Agenda of Planning and Development Committee

Planning and Development Committee 7 December 2017

2.5 Development Application DA 109/1992(2) - 1938 Millthorpe Road

RECORD NUMBER: 2017/2507

AUTHOR: Daniel Drum, Senior Planner

EXECUTIVE Summary

Application lodged	30 June 2017
Applicant/s	Boral Resources (Country) Pty Limited
Owner/s	Mr GJ and Mrs M Taylor
Land description	Lot 105 DP 1109491 - 1938 Millthorpe Road, Shadforth (formerly parts of Portions 36, 71 and 147, and Lot 14 DP 113054, Parish of Shadforth, County of Bathurst)
Proposed land use	Basalt Quarry Operation
Value of proposed development	$0

Council’s consent is sought to modify the Notice of Determinationto Development Application 109/92 (DA 109/92), which applies to 1938 Millthorpe Road, Shadforth, being Lot 105 DP 1109491 (the ‘subject property’).

DA 109/92 was approved in September 1992, providing for the use and development of the subject property for the purpose of a basalt quarry and processing plant^{^[i]}. The quarry was approved to produce a maximum of 150,000 tonnes of product per annum.

DA 109/92 was approved as Designated Development pursuant to the provisions of the Environmental Planning and Assessment Act 1979.

Council’s consent is now sought to modify the Notice of Determination to DA 109/92 to increase the maximum production limit of the quarry to 200,000 tonnes per annum, and to update the operational description of the quarry to reflect current and future requirements.

The proposal does not seek to increase the extent of the quarry area approved under DA 109/92.

The key matters for consideration are whether the proposed modification satisfies the requirements of Clause 96(2) of the Environmental Planning and Assessment Act 1979 and Schedule 3, Part 2, Clause 35 of the Environmental Planning and Assessment Regulation 2000. These provisions require Council to consider whether:

· the proposed development, as modified, is substantially the same as the development for which consent was originally granted; and

· whether the proposed development as modified would significantly increase the environmental impact of the total development compared with the existing development.

The following assessment demonstrates that the development, as modified, is substantially the same development for which consent was originally granted; and that the development, as modified, will not substantially increase the environmental impact of the total development compared with the existing development.

It is recommended that the use and development, as modified, be supported.

DECISION FRAMEWORK

Development in Orange is governed by two key documents, the 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.

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 Council 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.

This development application centres on extracting matter at a faster rate than previously approved, not extracting an overall increased amount over the life of the quarry. The impacts of this faster rate of extraction are not considered significant by the assessment team.

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 109/1992(2) for a Basalt Quarry Operation at Lot 105 DP 1109491 - 1938 Millthorpe Road, Shadforth (formerly parts of Portions 36, 71 and 147, and Lot 14 DP 113054, Parish of Shadforth, County of Bathurst) pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

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

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council’s consent is sought to modify Development Application 109/92 as follows:

Increased Maximum Production Limit

The applicant proposes to modify Condition (4) of DA 109/92 to increase the maximum rate of quarrying from 150,000 tonnes per annum to 200,000 tonnes per annum.

Supporting information submitted with the application identifies that an increased annual rate of quarrying is required to service a forecast increase in short-to-medium term demand for quarry product. It is understood that regional demand is generally driven by local and regional construction projects, local and regional infrastructure development and mining.

Project Description

The application seeks to make a number of changes to the approved 1992 project description which is outlined in the original development application and the document Environmental Impact Statement Proposed Basalt Quarry for A.P. & E.M. Commins by Bruce A Hansen, dated 25 June 1992 (the ‘original 1992 EIS’).

In order to achieve this, the application proposes to modify Condition 2 of DA 109/92 to reference Statement of Environmental Effects Orange Quarry – Increase in Maximum Production Limit, Boral Resources (Country) Pty Ltd, Revision 3 by Aurecon, dated 17 July 2017.

The proposed changes to the approved project description are described below:

Blasting

The original 1992 EIS identified that blasting after the third year of operation would occur up to 12 times per year, with a single blast generally yielding 5,000m³.

Despite the original 1992 EIS, supporting information submitted with the application indicates that blasting currently occurs two to three times per year, with a single blast generating in the order of 30,000 to 50,000 tonnes.

Further, the supporting information indicates that in the future blasts may be undertaken up to six times per year, with a single blast generating in the order of 75,000 tonnes.

While the supporting information indicates that a modification of the project description is not required to reduce the number of blasts undertaken per year, it is noted that the original 1992 EIS anticipated that each blast would only generate in the order of 5,000m³(approximately 15,000 tonnes).

Given that each blast is now anticipated to generate in the order of 75,000 tonnes, Council staff consider that it is appropriate that this change be formally recognised as a modification to the project description and that any potential environmental impact be assessed accordingly.

Plant and Equipment

The original 1992 EIS provided for use of mobile screening and crushing plant for Stages 1‑2 of extraction, and permanent screening and crushing plant for the subsequent Stages 3‑6 of extraction, being the remaining life of the quarry.

The supporting information submitted with the application indicates that while fixed plant was installed and used, the plant has recently reached the end of its useful design life and has been replaced with a mobile crushing and screening plant typically located on the floor of the quarry. The supporting information indicates that current mobile plant consists of the following:

· Mobile crushers and screens: crushing and screening equipment consists of a primary crusher, a secondary crusher, a tertiary crusher, a crusher precision screen and two triple deck screens.

· Front end loaders: three front end loaders are used to load product into plant and trucks.

· 25 tonne truck: one large truck is used to transport materials within the quarry and does not travel off-site.

· Support vehicles: bobcat, water truck and service truck.

In addition, the supporting information indicates that additional plant not addressed by the original 1992 EIS are currently being used in the quarry. These include:

· Pre-coat plant: the pre-coat plant coats quarried material with hydrocarbons for use on asphaltic road base. The pre-coat plant operates intermittently depending upon demand for the product.

· Pug mill: the pug mill mixes quarry products with other materials such as sand, clay or cement to produce a mixed product.

The supporting information submitted with the application indicates that there are no anticipated changes to the existing mobile plant and equipment.

Further, on the basis that all fixed plant has been removed from the quarry, the applicants indicates that the dust emissions requirements of Condition 21 should be deleted from the Notice of Determination.

Site Buildings and Operations

The original 1992 EIS provided for buildings and a weighbridge in two locations depending on the staging of quarry development.

The supporting information submitted with the application indicates that current buildings consist of office and amenities in the form of four demountable buildings, a workshop hangar, a weighbridge with office, and a redundant equipment storage area (hardstand). The current buildings do not appear to be located in any area described by the original 1992 EIS.

While the applicant is seeking approval of the modified location and arrangement of buildings, the supporting information submitted with the application notes that the exact location and engineering details have not been developed and would be submitted to Council as part of a Construction Certificate application.

Access and Traffic

The approved 1992 project description provided for the following traffic movements:

· an average of 60 truck movements per day, with half of the trucks being semi-trailers carrying 24 tonnes and half of the trucks being rigid trucks carrying 13 tonnes;

· twenty light vehicle (ie car) movements per day; and

· an average of four service vehicle (ie fuel, explosives, repair vehicles) movements per day.

The supporting information submitted with the application indicates that heavy and light vehicle movements at the quarry are currently substantially lower than those anticipated in the original 1992 EIS. Generally this is due to the average load which can be transported by a heavy vehicle increasing since 1992, meaning that less trucks are required to transport the same amount of quarry product.

Notwithstanding the current operations of the quarry, the supporting information indicates that peak heavy vehicle movements may increase to enable the quarry to supply projects which require a substantial quantity of material in a short period of time.

Specifically, the supporting information indicates that peak heavy vehicle movements may increase from 8 movements per hour to 16 movements per hour. Despite the increase in peak heavy vehicle movements, the supporting information indicates that the average annual number of heavy vehicle movements would still be lower than that contained in the original 1992 EIS (approximately 72 vehicle movements per day).

Other Matters

In addition to the forgoing matters, the supporting information submitted with the application has identified changes in relation to staging of extraction and rehabilitation.

The supporting information indicates that modification of DA 109/92 is not required to allow for the proposed changes as they can be addressed through the existing conditions of consent. Notwithstanding, the anticipated changes are outlined below.

Extraction Staging

The original 1992 EIS identified a six stage extraction plan, with extraction to commence in the south-western section of the quarry and progressively move towards the north. Extraction has generally occurred in accordance with the original extraction plan to date.

The supporting information submitted with the application indicates that the material most suitable for current market demands is located in the northern section of the quarry, and that it may be preferable to extract this material before the material within the central part of the quarry.

The supporting information indicates that minor differences in the extraction plan and the provision of secondary access for rehabilitation are not considered to be modifications to the project description as they are ongoing internal operational matters which can be managed via Condition 11 of DA 109/92, which states:

“Within twelve months of operation an “Overall Site Management Plan” in accordance with Department of Mineral Resources guidelines shall be submitted to Council and include the following information to the satisfaction of Council:

- description of stages of the development

- detailed plan showing design and location of quarry zones and access roads, erosion and sediment control structures, fuel and explosive storage, buildings and plan in relation to contours, and natural drainage lines for all stages of development.”

Council staff accept that Condition 11 would allow for a revised Overall Site Management Plan to be submitted, subject to Council’s satisfaction. However, it is recommended that an Advisory Note be included in the modified Notice of Determination to reiterate the requirement for the applicant to submit a revised Overall Site Management Plan if they propose to amend the existing stages of extraction.

Until a revised Overall Site Management Plan is prepared to Council’s satisfaction, staging of extraction must occur in accordance with the original 1992 EIS and existing Overall Site Management Plan.

Rehabilitation

The supporting information submitted with the application identifies that no substantial rehabilitation measures have commenced as no section of the quarry has been exhausted.

Notwithstanding, some tree planting has been undertaken on the northern, southern and eastern boundaries of the quarry to mitigate visual impacts.

Furthermore, the supporting information indicates that a Rehabilitation Management Plan is currently being prepared and will be provided to Council when completed.

Existing Conditions of the Subject Property

The existing conditions of the subject property are illustrated in Figure 1 below:

Figure 1: existing conditions of the quarry

(Source: Google Earth, imagery dated December 2016)

MATTERS FOR CONSIDERATION

Environmental Assessment

In the administration of sections 78A, 79B, 79C, 111 and 112, the provisions of Section 5A of the Environmental Planning and Assessment Act 1979 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, Biodiversity Conservation Regulation 2017 and State Environmental Planning Policy (Native Vegetation in Non-Rural Areas) 2017 were 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 extent of the development, as modified, is the same as the development for which consent was originally granted. The only substantial change to the development is an increase in the annual rate of production from 150,000 tonnes to 200,000 tonnes.

In this regard it is considered that the impact of the development, as modified, will be similar to the impact of the original development. No further consideration of Section 5A of the Environmental Planning and Assessment Act 1979 is considered necessary.

Modification of Consents

Section 96(2) of the Environmental Planning and Assessment Act 1979 states that a consent authority may modify a consent if it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.

With regard to this requirement, the supporting information submitted with the application indicates that the proposed development, as modified, would be substantially the same as the development for which consent was originally granted on the basis that the impact of the quarry would be similar, or less, than that predicted by the original development application.

Council staff rely on a number of legal authorities to determine whether a proposed modification is ‘substantially the same’ as the development for which consent was originally granted. In general, those authorities have established the principal that the concept of ‘substantially the same’ must be determined by a ‘quantitative and qualitative’ comparison.

From a quantitative perspective, it is acknowledged that the development, as modified, has an annual maximum production capacity 50,000 tonnes greater than the existing development (ie 150,000 tonnes v 200,000 tonnes).

However, from a qualitative perspective it is considered that the fundamental characteristics of the development, as modified, are the same as the development for which consent was originally granted; and that despite an increased annual production limit, will not have a significantly greater environmental impact.

Based on this quantitative and qualitative comparison, Council staff agree that the development, as modified, is substantially the same as the development for which consent was originally granted.

The environmental impact associated with the development, as modified, is addressed in detail below under the heading “Likely Impact of the Proposed Development”.

Evaluation

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.

Given that the proposed modification relates to an increase in the maximum production limit of the quarry and other operational requirements, it is considered that neither Orange Local Environmental Plan 2011 nor Orange Development Control Plan 2004 contain provisions which would meaningfully assist in the assessment of the development, as modified. Notwithstanding, the provisions the Orange Local Environmental Plan 2011 which deal with preliminary matters and permissibility are addressed below.

It is considered that the appropriate assessment framework is established by Schedule 3 of the Environmental Planning and Assessment Regulations 1979, State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, State Environmental Planning Policy 33 - Hazardous and Offensive Development, State Environmental Planning Policy 55 - Remediation of Land and an assessment of the likely impacts of the development, as modified. These matters are addressed in the body of this report.

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

Orange Local Environmental Plan 2011 and Development Control Plan 2004

The relevant provisions of Orange Local Environmental Plan 11 were addressed in detail as part of the assessment of Development Application 109/92 in 1992.

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The aims of the LEP include:

(a) to encourage development that 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 the needs of present and future generations to be met by implementing the principles of 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 development, as modified, is considered to be consistent with the relevant aims of the plan. The relevant matters are addressed in the body of 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 site is identified on the LEP maps in the following manner:

Land Zoning Map:	E3 Environmental Management
Lot Size Map:	Minimum Lot Size 100ha
Heritage Map:	Not a Heritage Conservation Area or a Heritage Item
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 property is zoned E3 Environmental Management. The development, as modified, is defined as extractive industry under OLEP 2011. Extractive industry is permitted with consent in the E3 Environmental Management zone.

OLEP 2011 identifies that extractive industry means:

“…the winning or removal of extractive materials (otherwise than from a mine) by methods such as excavating, dredging, tunnelling or quarrying, including the storing, stockpiling or processing of extractive materials by methods such as recycling, washing, crushing, sawing or separating, but does not include turf farming.”

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

1 - Objectives of the 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.

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

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

Given that the development, as modified, is substantially the same as the development for which consent was originally granted, it is considered that the development, as modified, is neutral with regard to the objectives of the E3 Environmental Management zone.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007

The relevant provisions of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (the ‘SEPP’) are addressed below.

Compatibility of Extractive Industry with Other Land Uses

Clause 12 of the SEPP requires that the consent authority must consider and evaluate the following matters before determining an application for consent for development for the purposes of extractive industry:

· Consider:

- the existing uses and approved uses of land in the vicinity of the development;

- whether or not the development is likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and

- any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses.

· Evaluate and compare the respective public benefits of the development and the land uses referred to above.

· Evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph 3, above.

The subject property is located within a predominately rural area which is typically used for extensive agriculture, particularly grazing of livestock (refer Figure 2 below). The area also forms part of the Orange drinking water catchment.

Despite the predominately rural nature of the area, it is noted that there is a mix of property sizes, with a number dwellings being located within a 2-3 km radius of the quarry.

The key characteristics of the area are generally consistent with the objectives of the applicable E3 Environmental Management zone and 100ha minimum lot size which apply pursuant to Orange LEP 2011 (refer Figures 3 and 4, below).

A notable exception of the rural landscape is the locality of Shadforth, located approximately 1km to the northeast of the quarry. While being approved for an extensive residential subdivision, Shadforth comprises in the order of 6-7 rural/residential properties. It is not anticipated that any further intensive residential development would occur within Shadforth.

In addition, it is noted that the Shadforth Reserve is located to the immediate northeast of the subject property, adjacent to the intersection of Millthorpe Road and Mitchell Highway. The Shadforth Reserve is used for the purpose of a rest area.

Based on the assessment of likely impacts under the heading “Likely Impacts of the Proposed Development”, it is considered that the development, as modified, will not have a significant impact on the existing and preferred uses of land in the vicinity of the quarry and will not be incompatible with those uses.

Figure 2: quarry and surrounding land use

(yellow line identifies 2km radius from the centre of the quarry)

Figure 3: Land Use Zone Map (yellow indicates E3 Environmental Management zone, green indicates RE1 Public Recreation Zone, pink indicates RU1 Primary Production)

Figure 4: Minimum Lot Size Map (pink indicates Minimum Lot Size of 100ha)

Further, given that the quarry is established and that the development, as modified, is substantially the same as the development for which consent was originally granted, it is considered that there is no net change in the public benefits of the development as opposed to the existing and preferred land uses in the vicinity of the quarry.

Natural Resource Management and Environmental Management

Clause 14 of the SEPP requires that the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner before granting consent for development for the purpose of extractive industry, including conditions to ensure the following:

· that impacts on significant water resources, including surface and groundwater resources, are avoided or minimised to the greatest extent practicable;

· that impacts on threatened species and biodiversity are avoided, or are minimised to the greatest extent practicable; and

· that greenhouse gas emissions are minimised to the greatest extent practicable.

The consent authority must also consider an assessment of greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions.

Given that the application is restricted to increasing the annual rate of production by 50,000 tonnes from 150,000 tonnes to 200,000 tonnes and does not seek to increase the extent of the quarry area approved under DA 109/92, it is considered unlikely that there will be any further significant environmental impact; or that the overall greenhouse gas emissions associated with the quarry would increase.

It is considered unnecessary to apply any further conditions of consent with regard to natural resource and environmental management.

Transport

Clause 16 of the SEPP requires that the consent authority must consider whether or not development for the purpose of extractive industry should be issued subject to conditions which do one or more of the following:

· require that some or all of the transport materials in connection with the development is not to be by public road,

· limit or preclude truck movements, in connection with the development, that occur on roads in residential areas or on roads near to schools,

· require the preparation and implementation, in relation to the development, of a code of conduct relating to the transport of materials on public roads.

Clause 16 of the SEPP also requires that if the consent authority considers that the development involves the transport of materials on a public road, the consent authority must provide a copy of the application to Roads and Maritime Services (the RMS).

The application has been referred to the RMS and Council’s Technical Services Division for review.

Based on the proposed modification, the RMS has advised that it does not object subject to Council applying the following conditions of consent:

- Safe Intersection Sight Distance (SISD) in accordance with Part 4A of Austroads Guide to Road Design and relevant Roads and Maritime supplements is to be provided at the intersection of the quarry road and Millthorpe Road.

- Temporary closures of Millthorpe Road during blasting operations are to be carried out in accordance with a current Road Occupancy Licence from Roads and Maritime Services. Road Occupancy Licences are to be obtained prior to any closures of Millthorpe Road by contacting the Field Traffic Manager on 02 6861 1461 or email ROL.Western@rms.nsw.gov.au

- Haulage operations coinciding with local student school bus pick up/drop off times are to be avoided.

- In accordance with clause 16(1) of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, the applicant is to prepare and implement a driver code of conduct for the task of transporting materials on public roads.

Further, Council’s Technical Services Division has indicated that while there may be fewer overall traffic movements from the subject property on a daily basis, the proposed increase in annual production from 150,000 tonnes to 200,000 tonnes represents a 33.3% increase in equivalent standard axels (ESAs) applied to the road pavement.

The Technical Services Division has indicated that this change affects Condition 49 of DA 109/92, which deals with pavement maintenance costs on Main Road 559 from the intersection of the private access road of the quarry to the Mitchell Highway (State Highway 7).

The Technical Services Division advised that the new maintenance cost required by Condition 49 will be $4,840.00 (ie the original indexed cost of $3,631.45 + 33.3% rounded down to nearest dollar), which will be indexed annually on 1st January each calendar year.

Rehabilitation

Clause 17 of the SEPP requires that the consent authority must consider whether or not consent for an extractive industry should be issued subject to conditions aimed at ensuring the rehabilitation of land that will be affected by the development. In particular, the consent authority must consider whether conditions of the consent should:

· require the preparation of a plan that identifies the proposed end use and landform of the land once rehabilitated, or

· require waste generated by the development or the rehabilitation to be dealt with appropriately, or

· require any soil contaminated as a result of the development to be remediated in accordance with relevant guidelines, or

· require steps to be taken to ensure that the state of the land, while being rehabilitated and at the completion of the rehabilitation, does not jeopardise public safety.

Landscaping and rehabilitation are addressed under Conditions 27-30 of DA 109/92. It is not considered that any further conditions of consent addressing rehabilitation are required.

State Environmental Planning Policy 33 - Hazardous and Offensive Development

State Environmental Planning Policy 33 - Hazardous and Offensive Development (SEPP 33) identifies that in determining whether a development is a hazardous storage establishment, hazardous industry or other potentially hazardous industry; or an offensive storage establishment, offensive industry or other potentially offensive industry, consideration must be given to current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development. The applicable guideline is the Hazardous and Offensive Development Application Guidelines Applying SEPP 33 (SEPP 33 Guidelines).

The SEPP 33 Guidelines identify that the key consideration of a potentially offensive industry is that the consent authority is satisfied there are adequate safeguards to ensure that emissions from a facility can be controlled at levels which are not significant. The SEPP 33 Guidelines identify that an important factor in making this judgement is the view of the Department of Environment Climate Change and Water (DECCW) for those proposals requiring a pollution control licence under DECCW legislation. If DECCW considers that its licence requirements can be met, then the proposal is not likely to be an ‘offensive industry’.

In this regard it is noted that the quarry has an Environmental Protection Licence (EPL 4988) issued by the Environmental Protection Authority - NSW (the EPA) allowing for production between 100,000-500,000 tonnes per annum.

Further, the EPA has provided Council staff with written advice indicating that it has reviewed the performance of the quarry against the EPL conditions, and identified that the licence regulatory level is low and has no extra concerns with the expansion as proposed, provided all EPL conditions continue to be complied with.

On this basis, it is considered that the development, as modified, should not be considered a potentially offensive industry.

State Environmental Planning Policy 55 - Remediation of Land

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

While extractive industry is identified as a potentially contaminating land use, it is considered that the land is likely to be suitable for on-going use as a quarry.

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

DA 109/92 was approved as Designated Development pursuant to the provisions of the Environmental Planning and Assessment Act 1979.

The development, as modified, would continue to exceed the thresholds for Designated Development under Part 1, Clause 19, Schedule 3 of the Environmental Planning and Assessment Regulations 1979 (the ‘Regulations’).

Despite this, Part 2, Clause 35 of the Regulations provides that development involving alterations or additions to development (whether existing or approved) is not Designated Development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

Clause 36 identifies that in forming its opinion as to whether or not development is Designated Development, the consent authority is to consider the following:

· the impact of the existing development having regard to factors including:

- previous environmental management performance, including compliance with the conditions of any consents, licences, leases or authorisations by a public authority and compliance with any relevant codes of practice, and

- rehabilitation or restoration of any disturbed land, and

- the number and nature of all past changes and their cumulative effects, and

· the likely impact of the proposed alterations or additions having regard to factors including:

- the scale, character or nature of the proposal in relation to the development, and

- the existing vegetation, air, noise and water quality, scenic character and special features of the land on which the development is or is to be carried out and the surrounding locality, and

- the degree to which the potential environmental impacts can be predicted with adequate certainty, and

- the capacity of the receiving environment to accommodate changes in environmental impacts, and

· any proposals:

- to mitigate the environmental impacts and manage any residual risk, and

- to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities.

Council staff have had regard to the foregoing matters. In general, Council staff consider:

· the impact of the existing development is consistent with the impact anticipated by the original 1992 EIS and associated Officer Report;

· the likely impact of the development, as modified, is acceptable with regard to possible acoustic, air and traffic safety impacts; and

· potential environmental impacts will continue to be appropriately mitigated.

Notwithstanding these conclusions, Council staff recognise that development consent was originally granted 25 years ago and that it would be timely to undertake a detailed review of the development to ensure that all applicable conditions of consent are being addressed and that the relevant management plans are being given effect.

For example, while the file for the development indicates that the operation of the quarry was carefully monitored during its inception and preliminary stages, it is unclear whether some conditions have continued to be implemented as they were intended, such as the requirement to review the rehabilitation bond annually and provide an Annual Performance Report. In addition, it is noted that the Overall Site Management Plan is currently absent from the file.

Accordingly, it is recommended that if consent is granted Council staff engage with the operator of the site to ensure that all applicable conditions of consent are adequately addressed and that Council staff revisit those aspects of the development which require attention on an annual basis to ensure the appropriate ongoing management of the quarry.

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)

Not applicable.

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

The potential key likely impacts of the development, as modified, are considered to be associated with the increased annual production rate, and include increased acoustic impact on proximate sensitive receivers such as dwellings, increased air pollution,; and increased pressure on the local traffic network.

The relevant matters are addressed in detail below.

Increased Maximum Production Limit

Acoustic Impact

The supporting information submitted with the application includes a Noise Impact Assessment prepared by Aurecon. A summary of the Noise Impact Assessment is included within the supporting information. The summary makes the following conclusions.

Quarry noise

The increased maximum production limit would not require additional quarry plant or equipment to be used on site. Rather the existing plant and equipment would operate for longer periods. As discussed above, the existing quarry operations are predicted to be inaudible at the nearest sensitive receivers and consequently the future operation of the quarry would continue to be inaudible.

Road traffic noise

The only potential change in noise levels from the increased production limit would result from increased truck movements, transporting materials from the quarry. As noted Section 4.6, average daily vehicle movements would be lower than that predicted in the EIS.

Peak traffic movements would be higher than those assessed in the EIS, with up to 16 movements in an hour – which is double the peak traffic movements assessed in the EIS. Doubling of traffic volume equates to a maximum of 3 dBA increase in the road traffic noise levels based on the Calculation of Road Traffic Noise (CoRTN) methodology. This would generally only be experienced at the receiver near the intersection of the Mitchell Highway and Millthorpe Road as it is on the route that most trucks and other vehicles use to access the site. Even with this increase in noise, noise levels would be still below the approved noise criteria.

Blasting

The number of blasts may increase up to six blasts a year or the size of blasts may increase to 75000 tonnes per blast. Any increase in the size or number of blasts would continue to be in compliance with the existing EPA/ANZEC criteria.

The supporting information submitted with the application, including the Noise Impact Assessment, has been assessed by Council’s Environmental Health and Building Surveyor, who has provided the following assessment:

“The SOEE details that the current quarry operations noise impact is less than the predictions contained in the original EIS provided with the application in 1992, which were found to be compliant at the time. This is in part due to more modern equipment being used, the equipment being used is located on the quarry floor as opposed to a higher level as originally considered and the bund walls for the site being higher than originally required. The noise impact of the current and proposed quarry operations are at least 10dBA less than the existing background levels in the area. Noise from the quarry in normal operation mode will be inaudible at nearby receivers and the increase in production will have no or minimal impact.

The only recommendation of the NIA is that noise monitoring is recommended if the quarry’s actual production rate exceeds 150,000 tonnes per year. Referring to the original DA consent and Condition No. 14 in particular, which says:

14. The quarry operator shall:

· Undertake and implement environmental monitoring in respect of air, noise, blasting and water quality to the satisfaction of Council and in consultation with Department of Water Resources, Roads and Traffic Authority and Environment Protection Authority.

· Designate a suitably qualified Company employee to be responsible for ensuring that all environmental safeguards and monitoring proposed for the development are met or are not exceeded to the satisfaction of Council.

The existing Condition No. 14 covers the recommendation of the NIA. Additionally, Condition No. 17 of the original consent which says:

17. The quarry operational noise emission levels shall not exceed 5 dBA above the average background noise level at the nearest residence.

Condition No. 17 of the original consent reinforces and provides backup to the noise monitoring required by Condition No. 14 and the recommendation of the NIA.

In light of the above, the existing conditions of consent will provide the required level of noise impact monitoring and regulatory control should the noise impacts change to the detriment of the amenity of the nearby residential receivers.”

In addition to the foregoing, Council’s Environmental Health and Building Surveyor confirmed that the proposed increase in peak hourly truck movements would not result in a ‘non-compliance’ at the dwelling located at the intersection of the Mitchell Highway and Millthorpe Road.

Based on the assessment provided by the Environmental Health and Building Surveyor, it is accepted that the current quarry operation noise impact is likely to be less than the predictions contained in the original 1992 EIS; and that the existing conditions of consent will provide the required level of noise impact monitoring and regulatory control should the noise impacts change to the detriment of the amenity of the nearby residential receivers.

Air Quality Impact

The supporting information submitted with the application includes an Air Quality Impact Assessment prepared by Aurecon. A summary of the Air Quality Impact Assessment is included within the supporting information. The summary makes the following conclusions.

“Activities at the quarry which may generate dust include:

· Drilling and blasting

· Moving displaced rock with an excavator or front end loader (FEL)

· Primary, secondary and tertiary crushing

· Primary and fines screening

· Loading crushed rock into stockpiles

· Loading delivery trucks from stockpiles

· Truck movements between the pit and weighbridge

· Truck movements between quarry and main road.

The pre-coat plant and pug mill do not generate substantial dust emissions as generally the handled material is “wet” (ie. Coated with liquid or other materials), the size and capacity of the plant is small and they only operate intermittently. However the stockpiling and the handling of materials at the precoat plant and pugmill locations have been included as a surrogate for their emissions.

An emissions inventory has been compiled using emission factors given in National Pollutant Inventory (NPI) Emission Estimation Technique Manuals (EETM). Emission factors for the specific activities listed above have been used to calculate a cumulative emission load from the quarry.

Using the cumulative emissions, air quality modelling was undertaken using AERMOD (a steady-state Gaussian plume model) and local meteorological data. This modelling was conservative as it assumed that all activities above were occurring simultaneously – which rarely occurs. The modelling (see Table 3) indicates that the quarry has little impact on the average annual TSP and PM₁₀concentrations. However when meteorological conditions are adverse, some receivers on some days may experience a small increase in the daily PM₁₀. This increase would not result in exceedances of the daily PM₁₀criteria. Overall the quarry has a minimal impact on air quality at sensitive receivers.

With the increased production limit, there would be no increase or change in the activities or plant used on site rather the quarry would operate for longer at a higher capacity. Consequently the impacts would be no greater than the worst case air impacts predicted above."

The supporting information submitted with the application, including the Air Quality Impact Assessment, has been assessed by Council’s Environmental Health and Building Surveyor, who has provided the following assessment:

“The SOEE also includes a summary of an Air Quality Assessment (AQA) by aurecon. The SOEE details that the increased quarry production limit will not increase or change the activities or plant used on the site, instead the quarry will operate longer at a higher capacity. The SOEE indicates that the increase in production will have minimal impact on air quality at sensitive receivers, particularly if the operator maintains its current strategies to manage dust as is required by the existing conditions.”

Based on the assessment provided by the Environmental Health and Building Surveyor, it is accepted that the increase in production will have minimal impact on air quality at sensitive receivers, particularly if the operator maintains their current strategies to manage dust as is required by the existing conditions.

Traffic Impact

The supporting information submitted with the application includes a Traffic Impact Assessment prepared by Aurecon. A summary of the Traffic Impact Assessment is included within the supporting information. The summary makes the following conclusions.

“Compared to the approved development in the 1992 EIS, the increase in production limits will result in less traffic than had been estimated in 1992, as a result of the use of higher capacity and higher efficiency trucks.

At times when the quarry is servicing special projects or large volume orders, peak vehicle movements of up to 16 an hour would occur. This increase would not have an impact on the road network or intersections as the number of movements is small relative to the capacity of the road network and intersections.

Overall the traffic impact of the proposed maximum production limit increase would be minimal and substantially the same as the approved project.”

The supporting information submitted with the application, including the Traffic Impact Assessment, has been assessed by Council’s Technical Services Division and the RMS.

Council’s Technical Services Division has provided the following assessment:

“The increase in production affects Condition 49:

A contribution of Two Thousand Dollars ($2,000.00), indexed by C.P.I, for pavement maintenance costs on Main Road 559 from the intersection of the private access road to the Mitchell Highway (State Highway 7) shall be paid to Council on the 1 January annually in respect of this development pursuant to Section 94 of the Environmental Planning and Assessment Act.

The quarry was officially opened on 14 August 1993 and contributions have previously been paid for 1994 to 2016.

Despite the applicants comments regarding traffic movements into and out of the site, regardless of what type of vehicle is used to transport the crushed stone out of the quarry (whether a truck and dog or 19m semi or B double) the proposed increase in maximum production from 150,000 tonnes to 200,000 tonnes still represents a 33.3% increase in equivalent standard axels (ESAs) applied to the road pavement, even though there may be fewer overall traffic movements on a daily basis.

Accordingly the ongoing pavement maintenance condition 49 must be increased by a proportionate amount (33.3%). The original amount was $2,000.00 (to be increased annually by CPI since 1992) and the recent 2017 indexed contribution was $3,631.45 (see PR22742).

The new maintenance contribution is therefore $4,840.00 ($3,631.45 + 33.3% rounded down to nearest dollar), and this will be indexed annually on 1^st January each calendar year.

The amended engineering condition that shall be applied to this Development Application, received from Boral Resources (Country) Pty Limited on 30/06/2017, is:

Condition 49 (amended)

A contribution of Four Thousand Eight Hundred and Forty Dollars ($4,840.00), indexed by C.P.I, for pavement maintenance costs on Main Road 559 from the intersection of the private access road to the Mitchell Highway (State Highway 7) shall be paid to Council on the 1 January annually in respect of this development pursuant to Section 94 of the Environmental Planning and Assessment Act.”

The RMS has provided the following assessment:

Thank you for your letter received on 14 August 2017 referring DA 109/1992(2) to Roads and Maritime Services for comment. The proposed development is for an increase in production from 150,000 tonnes per annum to 200,000 tonnes per annum and an increase in the peak hour heavy vehicle volume from 8 to 16.

Roads and Maritime will not object to the proposed development subject to the following conditions being included in any consent issued in relation to this project:

• Safe Intersection Sight Distance (SISD) in accordance with Part 4A of Austroads Guide to Road Design and relevant Roads and Maritime supplements is to be provided at the intersection of the quarry road and Millthorpe Road.

• Temporary closures of Millthorpe Road during blasting operations are to be carried out in accordance with a current Road Occupancy Licence from Roads and Maritime Services. Road Occupancy Licences are to be obtained prior to any closures of Millthorpe Road by contacting the Field Traffic Manager on 02 6861 1461 or email ROL.Western@rms.nsw.gov.au

• Haulage operations coinciding with local student school bus pick up/drop off times are to be avoided.

• In accordance with clause 16(1) of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, the applicant is to prepare and implement a driver code of conduct for the task of transporting materials on public roads.”

Based on the assessment provided by Council’s Technical Services Division and the RMS, it is accepted that the increase in production will not result in a significant or detrimental impact on the local traffic network.

Project Description

It is considered that the proposed changes to the approved project description are unlikely to have any significant environmental impact. Notwithstanding, the following recommendations are made to ensure that the quarry continues to be operated in a satisfactory manner:

· Condition 6 be modified to require that a Development Application and Construction Certificate application be submitted to Council for all buildings to be erected on the site.

In addition, Condition 6 be modified to include a note that any building within the site should not be visible outside of the quarry.

· Condition 21 be modified to require that dust emissions from the processing plant be controlled in a suitable manner to ensure that dust emissions do not have an adverse impact outside of the quarry.

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

The suitability of the site was considered by the original Officer Report for DA 109/92 in 1992.

It is considered that the subject property is also suitable for the development, as modified, as it is substantially the same the development for which consent was originally granted; and that the development, as modified, will not substantially increase the environmental impact of the total development.

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

The proposed development, as modified, is defined as advertised development pursuant to the Section 118 of the Environmental Planning and Assessment Regulation 2000.

While the development, as modified, was extensively advertised to the local community, submissions were only received from State Government Departments and Agencies. The submissions received are summarised below.

Department of Primary Industries - Agricultural Land Use Planning (DPI Ag)

DPI Ag confirmed that there were no issues of concern.

Department of Primary Industries - Water

DPI Water identified that the applicant must identify if groundwater is currently being intercepted and the potential for groundwater interception due to the proposed increase in extraction. Additionally, DPI water stated that the applicant must identify licensing and approval requirements under the Water Management Act 2000.

Following ongoing correspondence between DPI Water and Boral, DPI Water has identified that Boral will need to obtain a Water Supply Works Approval in relation to potential quantity and impacts of groundwater take as a result of current and future quarry operations. DPI Water has advised that the requirement to obtain the Water Supply Works Approval should be included as a condition of consent.

This requirement would apply irrespective of the proposed modification.

Department of Planning and Environment - Resources Regulator (DPERR)

The DPERR advised that it did not wish to make a submission.

Roads and Maritime Services (RMS)

The RMS advised that it would not object to the development, as modified, subject to the Council applying recommended conditions of consent. The recommended conditions of consent are detailed under the traffic impact assessment, above.

Office of Environment and Heritage (OEH)

The OEH advised that it had no specific comments to make on the proposal.

Environmental Protection Authority (EPA)

The EPA notes that the environment protection licence (EPL) 4988 approves a scale of activity greater than 100,000 and less than 500,000 tonnes annual processing capacity for the extraction, crushing, grinding, separating and storage of land based material.

Further, the EPA reviewed the performance of the quarry against the EPL conditions, and identified that the licence regulatory level is low and the EPA has no extra concerns with the expansion as proposed, provided all EPL conditions continue to be complied with.

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 development, as modified, is permissible with the consent of Council. The proposed development, as modified, complies with the relevant aims, objectives and provisions of the LEP; is consistent with the provisions of Section 96(2) of the Environmental Planning and Assessment Act 1979 and the relevant regulations relating to designated development. A section 79C assessment of the development indicates that the development as modified 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 Modified Notice of Approval, D17/69101 ⇩

2 Submissions, D17/67949 ⇩

Planning and Development Committee 7 December 2017

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

RECORD NUMBER: 2017/2516

AUTHOR: Kelly Walker, Senior Planner

EXECUTIVE Summary

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

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

The proposed modification involves the demolition of the garage fronting Clinton Street, the removal of four trees, and the construction of a pavilion extension to the existing restaurant/café and shop fronting Clinton Street. This pavilion will cover the existing outdoor dining area, relocate the takeaway window, and provide improved bin and dry goods storage behind a metal gate. Signage is proposed to the Clinton Street frontage, as well as a new stone bench seat. The proposed modification does not alter the original overall numbers of seats from the original application (being a total of 63 persons) nor does it alter the existing hours of operation, being 7am to 10pm Monday to Saturday and 7am to 6pm on Sundays.

Council officers had initial concerns about the submitted proposal, in particular whether it constituted “substantially the same” development as the original application, as set out in Section 96(2) of the Environmental Planning and Assessment Act 1979 (the “Act”). Council took into account the ‘tests’ that the Land and Environmental Court developed for the purposes of determining if a proposed modification is “substantially the same” (Tipalea Watson Pty Ltd v Kurringai Council 2003 129 LGERA 351). Specifically having regard to these ‘tests’, it was considered that the proposal needed to be amended to ensure it did not significantly change its relationship to adjoining properties, the streetscape, and character of the locality; or impact on the amenity of neighbours. Council’s Heritage Advisor made suggestions for an amended design that would fit better within the streetscape.

The applicant submitted further supporting information regarding these ‘tests’ in an attempt to justify the proposal, but declined to revise the plans at that time, other than to remove the roller-door from the proposed takeaway window; requesting that Council assess the application on the basis of the information and plans submitted. The proposal was placed on public exhibition, and Council received 17 submissions during that exhibition period, all in opposition to the proposal.

The applicant was provided with a summary of points raised by the objectors. Council’s Declaration of Planning and Development Assessment Procedures and Protocols identifies that upon receipt of at least five submissions objecting to a development application, and where those issues are considered by Council to be reasonably capable of negotiation, a meeting will be offered to all parties in an attempt to resolve issues and find compromise prior to the matter being determined. Council’s Director Development Services held a mediation meeting between the applicant and objectors on 29 March 2017. Discussions focussed around the legal ‘tests’ of modification applications rather than mediate the potential impacts of the proposal, and as such no resolutions were achieved. A late objection was then submitted to Council.

Following the exhibition period and mediation meeting, Council requested that the applicant give further consideration to altering the design of the proposal to address initial concerns about whether the proposal was “substantially the same” development as the original, as well as address impacts raised by objectors. Potential noise impacts on adjoining residential properties was raised as a key issue. Discussions took place between Council staff, Council’s Heritage Advisor and the applicant over the subsequent few months, and revised plans and a Noise Report were submitted to Council on 20 September 2017. Changes included the removal of the roller door to the takeaway window, increased setbacks from Clinton Street, reduced height and bulk at the frontage, and removal of the upper section of the blade wall. Details of materials, colours and dimensions were also provided.

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

Overall, it is considered that the revised proposal meets the ‘tests’ of being “substantially the same” development as the originally approved development, as set out in Section 96 of the Act. A Section 79C assessment indicates that the development as modified is acceptable in this case, subject to amended and additional conditions of consent. Attached is an amended Notice of Approval for Council’s consideration.

It is recommended that Council supports the subject proposal.

DECISION FRAMEWORK

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

Orange Local Environment Plan 2011 – the 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.

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.

The final form of the building involved in this application is the product of a negotiated process between Council staff and feedback from objectors and the applicant. The applicant has responded to Council’s design comments from the Heritage Advisor, and the resulting building responds well to the streetscape and context in staff opinion. The objectives of the LEP, DCP and Infill guidelines have been fulfilled. The proposed development is an example of how contemporary design can be included within a heritage setting to create an interesting and aesthetically pleasing outcome.

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 the modification of development consent DA 445/2011(3) for Restaurant and Shop at Lot B DP 152339 - 47 Byng Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/THE PROPOSAL

The proposed modification involves the demolition of the garage fronting Clinton Street, the removal of four trees, and the construction of a pavilion extension to the existing restaurant/café and shop fronting Clinton Street. This pavilion will cover the existing outdoor dining area, relocate the takeaway window, and provide improved bin and dry goods storage. Materials include masonry walls, glass bi-fold doors to Clinton Street, glass gas lift takeaway window to Clinton Street, glass louvered/ventilated windows to the north, south and east (Clinton Street) elevations, aluminium frames and posts, a steel roof, a glazed awning to Clinton Street, and a metal gate to Clinton Street. A stone bench seat is proposed within the frontage of the addition to provide outdoor seating.

Signage is proposed on the Clinton Street frontage, which reads ‘The Pavilion Byng Street Café’ to the right of the bi-fold doors (when looking at the building from Clinton Street), and ‘Takeaway’ above the takeaway window.

The proposed modification does not alter the original overall numbers of seats from the original application, being a total of 63 persons; nor does it alter the existing hours of operation, being 7am to 10pm Monday to Saturday and 7am to 6pm on Sundays.

BACKGROUND

This application seeks to modify the original Development application DA 445/2011(1) approved on 14 May 2012 for a restaurant and shop.

The original application has been modified previously DA 445/2011(3) to carry out internal alterations to the café and shop, approved 23 December 2015. The modification opened up the dining and shop areas, and improved the kitchen fit-out.

Modification DA 445/2011(2) was withdrawn on 10 February 2014 as it sought to regularise opening earlier in the morning and producing food commercially for consumption off the premises. This proposal was not supported by Council. A penalty notice was issued in relation to the breach of hours of operation following numerous complaints from neighbours.

MATTERS FOR CONSIDERATION

Section 96(2) of the Environmental Planning and Assessment Act 1979 (EPAA) applies to the subject modification application, and states:

A consent authority may…modify the consent if:

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

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

The applicant has lodged the application as a Section 96(2) modification to the original application on the basis that it is “substantially the same” as the original development. It is noted that reliance has been placed on the Section 96 procedures as the original application was approved in accordance with the transitional savings provisions in place in the intervening period between the previous LEP 2000 and the current LEP 2011. As such, no existing use provisions apply to the use, and the use is now a prohibited activity under the current LEP.

When assessing a modification application, the consent authority has a threshold decision to make, and must be satisfied that what is proposed is “substantially the same” development as the original development, as set out in Section 96(2)(a) of the Act. This decision can be guided by ‘tests’ developed in Land and Environmental Court cases. The traditional test as to whether or not a development as modified will be “substantially the same” development as that originally approved was applied by Justine Stein in Vacik Pty. Limited v Penrith City Council (unreported, Stein, J 10242 of 1991, 24 February 1992), and by Justice Bignold in Moto Projects No. 2 Pty. Limited v North Sydney Council (1999) 106 LGERA 298.

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

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

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

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

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

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

(d) significant change to the streetscape; and

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

Initial Proposal

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

Council sought its own legal advice, which concluded that the application is capable of being treated as a modification, and that a quantitative and qualitative comparison needed to be carried out to compare the originally approved consent with the proposed modification.

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

To be considered a ‘modification’ under Section 96(2) of the Act, the applicant was advised that the proposal needed to be amended to ensure that it did not significantly change its relationship to adjoining properties, the streetscape and character of the locality; or impact on the amenity of neighbours. Council’s Heritage Advisor made suggestions for an amended design that would fit better within the streetscape.

The applicant submitted further supporting information regarding these ‘tests’ in an attempt to justify the proposal, but declined to revise the plans at that time, other than to remove the roller-door from the proposed takeaway window; requesting that Council assess the application on the basis of the information submitted. On this basis, the proposal was placed on public exhibition, and Council received 17 submissions during that exhibition period, all in opposition to the proposal. The applicant was provided with a summary of points raised by the objectors.

In accordance with Council’s document Declaration of Planning and Development Assessment Procedures and Protocols Council’s Director Development Services held a mediation meeting between the applicant and objectors on 29 March 2017. Discussions focussed around the legal ‘tests’ of modification applications rather than mediate the potential impacts of the proposal, and as such no resolutions were achieved. A late objection was then submitted to Council.

Revised Proposal

Discussions took place between Council staff, Council’s Heritage Advisor and the applicant over the subsequent few months, and revised plans and a Noise Report were submitted to Council on 20 September 2017. Changes included the removal of the roller door to the takeaway window, increased setbacks from Clinton Street, reduced height and bulk at the frontage, and removal of the upper section of the blade wall. Details of materials, colours and dimensions were also provided. The revision was subsequently re-advertised and neighbours were again notified, and 39 submissions were received as a result of the second exhibition period.

In applying the above ‘tests’ and a qualitative and quantitative assessment to the revised drawings, Council officers consider that the modification:

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

- does not significantly change the nature of the intensity of the use, where the footprint of the development is to be the same, with the same capacity (ie number of tables and chairs, hours, staff etc) as the originally approved development (see Figures 1 and 2);

- involves the demotion of structures fronting Clinton Street (garage and outdoor dining areas) and their replacement with a pavilion structure, covering the originally approved outdoor area (see Figures 1 and 2);

- would not significantly change the relationship of the property to adjoining properties compared to the originally approved development;

- has potential adverse noise impacts on residential neighbours, however these can be mitigated through operational conditions of consent, and the potential impacts do not significantly differ from the originally approved development;

- involves the removal of a substantial tree at the site frontage, which would result in a change to the visual appearance of the streetscape; however impacts can be mitigated through replacement street tree planting; and

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

Figure 1: originally approved plan

Figure 2: subject modification plan

Based on Council’s assessment of the subject modification application (as discussed above, as well as in the assessment sections of this report) it is considered that the revised proposal meets the ‘tests’ of being “substantially the same” development as the originally approved development.

In this case, the application to modify the consent was lodged pursuant to the provisions of Section 96(2) of the Act. As alluded to above, in accordance with the Act and Regulations, the development application was advertised on two separate occasions; firstly in the local press on 18 February 2017, and neighbours notified 15 February. Following receipt of a revised proposal, the modification application was re-advertised in the local press on 28 September 2017, and neighbours re-notified 22 September 2017. Consultation with other bodies was not required for the original consent, and therefore is not required for this modification.

A total of 57 submissions were received in relation to both exhibition periods, 30 in support of the proposal, and 27 in opposition. A detailed assessment of the issues raised by the submitters in both exhibition periods is provided under the heading “Any Submissions Made in Accordance with the Act”.

Council may therefore consider this application as a modification application under the provisions of Section 96(2) of the EPAA.

It is noted that Council has power to give conditional approval to an application to modify a development consent under Section 96(2). In this case, the proposed modification remains “substantially the same” as the original development as discussed above, and amended and additional conditions of consent are recommended to ensure that the development as modified does not impact on the environment or neighbouring residential properties. These conditions are discussed in detail throughout the following assessment, and are included in the attached modified Notice of Approval.

Furthermore, pursuant to section 96(3) of the EPAA:

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.

The relevant matters are considered below.

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

Orange Local Environmental Plan 2000

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

The modification does not alter the original assessment carried out under LEP 2000, where it is still consistent with the aims of the previous Plan, as well as the general considerations for development.

Orange Local Environmental Plan 2011

In assessing the original application, pursuant to clause 1.8A of LEP 2011, the application was determined as though LEP 2011 had not been made by virtue of the date the application was lodged. Section 79C of the Act still required consideration of the provisions of any draft LEP, which was the status of LEP 2011 prior to its gazettal. Accordingly the proposal was also assessed against the current LEP 2011.

An LEP 2011 assessment of the modification has been carried out below.

Land Use Zones

Under the current LEP 2011 (as amended), the subject land is zoned R1 General Residential. The proposed development is defined as a ‘restaurant or café’ and ‘shop’, which are defined as follows:

Restaurant or café means a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, whether or not liquor, takeaway meals and drinks or entertainment are also provided.

Shop 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.

Although these land uses are prohibited within the R1 zone under the current LEP 2011, they were approved under the previous LEP 2000 due to the transitional savings provisions that applied under LEP 2011. In this case, the application was submitted when LEP 2000 was still operational, but approved after LEP 2011 was adopted, as such the previous LEP provisions apply to the development, but it does not benefit from existing use rights as set out by the Act. The continuation of these approved uses and their proposed modification is allowed by Section 109B of the EPAA, which states:

(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

(2) This section:

(a) applies to consents lawfully granted before or after the commencement of this Act, and

(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and

(c) has effect despite anything to the contrary in section 107 or 109.

(3) This section is taken to have commenced on the commencement of this Act.

Clause 2.7 - Demolition Requires Development Consent

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

Clause 5.10 - Heritage Conservation

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

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

(c) to conserve archaeological sites,

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

Council is required to consider the potential impact that the development may have on the conservation area or any heritage item within the vicinity of the subject land. The subject land is within the Central Orange Heritage Conservation Area but is not a listed heritage item under the LEP. The highly valued streetscapes of Byng and Clinton Streets make up part of the conservation area, and form part of the site. The removal of trees within a conservation area requires development consent pursuant to this clause. The proposal involves additions and alterations to the existing building which fronts Clinton Street, the removal of the garage fronting Clinton Street, as well as the complete removal of four trees on a site within a heritage conservation area.

Initial Proposal

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

Discussions took place over a period of a few months between the applicant and Council officers and Heritage Advisor. Below is a summary of recommendations made:

· The roller shutter (takeaway window) is out of character and so a more appropriate material and details are requested.

· The full glass doors require mitigation. Bronze plates and hardware and a grey body tint would be fine.

· Glass awnings are problematic due to cleaning. A patterned interlayer would be fine plus details of the steel support framing at CC stage.

· The seat should be clear finished timber on an appropriate base.

· The bulk conflicts with the two traditional contributory buildings. A tall sharp box form has been adopted for the outdoor dining space. DA06 shows this protruding unsympathetically pass the roof forms. While a dark grey colour scheme may make this less obtrusive it is difficult to see any sympathetic gestures in the design at this level.

· It is recommended that a setback similar to the adjoining northern building be adopted on Clinton Street, which appears similar to the point on the Byng Street corner. The takeaway portion could remain as it is a low link element.

· The two storey solid wall above the main sign is a significant elevation element and shields a low roof to the bin store. This draws attention to the contrast in bulk and scale without interpretation of any streetscape character. It is recommended that the solid fin or blade wall be removed at the first level and the eastern glazing be simply returned to meet the northern glazing.

· A range of options are available to the scheme including reducing the height of the two storey element to align with the intersecting line to the pitched roof on the existing café; or reduce the height of the blade wall to a single level wall and wrap the north glazing around the corner to the glazing on the east elevation.

· A colour scheme and materials schedule on the drawings is required.

· Dimensions to sections and setbacks on the drawings is required.

Revised Proposal

The applicant revised the proposal in accordance with these recommendations. Main changes included the removal of the roller door to the takeaway window, increased setbacks from Clinton Street, reduced height and bulk at the frontage, and removal of the upper section of the blade wall. Details of materials, colours and dimensions were also provided.

Council’s Heritage Advisor considers the revision to be satisfactory. The bulk, scale and visual appearance (materials, colours, details, etc) of the proposal will relate to the existing café building and neighbouring buildings, and will not adversely impact on the heritage significance of the conservation area. Conditions of consent have been recommended, including that colours and materials are carried out in accordance with the submitted schedule, and that a replacement tree is provided, which is discussed in more detail below.

It is considered that the removal of the garage to Clinton Street will not impact on the conservation area as it was a later addition to the streetscape and does not have any significant architectural or heritage merit.

The removal of trees within a conservation area is also a heritage consideration. A statement from the applicant’s town planner was submitted in support of the application, and makes the following points:

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

- The tree (Silver Birch tree on Clinton Street frontage) is an introduced species and does not represent habitat for threatened or endangered species.

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

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

- The potential for a replacement planting is limited to some extent by the location of the 2 existing street trees. However, the applicant would agree to provide a new street tree elsewhere in the vicinity to offset the loss of the Silver Birch.

Council’s Manager City Presentation has reviewed the proposal and concurs that it is not possible to retain or prune the Silver Birch or Pear trees, and that there is little scope for replacement tree planting on the subject property or the Clinton Street frontage. He also notes that the existing Silver Birch tree has thinner than normal canopy with some dieback to the periphery of the upper canopy, and that Silver Birch trees are not well suited to the extended dry hot periods and prefer a moist soil profile with limited hard surfacing. He recommends that a replacement street tree be provided within Byng Street.

Given that there are already two street trees within the Clinton Street frontage, as noted in the applicant's submission, it is considered that the loss of the Sliver Birch will not adversely impact on the visual appearance of the Clinton Street heritage streetscape. However, the loss of four trees on the site will have an impact on the visual amenity of the Conservation Area and the total available tree canopy in the locality, and a replacement is considered necessary in this case.

It is considered that an arborist's report is not necessary, and that the removal of trees can be supported providing that the applicant provides for the planting of an advanced specimen street tree on the Byng Street frontage. A condition of consent to this effect is included in the attached modified Notice of Approval.

Overall, it is considered the proposed additions and alterations as revised, and subject to conditions of consent, will not adversely impact on the heritage significance of the subject and neighbouring buildings, or the heritage setting of the conservation area. As such, Council can be satisfied that the development as modified remains compatible with the character of the surrounding heritage conservation area, and is therefore acceptable in this case.

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 addition, and the removal of trees, their stumps and root systems. The earthworks can be appropriately supported onsite, and the extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways. The extent of the works will not materially affect the potential future use of the site.

The site is not known to be contaminated. The site is not known to contain any Aboriginal, European or archaeological relics. Previous known uses of the site do not suggest that any relics are likely to be uncovered. The site is not in proximity to any waterway, drinking water catchment or sensitive area.

7.3 - Stormwater Management

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

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

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

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

The development as modified would cause no impacts in regard to stormwater management.

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

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

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

As the subject property has a long history of residential use, it is not considered likely that it would be contaminated or unsuitable for the proposed alterations and additions.

It is acknowledged that asbestos materials associated with the garage may be present on the subject property. An existing condition of consent in regards to demolition being carried out in accordance with the relevant standards covers this issue.

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 is not relevant to the proposal as it involves the removal of trees which form part of a heritage conservation area, and as such require consent under clause 5.10 of the LEP. This matter has been assessed in detail in the LEP assessment above.

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. The relevant planning outcomes were considered as part of the assessment of the original development application. An assessment of the proposed development against the relevant Planning Outcomes that affect the proposal to modify the consent will be undertaken below.

5.3 - Advertised Development

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

In this case, the application to modify the consent was lodged pursuant to the provisions of Section 96(2) of the Act. In accordance with the Act and Regulations, the development application was advertised on two separate occasions; firstly in the local press on 18 February 2017, and neighbours notified 15 February. The first exhibition period closed 6 March 2017.

At the end of that period 17 submissions were received. A further (ie late) submission was received after that period ended. It is noted that some submitters made multiple submissions.

Council’s Declaration of Planning and Development Assessment Procedures and Protocols identifies that upon receipt of at least five submissions objecting to a development application and where those issues are considered by Council to be reasonably capable of negotiation, a meeting will be offered to all parties in an attempt to resolve issues and find compromise prior to the matter being determined. Council’s Director Development Services held a mediation meeting between the applicant and objectors on 29 March 2017. Discussions focussed around the legal ‘tests’ of modification applications, rather than mediate the potential impacts of the proposal, and as such no resolutions were achieved.

Following the first exhibition period and mediation meeting, Council requested that the applicant give further consideration to altering the design of the proposal to address initial concerns about whether the proposal was “substantially the same” development as the original, as well as address impacts raised by objectors. Discussions took place between Council staff, Council’s Heritage Advisor, and the applicant over the subsequent few months, and revised plans were submitted to Council on 20 September 2017. The revised modification application was re-advertised in the local press on 28 September 2017, and neighbours re-notified 22 September 2017. The second exhibition period closed 13 October 2017.

At the end of the second exhibition period, 39 submissions were received. Some submitters made multiple submissions, and some submitters lodged objections during both exhibition periods. A total of 57 submissions were received in relation to this application, 30 in support of the proposal, and 27 in opposition. A detailed assessment of the issues raised by the submitters in both exhibition periods is provided under the heading “Any Submissions Made in Accordance with the Act”.

Section 7.7 - Design Elements for Residential Development

Section 7.7 - Design Elements for Residential Development sets out the objectives and planning outcomes for residential development.

While the proposed development is defined as a “restaurant or café” and “shop”, the objectives and planning outcomes outlined in Section 7.7 are relevant considerations given that the subject property and immediate area is zoned R1 General Residential, and that all adjoining and proximate properties contain dwelling houses.

Streetscape Objectives

The DCP sets out overarching objectives with regard to streetscape, including:

· To ensure that the development fits into its setting and environmental features of the locality.

· To ensure that the appearance of housing is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

· To ensure that new development complements places with heritage significance and their settings in a contemporary way.

· To develop a sense of place with attractive street frontages.

· To encourage visually appealing cohesive streetscapes.

· To create a safe and secure environment.

· To provide consistent design elements that protect private investment.

The streetscape objectives are addressed by the following planning outcomes regarding neighbourhood character, building appearance, heritage and setbacks.

Neighbourhood Character

The DCP sets out the following planning outcomes in regard to neighbourhood character:

· Site layout and building design enables the:

- creation of attractive residential environments with clear character and identity

- use of site features such as views, aspect, existing vegetation and landmarks

· Buildings are designed to complement the relevant features and built form that are identified as part of the desired neighbourhood character.

· The streetscape is designed to encourage pedestrian access and use.

The revised proposal has been designed in accordance with the outcomes for neighbourhood character. In particular, the proposed pavilion has been revised to maintain the existing appearance of the café building, adjacent building to the north, and the Byng and Clinton Street streetscapes. As discussed in the LEP assessment, Council’s Heritage Advisor has advised that the revised bulk, scale, setbacks, details and materials are acceptable and will not detract from the character of the conservation area.

Further, it is noted that Council’s Heritage Advisor and Manager City Presentation support the removal of the trees from the subject property, provided that a replacement street tree is provided to maintain visual amenity and vegetation canopy in the locality.

Building Appearance

The DCP sets the following planning outcomes in regard to building appearance:

· The building design, detailing and finishes relate to the desired neighbourhood character, complement the residential scale of the area, and add visual interest to the street.

· The frontages of buildings and their entries face the street.

· Garages and car parks are sited and designed so that they do not dominate the street frontage.

As noted above, the revised development has been designed to maintain the existing appearance of the existing buildings and heritage streetscapes. A detailed assessment of matters pertaining to the appearance of the development has been provided under the LEP section of this report.

Heritage

The DCP sets the following planning outcomes in regard to heritage:

· Heritage buildings and structures are efficiently re-used.

· New development complements and enhances the significance of a heritage item or place of heritage significance listed in the Orange Heritage Study.

· Significant landscape features are retained including original period fences and period gardens.

Heritage has previously been addressed in detail under the LEP heading “5.10 - Heritage Conservation”. The proposed development has been designed in accordance with the outcomes for heritage.

Setbacks

The DCP sets out the following planning outcomes with regard to setbacks:

· Street setbacks contribute to the desired neighbourhood character, assist with the integration of new development and make efficient use of the site.

· Street setbacks create an appropriate scale for the street considering all other streetscape components.

As discussed in the LEP assessment, Council’s Heritage Advisor has advised that the revised setbacks are acceptable and will not detract from the character of the streetscape.

Bulk and Scale Objectives

The DCP sets out overarching objectives with regard to bulk and scale, including:

· To allow flexibility in siting buildings and to ensure that the bulk and scale of new development reasonably protects the amenity of neighbouring properties and maintains appropriate neighbourhood character.

· To allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring developments.

· To encourage the sharing of views, while considering the reasonable development of the site.

The bulk and scale objectives are addressed by the following planning outcomes regarding visual bulk, walls and boundaries, daylight and sunlight and views.

Visual Bulk

The DCP sets out the following planning outcome with regard to visual bulk:

· Built form accords with the desired neighbourhood character of the area with:

- side and rear setbacks progressively increased to reduce bulk and overshadowing

- site coverage that retains the relatively low density landscaped character of residential areas

- building form and siting that relates to landform, with minimal land shaping (cut and fill)

- building height at the street frontage that maintains a comparable scale with the predominant adjacent development form

- building to the boundary where appropriate.

As discussed in the LEP assessment, Council’s Heritage Advisor has advised that the revised bulk, scale, setbacks, details and materials are acceptable and will not detract from the character of the streetscape or neighbouring properties. The proposal has been designed to step back from the adjacent dwellings to the north and west (see Figures 3 and 4), and therefore will not impact the neighbours in terms of visual bulk. The building form complies with the visual bulk envelopes recommended by the DCP, being buildings contained within planes projected at 45 degrees over the site commencing at 2.5m above existing ground level from each side and rear boundary. Furthermore, the bulk of the proposed pavilion will be consistent with the bulk of the neighbouring buildings.

Figure 3: proposed north elevation (from plan number DA04 B3, prepared by Architecture Raw)

Figure 4: proposed east elevation (from plan number DA04 B3, prepared by Architecture Raw)

Walls and Boundaries

The DCP sets out the following planning outcome with regard to walls and boundaries:

· Building to the boundary is undertaken to provide for efficient use of the site taking into account:

- the privacy of neighbouring dwellings and private open space

- the access to daylight reaching adjoining properties

- the impact of boundary walls on neighbours.

As noted above, the proposal has been designed to step back from the adjacent dwellings to the north and west (see Figures 3 and 4), and therefore will not impact the neighbours in terms of visual bulk, daylighting, views, privacy, fire safety etc.

Daylight and Sunlight

The DCP sets out the following planning outcome in regard to daylight and sunlight:

· Buildings are sited and designed to ensure:

- daylight to habitable rooms in adjacent dwellings is not significantly reduced

- overshadowing of neighbouring secluded open spaces or main living area windows is not significantly increased

- consideration of Council’s Energy Efficiency Code.

The DCP guidelines and Council’s Energy Smart Home Code require sunlight to be available to at least 40% of required open space for dwellings on neighbouring properties for at least three hours between 9am and 3pm and is not further reduced where existing overshadowing exceeds this requirement, and that sunlight to at least 75% of north facing living area windows within development and on adjoining land is provided for a minimum of four hours on 21 June and is not further reduced where already less.

As noted above, the proposal has been designed to step back from the adjacent dwellings to the north and west. Given the orientation of the site, and that the bulk of the proposed pavilion at the boundaries will be generally consistent with the bulk of the garage to be removed and neighbouring buildings, the proposal will not impact the neighbours in terms of daylighting and shadowing.

Views

The DCP sets the following planning outcomes with regard to views:

· Building form and design allow for residents from adjacent properties to share prominent views where possible.

· Views including vistas of heritage items or landmarks are not substantially affected by the bulk and scale of the new development.

The proposed development will not affect views to any significant landmarks, nor affect the vistas within the Byng and Clinton Street heritage streetscapes. As discussed above and in in the LEP assessment, the revised setbacks will ensure that the proposal does not detract from the character of the streetscape.

Privacy and Security Objective

The DCP sets the following planning outcome in regard to privacy and security:

· To ensure that the siting and design of buildings provide privacy for residents and neighbours in their dwellings and principal private open space.

The privacy and security objective is addressed by the following planning outcomes regarding visual privacy, acoustic privacy and security.

Visual Privacy

The DCP sets the following planning outcome in regard to visual privacy:

· Direct overlooking of principal living areas and private open spaces of other dwellings is minimised firstly by:

- building siting and layout

- location of windows and balconies

and secondly by:

- design of windows or use of screening devices and landscaping.

The proposed development has been designed to avoid any direct or close views into the windows or private open spaces of adjoining dwellings. In particular, there are no windows at ground level height, and the proposed louvre system is above eye level when seated or standing, therefore will not provide views into or from the adjoining properties and streetscapes.

Acoustic Privacy

The DCP sets the following planning outcome in regard to acoustic privacy:

· Site layout and building design:

- protect habitable rooms from excessively high levels of external noise

- minimise the entry of external noise to private open space for dwellings close to major noise sources

- minimise transmission of sound through a building to affect other dwellings.

Several written submissions were received raising concerns regarding potential noise impacts associated with the existing premises and the proposed modification of the premises. In order to address this issue, Council requested that the applicant provide a Noise Report.

Wilkinson Murray prepared a Noise Assessment, labelled ‘Byng Street Local Store – Pavilion Noise Assessment’, dated September 2017. The report identifies that the most potentially affected sensitive receivers near the development are the adjacent dwelling at 45 Byng Street (west of the subject property) and the dwelling at 49 Byng Street (to the east, on the opposite corner of Byng and Clinton Streets). The report notes that the dwelling immediately to the north of the site at 81 Clinton Street is not assessed as a sensitive receiver as it is owned by the Byng Street Local Store.

The noise report notes that the primary noise sources associated with the proposal include patron noise; in particular, noise from internal spaces ‘breaking out’ via openings in the structure and noise from outdoor seating areas. Predicted noise levels take into account the louvered/ventilation windows on the northern, southern and eastern facades of the pavilion, as well as assumes that all openable glazing will be open during the daytime (7am to 6pm), and outdoor seating will only be used during the daytime.

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

· The area between the pavilion and the toilets is fully enclosed;

· No openable glazing is installed along the south façade of the pavilion to the west of the ridge-line of the existing building;

· The outdoor seating is used in the daytime only;

· Doors are not to be left open during the evening; and,

· All windows should be closed during the evening, except for the ventilated glazing on the north and south facades of the pavilion.

Council’s Manager Building and Environment does not agree that the dwelling to the north is not a sensitive receiver. The neighbouring property is owned by the applicant, who also owns the subject property/cafe, however, 81 Clinton Street is a residential dwelling house in a residential zone, and is used for residential purposes.

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

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

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

(2) The outdoor/external seating shall only be used during daytime hours, being between 7am and 6pm.

(3) External doors must not be left open between 6pm and 10pm.

(4) All windows shall be closed between the hours of 6pm and 10pm, with the exception of the ventilated/louvered glazing on the south façade of the pavilion.

Council’s Manager Building and Environment notes that the implementation of an Operational Management Plan for the site also needs to be undertaken to ensure compliance with the Protection of the Environment Operations Act. The previous modification application required a Plan of Management for the site; however based on ongoing complaints, and submissions received in relation to this modification application, it has been demonstrated that the existing Plan and operations of the premises have not been successful in managing adverse impacts on neighbouring properties. A modified condition of consent is recommended in regards to the Plan of Management for the site, which needs to be revised by the applicant. It is noted that the applicant has requested a modification to this condition of consent, as there is a typo in the number of seats (states 63 when should state 69).

These conditions have been modified and added to the attached modified Notice of Approval.

Security

The DCP sets the following planning outcomes in regard to security:

· The site layout enhances personal safety and minimises the potential for crime, vandalism and fear.

· The design of dwellings enables residents to survey streets, communal areas and approaches to dwelling entrances.

The proposal has generally been designed in accordance with the key principles of Crime Prevention through Environmental Design (CPTED). In particular, active surveillance of the street can be achieved through windows and doors fronting the streets. The principles also require that public and private spaces are generally well defined, however the proposed stone bench adjacent to the boundary on Clinton Street does not provide adequate separation between the site and the street.

There are also car parking issues created as a result of providing additional seating on the site, which is discussed in more detail in the car parking assessment below. It is recommended that the stone bench be removed from the proposal to negate these issues. Overall, subject to conditions of consent, it is considered that the proposal would not detract from personal safety or increase the potential for crime, vandalism or fear.

Site Access and Circulation Objectives

The DCP sets out the following objectives in regard to site access and circulation:

· To provide convenient and safe access and parking that meets the needs of all residents and visitors.

· To encourage the integrated design of access and parking facilities to minimise visual and environmental impacts.

The site access and circulation objectives are addressed by the following planning outcomes regarding circulation and design, and car parking.

Circulation and Design

The DCP sets the following planning outcome in regard to circulation and design:

· Accessways and parking areas are designed to manage stormwater.

· Accessways, driveways and open parking areas are suitably landscaped to enhance amenity while providing security and accessibility to residents and visitors.

· The site layout allows people with a disability to travel to and within the site between car parks, buildings and communal open space.

The removal of the garage from the site will allow for the existing driveway in Clinton Street to be reinstated, improving the visual amenity of the streetscape and providing better footpath facilities in the locality. Relevant conditions of consent are included on the attached modified Notice of Approval in regards to the reinstatement of the footpath and kerb.

Car Parking

The DCP sets out the following planning outcomes in regard to car parking:

· Parking facilities are provided, designed and located to:

- enable the efficient and convenient use of car spaces and accessways within the site

- reduce the visual dominance of car parking areas and accessways.

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

Car parking is addressed in detail below under the heading “Section 15.4 - Parking Requirements”.

Open Space and Landscaping Objectives

The DCP sets the following objectives in regard to open space and landscaping:

· To provide convenient and safe access and parking that meets the needs of all residents and visitors.

· To encourage the integrated design of access and parking facilities to minimise visual and environmental impacts.

The open space and landscaping objectives are addressed by the following planning outcomes regarding private open space, and open space and landscaping.

Private Open Space

The DCP sets out the following planning outcomes in regard to private open space:

· Private open space is clearly defined for private use.

· Private open space areas are of a size, shape and slope to suit the reasonable requirements of residents including some outdoor recreational needs and service functions.

· Private open space is:

- capable of being an extension of the dwelling for outdoor living, entertainment and recreation

- accessible from a living area of the dwelling

- located to take advantage of outlooks; and to reduce adverse impacts of overshadowing or privacy from adjoining buildings

- orientated to optimise year round use.

The foregoing objectives are specific to residential dwellings and are not applicable to the proposed development as a restaurant, café and shop.

Open Space and Landscaping

The DCP sets the following planning outcomes in regard to open space and landscaping:

· The site layout provides open space and landscaped areas which:

- contribute to the character of the development by providing buildings in a landscaped setting

- provide for a range of uses and activities including stormwater management

- allow cost effective management.

· The landscape design specifies landscape themes consistent with the desired neighbourhood character; vegetation types and location, paving and lighting provided for access and security.

· Major existing trees are retained and protected in a viable condition whenever practicable through appropriate siting of buildings, accessways and parking areas.

· Paving is applied sparingly and integrated in the landscape design.

The removal of trees has been discussed previously in this report, where the proposal seeks to remove all trees and landscaping from the site to facilitate the proposed development. There is little opportunity to provide replacement planting on the site, however the loss of trees is only considered acceptable on the basis that a new street tree is provided on the Byng Street frontage. Subject to relevant conditions of consent to replace one tree, the proposal is considered acceptable in this regard.

Water and Soil Management Objectives

The DCP sets the following objectives in regard to water and soil management:

· To control and minimise the impact of stormwater run-off and soil erosion on adjoining land and downstream.

· To encourage reduced water wastage by reusing, recycling and harvesting stormwater.

The water and soil management objectives are addressed by the following planning outcomes regarding stormwater, and erosion and sediment control.

Stormwater

The DCP sets the following planning outcomes in regard to stormwater:

· Onsite drainage systems are designed to consider:

- downstream capacity and the need for onsite stormwater retention, detention and re-use;

- scope for onsite infiltration of water;

- safety and convenience of pedestrians and vehicles;

- overland flowpaths.

· Provision is made for onsite drainage which does not cause damage or nuisance flows to adjoining properties.

Stormwater has previously been addressed in detail under the heading “7.3 - Stormwater Management” and is considered satisfactory.

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

Erosion and Sediment Control

The DCP sets out the following planning outcomes in regard to erosion and sediment control:

· A Stormwater and Soil Management Plan as required by the Development and Subdivision Code demonstrate how sedimentation and erosion of disturbed areas will be managed on the site.

· All disturbed areas are re-stabilised and revegetated as soon as practicable during development.

Existing conditions of consent requiring soil erosion measures to be implemented onsite prior to works commencing adequately address these outcomes.

13 - Heritage

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

These matters have previously been addressed in detail under the LEP heading “5.10 ‑ Heritage Conservation”, where it is considered that the proposal will not detract from the heritage setting.

15 - Parking

The original parking analysis demonstrated that the development had a shortfall of 20.3 car parking spaces based on the rate of car parking for shops and cafes. It was considered that there was reasonable opportunity to accommodate the parking demands within the surrounding on-street parking, with only minimal impact to neighboring properties, and as such, the variation to the car parking standard was accepted by Council. It was acknowledged that there was the potential for parking to occur in front of nearby dwellings, although it would be of short duration and often occur outside of peak residential demand.

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

Although the removal of the garage will result in the reinstatement of the footpath and kerb on Clinton Street, and will provide one additional on-street car parking space, it is considered necessary to provide an additional street tree on Byng Street to mitigate the impacts of removing all vegetation from the site. The proposal will therefore result in one additional on-street space in Clinton Street, but one less on-street space on Byng Street - as such neither increasing nor decreasing the availability of on-street parking. The proposal will therefore increase the shortfall of car parking to 21.3 spaces.

Based on the original assessment of car parking, that the proposal will not intensify the use of the site, and considering that the garage is not actually used for the parking of vehicles, the modification will not alter the existing demand for on-street car parking.

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

Submissions received in regards to the proposed modification state that there is unlawful car parking taking place, including parking in and across neighbouring residential driveways, as well as the promotion of cars for sale from local car sales premises parked within the street.

However, based on the consented number of seats within the business, and the high turnover of customers, the extent of parking demand is within the capability of the local road network. Unlawful parking needs to be monitored by Council, and be reported by the owner and neighbouring residents/owners.

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

Development Control Plan 2004 Infill Guidelines

The Orange Development Control Plan 2004 Infill Guidelines apply to this application. Council recently adopted this policy to guide designs of infill development in heritage areas, to ensure new development ‘harmonises’ with the character of the neighbourhood. While the proposed development does not relate to a new building, it involves a building addition in a conservation area, and therefore the policy can be used as a guidance tool.

The objectives of the policy are as follows:

· Retention of appropriate visual setting (Article 8 Burra Charter).

· To ensure new buildings respond to and enhance the character and appearance of the streetscapes of the Heritage Conservation Areas.

· To ensure contributory heritage items retain their prominence and are not dominated by new development within a Heritage Conservation Area and do not compromise the heritage values of the existing area.

· To ensure new buildings do not adversely affect the significance, character or appearance of the Heritage Conservation Area or heritage items.

· To allow for reasonable change within a Heritage Conservation Area while ensuring all other heritage objectives are met.

· To ensure new development facilitates the retention of significant vegetation that contributes to the tree canopy, especially within the Central Orange Heritage Conservation Area.

The policy states that an important aspect of good design is designing in context and having regard to the site and its surroundings. Consideration should be given to the nature of adjoining and surrounding heritage items and places, significant vegetation on the site and adjoining the site, and the overall significance and character of the heritage area where it is located. It also notes that new development within a conservation area should not have to replicate the existing built form, but should be compatible and enhance the existing streetscape. Contemporary designs may be acceptable provided the design is appropriate in character, scale and form, siting, materials and colour, and detailing. Historic character is shaped by landform, distinctive vegetation, building style and scale, street and subdivision pattern, fabric, curtilage, setbacks, materials, views, vistas, and pattern and proportions of buildings.

The existing setting is varied in terms of scale, ranging from modest to large sized single storey dwellings. Extensive mature vegetation is fairly consistent in the area. The proposed additions and alterations do not alter the existing landform or lot patterns; nor the fabric of the existing building or neighbouring buildings. The materials and proportions of the pavilion addition have been revised to fit in with the existing building, neighbouring dwellings, and street scape, as discussed in detail in the LEP and DCP assessments of this report. A replacement tree is required to mitigate the impacts of removing all vegetation from the site, as discussed earlier in this report.

It is considered that adequate consideration has been given to the Policy, to the context of the subject site, the neighbouring properties, and the surrounding pattern of development, as shown in the revised proposal and discussed in the LEP and DCP assessments above.

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

Demolition of a Building (clause 92)

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

Fire Safety Considerations (clause 93)

Existing conditions of consent adequately deal with fire safety considerations

Buildings to be Upgraded (clause 94)

Existing conditions of consent were included in relation to the required upgrading works.

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

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

Heritage, Streetscape, and Visual Impacts

The subject land is located within the Orange Heritage Conservation Area and is identified as a building which contributes to the heritage setting in the Orange Heritage Study Building Inventory. The proposal involves additions and alterations to an existing building and the removal of trees within a heritage setting, and therefore has the potential to have visual and heritage impacts. As noted in the LEP and DCP assessments above, the proposal as initially submitted was considered to have adverse impacts on the heritage and residential values of the surrounding area. The revised proposal, subject to conditions of consent regarding tree replanting and materials and colours, has been designed to meet the objectives and outcomes for heritage, neighbourhood character, building design, setbacks, visual bulk, etc.

Overall, it is considered that the development is unlikely to have adverse visual impacts on the existing building, neighbouring dwellings, the streetscape, or the heritage conservation area.

Noise Impacts

As discussed in the DCP assessment earlier in this report, noise impacts are considered to be an issue for this site and are a key consideration in this modification application. The original Noise Report submitted to Council included a series of recommendations that were required to be implemented to limit the potential for an adverse noise impact, however some of these measures have not been undertaken, and numerous and ongoing noise complaints have been received by Council. Conditions of consent from the previous modification (DA 445/2011(3)) and consent to install new windows to the premises (DA 364/2013(1) required an assessment of noise emissions to be provided to Council to monitor noise levels, and if necessary, provide noise mitigation measures. These assessments have not yet been carried out; however Council’s Manager Building and Environment has agreed to delay these assessments given the ongoing works being undertaken on the premises, and that the assessment needs to be undertaken during peak time.

Wilkinson Murray prepared a Noise Assessment to support the subject modification, which concludes that the predicted noise levels associated with the operation of the café with the proposed pavilion will comply with the relevant noise criteria, based on operational recommendations. This report, however, did not assess the impacts to the neighbouring dwelling to the north at 81 Clinton Street, which although owned by the applicant, is used for residential purposes. Council’s Manager Building and Environment recommends additional and modified conditions of consent in regards to noise, operations, and a Plan of Management to ensure compliance, as set out previously in the DCP assessment.

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

Waste Management

The original application stated that waste storage bins will be stored in the rear yard of the property outside public view, and disposed of in the normal Council street collection service. However, it was brought to Council’s attention that waste storage bins were being stored on the adjoining residential property at 81 Clinton Street, which was not considered to be a satisfactory arrangement for waste management and was inconsistent with the original approval. Alternative arrangements were made for the storage and management of waste on site. It is considered that the modified proposal provides for a greatly improved arrangement for waste storage and collection on the site, and as such, waste management impacts are unlikely.

Traffic Impacts

As discussed in the DCP assessment earlier in this report, the proposed modification would have a neutral effect on current traffic levels and amenity in the locality in terms of car parking as the proposal does not seek to alter the floor area, or staff and customer numbers. However, this conclusion is subject to the removal of the outdoor stone bench from the proposal, which provides additional seating. Although the removal of the garage from the site technically increases the overall shortfall of parking on the site, the garage has not been used for parking of vehicles, and as such, the demand for on-street parking will remain unchanged.

While there have been regular incidents of unlawful car parking and driving, the applicant cannot be reasonably held responsible for public adherence to road rules. This needs to be monitored by Council and reported by the premises, neighbouring properties and the wider community. Conditions of consent will assist in ensuring that customer numbers stay within reasonable limit so that the capacity of the surrounding car parking network is not exceeded, as well as assisting in the monitoring of unlawful car parking. As noted in the DCP assessment, the original application was reviewed by the Council’s Traffic Committee who resolved to install ‘No Parking’ signs and lines across the neighbouring driveways where customers regularly parked unlawfully. As discussed above, these measures have at best had limited effectiveness. Customers continue to unlawfully park from time to time. Council’s parking officers have been directed to carry regular targeted parking patrols of the locality in an attempt to reduce the impact on surrounding residents and educate users of the parking controls that apply.

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

Environmental Impact

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

Cumulative Impacts

The DCP outlines that in determining a development application Council will consider not only the direct impacts of a particular development, but also whether the development when carried out in conjunction with other development in the locality has a more significant environmental impact.

As an example, in urban areas the DCP identifies that the amenity of a residential area may be affected by a concentration of non-residential units, and that developments such as residential units and dual occupancy should be located and designed in a way that fits in with the predominant low-density character of the City’s residential areas.

With regard to the proposed development, it is considered that it has the potential to have a cumulative impact on:

· the heritage significance of existing buildings and dwellings in the Central Orange Conservation Area;

· the local street network in terms of traffic flow and availability of on-street parking; and

· residential amenity in terms of the noise associated with the use of the premises.

However, notwithstanding the potential cumulative impacts, it is considered that each issue has been appropriately assessed in this report, that the proposed development as modified is suitable in its context, and that it will not have a significant cumulative impact which exceeds reasonable community expectations. It is acknowledged however, that while the application does not propose an intensification of development (ie not additional floor area or seating), the improved functionality of the premises may lead to increased usage of seating during the colder months.

There may be cumulative impacts associated with the future development of properties within the vicinity of the subject property, and those impacts will be assessed at the Development Application stage.

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

Council has previously determined that the site is suitable for the proposed development. There are no aspects of the site to indicate that it would be unsuitable to accommodate the modified development. It is noted, however, that the modified development is only suitable for this site on the basis that it is operated within the intensity set out in the original and modified applications and conditions of consent.

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

Under the provisions of Section 96(2) of the Act the proposed development was advertised in accordance with the Environmental Planning and Assessment Regulations. No public authorities were identified as having an interest in the determination of the application.

Formal exhibition of the application was undertaken by way of an advertisement in the local press on 18 February 2017 and neighbours notified 15 February 2017. The first exhibition period closed on 6 March 2017. At the end of that period 17 submissions were received. A further (ie late) submission was received after that period ended.

As discussed previously in this report, a mediation meeting was held by Council’s Director Development Services. As a result of the meeting and the objections received in the first exhibition period, the applicant revised the proposal.

A second exhibition period was arranged, and the revised modification application was re-advertised in the local press on 28 September 2017 and neighbours re-notified 22 September 2017. The second exhibition period closed on 13 October 2017. At the end of the second exhibition period, a further 39 submissions were received.

In summary, a total of 57 submissions were received in relation to this application, 30 of which in support of the application, and 27 objecting to the application. It is noted that some submitters made multiple submissions, and some submitters made submissions in both exhibition periods. All of these submissions have been taken into consideration in this assessment.

Objections

A summary of objections and Council’s comments are as follows:

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

The original consent was approved when restaurants were permitted in residential zones (LEP 2000), as such this is not a consideration in the modification of the existing premises.

· The proposal is inconsistent with the heritage conservation area, streetscape, existing building, and neighbouring dwellings.

This matter has been addressed in the body of the report under the LEP Clause 5.10 and “Likely Impacts” assessments. The proposal has been revised to address initial concerns raised by objectors and Council’s Heritage Advisor.

· Amenity and visual impacts on adjoining properties and streetscape (bulk, height, and scale; no open space or landscaping; loss of trees; modern design; poor design).

This matter has been addressed in the DCP residential design and “Likely Impacts” assessments of the report. The proposal has been revised to address initial concerns raised by objectors and Council’s Heritage Advisor.

· Noise impacts to neighbouring dwellings (patrons, music, vehicles, open windows etc).

This matter has been addressed in the DCP residential design, and the “Noise Impacts” assessments of the report. Additional and modified conditions of consent have been recommended by Council’s Manager Building and Environment, and are included in the attached modified Notice of Approval.

· Concerns that the proposal will continue to increase patronage, traffic movements, parking, and congestion (steadily increasing by way of incremental developments).

This matter has been addressed in the DCP and “Likely Impacts” assessments of the report.

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

This matter has been addressed in the “Cumulative Impacts” assessments of the report.

· Car parking impacts; the new stone bench at the front needs to be accounted for in the total number of seats available.

This matter has been addressed in the DCP and “Likely Impacts” assessments of the report, which recommends that the stone bench be removed from the proposal.

· Council processes; that ‘unacceptable’ applications should not be accepted by Council/be put on public exhibition; and that Council’s “advertising” of proposals is inadequate.

The development application process is set out by the Act and Regulations, as well as within Council’s Policies. While Council recommends that applicants seek advice prior to lodgement, this is not a legislative requirement. In this case, Council requested amendments/revisions to the proposal during the assessment process. Council followed the advertising process prescribed by the Act and Regulations, where it was advertised in the local press and neighbours were notified of two separate exhibition periods. This matter has been addressed in detail in the body of the report.

· Inconsistent with LEP, DCP and Infill Policy.

The proposal is considered to be consistent with the LEP and DCP as addressed in the body of the report.

· Fire safety concerns building near the boundaries.

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

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

A check of Council’s records shows the neighbouring premises does not have consent for the purpose of a ‘Bed and Breakfast’, however this matter is not relevant to this application and will be separately investigated.

· Concerns about the holding of cocktail parties and functions (objectors have provided advertising material from the premises promoting these activities), which are advertised as being bookable Monday to Saturday evenings.

Council officers believe that these activities do not fit into the approved use and definition of ‘restaurant and café’ in the LEP, however this does not form part of the consent. Council would need to investigate any breaches should they arise.

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

This issue has come up in previous modifications, and numerous complaints have been lodged between 2012 and 2017 with Council, the Police, and the Office of Liquor and Gaming regarding ongoing breaches in trading hours (early and late), noise associated with night time functions, commercial bread baking, noise associated with plant equipment, exceeding patron/seating capacity limits, illegal parking by patrons across residents' driveways, dangerous driving by patrons, littering of roads, footpaths and streets by patrons (cigarettes, drink cans, coffee cups), and abuse of residents by patrons. As discussed in the body of the report, Council is taking this opportunity to ‘tighten up’ on existing conditions of consent as well as include additional conditions regarding the operation of the premises. Council will continue to monitor the situation, and take enforcement action where breaches occur.

It is noted that the immediately adjacent neighbour objects to the proposal, however supports the removal of the courtyard trees as they are inappropriately large and may damage adjoining buildings.

Submissions of Support

The letters of support are generally from local businesses and visitors to the area, but note that they are in support of the design of the proposed additions, the improved functionality of the café (eg provision of seating that can be used all year, improved takeaway window etc), and the positive impacts to local tourism and the marketing of local produce.

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

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

· the proposal will provide better waste storage;

· the proposal will not generate additional parking demand;

· the revision has reduced the height and bulk of the proposed pavilion and set it further back from the street, and will improve the streetscape.

PUBLIC INTEREST s79C(1)(e)

SUMMARY

The proposed modification is permissible with the consent of Council. The applicant has adequately demonstrated that the proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2000 and 2011 (as amended) and DCP 2004. The modification is consistent with the provisions of Section 96(2) of the Environmental Planning and Assessment Act 1979. A Section 79C assessment of the proposal indicates that the development is acceptable in this instance, subject to amended and additional conditions of consent. An amended draft Notice of Approval is attached.

COMMENTS

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

Attachments

1 Notice of Approval, D17/69266 ⇩

2 Plans, D17/69271 ⇩

3 Submissions, D17/69378 ⇩

Planning and Development Committee 7 December 2017

2.8 Development Application DA 350/2016(1) - 47-49 Hill Street

RECORD NUMBER: 2017/2517

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	14 October 2016
Applicant/s	Newstead Property Nominees Pty Ltd
Owner/s	Newstead Property Nominees Pty Ltd
Land description	Lots 1, 2 and 3 DP 1127220, Lot 19 DP 1158710, and Lots 17 and 18 Sec 22 DP 758817 - 47-49 Hill Street, Orange
Proposed land use	Demolition (ancillary structures), Subdivision (Torrens title - four lot residential), Dwellings (two dwellings), Multi Dwelling Housing (seven dwellings) and Subdivision (Community title - eight lot residential)
Value of proposed development	$3,550,000

Council's consent is sought to undertake a residential redevelopment of the former Newstead Bowling Club site.

The critical aspect to the assessment of this application is the presentation of the two dwellings fronting Kite Street, which are described as detached, single storey contemporary style dwellings with attached double garages. The design rationale adopted with attached double garages presenting to Kite Street is contrary to Council’s Infill Guidelines which seek to ensure that garages do not interrupt the continuity of consistent streetscapes, nor dominate important and valued heritage street frontages.

Council’s Heritage Advisor has recommended that the proposed development will have a significant impact upon the heritage value of the area and thus should not to be supported by Council.

Additionally, the significance of the Newstead building and the locality generally will be detrimentally effected by the siting of dwelling 2 which adopts a setback line with reference to the adjoining development to the west, but bears no relationship with the siting of the heritage item. The adopted siting of dwelling 2 will impinge on important views of significant features of the Newstead building and will have the effect of crowding the setting of the heritage item. Similar to the impacts derived from the presentation of dwellings 1 and 2, the siting of dwelling 2 will have a detrimental impact upon the significance of the heritage item on the land and unsatisfactorily impact upon the streetscape.

The extent of the impact can be seen in the below photomontages which Council staff had prepared by an external practitioner with extensive Photoshop experience. In the opinion of Council staff, the below images provide a more realistic impression of how the development will fit in the street compared to the photomontages and other information submitted with the application.

Figure 1 - photomontage prepared by Council’s Photoshop consultant

Figure 2 - photomontage prepared by Council’s Photoshop consultant

The proposal firstly involves a four lot Torrens title subdivision. The intent of the subdivision is to excise the Newstead building (former mansion) onto a separate lot, create two separate lots with frontage to Kite Street and create a battleaxe lot as a development lot. Demolition of the shed and other ancillary items (water tanks) will occur at the time of the subdivision. The applicant then seeks to construct nine dwelling houses, one dwelling on each of the two lots fronting Kite Street and seven dwellings as a multi-dwelling housing development on the battleaxe lot. Finally, the applicant is seeking to undertake an eight lot Community title subdivision (seven house lots and one community lot (access)) over the multi-dwelling housing development within the battleaxe lot. As part of the development new vehicle crossovers will be provided within the street, changing the existing arrangement within the footpath. The development also involves a new front fence, landscaping and visitor parking spaces.

The setting and context of the subject land is characterised as being situated within an area of the City which displays exceptional heritage value owing to the cluster of intact heritage items such as Mena (50 Kite Street), Sir Charles and Lady Cutler's former residence (52 Kite Street) (both opposite the subject land in Kite Street) and the Newstead bowling club (former mansion) which is situated on the land the subject of the application. The avenue of large mature plain trees within Kite Street is a notable feature within the Central Heritage Conservation Area and the Cook Park tree canopy forms an important back drop to the west.

The existing topography of the footpath and the change in levels between the footpath and the subject land will necessitate the provision of new vehicular access points that will be similar to the adjoining property to the west. To improve safety, Council’s Technical Services staff have indicated that the new gutter bridges for the access handle and the driveway to Lot 103 will need to be unbroken and connect with the existing bridge serving 45 Kite Street. This will result in a continuous gutter bridge approximately 17m in length. A further 4m long gutter bridge footpath crossing will be required for dwelling 2. The proposed westernmost access will necessitate the removal of an immature street tree and relocation of an existing low voltage electricity pole and street light. The development will augment the existing footpath situation, which will involve excavation within close proximity of the large street trees. Special consideration needs to be given to this aspect of the development to ensure their root structures are not damaged and their health is not effected.

The intended stormwater design as shown on the preliminary services plan shows the private open space areas of dwellings 6 and 9 being used as the onsite stormwater detention system. Whilst this is an acceptable engineering solution, it is less than desirable from a residential amenity perspective for the future occupants of these dwellings. Council’s Technical Services staff estimate that the onsite detention basins in the rear yards of Dwellings 6 and 9 will be inundated with approximately 200mm 1-2 times a year (on average – depending on meteorological factors), and fill to a depth of up to 500mm in larger, less frequent storm events. Whether or not this presents a safety issue is also a matter for consideration.

Additionally, the engineering design will require the installation of stormwater pipes within the structural root zone of a large mature and heritage significant tree on the northern side of the Newstead building (former mansion). This compounds the complexity of the stormwater design. Utilising two larger pipes (in place of one pipe) and connecting to the existing stormwater system near the Hill Street/Kite Street roundabout could discharge the stormwater from the onsite detention basins more efficiently, meaning amenity for the occupants of Dwellings 6 and 9 would improve. However, this option requires more than one pipe and at larger diameters, which would need to be installed within the structural root zone of the subject tree. Hence, Council’s Manager City Presentation cannot guarantee the health of the tree if the structural root zone is effected by the installation of the stormwater system.

The design of the driveway with two opposing 90 degree turns will mean that a firefighting appliance will not be able to practically enter the site past the first right angle turn. This means that in order to obtain the necessary firefighting coverage for the furthest dwelling from the street, a private hydrant will need to be installed within the community property. In the event the necessary coverage is still not achievable, dwelling 9 will need to have a domestic sprinkler system installed.

Another critical aspect of the assessment relates to the parking implications resultant from excising the Newstead building (former mansion) onto a separate lot, and development to occur in the area where the majority of off-street parking for the registered club is located.

As outlined in the above summary, the development will result in a number of departures from Council’s adopted planning provisions, principally Council’s heritage related provisions within the adopted Infill Guidelines with respect to the design of dwellings 1 and 2.

Additionally, the development will result in outcomes such as the new vehicle footpath crossing treatments, stormwater design, access to hydrants, loss of on-street parking and loss of parking associated with the former Newstead club; which, if isolated to just one issue, would not be as great an issue - but when amassed together, the development presents planning outcomes with unacceptable levels of environmental impacts in the locality.

Council staff acknowledges the merits associated with developing the subject land for residential purposes. For a start, the land is centrally located and a large portion of the site is currently under-developed and underutilised. Its redevelopment presents an efficient use of land within the urban context, alleviating a small amount of pressure on the push for urban sprawl. What Council staff do not agree with is the adopted design rationale presented within the application. Council staff are of the view that a more sophisticated design could be developed which could entirely remove, or a least reduce to an acceptable level, the above-described elements of the design that will result in unsatisfactory environmental impacts in the locality.

As such, the development is recommended for refusal based on the following reasons:

· The design and siting of dwellings 1 and 2; particularly the attached double garages presenting visually to the street, and the siting of dwelling 2 being forward of the significant heritage item on the land will result in an unacceptable detrimental impact upon the significance of the heritage item on the land known as the Newstead building, as well as the significance of the Central Heritage Conservation Area and a number significant heritage items within the vicinity of the subject land.

· The development is inconsistent with the objects of Clause 5.10 - Heritage Conservation pursuant to Orange Local Environmental Plan 2011.

· The development is inconsistent with the residential design objectives listed under Chapter 7 of Orange Development Control Plan 2004, particularly neighbourhood character, building appearance, heritage and streetscape.

· The development is in direct conflict with planning outcome PO 7.7-3 (2) - Heritage which seeks to ensure that new development complements and enhances the significance of a heritage item or place of heritage significance listed in the Orange Heritage Study.

· The development is fundamentally inconsistent with Council’s Infill Guidelines.

· Compliance with the infill guidelines and the other relevant aspects of Council’s planning provisions could be achieved if not for the number, size, design and layout of the proposed dwellings. Accordingly, the development is considered to be an over development of the site.

· The proposed stormwater design will result in unsatisfactory impacts upon the residential amenity of Dwellings 6 and 9. An alternative solution that improves the amenity of those dwellings would have unacceptable impacts upon the large mature Deodar Cedar (Cedrus deodara) on the northern side of the Newstead building (former mansion).

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.

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.

This development involved the insertion of basic modern style homes in arguably one of the most important heritage precincts in Orange.

Staff do not oppose units being developed in this location, and indeed have made suggestions on how redesign could adequately address heritage issues.

The LEP, DCP and Infill guidelines all support a refusal of the development in its current form.

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 development application DA 350/2016(1) for Demolition (ancillary structures), Subdivision (Torrens Title - four lot residential), Dwellings (two dwellings), Multi Dwelling Housing (seven dwellings) and Subdivision (Community Title - eight lot residential) at Lots 1, 2 and 3 DP 1127220, Lot 19 DP 1158710, and Lots 17 and 18 Sec 22 DP 758817 - 47-49 Hill Street, Orange pursuant to the reasons listed in the attached Notice of Refusal.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought to undertake a residential redevelopment of the former Newstead Bowling Club site which is situated on land described as Lots 1, 2 and 3 DP 1127220, Lot 19 DP 1158710, and Lots 17 and 18 Sec 22 DP 758817. The land is known as 47-49 Hill Street, Orange (also known as the Newstead Bowling Club Kite Street, Orange).

The development is proposed as a number of stages to achieve the intended outcome. The following is an outline of the various stages:

Stage 1

Stage 1 involves the demolition of ancillary structures within the land such as the greenkeeper's shed, storage shed and water tanks. This stage also involves undertaking a four lot subdivision summarised in the below table:

Lot	Size (m²)	Frontage	Further Development
100	3680.6	Kite Street via access handle of battleaxe lot	Multi dwelling housing (seven dwellings) and Community title subdivision
101	3528.7	Corner lot, frontage to both Kite and Hill Streets. The existing mansion primarily addresses Hill Street	No further development proposed as part of this application - subject of a re-zoning to B4 Mixed Use
102	549.9	Kite Street	Single dwelling
103	562.6	Kite Street	Single dwelling

The size of the lots and the location of new boundaries is depicted in the below except from the submitted plans.

Figure 3: except from submitted plans showing subdivision layout

Stage 2

Construction of a dwelling on each of the resultant Lots 102 and 103 (created under Stage 1) and construction of seven dwellings as a multi dwelling housing development on the resultant battleaxe development Lot 100 (created under Stage 1).

All proposed dwellings are single storey with attached double garages, three bedrooms, two bathrooms, open plan kitchen/dining/living and some with separate lounge rooms. Roof forms will primarily comprise hips roofs, with some gables. The external materials for all dwellings will be face brick, Colorbond roof sheeting, aluminium windows, circular profile downpipes and quad profile gutters. Hard landscaping will comprise coloured concrete driveways and paths. Trees, hedges and shrubs are proposed within the soft landscaping scheme.

Stage 3

The final stage comprises an eight lot Community Title subdivision to excise the seven dwellings constructed under Stage 2 onto separate Community Title lots. The subdivision will comprise seven house lots and a community (access) lot.

The Community subdivision is summarised as follows:

Lot	Size (m²)	Resultant Improvement
1	737.7	Community lot/vehicular access
2	356.2	Dwelling 3
3	387.6	Dwelling 4
4	399.8	Dwelling 5
5	492.6	Dwelling 6
6	446.6	Dwelling 7
7	387.0	Dwelling 8
8	473.1	Dwelling 9

The size of the lots and the location of new boundaries is depicted in the below except from the submitted plans.

Figure 4: except from submitted plans showing Community Title subdivision layout.

BACKGROUND/CHRONOLOGY OF APPLICATION

The following is a chronology of key dates with an explanation of amendments to the application and elucidation of each of the three exhibition periods.

August 2016

The applicant attempted to lodge the application, however it was not accepted at this time due to insufficient information. The development was, for all intents and purposes, the same design as what is currently before Council. Dwellings 1 and 2 comprised attached garages presenting to Kite Street. Council staff at this time procured advice from Council’s Heritage Advisor, who recommended that the two garages that orientate to the street be redesigned such that vehicular access to these garages was achieved internally from the common driveway, thus not being visually dominant within the streetscape.

Additionally, it was recommended that dwelling 2 be set back further from Kite Street so as to provide a more appropriate setback transition between the new development and the heritage item on the land, and allow the primacy of the heritage item to be more obvious within the street.

This advice was provided to the applicant.

14 October 2016

Application lodged with Council. When the application was formally lodged with Council, the orientation of Dwelling 1 was amended such that the garage door faced west (away from Kite Street) and was accessed from the common property driveway. Dwelling 2 remained unchanged from when the applicant first attempted to lodge the application in terms of both garage location/orientation and front setback.

27 October 2016

Council staff provided the applicant with an additional information request which included inter alia a request to redesign dwelling 2 such that the attached garage was not visually dominating within the streetscape and also requested re-siting of the same dwelling such that a greater setback was provided. Noting that at this time dwelling 1 had an attached garage that orientated the opening internally (facing west) within the site.

2 November 2016

Application advertised and notified.

11 April 2017

Additional information provided to Council which included amended plans with dwelling 1 redesigned such that the garage door re-orientated 90 degrees to visually present to the street and dwelling 2 remained essentially unchanged, with a slight setback increase of nominally 0.7m. Other minor changes included reduced roof pitch, privacy treatment to dwelling 9, materials schedule, minor floor plan changes etc. Essentially the design returned to the same design that was originally rejected by Council staff in August 2016, save for the minor changes mentioned above.

27 April 2017

Application re-advertised and notified based on inconsistency in the application's formal description/order of the development. The application was also required to be readvertised due to the substantial change to the design of dwelling 1.

11 May 2017

At the completion of the second exhibition period, it became apparent from some of the submissions received during that period that the material that that was placed on public exhibition led to confusion within the community. The confusion centred on the exact design of dwelling 1. The cause of the confusion related to the information that was resubmitted from URBIS dated 26 August 2016 that indicated “Dwelling 1 has been redesigned so that the entry to the garage is from the side of the dwelling …”. This information was contradictory to the plans and other material accompanying the application. As such, Council staff were left with no option other than to request clarification from the applicant and re-advertise the application for the third time to address the confusion.

At this point, the applicant requested that they be allowed time to prepare a complete new heritage impact statement from URBIS. This was agreed to by Council staff and Council awaited the submission of new material so that exhibition could occur for the third time.

14 August 2017

Revised development application material submitted which included a revised Statement of Environmental Effects and a new heritage impact statement prepared by URBIS.

31 August 2017

Development application advertised and notified for the third time.

PLANNING PROPOSAL

As a separate matter the owners of the land have lodged a planning proposal with Council which seeks to rezone the former Mansion and the curtilage around it (approximate area shown red below) to B4 Mixed Use. This will effectively complete a contiguous line of B4 Mixed Use zoned properties on the western side of Hill Street from Summer Street through to Kite Street (see below).

Figure 5 - area of land proposed to be re-zoned to B4 Mixed Use (shown red outline)

(blue outline relates to the subject land)

It should be noted that the alignment of proposed boundaries for proposed Lot 101 (which is the lot that will contain the heritage item (former mansion)) relates to the same area that is proposed to be rezoned to B4. As part of the planning proposal, development standards relating to floor space ratios and height of building controls are also being considered. It is also noted that as part of the planning proposal, the relevant heritage map and listing within Schedule 5 of the Local Environmental Plan will be pared back to relate to the former mansion and adopted curtilage only. The Heritage Conservation Area will remain unchanged, which includes the balance of the subject land.

The planning proposal will have no material effect on the consideration of this application.

Errata in Submitted Plans

Council staff have identified the following errors within the submitted plans:

· Submitted shadow diagrams contain errors and omissions which has made assessing the development's compliance with the relevant Development Control Plan provisions a time consuming and onerous task.

· The submitted site plan shows external laundry doors for dwellings 5, 6 and 7, whereas individual floor plans and the applicable elevations for those dwellings show windows instead of doors. If Council is of a view to approve the development it will be necessary to require a complete set of plans that addresses these identified conflicts.

Other Issues with the Submitted Plans

· Information shown on the streetscape analysis - Council requested a streetscape analysis that provided an understanding of how the development would be viewed within the Kite Street. A plan was provided; however, it fails to demonstrate the full extent of the development as the plan only shows dwellings 1 and 2 and not the elevated dwellings behind, particularly dwelling 3 which adjoins the Newstead building. This is discussed further below under the infill guidelines and is evident in the below photomontage (figure 7).

· Submitted photomontages - Council requested that photomontages be prepared that provide a realistic impression of what the development will look like in the street. Photomontages haven been submitted, however the placement of advanced vegetation - different to what is shown on the landscape plan - and the angles of view selected, do not provide a true representation of how the development will appear in the street.

· To address this, Council staff have engaged a registered landscape architect with experience in Photoshop software to prepare photomontages that provide a more realistic impression of the development (refer figure 6 and 7 below).

Figure 6 - photomontage prepared by the applicant

Figure 7 - photomontage prepared by Council’s Photoshop consultant

Council staff are of the view that figure 7 above provides a much more realistic impression of how the development will appear in the street, along with its relationship with the Newstead building. The purpose of showing these two images is to demonstrate that the images submitted with the application do not accurately represent the development.

It is noted that photomontages serve the purpose of providing an appreciation of the development and are not technical architectural drawings.

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.

A site inspection reveals that the subject land is a highly modified urban parcel which has no biodiversity or habitat value.

Section 79C

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

The development is consistent with the above aims of the plan.

However, the development is inconsistent with the below aim.

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

The development will have an unacceptable impact on parts of the valued environmental heritage of the City. A detailed assessment of the development has been carried out below under the heading Clause 5.10 – Heritage Conservation.

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 (and small area of B4)
Lot Size Map:	No Minimum Lot Size
Heritage Map:	Heritage item and 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

Land Use Zones

The subject site is located within the R1 General Residential zone. The proposed development is defined as a subdivision of land, demolition, dwelling houses and multi dwelling housing (Community Title subdivision has the same meaning as a Torrens Title subdivision) under OLEP 2011.

The Environmental Planning and Assessment Act (Section 4B) defines subdivision of land as

the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition.

Dwelling houses are defined by the LEP to mean:

a building containing only one dwelling.

The LEP provides further guidance around the meaning of a dwelling which 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.

Multi dwelling housing is defined as:

3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.

Subdivision (including the Community Title subdivision under the final stage) is permissible with consent pursuant to clause 2.6 of the LEP. Demolition is permissible with consent pursuant to clause 2.7 of the LEP. Dwellings Houses and multi dwelling housing are permissible in the R1 General Residential zone with the consent of Council.

This application does not deal with the use of the former Newstead club building (former Mansion). It will be necessary for a separate development application to be lodged with Council that seeks consent for an appropriate use of that land in the future.

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

1 - Objectives of the R1 General Residential Zone

· To provide for the housing needs of the community.

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

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

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

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

The development is not inconsistent with the objects of the R1 General Residential zone. The development will provide residential accommodation on land that is otherwise underutilised in a location that is in close proximity to facilities and services.

It is noted that there is a small area of land (approximately 3.4m²) in the far north-eastern corner if the site. It is unclear from the gazetted zoning maps precisely what the zoning of this small area of land is. It is likely to be a small area of B4 land that was mistakenly zoned as such, being included with the same zoning as the adjoining B4 zoned properties within Hill Street.

This identified zoning anomaly has zero effect on the permissibility and appropriateness of the development; the proposed land uses remain permissible and the development is consistent with the B4 zone objectives.

Figure 8 (and insert) - approximate location of lot 19 showing part of the land likely to be zoned
B4 Mixed Use

Clause 2.6 - Subdivision - Consent Requirements

This clause triggers the need for development consent for the subdivision of land, which that applicant has sought through this application.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work, which the applicant has sought through this application. The proposed structures to be demolished include the bowling greens, the greenkeeper's shed, and front fence and retaining wall, as well as the two aboveground rain water tanks and storage shed in the north-eastern corner of the site. There are no objections to the proposed demolition.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.1B - Minimum Lot Sizes for Dual Occupancy, Multi Dwelling Housing and Residential Flat Buildings

This clause establishes the minimum lot size required for dual occupancies and multi dwelling housing in the R1, R2 and R3 zones. The proposed multi dwelling housing project is situated on land within the R1 General Residential zone that is not identified on the Minimum Lot Size Map. Accordingly, this clause requires the site to have a minimum area of 1,250m².

The resultant development lot (created as part of Stage 1), being Lot 100 (battleaxe lot) is proposed at 3,680.6m² and is therefore consistent with this clause.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

The subject land is identified as a heritage item listed within schedule 5 of Orange LEP 2011. The land is also located within the Central Heritage Conservation Area as defined by the heritage maps contained within the Orange LEP 2011.

The subject land is also located opposite, adjoins, or is in close proximity to the following heritage items as shown on the below figure.

· I6 – "Mena" dwelling – 50 Kite Street (opposite subject land)

· I146 – dwelling (former residence of the late Sir Charles and Lady Cutler) – 52 Kite Street (opposite subject land)

· I44 – dwelling – 56 Kite Street (opposite subject land)

· I179 – dwelling – 50 Hill Street (opposite subject land)

· I41 – Heritage House "Gortnessy" – 58 Summer Street (adjoins the subject land at the north-western corner)

· I144 – "The Channings" dwelling – 39 Kite Street (in proximity of subject land)

· I143 – dwelling – 37 Kite Street (in proximity of the subject land).

Figure 9 - the geographical relationship of the subject land with surrounding heritage items

The relevant heritage inventory sheets describe the Heritage Significance of the above properties and central conservation area as follows:

Newstead (former mansion)

Newstead was built in 1890 by John Douglas for Mr. & Mrs. De Vries Pilcher as a double octagonal bay residence including a roof mounted widows walk, considerable stained glass in the front door, its surrounding sidelights and fanlight. The dominating Indian Cedar tree was planted shortly after the house was built and is one of several significant cultural plantings in the formal garden. It was purchased and adapted to provide a Bowling Club in 1955.

Central Heritage Conservation Area

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

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

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

50 Kite Street "Mena"

This symmetrical masonry residence with curved return verandah was built for Thomas Dalton by his father James, and is a significant example of the Irish legacy and a manifestation of their confident outlook while complementing the streetscape and contributing to the Conservation Area within the city as a heritage item.

52 Kite Street

An attractive Victorian-style residence which has retained the original character and distinctive details, including mouldings, verandah and barge boards, the property was the home of Sir Charles and Lady Cutler. Sir Charles was leader of the Country Party, Minister for Education, and Deputy Premier of NSW.

50 Hill Street

The unusual early Inter war face brick house with hipped and vented iron roof includes a distinctive arched central porch and the building complements the streetscape and contributes to the Conservation Area as a heritage item.

58 Summer Street – Heritage House "Gortnessy"

An outstanding and representative example of an Edwardian residence in garden setting and original piered and steel palisade fencing, the building retains all the distinctive features from the original 1900 design and complements to the streetscape and contributes to the Conservation Area as a heritage item.

39 Kite Street – "The Channings"

The late Victorian two storey residence dominates the streetscape and has historical value as a guest house, the site contributes to the Conservation Area as a heritage item.

37 Kite Street

The late Victorian residence retains the original character including the verandah, complements the streetscape and as a rare example of the type is also intact and in a sound condition, contributes to the Conservation Area as a heritage item

(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 objects of the above clause centre on the conservation of heritage places. Of particular relevance to this application are objectives (a) and (b). Objectives (c) and (d) are less relevant to the application as the site is not a known archaeological site or a site likely to contain aboriginal objects; nor is the land a known aboriginal place of heritage significance. Notwithstanding this, precautionary conditions relating to these two objectives should be imposed if Council is of a view to approve the application.

In terms of determining whether the development is consistent or inconsistent with the above objectives, it is necessary to understand what is meant by the term conservation or to conserve. The Burra Charter defines conservation to mean all the processes of looking after a place so as to retain its cultural significance. In this case the places referred to in the aforementioned definition include the heritage item on the land, the central conservation area and the heritage items within the vicinity of the development; and reference to the expression ‘the process’ includes the assessment of the potential impacts a development may have on those places.

Council staff are of the view that the development, specifically the design of Dwelling 1 and the design and siting of Dwelling 2, will have a substantial detrimental impact upon the significance of the heritage item on the land, the significance of the Central Heritage Conservation Area and the significance of a number of heritage items in the vicinity of the subject land.

Based on this contention by Council staff, the development is considered to be fundamentally inconsistent with the first two objectives of the above clause. Thus, the development is recommended for refusal.

(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

(f) subdividing land:

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

The development requires consent due to the foregoing clause, which the applicant has sought by way of this development application.

(4) Effect of Proposed Development on Heritage Significance

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

As mentioned below a Heritage Impact Statement has been submitted with the application which concludes the following:

The existing Newstead Mansion would be retained. The proposal would have no impact on the presentation of the site to Hill Street and would be appropriately landscaped such that the mansion remains legible as one in a garden setting.

The subdivision of the western part of the subject site would have no impact on the significance of Newstead. Rather, it would create a subdivision pattern which would facilitate development which better reflects the original subdivision pattern of the area.

The proposed development would be concerned with a currently underutilised site and would constitute appropriate infill development which responds to the character of the area which is dominated by single storey detached residences.

The development will improve the presentation to Kite Street by removing the unsympathetic metal fence and colorbond shed.

The development is appropriately designed in terms of form and materiality such that it is referential to the context while avoiding monotony in its presentation. It therefore would not visually dominate the streetscape.

The proposed works are supported in accordance with the observations set down in this report.

Notwithstanding the above conclusion, Council’s Heritage Advisor has consistently held the position that the design of Dwelling 1 and the design and siting of Dwelling 2 will result in unacceptable impacts upon the significance of the heritage item on the land, the significance of the Central Heritage Conservation Area and the significance of the heritage items in the vicinity of the subject land. These matter are discussed in greater detail below under the infill guidelines.

Accordingly the development is recommended for refusal.

(5) Heritage assessment

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

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

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

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

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

A heritage management document in the form of a heritage impact statement has been prepared by URBIS. Additionally, a separate Heritage Impact Statement has been undertaken by the proponent's planning consultant that deals with Council’s Infill Guidelines.

(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 heritage inventory sheet for the Newstead Bowling Club identifies the level of heritage significance of the place as being at State level. This is an elevated level of significance within the heritage conservation framework from the regular Local level of significance. Effectively, it is a way of further grading the heritage value of a property based on its significance to the local community, the State and the nation. This is notwithstanding the fact that the relevant listing within schedule 5 of the LEP lists the land as being of Local significance – this appears to be an anomaly as this status is established as part of the preparation of the heritage inventory sheets – which list Newstead as a State item. This anomaly should be addressed as part of a house keeping amendment to the LEP. It is worth noting that Newstead was recognised as being important at a State level under the former LEP.

When a development is contemplated on a State significant local heritage item (not being on the State Heritage Register administered under the Heritage Act) it presents as an ideal opportunity to require a Heritage Conservation Management Plan to be prepared for the property. (It is noted that there are only a dozen or so properties listed under the LEP as being of State significance.).

A Heritage Conservation Plan is a document prepared in accordance with guidelines prepared by the Public Service agency responsible to the Minister administering the Heritage Act 1977 that documents the heritage significance of an item, place or heritage conservation area, and identifies conservation policies and management mechanisms that are appropriate to enable that significance to be retained.

It is considered appropriate to have a mechanism in place that deals with the ongoing management of the former mansion, particularly when it is highly likely that some form of adaptive re-use will occur to it in the future once the rezoning is finalised. As such, should Council be of a view to approve the development a condition should be imposed that requires a Heritage Conservation Management Plan for the former mansion and its curtilage to be prepared and implemented as part of the ongoing management of the property into the future. This is not considered an overly onerous task as a lot of the lead work will have been completed as part of the preparation of the Heritage Impact Statement.

(7) Archaeological Sites

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

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

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

The site is not an identified archaeological site. Notwithstanding this, should Council be of a view to approve the application it will be necessary to, as it is standard practice, impose a precautionary condition that establishes protocols in the event that a European relic or artefact is discovered during construction.

(8) Aboriginal Places of Heritage Significance

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

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

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

An AHIMS search confirms that the land is not an identified Aboriginal Place of Heritage Significance. Notwithstanding this, should Council be of a view to approve the application it will be necessary to, as it is standard practice, impose a precautionary condition that establishes the protocols in the event that an Aboriginal object is discovered during construction.

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 plans submitted with the development application indicate that the extent of earthworks associated with the proposed development relate to the excavation of material in the front (primarily south-western corner) of the site in the order of approximately 500mm. The existing ground levels over the bowling greens essentially set consistent finished floor levels for Dwellings 3-9.

The earthworks are considered minor and ancillary to the proposed development, and are unlikely to have a detrimental impact with regard to the foregoing matters.

However, should Council be of a view to approve the application, it will be necessary to attach relevant standard conditions that deal with the management of the required earthworks.

7.3 - Stormwater Management

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

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

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

The proposal has been designed to include permeable surfaces and includes onsite retention of stormwater through the use of detention basins within the private open space areas of Dwellings 6 and 9. While the intended design represents an acceptable engineering solution, Council’s Technical Services Division advises that:

the proposed stormwater detention basin almost fully comprises the private open space of dwellings 6 and 9. Due to the limits on maximum discharge rate of stormwater to the kerb and gutter (20 L/sec) the stormwater basin will fill to a depth up to 200mm 1-2 times per year thereby making the area of inundation useless for private recreation purposes. The detention basin will fill to a depth of up to 500mm in larger, less frequent storm events.

The proposed stormwater solution, whilst acceptable from an engineering point of view, is considered undesirable from a residential amenity perspective, with the likelihood of prospective purchasers of these properties being unaware that their private open space will be inundated with the development's stormwater on a regular basis.

Councils Technical Services Division further advises: that as an alternative to the single large basin the applicant has the option of creating a series of smaller basins spread throughout the development and / or connecting the drainage to the existing underground stormwater system at the Hill St / Kite St roundabout. This option potentially has more impact on the large tree as larger diameter outlet pipe/s will be used.

Basically, this means that there is an engineering solution that would improve the amenity of Dwellings 6 and 9 with the installation of large diameter piping to reduce the storage volume and discharge the water at a faster rate (as it would connect to the existing system). However, this potentially comes at a cost to the health of a significant mature tree within the northern curtilage of the former mansion. The alternative engineering solution (whether it be a series of small basins or connecting directly with Council’s existing stormwater system at the roundabout) would mean installing pipes within the structural root zone of the subject tree.

Council’s Manage City Presentation provides the following advice with respect to the subject tree:

The subject tree, a Deodar Cedar (Cedrus deodara), is a mature specimen with a diameter at breast height (1400mm above ground level) of 1000mm and at the root buttress of approximately 1140mm. A tree having a root buttress of 1.14m has a Structural Root Zone (SRZ) of 3.77mm in radius from the centre of the stem. In the conceptual layout for servicing the proposed stormwater main is proposed to be constructed within 3 metres of the centre of the stem of the Deodar Cedar. The Tree Protection Zone (TPZ) for this tree is in the order of 12 metres in radius from the centre of the stem. The proposed trench is considered to be a major encroachment within the TPZ as all root activity to support a healthy and vigorous tree will be severed by open trenching 3 metres to the north of the stem.

As there is a major encroachment within the TPZ a review of the SRZ is also required. As mentioned above the SRZ is 3.77m in radius from the centre of the stem. The SRZ is the area required for the stability of the tree. The proposed trench is well within the limit of the SRZ and as such may influence the stability of the tree as structural roots are highly likely to be encountered and possibly severed.

Council’s Manager City Presentation recommends an alternate path for stormwater discharge to Kite Street or the use of boring rather than trenching to the lay the pipes. An alternate path to Kite Street is not possible as the required grade is not achievable. With regards to the boring option, there are limitations on the size of pipes that can be bored. The alternate engineering solution suggested by Council Technical Services Division that involves piping to the roundabout requires the installation of two x 225mm-300mm diameter pipes; it is not feasible to bore when installing a pipe of this diameter.

In summary, the stormwater detention design as proposed by the applicant is unacceptable from a residential amenity perspective; and the alternate improved engineering solution (piped to the roundabout) is not acceptable either as Council staff cannot, with any degree of certainty guarantee the health and survival of the large Deodar Cedar (Cedrus deodara) to the north of the former mansion. Accordingly, the stormwater design of the development is unsatisfactory and is one of the reasons the development should not be approved.

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.

It is noted that an existing bore is located in the far north-eastern corner of the site. This bore is likely to have been established as part of the irrigation system to maintain the bowling greens and the landscaped setting around the former mansion.

The bore would be located within the rear yard of Dwelling 9 in the north-eastern corner of the proposed lot. Council staff were not able to obtain any licencing details for the subject bore. However, it is likely that the developer or future occupants of Dwelling 9 would need to speak with the NSW Office of Water to establish if the licence needs to be reclassified in the event the bore is intended to be maintained.

From a planning point of view, there will be an obvious diminution of water usage as a result of the bore transferring to a domestic scale of use, and as such there would be no objections to the bore being retained and used for domestic purposes only.

There are no other aspects of the development that would have a detrimental impact on the existing ground water within the City.

Clause 7.11 - Essential Services

Clause 7.11 has the effect of ensuring that 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, gas and telecommunications are also available to the land.

It is noted that the design of the driveway system of proposed Lot 100 (battleaxe lot) with the two right angle turns will not allow a firefighting appliance to practically enter the site (past the first 90 degree turn) and leave the site in a forward direction.

This will mean that a private domestic hydrant system will need to be installed in the common property of Lot 100 - likely to be to the left of the garage attached to proposed Dwelling 3. The positioning of this hydrant is important so that the maximum 90m (three (3) hose lengths) hose coverage can be achieved to all dwellings within the site. If this is not able to be achieved, the furthermost dwelling (Dwelling 9) may need a domestic sprinkler system installed within the dwelling. These requirements are set out in the Fire and Rescue NSWs Fire Safety Guidelines: Fire hydrants for minor residential development Version 02. Should Council be of a view to approve the development it will be necessary to impose conditions that ensure compliance with the aforementioned guideline. Additionally, the positioning of the hydrant is important so as not to impact upon the streetscape. As such, the terms of the condition must be written in a way whereby the hydrant is located as far into the site as practicable taking into account the requirements of the aforementioned guideline. A hydrant booster within the street or adjacent to the front boundary would not be acceptable.

The development is able to be made consistent with the above clause by condition.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

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

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

The land has a long history, being used for recreational purposes as a bowling club dating back to 1955, with two bowling greens in the location of the proposed residential development. As such, given the change of use to a residential use, subclause (2) requires a preliminary investigation to be submitted with the application. Envirowest Consulting (report ref. R7443c2) have completed a preliminary contamination investigation which acknowledges the use of pesticides and herbicides over the bowling greens as part of the day-to-day maintenance of the greens. The report tested the site (including greenkeeper's shed, car park and storage areas) for heavy metals and organochlorine pesticides. The report concluded that no further investigation is necessary and the site is suitable for residential development.

Notwithstanding this, should Council be of the view to approve the development it would be necessary to impose Council's standard precautionary condition that deals with the unlikely event of unexpected contamination being encountered.

State Environmental Planning Policy (Infrastructure)

State Environmental Planning Policy (Infrastructure) is applicable to the development, specifically clause 45. This clause applies when there is electricity infrastructure within or adjacent to a development site and gives the supply authority the opportunity to comment on the development from a safety point of view.

In this case there is a low voltage connection line that crosses Kite Street from in front of 52 Kite Street and connects to a pole in the footpath on the northern side of Kite Street. The line also provides street lighting. The subject line and pole will need to be moved or the line laid underground and a new street light provided by other means as the pole is in the location of the proposed gutter bridge footpath crossover.

Essential Energy (being the relevant supply authority) have advised no objections to the development provided the following requirement (amongst others) is met:

The existing low voltage overhead power line connection to Lot 1 and Lot 2 in DP1127220 may need to be disconnected and/or relocated – refer to Essential Energy’s Contestable Works Team for requirements. The Applicant should engage the services of an Accredited Service Provider who will guide them through this process.

If Council is of a view to approve the development, the above requirement and the other standard requirements from Essential Energy will need to be imposed as conditions and/or advisory notes on the consent.

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

It is noted that the Planning Proposal that applies to the land has been exhibited, with the post-exhibition report being considered at the same meeting as this report. The planning proposal seeks to rezone the Newstead and its curtilage (effectively the same area of land as proposed lot 101) to B4 Mixed Use. Additionally, a floor space ratio and building height development standards will also be included over the land.

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. Chapters of the DCP relevant to the proposed use and development include:

· Chapter 0 - Transitional Provisions;

· Chapter 2 - Natural Resource Management;

· Chapter 3 - General Considerations;

· Chapter 4 - Special Environmental Considerations;

· Chapter 5 - General Considerations for Zones and Development;

· Chapter 7 - Development in Residential Zones;

· Chapter 13 - Heritage; and

· Chapter 15 - Car Parking.

CHAPTER 0 - TRANSITIONAL PROVISIONS

Section 0.2 - General Translation of Zones

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

The table identifies that the R1 General Residential zone corresponds with the 2a Urban Residential zone for the purposes of the DCP. Accordingly, Chapter 7 is of primary relevance to the assessment of the residential development.

As acknowledged above, a 3.4m² area of land in the far north-eastern corner of the site is identified as B4 Mixed Use zoned land. This part of the site relates to the private open space of Dwelling 9. There are no aspects of the DCP that conflict with this small area of land, and there is no essential or practical requirement to assess the small area of land under a separate section of the DCP or as a separate consideration.

CHAPTER 2 - NATURAL RESOURCE MANAGEMENT

Section2.1 - Water Quality

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

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

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

Section 2.2 - Soil Resources

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

Council’s Technical Services Division has recommended a condition of consent requiring that the development is to be constructed in accordance with Council’s Development and Subdivision Code. Should Council be of the view to approve the development it will be necessary to impose this condition.

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

CHAPTER 3 - GENERAL CONSIDERATIONS

Section 3.1 - Cumulative Impacts

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

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

Section 3.2 - Scenic, Landscape and Urban Areas

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

The area is a significant and important heritage precinct. For the sake of avoiding repetition these considerations are addressed below under the considerations of the Infill Guidelines.

Section 3.4 - Waste Generation

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

The application involves minor demolition in the form of buildings and structures ancillary to the bowling greens.

Council’s Building Surveyor has indicated that should Council be of a view to approve the development, it will be necessary to impose conditions that relate to the demolition component of the development.

CHAPTER 4 - SPECIAL ENVIRONMENTAL CONSIDERATIONS

Section 4.1 - Sewage Disposal

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

It is noted that an existing Council sewer main traverses the site. Should Council be of a view to approve the development it will be necessary for the existing sewer to be relined; and construction of new sewer mains to connect to Council’s existing sewerage system will also be necessary.

Section 4.3 - Land Shaping

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

The relevant matters have previously been addressed under the heading “7.1 ‑ Earthworks”.

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

Section 4.4 - Contaminated Land

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

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

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

CHAPTER 5 - GENERAL CONSIDERATION FOR ZONES AND DEVELOPMENT

Section 5.3 - Advertised Development

The development is a kind that requires formal advertising and notification. As outlined above, Council staff undertook advertising and notification on three separate occasions due to substantial changes to the design and confusion arising out of the exhibition material.

At the end of those periods a total of 26 written submissions were received (broken down as 6 during the first exhibition period, 13 during the second exhibition period and 7 during the third exhibition period). It is noted that a number of submitters furnished submissions during all three exhibition periods - of those, some made new submissions, while others reiterated previous comments. A detailed assessment of the issues raised by the submitters is provided under the heading “Any Submissions Made in Accordance with the Act”.

CHAPTER 7 - DESIGN ELEMENTS FOR RESIDENTIAL DEVELOPMENT

The development is essentially three stages (or three separate developments within the one application (which the EP&A Act allows for)); being a four lot Torrens Title subdivision, construction of nine dwellings (two dwelling houses and seven dwellings as part of the multi dwelling housing component) and finally, a Community Title subdivision over the multi dwelling housing component. The following DCP assessment addresses the relevant DCP provisions in the order of staging of the development.

STAGE 1 - FOUR LOT TORRENS TITLE SUBDIVISION

The DCP sets the following (applicable) Planning Outcomes in regard to urban residential subdivision:

· Lots are orientated to optimise energy-efficiency principles.

The subject lots, particularly Lots 102 and 103, will have a north-south orientation, and being located on the northern side of Kite Street provide the potential for the design of future dwellings to provide north orientated private open space and rear living rooms with northerly aspects. The battleaxe lot will result in the same orientation and potential for appropriately orientated open space areas of future dwellings. Orientation of Lot 101 (containing the former mansion) is appropriate, however is less important given the future zoning to B4 Mixed Use. Notwithstanding, should the mansion be returned to a dwelling use, then the orientation is appropriate and would allow for private open space with a northerly aspect.

The development is consistent with the above planning outcome.

· Lots are fully serviced and have direct frontage and access to a public road.

The proposed lots will each have direct street frontage and legal and practical access to Kite Street. Separate access will be provided to the proposed lots via vehicle crossings and driveways. Council’s Technical Services Division has advised of no objections to the proposed access arrangements. It is noted that due to the grade of the footpath, an extension of the existing gutter bridge on the neighbouring property to the west will be required for proposed Lots 100 and 103. Lot 102 will require a similar treatment but separate.

As noted below, the new access points will impact upon the visual quality of the Heritage Conservation Area and reduce the availability/supply of on-street parking. This is further addressed below.

· Design and construction complies with the Orange Development and Subdivision Code.

The subdivision design and construction will be required to comply with the Orange Development and Subdivision Code. Should Council be of a view to approve the development, it will be necessary to impose conditions that require the development to be consistent with the Orange Development and Subdivision Code.

· Battleaxe lots provide an adequate accessway width for the number of dwellings proposed to be served in order to allow for vehicle and pedestrian access and location of services.

The battleaxe lot is proposed with a 7m wide access handle at the street frontage, which reduces to 6m wide approximately 12m from Kite Street. A 4.5m driveway will be provided to service the future multi-dwelling housing. The circulation of vehicles within the site is considered under Stage 2 of the development below.

Council’s Technical Services staff raise no objections to the proposed accessway width proposed as part of the subdivision.

The size of the battleaxe lot is well above the DCP's requirement of 650m² for battleaxe lots.

Generally speaking, the size and shape of the lots and the existing topography of the land will result in lots that will provide suitable residential amenity to occupants of future dwellings upon the proposed lots.

Car Parking

A car parking assessment is not a typical consideration at subdivision stage as car parking rates are attributed to a land use. However, the scenario proposed by the applicant, whereby an area of parking attributed to the former club is being subdivided and replaced by dwellings, makes it a necessary consideration at the subdivision stage.

In order to fully appreciate the car parking situation that occurs as a result of the proposed subdivision, the number of existing spaces being lost needs to be established along with establishing the practical number of spaces that can fit within Lot 101.

A hand drawn plan (dated Nov. 2004) on Council’s file shows the provision of 7 spaces at the front of the site in the area where Dwellings 1 and 2 (Lots 102 and 103) are proposed.

It needs to be acknowledged that these spaces are being removed and there is only a certain amount of area within the curtilage of the heritage item on proposed Lot 101 where parking can be provided without impacting upon the setting of the heritage item.

It also needs to be acknowledged that the submitted plans show the provision of 7 spaces to the south of the heritage item. These spaces are highly constrained in terms of vehicles being able to practically enter and exit these spaces. For example, the isle width for spaces 1-3 measures less than 5m, which does not meet the applicable Australian Standard.

Based on this assessment it estimated that the likely maximum number of physical spaces able to be practically provided on the lot containing the Newstead building (Lot 101) without impacting upon the setting would be 4 spaces.

The applicant has not nominated a specific land use for the Newstead building at this time; and with the impending re-zoning to B4 Mixed Use, the array of permissible uses in that zone varies from returning the building back to a substantial single dwelling, retail shops, restaurants or cafes; or some form of tourist accommodation, for example.

All Council staff can possibly do at this stage is assess the availability of parking as a result of the subdivision and flag that any future development will need to accord with Council’s DCP to avoid an unacceptable environmental impact in the locality.

It should be noted that the site falls within the car parking contributions catchment area. This means that, subject to an acceptable level of environmental impact, a shortfall in off-street parking under a future development application for the use of the former club could theoretically be addressed via a monetary contribution in lieu of the physical spaces on the land.

Based on the possibility that the development could be returned to a dwelling (at which point the level of car parking would be acceptable, notwithstanding the absence of a covered parking space), it is not reasonable (in the Wednesbury sense) for the development to be refused on car parking grounds as part of this application.

Finally, in light of the unsatisfactory car park design within the Kite Street frontage of the former mansion, for the avoidance of doubt or ambiguity in the future, a condition should be imposed (if Council is of the view to approve the development) that indicates those spaces are not approved.

On a separate but related matter, the subdivision (with the requirements for legal access to a public road under the Torrens Title system), removes the availability of (conservatively) three to four parking spaces within the street. This goes to the suitability of the development, where a more appropriate design with a single driveway system could reduce this number of lost spaces.

Heritage

Subdivision of land has the ability to have a long lasting effect on a particular place or precinct, particularly so when excising a heritage item is involved. As such, careful consideration needs to be given to the effect proposed boundaries will have on the heritage significance of the item, and more importantly the curtilage around the heritage item. The proposed lot that will contain the heritage item (lot 101) is considered to be reasonable. The provided curtilage will include the landscape setting that forms part of the mansion's heritage significance.

Additionally, the existing curved retaining wall that manages the change in ground level between the mansion and the bowling greens has been included within the curtilage of the heritage item as an interpretation and recognition or reminder of the former bowling greens.

It should also be noted that in order to achieve the desired heritage outcomes (i.e. remove the presence of garages being visually dominant in the street and provide a greater setback of a dwelling on Lot 102), it may be necessary to devise a different subdivision pattern to achieve those outcomes.

Council staff raise no objections to the proposed four lot Torrens Title subdivision from a heritage conservation perspective.

STAGE 2 - DWELLINGS HOUSES (TWO) AND MULTI DWELLING HOUSING

Residential Design Objectives

· To ensure that the development fits into its setting and environmental features of the locality.

· To ensure that the appearance of housing is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

· To ensure that new development complements places with heritage significance and their settings in a contemporary way.

· To develop a sense of place with attractive street frontages.

· To encourage visually appealing cohesive streetscapes.

· To create a safe and secure environment.

· To provide consistent design elements that protect private investment.

The development is inconsistent with the above objectives. As further outlined below, the design of Dwelling 1 and the design and siting of Dwelling 2 will be incongruous with the surrounding heritage setting, and will result in an incompatible infill development that will visually disrupt and unacceptably detract from an existing high quality streetscape.

Heritage

The DCP sets the following Planning Outcomes in regard to Heritage:

· Heritage buildings and structures are efficiently re-used.

· New development complements and enhances the significance of a heritage item or place of heritage significance listed in the Orange Heritage Study.

· Significant landscape features are retained including original period fences and period gardens.

NOTE - In heritage settings these criteria override other criteria in this Plan [emphasis added]

The above note indicates that in a heritage setting, the heritage provisions contained within the DCP are a higher level of importance in the assessment of a development than any other provision, to the extent that they override other provisions contained in the plan. Accordingly, the following DCP assessment places a focus on the heritage provisions. It also makes sense to address the infill guidelines at this point to consolidate the relevant heritage consideration to one section of the report. When addressing the “other criteria” below, if that criteria has been addressed earlier in the report under this (heritage) section, it is noted as being the case.

As mentioned throughout the report and as outlined in detail below under the considerations of the Infill Guidelines, the design of Dwelling 1 and the design and siting of Dwelling 2 will have unacceptable impacts upon the significance of the heritage item on the land, the significance of the Central Heritage Conservation Area and the significance of heritage items within the vicinity of the subject land.

The development is in direct conflict with the above planning outcome, which seeks to ensure that new development complements and enhances the significance of a heritage item or place of heritage significance listed in the Orange Heritage Study as described in detail below. The conflict with the planning outcome principally arises with the presentation of the garages and the siting of dwelling two as outlined in detail below.

INFILL GUIDELINES

Council’s Infill Guidelines have been prepared to provide an assessment framework for developments located in heritage settings to ensure good quality and sensitive design outcomes. The framework is structured to guide development in heritage settings under five key heads of consideration, namely:

· Character

· Scale and Form

· Siting

· Materials and Colour

· Detailing

As noted above, the subject land is identified as a heritage item listed within Schedule 5 of Orange LEP 2011. The land is also located within the Central Heritage Conservation Area as defined by the heritage maps contained within Orange LEP 2011.

The subject land is also located opposite, adjoins or is in close proximity to the following heritage items as shown on the above figure 9:

· I6 – "Mena" dwelling – 50 Kite Street (opposite subject land)

· I146 – dwelling (former residence of the late Sir Charles and Lady Cutler) – 52 Kite Street (opposite subject land)

· I44 – dwelling – 56 Kite Street (opposite subject land)

· I179 – dwelling – 50 Hill Street (opposite subject land)

· I41 – Heritage House - "Gortnessy" – 58 Summer Street (adjoins the subject land at the north-western corner)

· I144 – "The Channings" dwelling – 39 Kite Street (in proximity of subject land)

· I143 – dwelling – 37 Kite Street (in proximity of the subject land).

Objectives of Infill Design

The development is patently inconsistent with a number of the objectives of infill design listed within the guidelines, namely;

· To ensure new buildings respond to and enhance the character and appearance of the streetscapes of the Heritage Conservation Areas.

· To ensure new buildings do not adversely affect the significance, character or appearance of the Heritage Conservation Area or heritage items.

· To allow for reasonable change within a Heritage Conservation Area while ensuring all other heritage objectives are met.

The inconsistency with these objectives further demonstrates that the development is unacceptable.

Character

The submitted SoEE provides a good assessment of the character of the location. The statement indicates that:

Kite Street, particularly in the vicinity of the subject land and the proposed new dwellings is recognised as an important streetscape that is characterised by the following:

· Intact rows of mostly single storey dwellings with relatively consistent setbacks.

· Older style buildings. The buildings, particularly in the vicinity of the subject land, date from the late 19^th century to the early-mid 20^th century. The property immediately adjacent to the western boundary of the subject land comprises a relatively later 20^th century dwelling (circa 1960s) which faces Kite Street.

· Dwellings that present to the street with a 2 to 3 room wide façade/ reflective of older style buildings, roof pitch is generally steeper than typical modern building forms and window proportions have a vertical emphasis.

· Narrow driveways alongside dwellings that lead to garages at the rear. Whilst the neighbourhood is characterised by garages that are set to the rear of residential properties (largely out of view), there are some instances where the garages are evident in streetscape views [our emphasis].

· Dwellings that generally relate to the existing landform consistently and without obvious cut or fill earthworks. The subject land itself rises more than others above the road and footpath. This is evident by the retaining wall and fill at the front of the site.

· Important contributory vegetation attributed to:

o Landscaped front yards, many of which contain larger ornamental deciduous trees.

o Well established large deciduous street trees which are planted in the road reserve between the traffic and the kerb.

o The established trees sit within the northern, eastern and south eastern curtilage of the Newstead building within a well landscaped yard.

o Cook Park vegetation which forms an important backdrop.

· Front fences in a range of (mostly sympathetic) styles.

· Occasional infill development that occurs behind the older established homes. In particular, an infill development of relatively new single dwellings (circa 2005 to 2015) is adjacent to the western boundary of the subject land.

· Various local landmarks including:

o Cook park

o “Mena”, a heritage item of state significance

o The “Newstead” building itself.

Council staff agree with the above character assessment. The area concerned is one of the most significant precincts within the City. Garages in the immediate streetscape are an uncommon element. Those few that are present in the immediate area are listed and described below:

· 48 Kite Street – detached double garage located in generous landscaped front setback area. The garage is designed in a way whereby it does not present to the street. Additionally, the site is constrained in terms of where a suitable garage could be provided elsewhere within the site.

· 46 Kite Street – brick wall in line with the front building line. Arched single vehicle opening and metal gates.

· 39 Kite Street “The Channings” – double garage located approximately 18.5m from front boundary. This was identified within the URBIS HIS as being an example of similar garages within the locality. Council staff disagree that this is a comparable example. The garage has been integrated into the site in a way whereby it appears that the garage is detached from and located to the rear as a subservient ancillary building, whilst ensuring the prominence of the heritage item is retained from all vantage points.

Figure 10 - 39 Kite Street “The Channings” - example of an acceptable garage integration

39 Kite Street noted above serves as an example of how a garage could be successfully integrated into a heritage context.

Council’s Heritage Advisor holds the view that proposed Dwellings 1 and 2 will have a substantial detrimental impact upon the significance of the area concerned, including the Newstead building, the Central Heritage Conservation Area and important heritage items in the locality for the reasons outlined throughout the report. The adverse impact upon the character of the area is such that the application should not be supported.

Scale and Form

The scale of a building is essentially its size in relation to buildings in the area. The size of the dwellings will be single storey, with 9 foot ceilings and 27 degree pitch roofs. The scale of the development is not incompatible with the immediate area. Council’s Heritage Advisor has not raised the scale of the development as being unsatisfactory as there are examples in the area of dwellings similar in size or larger, such as the two storey dwelling at 39 Kite Street.

It is noted that with the change in ground level between the front of the site and the existing height of the bowling greens results in Dwelling 3 and in particular Dwelling 4 (as viewed through the space between Dwelling 2 and the Newstead Building) results in dwelling 4 sitting above the gutter height of the heritage item. This is shown in the below photomontage.

Whilst the second row of dwellings will sit above the heights of the front dwellings and the heritage item, the resultant impact from this is considered secondary to the principle impacts that occur as a result of attached double garages and the siting of Dwelling 2 as described below.

Figure 11 - photomontage providing an impression of the development's appearance within the street

Form relates to a building's overall shape and volume and the arrangement of its parts.

The form of the two dwellings at the front of the site with attached double garages fronting Kite Street is inconsistent will predominant building form in the locality. The prevailing form of dwellings comprise habitable rooms with windows presenting to the street with verandahs and other architectural detailing. As such, the form of the subject dwellings with attached double garages is consistent with the theme of built form in the street, and as such will be incompatible in the street.

Additionally, the window shown in the front elevation of Dwelling 1 presents with square proportions. The prevailing style of windows within the conservation area are windows with vertical proportions. As such, should Council be of the view to approve the development, this window should be deleted and replaced with two symmetrically positioned and vertically proportioned timber sliding sash windows. This should be addressed via a condition.

The forms of Dwellings 1 and 2 are in consistent with Council’s Infill Guidelines.

Siting

Appropriate siting of infill development - how and where development is positioned in relation to the road, front and side boundaries and built form on adjoining land - is crucial in ensuring a harmonious, cohesive and compatible development outcome in a heritage setting. The Guidelines further state that development should retain the building-to-space theme predominant in the area, including driveway widths.

In terms of siting, the main considerations of the development therefore relate to front setbacks, the space between dwellings (particularly relating to Dwellings 1 and 2 given they have street frontage) and the widths of driveways.

In terms of front setbacks, proposed Dwelling 1 will have a front setback of 7m to the front line of the verandah, 8.2m to the building proper and 12.2m to the attached garage. Proposed Dwelling 2 will have a front setback of 7.6m to the front building line and 12.26m to the attached garage.

The front setbacks of Dwellings 1 and 2 have clearly been established based on a relationship with the setbacks of dwellings to the west, rather than also considering the relationship with the heritage item on the land to the east. Council’s Heritage Advisor does not support the setback of Dwelling 2. Council staff requested that the development be designed in a way whereby Dwelling 2 could be afforded a greater setback that has a more appropriate relationship with the former mansion. The applicant in response has set Dwelling 2 back an additional 700mm. To achieve the recommendation from Council’s Heritage Advisor, it would have been necessary to have provided Dwelling 2 with a setback equal to or greater than the red line shown in the below figure.

Figure 12 - nominal setback recommended by Council’s Heritage Advisor

The proposed siting of Dwelling 2 will have a significant adverse impact upon the streetscape and the significance of the heritage item on the land.

The other consideration of siting relates to the widths of driveways. The design of the development will result in three contiguous footpath crossings - being 45 Kite Street, Lot 100 and Lot 103); plus a further three driveways - being Lot 102 and the two existing driveways serving the southern side of the Newstead building.

Council’s Photoshop consultant has prepared a photomontage impression of what the proposed driveway arrangement will look like in the street. As can be observed from the below figure, there are no examples in the area of similar accessways, in terms of width, extent of concrete and concentration. This too will have a significant impact upon the streetscape.

Figure 13 - photomontage (prepared by Council's consultant) depicting the extent of the accessways

Materials and Colour

A detailed external materials: Colours and Finishes schedule has been submitted with the application. The materials comprise dry pressed face brick (all dwellings to be the same colour brick - PGH Gledswood blend above floor level and PGH Mowbrey blend below floor level intended to interpret the traditional bluestone foundations), Colorbond roof sheeting (colour alternating between dwellings with either Basalt [Dwelling 1 for example] or Shale Grey [Dwelling 2 for example]), quad gutters, metal fascia, circular downpipes and panel lift garage doors.

Council’s Heritage Advisor previously provided guidance around the external materials and colours, such as the primary face bricks with contrasting blue coloured sub-floor bricks to interpret the vernacular architecture in the locality of dwellings having bluestone foundations. The applicant has incorporated those previous recommended materials into the design.

However, Council’s Heritage Advisor indicates that there are several design elements that remain in conjecture which relate to the following:

· The brick piers as verandah details with the posts are inconsistent with a design approach which interprets heritage character without imitation. The brick bases could be deleted and the posts extended;

· Aluminium windows on the front elevations are inconsistent with the character and details appropriate for the Conservation Area streetscape and a site in the vicinity of heritage items. All windows to the two Kite Street dwellings could be timber with an appropriate timber stain finish; and

· The gable infill elements are inconsistent with a design approach which interprets heritage character without imitation. They could be contemporary painted fibre cement vertical panels with vertical recessed 15mm joints in place of the cover battens.

· The fence pier proposal is inconsistent with details, materials and colours which are sympathetic with the heritage details in the streetscape. A suitable modification would be nominal 470mm max width to the piers an their material to be the selected face brick with brick capping and mortar coloured to match the brick

· The indicated bricks are acceptable. All mortar jointing material is to be coloured to reflect the brick colour so as to produce a contemporary interpretive character

Should Council be of a view to approve the development, it will necessary to impose conditions that amend the development to reflect the above advice.

Detailing

The key consideration concerning detailing comes with ensuring important features common to the area are carried over and interpreted in contemporary way within the infill development - this could be chimneys, verandahs, window awnings etc.

The detailing adopted within the design, particularly Dwellings 1 and 2 will comprise verandahs, gable ends for Dwelling 2 and simple windows. Except as required to be amended elsewhere, the detailing adopted within the design is acceptable.

A landscape plan has been submitted in support of the proposal which shows the provision of soft landscaping in the form of three Crepe Myrtles, two Magnolia Royal Crowns and turf within each of the frontages of Dwellings 1 and 2; and rows of hedges or groundcovers adjacent to driveways. Hard landscaping consists of the three driveways and a central path from the footpath to the front verandahs of Dwellings 1 and 2. The hard landscaping is intended to be Boral Colori - “Graphite” coloured concrete.

As mentioned above, the extent of concrete or the ratio of hard to soft landscaping within this section of Kite Street will be excessive and will have a significant detrimental impact upon the streetscape. The development is unsatisfactory in this regard.

Despite the context and setting of the land lending itself to a more elaborate or sophisticated landscape scheme commensurate with the level of landscaping evident within the front setbacks of properties in the immediate vicinity, particularly the mansion’s setting, what has been proposed will achieve baseline objectives of softening hard edges, breaking up the front elevations and trees that will (albeit confined in a localised way due to their mature heights) add to the tree canopy and foliage of the conservation area.

The development is considered satisfactory in regard to the proposed soft landscaping.

Neighbourhood Character

The DCP sets the following Planning Outcomes in regard to Neighbourhood Character:

· Site layout and building design enables the:

- creation of attractive residential environments with clear character and identity

- use of site features such as views, aspect, existing vegetation and landmarks

· Buildings are designed to complement the relevant features and built form that are identified as part of the desired neighbourhood character.

· The streetscape is designed to encourage pedestrian access and use.

The character and identity of a particular area is influenced by the intricate interrelationship of the public and private realms, taking into account the qualitative interplay of built form, vegetation and topographic characteristics; all of which contribute to creating a unique neighbourhood character.

It is often difficult to distinguish or separate a neighbourhood character assessment from a heritage character assessment, as the one intrinsically influences the other to a certain extent.

For the sake of brevity and to avoid duplication, the character of the area is addressed above under the infill guidelines.

Building Appearance

The DCP sets the following Planning Outcomes in regard to Building Appearance:

· The building design, detailing and finishes relate to the desired neighbourhood character, complement the residential scale of the area, and add visual interest to the street.

· The frontages of buildings and their entries face the street.

· Garages and car parks are sited and designed so that they do not dominate the street frontage.

The design, detailing and finishes (which encompass the composition of Dwellings 1 and 2 with attached double garages) have been addressed in detail above under "Infill Guidelines".

Setbacks

The DCP sets the following Planning Outcomes in regard to Setbacks:

· Street setbacks contribute to the desired neighbourhood character, assist with the integration of new development and make efficient use of the site.

· Street setbacks create an appropriate scale for the street considering all other streetscape components.

Setback considerations have been addressed under the siting considerations within the Infill Guidelines.

Front Fences and Walls

The DCP sets the following Planning Outcomes in regard to Fences and Walls:

· Front fences and walls:

– assist in highlighting entrances and creating a sense of identity within the streetscape.

– are constructed of materials compatible with associated housing and with fences visible from the site that positively contribute to the streetscape

– provide for facilities in the street frontage area such as mail boxes.

The design and detailing of the proposed front fence is considered above under the Infill Guidelines.

Council’s Technical Services staff have advised that the proposed fence on the common boundary between the proposed access handle of Lot 100 and the adjoining land to the west (being Lot 1 DP 286384) is required to be deleted. This is to ensure adequate sight distances are maintained for vehicles exiting the common property and pedestrians using the footpath. Should Council be of a view to approve the development it will necessary to impose a condition that deletes the subject length of fence from the development.

Bulk and Scale Objectives

· To allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring developments.

· To encourage the sharing of views, while considering the reasonable development of the site.

The development in not inconsistent with the above objectives as detailed below.

Visual Bulk

The DCP sets the following Planning Outcome in regard to Visual Bulk:

· Built form accords with the desired neighbourhood character of the area with:

- side and rear setbacks progressively increased to reduce bulk and overshadowing

- site coverage that retains the relatively low density landscaped character of residential areas

- building form and siting that relates to landform, with minimal land shaping (cut and fill)

- building height at the street frontage that maintains a comparable scale with the predominant adjacent development form

- building to the boundary where appropriate.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory. The proposed dwellings will be single storey, consistent with the majority of established form of residential development in the locality.

The DCP requires dwellings to be contained within the prescribed envelopes generated by planes projected at 45^o over the site commencing 2.5m above existing ground level from each side and rear boundary. The development is assessed at this point based the boundaries that will exist at the time of the construction of the dwellings. A further assessment is required under the final subdivision stage (community title subdivision) to determine if the proposed boundary positions are satisfactory with respect to the visual bulk considerations.

It is noted that a minor encroachment will occur for the east facing gable end (eastern elevation) of Dwelling 2. This encroachment is considered minor and will not have a detrimental impact upon the significance or amenity of the adjoining heritage item. The encroachment relates to a 3.5m long gable roof element. The impact experienced by the encroachment within the prescribed visual bulk envelope will not be substantial, and as such is considered acceptable.

The other visual bulk encroachment relates to a minor amount of the eastern elevation of Dwelling 9 experienced in the rear yards of the adjoining properties in Hill Street. The encroachment relates to a small section of eave and gutter only. Given the area where the impact would be experienced is the very rear yard of the properties in question, coupled with the small amount of building that encroaches, the extent of the impact will be minimal.

The development is acceptable with regards to visual bulk considerations.

Site Coverage

The DCP requires site coverage for single dwellings to be not more than 60% and in circumstances where there is more than one dwelling on the land the allowable site coverage is 50%.

Dwelling	Footprint	Site Area	Site Coverage
1	253.52m²	562.6m²	45% (60% maximum)
2	238.79m²	549.9m²	43% (60% maximum)
3-9	1525.97m² (aggregate footprint)	3680.6m²	41% (50% maximum)

The proposed development is consistent with the site coverage requirement for single dwellings and multi dwelling housing.

Walls and Boundaries

The DCP sets the following Planning Outcome in regard to walls and boundaries:

· Building to the boundary is undertaken to provide for efficient use of the site taking into account:

- the privacy of neighbouring dwellings and private open space

- the access to daylight reaching adjoining properties

- the impact of boundary walls on neighbours.

The subject dwellings are appropriately positioned within the site so as to achieve an acceptable level of visual privacy and solar access to neighbouring properties. The positioning of proposed walls will not result in any unsatisfactory amenity impacts to adjoining residential properties.

Daylight and Sunlight

The DCP sets the following Planning Outcome in regard to Daylight and Sunlight:

· Buildings are sited and designed to ensure:

- daylight to habitable rooms in adjacent dwellings is not significantly reduced

- overshadowing of neighbouring secluded open spaces or main living area windows is not significantly increased

- consideration of Council’s Energy Efficiency Code.

Solar Access to Dwellings

According to the DCP Guidelines and Council’s Energy Efficiency Code, sunlight to at least 75% of north-facing living area windows within the development and on adjoining land is to be provided for a minimum of four hours on 21 June, or not further reduced than existing where already less.

Solar Access to Private Open Space

According to the DCP Guidelines and Council’s Energy Smart Homes Code, sunlight is to be available to at least 40% of required open space for dwellings within the development.

Shadow diagrams have been prepared in support of the proposed development. In consideration of the DCP Guidelines, the proposal is considered to be satisfactory as outlined below.

The orientation of the subject land and its location on the northern side of Kite Street means that the development will not result in any unsatisfactory impacts as a result of over shadowing. The closest external property (4/45 Kite Street) will not be unreasonably affected by the proposed. This is principally due to the orientation and the design of 4/45 Kite Street, where a garage and storage area adjoin the eastern boundary.

In terms of assessing the level of solar access available to the dwellings within the development, this task has been challenging owing to a number of errors identified within the submitted shadow diagrams.

Notwithstanding the identified errors with the shadow diagrams, the development complies with the minimum requirements for solar access to private open space areas. It is noted that the proposed internal fencing is nominated at 1.8m in height. It is considered that there are limited reasons from a privacy point of view, or any other planning reason, to require internal fencing at 1.8m in height. The relationship of floor levels between proposed dwellings and the positioning of opposing private open space areas is not such that 1.8m high fencing would be warranted. As such, in order to improve the levels of overshadowing for each private open space area within the development, the internal common boundary fencing should be reduced from 1.8m down to 1.5m. This would need to be imposed as a condition of consent if Council approves the development.

Views

The DCP sets the following Planning Outcomes in regard to Views:

· Building form and design allow for residents from adjacent properties to share prominent views where possible.

· Views including vistas of heritage items or landmarks are not substantially affected by the bulk and scale of the new development.

The subject site is not within an important view corridor.

The proposed siting of Dwelling 2 will interrupt the view lines of significant features of the heritage item such as the widow's walk element within the roof from within the footpath when standing to the west of the subject land looking toward the Newstead building. Providing a transitional setback for Dwelling 2 (ie a greater setback to that which is proposed) as suggested above would assist in retaining some of the existing levels of views of the important features of the heritage item from within Kite Street.

This goes to the appropriateness of the design and siting of those dwellings within the Kite Street frontage.

Privacy and Security Objective

· To ensure that the siting and design of buildings provide privacy for residents and neighbours in their dwellings and principal private open space.

The development is not inconsistent with the above objective as detailed below.

Visual Privacy

The DCP sets the following Planning Outcome in regard to Visual Privacy:

· Direct overlooking of principal living areas and private open spaces of other dwellings is minimised firstly by:

- building siting and layout

- location of windows and balconies

and secondly by:

- design of windows or use of screening devices and landscaping.

The level of visual privacy is acceptable both within the development and external to the development. This will be achieved with appropriate fencing treatment and finished floor levels that relate to the existing situation, save for Dwelling 9.

With respect to Dwelling 9, its floor level has been set at the same level as the surrounding dwellings (FL878.70). However, the land slopes to the east, and as such the floor level at the eastern elevation is approximately 1.7m above natural ground level at the most extreme point. The proposed elevated floor level has the potential to overlook the rear private open space areas of adjoining properties within Hill Street. To ameliorate the potential visual privacy impacts, the submitted plans show privacy screening (1.7m above FFL) to occupiable elevated outdoor areas, high-light windows to bedrooms and frosted bathroom room widows. The proposed mitigation solutions employed into the design of Dwelling 9 are acceptable.

Externally, the rear yard will be terraced to adjust to the change in ground level. The submitted plan shows vegetation screening. This is not considered an acceptable design solution due to the time the vegetation takes to become effective, and then there is the possibility of the vegetation not surviving or being pruned. As such, to address the potential privacy issue related to the elevated terrace in the private open space of Dwelling 9, a fixed privacy screen would be required in addition to the screening plants. A condition to this effect would need to be imposed if Council was of a view to approve the application.

The development is considered acceptable with regards to visual privacy subject to the above described issues being addressed by conditions in the event Council are of the view to approve the development.

Acoustic Privacy

The DCP sets the following Planning Outcome in regard to Acoustic Privacy:

· Site layout and building design:

- protect habitable rooms from excessively high levels of external noise

- minimise the entry of external noise to private open space for dwellings close to major noise sources

- minimise transmission of sound through a building to affect other dwellings.

In consideration of the DCP Guidelines the proposal is considered to be satisfactory. The site is located in an area where ambient noise levels are expected to be low due to the predominant residential land use pattern. The dwellings are detached, thus limiting the potential for sound penetration between them.

Security

The DCP sets the following Planning Outcomes in regard to Security:

· The site layout enhances personal safety and minimises the potential for crime, vandalism and fear.

· The design of dwellings enables residents to survey streets, communal areas and approaches to dwelling entrances.

The siting and design of all nine dwellings is appropriate to maintain safety and minimise the potential for crime, vandalism and fear for residents. Habitable room windows will address either the public road or the common property, thereby providing opportunities for natural surveillance. The proposed landscaping and fencing will not restrict sightlines to public areas and will provide territorial reinforcement and delineate public and private spaces. Internal access to the dwellings will be available through the garages.

Site Access and Circulation Objectives

· To provide convenient and safe access and parking that meets the needs of all residents and visitors.

· To encourage the integrated design of access and parking facilities to minimise visual and environmental impacts.

The development is not inconsistent with the above objectives as detailed below.

Circulation and Design

The DCP sets the following Planning Outcome in regard to Circulation and Design:

· Accessways and parking areas are designed to manage stormwater.

· Accessways, driveways and open parking areas are suitably landscaped to enhance amenity while providing security and accessibility to residents and visitors.

· The site layout allows people with a disability to travel to and within the site between car parks, buildings and communal open space.

Dwellings 1 and 2 have direct street frontage to Kite Street and thus a reverse egress will be required, similar to other detached single dwellings in the area. The presence of the large street tree may make this manoeuvre challenging at times, however, Council’s Technical Services Division has not raised any objections to this arrangement.

The access to the multi-dwelling housing will be from Kite Street also. The submitted plans demonstrate that the design of the garages will allow a B85 vehicle to enter and leave each garage in no more than two movements. Additionally, vehicles will be able to enter and leave the site in a forward direction. The plans also demonstrate that an 8.8m medium rigid vehicle is able to be satisfactorily negotiate the elbow turns in the driveway and then, importantly, be able to complete a three-point turn and exit in a forward direction. It should be noted that a car and a truck will not be able to pass and, most likely in such a circumstance, the car would reverse until the truck had a clear exit. Whilst this is undesirable, the frequency of this scenario occurring would be quite rare, and as such on balance is considered acceptable.

It is noted that a standard firefighting appliance would not be able to travel the full length of the drive, nor turn around to exit in a forward direction if it were able to make it down the driveway. This is addressed above under the essential services considerations under the LEP.

Car Parking

The DCP sets the following Planning Outcomes in regard to Car Parking:

· Parking facilities are provided, designed and located to:

- enable the efficient and convenient use of car spaces and accessways within the site

- reduce the visual dominance of car parking areas and accessways.

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

The two separate dwellings at the front of the site will accommodate at least four vehicles off the street. This is achieved by the provision of a double garage for each dwelling and space to stack-park two additional vehicles.

In consideration of the DCP Guidelines for off-street parking for the multi-dwelling housing component, the proposal is considered to be satisfactory. According to the car parking table in the DCP, the development generates a parking requirement of 10.5 + 1.4 (visitor spaces) off-street spaces (based 1.5 spaces for each 3 bedroom dwelling + 0.2 per dwelling in visitor parking).

The submitted plans show provision for 16 off-street spaces in total - 14 off-street parking spaces in the form of attached double garages for each dwelling and two dedicated visitor spaces.

The proposed dwellings are considered satisfactory with regard to the allocation of off‑street parking.

Private Open Space

The DCP sets the following Planning Outcomes in regard to Private Open Space:

· Private open space is clearly defined for private use.

· Private open space areas are of a size, shape and slope to suit the reasonable requirements of residents including some outdoor recreational needs and service functions.

· Private open space is:

– capable of being an extension of the dwelling for outdoor living, entertainment and recreation

– accessible from a living area of the dwelling

– located to take advantage of outlooks; and to reduce adverse impacts of overshadowing or privacy from adjoining buildings

– Orientated to optimise year round use.

The following table demonstrates that each of the proposed dwellings is provided with open space that complies with the minimum requirement in terms of area.

*Dwelling*	*Living Area (excluding garage/porches/patios etc) (m²)*	*Private Open Space Required by DCP (m²)*	*Private Open Space Provided (m²)*
1	181.45	90.73	110.2
2	179.84	89.92	101.1
3	148.64	74.32	90.3
4	161.06	80.53	108.9
5	161.06	80.53	113.3
6	161.06	80.53	218.1
7	169.80	84.9	159.7
8	154.82	77.41	102.1
9	177.57	88.79	125.8

The areas of private open space for Dwellings 1 and 2 are provided behind the front building lines. The site plan confirms that the private open space (as calculated on the on the plan) for each dwelling will have a minimum dimension of 3m and the yards are able to provide an area of at least 5m x 5m with access to northern sun directly access from internal living spaces, consistent with the requirements of the DCP, save for Dwelling 6. With respect to Dwelling 6 a suitable area of 4m x 9m will be provided at the higher level of the yard, with the balance of the open space provided on the lower level accessed via stairs on the northern side of the yard.

The internal living area for each dwelling will connect to its respective area of private open space via French doors that open out onto a covered alfresco area. Each private open space area will be enclosed by 1.8m high lapped and capped timber fencing – however a condition is recommended to reduce this to 1.5m to improve solar access.

The applicant has adequately demonstrated compliance with the Planning Outcomes for private open space.

Open Space and Landscaping

The DCP sets the following Planning Outcomes in regard to Open Space and Landscaping:

· The site layout provides open space and landscaped areas which:

– contribute to the character of the development by providing buildings in a landscaped setting

– provide for a range of uses and activities including stormwater management

– allow cost effective management.

· The landscape design specifies landscape themes consistent with the desired neighbourhood character; vegetation types and location, paving and lighting provided for access and security.

· Major existing trees are retained and protected in a viable condition whenever practicable through appropriate siting of buildings, accessways and parking areas.

· Paving is applied sparingly and integrated in the landscape design.

Landscaping considerations are addressed above under the considerations of the Infill Guidelines.

Water and Soil Management Objectives

· To control and minimise the impact of stormwater run-off and soil erosion on adjoining land and downstream.

· To encourage reduced water wastage by reusing, recycling and harvesting stormwater.

The development is not inconsistent with the above objectives as detailed below.

Stormwater

The DCP sets the following Planning Outcomes in regard to Stormwater:

· Onsite drainage systems are designed to consider:

– downstream capacity and need for on-site retention, detention and re-use

– scope for on-site infiltration of water

– safety and convenience of pedestrians and vehicles

– overland flowpaths.

· Provision is made for onsite drainage which does not cause damage or nuisance flows to adjoining properties.

Refer to above assessment of the proposed stormwater design solution under the LEP considerations.

Erosion and Sedimentation

The DCP sets the following Planning Outcome in regard to Erosion and Sedimentation:

· Measures implemented during construction to ensure that the landform is stabilised and erosion is controlled.

Should Council be of a view to approve the development it will be necessary to attach conditions that ensure appropriate measure are employed on site to prevent sediment leaving the site and also ensure soils are appropriately stabilised.

STAGE 3 - SUBDIVISION - EIGHT LOT COMMUNITY TITLE

The DCP sets the following (applicable) Planning Outcomes in regard to urban residential subdivision:

· Lots below 500m² indicate a mandatory side setback to provide for solar access and privacy.

Not relevant as the design and siting of dwellings to be subdivided under this stage has been established under an earlier stage.

· Lots are fully serviced and have direct frontage and access to a public road.

The proposed lots will all have direct vehicular to the common property which has direct legal access to Kite Street. The lots will also be connected to relevant utility services (ie water, sewer, electricity and the like).

· Design and construction complies with the Orange Development and Subdivision Code.

The subdivision design and construction will be required to comply with the Orange Development and Subdivision Code. Should Council be of a view to approve the development it will be necessary to impose relevant conditions in this regard.

The location of boundaries and the size and shape of the proposed lots as part of the community Title subdivision are acceptable. The subject dwellings will be contained within the prescribed visual bulk envelopes, and the site coverage within all resultant lots will be below the 60% site coverage allowable for single dwellings.

DEVELOPMENT CONTRIBUTIONS PLAN 2017

The development has been assessed pursuant to Orange Development Contributions Plan 2017. The following tables itemise the contributions payable for the development. Should Council be of a view to approve the development it will be necessary to impose conditions requiring the payment of the requisite monetary contribution at the appropriate time.

Based on the configuration of the development, the contributions are calculated based on three additional lots under Stage 1; and six additional three bedroom dwellings under Stage 2. There are no requirements for contributions as part of the community title subdivision.

SECTION 94 DEVELOPMENT CONTRIBUTIONS

Stage 1 - Three Additional Lots

The payment of $31,198.41 is to be made to Council in accordance with section 94 of the Act and the Orange Development Contributions Plan 2017 (remainder of LGA) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,868.46 x three additional lots	11,605.38
Community and Cultural	@ $1,121.86 x three additional lots	3,365.58
Roads and Traffic Management	@ $5,106.25 x three additional lots	15,318.75
Local Area Facilities	-	-
Plan Preparation & Administration	@ $302.90 x three additional lots	908.70
TOTAL:		$31,198.41

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

Stage 2 - Six Additional Three Bedroom Dwellings

The payment of $62,396.82 is to be made to Council in accordance with section 94 of the Act and the Orange Development Contributions Plan 2017 (remainder of LGA) towards the provision of the following public facilities:

Open Space and Recreation	@ $3,868.46 x six add. 3 bed dwellings	23,210.76
Community and Cultural	@ $1,121.86 x six add. 3 bed dwellings	6,731.16
Roads and Traffic Management	@ $5,106.25 x six add. 3 bed dwellings	30,637.50
Local Area Facilities	-	--
Plan Preparation & Administration	@ $302.90 x six add. 3 bed dwellings	1,817.40
TOTAL:		$62,396.82

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

Section 64 Water and Sewer Headworks Charges

Section 64 water and sewer headwork charges are also applicable to the proposal. Such charges are calculated at the time of release of either a Subdivision Certificate for the proposed subdivision or a Construction Certificate for the proposed dwellings. For the proposed development, three equivalent tenements for water and sewer are required to be paid prior to the issue of a Subdivision Certificate and six equivalent tenements for water and sewer are required to be paid for the additional three bedroom dwellings under Stage 2.

Should Council be of a view to approve the development; then it will be necessary to impose a condition requiring the payment of such charges.

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

Demolition of a Building (clause 92)

The proposal involves the demolition of ancillary buildings, water tanks and front retaining wall and fence. A condition is attached requiring the demolition to be carried out in accordance with Australian Standard AS2601 - 1991: The Demolition of Structures.

Fire Safety Considerations (clause 93)

The proposal does not involve a change of building use for an existing building. It will be necessary to lodge a separate development application for the future use of the former Newstead club (former mansion).

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

BASIX and NatHERS certificates have been submitted with the application which demonstrate that the development complies with the NSW Government's energy efficiency targets.

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

Context and Setting

The subject land is described as a unique series of parcels of land, collectively large in size and relatively un-developed over a large portion of it (owing to its long history of being used as a bowling club). The land is located on the periphery of the Central Business District, adjoining a transitional commercial area to the east and non-residential uses (but residentially zoned land) to the north (motel).

The land to the west and opposite to the south consists of residentially zoned land. Housing within the area comprises many intact period dwellings. Some, such as "Mena", are of exceptional quality and high significance. Whilst there are dwellings representative of many of the past architectural periods common to the City of Orange, there are other more recent examples irregularly dispersed within the broader precinct. There is a recent infill development immediately to the west of the subject land. Kite Street itself contains a number of mature trees planted road side; and many properties, including the Newstead setting, have established formal gardens reflective of the period of dwelling on the land.

The subject land is located in an important heritage precinct. As outline elsewhere within the report, the development is considered incongruous with its context and setting; and thus the development cannot be recommended for approval.

Heritage Impacts

The heritage impacts of the development have been considered extensively throughout the report, and upon completing the various assessments it has been concluded that the development is unacceptable for the reasons specified elsewhere within the report, and as such is recommended for refusal.

Visual Impacts

As mentioned above, the development will interrupt an important streetscape with the presence of visually dominating double garages and a dwelling well forward of the heritage item on the land. This will result in unacceptable visual impacts which will have the effect of reducing the significance of the Central Heritage Conservation Area, the heritage item on the land and heritage items in the vicinity.

Traffic and Parking

Council’s Technical Services staff have not raised objections in relation to the proposed development in terms of traffic impacts. It is expected that the nine dwellings will generate an approximate average of 67 vehicle trips per day (RMS Guide to Traffic Generating Development). This does not account for future traffic movements associated with the use of the Newstead building.

Kite Street is a local road and is capable of catering for the additional traffic movements. The access points are appropriate from a traffic point of view in terms of their widths and location from the nearest intersection (Kite/Hill Streets roundabout).

Parking associated with the proposed residential development is acceptable and is in line with Council's parking requirements.

As mentioned above, the design of the car parking area located on proposed Lot 101 is inadequate and relevant conditions have been mentioned elsewhere. Also mentioned elsewhere is the challenge faced when determining the suitability of the subdivision in terms of the resultant car parking outcomes. The absence of a known future land-use of the Newstead building is the reason for the complexity. All Council staff can do at this stage is make Councillors aware of the issue.

Street Trees

The presence of the large mature street trees is acknowledged. The application was referred to Council’s Manager City Presentation for comment. The Manager City Presentation did not raise objection to either the loss of the small immature street tree, nor the impacts upon the health of the street trees during the construction period provided appropriate conditions are imposed.

As such, if Council is of the view to approve the development then it will necessary to impose the following conditions as recommended by the Manager City Presentation:

· Elm Street Trees on the Kite Street frontage to be retained (2 out of 3; 1 juvenile tree to be removed to facilitate the driveway along the western boundary) shall have Tree Protection Zones established. A TPZ of a minimum 1.5 metres radius from the centre of each tree’s trunk shall be established using temporary construction fencing. Fencing shall remain in place for the period of construction.

· Vehicle access construction to Garage 2 – Dwelling 2 shall take place as the final item and tree roots encountered when excavating the road profile to establish the vehicle access point shall be pruned in accordance with AS4373.2007; that is a clean sharp cut across the smallest diameter of the root.

Existing Vegetation

As mentioned above, the alternate stormwater design has the potential to impact upon the health of the large mature tree on the northern side of the Newstead building. This is considered unacceptable and should not be supported. In the event Council approves the development, it would be necessary to resolve their decision based on which outcome they prefer to see:

i) impacts upon the residential amenity of the occupants of Dwellings 6 and 9 resultant from the onsite stormwater detention design, or

ii) potential impacts upon the health of the tree.

This decision will need to be made by Council in the event the development is approved as the advice from Council’s Technical Services staff is that either impact is unavoidable depending on the engineering solution.

Waste Management

The submitted plans show the ability for 21 x 240L waste receptacles to be stored within the common property lot. The bins are to be stored in this location on collection days only. Should Council be of the view to approve the development, then it would be necessary to impose a condition that ensures the beneficiary of the consent has made arrangements to enter in a contract with a waste contractor to have the bins collected from the temporary storage area, emptied into the garbage collection vehicle and then the bins returned to the storage area. This is Council’s standard procedure for dealing with garbage bins for residential developments that have limited street frontage.

Public Domain

The existing footpath in the frontage of the residential component of the development is unusual in that it comprises a handrail and steep slope from the outside edge of the footpath down to the gutter. Council’s Technical Services Division has made recommendations in relation to the developer being required to augment the levels within the footpath such that a reasonable grade is provided; at which point a handrail between gutter bridges becomes redundant. Relevant conditions would need to be imposed in relation to this issue should Council be of a view to approve the development.

Safer by Design

The development is satisfactory in terms of Crime Prevention Through Environmental Design principles. The proposed dwellings will have reasonable vantage points to allow natural surveillance of common areas or the public street (for Dwellings 1 and 2) and public and private areas will be clearly delineated by fencing. There are no objections to the development from a safer by design perspective.

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

The subject land is considered suitable for being redeveloped for residential purposes. As mentioned above the land is underutilised in close proximity to the centre of town, and as such is considered prime land for an appropriate residential development. It is important to note that this is a different concept to whether or not what is proposed in the application is suitable.

In terms of the development's fit within the locality, the foregoing assessment indicates that the development is unsuitable in the locality based on the design being inconsistent with Council’s adopted planning provisions.

Council staff are not aware of any natural, physical or technological hazards that may otherwise constrain a residential development from occurring on the land in a satisfactory manner.

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 on three separate occasions as outlined above under the chronology of the application. At the end of the third exhibition period a total of 26 submissions were received. All submissions have been taken into consideration in the assessment of the application.

It is noted that some concerns raised during the first exhibition period, such as visual privacy impacts created by the elevated floor level of Dwelling 9, have been addressed. Also, the roof pitches of the proposed dwellings have been identified as a concern in a number of submissions. It is acknowledged that the applicant has amended the plans to reduce the pitch from 30 degrees to 27 degrees. Despite this amendment to the design, the pitch of roofs remains a contention with some objectors.

The fundamental planning matters raised within the submissions can be broadly summarised as follows:

· Heritage - concerns that:

o The development contravenes Council’s heritage related planning provisions (LEP, DCP and Infill Guidelines).

o The design and siting of proposed dwellings fronting Kite Street will have a detrimental impact upon the Newstead building (former mansion), the Central Heritage Conservation Area, heritage items in the vicinity and the streetscape generally.

o The proposed subdivision (extent of curtilage) will have a detrimental impact upon the Newstead building (former mansion).

o The development will potentially impact on street trees.

o The density of the development, including the size and number of dwellings, is inconsistent with the established development pattern within the area.

o There is limited opportunity for soft landscaping.

o The extent of access points within Kite Street will impact upon the heritage streetscape.

· Traffic and parking - concerns that:

o The development will lead to traffic congestion and be dangerous for vehicles entering and leaving the respective driveways.

o The design of the community access will result in the potential for vehicle/ pedestrian conflicts.

o The area for manoeuvring of vehicles entering and existing the development is constrained.

o The access will not allow emergency services vehicles to enter the site.

o Inadequate number of visitor parking spaces associated with the multi dwelling housing are proposed.

o Insufficient off-street parking allocation for the future use of the Newstead building has been provided.

· General - concerns that:

o The development will impact upon Council's tourism objectives and reduce the attractiveness of the heritage walking trails within the City, reducing participation numbers.

o The Community Title lots are below the requirements.

Council staff provide the following response to the above matters raised within the submissions.

Heritage Matters

Council staff are generally in agreement with the majority of concerns raised within the submissions regarding heritage matters, and accordingly the development is not supported, mostly on heritage grounds. However, on a point of clarification, one matter raised within the submissions that Council staff are not in agreement with is the extent of curtilage around the former mansion. Council’s Heritage Advisor has accepted the adopted curtilage as being reasonable in the circumstances.

Traffic and Parking Matters

In terms of the traffic safety concerns, Council’s Technical Services Division has advised that the driveway and gutter bridge locations are satisfactory from a traffic point of view, and no objections have been raised by that Division in relation to unacceptable traffic congestion or issues with vehicles entering or leaving the site.

Additionally, Council’s Technical Services staff have assessed the submitted swept paths for passenger vehicles entering and existing garages, along with a medium rigid vehicle negotiating the site, and have advised that the development is acceptable.

The inability for a firefighting appliance to enter the site beyond the first right angle turn is acknowledged in the report, along with commentary around the necessary conditions that would need to be imposed in the event Council approves the development. It should be noted that an ambulance is a type of vehicle that would be able to fully enter and leave the site in a forward direction.

Councils DCP requires visitor parking at the rate of 0.2 spaces per dwelling within a multi dwelling housing development. Seven dwellings equate to 1.4 spaces attributed to visitor parking. The development provides 2 spaces, and is thus compliant with the subject provision.

The parking associated with the former Newstead building has been addressed in the report. Putting to one side the fact that the parking shown within the Kite Street frontage on the submitted plans is not supported (whether four spaces are provided or seven spaces are provided), the challenge remains for Council with assessing this aspect of the development in the absence of knowing what the use of the Newstead building might be in future.

Should Council be of a view to approve this development, it will not remove the need for someone to lodge a subsequent development application for the use of the Newstead building at some point in the future. At that point, whilst assessing the relevant development application in the future it may transpire that the intended use at that time will be deemed to result in an unacceptable environmental impact (despite any offers by the proponent to pay a contribution in lieu of physical spaces) and the application may not be supported by Council staff.

As it stands, the approved use of the Newstead building itself is defunct. The land would have been operating under LEP 2011 (prior to activities on the land stopping) as a lawful existing use as a registered club pursuant to the continuance use provisions under the Act (as registered clubs are prohibited in the R1 General Residential zone under LEP 2011). Accordingly, in the opinion of Council staff, since activities associated with the registered club have ceased on the land for a period of more than 12 months, the previous existing use to operate a registered club has ceased.

As there is no approved use applying to the Newstead building, it is not possible to complete any meaningful form of parking assessment at this stage as it would just be speculative. Council staff acknowledge the issue, however Council’s hands are tied in terms of resolving the issue at this point in time.

General Matters

In terms of the development's effect on tourism and the attractiveness for tourists wanting to complete the heritage trail, whilst appreciating the importance of tourism within the City, the extent to which the development may impact on these matters is not quantifiable and as such is not considered a planning matter. This is not dissimilar to common statements within submissions relating to decreases in property value directly resulting from a development, which are not considered planning matters either.

In terms of the Community Title component of the development not meeting the relevant planning provisions, this is not a correct statement. The Community Title subdivision complies with the DCP in respect to site coverage, visual bulk, open space and the like.

PUBLIC INTEREST s79C(1)(e)

The proposed development is considered to be of considerable interest to the wider public due to the extent of potential impacts. As outlined in the foregoing assessment, the proposal exhibits a number of contraventions within Council’s adopted planning provisions.

SUMMARY

The proposed development is permissible with the consent of Council and the underutilised land on which it is proposed is considered suitable for residential development. Notwithstanding this, as the foregoing assessment has concluded the proposed development conflicts with a number of objectives and provisions of the LEP relating to heritage conservation. A section 79C assessment of the development indicates that the development will have unacceptable impacts in the locality - accordingly the development is recommended for refusal. Relevantly, attached is a draft Notice of refusal which outlines the reasons for the refusal.

COMMENTS

The requirements of the Environmental Health and Building Surveyor and the Engineering Development Section have been considered in the assessment process.

Attachments

1 Notice of Refusal, D17/69238 ⇩

2 Submissions, D17/68890 ⇩

Planning and Development Committee 7 December 2017

2.9 Development Application DA 421/2016(1) - 1083 Forest Road

RECORD NUMBER: 2017/2518

AUTHOR: Daniel Drum, Senior Planner

EXECUTIVE Summary

Application lodged	2 December 2016
Applicant/s	Mr DM and Mrs JM Brus
Owner/s	Mr DM and Mrs JM Brus
Land description	Lot 2 DP 1069705 - 1083 Forest Road, Spring Creek
Proposed land use	Resource Recovery Facility
Value of proposed development	$50,000

Council's consent is sought to establish a resource recovery facility at 1083 Forest Road, Orange, being Lot 2 DP 1069705 (the ‘subject property’).

The proposed resource recovery facility is intended to be operated by the owner of the subject property for the purpose of storage, grading and trimming of timber railway sleepers.

The resource recovery facility would include a stockpile of timber railway sleepers; vehicles/ machinery associated with the transport and processing of sleepers, including a truck, excavator, tractor and sawmill; a stormwater detention basin and landscaping.

Supporting information submitted with the development application indicates that a maximum of 10,000 railway sleepers would be stored and processed at the resource recovery facility, with the use anticipated to be complete within 10 years.

In summary it is considered that the potential impacts of the proposed resource recovery facility can be appropriately managed and are unlikely to have a significant impact on the surrounding environment.

The development application was notified to surrounding landowners on two separate occasions to ensure that the community was made aware of the changes made to the application throughout the assessment. Following the conclusion of the first notification period seven submissions from property owners, residents and other interested parties were received. Following the conclusion of the second notification period, a further seven submissions were received. A copy of all submissions are attached to this report and the issues raised by submitters are addressed in the body of this report.

Subject to meeting the requirements of recommended conditions of consent, the proposed use and development is considered to be consistent with the relevant aims and objectives of Orange Local Environmental Plan 2011 and Orange Development Control Plan 2004.

DECISION FRAMEWORK

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.

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.

In this case, as alluded to in the following report, whilst development for the purposes of a resource recovery facility is typically a prohibited development within the E3 Environmental Management zone, Council can be satisfied that the development as proposed remains permissible with development consent pursuant to Clause 121(3) of State Environmental Planning Policy (Infrastructure) 2007 (see assessment below for detail). State Environmental Planning Policies prevail in circumstances where an inconsistency between the two plans exists.

The key issues for consideration include potential acoustic impact on proximate sensitive receivers, potential impact on air quality and potential impact on surface and groundwater quality within the drinking water catchment. As demonstrated in this report it is considered that the potential impacts of the proposed resource recovery facility can be appropriately managed and are unlikely to have a significant impact on the surrounding environment.

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 421/2016(1) for a Resource Recovery Facility at Lot 2 DP 1069705 - 1083 Forest Road, Spring Creek pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

BACKGROUND

Development application DA 421/2016(1) was originally lodged on 2 December 2016. The Development application sought consent for the use and development of a sawmill or log processing works.

Following various requests for further information and ongoing discussions with Council staff, the applicant subsequently lodged an amended development application in early September 2017. The amended application, which is the subject of this report, seeks consent for the use and development of a resource recovery facility.

THE APPLICATION/PROPOSAL

Council's consent is sought to establish a resource recovery facility at the subject property. The proposed resource recovery facility would be located in the north-eastern corner of the subject property, proximate to two recently constructed sheds.

The proposed operating hours of the resource recovery facility are 7:30am to 5:30pm Monday to Friday and 8am to 1pm Saturday. No use is proposed to occur on Sunday, with the exception of occasional customer pick-up which would occur by appointment only. Notwithstanding the general operating hours of the resource recovery facility, use of the sawmill is proposed to occur for a maximum period of 1-2 hours per week between 9am and 4pm Monday to Friday. No use of the sawmill is proposed to occur on weekends.

Supporting information submitted with the development application identifies that the sale of graded and trimmed railway sleepers from the subject property are anticipated to be minor, with 90% of sleepers likely to be transported in bulk by truck to landscape businesses or nurseries. The supporting information states that the proposed resource recovery facility would generate up to two truck movements per day (ie one entry and one exit).

Supporting information submitted with the development application also indicates that a 1.2 x 1.2m business identification sign would be attached near the front gate of the subject property. It is understood that the sign would be constructed as exempt development.

EXISTING CONDITION OF THE SUBJECT PROPERTY

The existing conditions of the area of the subject property affected by the proposed use and development are illustrated in Figures 1-4 below.

Figure 1: the subject property - railway sleeper stockpile

Figure 2: the subject property - graded railway sleepers

Figure 3: the subject property - equipment used to grade railway sleepers

Figure 4: the subject property - sawmill attached to small tractor

It is evident that the use and development for which consent is sought has commenced. Matters in relation to carrying out of development and use without development consent will be reported separately to Council for consideration of regulatory action following determination of this application.

SURROUNDING USE AND DEVELOPMENT

The surrounding area is typically used for agricultural purposes, predominately horticulture and grazing of livestock. Some smaller rural lifestyle blocks and commercial uses, such as a nursery and kennels, are also located within the surrounding area.

The subject property and surrounding area are located within the drinking water catchment. A number of drainage lines, streams and creeks traverse the immediate area.

Figure 5: site context plan (subject property identified by heavy black line)

(Source: Orange 8731-3N 1:25,000 Topographic Map 2016)

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.

Based on an inspection of the subject property, it is considered that there is no significant biodiversity or habitat value within the area affected by the proposed use and development.

Section 79C - Evaluation

Section 79C of the Environmental Planning and Assessment Act 1979 sets out the matters that the consent authority is to take into consideration in determining a development application.

These matters are addressed in the body of 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 aims of the Orange Local Environmental Plan 2011 (‘OLEP 2011’) relevant to the application include:

(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.

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

Subject to meeting the requirements of recommended conditions of consent, the proposed use and development is considered to be consistent with the relevant aims of OLEP 2011.

The relevant matters are discussed in the body of this report.

Clause 1.6 - Consent Authority

Clause 1.6 establishes that Council is the consent authority for the purposes of Orange LEP 2011.

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

This clause does not affect the rights or interests of any public authority under any registered instrument.

A search of Council’s records identifies that the subject property is not affected by any of the foregoing covenants, instruments, agreements or plans.

Clause 1.7 - Mapping

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

Land Zoning Map:	Land zoned E3 Environmental Management
Lot Size Map:	Minimum Lot Size 100ha
Heritage Map:	Not a heritage item or conservation area
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:	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

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

The subject property is zoned E3 Environmental Management (Figure 6).

Figure 6: zone context plan (subject property identified by heavy red line)

The proposed use and development is defined as resource recovery facility under Orange LEP 2011, which means:

…a building or place used for the recovery of resources from waste, including works or activities such as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from gases and water treatment, but not including re-manufacture or disposal of the material by landfill or incineration.

Note.

Resource recovery facilities are a type of waste or resource management facility—see the definition of that term in this Dictionary.

While a resource recovery facility is typically a prohibited use in the E3 Environmental Management Zone, Clause 121(3) of State Environmental Planning Policy (Infrastructure) 2007 provides that:

Development for the purpose of the recycling of construction and demolition material, or the disposal of virgin excavated natural material (within the meaning of Schedule 1 to the Protection of the Environment Operations Act 1997) or clean fill, may be carried out by any person with consent on land on which development for the purpose of industries, extractive industries or mining may be carried out with consent under any environmental planning instrument.

Council staff have sought advice regarding the effect of this provision with regard to the proposed use and development. The advice provided identified that the proposed use and development is permissible within the E3 Environmental Management zone based on the following rationale:

· Whilst “virgin excavated natural material” is defined by reference to the Protection of the Environment Operations Act, construction and demolition material is not defined for the purpose of the Infrastructure SEPP.

· Applying the words "construction and demolition material" literally, railway sleepers are used in the construction of railway lines. The removal and delivery of used railway sleepers to the subject land for the purpose of cutting and cleaning rotting sections of the timber for resale may be considered to be for the purpose of recycling of construction and demolition material coming from railway lines.

· Extractive industries are permissible with consent in the E3 Environmental Management zone.

· By this analysis, pursuant to Clause 121(3) of the Infrastructure SEPP, development for the purpose of the recycling of the used timber sleepers may be carried out with consent on the land because:

(a) the purpose is recycling of construction and demolition material; and

(b) extractive industries are permissible with consent under the OLEP.

Consistent with standard practice, Council staff advised the applicant of their interpretation and characterisation of the proposed use and development, including the foregoing rationale. The applicant subsequently sought to rely on the same.

Notwithstanding the foregoing, Clause 2.3 of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

The objectives of the E3 Environmental Management zone are:

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

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

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

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

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

Subject to meeting the recommended conditions of consent, the proposed use and development is considered to be consistent with the foregoing objectives.

The relevant matters are discussed in detail in the body of this report.

Part 7 - Additional Local Provisions

7.1 - Earthworks

Clause 7.1 seeks to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land; and to allow earthworks of a minor nature without requiring separate development consent.

Development consent is required for earthworks unless the earthworks are exempt development under this plan or another applicable environmental planning instrument, or the earthworks are ancillary to other development for which development consent has been given.

There are no substantial earthworks associated with the proposed use and development.

7.6 - Groundwater Vulnerability and 7.7 - Drinking Water Catchment

Clause 7.6 - Groundwater Vulnerability seeks to maintain the hydrological functions of key groundwater systems and to protect vulnerable groundwater resources from depletion and contamination as a result of inappropriate development.

Before determining a development application for development on land to which this clause applies, the consent authority must consider 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 any adverse 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.

Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact; or if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise the impact; if that impact cannot be minimised - the development will be managed to mitigate that impact.

Clause 7.7 seeks to protect drinking water catchments by minimising the adverse impacts of development on the quality and quantity of water entering drinking water storages.

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 the distance between the development and any waterway that feeds into the drinking water storage, the onsite use, storage and disposal of any chemicals on the land, and the treatment, storage and disposal of waste water and solid waste generated or used by the development.

Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is designed, sited and will be managed to avoid any significant adverse impact on water quality and flows, or if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or if that impact cannot be minimised - the development will be managed to mitigate that impact.

A Preliminary Contamination Investigation (PCI) prepared by Envirowest Consulting was submitted with the development application. The PCI identified that potential contaminants associated with the past agricultural use of the subject property and its more recent use for the storage and processing of railway sleepers included heavy metals such as arsenic, cadmium, chromium, copper, nickel, lead, zinc, mercury; total recoverable hydrocarbons; and organochlorine pesticides.

The results of the PCI (Table 1 and Table 2 below) identify that levels of all potential contaminants at each test point (Figure 7 below) are below the adopted Ecological Investigation/Screening Levels for Commercial land use and the Health Based Investigation/ Screening Levels for Commercial/Industrial D land use thresholds. The PCI subsequently concludes that the site is suitable for the proposed use and that no further work is required. Notwithstanding this conclusion, a Site Management Plan (SMP) has also been submitted in support of the proposed use and development with the intent of providing ongoing measures to manage and minimise the risk of potential contamination, including provision for a stormwater detention basin.

A supplementary report prepared by Envirowest Consulting was provided to Council on 17 November 2017, after the notification period. The supplementary report identified that further testing had been undertaken on the existing timber railway sleeper stockpile to determine the likelihood of asbestos dust being present on the railway sleepers. The supplementary report concluded that asbestos dust from train brakes is unlikely to occur on the timber railway sleepers.

While it is accepted that the proposed resource recovery facility is unlikely to result in groundwater or surface water contamination, given the location of the subject property within the drinking water catchment and proximity to waterways it is recommended that a precautionary approach be adopted and that additional measures be put in place to minimise any potential environmental or human risk.

In particular, it is recommended that all sawdust be captured via an extraction system, all residue sawdust be collected and disposed of in an appropriate manner and an appropriate sediment trap be installed around the sleeper stockpile and sawmill to prevent any solids moving off-site.

In addition, Council’s Technical Services Division has recommended that conditions of consent be applied requiring that all stormwater is to be directed to a stormwater treatment system to ensure that no contamination leaves the subject land, with the criteria for assessment including Total Phosphorus, Total Nitrogen, pH, Salinity, Turbidity.

Council’s Technical Services Division has also recommended a condition of consent requiring stormwater detention designed to limit peak outflow 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 without damage to downstream development.

It is also recommended that a condition consent be applied requiring the foregoing measures to be incorporated into the Site Management Plan and implemented prior to the commencement of use.

Notwithstanding, in the event of an unforeseen impact, the use could be further regulated under the Protection of the Environment Regulations Act 1997.

Table 1: soil analysis results - metals and organochlorine pesticides

Table 2: soil analysis results - hydrocarbons

Figure 7: preliminary contamination investigation test points

7.11 - Essential Services

Clause 7.11 - Essential Services identifies that 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.

Essential services include the supply of water, the supply of electricity, the disposal and management of sewage, stormwater drainage or onsite conservation, and suitable road access.

No essential services are required for the proposed use and development.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

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

As previously discussed, the results of the PCI (see Table 1 and Table 2) identify that levels of all potential contaminants are below the adopted Ecological Investigation/Screening Levels for Commercial land use and the Health Based Investigation/Screening Levels for Commercial/Industrial D land use thresholds.

State Environmental Planning Policy (Infrastructure) 2007

The proposed development was referred to the Roads and Maritime Service (RMS) pursuant to Section 104 - Traffic Generating Development of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure).

The RMS has advised that it makes no submission in relation to the development application.

Matters pertaining to the consideration of Clause 121(3) of State Environmental Planning Policy (Infrastructure) 2007 which goes to the issue of permissibility of the proposed development have been assessed above under the heading “Part 2 - Permitted or Prohibited 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 proposed development is not designated development pursuant to Schedule 3, Part 1, Clauses 32 and 33 of the Environmental Planning and Assessment Regulation 2000 (the ‘Regulations’).

While Schedule 3, Clause 32 of the Regulations identifies that a waste management facility is typically designated development, it also provides that Clause 32 does not apply to any development comprising or involving waste management facilities or works specifically referred to elsewhere in Schedule 3.

On this basis, the applicant has identified the description of wood or timber milling or processing works under Clause 33 as being applicable to the proposed development. Specifically, Clause 33 identifies wood or timber milling or processing works as being:

… (being works, other than joineries, builders supply yards or home improvement centres) that saw, machine, mill, chip, pulp or compress timber or wood:

(a) that have an intended processing capacity of more than 6,000 cubic metres of timber per year and:

(i) are located within 500 metres of a dwelling not associated with the milling works, or

(ii) are located within 40 metres of a natural waterbody or wetland, or

(iii) burn waste (other than as a source of fuel), or

(b) that have an intended processing capacity of more than 50,000 cubic metres of timber per year.

It is accepted that the proposed resource recovery facility is not designated development on the basis that the proposed use can be characterised as wood or timber milling or processing works, and that the intended processing capacity is below 6,000 cubic metres (ie the intended annual processing capacity is identified as 2,000 cubic metres).

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

Development Control Plan 2004

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

· Chapter 0 - Transitional Provisions;

· Chapter 2 - Natural Resource Management;

· Chapter 3 - General Considerations;

· Chapter 4 - Special Environmental Considerations;

· Chapter12 - Rural Environment Protection Zone; and

· Chapter 15 - Car Parking.

Section 0.2 - General Translation of Zones

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

The table identifies that the E3 Environmental Management zone corresponds with the 7 Water Supply Catchment zone.

Chapter 2 - Natural Resource Management

Section 2.1 - Water Quality

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

Specific planning outcomes for stormwater quality include:

· Development is carried out in a manner that does not contribute to downstream erosion or sedimentation of waterways.

· Development complies with the Water and Soil Erosion Control requirements of the Development and Subdivision Code.

· On-site detention is carried out in accordance with the Development and Subdivision Code for all developments comprising buildings with a site coverage greater than 50m² or where site coverage exceeds the “percentage impervious” level listed in the Code applicable to that development.

· Where on-site detention is not appropriate, contributions are made towards retarding basins and/or GPTs and associated drainage under the Contributions Plan that applies to the land.

· Development in the vicinity of a natural watercourse is positioned away from the waterway and includes measures to minimise the impact of the development on the waterway such as the establishment of Creekside buffer zones and planting of native trees in a manner that enhances stream bank stability.

Specific planning outcomes for groundwater quality include:

· 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.

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

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

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

Water quality has previously been addressed under the heading “7.6 - Groundwater Vulnerability and 7.7 - Drinking Water Catchment”. Based on the foregoing discussions, the results presented in Table 1 and Table 2 and the recommended conditions of consent, it is considered that the proposed use and development is unlikely to have an adverse impact on the quality of groundwater or surface water entering the drinking water catchment.

Notwithstanding, in the event of an unforeseen impact, the use could be further regulated under the Protection of the Environment Regulations Act 1997.

Section 2.2 - Soil Resource Management

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

Specific planning outcomes for soil resource management include:

· Development complies with the Water and Soil Erosion Control requirements of the Development and Subdivision Code.

· Sites affected by soil degradation are restored in accordance with management strategies to be submitted with development proposals.

· Agricultural practices apply conservation farming techniques particularly within the water supply catchments and in areas susceptible to significant erosion hazard.

· A geotechnical investigation is carried out by a NATA-accredited laboratory that identifies and classifies all new residential lots for dwelling houses in accordance with AS 2870-1996 Residential Slabs and Footings Construction.

· A geotechnical investigation is undertaken that determines the suitability of land for on-site disposal of sewage effluent in accordance with Environmental and Health Protection Guidelines: On-site Sewage management for Single Households where appropriate.

· Non-agricultural activities in rural areas are carried out on less -productive soils.

It is considered that the proposed resource recovery facility will occupy a relatively small portion of the subject property and will not have a significant impact on the availability of productive soils. Further, it is noted that once the stockpile of timber sleepers has been processed, the affected area could be returned to an agricultural use.

Chapter 3 - General Considerations

Section 3.1 - Cumulative Impacts

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

Specific planning outcomes regarding cumulative impact include:

· Applications for development demonstrate how the development relates to the character and use of land in the vicinity;

· The introduction of new development into a locality maintains environmental impacts within existing or community-accepted levels.

· Water conservation measures are implemented

It is considered that the proposed development has the potential to have a cumulative impact on surface/groundwater quality and air quality. Notwithstanding the potential cumulative impacts, it is considered that each issue has been appropriately assessed in this report and is unlikely to have a significant impact which exceeds reasonable community expectation.

There may be cumulative impacts associated with other future use and development of properties within the vicinity of the subject property. Those impacts would be assessed at the development application stage.

Section 4.4 - Contaminated Land

The DCP sets the following planning outcomes with regard to contaminated land:

· Land subject to development is clear from contamination.

· Development complies with the Contaminated Land Management Act 1997.

· Applications for development consent on land used or likely to have been previously used for uses in the table below include contamination assessment and where necessary a proposed remediation strategy to make the site suitable for the proposed use.

· An independent site audit at the applicant’s cost is carried out to assess the information provided with an application where Council considers that:

- Information may be incorrect or incomplete;

- It needs to verify that the information adheres to appropriate standards, procedures guidelines; or

- The type or level of contamination requires an independent technical review.

Land contamination has previously been addressed under “State Environmental Planning Policy 55 - Remediation of Land”.

As previously discussed, the PCI submitted with the development application demonstrates that levels of all potential contaminants are below the adopted Ecological Investigation/ Screening Levels for Commercial land use and the Health Based Investigation/Screening Levels for Commercial/Industrial D land use thresholds.

Chapter 12 - General Controls for the Water Supply Catchment

Section 12.1 - General Controls for the Water Supply Catchment Zone and

Section 12.2 - Water Quality Protection Area

Section 12.1 - General Controls for the Water Supply Catchment zone identifies that the Rural Environmental Protection zone identifies water supply catchment areas, which are areas that provide for public water supplies to service urban centres.

The DCP sets out the following planning outcome with regard to water supply catchments:

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

Section 12.2 identifies that all development in the water supply catchment needs to manage its impact, with particular attention to be given to development in proximity to the major creeks within the water supply catchment.

Clause 12.2 identifies that special protection areas have been identified around the Gosling Creek, Spring Creek and Suma Park reservoirs, and main feeder creeks. These protection areas are generally within 200m of a main creek or within 400m of a water-storage reservoir.

Further, Section 12.2 identifies that onsite sewage management systems are inappropriate within this area, and that development may be considered where an onsite sewage management system is located outside the water quality protection area, and where measures are incorporated into the development that ensure that runoff from buildings and driveways does not contribute to pollution of the adjacent waterbodies.

The DCP sets out the following planning outcomes with regard to water quality protection areas:

· Effluent is treated outside the defined protection area.

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

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

Water quality has previously been addressed under the heading “7.6 ‑ Groundwater Vulnerability and 7.7 - Drinking Water Catchment”. Based on the foregoing assessment and recommended conditions of consent, it is considered unlikely that the proposed development will have a detrimental impact on surface water or groundwater within the drinking water catchment.

Chapter 15 - Car Parking

Section 15.4 - Parking Requirement

Section 15.4 does not specify a parking rate for a resource recovery facility.

Notwithstanding, it is considered that formal off-street car parking is not required as the proposed use does not involve long term occupation of the site by staff or customers.

Furthermore, it is evident that the subject land is satisfactory to accommodate the proposed use and provide adequate manoeuvring space for vehicles.

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)

Not applicable.

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

The key potential impacts associated with the proposed resource recovery facility are considered to be impact on surface/ground water quality, air quality and noise.

Surface/Ground Water Quality

Surface and groundwater quality are addressed in detail under the heading “7.6 ‑ Groundwater Vulnerability and 7.7 ‑ Drinking Water Catchment”.

In summary it is accepted that the results of the PCI submitted with the development application identify that levels of potential contaminants are below the adopted Ecological Investigation/Screening Levels for Commercial land use and the Health Based Investigation/ Screening Levels for Commercial/Industrial D land use thresholds.

In particular, it is recommended that all sawdust generated during processing be captured via an extraction system, all residue sawdust be collected and disposed of in an appropriate manner and an appropriate sediment trap be installed around the sleeper stockpile and sawmill to prevent any solids moving off-site.

It is also recommended that conditions of consent be applied requiring the foregoing measures to be incorporated into the Site Management Plan and implemented prior to the commencement of use.

Notwithstanding, in the event of an unforeseen impact the use could be further regulated under the Protection of the Environment Regulations Act 1997.

Air Quality

Potential air quality impacts may occur due to airborne sawdust. On this basis, it is recommended that all sawdust be captured via an extraction system and that all residue sawdust be collected and disposed of in an appropriate manner.

Council’s Environmental Health Officer has advised that nearby land users are unlikely to be affected in respect of dust and odour.

Noise

Noise impacts may occur as a result of the sawmill operating for up to 1-2 hours per week and truck movements to and from the subject property.

Council’s Environmental Health Officer has commented that nearby land users are unlikely to be affected in respect of noise.

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

It is considered that the attributes of the subject property and surrounding area are suitable for the proposed use and development, subject to recommended conditions of consent addressed in the body of this report.

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.

Notwithstanding, the proposed development was notified to surrounding landowners. Following the conclusion of the first notification period seven submissions from property owners, residents and other interested parties had been received. Following the conclusion of the second notification period, a further seven submissions were received. A copy of all submissions are attached to this report and the issues raised by submitters are addressed in the body of this report.

The proposed development was also referred to Roads and Maritime Services, Environment Protection Authority and Department of Primary Industries-Water.

Submissions from Surrounding Land Owners/Interested Parties

Characterisation of the Use

A number of submissions have identified that the proposed use and development has not been accurately characterised and that it should be prohibited in the E3 Environmental Management zone.

While is acknowledged that that characterisation of the proposed resource recovery facility has changed during the development application process, it is open to an applicant to seek to change the details of a proposal during the assessment process.

Council staff accept that the proposed use and development has been accurately characterised as a resource recovery facility and that a resource recovery facility is permissible in the E3 Environmental Management zone pursuant to Clause 121(3) of State Environmental Planning Policy (Infrastructure) 2007.

Illegal Use and Development

A number of submissions have identified that the proposed use and development has commenced without development consent.

Illegal use and development is not a relevant consideration pursuant to Section 79C of the Environmental Planning and Assessment Act 1979. Matters in relation to carrying out of development and use without development consent will be reported separately to Council for consideration of regulatory action following determination of this application.

Inconsistent With the Objectives of the E3 Environmental Management Zone

A number of submissions identify that the proposed resource recovery facility is inconsistent with the objectives of the E3 Environmental Management zone.

It is generally held that the planning principle established by BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 revised - 05/05/2005 requires that approval should be granted for a use for which the site is zoned subject to achieving an acceptable environmental impact.

It is considered that the proposed resource recovery facility is likely to result in an acceptable environmental impact.

Contamination of Railway Sleepers

The majority of submissions identified that the railway sleepers may be contaminated.

Contamination has been addressed in detail under the heading “7.6 - Groundwater Vulnerability and 7.7 - Drinking Water Catchment”.

In summary, it is accepted that the results of the PCI and supplementary identify that levels of all potential contaminants at each test point are below the adopted Ecological Investigation/Screening Levels for Commercial land use and the Health Based Investigation/ Screening Levels for Commercial/Industrial D land use thresholds. The PCI subsequently concludes that the site is suitable for the proposed use and that no further work is required.

Further, it is acknowledged that the supplementary report prepared by Envirowest Consulting concluded that asbestos dust from train brakes is unlikely to occur on the timber railway sleepers.

Hazardous/Offensive Development

One submission identified that the proposed resource recovery facility should be characterised as being a hazardous industry and/or an offensive industry pursuant to the requirements of State Environmental Planning Policy 33 - Hazardous and Offensive Development (SEPP 33).

It is considered that SEPP 33 does not apply to the proposed resource recovery facility as it does not involve a hazardous substance which falls within the classification of the Australian Code for Transportation of Dangerous Goods by Road and Rail (Dangerous Goods Code); it does not require a licence from the EPA; and it is considered unlikely that it will have a significant environmental impact.

Water Quality/Drinking Water Catchment

The majority of submissions have raised concerns regarding the potential impact of contamination from railway sleepers on groundwater and surface water, with concern for both agriculture (eg stock and horticulture) and potable water within a drinking water catchment.

Water quality has previously been addressed under the heading “7.6 - Groundwater Vulnerability and 7.7 - Drinking Water Catchment”. In summary it is accepted that the proposed resource recovery facility is unlikely to result in groundwater or surface water contamination or any other adverse impact.

Notwithstanding, on a precautionary basis it is recommended that additional measures be put in place to minimise any potential environmental or human risk. In particular, it is recommended that all sawdust generated during processing be captured via an extraction system, all residue sawdust be collected and disposed of in an appropriate manner and an appropriate sediment trap be installed around the sleeper stockpile and sawmill to prevent any solids moving off-site.

Further to these requirements, Council’s Technical Services Division has recommended that conditions of consent be applied requiring that all stormwater is to be directed to a stormwater treatment system to ensure that no contamination leaves the subject land, with the criteria for assessment including Total Phosphorus, Total Nitrogen, pH, Salinity and turbidity.

It is also recommended that conditions of consent be applied requiring the foregoing measures to be incorporated into the Site Management Plan and implemented prior to the commencement of use.

Notwithstanding, in the event of an unforeseen impact, the use could be further regulated under the Protection of the Environment Operations Act 1997.

Air Quality - Impacts on Human Health and Agriculture

A number of submissions have raised concerns regarding the potential impact of dust generated by the sawmill impacting on human health and agricultural viability (ie dust carrying forms of contamination such as asbestos).

Some submissions have also raised the impact of dust generated by heavy vehicles, such as trucks entering and exiting the subject property.

With regard to the possibility of airborne dust carrying contamination, it is recommended that a condition of consent be applied requiring that an extraction system be used in association with the sawmill to minimise the likelihood of any airborne dust. Further, it is recommended that any heavy residual dust which may fall below the sawmill be collected and disposed of in an appropriate manner immediately after processing.

It is acknowledged that the supplementary report prepared by Envirowest Consulting concluded that asbestos dust from train brakes is unlikely to occur on the timber railway sleepers.

With regard to dust generated by heavy vehicles entering the subject property, it is considered that the level of dust generated by two truck movements per day is acceptable in the context of the subject property, and consistent with the agricultural function of the surrounding area.

Noise

One submission raised concerns regarding the acoustic impact of the sawmill and heavy vehicles on residential amenity, including trucks entering and leaving the subject property during the night.

Council’s Environmental Health Officer has commented that the noise which would be generated by the sawmill for a 1-2 hour period between 9am and 4pm each week is unlikely to affect other nearby land users. Further, it is acknowledged that the sawmill would not be operated on Saturday or Sunday.

Further, Council’s Environmental officer has confirmed that all truck movements associated with the resource recovery facility should be limited to the proposed operating hours, which would reduce the acoustic impact of vehicle movements at night. However, it should be noted that this would not preclude heavy vehicle movements to the subject property associated with any agricultural use of the property.

Other Possible Uses of the Resource Recovery Facility

Some submissions have identified that the approval of a resource recovery facility could allow for other unintended uses, which may have a more significant impact on the water catchment.

In the event that the proposed resource recovery facility is approved, a condition of consent would require that it be undertaken in accordance with the Statement of Environmental Effects submitted with the development application. In this regard, it is considered that the scope of the resource recovery facility is restricted to processing 10,000 timber sleepers which are currently stockpiled onsite.

Fire

One submission has identified the potential risk of the railway sleepers catching fire as an issues of concern.

Council’s Environmental Health Officer has commented that the proposed resource recovery facility does not pose a significant fire risk and that the proposed sleepers would not easily ignite in a stockpile as proposed.

Road Safety

A number of submissions identified concerns regarding limited visibility at the intersection of Hiney Road and Forest Road, particularly in relation to visibility of large, slow trucks entering from Hiney Road. One submissions also identified a black spot at the Gosling Creek Bridge.

Neither Council’s Technical Services Division nor the RMS have identified road safety associated with truck movements as an issue of concern.

Property Value

A number of submissions have identified reduced property values as an impact of the proposed development.

Property value is not considered to be a relevant matter under Section 79C of the Environmental Planning and Assessment Act 1979 and has not been considered in any further detail.

Impact on Amenity

One submission raised concerns regarding the impact of the proposed resource recovery facility on existing residential amenity.

In particular, the submission indicated that residential amenity has been impacted by people knocking on their door looking to purchase railway sleepers and increased number of rats.

Supporting information submitted with the development application indicates that the owner intends to erect a business identification sign at the property frontage. This should prevent confusion as to where the proposed resource recovery facility is located.

With regard to an increased number of rats, it is recommended that an advisory note be placed on the Notice of Determination indicating that the owner of the subject property should take all reasonable steps to manage rodents such as rats and mice.

Impact on Future Dwelling

One submission identified that the use of the proposed resource recovery facility would require relocation of an approved dwelling at 356 Hiney Road.

Based on the assessment presented in the body of this report, it is considered that the proposed resource recovery facility is unlikely to have a detrimental effect on the proposed dwelling once constructed.

Use of Sheds

A number of submissions have noted the presence of a number of sheds on the subject property which are not mentioned in the development application.

Council records indicate that a number of approvals have been issued for rural sheds on the subject property.

Sleepers Should Not Be Sold to the Public

A number of submissions identified that railway sleepers should not be sold to the public, particularly for firewood.

While the concerns associated with potential contamination of railway sleepers is understood, Council is not responsible for the regulation of the sale of goods.

It is incumbent on the operator of the proposed resource recovery facility to ensure that the sale of any product is legal and in accordance with any specific requirements.

Insufficient Information Regarding Waste

One submission identified that the development application has not identified how waste will be managed.

It is recommended that a condition of consent be applied requiring that any waste, including sawdust or timber off-cuts, be disposed of in appropriate manner.

No Toilets

One submission has identified that no toilets are proposed.

Council’s Building Surveyor has not identified that toilets are required.

Visual Impact/Air Quality

One submission identified that the proposed resource recovery facility should be screened to minimise visual impact. Other submissions identified that the proposed resource recovery facility should be screened to reduce possible air pollution.

The proposed use and development includes perimeter landscaping (Leylandii) to the immediate west of the resource recovery facility and to the immediate north of the property boundary with 21 Hiney Road.

While it is considered that the proposed resource recovery facility is unlikely to present a significant visual impact or result in dust emissions subject to recommended conditions of consent, it is understood that the applicant would be willing to provide additional perimeter landscaping.

On this basis, it is recommended that a condition of consent be applied requiring that perimeter landscaping be provided to the east, north and west of the timber railway stockpile and sawmill area.

Loss of Agricultural Land

One submission identified the loss of prime agricultural land as an issue of concern.

Further, it is noted that once the stockpile of timber sleepers has been processed, the affected area could be returned to an agricultural use.

Weeds

One submission identified the introduction of weed seeds as an issue of concern and noted that the proponent does not have a biosecurity protocol.

Following an inspection of the timber sleeper stockpile it is considered unlikely that it would have a significant impact on weed species or volume of weeds in the immediate area. The sleepers were generally devoid of significant amounts of soil.

Inconsistencies in the Development Application

A number of submissions identified that there are some inconsistencies in the application material submitted by the applicant.

It is accepted that there are some inconsistences in the application material, however those inconsistencies have not prevented Council staff undertaking a full assessment of the application.

Submissions from State Government Authorities and Departments

EPA

The EPA has had ongoing correspondence with Council staff throughout the assessment process. The final comments of the EPA area summarised as follows:

· The proposed use and development is not a scheduled activity and does not require an Environmental Protection Licence based on the weight and volume of timber sleepers currently stored onsite and the weight of material anticipated to be processed each year.

· The land use activity being carried out also appears to be not permissible under Orange LEP 2011 for zone E3. Therefore it is considered that section 144 of the Protection of the Environment Operations Act 1997 "Use of place as waste facility without lawful authority", may have been breached, and as such Council is the Appropriate Regulatory Authority under the Act.

With regard to the second point, reference is made to the discussion under the heading “Clause 2.1 - Land Use Zones and Clause 2.3 - Zone Objectives and Land Use Table”, which identifies that the proposed use and development is permissible pursuant to Clause 121(3) of State Environmental Planning Policy (Infrastructure) 2007.

The EPA did not identify any other issues and make any recommendations in its final submission to Council.

Roads and Maritime Services

The RMS has provided advice to Council indicating that it does not object to the proposed development and that it makes no submission.

DPI - Water

DPI - Water has provided advice to Council identifying that for the purposes of the Water Management Act 2000, a controlled activity approval is not required and no further assessment by this agency is necessary as the proposed activity is not occurring on waterfront land.

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, D17/68952 ⇩

2 Plans, D17/68257 ⇩

3 Public Submissions - first exhibition period, D17/68282 ⇩

4 Public Submissions - second exhibition period, D17/68310 ⇩

5 Agency Submissions, D17/68317 ⇩

Planning and Development Committee 7 December 2017

2.10 Development Application DA 244/2017(1) - 15 Etna Street

RECORD NUMBER: 2017/2531

AUTHOR: Martin Hebold, Compliance Team Leader

EXECUTIVE Summary

Application lodged	7 July 2017
Applicant/s	Mrs K Churchill
Owner/s	Mrs K Churchill
Land description	Lot 51 DP 1127190 - 15 Etna Street, Orange
Proposed land use	Dwelling Alterations and Additions (carport)
Value of proposed development	$7,994

Council's consent is sought for a new attached three car carport on land described as Lot 51 DP 1127190 – 15 Etna Street, Orange. The proposal involves the construction of a skillion roofed carport measuring 9.1m wide x 4.4m deep, in front of the existing attached garage of the existing dwelling. Proposed materials include Colorbond steel and Laserlight, and colours are to match the existing dwelling.

It is considered that the proposed carport does not comply with the relevant objectives and planning outcomes of the Orange Local Environmental Plan 2011 (LEP) and Chapter 7 of the Orange Development Control Plan 2004 (DCP), including DCP objectives for ‘Residential Design’, ‘Bulk and Scale’, ‘Site Access and Circulation’, ‘Open Space and Landscaping’ and ‘Water and Soil Management’; and the DCP planning outcomes for ‘Neighbourhood Character’, ‘Building Appearance’, ‘Setbacks’, ‘Visual Bulk’, ‘Circulation Design’, ‘Car Parking’, ‘Open Space and Landscaping’ and ‘Stormwater’.

The proposed scale and setback of the carport is inappropriate for a residential area, is out of character with the surrounding pattern of development, and will adversely impact on the residential and visual amenity of the streetscape and neighbourhood. The carport has not been designed to minimise visual and environmental impacts, and as such, the application is recommended for refusal.

It is important to note that the existing dwelling has been established on the land using the minimum setbacks set out in the DCP, and as such leaves little opportunity for further development in the frontage of the site. The existing dwelling includes an attached three car garage positioned at the minimum setback to the street of 8m, and there is an additional double garage in the backyard. The DCP requires an increased setback for triple garages so they do not dominate the streetscape, and so that the driveway width is kept to a maximum of 6m (double width) at the front boundary. The maximum width balances the requirement for adequate manoeuvring while retaining sufficient landscaping between the dwelling and the street. The proposed carport on a reduced front setback cannot be serviced fully, and would require a wider driveway than that prescribed by the DCP, adversely impacting on the visual and residential amenity of the neighbourhood and street, and increasing stormwater runoff from the site frontage.

Whilst it is not desirable to have a triple carport forward of a dwelling house, the proposal would be considered more appropriate and could achieve the overall objectives of the DCP if the carport was reduced in size, and set back at least 4.5m from the front boundary. These issues were discussed with the applicant, and they were requested to consider amending the proposal so the carport would be less dominant on the street. However, the applicant was not willing to compromise, stating that the proposed size is needed to provide shelter for their car, to allow them to get their child out of the car on rainy days without getting wet, and to provide a shady place for their child to ride their scooter and shoot basketball hoops. The applicant has also advised that the carport is needed even though they have five garage spaces already on the site.

It is noted that the only carport within the frontage in the neighbourhood has been designed to be set back 4.5m from the street and is reduced in size (double width, and less depth), appropriately balancing the need for adequate coverage of vehicles, without adversely impacting on the street and neighbourhood. It is considered that the applicant can design their carport in a similar manner, which will not be detrimental to the amenity of the surrounding neighbourhood.

Furthermore, it is considered that the site offers ample alternative areas to the rear of the dwelling to provide for covered vehicle storage and recreational spaces, that can also be designed in a way that do not adversely impact on the neighbourhood and the streetscape. In any case, it is not considered appropriate for children’s recreational areas and play equipment to be located within the front driveway due to potential vehicle conflicts.

DECISION FRAMEWORK

Development in Orange is governed by two key documents; the 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.

It is considered that the site is suitable for a carport as the land is appropriately serviced and there are no known physical attributes, technological or natural hazards which constrain the site. However, as assessed in this report, the design and siting of the carport in its proposed form does not meet the objectives, and planning outcomes of both the LEP and DCP. Suitable alternatives exist on the site, such as a carport of reduced scale and greater setback in the frontage, or a carport/covered area to the rear, which could achieve similar intentions that are not detrimental to the residential and visual amenity of the neighbourhood or the environment.

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 development application DA 244/2017(1) for Dwelling Alterations and Additions (carport) at Lot 51 DP 1127190 - 15 Etna Street, Orange pursuant to the reasons as set out in the attached Notice of Refusal.

further considerations

SUPPORTING INFORMATION

THE APPLICATION

Council's consent is sought for a new three car carport to be constructed in front of the existing three car garage at Lot 51 DP 1127190, known as 15 Etna Street, Orange.

THE PROPOSAL

The proposal involves the construction of a skillion roofed carport measuring 9.1m wide x 4.4m deep in front of the existing attached garage of the existing dwelling (western elevation). The carport is proposed at a setback of 3.7m from the front road boundary and 1.4m from the northern side boundary. Proposed materials include Colorbond steel and Laserlight, and colours are to match the existing dwelling.

MATTERS FOR CONSIDERATION

Section 5A 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 inconsistent with the relevant aims of the plan, as the proposed carport will adversely impact on the residential and visual amenity of the streetscape and neighbourhood. This is discussed in greater detail in the DCP assessment later 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 site is identified on the LEP maps in the following manner:

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

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

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the R1 General Residential zone. The proposed development is defined as a residential accommodation – dwelling house under OLEP 2011 and is permitted with consent for this zone. This application is seeking 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.

The proposed development is generally consistent with the above objectives.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development. Pursuant to Clause 2.6 the application is seeking development consent.

Part 4 - Principal Development Standards

Not relevant to the application.

Part 5 – Miscellaneous Provisions

Not relevant to the application.

Part 6 – Urban Release Areas

Not relevant to the application, the land is not within an Urban Release Area.

Part 7 - Additional Local Provisions

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

It is assumed that the carport guttering will be connected to the existing stormwater system, and soil erosion can be managed at construction stage. However, the driveway width will need to be increased to provide for adequate manoeuvring of vehicles in and out of the site. The reduction of landscaping and permeable areas in the frontage will increase stormwater runoff from the site to the street, which may impact the existing stormwater system during heavy/flash rainfall events.

7.5 - Riparian Land and Watercourses

This clause seeks to preserve both water quality and riparian ecological health. The clause applies to land identified as a “Sensitive Waterway” on the Watercourse Map. The subject land contains such a waterway and therefore Council must consider whether or not the proposal:

(a) is likely to have any adverse impact on the following:

(i) the water quality and flows within a watercourse

(ii) aquatic and riparian species, habitats and ecosystems of the watercourse

(iii) the stability of the bed and banks of the watercourse

(iv) the free passage of fish and other aquatic organisms within or along the watercourse

(v) any future rehabilitation of the watercourse and its riparian areas, and

(b) is likely to increase water extraction from the watercourse.

Additionally, consent may not be granted until Council is satisfied that:

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

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

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

While the subject site does contain a sensitive waterway, the proposal has been designed to site the buildings 75m from the waterway. This provides a reasonable separation distance to manage the post-development runoff.

Overall, while there will always remain a risk to the waterway under extreme circumstances such as record storms and the like, it is considered that the risk of adverse impacts in regards to waterways can be appropriately managed to an acceptable level of risk.

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.

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

Clause 7.11 - Essential Services

Clause 7.11 is applicable and states:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water

(b) the supply of electricity

(c) the disposal and management of sewage

(d) storm water drainage or on-site conservation

(e) suitable road access.

In consideration of this clause, all utility services are available to the land and adequate for the proposal.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

Under Clause 7 of State Environmental Planning Policy 55 - Remediation of Land (SEPP 55), Council must consider whether the land is contaminated and whether the land requires any form of remediation to render it suitable for the purpose to which it is proposed to be used. The previous land uses must be considered along with any visible or tangible evidence on the site. Clause 7 of SEPP 55 provides as follows:

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

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

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

Prior to the residential zoning of the subject land and adjoining parcels, the locality had longstanding agricultural (grazing) use. Contamination investigation was undertaken in conjunction with the residential subdivision of the land. As the potential for contamination is very low, and the overall use of the land is not changing (i.e. continued residential use), further investigation as a precursor to site remediation is considered unnecessary in conjunction with the current proposal.

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

INTEGRATED DEVELOPMENT

The proposal is not integrated 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. An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

Part 7 - Design Elements for Residential Development

The DCP sets the following Planning Outcomes in regard to Urban Residential Development.

Residential Design Objectives

· To ensure that the development fits into its setting and environmental features of the locality.

· To ensure that the appearance of housing is of a high visual quality, enhances the streetscape and complements good quality surrounding development.

· To ensure that new development complements places with heritage significance and their settings in a contemporary way.

· To develop a sense of place with attractive street frontages.

· To encourage visually appealing cohesive streetscapes.

· To create a safe and secure environment.

· To provide consistent design elements that protect private investment.

The proposed development is contrary to the residential design objectives of this section of the DCP as detailed below.

7.7-1 - Neighbourhood Character

The DCP sets the following Planning Outcomes in regard to Neighbourhood Character:

· Site layout and building design enables the:

- creation of attractive residential environments with clear character and identity

- use of site features such as views, aspect, existing vegetation and landmarks

· Buildings are designed to complement the relevant features and built form that are identified as part of the desired neighbourhood character.

· The streetscape is designed to encourage pedestrian access and use.

The character of the surrounding area is exceptionally consistent, where the pattern of development comprises of single storey dwelling houses, constructed from brick, with pitched Colorbond or tiled roofs, set 4.5m from the front boundary, with attached double garages.

It is considered that the proposed carport will not be in keeping with the surrounding neighbourhood character, and will be very dominant in the streetscape. The proposed carport measures 9.1m wide by 4.4m in depth, giving an overall roof area of approximately 40m². The proposed setback from the front boundary of the site is 3.7m.

The minimum setback for this recently established area, as set out in the DCP, is 4.5m. The existing dwelling has already been established on the land using the minimum setbacks set out in the DCP, and as such leaves little opportunity for further development in the frontage of the site. The existing dwelling includes an attached three car garage positioned at the minimum setback to the street of 8m (see Figure 1). The DCP requires an increased setback for triple garages so they do not dominate the streetscape, and so that the driveway width is kept to a maximum of 6m (double width). This maximum width balances the requirement for adequate manoeuvring while retaining sufficient landscaping between the dwelling and the street (see Figure 1). The proposed carport, on a reduced front setback, cannot be adequately serviced without widening the driveway to around 9m, in excess of that that prescribed by the DCP, resulting in adverse visual impacts to the streetscape. This matter is discussed in greater detail in the ‘Setbacks’ section of the DCP assessment.

20171017_102527_resized

Figure 1 - photograph of the existing dwelling and attached garages

There are no carports within the frontage of lots in this street, and only one example of a double carport in the wider area, which achieves the minimum 4.5m setback and therefore does not impact on the streetscape. The proposed carport would be located forward of the main building line of the existing dwelling and neighbouring dwellings. Given the substantial size of the carport, and lack of setback from the street, it is considered that the adverse impacts will be significant in terms of the desired streetscape of this recently developed estate. It is considered that such a departure from the requirements of the DCP in a newly established area would be inappropriate.

Overall, the proposal does not meet the objectives for residential design and the planning outcomes for neighbourhood character as follows:

· the proposed site layout will not achieve an attractive and cohesive streetscape and residential environment

· the appearance of the carport is not of a high visual quality and will not enhance the streetscape

· the carport has not been designed to complement the features and built form that characterises the area.

7.7-2 - Building Appearance

The DCP sets the following Planning Outcomes in regard to Building Appearance:

· The building design, detailing and finishes relate to the desired neighbourhood character, complement the residential scale of the area, and add visual interest to the street.

· The frontages of buildings and their entries face the street.

· Garages and car parks are sited and designed so that they do not dominate the street frontage.

The proposed carport would be visually dominant due to its size and insufficient setback from the street, when compared with the open nature of the frontages within the existing streetscape. The existing attached triple garage is already comparatively dominate in the streetscape, however this is mitigated by its setback of 8m. This mitigating factor would be ineffective with a large carport located in front of it. As discussed in ‘Neighbourhood Character’ above, the proposed carport will dominate the street and the existing dwelling, where its design does not complement the residential scale of the area. The planning outcomes and residential design objectives have not been met in regards to building appearance.

7.7-4 - Setbacks

The DCP sets the following Planning Outcomes in regard to Setbacks:

· Street setbacks contribute to the desired neighbourhood character, assist with the integration of new development and make efficient use of the site.

· Street setbacks create an appropriate scale for the street considering all other streetscape components.

These outcomes seek to achieve an appropriate scale of development for the street and neighbourhood. As discussed in ‘Neighbourhood Character’ and ‘Building Appearance’ above, the proposed carport is setback only 3.7m from the frontage, and will adversely impact on the existing dwelling, the streetscape, and neighbourhood character.

The proposal would be considered more appropriate and could achieve the planning outcomes and residential design objectives if the carport was reduced in scale, was set back at least 4.5m from the front boundary, and the existing 6m wide driveway was retained (that is, reduce the size of the carport so that the driveway does not require widening). These issues were discussed with the applicant, and they were requested to consider amending the proposal so the carport would be less dominant on the street, however they declined to do so, stating that that a reduced and set back carport would not be able to fully cover their vehicles. It is noted that the only carport within the frontage in the neighbourhood, which the applicant gives as an example, has been designed to be set back 4.5m from the street, and is reduced in size (i.e. double width, and reduced depth), which appropriately balances the need for adequate coverage of vehicles, without adversely impacting on the street and neighbourhood.

Whilst a triple carport on a 4.5m setback is not desirable, at least it would be set back in line with the neighbouring dwelling houses, and therefore would not be as dominant as the proposed 3.7m setback. However, as mentioned above, the applicant has refused to move the carport further back from the frontage. It is noted that a greater setback alone would not be sufficient to achieve an adequate development, as the driveway would still have to be widened to allow for manoeuvring in and out of the site, and as such, the carport also needs to be reduced in size/scale.

It its current form, the proposed carport does not achieve the planning outcomes for setbacks, or the overall objectives for residential design.

7.7-5 - Fences and Walls

The DCP sets the following Planning Outcomes in regard to Fences and Walls:

· Front fences and walls:

– assist in highlighting entrances and creating a sense of identity within the streetscape

– are constructed of materials compatible with associated housing and with fences visible from the site that positively contribute to the streetscape

– provide for facilities in the street frontage area such as mail boxes.

The proposal does not relate to fencing.

Bulk and Scale Objectives

· To allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring developments.

· To encourage the sharing of views, while considering the reasonable development of the site.

The development is considered to be inconsistent with the above objectives, as detailed below.

7.7-6 - Visual Bulk

The DCP sets the following Planning Outcome in regard to Visual Bulk:

· Built form accords with the desired neighbourhood character of the area with:

- side and rear setbacks progressively increased to reduce bulk and overshadowing

- site coverage that retains the relatively low density landscaped character of residential areas

- building form and siting that relates to landform, with minimal land shaping (cut and fill)

- building height at the street frontage that maintains a comparable scale with the predominant adjacent development form

- building to the boundary where appropriate.

While the proposed carport will fit within the bulk and scale envelope, its great size and reduced setback from the street will result in a building form that does not accord with the neighbourhood character from a streetscape perspective. As noted previously in this report, the existing dwelling and garaging at the frontage has already been built using the minimum setbacks, leaving little scope for further development. A carport reduced in scale, that is, reduced in size and setback at least 4.5m from the street, could allow a carport to be located in the frontage in a way that reasonably protects the amenity of the neighbourhood.

The applicant, however was unwilling to compromise in this regard, stating that the existing vegetation provides sufficient screening. Although the boundary vegetation provides some screening, it is not considered sufficient alone, and that the scale and setback of the carport also needs to be reduced to ensure that the impacts are not unreasonable or adverse. It is also noted that the vegetation along the northern boundary, which provides for most of the screening is likely to need trimming back to facilitate the building and siting of the carport, and less foliage will need to be maintained in the long-term due to conflict between the vegetation and the carport (see Figure 2).

20170725_153410_resized_1

Figure 2 - photograph of northern boundary vegetation

As such, the proposal does not meet the planning outcomes for visual bulk, or the overall bulk and scale objectives.

7.7-7 - Walls and Boundaries

The DCP sets the following Planning Outcome in regard to Walls and Boundaries:

· Building to the boundary is undertaken to provide for efficient use of the site taking into account:

- the privacy of neighbouring dwellings and private open space

- the access to daylight reaching adjoining properties

- the impact of boundary walls on neighbours.

The proposed side setbacks will ensure there will be no privacy or daylighting impacts on the adjacent residential properties.

7.7-8 - Sunlight and Daylight

The DCP sets the following Planning Outcome in regard to Daylight and Sunlight:

· Buildings are sited and designed to ensure:

- daylight to habitable rooms in adjacent dwellings is not significantly reduced

- overshadowing of neighbouring secluded open spaces or main living area windows is not significantly increased

- consideration of Council’s Energy Efficiency Code.

As mentioned previously, the proposed carport can be contained within the bulk and scale envelope, and complies with side setbacks, therefore there will be no adverse impacts to neighbouring properties in terms of sunlight and daylight to windows and areas of private open space.

7.7-9 - Views

The DCP sets the following Planning Outcomes in regard to Views:

· Building form and design allow for residents from adjacent properties to share prominent views where possible.

· Views including vistas of heritage items or landmarks are not substantially affected by the bulk and scale of the new development.

There are no prominent views, or vistas, from the property, therefore these outcomes are not relevant to the application.

Site Access and Circulation Objectives

· To provide convenient and safe access and parking that meets the needs of all residents and visitors.

· To encourage the integrated design of access and parking facilities to minimise visual and environmental impacts.

The proposed development is inconsistent with the above objectives, as detailed below.

7.7-14 - Circulation Design

The DCP sets the following Planning Outcome in regard to Circulation and Design:

· Accessways and parking areas are designed to manage stormwater.

· Accessways, driveways and open parking areas are suitably landscaped to enhance amenity while providing security and accessibility to residents and visitors.

· The site layout allows people with a disability to travel to and within the site between car parks, buildings and communal open space.

The proposal does not seek to alter access arrangements to the site, however a wider driveway would be required to provide adequate vehicle manoeuvring in and out of the carport. As discussed earlier in this assessment, a 9m driveway would be required, which is 3m wider than the maximum 6m set out in the DCP. This would result in adverse visual impacts to the street and neighbourhood, as the property would have additional hard standing areas and less landscaped areas. Landscaped areas in the frontage are required to ‘soften’ the visual impact of a dwelling and its garaging and driveways into a streetscape, to provide for an attractive neighbourhood, as well as mitigate stormwater runoff from the property onto the street. It is also noted that there are safety concerns with the proposed carport being used as vehicle parking and manoeuvring, as well as a children’s play area. It is not considered appropriate to locate children’s recreational areas within the driveway due to potential vehicle conflicts.

It is considered that the proposal does not achieve the planning outcomes in regards to circulation design, or the overall objective for site access and circulation.

7.7-15 - Car Parking

The DCP sets the following Planning Outcomes in regard to Car Parking:

· Parking facilities are provided, designed and located to:

- enable the efficient and convenient use of car spaces and accessways within the site

- reduce the visual dominance of car parking areas and accessways.

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

The proposed carport will increase the number of parking spaces originally proposed and approved for the subject lot. There is an existing double garage in the backyard, and a triple garage attached to the existing dwelling, providing for 5 covered car parking spaces. The addition of the proposed carport would result in 8 covered parking spaces on the site, which is well above average, and out of character for the neighbourhood.

It is noted that the DCP only requires 1.7 parking spaces for a dwelling with 3 or more bedrooms. Recent census data (2016) states that around 50% of Orange residents have access to more than 2 motor vehicles, and this appears to be the case for the applicant, who requires more than the average number of covered parking spaces.

However, the need for additional vehicle parking on the site should not be to the detriment of the neighbourhood, and it is considered that the proposal could easily be amended to be more suitable for the site and surrounds.

In its current form, the proposed development does not meet the planning outcomes for car parking, or the overall objectives for site access and circulation, as the proposed parking spaces would not retain the residential character of the area, and will result in an increase of visual dominance of garaging, car parking, and driveway/hard standing areas on the site.

7.7-16 - Private Open Space

The DCP sets the following Planning Outcomes in regard to Private Open Space:

· Private open space is clearly defined for private use.

· Private open space areas are of a size, shape and slope to suit the reasonable requirements of residents including some outdoor recreational needs and service functions.

· Private open space is:

– capable of being an extension of the dwelling for outdoor living, entertainment and recreation

– accessible from a living area of the dwelling

– located to take advantage of outlooks; and to reduce adverse impacts of overshadowing or privacy from adjoining buildings

– Orientated to optimise year round use.

The carport will not impact on the availability of, or access to private open space on the site. Given the proposal will result in adverse impacts to the street and neighbourhood, it is considered that the site offers ample alternative areas to the rear of the dwelling to provide for covered vehicle storage and recreational spaces, that can be designed in a way that do not impact on the neighbourhood and the streetscape, yet still provide adequate private outdoor areas. It is also considered more appropriate, in terms of security and safety, that children’s recreational areas and play equipment are located to the rear of the site, where the driveway poses potential vehicle conflicts.

7.7-17 - Open Space and Landscaping

The DCP sets the following Planning Outcomes in regard to Open Space and Landscaping:

· The site layout provides open space and landscaped areas which:

– contribute to the character of the development by providing buildings in a landscaped setting

– provide for a range of uses and activities including stormwater management

– allow cost effective management.

· The landscape design specifies landscape themes consistent with the desired neighbourhood character; vegetation types and location, paving and lighting provided for access and security.

· Major existing trees are retained and protected in a viable condition whenever practicable through appropriate siting of buildings, accessways and parking areas.

· Paving is applied sparingly and integrated in the landscape design.

The carport will be located over the existing concrete driveway, however the driveway width in the frontage and at the street will need to be increased to provide for adequate manoeuvring of vehicles in and out of the site. As such, the provision of unpaved area will be reduced in the front garden area, thereby reducing landscaping and permeable areas, resulting in adverse visual impacts to the street and neighbourhood, and increasing stormwater runoff from the site to the street. Stormwater is discussed in more detail below. It is considered that the proposal does not meet the planning outcomes for open space and landscaping.

Water and Soil Management Objectives

· To control and minimise the impact of stormwater run-off and soil erosion on adjoining land and downstream.

· To encourage reduced water wastage by reusing, recycling and harvesting stormwater.

The development is inconsistent with the above objectives, as detailed below.

7.7-18 - Stormwater

The DCP sets the following Planning Outcomes in regard to Stormwater:

· Onsite drainage systems are designed to consider:

– downstream capacity and need for on-site retention, detention and re-use

– scope for on-site infiltration of water

– safety and convenience of pedestrians and vehicles

– overland flowpaths.

· Provision is made for onsite drainage which does not cause damage or nuisance flows to adjoining properties.

It is assumed that the carport guttering will be connected to the existing stormwater system, however the driveway width will need to be increased to provide for adequate manoeuvring of vehicles. The reduction of landscaping and permeable areas in the frontage will increase stormwater runoff from the site to the street, which may result in impacts to the existing stormwater system during heavy/flash rainfall events. The application has not addressed this matter, and as such, these planning outcomes and the overall objectives have not been met.

7.7-19 - Erosion and Sediment Control

The DCP sets the following Planning Outcome in regard to Erosion and Sedimentation:

· Measures implemented during construction to ensure that the landform is stabilised and erosion is controlled.

It is assumed that the carport guttering will be connected to the existing stormwater system, and soil erosion can be managed at construction stage. Therefore impacts to neighbouring properties will be minimal.

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 proposed works do not require the upgrading of the existing dwelling house.

BASIX Commitments (clause 97A)

The provisions of BASIX will do not apply to a Class 10a carport.

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

Neighbourhood Amenity and Visual Impacts

The pattern of development in the surrounding area is exceptionally consistent, and as discussed in the DCP assessment, the proposed triple carport being 40m² in size and only setback 3.7m from the street frontage, coupled with the need to increase the width of the existing driveway to 9m, will not be in keeping with the surrounding neighbourhood character and will be visually dominant in the streetscape.

In its current form, the proposed carport does not meet the DCP objectives for ‘Residential Design’, ‘Bulk and Scale’, ‘Site Access and Circulation’, and ‘Open Space and Landscaping’; nor meet the DCP planning outcomes for ‘Neighbourhood Character’, ‘Building Appearance’, ‘Setbacks’, ‘Visual Bulk’, ‘Circulation Design’, ‘Car Parking’, and ‘Open Space and Landscaping’ as follows:

· the proposed site layout will not achieve an attractive and cohesive streetscape and residential environment

· the appearance of the carport is not of a high visual quality and will not enhance the streetscape

· the carport has not been designed to complement the features and built form that characterises the area

· the carport has not been designed to minimise visual impacts.

Overall, the proposed carport is likely to adversely affect the visual and residential quality of the existing streetscape and neighbourhood character. Mitigation of these impacts is possible by reducing the scale of the carport, and setting it back at least 4.5m from the street, however the applicant is not willing to amend its design.

Traffic Impacts

The proposed carport will not generate an increase in traffic movements compared to the existing or approved situation, however, adequate circulation can only be achieved if the driveway is widened to triple width. The proposal is unlikely to have any traffic impacts if the driveway is widened, but this would be to the detriment of the residential amenity of neighbouring properties and the wider neighbourhood.

Environmental Impacts

The subject land is highly modified and well established with no significant vegetation, threatened species or ecological endangered communities or their habitats. No changes are proposed to the existing landscaping on the site, however the driveway will need to be widened to provide for adequate manoeuvring in and out of the site. This will result in a reduction of landscaping and permeable areas in the frontage, and will increase stormwater runoff from the site.

In its current form, the proposed carport does not meet the DCP objectives for ‘Residential Design’, ‘Site Access and Circulation’, ‘Open Space and Landscaping’ and ‘Water and Soil Management’; nor meet the DCP planning outcomes for ‘Circulation Design’, ‘Open Space and Landscaping’, and ‘Stormwater’ as follows:

· the carport has not been designed to fit into its setting and environmental features of the locality

· the carport has not been designed to minimise environmental impacts

· the carport has not been designed to apply paving sparingly, integrate suitable landscaping, or to control and minimise stormwater run-off.

Overall, the proposed use is likely to impact upon the local environment, and no mitigation measures have been proposed.

Cumulative Impacts

The development may present cumulative impacts within the locality by setting a precedent for inappropriate carports in the street and neighbourhood. Whilst a carport is generally considered an appropriate use of land, the design and siting of this carport is not consistent with the objectives and planning outcomes of the LEP and DCP.

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

It is considered that the site is suitable for a carport, as the land is appropriately serviced and there are no known physical attributes, technological or natural hazards which constrain the site. However, as assessed above, the design and siting of the carport in its proposed form do not meet the objectives, and planning outcomes of both the LEP and DCP. Suitable alternatives exist on the site, such as a carport of reduced scale and greater setback in the frontage, or a carport/covered area to the rear, which could achieve similar intentions that are not detrimental to the neighbourhood or environment.

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. However, the application was notified to neighbours for a period of 14 days, and at the end of that period, no submissions were received in relation to this application.

PUBLIC INTEREST s79C(1)(e)

The proposed development is considered to be of minor interest to the wider public due to the localised nature of potential impacts. The proposed carport would result in adverse impacts to the neighbourhood character, and may result in cumulative impacts by setting an inappropriate precedent.

SUMMARY

The proposed development is permissible with the consent of Council. The applicant has not demonstrated that the proposed development complies with the relevant objectives and planning outcomes of the LEP and DCP. A Section 79C assessment of the development indicates that the development is likely to result in adverse impacts which cannot be mitigated unless the carport is redesigned. The applicant is unwilling to concede in this regard, and as such, the proposal is considered unacceptable, and refusal of the application is recommended. Attached is a draft Notice of Refusal.

Attachments

1 Notice of Refusal, D17/68528 ⇩

2 Plans, IC17/13335 ⇩

3 Supporting Information, D17/63483 ⇩

Reference:	DA112/2016(2)	Determination Date	1 November 2017
PR Number	PR22384
Applicant/s:	The Wellness House Pty Ltd
Owner/s:	Dr TY Chen & The Wellness House Pty Ltd
Location:	Lot 100 DP 1113737 – 55-57 Bathurst Road, Orange
Proposal:	Modification of development consent - medical centre (alterations and additions) and neighbourhood shop (pharmacy). The modification involves part enclosure of the verandah on the southern building façade to provide enlarged consulting rooms.
Value:	$100,000 (being the same value as the original development)

Reference:	DA233/2017(1)	Determination Date	2 November 2017
PR Number	PR25414
Applicant/s:	Stevens Group
Owner/s:	Orange Service Centre Pty Ltd
Location:	Lot 85 DP 1167633 – 5 Hanrahan Place, Orange
Proposal:	Highway service centre and signage
Value:	$1,400,000

Reference:	DA287/2017(2)	Determination Date	30 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:	Modification of development consent -conversion of Shop and Dwelling to Principal and Secondary Dwelling. The modification is seeking approval for an amended plan that indicates a room formerly shown as a bedroom as actually a bathroom.
Value:	$2,000 (being the same value as the original development)

Reference:	DA 301/2017(1)	Determination Date	9 November 2017
PR Number	PR26105
Applicant/s:	J & J Stojanovic
Owner/s:	Orange Investments (NSW) Pty Ltd
Location:	Lot 9 DP 1183249 - 225 McLachlan Street, Orange
Proposal:	Vehicle repair station and vehicle sales or hire premises
Value:	$450,000

Reference:	DA 302/2017(1)	Determination Date	8 November 2017
PR Number	PR10176
Applicant/s:	Mr RM Pitt
Owner/s:	Mr RM Pitt
Location:	Lot 1 DP 531400 – 47-49 Prince Street, Orange
Proposal:	Subdivision (two lot residential), Dwelling House, Secondary Dwelling (change of use) and Demolition (tree removal)
Value:	$0

Reference:	DA 310/2017(1)	Determination Date	2 November 2017
PR Number	PR6190
Applicant/s:	Mr KW and Mrs HL Cochrane
Owner/s:	Mr KW and Mrs HL Cochrane
Location:	Lot 1 DP 197845 – 19 Kite Street, Orange
Proposal:	Demolition (existing shed) and Serviced Apartment
Value:	$65,000

Reference:	DA 316/2017(1)	Determination Date	6 November 2017
PR Number	PR5636
Applicant/s:	Mr B Inwood
Owner/s:	Ms N Yousif
Location:	Lot 64 DP 258354 – 33 Jilba Street, Orange
Proposal:	Dwelling house and secondary dwelling
Value:	$400,000

Reference:	DA 318/2017(1)	Determination Date	17 October 2017
PR Number	PR25189
Applicant/s:	Southern Cross Austereo
Owner/s:	Keratin NSW Pty Ltd
Location:	Lot 3 SP 84946
Proposal:	Telecommunications Facility (radio transmission mast)
Value:	$50,000

Reference:	DA 325/2017(1)	Determination Date	6 November 2017
PR Number	PR8737
Applicant/s:	Nipperess Investments Pty Ltd
Owner/s:	Nipperess Investments Pty Ltd
Location:	Lot 29 DP 11439 – 107 Moulder Street, Orange
Proposal:	Office premises (change of use from dwelling house)
Value:	$20,000

Reference:	DA 327/2017(1)	Determination Date	9 November 2017
PR Number	PR26583
Applicant/s:	Waratah Sapling Children’s Centre Pty Ltd
Owner/s:	Mr RM Hay
Location:	Lot 110 DP -1194964 – 56 Farrell Road, Orange
Proposal:	Centre based child care facility (additions)
Value:	$270,000

Reference:	DA 361/2017(1)	Determination Date	2 November 2017
PR Number	PR10006
Applicant/s:	Lyndon Community
Owner/s:	Ms JZ Bond
Location:	Lot 177 DP 775277 – 6 Lysterfield Road, Orange
Proposal:	Group home (transitional) (change of use)
Value:	$0

Reference:	DA 364/2017(1)	Determination Date	3 November 2017
PR Number	PR8325
Applicant/s:	Mr JA Vandenberg
Owner/s:	Amberlend Pty Limited
Location:	Lot 4 DP 233405 – 45-47 McNamara Street, Orange
Proposal:	Small bar
Value:	$0

Reference:	DA 368/2017(1)	Determination Date	27 October 2017
PR Number	PR11592
Applicant/s:	Mr D Angley
Owner/s:	Rossi Orchards Pty Ltd
Location:	Lot 1 DP 38588 – 178 Summer Street, Orange
Proposal:	Retail (alterations and additions) and signage
Value:	$15,000

Reference:	DA 385/2017(1)	Determination Date	16 November 2017
PR Number	PR17469
Applicant/s:	Rotary Club of Orange Daybreak
Owner/s:	Sentinel Orange Homemaker Pty Ltd
Location:	Lot 2 DP 270204 – 168-200 Lone Pine Avenue, Orange
Proposal:	Temporary use of land (car show)
Value:	$0

Reference:	DA 395/2017(1)	Determination Date	15 November 2017
PR Number	PR27554
Applicant/s:	R & JE White Superfund
Owner/s:	Orange City Council
Location:	Lot 200 DP 1227253 - Astill Drive and Lot 55 DP 1063083 – 4 Elwin Drive, Orange
Proposal:	Earthworks (retaining walls and filling portion of site)
Value:	$20,000

Development Application
Applicant Name:	Boral Resources (Country) Pty Limited
Applicant Address:	Attention Ms R Bestic PO Box 6041 NORTH RYDE NSW 2113
Owner’s Name:	Mr GJ and Mrs M Taylor
Land to Be Developed:	Lot 105 DP 1109491 - 1938 Millthorpe Road, Shadforth (formerly parts of Portions 36, 71 and 147, and Lot 14 DP 113054, Parish of Shadforth, County of Bathurst)
Proposed Development:	Basalt Quarry Operation

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

Consent to Operate From:	4 October 1992

*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 December 2017

	7 The proposed stormwater design will result in unsatisfactory impacts upon the residential amenity of Dwellings 6 and 9. An alternative solution that improves the amenity of those dwellings would have unacceptable impacts upon the large mature Deodar Cedar (Cedrus deodara) on the northern side of the Newstead building (former mansion).

Right of Appeal:	Applicant: 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. Objector: The Environmental Planning and Assessment Act 1979 does not give a right of appeal against this determination to an objector.

Signed:	On behalf of the consent authority:
Signature:
Name:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	8 December 2017