Agenda of Planning and Development Committee

Planning and Development Committee 14 August 2018

2.2 Development Application DA 86/2018(1) - 194A March Street

RECORD NUMBER: 2018/1891

AUTHOR: Kelly Walker, Senior Planner

EXECUTIVE Summary

Application lodged	14 March 2018
Applicant/s	Bassmann Drafting Services
Owner/s	Rusty Man Pty Ltd & 2 Pursue Mt Hay Pty Ltd & DR 8 Pty Ltd
Land description	Lot 222 DP 1239110 - 194A March Street, Orange
Proposed land use	Boarding House (three boarding houses) and Subdivision (three lot Strata)
Value of proposed development	$1,940,000

Council’s consent is sought for development of land at 194A March Street, Orange (Figure 1) for the purpose of boarding houses. The subject site was recently created by a subdivision pursuant to DA 158/2017(2) (amended) to excise the historic cottage at the site frontage, demolish the shed on the site and create a vacant battle-axe development lot.

Figure 1: locality plan

The proposal involves construction of three two-storey boarding house buildings, each containing eight self-contained rooms. Each building contains four single rooms, four double rooms and a shared common room with kitchen. Shared outdoor open space areas will be provided for each building. One of the double rooms (in building ‘B’) will be a manager’s room which has a private courtyard. Onsite vehicle parking will be available comprising 24 car parking spaces, six motorcycle parking spaces, and bicycle racking. The boarding houses will provide residential accommodation for lodgers for three months or more. The applicant states that the boarding houses will be used by medical staff and professionals. A three lot Strata subdivision is also proposed to excise each building/ boarding house onto a separate Strata lot.

The proposal comprises ‘boarding houses’ pursuant to State Environmental Planning Policy (SEPP) (Affordable Rental Housing) 2009 (hereafter referred to as the ‘Affordable Housing SEPP’). Boarding houses provide a form of low cost, self-contained, rental accommodation for a wide range of tenants, including singles, retirees, students, and young couples. The Affordable Housing SEPP contains clear standards for the design and construction of boarding houses in order to increase the supply and diversity of affordable rental housing throughout NSW.

The proposal comprises advertised development pursuant to Orange Development Control Plan 2004 (the ‘DCP’). At the completion of the exhibition period 43 submissions were received in opposition to the development from a total of 31 persons. A petition opposing the development was also submitted, containing 173 signatures. The submissions generally relate to the proposal not fitting in with the character of the area, heritage impacts, and the potential for adverse social, traffic, noise, visual, privacy and amenity impacts on the neighbourhood. One late submission was received in support of the application from the Australian Housing Initiative. All submissions were considered in preparing this report.

The subject land is located in East Orange and adjacent to and opposite locally listed heritage items. Council staff and Council’s Urban Design and Heritage Advisor do not support the proposal on the grounds that that the site layout and building design have minimal elements which relate to the traditional character and pattern of development of the surrounding area, and insufficient landscaping can be provided. On this basis it is considered that the proposal will not harmonise with the character of the local area and will adversely impact on neighbourhood character, the heritage significance of the setting, and neighbouring amenity pursuant to Section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979, Clause 30A of the Affordable Housing SEPP, Clause 5.10(4) of Orange Local Environment Plan 2011 (the ‘LEP’), Chapters 7 and 13 of Council’s DCP, and Council’s Infill Guidelines.

It is noted that unlike traditional boarding houses, which provide temporary lodger accommodation and shared facilities, the “new generation” boarding houses allow for self-contained studios with their own kitchenettes and bathrooms. The term ‘boarding house’ can be misconceived, with images of run down accommodation and social housing, and can be met with opposition, as demonstrated in this case. The proposal could be significantly improved through better site layout, improved building design, and the use of extensive landscaping; which would improve the amenity of the site and neighbourhood, and mitigate impacts on the neighbourhood, including traditional bad connotations around ‘boarding houses’. By utilising landscaping as a major design outcome, the proposal could achieve greater livability, detract from the small nature of the living spaces, mitigate impacts on neighbouring properties, and assist in harmonising the development into the surrounding heritage setting and neighbourhood.

Ongoing discussions have been carried out with applicant, and these concerns have been passed onto the applicant for further consideration. The applicant, however, appears reluctant to make changes to the site layout as it would reduce the number of boarding rooms and car parking spaces onsite and this would not be economically viable. Council’s senior staff have indicated on many occasions that the proposal in its current form is not capable of support.

As such, it is recommended that Council does not support the proposal in its current form, and refuses the application. Attached is a draft Notice of Refusal.

RECENT LEGISLATIVE CHANGES

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

DECISION FRAMEWORK

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

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

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

DIRECTOR’S COMMENT

This development application involves ‘new generation’ boarding houses. State Environmental Planning Policy (SEPP Affordable Housing) stipulates numerous standards that a Council cannot overrule. The State has created the SEPP to ensure there is an adequate supply of this type of housing across NSW. According to the SEPP, however, a consent authority must not consent to a development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. It is the opinion of staff that, due to the nature of the surrounding locality and the potential overdevelopment of the site as proposed, Council is in a position to refuse the development on the grounds that it is, indeed, not compatible with the character of the local area. This is also the opinion of the numerous surrounding residential objectors in the precinct. A draft Notice of Refusal is attached to this report should Council concur. Should Council wish to approve the development then staff will bring back a draft Notice of Approval to a subsequent meeting of Council for consideration.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council refuses development application DA 86/2018(1) for Boarding House (three boarding houses) and Subdivision (three lot Strata) at Lot 222 DP 1239110 - 194A March Street, Orange pursuant to the reasons in the attached Notice of Refusal.

further considerations

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

SUPPORTING INFORMATION

THE PROPOSAL

Council’s consent is sought for development of land at 194A March Street, Orange for the purpose of ‘boarding houses’.

The proposal involves construction of three two-storey boarding house buildings, each containing eight self-contained rooms. Each building contains four single rooms, four double rooms and a shared common room with kitchen. Shared outdoor open space areas will be provided for each building. One of the double rooms (in building ‘B’) will be a manager’s room which has a private courtyard. Onsite vehicle parking will be available comprising 24 car parking spaces, six motorcycle parking spaces, and bicycle racking for eight bicycles. A three lot Strata subdivision is also proposed to excise each building/ boarding house onto a separate Strata lot.

The boarding houses will provide furnished residential accommodation for lodgers for three months or more. The applicant states that the boarding houses will be aimed at medical staff and professions, and are “new generation” as they are all self-contained. Each room provides a bedroom, bathroom and small kitchen. A washing machine is provided in each room, either within its own laundry, within the bathroom, or within the kitchen. The double rooms contain a lounge room area. Each room is allocated an onsite car parking space and each building is allocated two motorcycle parking spaces. Bin storage areas are proposed along the driveway to the west of each building.

Each building can contain up to twelve residents, resulting in a total maximum occupancy of 36 persons onsite. Lodgers are responsible for their own meals, laundry and cleaning of their own room. The manager or a professional contractor will clean the common areas, maintain the grounds, and put out and bring in the bins on collection day.

PROCEDURE AND BACKGROUND

Pre-Lodgement

Pre-lodgement advice was provided on numerous occasions in 2017 based on draft plans for the site. Overall, it was considered that the proposal was inconsistent with the character of the area, and that it needed to be comply with the LEP, DCP, Infill Guidelines, and the Affordable Housing SEPP. The finer details and requirements of the proposal were also discussed, such as car parking, driveway widths, number of waste bins required, types of trees that would be appropriate etc. Formal advice from Council’s Urban Design and Heritage Advisor was provided to the applicant in August 2017, where it was considered that the proposed scale, form, siting, detailing, landscaping, hardstand areas and spacing between buildings were inconsistent with the character of the surrounding area and heritage setting, and inconsistent with Council’s DCP and Infill Policy. It was recommended that, being a two-storey development, a visual study from surrounding streets would need to be undertaken. This advice highlighted fundamental issues which needed to be addressed through an amended site layout and building design. It is understood that discussions also took place between the applicant and Council’s Technical Services Division in regards to servicing requirements.

Lodgement

The applicant lodged this subject application in March 2018, and a preliminary assessment found that the application was lacking in the necessary information required to carry out a planning assessment. In particular, Council required Strata subdivision plans, an amended noise report (as the submitted report failed to take into account the immediate neighbouring property to the north), amended shadow diagrams (as those submitted failed to take all shadows into account) and manoeuvring details for parking spaces. A site meeting was held with the applicant, Council staff, and Manager Development Assessments. The applicant provided the necessary information with the exception of amended shadow diagrams.

Although no merit assessment is made at the lodgement stage of the application, issues of landscaping, trees, hardstand areas, parking and waste storage were reiterated in the request for further information in accordance with previous advice. The applicant amended the waste storage areas and added one additional tree at the end of the driveway area. The application was accepted for lodgement and placed on public exhibition for the prescribed period.

Following Exhibition

Following exhibition 43 submissions were received in opposition to the development from 31 persons, as well as a petition opposing the development containing 173 signatures. The applicant was provided with a summary of submissions, and issues raised by Council staff and NSW Police. A copy of all submissions was also provided.

Issues raised in the submissions included:

· the proposal being inconsistent with neighbourhood character

· impacts to heritage setting and listed heritage items

· visual impacts

· overshadowing impacts

· overlooking and privacy impacts

· noise impacts

· excessive hardstand areas

· lack of trees and landscaping

· stormwater impacts

· excessive density

· traffic impacts

· parking and pedestrian impacts

· amenity impacts

· crime and security impacts

· socio-economic impacts

· subdivision

· waste impacts

· servicing loads

· cumulative impacts; and

· property values.

The applicant and applicant’s planning consultant responded to the submissions and Council’s letter of issues as follows:

· “Two-storey height - … zoning permits a wide range of residential uses and various other non-residential supporting uses. These include uses which by definition, are two-storeys (residential flat buildings and shop top housing)… The objective [for the zone] would clearly be defeated if all new development was restricted to single storey... The SEE noted that there are examples of two storey development in the area… these are compatible in the local area and form part of its established character… The two-storey height of the development has been moderated by the design of the upper floor as an attic with dormer windows rather than a full height level. We therefore consider that the height of the development is appropriate and there is no sound basis to restrict development on this site to single storey… The design is indeed sympathetic to the area and location. The site layout and car parking is also the best use to ensure all objectives are met in terms of location, solar and providing more than the required parking.

· Density - SEPP (Affordable Rental Housing) 2009 (ARHSEPP) provides that a boarding house cannot be refused on the grounds of density if the floor space ratio (FSR) complies with that prescribed in the LEP or DCP for any form of development in that zone… The site is within a General Residential zone which anticipates developments with a higher density than those in a Low Density zone, consistent with the zone objective “To provide for a variety of housing types and densities”. We therefore consider that the overall density of the development (in terms of the gross floor area, the number of boarding rooms and the number of residents) is appropriate for a boarding house within the General Residential zone.

· Compatibility with local character - The local character test (Clause 30A of ARHSEPP) was addressed in detail in the SEE, applying the tests set out in Project Venture, the LEC Planning Principle case for compatibility of a proposal with surrounding development…. The bulk and scale of the development has been broken up by arranging the development into three buildings, each with the bulk and scale of a typical group of townhouses. This avoids the monolithic appearance which would result from one or two larger buildings. The setbacks of the buildings from side and rear boundaries are generous and exceed those typically provided in other battleaxe developments in the area… it is considered that the proposal will be compatible with the character of the local area in the required legal sense of “capable of existing in harmony”.

· Parking - The development provides 24 parking spaces (1 per boarding room). This high level of provision was considered appropriate given the position of the boarding houses in the centre of a large battleaxe block, a considerable distance from kerbside parking. The proposed parking exceeds the standard of 0.4 spaces per boarding room required by ARHSEPP and this ensures that the development will not impose a burden on local street parking… Street is wide and provides plenty of parking for visitors and servicing, if required.

· Landscaping - The applicant is open to discussions with Council of opportunities to rationalise driveways to further reduce hardstand and provide additional space for trees and landscaping. However it is noted that there are no significant trees on site at present and the trees proposed will significantly improve the existing situation… Consultation during design with council led to the sufficient outdoor open space and we fully comply with the Affordable Housing SEPP (AHSEPP) in this regard; There are ‘no trees’ noted on the site. The landscaping design was and is in keeping with the overall site and area and sufficiently covers the landscaping needs and requirements as well as privacy screening.

· Heritage - It is concluded from the above points that the fundamental parameters of the development - height, density, bulk and scale - are appropriate… Following extensive consultation with Council officers, a modern interpretation of the Federation style was adopted for the development and it is considered that this is an appropriate response to the nearby heritage items and period homes. However, the owner and applicant are open to meeting with Council planning and development management to discuss possible improvements to the development.

· Visual appearance – The design has been done sympathetic to the area and specific location. The comment of poor design, materials and colours (colours listed in Legend are selected from Heritage approved colours) is again unsupported and is a specific limited point of view; The site location and street setback is 43 metres and other boundary setbacks are substantial and have been implemented to address potential concerns with neighbouring properties.

· Overshadowing – The design has been developed with specific regards to the fencing and the shadow diagrams are reflective. There is no impact of overshadowing to residences as the neighbour rear yards are not in question.

· Overlooking – There are greater than required setbacks e.g. varies from 3.3 up to 8, 12 or 19 metres in certain areas, from any neighbour’s boundaries and windows. This has been addressed by positioning the buildings / windows and windows heights which meet DCP guidelines and address any concerns of overlooking and privacy to neighbours.

· Excessive hardscaping areas – Specifics needed for impact to trees and stormwater / overflow. Our designer has worked with Technical Services to ensure compliance and suitability which has been met; The newly provision rear stormwater is also being used accordingly and engineering will be compliant for onsite detention requirements.

· Noise Impacts – The site is compliant with Affordable Housing SEPP, DCP and LEP; the number of people is in line with those policies as is the number bikes and cars, going above and beyond to ensure each suite room has their own car space, if required. The room management rules/policies are a strict guide to living there and are in place to ensure harmonious living by all parties.

· Increased traffic movements - This is a wide street which is capable of handling any potential increase in usage; Understand the point of visitors – however, street parking is more than sufficient; Waste collection and emergency vehicles are already considered, and the access handle is suited to cater for these requirements Technical Services provided; The school is a full 350m away and would pose no further risk than anything else possibly could.

· Pedestrian Safety - These demographics [school children and elderly] are not impacted by this development. It [sic] possible that we could have the elderly living in the development as well. There is a clear line of sight along the driveway and up and down the street for both forward entry and departure from the site by vehicles.

· Poor amenity – The specifics of the Affordable Housing SEPP have been met (exceeded) and are relative to the suite rooms being provided; solar access has been met and the term ‘small room’ is relative to the individual – there is evidence and policy that this is sufficient for 1 or 2 occupants and provides cost effective living; Outdoor space also meets SEPP guidelines and acoustically we have demonstrated compliance.

· Crime and Security/Safety – CCTV and lighting requirements will be compliant to ensure appropriate monitoring and very minimal disturbance, given the noted neighbour boundary locations, during the construction design. This development would not increase crime and impact on safety as our target market are medical / professionals / services staff and is also supported by the overall site design layout and features. A lockable entrance gate was not favoured by Council during pre-discussions due to noise impacts to neighbours with its operation and was also deemed unnecessary. The proposal currently caters sufficiently for emergency access and all fire safety requirements will be compliant from the construction design. The onsite manager room is not actually required as per the AHSEPP, but the development has provisioned one in a central and optimum location to ensure effectiveness.

· Socio-economic impacts - This New Generation Boarding House (NGBH) housing accommodation is targeting the services staff, Medical Staff… plus other Professional Services staff… We know there is strong requirement for this type of accommodation given the number of nurses and other medical staff currently renting by the bedroom in shared housing throughout Orange, as one example. Our accommodation provides self-contained suite rooms. There are also additional requirements for mature aged people, particularly 55 years plus women who may be widowed or separated and require accommodation, so they are able to get access to safe and affordable housing solutions. It should also be noted that we are providing Accessible suite rooms housing for the disabled within the community. “This is NOT social housing”.

· Subdivision - … we are NOT sub-dividing the individual buildings just the overall development.

· Increased load on services - The engagement of technical services and our plan has been considered with Civil Engineering; The electricity and emergency services relevant here has already been considered.

· Waste - … there is sufficient waste storage securely located away from neighbours and the general public, whilst located close to the individual buildings. It is also in compliance with the number of bins needed, with an allowance already made for added bin capacity, if required. A separate collection point has been provisioned in the access handle for weekly collection by waste management services.

· Several other issues raised in submissions are not relevant matters for consideration… these include:

- Speculation regarding the nature, behaviour and character of the future residents and enforcement of Plan of Management. The Plan of Management is an appropriate method to ensure social impacts are appropriately managed. This has been upheld in many LEC cases such as Eminent Constructions v Hurstville City Council [2011] NSWLEC 1358 where it was held that: There is also no evidence to suggest increased criminal or anti-social behaviour associated with what is described as a "new generation" boarding house. Furthermore, a Management Plan is a proposed condition of approval and deals with matters such as security, resident amenity and resident conduct matters.

- Characterisation as a commercial-type use: See The Hills Shire Council v Sales Search Pty Ltd [2013] NSWLEC 103 which confirms that a boarding house is a form of residential accommodation and it is the use by the occupants which is relevant, not its use by the owner to derive rent.

- Impact on property values: This has consistently been rejected as a relevant factor in planning matters.

- No need for boarding houses in this area: Boarding house is a permissible use in the zone and is consistent with the zone objective “To provide for a variety of housing types and densities.” The site is within walking distance (800m) from Orange CBD and the development is proposed in response to high demand for affordable, compact, flexible accommodation with good access to employment, services and facilities.

- Engineering, service connection and stormwater matters which are more appropriately addressed at Construction Certificate stage.”

As addressed in the main body of this report, Council staff do not generally accept the applicant’s comments and justification. Although the proposed use of the land as boarding houses is permitted with consent in the R1 General Residential zone, the site layout and building design are incompatible with the character of the surrounding area and heritage setting, as set out in Council’s pre-lodgement advice. The applicant notes that reducing the proposed development from 30 rooms and car parking spaces (pre-lodgement number) down to 24 (proposed number) and amending the building design elements (materials, windows, colours etc) has adequately addressed the pre-lodgement issues raised. However, Council staff and Council’s Urban Design and Heritage Advisor consider that the proposed development formally lodged with Council has not adequately addressed the issues raised, particularly in regards to character, heritage and amenity impacts.

The main court case relied upon by the applicant is applicable to the proposed development, however as it predates the Affordable Housing SEPP, subsequent Case Law has expanded the criteria relevant to this application. This is discussed in greater detail in the “LEP” assessment section later in this report.

It is also noted that submitted shadow diagrams do not accurately reflect the proposal, despite the applicant’s claims that they do. Although a ‘streetscape perspective’ drawing was submitted in support of the proposal, it only shows a cross section of the site and does not show the proposed development in the context of the surrounding buildings, streets or neighbourhood.

Ongoing Discussions

Council’s Manager Development Assessments and Director Development Services have written to the applicant numerous times setting out the issues and concerns with the proposal, firmly recommending redesign. The applicant has only responded in so far as to further justify the current proposal. Although the applicant states that he is willing to work with Council to make amendments, significant changes to the site layout and building design are required to render the proposal more acceptable. The applicant has not made any serious attempt to make such changes where he believes he has adequately addressed all matters, and that any further reduction in number of rooms and/or car parking would result in a commercially unviable project.

Council’s Planning Procedures and Protocols policy sets out how community notification is to be carried out (in addition to legislative requirements), and that states Council undertakes:

“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 by the relevant authority”.

As noted above, the proposed development poses many fundamental issues, and significant improvements need to be made to the building design and site layout. Given the applicant’s response to Council staff and submitter’s concerns to date, Council’s Director Development Services has declared that a meeting to negotiate between parties in accordance with this policy would be unproductive.

MATTERS FOR CONSIDERATION

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

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

Having regard to the relevant provisions and based on an inspection of the subject property, it is considered that the proposed development is not likely to significantly affect a threatened species. A Biodiversity Development Assessment Report is not required in this instance.

The site inspection of the subject property indicated that there is no biodiversity or habitat value.

Section 4.15

Section 4.15 of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

(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,

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

The application is considered to be consistent with aims (b) and (e) above where it provides for affordable housing choices, but is inconsistent with aims (a) and (f). The following assessment demonstrates that the site layout and built form of the proposed development are inconsistent with the character of the surrounding area and listed heritage items. Matters pertaining to the development’s compatibility with the local character of the area, and the relevant planning controls relating to the built form and heritage, have been 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 1.7 - Mapping

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

Land Zoning Map:	Land zoned R1 General Residential
Lot Size Map:	No minimum lot size
Heritage Map:	Not a heritage item or conservation area; but adjoining a local 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
Flood Planning Map:	Not a flood planning area

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

The property has numerous easements in relation to sewerage and water drainage extending into neighbouring lots to the north and south. The proposed site layout takes these easements into account to ensure they will not be adversely affected. Council staff are not aware of the title of the subject property being affected by any of the other instruments listed above.

Part 2 - Permitted or Prohibited Development

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

The subject site is located within the R1 General Residential zone. The proposed development is defined as “boarding houses” and “subdivision”. Pursuant to the LEP Dictionary:

Boarding house means a building that:

(a) is wholly or partly let in lodgings, and

(b) provides lodgers with a principal place of residence for 3 months or more, and

(c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and

(d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers

Boarding houses are permitted with consent in the R1 zone.

Pursuant to Section 4B of the Environmental Planning and Assessment Act:

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

Subdivision is permitted with consent pursuant to Clause 2.6 of the LEP (see below).

Clause 2.3 - Zone Objectives

The objectives for land zoned R1 General Residential are as follows:

· To provide for the housing needs of the community.

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

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

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

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

The proposal is consistent with the relevant zone objectives as considered below:

- The proposal will provide an affordable rental housing option to supplement housing needs in the community;

- The proposed boarding houses will contribute to the variety of housing types and densities in the neighbourhood;

- The subject land is located in proximity to local and neighbourhood shops, and accessible via public transport; and

- The subject land is not within proximity to the Southern Link Road.

Clause 2.6 - Subdivision - Consent Requirements

Clause 2.6 is applicable and states:

(1) Land to which this Plan applies may be subdivided but only with development consent.

Consent is sought for a three lot Strata subdivision of the development in accordance with this clause.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

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

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

Clause 5.10 is applicable and states in part:

(1) The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

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

(c) to conserve archaeological sites,

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

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

The subject land is located in the vicinity of the following Heritage Items (see Figure 2):

(i) Dwelling at 68 Autumn Street (corner of March Street) - the residence retains the distinctive features from the original art deco style, including the external character with distinctive rendered masonry walls, semi-circular rooms and a sympathetic garden setting. It complements the streetscape and is one of a significant group of the same style and builder (Crossman), contributing as a Heritage Item.

(ii) ‘Newman Park’ at 197 March Street - a civic landscaped park of 2 hectares, significant for its exotic trees of more than 100 years in age. The park was constructed in 1890 and the trees were planted in the 1890s. The 16 Oak trees were added at the end of World War One by servicemen and pupils of East Orange Public School to commemorate former pupils who had died in the war. The park complements the streetscape and contributes to the area, and is highly valued by the community.

(iii) ‘Rowena House’ at 81 Autumn Street - the late Victorian buff brick residence with hipped roof and brick chimneys has retained the distinctive original features, including the bullnose return verandah with cast iron brackets, and a cottage garden, which complements the streetscape and contributes to Orange as a Heritage Item.

(iv) ‘East Orange Public School’ at 45-71 Spring Street, 206-212 March Street and 46‑56 Nile Street - the school precinct is of social significance to the local community, historically marking the mature growth of East Orange and the early buildings, including the 1925 classical block. Mature trees with cultural landscape significance exist in the grounds. Orange East Public school was established in 1890, and enrolments increased in the 1950s when the United Protestant Association opened ‘Buena Vista Boys’ Home’ immediately opposite. The school complements the streetscape and contributes to Orange as a Heritage Item, and is highly valued by the community.

(v) ‘Buena Vista Boys' Home’ at 199-211 March Street (corner Nile Street) - a fine rendered and painted masonry residence in the Gothic style which has retained the distinctive original features, including the verandah, slate roof, chimneys and decorative mouldings. It is a rare building type and style, and complements the streetscape and contributes to Orange as a Heritage Item.

Figure 2: listed buildings and items (in beige hashing)

The subject land is considered to be within a “heritage setting” given the character of the surrounding area, and the proximity to numerous heritage items as set out above. It is noted that the subject land is not within a Heritage Conservation Area. Heritage settings are highly valued by the community, and the Council is committed to conserving their character while supporting sympathetic infill development.

Character of the Local Area

In order to consider the effect the proposal has on the significance of the heritage setting pursuant to Clause 5.10(4) of the LEP, an assessment of character needs to be undertaken. A character assessment also aids Council’s consideration of the proposed development in relation to Clause 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009, Chapters 7.7, 13.1, 13.3, and 13.4 of Orange Development Control Plan 2004, as well as Council’s Infill Guidelines.

In defining the relevant character of the local area, reference tools include the Orange LEP, Orange DCP, Council’s Infill Guidelines, the Burra Charter, ‘Design in Context: Guidelines for Infill Development in the Historic Environment’ (NSW Heritage Office and Royal Australian Institute of Architects, 2005), relevant Case Law in regards to character, and comments from Council’s Urban Design and Heritage Advisor.

The NSW Heritage Office states that character is defined by the combination of the particular characteristics or qualities of a place (‘Design in Context’, 2005). 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 many factors which contribute to creating a unique neighbourhood character. These factors include:

· the underlying natural landform and topographic characteristics;

· distinctive landscape elements and vegetation, especially trees and other significant foliage;

· the date and style of the buildings, including materials, colours, building techniques, detailing etc;

· the scale and form of the buildings, including proportions of openings;

· street and subdivision patterns, including setbacks, building to space pattern of buildings, curtilage, fencing, landscaping, servicing etc;

· fabric; and

· views, vistas, and skylines.

The character of this particular precinct and streetscape has been examined by Council staff and Council’s Urban Design and Heritage Advisor, and is considered to be made up of the following elements:

· Generally level topography, with Blackmans Swamp Creek nearby to the southeast;

· Significant mature vegetation in wide tree lined streets, established public and private landscaped gardens, and areas of public open space;

· The property immediately in front of the subject site (194 March Street) contains a single storey, brick dwelling with hipped roof, rendered chimneys and return verandah;

· Adjacent heritage listed house at 68 Autumn Street comprises an art deco building, which differs from surrounding buildings but maintains the scale and pattern of surrounding development, and is set within landscaped gardens with mature trees;

· Surrounding suburban area has a historic context comprising a generally unified pattern of development and character of traditional, detached single-storey dwellings, incorporating:

- modelled roofs with hips and gables, chimneys, and verandahs

- a mix of external finishes

- generous side setbacks and dwelling curtilages with view corridors to rear

- generous front setbacks and landscaped front and rear gardens;

· Intact original Bungalows in the Autumn Street streetscape, which back on to the site where the boarding houses are proposed;

· Heritage listed school nearby, comprising early buildings, open space, and significant mature trees;

· Heritage listed Newman Park opposite the site comprising generous public open space and significant mature trees; and

· Other heritage listed buildings in the vicinity comprising distinctive original architectural features set within landscaped gardens.

Departures from the established built character include:

· A two-storey mixed use building at 49 Nile Street (Simply Nile café and residence) which backs onto the subject site, and comprises established landscaping and trees;

· Recent unit developments to the rear of the subject site at 45 Nile Street, which comprise smaller lot sizes and single storey contemporary dwellings;

· Recent seniors housing to the north and east of Newman Park on Nile Street, comprising single storey contemporary dwellings/units; and

· Ascott Gardens aged care facility which is located on a very large lot at 199‑211 March Street, 83 Spring Street and 64 Nile Street, which comprises multiple large buildings, small units, established landscaping, and areas of open space.

Character as Applied by the Court

The authorities show that while there are accepted elements of character, as set out above, the list of defining elements of character have been expanding over time. In relation to how ‘compatible with the character of the local area’ has been applied by the Court, Stebbing & Anor v Byron Shire Council [2012] NSWLEC 1129 (hereafter referred to as ‘Stebbing’) provides authority that a development can be refused where the bulk and scale of a building, its siting on the land and appearance are a discordant element in the local area, and where a development is an exception to the predominant character of the local area. This case also introduces adverse amenity impacts as an element of character, in terms of noise and overlooking neighbours.

Pingola Pty Ltd and Anor v Parramatta City Council [2012] NSWLEC 1270 provides authority that the design of the development should respond to the desirable elements of the character of the area and that undesirable elements should not be emulated. This is a consideration in relation to the discordant elements in the surrounding area.

The applicant states in the submitted Statement of Environmental Effects that the proposed design “minimises impacts and has a scale and appearance consistent with development in the locality”. The applicant relies on the principle established in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 (hereafter referred to as ‘Project Venture’), that the compatibility of a proposal with surrounding developments means that the proposal is capable of existing together in ‘harmony’, not ‘sameness’ with surrounding developments.

Project Venture identifies four elements of character: building height, setbacks, landscaping and in special areas, such as heritage areas, architectural style and materials. It is important to note that Project Venture predates the Affordable Housing SEPP. The list of defining elements of character based on the authorities since Project Venture shows that the elements of character have been expanding over time.

Commissioner Morris in Stebbing takes a broader approach to the interpretation of character than that taken in Project Venture by including the consideration of bulk, siting, scale, appearance and amenity impacts on the adjoining residential properties, including noise and overlooking. The factual circumstances in Stebbing are similar to the current proposal (although Stebbing involved the conversion of an existing two story indoor sports facility to a boarding house).

Commissioner Morris, having regard to the planning principle in Project Venture, accepted that to be compatible does not mean a development has to be the same; however, having considered whether the proposal's physical impacts on surrounding development were acceptable, and if the proposal's appearance was in harmony with the buildings around it, Commissioner Morris found that the proposal was not. Accordingly, it was considered that the design of the proposed development was not compatible with the local area, where Commissioner Morris held that:

(i) [The] two buildings are exceptions to the predominant character [low density residential] and, because of their bulk, siting, scale and appearance are a discordant element in the local area. Where dual occupancy and multi-unit housing had occurred [in the local area], the scale, setbacks and siting of those buildings is consistent with the adjacent buildings and landscaped areas are provided around the units with adequate side setbacks provided to reduce the impacts of those buildings on adjoining properties [40].

(ii) The [proposed development] also introduce elements such as balconies, which…have adverse amenity impacts on the adjoining residential property…particularly in terms of noise and overlooking [41].

(iii) [T]he extent of landscaping proposed and the location of the structure are not consistent with the siting of development in the local area [41].

Character and Heritage Assessment

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

In particular, the relationships between a building and its setting contribute to that place’s special character, and depending on its design and position, a new building can have a beneficial or detrimental effect on its setting and on adjacent valued buildings. Infill buildings should aim to provide continuity in the built form, and make reference to the established and valued setting by responding to its historic context through an understanding and informed analysis of its character and quality, including elements such as its grain, existing patterns of development, important views, scale, materials and building methods. ‘Design in Context’ states that to achieve a successful infill design the following design criteria applies:

· character - new buildings must harmonise with their surroundings

· scale - size in relation to surrounding buildings or landscape

· form - overall shape and volume, and the arrangement of its parts

· siting - should add sympathetically to the local streetscape and the grain of the area

· materials and colour - should recognise characteristic materials, textures and colours used locally and in adjacent buildings; and

· detailing - common details that contribute to the special character of an area should be identified, and inform or inspire design.

In their current form, it is considered that the proposed boarding houses are not consistent with the established character of the local area for the following reasons:

- setbacks, scale, form, bulk and siting in relation to the boundaries are inconsistent with the surrounding built form, landscape, and character

- the spacing between the three proposed buildings does not relate to the pattern of the surrounding area, where 3m is substantially less than the established spacing in the area

- proposed open space and landscaping does not add sympathetically to the area, and is significantly lacking in comparison to the surrounding open nature and mature landscaping which characterises the area

- proposed siting and hard surface coverage (buildings, car parking areas, driveways etc) is excessive compared to the surrounding pattern of development and grain of the area. It has been questioned whether such a high rate of car parking needs to be provided for this proposal

- proposed buildings, materials, detailing, roof form and fenestrations do not suitably recognise or interpret the characteristic and traditional elements of the surrounding built form, resulting in a visual appearance which would be discordant with the buildings around it

- the proposed two storey configuration of the boarding house buildings will be visible from the wider streetscape, viewed from March, Autumn and Nile Streets between and over the existing dwelling houses, and down the wide subject site driveway/access handle, exacerbating impacts to the streetscape and neighbourhood character; and

- amenity impacts on surrounding neighbours.

Council’s Urban Design and Heritage Advisor has commented on the proposed development in terms of local character as follows:

- The current proposal produces a character which is not consistent with the character of the immediate context and setting.

- It is recommended that an alternate design or amendment of the existing design be prepared to produce a built form which has a reduced bulk through varied roof forms and details, varied setbacks to reduce the scale and presentation of the closely spaced blocks, and suitable treatment of the unbuilt areas which allows for additional trees sufficient to complement the character of the landscape in the setting.

- Overall, the current proposal is not capable of support in relation to the character of the design being incompatible with the character of the context.

All submissions and petitions received objecting to the proposed development raise the issues of neighbourhood character, heritage impacts and amenity impacts. Neighbours consider aspects such as visual appearance, scale, density, noise, parking and traffic to be considerations of ‘character’.

Adopting Commissioner Morris’s broad approach to the interpretation of character, the current proposal is considered discordant with the character of the local area when bulk, siting, scale, appearance, and amenity impacts on the adjoining residential properties are considered. Amenity impacts of the proposed development are considered in detail later in this report under the sections “Development Control Plan 2004” and “Likely Impacts”.

Overall, the current proposal has not adequately considered the character of the area, and is inconsistent with the immediate context and heritage setting. In its current form the proposal has little opportunity to improve setbacks, bulk, spacing and the soft/permeable landscape to hardstand/impermeable ratio. As established in relevant Case Law, undesirable elements in the surrounding area should not be emulated, or used to justify further impacts on local character. This not only relates to built form, but also extends to siting and landscaping. Council staff recommended that an alternate site layout and design, or amendment of the existing proposal, be prepared which addresses these issues. The applicant was not amenable to an alternative site layout as this would reduce the number of boarding rooms and parking spaces on the site and would not be economically viable.

Given that the proposal disregards the historical context and character of the area, it would have a detrimental effect on the heritage setting and would detract from the significance of the surrounding listed items, contrary to the objectives of LEP Clause 5.10(1). Further discussion as to how character relates to the requirements of the Affordable Housing SEPP, and Council’s DCP and Infill Guidelines is addressed later in this report.

It is noted that Clause 5.10(5)(c) states that Council may “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”. In this case, a heritage management document was not required. In retrospection, and given that the applicant has not appropriately taken the heritage setting into account, it is recommended that a formal ‘Heritage Impact Statement’ be prepared and submitted for any amendments to the current proposal, or any further proposals/applications on the site. Such a document can assist in identifying the character of the area and identify the common elements that can be used to inform the design and site layout for the subject land and proposed boarding houses.

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

Clause 7.1 of the LEP applies. This clause states in part:

(3) Before granting development consent for earthworks, the consent authority must consider the following matters:

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

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

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

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

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

(f) The likelihood of disturbing relics

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

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

In consideration of this clause, the development will necessitate earthworks to create level pads for buildings A, B, and C, car parking and manoeuvring areas, and open space areas. The earthworks can be supported onsite and the change in ground level is not substantial. A ramp is proposed to the southern section of the site/car parking area, which takes advantage on the natural slope of the site and reduces the need to carry out extensive earthworks. Disruption to drainage is considered to be minor, and subject to using soil and erosion control measures, would not detrimentally affect adjoining properties or receiving waterways.

7.3 - Stormwater Management

Clause 7.3 of the LEP is applicable. This clause states in part:

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

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

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

(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.

Subject to engineering design, stormwater from the development would be directed to the existing interlot drainage infrastructure at the rear of the site. Onsite stormwater detention would be required, designed to limit peak outflows from the subject site to the pre-existing natural outflows up to the 100 year ARI frequency, with sufficient allowance in overflow spillway design capacity to safely pass flows of lower frequency (that is, a rarer event) without damage to downstream developments.

7.6 - Groundwater Vulnerability

Clause 7.6 of the LEP 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 must not be granted unless Council is satisfied that:

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

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

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

Clause 7.11 - Essential Services

Clause 7.11 of the LEP applies and states:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) storm water drainage or on-site conservation,

(e) suitable road access.

In consideration of this clause, all utility services are available to the subject land and are adequate for the proposal as follows:

· the subject land is connected to reticulated water supply and an additional water meter can be installed in the driveway;

· electricity and telecommunications are available to the land;

· the site is connected to Council’s reticulated sewerage system;

· subject to a suitable engineered design, stormwater management for the subject land would be suitable; and

· the site has direct frontage and access to March Street.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy (Affordable Rental Housing) 2009

The Affordable Housing SEPP is applicable. An assessment of the development against the requirements of the Affordable Housing SEPP is outlined below.

Clause 3 - Aims of Policy

The aims of the Affordable Housing SEPP are as follows:

(a) to provide a consistent planning regime for the provision of affordable rental housing,

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(c) to facilitate the retention and mitigate the loss of existing affordable rental housing,

(d) to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e) to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f) to support local business centres by providing affordable rental housing for workers close to places of work,

(g) to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

The proposal is generally consistent with the relevant aims in that new affordable rental housing will be provided in reasonable proximity to employment and businesses.

Clause 4 – Interpretation - general

The Affordable Housing SEPP adopts the standard instrument definition for “boarding house” pursuant to Clause 4(2), and the proposed development satisfies this definition.

Division 3 - Boarding houses

Boarding houses are permitted with consent in the R1 General Residential zone, pursuant to Clauses 26 and 28 of the Affordable Housing SEPP.

Clause 29 - Standards that cannot be used to refuse consent

An assessment of the standards for boarding houses as set out in Clause 29 “Standards that cannot be used to refuse consent” is carried out below.

Clause	Standard	Proposal	Complies?
29(1)	FSR: maximum floor space ratio	Not applicable - no floor space limit for the subject land pursuant to LEP or DCP.	N/A
29(2)(a)	Building height: maximum building height	Not applicable - no building height limit for the subject land pursuant to LEP or DCP.	N/A
29(2)(b)	Landscaped area: landscape treatment of the front setback is compatible with the streetscape	Not applicable - the subject land and proposed development does not have frontage to March Street (except for the access driveway).	N/A
29(2)(c)	Solar access: communal living room to receive three hours direct sunlight between 9am and 3pm mid-winter	The communal living rooms in each boarding house building have glazing on the northern facade. Submitted shadowing diagrams demonstrate that solar access to communal living rooms in Buildings A and B will receive direct sunlight, however the communal living room for Building C will be partially overshadowed. However, the submitted shadow diagrams do not accurately demonstrate shadows, therefore cannot be relied on to demonstrate compliance. It is unlikely that the communal living rooms will receive sufficient sunlight due to the close spacing between each building, new boundary fencing required to achieve privacy and noise attenuation, and existing boundary vegetation (also see notes following table).	No

Clause	Standard	Proposal	Complies?
29(2)(d)	Private open space: minimum 20m² with 3m dimension for each boarding house; and minimum 8m² with 2.5m dimension for manager adjacent to manager’s accommodation	Each boarding house will be provided with an adjacent communal open space area with minimum dimension of 5m, and areas as follows: Building A = 62.25m² Building B = 66.14m² Building C = 66.14m² It is noted that the submitted Statement uses alternative numbers for these areas (ie rounded-up and not exact), however the above areas have been confirmed by the applicant. A private courtyard off the manager’s room measures 24m² with minimum dimension of 3.5m.	Yes
29(2)(e)	Parking (ii) development not carried out by social housing provider: at least 0.5 spaces for each boarding room; and Parking (iii) in the case of any development: not more than 1 space provided for each person employed in connection with development and who is resident onsite	24 rooms are proposed, generating a minimum demand of 12 spaces onsite. Not more than 37 spaces should be provided on the site (up to 35 residents, 1 manager, and 1 cleaning/ maintenance contractor). 24 onsite car parking spaces are proposed, meeting both aspects of this standard (also see notes following table).	Yes
29(2)(f)	Accommodation size: minimum gross floor area (excluding kitchen and bathroom facilities) single: 12m² double/other: 16 m²	Each single boarding room measures 16m² and each double room measures 20.6m²(excluding kitchen and bathroom).	Yes

As indicated in the table above, the proposal is unlikely to achieve sufficient daylighting to the communal living rooms during the winter months. Council has requested amended shadow diagrams from the applicant, however the applicant states that the submitted diagrams are correct. An assessment by Council staff shows that this is not the case, where the submitted shadow diagrams do not accurately demonstrate shadow angles and lengths, and omit shadows created by roofed carports and balconies, as well as boundary fence shadows.

Notwithstanding this, the Affordable Housing SEPP notes that these standards cannot be used to refuse development consent, and therefore this non-compliance is not considered significant.

It is noted that on 1 June 2018 the Affordable Housing SEPP was amended, whereby a new clause was inserted requiring that in the case of development not carried out for social housing, at least 0.5 car parking spaces are to be provided for each lodger. The application was lodged prior to this amendment, where the previous rate required 0.4 spaces for each lodger. However, the Affordable Housing SEPP does not contain any savings and transitional provisions in regards to this amendment, therefore the amended rate applies to this application, being at least 0.5 spaces for each lodger. Regardless, the proposal provides 24 car parking spaces, which is well in excess of both the previous rate and amended rate. Further assessment of car parking is carried out later in this report.

Clause 30 – Standards for boarding houses

Clause 30 of the Affordable Housing SEPP sets out “Standards for boarding houses”, and Council must not consent to development unless it satisfies all the standards set out in this clause. As assessment against these standards is carried out below:

Clause	Standard which must be met	Proposal	Complies?
30(1)(a)	At least one communal living room is required for 5+ boarding rooms	Each boarding house will comprise 8 boarding rooms, a shared communal room with kitchen.	Yes
30(1)(b)	Boarding rooms to have maximum GFA (excluding kitchen and bathroom) of 25m²	The maximum room size is 20.6m² (excluding kitchen and bathroom).	Yes
30(1)(c)	Maximum occupancy is limited to 2 adult lodgers	Single rooms will accommodate a maximum of 1 lodger, and double rooms will accommodate a maximum of 2 lodgers.	Yes
30(1)(d)	Bathroom and kitchen facilities are available for each lodger	Each boarding room will be self-contained with bathroom and kitchen facilities. Kitchen facilities are also provided in the communal rooms for shared use.	Yes
30(1)(e)	Manager’s room or dwelling required onsite for boarding house with 20+ lodgers	Each boarding house will accommodate up to 12 lodgers, giving a maximum capacity of 36 persons. Notwithstanding this, the development will function as a single facility, and a manager’s room will be provided in Building B.	Yes

Clause	Standard which must be met	Proposal	Complies?
30(1)(g)	In commercial zones, residential purposes not permitted on ground floor that fronts the street	This control is not applicable as the subject land is located in the R1 General Residential zone.	N/A
30(1)(h)	At least 1 bicycle space and 1 motorcycle space required for every 5 boarding rooms	A total of 24 rooms are proposed, generating a demand for at least 5 bicycle spaces, and 5 motorcycle spaces. It is proposed to provide 8 bicycle spaces and 6 motorcycle spaces onsite.	Yes

The proposal complies with all the standards that must be met under Clause 30 of the SEPP as demonstrated above.

Clause 30A - Character of local area

Clause 30A of the Affordable Housing SEPP provides that the consent authority:

“must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area”.

As discussed in detail in the Character Assessment earlier in this report, the site layout and building design for the proposed boarding houses are considered to be incompatible with the character of the local area. As established by relevant Case Law, a proposed development is considered to be compatible where physical impacts on the surrounds are acceptable and its visual appearance is in harmony with the buildings around it. In this case the proposed development fails to harmonise with the surrounding pattern of development, built form, heritage significance and open landscaped nature of the neighbourhood. Furthermore, the proposal would result in adverse amenity impacts to the heritage setting and neighbouring properties. Relevant Case Law also establishes that incompatibility with the character of the local area in relation to this clause is grounds for refusing a proposed development.

Clause 52 - No subdivision of boarding houses

Clause 52 of the Affordable Housing SEPP provides that a consent authority:

“must not grant consent to the strata subdivision or community title subdivision of a boarding house”.

The intent of this prohibition is to prevent separate titles being created for each boarding room, as this would enable rooms to be owner-occupied and therefore no longer ‘let in lodgings’ which is a defining characteristic of a boarding house.

Strata subdivision is proposed in order to excise each boarding house building onto a separate Strata lot. Vehicle parking and open spaces within the development will be allocated to corresponding Strata lots. The remainder of the site, including driveways, pedestrian areas and landscaped spaces will comprise common property available for shared use by all boarding house lodgers.

In Council’s opinion, and consistent with the approach taken for other boarding house determinations in Orange, the Strata subdivision of individual boarding houses is not contrary to the requirements of Clause 52.

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 - Remediation of Land is applicable. Pursuant to Clause 7, a consent authority must not consent to the carrying out of any development on land unless:

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

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

In consideration of this clause, the potential for contamination of the site is considered to be low. The subject land is well established for residential use. The site is not known to have been used for a Table 1 activity that may cause contamination as identified in the SEPP 55 –Remediation of Land Planning Guidelines. Investigation of the site for any potential land contamination is considered unnecessary for the proposed development.

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

The BASIX SEPP is applicable to this proposal as boarding houses are a form of residential accommodation. The applicant has submitted a multi-dwelling/residential flat building BASIX Certificate which demonstrates that the proposal meets the NSW Government’s requirements for sustainability (water, thermal comfort and energy).

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

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

Development Control Plan 2004

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

CHAPTER 7 - DEVELOPMENT IN RESIDENTIAL AREAS

The following Chapter 7 Planning Outcomes are considered relevant to the proposal as the boarding houses are new residential accommodation:

Neighbourhood Character

The DCP sets the following Planning Outcomes in regard to Neighbourhood Character (PO 7.7-1):

· 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.

In terms of neighbourhood function, the proposed development will provide for a continuation of residential landuse by providing an affordable rental housing option to supplement housing needs in the community, and contribute to the variety of housing types and densities in the neighbourhood.

As considered in the LEP Heritage, Character Assessment, and Affordable Housing SEPP sections earlier in this report, the site layout and building design of the proposed boarding houses are considered to be incompatible with the character of the local area. The neighbourhood character is generally made up of single storey residential dwellings of historical context, with consistent scales and setbacks, within an open landscaped setting. The proposal fails to take this setting into consideration, where elements such as existing pattern of development, grain, view corridors, scale, relationship between buildings and areas of open space etc would be altered to such an extent that it would result in detrimental impacts to the area’s special character, and on adjacent and nearby valued heritage buildings and items. Furthermore, the proposed buildings have not adequately used the traditional built and historical context form to inform design.

Overall it is considered that the proposal does not meet the planning outcomes in relation to neighbourhood character. As discussed previously, it is recommended that the applicant redesign the current development to ensure a design which is compatible with, and complements the relevant features and built form that are identified as part of the desired neighbourhood character for this locality.

Building Appearance

The DCP sets the following Planning Outcomes in regard to Building Appearance (PO 7.7-2):

· 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 considered in the Character Assessment earlier in this report, the building design for the proposed boarding houses is incompatible with the character of the local area. The general design, materials selection, detailing, form, scale and fenestration are contemporary, and have minimal elements which relate to the traditional character of the surrounding area. It is noted that a new/infill building should not attempt to replicate buildings within a historical setting, however the common elements found in the setting should be identified and used to inform or inspire design.

Being a battle-axe parcel, the site has limited visibility in the March Street view corridor (ie when travelling along the public road). Notwithstanding this, expansive views of the site are available at the frontage due to the wide driveway/access handle. Furthermore, as the proposal is two storeys in height, the buildings will be visible from the streetscape in the wider area. Most of the vehicle parking areas will not have a street presence, being tucked around corners and behind the buildings.

Overall, it is considered that the building appearance of the current proposal is inadequate and will result in adverse impacts on the neighbourhood, contrary to these planning outcomes.

Heritage

The DCP sets the following Planning Outcomes in regard to Heritage (PO 7.7-3):

· 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.

As considered in the LEP heritage assessment above, it is considered that the proposed development will not complement or enhance the heritage setting, and will adversely impact on the character of the area, and on adjacent and nearby listed heritage items. As established in relevant Case Law, nearby buildings that are inconsistent with the character of the area should not be emulated, or used to justify further impacts on local character. Overall, it is considered that the proposal does not meet the DCP planning outcomes for heritage.

Setbacks

The DCP sets the following Planning Outcomes in regard to Setbacks (PO 7.7-4):

· 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.

Being a battle-axe parcel, the proposed development will not impact on streetscape setbacks.

Front Fences and Walls

The DCP sets the following Planning Outcomes in regard to Fences and Walls (PO 7.7-5):

· Front fences and walls:

- assist in highlighting entrances and creating a sense of identity within the streetscape

- are constructed of materials compatible with associated housing and with fences visible from the site that positively contribute to the streetscape

- provide for facilities in the street frontage area such as mail boxes.

The proposal does not involve front fencing to March Street. Perimeter fencing is proposed and is required to be 1.8m in height to mitigate noise impacts to neighbouring residential properties. Noise impacts are discussed in detail in the “Likely Impacts” section later in this report. Mailboxes are proposed on the western side of the access driveway at the site frontage.

Visual Bulk

The DCP sets the following Planning Outcome in regard to Visual Bulk (PO 7.7-6):

· 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.

The following comments are made in relation to these planning outcomes:

- setbacks, scale, form and siting of bulk in relation to the boundaries are inconsistent with the surrounding built form;

- the spacing between the proposed boarding house buildings does not relate to the pattern of the surrounding area;

- although compliant with the numerical guidelines for site coverage, the proposed site coverage by hardstand areas (car parking, driveway etc) is markedly larger than adjoining lands, and proposed areas of open space and landscaping are lacking compared with adjoining lands; therefore the proposal does not retain the low density landscaped character of the area;

- the development does not directly front the street, being a battle-axe lot; however the building height and bulk when viewed from the surrounding streets is inconsistent with the surrounding built form where the predominant building height in this neighbourhood is single-storey;

- the proposed buildings will be contained within the DCP prescribed visual bulk envelope plane; and

- minimal land shaping is required given that the site is relatively level.

As discussed in the character assessment earlier in this report, the visual bulk of the proposal is inconsistent with the character of the local area, resulting in amenity impacts to neighbouring properties and to the wider surrounding area. Overall, it is considered that the visual impacts in terms of bulk are contrary to the above DCP planning outcomes.

Walls and Boundaries

The DCP sets the following Planning Outcome in regard to Walls and Boundaries (PO 7.7-7):

· 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 proposal does not involve the construction of buildings on the boundary. Perimeter fencing is proposed at 1.8m, which is considered to be the usual height in residential areas to ensure adequate privacy.

Daylight and Sunlight

The DCP sets the following Planning Outcome in regard to Daylight and Sunlight (PO 7.7-8):

· Buildings are sited and designed to ensure:

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

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

- consideration of Council’s Energy Efficiency Code.

Shadow diagrams have been submitted in support of the proposal. However, as discussed in the Affordable Housing SEPP assessment earlier in this report, the submitted shadow diagrams do not accurately demonstrate shadow angles and lengths, and omit shadows created by roofed carports, balconies, and boundary fencing. Therefore the shadow diagrams cannot be relied on to demonstrate compliance.

As noted previously, it is unlikely that the boarding house communal living rooms will receive sufficient sunlight due to the close spacing between each building, proposed new boundary fencing and existing boundary vegetation. However, the solar access standards set out in the Affordable Housing SEPP cannot be used to refuse consent, therefore this non-compliance is not considered significant. Furthermore, the Affordable Housing SEPP does not require the boarding house rooms or areas of private open space to receive solar access, therefore these particular amenity aspects have not been considered as part of the DCP assessment.

Notwithstanding this, an assessment of shadowing impacts to neighbouring properties is relevant under the DCP, as well as the Affordable Housing SEPP. The DCP provides that new development should not adversely impact on daylighting to northern habitable windows or areas of private open space of adjacent neighbouring residential properties.

Overshadowing impacts are considered to be negligible due to the following:

- the orientation of the subject lot and the setbacks of the boarding houses to the boundaries means that most of the overshadowing impacts are contained within the subject lot rather than neighbouring lots

- neighbours to the south have the most potential to be affected from overshadowing, however the winter overshadowing to 58 Autumn Street only impacts rear outbuildings (which are not habitable spaces that require solar access) and a small portion of the garden space (which will receive afternoon sun) and is considered acceptable. Units 3, 4 and 5 of 45 Nile Street are not impacted due to the proposed car parking area separating the boarding houses and the boundary

- neighbours to the west (Nile Street) will have some winter afternoon overshadowing; however due to their generous lot sizes, large gardens, and dwelling houses being well separated from the rear boundaries, overshadowing impacts are negligible

- neighbours to the east (Autumn Street) have minimal winter morning overshadowing to rear outbuildings and small portions of their garden areas, which is considered acceptable; and

- the neighbour to the north at 194 March Street will not be impacted due to orientation (shadows from the development fall to the east, south and west).

Overall, neighbouring areas of private open space and habitable north‑facing windows will receive adequate daylighting on the winter solstice in accordance with the DCP requirements.

Views

The DCP sets the following Planning Outcomes in regard to Views (PO 7.7-9):

· 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.

Notwithstanding the battle-axe configuration of the subject site, views of the site are available from the March Street frontage due to the wide driveway/access handle. The proposed two storey configuration of the boarding house buildings will be visible from the wider streetscape, where it could be viewed from March, Autumn and Nile Streets between and over the existing dwelling houses. This adversely impacts on the streetscape, neighbourhood character, and views and vistas within the heritage setting, particularly the adjacent heritage listed dwelling and the listed park opposite the subject site. As discussed previously, the building design and detailing should complement the neighbourhood character, and in its current form the proposal is incompatible with the character of the local area.

Visual Privacy

The DCP sets the following Planning Outcome in regard to Visual Privacy (PO 7.7-4):

· 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 boarding houses are sited close to each other with only 3m, which will result in overlooking from upper access balconies down into opposing Building B and C boarding rooms. Upper floor windows will comprise dormer windows only, with high sill heights of 1.7m, preventing direct overlooking (by most people). Notwithstanding this, the Affordable Housing SEPP does not afford any particular privacy to be achieved between boarding rooms/buildings, and as such the DCP provision is only considered to apply to privacy for neighbouring dwellings. As the proposal involves a two-storey development, there is the potential for overlooking into neighbouring residential properties from upper level windows, access balconies and patios. Some neighbours have objected on the grounds of adverse visual privacy and overlooking impacts. The following comments are made in regards to visual privacy:

- Ground floor windows and communal areas - perimeter fencing 1.8m in height will be installed on the subject site, which will prevent direct views into neighbouring properties from ground floor windows, communal living room windows, areas of private open space and car parking areas;

- Upper northern windows - Buildings B and C only oppose Buildings A and B. Building A will oppose dwelling houses on the adjoining land at 194 and 196 March Street, however upper floor windows will comprise dormer windows only, with high sill heights of 1.7m, preventing direct overlooking;

- Upper southern windows - Buildings A and B only oppose Buildings B and C. Building C opposes adjoining land at 58 Autumn Street, and Units 3, 4 and 5/45 Nile Street, where access balconies and upper level stairwell windows directly overlook these properties. However, the distance between the windows and the neighbouring units in Nile Street exceeds the DCP-prescribed separation distance of 9m, and boundary fencing will provide adequate privacy to the windows and areas of private open space to these units given the small lot sizes. In the case of 58 Autumn Street, the proposed development only overlooks a small area of rear garden for limited periods of time (coming and going from two of the boarding rooms), and is too far separated from this neighbour’s windows to cause a noticeable impact;

- Upper western windows - Buildings A, B and C oppose adjoining land at 60 and 62 Autumn Street. These windows and the ends of the access balconies are well separated from neighbouring dwellings, exceeding the DCP-prescribed distance of 9m, therefore privacy impacts are unlikely. Furthermore, half of the western facing windows are bathroom windows, and therefore obscured glazing will be used, preventing any overlooking from three of the six western windows. The western ends of the access balconies will be used for a limited period of time, and by only one western end room for each boarding house;

- Eastern elevation - there are no eastern facing windows on the proposed buildings, however the manager’s room comprises a private outdoor patio on the upper level of the eastern elevation of Building B. Privacy screens are proposed at 1.7m in height around the premier of this patio area to prevent direct overlooking within the subject site and to neighbours. The eastern ends of the access balconies will be used for limited periods of time, and by only one eastern end room for Buildings A and C, where a privacy screen is proposed for Building B.

Overall, the proposed site layout and building design will provide reasonable visual privacy for the proposed development and adjoining dwellings. Privacy screens could be used at the end of the upper level access balconies to afford improved privacy to neighbours to the east and west.

Acoustic Privacy

The DCP sets the following Planning Outcome in regard to Acoustic Privacy (PO 7.7-11):

· 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.

An ‘Acoustic Assessment’ by Blackett Acoustics (report number BA171202, Version B, dated April 2018) was submitted in support of the proposal. This report revised the original submitted assessment, which failed to take into consideration the neighbouring property to the immediate north (194 March Street) as it previously formed part of the subject site. The revised assessment took into account noise impacts associated with the development, including movement of vehicles in the car park and mechanical plant.

The assessment recommends that a 1.8m high perimeter boundary fence is needed to ensure that noise emissions from the proposed development comply with the Noise Policy for Industry. The assessment identified some minor non-compliances, however indicates that the potential noise events (car park vehicle movements) would be unlikely to trigger awakening reactions during the night as there was limited potential for such events to occur. Council’s Environmental Health and Building Officer has reviewed this report and concurs with the comments and recommendations.

It is noted that the NSW Police recommend that the development be gated to ensure security (discussed further below), which generates potential noise emissions which have not been taken into account in the submitted report. It is considered that an adequate (ie quiet and automated) gate can be installed that will not impact on the amenity of neighbours.

Submitters have raised that noise will be an issue due to the proposed density of the development, and that this will adversely affect the quiet nature of the area. It is acknowledged that there is the potential for future occupants of the boarding houses to disturb the neighbours, particularly from the outdoor spaces and the manager’s outdoor patio area. The (amended) acoustic report submitted with the application did not specifically consider noise impacts from lodgers using these areas. Having said that, it is considered unlikely that the common open space areas would be used by lodgers at the same time, or in a manner that would create a noise issue. Time restrictions could be applied to address this matter. In regards to the manager’s private outdoor patio area, this is accessed from the manager’s room, and it is considered unlikely that this area would be used by numbers of people large enough to result in adverse noise issues to neighbours.

This potential for disturbance is not reason alone to disallow the proposal, although in its current form the development is inconsistent with the character of the local area and will impact on the general amenity of the area.

Noise receivers accounted for in the submitted acoustic report are limited to neighbouring properties, and the future occupants of the boarding houses were not considered. The Affordable Housing SEPP does not require any specific acoustic privacy to be achieved between boarding rooms, and as such this has not been considered in this assessment. This is a matter to be considered at Construction Certificate stage, where compliance with relevant BCA requirements can be taken into account.

Overall it is considered that the acoustic privacy planning outcomes can be achieved subject to the recommendations set out in the submitted acoustic assessment by Blackett Acoustics, along with time restrictions in the open space areas.

Security

The DCP sets the following Planning Outcomes in regard to Security (PO 7.7-12):

· 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 NSW Police have carried out a Crime Risk Assessment for the proposed development. Using the ‘International Standard - Risk Management Standard ISO: 31000’, the analysis of crime statistics and site opportunity assessment information, the ‘Overall Crime Risk Rating’ has been assessed as “High”.

A number of recommendations have been made to reduce opportunities for criminal and anti-social behaviour, including access to be controlled by a lockable gate in periods of darkness; driveway and parking areas to be lit; stairwells to be lit, ideally with movement sensor activation; mailbox access to be controlled by lock; and CCTV installed. It is also recommended that the onsite manager’s room be relocated to a position that is centrally located in order to perform adequately as a ‘Formal Guardian’ for the site.

The applicant responded that CCTV and lighting would comply, but that a gate is not a preferred option; and that the manager’s room is suitably located in the current proposal. Council staff do not agree with these points. It is current form, the proposal does not meet the planning outcomes in relation to security, and the above recommendations by NSW Police and the principles of Crime Prevention through Environmental Design need to be given further consideration. In particular, surveillance, access control, territorial enforcement and space management are required in order to reduce the potential crime risks associated with the proposal.

Circulation Design

The DCP sets the following Planning Outcome in regard to Circulation Design (PO 7.7-14):

· 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.

Subject to engineering design, stormwater from the development (including the access driveway and parking areas) will be directed to the existing drainage system at the rear of the site. Onsite stormwater detention will be required to limit post-development peak flows to pre‑development levels.

The subject land has vehicular access via March Street. The existing vehicle crossing and proposed formed driveway will exceed the minimum width of 6m to ensure safe and convenient vehicle access to the site with forward entry and exit. The proposed car park layout will comply with AS 2860.1-2004 - Off Street Parking. The site layout and building design will facilitate the movement of people with a disability between accessible parking areas and adjacent accessible rooms on the ground floor of each building.

Landscaping is proposed around the car parking area perimeter and adjacent to the access driveway. This landscaping is considered to be inadequate, where planting beds are too narrow to achieve sufficient substantial plantings or enhance amenity. As discussed previously, it is considered that the ratio of hardstand/built areas to soft landscaped areas is inappropriate for this locality, and will adversely impact on amenity and neighbourhood character.

Overall it is considered that the proposed development does not meet the planning outcomes with regards to circulation design.

Car Parking

The DCP sets the following Planning Outcomes in regard to Car Parking (PO 7.7-15):

· 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.

As outlined previously, car parking will be provided for the development in compliance with the amended Affordable Housing SEPP (Clause 29(2)(e)(iia)). At least 12 car parking spaces are required, and 24 are proposed to be provided, exceeding the standard. Bicycle and motorcycle parking is also to be provided in compliance with the Affordable Housing SEPP. The proposal is also consistent with the nearest equivalent car parking requirement of the DCP, which requires one space per bedroom, giving a total requirement of 24 spaces.

However, given the concerns raised about the ratio of hardstand/built areas to soft landscaped areas, Council staff have questioned whether such a high rate of car parking needs to be provided on the site given it compromises amenity, and considering the Affordable Housing SEPP only requires half this amount of parking. This question was put to the applicant, who responded that the proposed parking meets the needs of the site and is required given the distance of the boarding houses to the street (being a battle-axe lot).

A reduction of parking, and subsequently a reduction of hardstand areas, on the site would allow for much improved open space areas, and more substantial plantings and soft landscaping to be installed. This would result in many benefits, including improving amenity for future occupants and neighbouring properties, mitigate some of the visual bulk and privacy impacts of the boarding house buildings and car parking areas, and assist in ensuring that the proposed development harmonises with the character of the local area and heritage setting.

On the other hand, a reduction of parking on the site may result in the need for some of the future occupants to rely on on-street parking. Ample parking is available along both sides of March Street, which could handle the overflow parking needs of the proposed development. However, this in itself would alter the character of the area, and many submissions object to the principle of such an arrangement. It is considered that a balance needs to be found between providing an improved handstand to landscaped ratio on the site and allowing some of the parking needs to be accommodated on the street.

While the proposed development exceeds the minimum number of required parking spaces set out in the DCP and Affordable Housing SEPP, it does not meet the overall planning outcomes in regards to car parking with regards to visual dominance of car parking areas and accessways. Open space and landscaping are discussed in greater detail below.

Private Open Space

The DCP sets the following Planning Outcomes in regard to Private Open Space (PO 7.7-16):

· 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.

These DCP provisions do not apply to boarding houses. As outlined earlier in this report, private open space will be provided for the development in compliance with the Affordable Housing SEPP (Clause 29(2)(d)).

Open Space and Landscaping

The DCP sets the following Planning Outcomes in regard to Open Space and Landscaping (PO 7.7-17):

· 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.

A landscape plan has been submitted with proposal. Council’s Manager City Presentation provided the following advice in relation to the plan:

“The proposal does not offer any significant soft landscape areas, with much of the proposed soft landscaping in narrow beds along the property boundaries (which appear to be less than 500mm wide), apart from the occasional wider section where small Eucalypts are proposed. There is a lack of opportunity for vegetation, ie trees of moderate height and form to be established (maximum height of the proposed Eucalypt is 8 metres). Trees with a minimum mature height of 12 metres would make a more significant and appropriate contribution to the landscape for an urban development. The proposal in its current form has little opportunity to improve the soft/permeable landscape vs hardstand/impermeable ratio.”

As discussed previously, soft landscaping needs to be increased, which will enable a greater representation and suitable species of trees to be planted, as well as improve the visual quality of the site and soften the visual impacts of the proposed buildings and hardstand areas. Council’s Manager City Presentation also questions whether the proposed development requires such a high rate of car parking to be provided, and recommends that some car parking spaces are converted into landscaped areas and the driveway provides for more landscaping.

The applicant amended the driveway to provide a slightly wider section at the end of the eastern bed, which provides for one mature tree. This is not considered sufficient to address all the issues, in particular those relating to the development being inconsistent with the character of the local area. As noted in the Car Parking assessment above, a balance needs to be found between providing an improved handstand to landscaped ratio on the site.

Overall, the planning outcomes relating to open space and landscaping have not been achieved.

Stormwater

The DCP sets the following Planning Outcomes in regard to Stormwater (PO 7.7-18):

· Onsite drainage systems are designed to consider:

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

- scope for onsite infiltration of water

- safety and convenience of pedestrians and vehicles

- overland flow paths.

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

Subject to engineering design, stormwater from the development will be directed to the existing system at the rear of the site. Onsite stormwater detention will be required to limit post-development peak flows to pre-development levels. These planning outcomes can thus be achieved.

Erosion and Sedimentation

The DCP sets the following Planning Outcome in regard to Erosion and Sedimentation (PO 7.7-19):

· Measures implemented during construction to ensure that the landform is stabilised and erosion is controlled.

Adequate sediment and erosion control could be implemented during construction, in accordance with this planning outcome.

SUBDIVISION

The DCP sets the following relevant Planning Outcomes in regard to urban residential subdivision (PO 7.2-1):

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

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

The proposal involves Strata subdivision of the development to excise each boarding house and associated parking spaces onto separate Strata lots. Vehicle parking and open spaces within the development will be allocated to corresponding Strata lots. The remainder of the site, including driveways, pedestrian areas and landscaped space will comprise common property available for shared use by all boarding house lodgers. The proposed Strata subdivision is not contrary to these planning outcomes, nor the provisions of the Affordable Housing SEPP (Clause 52).

CHAPTER 13 - HERITAGE

Given the heritage setting of the subject proposal, the Chapter 13 Heritage planning outcomes are relevant to the proposal. As previously considered in the LEP, Character, Affordable Housing SEPP, and DCP Chapter 7 assessments of this report, the proposed development is inconsistent with the character of the local area, and would adversely impact on the setting and the adjacent and nearby heritage listed buildings and items. The proposal has not adequately taken the surrounding context into account, and therefore does not meet these DCP planning outcomes

DCP INFILL GUIDELINES

The DCP Infill Guidelines are relevant to the proposal as new infill development in a heritage setting. The objectives of these guidelines 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 proposed development does not meet these objectives, where the visual setting will be adversely altered, the proposed buildings will not respond to or enhance the character of the local area, and adjacent and nearby heritage items will be adversely affected, thereby compromising the heritage setting.

As considered previously in this report, the proposed development is inconsistent with the character of the local area. In particular the proposed boarding houses depart from the assessment criteria contained in the Infill Guidelines as follows:

Scale and Form: the proposal is inconsistent with the prevailing residential form, profile, spacing and height. The one example of a two-storey building adjoining the subject site to the west is not consistent with the character of the area, and should not be used to justify further impacts on local character.

Siting: development on the battle-axe parcel will not affect the established streetscape building line. Notwithstanding this, views of the site are available between and over existing dwellings on March, Autumn and Nile Streets. The spacing between buildings and lack of landscaping is inconsistent with the surrounding pattern of development.

Materials and colour: the current building design has not adequately taken the surrounding context into account, and the external colours and materials do not complement the neighbourhood character or mitigate the contemporary building design.

Detailing: the general design, materials selection and fenestration are contemporary and have minimal elements which relate to the traditional context of the area.

As discussed earlier in this report, infill buildings should aim to provide continuity in the built form, and make reference to the established and valued setting by responding to its historic context through an understanding and informed analysis of its character and quality, including elements such as its grain, existing patterns of development, important views, scale, materials and building methods. The proposed development fails to achieve this as set out above.

DEVELOPMENT CONTRIBUTIONS

Orange Development Contributions Plan 2017

Orange Development Contributions Plan provides for the levying of development contributions for residential accommodation, which includes boarding houses. Based on 24 boarding rooms, less 1 credit for the existing residential lot, in the remainder of LGA contributions area development contributions are applicable as follows:

Open Space and Recreation	24 additional 1 bedroom boarding rooms @ $1,648.15 less 1 standard lot @ $3,907.24	35,648.36
Community and Cultural	24 additional 1 bedroom boarding rooms @ $477.96 less 1 standard lot @ $1,133.10	10,337.94
Roads and Traffic Management	24 additional 1 bedroom boarding rooms @ $2,427.02 less 1 standard lot @ $5,157.43	53,091.05
Plan Preparation & Administration	24 additional 1 bedroom boarding rooms @ $129.05 less 1 standard lot @ $305.94	2,791.26
TOTAL:		$101,868.61

WATER AND SEWER HEADWORKS CHARGES

Water and sewer headwork charges pursuant to Section 64 of the Local Government Act 1993 are applicable to the proposed development. The contributions for water and sewer are based on 0.33 water ET and 0.5 sewer ET per boarding room, pursuant to the NSW Water Directorate Guidelines for a boarding house. One ET credit applies for the existing residential lot.

PROVISIONS PRESCRIBED BY ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

Environmental Planning and Assessment Regulation 2000 (S4.15(1)(A)(Iv))

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

Fire Safety details would be required at the construction stage of the development to ensure that fire safety separation provisions of the BCA can be met.

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)

As discussed earlier in this report, a BASIX Certificate has been submitted in support of the proposed development which demonstrates compliance with the NSW Government’s requirements for sustainability in terms of water, thermal comfort and energy.

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

Impacts on Character and Heritage Setting

As considered in the assessment above, the site layout and building design for the proposed boarding houses are incompatible with the character of the local area. It is considered that the proposed development in its current form would have an adverse effect on the significance of the setting, and adjacent and nearby listed buildings and items, contrary to Clause 30A of the Affordable Housing SEPP, Clause 5.10 of the Orange LEP, Chapters 7 and 13 of the Orange DCP and Council’s Infill Guidelines. Mitigation of these impacts is not possible based on the current design of the proposal.

Visual Impacts

As outlined in the foregoing assessment, visual impacts of the proposal are considered unacceptable as the general design does not relate to the neighbourhood built form and heritage context. Adverse visual impacts associated with siting, spacing, massing, form, detailing and landscaping will impact on neighbourhood character and on neighbouring residential properties, and cannot be adequately mitigated based on the current design of the proposal.

Residential Amenity

A reasonable standard of residential amenity can be provided to lodgers of the proposed boarding house in accordance with the Affordable Housing SEPP. It is noted that the proposal is unlikely to achieve adequate solar access/daylight to communal living areas as set out by the Affordable Housing SEPP, however this standard cannot be used to refuse development consent.

Impacts of the development on the amenity of adjoining dwellings in terms of acoustic privacy, visual privacy, and solar access are considered to be within reasonable limit. Visual bulk impacts, however, will be adverse as discussed above, and cannot be mitigated based on the current site layout and building form of the proposal.

Crime and Safety Impacts

The NSW Police have made numerous recommendations to reduce opportunities for criminal and anti-social behaviour, including access to be controlled by a lockable gate in periods of darkness, driveway and parking areas to be lit, stairwells to be lit (ideally with movement sensor activation), mailbox access to be controlled by lock, provision of CCTV, and relocation of the onsite manager’s room to a central position in order to perform adequately as a ‘Formal Guardian’ for the site. Whilst the applicant is willing to take on some of the recommendations, he is opposed to providing a gate or relocating the manager’s room. Thus, crime and security impacts cannot be adequately mitigated based on the current proposal, and adverse impacts are likely.

Traffic Impacts

The proposal is considered to be satisfactory in terms of traffic impacts due to the following:

· The capacity of the local road network is sufficient to accommodate additional localised traffic generated by the boarding houses;

· Onsite vehicle parking resources (cars, bicycles and motorcycles) are consistent with the requirements of the Affordable Housing SEPP;

· On-street car parking along March Street can accommodate any reasonable overflow parking associated with the boarding houses. On-street parking is suitably removed from intersections, has reasonable sightlines and is unlikely to generate traffic conflicts;

· The car parking layout and design will comply with AS 2890.1-2004 - Off-street car parking;

· The access driveway is sufficiently designed to accommodate the traffic associated with the proposal and has reasonable sightlines; and

· Adequate manoeuvring, albeit tight, can be accommodated on the site, and will ensure that vehicles can enter and leave the site in forward gear.

Waste Impacts

The application was reviewed by Council’s Director Technical Services who makes the following comments:

· It is assumed that predominantly there will only be one guest per boarding room for the majority of time;

· Three complexes (boarding house buildings) and three bin bays are proposed;

· Based on the proposed layout the minimum bin numbers will be:

- 6 garbage

- 6 recycling

- 3 organic;

· This will equate to 2 garbage, 2 recycling and 1 organic bin in each bin bay;

· It is noted that these are minimum numbers. Once the properties are occupied, the bin numbers can be reassessed and increased if the waste generation of the property exceeds these recommended numbers; and

· Additional bin capacity needs to be allowed for in the bin bays to accommodate future bin needs, and additional fees and changes will apply if additional bins are required.

No additional capacity has been provided for within the proposed bin bays, however ample space is available on the site to provide for this recommendation. One bin bay near to each boarding house building is considered reasonable.

The proposed bin bays will have visual, noise and odour impacts on neighbouring properties to the west, where they have been located up against the boundary fence and adjacent to the rear gardens of numbers 60 and 62 Autumn Street. It is considered that mitigation measures need to be put in place to minimise these impacts.

The bins need to be taken to and from the collection area to the side of the driveway near the frontage of the property each collection day, which is adjacent to numbers 66 and 68 Autumn Street. This will also generate visual, noise and odour impacts. That said, it is considered that these impacts are within reasonable limits, where collection is likely to be limited to one day a week, the same as other surrounding development. Although the boarding houses need a much higher number of bins compared to a single dwelling house, a residential unit development could be located on the subject land which would involve similar numbers of bins needing to be collected from the end of the driveway each week.

Environmental Impacts

The subject land is contained within an established residential precinct and comprises cleared vacant land. Significant vegetation, threatened species or ecological endangered communities or their habitats are unlikely to be present. The site is not in proximity to any waterway, drinking water catchment or sensitive area. Onsite stormwater detention will be required to limit post‑development peak flows to those of pre‑development peak flows. Consideration needs to be given to the engineering design of the proposed driveway, car parking areas, landscaping and natural outflows (up to 100 year ARI frequency). Overall, environmental impacts can be adequately mitigated and are therefore unlikely.

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

The subject land is suitable for certain aspects of the proposal as follows:

· boarding houses are a permitted landuse in the R1 zone;

· the site has direct frontage and access to March Street;

· sufficient onsite vehicle parking can be provided;

· there is no known contamination on the land;

· the subject land is located in proximity to the Central Business District, and is accessible via public transport;

· all utility services are available and adequate subject to augmentation;

· the subject land has no known biodiversity or habitat value; and

· the site is not known to contain any Aboriginal, European or archaeological relics.

Notwithstanding the above, the site is not suitable for the proposed development in its current form for the following reasons:

· the proposed site layout and building design do not fit within the character of the area;

· the proposal will adversely impact on the heritage setting, including adjacent and nearby listed buildings;

· the proposal will adversely impact on neighbouring residential amenity, and mitigation is not possible based on the current site layout and building design; and

· the excessive hardstand/built areas and lack of landscaping are an indication that the site is not of sufficient area and dimensions to accommodate the density of the proposed development.

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

The proposed development is defined as "advertised development" pursuant to DCP 2004 ‑ 5.3. The application was advertised for the prescribed period of 14 days and at the end of that period 43 submissions were received in opposition to the development from 31 persons. Petitions opposing the development were also submitted, containing 173 signatures, and many of the signees included general comments. One late submission was received in support of the application. The issues raised in the submissions and petitions are considered below.

Character

· Not in keeping with neighbourhood character, including inappropriate height (ie two storey proposed when surrounds are single storey);

· Inappropriate scale, bulk and massing;

· The design, materials, colours and fencing do not complement the setting;

· Inappropriate site layout and car parking layout;

· Lack of landscaping/trees;

· Excessive hardstand;

· No consideration given to heritage setting and existing local neighbourhood;

· Transient occupants will alter character of the neighbourhood; and

· Commercial type of use rather than residential.

Comment: These matters have been addressed throughout the body of this report. It is considered that the proposed site layout and built form are unsuitable in this setting, and will adversely impact on the character of the local area and the amenity of surrounding residents. It is noted that the proposal meets the definition of a ‘boarding house’ as set out in the LEP and Affordable Housing SEPP, which are permitted with consent. The proposal is not commercial in nature, as no person will be carrying out their occupation, profession or trade within the buildings. Whilst the boarding houses will be built for the purpose of returning a profit, the primary purpose is to provide short term residential accommodation to boarders. As established in the Courts, just because a project is capable of returning a profit does not mean that it is a building that is used for commercial purposes.

Heritage

· Adverse impacts on heritage setting, including neighbouring listed dwellings, significance of listed park and war memorials, and listed school;

· Proposal alters fabric of surrounds; and

· Inconsistent with Council’s Infill Policy for heritage settings.

Comment: This matter has been addressed in the LEP, DCP, and “Likely Impacts” sections of this report. It is considered that the proposed site layout and built form do not adequately take into account the heritage setting, adversely impacting on the character of the area, and the significance of the adjacent and nearby heritage listed buildings and items.

Visual Appearance

· Adverse visual impacts due to inappropriate height, scale, bulk and massing;

· Poor design, materials and colours;

· Colorbond fencing inconsistent with surrounds;

· Poor outlook from neighbouring properties to development; and

· Excessive hardstand areas, not enough landscaping.

Comment: This matter has been addressed throughout the body of this report. It is considered that the proposed built form is unsuitable in this setting, adversely impacting on the character of the area, the significance of the heritage setting and the amenity of neighbouring residents.

Overshadowing

· Shadow diagrams do not take into account 1.8m perimeter fencing, and do not show context of surrounding sites (ie neighbouring areas of private open space and northern windows); and

· Concerns that compliance to neighbours and within the site/boarding houses cannot be met.

Comment: As outlined in the Affordable House SEPP and DCP assessments, submitted shadow diagrams do not accurately reflect all the shadows created by the proposed development. In particular, shadowing from perimeter fencing, carports and access balconies has not been included. Notwithstanding this, most of the shadowing created by the development impacts the subject site and boarding houses rather than neighbouring properties. Impacts to neighbours are minimal and within reasonable limits. That said, there is room for improvement in this regard through amended site layout and building design.

Overlooking and Privacy

· Second storey windows and balconies overlook neighbouring back gardens and windows.

Comment: As outlined in the DCP assessment, privacy and overlooking impacts are minor and within reasonable limits. That said, there is room for improvement, where further privacy screening could be used in an amended design.

Lack of Landscaped Areas

· Poor outdoor open space;

· Lack of impermeable areas, trees, landscaping;

· Removal of existing trees;

· Impacts of hardstand areas on existing trees;

· Inappropriate landscaping/vegetation species (eg water dependent, need maintenance, drop leaves, invasive roots, insufficient privacy screening); and

· Character impacts.

Comment: These matters have been addressed throughout the body of this report. It is considered that the proposed site layout and lack of open space and landscaping are inconsistent with the character of the local area, and adversely impact on neighbourhood character, the significance of the heritage setting and the amenity of neighbouring residents. There is considerable room for improvement in this regard through amended site layout and landscaping.

Noise Impacts

· Density of site means too many people;

· High number of cars and motorbikes onsite;

· Vehicles coming and going;

· Car parking spaces directly adjacent to boundaries;

· Waste storage and collection noise;

· Night comings and goings from shift workers; and

· Concerns that occupants will not adhere to the rules and management will not enforce the rules.

Comment: This matter has been assessed in the DCP assessment and “Likely Impacts” section of the report, where it is considered that noise impacts can be adequately mitigated by perimeter fencing, and noise impacts from waste storage and collection are within reasonable limits.

Drainage, Flooding and Stormwater

· Already insufficient capacity in area, with concerns that the development will increase existing problems; and

· Excessive hardstand areas.

Comment: As discussed in the LEP, DCP and “Likely Impacts” section of the report, these matters can be adequately dealt with through an engineered design to manage water on the site. That said, the hardstand areas are considered excessive and there is room for improvement in this regard through amended site layout and amended landscaping.

Excessive Density

· Too much development on the site (people, rooms, vehicles, building bulk, car parking etc) leading to impacts mentioned above and below.

Comment: Considering that the proposed development fails to provide an adequate hardstand/built area to soft/landscaping ratio, it could be argued that the developer is trying to fit too much onto the site. There is significant room for improvement in this regard, as discussed in the main body of this report.

Parking and Traffic

· Safety impacts of vehicles coming and going;

· No parking or loading areas for couriers, visitors, waste collection, emergency vehicles etc. impacting on-street parking and causing onsite parking/manoeuvring conflicts;

· Increased traffic on quiet residential street, and close to primary school; and

· Pedestrian safety, especially for school children and the elderly.

Comment: As outlined in this report, onsite vehicle parking resources are consistent with the requirements of Affordable Housing SEPP. Overflow on-street parking is available in the vicinity of the site. That said, the proposal could be significantly improved by reducing car parking on the site and increasing landscaped areas. A balance needs to be found between providing some parking on-site, and relying on some on-street parking.

Poor Amenity

· Poor amenity for the future occupants of the boarding houses, including lack of daylighting to rooms and communal areas, overshadowing of outdoor areas, small rooms, poor site layout, poor room layouts, lack of outdoor space, and poor acoustic privacy - not in accordance with the SEPP.

Comment: Amenity for future occupants of the boarding houses is not ideal, however the Affordable Housing SEPP only requires moderate quality. This policy aims to provide affordable rental housing by compromising on the expected usual level of residential amenity. That said, there is room for improvement in this regard through amended site layout and building design.

Crime and Security

· The need for CCTV and lighting will adversely impact on neighbours;

· Unsafe site layout, should have more than a single entrance, increase in crime to site and neighbours;

· Will make park unsafe;

· Emergency access insufficient; and

· Fire safety concerns.

Comment: As discussed in the DCP and “Likely Impacts” sections of this report, concerns have been raised in regards to crime and security. NSW Police have made reasonable recommendations which should be incorporated into an amended site layout and building design. The proposal is capable of complying with emergency access and fire safety standards. Park safety is discussed below.

Socio-Economic Impacts

· Anti-social behaviour from likely occupants;

· Will attract/cause concentration of low-socio economic/disadvantaged occupants;

· Will not meet the requirements for medical staff, therefore unlikely to be occupied by this type of professional; and

· Nominated health professionals are unlikely to utilise or require low cost rental accommodation.

Comment: The applicant intends that the boarding houses will be occupied by medical professionals. Intended lodgers is not a matter for Council in consideration of the proposal, and Council does not have the ability to impose or enforce conditions of consent placing limitations on lodgers, other than minimum lodging timeframes. Council officers concur that ongoing occupation of the boarding houses may not be by medical professionals; however, this is not a planning matter. The traditional term ‘boarding house’ can be misconceived, with images of run down accommodation with poor shared facilities, used by disadvantaged persons and for social housing. As demonstrated in this case, these traditional boarding houses can be met with opposition from surrounding residents.

The proposed development comprises “new generation” boarding houses which provide a form of low cost, self-contained, rental accommodation with their own bathrooms, laundries and kitchens; which cater for a wide range of tenants, including singles, retirees, students and young couples. The Affordable Housing SEPP contains clear standards for the design and construction of boarding houses in order to increase the supply and diversity of affordable rental housing throughout NSW. Adverse social impacts in the neighbourhood are not anticipated as a consequence of the use of the subject land as self-contained boarding houses, due to the following:

- The proposal complies with or exceeds the development standards contained in the Affordable Housing SEPP, with the exception of solar access to communal living rooms, which is not a standard Council can use to refuse consent; and

- Operation and management of the boarding houses will be governed by relevant legislation (Boarding Houses Act 2012 and the Boarding Houses Regulation 2013).

That said, prevention of crime has not been adequately addressed through site layout and building design, and there is room for improvement in this regard as discussed above. While Council staff do not object to the use of the subject land for boarding houses, being a permitted use under the LEP and Affordable Housing SEPP in this zone, improved site layout and the use of extensive landscaping could improve the amenity of the site and neighbourhood, and mitigate traditional bad connotations around boarding houses. By utilising landscaping as a major design outcome, the proposal could achieve greater livability, detract from the small nature of the living spaces, mitigate impacts on neighbours, and assist in harmonising the development within the neighbourhood and heritage setting. However, the applicant has failed to achieve a good design outcome, and Council officers cannot support the application in its current form.

Subdivision

· The SEPP does not allow for Strata subdivision

· Concerns that onsite management will not be effective if subdivided into separate boarding houses.

Comment: As discussed in this report, Strata subdivision as proposed is not contrary to the requirements of the Affordable Housing SEPP. There are no planning objections to the proposed Strata subdivision.

Increased Load on Services

· Increased load on drainage, stormwater, electricity and emergency services.

Comment: This matter has been discussed above, where adequate connections can be made to services, and the proposal is capable of complying with all requirements in this regard.

Waste

· Inadequate provision for storage onsite;

· Inadequate and unsafe collection arrangements and access;

· Noisy collection; and

· Odour to neighbours.

Comment: As discussed in the “Likely Impacts” section of this report, the proposed development would generate amenity impacts as a result of waste storage and collection. Some of these impacts can be mitigated through amended design, while the other impacts are considered to be within reasonable limits.

Cumulative impacts

· Sets an inappropriate precedent;

· Density too high;

· Parking impacts on surrounding streets;

· Changes the character of the area;

· Concentration of disadvantaged occupants in the area;

· Saturation of boarding houses in Orange;

· No need for boarding houses in Orange/this area; and

· Location inappropriate for boarding house due to distance from CBD.

Comment: The number of boarding houses in an area is not a planning consideration, it is whether a particular zone allows for such a use. In this case, boarding houses in the R1 zone are permitted with consent by the LEP and the Affordable Housing SEPP. The proposal is consistent with the relevant R1 zone objectives insofar as the proposal will provide a rental housing option to supplement housing needs in the community, and contribute to the variety of housing types and densities in the neighbourhood. While it is considered that boarding houses can suitably integrate in the neighbourhood in respect of landuse and function, in this case the proposed development does not fit in with the character of the local area; and there is the potential for an undesirable precedent to be set in terms of site layout and building design, which will adversely impact on the neighbourhood and heritage setting. Parking impacts and future occupants have already been addressed above, and are considered within reasonable limits.

Property values

· Will decrease property values in the area.

Comment: Property values are not a planning consideration, therefore this matter has not been addressed in this assessment.

Letter of Support

One late submission was received in support of the application from the Australian Housing Initiative, who raises the following points:

· Many people choose to visit, live, work and retire in popular towns like Orange. Increasing density supports an area to create a sense of place and quality of life that people desire. This particular development creates affordable accommodation for a resident of Orange. And is essentially creating a resident that will stay in the community for life.

· People’s misguided and ill-informed perceptions of those residing in these dwellings usually include criminals, bikies, drug users and generally those considered the most anti-social members of society. This could not be further from the truth. More than ever, a growing variety of demographic groups are unable to access affordable housing either at all, or in their preferred location, meaning they often have to leave their community of families, friends and support networks, to find somewhere they can afford to live. Surprisingly the most significant occupant of New Generation Boarding House are females in the mid 40’s and older that choose this accommodation for their safety, and more importantly, amenity to their family.

· Census figures (for Orange) show that essentially 86% of new dwellings were 4 or 5 bedrooms but it was single and 2 person households that made up 81% of the market. This reflects a common problem around the country where developments are not providing appropriate accommodation or addressing the market demand for access to smaller and more affordable housing.

· Housing options in growth areas such as Orange, need to consist of different sizes and prices, a mix between ownership and rentals, and a harmonious blend of styles that address the demand and appeal to a large cross-section of people (singles, young families, retirees, etc) reduce housing stress, and encourage an inclusive community.

· With this proposed development, Orange has the opportunity to support it’s continued development of positive economic, social and environmental growth, fundamental to creating a vibrant and inclusive area.

· The consent authority must not blindly accept the subjective fears and concerns expressed in the public submission, but approve it on its planning merits.

Comment: Council staff generally concur with these points in that a boarding house will provide affordable rental housing for Orange which the market does not currently provide for. A significant proportion of recent residential developments in Orange are three or more bedroom dwelling houses, catering for a different type of market and population to boarding houses. Whilst Council supports the provision of affordable rental housing, it must be undertaken in a manner that is sympathetic with the character of the local area for which it is proposed. In this case, it is considered that there is significant room to improve the site layout and building design of the proposed development to provide for better onsite amenity, mitigate impacts to neighbours, and harmonise with the surrounding neighbourhood character and heritage setting.

Overall, it is considered that the applicant has not adequately addressed concerns of neighbouring properties, and the proposal will adversely impact on neighbourhood character and amenity.

PUBLIC INTEREST (s4.15(1)(e))

The proposal is not inconsistent with the planning regime that applies to the particular use of the subject land for boarding houses, however the current site layout and design of the proposal is contrary to the LEP, Affordable Housing SEPP, DCP and Infill Guidelines in regards to heritage, character and amenity, as discussed in this report. The proposed landuse is considered to be in the public interest by increasing the supply and diversity of affordable rental housing. However, the proposed site layout and building design are considered unsuitable in this particular setting. Overall, approval of the application in the form submitted would not be in the public interest.

SUMMARY

Council’s consent is sought for development of land at 194A March Street, Orange, for the purpose of boarding houses, pursuant to the Affordable Housing SEPP. ‘Boarding houses’ provide a form of low cost, self-contained, rental accommodation for a wide range of tenants, including singles, retirees, students and young couples. The Affordable Housing SEPP contains clear standards for the design and construction of boarding houses in order to increase the supply and diversity of affordable rental housing throughout NSW.

The subject land is located in East Orange and adjacent to and opposite locally listed heritage items. Council staff and Council’s Urban Design and Heritage Advisor do not support the proposal on the grounds that that the site layout and building design have minimal elements which relate to the traditional character of the local area. On this basis, it is considered that the proposal will adversely impact on character of the area, the heritage significance of the setting, and neighbouring amenity pursuant to Clause 5.10(4) of Orange LEP 2011, Chapters 7 and 13 of Council’s DCP, and Council’s Infill Guidelines; and is incompatible with the character of the local area pursuant to Clause 30A of the Affordable Housing SEPP.

It is recommended that Council does not support the proposal in its current form and refuses the application. Attached is a draft Notice of Refusal.

Attachments

1 Notice of Refusal, D18/40085 ⇨

2 Plans, D18/39580 ⇨

3 Submissions, D18/39579 ⇨

Planning and Development Committee 14 August 2018

2.4 Development Application DA 3/2013(1) - 806 Huntley Road and Gander Road

RECORD NUMBER: 2018/968

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	21 December 2012
Applicant/s	Mr GG Howarth
Owner/s	Mr GG Howarth
Land description	Lots 18 and 19 DP 750387 – 806 Huntley Road, Huntley and Lots 29 and 30 DP 750387 - Gander Road, Spring Terrace
Proposed land use	Dwelling House
Value of proposed development	$100,000

An incomplete application was lodged on 21 December 2012 for a dwelling on a rural parcel at 806 Huntley Road, legally described as Lot 19 DP 750387 (refer below Figure 1).

Figure 1: locality plan of land which the application initially related to

At the Planning and Development Committee meeting of 6 September 2016 a report was considered which recommended refusal of the application for the following reasons:

1 Insufficient information has been submitted with the application to allow a detailed and rigorous assessment pursuant to Section 79C of the Environmental Planning and Assessment Act 1979.

2 The applicant did not include documents that are required to accompany a development application as detailed in schedule 1 of the Environmental Planning and Assessment Regulation 2000.

3 The land to which this application relates does not constitute the whole of an existing holding as defined by clause 4.2A(6) of Orange Local Environmental Plan 2011.

At that meeting it was resolved:

That Council defer determination of development application DA 3/2013(1) for Dwelling House at Lot 19 DP 750387 - 806 Huntley Road, Huntley, and that the Mayor and staff meet with the applicant to discuss the application.

Council staff have since held a number of meetings with the proponent. Since this time the applicant has amended the application pursuant to Clause 55 of the Regulations to include all of the lots that make up the existing holding. As such, item (3) listed above as a reason for refusal is no longer an applicable reason for refusal. (refer below figure 2).

Figure 2: locality plan showing the whole of the existing holding

The land to which the application relates is now described as Lots 18, 19, 29 and 30 DP 750387.

As for the other two reasons, no formal documentation relating to the application has been received since those meetings.

During the meetings with the applicant and Council staff that followed the 6 September Planning and Development Committee meeting, it became apparent that the uncertainty surrounding the rezoning of land around Orange Airport was the main motive for the proponent’s reluctance to finalise his application.

As the rezoning of land around Orange Airport is not proceeding and some time has passed since that rezoning proposal was withdrawn, Council staff wrote to the applicant on 22 March 2018 requesting that the necessary documentation outstanding since 2012 be submitted. In the interests of ensuring active development applications do not sit continually in abeyance, the applicant was advised that if a complete application was not received by Monday, 2 April 2018 a report would be tabled for the Planning and Development Committee with a recommendation for refusal. No correspondence has been received to date.

Mr Waddell has since tried phoning Mr Howarth on a regular basis in an attempt to arrange a final meeting with staff and the Mayor to discuss the proposal, with no response. As such, given the lack of response and repeated requests for additional information with no response, it is recommended that Council determine this application.

The application remains deficient. No plans or environmental reports (i.e. contamination, suitability for onsite effluent or impact from aircraft noise etc.) have been submitted to Council.

As such, Council staff are not able to complete the assessment of the application; and relevantly, the application is recommended for refusal for the following reasons:

1 Insufficient information has been submitted with the application to allow a detailed and rigorous assessment pursuant to Section 4.15 of the Environmental Planning and Assessment Act 1979.

2 The applicant did not include documents that are required to accompany a development application as detailed in schedule 1 of the Environmental Planning and Assessment Regulation 2000.

Council staff have provided the applicant with a number of opportunities via both formal correspondence and phone conversations to provide the necessary information, to no avail.

The consequences of the refusal of this application is that the land to which the application relates would lose its ability to have a dwelling house erected on it under the current planning scheme.

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

DIRECTOR’S COMMENT

The development application is incomplete. The applicant has been requested many times to provide the required information to complete a competent application. This information has not been forthcoming since December 2012. Council has no option but to refuse this application based on a lack of information.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council refuses development application DA 3/2013(1) for Dwelling House at Lots 18 and 19 DP 750387 – 806 Huntley Road, Huntley and Lots 29 and 30 DP 750387 - Gander Road, Spring Terrace pursuant to the reasons provided in the attached Notice of Refusal.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought for the erection of a dwelling house on land described as Lots 18 and 19 DP 750387 – 806 Huntley Road, Huntley and Lots 29 and 30 DP 750387 - Gander Road, Spring Terrace. It is not clear as to exactly what is proposed as part of the application, other than to state that the application form describes a ‘four bedroom residence with detached double garage’. The location, size, appearance etc. of the dwelling are not known from the information provided.

CHRONOLOGY OF THE APPLICATION

The application was lodged on 21 December 2012. Council wrote to the applicant on 14 January 2013 requesting additional information necessary to complete assessment. The applicant responded to this request seeking an extension to the 28 day timeframe stipulated in that letter on 10 February 2013. A further letter was received from the applicant on 15 February 2013 requesting that the dwelling entitlement be retained.

Council again wrote to the applicant on 13 May 2013 requesting additional information, and again on 13 August 2014. The applicant again requested an extension of time to provide the additional information. This letter provided a commitment to provision of the plans by 1 August 2015. An extension of time was agreed to by Council staff in a letter dated 10 September 2014.

Council staff wrote a letter on 9 August 2016 providing the applicant with 14 days to respond to the request for information, and advising the applicant that if the necessary information had not been received by the date provided in the letter, the application would be finalised with a recommendation for refusal. No response was received to this request. Consequently a report for refusal was considered by the Planning and Development Committee on 6 September 2016.

At the Planning and Development Committee meeting of 6 September 2016 a report was considered which recommended refusal of the application for the following reasons:

1 Insufficient information has been submitted with the application to allow a detailed and rigorous assessment pursuant to Section 79C of the Environmental Planning and Assessment Act 1979.

2 The applicant did not include documents that are required to accompany a development application as detailed in schedule 1 of the Environmental Planning and Assessment Regulation 2000.

3 The land to which this application relates does not constitute the whole of an existing holding as defined by clause 4.2A(6) of Orange Local Environmental Plan 2011.

At that meeting it was resolved:

Council staff have since held a number of meetings with the proponent. Since this time the applicant has amended the application to include all of the lots that make up the existing holding. As such, item (3) listed above as a reason for refusal is no longer an applicable reason for refusal.

As for the other two reasons for refusal, no formal documentation relating to the application has been received since those meetings.

During the meetings with the applicant and Council staff that followed the 6 September Planning and Development Committee meeting it became apparent that the uncertainty surrounding the rezoning of land around Orange Airport was the main motive for the proponent’s reluctance to finalise his application.

Following Council’s decision not to proceed with the Airport rezoning, Council staff wrote to the applicant on 22 March 2018 advising them that as this DA has been outstanding since December 2012 and that if a complete application was not received by Monday, 2 April 2018 a report would be tabled for the Planning and Development Committee in May with a recommendation for refusal. No correspondence has been received to date.

Council has an obligation to determine development applications in a reasonable time period. This application has remained incomplete for five and a half years. Council staff did a final letter drop to Mr Howarth on 11 July 2018 that included a handwritten note requesting that Mr Howarth ring David Waddell (Director Development Services) urgently on his mobile. Mr Waddell has since tried phoning Mr Howarth on a regular basis in an attempt to arrange a final meeting with staff and the Mayor to discuss the proposal, with no response. As such, given the lack of response and repeated requests for additional information with no response, it is recommended that Council determine this application.

The application remains deficient. No plans or environmental reports (ie contamination, suitability for onsite effluent or impact from aircraft noise etc) have been submitted to Council.

As such, Council staff are not able to complete the assessment of the application; and relevantly, the application is recommended for refusal for the following reasons:

1 Insufficient information has been submitted with the application to allow a detailed and rigorous assessment pursuant to Section 4.15 of the Environmental Planning and Assessment Act 1979.

2 The applicant did not include documents that are required to accompany a development application as detailed in schedule 1 of the Environmental Planning and Assessment Regulation 2000.

Council staff have provided the applicant with a number of opportunities via both formal correspondence and phone conversations to provide the necessary information, to no avail.

MATTERS FOR CONSIDERATION

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

Development Applications lodged prior to 25 February 2018

Notwithstanding, Section 28 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 states that the former planning provisions continue to apply to the determination of a pending planning application, being an application for planning approval made before the commencement of the new Act but not determined before that commencement. The relevant provisions are set out at Part 5A of the historical version of the EP&A Act 1979 dated 24 August 2017.

In this instance there is significant biodiversity or habitat value identified in the north-eastern quadrant of the subject land. It is not possible to complete an assessment pursuant to Section 1.7 of the Act as it is not known from the information provided where the proposed house is to be located, and as such what impact that may have on the identified biodiversity and habitat value.

Section 4.15

Section 4.15 of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

(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.

It is not possible to conclusively ascertain from the information provided whether or not the application is consistent with the above listed aims of the plan.

Clause 1.6 - Consent Authority

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

Clause 1.7 - Mapping

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

Land Zoning Map:	Land zoned E3 Environmental Management
Lot Size Map:	Minimum Lot Size 100ha
Heritage Map:	Not a heritage item or conservation area (located opposite a heritage item)
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	High biodiversity sensitivity on the site
Groundwater Vulnerability Map:	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.

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is located within the E3 Environmental Management zone. The proposed development is defined as a dwelling house under OLEP 2011 which means:

a building containing only one dwelling.

To extend this definition further:

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

Dwelling houses are permissible in the E3 Environmental Management zone with the consent of Council.

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

1 - Objectives of the E3 Environmental Management Zone

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

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

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

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

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

It is not possible to complete an assessment of the appropriateness of the development against the above listed objectives of the zone given the deficiencies with the application.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

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

This clause prevents the erection of dwelling Houses on land zoned RU1, E2, E3 or E4 unless the following provisions can be met:

(1) The objectives of this clause are as follows:

(a) to minimise unplanned rural residential development,

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

It is not possible to conclusively determine if the proposed dwelling is consistent with the above objectives given the identified deficiencies with the application.

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

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

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

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

(d) an existing holding.

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

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

A search of Council’s records indicates that the land comprises the whole of an existing holding as defined under Orange Local Environmental Plan 2011.

OLEP 2011 defines an existing holding as

land that:

(a) was a holding on 24 January 1964, and

(b) is a holding at the time the application for development consent referred to in subclause (3) is lodged,

whether or not there has been a change in the ownership of the holding since 24 January 1964, and includes any other land adjoining that land acquired by the owner since 24 January 1964.

Pursuant to clause 4.2A(4) of Orange Local Environmental Plan 2011 land ceases to be an existing holding for the purposes of subclause (3)(d) if an application for development consent referred to in that subclause is not made in relation to that land before 31 December 2012.

Whilst it is unclear from the information submitted with the application as to which provision of the LEP the applicant is relying upon, Council staff can confirm that a development application (of limited information) for a dwelling was lodged on 21 December 2012.

The consequences for the applicant if the application is refused is that it will not be possible to seek consent for a dwelling on the subject land under the current planning provisions.

This scenario will occur as the relevant sunset clause within the LEP will come into effect and the land will lose its existing holding status. In order for Council to have the legal ability to approve a dwelling on the land, the land would need to comprise an area of at least 100ha. The land the subject of this application comprises 71.5ha. It is understood that the applicant does have interests in other adjoining land. Should a refusal be determined, the applicant could consolidate additional land to create a parcel of 100ha or more and seek consent for a dwelling house on that 100ha (or more) parcel.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

The subject land is not identified as a heritage item, nor is it located in a conservation area. It is, however, opposite a heritage item, and therefore the below provisions apply by virtue of subclause (c).

(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.

(2) Requirement for Consent

Development consent is required for any of the following:

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

(i) a heritage item,

(ii) an Aboriginal object,

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

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

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

(d) disturbing or excavating an Aboriginal place of heritage significance,

(e) erecting a building on land:

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

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance,

(f) subdividing land:

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

(ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance.

(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).

(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.

It is not possible to adequately complete a heritage assessment of the heritage item in the vicinity of the subject land due to the limited information provided.

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).

It is not clear from the information provided if earthworks are required; and therefore it is not possible to assess the development against the above 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 not clear from the information provided how stormwater will be managed, and therefore it is not possible to assess the development against the above provisions. Notwithstanding this, given the size of the land it is likely that post-development run off levels will not exceed pre-development levels.

7.4 - Terrestrial Biodiversity

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

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

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

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

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

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

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

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

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

The subject land comprises areas identified as high biodiversity as shown below:

Figure 3: high biodiversity on the subject land

As it is not known where the dwelling is proposed, Council staff are not able to complete an assessment against the above provisions and conclusively determine the level of impact likely upon the areas of high biodiversity.

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:

(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 appear to involve extraction of groundwater and will therefore not contribute to groundwater depletion. However, given the deficiencies in the application it is not possible to determine if the design and siting of a dwelling (including the provision of an onsite effluent management system) would avoid impact on groundwater; and therefore, it is not possible to conclude if the development is acceptable or not in relation to groundwater.

7.7 - Drinking Water Catchments

This clause seeks to protect the quality of Council’s drink water catchment and requires the following provisions to be met.

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

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

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

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

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

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

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

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

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

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

No information has been provided to adequately address the above provisions, in particular matters in relation to the treatment of onsite effluent. Therefore, Council staff cannot conclusively determine that the development will not impact on the drinking water catchment.

7.9 - Airspace Operations

This clause seeks to protect the continued safe operation of the Orange Regional Airport and obligates Council to consider development within the area mapped obstacle limitation and have regard to the following provisions.

(1) The objectives of this clause are as follows:

(a) to provide for the effective and ongoing operation of the Orange Airport by ensuring that such operation is not compromised by proposed development that penetrates the Limitation or Operations Surface for that airport,

(b) to protect the community from undue risk from that operation.

(2) If a development application is received and the consent authority is satisfied that the proposed development will penetrate the Limitation or Operations Surface, the consent authority must not grant development consent unless it has consulted with the relevant Commonwealth body about the application.

(3) The consent authority may grant development consent for the development if the relevant Commonwealth body advises that:

(a) the development will penetrate the Limitation or Operations Surface but it has no objection to its construction, or

(b) the development will not penetrate the Limitation or Operations Surface.

(4) The consent authority must not grant development consent for the development if the relevant Commonwealth body advises that the development will penetrate the Limitation or Operations Surface and should not be constructed.

Parts of the subject land are identified as falling within the mapped obstacle limitation on the obstacle limitations map, and as such it is essential for assessment staff to understand any proposed building’s relationship to the existing landform, and thus its effect on the operations of the airport. Again, as no plans have been submitted it is not possible to undertake this task.

7.10 - Development in Areas Subject to Aircraft Noise

This clause requires Council to have regard to developments that will result in additional dwellings or people within the vicinity of the airport and ensure that new development will not unreasonably conflict with the continued operations of the airport.

(1) This clause applies to development that:

(a) is on land that:

(i) is near an airport, and

(ii) is in an ANEF contour of 20 or greater, and

(b) the consent authority considers is likely to be adversely affected by aircraft noise.

(2) Before determining a development application for development to which this clause applies, the consent authority:

(a) must consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, and

(b) must consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021—2000, Acoustics—Aircraft noise intrusion—Building siting and construction, and

(c) must be satisfied that the development will meet AS 2021—2000, Acoustics—Aircraft noise intrusion—Building siting and construction with respect to interior noise levels for the purposes of:

(i) if the development will be in an ANEF contour of 20 or greater—child care centres, educational establishments, entertainment facilities, hospitals, places of public worship, public administration buildings or residential accommodation, and

(ii) if the development will be in an ANEF contour of 25 or greater—business premises, hostels, hotel or motel accommodation, office premises or retail premises.

The applicant has not provided any information in relation to compliance with the above clause. As such, it would be ultra vires for Council to consent to the application.

7.11 - Essential services

The following clause requires Council to give regard to the essential services necessary to accommodate a particular development on the land, and whether those services are able to be made available for the development.

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable road access.

It is not possible to adequately assess the availability of services given the lack of information - no information has been provided on such things as management of sewage, access, water arrangements etc.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy (Building Sustainability Index BASIX) applies to the subject development. However, the applicant has not submitted a BASIX certificate with the application.

State Environmental Planning Policy 55 - Remediation of Land applies to the subject land, specifically clause 7 which states:

7 Contamination and remediation to be considered in determining development application

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

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

The land has been previously used for agricultural purposes, and as such there is the likelihood of some form of contamination being present on the land. The applicant has not submitted sufficient information to demonstrate to Council staff that the land is suitable for the purposes of a residential land-use. As such it would not be within Council’s power to approve the application in its current form.

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

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

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

Development Control Plan 2004

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

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

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

The corresponding zone to zone 7 Water Supply Catchment (Orange LEP 2000) is zone E3 Environmental management (Orange LEP 2011). As such, Orange DCP 2004 – Chapter 6 is of primary relevance to the assessment of this proposal. The relevant provisions are considered below.

PO 2.3-1 PLANNING OUTCOMES - VEGETATION MANAGEMENT

· Compliance with the Native Vegetation Conservation Act 1997.

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

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

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

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

It is not possible to complete an assessment of the above planning outcomes due to the deficiencies in information with the application.

PLANNING OUTCOMES FOR DWELLINGS IN PROXIMITY TO AGRICULTURE AND OTHER RURAL ACTIVITIES

· Dwelling houses should be located to minimise conflicts with the operation of activities associated with primary production.

· Where a dwelling is proposed to be located within 150 metres of land where spraying of chemicals is likely to occur, an adequate biological buffer is to be established between the dwelling and that agricultural land.

It is not possible to complete an assessment of the above planning outcomes due to the deficiencies in information with the application.

PLANNING OUTCOMES FOR RURAL DWELLING HOUSES

· The dwelling house complies with Council’s Energy Smart Homes Code.

· The dwelling house is sited on land identified as being suitable for construction and free from contamination, flooding and bushfire risk.

· Privacy and views of neighbouring houses are retained.

· A suitable area is available for perpetual on-site disposal of wastes.

· Substantial remnant vegetation is protected from disturbance.

· An adequate water supply is provided.

· All-weather access to a public road is provided.

· Entry gateways are set back sufficiently from the front boundary to allow vehicles to pull up off the public road carriageway.

· A buffer area is established in the vicinity of agricultural operations.

· Outbuildings are located in proximity of and to the rear of the main dwelling house when viewed from the nearest road.

It is not possible to complete an assessment of the above planning outcomes due to the deficiencies in information with the application.

PLANNING OUTCOMES – DEVELOPMENT IN THE VICINITY OF THE AIRPORT

· Noise-sensitive development is located outside the airport-noise zone.

· Where there is no alternative location, development occurs within the hatched area around the Orange airport in full compliance with Australian Standard AS 2021- 1994 Acoustics- Aircraft Noise Intrusion - Building Siting and Construction.

· Development in the vicinity of the airport complies with the Obstacle Limitation Surfaces Plan for Orange.

It is not possible to complete an assessment of the above planning outcomes due to the deficiencies in information with the application.

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

The applicant has not suitably demonstrated that the development is consistent with the provisions prescribed by the regulations.

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

The application is deficient in so far as the information provided is not adequate to enable a complete and rigorous assessment of the likely impacts as required by s4.15(1)(b).

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

The application is deficient in so far as the information provided is not adequate to enable a complete and rigorous assessment of the suitability of the site as required by s4.15(1)(c).

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

The proposed development is not defined as advertised development under the provisions of the LEP, and as such no formal exhibition of the application was required. No submissions have been received in relation to this application.

PUBLIC INTEREST s4.15(1)(e)

Whilst the proposed development is likely to be of minor interest to the wider public due to the relatively localised nature of potential impacts, given the deficiencies with the application it not considered to be in the public interest to consent to the application.

SUMMARY

The application is deficient in so far as the information provided is not adequate to enable a complete and rigorous assessment pursuant to Council’s obligations under the Environmental Planning and Assessment Act. Council staff have provided the applicant with a number of opportunities via both formal correspondence and phone conversations to provide the necessary information, but to no avail. As such, the development application is recommended for refusal.

COMMENTS

The requirements of the Environmental Health and Building Surveyor and the Engineering Development Section have not been sought due to the absence of information.

Attachments

1 Notice of Refusal, D18/39071 ⇨

Planning and Development Committee 14 August 2018

2.5 Development Application DA 329/2015(2) - 62 Byng Street and 77 Hill Street

RECORD NUMBER: 2018/1892

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	4 June 2018
Applicant/s	Mayoh Architects Pty Ltd - PD Mayoh Pty Ltd
Owner/s	Denoc Holdings Pty Ltd
Land description	Lot 3 Sec 21 DP 758817, Lot 4 DP 1085463 and Lot 1 DP 956418 - 62 Byng Street and 77 Hill Street, Orange
Proposed land use	Alterations and extension to an existing heritage mansion to provide boutique hotel accommodation, conference room, kitchen and dining facilities, on-site car parking and landscaping, and demolition (tree removal)
Value of proposed development	$6,200,000.00

Link To Delivery/OPerational Plan

Financial Implications

Application has been made to modify development consent DA 329/2015(1) which was issued by the Court. The development consent relates to a boutique hotel accommodation on land described as Lot 3 Sec 21 DP 758817, Lot 4 DP 1085463 and Lot 1 DP 956418; known as 62 Byng Street and 77 Hill Street, Orange. The land is shown in the below figure.

Figure 1: locality plan (subject land blacked out)

The application to modify the consent involves a number of matters as detailed in this report. Council’s Heritage Advisor and the applicant have worked collaboratively to address many of the issues that relate to heritage conservation. The primary issues that remained unresolved at the conclusion of those discussions relate to the location of the proposed pad-mount substation at the front of the site and the means of attachment of the proposed privacy screens to rooms 1-4 and 9-12. These two matters are discussed in detail below.

Section 4.56 obligates Council to be satisfied that the application to modify the consent issued by the Court is substantially the same development for which consent was previously granted, which Council staff consider to be the case. Following this determination, a section 4.15 evaluation of the application is required which is detailed below.

The below Section 4.15 assessment of the development indicates that the development as modified is acceptable. Attached is an amended Notice of Approval for Council’s consideration.

It is recommended that Council supports the subject proposal.

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

DIRECTOR’S COMMENT

This modification application firstly passes the modification test that it must be ‘substantially the same development’. The modifications proposed are supported by staff for the fact that most result in a lesser environmental impact than previously proposed. Many of the modifications requested are also supported or not objected to by neighbours.

There has been an issue, initially raised by neighbours, that the Construction Certificate plans differ from the Court approved DA plans. The changes are not considered significant by staff. Staff have investigated this matter and have concluded that Council is in a position to approve this modification, particularly since the changes are considered minor and likely to improve the environmental impact of the overall development.

The issue of whether the private certifier has erred is a separate matter that will be followed up by staff.

Policy and Governance Implications

Nil

Recommendation

That Council modifies development consent DA 329/2015(1) for Alterations and extension to an existing heritage mansion to provide boutique hotel accommodation, conference room, kitchen and dining facilities, on-site car parking and landscaping, and demolition (tree removal) at Lot 3 Sec 21 DP 758817, Lot 4 DP 1085463 and Lot 1 DP 956418 – 62 Byng Street and 77 Hill Street, Orange pursuant to the conditions of consent in the attached modified Notice of Approval.

further considerations

SUPPORTING INFORMATION

The application to modify the development consent involves the following^{^[1]}:

1 Removal of balconies for guest rooms 1-4, 9-12 and the conference room balcony, and replace with additional enclosed floor area by moving the line of the windows out. It is also proposed to affix fixed louvres to the windows of rooms 1-12.

2 Modification of the northern boundary fence and hedge.

3 Modification of other boundary fencing, including substituting hardwood timber fencing with treated pine along the western boundary and adding additional palings to the common boundary with 60 Byng Street (at the rear of 60 Byng Street).

4 Modification to the height of Level 1 guest rooms (increase of 360mm in height) and a 265mm increase in the height of the lift overrun.

5 Addition of an electrical substation in the north-western corner of the site.

6 Modification to southern elevation.

7 Minor modifications to the western elevation to accommodate items 1 and 4 listed above.

8 Addition of air conditioning and temporary bin enclosure timber screen with timber structure at the western side of former dwelling; and new path at the front of former dwelling.

9 Change of material of light spill screen to parking spaces 14, 15 and 16 from perforated metal to timber lattice.

10 Reduction in the size of the timber deck located to the west of the entry lounge.

11 Increase the footprint of the lower ground floor to accommodate bin storage, accessible staff toilet and shower, and fire hydrant pump room.

12 Additional skylight above southern egress stairs.

13 Addition of a fibre cement solid screen clad in roofing material on all four sides around kitchen exhaust cowl.

14 Internal changes to the proposed building on the ground and first floors.

15 Addition of a fire booster valve located on the eastern side of the driveway.

16 Removal of a tree on the western boundary.

17 Request to delete or substitute various conditions of consent to accommodate the proposed amendments.

18 Other changes as shown within the submitted documentation.

LIST OF REQUESTED CONDITIONS TO BE ALTERED or DELETED

Condition 24B – proposed to be deleted

The condition currently states:

(24B) Details of the time delay lighting to be fitted the balconies for rooms 1-4 and 9-12 is to be provided to Orange City Council for approval prior to the issue of a Construction Certificate. Details of the time delay locks and other means of preventing access to the balconies between the hours of 10pm and 7am to be fitted to the doors to the balconies for rooms 9-12 are to be provided to Orange City Council for approval prior to the issue of a Construction Certificate.

This condition is requested to be deleted.

No objection. This condition is superfluous given the balconies are proposed to be removed.

Condition 24D – proposed to be amended

The condition currently states:

(24D) Steel screens or louvres are to be fixed to the upper level windows on the western elevation of the approved extension, except for the western glazing to the main entry foyer. Louvre screening is to be affixed to the edge of the balconies to rooms 9-12 (the upper level western facing balconies on the western façade) and are to be angled to allow light and ventilation into the balcony area. The steel screen or louvres must prevent direct overlooking of the adjoining property at 60 Byng Street. Details of the steel screen or louvres are to be provided with the application for a Construction Certificate and noted on the plans to be submitted with the application for a Construction Certificate.

This condition is proposed to be amended to the following (new text underlined, deleted text struck out):

(24D) Steel screens or louvres are to be fixed to the ground floor windows of guest rooms 1-12, and the upper level windows on the western elevation of the approved extension, except for the western glazing to the main entry foyer. Louvre screening is to be affixed to the edge of the balconies to rooms 9-12 (the upper level western facing balconies on the western façade) and are to be angled to allow light and ventilation into the balcony area. The steel screen or louvres must prevent direct overlooking of the adjoining property at 60 Byng Street. Details of the steel screen or louvres to the upper level windows on the western elevation of the approved extension are to be provided with the application for a Construction Certificate and noted on the plans to be submitted with the application for a Construction Certificate.

As detailed below under the consideration of visual privacy impacts, the addition of privacy screening to all guest room windows on the ground floor is considered a positive outcome for all parties as it will afford a greater level of privacy than what was agreed to by the Court. However, Council staff do not accept the deletion of the requirements for the louvres to be angled to allow light into the room (ventilation no longer required as the windows are not operable) whilst preventing direct overlooking of the adjoining property at 60 Byng Street.

In addition to the above and as detailed below, the recommendations of Council’s Heritage Advisor for the louvres associated with rooms 1-4 and 9-12 to be separate from the window system has also been included in the amended condition.

The recommended condition of Council Staff therefore is:

Louvres screens are to be fixed to the ground floor windows of guest rooms 1-12, and the upper level windows on the western elevation of the approved extension, except for the western glazing to the main entry foyer. The louvres attached to rooms 1 – 4 and 9 - 12 shall be attached to the building in a manner whereby the louvres are horizontally separated at least 600mm from the face of the respective window glazing.

The louvres attached to all windows shall be angled to allow light into the respective guest room whilst preventing direct overlooking of the adjoining property at 60 Byng Street. Details of the louvres to all required windows on the western elevation of the approved extension are to be provided with the application for a Construction Certificate and noted on the plans to be submitted with the application for a Construction Certificate.

Condition 24E – proposed to be amended

The condition currently states:

(24E) A screen is to be constructed and is to remain at the rear of the three easternmost spaces (car spaces 14, 15 and 16) in front (north) of the proposed landscaping to act as a barrier to light spill in addition to the boundary fencing and landscaping. This screen is to be in the form of a perforated metal screen to a height of 3 metres. The colour and material of the screen is to be provided to Orange City Council for approval prior to the issue of a Construction Certificate. Details of the screen are to be noted on the plans submitted with a Construction Certificate.

The applicant has requested the above condition be amended as follows (new text underlined, deleted text struck out):

(24E) A screen is to be constructed and is to remain at the rear of the three easternmost spaces (car spaces 14, 15 and 16) in front (north) of the proposed landscaping to act as a barrier to light spill in addition to the boundary fencing and landscaping. This screen is to be in the form of a ~~perforated metal~~ timber lattice screen to a height of 3 metres. The colour and material of the screen is to be provided to Orange City Council for approval prior to the issue of a Construction Certificate. Details of the screen are to be noted on the plans submitted with a Construction Certificate.

As mentioned below, Council staff are not in support of this request for the reasons outlined below. It is recommended that the condition remain as is.

Condition 24I – proposed to be amended

The condition currently states:

(24I) Full details of the restoration or rebuilding of the front fence and gate to 62 Byng Street must be submitted to Orange City Council prior to the issue of a Construction Certificate.

Details of the condition of the existing fence and gate must be provided to Council. Where it can be demonstrated to the satisfaction of Council’s Manager of Developments Assessments that the existing materials are incapable of restoration, the existing fence must be replaced by a timber round top picket/ paling fence consistent with the heritage character of the subject property and Central Orange Heritage Conservation Area. If the fence is to be removed a Landscape plan with details of replacement of the hedge is to be provided.

It is requested to modify the condition as follows (new text underlined, deleted text struck out):

(24i) Full details of the restoration or rebuilding of the front fence and gate to 62 Byng Street must be submitted to Orange City Council prior to the issue of a Construction Certificate.

Details of the condition of the existing fence and gate must be provided to Council. Where it can be demonstrated to the satisfaction of Council’s Manager of Developments Assessments that the existing materials are incapable of restoration, the existing fence must be replaced by a ~~timber round top picket/ paling~~ fence to match the original fence style of chain wire and timber posts, consistent with the heritage character of the subject property and Central Orange Heritage Conservation Area. ~~If the fence is to be removed a Landscape plan with details of replacement of the hedge is to be provided.~~ The selected hedge plants behind the fence are to be advanced plants.

As detailed below, there are no objections to the alternate front fence detail and modified condition. The above condition aligns with the submitted detail and is supported. However, the submitted detail now proposed, the second last sentence in the above described condition is superfluous and should also be deleted (shown bold text). Additional text has also been added which requires the plants selected for the Laurel hedge to be advanced varieties of the plant.

Condition 24K – proposed to be deleted

The condition currently states:

(24K) The timber deck off the main lounge is to be constructed at existing ground level. Plans demonstrating compliance with this condition must be submitted with an application for a Construction Certificate.

As detailed below Council staff raise no objection to this condition being deleted. It is not clear from the judgement as to why the condition was imposed. Council’s Heritage Advisor has accepted the reduced depth of the deck at the same level as the internal floor level of the lounge room.

Condition 47 – proposed to be modified

The condition currently states:

(47) A 2m high lapped and capped hard wood timber fence must be constructed around the perimeter of the development, excluding the frontages to 62 Byng Street and 77 Hill Street, the common boundary to 75 Hill Street and the common boundary between 77 Hill Street and 79 Hill Street prior to the issue of an Occupation Certificate.

Along the eastern boundary of 62 Byng Street, the fence must taper to a maximum height of 1.8m forward of the front building line of the building at 64 Byng Street.

Along the western boundary of 62 Byng Street, the fence must taper to a maximum height of 1.8m forward of the front building line of the building at 62 Byng Street. The height of the fence must be taken from the highest Finished Surface Level adjacent to each part of that fence.

It is requested to modify the condition as follows (new text underlined, deleted text struck out):

(47) A 2m high lapped and capped hardwood timber fence must be constructed around the perimeter of the development, excluding the frontages to 62 Byng Street and 77 Hill Street, the common boundary to 60 Byng Street, the common boundary to 75 Hill Street, the common boundary between 77 Hill Street and 60 Byng Street and the common boundary between 77 Hill Street and 79 Hill Street prior to the issue of an Occupation Certificate.

Along the common boundary to 60 Byng Street, the fence is to be constructed of treated pine. Along the common boundary between 77 Hill Street and 60 Byng Street, the existing fence must be retained. Along the eastern boundary of 62 Byng Street, the fence must taper to a maximum height of 1.8m forward of the front building line of the building at 64 Byng Street.

Along the western boundary of 62 Byng Street, the fence must taper to a maximum height of 1.8m forward of the front building line of the building at 62 Byng Street. The height of the fence must be taken from the highest Finished Surface Level adjacent to each part of that fence.

As mentioned below, there are no objections to the condition as proposed by the applicant.

Condition 48A – proposed to be modified

This condition appears to be a duplicate of condition 24E and the same applies as stated above. The material is to remain as approved.

Condition 83 – proposed to be deleted.

The condition currently states:

(83) The use of all balconies adjoining guest rooms or common areas is to be restricted to use between the hours of 7am and 10pm only. The balconies to rooms 1-4 and 9-12 are to be fitted with time delay lighting and are not to receive light between the hours of 10pm and 7am. The doors adjoining the balconies for rooms 9-12 are to be fitted with time delay locks to restrict the use of the balconies to the hours of 7am-10pm only. Details of the time delay lighting and time delay locks are required to be provided to the Council for approval prior to the issue of a Construction Certificate.

Given the balconies are being deleted, this condition is superfluous and as such there is no objection to the condition being deleted.

BACKGROUND

ISSUANCE OF CONSTRUCTION CERTIFICATE

A Construction Certificate (CC) was issued by a private certifier on 1 March 2018.

It was noted shortly after the time of lodgement of this application to modify the consent that the submitted plans differed from those that were approved by the Court more so than what was being sought to be modified. Upon further investigation it was determined that the plans submitted with the application to modify aligned with the plans that were issued with the CC. This was also separately raised with Council staff by an adjoining owner.

Essentially what this means is that there are works that have commenced on the lower ground level that are in accordance with the CC (issued by the private certifier), but the CC has not been issued in a manner that is consistent with the Court approval. At the time of inspection by Council staff the site works had not yet commenced on the upper ground level and first level, so these amendments to the floor plan can simply form part of this application to modify the consent. It should however be noted the applicant (Mayoh Architects) suggest that the inconsistency between the CC approved plans and the development consent is minor and does not impact negatively on the environment and in their view are consistent in terms of the legislation.

Regularising the works that have already commenced is a little more complicated; however, there is a precedent set by the Court to address this issue. The Court has held that section 96 (now referred to as section 4.55) of the Environmental Planning and Assessment Act 1979 (the EPA Act) can operate retrospectively for work that has already been carried out not in accordance with a consent (Austcorp No. 459 Pty Limited v Baulkham Hills Shire Council (2002) 122 LGERA 205 (Austcorp No. 459) at [18] – [22]). Austcorp No. 459 relied on the findings of Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 where Talbot J held that “the broad construction of s 96 [now section 4.55] leads to a practical result that enables a consent authority to deal with unexpected contingencies as they arise during the course of construction of development or even subsequently, provided of course that the development to which the consent as modified relates is substantially the same development” (our emphasis).. His Honour stated [at 27] “the language of section 96 … itself does not mandate against retrospective development”. His Honour subsequently approved the development on its merits.

It should be noted that recent legislative amendments have resulted in the renumbering of the sections of the EPA Act. Section 4.55 is the previous section 96. This modification application has been made pursuant to section 4.56 (previously section 96AA) of the EPA Act. The language used in section 4.56(1)(a) is similar to the language used in section 4.55(2)(a). Therefore for our purposes Austcorp No. 459 is the applicable law.

In summary, the above commentary indicates that the works that have been undertaken to date that diverge from the Court approved plans can be rendered lawful under this modification on the basis that the works are substantially the same as the original consent. As detailed above, Council staff are satisfied that the application to modify the consent (including the works that have already commenced) is substantially the same development as the development to which consent was granted by the Court.

Council’s course of action in relation to what Council staff consider to be an inappropriately issued Construction Certificate is a separate matter. As to what regulatory action is available to Council, this has been established in Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 404 (Ralan). This case related to the construction of a high rise building containing 3 towers, commercial uses, and 233 residential units. What was approved by the certifier and constructed was significantly different to the development consent granted by the Court.

The Court of Appeal did not make a ruling on whether the CCs were inconsistent with the development consent, rather the Court held that even if it the CCs were inconsistent with the development consent the CCs were nonetheless valid. The Court also held that the approved plans and specifications issued with respect to the CCs formed part of the development consent.

The Court of Appeal’s view was that given the current legislative regime (the EPA Act and the Building Professionals Act 2005), the matter should be dealt with as a disciplinary matter relating to the accredited certifier rather than rendering a CC void. As a consequence, developers will not be adversely affected where they have relied in good faith on such certificates held out by a certifier to be lawfully issued. Of note, one of the accredited certifiers in Ralan had his accreditation cancelled and was disqualified from acting as an accredited certifier for a period of five years, however there is no suggestion that his disqualification related to his conduct in issuing CCs for Ralan's project.

In summary, the works that have been undertaken to date that deviate from the Court approved plans can be rendered lawful pursuant to section 4.56 of the EPA Act. The CC, despite diverging from the Court approved plans, is not likely to be found void by the Court notwithstanding the requirements of clause 145 of the Regulations; and finally, Council or a member of the public could pursue disciplinary action against the accredited certifier via the state regulatory body (the NSW Building Professionals Board). It should be noted that the inconsistency identified in this application relates mostly to the basement and a slight increase in footprint. Certainly the inconsistencies are much less than that considered by the Court in the Ralan case.

MATTERS FOR CONSIDERATION

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

Development Applications lodged on or after 25 February 2018

Having regard to the relevant provisions and based on an inspection of the subject property, it is considered that the proposed development is not likely to significantly affect a threatened species.

A Biodiversity Development Assessment Report is not required in this instance.

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

Section 4.56 - Modification by consent authorities of consents granted by the Court

(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development 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 the consent was originally granted and before that consent as originally granted was modified (if at all), and

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

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

(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

(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and

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

In respect to the above, Council staff considers the application to be substantially the same development as the development for which consent was originally granted by the Court. The overall use does not change, and the overall scale of the development in terms of the number or rooms, types of facilities, number of staff and the like does not change from the original approval. In a qualitative sense, only relatively minor changes are proposed to the development, many of which will result in a diminution of impacts which are viewed by staff as positive contributions.

Other changes relate to addressing conditions of consent such as the noise cowling around the kitchen exhaust, or access requirements addressing the standard BCA compliance requirements.

In relation to the above listed notification requirements, Council has advertised and notified the application in accordance with the Regulations and made all reasonable attempts to notify those persons that made a submission previously.

All submissions received have been addressed below.

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

Consideration of the relevant parts of Section 4.15(1) are detailed below.

Section 4.15 - Evaluation

Section 4.15 of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

The development as modified remains consistent with the above listed aims of the plan.

Clause 1.6 - Consent Authority

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

Clause 1.7 - Mapping

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

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

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Part 2 - Permitted or Prohibited Development

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

The subject site is located within the R1 General Residential zone. The proposed development continues to be characterised as hotel or motel accommodation which remains permissible in the zone with consent.

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned 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.

There are no aspects of the development as modified that would create an inconsistency with the zone objectives.

Clause 2.7 - Demolition Requires Development Consent

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

The development as modified seeks to remove a 6m high Ulmus procera (common name: English Elm) which has a trunk of 240mm DBH.

The removal of a tree on a listed Heritage Item is considered “demolition” by definition pursuant to the LEP, and as such development consent is required, which the applicant is seeking via this application.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

(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.

As mentioned above, the applicant and Council’s Heritage Advisor have worked collaboratively in addressing the fine grain design detail to ensure that the development as modified is acceptable from a heritage conservation point of view. This process is detailed below. Following this process only a handful of matters remain in contention, which are addressed via conditions of consent. With this in mind, the development as modified is considered to be consistent with the objects of clause 5.10.

(2) Requirement for Consent

Development consent is required for any of the following:

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

(i) a heritage item,

(ii) an Aboriginal object,

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

(b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item,

(e) erecting a building on land:

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

The development as modified involves the above, and as such consent is required.

(4) Effect of Proposed Development on Heritage Significance

The following heritage assessment relates to the fundamental changes proposed under this application.

1 Removal of balconies for rooms 1-4, 9-12 and the conference room balcony and replace with additional enclosed floor area. It is also proposed to affix fixed louvres to the windows of rooms 1-12

Council’s Heritage Advisor raises no objections to the deletion of the balconies and the additional floor area, provided the screening detail (which also addresses the privacy) is designed in a way whereby the louvres read as an integrated part of the building and as an interpretation of a traditional verandah, rather than an adjunct to the window system. This is required for rooms 1-4 and 9-12. Rooms 5-8 do not require the separated screening and can be attached where proposed.

To ensure that this recommendation of Council’s Heritage Advisor is achieved, a condition is attached that requires the external edge/face of the louvres attached to rooms 1‑4 and 9‑12 to be a minimum of 600mm from the face of the window glazing.

With the inclusion of the above noted condition, this aspect of the application to modify the consent is acceptable in terms of impacts upon heritage significance.

2 Modification of northern boundary fence and hedge

The consent includes a condition that either requires the existing fence to be restored or, if restoration is not practicable, a replacement timber picket fence is to be installed.

Since the application has been determined, the applicant has found a historic photograph (below) providing sufficient detail of the original fence. It is now proposed to modify the relevant condition to allow for the fence as now proposed as part of this application to modify.

Figure 2: historic photograph of Yallungah showing the original front fence

The proposed front fence comprises timber posts and rails with chain wire. A new cherry laurel hedge is proposed behind. This is effectively a reconstruction of the historic fencing that has been in place for many years. The proposed gates at the western end of the frontage are addressed separately below at point 5 as they relate to the mitigation of the proposed substation. The fence also includes a splay on the western side of the driveway to improve the safety of vehicles exiting the site.

Council’s Heritage Advisor has endorsed the amended front fence design.

To ensure that the design intent of the hedge softening the visual appearance of the fence occurs as soon as possible, a condition is attached that requires advanced plants to be used for the hedge.

Figure 3: proposed timber post and rail fence with chain wire infills

3 Modification of other boundary fencing including substituting hardwood timber fencing with treated pine along the western boundary and adding additional palings to the common (rear boundary) with 60 Byng Street

The fence has been constructed using treated pine palings affixed to a predominately metal frame. The consent specifically required the fence to be constructed from hardwood, rather than a soft wood such as treated pine.

An inspection of the fence identified that there are a number of issues with the way the fence has been constructed. These are mostly civil matters between the beneficiary of the consent and the adjoining property owner, and are addressed in detail below.

The fence is to be painted a charcoal colour on the development side of the fence.

Ideally, the fence ought to have been constructed in accordance with the consent, primarily to ensure the longevity of the fence. From a heritage perspective, the use of treated pine will not fundamentally cause an impact upon the significance of the two heritage items on either side of the fence.

Should Council be of the view that the subject fence be constructed from hardwood, it will be necessary to attach a condition that requires the already installed treated pine palings to be removed and hardwood palings installed in accordance with the condition.

It is recommended that the condition requiring that the fence be hardwood be amended to allow for (the already constructed) treated pine.

It is noted that, subject to certain conditions relating to rectifying the existing build quality of the fence, the adjoining owners at 60 Byng Street have accepted the treated pine material.

4 Modification to the height of level 1 guest rooms (increase of 360mm in height) and a 265mm increase in the height of the lift overrun

The approved headroom within rooms 13 to 19 is proposed to be increased by raising the height of the dormer windows (increasing ceiling height) by 360mm. This increase in height will not increase the overall height or bulk of the already approved building. The windows will remain lower than the main ridgeline of the building.

As part of the negotiations between Council’s Heritage Advisor and the applicant, it has been agreed that modified surrounds to all three sides of all the dormer windows are installed, providing for a 350mm metal facing; the intent of which is to reduce the extent of the glazing and window framed areas on the roofline and the vertical sides of each window.

The plans have been amended to include this detail.

The increase in height of the lift overrun will not result in any unsatisfactory impacts in terms of heritage. Even with the additional height, the lift overrun will still sit below the ridgelines of the new building and will still sit well below the main ridge line of Yallungah.

The additional detail showing the proposed mitigation measures is acceptable and Council staff raise no objections to the proposed changes to the height of the dormer windows and the lift overrun.

5 Addition of an electrical padmount substation in the north-western corner of site

During the detailed design it has become apparent that the existing connection to the subject land and network supporting that connection are insufficient for the power supply required by the development.

The proposed solution is the installation of a pad-mount substation in the north-western corner of the site. The substation will have dimensions of 1.37m wide, 3.05m deep and 1.67m in height. The substation will be within an easement in favour of the electricity supply authority.

Council’s Heritage Advisor recommended that the applicant, as part of a standard heritage impact assessment process, provide evidence to Council that all feasible options have been explored and the reasons for which they have been discounted.

It is noted that the advice from the applicant’s heritage consultant did not appear to go through this process. The advice from the applicant’s heritage consultant simply concludes:

The substation itself is a small, low structure and will have a very limited impact on the presentation of the house to the street and the installation has been handled in a best fit manner to mitigate the visual impact.

Following the request of Council’s Heritage Advisor to demonstrate that alternatives have been explored, the following additional commentary has been submitted:

Prior to awarding the Contract, a Design Information Pack was received from Essential Energy, outlining a connection plan that involved the installation of several new underground cables and the redirection of several existing underground cables to an existing padmount substation at St Joseph’s Catholic Church on Hill Street.

Once the Contract had been awarded a new consultant was engaged to submit a new application for connection with Essential Energy. A revised Design Information Pack was received from Essential Energy that involved a padmount substation which was required to be located within a 7m x 4m easement accessible from the street frontage. Given the size of the easement the only option was to locate the substation on the Byng Street frontage.

Council staff in undertaking their assessment of heritage impacts of the substation in the proposed location held discussions with Essential Energy’s Contestable Works Department. At the conclusion of those discussions it became apparent that the only feasible alternative (being an alternative that would not result in impacts to surrounding customers’ electricity supply and also provide sufficient and reliable supply to the development) was to explore alternate locations within the site.

An alternative location of the substation within the rear carpark was put to Essential Energy; however Essential Energy indicated that this location was not acceptable as sufficient width was not available within the driveway for vehicles and equipment to be able to repair or replace the unit.

This process of exploring alternatives concludes that the proposed location is realistically the most logical location.

On this basis Council’s Heritage Advisor and the applicant have agreed on additional refined detail of the mitigation measures employed to effectively conceal the substation.

The additional detail shown on drawing nos. S4.56_A212 P6 and S4.56_A214 P2 is considered satisfactory, and the addition of the proposed padmount substation is considered acceptable.

6 Modification to southern elevation

The changes to the southern elevation involve the addition of the covered bin store on the lower ground level. The additional built form in the southern end of the building is minor and at the rear of the site, and thus will not result in any adverse impacts.

7 Minor modifications to the western elevation to accommodate items 1 and 4 listed above

This is addressed above under points 1 and 4. With consideration of the additional detail and imposed conditions of consent, Council staff raise no objections to the changes to the western elevation that are a consequence of the proposed design changes.

8 Addition of air conditioning and temporary bin enclosure timber screen with timber structure at the western side of former dwelling; and new path at front of former dwelling

It is proposed to place air conditioning condensers and a temporary bin related to the kitchen behind an unroofed timber screened enclosure on the western side of Yallungah. It is also proposed to install a new path at the front of Yallungah in the same material as the driveway.

Council’s Heritage Advisor and the applicant have reached agreement on an alternate design. The new design reduces the width of the enclosure to the west and alters the design such that it now displays a greater level of continuity with the front fencing elements. The structure will be painted deep bronze green, which is a very dark (almost black) green colour.

It is noted that an acoustic report has been prepared which specifies the design of the enclosure to ensure acceptable noise levels, this is addressed below.

It is also noted that the temporary bin, should it not be managed appropriately, would have the potential to cause an odour issue. As such, a condition is attached which stipulates that the bin must be returned to the dedicated bin storage area at the end of each day. This requirement must also be enshrined within the operational management plan that is required by condition under the original consent.

This component of the modification is considered acceptable.

9 Change of material of light spill screen to parking spaces 14, 15 and 16 from perforated metal to timber lattice

This aspect of the application to modify is not supported. The applicant has not supplied Council with a valid reason for the change in material. The material approved by the Court (being the perforated metal screen) will have a much lengthier lifecycle compared with treated pine lattice, and will be far more congruous with the character of the conservation area. For these reasons it is recommended that the condition remain unaltered.

10 Reduce the size of the timber deck located to the west of the entry lounge

It was initially proposed to reduce the size of the timber deck and replace half the width with stairs. Council’s Heritage Advisor considered this amendment to significantly alter the space between the original mansion and the new building. Following discussions between Council’s Heritage Advisor and the applicant, the proposal has been paired back to line up with the western kitchen wall within Yallungah.

Council’s Heritage Advisor raises no objections to the proposed reduction to the depth of the deck adjacent to the lounge.

It is noted that a condition is attached that requires the subject deck to be installed at existing ground level (condition 24K). It is not clear from the judgement what the purpose or intent of this condition was. It may have been to do with heritage impacts or possibly privacy; in any event it is not entirely apparent.

The differential between the finished floor level of the lounge room and the finished ground level at the point immediately external to the lounge room window is approximately 650mm. It is therefore difficult to understand how the deck could be built at ground level and allow access to the lounge from the approved external door.

Council staff see no reason why condition 24K should be retained. The condition is deleted and the modified deck considered acceptable.

11 Increase the footprint of the lower ground floor to accommodate bin storage, accessible staff toilet and shower, and fire hydrant pump room

The increase footprint essentially occurs within a basement level. The changes to the lower ground level do not alter the height or bulk of the building, nor do they result in any fundamental changes to the previously approved visual appearance of the building. As such, there are no objections to the increase footprint of the lower ground level in terms of heritage significance.

12 Additional skylight above southern egress stairs

Council’s Heritage Advisor raises no objection to the additional skylight above the southern egress stairs. The additional skylight will be inconsequential in terms of heritage impacts.

13 Addition of a fibre cement solid screen clad in roofing materials on all four sides around kitchen exhaust cowl

The noise screen around the kitchen exhaust cowl was initially proposed in an ‘L’ shape on the southern and western sides of the exhaust. Following discussions between Council’s Heritage Advisor and the applicant, the subject screen has been amended to now enclose the exhaust cowl on all four sides, and the external face is now proposed to be clad in the same metal sheeting as the roof. This will interpret the traditional roof projections in a contemporary way, and the external cladding will result in the acoustic screen blending into the roof form.

14 Internal changes to the proposed building on ground and first floors

The changes are minor and relate mostly to adjusting the bathroom layout and the common circulation space. The internal changes are considered minor and will not result in any adverse impacts upon the heritage significance of the place.

15 Addition of a fire booster valve located on the eastern side of the driveway

The fire booster valve assembly is a critical piece of infrastructure for a development of this type. There are also limitations based on Australian Standards as to where the unit can go. In the circumstances, the location is considered appropriate. It will be located at the front of the site in an easily identifiable location, but at the same time will be somewhat discrete as it is located behind a small section of front fence. It is also noted that the assembly is outside the structural root zone of the tree on the western side of the driveway entry.

Additionally, the 2.1m high masonry fire wall behind the assembly will be only marginally higher than the required 2m fence along the eastern boundary.

The fire booster valve assembly is considered acceptable in terms of heritage impacts.

16 Removal of a tree on the western boundary

The tree in question is a 6m tall Ulmus procera (common name English Elm) with a 240mm diameter at breast height (DBH) trunk. Advice submitted with the application from The Tree Surgeon suggests that the tree is likely to be a sucker related to the parent tree on 60 Byng Street.

It is understood that the tree is directly in line with where critical services are required to be installed and the tree is unlikely to survive.

The submitted report from the Tree Surgeon suggests the following in support of the tree’s removal:

· It has a Diameter at Breast Height of less than 300mm.

· It is a sucker rather than a planted tree.

· It will suffer root severance and possible instability.

· The landscape plan for the site will compensate for the loss of this sapling.

The tree is not a great specimen, with a slender truck and relatively small canopy. The tree makes only a very minor contribution to the overall tree canopy in the wider locality. The approval did not identify the tree as being retained (in actual fact the tree does not appear to be identified at all). The approval is predicated on services such as stormwater being installed to discharge to the rear. Based on the foregoing assessment, Council staff raise no objections to its removal.

17 Request to delete or substitute various conditions of consent to accommodate the proposed amendments

The relevant conditions required to be amended is addressed above.

(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),

A brief heritage impact statement from John Oultram Heritage and Design has been submitted in support of the proposed modifications.

(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.

A conservation management plan was not required by the Court, and there is nothing within this application to modify the Court issued consent that would require one to be prepared now.

(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 Court did not identify the subject land being an archaeological site.

(8) Aboriginal Places of Heritage Significance

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

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

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

The Court did not identify the land as being an Aboriginal Place of Heritage Significance.

(9) Demolition of Nominated State Heritage Items

The consent authority must, before granting consent under this clause for the demolition of a nominated State heritage item:

(a) notify the Heritage Council about the application, and

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

The land is not identified as a Nominated State heritage Item

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).

Additional earthworks were undertaken to achieve the additional floor area at the lower ground floor level. The extent of the earthworks undertaken have not affected the potential future use or redevelopment of the site that may occur at the end of the proposed development's lifespan.

The site was not considered likely to be contaminated at the time of the original assessment owing to the long standing residential use of the land.

The additional earthworks underneath the footprint of the building have been appropriately supported onsite and the change in ground level is not substantial. Therefore the effect on the amenity of adjoining properties is considered to be minor.

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 Court was satisfied on this matter and no conditions were previously attached in relation to an unexpected find; and given that the majority of the earthworks are now complete, to impose the condition now would be superfluous.

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

Clause 7.11 - Essential Services

Clause 7.11 applies and states:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) storm water drainage or on-site conservation,

(e) suitable road access.

In consideration of the above clause, the subject land is serviced by Council’s reticulated water, sewage and stormwater drainage systems and benefits from suitable access.

In terms of electrical supply, the land currently has an electrical supply which has been the case for many years; however, it has transpired during the detailed design phase of the development that the existing supply network in the locality is not sufficient without additional capacity being added into the network. Accordingly, a pad-mount substation is proposed in the north-western (Byng Street frontage) corner of the site. This is acceptable in terms of addressing the above clause. However, the infrastructure creates a potential issue in terms of impacting upon the setting of the heritage item, and as such an assessment of the appropriateness of the location of the substation is undertaken below.

STATE ENVIRONMENTAL PLANNING POLICIES

There are no State Environmental Planning Polices that relevant to the assessment of the application to modify the consent.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

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

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land. 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 Areas;

· Chapter 13 - Heritage

and have been previously considered by the Court.

Those matters that are of relevance to the modification relate primarily to visual privacy and heritage considerations and are addressed 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 consent issued by the Court required visual privacy screening to all upper level west facing windows and rooms 9-12 on the ground floor.

With the benefit now of understanding the finished floor levels, the full extent of the visual privacy can now be observed.

The applicant is now seeking privacy screening to all guest rooms with west facing windows (both ground and first level rooms). This is considered to be a much more positive outcome for all parties than what would have been achieved by the Court imposed requirements.

Notwithstanding the above, the submitted detail indicates that the louvres are to be placed in a horizontal plane and the depth of each louvre will be approximately equivalent to the width of the cutter (refer below).

Figure 4: section detail of proposed louvres

The depth of the louvres and the positioning in the horizontal plane will not afford the necessary level of privacy for the adjoining neighbour to the west.

To address this and as detailed above under the conditions to be amended section, the objective of the condition issued by the Court relating to the louvres being angled to allow sunlight but at the same time prevent overlooking to the west, has been retained in the condition.

With the imposition of the condition requiring the louvres to be angled, the visual privacy outcomes achieved under this modified proposal will be much better for all parties than the requirements of the consent issued by the Court, a position which is supported by the owner of the property at 60 Byng Street.

The development as modified is considered acceptable in terms of visual privacy. Acoustic privacy is addressed below under the heading “Noise Impacts”.

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 heading “5.10 - Heritage Conservation”. The proposed development has been designed in accordance with the outcomes for heritage and is considered acceptable.

INFILL GUIDELINES

As established under the Heading “5.10 – Heritage Conservation”, there are no aspects of the application to modify the consent that would result in an unsatisfactory impact upon the heritage significance of the place. Where there is the potential for an impact to occur, conditions of consent are imposed to ameliorate the impact to an acceptable level.

The development as modified will not be incongruous with the character of the locality.

The development as modified will not dramatically alter the previously approved scale and form of the development.

The previously approved siting of the development does not change as a result of the development as modified.

The materials and colours, and the detailing of the modified design have either been agreed to by Council’s Heritage Advisor and the applicant and amended detail submitted (ie the acoustic screen around the kitchen exhaust cowl); or addressed via a new condition of consent (ie attachment of louvres to guest rooms 1-4 and 9-12).

The removal of the Englished Elm at the western boundary has been addressed above and is considered acceptable.

The development as modified is not inconsistent with the relevant heads of consideration under the Infill Guidelines and remains consistent with the intent of the Court approved development.

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

The development as modified is not inconsistent with the provisions prescribed by the regulations.

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

The Court previously considered the likely impacts of the development to be within acceptable levels. The development as modified gives rise to the further consideration of the following likely impacts.

Heritage Impacts

The impacts of the development as modified upon the heritage significance of the place have been addressed above in detail and found to be acceptable.

Noise Impacts

The deletion of balconies is seen to improve the likely noise impacts of the development as the development no longer allows people to congregate on balconies in close proximity to the adjoining land.

The potential for noise would still occur under the development as modified if the windows in the western elevation were able to be opened. The submitted plans do not suggest they are able to be opened; however, to ensure that this is the case a condition is attached that requires all west facing windows within all guest rooms to be fixed panel windows.

In terms of the noise associated with the proposed air conditioning condensers and temporary bin arrangement on the western side of the kitchen, Council’s Manager Building and Environment has provided the following:

I confirm that I have no objection to this proposal given that the area would be provided with an acoustic and visual screening (being a 25mm lapped fenced area) I note that it does not have a roof over it. I do not consider that this would adversely impact on neighbours in terms of impacts assessed against the NSW Noise Policy For Industry (measured over a 15 minute period) and is unlikely to be in excess of BGL +15dbA (for sleep arousal – particularly if a condition is included that the area must not be used after 10pm). That is, provided the area would not be used into the night time period of the NSW NPI (10pm to 7am), I am satisfied that the storage area would be ok. Plan of Management to also reference regular cleaning the management of odours. Also condition the fence is to be in accordance with the acoustic report prepared by Tom Harper of Acoustik.

In light of the above and with the relevant conditions attached, the development as modified is considered acceptable in terms of noise impacts.

Odour Impacts

The proposed temporary bin associated with the kitchen has the potential to cause odour impacts if not managed appropriately. This can be easily addressed by attaching a condition that requires the temporary bin to be returned to the main bin storage area when the kitchen closes each day. This is also to be enshrined in the operational management plan required by condition (85) of the existing consent.

The foregoing assessment has determined that the likely impacts resultant from the development as modified will be within acceptable levels; or where an impact would otherwise result, additional conditions of consent have been imposed or existing conditions remain in place. On this basis, the application to modify the development consent is considered acceptable in terms of likely impacts.

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

The site continues to remain suitable for the development as modified.

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

The application to modify the development consent issued by the Court is defined as "advertised development" under the provisions of the Environmental Planning and Assessment Regulations. The application was advertised for the prescribed period of 14 days and at the end of that period five submissions were received.

Submission 1 - owners of 60 Byng Street

The submission raises the following matters:

· concerns have been raised in relation to privacy given that the proposal when it was first lodged sought to address the privacy at the interface with the submitters’ property by installing lattice onto of the boundary fence for a height of 2m.

· concerns in relation to the way the 2m high treated pine fence has been constructed;

· concerns in relation to the proposed bin and air conditioning condensers enclosure, citing the prospect for noise and odour impacts;

· concerns in relation to the proposed substation, and requesting information as to whether the substation will generate noise and whether the concrete pad extends all the way to the fence to prevent weeds etc;

· stating that the works to the lower ground floor have commenced not in accordance with the Court issued plans; and

· concerns in relation to the removal of the English Elm tree on the western boundary.

Council staff comment

In relation to the submitters’ concerns regarding the deletion of the balconies and the possibility of new privacy impacts, as detailed above the outcomes achieved under this modification in relation to privacy are considered to be much more positive for all parties than what was achieved under the Court issued consent.

It is understood that the applicant/owner and the property owner at 60 Byng Street have had further discussions around the privacy issue, with the applicant providing a copy of the amended plans. Following these discussions Council received a subsequent email from the submitter indicating:

I understand that fixed shutters will be on all ground floor rooms so that people in rooms can see out and up but not down.

If this is the proposal, then we are happy with that. Thank you for your consideration.

As discussed in the body of this report, permanent fixed louvres have now been proposed on all of the ground floor level guest room windows, and recommended conditions of consent have been included to ensure that the louvre design achieves the required privacy outcome. Privacy impacts in this regard are considered to be an improvement from the Court imposed requirements and acceptable in this case.

In relation to the build quality of the treated pine fence on the western boundary, the applicant has made the following assurances in relation to rectifying the fence which are attached as conditions of consent.

We will repair the work where it is of substandard.

We will stabilise the fence where necessary using Metal props on our side of the fence.

We will place a bottom rail on the fence to prevent the timber from warping. This will be done in conjunction with the Landscaper.

We will lap the southern boundary using hard wood palings.

Ultimately these matters are civil matters between the two parties, however attaching the above as a condition of consent will ensure that the required fencing is of an agreed satisfactory standard for all parties.

In relation to the bin and air conditioning condenser enclosure and firstly to noise, Council’s Manager Building and Environment has reviewed the development as modified and has advised that, with the relevant conditions attached (as described above under the likely impacts section), the screening will be satisfactory in terms of noise.

In relation to odour, also detailed above, conditions are attached that require the temporary bin to be returned to the main bin storage area at the same time that the kitchen closes each day. This is also required to be detailed in the required operational management plan.

In relation to the proposed substation, from discussions with Essential Energy it is understood that substations do generate a quiet humming noise, however the noise is unlikely to be audible by the adjoining owner given the required fence and the separation of the substation to the dwelling on the adjoining land.

The pad location is considered acceptable and will be adjacent to the boundary fence which will provide a physical separation been the substation and the neighbour.

The issue of the lower ground floor works having commenced not in accordance with the Court issued consent is addressed in detail above.

In relation to the removal of the English Elm, whilst its removal is unfortunate, the approved development requires services to be installed along the western boundary and the subject tree will be in the way of those services. For the reasons outlined above, it is considered acceptable for the subject tree to be removed.

Submission 2 - owners of 85 Hill Street

The submission raises the following matters:

· concerns in relation to the condition requiring perimeter fencing to be installed and the effect that may have on the submitters’ existing fence;

· requests that Council staff confirm that the development as modified will not increase the level of overshading on their property; and

· concerns in relation to the location of the proposed fire booster and fire sprinkler valves within the driveway.

Council staff comment

The comments regarding the submitters’ existing fence are noted. This matter is, however, a civil matter between the two property owners. However, Council staff would not object to the fence being located just inside the boundary of the development site to allow retention of the existing fence and construction of the new fence required by condition of consent.

In relation to the concerns regarding overshadowing, Council staff can confirm that the minor increase to the height of the lift overrun and the additional ceiling height in the first floor rooms will not result in any additional adverse impacts resulting from overshadowing for the following reasons.

The orientation of the land is north-south meaning, that the majority of shadow is cast to the rear of the land (save for the late afternoon) rather than to the east - being the direction of the submitters’ property. Secondly, the location of the dormer windows are on the western side of the building and sit below the ridgeline of the new building. This means that the additional height will not overshadow more than is currently the case under the Court issued consent. Finally, in relation to the lift overrun, the lift is located almost in line with the submitters’ southern boundary, meaning that the additional height, even if it were to increase the amount of overshadowing, would not impact upon the submitters’ property in any meaningful way.

In relation to the location of the fire booster and sprinkler valve assembly located on the eastern side of the driveway, this infrastructure is essential and required to be sited somewhere that is in a safe location, is easily identifiable and is near the entrance to the land. The selected location is considered the most logical. The selected location is at the main entrance, is outside the structural root zone of the tree on the western side of the driveway and is somewhat obscured from view of a casual observer behind the front fence posts. The masonry wall behind the assembly which is required under the relevant standard will extend only 100mm above the height of the required timber fencing, meaning it will not be overly visually intrusive for the occupants of the neighbouring property which it abuts.

Submission 3 - owner of 243 March Street

The submission raises the following matters:

· brings to Council’s attention the inappropriateness of the use of lattice from a general appearance perspective and its limited longevity in the Orange climate;

· highlights the impacts that would arise with the previously proposed lattice screen on the western boundary;

· provides commentary around the augmentation of rooms with deleted balconies and increased floor area, and provides some suggestions as to how the privacy could be addressed with the installation of metal screens;

· is critical of the proposed pad-mount substation and questions why the electricity supply requirements were not considered earlier; and

· opposes the temporary bin enclosure on odour grounds, and questions why the internal changes are necessary and were not considered earlier in the design phase.

Council staff comment

Council staff agree with the submitter’s comments in relation to the use of lattice. Accordingly, as detailed above Council staff and Council’s Heritage Advisor have not supported the request to change the material used for the light spill screen - the condition remains unchanged.

In response to the lattice screen along parts of the western boundary to address privacy that was proposed at the time of exhibition, the applicant has re-evaluated the appropriateness of the screen in consultation with Council’s Heritage Advisor and has opted to delete the screen. The amended proposal now seeks to address the privacy impact at the source by way of fixed louvres. This is in line with the suggestions within the submission.

(NB: the efficacy of the proposed horizontally positioned louvres is addressed above).

In relation to the proposed substation, it is typical that the detailed design phase follows the development application process. The discovery that the existing electricity network is insufficient to adequately service the development is unfortunate from everyone’s perspective (additional cost to the applicant, and additional impacts upon the setting of the heritage item and conservation area). However, such infrastructure is a necessary requirement of the development. There are a multitude of competing factors as to where the structure can go, which have been explored and discounted for the various reasons provided above. Based on all these considerations and on balance, the substation is appropriate in the proposed location with the additional mitigation measures agreed to between Council’s Heritage Advisor and the applicant.

In relation to the odour comment, conditions are attached that obligate the beneficiary of the consent to remove the garbage bin to the main waste storage area at the end of each day. This is also to be included in the operational management plan.

In relation to the internal changes, it is not uncommon for design amendments to occur at various stages of a project of this scale. As outlined above, the Court has made it quite clear that changes are to be expected, provided the development remains substantially the same. Further assessment of this issue has been provided in the body of this report.

Submission 4 - Orange Heritage Group

Submissions 3 and 4 have been penned by the same person, however submission 4 is under the letterhead of the Orange Heritage Group.

The submission raises the following matters:

· endorses the amended front fence design, provided it is “built correctly and the plants used adjacent to it are at the advanced stage”;

· raises similar concerns to submission 3 regarding the 2m privacy screen and the use of lattice generally; and

· states that some of the group’s members indicated that they have experienced traffic confusion in the mornings with construction vehicles entering the site, and feel similar experiences may be felt with cars leaving the development.

Council staff comment

The comments regarding the front fence are noted and a condition is recommended that requires advanced hedging plants to be used for the front fence hedge.

The concerns regarding both the 2m screen and the use of lattice generally are acknowledged and have been addressed above.

The traffic comments are noted, however this modification application will not affect the previously approved traffic arrangements.

Submission 5 – owner of 75 Hill Street

The submission raises the following matters:

· raises concerns in relation to the quality of the construction of the dividing fence along the common boundary with 60 Byng Street; and

· the submission is mostly concerned with the proposed replacement material of the car park light spill screen.

Council staff comment

The comments regarding the western boundary fence are noted and are addressed above in response to the matters raised in submission 1.

Secondly, as mentioned above, Council staff have not supported the change of material for the subject light spill screen. The condition requiring the perforated metal screen is recommended to remain on the consent as applied by the Court.

PUBLIC INTEREST s4.15(1)(e)

The proposed development is considered to be of minor interest to the wider public due to the relatively localised nature of potential impacts. The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines etc that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. Attached is a draft amended Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

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

Attachments

1 Notice of Approval, D18/40961 ⇨

2 Plans, D18/40773 ⇨

3 Submissions, D18/40935 ⇨

Planning and Development Committee 14 August 2018

2.6 Development Application DA 305/2016(1) - 168 Shiralee Road

RECORD NUMBER: 2018/1894

AUTHOR: Michael Glenn, Senior Planner

EXECUTIVE Summary

Application lodged	8 September 2016
Applicant/s	Byng Administration Services Pty Ltd
Owner/s	Byng Administration Services Pty Limited
Land description	Lots 90 and 100 DP 750401 – 168 Shiralee Road, Orange
Proposed land use	Subdivision (17 lot residential)
Value of proposed development	Not applicable

Council's consent is sought for subdivision of the subject land so as to create 17 urban residential lots and new public roads.

The Planning and Development Committee at its meeting of 3 July 2018 considered a planning report on the proposed development. At that meeting the Committee resolved to defer determination of the application until a meeting and inspection was held. In accordance with the Committee resolution a site inspection of the property was carried out on 30 July 2018 to discuss the proposal with adjoining residents. In addition to the meeting, the Director Development Services met with objectors to discuss issues raised in the submissions. The applicant also met with some residents to further discuss the proposal. Council staff were not a party to those discussions. The development application submitted is unchanged despite these interactions.

At the meeting of July 3 2018, objectors also raised questions regarding the legalities of this proposal and whether or not Council had the ability to determine this application without the owner’s consent of the adjoining property owners given that it would be necessary for the applicant to obtain easements over adjoining land to allow the development to proceed. In accordance with the provisions of the Environmental Planning and Assessment Act 1979 the applicant is only required to provide owners consent for the land to be developed. There is no requirement for the applicant at this stage to obtain owners consent of the adjoining property owners where a future easement for services may be required. The attached draft Notice of Determination contains a series of conditions that prevents the release of a Subdivision certificate for certain lots until such time that all necessary easements and infrastructure have been provided. It is ultimately up to the applicant or any other person entitled to act upon the consent to make arrangements with any landowners upon which easements for stormwater, sewage, water or roads is required should they decide to take up the benefits of the consent. Failure to obtain the necessary agreements from adjoining property owners post consent will impact upon the ability of the applicant to comply with the recommended conditions of consent.

To put into effect the subdivision, it will be necessary to negotiate with adjoining landowners for access to Lots 7-17. To avoid the possibility of conflicts with the purchasers of Lots 7-17, release of the Subdivision Certificates for these lots will be deferred until such time as the indicated access points have been provided. In the interim, the land relating to these lots will remain part of Lot 5 (containing the approved dwelling under DA 42/2016) for the purposes of care control and management effectively as a development lot. Similar restrictions are considered appropriate with respect to securing the water and sewer easements needed across adjoining owners’ land.

The proposed subdivision is subject to the provisions of Orange LEP 2011 as amended and the Shiralee Development Control Plan 2015.

The proposed subdivision requires a variation of the LEP Minimum Lot Size (MLS) and the Shiralee DCP Masterplan. The applicant’s consultant has provided a justification to support the proposed variation of these planning controls. Given that the overall yields within the subdivision are consistent with the DCP master planning and the density controls of the LEP, and that the lot designs are logical and unlikely to cause significant harm to neighbourhood character and amenity, the variation in this case is considered justifiable. It is considered that under the circumstances it is unreasonable and unnecessary to apply the standards fully as written in this case.

The proposed development is unlikely to generate adverse impacts on nearby development or the amenity of the area. It is consistent with the zoning of the land and considered to be appropriate development in the context of the planned land use pattern as articulated in the DCP.

This report provides an assessment of the proposed development as required under Section 4.15 of the Environmental Planning and Assessment Act, 1979.

Attached is Notice of Determination recommending approval of the subject development.

Figure 1: locality plan

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

DIRECTOR’S COMMENT

The subject property is located within the developing Shiralee urban village. Development in the Shiralee urban village is generally required to be developed in accordance with the Shiralee Development Control Plan (Shiralee DCP), including the Shiralee Masterplan. The applicant seeks a departure from Council’s adopted DCP as well as a variation to the LEP minimum Lot size controls that relate to this site (discussed in detail in the body of this report).

While variations from the Shiralee DCP are generally not supported, Council staff recognise that the characteristics of the subject property are unique, and the consultant has put forward a detailed justification as part of the application.

The planning assessment demonstrates that the proposed variations are acceptable in this case. It is recommended that Council supports the subject development application.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 305/2016(1) for Subdivision (17 lot residential) at Lots 90 and 100 DP 750401 - 168 Shiralee Road, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought for Subdivision (17 lot residential) at Lot 90 DP 750401 and Lot 100 DP 750401 - 168 Shiralee Road, Orange.

The proposal involves a subdivision of the subject land to create 17 urban residential allotments and new public roads.

Proposed Lots 1 to 4 and 6 to 17 are vacant, and each would be created for urban residential purposes pursuant to the relevant clauses of Orange LEP 2011. Proposed Lot 5 will excise the existing dwelling (which is to be demolished and replaced by a new dwelling pursuant to an approval granted under DA 42/2016).

The urban residential subdivision of the site would involve the following:

· creation of vacant lots ranging in area from 340m² to just over 3,000m²; the existing (and replacement) dwelling will be created on a lot of approximately 9,400m²

· construction of new roads in accordance with Council requirements outlined in Shiralee Engineering Requirements and additional information

· connection of each lot to reticulated sewer

· connection of each lot to the town water supply

· provision of an inter-allotment stormwater drainage system.

The orientation and configuration of the proposed vacant lots is such that a future dwelling can be designed without unreasonable constraint to optimise solar penetration to internal and external living areas.

Land shaping and finished levels will be subject to final civil engineering design.

The applicant has indicated that the subdivision will proceed in stages subject to demand and provision of services. An indicative staging plan is as follows:

· Stage 1 – proposed Lots 1 to 5

· Stage 2 – proposed Lots 10 to 17

· Stage 3 – proposed Lots 6 to 9.

It should be noted that proposed Lots 7-17 will require the provision of services and access through adjoining lands. These lots will not be able to be released until such time that those services have been provided to the land or alternative arrangements to those contemplated in this application are sought.

MATTERS FOR CONSIDERATION

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

Development Applications lodged prior to 25 February 2018

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

Section 4.15

Section 4.15 of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The 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

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

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

The proposed development is considered to be consistent with the relevant aims of Orange LEP 2011. 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 1.7 - Mapping

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

Land Zoning Map:	R2 Low Density Residential zone and R1 General Residential
Lot Size Map:	Minimum Lot Size a combination of 200m²(Area B) 3000m² (Area W1) and 9,000m²(Area X3)
Heritage Map:	Contains a heritage item under Schedule 5 of the LEP
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.

Minimum Lot Sizes

Figure 2: Minimum Lot Size map

W1: 3,000m² minimum

X3: 9,000m² minimum

B: 200m² minimum

Figure 3:- zoning

Part 2 - Permitted or Prohibited Development

Land Use Zones

The subject site is zoned part R1 General Residential and part R2 Low Density Residential, as indicated in the above map extract.

Section 4B of the Environmental Planning and Assessment Act 1979 identifies that subdivision of land means:

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

The objectives for land zoned R1 General Residential are:

· 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 objectives for land zoned R2 Low Density Residential are:

· to provide for the housing needs of the community within a low density residential environment

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

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

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

The proposed residential subdivision is considered to be consistent with the foregoing objectives. The relevant matters are addressed in the body of this report.

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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 2.6 - Subdivision - Consent Requirements

Clause 2.6 Subdivision - Consent Requirements identifies that land may be subdivided, but only with development consent.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size (MLS)

With reference to Figure 2 above (minimum lot size), the subject land is subject to three separate minimum allotment sizes as follows:

· 3,000m² in the section of land identified as W1

· 9,000m² in the section of land identified as X3

· 200m² in the section of land identified as B.

The proposed subdivision involves the creation of two lots (being Lots 1 and 4) that do not satisfy the relevant MLS of 9,000m²(see map below). Therefore a variation of the MLS is sought pursuant to LEP Clause 4.6 Exceptions to Development Standards (see below).

All other lots comply with the MLS requirements. It should be noted that proposed Lot 9 will be partly within land denoted as “W1” (3,000m²) and partly within land denoted as “B” (200m²). The majority of the subject lot is located on that part of the land requiring a lot size of 3,000m² with a smaller amount being located on that part of the land requiring 200m² lots (see map below). There are no objections to this arrangement as it will facilitate the proposed compact lots meeting the required width-to-depth ratios as contemplated by the DCP Masterplan.

Figure 4: Clause 4.6 - exceptions to development standards

Clause 4.6 (Exceptions to Development Standards) provides that development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument (other than a development standard expressly excluded from the operation of the clause).

Clause 4.1 sets out minimum lot size requirements applicable in certain zones which relevantly states the following controls, objectives and considerations for subdivision:

(1) The objectives of this clause are as follows:

(a) to ensure that new subdivisions reflect existing lot sizes and patterns in the surrounding locality,

(b) to ensure that lot sizes have a practical and efficient layout to meet intended use,

(c) to ensure that lot sizes do not undermine the land’s capability to support rural development

(d) to prevent the fragmentation of rural lands

(e) to provide for a range of lot sizes reflecting the ability of services available to the area

(f) to encourage subdivision designs that promote a high level of pedestrian and cyclist connectivity and accommodate public transport vehicles.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4) This clause does not apply in relation to the subdivision of any land:

(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015

(b) by any kind of subdivision under the Community Land Development Act 1989.

The lot size map for the Shiralee precinct has a montage of differing lot sizes that in large measure are intended to facilitate the lot yields, density and outcomes specified in the Shiralee DCP. The LEP remains the skeletal strategic document, designed to achieve residential living densities able to meet the aims and objectives of the zones and the LEP generally. It is noted that for this proposed subdivision, the yields contained in the proposal, as well as the placement of various lot classifications, are more or less consistent with the outcomes of the DCP.

Pursuant to Clause 4.1(3) of the LEP, the size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

As indicated in the diagram above (Figure 2), subdivision of the subject land is subject to three separate minimum lot sizes as follows:

· 3,000m² in the section of the land identified as W1

· 9,000m² in the section of the land identified as X3

· 200m² in the section of the land identified as B.

With reference to the submitted plans, the proposed subdivision involves the creation of proposed Lots 1 and 4 which do not satisfy the MLS of 9,000m². It is proposed to create these lots each with an area of 3,000m².

The objectives of Clause 4.6 are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

Council must take into account these objectives.

There is no issue with respect to (a), but with respect to (b) it is important for Council to be able to show in its thinking that a particular and special case or circumstance exists to allow the variation. It is noted that the applicant’s Statement of Environmental Effects puts forward a number of reasons to support the variation. However, at the heart of the variation in this case is the desire to retain the heritage item on the same lot as the approved dwelling under DA 42/2016. This will maximise the chances of this building being retained and re-purposed. In doing so the applicant has successfully maintained the overall lot yield in this case.

There are set procedures outlined in guidelines published by the NSW Department of Planning encapsulated in a circular published in 2008, and quite strongly supported and upheld in the Land and Environment Court. For obvious reasons the Department advises all councils to allow variations only where exceptional circumstances exist and where certain other criteria can be shown to be achieved.

When applicants lodge development applications and associated requests to vary a development standard, they must give grounds of objection to the development standard. Variation of a development standard may be justified where it is consistent with the objectives that the relevant environmental planning instrument is attempting to achieve.

The applicant has provided written justification for the variation sought. The proposed subdivision is considered to be consistent with the minimum lot size requirements with the exception of proposed Lots 1 and 4. These lots are generally located in an area identified as having a minimum lot size of 9,000m². The submitted plans show that proposed Lots 1 and 4 each have an area of 3,000m^2.. It is noted thatproposed Lot 5 (on which the dwelling approved under DA 42/2016 would be located) incorporates a proposed site area exceeding 9,000m² and, further, the overall lot yield remains the same as is prescribed in the relevant masterplan.

The application must address:

(i) whether strict compliance with the standard, in the particular case, would be unreasonable or unnecessary and why

(ii) demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard.

In order to address the requirements of Clause 4.6(3) the following assessment is provided. The MLS Map in the LEP is an established instrument in regard to the control of lot sizes. The delineation of the various MLS zones has been largely informed by the Shiralee DCP Masterplan. As such, it can be argued that there is an inter-relationship between the DCP and the MLS provisions. The DCP refers to the potential to vary lot sizes and types (Section 1.8 Exceptional Circumstances). If a variation to lot size and type can be justified under the DCP, it follows that a variation of the MLS may also be contemplated.

In this case the applicant submits that the resultant lot yield is entirely the same as is called for under the Masterplan, and the variation is simply taking advantage of the existing consent granted for a new dwelling that was recently approved under DA 42/2016.

The site of proposed Lots 1 to 5 is identified in the DCP Masterplan as a scenic hill which, in conjunction with the existing heritage item, represents an important setting, particularly when viewed from the north. To maintain these values the DCP encourages a lower density of development on this part of the site; hence the MLS of 9,000m². It is submitted that a MLS of 9,000m² is not required to maintain these scenic and heritage values.

Given that overall yields as specified in the Masterplan are adhered to and the integrity of the heritage item located on the site is maximised by retaining it within the same lot as the approved replacement dwelling, it is considered reasonable and justified in this case to support the variation. It is considered that the scenic vistas of the Shiralee hill are not affected by the variation, and suitable conditions of consent have been recommended to protect the curtilage of the heritage item.

In assessing the appropriateness of a proposal to vary a development standard, Council should also satisfy itself that the development is acceptable having reference to the matters set out in the ‘five part test’ established by the NSW Land and Environment Court. The NSW Department of Planning strongly advises councils to apply the Five Part Test in their assessments of Clause 4.6 matters. The five part test embodies the following:

1 the objectives of the standard are achieved notwithstanding noncompliance with the standard

2 the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary

3 the underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable

4 the development standard has been virtually abandoned or destroyed by the council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable

5 the compliance with development standard is unreasonable or inappropriate due to existing use of land and current environmental character of the particular parcel of land. That is, the particular parcel of land should not have been included in the zone.

An assessment of the five part test is provided below.

1 the objectives of the standard are achieved notwithstanding non-compliance with the standard;

Applicant’s Response

Strict compliance with the 9,000m² MLS would potentially result in a subdivision that does not provide for a range of lot sizes reflecting the ability of services available to the area as encouraged by objective (e) of Clause 4.1. In this sense, this objective of the development standard may be thwarted if compliance with the MLS was required. The proposal is considered to be consistent with the other objectives of the development standard as explained (elsewhere in the statement).

Comment:

In this case the objectives of the standard relate to achieving viable residential yields whilst at the same time taking adequate steps to protect the heritage significance of the site, the semi-rural character, whilst not interfering to the transition to residential, and also to protecting the vista opportunities presented by the hill leading off to the north. It is considered that the proposed variation refines and improves the broad planning outcomes enunciated in the LEP and DCP, and the variation results in an improved outcome with respect to those underlying intents.

2 the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

Applicant’s Response

The applicant has not directly addressed this planning principle.

Comment:

It is considered that the underlying purpose of the standard is to achieve compatible densities (compatible to the preservation of neighbourhood and desired future character, as well as in terms of servicing), whilst at the same time ensuring that constraints such as vistas, heritage, water quality and the like are not placed under threat. In this case, the lot yields as set out in the Masterplan are met, and the overall subdivision layout is respectful to existing character whilst also achieving the strategic goals of the DCP.

3 the underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

Applicant’s Response

See applicant’s response to (1) above.

Comment:

An insistence on full compliance with the standard would result in a slightly less satisfactory subdivision pattern, in that the Masterplan would result in the heritage building being located on a vacant lot and the dwelling approved under DA 42/2016 would be unlikely to be built without modification.

4 the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

Applicant’s Response

The development standard cannot be said to be abandoned, particularly as development of the Shiralee area is in its preliminary stages and the pattern of development is yet to emerge.

Comment:

The applicant’s comment is supported.

Applicant’s Response

Variation of the development standard is justified in this case because it can be demonstrated that the proposal satisfies the objectives of the R2 Low Density Residential zone and the objectives of the MLS. The proposal does not introduce lot sizes that cannot be found elsewhere within the R2 zone for the Shiralee area. In this case, the appropriateness of lot size is more to do with the physical characteristics of the site and its relationship to the surrounding area, as expressed in the Shiralee DCP.

The overall lot yields as called up in the Masterplan are not exceeded by the proposal.

The inter-relationship between the MLS and the Shiralee DCP cannot be dismissed. Despite the non-compliance with the MLS, the subdivision is acceptable in terms of the more specific provisions of the Shiralee DCP. In this regard, the creation of proposed Lots 1 and 4 can be demonstrated to uphold the aims and principles of the Shiralee DCP pertaining to the protection of landscape and scenic values. The proposed building envelope and height restriction pursuant to Section 88B of the Conveyancing Act will assist in this regard.

Comment:

As indicated elsewhere in this report, it is considered that full compliance is not warranted in this case. The yields achieved in the application correlate to those specified in the Masterplan, the location of the heritage items and the approval already granted for the replacement dwelling on the main lot suggest a need for justification in this case.

General observations

The underlying purpose of the standard for which variation is being sought is relevant to the development. Minimum lot size requirements are a blunt assessment tool aimed at achieving good design outcomes whilst at the same time making efficient use of the land at densities likely to achieve a reasonable return for the development; and at the same time ensuring neighbourhood character and amenity is not excessively compromised. Variations based on a wholesale objection to a standard where special circumstances do not exist should be avoided as they weaken the ability to apply the standard at some point for other applications. In this case special circumstances are considered to be evident and support for a variation in this case would not establish an undesirable precedent.

The proposed development with its non-compliance to Clause 4 is not contrary to any of the objectives for the zone. It is also noted that the proposed subdivision has close similarities with the outcomes sought in the DCP. Overall, it is considered that the proposed development has a neutral or slightly beneficial effect with respect to achieving the objectives of the zone.

It is considered in an overall and general sense that the proposal, including the variation sought, is consistent with the above objectives.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

According to Orange LEP Schedule 5, the former residence/packing shed within the subject land which lies to the northwest of the main group of existing buildings is listed as a Heritage Item of Local significance. The building occupies an exposed slope that is prominent in views from the north towards the subject land and the Shiralee area.

Figure 5: heritage item - northeast view

Figure 6: heritage item - north view

Relevant to the identified Heritage Item, the Shiralee DCP Master Plan seeks to:

· conserve historic items and their settings

· conserve, maintain, and enhance existing views and vistas to buildings and places of historic and aesthetic significance.

The applicant has provided the following consideration in response to the NSW Heritage Office publication Statement of Heritage Impact Guidelines (Table 7 – Relevant HIS Questions).

The proposal respects the heritage significance of the item as follows:

· Consistent with the approval granted via DA 42/2016, the heritage item and the replacement dwelling will remain together on the same lot (i.e. proposed Lot 5). The boundary of proposed Lot 5 maintains a generous curtilage for the item, particularly noting that the northern boundary of this lot coincides with the line of the boundary adjustment that was also approved in DA 42/2016.

· The inclusion of both buildings on the one lot maintains the important relationship between the replacement dwelling and the heritage item due to the following:

- the replacement dwelling will be sufficiently set back from the item so as to not encroach on its curtilage or setting. The separation between the proposed dwelling and item is such that there would be minimal potential to undermine or cause physical damage to the item

- the replacement dwelling is set to the south of the item. The item remains forward in the important views from the north looking south towards Shiralee and to the item itself. As such, the proposed dwelling will not diminish any key views to or from the heritage item, or public appreciation of the item

- the proposed subdivision does not involve any works that have the potential to damage the item. In this regard, there is ample opportunity to locate utility service mains well away from the item, and thus not disturb it with excavations or vibration. Further, the proposal does not involve the construction of new roads in close proximity to the item

- compared to the DCP Masterplan, it is acknowledged that proposed Lot 4 in the subdivision creates the potential for one additional dwelling immediately to the north of the heritage item. However, it is considered that the views from the north towards the item can be respected. A building envelope is proposed within Lot 4 to reduce the potential for a future dwelling to unreasonably obstruct sightlines to the heritage item

- the ground level in the proposed envelope ranges from approximately 897.5m AHD at its northern end to 901m AHD at its southern end. The ground level in the vicinity of the heritage item is in the order of 907m. As such, the ground level at the heritage items is some 7 to 10m higher than the ground level within the building envelope

- the difference in ground levels should limit the potential for a future dwelling in proposed Lot 4 to unreasonably obstruct views to or ruin the silhouette of the heritage item. However, to further safeguard against such an impact, the applicant proposes to apply a Section 88B Restriction that requires any future dwelling in Lot 4 to be single storey. This can be imposed or reinforced as a condition of approval in the notice of determination.

The applicant has suitably demonstrated in the assessment above that the proposal has minimal potential to adversely affect the heritage item. Building envelopes and height restrictions for proposed Lots 3 and 4 are recommended in the attached Notice of Approval to ensure that the view corridor from Shiralee Road towards the item is not adversely compromised. Proposed Lot 5 has been designed to accommodate the heritage item itself and new replacement dwelling under DA 42/2016. This allotment will comprise an area of in excess of 9,000m² to provide a suitable curtilage to the heritage item and its surrounds. In this case the resultant lot yield is entirely the same as is called for under the Masterplan, and the variation is simply accommodating the existing consent granted for a new dwelling that was recently approved under DA 42/2016, which ultimately seeks to provide a greater level of protection for the listed item of heritage contained within.

It is agreed that any dwelling within proposed Lots 3 and 4 would sit lower in the view corridor than the existing dwelling and shed that are on the adjoining property to the east. The proposed subdivision would create only one additional lot/dwelling opportunity in this section of the site (compared to the layout in the DCP Masterplan), which is considered to be acceptable subject to the recommended conditions. Impacts upon the Heritage Item are considered to be acceptable.

Part 7 - Additional Local Provisions

7.1 - Earthworks

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

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

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

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

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

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

(f) the likelihood of disturbing relics

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

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

No significant earthworks or details relating thereto have been submitted with the application. Clearly there will be earthworks needed in the road construction and provision of utilities, but there are no indications in the submitted material to undertake bulk earthworks for preparation of the individual lots. In this case it is considered that some benefit is derived from the existing amphitheatre effect of the topography when viewed from the south.

Consequently, the following condition is included in the consent:

(17) Earthworks for all stages of the development shall be limited to those required for roads, footpaths and the provision of utility services. No approval is granted for bulk earthworks to be undertaken on the site with respect to levelling or cut/filling otherwise, except with the further consent of Council, as the details of such works are not shown in the development proposal submitted to Council for approval.

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

The applicant will be required to contribute to the provision of an off-site stormwater detention system for the development. Drainage for Lots 5-17 requires drainage easements over adjoining land prior to the commencement of works. Council is in receipt of submissions in relation to this issue. There is no obligation on an adjoining property owner to provide easements over their land if they choose not to develop at this time.

Conditions are included in the consent to achieve these outcomes.

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.

Given that the proposed development is not anticipated to involve the discharge of toxic or noxious substances, it is considered unlikely to contaminate the groundwater or related ecosystems. Similarly, the proposed development is not anticipated to involve the extraction of groundwater and therefore would not contribute to groundwater depletion.

Clause 7.11 - Essential Services

Clause 7.11 - Essential Services provides that development consent must not be granted to development unless the consent authority is satisfied that any of the services which 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 and electricity; the disposal and management of sewage, stormwater drainage or onsite conservation, and suitable road access.

The applicant has indicated that all services have the capacity to be extended to the site. Council’s Technical Services Division has recommended a condition of consent to ensure that arrangements can be made for all necessary essential services to be provided to the subject property.

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 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.

Given that the subject property has a history of use for the purpose of horticulture, a Preliminary Contamination Investigation (PCI) was submitted with the development application. Based on soil and laboratory analysis, the PCI concluded that the soil sampling program did not detect elevated levels of analysed metals and organochlorine pesticides, and that levels of all substances evaluated were near background environmental levels and below the EPA investigation threshold for residential land use.

Notwithstanding, Council’s Building Surveyor has recommended a precautionary condition of consent requiring that chemical testing of each lot is to be undertaken to demonstrate that the land is suitable for residential use prior to the issue of a Subdivision Certificate.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

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

Development Control Plan 2004

The Orange Development Control Plan 2004 (“the DCP”) applies to the subject land. Chapters of the DCP relevant to the proposed subdivision include:

· Chapter 0 - Transitional Provisions

· Chapter 2 - Natural Resource Management

· Chapter 3 - General Considerations

· Chapter 4 - Special Environmental Considerations

Chapter 0 - Transitional Provisions

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 R1 General Residential zone and R2 Low Density Residential zone correspond with the 2a Urban Residential and 2d Urban Transitional zones.

Chapter 2 - Natural Resource Management

Section 2.1 - Water Quality

Section 2.1 - Water Quality identifies that development which 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.

Stormwater and groundwater quality issues have previously been addressed under “7.3 ‑ Stormwater Management” and “7.6 - Groundwater Vulnerability”, respectively. In summary, it is considered that the proposed development is unlikely to have a detrimental impact on stormwater and groundwater quality.

Section 2.3 - Vegetation and Section 2.4 - Flora, Fauna and Biodiversity

Section 2.3 - Vegetation and Section 2.4 – Flora, Fauna and Biodiversity identify that the natural environment of the Orange LGA has been heavily modified as a consequence of land clearing for various uses, including agriculture, plantation forests, mining and urban development; and that clearing of native vegetation has significantly affected native habitats.

Based on inspection of the subject property, it is evident that it has been highly modified by past agricultural practices and is unlikely to contain significant habitat or biodiversity value.

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.

The proposed subdivision is generally consistent with the intended future use of the land for residential purposes. Any likely environmental impact will be within community accepted levels.

Chapter 4 - Special Environmental Considerations

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.

Land shaping has previously been addressed under “Section 7.1 - Earthworks”. In summary, it is considered that the applicant has not proposed earthworks as part of the development application. Notwithstanding, it is expected that some minor earthworks are likely to be limited to the extent of cut and fill required to construct new internal roads and provide utility services to the newly created lots. It is accepted that the required earthworks for these services are unlikely to disrupt or have a detrimental effect on the existing drainage patterns and soil stability of the area, detrimentally affect a future use or redevelopment of the land, detrimentally affect the amenity of adjoining properties, or disturb any relics.

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.

Land contamination has previously been addressed under “State Environmental Planning Policy 55 - Remediation of Land”.

SHIRALEE DEVELOPMENT CONTROL PLAN 2015

The Shiralee Development Control Plan (Shiralee DCP) seeks to guide urban expansion south of the existing Orange urban area, promote a high quality urban environment with a diversity of housing and recreation opportunities, encourage alternative modes of transport and healthy lifestyles, and reduce traffic congestion providing for the day-to-day needs of residents within the precinct.

These objectives are given effect by a series of development controls which generally deal with issues such as desired future character, local infrastructure, the village centre, residential buildings, private and public domains, the environment, and movement networks. There are Masterplans that deal with individual parts of the residential precinct, of which the subject site is a part. It is located within Shiralee Masterplan Area E, shown below:

Figure 7: Shiralee Area E Masterplan

The general intent of the development controls for the future development of the Shiralee area is contained in the Shiralee Masterplan.

While the development controls are often written in a prescriptive manner, Section 1.8 of the Shiralee DCP provides that in exceptional circumstances Council may consider some variation in lot sizes and types. Any variation from the DCP is to be considered on a case‑by‑case basis and subject to Council’s satisfaction that the proposal meets or exceeds the aims and principles of the DCP. The relevant controls of the Shiralee DCP are addressed below.

2.0 - Desired Future Character

2.4 - Subdivision

Section 2.4 Subdivision includes the following controls:

· Subdivision is to be consistent generally in accordance with the Masterplan design and intent per the DCP. Legislative requirements and DCP written controls take precedence over the Masterplan.

The control identifies that subdivision must be ‘consistent generally in accordance with the Masterplan’. The proposal is considered to be generally consistent with the adopted DCP. The applicant has sought a variation to the minimum allotment sizes or certain lots within the proposal. In this case the resultant lot yield is entirely the same as is called for under the Masterplan, and the variation is simply accommodating the existing consent granted for a new dwelling that was recently approved under DA 42/2016, which ultimately seeks to provide a greater level of protection for the listed item of heritage contained within.

· Lot sizes are to be consistent with or greater than the adopted minimum lot size for the land under the LEP zoning map.

Two of the lots are smaller than recommended in the Masterplan document, whilst one is significantly larger. Overall, for this site the lot yields remain consistent, and the heritage constraints adequately addressed and respected by the solution offered.

It is noted that this control requires lot sizes to be consistent with or greater than the adopted minimum lot size for the land under the LEP. The applicant has submitted a Clause 4.6 variation that establishes that it is unreasonable and/or unnecessary to achieve full compliance with the LEP requirements in this case (see assessment above for detail). This has the effect that the lot layout complies with the intent of the LEP (and hence the DCP) and is reasonable in terms of the outcomes the subdivision is likely to generate.

· Where an oversized lot is proposed (substantially greater than the adopted minimum lot size), plans are to nominate a building envelope.

Lot 1 is proposed to be 9,000m², whereas the Masterplan only requires an area of 3,000m². However, a building envelope is not considered necessary in this case as an existing approval for a replacement dwelling is already in place for this site. The applicant has suitably demonstrated that the size and shape of this lot have been designed to accommodate the new dwelling and respect the listed Heritage Item.

· Building envelopes on oversized lots are to be positioned in a manner that clearly enables future subdivision of the lot to a pattern consistent with the Masterplan layout and adopted minimum lot size for the land.

Refer to assessment above.

· Except for corner lots and where indicated otherwise on the Large Lot Classification Table, all residential lots are to have a width to depth ratio of between 1:4 and 1:2.5 to allow more opportunity for the subsequent dwelling to address both frontages.

Proposed Lots 3 and 17 are corner lots for the purposes of this assessment criteria. Proposed Lot 17 has a width-to-depth ratio of 1.2.5 and complies, whilst proposed Lot 3 has a proposed width-to-depth ratio of 1.2:1 (on the assumption that the primary frontage of this lot will be Shiralee Road). It is considered that notwithstanding the non-compliance with the standard, it will still be possible to meet its intent in future applications for development of the site.

2.5 - Lot Typologies

The explanatory notes of this section include a requirement for the imposition of a building envelope where a lot is proposed that exceeds the lot sizes prescribed in the Masterplan. This appears to be intended to ensure development potential of the larger lot more in accordance with the Masterplan at some point in the future so as to maintain overall lot yields and thereby maintain viability of the Masterplan.

In this case the lot yield for the subject land is achieved in the subdivision and therefore a need for a restrictive building envelope does not appear warranted.

The Masterplan imposes restrictions on future development of the lots in terms of maximum site coverages. As future developments are likely to be processed as exempt or complying development, in which the application of the DCP is not well known, it is considered appropriate to apply these restrictions as Section 88B Restrictions-as-to-User (so as to inform future landowners).

The restriction will be:

“Site coverage ratio is the ratio between the overall site area and the combined footprint of all buildings on the property. The maximum site coverage ratio allowed for each type of lot is:

· 60% for compact lots

· 45% for medium lots

· 35% for standard lots

· 25% for large Lots

Appropriate restrictions to user shall be applied to each of the proposed lots to reflect these requirements of the Shiralee Masterplan”.

The lot typology provisions of the DCP include the following:

· all lots must have a direct street frontage to ensure good access and property amenity. Lots 3,000m² and larger are excepted

· lots without a street frontage are to have a minimum size of 3000m² providing that boundary landscaping is provided.

The submitted layout complies with these requirements, although Lots 7-17 will not be able to physically comply until such time as the physical link to Rifle Range Road has been established. It needs to be acknowledged that the adjoining landowners are not agreeable to the formation of that link at this time. It is further noted that the road construction through adjoining land does not form part of the proposed development. Nevertheless, a condition deferring the release of Lots 7‑17 is included in the consent.

The proposed lots comply with the solar access guidelines of the DCP.

It is noted that the compact lots located at the eastern end of existing Lot 90 do not fully occupy the minimum lot size area contained in the LEP, and are configured generally so as to generally achieve the lot sizes applicable to compact lots and width-to-depth ratio as set out in Appendix B of the DCP. Whilst there is a general correlation between the LEP and the DCP, the area set aside for compact lots under the LEP is too large compared to the DCP. Were all the area for compact lots as shown in the LEP used for that purpose, the resulting lots would no longer comply with the definition of a “compact lot’ (ie the size of the lots would exceed 400m²which is the upper limit specified in the DCP for this categorisation). If this were to arise, the layout would not comply with the DCP and issues like width-to-depth, site coverage and setbacks would be affected.

As a consequence, the submitted plans ensure that the compact lots are compliant with the DCP requirements, but this in turn means that some of the high density land has been folded over into the adjoining proposed Lot 9 of the development. There are no objections to this arrangement.

3.1 - Infrastructure Provisions

Controls:

· Clause 7.11 of the Orange Local Environmental Plan 2011 establishes that development is required to be provided with essential services including:

- the supply of water

- the supply of electricity

- the supply of gas

- the supply of telecommunications infrastructure

- the disposal and management of sewage

- stormwater drainage or on-site conservation, and

· Suitable road access.

· Provision of essential local infrastructure is at the developers cost and in line with the Shiralee Contributions Development Plan.

· The design and placement of local infrastructure is to be in accordance with the relevant authorities requirements.

· All power lines are to be located underground.

It is possible for the proposed development to gain access to these services, although it is acknowledged that water, drainage and sewer access easements with downstream properties will be required; and for road access, agreement with adjoining land owners is still needed. The proposed development does not actually include those services within the physical confines of the site, and therefore such arrangements are not directly relevant to the assessment of the application. The application is consistent with the master planning for the locality and therefore no impediment exists from the perspective of infrastructure provision under the DCP.

3.2 - Ground Levels and Excavation

All forms of development are to respond to the local topography. Excessive cutting and filling of a site is an indication of poor design and is likely to adversely impact streetscapes, alter site drainage, hinder solar access and limit view sharing opportunities.

The application does not show any earthworks beyond those necessary for the provision of roads and utilities. Conditions of consent have been included to address this issue.

3.4 - Staging

The DCP has a broad brush staging plan. The proposed development is not contrary to the staging requirements of the DCP, notwithstanding some of the obvious difficulties presented in achieving road and services access for parts of the proposed development.

4.0 - Neighbourhood Centre

Not directly relevant to this subdivision; however, there are no aspects of the proposed development that would adversely impact on the implementation of the neighbourhood centre provisions of the plan.

5.0 - Residential Buildings

No residential buildings are proposed in this application. The proposed subdivision will create residential lots for the future, and there are no elements of the subdivision likely to generate conflicts with the desired future character of the locality.

6.0 - Private Domain Landscape

Not relevant to this application.

7.0 - Public Domain

There are no public open spaces proposed or required for the subject land under the DCP.

7.4 - Street Tree Strategy

Controls:

· A minimum of one tree per lot for compact lots, two street trees for standard lots and three trees for larger lots, at even spacing along the street

· Street tree plantings are to be consistent with the Street Tree Strategy Diagram, Species List and Planting Detail and as approved by Council

· Residential street verges are to be turfed with Council approved species except where Council requires groundcover planting.

Conditions are included in the consent for those sections of public road proposed on the subject land. The condition does not apply to the connections outside the subject land to Rifle Range Road.

8.0 - Environmental Management

8.3 - Stormwater and Water Sensitive Urban Design (WSUD)

Section 8.3 - Stormwater and Water Sensitive Urban Design (WSUD) includes the following controls:

· a comprehensive site-wide WSUD strategy is implemented for Shiralee

· streets and public spaces incorporate best practice WSUD elements including swales rain gardens and detention/retention basins

· WSUD elements are to incorporate native planting.

Council’s Technical Services Division has commented that Council will install Water Sensitive Urban Design techniques.

8.4 - Environmental Hazards

Section 8.4 - Environmental Hazards includes the following controls:

· Bushfire, flooding and other environmental hazards are to be assessed for each development site to ensure safety and compliance with all relevant codes, regulations and laws.

The subject property is not identified as a bushfire risk area and is not affected by the 100 ARI flood. Council staff are not aware of any other significant environmental hazards which may affect the subject property.

9.0 - Movement Networks

9.2 - Pedestrian and Bicycle Network and Associated Facilities

Section 9.2 - Pedestrian and Bicycle Network and Associated Facilities includes the following controls:

· A cycle network is to be implemented in accordance with Figure 64. Cycle Network and be designed in accordance with Austroads Standards and RMS Guidelines.

· Footpaths to be provided on both sides of the street consistent with the street sections in Appendix C.

· Safe road crossings (e.g. marked crossings) are to be provided according to 9.4 Street Network Access Controls. Also refer indicative intersection treatments, Figures 75 and 76.

· Universal access to be provided throughout the precinct in accordance to AS.1428.1.

· On-road cycle routes are to be clearly line marked and sign posted.

· Any development that is assessed as requiring an on-site parking area or at least 5 spaces shall also be required to provide bicycle parking.

· Bicycle parking is to be provided at the ratio of 1 bicycle space per 15 car parking spaces (or part thereof).

· All bicycle spaces are to be provided with a fixed rack or other feature to facilitate chain locking the bicycle.

· Bicycle spaces are to be positioned so as to avoid conflict with car and service vehicle circulation.

· Bicycle spaces are to be clearly delineated from other parking areas by means of lane marking and/or signage.

Technical Services Comments

Internal Roads

The proposed road layout is satisfactory and is generally in accordance with the Shiralee DCP, however, proposed Lots 7-17 require adjoining land to be developed and/or the construction of roads to serve the lots.

Park Road and Shiralee Road

Shiralee Road may need to be widened by 2.5m along the western frontage of the development (as part of roundabout design). Shiralee Road frontage is required to be constructed with an earth footpath to suit future road design/levels (s94 contributions fund construction of roadway from kerb to kerb).

The applicant will be required to construct Park Road (SFR) with kerb and gutter, footpaths and bitumen sealed parking lane for the full frontage of the development. (s94 contributions fund construction of travel lanes).

Bike Path and Footpaths

The applicant will be required to build bike paths and footpaths in accordance with the Shiralee DCP and Council requirements”.

9.3 - Public Transport Network

Section 9.3 - Public Transport Network and Associated Facilities includes the following controls:

· Bus routes and stops are to be positioned in accordance with Figure 67 - Bus Network.

· All bus stops must have a shelter that includes: seating with arm rests and lighting.

· Bus shelters are to be positioned on either side of the street at all stops indicated on Figure 67 - Bus Network.

· Pedestrian crossings must be provided within 30m of all stops.

· Continuous accessible paving must be provided from the shelter to pedestrian crossing.21.

Council’s Technical Services Division has commented that that the proposed road layout is satisfactory and that detailed design will be addressed via a condition of consent requiring detailed engineering plans prior to the issue of a Construction Certificate. Conditions of consent are also recommended to require roads and paths to be built in accordance with the Shiralee engineering requirements.

9.4 - Street Network and Access

Section 9.4 - Street Network and Access includes the following controls:

· Other than where specified in the Masterplan there are to be no cul-de-sacs or no‑thru roads.

· Where new roads are aligned along existing property boundaries the first property to develop is to include stage one of the shared road including any central median reserve.

· All streets indicated on the Masterplan are to be designed and constructed in accordance with the relevant street typology diagram.

· Intersections are to be designed to maximise ease of movement for pedestrians and cyclists and to slow vehicular traffic. Indicative intersection treatments for four way and ‘T’ intersections are shown in Figure 75 and 76. Indicative Intersection Treatments.

· Traffic calming measures will be implemented in suitable locations to reduce vehicle speeds. Traffic calming measures include passive measures such as intersection narrowing, minimising width of road pavements, designation of slow speed streets and use of rumble strips at pedestrian crossing points and intersections.

· The principles of water sensitive urban design are to be incorporated in the road network for any new streets.

· Driveway crossovers are to be a maximum of 3m wide and are not to be constructed within 6m of an intersection. Crossover pavement is to match the adjacent footpath material.

· Garages and carports on corner lots are to be accessed from the longer street frontage and the crossover is to be aligned adjacent to the boundary furthest from the intersection.

· Marked Crossings, Refuge Islands and/or traffic signals are to be provided at street intersections on:

- collector Streets

- the Southern Feeder Road, and

- intersections of the ‘off road shared cycle and pedestrian path’.

Two stage roads

· On development of the first stage of a two stage road, the design shall include a buffer strip alongside the neighbours existing boundary. This strip is to be created as a Torrens lot and vested with Council to ensure Council can maintain control over access arrangements.

Council’s Technical Services Division has commented that the proposed road layout is satisfactory and that detailed design will be addressed via a condition of consent requiring detailed engineering plans prior to the issue of a Construction Certificate. Conditions of consent are also recommended to require roads and paths to be built in accordance with the Shiralee engineering requirements.

9.5 - Traffic Management

Section 9.5 - Traffic Management includes the following controls:

· Key intersections shown on the management plan are to be designed to Council’s requirements.

· Intersections along nominated bus routes are to be designed to accommodate the turning arc of coach buses.

· Marked crossings, refuge islands and/or traffic signals are to be provided at street intersections on: Collector streets, the Southern Feeder Road and intersections of the off road shared cycle and pedestrian path. This will improve pedestrian and bicycle safety.

· All streets except for Collectors and the Southern Feeder Road are to have a maximum 40km per hour speed limit.

· All street kerbs are to be upright not roll kerbs. Broken upright kerbs should be used where required for WSUD function.

INFILL GUIDELINES

The proposed development is generally consistent with the infill guidelines.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

Not applicable

PART 7 - INFRASTRUCTURE CONTRIBUTIONS AND FINANCE

In accordance with Section 7.11 of the Act and Orange Development Contributions Plan 2017 (Shiralee Release Area) a contribution towards the provision of the following public facilities is required:

Open Space and Recreation	@ $2,682.73 x 17 lots	45,606.41
Community and Cultural	@ $777.99 x 17 lots	13,225.83
Roads and Traffic Management	@ $3,541.11 x 17 lots	60,198.87
Local Area Facilities	@ $12,415.64 x 17 lots	211,065.88
Plan Preparation & Administration	@ @582.53 x 17 lots	9,903.01
Sub Total	(17 lots)	340,000.00
Credit for existing allotments	@ $20,000.00 x 2 lots	-40,000.00
Net Total	(subtotal less credits)	$300,000.00

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2017 (Shiralee Release Area). Attached are conditions requiring the payment of the required contributions prior to the issue of a Subdivision Certificate.

SECTION 64 (LOCAL GOVT ACT) - WATER AND SEWER HEADWORKS CHARGES

Section 64 water and sewer headworks charges are also applicable to the proposal. Such charges are calculated at the time of release of a Subdivision Certificate for the development. Attached are conditions requiring the payment of the required contributions prior to the issue of a Subdivision Certificate.

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

The proposed subdivision has been assessed against the relevant aims, objectives, planning outcomes and controls of Orange LEP 2011, Orange DCP 2004 and Shiralee DCP 2015.

The assessment demonstrates that while the proposed subdivision does not meet some of the specific development controls of the Shiralee DCP, it is generally in accordance with the intent of the document. Generally, any variation from the Shiralee DCP is due to the previous approval granted for a dwelling under DA 42/2016 and the desire to protect the identified Heritage Item on a larger parcel of land.

The subdivision will have the effect of transforming former farming land to new residential estate. The likely impacts associated with transformation are clearly extensive and will range from obvious impacts such as visual impact on the existing landscape, through to less obvious impacts such as increased stormwater flows from impermeable surfaces.

Notwithstanding, given the intent of the Shiralee DCP, it is considered that the likely impacts of the proposed development are acceptable and can be adequately managed via the recommended conditions of consent.

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

The foregoing assessment demonstrates that the subject property is suitable for the proposed development.

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 or DCP. The application was received in 2016 and although not advertised development at the time, attracted three submissions from nearby and surrounding residents. These earlier submissions were made by persons who have since made submissions to the current amended proposal, raising very similar issues to those set out in the following summary. The amended proposal is a subdivision that generally conforms to the provisions of the Masterplan, both in terms of layout and also in terms of lot yield. Notwithstanding the fact that advertising was not required, Council staff determined as a result of the earlier submissions that the development application would be advertised and notified. During the exhibition period submissions have been received from the following persons:

Liz and Glen Saunders - 158 Shiralee Road

· Access to Lots 7-17 of the proposed subdivision would potentially require us (and our neighbour) to trigger development on our land by agreeing to roadways, water lines and sewer lines being built within our boundaries.

The Masterplan does call for road and sewer connections that will affect neighbours at some point in the future. However, there is no compunction for the objectors, or any other third party to do anything with their land in relation to the proposed development. If the objector does not want road access to be constructed across their land, or water/sewer connections to be provided, they are not compelled to do so by a consent for this application.

Michael John MacMahon - 11 Park Road

· Sewer Main - the planning proposes that a sewer main be placed 1m inside the boundary of my property along Park Road. The gardens on our Land have been established over 40 years and we do not wish them to be destroyed by the installation of a sewer main.

The subdivision plans show that the intent is to provide road extensions to Rifle Range Road, water mains to be located within this future road reserve, an access drive running along the western boundaries of Lots 7-9 and 17, and other services that at some point will require negotiation and agreements to be reached with those nearby and adjoining affected landowners. There is no compunction on the part of those affected neighbours to agree to their land being used for these purposes.

The layouts and service provisions for the proposed subdivision are consistent with the Masterplan layouts, but until and unless agreements are reached with the neighbours affected, those lots dependant on such arrangements cannot proceed. There are recommended conditions in the consent presented to Council to ensure that this outcome is achieved and neighbours’ rights fully protected. Should at any point in the future the applicant and adjoining residents wish to pursue an alternative proposal, it would be necessary for a separate application to be submitted for Council consideration and for that application to be accompanied with sufficient justification against the DCP controls.

· Stormwater Discharge - the proposed development will drastically increase the amount of hard stand areas which will greatly increase stormwater discharges. Current planning proposal states that the stormwater is to discharge to the natural low point but that will force the increased stormwater runoffs onto my property potentially causing considerable damage.

There are no substantial increases in hardstand areas contained in this actual proposal, although some increase would arise from the roadworks proposed. Clearly the likely future development of the lots for residential purposes will increase the amount of surface runoff, and hence a need for enhanced stormwater management will arise at some point. It is normal practice for residential subdivisions in urban areas, to make allowance in the engineering details for stormwater management, and this can often require negotiation with downstream property owners for the establishment of appropriate drainage reserves. There will not be any increase in terms of ponded or unmanaged runoff onto neighbours’ land. Conditions are included in the draft consent that require stormwater systems to be designed and installed prior to the release of the subdivision stages.

Council’s Technical Services Division has provided the following comments with regard to the proposed development’s implications for stormwater management:

“The applicant will be required to contribute to the provision of an off-site stormwater detention system for the development (through s94 contributions). Drainage for Lots 5-17 requires drainage easements over adjoining land prior to the commencement of works”.

· Roadways/Access - the development relies on the creation of a number of roadways so that access be granted to Sites 7–17. Until these roadways are put in I cannot see how the development could possibly be approved as there will be no access to these sites.

Until and unless the road connections can be provided, a significant number of the lots cannot be registered. There are conditions recommended in the consent to address this issue.

Gary Coulson - 23 Park Road

· Raises no objection to the reduced block sizes and configuration departures from the Masterplan.

This is noted; however, such departures are supported on the basis that unique circumstances are at play for the subject property. Future variations would need to establish special circumstances in the same way as the subject application.

· Has concerns over the proposed sewerage main in Park Road. With the mains traversing private property, what are the implications for affected landowners with regard to liability and what easements will be involved to service and maintain the main?

Landowners who reach agreement on the positioning of the sewer main will generally not be permitted to build over the main or its zone of influence. Typically this will be a two or three metre wide strip of land extending over the location of the pipeline. Conversely, the costs of installing such mains generally falls to the development that initially generates the need for such services, which should be seen as a benefit for nearby and surrounding landowners contemplating future subdivisions. Those landowners able to gain access to the mains can generally tap into the main after it has been installed

· What will be the compensation to the landowner as it will detract from the land value. Who will cover the cost of for replacement fencing, vegetation and ongoing rehabilitation of sites in which the main is laid?

Compensation is a matter for negotiation between the developer who installs the mains and the landowner. With respect to rehabilitation costs like replacement of fencing, this is normally either done or covered by the developer. It is a matter of negotiation between the developer and the landowner, however.

· Will the contributions for stormwater management be sufficient in years to come. Why isn’t suitable Storm Water Drainage being installed as the subdivision develops to alleviate the 1:100 year events, instead of a contribution to Orange City Council, and why can’t stormwater be discharged directly onto adjoining properties

The solution for stormwater management of the site requires a mix of reticulation works to be undertaken on the site and in the surrounding environs, and some investment in capital works for the overall build-up of local capacities. This is to allow the collection and disposal of excess runoff. There is a basic legal presumption that places an onus on developers to ensure that pre- and post-development flows do not substantially change, and that such runoff is eventually discharged to a natural watercourse. Detention works are required as a capital work (which is where the contributions are applicable and will be expended) to facilitate capacity building in the form of such measures as increased detention basin capacity and other strategic capabilities.

· SEPP-55 - wants soil testing to be carried out.

The site contamination report indicates that some onsite soil testing has been carried out, and the results of this testing are that there is no significant threat from contamination on the site. As a precautionary measure, Council’s EHBS has recommended a condition for further testing to be undertaken by way of a condition of consent.

The objector points out that the site was used in the 1950s and 1960s for orcharding purposes, and that the chemicals used in these processes were dangerous to human health and wellbeing. This is acknowledged, and has been investigated as part of the site contamination report.

Jenny and Chris Roberts (on behalf of Peter Sharkey) - 55 Rifle Range Road

· The impact on our amenity/views, serenity, sense of place and historical sense of place as mentioned in Clause 5.10 Heritage conservation- fabric, settings and views, will be greatly affected.

The submission is not specific as to how this development will adversely affect the objector in the way described. It appears the objections raised are more to do with the overall transition of the locality from a rural environment to a residential village. It is considered that the proposed subdivision, whilst possessing some differences to the DCP Masterplan layout, is substantially the same nevertheless, and at the same lot yield overall. The proposed lot layout respects the listed Heritage Item on the subject land.

· Clause 2.10 - variation by 66.6% on block size for Lot 1 and 4, would set a massive precedent for the Shiralee DCP.

It is considered that special circumstances exist and are at work on the subject site that render the proposed variation unique and non-transferrable to other sites. The variation arises because of a desire to utilise an existing development consent that includes retention of a listed heritage building. Overall the lot yields remain the same, and in terms of general layout the proposed development is consistent with the DCP Masterplan as it relates to this site. Matters in relation to heritage impacts of the development have been separately addressed in the body of this report.

· [The objectors] have no desire to develop nor subdivide in the near future.

This is not relevant as a planning consideration to the subject application. The subject application has no impact or in no way forces the objector to subdivide their land. As discussed above there is no compunction for the objectors, or any other third party to do anything with their land in relation to the proposed development. If the objector does not want road access to be constructed across their land, or water/sewer connections to be provided, they are not compelled to do so by a consent for this application.

Obviously, as the character of the locality changes residents may choose to voluntarily seek to have their land subdivided; however, such future subdivisions should be consistent with the master planning set out in the new DCP.

· Our views towards the west will be impacted and detract from our sunset viewing and photo taking.

Whilst the subdivision itself will not have an adverse impact upon views, it is acknowledged that the construction of future buildings within the new subdivision will have some effect on the objector’s views from the juxtaposition of simply being there. It is considered that the implementation of the Shiralee Masterplan will have some effect. However, it is not considered that the proposed development will have an excessive effect on view loss and that substantial proportions of existing views would be retained after the development is carried out.

The following mapping extract shows the position of the objector, the position of the proposed development and the primary view line in the direction of Mount Canobolas and the Pinnacle.

Figure 8: view analysis for 55 Rifle Range Road

As can be seen from the attached basic view analysis, the primary view lines for the objector as identified in the DCP are of Mt Canobolas. The proposed development does not affect those primary views. The views enjoyed by the objector in other directions cannot be considered the primary views for that person. Moreover, with the larger lot to be located on 168 Shiralee Road and the compact lots lower in elevation relative to the crest at Shiralee Road, it is considered that views in the westerly direction for the objector will not be significantly affected.

The Land and Environment Court has ‘planning principles” with regard to view loss assessments. The value of views are linked to whether the thing being viewed is iconic or essential to the inherent value of the property benefitting from that view. Where views are of a more general or panoramic value the Land and Environment Court “planning principles” promote the idea of view sharing. In this case it is obvious that the proposed development will not completely eradicate the objector of all their views, and will not affect at all the primary viewing lines that may be open to the objector.

· Proposals to encroach on the northern boundary of 55 Rifle Range Road for stormwater drainage, sewage and future roads will clearly impact on mature white gums, a highly functioning and vital underground bore for our potable water and agricultural land.

The positioning and design of stormwater drainage lines will require discussions and agreement with the relevant landowner/s. Stormwater flows may not be simply discharged onto neighbours’ land, and an approval for the subject application does not remove or impinge upon the private property rights of other landowners to withhold their agreement to the positioning of stormwater lines or other infrastructure across or over their land. The issues of concern that have been raised would need to be considered in detail if and only when a decision was made by those persons to further develop their land for residential purposes. The status quo would remain if a decision was made to not development that land at this time.

· Groundwater vulnerability is rated as high. We request further investigation in this area especially in regards to the proximity of bores and adjoining downstream properties which are vulnerable to contamination.

It is considered that the proposed subdivision possesses little risk to groundwater quality or the quality of water extracted from the aquifers in the locality.

· Groundwater vulnerability.

The subject property is mapped as having groundwater vulnerability. This arises principally because of the relatively high water table across much of Orange, including the subject site. It is considered that the subject property is under no greater risk than other properties with similar ground water vulnerability issues. It is further considered that, given that surface runoff and effluent disposal will both be managed principally by removal via articulated networks linking back to Council infrastructure, the risks to water quality are very low.

· Clause 7.11 - Essential services- e) Suitable road access

It is noted that this objector has similar concerns as expressed by other residents with respect to access for Lots 7-17. These have been previously commented upon.

C Smith

· Objects to the compact lots.

The compact lots are consistent with the Masterplan contained in the Shiralee DCP.

· Roads and access.

Mr Smith is concerned about safety arising from the increased road usage. However, the road layout on which the subdivision is based is a direct facsimile of the DCP requirements.

· Stormwater - stormwater system be designed for the 1 in 10 year storm event.

Council’s stormwater standards that are applicable to the proposed development are generally to a higher standard than the 1 in 10 year event. Notwithstanding, a detailed engineering drawing will be required to be prepared for approval adhering to Council’s Subdivision and Development Code prior to works commencing.

· Location – slope and elevation creates a highly visible development.

The subject property is particularly visible from the north, with the views of the Heritage Item located on the site of particular interest. To address this issue and minimise the impacts of both the existing development and future development of the new lots, conditions are included in the attached schedule to limit the extent of earthworks, height restrictions where appropriate and setbacks for the compact lots that are proposed.

· Landscaping – some arrangement for revegetation should be included in the proposal.

Conditions are included in the consent for the provision of landscaping as specified in the DCP.

· Remediation of land.

A site contamination report submitted with the application indicates that the site is not contaminated and is suitable for use as residential land.

Laurie and Graeme Dwyer – “Hillview” Park Road

· Blocks 1, 4, 6, 7, 8 and 9 do not comply with the street frontage requirements for a large lot classification.

There are some variations in relation to the DCP Masterplan, however this arises due to the existing approval granted for DA 42/2016. In terms of general layout and lot yield, the proposed subdivision is consistent with the DCP. Clause 1.8 does allow for certain variations to the DCP where the outcomes remains remain generally acceptable and underlying objectives are being achieved.

· Request that driveway access for Lots 2, 3, 4 and 6 be identified.

It is standard for Council to determine the location of driveways at dwelling application stage.

· Objects to the location of the sewer main and stormwater lines on their property. Same objection for proposed road access.

As owners of that land, the objectors can refuse sewer mains (and/or stormwater lines) being installed on their land. Those lots requiring sewer and/or stormwater access across the objectors’ land may not be developed until such access is provided, but the objectors are under no obligation to allow such access. The same conclusions can be drawn with respect to road access. It is noted that the proposed development, with respect to water, sewer, stormwater and roads, is consistent with the LEP as well as the DCP Masterplan. Issues relating to the provision of water, sewer and road connections are not directly relevant to the assessment of the development application, and will be the subject of separate negotiations between the developer and the affected landowners.

· Compact lots will require excessive cut and fill.

The compact lots are consistent with the Masterplan layout of the DCP in terms of size, shape and location. There are no bulk earthworks proposed for the sites under this application.

The most appropriate time to assess whether future development complies with the cut and fill requirements is if and when cut and fill is actually part of the site works, ie when applications for buildings are received. The overall cross fall from northwest to southeast for the compact lots is in the order of 10m, which equates to an average drop for each of the proposed compact lots of 1.25m. Depending on the style of construction used and whether or not split level buildings are adopted, the cut for future dwellings can be expected to be under 1m. This is not considered excessive.

· Fencing.

The objection points out that larger lots require open rural style fencing with high visual permeability. The objectors are concerned that the large lots with open style permeable fencing will not achieve adequate privacy for them. At the same time they point out that they run cattle on their holding, suggesting that residential opaque fencing like Colorbond or palings would not prevent their cattle pushing the fencing over.

The DCP is, in fact, concerned with trying to manage the transition of the locality from a semi‑rural environment to a residential environment. The land has been rezoned generally to residential purposes, and the Masterplan manages this transition. However, it is noted that with a residential zoning, the use of the properties for any form of extensive agriculture is no longer permissible under the LEP. Existing use rights would, however, apply in circumstances where the activity has been continuous.

There are no details of any fencing to be provided on the site, which indicates that no new fencing is at this stage proposed. Future applications for dwellings on the sites can be assessed as to their impacts on privacy versus the impacts of solid fencing on neighbourhood character. In future, devices and techniques such as screen planting/landscaping, positioning and orientation of buildings and the like are possible so as to minimise privacy impact. These can be assessed on their merits.

For this application it is considered appropriate to impose the following condition:

(x) For all stages of the development and any future development on the new lots, where any existing fencing at the perimeter of the site needs to be removed, or is of a type which does not ensure the occupants of any adjoining residence adequate privacy, new fencing that is compliant to the requirements the Section 6.2 of the Shiralee DCP shall be provided, and where necessary shall include arrangements for screening landscaping or privacy devices as necessary to suit the style of development and its constraints at that time.

· Tree Removal.

The objectors raise concern about the loss of one gum tree from the site. This tree is not proposed to be removed under this application. It appears that approval to remove the significant vegetation from the site was granted under DA 42/2016. The vegetation existing on the site is not significant from a biodiversity management perspective.

· This DA should include soil testing.

A site and soil analysis was submitted with the application by Envirowest Consulting.

· Future development.

The objectors’ land holding is affected by the reservations for roads and services as set out in the DCP, which the proposed subdivision is entirely consistent with. Since the adoption of the DCP the objectors’ land has been subject to those land acquisitions for roads and services in the areas so shown in the Masterplan. As such, the parts of the objectors’ holding affected by road and services acquisition has no real potential for any substantive alternative development. The land owner has a choice to basically keep using the land as they are, or to develop their holding as set out in the DCP. The proposed development currently before Council does not interfere with that choice.

· Compact Lots are not in keeping with the Desired Future Character of the locality.

The compact lots as proposed in this application reflect closely the layouts contained in the DCP Masterplan for this locality, as shown in the following Figures 9 and 10.

Figure 9: DCP Masterplan (drawing by applicant)

Figure 10: proposed subdivision layout

PUBLIC INTEREST s4.15(1)(e)

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. The applicant has sought a variation to the minimum allotment size controls pursuant to Clause 4.6 of the LEP. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

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

Attachments

1 Notice of Approval, D18/40155 ⇨

2 Plans, D18/40152 ⇨

3 Submissions, D18/40153 ⇨

Planning and Development Committee 14 August 2018

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

RECORD NUMBER: 2018/1532

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 location is shown below.

Figure 1: locality plan - subject land shown red outline

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 plane 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 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 vehicular access over Lot 100) and create a battle-axe 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 (9) dwelling houses; one dwelling on each of the two lots fronting Kite Street and seven (7) dwellings as a multi-dwelling housing development on the battle-axe lot. Finally, the applicant is seeking to undertake an eight (8) lot Community title subdivision (seven house lots and one community lot (access)) over the multi-dwelling housing development within the battle-axe lot. As part of the development a new vehicle crossover will be provided within the street, changing the existing arrangement within the footpath. The development also involves new front fencing, landscaping and visitor parking spaces.

A planning report was tabled for the consideration of the Planning and Development Committee on 7 December 2017 with a recommendation for refusal based on the following:

· 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).

At that meeting, the Committee resolved:

That Council defer DA 350/2016(1) – 47-49 Hill Street, Orange, to allow for further discussion with the applicant and objectors.

Since that time the applicant has amended the subject application to address the matters raised in the abovementioned planning report, as well as those raised within submissions. The fundamental change to the application relates to the number of driveways, which have been consolidated to a single driveway. This allows the garages for Dwellings 1 and 2 to have garage openings orientated in a way whereby they are not visually prominent within the street.

The amended application was publicly notified, at the end of which three (3) submissions were received.

The amended design represents a marked improvement on the presentation to Kite Street, and subject to a number of conditions relating primarily to heritage matters, the proposal is acceptable. Accordingly, the amended development application is recommended for approval.

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

DIRECTOR’S COMMENT

Council’s insistence on the redesign of the unit development has resulted in a more sympathetic development within one of Orange’s key heritage zones.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to 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 conditions of consent in the attached Notice of Approval.

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 in 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 as summarised in the table below.

Lot	Size (m²)	Frontage	Further Development
100	3,647.8	Kite Street via access handle of battle-axe lot	Multi dwelling housing (seven dwellings) and Community title subdivision
101	3,528.7	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. A separate development application for future uses required
102	577.3	Kite Street (vehicle access to garage via access handle of Lot 100)	Single dwelling
103	568	Kite Street (vehicle access to garage via access handle of Lot 100)	Single dwelling

Table 1: summary of subdivision

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

Figure 2: excerpt 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 battle-axe 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 hip roofs, with some gables. The external materials for all dwellings will comprise face brick, Colorbond roof sheeting, aluminium windows (save for the front elevation of dwellings 1 and 2 which will be timber), circular profile downpipes and quad profile gutters. Hard landscaping will comprise coloured concrete driveways and paths. Trees, hedges and shrubs are proposed as shown on the submitted landscape plan.

Stage 3

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

The Community Title subdivision is summarised as follows:

Lot	Size (m²)	Resultant Improvement
1	737.7	Community lot/vehicular access
2	388.0	Dwelling 3
3	385.8	Dwelling 4
4	403.7	Dwelling 5
5	500.2	Dwelling 6
6	446.6	Dwelling 7
7	384.3	Dwelling 8
8	477.9	Dwelling 9

Table 2: summary of Community Title subdivision

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

Figure 3: excerpt 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 four 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 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.

7 December 2017

Report tabled for the Planning and Development Committee with a recommendation for refusal. Council resolved to defer DA 350/2016(1) – 47-49 Hill Street, Orange, to allow for further discussion with the applicant and objectors.

9 May 2018

Amended application lodged.

24 May 2018

Amended application advertised and notified.

PLANNING PROPOSAL

As a separate matter, the owners of the land lodged a planning proposal with Council which sought to rezone the former Mansion and the curtilage around it (approximate area shown blue outline below) to B4 Mixed Use. This has since been completed. The recent amendment effectively completes a contiguous row of B4 Mixed Use zoned properties on the western side of Hill Street from Summer Street through to Kite Street (see below).

Figure 4: area of land rezoned to B4 Mixed Use (shown blue outline)

(red outline relates to the subject land)

The completed planning proposal (area within the blue outline above) also sought to apply a 9m Height of Buildings limit and a 0.5:1 Floor Space Ratio; as well as a reduction in the mapped extent of the heritage items to relate to just Lots 1, 2 and 3 DP 1127220. All these changes to the LEP came into effect upon the date of Gazettal, being 22 June 2018.

The amendment to the LEP as described above will not affect the assessment of this application in any material way. There is no development other than subdivision proposed on the land now zoned B4, and in terms of the reduced area of mapping associated with the heritage item, the land remains within the Central Heritage Conservation Area and the proposed dwellings adjoin a heritage item (being the former mansion), therefore the level of assessment remains the same post amendment as it did when the application was first lodged.

MATTERS FOR CONSIDERATION

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

Development Applications lodged prior to 25 February 2018

Section 4.15

Section 4.15 of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

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

The application is not inconsistent with the aims of the plan, particularly aims (a), (b), (c), (e) and (f) as listed above.

Clause 1.6 - Consent Authority

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

Clause 1.7 - Mapping

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

Land Zoning Map:	Land zoned R1 General Residential and B4 Mixed Use
Lot Size Map:	No Minimum Lot Size
Heritage Map:	Partly a Heritage item and heritage conservation area
Height of Buildings Map:	No building height limit on R1 Land; 9m limit over the B4 land
Floor Space Ratio Map:	0.5:1 floor space limit to B4 Land
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Groundwater vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies
Flood Planning Map:	Not within a flood planning area

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

· covenants imposed or required by Council

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

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

· any trust agreement under the Nature Conservation Trust Act 2001

· any property vegetation plan under the Native Vegetation Act 2003

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

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

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

Part 2 - Permitted or Prohibited Development

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

The subject site is located within the R1 General Residential zone and B4 Mixed Use 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 6.2) 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 in the zones with consent pursuant to clause 2.6 of the LEP. Demolition is permissible in the zones with consent pursuant to clause 2.7 of the LEP. Dwelling Houses and multi dwelling housing are permissible in the R1 General Residential zone and B4 Mix Use 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 Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned R1 General Residential and B4 Mixed Use 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 housing and increase the variety of housing types that are close to the CBD, which will allow for a variety of transportation modes. The development will have a neutral effect on the last listed objective.

It is noted that there is a small area of land (approximately 3.4m²) (shown in the below figure) 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. Council’s mapping system shows the land as being B4. 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.

Figure 5 (and insert): approximate location of Lot 19 showing part of the land zoned B4 Mixed Use

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.

1 - Objectives of the B4 Mixed Use Zone

· To provide a mixture of compatible land uses.

· To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

· To promote, where possible, the retention and reuse of heritage items as well as the retention of established buildings that contribute positively to the heritage or cultural values of the land in the zone.

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

The development is not inconsistent with the objects of the B4 zone. It should be noted however, that this application does not seek a land-use of the former mansion (being that portion of the development site that is zoned B4 Mixed Use) at this time. It will be necessary for an application to be made for any future use of proposed Lot 101, at which time Council will have the opportunity to consider, inter alia, whether or not the proposed land use is consistent with the zone objectives.

Clause 2.6 - Subdivision - Consent Requirements

This clause triggers the need for development consent for the subdivision of land. The applicant has sought consent via 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 is situated on land within the R1 General Residential zone, which is not identified on the Minimum Lot Size Map as having a minimum lot size. This clause requires the site to have a minimum area of 1,250m² to support multi dwelling housing.

This subject land/proposed lot (being proposed Lot 100) will be (once created under Stage 1) 3,647.8m² and therefore consistent with this clause.

Clause 4.3 - Height of Buildings

This clause limits the height of buildings (HoB) on land identified on the Height of Buildings Map. The subject land (being only that portion of the development that is identified as proposed Lot 101) is identified on the Map as having a HoB limit of 9m. The applicant does not seek to alter the height of the existing building on the land.

Clause 4.4 - Floor Space Ratio

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

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

· excluding community land and most public places

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

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

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

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

As mentioned above, proposed Lot 101 now comprises a FSR development standard of 0.5:1. The proposed lot is 3,528.7m². The existing former mansion comprises a gross floor area of 584.7m². At the completion of the subdivision the land concerned will comprise an FSR of 0.17:1, well below the development standard.

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 6: 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 Heritage 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 are recommended to be attached as conditions of consent.

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 terms ‘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 Heritage 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 and Council’s Heritage Advisor are of the view that the amended design with the garages associated with Dwellings 1 and 2 designed in a way so as not to dominate the setting, coupled with the stepped (articulated) arrangement of the built form of Dwelling 2, will result in a development that is compatible with the setting and one that will integrate sympathetically within the context and setting.

The amended design, subject to certain details being addressed via conditions of consent as established below, is consistent with the objects of the clause.

(2) Requirement for Consent

Development consent is required for any of the following:

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

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

(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

As established throughout this report, the recent amendments to the design that previously went before Council are viewed by Council staff to have made a positive contribution to the development’s overall level of acceptability. The application is now considered satisfactory in terms of the impacts upon the heritage significance of the setting.

A more detailed consideration of the development is provided below under the Infill Guideline considerations.

(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),

The applicant has submitted a heritage impact statement to accompany the amended design which concludes that the design is acceptable on heritage grounds.

(6) Heritage Conservation Management Plans

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. 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 (CMP) 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 (particularly given the new zone). As such, it is recommended that a condition be imposed that requires a CMP 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. A relevant condition is attached in this regard.

(7) Archaeological Sites

(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, as it is standard practice, to 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:

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, as it is standard practice, to impose a precautionary condition that establishes 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 earthworks proposed in the application are limited to the extent of cutting and filling required for the proposed dwellings. This primarily relates to the front of the site. Approximately 0.9m will be removed from the front western corner. Dwellings 3-9 relate (approximately) to the level of the existing level of the bowling greens. The extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways.

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

As described in detail below, the site is not known to be contaminated. Notwithstanding this, Council’s standard precautionary conditions are attached in relation to an unexpected find.

The earthworks will be appropriately supported onsite and the change to the existing ground level is not substantial. Therefore the effect on the amenity of adjoining properties is considered to be minor.

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

The site is not in proximity to any waterway, drinking water catchment or sensitive area (no major earthworks are proposed in the location of the existing water bore in the north-eastern corner of the site). Conditions are imposed which require sediment control.

7.3 - Stormwater Management

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

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

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

The proposal has been designed to include permeable surfaces and includes onsite retention of stormwater through the use of detention basins within the rear yards of Dwellings 6 and 9 which are connected to a discharge point in Hill Street. The proposed stormwater arrangement will require the installation of pipes in proximity to a large deodar tree within the curtilage of the heritage item.

Council Technical Services Division advises:

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 of at least 300mm 1-2 times per year thereby making the area of inundation useless for private purposes. The applicant has the option of creating a series of smaller basins spread throughout the development 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.

Whilst the proposed way of addressing the stormwater is not ideal, Council has allowed similar arrangements in the past; and given that the other option of connecting to the existing stormwater system at the Hill Street/Kite Street roundabout could have a far greater impact upon the significant deodar tree on the northern boundary, the proposed private open space detention system is the more appropriate on balance.

So as to make this arrangement of stormwater detention fully known to prospective purchasers, the following Restriction-as-to-User will be placed on the Titles of the properties:

A Restriction-as-to-User under section 88B of the NSW Conveyancing Act 1919 will be required to be created identifying the proposed retention basins and restricting any structures or landscaping that would affect the designed operation of the basins and require no more than 50% impervious area in the retention basin area.

As mentioned above, the private open space detention basins system will still require a trench for a 150mm diameter pipe in close proximity to the subject deodar. Doing so has the potential to impact upon the structural root zone of the subject tree.

Council’s Manager City Presentation inspected the subject tree and provided the following advice in relation to the necessary works proposed adjacent to the subject tree:

The subject tree, a Deodar Cedar (Cedrus deodara), is a mature specimen with a diameter at breast height (400mm 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.

It is therefore recommended that the proposed stormwater system:

A Either be redesigned to enable stormwater to flow directly to the south to the Kite Street frontage

B It be conditioned that the stormwater system be installed by directional boring from 12 metres in radius form the centre of the stem of the Deodar Cedar ie from outside the canopy drip zone on the western side of the tree to the eastern side of the tree. The directional bore shall be a minimum of 1200mm below the existing ground surface and be no closer than 5 metres to the centre of the stem of the Deodar Cedar.

The option identified as ‘B’ is the preferred option. Option A would be difficult to achieve, if not impossible. There is a third option, which would be to connect directly with the piped stormwater system at the Hill/Kite Streets roundabout; however this would require a larger diameter pipe, resulting in potentially greater damage to the subject tree.

As such, Option B is realistically the only viable option to manage stormwater within the site.

Advice from Council’s Technical Services Division indicates that the above condition (option B above) is not possible to achieve for the following reasons:

· There is insufficient room between the subject tree and the boundary to achieve the recommended 5m separation. It is noted also that there would be insufficient room on the adjoining land to achieve the recommended separation.

· The engineering design levels would not allow the subject pipe to 1.2m below finished surface level. The design level requires the subject pipe to be approximately 700mm at the western side of the subject tree and approximately 900mm at the street.

As such, notwithstanding the above recommendation from Council’s Manager City Presentation, it is considered appropriate to attach a condition that requires directional boring or hydrovac method of installation for all pipes/services within a 12m radius of the subject deodar stem (trunk), that the subject pipe be repositioned as close as practicable to the northern boundary of the subject land, and that all works occurring within a 12m radius of the subject deodar tree be undertaken under the direct supervision of a qualified arborist.

It should be noted that the stormwater is required to leave the site somehow, and if this method is considered unsatisfactory by Council it will be necessary to require an alternate engineering design.

7.6 - Groundwater Vulnerability

This requires that Council consider:

(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 Water Regulator 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. The beneficiary of the bore would be responsible for ensuing appropriate licences are in place and that the pump used to extract the water was managed to limit noise impacts if used.

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.

The amended driveway design will allow a firefighting appliance to service the rearmost dwelling in the event of fire as required by Fire and Rescue NSWs Fire Safety Guidelines: Fire hydrants for minor residential development Version 02.

The development is satisfactory in terms of essential services.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 Remediation of Land

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) has 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’s author 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, it is recommended that Council's standard precautionary condition that deals with the unlikely event of unexpected contamination being encountered be attached as a condition to the Notice of Determination.

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.

Essential Energy (being the relevant supply authority) has advised of 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.

The above requirement and the other standard requirements from Essential Energy are incorporated into the Notice of Determination.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

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

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

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

Development Control Plan 2004

Development Control Plan 2004 (“the DCP”) applies to the subject land. 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 zone/s 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

Section 2.1 - Water Quality

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

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

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

Section 2.2 - Soil Resources

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

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

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 recommended relevant conditions that relate to the demolition component of the development which are attached to the Notice of Determination.

Addressed separately below are comments that relate to garbage collection.

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. 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. Relevant conditions are attached in this regard.

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

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

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

CHAPTER 5 - GENERAL CONSIDERATION FOR ZONES AND DEVELOPMENT

Section 5.3 - Advertised Development

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

The development is a kind that requires formal advertising and notification. As outlined above, Council staff undertook advertising and notification on four 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 29 written submissions were received (broken down as 6 during the first exhibition period, 13 during the second exhibition period, 7 during the third exhibition period and 3 during the fourth exhibition). It is noted that a number of submitters furnished submissions during the first three exhibition periods - of those, some made new submissions, while others reiterated previous comments. The final exhibition period saw two re-submissions and a new submission. A detailed assessment of the issues raised by the submitters is provided below 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 for the design of future dwellings to have north orientated private open space and rear living rooms with northerly aspects. The battle-axe 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 B4 Mixed Use zoning. Notwithstanding this, should the mansion be returned to a dwelling use, then the orientation is appropriate and the proposed lot 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. It is noted that Lots 102 and 103 have the potential to be created and sold as vacant lots prior to the next stage (dwellings) being commenced. If this were to occur it may be proposed for these lots to have their own separate driveway (which would diverge away from the design intent demonstrated in this application). To avoid this scenario, and also to make potential buyers aware of the access restriction (should the lots be sold as vacant parcels); it is recommended that a Restriction-as-to-User under section 88B of the NSW Conveyancing Act 1919 be placed over the subject lots that prohibits direct vehicle access to Kite Street and that all vehicle access to the public road for Lots 102 and 103 must be via the rights-of-way shown on Lot 100. A condition is attached to this effect.

It is acknowledged that the amendments to the previous plans that went before Council have made a positive contribution to the presentation of the development within Kite Street and significantly reduce the adverse impacts upon the heritage significance of the locality.

It is also acknowledged that the current design with a single driveway retains more on‑street parking than the previous design (which proposed three separate driveways), which is also seen as an improvement on the previous design.

· 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. Relevant conditions are attached that require the development to be consistent with that Code.

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

The battle-axe lot is proposed with a 6m wide access handle at the street frontage and a driveway within the battle-axe handle which 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.

An area on the western side of the driveway has been dedicated for 21 x 240L waste bins (three bins for each dwelling within the future multi-dwelling development). Relevant conditions are attached in relation to garbage collection under the final Community Title stage.

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

The size of the battle-axe lot is well above the DCP's requirement of 650m² for battle-axe 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. Thus, the development is consistent with the above planning outcome.

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 seven 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 seven 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 three or possibly four spaces.

In any event, the applicant has not nominated a specific land use for the Newstead building at this time; and with the completion of the recent rezoning 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 theoretically be returned to a dwelling house (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 Newbury 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 is recommended that clearly indicates that those spaces are not approved.

On a separate but related matter, as noted above, the amended design which adopts a single driveway reduces the loss of on-street parking spaces, which is considered an improvement on the previous design.

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 lands former recreational use.

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.

As further outlined below, the amended design is not fundamentally inconsistent with the above objectives, and subject to a number of conditions of consent the development is considered satisfactory.

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 amended design of the driveway system (which now removes the dominance of garages for Dwellings 1 and 2), along with the siting and articulation of Dwelling 2, will have acceptable 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.

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 6:

· 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 not inconsistent with the objects of the infill guidelines, specifically those listed below:

· 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.

Character

The submitted Statement of Environmental Effects 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 that the prominence of the heritage item is retained from all vantage points.

Figure 7: 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.

The amended design which eliminates the garages presenting to the street results in a development that is now far more consistent with the character of the area. Additionally, as identified in the above character assessment by the applicant, the character of the area is enhanced by the existing landscaped setting/tree canopy within the locality. To enhance this and to mitigate the additional hard surfaces, a condition is attached that requires the landscape plan to be amended to include an additional deciduous tree planting within the private open space area of each dwelling. The tree shall be a capital pear or similar.

Subject to the above requirements and several other conditions outlined below relating to detailing and the like; the development will result in an acceptable level of compatibility with the existing character of the area.

Scale and Form

Scale

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.

The amended design with a single driveway has resulted in finished floor levels that will be higher than the previous design with individual driveways. Dwelling 1’s finished floor level will now be 350mm higher and Dwelling 2’s will be 750mm higher. The increased heights of finished floor levels occur as a result of the driveway grade and general engineering design. The increase in heights will not unreasonably impact upon the heritage setting. Council’s Heritage Advisor has indicated that:

The heights are acceptable and the roofs consistent with the context.

The development is considered acceptable in terms of scale.

Form

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 now orientated internally (which has the effect of reducing the visual dominance of garages within the street) is a marked improvement on the previous design that went before Council. The development as it presents to the street is now consistent with the prevailing form of dwellings in the locality, which comprise single storey pitched roof cottages, with habitable rooms with windows presenting to the street, and front verandahs and other architectural detailing also presenting to the street.

The form of buildings within the development, particularly Dwellings 1 and 2 are not inconsistent 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 width of the driveway.

In terms of front setbacks, proposed Dwelling 1 will have a front setback of 7m to the front line of the verandah and 8.2m to the building proper. Proposed Dwelling 2 will have a front setback of 7.7m to the front building line.

The front setbacks of Dwellings 1 and 2 more or less retain the same distance as was presented in the previous design that went before Council. However, what has changed is the footprint and layout of the two front dwellings, particularly Dwelling 2.

Dwelling 2 now comprises the projecting parts to the western side of the dwelling and progressively steps back to the east. This gives the appearance of a much greater separation of the new dwellings and the former mansion, which has the effect of significantly reducing the crowding effect of the new development upon the heritage item. The effect of the change is clearly demonstrated in the two figures below.

The development is acceptable in terms of siting, particularly with respect to Dwelling 2 and its spatial relationship with the former mansion.

Figure 8: previous siting and design of Dwelling 2

Figure 9: amended siting and design of Dwelling 2

Materials and Colour

A detailed external materials: Colours and Finishes schedule has been submitted with the application. The materials comprise:

· face brick alternating between PGH Opaline Garnet (Dwellings 1, 4, 5 and 8) and PGH Opaline Tourmaline (Dwellings 2, 3, 6, 7 and 9), with foundation courses comprising rendered commons in a basalt colour (this is an interpretation of the vernacular architecture within the conservation area which comprises traditional blue stone foundations)

· Colorbond roof sheeting - colour alternating between dwellings with either Basalt (Dwelling 1 for example) or Shale Grey (Dwelling 2 for example)

· quad gutters

· timber fascia

· circular downpipes

· basalt coloured panel lift garage doors

· fenestration comprises vertically proportioned timber windows for the street facing elevations of Dwellings 1 and 2 and aluminium windows elsewhere within the development.

It is noted that the submitted materials schedule specifies the proposed material and then notes “or similar”. To ensure the appropriate level of certainty with the final design outcomes, particularly given the context and setting, a condition is attached that requires the materials schedules to be amended to delete the “or similar” references where listed.

The proposed materials and colours are acceptable, however to ensure that the development presents acceptably within its context, achieves an acceptable level of character and complements the conservation area, the following additional requirements are recommended.

Council’s Heritage Advisor recommends that the brickwork consist of oxide tinted ‘Brown’ mortar and that the pointing of the mortar be flush finished mortar (as shown in the below figure) consistent with the brickwork within the conservation area.

Figure 10: recommended pointing style (source: Brixmakers)

Relevant conditions are attached.

The temporary bin collection point within the driveway is to be screened from view from the street. A condition is attached that requires the southern end of the bin enclosure to be screened with a 1.5m lapped and capped fence in the space between the eastern boundary fence of Dwelling 1 and the driveway. A relevant condition is attached.

It is noted that the submitted plans indicate the perimeter and internal fencing to be timber paling. To ensure longevity of the fence, it is recommended that all new timber lapped and capped fencing consist of hard wood timber. Further to the timber fencing, Council’s Heritage Advisor recommends that the fencing be painted in Dulux Timbercolour ‘Basalt’. It will be up to the beneficiary of the consent to discuss with the respective neighbouring property owners as to whether their side of the fence will be painted also. A relevant condition is attached.

Detailing

The key consideration concerning detailing comes with ensuring that important features common to the area are carried over and interpreted in a contemporary (but balanced with being sympathetic) 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.

The amended application includes a landscape plan that has been prepared by Living Edge Design in support of the proposal which shows the provision of soft landscaping in the form of four specimen trees (cornus florida ‘Alba’ or Magnolia soulangeana), hedging behind front fencing, accent plants, groundcovers and turf within each of the frontages of Dwellings 1 and 2; and rows of hedges or groundcovers adjacent to driveways. Additionally, specimen trees to the rear of the site are also proposed in the form of ‘flowering plums’ and a ‘crimson wave’ Hard landscaping consists of the driveway 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.

To ensure that the development has an acceptable fit within the context and setting, the following requirements relating to details of the design as recommended by Council’s Heritage Advisor are incorporated as conditions of consent:

· Vertical batons on gable ends of all dwelling with gables are to be 50mm x 35mm batons, with the 35mm face of the baton to be against the face of the gable. This is required to accentuate the contemporary nature of the detailing in place of replicating a bungalow. The batons are to be painted Dulux Timbercolour ‘Braid’ to reflect the brickwork, enhance the character and avoid the bungalow repetition.

· The replicated curved decorative elements under the verandah beams for Dwellings 1, 3 and 8 are to be replaced with 150mm square grid pattern using 35mm x 35mm framing to better interpret the contemporary character.

Figure 11: example of recommended verandah detailing (source: not known)

· All timber verandah posts to be not larger than 150mm x 150mm without traditional chamfers, again to interpret the contemporary character.

· At the street frontage it is more appropriate to adopt a traditional interpretation of front fencing rather than a contemporary one. To this end, the design of the front fence is to be amended such that the four intermediate brick piers are to be replaced with steel posts the same as the steel post shown on plan DA43 dated Apr’18 – these four intermediate piers being:

o the pier between the western corner pier and the western pier at the Dwelling 1 access gate

o the pier between the eastern access gate pier (dwelling 1) and the western driveway pier

o the pier between the eastern driveway pier and the western access gate pier for Dwelling 2 and

o the pier between the eastern access gate pier for Dwelling 2 and the easternmost pier.

The fence is also to return down the driveway (on both sides of the driveway) for one bay for visual continuity.

From the foregoing assessment and with consideration to the required conditions of consent, the development is considered acceptable in terms detailing within the context and setting.

Landscape Detail

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 and required by condition (as detailed under the heading “Character”) will achieve the baseline objectives of softening hard edges, breaking up the front elevations and include 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 proposed landscaping is considered satisfactory.

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.

Notwithstanding this, for the sake of brevity and to avoid duplication, the character of the area is addressed above under “Infill Guidelines” and is considered to be acceptable.

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 (particularly the composition/presentation of Dwellings 1 and 2 with presentation to Kite Street) have been addressed in detail above under "Infill Guidelines" and considered to be acceptable.

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 “Infill Guidelines” above and considered to be acceptable.

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 “Infill Guidelines”. Mail boxes are proposed at the front of the site on the western side of the driveway. There is no objection to their location. It will be necessary for the mailboxes to be integrated into the fence that returns down the driveway (as required by condition of consent).

Bulk and Scale Objectives

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

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

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

The 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 on 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 and their relationship with the new built form are satisfactory with respect to the visual bulk considerations.

The proposed dwellings will all fit within the prescribed envelopes in respect to boundaries created under Stage 1 (Torrens Title subdivision). It is noted, however, that Dwelling 9 although complying with the visual bulk envelope, will present as a large mass given the elevated floor level and extensive roof form. The overall massing of Dwelling 9 could be reduced simply by reducing the pitch of the roof from 27 degrees to 24 degrees; effectively reducing the overall height of the dwelling by around 0.6m. However, the benefits derived from reducing the overall height by what is realistically likely to be an indiscernible amount, would be outweighed by the change to the overall proportions of the dwelling, and a dwelling that is inconsistent with the overall design rationale. Therefore changing the roof pitch of Dwelling 9 is not recommended.

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 (Lot 103)	252.54m²	568m²	44.5% (60% maximum)
2 (Lot 102)	238.79m²	577.3m²	41.4% (60% maximum)
3-9	1,540.12m² (aggregate footprint)	3,647.8m²	42.2% (50% maximum)

The proposed development is consistent with the site coverage requirements 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.

The internal design of proposed dwelling are all well considered in terms of sustainability with north orientated living areas. Shadow diagrams, including shadow diagrams in elevation, demonstrate that the development complies with the planning outcomes under the DCP.

The orientation of the land will mean that the development does not create any overshadowing impacts upon adjoining land.

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 overshadowing. The closest external property (4/45 Kite Street) will not be unreasonably affected by the proposed development. This is principally due to the orientation of the land and the design of 4/45 Kite Street, where a garage and storage area adjoin the eastern boundary (which is also the western boundary of the subject land).

In terms of assessing the level of solar access available to the dwellings within the development site; based on the submitted 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 that was previously nominated at 1.8m in height has been reduced to 1.5m to improve the level of solar access into the private open space areas of the dwellings. There is no objection to this reduction in fence 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.

The development is considered satisfactory with regards to daylight and sunlight.

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 amended siting of Dwelling 2 will mean that the view corridor towards the former mansion has improved such that significant features of the heritage item (such as the widow's walk element within the roof) will be more easily viewed from the footpath when standing to the west of the subject land looking toward the Newstead building. The development is considered to be consistent with the above planning outcomes.

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 within the development (FL878.70). However, the land steps to the east at the point of the existing retaining wall, 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 in the design of Dwelling 9 are acceptable. In addition to these fixed means of addressing the potential privacy impacts, hedging is proposed along the eastern boundary of Dwelling 9 in the form of callistemon viminalis, which will grow to a mature height of 3m. This will assist to an extent, but would not negate the need for fixed screening.

The design of the dwellings and particularly the mechanism to control visual privacy related to dwelling 9, is appropriate. The development is considered satisfactory with regards to privacy.

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.

Applications contemplating future uses of the former mansion (ie a restaurant for instance) will need to have regard to noise impacts at that point.

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.

Stormwater is addressed above under the LEP considerations.

The submitted longitudinal section of the site shows a 10% grade of the first 25% of the driveway and then not more than +/- 2% through the remainder. As such the driveway system will be accessible to people with a disability.

Dwellings 1 and 2 have direct street frontage to Kite Street, with direct pedestrian linkage to the existing footpath within Kite Street. The front paths for dwellings 1 and 2 will have similar grades to the driveway at the front of the site.

The design of the driveway and positioning of garages will mean that all vehicle movements to and from the site will be capable of being in a forward gear.

The plans also demonstrate that an 8.8m medium rigid vehicle is able to enter and exit the site in a forward gear.

The previous design with the three driveways did not allow for a firefighting appliance to enter the site and have sufficient hose length to extinguish a fire in the furthermost corner of the site. The amended design will now allow a firefighting appliance to service all parts of the site in the event of a fire.

The development is satisfactory with regards to circulation and design.

Car Parking

The DCP sets the following Planning Outcomes in regard to Car Parking:

· Parking facilities are provided, designed and located to:

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

- reduce the visual dominance of car parking areas and access ways.

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

The two separate dwellings at the front of the site will accommodate two vehicles off the street based on the provision of double garages, thus complying with the DCP requirement for single dwellings of one space, preferably two.

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 on 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 (two single dwellings and seven dwellings as part of the multi-dwelling housing) 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	136.3
2	187.45	93.73	103.6
3	157.61	78.8	110.4
4	161.06	80.53	108.9
5	161.06	80.53	133.5
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

Table 3: assessment of private open space requirements

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 off 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 accessible from internal living spaces, consistent with the requirements of the DCP, save for Dwellings 6 and 9. 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. With respect to Dwelling 9 the private open space will be accessed via stairs off the elevated alfresco. This arrangement is considered satisfactory as the covered alfresco area directly connects with the indoor living space and provides a usable outdoor space and also a practical transition from the indoor space to the lower outdoor space.

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 1.5m high lapped and capped timber fencing. Perimeter fencing will be 1.8m lapped and capped timber fencing. A condition is attached that the timber used in the construction of the fencing be hardwood rather than a soft wood such as treated pine.

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, access ways 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.

Relevant conditions are attached to ensure that appropriate measures are employed onsite 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 have 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 access 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).

Relevant conditions are attached prior to the release of the Community Title subdivision that address the garbage collection. This arrangement will require the occupants of Dwellings 3‑9 moving their bins to the temporary collection point in the driveway on collection day. Following this, at some point during collection day the waste service will arrive and convey each bin to the truck and return the bin to the collection bay. At the end of the day the occupants of the dwellings will collect their bins and return them to their property until the next collection day.

This is Council’s standard procedure for addressing waste collection for multi dwelling housing developments. Relevant conditions are attached to the consent under the various stages of the consent.

· 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. Relevant conditions are attached 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, save for a small section of gable roof above the alfresco area of Dwelling 6 and a small section of upper wall and gutter of the southern elevation of Dwelling 9.

These non-compliances are considered acceptable based on the following:

· The encroachment outside of the visual bulk envelope relates to vehicle circulation space and visitor parking within the development, resulting in very limited adverse impacts. It is noted that the design could comply with a flatter roof, however the high pitched vaulted alfresco roof has been adopted to comply with solar access requirements to north facing windows.

· The encroachment relating to Dwelling 9 is identified as upper wall and eave. The point of the encroachment relates to the lower rear portion of open space for Dwelling 6. The impacts experienced by the future occupants of Dwelling 6 will not be so unreasonable as to be unacceptable.

The site coverage within all resultant lots will be below the 60% site coverage allowable for single dwellings.

The development is considered satisfactory with regards to the position of proposed boundaries under the community title stage.

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. Conditions are imposed requiring the payment of the requisite monetary contribution at the appropriate time.

NB: the land benefits from a historic equivalent tenement or the whole of one contribution based on Newstead’s original use as a dwelling.

Based on the configuration of the development, the contributions are calculated based on three additional lots under Stage 1 – prior to the issue of a subdivision certificate and six additional three bedroom dwellings under Stage 2 – prior to the issue of a construction certificate. There are no requirements for contributions as part of the Community Title subdivision.

Stage 1 - Three Additional Lots

The payment of $31,511.13 is to be made to Council in accordance with section 7.11 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	@ $3,907.24 x three additional lots	11,721.72
Community and Cultural	@ $1,133.10 x three additional lots	3,399.30
Roads and Traffic Management	@ $5,157.43 x three additional lots	15,472.29
Local Area Facilities	-	-
Plan Preparation and Administration	@ $305.94 x three additional lots	917.82
TOTAL:		$31,511.13

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 (accounting for the credit paid under Stage 1)

The payment of $63,022.26 is to be made to Council in accordance with section 7.11 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	@ $3,907.24 x six add. 3 bed dwellings	23,443.44
Community and Cultural	@ $1,133.10 x six add. 3 bed dwellings	6,798.60
Roads and Traffic Management	@ $5,157.43 x six add. 3 bed dwellings	30,944.58
Local Area Facilities	-	--
Plan Preparation & Administration	@ $305.94 x six add. 3 bed dwellings	1,835.64
TOTAL:		$63,022.26

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 multi dwelling housing. For the proposed development, three equivalent tenements for water and sewer are required to be paid prior to the issue of a Subdivision Certificate for Stage 1 and six equivalent tenements for water and sewer are required to be paid prior to the issued of a Construction Certificate for Stage 2.

Relevant conditions are attached in this regard.

PROVISIONS PRESCRIBED BY THE REGULATIONS s4.15(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 s4.15(1)(b)

Context and Setting

The subject land is described as a unique series of parcels of land, collectively large in size and relatively undeveloped 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 proposal with the most recent amendments results in a development that is now considered congruous with its context and setting.

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 will have an acceptable impact upon the heritage setting.

Visual Impacts

As mentioned above, the amended design, with particular reference to Dwelling 2, will result in a development that has acceptable visual impacts and one that does not unreasonably interrupt important streetscape views of the heritage item on the land. The development is considered acceptable with regards to visual impacts.

Access, Traffic and Parking

Council’s Technical Services staff have not raised objections in relation to the proposed development in terms of access, traffic and parking 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 point is appropriate from a traffic point of view in terms of its width and separation from the nearest intersection (Kite/Hill Streets roundabout).

Council’s Technical Services Division has advised that:

[t]he proposed driveway and gutter bridge location is considered satisfactory. The community title allotment driveway has sufficient width to allow vehicles to pass and turn around inside the site. A right of carriageway will be required to be created to allow access to proposed lots 102 & 103 from the battle-axe driveway in lot 100. The existing railing will be removed at the proposed footpath crossing and the footpath will be required to be replaced with a 1.5m wide concrete footpath for the full frontage of Lots 100, 102 & 103.

A condition requiring the removal of the retaining wall, front and side boundary fences forward of the building line is necessary to provide satisfactory sight distance from vehicles exiting the site to pedestrians using the footpath.

Parking associated with the proposed residential development is acceptable and is in line with Council's parking requirements under Orange Development Control Plan 2004.

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. It is also noted that the amended design with a single driveway arrangement will negate the requirement to remove the immature street tree within Kite Street. The application was referred to Council’s Manager City Presentation for comment (the response was received from the Acting Manager City Presentation).

The Acting Manager City Presentation provided the following comments:

The placement of the suggested driveway will impact on the advanced Elm street tree located on Kite Street. To minimise the impact of the driveway construction, suggestions previously given by the Manager City presentation (previously provided based on the three driveway design) should be undertaken

· Elm Street Trees on the Kite Street frontage to be retained 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.

· During construction of the driveway 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.

The above recommended conditions are attached.

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. Relevant conditions are attached in terms of addressing this issue so as to reduce the likelihood of unacceptable harm upon the subject tree.

The subject land does not comprise any native vegetation. The development will not result in any unacceptable impacts upon any endangered ecological communities, endangered species or habitat.

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. As mentioned above, a condition is imposed to ensure that the beneficiary of the consent has made arrangements to enter into 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 becomes redundant. Relevant conditions are imposed in relation to this matter.

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 s4.15(1)(c)

The subject land is considered suitable for being redeveloped for residential purposes. As mentioned above the land is underutilised and in close proximity to the centre of town, and as such is considered prime land for an appropriate residential development.

In terms of the development's fit within the locality, the foregoing assessment indicates that the development is suitable in the locality, with the amended design now being consistent 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 s4.15(1)(d)

As outlined in detail above, the application has been advertised on four separate occasions, the most recent as a result of the amended design following the previous iteration going before the Planning and Development Committee. The previous submissions are addressed as well as those received during the most recent exhibition period.

The proposed development is defined as "advertised development" under the provisions of the Environmental Planning and Assessment Regulations and Council’s Development Control Plan. The amended application was advertised for the prescribed period of 14 days and at the end of that period two submissions were received during the exhibition period and one submission was received outside of the exhibition period.

Submissions Received During the Fourth Exhibition Period.

Submission 1 - Orange Resident

The submission raises concerns in relation to parking provision and added on-street parking demands, site coverage of the development and the increase in stormwater run-off.

Council Response

Council’s DCP is the applicable document that provides controls around parking and site coverage. As detailed above under the heading “Development Control Plan 2004”, the development complies with both the car parking requirement and site coverage requirements.

In terms of stormwater, Council’s Technical Services Division has attached conditions of consent to ensure that post-development run-off levels do not exceed pre-development levels. It is noted that each dwelling will be provided with a 3,000L rain water tank.

Submission 2 - Resident of 57 Byng Street

The submitter reiterates their previous concerns namely that:

· Insufficient off-street car parking provisions (including accessible spaces) associated with the former mansion (Lot 101).

· Density of dwellings upon Lots 102, 103 and the Community title subdivision.

· Circulation of vehicles within the Community Title subdivision for Lots 3, 4 and 5.

· Access for emergency service vehicles.

· Inadequate landscape area with no allowance for large deciduous tree plantings.

Council Response

In relation to the car parking associated with the now B4 zoned Lot 101 containing the former mansion, an assessment of parking and the complexities arising has been addressed in detail above.

In response to the comment regarding the density of the development; as detailed above under the DCP considerations the development complies with respect to site coverage planning outcomes (this has been determined to be the case under both Stage 2 and Stage 3 of the development).

As detailed above, Council’s Technical Services Division has reviewed the development and advised that it is acceptable in terms of traffic.

In terms of access for emergency service vehicles, a police vehicle and ambulance is able to enter and leave the site in a forward gear. The plans also demonstrate that a medium rigid vehicle can enter and leave the site in a forward gear.

It is noted that the amended design allows a firefighting appliance to service the furthest reaching parts of the site. The likelihood and frequency of a firefighting appliance entering the site would be low and infrequent such that if a reverse egress was required this could be managed on the odd occasion that it may occur without adversely impacting upon Kite Street.

In response to the concern regarding insufficient garden area, Council’s Heritage advisor has recommended that a deciduous tree (capital pear or similar) be planted in the rear yards of each dwelling. A condition is attached in this regard.

Submission 3 - Resident of 21 Lawson Crescent

The submitter indicates that the amended design “is an immense improvement” on the previous design, particularly how the dwellings address Kite Street.

The submitter does however suggest that the amended design continues to represent an over‑development and raises two matters in particular that remain of concern: namely the siting and composition of Dwelling 2 and its relationship with the former Newstead mansion and the substitution of the foundation brickwork from a dark blue face brick to rendered and painted brick work.

Council Response

In relation to the two specific matters raised in the submission, Council’s Heritage Advisor has reviewed the amended design and advised the following directly in relation to the above listed concerns of the submitter.

The setbacks are acceptable in terms of the impacts on the adjoining item and the Conservation Area.

The rendered base in place of the Grey face brick is acceptable although not recommended as it will devalue the properties in the medium term and require extra maintenance.

While the property value and maintenance schedule are appreciated, the comments do not relate to heritage assessment. The assessment of the development in the first part of the sentence from Council’s Heritage Advisor indicates that the development is acceptable.

Earlier Submissions – based on the previous designs

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 (based on the amended design).

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 earlier 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 three earlier submission periods.

Heritage Matters

Council staff generally agree with the above matters raised during the first three exhibition periods; and this was the basis for the refusal recommendation of the previous report that went before Council. Since that report went before Council, the application has been amended to address the above concerns.

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.

It should also be noted that in relation to the pitch of the roofs (at the proposed 27 degrees) Council’s Heritage Advisor notes that

the heights are acceptable and the roofs consistent with the context.

Traffic and Parking Matters

In terms of the traffic safety concerns, Council’s Technical Services Division has advised that the amended driveway and gutter bridge location is 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 exiting the garages, along with a medium rigid vehicle negotiating the site, and have advised that the development is acceptable.

The amended design addresses the issue identified previously in relation to the inability for a firefighting appliance to enter the site.

In terms of car parking, Councils DCP requires visitor parking at the rate of 0.2 spaces per dwelling within a multi dwelling housing development. Seven (7) dwellings equate to 1.4 spaces attributed to visitor parking. The development provides 2 spaces, and is thus compliant with the subject provision. It is noted that the DCP does not require visitor spaces for single dwellings (ie Dwellings 1 and 2). In any event, the development still complies in terms of visitor parking if all nine dwellings are accounted for.

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.

The recommendation for an approval of the development proposed 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, Council would be required to assess the suitability of the proposed parking arrangements.

A detailed assessment of the environmental impacts of any onsite parking deficiencies would also be required. The subject site is located within Council’s Car Parking Contributions Plan catchment area. The appropriateness of a monetary contribution for any shortfall in parking would be determined at that time.

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 and this proposal seeks to use some of the land previously used for recreation and parking in association with that use for residential development; 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, although this was based on a previous design, it is confirmed that the amended design complies with the DCP in respect to site coverage, visual bulk, open space and the like.

PUBLIC INTEREST s4.15(1)(e)

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. A section 4.15 assessment of the development indicates that the development is acceptable in this instance. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

The amended design with a single driveway and garages orientated internally is a marked improvement upon the design that previously went before Council.

COMMENTS

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

Attachments

1 Notice of Approval, D18/39449 ⇨

2 Plans, D18/38096 ⇨

3 Submissions, D18/31996 ⇨

Planning and Development Committee 14 August 2018

2.8 Development Application DA 66/2018(1) - 136 Aerodrome Road

RECORD NUMBER: 2018/1677

AUTHOR: Summer Commins, Senior Planner

EXECUTIVE Summary

Application lodged	27 February 2018
Applicant/s	Fuel Suite Pty Ltd
Owner/s	Orange City Council
Land description	Lot 200 DP 1195298 - 136 Aerodrome Road, Huntley
Proposed land use	Airport (bulk fuel tank and refuelling facility)
Value of proposed development	$250,000

Council’s consent is sought for a proposed aviation fuel storage and refuelling facility at Orange Airport, located at Lot 200 DP 1195298 – 136 Aerodrome Road, Orange (refer Figure 1). The facility will comprise an aboveground and self-bunded 55,000L Jet A1 fuel storage tank and associated infrastructure.

The proposal has been assessed as ‘potentially hazardous development’ pursuant to State Environmental Planning Policy No. 33 – Hazardous and Offensive Development (SEPP 33). A Preliminary Hazard Analysis (PHA) was submitted in support of the application. The PHA concludes the risks associated with the proposed development are within an acceptable limit for this particular site.

The proposal comprises advertised development pursuant to SEPP 33. At the completion of the public notice and exhibition period, no submissions had been received in relation to the application. One (1) late submission was received, which expressed concerns in relation to the impact of the development on localised soil and water quality.

The proposal is legitimately ancillary to Orange Airport. The proposed location for the refuelling facility will not adversely impact on current and future airport operations. The development will provide ancillary infrastructure that may improve the function and operation of the airport site.

The proposal is consistent with the planning provisions that apply to the subject land and particular land use. Impacts of the development are considered to be within reasonable limit, subject to conditions. Approval of the application is recommended.

Figure 1: locality plan

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

DIRECTOR’S COMMENT

The key issues around this Development Application centre on the safety of storage of a significant amount of aviation fuel at Orange Airport. The assessment has conducted the requisite studies to provide comfort to Council with respect to safety. The development is permissible as an ancillary activity to airport operations.

FINANCIAL IMPLICATIONS

Nil

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 66/2018(1) for Air Transport Facility (bulk fuel tank and refuelling facility) at Lot 200 DP 1195298 - 136 Aerodrome Road, Huntley pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

The proposal involves an aviation fuel storage and refuelling facility at Orange Airport. The development will be located within Lease Area Q (refer aerial photos below), located in the building group of aircraft hangars to the west of the main terminal building.

Figure 2: Orange Airport and location of Lease Area Q

Figure 3: Lease Area Q

The proposed fuel facility will consist of:

· aboveground and self-bunded 55,000L Jet A1 fuel storage tank in the northern portion of the lease area

· tank bay with transfer pump and filter for bulk delivery

· fuel pump and filtration system for refuelling

· concrete slab with bunding around unloading area

· fuel dispenser on concrete slab

· aboveground pipework on supports between fuel tank and dispenser

The site facility layout within the lease area is depicted below.

Figure 4: site facility layout

Jet fuel will be transported to the airport via approved Petroleum Products Road Tankers, with 1-2 deliveries expected per week. Access to the fuel storage and refuelling facility will be via existing internal airport roads.

HISTORY/BACKGROUND

Lease area Q contains an existing 55,000L underground AVGAS fuel tank and dispenser, approved pursuant to DA 234/1993 (20 January 1994) (as shown on the above aerial image and proposed site facility layout). The proponent advises the existing approved fuel facility is in use, and will be retained in conjunction with the proposed Jet A1 fuel facility.

The fuel tank and dispenser approved under DA 234/1993 require internal tank cleaning and integrity inspection every three years, pursuant to the approved Maintenance Schedule submitted in support of the application. Council does not have any record that tank cleaning and integrity inspection have ever been undertaken. In recent years, Council has requested the lessee to undertake the required maintenance activities, to no avail. It is the lessee’s submission that integrity testing is not required.

Council has sought advice from Envirowest Consulting in order to clarify this matter. They have advised that environmental regulations only require tank cleaning and integrity inspection where evidence of product loss is detected; furthermore, integrity testing is likely a recommendation of the tank manufacturer.

In order to resolve this matter, it is the position of Council’s Airport Manager that Council continue to pursue the lessee to undertake the required maintenance activities on the existing fuel tank. This matter will be handled under separate cover, independent of the proposed DA.

MATTERS FOR CONSIDERATION

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

Having regard to the relevant provisions and based on an inspection of the subject property, it is considered that the proposed development is not likely to significantly affect a threatened species. In this instance, the subject property has no biodiversity or habitat value. A Biodiversity Development Assessment Report is not required in this instance.

Section 4.15

Section 4.15 of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The particular aims of Orange LEP 2011 relevant to the proposal 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,

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

The application is considered to be consistent with the foregoing objectives, as outlined in this report.

Clause 1.6 - Consent Authority

Clause 1.6 is applicable and states:

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

Clause 1.7 - Mapping

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

Land Zoning Map:	Land zoned SP2 Infrastructure
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:	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:	Restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies
Flood Planning Map	Not a flood planning area

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

Clause 1.9A is applicable and states in part:

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

(2) This clause does not apply:

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

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

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

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

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

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

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

In consideration of this clause, Council staff are not aware that the land is affected by the restrictions listed in Subclause (2) above. The land is affected by easements for access (refer Figure 5 below). The proposed fuel storage and refuelling facility is sited clear of, and will have nil impact on the operation of the easements.

Figure 5: easements in the vicinity of the proposed development

Part 2 - Permitted or Prohibited Development

Clause 2.1 - Land Use Zones

The subject site is located within the SP2 Infrastructure zone. The proposed development is defined as an ‘airport.’ Pursuant to the Dictionary:

Airport means ‘a place that is used for the land, taking off, parking, maintenance or repair of aeroplanes, and includes associated buildings, installations, facilities and movement areas and any heliport that is part of the airport.’

The proposed fuel tank and refuelling facility will be located on the site of Orange Airport. The proposal is legitimately ancillary to the existing and approved airport.

Clause 2.3 - Zone Objectives and Land Use Table

The objectives for land zoned SP2 are as follows:

· To provide for infrastructure and related uses.

· To prevent development that is not compatible with or that may detract from the provision of infrastructure.

The proposed development is considered to be consistent with the foregoing objectives.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

The Part 4 standards are not applicable to the proposal.

Part 5 - Miscellaneous Provisions

The provisions of Part 5 are not applicable to the proposal.

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

Clause 7.1 applies. This clause states in part:

(3) Before granting development consent for earthworks, the consent authority must consider the following matters:

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

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

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

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

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

(f) The likelihood of disturbing relics

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

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

In consideration of this clause, the proposal is suitable. The proposed development will necessitate minor earthworks for footings and concrete slab. The works will have nil impact on drainage patterns, soil stability, neighbourhood amenity or sensitive areas.

7.6 - Groundwater Vulnerability

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

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

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

In consideration of this clause, a condition is recommended requiring the facility comply with Australian Standard AS1940-2004 The storage and handling of flammable and combustible liquids. Council’s Environmental Health and Building Inspector advises that compliance with the AS will render fuel spill unlikely; and the suitable containment of any spill without causing significant environmental impact.

7.7 - Drinking Water Catchments

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

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

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

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

In consideration of this clause, all stormwater from the refuelling area will be collected and piped to a stormwater treatment system. The design and construction of the treatment system shall ensure stormwater leaving the site will have no observable hydrocarbons present in the discharge. Council’s Development Engineer has imposed conditions of consent to this effect.

The assessment under Clause 7.6 above also applies in consideration of potential impacts on the drinking water catchment.

7.9 - Airspace Operations

The subject land comprises the site of Orange Airport. Clause 7.9 is applicable and states in part:

(1) The objectives of this clause are as follows:

(b) to protect the community from undue risk from that operation.

(3) The consent authority may grant development consent for the development if the relevant Commonwealth body advises that:

(a) the development will penetrate the Limitation or Operations Surface but it has no objection to its construction, or

(b) the development will not penetrate the Limitation or Operations Surface.

In consideration of this clause, Council’s Airport Manager has advised that the proposed fuel tank will not penetrate the Limitation or Operations Surface. Furthermore, the development will not encroach on the taxiway and will have nil impact on the operation of the taxiway.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 33 - Hazardous and Offensive Development

The proposal has been assessed as a ‘potentially hazardous development’ pursuant to SEPP 33 - Hazardous and Offensive Development. Part 3 of the SEPP applies, and provides as follows:

12 Preparation of preliminary hazard analysis

A person who proposes to make a development application to carry out development for the purposes of a potentially hazardous industry must prepare (or cause to be prepared) a preliminary hazard analysis in accordance with the current circulars or guidelines published by the Department of Planning and submit the analysis with the development application.

13 Matters for consideration by consent authorities

In determining an application to carry out development to which this Part applies, the consent authority must consider (in addition to any other matters specified in the Act or in an environmental planning instrument applying to the development):

(a) current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development, and

(b) whether any public authority should be consulted concerning any environmental and land use safety requirements with which the development should comply, and

(c) in the case of development for the purpose of a potentially hazardous industry—a preliminary hazard analysis prepared by or on behalf of the applicant, and

(d) any feasible alternatives to the carrying out of the development and the reasons for choosing the development the subject of the application (including any feasible alternatives for the location of the development and the reasons for choosing the location the subject of the application), and

(e) any likely future use of the land surrounding the development.

14 Advertising of applications

Pursuant to … the Act, the provisions … apply to and in respect of development to which this Part applies in the same way as those provisions apply to and in respect of designated development.

In consideration of the relevant clauses of the SEPP, the following comments are provided:

· The proposed development exceeds the risk screening threshold limits for quantity stored and boundary proximity, pursuant to Hazardous and Offensive Development Application Guidelines - Applying SEPP 33 (SEPP 33 Guidelines) (Department of Planning 2011). The risk screening method requires consideration of all hazardous materials within the proposed development and other hazardous materials on the site in proximity to the proposed development:

- The proposal involves the storage of 55kL of Jet A1 fuel (3 PG III) within 2m of the lease boundary.

- An existing fuel storage facility containing 55kL of Avgas fuel (3 PH II) is located within Leave Area Q, in proximity to the proposed fuel facility, and with a zero lease boundary setback.

Consequently, the proposal comprises a potentially hazardous development and SEPP 33 applies to the development.

· The proposal is not contrary to listed circulars or guidelines cited in the SEPP 33 Guidelines, pursuant to Clause 13(a). Where relevant, conditions are included on the attached Notice of Approval to reflect the requirements of the applicable circulars and guidelines.

· Consultation with public authorities (Department of Planning and Environment, SafeWork NSW or Roads and Maritime Services) was not undertaken based upon the location of the proposed development and circumstances of the proposal (pursuant to Clause 13(b)). Conditions of consent are recommended to address the particular requirements of the Protection of the Environment Operations Act 1997 and Work Health and Safety Regulation 2011.

· A PHA was submitted in support of the proposal (FuelSuite Pty Ltd May 2018), pursuant to Clauses 12 and 13(c), and prepared in accordance with the SEPP 33 Guideline. The PHA adopted a Level l (Qualitative) multi-level risk assessment, including site risks and control measures. The PHA concludes ‘…the design is acceptable for this site.’

· Conditions are included on the attached Notice of Approval, consistent with Hazardous Industry Advisory Paper No. 12 Hazards-Related Conditions of Consent (NSW Department of Planning 2011) for Low Hazard Potentially Hazardous Development.

· The proposed refuelling facility will be located on the site of Orange Airport. The proposal is legitimately ancillary to the existing and approved airport. The proposal may be located elsewhere on the airport site, as a feasible alternative (Clause 13(d). Notwithstanding, the proposed location for the refuelling facility will not adversely impact on current and future airport operations (Clause 13(e)).

· The proposed development was advertised for the prescribed period, pursuant to Clause 14. At the completion of the public notice and exhibition period, no submissions had been received in relation to the application. One (1) late submission was received, which expressed concerns in relation to the impact of the development on localised soil and water quality. Subject to compliance with conditions on the attached Notice of Approval, the development will not adversely impact on the natural environment.

State Environmental Planning Policy 55 - Remediation of Land

SEPP 55 is applicable and states in part:

7 Contamination and remediation to be considered in determining development application

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

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

In consideration of this clause, the subject land is suitable for the proposed development. Other similar fuel facilities are located nearby to the proposed tank and refuelling facility. The proposal comprises an intensification of the existing use of the land for related air transport infrastructure.

As outlined previously, Council is separately pursuing the lessee/proponent in relation to tank cleaning and integrity inspection associated with the existing fuel facility approved under DA 234/1994.

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

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

DESIGNATED DEVELOPMENT

The proposal comprises ‘petroleum works’ pursuant to Environmental Planning and Assessment Regulation 2000, Part 1, Schedule 3 What is designated development? The proposed stored petroleum products of 55 tonnes is substantially below the threshold of 2,000 tonnes nominated in the Regulations. On this basis, the proposal is not designated development.

Notwithstanding, the subject petroleum works are exempted from designated development, as they are ancillary to other development (ie. Orange Airport) and not proposed to be carried out independently of that development (Clause 37A).

INTEGRATED DEVELOPMENT

The proposed development is not integrated development pursuant to Section 4.46 of the Environmental Planning and Assessment Act 1979.

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

Development Control Plan 2004

DCP2004-0.4-12 Interim Planning Outcomes - Airport

· Proposals must demonstrate that adequate utility services are available to provide for the development.

Existing utility services on the airport site are suitable for the proposed development.

· Proposals must not compromise the current or future operations of the Airport, including establishment or expansion of public facilities such as the terminal building and car parking.

The proposed development will have nil impact on current or future airport operations. The proposed fuel facility will be located nearby to other similar facilities and aircraft hangars and will be removed from public areas. Council’s Airport Manager advised that the development will not encroach on the taxiway and will have nil impact on the operation of the taxiway.

In order that the development will not adversely impact on airport operations, conditions are recommended requiring:

- the proponent enter into a lease agreement with Council for the proposed facility on Council land

- all services for the proposed facility be wholly contained within the lease area

- separate approval be obtained for access and construction work on airside operating areas.

· Water runoff must be managed and treated to pre-development quality or better and pre-development quantities or less.

A condition is recommended requiring the facility comply with Australian Standard AS1940‑2004 The storage and handling of flammable and combustible liquids. Council’s Environmental Health and Building Inspector advises that compliance with the AS will render fuel spill unlikely; and the suitable containment of any spill without causing significant environmental impact.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

Council’s Environmental Health and Building Surveyor advises:

The proposed refuelling facility will be located far enough away from the existing adjacent building to not require any fire separation. Fire extinguishers and a hydrant are shown on the plan.

Buildings to be Upgraded (clause 94)

The proposal will not necessitate the upgrade of any building.

BASIX Commitments (clause 97A)

Not applicable.

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

Airport Operations

The proposal will have nil impact on current and future airport operations. Council’s Airport Manager raised no objection to the proposal in terms of siting or design.

Context and Setting

The development will be sited nearby to other similar fuel facilities and aircraft hangars. This part of the site is removed from public access areas.

Visual Impacts

The proposed fuel facility is considered to be an accepted visual element for the airport site generally, and will complement other similar infrastructure and improvements in the vicinity.

Hazards and Environmental Impacts

Traffic Matters

Existing access arrangements to the airport site are suitable for the proposal. The capacity of the road network is sufficient to accommodate fuel tanker deliveries. Service vehicle travel paths will utilise existing internal roads, and not conflict with nearby improvements or the taxiway. A condition is recommended requiring approval be obtained for access and construction work on airside operating areas.

Cumulative Impacts

The Orange Airport site contains other existing and proposed bulk fuel storage facilities, as depicted below.

Figure 5: bulk fuel storage at Orange Airport

It is considered that the cumulative impacts of the proposal are addressed via the assessment regime contained in SEPP 33. The proposed development exceeds the risk screening thresholds for quantity stored and (lease) boundary proximity pursuant to the SEPP 33 Guidelines. Consequently, Level 1 preliminary hazard analysis was undertaken for the proposal; and prescribed Low Hazard conditions of consent are included on the attached notice of approval.

By virtue that the SEPP 33 risk screening thresholds relate to lease boundaries, rather than the boundaries of the airport site, there is greater propensity for screening thresholds to be exceeded. Consequently, the assessment rigours for the proposal are more exhaustive, as are conditions of development consent. Other fuel facilities on the site were subject to the same assessment process OR did not exceed SEPP 33 thresholds.

The proposal is legitimately ancillary to the existing and approved airport. The proposed location for the refuelling facility will not adversely impact on current and future airport operations. The development will provide ancillary infrastructure that may improve the function and operation of the airport site. The cumulative impacts of the proposal are considered to be within reasonable limit.

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

The proposed development is considered suitable for the subject land due to the following:

· the proposal is permitted on the subject land zoning

· the development is ancillary to the existing airport use of the site

· utility services are available and suitable

· existing site access and internal vehicles areas are suitable

· the water catchment will not be impacted due to mitigation measures.

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

The proposed development is defined as advertised development pursuant to SEPP 33 (Clause 14). Public notice and exhibition of the application was undertaken consistent with the provisions prescribed in the SEPP 33 Guidelines. At the completion of the exhibition period, no submissions had been received in relation to the application.

One (1) late submission was received, which expressed concerns in relation to the impact of the development on localised soil and water quality. Subject to compliance with conditions of Council and the NSW Department of Planning on the attached Notice of Approval, the development will not adversely impact on the natural environment.

PUBLIC INTEREST s4.15(1)(e)

The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines etc that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

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

Attachments

1 Notice of Approval, D18/39178 ⇨

2 Plans, D18/34774 ⇨

3 Submission, D18/34957 ⇨

Planning and Development Committee 14 August 2018

2.9 Development Application DA 77/2018(1) - 136 Aerodrome Road

RECORD NUMBER: 2018/1678

AUTHOR: Summer Commins, Senior Planner

EXECUTIVE Summary

Application lodged	7 March 2018
Applicant/s	Aero Refuellers
Owner/s	Orange City Council
Land description	Lot 200 DP 1195298 - 136 Aerodrome Road, Huntley
Proposed land use	Airport (bulk fuel tanks (2) and refuelling facility))
Value of proposed development	$450,000

Council’s consent is sought for a proposed aviation fuel storage and refuelling facility at Orange Airport, located at Lot 200 DP 1195298 – 136 Aerodrome Road, Huntley (refer Figure 1). The facility will comprise an aboveground and self-bunded 68,000L Jet-A1 fuel storage tank; 55,000L AVGAS fuel storage tank; and associated infrastructure.

The proposal has been assessed as ‘potentially hazardous development’ pursuant to State Environmental Planning Policy No. 33 – Hazardous and Offensive Development (SEPP 33). A Preliminary Hazard Analysis (PHA) was submitted in support of the application. The PHA concludes the risks associated with the proposed development are acceptable based on all current definitions of the tolerability of risk.

The proposal comprises advertised development pursuant to SEPP 33. At the completion of the public notice and exhibition period, no submissions had been received in relation to the application.

The proposal is consistent with the planning provisions that apply to the subject land and particular land use. Impacts of the development are considered to be within reasonable limit, subject to mitigation conditions. Approval of the application is recommended.

Figure 1: locality plan

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

DIRECTOR’S COMMENT

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 77/2018(1) for Airport (bulk fuel tanks (2) and refuelling facility) at Lot 200 DP 1195298 - 136 Aerodrome Road, Huntley pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

The proposal involves an aviation fuel storage and refuelling facility at Orange Airport. The refuelling facility will be located at the north-west of the building group on the airport site (see location at Figure 2).

Figure 2: siting of proposed fuel storage and refuelling facility

The facility will consist of:

· a concrete paved area, 35m x 27m enclosed by chain wire fencing

· aboveground and self-bunded 68,000L Jet-A1 fuel storage tank, and 55,000L AVGAS fuel storage tank in the centre of the compound

· bunded tanker delivery area and remote fill point to the north of the compound

· ‘self-serve’ fuel dispensing pumps within a canopied area to the south of the compound

· underground pipework consisting of transfer lines between tanker delivery area and storage tanks; and storage tanks and dispensers

· associated amenities including eye wash and shower, fuels testing lab and fire protection.

The site facility layout is depicted below (refer Figure 3).

Figure 3: site facility layout

Access to the fuel storage and refuelling facility will be via existing internal airport roads. The fuel facility will be un-manned, and available for use on a continual basis.

MATTERS FOR CONSIDERATION

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

Having regard to the relevant provisions and based on an inspection of the subject property, it is considered that the proposed development is not likely to significantly affect a threatened species. In this instance, the subject property has no biodiversity or habitat value. A Biodiversity Development Assessment Report is not required in this instance.

Section 4.15

Section 4.15 of the Environmental Planning and Assessment Act 1979 requires Council to consider various matters, of which those pertaining to the application are listed below.

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The particular aims of Orange LEP 2011 relevant to the proposal 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,

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

The application is considered to be consistent with the foregoing objectives, as outlined in this report.

Clause 1.6 - Consent Authority

Clause 1.6 is applicable and states:

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

Clause 1.7 – Mapping

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

Land Zoning Map:	Land zoned SP2 Infrastructure
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:	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:	Restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies
Flood Planning Map	Not a flood planning area

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

Clause 1.9A is applicable and states in part:

(2) This clause does not apply:

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

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

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

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

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

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

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

In consideration of this clause, Council staff are not aware that the land is affected by the restrictions listed in Subclause (2) above. The land is affected by easements for access (refer Figure 4 below). The proposed fuel storage and refuelling facility is sited clear of, and will have nil impact on the operation of the easements.

Figure 4: easements in the vicinity of the proposed development

Part 2 - Permitted or Prohibited Development

Clause 2.1 - Land Use Zones

The subject site is located within the SP2 Infrastructure zone. The proposed development is defined as an ‘airport.’ Pursuant to the Dictionary:

The proposed fuel tanks and refuelling facility will be located on the site of Orange Airport. The proposal is legitimately ancillary to the existing and approved airport.

Clause 2.3 - Zone Objectives and Land Use Table

The objectives for land zoned SP2 Infrastructure are as follows:

· to provide for infrastructure and related uses

· to prevent development that is not compatible with or that may detract from the provision of infrastructure.

The proposed development is considered to be consistent with the foregoing objectives.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

The Part 4 standards are not applicable to the proposal.

Part 5 - Miscellaneous Provisions

The provisions of Part 5 are not applicable to the proposal.

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

Clause 7.1 applies. This clause states in part:

(3) Before granting development consent for earthworks, the consent authority must consider the following matters:

(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).

7.6 - Groundwater Vulnerability

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

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

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

In consideration of this clause, a condition is recommended requiring the facility comply with Australian Standard AS1940-2004 - The storage and handling of flammable and combustible liquids. Council’s Environmental Health and Building Inspector advises that compliance with the AS will render fuel spill unlikely; and the suitable containment of any spill without causing significant environmental impact.

7.7 - Drinking Water Catchments

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

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

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

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

The assessment under Clause 7.6 above also applies in consideration of potential impacts on the drinking water catchment.

7.9 - Airspace Operations

The subject land comprises the site of Orange Airport. Clause 7.9 is applicable and states in part:

(1) The objectives of this clause are as follows:

(b) to protect the community from undue risk from that operation.

(3) The consent authority may grant development consent for the development if the relevant Commonwealth body advises that:

(a) the development will penetrate the Limitation or Operations Surface but it has no objection to its construction, or

(b) the development will not penetrate the Limitation or Operations Surface.

In consideration of this clause, Council’s Development Engineer advises:

The proposed refuelling facility location is subject to final positioning subject to clearances from runways and clear of the OLS.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 33 - Hazardous and Offensive Development

The proposal has been assessed as a ‘potentially hazardous development’ pursuant to SEPP 33 - Hazardous and Offensive Development. Part 3 of the SEPP applies, and provides as follows:

12 Preparation of preliminary hazard analysis

13 Matters for consideration by consent authorities

(a) current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development, and

(b) whether any public authority should be consulted concerning any environmental and land use safety requirements with which the development should comply, and

(c) in the case of development for the purpose of a potentially hazardous industry—a preliminary hazard analysis prepared by or on behalf of the applicant, and

(e) any likely future use of the land surrounding the development.

14 Advertising of applications

Pursuant to … the Act, the provisions … apply to and in respect of development to which this Part applies in the same way as those provisions apply to and in respect of designated development.

In consideration of the relevant clauses of the SEPP, the following comments are provided:

· The proposed development exceeds the risk screening threshold limits for quantity stored and boundary proximity, pursuant to Hazardous and Offensive Development Application Guidelines - Applying SEPP 33 (SEPP 33 Guidelines) (Department of Planning 2011). The fuels are classified as Class 3 Packing Group II fuels. A total quantity of 90 tonnes will be stored and handled within 6m of the facility boundary. Consequently the proposal comprises a potentially hazardous development and SEPP 33 applies to the development.

· A PHA was submitted in support of the proposal (JBS&G Australia Pty Ltd April 2018), pursuant to Clauses 12 and 13(c), and prepared in accordance with the SEPP 33 Guideline. The PHA adopted a Level 2 (Partially Quantitative) multi-level risk assessment, which incorporates hazard analysis, consequence analysis and frequency analysis. The PHA concludes ‘the risks associated with the proposed development of the refuelling facility within the Orange Airport are acceptable based on all current definitions of the tolerability of risk. Specifically, the proposed operation of the facility is well within the criteria for risk of fatality appropriate to the surrounding area.’

· The PHA recommends the following to ensure the level of potential hazard associated with the development is managed at acceptable levels:

1. Construction and operation to all relevant standards and guidelines including:

- AS1940 ‘The storage and handling of flammable and combustible liquids’

- AIP CP26 ‘Design and operation of low pressure liquid hydrocarbon pipelines,’ and

- AIP 650 ‘Welded steel tanks for oil storage.

2. Preparation of a Hazard and Operability Study prior to construction.

Conditions are included on the attached Notice to reflect the recommendations of the PHA. Additional conditions are also included, consistent with Hazardous Industry Advisory Paper No. 12 Hazards-Related Conditions of Consent (NSW Department of Planning 2011) for Medium Hazard Potentially Hazardous Development.

· The proposed refuelling facility will be located on the site of Orange Airport. The proposal is legitimately ancillary to the existing and approved air transport facility. The proposal may be located elsewhere on the airport site, as a feasible alternative (Clause 13(d). Notwithstanding, the proposed location for the refuelling facility will not adversely impact on current and future airport operations (Clause 13(e). A condition is recommended requiring the fuel facility location, refuelling apron, taxiway and access road configuration to accord with the requirements of Civil Aviation Safety Authority (CASA), and clear of any runway obstacle limitation surface.

Based on the foregoing assessment, the proposal development satisfies the requirements of SEPP 33.

State Environmental Planning Policy 55 - Remediation of Land

SEPP 55 is applicable and states in part:

7 Contamination and remediation to be considered in determining development application

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

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

PROVISIONS OF ANY DRAFT ENVIRONMENTAL PLANNING INSTRUMENT THAT HAS BEEN PLACED ON EXHIBITION 4.15(1)(a)(ii)

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

DESIGNATED DEVELOPMENT

The proposal comprises ‘petroleum works’ pursuant to Environmental Planning and Assessment Regulation 2000, Part 1, Schedule 3 What is designated development? The proposed sum of stored petroleum products of 123kL (equivalent to approximately 90 tonnes) is substantially below the threshold nominated in the Regulations. On this basis, the proposal is not designated development.

Furthermore, the subject petroleum works are exempted from designated development, as they are ancillary to other development (ie. Orange Airport) and not proposed to be carried out independently of that development (Clause 37A).

INTEGRATED DEVELOPMENT

The proposed development is not integrated development pursuant to Section 4.46 of the Environmental Planning and Assessment Act 1979.

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

Development Control Plan 2004

DCP2004-0.4-12 Interim Planning Outcomes - Airport

· Proposals must demonstrate that adequate utility services are available to provide for the development.

Existing utility services on the airport site are suitable for the proposed development.

· Proposals must not compromise the current or future operations of the Airport, including establishment or expansion of public facilities such as the terminal building and car parking.

A condition is recommended requiring the fuel facility location, refuelling apron, taxiway and access road configuration to accord with the requirements of CASA, and be sited clear of any runway obstacle limitation surface.

· Water run off must be managed and treated to predevelopment quality or better and pre development quantities or less.

A condition is recommended requiring the facility comply with Australian Standard AS1940‑2004 - The storage and handling of flammable and combustible liquids. Council’s Environmental Health and Building Inspector advises that compliance with the AS will render fuel spill unlikely; and the suitable containment of any spill without causing significant environmental impact.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

Council’s Environmental Health and Building Surveyor advises:

The proposed refuelling facility will be located far enough away from the existing adjacent building to not require any fire separation. A fire hose reel with foam pickup is shown on the plans.

Buildings to be Upgraded (clause 94)

The proposal will not necessitate the upgrade of any building.

BASIX Commitments (clause 97A)

Not applicable.

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

Airport Operations

The proposal will not adversely impact on current and future airport operations.

Context and Setting

The development will be sited nearby to other similar fuel facilities and aircraft hangers. This part of the site is removed from public access areas and runway areas.

Visual Impacts

The proposed fuel facility is considered to be an accepted visual element for the airport site generally, and will complement other similar infrastructure and improvements in the vicinity.

Hazards Impacts

Hazards associated with the development include major mechanical failure or leak; pipe failure; spillage of petroleum during transfer; road tanker drive-away incident; and leak at dispensing pumps. The submitted PHA demonstrates potential hazards associated with the development may be managed at acceptable levels, subject to compliance with mitigation conditions.

Traffic Matters

Cumulative Impacts

The Orange Airport site contains other existing and proposed bulk fuel storage facilities, as depicted below.

Figure 5: bulk fuel storage at Orange Airport

It is considered that the cumulative impacts of the proposal are addressed via the assessment regime contained in SEPP 33. The proposed development exceeds the risk screening thresholds for quantity stored and (lease) boundary proximity pursuant to the SEPP 33 Guidelines. Consequently, Level 2 preliminary hazard analysis was undertaken for the proposal; and prescribed Medium Hazard conditions of consent are included on the attached notice of approval.

By virtue that the SEPP 33 risk screening thresholds relate to (proposed) lease boundaries, rather than the boundaries of the airport site, there is greater propensity for screening thresholds to be exceeded. Consequently, the assessment rigours for the proposal are more exhaustive, as are conditions of development consent. Other fuel facilities on the site were subject to the same assessment process OR did not exceed SEPP 33 thresholds.

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

The proposed development is considered suitable for the subject land due to the following:

· the proposal is permitted on the subject land zoning

· the development is ancillary to the existing airport use of the site

· utility services are available and suitable

· existing site access and internal vehicles areas are suitable in their current form

· the water catchment will not be impacted due to mitigation measures.

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

PUBLIC INTEREST s4.15(1)(e)

The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines etc. that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

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

Attachments

1 Notice of Approval, D18/39211 ⇨

2 Plans, D18/34690 ⇨

[1] Negotiations between the applicant, Council staff and Council’s Heritage advisor has had the effect of causing some changes to the way in which the application to modify the consent was first made to Council. The above list of modifications describes what is proposed following those negotiations.

Reference:	DA 412/2017(2)	Determination Date	18 July 2018
PR Number	PR27051
Applicant/s:	Mr PJ and Mrs JB Plasto
Owner/s:	Mr PJ and Mrs JB Plasto
Location:	Lot 101 DP 1207360 – 53 Silverdown Way, Orange
Proposal:	Modification of development consent - dwelling house, and bed and breakfast accommodation. The modified proposal will alter the proposal from a part two storey building to a single storey building to be constructed in stages. The ground floor component has been slightly altered so that the bedroom previously shown in the upper floor is now relocated to the ground floor.
Value:	$580,000 (being the same value as the original development)

Reference:	DA 56/2018(2)	Determination Date	19 July 2018
PR Number	PR22400
Applicant/s:	Landorange Partnership
Owner/s:	Mr BJ Hutchinson
Location:	Lot 44 DP 1116123 – 5 William Maker Drive, Orange
Proposal:	Modification of development consent - subdivision (16 lot residential)(2 stage). The modified proposal will alter the staging so that more lots will be created in Stage 1 and less lots in Stage 2. The overall lot yield and subdivision layout will not change.
Value:	$0 (being the same value as the original development)

Reference:	DA 125/2018(1)	Determination Date	27 June 2018
PR Number	PR27961
Applicant/s:	Mustac Enterprises Pty Limited
Owner/s:	Mustac Enterprises Pty Limited
Location:	Lot 223 DP 1238394 – 19 Stevenson Way, Orange
Proposal:	Dual occupancy and subdivision (two lot residential)
Value:	$460,000

Reference:	DA 130/2018(1)	Determination Date	2 July 2018
PR Number	PR6405
Applicant/s:	Hi Tech Austwide Pty Limited
Owner/s:	Hi Tech Austwide Pty Limited
Location:	Lot 144 DP 252687 – 67 Kurim Avenue, Orange
Proposal:	Subdivision (two lot subdivision) and dwelling houses (two)
Value:	$336,360

Reference:	DA 132/2018(1)	Determination Date	9 July 2018
PR Number	PR7466
Applicant/s:	Mr PG and Mrs PL McDonell
Owner/s:	Mrs PL McDonell
Location:	Lot 1 DP 150197 – 107 March Street, Orange
Proposal:	Dwelling alterations and additions, and demolition (garage and tree removal)
Value:	$475,000

Reference:	DA 139/2018(1)	Determination Date	5 July 2018
PR Number	PR14007
Applicant/s:	Mr GE Hannelly (on behalf of Orange CYMS Cricket Club)
Owner/s:	The Trustees of the Roman Catholic Church for the Diocese of Bathurst
Location:	Lot 16 DP 9756 – Anson Street, Orange
Proposal:	Recreation facility (outdoor)
Value:	$275,000

Reference:	DA 161/2018(1)	Determination Date	16 July 2018
PR Number	PR27944
Applicant/s:	Mr IY Zhang
Owner/s:	Zhang Building and Development Pty Ltd
Location:	Lot 206 DP 1238394 -25 William Maker Drive, Orange
Proposal:	Dual occupancy and subdivision (two lot residential)
Value:	$300,000

Reference:	DA 162/2018(1)	Determination Date	16 July 2018
PR Number	PR27943
Applicant/s:	Mr IY Zhang
Owner/s:	Mr IY and Mrs JM Zhang
Location:	Lot 205 DP 1238394 – 23 William Maker Drive, Orange
Proposal:	Dual occupancy and subdivision (two lot residential)
Value:	$300,000

Reference:	DA 169/2018(1)	Determination Date	1 August 2018
PR Number	PR19021
Applicant/s:	Mrs JM Flowers, Mr BT Flowers, Mr TJ Flowers and SL Flowers
Owner/s:	Mrs JM Flowers, Mr BT Flowers, Mr TJ Flowers and SL Flowers
Location:	Lot 51 DP 1063083 – 12 Elwin Drive, Orange
Proposal:	Additions and alterations (warehouse) and subdivision (four lot industrial strata)
Value:	$5,000

Reference:	DA 176/2018(1)	Determination Date	10 July 2018
PR Number	PR11581
Applicant/s:	LendLease Building Pty Ltd
Owner/s:	Wentworth Barton (Holdings) Pty Limited
Location:	Lot 1 DP 88726 and Lot 1 DP 75588 – 208-210 Summer Street, Orange
Proposal:	Business premises (shopfront alterations) and business identification signage
Value:	$36,042

Reference:	DA 177/2018(1)	Determination Date	21 June 2018
PR Number	PR17480
Applicant/s:	Mr P Melchiorsen
Owner/s:	Perpetual Limited
Location:	Lot 87 DP 1005548 – 229-237 Summer Street, Orange
Proposal:	Kiosk
Value:	$45,000

Reference:	DA 182/2018(1)	Determination Date	28 June 2018
PR Number	PR12170
Applicant/s:	Mrs HF Smith
Owner/s:	Mr HC and Mrs HF Smith
Location:	Lot 8 DP 243505 – 8 Trinity Place, Orange
Proposal:	Demolition (tree removal)
Value:	$0

Reference:	DA 192/2018(1)	Determination Date	25 July 2018
PR Number	PR18443
Applicant/s:	Mr JA Harris
Owner/s:	Mr JA Harris
Location:	Lot 2 DP 1038981 – 125 Dalton Street and Lot 2 DP 1052133 – 320 Peisley Street
Proposal:	Subdivision (two lot boundary adjustment)
Value:	$0

Reference:	DA 195/2018(1)	Determination Date	12 July 2018
PR Number	PR27882
Applicant/s:	Bell River Homes Pty Ltd
Owner/s:	Mr MJ and Mrs RJ Flood
Location:	Lot 120 DP 1237871 – 19 Scarborough Street, Orange
Proposal:	Dual occupancy
Value:	$500,000

Reference:	DA 208/2018(1)	Determination Date	20 July 2018
PR Number	PR22400
Applicant/s:	Landorange Partnership
Owner/s:	Mr BJ Hutchinson
Location:	Lot 44 DP 1116123 – 5 William Maker Drive, Orange
Proposal:	Outbuilding
Value:	$40,000

Political	The Southern Feeder Road (and the Northern Distributor Road) were originally conceived of as forming a ring road around Orange. This was later modified when a section of the route parallel to Ploughmans Lane was abandoned, due in part to significant resident objection. In more recent times Council has considered and rejected relocation of the Orange Showground to Towac as part of a combined facility model.
Environmental	The proposed lot sizes of 2ha do not typically require provision of reticulated sewer/water. However, the vision of an equine precinct suggests that generation, management and disposal of horse manure could become significant.
Health and Safety	Creation of an equine estate straddling the Southern Feeder Road requires separation of horse and vehicular traffic for the safety of both horse riders and motorists. Additionally, race meetings will continue to draw traffic from beyond the immediate area. Clear messaging to alert such motorists to the presence of horse riders will be needed in order to help calm traffic and reduce the risk of alarming horses.