.8m Colorbond style fencing.
Value:	$230,000 (being the same value as the original development)

Reference:	DA 237/2016(2)	Determination Date	1 August 2017
PR Number	PR19439
Applicant/s:	Bassman Drafting Services
Owner/s:	Mr JH and Mrs MJ Trindade
Location:	Lots 110 and 111 DP 1067744 – 4 and 6 Ralston Drive
Proposal:	Modification of development consent – vehicle repair station. The modification involves increasing the height of the shed by 200mm; provide for a steel framed walkway between the shed and warehouse and distribution centre; and to adjust the alignment of retaining walls.
Value:	$950,000 (being the same value as the original development)

Reference:	DA 388/2016(1)	Determination Date	11 October 2017
PR Number	PR15326
Applicant/s:	Orange Cycle and Triathlon Club
Owner/s:	Orange City Council
Location:	Lot 58 DP 750401 – 2 Bloomfield Road, Orange
Proposal:	Recreation Area (storage shed)
Value:	$25,000

Reference:	DA 84/2017(1)	Determination Date	21 August 2017
PR Number	PR22203
Applicant/s:	Statspan Pty Ltd
Owner/s:	Statspan Pty Ltd
Location:	Lot 1 DP 1109351 – 120-122 Summer Street, Orange
Proposal:	Shop and serviced apartments (alterations and additions to existing building for shop and five serviced apartments)
Value:	$500,000

Reference:	DA 110/2017(1)	Determination Date	17 August 2017
PR Number	PR20437
Applicant/s:	Mr MJ Meagher
Owner/s:	Messrs MJ Meagher and MP O’Neill
Location:	Lot 2 DP 1085646 – 260 Clergate Road, Orange
Proposal:	Subdivision (17 lot industrial) and Category 1 remediation
Value:	$0

Reference:	DA 112/2017(1)	Determination Date	26 September 2017
PR Number	PR26080
Applicant/s:	West Orange Holdings Pty Ltd
Owner/s:	West Orange Holdings Pty Ltd
Location:	Lot 102 DP 1187463 – 22-34 Forbes Road, Orange
Proposal:	Vehicle sales or hire premises (alterations and additions to existing building) and signage
Value:	$500,000

Reference:	DA 118/2017(1)	Determination Date	19 September 2017
PR Number	PR22224
Applicant/s:	Carpenter Collins and Craig
Owner/s:	Mr KS Baker
Location:	Lot 8 DP 1108024 – 1 William Maker Drive, Orange
Proposal:	Subdivision (81 lots comprising 77 residential lots, 2 lots for the Transgrid easement and 2 lots for public open space/drainage)
Value:	$0

Reference:	DA 146/2017(1)	Determination Date	4 August 2017
PR Number	PR27675
Applicant/s:	Bassman Drafting Services
Owner/s:	Sandy June Pty Ltd
Location:	Lot 110 DP 1229500 – 48 Molong Road, Orange
Proposal:	Demolition (garage), boarding house (two boarding houses each containing seven rooms) and subdivision (two lot strata)
Value:	$882,000

Reference:	DA 183/2017(1)	Determination Date	24 August 2017
PR Number	PR27005
Applicant/s:	Mr AM and Mrs SL Ford
Owner/s:	Mr AM and Mrs SL Ford
Location:	Lot 17 DP 1209535 – 5 Kirkwood Place, Orange
Proposal:	Water storage facility (domestic dam)
Value:	$0

Reference:	DA 189/2017(1)	Determination Date	28 July 2017
PR Number	PR26011
Applicant/s:	Mr K and Mrs SE Barber
Owner/s:	Mrs SB Barber
Location:	Lot 640 DP 1172022 – 17 Bowman Avenue, Orange
Proposal:	Dwelling and attached garage; subdivision (two lot residential); dwelling and attached garage; and tree removal.
Value:	$800,000

Reference:	DA 206/2017(1)	Determination Date	11 September 2017
PR Number	PR10550
Applicant/s:	Ms S Mendel
Owner/s:	Ms SA Mendel
Location:	Lot 5 Sec D DP 18064 – 12 Rowan Street, Orange
Proposal:	Dwelling alterations and additions (two storey)
Value:	$322,000

Reference:	DA 211/2017(1)	Determination Date	10 August 2017
PR Number	PR27641
Applicant/s:	Mr I Zhang
Owner/s:	Dinkum Exporting and Importing Pty Limited
Location:	Lot 203 DP 1229307 – 15 Aloe Vera Place, Orange
Proposal:	Dual occupancy and subdivision (two lot residential)
Value:	$380,000

Reference:	DA 228/2017(1)	Determination Date	4 October 2017
PR Number	PR20243
Applicant/s:	Western Freight Management Pty Ltd
Owner/s:	Tura Holdings Pty Limited
Location:	Lots 72, 73, 74 and 75 DP 1077739 – 16-18 Colliers Avenue and 59-61 Astill Drive, Orange
Proposal:	Freight transport facility (gravel hardstand/laydown area)
Value:	$120,000

Reference:	DA 231/2017(1)	Determination Date	4 August 2017
PR Number	PR6942
Applicant/s:	Mr M Walker
Owner/s:	Messrs RM D’Hudson and J Hayter
Location:	Lot 1 DP 315435 – 215 Lords Place, Orange
Proposal:	Small bar
Value:	$5,000

Reference:	DA 235/2017(1)	Determination Date	21 August 2017
PR Number	PR17729
Applicant/s:	McKinnon Design
Owner/s:	Apostolic Church Trust
Location:	Lots 17-21 Sec 7 DP 13315, and Lot 1 DP 436291 – 33-45 Glenroi Avenue, Orange
Proposal:	Place of public worship (alterations to existing building)
Value:	$250,000

Reference:	DA 237/2017(1)	Determination Date	10 August 2017
PR Number	PR17272
Applicant/s:	D’Aquino Group of Companies
Owner/s:	Mrs Z D’Aquino
Location:	Lots 7 and 8 DP 1000034 – 125-133 Bathurst Road, Orange
Proposal:	Subdivision (boundary adjustment)
Value:	$0

Reference:	DA 238/2017(1)	Determination Date	4 August 2017
PR Number	PR25579
Applicant/s:	Knight Frank Australia Pty Ltd
Owner/s:	Shopping Centres Australasia Property Group
Location:	Lot 700 DP 1171441 – 9 Telopea Way, Orange
Proposal:	Business identification sign (wall sign)
Value:	$4,500

Reference:	DA 240/2017(1)	Determination Date	31 August 2017
PR Number	PR13294
Applicant/s:	Mr SGP and Mrs MA Price
Owner/s:	Mr SGP and Mrs MA Price
Location:	Lot 190 DP 756899 – 381 Pinnacle Road, Orange
Proposal:	Serviced apartment
Value:	$100,000

Reference:	DA 245/2017(1)	Determination Date	13 September 2017
PR Number	PR1494
Applicant/s:	Housing Plus
Owner/s:	Mr RJ Sharpe
Location:	Lot 10 DP 248178 – 71 Bletchington Street, Orange
Proposal:	Seniors Housing (four self-contained dwellings)
Value:	$1,400,000

Reference:	DA 248/2017(1)	Determination Date	7 September 2017
PR Number	PR27493
Applicant/s:	Ashlynne Pty Limited
Owner/s:	Ashlynne Pty Limited
Location:	Lot 27 DP 1224147 – 9 Gala Crescent, Orange
Proposal:	Exhibition home, retaining wall and business identification sign
Value:	$300,000

Reference:	DA 250/2017(1)	Determination Date	24 July 2017
PR Number	PR19022
Applicant/s:	NSW Electoral Commission
Owner/s:	Mr MP and Mrs CM Bayada
Location:	Lot 52 DP 1063083 – 10 Elwin Drive
Proposal:	Public administration building (temporary)
Value:	$0.00

Reference:	DA 258/2017(1)	Determination Date	6 September 2017
PR Number	PR14898
Applicant/s:	Mr S Birmili
Owner/s:	Orange Arcade Pty Limited
Location:	Lot 1 DP 572210, Lot 2 DP 553754, Lots A and B DP 150436, Lot 1 DP 1063911 – Sale Street, Summer Street, 146-148 Summer Street, Orange
Proposal:	Shop (change of use)
Value:	$60,000

Reference:	DA 268/2017(1)	Determination Date	22 August 2017
PR Number	PR17233
Applicant/s:	Mrs J Campbell
Owner/s:	Mr DA and Mrs JL Player
Location:	Lot 101 DP 884400 – 184-190 Peisley Street, Orange
Proposal:	Business identification sigh (wall sign)
Value:	$0

Reference:	DA 269/2017(1)	Determination Date	19 September 2017
PR Number	PR2610
Applicant/s:	Forefront Services
Owner/s:	Clout Redfern Investments Pty Ltd
Location:	Lot 62 DP 55915 – 345 Clergate Road, Orange
Proposal:	General industry (new industrial shed, and alteration and additions to existing building)
Value:	$600,000

Reference:	DA 271/2017(1)	Determination Date	11 October 2017
PR Number	PR26577
Applicant/s:	Hanna Developments Group Pty Limited
Owner/s:	Fenlor Group Pty Limited & Charms Developments Pty Limited
Location:	Unregistered Lots 202, 203 and 204 in a subdivision of Lot 42 DP 1195966 – 41 William Maker Drive, Orange
Proposal:	Centre-based child-care facility and business identification sign (pylon sign)
Value:	$1,451,835

Reference:	DA 272/2017(1)	Determination Date	26 September 2017
PR Number	PR22507
Applicant/s:	Mr MM Oh
Owner/s:	Mr KW and Mrs DL Carr
Location:	Lot 1 SP 79153 - Unit 1/60-62 William Street, Orange
Proposal:	Recreation facility (indoor) (martial arts school) and business identification sign (flush wall sign)
Value:	$0

Reference:	DA 274/2017(1)	Determination Date	15 August 2017
PR Number	PR794
Applicant/s:	Mr N and Mrs D Penhall
Owner/s:	NJ and DJ Penhall Pty Limited
Location:	Lot B DP 163869 – 202 Anson Street, Orange
Proposal:	Retail premises (internal alterations)
Value:	$20,000

Reference:	DA 276/2017(1)	Determination Date	15 August 2017
PR Number	PR20690
Applicant/s:	Mr AJ Kirkwood
Owner/s:	Mr AJ Kirkwood
Location:	Lot 87 DP 1086540 – 87 Byng Street, Orange
Proposal:	Dwelling house (change of use from office premises)
Value:	$0

Reference:	DA 283/2017(1)	Determination Date	23 August 2017
PR Number	PR283/2017
Applicant/s:	Mr RG Dawes
Owner/s:	1^st Class Coach Pty Ltd
Location:	Lots 7 and 8 DP 1183249 – 227-229 McLachlan Street, Orange
Proposal:	Boundary fence (1.2m high palisade fence)
Value:	$14,000

Reference:	DA 284/2017(1)	Determination Date	26 September 2017
PR Number	PR12823
Applicant/s:	Mr MS Swiatkiwsky
Owner/s:	Mr JA and Mrs DM Cantrill
Location:	Lot 170 DP 595892 – 145-147 Woodward Street, Orange
Proposal:	Restaurant or cafe
Value:	$40,000

Reference:	DA 285/2017(1)	Determination Date	31 August 2017
PR Number	PR12946
Applicant/s:	Orange City Council
Owner/s:	Orange City Council
Location:	Lot 54 DP 812701 – 2-4 Yarrawong Place, Orange
Proposal:	Boundary fence (2.1m high palisade fence)
Value:	$13,000

Reference:	DA 287/2017(1)	Determination Date	5 October 2017
PR Number	PR2279
Applicant/s:	Mr HS Hamouda
Owner/s:	Mr HS Hamouda
Location:	Lot 13 DP 16510 – 26 Caroline Street, Orange
Proposal:	Conversion of dwelling and shop to principal dwelling and secondary dwelling
Value:	$2,000

Reference:	DA 290/2017(1)	Determination Date	18 September 2017
PR Number	P9698R
Applicant/s:	Orange Regional Gallery
Owner/s:	Orange City Council
Location:	Lot 9 DP 820905 – 149 Byng Street, Orange
Proposal:	Information and education facility (alterations and additions to existing building)
Value:	$170,000

Reference:	DA 291/2017(1)	Determination Date	29 September 2017
PR Number	PR26185
Applicant/s:	The Uniting Church in Australia Property Trust (NSW)
Owner/s:	The Uniting Church in Australia Property Trust (NSW)
Location:	Lot 100 DP 1185280 – 27 Summer Street, Orange
Proposal:	Demolition (tree removal)
Value:	$8,580

Reference:	DA 297/2017(1)	Determination Date	9 October 2017
PR Number	PR12852
Applicant/s:	Bela Vista Hospitality Pty Limited
Owner/s:	Orange Motel Investments Pty Ltd
Location:	Lot 189 DP 808347 – 178-184 Woodward Street, Orange
Proposal:	Hotel or motel accommodation (increase licenced area and new front fence)
Value:	$2,850

Reference:	DA 320/2017	Determination Date	25 October 2017
PR Number	PR17577
Applicant/s:	Janlin Circuses Pty Ltd T/AS Stardust Circus
Owner/s:	Orange City Council
Location:	Lots 14 and 15 Section 29 DP 5600 – Phillip Street, Orange (Orange Showground)
Proposal:	Entertainment facility (temporary use of land – circus)
Value:	$0

Reference:	DA 321/2017(1)	Determination Date	25 September 2017
PR Number	PR601
Applicant/s:	Sweet Sour Salt
Owner/s:	Mr RN and Mrs EMW Mitchell
Location:	Lot 1 DP 900677 – 179 Anson Street, Orange
Proposal:	Restaurant or Café (alterations to existing premises)
Value:	$40,000

Reference:	DA 353/2017(1)	Determination Date	10 October 2017
PR Number	PR14898
Applicant/s:	Mr J Kirk
Owner/s:	Orange Arcade Pty Limited
Location:	Lot 1 DP 572210 – Sale Street, Orange (Shop 20, Orange Arcade)
Proposal:	Shop (change of use)
Value:	$0

Reference:	DA 373/2017(1)	Determination Date	11 October 2017
PR Number	PR11579
Applicant/s:	Small Acre Cyder
Owner/s:	Orange City Council
Location:	Post Office Lane
Proposal:	Entertainment facility and market
Value:	$5,000

Reference:	DA 311/2017(1)	Determination Date	16 October 2017
PR Number	PR3693
Applicant/s:	designs@m
Owner/s:	Mr DR Davis and Ms AA Porch
Location:	Lot 20 DP 632537 – 26 Edward Street, Orange
Proposal:	Vehicle repair station (new building) and signage
Value:	$75,000

TOTAL NET* VALUE OF ALL DEVELOPMENTS APPROVED IN THIS PERIOD: $8,090,765

* 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 2017

2.2 Orange Local Environmental Plan 2011 - Amendment 22 - Former Base Hospital Site - Post Exhibition Report

TRIM REFERENCE: 2017/2106

AUTHOR: Craig Mortell, Senior Planner

EXECUTIVE Summary

Orange Local Environmental Plan 2011 - Amendment 22, relating to rezoning of the former base hospital site, was placed on public exhibition from 24 August to 22 September 2017. A total of two submissions were received. The Office of Environment and Heritage submission essentially confirmed no concerns, while a submission from the Orange Local Aboriginal Land Council opposed the proposal on a number of grounds. The matters raised in the submissions are detailed in this report.

After being decommissioned in March 2011, the community began to express concern that the mothballed buildings were being vandalised and impacting upon both the character and amenity of the area. Council acquired the former base hospital site from NSW Health Infrastructure (HI) in April 2016 to facilitate the redevelopment of the site either through the adaptive re-use of up to two of the existing buildings or, should re-use prove unviable, the demolition, clean up and decontamination of the site to enable a range of possible development options.

As part of their divestment process, HI commissioned a master plan for the site showing a range of potential redevelopment options. It should be noted that while Council was consulted, the master plan was not a Council document and most options would require some form of amendment to Orange LEP 2011. To avoid duplication of effort, amendment of the LEP was deferred until more specific requirements of the potential development could be determined.

The HI master plan suggested creating an area of B4 Mixed Use zone, which attracted interest from a developer of large scale commercial office premises in the eastern (Anson Street) end of the site. The NSW Department of Primary Industries subsequently announced a tender process for new or refurbished premises in Orange and the developer refined their interest in order to submit a bid involving the former hospital site.

The DPI workforce is a significant contributor to the local economy with the departmental headquarters in Orange regarded as highly valuable. Actual site selection is a matter for the DPI and it is understood that they received a number of bids. The planning proposal was therefore drafted to accommodate a viable bid to bring the DPI to the site, but with enough flexibility to enable other configurations should the bid be unsuccessful, broadly consistent with the master plan.

Therefore the planning proposal should be considered in terms of the range of uses and built forms that would be enabled, rather than any specific project. The DPI bid can therefore be thought of as one illustration, or scenario, of what the planning proposal may allow.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “1.2 Our City - Information and advice provided for the decision-making process will be succinct, reasoned, accurate, timely and balanced”.

Financial Implications

Nil

Policy and Governance Implications

Council has a direct pecuniary interest in the proposal which may create a perception of conflict. Consequently, the Department of Planning and Environment determined not to provide delegations to make the plan and the matter will ultimately be determined by the Minister on advice from the Department of Planning and Environment.

Recommendation

1 That the information provided in the report on Orange Local Environmental Plan 2011 - Amendment 22 - Former Base Hospital Site - Post Exhibition Report be acknowledged.

2 That Council endorse Orange Local Environmental Plan 2011 - Amendment 22 - Former Base Hospital site planning proposal in its current form.

3 That Council forward the planning proposal to the Department of Planning and Environment requesting that Orange Local Environmental Plan 2011 be amended accordingly.

4 That Council write to the entities that provided submissions to the Planning Proposal, advising of Council’s resolution.

further considerations

The recommendation of this report has been assessed against Council’s other key risk categories and the following comments are provided:

Image and Reputation	As landowner of the site Council has a direct pecuniary interest in the proposal. Accordingly the gateway determination withheld delegations to formally make the plan with such powers retained by the Minister.
Political	Council’s interest in the site has the potential to generate adverse public reaction and scepticism over the role and impartiality of decision making (one submission explicitly references governance concerns). Scrutiny and oversight is provided by the NSW Department of Planning and Environment in advising the Minister whether to make the plan. Council is not the determining authority for the rezoning.
Stakeholders	The proposal has been initiated in response to both the master plan for the site and a developer expressing interest in the site and entering into an option agreement with Council. This does not bind Council to approve or support the proposal. All normal land use planning obligations remain and Council must have due regard to the environmental, social, ecological and economic aspects of the proposal as it would for any other proposal.

SUPPORTING INFORMATION

Background

Following the opening of the new Orange Health Service in Forest Road, the old Orange Base Hospital was decommissioned in March 2011. At about that time the site was mothballed with security fencing erected, however this did not prevent periodic vandalism and the condition of the premises attracted complaints.

The site remained the responsibility/liability of NSW Health Infrastructure (HI). This extended to any clean-up and demolition of the site for eventual re-use. Leaving the site vacant and not cleaned up was not considered an acceptable action on the part of HI; however, there are examples of unresolved former institutional sites across NSW.

HI undertook a master planning exercise to explore a range of re-development options and scenarios which were presented to Council in April 2013. The master planning exercise was extensive and detailed but it was not placed on formal public exhibition and was not formally adopted by Council. The master plan serves to illustrate the potential of the site via the use of concept studies. The concepts within the master plan are predicated on rezoning part of the site to B4 Mixed Use. Therefore although the current planning proposal involves a different configuration of zones, with a larger B4 area, it remains informed by the broad principles and approach of the master plan.

HI opened discussions with Council in 2013 over the future of the site, and on 14 October 2014 Council conditionally resolved to seek to acquire the site. Negotiations then proceeded over an extended timeframe, with the title ultimately transferred to Council 20 April 2016.

The acquisition was subject to a range of conditions such as the demolition, site clean-up and remediation costs being reflected in the price; i.e. the demolition and clean-up works would be undertaken by Council (or its contractors) for which the nett price was correspondingly reduced, with ultimate liability remaining with HI until remediation works are validated.

The site is presently undergoing demolition and remediation works. These works are not linked to, or dependent upon, the proposed rezoning. Rather, the current works will provide a clean and clear site which could then be further developed in accordance with the LEP provisions.

The current proposal seeks to amend the LEP to enable both a range of uses and a particular form of development to be considered on the site.

Submissions

One submission notes Council's direct involvement in the proposal as land owner. Independent legal advice was sought on this aspect. In summary, the advice received is that this aspect of the matter is appropriately managed through the planning system by virtue of the NSW Department of Planning and Environment, not Council, being the body that undertakes the Gateway Determination, and in this instance having withheld delegations from Council the NSW Department of Planning and Environment determines the application.

One submission was received from the NSW Office of Environment and Heritage (OEH). The OEH was directly notified of the proposal as required by the Gateway Determination conditions. The OEH response acknowledged receipt of the proposal but raised no specific concerns.

One submission was received from the Orange Local Aboriginal Land Council (OLALC) that raised a range of matters and asserts that the applicant (Council) has a conflict of interest, being land owner and the future consent authority for the site.

Response: Due to Council being the landowner, the Gateway Determination did not provide delegations to formally make the plan. The power to ultimately determine and amend (or not) the LEP rests with the Minister and the NSW Department of Planning and Environment. Additionally, there is a legislative requirement that any proposal over $20 million dollars (or $5 million in the case of Council having a direct interest) in construction value be considered and determined by the Joint Regional Planning Panel. Therefore, Council is not likely to be the consent authority for a major development. Other specific issues in the OLALC submission are outlined below.

Quadruple Bottom Line

Economic/Financial - What is the activity’s net value/cost? Can it be afforded?

The proposal will provide the zoning capable of supporting a significant number of jobs close to the CBD and provide open space and inner city residential uses.

The employment levels will add to those supplying and stimulating the CBD along with other mixed-use offerings near the CBD.

In the short term the additional floor space may impact on business rental prices but an increased supply of floor space enables growth and diversification of the local economy, generally, which would see stabilisation of yields in the medium term.

The B4 zone enables consideration of a range of land uses including; offices, various commercial premises, community facilities, educational establishments, function centres, entertainment facilities, medical centres, child care centres as well as residential accommodation. It is considered that many of these would be economically viable as well as provide potential social and community benefits. The flexibility of this zone therefore mitigates any perceived risk of the site being locked into any particular development

Environmental/Ecological – What are the impacts on the local (and regional/national) built and natural environment?

There are no impacts of a national or regional significance on either the built or natural environments. At a local level the site is not identified as having ecological significance and vegetation is minimal, having been limited to various landscaping around the former hospital buildings and car parks.

In terms of local built environment, the ultimate design of any development will be resolved during a future development application. The built forms will then be assessed in terms of articulation, façade treatment and overall aesthetics, as well as potential for overshadowing, privacy concerns and the like.

The LEP amendment alters the permissible building heights but does not increase the allowable Floor Space Ratio (FSR). As such, the effect of the amendment may be to enable taller buildings but with a correspondingly reduced building footprint. In turn this may lead to improved landscaping opportunities.

Social/Equity - How does the activity meet the social justice elements of equity, access, participation and equal rights?

The proposal includes the establishment of an area of RE1 Public Recreation land. This will increase the stock of public land available to the broader community. Office premises will help to provide jobs in the local economy. The proposal facilitates the adaptive reuse of the heritage listed former ambulance station to a range of uses. The remainder of the site remains R3 Medium Density Residential and will ultimately add to the stock and range of housing options available in the area.

Governance - The organisation has a responsibility to be accountable to its stakeholders. “Governance” implies the way business is done by the City government. The ethics of the organisation include the way it relates to its public and stakeholders, the way it manages its workforce, the way it makes decisions, the way it advocates for its community and especially future generations.

The above comment on governance is noted and supported.

More specifically, the proposal has been drafted, reported to Council, submitted to the Department of Planning Gateway process and publicly exhibited in accordance with the Gateway Determination conditions. Ethically, Council has sought to enhance public awareness of the proposal in terms of providing information to local media to facilitate coverage of the proposal.

Lack of Strategic support

The submission disputes that the planning proposal has support of any strategic study or report and notes that the proposal alters the vision of the master plan.

The master plan was prepared by HI, in consultation with Council, as part of its divestment processes to illustrate the potential of the site. A large consolidated site well within the urban footprint of the city and in reasonable proximity to the CBD represents a unique opportunity and set of issues. While the master plan was not formally exhibited or adopted by Council, it has served to provide a broad basis for considering the role and function of the site within the Orange context.

A key message that may be drawn from the master plan is that to achieve the site’s full potential, both financially and from a social benefit viewpoint, requires inclusion of non-residential elements. A purely residential development would limit the benefits of the site to those residents alone. Whereas by fostering employment, services and facilities on the land the broader community can derive a range of benefits beyond a financial return.

Net Community Benefit

The submission highlights potential traffic changes and notes the absence of a detailed traffic study.

Net community benefit is a broader concept than traffic alone. Notwithstanding this, it is considered that the local road network has considerable capacity in the area - having previously been accustomed to substantial traffic and parking demand from the former base hospital. Since the decommissioning of the hospital there have not been any large scale developments in the immediate area that could be argued to have replaced the previous traffic volumes. While neighbours and residents in the area may have noticed a decline in traffic since the hospital decommissioning, this should always have been regarded as temporary because the site was clearly going to be redeveloped or adapted at some point.

The submission also suggests: “There is no justification or support for the proposition that the proximity to the site is more beneficial than other uses on the site for economic and trading stimulus. For example, in a changing and dynamic world start-up companies, incubators, various other small businesses all seek opportunities in central locations. By creating such a substantial public building for the site the net community benefits are not articulated well compared with other uses that may provide greater net community benefits.”

The proposed amendments to the LEP do not lock the site in to any particular development. The planning proposal seeks to allow consideration of a range of potential uses and built forms via a subsequent development application. It should be noted that the planning proposal would enable this site to be developed for a variety of purposes, including many of those suggested in the submission.

Community Strategic Plan

The submission states that the proposal is consistent with one aspect of the community strategic plan but is critical that maintaining the trading performance of the CBD is retail centric and ignores other community objectives and impacts.

The planning proposal is capable of enabling a wide range of uses and functions on the site through the use of the B4 Mixed Use zone. At the present time there is no specific community or public oriented project seeking such a location before Council. Council has a record of facilitating and providing a wide range of community facilities and services throughout the City. It is noted that the submission has not suggested that the proposal contravenes or hinders other community objectives in the Community Strategic Plan.

The criticism of retail centricity is overly simplistic. The health, energy, vibrancy and dynamism of any regional community relies upon a strong local economy, without which non-profit services and facilities cannot be financially sustained. The CBD has traditionally been a fundamental part of that equation. The broader the range of firms, goods and services present, the more capable and resilient the community becomes. Such diversity is in turn dependent upon the scale of economic activity in the area. Some enterprises are more marginal than others and only become viable in larger centres. Thus increased activity and turnover leads to increased diversity.

Regional Plan Direction 10

The submission asserts that the proposal has not demonstrated how a public administration building will create social and economic benefits to Regional Plan Direction 10.

The mixed use zone provides for many potential employment generating and economic activities, as described under the response to the quadruple bottom line issue. Many of which would deliver varying levels and types of social and economic benefits.

A public administration building would also enable the presence of several hundred professional jobs in the local economy. This is considered to be a direct economic benefit, not to mention the construction phase jobs that would be created.

The social benefits from the proposal include the creation of an area of RE1 Public Recreation land in the western portion of the site, the next nearest public open space being Jaeger Reserve located approximately 300m to the northwest between Hill Street and Clinton Street; plus maintaining employment opportunities in the City enables both new employment growth and existing workforce to remain in the area and participate in the social fabric of daily life.

Environmental Effects

The submission is critical of potential traffic, overshadowing and residential amenity impacts, stating that these factors have not been appropriately analysed.

The site has historically accommodated the former base hospital, which generated significant volumes of traffic, comprised a six storey building and was visible to surrounding residential development. It has not been possible to undertake detailed specific traffic/ overshadowing analysis given that the proposal does not relate to a specific final design. However, the planning proposal does not significantly increase the density or scale of development potential on the site, and as such it is considered that any future development application will be able to adequately address such matters.

Site Master plan

The submission states that the master plan has no legal status and suggests that this leaves the potential outcome for the balance of the site (assumed to be the western portion) unclear. The submission argues that as both landowner and consent authority this gives Council too much latitude to determine future proposals over that area.

Council’s interest in the site means that if a development application is lodged in relation to the balance of the site with a construction value above $5 million dollars, the application would be determined by the Joint Regional Planning Panel in place of Council. Notwithstanding this, Council has the option to undertake a formal master plan for the balance of the site, enabling further community input into the direction and vision for the remainder of the site.

Effect of Public Administration Building on Remainder of the Site

The submission questions whether the proposal for a public administration building on the eastern portion of the site may adversely impact on the balance of the land value and future development opportunities for the site.

It should be noted that the non-B4 area of the site will remain in Council ownership pending further evaluation of development options, not private landowners or other parties.

Notwithstanding this the area of the site anticipated for the public administration building includes appropriate internal setbacks to the balance of the site. Clearly the area closest to the multi storey building is likely to experience some overshadowing during the morning period (being to the west of such structures) but would regain significant solar access from mid-morning onward. This factor may influence Councils evaluation for the balance of the site but is not considered to sterilise or overly restrict its potential.

The inclusion of the RE1 Public Recreation zone running east-west through the centre of the western portion further ensures that the southern, Prince Street, frontage will also have good solar access throughout most of the day. It is therefore considered that the proposal retains substantial land value and development opportunities for the western end of the site.

It is likely that any conceptual design would need to be adapted to the specific requirements of the use. Accordingly, specific overshadowing analysis has not been undertaken at this time due to the design of any building not being finalised. Irrespective of this, as has previously been stated, any future development on this site would be the subject of a development application which would be assessed at that time, to ensure that the specific development proposal complied with the relevant planning and design controls applicable to the site.

Section 117 directions

The submission claims the proposal is contrary to the following Section 117 Ministerial Directions.

· Direction 3.1: the proposal is non-compliant as there is no connection between B4 zoning and residential outcomes consistent with the master plan.

The direction does not require a connection between the B4 zone and an unofficial master plan. The direction requires that the planning proposal must encourage housing that will:

(a) Broaden the choice of building types and locations available in the housing market, and

(b) Make more efficient use of existing infrastructure and services, and

(d) Be of good urban design.

Additionally the proposal must require that residential development is adequately serviced and not reduce the permissible residential density.

In regard to the above:

- the proposal retains an R3 Medium Density zone to the west, and the B4 Mixed Use zone also permits various forms of residential development, thus choice of building types and locations is not reduced;

- the proposal makes efficient use of existing infrastructure and services that were established during the operation of the former hospital, in terms of local road network capacity, sewer and water connections and the like;

- the site is not on the urban fringe;

- the design quality of any project will be subject to development application assessment in due course;

- services are present; and

- the proposal does not reduce the permissible density of residential development.

· Direction 5.10: the proposal is inconsistent with the Central West Regional Plan

The direction requires that planning proposals must be consistent with any Regional Plan released by the Minister. The submission offers no detail in how the proposal is viewed as inconsistent.

· Direction 6.2: the proposal does not address preserving land for public purposes.

Under this direction the proposal must not create, alter or reduce existing zonings or reservations for public purposes without the approval of the relevant public authority and the Director-General of the Department of Planning.

When Council acquired the site, in order to facilitate the ultimate redevelopment of the property it resolved that the site be declared Operational Land within the meaning of the Local Government Act. Operational Land is not considered to be reserved, or intended for, public purposes.

The land is currently zoned R3 Medium Density Residential and the rezoning proposal will create an area of R1 Public Recreation zone in the western portion of the site. This was evident when the matter was referred to the Department of Planning for Gateway Determination; and since delegations to determine the proposal were withheld, this will be a matter for the Department of Planning to determine.

However, the creation of an area of R1 Public Recreation zoned land is consistent with the objectives of the Direction which include:

“To facilitate the provision of public services and facilities by reserving land for public purposes”.

Level of Detail

The submission is critical of the limited level of detail in the proposal.

The level of detail provided is consistent with other rezoning applications which have received consent. A conceptual layout and massing study gives an impression of the type of scale and density that may be anticipated. Further detail would only be possible at the development application stage once a design was essentially complete.

The zoning of a site, including rezoning, is only intended to establish the broader framework within which a development may be designed. Essentially, an LEP is intended to govern ‘what’ types of development may occur ‘where’, and a few broad parameters such as the overall density and scale that can be expected. Whereas a DCP provides guidance on ‘how’ the design of such development should be resolved in terms of aesthetics.

It is therefore at the development application stage where more detail is to be expected and evaluated. Thus it is considered that it would be too onerous and unreasonable to require a proponent to resolve a concept associated with a rezoning, with specific construction detail equivalent to that required for a development application on the site.

Attachments

1 Gateway Determination, D17/63813 ⇩

2 Planning Proposal, D17/63812 ⇩

3 Technical Clarification Notice, D17/63814 ⇩

4 Report to Planning & Development Committee - 6 June 2017, D17/63815 ⇩

5 Section 117 Ministerial Directions, D17/63818 ⇩

6 State Environmental Planning Policies, D17/63819 ⇩

7 Council Resolution 17/219, D17/63820 ⇩

8 Height of Buildings Map, D17/63821 ⇩

9 Land Zoning Map, D17/63822 ⇩

10 NSW Office of Environment and Heritage - response to consultation, IC17/19262 ⇩

11 Submission from Orange Local Aboriginal Land Council, IC17/18830 ⇩

Planning and Development Committee 7 November 2017

2.3 Development Application DA 258/2015(1) - 131 and 199 Bargwanna Road

TRIM REFERENCE: 2016/2063

AUTHOR: Michael Glenn, Senior Planner

EXECUTIVE Summary

Application lodged	11 August 2015
Applicant/s	Mr GM Gleeson
Owner/s	Mr GM Gleeson
Land description	Lots 226 and 227 DP 750387 and Lot 1 DP 1141864 - 131 and 199 Bargwanna Road, Orange
Proposed land use	Intensive Plant Agriculture, Dwelling House and Subdivision (consolidation)
Value of proposed development	$450,000

Council's consent is sought for the establishment of a 12 hectare olive farm on the premises, proposed as viable intensive plant agriculture. In addition, the applicant proposes to erect a dwelling house to operate in support of the intensive plant agriculture and to consolidate the subject land (three existing lots) into a single allotment.

The land on which the proposed dwelling is to be erected does not meet the 100 hectare minimum area requirements of the Orange Local Environmental Plan 2011 (LEP) for the E3 zone, and the subject property does not have a dwelling erected on the property at the present time. Council’s records indicate that the subject land did not have a dwelling entitlement immediately before the current LEP came into effect. These are all relevant to the development application, as the only means for a dwelling to be lawfully approved on the subject land is by the development meeting all the requirements of clause 4.2A(5A) of Orange Local Environmental Plan 2011. At its core this clause requires the site to be used for intensive plant agriculture at commercial levels, and for the proposed dwelling to be needed for the successful management of that operation. To be permitted to erect a dwelling under clause 4.2A(5A), the applicant must demonstrate full compliance with all parts of the clause, and must also demonstrate that the agricultural activities being undertaken on the premises are for a commercial intensive plant agricultural purpose.

The determination of this development application has been protracted. Council was advised by the Department of Primary Industries (DPI) who in effect act as a referee in such matters, that the original application did not propose significant intensive plant agriculture that would adequately meet all the requirements of clause 4.2A(5A) of the LEP. In particular, the DPI was not supportive of the initial development because there was insufficient evidence submitted to properly demonstrate that the site would be used for intensive plant agriculture of the scale required to warrant a manager’s residence, and the lack of a reliable source of water supply.

Following extended negotiations and advice, the applicant reconfigured the proposed development and has now proposed intensive plant agriculture, being the refurbishment of the existing debilitated olive grove and the planting of an additional 6ha of olive plants to comprise a total of 12 hectares.

The proposal to construct a dwelling has been put forward on the premise that the dwelling is needed to ensure the proper and efficient management of the olive grove. According to the DPI, the erection of a dwelling on the land should only supported on the basis that the property is formally developed as a 12 hectare olive grove.

As amended, the proposed development is considered to be permissible. It is significantly different in form and detail to what was originally proposed. Further advice has been received from the DPI in support of the amended proposal subject to the adoption of several conditions. The revised application addresses the initial concerns of the DPI in regards to the size of the olive grove were addressed by increasing the area under cultivation to 12 hectares. With respect to the watering issue, an independent review by DPI officers separate to the original assessment (done at the request of the applicant) now only requires an interim watering system for the new plantings during a limited period whilst the plants are establishing themselves. Subject to those caveats, the DPI advise that it is possible to consider the proposed intensive plant agriculture operations as viable commercial use of the land. The establishment of a viable intensive plant agriculture operation on the land opens the possibility of validly granting consent for the dwelling. This is an option that did not present itself in the previous version of the proposed development.

Attached is a recommended Notice of Determination that contains several conditions of consent designed to ensure compliance with the DPI requirements and the provisions contained within Council’s LEP and DCP with respect to intensive plant agriculture. The conditions of consent will require the applicant to first establish the 12 hectare olive grove on the land prior to the issue of a Construction Certificate for the dwelling - a position which has been acknowledged by the applicant. The applicant will be required to obtain formal certification from Orange City Council following the completion of the establishment stage of the olive grove. For clarity, the establishment stage has been defined as the period of 12 months from the end of the planting stage - a position which has been endorsed by the DPI. The site will be inspected by the Director Development Services and a suitably qualified professional or commercial olive grower approved by the DPI at the completion of the establishment phase.

The dwelling can be erected on the subject property without causing significant harm to the scenic character or biodiversity of the site. Based on the amended proposal it is now possible to validly grant consent to the proposed development, subject to the conditions specified in the consent. A dwelling house is prohibited on the land in all other circumstances.

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.

Uses are either permissible or not - there are no grey areas in terms of permissibility. The objectives of each zoning and indeed the aims of the LEP itself are, however, open to interpretation and can be used to guide decision making around appropriateness of development.

Orange Development Control Plan 2004 – the DCP guides development. In general it is a performance based document rather than prescriptive in nature - its purpose is to guide development. The Land and Environment Court tends to view it as such. In each area of interest 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. So one can see that the DCP gives leeway for developers and architects to use design to achieve the outcome in other ways if they can. Stating that DCP guidelines are inflexible can be misleading.

Dwellings are listed as a permissible form of development within the E3 zone, requiring development consent. It is noted that special restrictions apply to the permissibility of erecting a dwelling on an allotment within the E3 zone. These provisions are contained within Clause 4.2 of the LEP which have been discussed in detail under the heading “Clause 4.2A - Erection of Dwelling Houses on Land in Certain Rural and Environmental Protection Zones”.

In this case, it should be noted that dwelling house on the subject land is only permissible with consent of Council if it can be demonstrated that the requirements of Clause 4.2A(5A) of the LEP can be satisfactorily addressed. This clause requires the Council to be satisfied that the land is being used or will be used for a commercial intensive plant agricultural purpose prior to allowing a dwelling on the land. A Section 79C assessment of the development indicates that the proposal in its amended form is acceptable and can comply with the requirements of Clause 4.2A(5A) of Orange LEP 2011 (see assessment below) subject to certain conditions.

Attached is a recommended Notice of Determination that has been designed to ensure compliance with the DPI requirements and the provisions contained within Council’s LEP and DCP with respect to intensive plant agriculture. Of note, the conditions of consent will require the applicant to first establish the 12ha olive grove on the land prior to the issue of a Construction Certificate for the dwelling, a position which has been acknowledged by the applicant. The applicant will be required to obtain formal certification from Orange City Council following the completion of the establishment stage of the olive grove.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 258/2015(1) for Intensive Plant Agriculture, Dwelling House and Subdivision (consolidation of land) at Lots 226 and 227 DP 750387, and Lot 1 DP 1141864 – 131 and 199 Bargwanna Road, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought for intensive plant agriculture, dwelling house and subdivision (consolidation of land) at Lots 226 and 227 DP 750387, and Lot 1 DP 1141864 – 131 and 199 Bargwanna Road, Orange.

The proposal involves the establishment of a 12 hectare olive grove and the establishment of a manager’s residence on the subject land. It is proposed that the dwelling be constructed following the establishment of the 12 hectare olive grove. The development will involve the refurbishment and rejuvenation of the existing olive grove, incorporating necessary pruning, weed removal and replacement of dead and diseased plants and the further planting of an additional 6 hectares of olives to comprise a total area of 12 hectares under commercial olive production. An interim water supply in the establishment phase of the development has been proposed.

The application is supported by a Farm Plan prepared by Envirowest Consulting.

MATTERS FOR CONSIDERATION

Section 5A Assessment

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

From 25 August 2017, the Biodiversity Conservation Act 2017 and Biodiversity Conservation Regulation 2017 were gazetted. State Environmental Planning Policy (Native Vegetation in Non-Rural Areas) 2017 was also gazetted. The implementation of this legislation (and supporting guidelines) is subject to savings provisions that defer their full effect for a period of three months from the date of gazettal for local development.

The amended details submitted September 2017 indicate that it will not be necessary to remove any significant vegetation from the site. Some changes were needed to the proposed development: redesigning the access so as to follow the existing access path to avoid vegetation losses and pushing the effluent disposal area slightly to the north so that rocky outcrops, sloping land and significant vegetation are avoided. It is considered appropriate to impose precautionary conditions that prevent the loss of significant native trees from the site, but in the form now submitted the basic proposal applies avoidance techniques so as to minimise the impacts of the proposed development on the biodiversity values of the site.

Aboriginal Heritage

There is a possibility of Aboriginal heritage on the site, although the probability of such occurrence is considered to be low. The site is not recorded in the Aboriginal Heritage Information Management System (AHIMS) as containing any item of Aboriginal heritage. However, this record cannot be fully relied upon as complete, and a risk does exist of undiscovered Aboriginal heritage. In situations where such possibility exists, applicants are required to undertake some level of investigation, including consultations with the Local Land Council. Such issues are technically applicable to all new applications, but in practical terms is really unnecessary for most applications because the landscape has generally suffered or undergone a lot of disturbance since white settlement, and the chances of Aboriginal heritage remaining are considered to be generally low. Council’s usual practice is to apply a precautionary condition, which would appear appropriate in this case if Council were inclined to grant consent to the proposed development.

Section 79C

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

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

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

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

The proposed development in its final amended form is generally consistent with the aims of the plan. With regard to (a), the proposed development would respect and conserve the valuable rural landscape and native vegetation that is critical to the local rural and natural character. With regard to (d), the revised Farm Plan would result in the establishment of intensive plant agriculture and other uses, that whilst not able to be fully self-supporting from a financial point of view, does represent a viable agricultural land use. In terms of (e), the proposed development is proposing to add to the housing stock of the City and thereby increase, to a very small extent, the range of housing choices available.

The proposed development is consistent with the other aims of the plan.

Clause 1.6 - Consent Authority

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Mapping

Figure 1 - locality plan

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

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

Part 2 - Permitted or Prohibited Development

The subject property is zoned E3 Environmental Management under Orange Local Environmental Plan 2011 (OLEP 11). The proposed development is defined as “intensive plant agriculture”, and “dwelling house”, whilst the consolidation of lots is a form of “subdivision”.

"Intensive plant agriculture" means:

any of the following:

(a) the cultivation of irrigated crops for commercial purposes (other than irrigated pasture or fodder crops),

(b) horticulture,

(c) turf farming,

(d) viticulture.

Intensive plant agriculture is a type of agriculture.

The proposed development is consistent with both (a) and (b) in that, at propagation, the plants would be hand watered (and hence irrigated); whilst later they would not, and are hence consistent with the definition of horticulture.

"Horticulture" means:

the cultivation of fruits, vegetables, mushrooms, nuts, cut flowers and foliage and nursery products for commercial purposes, but does not include a plant nursery, turf farming or viticulture.

Intensive plant agriculture is permissible with development consent in the zone

“Dwelling house” is a subcategory to the group term “residential accommodation”, and is the erection of not more than one “dwelling” within a given building. A “dwelling” is defined in the LEP as a:

room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

Dwellings and intensive plant agriculture are listed as a permissible form of development within the E3 zone, requiring development consent. It is noted that special restrictions apply to the permissibility of erecting a dwelling on an allotment within the E3 zone. These provisions are contained within Clause 4.2 of the LEP which are discussed in detail below under the heading “Clause 4.2A - Erection of Dwelling Houses on Land in Certain Rural and Environmental Protection Zones”.

Land Use Zones

The amended proposal is significantly different to the original in that it is now proposing additions and rejuvenation to the olive grove such that it can now be considered as intensive plant agriculture. Further, it is considered that the proposed dwelling component of the application is, in fact, ancillary (or it is possible for it to be ancillary) to the intensive plant agriculture component of the proposal. In this configuration the proposed development is permissible with consent.

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned E3 Environmental Management are as follows:

1 - Objectives of the E3 Environmental Management Zone

· 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. of residents.

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

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

With regard to the first dot point, there are areas on the site that possess moderate ecological value that the applicant has given consideration to in his amended response. The revised proposal utilises avoidance strategies to achieve satisfactory impact on local biodiversity values of the site.

With respect to the second dot point, the proposed development is generally consistent with the range of permissible developments allowed in the zone. The amended proposal demonstrates that with sufficient care and application, the basic proposal is consistent with zone objectives.

With regard to the third dot point, the subject property is located well within the water supply catchment area of the City. The proposed development is unlikely to have a significant effect on the provision of water supply to the City.

With regard to the fourth dot point, the proposed development as originally proposed was considered to be inconsistent with this zone objective. The amended proposal is now more focused on the issue of primary production uses of the site and rural functions.

With regard to the fifth dot point, the proposed development has no impact.

Clause 2.6 - Subdivision - Consent Requirements

The proposed development includes consolidation of existing lots. This meets the definition of subdivision as set out in division 4B of the Environmental Planning and Assessment Act. In order to satisfy the LEP requirement of the land having a minimum area of 25ha, it is necessary to obtain development consent. Development consent is being sought as part of this application. Council can grant consent to the consolidation in the circumstances that are now being proposed, where the resultant lot is to be used for intensive plant agriculture (which lowers the minimum lot size to 25ha).

Part 3 - Exempt and Complying Development

No element of the proposed development is exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.2A - Erection of Dwelling Houses on Land in Certain Rural and Environmental Protection Zones

(1) - Objectives

(a) to minimise unplanned rural residential development,

(b) to enable the replacement of lawfully erected dwelling houses in rural and environmental protection zones.

In relation to (a), the proposed development is seeking consent that by definition results in planned or considered outcomes in development.

In relation to (b), there is no existing dwelling on the site; and as a result it cannot be argued that the proposed development is either consistent or inconsistent with the stated objective of the clause.

(2) - Applicability

This clause applies to land in the following zones:

(a) Zone RU1 Primary Production,

(b) Zone E2 Environmental Conservation,

(c) Zone E3 Environmental Management,

(d) Zone E4 Environmental Living

The subject land is zoned E3 Environmental Management and the clause is therefore applicable.

(3) - Circumstances where consent may not be granted for a dwelling house)

Development consent must not be granted for the erection of a dwelling house on land in a zone to which this clause applies, and on which no dwelling house has been erected, unless the land is:

(a) a lot that is at least the minimum lot size specified for that land by the Lot Size Map, or

(b) a lot created before this Plan commenced and on which the erection of a dwelling house was permissible immediately before that commencement, or

(c) a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house would have been permissible if the plan of subdivision had been registered before that commencement, or

(d) an existing holding.

(A dwelling cannot be erected on a lot created under clause 9 of State Environmental Planning Policy (Rural Lands) 2008 or clause 4.2).

In relation to (a), the minimum lot size applicable to the subject property is 100ha. No lot in the holding, nor the holding as a whole, meets the minimum area requirements for the zone.

In relation to (b), Council’s history of this site shows that it did not have a “dwelling entitlement” in the period immediately before the gazettal of OLEP 2011.

In relation to (c), there is no history of a consent for a subdivision and/or consolidation in which a dwelling house could lawfully have been erected on this land.

In relation to (d), the existing holding provisions of the LEP have been suspended since 2012. Even so, the subject land was never an existing holding. In relation to the final note, the proposed development is not seeking consent under the provisions of clause 9 of the rural lands SEPP.

(4) - Sunset clause for existing holding provisions

Land ceases to be an existing holding for the purposes of subclause (3)(d) if an application for development consent referred to in that subclause is not made in relation to that land before 31 December 2012.

The application was lodged after 31 December 2012. In any event, the subject property was never an existing holding.

(5) - Exceptions where subclause (3) may be dispensed with

Despite subclause (3), development consent may be granted for the erection of a dwelling house on land to which this clause applies if:

(a) there is a lawfully erected dwelling house on the land and the dwelling house to be erected is intended only to replace the existing dwelling house, or

(b) the land would have been a lot or a holding referred to in subclause (3) had it not been affected by:

(i) a minor realignment of its boundaries that did not create an additional lot, or

(ii) a subdivision creating or widening a public road or public reserve or for another public purpose.

In relation to (a), there is no dwelling erected on the subject land. No dwelling entitlement arises by reason of an existing dwelling being on the site.

In relation to (b)(i), the subject land has not been the subject of a minor realignment of boundaries. In relation to (b)(ii), the subject land has not been altered or re-subdivided for the purpose of road widening or other public purpose.

(5A) - Further exceptions where subclause (3) may be dispensed with

Despite subclause (3), development consent must not be granted for the erection of a dwelling house on land to which this clause applies that is being, or that is intended to be, used for the purpose of intensive plant agriculture unless the consent authority is satisfied that:

(a) the land is located wholly within Zone RU1 Primary Production or Zone E3 Environmental Management or a combination of those zones, and

(b) the lot has an area of not less than 25 hectares, and

(c) the land is being or will be used for the purpose of intensive plant agriculture, and

(d) the quality and area of the land is suitable for the commercial production of the proposed or existing intensive plant agriculture of the kind proposed, and

(e) the dwelling house is required to support the carrying out of the proposed or existing intensive plant agriculture, and

(f) the land:

(i) has an average annual rainfall, recorded over a minimum 5-year period, sufficient for the proposed use, or

(ii) is subject, or will be subject, to irrigation requiring a licence under the Water Act 1912 or the Water Management Act 2000 and the volume and entitlement of water available under that licence is or will be adequate for the purpose of intensive plant agriculture, and

(g) services for the supply of electricity and other infrastructure to support the intensive plant agriculture are available or adequate arrangements have been made to make them available when required, and

(h) the sustainable intensive plant agriculture activity will have commenced or been established before the subdivision is registered

Note: State Environmental Planning Policy (Rural Lands) 2008 and the fact sheet entitled Assessing Intensive Plant Agriculture Developments (published by the NSW Government in December 2011) set out other relevant issues for the consideration of consent authorities when assessing development applications for intensive plant agriculture.

This special provision of the LEP is relevant because the site contains some primary production that the applicant proposes as intensive plant agriculture. It is important to note that in order to achieve permissibility for a dwelling under this clause, full compliance with all the listed provisions of the clause is required.

In relation to (a), the land is wholly located within the E3 Environmental Management zone and is therefore in conformity with this requirement.

In relation to (b), the area of the development site exceeds 25ha, but there is no lot within that bundle that meets the requirement. The applicant has proposed consolidation of the subject land to address that issue. As a combined or consolidated allotment, the subject land would meet the minimum area requirements of this clause provided the primary production being carried out on the site is deemed to be intensive plant agriculture, which is achieved under the amended proposal.

In relation to (c), Council is required to be satisfied that the land is being or will be used for the purpose of intensive plant agriculture. In determining this point it should be noted that the existing olive grove consists of two parts:

· one part of approximately 1ha of olives that are 14 years old and nearing productive maturity - this is the only surviving remnant of approximately 4ha planted in 2004

· another part of the existing grove consists of 5ha of immature olives not close to productive maturity that have been poorly managed. Many olive trees have died and require replacement.

Council staff and the DPI have inspected the property. Staff were advised that the existing activities on the site are not within the ambit of intensive plant agriculture because production for a commercial basis is not achieved by the current levels of activity on the site. The current activities of the site are best classified as “lifestyle” or “hobby farming” that might be more related to rural residential living rather than any form of agriculture on a commercial basis, which fails to satisfy a fundamental requirement of clause 4.2A(5A) and brings the overall site use into conflict with zone and LEP objectives.

However, notwithstanding the above, the applicant has following extended negotiations reconfigured the proposed development in an attempt to justify to Council that the site will be used for intensive plant agriculture into the future. The amended proposal now involves the refurbishment of the existing debilitated grove and the planting of an additional 6ha of olive plants to comprise a total of 12ha. The Farm Plan describes the agricultural component of the development as follows:

“Expansion of the horticultural enterprise will be undertaken with six hectares in the western section of the property to be planted to olives. The olives will be planted in a similar design to the existing grove which is 10m between rows and 6m between trees equating to a density of 160 trees per hectare.

The remainder of the property contains pasture grass species and some areas of degraded native vegetation. Approximately 30 hectares of improved pasture paddocks are used for lamb production. Production of olives is expected to be a profitable enterprise by the current owner in an average season and when appropriate management techniques are employed.

Following the establishment and expansion of the intensive plant agriculture operation, it is proposed to erect a dwelling on the subject property and to consolidate the various constituent parcels that make up the development lot into a single allotment."

The proposal to construct a dwelling has been put forward on the premise that the dwelling is needed to ensure the proper and efficient management of the grove. According to the DPI, the erection of a dwelling on the land should only be supported on the basis that the property is developed as a 12ha commercial olive grove enterprise.

Attached is a recommended Notice of Determination that contains several conditions of consent designed to ensure compliance with the DPI requirements and the provisions contained within Council’s LEP with respect to intensive plant agriculture. The conditions of consent will require the applicant to first establish the 12ha olive grove on the land prior to the issue of a Construction Certificate for the dwelling, a position which has been acknowledged by the applicant. The applicant will be required to obtain formal certification from Orange City Council following the completion of the establishment stage of the olive grove. For clarity, the establishment stage has been defined as the period of 12 months from the end of the planting stage, a position which has been endorsed by the DPI. The site will be inspected by the Director Development Services and a suitably qualified professional or commercial olive grower approved by the DPI at the completion of the establishment phase.

Based on the amended proposal and subject to the adoption of the conditions outlined in the attached Notice, Council can be satisfied that it is able to validly grant consent to the proposed development under this provision. In the absence of a viable commercial horticultural enterprise on the land, a dwelling house would be prohibited. A dwelling house is prohibited on the land in all other circumstances.

In relation to (d), the applicant’s revised Farm Plan suggests that the land is of sufficient quality to support the proposed activity. This position has been confirmed by the DPI.

In relation to (e), the existing olive grove has been planted for over ten years, but its quality is low as it has not been properly maintained in that period. The applicant submits that the construction of a dwelling would enable better farm management. This would appear a reasonable position to submit, however the applicant needs to make the effort to establish the olive grove first before the erection of a dwelling on the site can be agreed to. It is not considered an unreasonable imposition to require the applicant to travel to and from the site for the 12 month establishment period, given that Orange City itself is only 2.3km to the north of the site. The DPI has indicated that a dwelling would only be supported once 12ha of olives were established on the land.

In relation to (f)(i) and (f)(ii), the applicant has submitted information to suggest or support that sufficient rainfall occurs on the site of the olive farming plantation. There is separate and independent advice from the DPI to suggest that a temporary water supply to augment the existing naturally occurring precipitation during the propagation period would be useful. Advice received from the DPI initially insisted upon on the need for supplementary irrigation on a permanent basis to demonstrate commercial viability, but this has since been revised. The DPI now suggests that watering on a permanent basis is not required for ongoing plant survival, but supplementary watering for at least six months but preferably for 2 years after initial planting would be beneficial to survival rates.

The applicant has agreed to supplementary watering after initial propagation. Hand watering is proposed via the use of 20 litre slow release water drums for each plant, however the frequency and length of watering (number of months after planting) is not specified. The DPI is critical of the proposed measures for supplementary irrigation and recommend that the watering system be re-designed to perhaps include a permanent/temporary drip irrigation system linked to a water storage facility or be carried out via a watering truck/cart, the details of which would need to be submitted to Council for approval. Attached is a condition of consent addressing this issue. Council is advised that the ideal planting time would be just after Summer.

Olives Australia (OA) is the peak body for olive farming in Australia and has published a number of factsheets and advisory notes including the issue of watering and irrigation. It is a common question raised by prospective olive farmers. According to the OA publication Water Requirements For Olive Orchards., there are many factors that affect watering regimes.

Olive trees will generally survive in climates similar to Orange, although the cold winters will degrade production. For the Orange climate, peak production would be reached with about 1,016mm of annual water supply. The local rainfall average is about 800mm. With that rainfall, production should be expected to be about 60-70kg per tree (when fully mature).

Were the full water supply needs to be met on a permanent basis, the projected production could be expected to be as high as 90-95kg per tree. Significant benefits would be achieved by the implementation of a start-up watering regime for at least six months but preferably 2 years after propagation. It is also important from a sustainability aspect that weed control (slashing or mowing around the trees) and adequate fertilisation be provided during the establishment period.

Attached are relevant conditions of consent to this effect.

In relation to (g), there are no issues in relation to the supply of services for the proposed intensive plant agriculture activity.

In relation to (h), it is necessary for the applicant to go through a consolidation process for the lots involved so as to have a lot of sufficient size to meet the minimum lot size for intensive plant agriculture (ie 25ha) and then permit the erection of a dwelling on the site. A primary concern in this instance is that the intensive plant agriculture activity be in place and established before the dwelling is constructed. The consolidation (as a form of subdivision) is of lesser importance, but it will be necessary to consolidate the lots before a dwelling is erected.

As alluded to above, it is considered that a minimum 12 month establishment period after completion of the rejuvenation and planting component of the olive grove is necessary as a means of quantifying what constitutes ‘established”.

Part 7 - Additional Local Provisions

7.1 - Earthworks

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

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

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

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

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

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

(f) the likelihood of disturbing relics

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

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

No details have been provided with respect to this application concerning the levels and extent of earthworks that may be required for the proposed dwelling and its likely access. However, the extent of earthworks following site inspection of the dwelling site will be less than 1m of cut and fill. There will be extensive earthworks relating to the construction of the access drive, however the applicant is advising that such works will not result in significant vegetation loss.

The road will generally not be visible in those parts of the access drive that will require work. It is considered that the low scale of earthworks has a corresponding low risk of uncovering or damaging any buried Aboriginal heritage that may exist on the site.

7.4 - Terrestrial Biodiversity

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

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

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

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

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

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

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

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

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

Council's LEP mapping does not show the location of the proposed dwelling as being within a mapped Environmentally Sensitive Area (ESA). However, parts of the site are mapped in the LEP as containing ESA. Site inspection reveals that such environmental sensitivity extends somewhat further than is shown in the mapping under the definitions applicable in the State legislation.

As parts of the site are mapped as ESA land, this prevents the proposed development being considered under the exempt and complying development provisions of the SEPP code. As a blanket requirement for a development application being required, it is clear that the intent of the ESA mapping is primarily to act as a red flag, in which a merits based assessment is needed by Council that includes determining the full extent of such ESA mapping on a given site.

In this case, the proposed development is not located within the mapped area.

7.6 - Groundwater Vulnerability

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

This requires that Council consider:

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

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

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

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

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

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

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

7.7 - Drinking Water Catchments

(1) The objective of this clause is to protect drinking water catchments by minimising the adverse impacts of development on the quality and quantity of water entering drinking water storages.

(2) This clause applies to land identified as “Drinking water” on the Drinking Water Catchment Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider whether or not the development is likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to:

(a) the distance between the development and any waterway that feeds into the drinking water storage, and

(b) the onsite use, storage and disposal of any chemicals on the land, and

(c) the treatment, storage and disposal of waste water and solid waste generated or used by the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

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

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

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

The subject property is located within the Orange City water supply catchment. The proposed development has been assessed against the matters listed in this clause, and it is considered that there are no issues arising that require refusal or modification of the proposal on the basis of possible impacts on the water supply.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

Under clause 7 of the SEPP, Council must consider whether the land is contaminated and whether the land requires any form of remediation to render it suitable for the purpose for which it is proposed to be used. The previous land uses must be considered along with any visible or tangible evidence on the site.

In this case Council has no records that indicate the land was used for purposes likely to have caused contamination of the site. Its potential for contamination is very low. A site inspection conducted as part of the assessment has not revealed any evidence of contamination or activities on the site which would render it unsuitable for the proposed development.

On the basis of the available evidence, it is considered that the site is suitable for the proposed use and no further preliminary investigation is required to satisfy the requirements of the SEPP.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

A BASIX certificate has been submitted as part of the application which addresses the requirements of this SEPP insofar as it relates to the proposed development.

State Environmental Planning Policy - Rural Lands (2008)

The rural lands SEPP is applicable because the proposed development involves elements that by definition constitute “subdivision”; and also proposes the erection of a dwelling. Part 3 of the Policy sets out provisions for rural subdivision and dwellings.

The Rural Subdivision Principles are as follows:

(a) the minimisation of rural land fragmentation,

(b) the minimisation of rural land use conflicts, particularly between residential land uses and other rural land uses,

(c) the consideration of the nature of existing agricultural holdings and the existing and planned future supply of rural residential land when considering lot sizes for rural lands,

(d) the consideration of the natural and physical constraints and opportunities of land,

(e) ensuring that planning for dwelling opportunities takes account of those constraints

Clause 10 lists the matters to be considered when determining development applications for rural subdivisions or rural dwellings:

(a) the existing uses and approved uses of land in the vicinity of the development,

(b) whether or not the development is likely to have a significant impact on land uses that, in the opinion of the consent authority, are likely to be preferred and the predominant land uses in the vicinity of the development,

(c) whether or not the development is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d) if the land is not situated within a rural residential zone, whether or not the development is likely to be incompatible with a use on land within an adjoining rural residential zone,

(e) any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d).

In relation to (a), the surrounding land uses are generally rural developments of various types and intensities.

In relation to (b), approval of a dwelling is an ancillary element to intensive plant agriculture that is to be established. As such, the dwelling should not be viewed in isolation, rather a component of activities that are consistent with the surrounding land use patterns.

In relation to (c) and (d), the subject property is not in a rural residential area, and the proposed development in its amended form is considered compatible to the existing surrounding agricultural land uses and those which are likely to develop on the subject property.

In relation to (e), the applicant has considered and proposed various mitigation elements that will have the effect of providing mitigation to the compatibility issues that a transformation to a rural residential lifestyle might bring to the surrounding agricultural land.

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

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

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

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land (Parts 2 and 6). An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

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

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

The corresponding zone to zone 7 (Water supply catchment) (Orange LEP 2000) is zone E3 (Environmental Management) (Orange LEP 2011). As such, Orange DCP 2004 – Parts 2 and 6 are relevant to this proposal. The provisions of these Parts are considered below.

PART 2 - NATURAL RESOURCE MANAGEMENT

Stormwater Quality

Not applicable in this zone.

Groundwater Issues

1 Development applications for development (excluding dwelling houses) that proposes to extract groundwater or involve on-site wastewater disposal identify potential risks to, and management of, groundwater resources.

Not applicable to this development as the development does not involve extraction and use of groundwater as an element of the application.

2 Development is carried out in a manner that does not adversely affect groundwater resources.

The proposed development has been submitted with an effluent management study indicating that the site is capable of managing effluent from the dwelling and recommending the type and capacity of the effluent management system. With regard to the agricultural activities proposed, it is considered unlikely that such uses will have any significant effect with regard to groundwater sources.

3 Development considered by Council to have the potential to significantly affect groundwater quality incorporates a monitoring program and provides test results from a NATA-accredited laboratory to Council for review and for inclusion in the City SoE Reports

An ongoing monitoring program is considered unnecessary.

4 Development that requires or proposes the use of groundwater demonstrates that the groundwater extraction will meet the requirements of DLWC, where necessary

Groundwater extraction is not proposed under this application.

Vegetation Management

1 Compliance with the Native Vegetation Conservation Act 1997

The Native Vegetation Act (NVA) is not directly applicable to the subject application as the amount of area affected is below the minimum thresholds specified to trigger consideration of the Act.

2 Development is designed and constructed in a way that minimises the impact on existing vegetation.

The material submitted with the application demonstrates that the proposed dwelling has been located to minimise vegetation loss.

3 Particular attention is given to the effect of rural or urban residential release development on existing vegetation and scenic areas.

The revised Farm Plan (unlike its predecessor) acknowledges the presence of some significant native vegetation on the site. Both the intensive agriculture and the dwelling components and associated infrastructure apply avoidance strategies, using careful siting for the development to avoid major impacts on significant vegetation. In terms of impacts on scenic qualities, the proposed development will not have a significant adverse effect.

4 Development applications indicate on plans the location of all significant trees affected by or in the vicinity of development.

The application as submitted has managed to avoid significant damage or loss of significant vegetation known to be located on the site.

5 Applications demonstrate to Council’s satisfaction that all practical measures have been made to retain trees that contribute to and embellish the Orange landscape

The proposed development in its amended form achieves this planning outcome.

Flora and Fauna Management

This exists in the DCP as a separate matter for consideration, but is really a variation to the matters previously canvassed. It applies ecological conservation and sustainability principles to areas of high biodiversity, and could be applied to issues like native grasslands and rocky outcrops, both of which are now also listed as protected habitats in State legislation. There is a high likelihood that such features might exist on the site.

PART 6 - RURAL DEVELOPMENT

Planning Outcomes for (Intensive Agriculture) Subdivisions and the Placement of Rural Dwellings

This part provides a comprehensive assessment tool for dealing with various types of rural development, including that pertaining to intensive plant agriculture and the justified need for a dwelling on certain parcels of land that under ordinary circumstances would not be entitled to a dwelling. The provisions also provide guidance on the site selection criteria for rural dwellings.

Planning Outcome 6.10-3 of the DCP in particular provides guidelines for ensuring suitable management of intensive plant agricultural enterprises. In particular, the provisions require Council to be satisfied that the land is being used for intensive plant agriculture or that satisfactory arrangements are in place to provide for the establishment of the intensive plant agricultural enterprise on the land before allowing a dwelling. This has been discussed in depth above under the heading “Clause 4.2A - Erection of Dwelling Houses on Land in Certain Rural and Environmental Protection Zones”.

As discussed above, the applicant now proposes the establishment of a 12ha olive enterprise within the property. Council has sought advice from the NSW DPI with regard to the proposed intensive agriculture operation. The DPI is requiring the rejuvenation of the existing grove, augmented by an additional 6ha of new plantings, proper management of the existing grove including pruning, weeding and replacement plantings, and watering during the propagation stage for the new grove.

The applicant has acknowledged that a dwelling house can only be constructed following satisfactory signoff from Council that the olive enterprise has been first established. Conditions of consent as recommended and discussed elsewhere in this report have been included to address this issue.

Planning Outcome 6.10-2 of the DCP in particular provides guidelines for the siting of rural dwelling houses. The planning outcomes contained therein relate to the suitability of the site for a dwelling and address issues including, but not limited to access, effluent management, contamination, buffers, privacy, water supply and protection of remnant vegetation. The applicant has suitably demonstrated compliance with this criteria. There do not appear to be any areas on the site proposed that are contrary to the heads of consideration listed in PO 6.10-2. The siting of the dwelling is considered to be acceptable in this regard. Conditions of consent are also recommended to ensure that the development proceeds in an acceptable manner.

The proposed development is not inconsistent with provisions contained within Chapter 6.

DEVELOPMENT CONTRIBUTIONS PLAN 2017

Development on land situated outside the Orange urban area and areas zoned for rural residential purposes is not required to make contributions for Roads and Cycleways and Stormwater Drainage. The subject land is consistent with this categorisation.

The payment of $5,261.65 is to be made to Council in accordance with Section 94 of Act and the Orange Development Contributions Plan 2017 (LGA remainder) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,845.39 x 1 x three bedroom dwelling	3,845.39
Community and Cultural	@ $1,115.17 x 1 x three bedroom dwelling	1,115.17
Roads and Traffic Management	@ $0 x 1 x three bedroom dwelling	0
Stormwater Drainage	@$0 x 1 x three bedroom dwelling	0
Local Area Facilities	@ $0 x 1 x three bedroom dwelling	0
Plan Preparation & Administration	@ $301.09 x 1 x three bedroom dwelling	301.09
Subtotal
Credit for dwelling entitlement	@$0	0
TOTAL:		$5,261.65

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2017 (LGA Remainder). This Plan can be inspected at the Orange Civic Centre, Byng Street, Orange.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

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

The likely impacts of the proposed development have been considered in the body of this report.

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

The site of the proposed development is principally agricultural, with some environmental considerations due to its location within the City’s water supply catchment. Parts of the site are constrained due to the environmental and biodiversity concerns. The activities on the site as viable intensive plant agriculture render the erection of a dwelling permissible, notwithstanding the small size of the holding.

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

The proposed development is not defined as advertised development under the provisions of the LEP, and as such no formal exhibition of the application was required. No objections have been received in relation to this application, however the applicant has produced several letters, identical to each other, that express their support for the proposed development, but do not add in any way to the substantive arguments to support approval.

PUBLIC INTEREST s79C(1)(e)

It is considered a matter for public interest that agricultural land be utilised efficiently to maximise economic development and employment opportunities, add security to food sources, and minimise unplanned rural residential and residential development within areas set aside primarily for agriculture. The unplanned placement of rural development will place unnecessary pressure and expense on public infrastructure provision.

The initial proposal had the potential to be acting contrary to the public interest as staff and the DPI were unconvinced that the applicant had demonstrated compliance with the requirements of Council’s LEP. Unsound decisions in rural planning issues tend to generate knock-on issues that affect other rural planning issues and overall economic development in the LGA. It is considered that in this case, the amended proposal, if carried out in accordance with the consent, can be undertaken in a way that is in the interests of both the individual and the public as a whole.

SUMMARY

A Section 79C assessment of the development indicates that the proposal in its amended form is acceptable and can comply with the requirements of Clause 4.2A(5A) of Orange LEP 2011 subject to certain conditions.

COMMENTS

A draft Notice of Approval is attached for consideration.

Attachments

1 Notice of Approval, D17/63324 ⇩

2 Plans, D17/60792 ⇩

3 Revised Farm Plan, D17/60794 ⇩

4 DPI advice, D17/60832 ⇩

5 Submissions, D17/64311 ⇩

Planning and Development Committee 7 November 2017

2.3 Development Application DA 258/2015(1) - 131 and 199 Bargwanna Road

Attachment 1 Notice of Approval

OrangeCityCouncilNEW#45524E (2)

ORANGE CITY COUNCIL

Development Application No DA 258/2015(1)

NA17/ Container PR1144

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 81(1)

Development Application
Applicant Name:	Mr GM Gleeson
Applicant Address:	PO Box 1154 ORANGE NSW 2800
Owner’s Name:	Mr GM and Ms CM Gleeson
Land to Be Developed:	Lots 226 and 227 DP 750387, and Lot 1 DP 1141864 - 131 and 199 Bargwanna Road, Orange
Proposed Development:	Intensive Plant Agriculture, Dwelling House and Subdivision (consolidation of land)

Building Code of Australia building classification:	To be determined by Certifier

Determination
Made On:	7 November 2017
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	8 November 2017
Consent to Lapse On:	8 November 2022

Terms of Approval

The reasons for the imposition of conditions are:

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

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

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

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

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

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

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

Conditions

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

(a) Plan/s numbered House Plans by Gleeson Homes numbered Sheets 1 & 2 (House Plan), Proposed Farm Layout Plan prepared by Envirowest Consulting numbered 5911 dated 6/9/2017 with red hatching (the Farm Plan Layout). Farm Management Plan by Envirowest reference R5911a5, dated 28 August 2017 (Farm Management Plan)

(b) statements of environmental effects or other similar associated documents that form part of the approval including BASIX Certificate 842960S

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(6) The payment of $5,261.65 is to be made to Council in accordance with Section 94 of Act and the Orange Development Contributions Plan 2017 (LGA remainder) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,845.39 x 1 x three bedroom dwelling	3,845.39
Community and Cultural	@ $1,115.17 x 1 x three bedroom dwelling	1,115.17
Roads and Traffic Management	@ $0 x 1 x three bedroom dwelling	0
Stormwater Drainage	@$0 x 1 x three bedroom dwelling	0
Local Area Facilities	@ $0 x 1 x three bedroom dwelling	0
Plan Preparation & Administration	@ $301.09 x 1 x three bedroom dwelling	301.09
Subtotal
Credit for dwelling entitlement	@$0	0
TOTAL:		$5,261.65

(7) Land described as Lots 226 and 227 DP 750387, and Lot 1 DP 1141864 shall be consolidated into a single allotment and be registered at the Land and Property Information Centre prior to the issue of a Construction Certificate. Evidence of consolidation of the lots forming the development site is required to be submitted to Council and the Principal Certifying Authority prior to the issue of a Construction Certificate.

(8) This consent is granted subject to compliance with Clause 4.2A(5A) of Orange Local Environmental Plan 2011. Accordingly, prior to the issue of a Construction Certificate for the dwelling the applicant shall establish and maintain 12 hectares of olive trees planted at a density of 160 trees per hectare with trees spaced 6 metres apart in rows 10 metres apart in accordance with paragraph 5.1 of the Farm Management Plan and located as identified by red hatching on the Proposed Farm Layout Plan.

(9) The applicant is to undertake the following works to establish the commercial olive grove to Council’s satisfaction:

Planting Stage

· Restore and rejuvenate the existing olive grove involving:

- replacement of olive trees that have perished, are missing or diseased (or otherwise in poor health) within the existing row structure to achieve the density and spacing required by Condition (8)

- thorough weed management incorporating mulching/slashing and/or mowing and/or use of herbicides as necessary

- install and use a watering system that will provide for the effective watering of young trees for the first two years. This may include a permanent/temporary drip irrigation system linked to a water storage facility or via a watering truck/cart, the details of which shall be submitted to Council for approval by the Director Development Services.

- existing trees which are to be retained must be pruned and trained to have a single trunk clear of branches from the ground to a height of 1m to enable effective harvesting of fruit.

· Extend the olive grove to 12 hectares in area involving:

- deep ripping and soil preparation according to commercial best practice of the new grove areas

- planting a minimum of 1,600 new olive trees in accordance with the approved Farm Management Plan and Farm Layout Plan

- thorough weed management incorporating mulching/slashing and/or mowing and/or herbicide as necessary

- install and use a watering system that will provide for the effective watering of young trees for the first two years. This may include a temporary drip irrigation system linked to a water storage facility or via a watering truck/cart, the details of which shall be submitted to Council for approval.

Establishment Stage

· The establishment stage is the period of 12 months from the end of the planting stage as certified under Condition (10).

· The watering system for both existing and extended olive grove is to be kept in place, maintained and operated for at least 2 years from the date of completion of the planting in the Planting Stage.

· Prune all olive trees to suit mechanical harvesting with a tree shaker and catcher. Each tree shall have a single trunk and should be free of branches from the ground to a height of 1m to enable effective harvesting of fruit.

· Any trees that fail or die within the first 6 month period from establishment are to be documented and replaced.

· Successful establishment shall include verification that the enterprise is in line with commercial best practice olive production in the region.

(10) Compliance with Conditions (8) and (9) is to be subject to inspection by Council’s Director Development Services and a suitably qualified professional or commercial olive grower approved by the Department of Primary Industry. Inspections shall take place at the conclusion of the Planting Stage and at the conclusion of the Establishment Stage at the cost of the Applicant.

(11) A Construction Certificate for the dwelling must not be issued until the full 12 hectares of olive grove has been established and has been confirmed to the satisfaction of the Director Development Services at the conclusion of the Establishment Stage. Certification from Orange City Council, upon being satisfied that the above criteria have been met, is required to be submitted to the Principal Certifying Authority prior to the issue of a Construction Certificate for the dwelling.

(12) The position of the effluent disposal area as depicted on the approved site plan shall be relocated a minimum of 20m to the northeast of the currently indicated position. A detailed plan of the revised location of the effluent management system shall be submitted with the Construction Certificate application.

(13) An approval under Section 68 of the Local Government Act is to be sought from Orange City Council, as the Water and Sewer Authority, for water, stormwater and the on-site sewer system. No plumbing and drainage is to commence until approval is granted.

The onsite sewer management report is to accompany the application recommending a suitable disposal area. Manufactures specifications for the on-site effluent disposal system are to accompany the application.

PRIOR TO WORKS COMMENCING

(14) 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.

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

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

DURING CONSTRUCTION/SITEWORKS

(17) 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.

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

(19) A minimum 200mm thick gravel vehicular entrance incorporating a pipe culvert is to be constructed to provide access to the proposed dwelling from Bargwanna Road.

The pipe culvert is to consist of minimum 375mm diameter stormwater pipes and 2 concrete headwalls and be a minimum 5 metres long. Where it is not possible to construct a pipe culvert, due to shallow depth of table drain or the entrance being located on a crest, a 6 metre long by 2 metre wide by 100mm deep concrete dish drain may replace the pipe culvert.

The location of this entrance and selection of pipe culvert or dish drain are to be as directed by Orange City Council. The entrance is to be constructed in accordance with the RTA Guidelines for Intersections at Grade Figure 4.9.7 Rural Property Access with Indented Access. The construction is to be as per the requirements of the Orange City Council Development and Subdivision Code.

(20) A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(21) 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.

(22) Finished ground levels are to be graded away from the buildings and adjoining properties and must achieve natural drainage. The concentrated flows are to be dispersed down slope or collected and discharged to the stormwater drainage system.

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

(24) 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 and works on Public Land have been carried out in accordance with the Orange City Council Development and Subdivision Code and the foregoing conditions.

(25) 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

(26) The intensive plant agricultural operation shall be carried out, managed and maintained in accordance with the Farm Management Plan except as modified by the further conditions of this consent.

(27) No native trees are permitted to be removed in conjunction with the dwelling construction, the driveway or effluent management area. In the event that farm operations require further tree removal prior consent or approval shall be first obtained from Orange City Council. Removal of native vegetation from this site is not permitted without consent or approval.

(28) In the event that aboriginal artefacts or other elements of aboriginal heritage are located on the site, all work in the vicinity of that item or artefact shall cease until the necessary approvals and permits pursuant to the National Parks and Wildlife Act 1974 (or its successor) have been obtained.

(29) In addition to the existing olive grove, which is to be managed through weed control, replacement plantings, pruning and start up watering, the applicant is required to install and maintain an additional area of olive grove to establish 12 hectares of olive trees as set out in the Farm Management Plan. The applicant shall maintain the ongoing health and productivity of the olive grove at all times that the dwelling is in use, or apply and have approved such other intensive plant agriculture operations as are deemed appropriate to utilise the site in place of the olive farm. The farm must at all times be used for intensive plant agriculture and be deemed to be used in this way on a viable commercial basis.

(30) Start-up watering of the olive grove as required by Condition 9 above shall be provided and maintained for a minimum period of 2 years from the completion of the propagation and rejuvenation process.

Other Approvals

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

Nil

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

Nil

Right of Appeal

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

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

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

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

Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	8 November 2017

Planning and Development Committee 7 November 2017

2.4 Development Application DA 211/2016(2) - 76 Hill Street

RECORD NUMBER: 2017/2182

AUTHOR: Michael Glenn, Senior Planner

EXECUTIVE Summary

Application lodged	15 June 2017
Applicant/s	Mr RD and Mrs EM Linsell
Owner/s	Mr RD and Mrs EM Linsell
Land description	Lot 12 DP 1225121 - 76 Hill Street, Orange
Proposed land use	Dwelling Alterations and Additions, Garage (new), Existing Carport/Garage Conversion (gymnasium) and Fencing (front boundary fencing)
Value of proposed development	$321,750

Council's consent is sought to modify DA 211/2016(1). The original application related to alterations and additions to an existing dwelling, conversion of the existing carport and garage at the rear of the site to a gymnasium, construction of a garage and front fencing at 76 Hill Street. In its original form the proposed development had sought to construct an enclosed garage adjacent to the front of the existing dwelling, but following negotiations with Council’s assessment staff, the applicant agreed to amend the design to a detached open sided carport consistent with advice received from Council’s Heritage Adviser at that time.

The applicant has progressed with the construction of the proposed development as approved with the exception of the carport. The applicant now seeks to amend the approved development to once again propose a garage at the street frontage a position in which was not supported in the original determination of the application. A small setback from the front building line (ie the front of the house) of 800mm is proposed.

The reason why an attached garage was not supported with the original development application and remains unsupported is that this site is located centrally to the Central Orange Heritage Conservation Area and has a high level of significance to the Area. Houses of the era did not have garages at, or close to the front setback of the house. The construction of such a structure beside this highly valued property would significantly detract from the heritage values of the existing house and the surrounding Heritage Conservation Area. The focus of the street to this property should remain at the house and not the garage.

Assessment staff have again sought advice from Council's Heritage Advisor who has advised that there remains concerns about the likely impacts of the development as modified on the heritage values of Hill Street. In this case there are clear and practical options available to the applicant, which essentially run to a carport at the front of the site as approved, or alternatively a garage set back behind the building line several metres to reduce impacts on the street. Despite the many attempts by Council staff to negotiate a redesign of this aspect of the development, the applicant has indicated an unwillingness to set the structure back as a garage.

The proposed garage setback of 800mm behind the building line does little to allay the adverse heritage and streetscape impacts arising from the revised building form. The proposed structure is inconsistent with the recently adopted Council Infill Guidelines, which state that garages and carports should be located to the rear of allotments, being the traditional location. Given this, Council staff consider that the proposed garage will detract from the streetscape of Hill Street. Accordingly it is recommended that Council refuses the application to modify the development consent. A decision to do so would mean that the applicant may construct a detached carport as originally approved in this location.

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 LEP should be considered by Council to be a definitive document. 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 - there are no grey areas in terms of permissibility. The objectives of each zoning and indeed the aims of the LEP itself are, however, open to interpretation and can be used to guide decision making around appropriateness of development.

The purpose of the recently adopted infill guidelines was to provide further specialised design guidance for the carrying out of work specifically within a Heritage Conservation Area or adjacent to a heritage item, to ensure new development harmonises with the character of the neighbourhood. These guidelines therefore will have particular relevance in the determination of this application.

Infill development should complement and enhance the local character by relating to the predominant scale, massing, colours, setbacks and materials of the area. The guidelines, amongst other things, encourage garages and carports to be located to the rear of the allotments, being the traditional location to minimise their visual impact on the streetscape. Based on the interpretation of the guidelines the proposal is considered to be in clear breach of the adopted Infill Guidelines 2017.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council refuses modification of development application DA 211/2016(1) for Dwelling Alterations and Additions, Garage (new), Existing Carport/Garage Conversion (gymnasium) and Fencing (front boundary fencing) at Lot 12 DP 1225121 - 76 Hill Street, Orange for the reasons contained in the attached Notice of Determination.

further considerations

SUPPORTING INFORMATION

THE APPLICATION

Council's consent is sought to modify DA 211/2016(1), which permits dwelling alterations and additions, garage (new), existing carport/garage conversion (gymnasium) and fencing (front boundary fencing). The proposed modification of consent seeks to replace the approved carport with an enclosed garage, close to the front building line of the existing dwelling.

THE PROPOSAL

The proposed modification of consent seeks to replace the currently approved carport with a single garage set back 800mm from the front building line of the dwelling. It is proposed to finish the proposed garage in brick, with imitation corbelling and gable decorations. The roof is proposed to be constructed in custom orb. Colour is not specified. It is proposed to install a timber tilt-a-door to the front of the garage.

MATTERS FOR CONSIDERATION

Section 5A Assessment

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

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

Section 79C

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

(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,

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

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

The proposed modification is inconsistent with the objectives (a) and (f) described above. It is considered that the proposed garage will not complement and/or enhance the unique character of the conservation area.

The development has the potential to have an adverse impact upon the valued environmental heritage and unique features of this length of Hill Street. There is ample opportunity to position the subject garage further within the development site in a manner that would alleviate the potential impacts on streetscape a position of which the applicant has been unwilling to entertain.

Clause 1.6 - Consent Authority

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Mapping

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

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

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

Part 2 - Permitted or Prohibited Development

The subject site is located within the R1 General Residential zone. The proposed development is defined as dwelling. Pursuant to the LEP 2011 Dictionary:

Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

Dwellings are permitted with consent in the R1 General Residential zone. Garages/carports are considered to be an ancillary component of a dwelling and therefore permissible with development consent.

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

· To provide for the housing needs of the community.

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

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

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

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

The proposal is consistent with the objectives of the R1 zone. The proposed development will improve the function of the existing dwelling, which provides for a variety of housing types. The proposal involves residential land use only. The subject land is accessible to public transport routes. The site is not within proximity to the Southern Link Road.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

The subject site is located within the Central Orange Heritage Conservation Area. Clause 5.10 is applicable to the proposal. The relevant provisions of the Clause are listed below.

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

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

(c) to conserve archaeological sites,

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

The proposed development is considered to be inconsistent with the objectives of Clause 5.10 of the LEP and the recently adopted Infill Guidelines. The proposed modification if approved would enable development that would significantly detract from the local heritage value, introducing elements into the streetscape that would be unsympathetic to the character of the locality.

New buildings in a valued historic context should reinforce the existing front and side setbacks of the area to provide a consistency of streetscape quality. Setting the new garage too far forward means that it will dominate the character of the existing streetscape. The infill guidelines suggest that garages and carports should be located to the rear of the allotments, being the traditional location. In this case it has been suggested as a compromise given that Council has agreed to the conversion of the existing garage at the rear of the site to a home gymnasium that the applicant consider setting the proposed garage back several metres to reduce its impact upon the streetscape. This position is not supported by the applicant.

(4) Effect of Proposed Development on Heritage Significance

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

The Orange Heritage Database provides the following statement of significance for the dwelling at 76 Hill Street:

The late Victorian period brick villa retains a set of unusual architectural details, is associated with the Dalton family, complements the streetscape opposite Knocklong and contributes to the conservation area as a heritage item.

The dwelling is described as follows:

Victorian brick house with projecting gable end and abutting front verandah, returning on north side. Corrugated iron bullnose verandah roof supported on turned timber posts with lattice valence. Elaborate timber decoration to gable end and fretwork bargeboards. Timber brackets to front window hood. Ventilated gablet end on roof. Chimneys of poly-chrome brick with corbelling. Double hung sash and casement windows. Glazed and panelled entrance door and sidelights with tinted glass panes.

The issues with the proposed garage were considered with the original development proposal and therefore have been of significant concern for some time. As currently approved the alterations would allow a carport to be constructed but not an enclosed garage. The current proposed modification is substantially a return to the original form of the development, and this has always been considered to detract from the traditional character of the building and streetscape where garages are traditionally located within the rear yard.

(5) Heritage assessment

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

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

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

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

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

The subject land is located within the Central Orange Heritage Conservation Area but is not specifically listed in Schedule 5 of the LEP as a Heritage Item. However it should be noted that the subject land is situated in the vicinity of a concentrated cluster of land listed within schedule 5 of the LEP as Heritage Items (as shown below), namely contiguous rows of properties at 58 to 62 Byng Street, 69 – 85 Byng Street and 66 – 74 Byng Street (save for 70- Byng Street) and 87 Hill Street, which is located on the opposite side of Hill Street to the subject land. It is noted the subject land adjoins the heritage item known as 68 Byng Street.

Figure 1 - map indicating listed items of Environmental Heritage

in the vicinity of the subject land

The applicant has submitted a Statement of Environmental Effects that accompanies the development application that includes a general assessment of heritage matters. However, the assessment provided does not satisfy the NSW Heritage Impact Assessment Guidelines for development of this type. The heritage assessment is essentially a series of statements setting out general conservation principals that are of no particular assistance or relevance to this modification. In places the heritage assessment is essentially a critique of the Heritage Advisor's comments, and how the owners are strongly opposed to a carport as a design solution. There is no real analysis of proper alternatives, particularly setting the garage back further behind the front building line.

Based on the above described heritage context it is important give careful consideration to the manner in which this development will interact with the surrounding streetscape. A carport was accepted in the parent approval on the basis of its lightweight and transparent appearance, which would tend to overcome the negative aspects that a full garage is unable to avoid. The application was referred to Council’s heritage adviser for formal advice.

A summary of the advice is as follows:

Heritage Advisor's Comments

“The revision for the garage does not conform with the DCP policies for development within the conservation area and does not conform with development associated with a listed heritage site.

The details provided for the extension illustrated on the northern elevation facing the street will be visible from the street. They are contemporary without reference or interpretation of the architectural style and detail evident in the original house and verandah. The proposal is not consistent with previous advice provided on several occasions.

The proposal is not supported on heritage grounds”

Based on the advice received from Council’s Heritage Adviser and an assessment of the development against the requirements of Clause 5.10 of the LEP and the recently adopted Infill Guidelines it is recommended that Council does not support the proposed development as submitted.

Part 7 - Additional Local Provisions

7.1 - Earthworks

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

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

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

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

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

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

(f) the likelihood of disturbing relics

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

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

Some earthworks would need to be undertaken, but are not relevant to the issues surrounding the proposed amendment.

7.3 - Stormwater Management

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

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

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

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

Stormwater management was considered for the original application. The development as modified would not substantially alter the management of stormwater for this site, as compared to the existing approval.

7.6 - Groundwater Vulnerability

Groundwater vulnerability was considered for the original application. The development as modified will have nil impact upon groundwater in the locality.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 (Remediation of Land) applies to the land, but has no relevance to this application. The development as modified has no greater and no different impacts in terms of the SEPP criteria, as is applicable to the existing consent.

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

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

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

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land (Part 13). An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

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

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

The corresponding zone to zone 2(a) Urban Residential (Orange LEP 2000) is zone R1 General Residential (Orange LEP 2011). As such, Orange DCP 2004 – Chapter 7 - Development in Residential Areas is applicable. Further, as the area is located within a Conservation Area of the LEP, Chapter 13 - Heritage Conservation is also relevant to this proposal.

A site analysis is required under the provisions of Chapter 7. The development as modified includes a basic site analysis, but the site analysis does not make any reference to the new infill guidelines, which now play a critical role in establishing a planning framework about appropriate development forms within heritage areas, particularly with regard to the heritage character and appropriate infill development. The submission that has been made provides limited analysis of the Infill Guidelines. Such an omission is indicative of a general failure to adequately consider neighbourhood character and heritage values of the locality.

Section 13 of the DCP contain heritage provisions. The DCP acknowledges the high quality of the residential character in the Central Orange Heritage Conservation Area, and gears its principals and guidance towards the conservation of that area and its character. The heritage outcomes contained in section 13.3 of the general provisions place an emphasis on respectful and interpretative design. This includes increasing the setbacks for elements such as garages and making the new infill development have less impact on the street, which is mostly achievable by adopting a “transparent design “ (essentially a carport), or setting the garage at the rear of the site, or at least further back in the driveway. None of these elements or design techniques are evident in the proposed modification.

INFILL GUIDELINES

The Infill Guidelines provide the following provisions with respect to garages:

“garages and carports are not permitted to break the consistent building line, and should be located to the rear of allotments, being the traditional location. Where access is available garages and carports should be located behind the building line to minimise their visual impact on the street scape”.

The Infill Guidelines are adopted Council policy and carry considerable weight in the assessment. The proposed development is clearly not consistent with the Infill Guidelines. If approved, the proposed modification would detract from the streetscape considerably, and would lessen the veracity of the guidelines for future similar assessments and lead to an overall lessening of the heritage value of this locality. Moreover, the applicant in this case does have a functional alternative, which they are not willing to accept.

As previously discussed, the applicant has submitted a Statement of Environmental Effects that accompanies the development application that includes a general assessment of heritage matters. However, the assessment provided does not satisfy the NSW Heritage Impact Assessment Guidelines, and the proper consideration of alternatives has not been undertaken. In addition, the heritage assessment does not mention the Infill Guidelines, despite the consultant being advised of their provisions by staff. The heritage assessment is essentially a series of statements setting out general conservation principals that are of no particular assistance or relevance to this modification. The heritage assessment is essentially a critique of the Heritage Advisor's comments, and how the owners are strongly opposed to a carport as a design solution. There is no real analysis of possible alternatives, particularly setting the garage back further behind the front building line.

It is evident from the submission that no real attempt has been made by the applicant to seek solutions that are consistent with Council’s policy. Council’s policy is relevant to the situation being presented and should be upheld in this instance. There are no solid grounds to justify variation in this case.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

The provisions of BASIX will commenced on 1 July 2005.

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

The proposed modification if approved is likely to lead to a lessening in the conservation value of the locality and a weakening of the effectiveness of the recently adopted Infill Guidelines. In this regard the proposed modification would constitute an undesirable and adverse precedent.

Allowing a garage at the front building line unnecessarily increases the presence and importance of the new structure as an element of the streetscape, and breaks up the spacing rhythms between the main buildings, which are important in this locality in helping to define and emphasise the architectural styles of the dwellings.

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

The design of the proposed modification is not considered to be suitable for this site. As discussed elsewhere in this report opportunities exist on this site for alternative solutions, such as placing a garage towards the rear or merely setting the garage further back in the side driveway. The applicant has been requested to consider the suggested design changes but has been willing to adopt such alternatives. Within the narrow parameters being set by the applicant, whereby essentially the garage must be pushed forward to the building line of the house, the site cannot be considered suitable for that solution.

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

The proposed development is defined as "advertised development" under the provisions of the Environmental Planning & Assessment Regulations. The application was advertised for the prescribed period of 14 days and at the end of that period no submissions had been received.

PUBLIC INTEREST s79C(1)(e)

The proposed development is considered to be in the interest of the wider public. The Orange Local Government Area has a number of items and areas of heritage significance pursuant to Orange Local Environmental Plan (OLEP) 2011. These areas are highly valued by the community and Council is committed to conserving their character while supporting adaptive reuse and sympathetic infill development.

Good quality and sensitive design of infill development in heritage areas is of paramount importance in retaining the historic character of precincts within Orange. An important aspect of good design is designing in context and having regard to the site and its surroundings, with particular consideration to the surrounding built form and significant landscaping.

Residential infill contributes to the physical and social renewal of the older neighbourhoods, making better use of existing infrastructure, public facilities and services. Council recently adopted Infill Guidelines to assist with the assessment of development applications so as to ensure that new development harmonises with the character of the neighbourhood. As discussed in the body of this report, the positioning of the proposed garage is considered to be inconsistent with the adopted Infill Guidelines and will have an overall adverse impact upon the Orange Central Heritage Conservation Area.

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. However, for the reasons outlined in the body of this report the development as modified is not considered to be acceptable in this case. A section 79C assessment of the development indicates that the proposed structure is inconsistent with Council’s planning controls and the recently adopted Infill Guidelines.

Assessment staff have sought advice from Council's Heritage Advisor who has advised that there remains concerns about the likely impacts of the development as modified on the heritage values of Hill Street. In this case it has been determined that there are clear and practical options available to the applicant, which essentially run to a carport at the front of the site as approved, or alternatively a garage set back behind the building line several metres to reduce impacts on the street. Despite the many attempts by Council staff to request the applicant to consider redesign of this aspect of the development, the applicant has indicated an unwillingness to set the structure back as a garage.

Accordingly it is recommended that Council refuses the application to modify the development consent. A decision to do so would mean that the current approved arrangement involving a carport structure at the front of the site may still be constructed.

If approved, the proposed modification would significantly detract from the streetscape, and would undermine the recently adopted Infill Guidelines for future similar assessments and lead to an overall lessening of the heritage value of this locality.

Attached is a draft Notice of Refusal outlining the reasons for refusal.

COMMENTS

The requirements of Council's Heritage Advisor and the applicant's submission have been considered in the preparation of this report.

Attachments

1 Notice of Refusal, D17/63530 ⇩

2 Plans, D17/60872 ⇩

Planning and Development Committee 7 November 2017

2.5 Development Application DA 207/2016(1) - 102-110 and 110A Endsleigh Avenue

RECORD NUMBER: 2017/2183

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	22 June 2016
Applicant/s	Mr J Levi
Owner/s	Mr JA and Mrs RS Levi, and Mr DK Cooke
Land description	Lots 11 and 12 DP 519990 – 102-110 and 110A Endsleigh Avenue, Orange
Proposed land use	Place of Public Worship (alterations and additions to existing building), Business Identification Signage and Demolition (tree removal)
Value of proposed development	$500,000

Council's consent is sought for the change of use from a warehouse to a place of public worship. The application also involves an extension to the front of the building comprising foyer, crying room, toddler room and accessible toilet. The new building will comprise extensive horizontally proportioned glazing in the north-west corner of the new addition, painted face brick, and Colorbond clad awning. Business identification signage displaying the name of the place of public worship is proposed to be affixed to the front elevation. A new car park is proposed at the rear and access to the car park is required over adjoining land via an existing right of carriage way. A number of small trees are required to be removed and new landscaping proposed.

The critical element of this assessment relates to the car parking demand generated as a result of the change of use. The applicant has presented justification in support of an alternate parking calculation for the development which, on balance, is considered acceptable in the circumstances.

The development is consistent with Councils applicable planning provisions and is recommended for approval.

DECISION FRAMEWORK

In this case the proposed development is permissible with development consent of Council. The critical element of this assessment relates to the car parking demand generated as a result of the proposed change of use. The applicant has presented justification in support of an alternate parking calculation for the development which, on balance, is considered acceptable in the circumstances. It recommended that Council supports the proposed development subject to the recommended conditions of consent.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 207/2016(1) for Place of Public Worship (alterations and additions to existing building), Business Identification Signage and Demolition (tree removal) at Lots 11 and 12 DP 519990 - 102-110 and 110A Endsleigh Avenue, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

Council's consent is sought for the change of use from a warehouse to a place of public worship at Lot 11 DP 519990 - 102–110 Endsleigh Avenue, Orange. Lot 12 DP 519990 is included in the land description as access to the car park on Lot 11 is reliant on a right of way over Lot 12, and that right of way requires upgrade works to bring it up to the applicable standard.

The application also involves an extension to the front of the building comprising foyer, crying room, toddler room and accessible toilet. The new building will comprise extensive horizontally proportioned glazing in the north-west corner, painted face brick and Colorbond clad awning. Business identification signage displaying the name of the place of public worship is proposed to be affixed to the front elevation. A new car park is proposed at the rear and access is required over adjoining land via an existing right of carriage way. A number of small trees are required to be removed and new landscaping proposed.

MATTERS FOR CONSIDERATION

Section 5A Assessment

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

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

Section 79C

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

Clause 1.6 - Consent Authority

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Mapping

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

Land Zoning Map:	Land zoned B6 Enterprise Corridor
Lot Size Map:	No Minimum Lot Size
Heritage Map:	Heritage conservation area
Height of Buildings Map:	Building height limit 9m
Floor Space Ratio Map:	No floor space limit 0.75:1
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies

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

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the B6 Enterprise Corridor zone. The proposed development is defined as a place of public worship which means:

a building or place used for the purpose of religious worship by a congregation or religious group, whether or not the building or place is also used for counselling, social events, instruction or religious training.

Places of public worship are permissible with consent in the B6 Enterprise Corridor zone. Business Identification Signage is permissible in the zone with consent. This aspect of the development application is addressed under SEPP 64 below.

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned B6 Enterprise Corridor are as follows:

1 Objectives of zone

· To promote businesses along main roads and to encourage a mix of compatible uses.

· To provide a range of employment uses (including business, office, retail and light industrial uses).

· To maintain the economic strength of centres by limiting retailing activity.

· To provide for residential uses, but only as part of a mixed use development.

The development is not antipathetic to the objects of the zone. Although the development is not an employment generator, the development is an example of a use that is not incompatible with existing or likely future uses allowed within the B6 zone. The development is not a commercial enterprise and as such it will not impact upon the primacy of the CBD as the main retail core. The last dot point is not relevant, the existing manager’s residence is being abandoned as part of this application.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work (including a tree). The applicant is seeking to remove several small trees which requires consent which the applicant has sought.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.3 - Height of Buildings

This clause limits the height of buildings (HoB) on land identified on the Height of Buildings Map. The subject land is identified on the Map as having a HoB limit of 9m. The maximum height of the proposed development is 4.86m (the existing building is higher, but the applicant is not altering the exterior in any way – in any event the building would be lower than the maximum 9m height) and is therefore consistent with the established height limit.

Clause 4.4 - Floor Space Ratio

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

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

· excluding community land and most public places

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

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

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

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

The subject land is identified on the Map as having an FSR of 0.75:1. The site area has been calculated under Clause 4.5 as 1486m², meaning the site may have up to 1114.5m² of floor space. The gross floor area is well below area allowed under the development standard. The development is considered satisfactory.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

The subject land is located in the Glenroi Heritage Conservation Area. The statement of significance for the Glenroi conservation area is as follows:

The area has a notable concentration of mainly brick houses, in good condition, from the late Victorian and Edwardian periods, as well as a good representation of bungalow housing. The smaller houses and single storey terraces provide a good example of ‘worker’s housing’ from periods of the town’s growth. The housing is sited directly opposite former employment locations on the railway, wool stores and flour mill.

The building the subject of this application is described as a C.1960s simple industrial style brick warehouse. The building contributes only in a minor way to the significance of the conservation area. Notwithstanding this, it is necessary to ensure that the new development is sympathetic to the character of the conservation area.

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

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

(c) to conserve archaeological sites,

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

The development is not antipathetic to the objectives of the heritage conservation clause.

(2) Requirement for Consent

Development consent is required for any of the following:

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

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

(e) erecting a building on land:

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

The development requires consent under the above clauses which the applicant has sought by lodging this development application.

(4) Effect of Proposed Development on Heritage Significance

The application was referred to Council’s Heritage Advisor for comment who raised no objections to the development, but did request the exterior colours be noted on the plans and requested further details on the exterior lighting (as exterior lighting was proposed when the application was first lodged).

The plans now show Dulux self-destruct (beige) painted brickwork walls and black window frames and awning. These colours are acceptable in the context and setting and is further assessed below under heading infill guideline.

The development will not result in unacceptable impacts upon the significance of the heritage conservation area and is considered acceptable on heritage grounds.

(5) Heritage assessment

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

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

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

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

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

A Heritage Impact Statement has been prepared in support of the application and is considered acceptable.

(6) Heritage Conservation Management Plans

The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a Heritage Conservation Management Plan before granting consent under this clause.

The buildings on the land comprises C.1960s brick warehouse type building which comprise limited, to no, heritage value. As such, a conservation management plan or similar documents are not necessary to ensure the protection of the building on the land.

(7) Archaeological Sites

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

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

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

Previous uses of the site would suggest that the presence of relics is unlikely. Notwithstanding this, a precautionary condition is attached providing a protocol to be followed in the unlikely event that a relic is discovered.

(8) Aboriginal Places of Heritage Significance

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

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

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

The area is not an aboriginal place of heritage significance.

Part 6 - Urban Release Area

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

Part 7 - Additional Local Provisions

7.1 - Earthworks

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

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

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

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

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

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

(f) the likelihood of disturbing relics

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

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

The earthworks proposed in the application are limited to the extent of cutting and filling required for the proposed rear car park (approximately 400mm cut to south-east corner), and a small amount for the front extension. The extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways.

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

The site is not known to be contaminated, however a standard precautionary condition is attached addressing the protocol for the unlikely event of encountering contamination. Excavated materials will be reused onsite as far as possible, and conditions are imposed to require that surplus materials to be disposed of to an appropriate destination.

The earthworks will be appropriately supported onsite and the change in ground level is not substantial. Therefore the effect on the amenity of adjoining properties is considered to be minor, and if anything the 400mm cut to the rear of the car park with lessen the impacts to adjoining properties to the east.

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

The site is not in proximity to any waterway, drinking water catchment or sensitive area. However, conditions are imposed in relation to sediment control.

7.3 - Stormwater Management

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

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

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

The development will increase the amount of impervious surfaces (additional roof collection area and car park). As such, in order to ensure post-development runoff levels do not exceed pre-development levels. It will be necessary for stormwater detention to be provided. Relevant conditions are attached.

7.6 - Groundwater Vulnerability

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

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

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

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

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

7.11 – Essential Services

Clause 7.11 has the effect of ensuring all necessary services are, or will be available for a particular development.

The subject land is serviced by Council’s water, Sewer and Stormwater systems. Other services such as electricity and telecommunications are also available to the land. The development is consistent with the above clause.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land (SEPP 55)

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

Furthermore, SEPP 55 requires that before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying findings of a preliminary investigation of the land concerned.

In consideration of the relevant cluses of the SEPP; the previous known uses of the land are for the purposes of a warehouse. The applicant submits that the warehouse stored and distributed pharmaceutical products. Such products were contained in individual receptacles. No manufacturing or mass storage of chemicals is known to have occurred on the land. As such, the previous uses of the land have not been for the purposes of a use listed within table 1 of the Contaminated Land Management Guidelines.

Council staff inspected the state of the floor for visual signs of chemical spill or the like. No such incidents were evident during the visual inspection. The existing timber floor only showed signs of moisture damage and expected levels of ware and tare.

It is noted that the existing floor is being demolished to provide a new lower finished floor level. There is no objection to this aspect of the proposal.

Notwithstanding the above, a precautionary condition is attached that sets out the protocol in the unexpected event of contamination being identified during the demolition or construction phase of the proposal.

State Environmental Planning Policy (Infrastructure)

State Environmental Planning Policy (Infrastructure) is applicable to the proposed development, specifically Clauses 45 and 87.

With respect to Cluse 45, a referral was sent to Essential Energy for comment as per the aforementioned clause. Essential Energy responded indicating no objection to the application, but outlined several standard requirements which are applied as advisory notes.

Clause 87 requires Council to consider the impacts from noise and vibration on certain non‑rail uses as a result of development adjacent to a rail corridor. With reference to the interim guidelines, the subject land is outside the distances that triggers the need for noise and vibration reports (approximately 80m to the operational track). As such, the development is considered acceptable. It should be noted that the subject land is not adjacent to the rail corridor, but separated by Endsleigh Avenue.

State Environmental Planning Policy 64 – Advertising and Signage

State Environmental Planning Policy 64 – Advertising and Signage applies to the subject land as the applicant is proposing to install a business identification sign displaying the name of the organisation, Open Heavens Church.

The signage is not inconsistent with the objectives of the SEPP and as the sign is being displayed on land within a heritage conservation area the sign needs to be consistent with the definition of a business identification signage which means:

a sign:

(a) that indicates:

(i) the name of the person, and

(ii) the business carried on by the person,

at the premises or place at which the sign is displayed, and

(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,

but that does not include any advertising relating to a person who does not carry on business at the premises or place.

The sign is not inconsistent with the above definition, although it is arguable that the church is not a business (and thus the name of the church is not business identification signage), notwithstanding this, for the purposes of assessing the sign on the building, the above referenced definition is the most appropriate.

A Schedule 1 Assessment has been undertaken below which concludes that the subject sign is suitable in the locality.

Character of the area

· Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

· Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

The theme of signage in the subject area is characterised as a mix of signage types associated with the commercial, light industrial and rail uses in the locality. The types of signage in the area comprises a mix of wall signs and small pylon signs.

The subject sign to be affixed to the wall of the new portion of building will not be incongruous with either the existing or future desired character of the area.

Special areas

· Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open space areas, waterways, rural landscapes or residential areas?

The area is identified as a heritage area and as such signage is required to conform to the definition of business identification signage. The proposed signage design rationale is simplistic and understated and as such will not detract from the identified special area.

Views and vistas

· Does the proposal obscure or compromise important views?

· Does the proposal dominate the skyline and reduce the quality of vistas?

· Does the proposal respect the viewing rights of other advertisers?

The sign is affixed to the building and as such will have no impact on views or vista within the locality.

Streetscape, setting or landscape

· Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?

· Does the proposal contribute to the visual interest of the streetscape, setting or landscape?

· Does the proposal reduce clutter by rationalising and simplifying existing advertising?

· Does the proposal screen unsightliness?

· Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

· Does the proposal require ongoing vegetation management?

The proposed signage will have suitable streetscape compatibility with the size of the sign consistent with the size of other signs in the locality.

Site and building

· Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?

· Does the proposal respect important features of the site or building, or both?

· Does the proposal show innovation and imagination in its relationship to the site or building, or both?

The proportions of the sign are compatible with the propositions of the host building and will not obstruct or detract from import features of the building.

Associated devices and logos with advertisements and advertising structures

· Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

No logos or devices are proposed.

Illumination

· Would illumination result in unacceptable glare?

· Would illumination affect safety for pedestrians, vehicles or aircraft?

· Would illumination detract from the amenity of any residence or other form of accommodation?

· Can the intensity of the illumination be adjusted, if necessary?

· Is the illumination subject to a curfew?

The applicant submits that the flush wall sign will be illuminated by ancillary light fittings. Conditions are attached to ensure light spill is controlled as per the relevant Australian Standard.

Safety

· Would the proposal reduce the safety for any public road?

· Would the proposal reduce the safety for pedestrians or bicyclists?

· Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

As the sign is fixed flushed to the building, it will not cause safety concerns for road users or pedestrians.

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

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

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

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land (Part ---). An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

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

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

The corresponding zone to zone 3b zone (Orange LEP 2000) is B6 Enterprise Corridor zone (Orange LEP 2011). As such, Orange DCP 2004 – Chapter 8 Development in Business zones is the primary chapter relevant to this assessment. Chapters 2, 3, 13, 14 and 15 are also relevant and are assessed below. The provisions of Part chapter no are considered below.

Chapter 2 – Natural Resource Management

Chapter 2 – Natural Resource Management provides planning outcomes for stormwater quality, groundwater quality, soil resource management, vegetation management and flora fauna management; all of which have been considered above under the heading Orange LEP 2011 (stormwater, groundwater vulnerability) or Section 5A of the Act.

Chapter 3 – General Considerations

Chapter 3 provides planning outcomes of a general nature. Those of relevance to this assessment relate to cumulative impacts, scenic landscape, urban areas and energy efficiency. These are all addressed elsewhere within this report. Cumulative impacts are addressed below under the heading “Likely Impacts”. Scenic, landscape and urban areas are addressed under the infill guidelines below, and energy efficiency is a requirement of Section J of the BCA.

Chapter 8 – Development in business zones

Planning Outcomes – Business Services Areas

· Applications clearly demonstrate that the development will not detract from the role of the CBD as a regional centre.

Given the non-commercial nature of the use, there will be immaterial impacts on the primacy role of the CBD as a regional centre.

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

Council’s Environmental Health and Building Surveyor has indicated in their referral that the proposal can comply with the BCA with further details required at construction certificate stage.

· Heritage streetscapes are conserved and enhanced through adaptive reuse of heritage buildings, restrained advertising and landscaped gardens.

Heritage considerations have been addressed elsewhere in the report which conclude the development is satisfactory. The landscape scheme is appropriate and will assist in integrating the design into the broader environment.

· Areas on the main roads into and out of Orange (such as Molong Road and Bathurst Road) provide a high level of architectural design to enhance the visual character of the City entrances.

Not relevant.

· All sites contain an element of landscaping. Landscaping provided is of a bulk, scale and height relative to buildings nearest the front property boundary so as to provide beautification and visual relief to the built form proposed or existing on the site. The depth of the landscape bed at the site frontage is sufficient to accommodate the spread of plantings that meet the abovementioned outcomes but, where practicable, a minimum depth of 3m is provided. Plantings are designed to provide shade for parking areas, to break up large areas of bitumen, to enhance building preservation and to screen against noise.

A landscape scheme has been submitted in support of the application which shows extensive perimeter plantings comprising photinias, pittosporums and hebe. Two trees are proposed in the car park area along the rear boundary.

Chapter 13 – Heritage

Heritage considerations have been addressed elsewhere within this report which concludes that the application is satisfactory.

Chapter 14 – Advertising

The proposed business identification signage has been assessed against the provisions of SEPP 64 and found to be acceptable.

Chapter 15 – Car Parking

The requirements for on-site parking as provided by the DCP are essential to ensure new development does not result in an unacceptable environmental impact in the locality as a result of an undersupply in parking. In the event the requisite physical spaces cannot be practically provided on the land, Council has the ability to levy a monetary contribution in lieu of the physical parking space as part of Council’s Section 94 plan. Such car parking spaces would be provided by Council in select locations on a strategic needs basis.

To assess this development’s car parking demand, it is necessary to establish the net increase in demand based on the proposed use and current approved use.

Proposed Use

The DCP requires on-site parking for places of public worship at the rate of:

1 space per 10m²of GFA

or, 1 space for every 10 seatswhichever is the greater

+ 1 space for every residence on-site.

The submitted plans indicate a gross floor area of 857.7m²of GFA. Based on the above equation, this would result in the need for 85.8 (or 86 to the nearest integer) parking spaces to be provided on the land. The submitted plans also show the provision of 150 seats within the auditorium. Based on the above equation, this would result in the need to provide 15 parking spaces within the land.

The floor area calculation generates the higher demand and thus is the applicable standard to apply.

There is no residence associated with the new use.

Existing Use

The existing use (warehouse) generates a parking demand of 1 space for every 100m²of GFA. The existing warehouse has a floor area of 421.8m²resulting in a parking requirement of 4.2 spaces.

The land also comprises a three bedroom dwelling generating a parking requirement of a 1.5 spaces.

Thus the existing use generates a car parking demand of 5.7 spaces.

There does not appear to be any formalised physical spaces provided on the land.

Strictly based on the DCP requirement (for the greater demand), the development generates the following net increase in demand:

85.8 spaces (new use)

5.7 spaces (existing use)

80.1 spaces (net increase)

23 spaces (proposed)

57.1 spaces (short fall)

The subject plans show the provision of 23 spaces including 2 accessible spaces. Thus, based on a strict application of the DCP, the development results in a short fall of 57.1 spaces.

The subject land falls within Council’s Car parking contributions plan area.

As such, the above shortfall would theoretically generate the following car parking contribution as there is no ability to provide further parking spaces on the land.

Council’s car parking contributions plan is broken down in to two rates for development involving a change of use (rate (a) and rate (b)). Rate (a) applies to additional floor and is the equivalent to a whole parking space. Rate (b) applies to changes of use where no additional floor area is provided and equates to 50% of the full contribution rate.

Given the two separate rates, in order to determine the applicable rate for the development’s shortfall it is necessary to establish what proportion of the total proposed floor area is existing floor area and what proportion is new floor area. Once this is calculated, given the development results in a shortfall of 57.1 spaces, it is necessary apportion how much of the 57.1 spaces should have the rate (a) applied and how of the shortfall should have the rate (b) applied.

The most pragmatic way to do this is to calculate the percentage of existing floor area and the percentage of additional floor area and then use those percentages to distribute the shortfall in parking against the two rates.

Calculation of existing and additional floor area

857.7m² – 421.8m² (Proposed GFA - existing GFA) = 435.9m²(additional floor area (rate (a) applicable)). 421.8m² (existing floor area) is the amount of floor area to be calculated at rate (b).

Percentages of existing and new floor area

Existing floor area = 49.2% of the total floor area

New floor area = 50.8% of the total floor area

Proportion of shortfall in parking

49.2% of the shortfall = 28.1 of the 57.1 total shortfall

50.8% of the shortfall = 29 of the 57.1 total shortfall

Parking contributions calculations

29 spaces @ rate (a) ($14,162.94) = $410,725.26

28.1 spaces @ rate (b) ($7,081.48) = $198,989.60

TOTAL $609,714.85

The Car Parking Contributions Plan indicates the nearby car park in Endsleigh Avenue provides 86 spaces and has an unindexed cost of $549,110.

Council would have the power to apply a condition requiring the payment of the above amount as per Council’s Orange Car Parking Development Contributions Plan 2015 (Section 94 of the Act).

In support of the shortfall in onsite parking, the applicant has presented the following points of justification in support of adopting a rate that relates to the floor area of the auditorium area only, rather than the gross floor area of the building.

The DCP requires parking to be provided for a place of worship at the rate of one space per 10m2 GFA or one space for every 10 seats, whichever is the greater.

We acknowledge Council's position in its email of 6 July 2016, where it states that in recent approvals by Council, the GFA for the entire place of worship (not just the seating area) has been adopted by when assessing car parking requirements.

However, we submit that in this particular case, such an approach is unreasonable due to the following:

· The peak parking demand for the development will only occur as a result of church services.

· The other support facilities and spaces within the building will only be used:

- In association with church services (such as children's church concurrent with adult church; or after service mingling).

- Outside main worship times by small groups (such as evening bible studies, small meetings and the like).

The use of the support facilities and spaces will not occur at the same time that the church services are in operation. Thus, the use of these spaces will not compound the demand for parking during the peak operation periods of the development:

· if the auditorium is only used for the parking assessment, it would generate a parking need of 15 spaces based on seating or 31.7 spaces based on GFA (refer to the calculation later in this report).

· if the entire building is used for the parking assessment, it would generate a parking need of 85.7 spaces. This suggests that the support areas outside and separate to the auditorium would generate a parking demand of approximately 54 spaces. In our opinion, the support components due to their very size, nature and use are not capable of generating a parking demand of this level. For instance:

- The proposed addition at the front of the building has a GFA of 110.6m2 and provides a foyer, crying room, toddler's room, hallway and accessible WC. Strict application of the DCP parking rate suggests that his component of the development alone would generate a parking need of more than 11 spaces. This is an excessive requirement given that these rooms support the main use (church/auditorium) and on their own do not really generate a parking need.

- The mezzanine has a floor area of 46.1m2. Strict application of the DCP parking rate suggests that this component of the development would generate the need for more than 14 parking spaces. The offices and galley will not be used when church services are on. When they are used, the parking demand attributed to this component can be easily accommodated in the proposed car park because the church/auditorium will not be in use.

- The proposed meeting rooms have a total GFA of 75.8m2‑. Strict application of the DCP parking rate suggests that this component of the development would generate the need for almost 8 parking spaces. The meeting rooms would not be used when church services are on. When they are used, the parking demand attributed to this component can be easily accommodated in the proposed car park because the church/auditorium will not be in use.

- In the event that the mezzanine and the meeting rooms were being used concurrently, strict application of the DCP parking rate suggests that such use would generate the need for 22 parking spaces (i.e. 14 attributed to the mezzanine and 8 attributed to the meeting rooms). The proposed car park provides 23 spaces and will thus accommodate the parking demand generated by this scenario, bearing in mind that the church/auditorium would not be in use.

The applicant applied the above contentions and prepared a parking assessment accordingly as detailed below. Based on the above information, the development generates a net parking increase of 25. 7 spaces, calculated as follows:

31.7 (Proposed parking requirements for church)

6* (Existing parking requirements)

0 (Parking requirements applicable to the land)

25.7 (Total parking requirement as a result of proposed development)

* Council arrived at a different figure for existing parking requirements as shown below.

An off-street car park is proposed at the rear of the building to provide 23 spaces.

As such, the development will generate a parking shortfall of 2.7 spaces. It is requested that Council accept the shortfall for the following reasons:

· Peak parking demand for the development will occur on Sundays and on weekday evenings (i.e. outside normal business hours) when demand for public parking in the precinct will be low.

· Ample parking is available in the public car park directly opposite the site on the western side of Endsleigh Avenue. This car park will largely be unutilised during peak demand for parking associated with the development (i.e. on Sundays and weekday evenings).

· On-street parking spaces along Endsleigh Avenue will continue to represent a parking resource that is of direct benefit to the subject land. While it cannot be formally recognised in the parking calculations, this on street parking cannot be ignored when assessing the parking impacts of the development. Street parking resources are readily available during the proposed operation times for the church.

· The RTA Guide to Traffic Generating Development (2002) does not oppose on-street parking, provided that it does not adversely affect the amenity of the adjacent area. It is submitted that the proposal would be satisfactory in this regard due to the following:

- The adjacent area would not be sensitive to the potential impacts of on‑street parking. Despite the presence of dwelling houses to the south of the subject land, the precinct is dominated by non-residential land uses including commercial premises in Endsleigh Avenue, Council's car park opposite the site and vacant land associated with the railway station.

- In the context of the existing land use pattern it would be difficult to argue that on-street parking would generate unreasonable privacy impacts upon this neighbourhood. In any event, Endsleigh Avenue is a public road and thus permits vehicle and pedestrian movements and parking by any member of the public.

- In the context of the existing land use pattern, it is submitted that vehicle movements and parking associated with the proposal would be unlikely to generate unreasonable traffic noise impacts in this urban locality.

- Parking laws make it illegal for vehicles to park across a driveway.

Council staff have considered the arguments presented by the applicant in support of adopting a parking rate attributed to the auditorium area only.

Council staff agree that there is merit in adopting the lesser rate for the following reasons:

· The intended operations of the building mean that only certain functions will occur within the building at the one time, save for the concurrent children’s activities (which would not generate a directed parking demand in the themselves) and as such, the other parts of the building would be unused and therefore not generate a parking demand at that point in time. In order to ensure that the development is operated in this way, a condition is attached that prevents the other rooms being used when the auditorium is being used, and vice versa.

· The hours of operation are proposed as follows:

- Two 90 minute services held on Sundays at 8.30am to 10.30am.

- Pastoral activities undertaken weekday evenings between 7pm and 9.30pm.

- The building will be occupied by two to three church personnel outside of the above times.

Acknowledging the fact that residents in the area are likely to be at home during these times rather than at their respective workplace or the like (and thus their vehicles are likely to be in the area at these times), but not withstanding this, the above hours of operation will be outside of core business hours meaning that this development will not compete with nearby businesses such as the DPI for available parking stock in the locality. This would account for far more of the demand for on‑street parking than at times outside of core business hours used by residents.

Additionally, the Council owned car park opposite the subject land is likely to be underutilised during these times also. A condition is attached to ensure the development operates strictly in adherence with these times.

Given the acceptance that the building has different functions and that those functions will not occur in synergy, it is thus necessary to identify which of those separate functions will generate the greater parking demand. The area generating the greater parking demand would relate to the auditorium area based on a floor area (refer diagram below), and as such the following assessment of parking demand is undertaken, adjusted to account for the agreed rationale above.

31.7 spaces attributed to 311m²area of auditorium (including stage and change rooms)

5.7 (existing use)

26 spaces

The submitted plans show the provisions of 23 spaces, and thus a shortfall of 3 spaces based on the above rationale.

The applicant has presented justification in support of the aforementioned shortfall. This justification is not supported purely for the fact that Council staff have already accepted a rationale for a reduced parking demand and that reduced parking demand should be fully met on site; or, alternatively be addressed by way of monetary contribution in lieu of the physical spaces.

As such, a condition requiring the payment of the equivalent of 2.4 spaces at the half rate for a change of use (the half rate is applied given that based on the accepted rationale the area of demand relates to the existing building not the new floor area) shall be paid prior to the issue of a construction certificate.

3 x $7,067.35(rate (b))

$21,202.05

The above assessment has resulted in three options being available to Council which are described below:

1 Disagree with the contentions presented by the applicant and require the full contribution based on the strict application of the DCP.

2 Agree with the contentions presented by the applicant, save the contention around the short fall in parking of 3 spaces based on the revised parking assessment; and attach a condition restricting the operation of the place of public worship to accord with the rationale of the revised parking assessment.

3 Agree with the applicant on all points and do not require any contributions.

It is the recommendation of Council staff that option TWO be adopted. Accordingly a condition is attached requiring the payment of a monetary contribution for the 3 space shortfall in parking based on the applicant rationale and attach conditions controlling the ongoing operation of the place of public worship.

With reference to the foregoing assessment of parking demand attributed to the development, the development will not have a significant adverse environmental impact in the locality and, accordingly the development is considered acceptable in terms of parking.

It should be noted that Council’s DCP is performance based which allows a degree of elasticity (where appropriately justified) with the provisions therein. The above rationale has only been agreed to strictly on the basis of the isolated circumstances and merits of the justification presented. It should not be construed as to be the setting of a precedent relating to car parking requirements of other places of public worship.

INFILL GUIDELINES

The subject land is located in within the Glenroi Heritage Conservation Area and as such Council’s Infill Guideline applies to the development. The guideline requires development to considered the character, scale and form, siting, materials and colour, and detailing.

Character

The immediate area is characterised as a mix of residential, commercial/light industrial and railway uses. There is a mix of intact period dwellings and more modern commercial buildings with limited to no significance in the locality.

There are no heritage items immediately adjoining the subject land; however, there is a contiguous row, save for one property, of heritage items in Kite Street (round the corner from the subject land) and a number to the east in Edward Street. The rail precinct opposite the subject land is also a heritage item.

Scale and Form

The building adopts a scale commensurate with the existing industrial style building on the land and similar to various other buildings in the wider locality. The new element comprises a rectilinear form comprising contemporary horizontal proportioned glazing and awning.

Siting

The siting of the new front extension will adopt a similar setback to the secondary setback of the adjoining property to the north. More broadly, there is a mix of setbacks from 21m to 0m. It is considered that the proposed front setback/siting will not unreasonably impact upon the significance of the locality. Council’s Heritage Advisor raised no objections in relation the buildings siting.

Materials and Colour

The existing brickwork which is an orange coloured brick is intended to be painted a beige colour. There are no objections to this.

The new portion of building comprises face brickwork intended to be painted the same colour as the existing building (beige colour). The new windows and are door are proposed to be black aluminium and the new awning is also proposed to be black in colour.

Council staff raise no objections to the proposed colour scheme. The brick colour will interpret a traditional stone colour and the dark coloured windows and awning are an appropriate choice in a commercial context.

Detailing

The proposed detailing is not incongruous with character of the Glenroi conservation area. Council’s Heritage Advisor has not raised any objections to the proposed detailing.

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

Demolition of a Building (clause 92)

The proposal involves the demolition of internal walls and fixtures. A condition is attached requiring the demolition to be carried out in accordance with Australian Standard AS2601 - 1991: The Demolition of Structures.

Fire Safety Considerations (clause 93)

The proposal involves a change of building use for an existing building. Council is satisfied that the fire protection and structural capacity of the building are appropriate for the proposed new building use. Relevant conditions are attached.

Buildings to be Upgraded (clause 94)

Upgrading of the building will be required to ensure the existing building is brought into partial or total conformity with the Building Code of Australia. Conditions are attached in relation to the required upgrading works.

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

Context and Setting

The subject land is peripheral CBD location in an area comprising mixed uses and mixed buildings styles. The land is also within the heritage conservation area. The subject land is opposite the railway public car park and is in the vicinity of the DPI building (the DPI building has a major influence on parking demand in the locality). The foregoing and following assessment conclude that the development is appropriate in the context and setting and will not have a detrimental impact upon the public realm or neighbourhood amenity.

Traffic, Access and Parking Impacts

The land is serviced by Endsleigh Avenue which is local road that connects with Kite Street and Bathurst Road to the north, and Moulder and Warrendine Street to the south. The site itself is reliant on a right of carriageway (as described in Book 2801 No. 856) over adjoining Lot 12 to provide access to the car park at the rear of the building on the subject land. The state of the existing access over Lot 12 is not adequate to service the development the subject of this application. Accordingly, the owner of Lot 12 DP 519990 has owner’s consent to upgrade the right of way to the standard required under Council’s Subdivision and Development code.

It is considered that the access arrangements are satisfactory for the proposed development. Endsleigh Avenue is of a capacity capable of catering for the additional traffic movements associated with the development and access point to the subject land and the access itself (once upgraded to the applicable standard). This is confirmed by Council’s Technical Services raising no objections in relation to the traffic arrangements for the development.

Whilst it is acknowledged that the place of public worship will generate a parking demand within the area, on balance, based on the intended (and conditioned) operation of the development, the likely demand will occur at times when there will be limited to no competition for parking created by the DPI building. Accordingly the available public parking area across from the development will be available to absorb the extra demand result from this development.

As such, the development is unlikely to result in any unsatisfactory traffic related impacts in the locality.

Noise and Vibration

An acoustic report prepared by Wilkinson Murray has been submitted in support of the application. Council’s Environmental Health and Building Surveyor has reviewed the report and provided the following advice:

“An operational noise assessment has been provided with the application. The assessment identifies two primary noise impacts from the proposal upon adjoining residential users, namely, noise from the carpark and from singing/musical activities within the building itself. The assessment identifies that in order for this proposal to comply with the established noise criteria, a solid 1.8 metre high fence needs to be established along the northern side of the adjoining Right of Way and that all doors and windows must remain closed during all singing/musical activities. If these criteria are adhered to, the proposal will only exceed the established noise criteria by 1 dBA in the evening time when the carpark is used. This exceedance is indistinguishable and acceptable. Conditions have been included requiring the recommendations of the operational noise assessment to be complied with.”

It is also noted that the fence along the eastern boundary which was present at the time of the noise testing has since been removed. The applicant’s acoustician has separately by way of email dated 24 August 2017 recommended a new solid fence along this boundary at a height of 2.2m. Relevant conditions are attached in this regard.

The northern fence is not required to extend at the full height all the way to the Endsleigh Avenue front boundary. The fence is able to be raked or slope down to 1.2m at the front boundary with the rake commencing at the front building line (western elevation) of the building at 160 Kite Street. This is to improve sight distances/safety for vehicles exiting the site and also from a streetscape/heritage impacts perspective. Relevant conditions are attached in this regard.

Environmental Impacts

The development site is located in a fully urbanised area with little habitat value. As such, the development is not likely to result in any unreasonable environmental impacts.

Heritage Impacts

The likely impacts upon the heritage significance of the heritage conservation area.

Safety, Security and Crime prevention

The framework for assessment of safety, security and crime prevention is based on the principles of territorial reinforcement, surveillance, access control and space management. Each principle is addressed below.

Territorial Reinforcement

The site is fenced at relevant boundaries and clearly defined access points are provided within the building design. The design and management of the development presents clear areas demarcated as private or public areas.

Surveillance

Natural surveillance will be achieved at all key access points; meaning those attending the site will be able to ensure the main areas are safe at all times.

Access Control

Access to the site is limited to a single entry point. Access to the building is from the front and rear of the building. Reasonable natural surveillance will be achieved at these access points and external lighting will assisting in providing a safe and secure development whilst deterring criminal behaviour.

Space Management

The applicant submits the site will be managed and maintained so as to continually achieve the other principles of crime prevention.

The development is considered satisfactory in this regard.

Construction Impacts

The development is expected to result in minor and short term construction impacts. Conditions such as construction times are attached to ensure the development is carried out in a satisfactory manner by reducing nuisance impacts on adjoining neighbours.

Street Tree Impacts

The development has the potential to impact upon the trunk, branch and root structure of the street trees within the road reserve in front of the site. Council’s Manager City Presentation has reviewed the application and provided the following recommended condition which is attached to the consent:

“Should the Pin Oak street trees require pruning work to enable the proposed building extension to be constructed the work shall be undertaken by Council’s Tree Care team with the developer responsible for all costs associated with the pruning work. At no point shall construction workers or other personnel undertake pruning of the street trees.”

Cumulative Impacts

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

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

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

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

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

The development has the potential to result in a number of the above scenarios. For example, time crowded effects could occur when a service is scheduled for a particular time and a large number of parishioners all arrive around the same time; or space crowded effects could arise with parishioners signing in unison.

Although the development may create the scenarios described above, the design of the development, the proposed amelioration (noise study) and the way the development is intended to be operated (reinforced by conditions of consent), the likely cumulative impacts are not expected to be so significant so as to result in an unacceptable situation.

As such, with the intended design and management along with conditions of consent the development is considered acceptable in regards to cumulative impacts.

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

The site is considered suitable for the proposed development. Council officers are not aware of the subject property being effected by any natural, physical or technological hazards within the site (or vicinity) that would unreasonably constrain the development.

The foregoing assessment indicates (with the imposition of conditions of consent) that the development has acceptable compatibility with the surrounding land-use pattern and will not cause undue conflicts.

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

The proposed development is defined as "advertised development" under the provisions of the LEP. The application was advertised for the prescribed period of 14 days and at the end of that period three submissions have been received.

Submission 1 – John Holland Pty Ltd

The submission references the SEPP (Infrastructure) and the document titled Development Near Rail Corridors and Busy Road.

The SEPP and associated documents have been considered above.

Submission 2 – 160 Kite Street

The submission relates to the materials of the required fence along the northern boundary of the right of carriage way and requests that it commence behind the building line of the building located on 160 Kite Street.

It is noted from Council’s mapping system that a thin parcel of land lies between the land providing access (shown below in yellow) to the proposed car park and the property referenced in this submission (160 Kite Street). The thin parcel appears to be owned by 164 Kite Street. So in actual fact the fence will be on the boundary of this long thin parcel rather than the boundary of 160 Kite Street. This is shown diagrammatically below.

Image 1 - ownership of adjoining parcels

(BLUE–Subject land, YELLOW–right of carriage way providing access to car park

RED–adjoining narrow slither of land owned by 164 Kite Street,

GREEN–similar to red but unsure of ownership)

Conditions are attached requiring the fencing be constructed from hardwood and be lapped and capped.

In terms of where the fence starts, the fence is necessary for noise attenuation and as such has to extend to the front boundary, however the applicant’s acoustician has indicated that the fence can be raked to the front boundary, with the rake starting at the front building line of the building on 160 Kite Street down to a height of 1.2m.

Submission 3 – 94 Endsleigh Avenue

The submission raises concerns relating to appropriate location of places of public worship, bonded asbestos material, contamination, fire safety and heritage considerations. These matters are considered below.

Location of Places of Public Worship

Orange LEP 2011 is the principle planning document governing, inter alia, land-use within the various zonings within the city. Detailed consideration was given to the types of land uses appropriate in the B6 Zone when the LEP was being prepared, and at that time places of public worship were deemed appropriate in the B6 zone with development consent.

Bonded Asbestos Material

Any bonded asbestos material (or other types) will need to be removed by licenced a contactor administered by NSW work cover.

Contamination

Contamination matters have been addressed under SEPP 55 considerations above.

Fire Safety

Fire safety matters will be addressed at the construction certificate stage of the development. It will be the responsibility of the Principle Certifying Authority to ensure the development is consistent with the NCC and other relevant standards.

Heritage Matters

Heritage conservation matters have been addressed in detail above under the heading Clause 5.10 – Heritage Conservation.

PUBLIC INTEREST s79C(1)(e)

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

SUMMARY

It is recommended that Council accepts the applicant rationale for the assessment of parking demand, save for the 2.4 space shortfall under the applicants rationale (relevant conditions attached require car parking contributions based on a 2.4 space shortfall) Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

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

Attachments

1 Notice of Approval, D17/62652 ⇩

2 Plans, D17/63876 ⇩

3 Submissions, D17/60877 ⇩

Planning and Development Committee 7 November 2017

2.5 Development Application DA 207/2016(1) - 102-110 and 110A Endsleigh Avenue

Attachment 1 Notice of Approval

OrangeCityCouncilNEW#45524E (2)

ORANGE CITY COUNCIL

Development Application No DA 207/2016(1)

NA17/ Container PR3902

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 81(1)

Development Application
Applicant Name:	Mr J Levi
Applicant Address:	C/- Peter Basha Planning & Development PO Box 1827 ORANGE NSW 2800
Owner’s Name:	Mr JA and Mrs RS Levi, and Mr DK Cooke
Land to Be Developed:	Lot 11 and Lot 12 DP 519990 - 102-110 and 110A Endsleigh Avenue, Orange
Proposed Development:	Place of Public Worship (alterations and additions to existing building), Business Identification Signage and Demolition (tree removal)

Building Code of Australia building classification:	To be determined by the PCA

Determination
Made On:	7 November 2017
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	8 November 2017
Consent to Lapse On:	8 November 2022

Terms of Approval

The reasons for the imposition of conditions are:

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

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

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

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

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

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

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

Conditions

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

(a) Plans by Peter Basha Planning and Development reference 12087DA – dated 6.6.2017 sheets 1 to 3 (including aerials) (5 sheets).

Plans by McKinnon Design – Job no. 16078 drg no. 01 issue C; drg no. 02; drg no. 03 issue A; drg. no. 04 issue A (4 sheets).

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

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

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

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

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

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

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

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

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

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

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

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(5) The payment of $21,202.05 shall be made to Council in accordance with Section 94 of the Act and Orange Car Parking Development Contributions Plan 2015 in lieu of the physical provision of adequate on-site car parking spaces.

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

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

(6) The required fence along the northern boundary shall be a lapped and capped timber fence. The plans submitted with the application for a construction certificate must clearly show the subject fence being a lapped and capped timber fence.

Additionally, the subject fence shall rake (slope) down to not more than 1.2m in height at the front boundary, with the rake (slope) of the fence commencing at the front building line (western elevation) of the building located at 160 Kite Street, Orange. The plans submitted with the application for a construction certificate shall clearly show the rake (slope) of the subject fence.

(7) An approval under Section 68 of the Local Government Act is to be sought from Orange City Council, as the Water and Sewer Authority, for water, sewer and stormwater connection. No plumbing and drainage is to commence until approval is granted.

(8) Arrange for a suitably qualified person to evaluate the fire safety of the building and recommend a schedule of works to upgrade the fire safety provisions so as to adequately prevent the spread of fire and promote the safety of persons within the building in the event of a fire.

The design proposal and schedule of work are to be submitted to Council/Accredited Certifier for approval.

(9) All external building materials shall be non-reflective.

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

(11) Engineering plans providing complete details of the proposed driveway and car parking areas are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) upon application for a Construction Certificate. The heavy duty kerb and gutter layback and footpath crossing is to be 6.0m wide. The driveway within the access arm of Lot 12 DP 519990 is to be a minimum of 4.5m wide. The plans are to provide details of levels, cross falls of all pavements, proposed sealing materials and proposed drainage works and are to be in accordance with Orange City Council Development and Subdivision Code.

(12) A Liquid Trade Waste Application is to be submitted to Orange City Council prior to the issuing of a Construction Certificate. The application is to be in accordance with Orange City Council’s Liquid Trade Waste Policy. Engineering plans submitted as part of the application are to show details of all proposed liquid trade waste pre-treatment systems and their connection to sewer.

Where applicable, the applicant is to enter into a Liquid Trade Waste Service Agreement with Orange City Council in accordance with the Orange City Council Liquid Trade Waste Policy.

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

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

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

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

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

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

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

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

PRIOR TO WORKS COMMENCING

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

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

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

DURING CONSTRUCTION/SITEWORKS

(18) Should the Pin Oak street trees require pruning work to enable the proposed building extension to be constructed, the work shall be undertaken by Council’s Tree Care team with the beneficiary of the consent being responsible for all costs associated with the pruning work. At no point shall construction workers or other personnel undertake pruning of the street trees.

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

(20) Any surplus excavated material shall be disposed of at an appropriate location.

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

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

(23) A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority.

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

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

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

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

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

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

(29) A 6.0m wide heavy-duty concrete kerb and gutter layback and footpath crossing is to be constructed in the position shown on the plan submitted with the Construction Certificate application. The works are to be carried out to the requirements of the Orange City Council Development and Subdivision Code.

(30) The existing basalt (bluestone) kerb and gutter in Endsleigh Avenue is to be retained. Where bluestone exists in the location of the proposed widened driveway, the bluestone gutter is to be retained and incorporated into the new vehicular layback. Any kerb stones removed as a result of the works are to be firstly used as kerb stones in the areas of reinstated kerb and any leftover stones returned to Council.

The existing driveway in Endsleigh Avenue adjacent to the southern boundary that is not proposed to be used is to be replaced with concrete and/or bluestone kerb and the footpath reinstated to the requirements in the Orange City Council Development and Subdivision Code.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(31) A 1.8 m high solid fence is to be established along the northern boundary of the development site. A 2.2 m high solid fence is to be established along the eastern boundary of the development site in accordance with the requirements of the Operational Noise Assessment (Report No. 14113 Version B dated August 2015 and updated advice dated 24 August 2017) by Wilkinson Murray and amending email from Wilkinson Murray Dated 24 August 2017.

The fence shall also be consistent with the requirements of condition (6) as shown on the Construction Certificate plans.

(32) Landscaping shall be installed in accordance with approved plans prior to the issue of a final occupation certificate.

(33) A total of 23 off-street car parking spaces shall be provided upon the site in accordance with the approved plans, the provisions of Development Control Plan 2004, and be constructed in accordance with the requirements of Council's Development and Subdivision Code prior to the issue of an Occupation Certificate.

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

(35) The owner of the building/s must cause the Council to be given a Final Fire Safety Certificate on completion of the building in relation to essential fire or other safety measures included in the schedule attached to this approval.

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

(37) Prior to the issue of an Occupation Certificate, the following fencing is to be established on the site:

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

(39) 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.

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

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

(42) 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

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

(44) No other separate place of public worship related activities shall occur at the premises (save for Sunday school type activities for children) whilst a service is occurring.

(45) Two church services only shall occur at the premises per week. These are to occur at 8.30am and 10.30am each Sunday only. Pastoral services shall only occur between 7.00pm and 9.30pm weekday evenings. All other administrative activities related to the place of public worship outside of these times shall be limited to 8.00am to 8.00pm Monday to Friday.

(46) Emitted noise shall not exceed 5dB(A) above background sound level measured at the nearest affected residence.

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

(48) All external doors and windows must remain closed during all singing and musical activities in accordance with the requirements of the Operational Noise Assessment (Report No. 14113 Version B dated August 2015) by Wilkinson Murray.

ADVISORY NOTES

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

Essential Energy’s records indicate there is electricity infrastructure located within close proximity of the property. Any activities within this location must be undertaken in accordance with the latest industry guideline currently known as ISSC 20 Guideline for the Management of Activities within Electricity Easements and Close to Infrastructure.

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

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

Other Approvals

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

Nil

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

Nil

Right of Appeal

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

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

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

Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	8 November 2017

Planning and Development Committee 7 November 2017

2.6 Development Application DA 289/2017(1) - 2 Hanrahan Place

RECORD NUMBER: 2017/2184

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	7 August 2017
Applicant/s	D'Aquino's Liquor North Orange Pty Ltd
Owner/s	Orange Service Centre Pty Ltd
Land description	Lot 87 DP 1167633 - 2 Hanrahan Place, Orange
Proposed land use	Retail Premises (shop) (drive-through liquor shop) and Business Identification Signage
Value of proposed development	$1,800,000

Council's consent is sought to construct a building with a drive-through arrangement to be used as a retail premises for the purposes of the retail sale of liquor and other ancillary items. The land in question is described as Lot 87 DP 1167633, known as 2 Hanrahan Place, Orange. The development also involves new vehicle crossings, business identification signage, a 25 space car park, retaining walls, site works and landscaping.

The key considerations with this application relate to the circulation of vehicles internally within the site, an existing approval (not yet commenced) that runs with this land and also the land opposite the site, and the social impacts associated with a liquor store.

The development has been assessed against the NSW Planning framework and within that, Council’s relevant planning provisions. As outlined in the following assessment, the development is considered satisfactory and is recommended for approval.

DECISION FRAMEWORK

Applications should clearly demonstrate how the planning outcomes are being met where alternative design solutions are proposed. So one can see that the DCP gives leeway for developers and architects to use design to achieve the outcome in other ways if they can. Stating that DCP guidelines are inflexible can be misleading.

The proposed development is permissible with development consent. Council recently altered the strategic planning provisions that relate to this site to provide for a liquor outlet. The mains issue relating to the circulation of vehicles within the site has been addressed. The attached Notice of Determination contains several conditions to ensure that the development proceeds in an acceptable manner.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 289/2017(1) for Retail Premises (shop) (drive-through liquor shop) and Business Identification Signage at Lot 87 DP 1167633 - 2 Hanrahan Place, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought to construct a 33.4m (long) by 22.5m (deep) and 6.0m high (7.7m to ridgeline) commercial building to be used for the purposes of a drive-through liquor store on land described as Lot 87 DP 1167633, known as 2 Hanrahan Place, Orange.

The building will comprise a display area at the front of the building and three travel lanes (comprising one browse lane and two drive-through service lanes). Adjacent to the third travel lane will be a service counter; behind the service counter will be a wine store, cool room, store area and staff amenities.

The building will be set back 13.7m from the front boundary, with 16 onsite parking spaces adjacent to the front of the building and a further 9 spaces to the east of the proposed building.

A retaining wall will be constructed adjacent to an easement at the rear of the site and return along the northern boundary.

A 4.5m high pylon sign is proposed at the front of the site within the landscaped area.

BACKGROUND

Council issued development consent DA 278/2014(1) on 1 September 2014 which provided for neighbourhood shops, take away food and drink premises and restaurant or café. The development consent relates to the land the subject of this application and also the land opposite known as 5 Hanrahan Place. The approved plans showed the footprint of a building with the notation over it “proposed liquor outlet (indicative only – subject to future planning proposal)”.

The owners of the land lodged a planning proposal in November 2015 seeking to have another permitted use (APU) allowed on the land over and above the permitted uses within the SP3 Tourist zone land-use table that would permit a retail premises that sold liquor. The planning proposal was supported by Council resolution and agreed to by the NSW Department of Planning and Environment; and accordingly Schedule 1 of the LEP has been amended to include the APU.

As part of DA 278/2014(1) a commercial building was approved to the east of the site comprising a take away food and drink premises, a restaurant or café and a neighbourhood shop.

When the application currently before Council was lodged, it was noted by Council that the building shown differed to what was approved previously in a number of ways, including size, location, external appearance and car park layout. Accordingly the applicant was requested to either agree to surrender the earlier consent (which would include the approved development on the land opposite) or amend the application currently before Council to fully accord with the development that was previously approved in that location.

The applicant subsequently agreed to Council imposing a condition that prevents the release of a Construction Certificate until such time as formal advice is received by Council, and Council in return acknowledges receipt of advice, that the beneficiary of development consent DA 278/2014(1) has surrendered the aforementioned development consent. A relevant condition is attached.

As such, the eastern part of the site is effectively left vacant for a future development of some type.

MATTERS FOR CONSIDERATION

Section 5A Assessment

From 25 August 2017, the Biodiversity Conservation Act 2017 and Biodiversity Conservation Regulation 2017 were gazetted. State Environmental Planning Policy (Native Vegetation in Non-Rural Areas) 2017 was also gazetted. The implementation of this legislation (and supporting guidelines) is subject to savings provisions that defer their full effect for a period of three months from the date of gazettal for local development.

It is noted that there are native trees located on the adjoining land to the north. Council’s planning staff referred the application to Council’s Manager City Presentation to comment on the likely effect of the development, particularly the impact that the proposed retaining walls may have on the subject native vegetation.

Council’s Manager City Presentation advises that the subject retaining walls would not cause a material impact on the existing vegetation.

As such, the development is unlikely cause a significant effect on threatened species, populations or ecological communities or their habitats.

Section 79C

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

Water Management Act 2000

The development will require a controlled activity approval due to the development's proximity to a 1st order stream which forms part of Blackmans Swamp Creek. This development could have been treated as a nominated integrated development application pursuant to Section 91 of the Environmental Planning and Assessment Act. However, the applicant has elected (by not ticking the relevant box on the application) for the application NOT to be treated as such, and will obtain the necessary approvals separate to this application. In doing so, the applicant runs the risk of the approval body declining to issue an approval, a fact that the applicant's planning consultant is aware of.

The Land and Environment Court has seemingly issued conflicting judgements on whether or not an applicant is entitled to elect for an application to not be treated as nominated integrated development when on its face an application requires an approval pursuant to the integrated provisions. Relying on the judgement Maule v Liporoni and Another Justice Lloyd held at para. 86:

In making the development application Mr Liporoni did not tick the box in the application form to indicate that consent was being sought for an integrated development approval. In so doing he elected to have his development application processed as if it were not an application for integrated development. That was his choice. There was and is no compulsion on an applicant to make an application for an integrated development approval, if he or she chooses not to do so.

The above was reaffirmed in Motbey v Hollis and Eurobodalla.

It is noted that Justice Sheahan in Azzopardi and Others v Gosford City Council And Another (2001) and subsequently Azzopardi and Other v Gosford City Council and Another (2002) in the Court of Appeal appears to have adopted the position that a development consent granted in respect of integrated development without first complying with the necessary provisions could lead to invalidity.

Accordingly, given the Court's varying decisions on the application of Section 91 of the Act, the provisions remain open to interpretation. Until such time as the Court strengthens its position on this issue or the Act is amended to tighten up the relevant provisions, it would remain accepted that an applicant is entitled to elect to have a development application assessed as though it is not an integrated development.

Relying on Justice Lloyd's ruling, it is acceptable for the applicant to elect not to have the application treated as integrated development.

A condition is attached that requires the applicant to obtain all necessary approvals under the Water Management Act 2000.

Fisheries Act

The land to the rear of the subject land is identified as key fish habitat as mapped by NSW Fisheries. Accordingly, as with the requirements under the Water Management Act, the applicant will be required to obtain any necessary approvals under the Fisheries Management Act.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

Clause 1.6 - Consent Authority

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Mapping

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

Land Zoning Map:	Land zoned SP3 Tourist
Lot Size Map:	No Minimum Lot Size 2000m²
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies

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

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the SP3 Tourist Zone. The proposed development is defined as a retail premises (shop) and business identification signage. Orange LEP 2011 defines each of these land uses as follows:

retail premises means a building or place used for the purpose of selling items by retail, or hiring or displaying items for the purpose of selling them or hiring them out, whether the items are goods or materials (or whether also sold by wholesale), and includes any of the following:

(a) bulky goods premises,

(b) cellar door premises,

(c) food and drink premises,

(d) garden centres,

(e) hardware and building supplies,

(f) kiosks,

(g) landscaping material supplies,

(h) markets,

(i) plant nurseries,

(j) roadside stalls,

(k) rural supplies,

(l) shops,

(m) timber yards,

(n) vehicle sales or hire premises,

but does not include highway service centres, service stations, industrial retail outlets or restricted premises.

The land-use can be further characterised as a shop which means:

premises that sell merchandise such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like or that hire any such merchandise, and includes a neighbourhood shop, but does not include food and drink premises or restricted premises.

Business identification signage means:

a sign:

(a) that indicates:

(i) the name of the person or business, and

(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and

(b) that may include the address of the premises or place and a logo or other symbol that identifies the business,

but that does not contain any advertising relating to a person who does not carry on business at the premises or place.

Retail Premises (including shops) are listed as prohibited within the SP3 zone.

However, Clause 2.5 has the effect of allowing site specific exceptions to the generic land-use tables in certain circumstances if the use is allowed as an additional permitted use (APU) and listed within Schedule 1 of the LEP. Clause 2.5 has effect despite anything to the contrary in the Land Use Table or other provision of the LEP.

Schedule 1 - Additional Permitted Uses

Pursuant to Schedule 1 of the LEP an additional permitted use applies to the land which provides for:

(2) Development for the purpose of retail premises that consist of a liquor outlet or bottle shop is permitted with development consent.

(3) Subclause (2) applies only if the retail floor space on the site used for a liquor outlet or bottle shop is no more than 600m².

In terms of subclause (2) the subject development relates to a retail premises (or shop) for the purposes of the retail sale of liquor. Subclause (3) has the effect of limiting the size of the ‘retail floor space’. It is noted from the submitted plans that the gross floor area (GFA) of the building is 658.27m²,thereby exceeding the 600m² standard within the APU.

Notwithstanding the fact that the building is larger than 600m²of GFA, the APU applies a standard of ‘retail floor space’ as opposed to GFA. Retail floor space is not a defined term under the LEP like GFA is; as such its meaning is open to interpretation. In calculating the area of retail floor space, it is reasonable to exclude the vehicle service lanes from the area of retail floor space as this space is essentially customer parking/loading area designed for convenience rather than resulting in additional floor space and thereby additional parking demand.

If the travel lanes are excluded from the calculation of retail floor space, the floor area of the building reduces to 382.1m², which is well below the 600m² ‘retail floor area’ standard.

The development is therefore permissible upon the subject land with the consent of Council.

Clause 2.3 of LEP 2011 references the Objectives for each zone in LEP 2011. These objectives for land zoned SP3 Tourist are as follows:

1 - Objectives of Zone - SP3 Tourist

· To provide for a variety of tourist-oriented development and related uses.

· To cater for the needs of the travelling public.

The development is not expressly consistent with the objects of the zone. The land-use is not strictly a tourist related development and the development (what is being retailed, i.e. liquor) is not necessarily something that caters to the travelling public.

Notwithstanding this, the use represents a site specific provision that only applies to the subject land, allowed via an ‘another permitted use’ that was gazetted as part of Amendment 14 to the LEP, having gone through a rigorous strategic planning process. As such, whilst the development is not strictly consistent with the objects of the zone, the development is considered acceptable.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 6 - Urban Release Area

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

Part 7 - Additional Local Provisions

7.1 - Earthworks

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

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

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

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

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

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

(f) the likelihood of disturbing relics

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

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

The earthworks proposed in the application are limited to the extent of cutting and filling required for the proposed building. This involves approximately 750mm of fill at the rear of the site where the site falls away to the open drainage channel, and a small amount of cut at the south-western corner of the site. The extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways.

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

The site is not known to be contaminated and conditions are imposed requiring the use of verified clean fill only. Excavated materials are to be reused onsite as far as possible, and conditions are imposed to require that surplus materials will be disposed of to an appropriate destination.

It is noted that a large stockpile of excavated material exists on the site. The applicant submits that the material was derived from the adjoining land to the west at the time of the construction of the highway service centre on that land. The applicant further submits that the material was originally derived from clean fill within the Narrambla Industrial Estate.

The earthworks will be appropriately supported onsite with the use of retaining walls, and the change in ground level is not substantial. Therefore the effect on the amenity of adjoining properties is considered to be minor.

The site is in proximity to a waterway (separate approval required as mentioned above), but not a drinking water catchment or sensitive area. Conditions are imposed to require a sediment control plan, including silt traps and other protective measures, to ensure that loose dirt and sediment does not escape the site boundaries.

7.3 - Stormwater Management

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

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

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

The development will result in only a small percentage of impervious surfaces, save for the landscaped area at the front of the site and the turfed future development site. As such, the car park will act as a detention basin designed to ensure that post-development run-off does not exceed pre-development levels. Relevant conditions are attached to ensure that this occurs.

7.6 - Groundwater Vulnerability

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

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

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

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

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

7.11 – Essential Services

All necessary services including Councils reticulated water, sewer and stormwater, are readily available within the subject land.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

Given that the land has been recently subdivided and deemed suitable for commercial use, it is considered that the subject land is suitable for the proposed development and no further investigation of contamination is required. It is noted that the previous development application that applies to the land considered the likelihood of contamination at that time and it was considered acceptable.

As noted above, there is a large stockpile of soil that has been deposited on the subject land derived from the adjoining land. It is, according to the applicant, clean fill. However, it is likely that this material contains naturally occurring asbestos (NOA) given its provenance within an area of the City known to contain NOA. It is likely that this material will be used to raise the ground levels at the rear of the site. Relevant conditions are attached to ensure that the subject material (and other excavated material within the site) is used in a satisfactory manner, consistent with the WHS Act and Regulations and Council’s Asbestos Management Plan. Council staff raise no objections to this occurring.

State Environmental Planning Policy 64 - Advertising and Signage

State Environmental Planning Policy 64 - Advertising and Signage applies to the subject development. The applicant is seeking consent to install a 4.5m high pylon sign located in the south-western corner of the site and a business identification sign (BIS) affixed to the front elevation of the proposed building.

The business identification sign will display the business name ‘D’Aquino Liquor Drive Thru Bottle Shop’. The pylon sign will display the company logo (in lieu of the words D’Aquino Liquor). The development also includes directional signage at the site entrances and above the entrances to the drive-through section of the building.

Conditions are attached in relation to additional signage being applied to the building in the future. A further condition is attached prohibiting A-Frame signage within the road reserve.

The SEPP requires that a consent authority must not grant development consent to an application to display signage unless the consent authority if satisfied:

(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.

3 - Aims, Objectives etc

(1) This Policy aims:

(a) to ensure that signage (including advertising):

(i) is compatible with the desired amenity and visual character of an area, and

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish, and

(b) to regulate signage (but not content) under Part 4 of the Act, and

(c) to provide time-limited consents for the display of certain advertisements, and

(d) to regulate the display of advertisements in transport corridors, and

(e) to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.

(2) This Policy does not regulate the content of signage and does not require consent for a change in the content of signage.

The subject signage is not incompatible with the theme of signage in the locality and is commensurate with other signs in the immediate locality such as the adjoining highway service centre and Finemores Transport. Also, the signage will effectively communicate the presence and the purpose of the business to the travelling public, with signage that is of an acceptable level of design quality and finish.

The proposed BIS is not inconsistent with the general aims and objectives of the plan.

Schedule 1

1 - Character of the Area

· Is the proposal compatible with the existing or desired future character of the area or locality in which it is proposed to be located?

· Is the proposal consistent with a particular theme for outdoor advertising in the area or locality?

Hanrahan Place is emerging as an important precinct providing services to the travelling public, with a highway service centre adjoining the subject land to the west, a further development application for a highway service centre currently before Council on the opposite land at 5 Hanrahan Place, and this development with the added ability to also provide additional neighbourhood shops, restaurants or cafes, or take away food and drink premises to the east of the subject building as noted on the plans.

The signage proposed within this application is commensurate with the theme of signage associated with the developments on adjoining land which generally do, or are proposed to (given that the service station before Council has not been determined at the time of writing this report) comprise pylon signage and corporate signage affixed to the host building on the land.

2 - Special Areas

· Does the proposal detract from the amenity or visual quality of any environmentally sensitive areas, heritage areas, natural or other conservation areas, open spaces areas, waterways, rural landscapes or residential areas?

The area is not characterised as a special area.

3 - Views and Vistas

· Does the proposal obscure or compromise important views?

· Does the proposal dominate the skyline and reduce the quality of vistas?

· Does the proposal respect the viewing rights of other advertisers?

The proposed pylon signage is relatively modest in terms of its height and is positioned in a way that it will not disrupts important views and will not dominate the skyline; nor will it unreasonably obscure signage on adjoining land.

The signage affixed to the building will have an immaterial effect on views or vistas; nor will it obscure the viewing rights of signage on adjoining land.

4 - Streetscape, Setting or Landscape

· Is the scale, proportion and form of the proposal appropriate for the streetscape, setting or landscape?

· Does the proposal contribute to the visual interest of the streetscape, setting or landscape?

· Does the proposal reduce clutter by rationalising and simplifying existing advertising?

· Does the proposal screen unsightliness?

· Does the proposal protrude above buildings, structures or tree canopies in the area or locality?

· Does the proposal require ongoing vegetation management?

The signage is appropriate within the streetscape, setting and landscape in terms of its size, scale, proportions and form. It is noted that the pylon signage will not be as tall as other pylon signs in the area such as Caltex and Bunnings. The signage will make a neutral contribution to the visual interest of the streetscape.

There is no existing signage within the site; accordingly the development will not result in a reduction in visual clutter, nor will the signage screen any unsightly element within the site. The proposed signage, including the pylon signage, will not protrude above the height of the building or other important features within the site.

No vegetation management directly related to the signage is required.

The signage is therefore appropriate within the streetscape, setting and landscape.

5 - Site and Building

· Is the proposal compatible with the scale, proportion and other characteristics of the site or building, or both, on which the proposed signage is to be located?

· Does the proposal respect important features of the site or building, or both?

· Does the proposal show innovation and imagination in its relationship to the site or building, or both?

The pylon sign will sit at 4.5m in height, well below the overall height of the proposed building; and the BIS affixed to the wall is appropriately positioned within the composition of the building and appropriately proportioned against the overall scale of the building.

6 - Associated Devices and Logos with Advertisements and Advertising Structures

· Have any safety devices, platforms, lighting devices or logos been designed as an integral part of the signage or structure on which it is to be displayed?

Not applicable.

7 - Illumination

· Would illumination result in unacceptable glare?

· Would illumination affect safety for pedestrians, vehicles or aircraft?

· Would illumination detract from the amenity of any residence or other form of accommodation?

· Can the intensity of the illumination be adjusted, if necessary?

· Is the illumination subject to a curfew?

The applicant advises that the signage will be illuminated. Council staff raise no objections to the signage being illuminated provided any possible light spill is contained within the site. Accordingly, a condition is attached requiring any exterior lighting to be installed in accordance with Australian Standard AS 4282 -1997 – Control of the Obtrusive Effects of Outdoor Lighting.

8 - Safety

· Would the proposal reduce the safety for any public road?

· Would the proposal reduce the safety for pedestrians or bicyclists?

· Would the proposal reduce the safety for pedestrians, particularly children, by obscuring sightlines from public areas?

The proposed signage affixed to the building is unlikely to result in any safety concerns for motorists, pedestrians or bicyclists. The subject pylon sign is a solid structure all the way to almost ground level and positioned adjacent to the primary exit of the drive-through liquor store, and therefore reduces the sightlines for vehicles exiting the site. Whilst the predominate means of arrival to the liquor store will be by passenger vehicle, there is still the likelihood of pedestrian or foot traffic to the store, and as such a potential risk to the safety of pedestrians as a result of the solid pylon sign and its location. Accordingly, a condition is attached that requires the infill panel between to the post to be removed between ground level and 1.5m above ground level.

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

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

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

Development Control Plan 2004

Orange Development Control Plan 2004 provides details and criteria for assessing development to support the statutory provisions of Orange LEP 2011. The relevant chapters of the DCP are:

· Chapter 0 - Interim Provisions

· Chapter 2 - Natural Resource Management

· Chapter 3 - General Considerations

· Chapter 10 - Special Uses and Roads Zones

· Chapter 14 - Advertising

· Chapter 15 - Car Parking

Chapter 0 - Local Environmental Plan 2011

Part 0.2 of Orange DCP 2004 establishes a conversation table for old zones under OLEP 2000 to new zones under LEP 2011, and in turn provides which chapters of the DCP are applicable in instances of new zonings under LEP 2011. This is pertinent given the subject land's zoning, being SP3 Tourist. Part 0.2 provides that there is no equivalent zoning for land zoned SP3. Notwithstanding the above, the provisions of PO 0.4-11 Interim Planning Outcomes - Transport Routes will apply to this proposal. An assessment of the relevant planning outcomes is provided below.

Part 0.4-11 Planning Outcomes - Interim Planning Outcomes - Transport Routes

The below Planning outcomes provide controls for development that occurs on land with frontage and/or access to a major transport route.

Whilst it is acknowledged that the subject land does not have either access nor frontage to the Northern Distributor Road (NDR), the land is currently visually exposed to the NDR, and Hanrahan Place does gain access directly from the NDR from the large five-arm roundabout on Leeds Parade. As such for completeness, the below planning outcomes are considered relevant to the assessment of the application.

· The development provides a high standard of visual appeal to motorists, cyclists and pedestrians, as well as adjoining property owners.

The design of the subject building is of an acceptable standard, commensurate with the level of design quality exhibited on nearby sites such as Bunnings, Caltex and Ron Finemores. The design rationale adopted results in a simple commercial style building of rectilinear form with articulated front elevation, expansive glazing, simple gable roof form with feature red banding below gutter line, and constrained building identification signage.

A 3m wide landscape bed will be provided at the frontage of the site planted out with a Lansdowneana (western corner), magnolias and groundcovers. Additionally, a further area of landscaping (with provision of another Lansdowneana) will be provided adjacent to the eastern entrance to the building to soften the building and provide shading for vehicles parked in spaces 14 and 15.

The development is consistent with the above planning outcome.

· The visual appearance of the development, including any signage, lighting or other ancillary element, must not generate a distraction to motorists.

The development, whilst providing illuminated signage, is unlikely to present any distraction issues for motorist due to two reasons: firstly its proximity to the NDR being reasonably separated, and secondly a condition is attached relating to the control of light spill.

· Any signage must not be animated whether by movement or flashing lights.

The subject signage is not animated.

· Where land has more than one street frontage the street with the lower volume of traffic is to provide the principal access to the development, subject to safety considerations.

The land has only one possible access, which is from Hanrahan Place.

· Where access is provided onto an arterial road, distributor road or major collector road, the access point must have appropriate safe sight distances for the prevailing speed limit and clear and unimpeded entrance/exit signage must be displayed.

Not applicable.

· Where onsite customer parking is provided that is not immediately visible from a public road, clear and unimpeded directional signage must be displayed.

The parking will be obvious to the travelling public. Notwithstanding, the applicant is proposing directional signage.

Chapter 2 - Natural Resource Management

Chapter 2 - Natural Resource Management provides planning outcomes for stormwater and groundwater quality, soil resource management, vegetation management and flora/fauna management - all of which have been considered above under the headings "Orange LEP 2011" (stormwater, groundwater), "Section 5A of the Act" and/or "Likely Impacts" below.

Chapter 3 - General Considerations

Chapter 3 provides planning outcomes of a general nature. Those of relevance to this assessment relate to cumulative impacts and urban areas. These are both addressed elsewhere within this report.

Chapter 10 - Special Uses and Roads Zones

Part 10.3-1 Panning Outcomes - Development Near Major Roads

An assessment of relevant planning outcomes is provided below:

· Development on land fronting and visible from a major road or distributor road provides for quality design on the highway and/or distributor road through landscaping, building setbacks façade design, external colours and materials and siting.

Whilst the proposed development does not front a major road, the location of the subject site can be viewed from the NDR near the intersection with Leeds Parade. The building facade has been designed to present as a modern commercial building of a reasonable architectural standard and is in keeping with the existing and future “desired character” of the surrounding area.

· Direct access to major roads is limited and is constructed to the requirements of the relevant roads authority.

As discussed above, access to the development is proposed via Hanrahan Place. Hanrahan Place represents the fifth arm of the major roundabout at this intersection. Egress from the development is proposed onto Hanrahan Place. A detailed assessment in relation to access has been undertaken below under the heading “Traffic Impacts”. Attached is a condition of consent which requires all work to be carried out in accordance with Council’s Development and Subdivision Code.

· Commercial buildings adjoining a distributor road are set back from the property boundary by at least 10m.

This planning outcome is not relevant to this application given that the subject lot does not adjoin the NDR.

· Lighting and signage visible from a distributor road is not animated and is designed so as not to distract motorists beyond glance recognition.

Lighting of the premises will be required to be carried out in accordance with AS 4282‑1997 - Control of the Obtrusive Effects of Outdoor Lighting. A detailed assessment of signage has been carried out above under the heading “State Environmental Planning Policy 64 - Advertising and Signage". The design of the signage will not unreasonably distract motorists travelling along the NDR.

Chapter 14 - Advertising

Part 14.2-1 Planning Outcomes - Advertisements

An assessment of relevant planning outcomes is provided below:

· The location, size, colour and design of advertisement complement the character of the locality.

· Advertisements on buildings fit within the envelope of the building.

· Freestanding pole or pylon signs relate to the height of associated buildings in business and industrial areas.

As outlined above under the SEPP 64 assessment, the proposed business identification signage is acceptable in the context and setting.

Chapter 15 - Car Parking

Part 15.6-1 Planning Outcomes - Off-Street Car Parking

An assessment of relevant planning outcomes is provided below:

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

· Car-parking areas are designed according to Australian Standard.

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

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

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

The DCP stipulates that retail premises are to provide onsite parking at the rate of 6.1 spaces per 100m²of Gross Leasable Floor Area (GLFA).

Similar to the comments above relating to the APU, whilst the building provides a total floor area of 658.27m², it is reasonable to exclude the travel lanes from the total floor area calculations for car parking purposes as they do not relate to retail floor space and thus do not generate a parking demand. Moreover, they are essentially parking in themselves within the building that provides a level of convenience to shoppers.

Accordingly, with the travel lanes excluded from the calculations for car parking, the applicable floor area equates to 382.06m². This results in a parking demand of 23.3 spaces (or 24 spaces to the nearest integer).

The submitted plans show the provision of 25 spaces, thus providing a surplus of 1 space. The level of on-site parking is further supplemented by the service lanes as part of the drive-through arrangement. Additionally, an appropriate amount of onsite queuing area is provided, resulting in a development that is satisfactory in terms of parking.

A drafting error was identified within the submitted plans by Designsatm which effectively provided a landscape bed in the middle of a parking space. This was raised with the applicant and it was suggested by Council staff to leave the landscape area, increase it in size, provide a large shade tree and forego one parking space as there was a 2 space surplus at the time. This was agreed to and is reflected in the current plans by Designsatm.

However, as there are plans provided by two organisations, the other plans identified as the Peter Basha Plans on the consent have not been amended to reflect the above described change to the parking layout. For the avoidance of doubt arising out of this identified conflict between the two sets of plans, the conditions relating to car parking and landscaping reference specific plans.

The applicant is not proposing bicycle storage as part of the application.

Adequate loading arrangements have been provided for onsite in a manner that will not unreasonably interrupt the day-to-day operations of the development.

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

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

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

Context and Setting

The subject land is located within a small cul-de-sac which links directly with the NDR at the Leeds Parade roundabout. The area is emerging as a service precinct for the travelling public, with a highway service centre operating from the adjoining land to the west and a further highway service centre proposed opposite the land the subject of this application which is currently before Council for consideration.

The other parcel within Hanrahan Place comprises a transport terminal which is the operations base for Ron Finemores Transport and provides vehicle maintenance, warehousing and storage of transport vehicles.

The area concerned is depicted in the below image:

Figure 1 - site context - the subject land is shown as the blue outline (approximate)

NB: the Caltex and Bunnings developments have been completed since this photo

(source: Google)

The land surrounding these properties comprises Bunnings on the western side of Leeds Parade, the Narrambla Industrial Estate to the southeast behind Finemores, undeveloped residential land to the south of Finemores and undeveloped business park land to the north of the subject land.

As such, the context and setting of the subject land can thus be characterised as a small commercial and industrial precinct. A retail premises providing drive-through liquor sales is not incongruous with the context and setting of the immediate locality in Hanrahan Place.

Access, Traffic and Parking - RMS guide

Access to the site is provided via an entrance/exit to the eastern half of the land just before the start of the cul-de-sac bowl; with an exit only to the west of the site. The circulation through the ‘drive-through’ arrangement is anticlockwise, with entry to the east and egress to the west of the site.

The application when originally submitted presented the opposite arrangement, with entry to the west and egress to the east. This arrangement was deemed unsatisfactory by Council staff as it did not provide sufficient stacking of vehicles waiting to enter the drive-through arrangement during peak periods and had the potential to impact upon Hanrahan Place. Such a problem would be exacerbated by the high volume of heavy vehicles within Hanrahan Place associated with the transport terminal at 3 -4 Hanrahan Place.

This position held by Council staff is supported by the RMS Guide to Traffic Generating Developments, which recommends that drive-through liquor stores are designed based on the following principles:

The drive-in facility (if a component of a large development) must be integrated with the overall development so as to limit the number of access points.

The internal roadway must be a minimum of 2 lanes wide, each lane being at least 3 metres wide, with one way circulation. Off-street parking spaces for browse-room customers and employees must also be provided which must not inhibit the free flow of vehicles.

An adequate holding area must be provided to ensure that vehicles are not forced to park on the street. Vehicles must travel a minimum distance of 30 metres before reaching the serving area.

Separate entry / exit driveways are recommended, each with a minimum width of 4 metres and with a minimum separation of 1 metre.

Accordingly, upon Council staff requests to amend the application, the applicant agreed to reverse the vehicle circulation, which provided far greater stacking volume and easier escape routes if insufficient stacking occurred during exceptional circumstances.

In relation to the above RMS recommendations, the development (having been amended by the applicant) is consistent with the above principles. The development provides appropriate access arrangements that will cater for this development and any future development within the possible future development site area. The development will provide three travel lanes comprising two service lanes and one browse lane; each will be 3m wide. The siting of the building, access location and vehicle circulation arrangements mean that approximately 39m of stacking distance or queuing space will be available for vehicles between the site access and the closest travel lane to the front boundary.

Finally, separate entry/exit driveways are provided.

The access, traffic and parking arrangements are acceptable and unlikely to result in an adverse environmental impact in the locality.

As mentioned above, there is an existing development consent applying to the land that provided for a neighbourhood shops, a restaurant or café and a take away food or drink premises as shown below:

Figure 2 - excerpt of plans from previous consent that applies to the land DA 278/2014(1)

The development that has been proposed under the application currently before Council does not align with the development previously approved on the land. To address this the applicant has earmarked the area shown on the submitted plans as a future development site and agreed to surrender the earlier development consent DA 278/2014(1).

Visual Impacts

The presentation of the subject building is of an appropriate architectural standard and scale for the land's context and setting; and accordingly the development is unlikely to result in any unsatisfactory visual impacts in the locality.

Noise Impacts

Council’s Environmental Health and Building Surveyor has reviewed the submitted material as it relates to noise impacts and provides the following assessment:

A Noise Impact Assessment (NIA) has been provided for this proposal. It demonstrates that this proposal can comply with the EPA’s Industrial Noise Criteria for the daytime and evening times. The Statement of Environmental Effects indicates that the proposal will operate between 9am and 10pm, which conforms to the recommendations of the Noise Impact Assessments recommendations. A condition has been included limiting the hours of operation of the proposal to 7am to 10pm to ensure that the NIA’s recommendations are met. Should the operator wish to operate beyond those hours, further consent and a further NIA will be required to ensure that nearby residential receivers are not unduly disturbed.

In addition to the above assessment, consideration needs to be given to the location of plant and equipment such as air conditioning units and cool room condensers. The submitted material indicates that all plant and equipment will be located on the roof space. Council's Environmental Health & Building Surveyor raises no objections to the location of plant and equipment.

Pedestrian Safety

Given the nature of the way the development is intended to operate - with drive-through vehicles and foot traffic in the one area - the risk of a vehicle/pedestrian conflict would exist. As such, to eliminate such a circumstance from occurring (or at the very least reduce the risk of such a circumstance) the applicant is required to provide traffic control measures such as a speed humps at the entry and exit of the travel lanes, and speed limit signs installed at the entry to travel lanes indicating that the area is a shared zone with a speed limit of 10km/h. A further sign advising motorists to ‘look for pedestrians’ is required. Additionally, at all four pedestrian entrances that link directly with retail display area, adequate signage is to be install advising people to look for vehicles.

The above measures will serve the purpose of raising the awareness and alertness of people using the retail premises so as to reduce the risk of a potential conflict. Relevant conditions are attached to ensure that these measures are installed and maintained prior to the issue of an Occupation Certificate.

Flora and Fauna

The site is devoid of any significant vegetation. There are large native trees on the adjoining land at the rear of the site which would provide shelter and refuge for native fauna. Council’s Manager City Presentation has advised that this vegetation will not be impacted upon by this development. As such, the development will not result in any impacts upon significant native flora or fauna.

Waste

The development is of a type likely to generate moderate to high levels of waste through shipping packaging, cardboard cartons etc. The subject plans nominate a refuse enclosure at the rear of the site. Swept path diagrams are submitted which demonstrate that the refuse enclosure can be serviced by an 11.347m, four axle refuse vehicle.

The development is acceptable in terms of waste management for the proposed business.

Safety Security and Crime Prevention

The applicant submits that the development has been designed to incorporate Crime Prevention through Environmental Design (CPTED) principles, which primarily relate to surveillance, territorial reinforcement, access control and space management.

The applicant submits that the development will provide reasonable opportunities for natural surveillance of external areas, with windows orientated to the street. However, it is noted that the central windows are identified as being ‘etched’, which would prevent the windows being used for surveillance. To ensure some level of surveillance is achieved to the front of the site, a condition is attached requiring that the shopfront windows adjacent to each entry within the front elevation remain 100% transparent at all times.

Other surveillance measures as submitted by the applicant include appropriate illumination of external areas and the installation of a CCTV system (this is required as part of the licencing requirements).

The open style frontage and landscaping scheme will allow casual surveillance of the site frontage from the public realm.

Territorial reinforcement and access control will be achieved by well-defined access points and signage identifying staff only areas.

The applicant submits that space management will include rapid removal of graffiti, repair of vandalism and replacement of malfunctioning lighting within the car park and exterior of the building.

From the foregoing, the development is considered satisfactory with regards to safety, security and crime prevention considerations.

Whilst not expressly provided for within the comments provided by NSW Police, in the interests of a consistent approach to CPTED within the locality, the same conditions that haven been applied to other development in Hanrahan Place have been included as conditions on the attached consent.

Note: pedestrian safety internally within the site is addressed separately elsewhere within the report.

Social Impacts

In a planning sense, social impacts are generally measured against changes that occur as a result of a development in three areas of society namely life, culture and community. This effectively relates to changes to:

· peoples' way of life (how they live, work, play and interact with one another),

· their culture (shared values, customs and beliefs),

· their community (its cohesion, stability, character, services and facilities).

The subject development is unlikely to directly result in any significant changes to the way people live, nor is it likely to have a direct effect on societal values or beliefs. Nor again is it likely to destabilise the community or disrupt the existing level of community cohesion.

This is primarily due to the land's geographical proximity from residentially zoned land, particularly residential areas of social disadvantage. Also, the functions and operational measures intended to be employed such as hours of operation (ie the 10pm closure time) will reduce the likelihood of social impacts.

The applicant submits that a community impact statement has been prepared in support of the liquor license application process.

As part of this process, key stakeholders were consulted, including Orange City Council. Council’s Director Community, Recreation and Cultural Services provided submission indicating no objections to the notice of intent to apply for a liquor license, citing that this application differed from other recent applications for bottle shops (where objections were raised during the assessment those applications) due to the separation of Hanrahan Place from residential areas, meaning this development would not directly increase access to alcohol to residential areas within walking distance.

This position has been reaffirmed during the assessment of the development application.

As such, the application is unlikely to result in unacceptable social impacts.

Economic Impacts

The development is likely to result in positive economic impacts through employment generation. Council raises no objections to the development on economic grounds.

Naturally Occurring Asbestos

The land is located in an area known to contain naturally occurring asbestos. As such, an Asbestos Management Plan is required to be prepared for the construction works in accordance with Work Health and Safety legislation. Relevant conditions are attached in this regard.

Cumulative Impacts

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

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

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

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

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

The development has been designed, and will be managed in such a way, so as to reduce the likelihood of the above scenarios form occurring. Things such as the counter-clockwise one-way circulation, the extent of service lanes, the amount of parking and the ongoing management of the business (such as hours of operation) will assist to limit the occurrence of unacceptable cumulative impacts.

The development is acceptable in terms of likely cumulative impacts.

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

The site is considered suitable for the proposed development. Council staff are not aware of any natural, physical or technological hazards that would unreasonably constrain the development.

As noted elsewhere, the land is located in an area likely to contain naturally occurring asbestos. Relevant conditions are attached in this regard.

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

As part of the advertising and exhibition process the application was referred to the NSW Police - Canobolas Local Area Command for comment. Council received comment indicating no objections to the application.

PUBLIC INTEREST s79C(1)(e)

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

SUMMARY

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

COMMENTS

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

Attachments

1 Notice of Approval, D17/63733 ⇩

2 Plans, D17/63717 ⇩

Planning and Development Committee 7 November 2017

2.6 Development Application DA 289/2017(1) - 2 Hanrahan Place

Attachment 1 Notice of Approval

OrangeCityCouncilNEW#45524E (2)

ORANGE CITY COUNCIL

Development Application No DA 289/2017(1)

NA17/ Container PR25416

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 81(1)

Development Application
Applicant Name:	D'Aquino's Liquor North Orange Pty Ltd
Applicant Address:	C/- Peter Basha Planning and Development PO Box 1827 ORANGE NSW 2800
Owner’s Name:	Hanrahan Place Pty Ltd
Land to Be Developed:	Lot 87 DP 1167633 - 2 Hanrahan Place, Orange
Proposed Development:	Retail Premises (shop) (drive-through liquor shop) and Business Identification Signage

Building Code of Australia building classification:	To be determined by the PCA

Determination
Made On:	7 November 2017
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	8 November 2017
Consent to Lapse On:	8 November 2022

Terms of Approval

The reasons for the imposition of conditions are:

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

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

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

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

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

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

Conditions

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

(a) Plans by Peter Basha Planning and Development reference 17039DA sheets 1 and 2 - dated 23.08.2017

Plans by Designsatm Job no. 16-025 DA01 Rev D; DA02 Rev D; DA03 Rev B; DA04 Rev B; DA05 Rev D; DA06 Rev B; DA07 Rev B; DA08 Rev B (8 sheets)

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

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

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

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

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

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

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

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

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

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(5) The beneficiary of development consent DA 278/2014(1) shall surrender the development consent DA 278/2014(1) prior to the issue of a Construction Certificate. The notice of surrender of the consent shall be made in accordance with the relevant legislation. The construction certificate shall not be issued until such time as Council acknowledges receipt of the notice of surrender of the development consent.

(6) The pylon sign shall be amended such that the infill portion between the two posts is deleted from ground level up to a height of 1.5m. The plans submitted with the application for a construction certificate shall clearly show the amend pylon sign.

(7) An approval under Section 68 of the Local Government Act is to be sought from Orange City Council, as the Water and Sewer Authority, for alterations to water and sewer. No plumbing and drainage is to commence until approval is granted.

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

The plan shall indicate signage and line marking necessary for the proper function of the one-way traffic circulation through the bottle shop to the western exit driveway. The eastern entry/exit driveway shall be a minimum of 7.0m wide at the property boundary.

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

PRIOR TO WORKS COMMENCING

(10) All necessary approvals under the Water Management Act 2000 and Fisheries Management Act 1994 shall be obtained prior to works commencing on the land.

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

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

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

DURING CONSTRUCTION/SITEWORKS

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

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

(16) Only clean verified fill shall be imported onto the site. Any surplus excavated material shall be disposed of at an appropriate location.

(17) All mechanical plant shall be located and positioned in a manner such that it cannot be viewed directly from any public place.

(18) 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.

(19) A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority.

(20) All construction works are to be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans.

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

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

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

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

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

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

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

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(27) A total of 25 off-street car parking spaces shall be provided upon the site in accordance with approved plan by designsatm Job no. 16-025 sheet DA01 rev. D, the provisions of Development Control Plan 2004, and be constructed in accordance with the requirements of Council's Development and Subdivision Code prior to the issue of an Occupation Certificate.

(28) Prior to the issuing of any occupation certificate, the following crime safety prevention requirements shall be installed on the site, and shall be maintained thereafter to the satisfaction of Council’s Manager Development Assessments:

· good quality CCTV shall be installed with multiple cameras positioned in locations that allow the capture of quality images, including; inside the store, to the sides and the rear of the building, and at the entry that faces out to capture a quality image of the customer’s face;

· CCTV must be able to be viewed by staff, preferably out of the view of the public;

· lighting shall be sufficient and placed in order to support images obtained from CCTV, as well as at entry and exit points, and light switches shall be located in a secure area;

· entry and exit points shall be clearly defined by signage;

· signage shall be placed at rear of the building to advise that CCTV is in operation; and

· way of travel markers shall be marked on the ground to ensure pedestrians and vehicles both have clear and safe passage.

(29) Landscaping shall be installed in accordance with the approved landscape plan by Designsatm Job no. 16-025 DA02 Rev D prior to the issue of a final occupation certificate and shall be permanently maintained to the satisfaction of Council's Manager Development Assessments.

(30) Speed humps shall be installed at the vehicle entrance and exit of the drive through liquor store. Signage visible at the vehicle entrance of the drive through liquor store building displaying the words “look for pedestrians” and “10KM/H speed limit” shall be erected. Signage at the pedestrian entrances of the liquor store displaying the words “look for vehicles” shall be installed.

The above measures shall be installed prior to the issue of an Occupation Certificate.

(31) 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.

(32) The owner of the building/s must cause the Council to be given a Final Fire Safety Certificate on completion of the building in relation to essential fire or other safety measures included in the schedule attached to this approval.

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

(34) 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.

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

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(36) A separate development application shall be submitted to and approved by Council prior to the erection of any advertising structures or signs of a type that do not meet the exempt development provisions State Environmental Planning Policy (exempt and complying development codes) 2008.

(37) No sandwich boards or the like are to be placed on Council's footpath.

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

(39) The following crime safety prevention requirements shall be maintained on site at all times to the satisfaction of Council’s Manager Development Services:

· CCTV shall be recorded appropriately, kept for at least 28 days, and staff should be trained in using the system;

· CCTV must be able to be viewed by staff, preferably out of the view of the public;

· promotional material shall not block surveillance in or out of any area within the store; and

· waste bins shall be locked away or secured in a way that prevents them being moved or accessed without authorisation.

(40) The glazing around the two entrances to the building within the front elevation shall be entirely transparent and permanently maintained as such.

(41) Emitted noise shall not exceed 5dB(A) above background sound level measured at the nearest affected residence.

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

(43) The hours of operations of the premises shall not exceed 7am to 10pm without the prior approval of Council.

Other Approvals

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

Nil

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

Nil

Right of Appeal

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

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

Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	8 November 2017

Planning and Development Committee 7 November 2017

2.7 Development Application DA 157/2017(2) - 122 and 124 McLachlan Street

RECORD NUMBER: 2017/2185

AUTHOR: Summer Commins, Senior Planner

EXECUTIVE Summary

Application lodged	6 September 2017
Applicant/s	Mr G Kings
Owner/s	Mustang Rocks Pty Ltd & 2Pursue Mt Gini Pty Ltd
Land description	Lot 1 DP 998790 and Lot 1 DP 986148 122-124 McLachlan Street, Orange
Proposed land use	Subdivision (two lot residential boundary adjustment)
Value of proposed development	Not applicable

Application has been made to modify development consent DA 157/2017(1) for proposed subdivision (two lot residential boundary adjustment) at Lot 1 DP 998790 and Lot 1 DP 986148 - 122-124 McLachlan Street, Orange.

The approved development involves boundary adjustment to excise the existing dwelling on a standard lot at the site frontage (proposed Lot 1); and create a vacant battleaxe development lot (proposed Lot 2).

The modified proposal seeks to amend and delete conditions of development consent, which require the construction of a heavy duty concrete driveway for the full length of the access handle servicing proposed battleaxe Lot 2. It is the applicant’s intention that the battleaxe driveway be constructed in conjunction with future development on proposed Lot 2. Council is not in receipt of a development application for subsequent development on proposed Lot 2 at this time.

A report on the proposed departure has been prepared by Council’s Development Engineer to inform assessment of the modified development. The report concludes that Council’s Technical Services Division does not support a departure to the Code, nor the proposed modified development.

Approval of the modified proposal in the form submitted is not supported. Notwithstanding, the development conditions may be modified slightly to satisfy Council’s requirements and reduce development costs to the applicant. An amended draft Notice of Approval is attached, with conditions to ensure the development proceeds in an acceptable manner.

DECISION FRAMEWORK

The modified proposal is inconsistent with Council’s historical practice for the creation of the battleaxe lots requiring the construction of the driveway prior to the issue of a subdivision certificate. It is unsuitable and unreasonable to permit a Code variation for the modified development only. The Code would need to be varied to alter the requirements for all battleaxe lots and ensure consistency for developers. Approval of the application in the form submitted would have adverse cumulative impacts. The alternative conditions (Conditions (7) and (12)) as recommended by Council’s Development Engineer are suitable to ensure compliance with the Development and Subdivision Code and reduce costs for the developer.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council modifies development application DA 157/2017(2) for Subdivision (two lot residential boundary adjustment) at Lot 1 DP 998790 and Lot 1 DP 986148 – 122 and 124 McLachlan Street, Orange, pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE PROPOSAL

Application has been made to modify development consent DA 157/2017(1). The approved development involves boundary adjustment to excise the existing dwelling on a standard lot at the site frontage (proposed Lot 1); and create a vacant battleaxe development lot (proposed Lot 2). The approved subdivision is depicted below.

Figure 1 - approved subdivision DA 157/2017(1)

The modified proposal seeks to waive requirements for construction of the driveway servicing battleaxe Lot 2. Consent is sought to:

· Amend Condition 7, by removing text shown bold, below :

The existing footpath crossing serving proposed Lot 2 shall be reconstructed to align with the McLachlan Street access handle. Engineering plans, showing details of the proposed location of the vehicle access, gutter bridge construction, heavy duty concrete driveway for the full length of the access handle and traffic management works, are to be approved by Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing of a Construction Certificate.

· Delete Condition 12 which states:

Proposed Lot 2 shall be provided with a heavy duty concrete driveway constructed to a minimum width of 3.0 metres for the full length of the access handle and to the requirements and standards of the Orange City Council Development and Subdivision Code.

It is the applicant’s intention that the battleaxe driveway be constructed in conjunction with future development on proposed battleaxe Lot 2. Council is not in receipt of a development application for subsequent development on proposed Lot 2 at this time. The applicant submits (refer attachment) that deferring construction of the driveway will not adversely impact on neighbourhood character, adjoining improvements, the natural environment, or the quality of the completed subdivision.

MATTERS FOR CONSIDERATION

Section 96(1A) and (3) of the Environmental Planning and Assessment Act 1979 (EPAA) states:

(1A) A consent authority may…modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

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

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan under section 72 that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in Section 79C(1) as are of relevance to the development the subject of the application.

In consideration of the requirements of Sections 96(1A) and (3):

· The development as modified is substantially the same development as the development for which the consent was originally granted:

- the modified works relate to a small component of the approved development only

- the modification will not alter the nature or intensity of the existing and future use of the proposed lots

- the modified development will have minor impact on the interface and relationship with adjoining residential parcels

- the modification will not result in adverse amenity impacts for adjoining dwellings in respect of visual bulk, privacy and solar access.

· The development as modified does not effect a condition imposed as a requirement of concurrence by a Minister, public authority or approval body.

· The development as modified does not comprise advertised development pursuant to Clause 117 of the Environmental Planning and Assessment Regulation 2000 or Orange Development Control Plan (DCP) 2004-5.3. Public notice and exhibition of the modified development was not required.

· No submissions were received in relation to the development as modified.

· The relevant matters under Section 79C(1) are addressed in this report.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

The modified proposal is not contrary to the above objectives, as outlined in this report.

Clause 1.6 - Consent Authority

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Mapping

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

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

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

Part 2 - Permitted or Prohibited Development

Clause 2.3 Zone Objectives and Land Use Table

Permissibility

The subject site is located within the R1 General Residential zone. The modified development is defined as “subdivision” (residential boundary adjustment).

Pursuant to Section 4B of the Environmental Planning and Assessment Act:

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

Subdivision is permitted with consent in the R1 Zone, pursuant to Clause 2.6 (see below).

Zone Objectives

The objectives for land zoned R1 General Residential are as follows:

· To provide for the housing needs of the community.

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

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

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

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

The modified proposal is not adverse to the zone objectives.

Clause 2.6 Subdivision - Consent Requirements

Clause 2.6 is applicable and states:

(1) Land to which this Plan applies may be subdivided but only with development consent.

Consent is sought for Torrens subdivision (boundary adjustment) of the subject land in accordance with this clause.

Part 3 - Exempt and Complying Development

The modified proposal is not exempt or complying development.

Part 4 - Principal Development Standards

The Principal Development Standards do not relate to the subject land or modified development.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

Clause 5.10 is applicable. The subject land is located in the East Orange Heritage Conservation Area. Pursuant to Clause 5.10(4):

In consideration of this clause, the modified development will not have adverse impact on the significance of the conservation area, as considered for the original development.

Part 6 - Urban Release Area

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

7.2 - Flood Planning

The subject land is identified on the Flood Planning Map as a Flood Planning Area. Clause 7.2 applies. This clause states in part:

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

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

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

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

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

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

In consideration of Clause 7.2, the modified proposal will not alter the approved development in respect of flood hazard, flood behaviour or adverse environmental impacts.

7.3 - Stormwater Management

Clause 7.3 is applicable. This clause states in part:

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

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

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

In consideration of Clause 7.3, the modified proposal will not alter the approved development in terms of stormwater management.

7.6 Groundwater Vulnerability

The subject land is identified as Groundwater Vulnerable on the Groundwater Vulnerability Map and 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:

In consideration of Clause 7.6, the modified proposal will not alter the approved development in terms of groundwater vulnerability.

7.11 Essential Services

Clause 7.11 is applicable. This clause states:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water

(b) the supply of electricity

(c) the disposal and management of sewage

(d) storm water drainage or on-site conservation

(e) suitable road access.

In consideration of this clause, the modified proposal will not alter the approved development in respect of utility services (a) – (d) above. Urban services will be augmented to provide individual servicing to proposed Lots 1 and 2.

The modified proposal will not provide (e) suitable road access to proposed Lot 2. Council’s Development Engineer has recommended Conditions 7 and 12 be amended to satisfy the requirements of the Clause 7.11 and the Development and Subdivision Code and reduce development costs to the applicant (refer below). Amended conditions are included on the attached Notice of Approval.

STATE ENVIRONMENTAL PLANNING POLICIES

There are no State Environmental Planning Policies that apply to the modified development.

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

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

DESIGNATED DEVELOPMENT

The modified proposal is not designated development.

INTEGRATED DEVELOPMENT

The modified proposal is not integrated development.

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

Development Control Plan 2004

DCP 2004 – 7.2 Residential Subdivision

The DCP prescribes the following applicable planning outcomes:

· Lots are oriented to optimise energy-efficiency principles.

· Lots below 500m2 indicate a mandatory side setback to provide for solar access and privacy.

· Lots are fully serviced and have direct frontage/access to a public road.

· Design and construction complies with the Orange Development and Subdivision Code.

In consideration of the planning outcomes:

· The modified proposal will not alter the approved development in respect of residential amenity (energy efficiency, solar access, privacy, access to services) to existing and future residential use of proposed Lots 1 and 2.

· The modified proposal to defer driveway construction will not provide suitable access to McLachlan Street for proposed battleaxe Lot 2.

· Pursuant to the Orange City Development and Subdivision Code, driveway construction for battleaxe lots is required prior to the issue of a subdivision certificate. The modified proposal represents a variation to Council’s longstanding policy and practice. A report on the proposed Code variation has been prepared by Council’s Development Engineer to inform assessment of the modified development and is attached. The report states in summary:

- There are various advantages to Council and developer associated with battleaxe driveway construction: a reduction in construction load on street; positive visual impacts for streetscape and site; sediment control; services protection.

- Past experience has found that a battleaxe driveway will cater for construction traffic with no damage.

- The construction of a driveway to a battleaxe lot is Council’s standard policy and practice for 25 years.

- Council’s policy on this matter is consistent with other regional Councils.

- Should battleaxe driveway construction be deferred until development on the battleaxe lot, the driveway may not be constructed for a significant period. This may remove the advantages to Council and developer cited above.

- Deferral of battleaxe driveway construction until development on the battleaxe lot would remove costs for developers and pass costs to home owners or builders.

- It is unsuitable and unreasonable to permit a Code variation for the modified development only. The Code would need to be varied to alter the requirements for all battleaxe lots and ensure consistency for developers.

- The existing requirements for creating battleaxe lots should be maintained, without variation to the Orange City Development and Subdivision Code.

- Council’s Technical Services Division do not support the proposed modification in the form submitted.

Council’s Development Engineer has recommended Conditions 7 and 12 be amended to satisfy the requirements of the Development and Subdivision Code and reduce development costs to the applicant. Conditions 7 and 12 will read as follows on the modified Notice of Approval [amendments shown in bold italics]:

(7) The existing footpath crossing serving proposed Lot 2 shall be reconstructed to align with the McLachlan Street access handle. Engineering plans, showing details of the proposed location of the vehicle access, gutter bridge construction, heavy duty concrete or bitumen sealed driveway for the full length of the access handle and traffic management works, are to be approved by Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing of a Construction Certificate.

(12) Proposed Lot 2 shall be provided with either a heavy duty concrete driveway or bitumen sealed gravel pavement (200mm thick) constructed to a minimum width of 3.0 metres for the full length of the access handle and to the requirements and standards of the Orange City Council Development and Subdivision Code.

DCP 2004-13 - Heritage

· Development relates to the significant features of heritage buildings on or near the site, as reflected in inventory sheets.

· Development conforms with recognised conservation principles.

· Conservation Management Plans are prepared for development having a significant effect on heritage site.

As outlined above, the modified development will not have adverse impact on the significance of the East Orange Heritage Conservation Area. A conservation management plan is not required for the proposal.

Orange DCP 2004 – Infill Guidelines

The DCP 2004 Infill Guidelines are not applicable to the proposed development.

Orange Development Contributions Plan 2015

The modified proposal will have nil impact on development contributions for the approved development. Developer contributions (Section 94 and Section 64) are not applicable to the proposed boundary adjustment. The proposal does not involve additional lots. Each existing parcel has credit for a 3br dwelling.

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

The modified development is not inconsistent with any provision prescribed by the Regulations.

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

The visual, conservation, residential amenity and environment impacts of the modified proposal are consistent with the original development.

The modified development to defer battleaxe driveway construction will not provide suitable road access to proposed Lot 2. Associated flow-on effects include construction load on public roads; adverse visual impacts for streetscape and site; on-street sedimentation; and potential damage to onsite services.

The modified proposal would also have cumulative impacts. As outlined, the proposal is contrary to the requirements of Council’s Development and Subdivision Code, which requires driveway construction for battleaxe lots prior to the issue of a subdivision certificate. It is unsuitable and unreasonable to permit a Code variation for the modified development only. The Code would need to be varied to alter the requirements for all battleaxe lots and ensure consistency for developers.

To avoid such impacts, the modified development is not supported in the form submitted. Council’s Development Engineer has recommended amendment to Condition Nos. 7 and 12 requiring driveway construction, which will satisfy the requirements of the Development and Subdivision Code, and reduce development costs for the applicant.

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

There are no aspects of the site that indicate it is unstable for the modified development.

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

The modified development does not comprise advertised development pursuant to Clause 117 of the Environmental Planning and Assessment Regulation 2000 or Orange Development Control Plan (DCP) 2004-5.3. Public notice and exhibition of the modified development was not required. No submissions have been received in relation to the proposal.

PUBLIC INTEREST s79C(1)(e)

The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines etc. that have not been considered in this assessment. To approve the modified development in the form submitted would be contrary to the requirements of Council’s Development and Subdivision Code, and not in the public interest.

SUMMARY

Attachments

1 Notice of Approval, D17/63432 ⇩

2 Supporting Information, IC17/20502 ⇩

3 Pros and Cons of Driveway, D17/51156 ⇩

Planning and Development Committee 7 November 2017

2.8 Development Application DA 158/2017(2) - 194 March Street

RECORD NUMBER: 2017/2186

AUTHOR: Summer Commins, Senior Planner

EXECUTIVE Summary

Application lodged	6 September 2017
Applicant/s	Mr G Kings
Owner/s	Rusty Man Pty Ltd & 2Pursue Mt Hay Pty Ltd & DR 8 Pty Ltd
Land description	Lot 22 DP 1131258 - 194 March Street, Orange
Proposed land use	Subdivision (two lot residential) and Demolition (existing shed)
Value of proposed development	Not applicable

Application has been made to modify development consent DA 158/2017(1) for proposed subdivision (two lot residential) and demolition (existing shed) at Lot 22 DP 1131258 -194 March Street, Orange.

The approved development involves residential subdivision to excise the existing dwelling on a standard lot at the site frontage (proposed Lot 1) and create a vacant battleaxe development lot (proposed Lot 2).

The modified proposal seeks to amend and delete conditions of development consent which require the construction of a heavy duty concrete driveway for the full length of the access handle servicing proposed battleaxe Lot 2. It is the applicant’s intention that the battleaxe driveway be constructed in conjunction with future development on proposed Lot 2. Council is not in receipt of a development application for subsequent development on proposed Lot 2 at this time.

DECISION FRAMEWORK

The modified proposal is inconsistent with Council’s historical practice for the creation of the battleaxe lots requiring the construction of the driveway prior to the issue of a subdivision certificate. It is unsuitable and unreasonable to permit a Code variation for the modified development only. The Code would need to be varied to alter the requirements for all battleaxe lots and ensure consistency for developers. Approval of the application in the form submitted would have adverse cumulative impacts. The alternative conditions (Conditions (5) and (14)) as recommended by Council’s Development Engineer are suitable to ensure compliance with the Development and Subdivision Code and reduce costs for the developer.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 158/2017(2) for Subdivision (two lot residential) and Demolition (existing shed) at Lot 22 DP 1131258 - 194 March Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE PROPOSAL

Application has been made to modify development consent DA 158/2017(1). The approved development involves two lot subdivision to excise the existing dwelling on a standard lot at the site frontage (proposed Lot 1); and create a vacant battleaxe development lot (proposed Lot 2). The approved subdivision is depicted below.

Figure 1 - approved subdivision DA 158/2017(1)

The modified proposal seeks to waive requirements for construction of the driveway servicing battleaxe Lot 2. Consent is sought to:

· Amend Condition 5, by removing text shown bold, below :

Engineering plans, showing details of the proposed location of the vehicle accesses, footpath crossing details, heavy duty concrete driveway for the full length of the Lot 2 access handle and traffic management works, are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing of a Construction Certificate.

· Delete Condition 14 which states: