Agenda of Planning and Development Committee

Planning and Development Committee 4 December 2018

2.4 Orange Local Environmental Plan 2011 - Planning Proposal for an Administrative Amendment

RECORD NUMBER: 2018/2893

AUTHOR: Craig Mortell, Senior Planner

EXECUTIVE Summary

Orange Local Environmental Plan 2011 came into effect in February 2012. Amendment 1 to the LEP was an administrative or ‘housekeeping’ amendment, which dealt with a range of issues that had not been able to be resolved within the timeframe required of the principle LEP project. Subsequently a range of largely proponent driven amendments, typically spot re-zonings, have been conducted.

The Department of Planning and Environment requires that councils undertake a review of their LEPs on a regular basis, ideally on a five yearly basis. Amendment 1 was gazetted in March 2014, accordingly it is appropriate to consider a new administrative housekeeping amendment.

During the last five years staff have identified a range of minor matters that could be improved and anomalies that need to be rectified. Additionally, several landowners have approached Council seeking to change the status of their land in various minor ways that would not, on their own, justify the time and expense to both the landowner and Council required to proceed with standalone amendments.

This report outlines a range of matters that are recommended to be addressed via a Planning Proposal for a housekeeping amendment to the LEP, including:

· heritage corrections

· expansion of local exempt development provisions

· land use table updates

· cadastre map updates

· clause changes

· additional permitted uses

· minor rezonings

· other map updates (flooding and airport obstacle limitation surface).

These matters introduced in this report are more fully outlined in the attached draft Planning Proposal document, which would also serve as the basis for the amendment and public exhibition process. Formal LEP maps, where relevant, will be prepared prior to public exhibition.

Due to the diverse range of matters identified in this Planning Proposal, it is possible that the Department of Planning and Environment, at the Gateway stage, may require specific matters or sites to be dealt with separately - such as if a particular site needs a traffic study or similar. In this situation it is anticipated that the remaining matters of the Planning Proposal could still proceed and that the excluded matter could then be considered at a later time.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves:

1 To endorse the attached scope of the next administrative housekeeping amendment to Orange Local Environmental Plan 2011.

2 That staff prepare a formal Planning Proposal in accordance with the attached scope.

3 To send the Planning Proposal to the NSW Department of Planning and Environment seeking a Gateway Determination.

4 That staff proceed to address any conditions or requirements of the Gateway Determination and then place the draft Planning Proposal on public exhibition for 28 days (or as required by the Gateway Determination).

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

1 Heritage Corrections

The following table outlines a range of issues that have been identified in relation to existing heritage items and one heritage conservation area. In some cases the item has been listed in Schedule 5 but is not reflected in the heritage map; in others an item on the map has either not been listed or has been mis‑described in the schedule. This has potential to confuse the public and open the door for debate on the heritage significance of the relevant item. The response column details the proposed course of action to rectify these issues.

Property Affected	Issue	Response
26 Caroline Street	Heritage Item I268 is shown on the maps but not listed in the schedule	Listing to be added to the schedule
34 Telopea Way “Emmaville Cottage”	Emmaville Cottage has been relocated	Existing site to be removed from the schedule and map
106 and 106A Franklin Road	Heritage Item I75 straddles both lots, but 106A Franklin Road was not mapped	106A Franklin Road to be mapped as part of heritage Item I75
154 Peisley Street	The Geolyse building has been included within the mapping of the railway station – it should be mapped and listed as separate item to reflect that it is legally and functionally a different property	Listing to be added to the schedule and mapped independently of the railway station
65 Dalton Street	The property is listed as Item I89 covering two lots but has not been mapped as such	Heritage map to be updated with Item I89 shown on both relevant lots
Summer Street	Brass footpath inlays in the pavement of Summer Street, mapped as Byng Street road reserve	Heritage map to be updated removing the item from Byng Street and mapped onto the Summer Street road reserve
26 Kinghorne Lane	Shown as heritage Item I282 on the map but has not been listed in the schedule	Add entry to schedule for Item I282.
170, 172 and 174 Moulder Street	Three properties mapped as heritage Item I110 but not listed in the schedule	Add entry to schedule for Item I110
166 Edward Street	Now part of 85-89 McLachlan Street. The heritage conservation area was originally mapped to include cottages in Edward Street. This property was converted to parking area for a motor dealership. The legacy heritage conservation area status may hinder future (re)development of the motor dealership in McLachlan Street	Amend the extent of Heritage Conservation Area C3 to exclude the entirety of the motor dealership
Former Ambulance Station	Currently mapped as a heritage item but the schedule description relates to the adjoining property	Amend the schedule entry for Item I254 to relate to the former Ambulance station
3 Spring Street, Spring Hill	Schedule lists Lot 2 Section 8 DP 758921, however the correct property is Lot 3 Section 8 DP 758921	Amend the schedule entry for Item I303 to be Lot 3
282-294 Summer Street	Item I158 is listed as 286 Summer Street and should be 282 Summer Street. Item I159 is listed as 288-294 Summer Street and should be 286-294 Summer Street	Amend listing in schedule with correct street address and lot/DP numbers
107 Prince Street	Currently listed in the schedule but has not been properly mapped	Amend heritage map to include the item
C6 Heritage Conservation Area	The duration cottages HCA are mapped but not listed in the Schedule	Amend the Schedule to include the C6 Heritage Conservation Area.

2 Additional Exempt Development

Schedule 2 of the LEP provides a mechanism for councils to list types and forms of development that can be undertaken as exempt development. Generally, exempt development is suited to small scale benign developments and activities where the potential for adverse consequences is negligible. Adding matters to schedule 2, with appropriate standards and default conditions, ensures that Council staff time is not diverted to their assessment. This also provides the community with guidance on how to undertake minor projects in a manner that should not unduly impact on neighbours or the broader environment.

The first section of proposed additions involves a range of advertising signs, as such it is proposed to include a “general requirements” section that all exempt signs would need to comply with (rather than repeating the same matters in each listing).

· signage - general requirements

· amend advertising signage (business identification signs in zones IN1 and IN2)

· amend advertising signage (other signs)

· signage - A-framed signs on private land

· signage (sports field advertising)

· signage - sponsorship signs (corporate sponsorship of a community or sporting use)

· bee keeping in zones RU1, RU5, R1, R2, R5, E2, E3 and E4

· change of use - exhibition home to dwelling

· emergency services facilities

· balconies, decks, patios, pergolas, terraces and verandahs on large lots

· community use of educational establishments, places of public worship and centre-based child care facilities

· farm dams

· fences (swimming pool safety fences)

· hail protection structure in zones RU1 and E3

· subdivision

· security grills, screens or shutters - commercial purposes

· re-stumping an existing building

· scaffolding, hoardings and temporary construction site fences (being development to which State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 does not apply)

· grain silos and grain bunkers in zone E3 Environmental Management

· temporary structures (other than temporary builders’ structures)

· demolition

· tennis courts (private and non-commercial)

· truck parking areas in zones RU1, RU2, RU4, E3 and E4)

· boundary adjustment in zones RU1 and E3

· casual leasing areas.

3 Land Use Table Updates

The following items are proposed to be added to the land use table of the zones indicated.

(a) Bee Keeping is proposed to be added as permitted with consent in the R1, R2, R5 and RU5 zones. This use is proposed to be allowed as exempt development subject to a limitation on the number of hives. People seeking more hives would need to seek development consent. Consequently, by adding the use to the land use tables this would enable consideration of development applications and the ability to impose appropriate conditions, if merited.

(b) Extensive Agriculture is proposed to be added as permitted with consent in the R5 zone. This reflects the larger lot sizes typical of the zone and would enable some basic forms of agriculture such as grazing. Many home owners on larger lots may already keep animals as a combination of pets and grass control. However, should the number of animals increase there is the potential for Council to receive complaints, which currently would need to be evaluated as deemed to be either the keeping of domestic pets, which would be exempt, or undertaking an agricultural activity, which would currently be prohibited. By adding the use to the land use table this would enable consideration of development applications and the ability to impose appropriate conditions, if merited.

(c) Secondary Dwellings are proposed to be added as permitted with consent in the R2 Low Density Residential zone. Currently secondary dwellings in this zone can only be considered under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009, which has the effect of limiting the floor space to 60m². Secondary dwellings in other zones are limited in size to the greater of 60m² or 50% of the floor space of the principle dwelling. By adding this use to the land use table secondary dwellings in the R2 zone would also be able to access the 50% rule.

4 Cadastre Map Updates

Geographical Information Systems (GIS) involve mapping, or projecting, spatial information onto a model of the real world. Because the earth is not a perfect sphere it is represented by a geoid, which is a hypothetical solid figure whose surface corresponds to mean sea level and its imagined extension under (or over) land areas. In other words, the geoid model accounts for bulges and depressions in the overall shape of the earth. Two-dimensional data, such as cadastral property boundaries are then projected onto this model by the GIS program.

Therefore when the State updates the official geoid (as it did in 2015) it can appear to shift the position of features that were mapped to the previous version relative to the new maps. Since all new LEP maps are required to be based on the current geoid an issue has emerged where some polygons used for things like zones and minimum lot sizes can appear to be out of alignment with the cadastral property boundaries leading to the false impression that, when viewed through the GIS system, some land appears to be slightly split zoned or otherwise affected by changes.

The two figures below demonstrate how these anomalies can occur. The figure on the top is the official legal LEP map, while the figure on the bottom is what may be seen through the GIS system.

5 Clause Changes

· Multi Dwelling Housing in Ploughmans Valley

Clause 4.1C(2)(b)(ii) includes the phrase “multi dwelling housing” when in practice it only relates to dual occupancy development. This may create a false impression of what the clause enables. In practice, multi dwelling housing (which comprises three or more dwellings) is unlikely to be able to satisfy the DCP design requirements on lots of only 600m², and this form of development is more intensive than was intended for the Ploughmans Valley area.

It is therefore proposed to delete the phrase from the clause.

· Split Zoned and Split Sized Land

Amendments to the LEP can result in some parcels of land, particularly on the edge of project areas, being given two or more zones or lot sizes in order to deliver the intention of the relevant project. This raises a technical issue in that to subdivide land, all resultant lots need to be compliant with the appropriate controls. However, where land is partially within a project area the residue of land outside the project area may not meet the minimum lot size, obstructing the orderly attainment of the project. Additionally, where land is subject to more than one zone it can create confusion as to what forms of development are permissible on the land and how such developments are to be designed and sited.

It is proposed to enable land in such situations to be subdivided consistent with the zone or lot size boundaries in order to reflect the intent of the LEP and facilitate more orderly management of land. It should be noted that this is not intended to create additional development potential (such as dwelling entitlements) over and above the existing situation.

· Clustered Dual Occupancies in E3 and RU1 Zones

Prior to adoption of Orange LEP 2011, dual occupancy developments in rural areas (when permissible) were required to be “clustered” in close proximity. This was intended to preserve as much of the land as possible for primary production and to discourage the fragmentation of rural land into lifestyle residential developments. The clustering concept was not accommodated in the standard template for LEPs, and as such Orange LEP 2011 relied upon use of the “Attached Dual Occupancy” definition.

In practice, requiring dual occupancy development to be physically attached in a rural context has been found to be unduly restrictive, but the alternative of allowing detached dual occupancies (without any means to require clustering) may undermine the intention of protecting primary production.

· Rural Subdivisions, Boundary Adjustments and Farm Paddock Transfers

Clause 4.2 allows rural subdivision of any size that does not create a dwelling entitlement, allowing farmers to adjust the size of their enterprise through trading land with other farmers without creating dwelling entitlements. However, this clause does not apply to the E3 zone, greatly restricting the amount of land within Orange that can benefit.

It is proposed to insert zone E3 Environmental Management into the clause as a zone to which the clause applies.

6 Additional Permitted Use

· Restoration of Dwelling Entitlement at 120 Calton Road

When Orange LEP 2011 was adopted in February of 2012 it sought to extinguish a range of ‘existing holding’ dwelling entitlements but provided affected landowners a period of time, expiring on 31 December 2012. A number of these landowners lodged Development Applications in the days leading up to the cut-off date. Several of these applications had issues with the level of documentation required but were ultimately resolved. The owner of 120 Calton Road lodged documentation; however, due to staff leave around the Christmas break the application was overlooked. Staff support this Additional Permitted Use.

7 Minor Rezonings and Associated Map Changes

· Residue land in Narrambla is currently split zoned, to be corrected so that industrial land can be appropriately developed without compromising the buffer area of the Sewage Treatment Works.

· Correct the alignment of the Teamsters Walkway in the area of Crinoline Street, Anson Street, Hargraves Crescent and Heatherbrae Parade.

· 1385 Forest Road to clarify that the SP2 zone is intended to be used for Emergency Services Facilities.

· Part rezoning of 1 Barrett Street to enable surplus industrial land to be consolidated with adjoining residential unit development.

· Jack Brabham Park – change to RE1 Public Recreation instead of RE2 Private Recreation to reflect the general public accessibility and intent of the site.

· Function centre rezoning to facilitate further development and/or adaptation of the site.

· Eastern extension of the B3 zone and creation of an eastern B4 zone.

· Shiralee update to reflect approved subdivision layouts.

· East Orange neighbourhood shops.

· Minimum lot size on the caravan park site to be removed.

8 Other Mapping Updates

· Flood mapping and controls

Council has been undertaking a review of the Blackmans Swamp Creek Floodplain Risk Management Study and Plan, as well as developing a similar study and plan for Ploughmans Creek. This matter is the subject of a separate report before Council, but has implications for Orange LEP 2011.

Within the LEP, flood planning controls are currently implemented through a combination of a clause that makes reference to a Flood Planning Map in the LEP. This effects advice provided to the public through Section 10.7 Planning Certificates when properties are bought and sold. Information provided on these certificates needs to be as accurate as possible as it may affect mortgage applications and insurance premiums. Unfortunately, amending an LEP map is not a simple process and can result in a delay of many months between the time that Council has updated its floodplain risk management plan and that updated advice being reflected in planning certificates.

Due to this issue, the recommended approach set out in the Floodplain Risk Management Study and Plan (FRMS&P) is to remove the flood map from the LEP. Instead, the current LEP clause would be amended to apply to land at or below the flood planning level, this would then be defined to reference any adopted floodplain risk management plan. This would effectively update flood planning controls dynamically as and when updated studies are adopted.

The proposal is to amend clause 7.2 of Orange LEP 2011 by removing the reference to the LEP flood map in subclause (2), meaning that the clause will only apply to land at or below the flood planning level, and to amend the definition of flood planning level to read:

Flood planning level means the level of a 1% AEP (annual exceedance probability) flood event plus 0.5 metre freeboard, or other freeboard as determined by any floodplain risk management plan adopted by the Council in accordance with the Floodplain Development Manual.

In addition the term ‘Floodplain Development Manual’ will be defined to mean:

Floodplain Development Manual means Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005.

Another recommendation from the FRMS&P is to include a new floodplain risk management clause in relation to developments which may require particular evacuation or other emergency responses. The clause discourages such uses from land between the flood planning level and the probable maximum flood and provides additional matters for consideration where such a development is nonetheless pursued. This would assist emergency response agencies to be able to focus their resources on the particular event rather than needing to divert personnel to assist in evacuations.

Such a clause would also be supported by the inclusion of the following definition in the Dictionary:

Probable maximum flood means the largest flood that could conceivably occur at a particular location, usually estimated from probable maximum precipitation.

· Airport Obstacle Limitation Surface update

The Orange regional airport runway was extended in 2015 and the obstacle limitation surface (OLS) has not yet been updated in the LEP. The OLS does not prohibit any particular form of development but does trigger the need to consider the appropriate siting and design of structures that might be proposed under the flightpaths of the airport. This administrative amendment is therefore an opportunity to bring the LEP up-to-date and better reflect the extent of the OLS given the extension of the runway.

Attachments

1 Planning Proposal - LEP Amendment 24, D18/64309

Planning and Development Committee 4 December 2018

2.5 Development Application DA 329/2015(3) - 62 Byng Street and 77 Hill Street

RECORD NUMBER: 2018/2918

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	26 October 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	Hotel or Motel Accommodation (alterations to an existing heritage mansion to provide boutique hotel accommodation, conference room, kitchen and dining facilities, onsite car parking and landscaping)
Value of proposed development	$6,200,000

Application has been made to modify development consent DA 329/2015(2) which was initially issued by the Land and Environment Court (and subsequently modified previously). 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

The modification effectively comprises three parts as follows:

· an adjustment to the louvre screens on the west facing ground level guest room windows;

· deletion of a condition that required windows in the western elevation to be fixed pane glazing to address potential noise impacts; and

· a request to revisit the condition requiring the western boundary fence to be constructed from hardwood.

Council staff have assessed the proposed modification and concluded the following:

· An amended condition is attached in relation to the proposed privacy screens.

· An acoustic report has been submitted to support the proposition to allow the west facing guest room windows to be operable. Council staff concur with the report and confirm that the development complies in this regard, and accordingly the condition has been deleted.

· The previous position of the Court, and most recently the Council, is maintained and the condition requiring a hardwood fence continues to apply.

The development is recommended for approval subject to the recommended changes to the amended Notice of Approval.

RECENT LEGISLATIVE CHANGES

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

DECISION FRAMEWORK

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

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

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

DIRECTOR’S COMMENT

This modification seeks to change three conditions on the court approved 62 Byng Street ‘boutique’ hotel. Altered louvres and fixed windows are not disputed by neighbours or staff, and will add positively to the outcomes required. The applicant wishes to maintain the fence on the western side which has been constructed contra to Court conditions which sought a hardwood fence. Based on the deteriorating condition of the constructed fence, the neighbour now objects to the condition being modified, rather seeks that the Court ordered hardwood fence be constructed.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to modify development application DA 329/2015(2) for alterations 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 amended Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE LAND

The land is legally described as Lot 3 Sec 21 DP 758817, Lot 4 DP 1085463 Lot 1 DP 956418, known as 62 Byng Street and 77 Hill Street, Orange. The land is located within a residential area in close proximity to the fringe of the CBD. The land is one of a cluster of listed heritage items.

THE APPLICATION/PROPOSAL

The proposal involves a modification of the consent and can be simply summarised into the following three parts:

· amendment to the previously conditioned privacy screens/louvres attached to the west facing guest room windows on the ground and first floor;

· a request to delete the condition imposed in relation the western facing windows being non-operable; and

· a request to revisit the materials used in the construction of the western boundary fence.

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.

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 consider 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, save for the issue of the western boundary fence.

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 who 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

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

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

The application is considered to be consistent with aims (a), (b), (c) 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
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.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

The land is identified as a heritage item pursuant to schedule 5 of the LEP and is located within the Central Heritage Conservation Area. The land is also within the vicinity of a number of other heritage items.

Two of the three aspects of the modification require heritage assessment. Those being the appearance of the screening structures and the materials used in the construction of the fence (on the western boundary). Whether the windows are operable or not does not impact upon the heritage significance of the place. The following therefore relates to those two aspects as detailed above.

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

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

(c) to conserve archaeological sites,

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

The proposed modifications will not result in a modified development that is fundamentally averse to the objects of the clause.

(2) Requirement for Consent

Development consent is required for any of the following:

(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, or

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

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

(4) Effect of Proposed Development on Heritage Significance

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

The operability of windows does not alter the level of heritage compatibility the development has within the setting, and as such the following assessment relates only to the privacy screening and the material of the western boundary fence.

Privacy Screens

The privacy screens will be integrated as part of the building and have been previously nominated to be Colorbond “Monument” in colour, which is a dark grey colour so they are recessive. There are no objections the screens from a heritage point of view.

Western Boundary Fence

Background

The Court required a particular style of boundary fence as part of the Court issued consent.

The western boundary fence was required to be constructed using hardwood timber. The fence has subsequently been constructed using treated pine timber as opposed to hardwood.

The applicant, as part of the last application to modify the consent, sought to regularise the inconsistency with the consent requirements, requesting that Council agree to amend the condition to allow the western boundary fence as constructed (ie in treated pine).

As part of Council’s assessment on the adequacy of the fence, Council staff received a submission from the adjoining neighbour which identified a number of inadequacies with the way in which the fence was constructed.

The adjoining neighbour at the time of the assessment somewhat begrudgingly agreed that the fence was acceptable as constructed, provided certain rectification works occurred to the fence. These were included as conditions of consent in the draft Notice of Approval (amended) that went before the Planning and Development Committee.

At the time of determining the application, the Committee determined that the Court imposed condition should remain as this was the will of the Court, and as such the condition requiring the fence to be constructed with hard wood timber remained in place.

The applicant is asking Council to reconsider the fence materials stating that:

Condition (47) was previously approved with the requirements as mentioned above. A treated pine fence has been constructed on the common boundary between 60 and 62 Byng Street on the North/South axis. It was requested that this condition be amended to allow the fence to be ‘treated pine’ rather than ‘hard wood’. We note that the Council Officers report supported this amendment and it also was accepted by the neighbour in principle.

Our submission was supported by our Heritage Consultant:

‘It is considered that the treated pine fence will have the same effect in Heritage terms as the original approval, given that it is a ‘like for like replacement’, as stated in the letter prepared by the Heritage Architect. There is no mention of hard wood fencing in the Judgement of the Court or in the Joint Heritage Witness Statement prepared as part of the Court proceedings. It is therefore considered that the treated pine fencing will have no further environmental or heritage effect than the original consent’.

We therefore request this condition be amended to reflect our previous submission.

Council staff at the time recommended that the fence as erected be allowed to remain, but only on the proviso that certain works be undertaken to the fence to address its poor construction and its deteriorating condition. The position staff took on this matter previously was predicated on the agreement brokered between the parties that share the common boundary (ie the developer and the owner of the adjoining property 60 Byng Street); and the terms of that agreement were enshrined as a draft Condition of Consent. But this condition was superfluous based on the Council resolution and was subsequently removed from the issued Notice of Approval (amended).

In the intervening period between Council’s determination of the first modification and this point in time, the adjoining owners have withdrawn their agreement on the boundary fence, and as such Council staff recommend that the status quo remain in this case (that the fence be constructed as per the Court issued consent) as this was the will of the Court and, subsequently, the will of Council. The condition therefore remains in place. The applicant has requested Council reconsider this issue.

(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.

Given the relatively minor nature of the proposed modification, a heritage management document is not considered warranted. However, a brief heritage impact statement from John Oultram Heritage and Design was submitted in support of the previous modification; an excerpt of which is submitted with this application in support of the request to reconsider the western boundary fence.

(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 as 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.

STATE ENVIRONMENTAL PLANNING POLICIES

There are no State Environmental Planning Policies that are of relevance 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 (noting that these rooms had a balcony when the court considered the DA).

As previously considered under the last modification, with the benefit now of understanding the finished floor levels, the full extent of the visual privacy can now be observed.

Since the determination of the Court the applicant has sought additional privacy screening to all guest rooms with west facing windows (both ground and first level rooms) within the new addition. This is considered to be a much more positive outcome for all parties than what would have been achieved by the Court imposed requirements.

The proposed screening comprises eleven 150mm deep horizontally fixed blades, spaced 25mm apart. The screening is to commence 1.2m from the finished floor level and up to a height of 1.6m above finished floor level. The details of the screening are shown below.

Figure 2 - section of the proposed louvres

The applicant invited Council staff and the adjoining owner to observe a prototype of the proposed screening structure. The prototype was not an exact match of the screen proposed. The prototype was further off the ground than proposed and positioned on the inside face of the building rather than the location on the outside of the building.

Having observed the prototype, Council staff are of the view that in order to provide sufficient privacy to the western neighbour, the depth of the individual fixed blades should be increased from the proposed 150mm to a depth of 250mm. This will further prevent the potential for the observer from being able to look down into the backyard of the adjoining owner.

With the above described change, the development is considered acceptable in relation to privacy. The relevant condition has been amended accordingly.

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 unsatisfactory impacts upon the heritage significance of the place.

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 are appropriate save for the western boundary fence as described above.

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)

Residential Amenity

Visual Privacy

The impacts associated with the visual privacy of the development with consideration to the revised privacy screens are addressed above under the DCP considerations.

Noise Impacts

The consideration of noise impacts relates only to the condition Council previously imposed that required windows on the western elevation to be fixed pane and non-operable windows. The intent was to manage noise associated with the deletion of balconies. At the time of previously considering this issue the applicant did not provide sufficient information to satisfy Council staff that operable windows would be satisfactory thus the condition was imposed.

The applicant has now submitted in support of this application, an acoustic report which demonstrates that the development can operate with operable windows across all rooms within the western elevation. The Manager of Building and Environment has assessed the report and agreed that the development will be acceptable with operable windows.

It is recommended that the relevant condition be deleted.

The development will not give rise to unacceptable impacts as a result of noise associated with guest rooms.

Heritage

Heritage considerations are addressed above under the heading “Clause 5.10 - Heritage Conservation” under the LEP consideration.

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 proposed development is defined as "advertised development" under the provisions of the Act. The application was advertised for the prescribed period of 14 days and at the end of that period eight submissions had been received.

Submissions 1 and 2 - Resident of 60 Byng Street

Submission 1

In relation to the louvres, the submitter indicates that they have no objection to the louvres being fixed and horizontal rather than being angled, but the submitter states that “the position of the louvres, distance from the windows and widths of the louvres will have a bearing on whether they are appropriate”.

In relation to the treated pine timber fence along the boundary, the submitter articulates their version of what has transpired between themselves and the adjoining owner. The submitter concludes that as no further work has been carried out to the fence which was the basis for the agreed position previously, and that the fence condition has deteriorated further since the initial agreement. The submitter has indicated that their previous conditional agreement is thus withdrawn.

In relation to the operable windows, the submitter indicates no objection provided that the acoustic considerations have been assessed by Council staff.

Submission 2

Submission 2 is a subsequent submission from the adjoining owner. The submission details what the adjoining owner indicated at the site meeting to observe the prototype privacy screening. The submitter confirmed that he agreed to the proposed method of privacy screening and also that he had no objections to the operable windows given that Council staff has reviewed the submitted acoustic report and it was deemed satisfactory.

Council staff response

Submissions 1 and 2 are authored by the same person and are addressed below.

In relation to the above, despite the agreement of the adjoining owner in relation to privacy, Council staff have assessed the level of privacy and consider it appropriate to increase the depth of the louvres as detailed above. This will ensure an even greater level of privacy for the adjoining property and a better outcome. This is addressed above.

In relation to the boundary fence, the position of Council staff on this matter is detailed above. It is recommended that the status quo of the consent remain (ie that being the position initially held by the Court and subsequently by Council) and the request to allow the treated pine fence not be supported.

In relation to the operable windows, as mentioned above the applicant has submitted an acoustic report in support of the development which indicates that the development with operable windows would be acceptable. This has been reviewed by the Manager Building and Environment and confirmed as acceptable.

Submission 3 - Resident of 75 Hill Street

The submission raises concerns in relation to the western boundary fence in terms of its adequacy in its construction and the materials it has been constructed from.

Council staff response

Submission 4 - Resident of 82 Clinton Street

The submitter raises concerns in relation to the operable western windows and the fencing materials.

Council staff response

The allowance of operable windows is addressed in detail above. The applicant has submitted an acoustic report in support of allowing the operable windows and this is considered to be acceptable.

Submission 5 - Residents of 59 Byng Street

The submitter raises concerns in relation to the western boundary in respect of its adequacy and the materials used in breach of the consent condition.

Council staff response

Submission 6 - 57 Byng Street

The submitter raises concerns in relation to the operable windows and the western boundary fence in terms of the material used, which was contrary to the consent. The submitter also mentions the illegal developments that have allegedly occur at the property, citing discussions at a Council meeting in 2016, and requests that the developer be penalised.

Council staff response

The allowance of operable windows is addressed in detail above. The applicant has submitted an acoustic report in support of allowing the operable windows and this is considered to be acceptable.

In relation to the illegal works, this a separate matter which has been reported to Council previously.

Submission 7 - owners of 85 Hill Street

The submitters raise concerns in relation to the applicant’s request to amend the screening and seek to allow operable windows. The submitters have also referenced the western boundary fence stating “it looks flimsy and in poor condition” and suggest that the fence should be replaced as per the Court imposed condition.

Council staff response

The privacy considerations are addressed above and it has been determined that the fixed louvres should be increased in depth to allow a greater level of privacy.

In relation to the operable windows, as indicated above the applicant has submitted an acoustic report in support of the operable windows which is considered to be acceptable.

Submission 8 - Resident of 234 March Street

The submission objects to the request to allow the constructed pine fence to remain. The author of the submission outlines various technical construction factors that they allege the applicant has not considered when constructing the fence - stating these for the reasons that the fence is in a poor condition.

Council staff response

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 development as modified remains permissible with the consent of Council. The proposed development is not inconsistent 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 save for the matter pertaining to the materials used for the western boundary fence. The applicant has requested that Council give further consideration to allowing the treated pine fence that has been recently constructed along the western boundary as opposed to the current requirement for the fence to be a timber hardwood fence. It is open for Council to reconsider its position of this matter. 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 amended Notice of Approval.

Attachments

1 Modified Notice of Approval, D18/64465

2 Plan, D18/64451

3 Submissions, D18/64194

Planning and Development Committee 4 December 2018

2.6 Development Application DA 136/2018(1) - 100 Bathurst Road

RECORD NUMBER: 2018/2919

AUTHOR: Andrew Crump, Senior Planner

EXECUTIVE Summary

Application lodged	19 April 2018
Applicant/s	McDonald's Australia Limited
Owner/s	McDonalds Properties (Aust) Pty Limited
Land description	Lot 4 DP 778409 - 100 Bathurst Road Orange
Proposed land use	Take Away Food and Drink Premises, Restaurant or Cafe, Demolition (existing building and tree removal) and Business Identification Signage
Value of proposed development	$3,997,452

Council's consent is sought to redevelop the existing McDonalds restaurant on Bathurst Road. The application essentially involves demolishing the existing building and constructing a new McDonald’s restaurant on the site closer to Bathurst Road.

The subject land is described as Lot 4 DP 778409, known as 100 Bathurst Road and is shown in the below locality plan.

Figure 1 - locality plan

In order to continue trading during the construction period, the applicant is proposing to stage the development such that the existing restaurant can still function during the construction phase of the development.

The critical element in the assessment of this application relates to traffic matters given the subject land has frontage to Bathurst Road which is the Mitchell Highway. Accordingly, the RMS has been consulted.

The development is considered satisfactory and is recommended for approval.

RECENT LEGISLATIVE CHANGES

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.

DIRECTOR’S COMMENT

This development application involves a revamp of the highly successful Bathurst Road McDonald’s. The development is supported by staff, however conditions of consent have been included to avoid impacts associated with the simultaneous construction and restaurant operation as it would result in inappropriate conflict.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to consent to development application DA 136/2018(1) for Take Away Food and Drink Premises, Restaurant or Cafe, Demolition (existing building and tree removal) and Business Identification Signage at Lot 4 DP 778409 - 100 Bathurst Road, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE LAND

The land is described as Lot 4 DP 778409, known as 100 Bathurst Road. The land has frontage to Bathurst Road which is also the Mitchell Highway (RMS road). The land is situated mid-way between Glenroi Avenue and Elizabeth Street; it adjoins Red Rooster to the north-west, a motel to the south-east, the Ophir Tavern to the south-west and residential properties are located opposite the site.

THE APPLICATION/THE PROPOSAL

Council's consent is sought to demolish the existing restaurant on the land and construct a new restaurant. The new restaurant will be sited closer to Bathurst Road in the location of the existing car park, with new car parking primarily provided to the rear of the proposed building.

The new building will be a contemporary, rectilinear building with flat, mono-pitched roof concealed by parapet wall and suspended awning. The presentation of the proposed building is shown in the below figure.

Figure 2 - isometric view of proposed building looking southwest

A dual lane drive-through facility is proposed with order points on the western side of the building, with the collection point at the front of the building. The restaurant will provide for 80 seats (internally – no external seating is proposed), party room, kids play ground and amenities.

33 car parking spaces are proposed, as well as bicycle parking.

Extensive landscaping is proposed, including large trees within the Bathurst Road frontage.

It will be necessary to remove the large Picea mariana (common name Black Spruce) within the existing car park.

Signage proposed as part of the development comprises McDonald’s standard branding and corporate livery, typical of similar developments throughout the State.

As part of the development, the applicant is proposing to stage the decommissioning and demolition of the existing restaurant such that the existing restaurant can continue to trade, albeit at a reduced capacity (drive-through only), during the construction phase of the development.

The development is proposed to operate 24 hours a day, 7 days a week.

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.

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

The site is a highly disturbed urban environment, and as such the subject property has 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,

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

The application is considered to be consistent with aims (a), (b) and (c) 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 B6 Enterprise Corridor
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:	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 B6 Enterprise Corridor zone. The proposed development is categorised as a take away food and drink premises^{^[1]}, restaurant or café², business identification signage and demolition under OLEP 2011. The above land-uses are defined within the LEP as follows:

take away food and drink premises means premises that are predominantly used for the preparation and retail sale of food or drink (or both) for immediate consumption away from the premises.

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

business identification sign means a sign:

(a) that indicates:

(i) the name of the person or business, and

(ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and

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

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

Demolition is addressed below under the heading Clause 2.7 - Demolition.

Take away food and drink premises, restaurant or cafes and business identification signage are permissible land-uses within the zone subject to receiving development consent.

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

1 - Objectives of zone

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

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

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

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

The development is not inconsistent with the objectives of the zone. The development will continue the longstanding commercial use of the land and continue to provide positive levels of employment within the community. Given the existing and longstanding use of the site as a McDonald’s restaurant and the fact that this will continue as a result of the development, the development is expected to have a neutral impact on the role of the CBD as the primary retail centre. The last object is not relevant to the proposal.

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 as part of this application.

The applicant is proposing to demolish the existing building and all associated structures and vegetation within the site, save for the large pylon sign within the site frontage.

There are no objections to the demolition proposed. The building on the land is considered to have exhausted its lifecycle and there is no real benefit to insisting on its retention. The demolition works proposed will have no significant impact on adjoining lands, streetscape or public realm. Appropriate conditions are attached to the Notice of Approval in relation to the proposed demolition.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 7 - Additional Local Provisions

7.1 - Earthworks

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

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

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

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

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

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

(f) the likelihood of disturbing relics

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

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

The earthworks proposed in the application are limited to the extent of cutting and filling required for the proposed building, which are expected to be minimal given the relatively level site. The extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways.

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

The site is not known to be contaminated, however relevant conditions are attached in relation to the event of an unexpected find in relation to contamination.

The earthworks will be appropriately supported onsite and the change in ground level is not substantial. Therefore, the effect on the amenity of adjoining properties is considered to be minor.

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

The site is not in proximity to any waterway, drinking water catchment or sensitive area. However, conditions are imposed to ensure measures are implemented to control sediment and prevent it from leaving the site.

7.3 - Stormwater Management

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

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

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

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

The site is affected by an overland stormwater flow from the 1% Annual Exceedance Probability which enters the site from the adjoining property to the south. A condition is attached that ensures the overland flow is not impeded or redirected as a result of the development.

Council’s standard conditions relating to stormwater are attached to the consent. The objective of the conditions is to ensure that post development runoff levels do not exceed pre-development levels. A further condition is attached to ensure an appropriate level of water quality of stormwater before it leaves the site.

7.6 - Groundwater Vulnerability

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

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

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

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

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

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

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

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

Clause 7.11 - Essential Services

Clause 7.11 applies and states:

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

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

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

(e) suitable road access.

In consideration of this clause, all utility services are available to the land and adequate for the proposal.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy (Infrastructure)

State Environmental Planning Policy (Infrastructure) is applicable to the application given the development’s frontage to a classified road, and therefore the development is classed as a traffic generating development. Additionally, there is electricity infrastructure in the vicinity and therefore a referral to the relevant supply authority is required. The applicable clauses are 101 – Development with frontage to a classified road, 104 – Traffic Generating Development, and 45 – determination of development applications – other development respectively.

Clause 101 states:

101 Development with frontage to classified road

(1) The objectives of this clause are:

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

In response to the above, the development is considered acceptable in terms of its impacts upon the effectiveness and ongoing operation and function of the Mitchell Highway. As addressed below under clause 104 considerations, advice from the RMS has been obtained indicating no objections to the development subject to conditions. The development adopts the existing and longstanding access arrangements for the site, save for the proposed exit from the site in a left only manoeuvre onto the highway. The existing egress over a right of carriage way within the Ophir Tavern land onto Glenroi Avenue remains.

As mentioned above, the existing access to the site will continue to be used from Bathurst Road. Delivery vehicles which currently enter the site from Bathurst Road will, as a result of the proposed development, enter from Glenroi Avenue. Passenger vehicles can also enter from Glenroi Avenue.

The development is not expected to impact upon the classified road by way of dust or smoke generation. All trafficable surfaces within the site are intended to be fully sealed, thus preventing dust. The extraction systems and cooking facilities are not expected to generate any smoke at levels that would impact the roadway.

The development is not a type that is sensitive to noise or vehicle emissions, and therefore the ongoing operation of the highway will not conflict with the development in this regard.

The development is thus considered acceptable in relation to clause 101 of the SEPP (Infrastructure)

Clause 104 states:

104 Traffic-generating development

(1) This clause applies to development specified in Column 1 of the Table to Schedule 3 that involves:

(a) new premises of the relevant size or capacity, or

(b) an enlargement or extension of existing premises, being an alteration or addition of the relevant size or capacity.

(2) In this clause, relevant size or capacity means:

(a) in relation to development on a site that has direct vehicular or pedestrian access to any road (except as provided by paragraph (b))—the size or capacity specified opposite that development in Column 2 of the Table to Schedule 3, or

(b) in relation to development on a site that has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90m of the connection—the size or capacity specified opposite that development in Column 3 of the Table to Schedule 3.

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

(a) give written notice of the application to RMS within 7 days after the application is made, and

(b) take into consideration:

(i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, RMS advises that it will not be making a submission), and

(ii) the accessibility of the site concerned, including:

(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.

(4) The consent authority must give RMS a copy of the determination of the application within 7 days after the determination is made.

The development is characterised as a take away food or drink premises with drive-through facilities as categorised under schedule 3 of the SEPP, and thus is a type of traffic generating development as defined.

The development was referred to the RMS in the first instance. When initially submitted, the application contemplated a right turn out of the development site onto Bathurst Road. The RMS objected to the development on this basis. The applicant subsequently amended the application to delete the right turn out onto Bathurst Road, limiting the egress to left only after exiting the drive-through facility.

All other vehicles not utilising the drive-through facility will be required to exit the site via Glenroi Avenue.

The RMS also undertook detailed modelling of the performance of the intersection of Glenroi Avenue and the highway, which confirmed the assessment within the submitted traffic report that the intersection operates at a level of service “A” (which is the highest rating). This modelling was carried out because at the time of assessing the nearby 7‑Eleven development, the same intersection was identified as having a level of service much lower than the level “A” service identified as part of this application. As it transpired, the volume of traffic within the highway has significantly reduced since the 7-Eleven was determined some three years ago. Anecdotally, this is likely to be a result of an increase in the use of the Northern Distributor Road.

Accordingly, the RMS has issued advice to Council indicating no objections to the development subject to certain works being undertaken within the travel lanes of the highway (fundamentally to prevent a right turn onto the highway from the subject land), and the access point to the site which is required to be carried-out as part of a Works Authorisation Deed (WAD) with the RMS. Other requirements relate to the maintaining of sight distances and the maximum size of vehicles entering the site.

The requirements of the RMS have been included as conditions of the consent within the Notice of Approval.

45 Determination of development applications—other development

(1) This clause applies to a development application (or an application for modification of a consent) for development comprising or involving any of the following:

(b) development carried out:

(i) within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or

(ii) immediately adjacent to an electricity substation, or

(iii) within 5m of an exposed overhead electricity power line,

(2) Before determining a development application (or an application for modification of a consent) for development to which this clause applies, the consent authority must:

(a) give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

(b) take into consideration any response to the notice that is received within 21 days after the notice is given.

The subject land contains an underground electricity supply that links with the substation on the adjoining land. Accordingly, the application was referred to Essential Energy for comment. Essential Energy responded indicating no objections to the development, but did include several standard conditions which have been included in the Notice of Approval.

State Environmental Planning Policy 55 - Remediation of Land

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

Furthermore, SEPP 55 requires that before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying findings of a preliminary investigation of the land concerned. The development does not involve a change of use.

The subject land has a long history of being used for commercial purposes, and prior to the current use the land was used for the purposes of residential accommodation. Glenroi House once occupied the site until it was demolished on the 1970s to allow the construction of the current restaurant. The former Glenroi House was used as a private residence and later as a boarding house for Wolaroi College students; and then finally as a restaurant prior to its demolition. Accordingly, Council staff are not aware of the site being used for a purpose that would cause the land to be contaminated. Notwithstanding this, Council’s standard precautionary unexpected finds condition is attached as a condition of consent.

State Environmental Planning Policy 64 - Advertising and Signage

State Environmental Planning Policy 64 - Advertising and Signage (SEPP 64) is applicable to the application as the applicant is proposing the following signs:

· 1 x McDonald’s sign above the entrance;

· “M” Logo affixed to the walls on the north-eastern (front elevation), north-western elevation, and south-eastern elevation;

· 1 x McCafe wall sign on the front elevation;

· 2 x internally illuminated “play place” hanging signs – on the north-eastern and south‑western elevations;

· 2 x internally illuminated “McDonald’s” wall signs affixed to the north-eastern and south-western elevations;

· 2 x height clearance signs; and

· various directional signage and drive-through direction signage.

It is noted that the menu boards associated with the drive-through facility at the ordering point will be position whereby they are not visible from a public place, and thereby the SEPP does not apply.

It is also noteworthy that the application when initially submitted include a large blade wall sign that extended well above the height of the building (refer figure below). Council staff as part of their initial appraisal identified the blade wall sign as being inappropriate and unnecessary, adding to the proliferation of signage within the site, particularly accounting for the large existing pylon sign adjacent to the road reserve.

Figure 3 - excerpt of superseded plan showing blade wall sign

Council staff did suggest that the proposed blade wall could be considered if the large pylon sign was removed, but both signs within the site would not be an acceptable outcome.

The applicant responded by deleting the blade wall sign and advising that there was no intention to remove the existing pylon. The deletion of the blade wall sign is considered a positive outcome as it improves the visual presentation of the development.

The RMS questioned whether the existing flag poles were being relocated as they may impede sightlines if they are. The applicant has indicated as part of a response to a request for additional information that they do not form part of the application. Accordingly, a condition is attached indicating that a separate approval would be required to relocate them.

The SEPP states in part:

3 Aims, Objectives etc

(1) This Policy aims:

(a) to ensure that signage (including advertising):

(i) is compatible with the desired amenity and visual character of an area, and

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish, and

The development is not inconsistent with the Aims, objects, etc. of the policy. The proposed signage scheme is similar to the existing situation and provides an appropriate level of communication and will be of an acceptable architectural standard.

(8) Granting of Consent to Signage

A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied:

(a) that the signage is consistent with the objectives of this Policy as set out in clause 3 (1) (a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 1.

As mentioned above, the development is consistent with clause 3 of the SEPP, and the following assessment indicates that the development satisfies the relevant assessment criteria contained within schedule 1 of the SEPP.

1 - Character of the Area

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

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

The area is characterised by the high-profile location on the entrance into the City and the highway frontage, the residential dwelling houses on the north-eastern side of Bathurst Road, and a mix of commercial developments on the south-western side of the road, including Red Rooster, a 7-Eleven service station, Glenroi shops, Ophir Tavern and Orange Motor Lodge. The commercial premises (including the existing McDonald’s restaurant) include a mix of advertising signage, including wall mounted signage, awning signage, window signage and various sized freestanding pylon signs.

The proposed signage is commensurate with the longstanding commercial use of the land and is not inconsistent with other similar examples of signage within the locality such as KFC and the 7-Eleven. Accordingly, the proposed signage is not incongruous with the character of the area.

2 - Special Areas

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

The location is considered to be a moderately sensitive area given the proximity of the site to the residential area, notwithstanding the commercial zoning of the land. However, as noted above the proposed signage is not fundamentally incongruous with the theme of signage within the immediate commercial precinct, and the signage is limited to business identification signage.

3 - Views and Vistas

· Does the proposal obscure or compromise important views?

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

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

The signage is primarily affixed to the building and as such will not impact upon views or vistas within the locality, nor will it interrupt the skyline or impede viewing rights of signage on other land.

4 - Streetscape, Setting or Landscape

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

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

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

· Does the proposal screen unsightliness?

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

· Does the proposal require ongoing vegetation management?

The proposed signage will have an acceptable level of streetscape compatibility. The proposed signage scheme is commensurate with the level and style of signage within the surrounding commercial precinct. The signage will not present negatively in terms of visual interest within the street and setting. The proposed signage does not rationalise existing signage as the signs will be primarily fixed to a new host building or be associated with a new drive-through facility.

As mentioned above, Council staff indicated that the initially proposed blade wall sign was not appropriate, and it was subsequently deleted. As a result, none of the proposed signage protrudes above the height of the building.

No vegetation management is required as a result of the proposed signage.

5 - Site and Building

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

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

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

The proposed signage relates to the proportions of the building and will not interrupt any important architectural elements or features of the building. The signage does not present a great degree of innovation or imagination, but rather focuses on the objective of corporate brand identification in a manner similar to all other McDonald’s developments throughout the state.

6 - Associated Devices and Logos With Advertisements and Advertising Structures

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

The McDonald’s “M” logo features as part of the signage strategy; however, the logos are not designed as part of the structure and they are simply wall mounted.

7 - Illumination

· Would illumination result in unacceptable glare?

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

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

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

· Is the illumination subject to a curfew?

The signage will be illuminated, however the levels of light emitted are not expected to impact nearby properties or the function of the highway. To ensure that this is the case, a condition is attached which requires the development to be designed and operated in a manner that is consistent with the Australian Standard which controls the obtrusive effects of outdoor lighting.

8 - Safety

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

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

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

The proposed signage is mostly affixed to the host building, and the signage that is freestanding will be located appropriately within the site in manner that will not reduce public safety for road users and pedestrians.

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

The applicant is proposing to remove a large picea mariana Black Spruce from the front of the site, and as such SEPP (Vegetation in Non-Rural Areas) applies to the development.

Part 3 of the SEPP applies to vegetation in any non-rural area of the State that is declared by a Development Control Plan to be vegetation that Council can issue a permit to a landholder to be cleared. Clause 26 of the SEPP outlines that a Development Control Plan (DCP) that is in force on the commencement of this Policy can establish the process, such as requiring a permit or development consent, for the clearing of vegetation.

Chapter 0 Transitional Provisions of the Orange DCP 2004 (the DCP) prescribes the kinds of trees and other vegetation that are subject to Clause 10 of the SEPP. The vegetation that would be impacted by the proposed demolition is of a size that would trigger the requirements outlined in these provisions.

This application is requesting consent to remove this vegetation. It is therefore considered that the requirements of the SEPP have been met and the proposal is consistent with the provisions as outlined in the Policy and the DCP.

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:

· Chapter 0 - LEP 2011;

· Chapter 2 - Natural Resource Management;

· Chapter 3 - General considerations;

· Chapter 8 - Development in Business Zones;

· Chapter 14 - Advertisements; and

· Chapter 15 - Car Parking).

An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

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

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

The corresponding zone to zone 3b Business Services (Orange LEP 2000) is zone B6 Enterprise Corridor (Orange LEP 2011). As such, Orange DCP 2004 - Chapter 8 is of primary relevance to the assessment, along with the other relevant chapters addressed below.

Chapter 0 - LEP 2011

PO 0.4-11 INTERIM PLANNING OUTCOMES - TRANSPORT ROUTES

· The development provides a high standard of visual appeal to motorists, cyclists and pedestrians as well as adjoining property owners.

The architectural style and design, the adopted materiality and the extent of landscaping for the development will result in a development with an acceptable level of streetscape compatibility and a reasonable standard of visual appeal.

· The visual appearance of the development, including any signage, lighting or other ancillary element, must not generate a distraction to motorists.

There are no aspects of the development that would cause distraction for motorists. Relevant conditions are attached that require outdoor lighting to be in accordance with the Australian Standard which controls the obtrusive effects of lighting.

· Any signage must not be animated whether by movement or flashing lights.

As above.

· Where land has more than one street frontage the street with the lower volume of traffic is to provide the principal access to the development, subject to safety considerations.

The development essentially adopts the existing access points to the site, those being the main entrance off Bathurst Road and the other onto Glenroi Avenue via a right of carriage way on the adjoining Ophir Tavern land.

As detailed above under the considerations of the SEPP (Infrastructure), the RMS has reviewed the proposal and issued their support for the development subject to conditions, which includes conditions that require the necessary road treatment within the Mitchell Highway (Bathurst Road) and other requirements.

· Where access is provided onto an arterial road, distributor road or major collector road, the access point must have appropriate safe sight distances for the prevailing speed limit and clear and unimpeded entrance/exit signage must be displayed.

As detailed above, the RMS has reviewed the proposal and issued their conditional support of the development, which includes conditions that require the necessary road treatment within the Mitchell Highway (Bathurst Road) and other requirements, as well as requirements on maintaining adequate sight distances.

· Where onsite customer parking is provided that is not immediately visible from a public road clear and unimpeded directional signage must be displayed.

The car parking is proposed to be located to the side (eastern side of the building) and rear of the proposed building. The car parking at the side of the building will be visible from the highway, as well as some of the parking allocation at the rear of the site. This will be sufficient to direct customers into the site and funnel them through to the balance of the car parking at the rear of the site.

Appropriate directional signage is proposed as part of the development to direct customers using the business.

The development is considered acceptable in relation to directional signage.

· Where the proposal is residential, or another noise sensitive form, appropriate noise mitigation measures to limit the development from traffic noise must be demonstrated.

Not applicable.

Chapter 0 - Tree Preservation

The Chapter 0 – Tree Preservation planning outcomes require approval for certain trees, which the applicant has sought as part of this application for the removal of the picea mariana (Black Spruce) at the front of the site. The DCP requires an arborist report to be submitted which outlines the following information:

· The location, size, species and condition (ie diseased, healthy etc).

· A statement that details any anticipated impacts on vegetation that may have derived from endangered ecological communities and/or that may be habitat for threatened species.

· The purpose of removal and whether the pruning of the tree would be a more practical and desirable alternative.

· Whether a replacement tree or trees should be planted.

· The location, size and species of any trees proposed to replace those intended for removal.

· The owner’s consent to the application being lodged.

· Any other relevant information regarding the tree to be removed (ie photographs).

An arborist report has been submitted in support of the application which addresses the above matters. A detailed landscape plan has been submitted in support of the development which provides a number of suitably sized replacement trees at the front of the site.

Detailed considerations on the removal of the subject tree have been addressed in detail under the heading ‘’Likely impacts of the development”.

Chapter 2 - Natural Resource Management

Chapter 2 - Natural Resource Management provides planning outcomes for stormwater quality, groundwater quality, soil resource management, vegetation management, and flora and fauna management, all of which have been considered above under the heading Orange LEP 2011 (stormwater, groundwater) or the above biodiversity considerations.

Chapter 3 - General Considerations

Chapter 3 provides planning outcomes of a general nature. Those of relevance to this assessment relate to cumulative impacts, urban areas and energy efficiency. These are all addressed elsewhere within this report. Cumulative impacts and urban areas (in terms of such things as visual quality, traffic impacts etc) are addressed below under the heading “Likely Impacts”. Energy efficiency is addressed through a condition that requires a report addressing Section J of the Building Code of Australia to be submitted.

Chapter 8 – Development in Business Zones

PO 8.2-1 PLANNING OUTCOMES - BUSINESS SERVICES AREAS

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

The proposed development will have a neutral effect on the primacy of the CBD. The proposed development will provide a service to the travelling public and residents within the area. Moreover, the scale of the retailing component is controlled by a development standard.

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

Relevant conditions are attached which address this requirement.

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

Not applicable.

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

The development presents to the street with a high level of architectural appeal through the use of varied materials, modulation and articulation of the front and side elevations, and an appropriate level of meaningful landscaping. Additionally, as discussed further below under the likely impacts section, the siting of the new building further towards the street has the effect of filling the existing gap in the streetscape, leading to a more uniform and consistent streetscape.

The development is considered acceptable in terms of how it presents within the high-profile location.

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

A detailed landscape has been submitted in support of the application and includes a mix of large deciduous trees and a variety of shrubs and groundcovers. In terms of the large trees, the landscape concept includes eight claret ashes (four of which are in the front setback), one pistachio also within the front setback and two Chinese elms also within the front setback area.

The heavily landscaped front setback is considered an essential level of mitigation to off-set the adopted front setback, as well as mitigate the loss of the large black spruce.

The south-eastern boundary where the site adjoins the motel development is heavily landscaped with sweet viburnum.

The landscape concept is considered acceptable and will help to integrate the development within the setting, as well as soften the extent of hard surfaces and partially screen the development from the highway.

The RMS has provided comment in relation to the plant selection adjacent to the Bathurst access point and have recommended a condition in relation to maintaining sight distances. This recommendation is attached as a condition of consent.

Chapter 14 - Advertisements

An assessment of proposed signage has been addressed under SEPP 64 above.

Chapter 15 – Car Parking

Despite the characterisation of the development under the LEP comprising two separate and equally dominate land-uses (being a take away food and drink premises and restaurant or café), the DCP for the purposes of car parking includes a car parking rate for a fast food outlet which includes a drive-through and a restaurant that provides internal seating only, which is essentially exactly what this development comprises. The rate for such a development is 1 space per 2 seats.

The DCP also recommends capacity for 5-12 queuing spaces associated with the drive-through facility.

The submitted plans show the provision of 80 seats internally within the building (no external seating is proposed) meaning that a total of 40 off-street parking spaces are required.

The submitted plans shows the provision of 33 parking space within the site, including 1 accessible space.

The subject plans demonstrate that the arrangement of the internal operations of the development and the location of the drive-through mean that a total of around 16 vehicles (not including the two waiting bays) are able to que within the dual drive-through facility without impacting upon the function of the car park. It is noted that over half of the queuing spaces are available prior to the ordering points.

An area for bicycle parking is also provided within the site.

The development therefore results in a parking deficiency of 7 spaces under the DCP requirements, but an oversupply in the requisite queuing capacity within the drive-through facility.

It should be noted that the subject land falls outside of the car parking contributions catchment area, and as such Council does not have the ability to levy a monetary contribution in lieu of the shortfall in parking.

The traffic and parking study submitted with the application firstly points out, inter alia, that the existing McDonald’s restaurant provides 98 internal seats, 24 external seats and 29 parking spaces.

The traffic report provides a comparison between the DCP requirements and parking surveys of the existing development and found that McDonald’s has a peak parking demand of 28 spaces in the peak afternoon period, equating to 1 spaces for per 3.5 seats. If this rate were to be adopted in lieu of the DCP rate, it would mean that based on 80 seats, 23 parking spaces would be required, and thereby with the provision of 33 spaces well exceeds the demand. It should also be noted that the applicant estimates that around 75% of the total trade at the development occurs through the drive-through facility.

Based on the foregoing parking assessment Council effectively has two options: either accept the submitted parking study and agree to the identified parking deficiencies when assessed against the DCP, OR, impose a condition that reduces the number of seats internally by 14 seats and thereby bring the development into line with the DCP.

Council staff recommend that the findings of the parking study be accepted and the development be agreed to on that basis.

SECTION 64 WATER AND SEWER HEADWORKS CHARGES

The proposed development is 60m² larger than the existing development on the land, and as such a net increase arises in terms of water and sewer headworks as a result. Accordingly, Council’s Technical Services Division has imposed a condition that requires the payment of Section 64 charges based on 1.8 equivalent tenements for water and 2.88 equivalent tenements for sewer.

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

The development is not inconsistent with the provisions prescribed by the Regulations.

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

Context and Setting

The land is located on the eastern entrance to the City and is situated within a cluster of commercial uses such as other fast food outlets, service stations and a pub. The land is also opposite residential properties.

The development effectively represents a continuation of the longstanding use of the land, just in a different configuration and with a more contemporary presentation to the street.

The development is considered to be acceptable within the context and setting of the locality.

Traffic Impacts

The applicant is proposing to utilise the existing access points to the site which have been in place since the existing restaurant open in the 1970s, albeit now with the addition of the left out on to Bathurst Road from the drive-through facility.

Council’s Technical Services Division has assessed the development in terms of traffic generation, impacts upon local roads and traffic circulation within the site, and has deemed the development acceptable subject to conditions.

The development allows passenger vehicles to enter and leave the site in a forward gear.

The nominated delivery vehicle, being a 14.5m articulated vehicle, can enter and exit the site in a forward gear. The delivery vehicle can also enter the dedicated loading bay without impacting greatly upon the operations of the site. It is noted that the drive-through will be disrupted while a delivery vehicle reverses into the loading area. To address this, a condition requiring a delivery and garbage collection management plan. The management plan is to list the measures that will be put in place during deliveries and garbage collection times to ensure the safety of customers and staff using the facility. Additionally, the RMS has recommended a condition of consent that obligates the beneficiary of the consent to conduct all loading and unloading activities wholly within the site. A further condition is attached limiting the size of delivery vehicle that is able to enter the site to a 14.5m vehicle.

Council Technical Services Division has not raised any objections to the access arrangements of the delivery vehicle entering and exiting the site onto/from Glenroi Avenue. Technical Services has also indicated that there is sufficient width within the right of carriage way to allow two-way traffic over the right of way onto/from Glenroi Avenue.

As detailed above, the RMS has considered the development in terms of the impacts upon the highway, both directly at the site and the nearest intersection (being the Glenroi Avenue intersection) and has indicated no objections to the development, subject to conditions of consent (detailed under the SEPP (Infrastructure) considerations above), which have been included in the Notice of Approval.

Pedestrian connectivity to the site and circulation within the site are considered to be acceptable, with limited opportunities for pedestrian and vehicle conflicts to occur. The circular painted roundabout in the south-eastern corner of the site will act as a traffic calming device to slow vehicles as they approach the drive-through, and thereby reduce the risk of conflict between a vehicle and customers making their way on foot to or from their car if they were to be parked in those spaces adjacent to the rear boundary.

The pedestrian link from Bathurst Road is located at a point at the end of the drive-through facility, just before the drive-through exit onto Bathurst Road. It is recommended that a pedestrian crossing be installed across the drive-through lane at the point where the pedestrian access links with the Bathurst Road footpath.

From the foregoing assessment, subject to certain conditions being imposed as detailed above, it can be concluded that the development is acceptable in terms of traffic impacts.

Visual Impacts

The development will not present any unsatisfactory visual impacts within the locality. Currently, the building sits toward the rear of the site and the parking is located at the front of the site. The applicant is proposing as part of the development to reverse this current arrangement. This effectively means that the proposed building proper will be positioned in line with, or slightly behind the adjoining Red Rooster building, forward of the adjoining motel development and similar to the setback of the KFC development.

The applicant is also proposing an awning over the drive-through collection point to provide for weather protection. This element will project further in the front setback area and sit in front of the building line of the Red Rooster development.

Council staff wrote to the applicant on this issue requesting the following:

The statement indicates that the setbacks of adjoining development have been achieved. This is not actually correct. The adjoining development to the south east (102 Bathurst Road) has a much larger setback then the setback adopted for the proposed building. It is requested that further consideration be given to increasing the setback of the proposed building.

Council staff forwarded the application to Council’s Heritage Advisor who also is contracted to provide urban design advice. Council’s Heritage Advisor also identified similar issues in relation to the siting of the development.

The applicant responded to the above request for additional information with the following additional commentary:

The setback to the adjoining development to the north east (94 Bathurst Road) has been achieved. The proposed set back is considered appropriate as it allows for sufficient car parking and access to the rear of the site. It is also considered that the location of the proposed McDonald’s operation will create unified streetscape with an active frontage. The McDonald’s will provide a high level of architectural design to the Bathurst Road frontage which will enhance the visual character of the city entrance.

Additionally, landscaping proposed on the Bathurst Street setback is of a high standard and, as such enhances the overall amenity of the site, which is considered appropriate for the entry into the City. The proposed landscaping includes a number of plantings, some with a mature height equal to the height of the proposed McDonald’s, further providing visual relief.

Council staff accept the siting of the building. Whilst the building will sit forward of the adjoining developments, Bathurst Road (at least relating to the commercial developments) presents with a varied setback and visual quality to the street. It is noted that there are many examples along Bathurst Road where a minimal setback is provided. These include the premises adjacent to the 7-Eleven occupied by Thermal Air and Asisi Interiors, the adjoining furniture shop, and the D’Aquino’s stores.

The development will present with a high quality architectural aesthetic, with varied materiality and a heavily landscaped front setback area, resulting in a development that sits appropriately within the street.

The loss of the large black spruce is a notable change to the existing visual catchment and streetscape of the area. The application was accompanied by an arborist’s report which recommended the tree’s removal. Council staff initially wrote to the applicant indicating strong opposition to the tree’s removal and cited the tree’s possible links to the former Glenroi House.

The applicant responded with a further report from the consultant arborist indicating that the tree is between 70-80 years old, and based on when Glenroi house was constructed in 1876 the tree is likely to have been planted a minimum of 62 years after the construction of Glenroi House. The arborist concludes that it would be beneficial to remove the subject tree.

It is noted that the land is not identified as a heritage item, nor is the land within a heritage conservation area. Additionally, the subject tree is not identified on any significant tree register. Whilst the subject tree contributes to the tree canopy of Orange and the streetscape of Bathurst Road in general Council has limited protection over the tree’s removal.

Noise Impacts

An acoustic report has been submitted in support of the development which concludes that the development is acceptable in terms of noise impacts provided certain works are undertaken as part of the development, including a 1.8m high noise barrier fence along the south-eastern and south-western boundaries, a 2.8m solid barrier around the perimeter of the loading bay (excluding the access to the loading bay) and screening around the roof mounted mechanical plant.

As part of the internal referral process, Council’s Technical Services Division attached a condition that required an existing overland flowpath that extends from the adjoining Ophir Tavern and enters the McDonald’s land at the rear boundary to be maintained and to be unimpeded. This requirement was in conflict with the recommendations of the acoustic report that required a noise barrier along the subject boundary.

Council staff raised this issue with the applicant to address. The applicant responded with advice from their acoustic consultant as follows:

Muller Acoustic Consulting Pty Ltd (MAC) has updated the historic 3D noise model for the McDonald’s Operation Redevelopment, 100 Bathurst Road, Orange NSW. The update incorporated proposed modifications to a portion of the south western boundary fence required for water drainage. Revised modelling incorporating the changes to the fence identified that operational noise emissions from the project satisfied relevant criteria at all assessed receivers.

Noise impacts have been accounted for during the construction phase of the development, with the recommendations including such measures as the installation of temporary hoarding as a noise barrier, limiting over-reving of plant, toolbox and induction of personnel on noise reduction techniques and letter box drops.

Council’s Environmental Health and Building Surveyor has reviewed the amended submitted material in relation to noise and advised of no objections subject to a number of conditions. The relevant noise conditions include a requirement to implement the measures identified in the submitted noise report, the preparation of an operational management plan and a post-occupation (three months after occupation) commissioning report.

From the foregoing assessment it can be concluded that the development is satisfactory in terms of noise impacts.

Residential Amenity

As mentioned above, there are residential properties opposite the subject land and residential properties behind the Ophir Tavern. The amenity of residential properties within the locality will be maintained to acceptable levels. The development will not give rise to any overshadowing, visual bulk impacts, noise impacts etc. The development is considered acceptable in this regard.

Safety, Security and Crime Prevention

A detailed plan of management (PoM) has been submitted in support of the development application which outlines Crime Prevention Through Environmental Design principles. The PoM outlines such things as CCTV, intruder alarm, lighting, restricted areas, hold-up procedure and managing theft and incidents of weapons being brought onto the premises. A condition is attached that requires the development to be carried out in accordance with the PoM.

Environmental Impacts

The subject land is a highly disturbed urban parcel of land, and as such comprises no significant native vegetation. Accordingly, the development is not likely to impact upon any endangered ecological communities, endangered species or their habitat. The development is considered satisfactory in terms of environmental impacts.

Odour

The applicant has submitted a detailed odour assessment in support of the development application. Council’s Environmental Health and Building Surveyor has reviewed the odour assessment and concluded that the proposed development will have a diminution in terms of odour given the newer and more modern equipment, coupled with the enclosed waste area proposed which is considered an improvement on the current situation.

The principle recommendations outlined within the odour assessment have been carried over in the submitted Plan of Management. A condition is attached that requires the development to be carried out in accordance with the Plan of Management.

Waste Management

A detailed Waste Management Plan has been submitted with the application in relation to the demolition of the building.

Waste generated by the operations of the development will be manages via a dedicated corral area which links directly with the loading area - meaning that garbage collection vehicles will be able to enter the site in a forward gear, collect the waste from the corral area and then leave the site in a forward gear.

The arrangements for waste management generated by the development are considered acceptable.

The applicant has submitted a Plan of Management which deals with the management of litter. There is also a specific Waste Management Plan that deals with litter management in a holistic way, including education, packaging and daily litter patrols. The applicant’s proposed management of litter is considered satisfactory. A condition is imposed that obligates the beneficiary of the consent to operate the development in accordance with the Plan of Management and the Waste Management Plan.

Staging of Development

The demolition and construction of the development is proposed in a staged arrangement such that the existing restaurant can continue to operate whilst the proposed new building is being constructed.

The submitted staging plan outlines the staging as follows:

· Stage 1 - demolition of playland, party room, terrace and front car park. Existing building and drive-through operational.

· Stage 2 - construct new building. Existing building and drive-through operational.

· Stage 3 - demolish old building and drive-through. New building and drive-through operational.

· Stage 4 - construction of new car park. New building and drive-through operational.

· Stage 5a - construct final part of car park. New building and drive-through operational.

· Stage 5b - construct final elements of drive-through. New building operational, drive-through closed.

The proposed staged arrangement of the construction phase and the phased decommissioning of the existing restaurant have the potential to give rise to impacts within the locality by way of traffic, parking, loading/unloading etc, leading to general nuisance and some degree of inconvenience in the locality. Accordingly, it is crucial to limit the extent of trading during this period such that unsatisfactory impacts do not occur, acknowledging the fact that these will be limited short-term impacts only, being the time taken to construct the development.

As such, a condition is attached that prevents customer access internally within the existing building, limiting the extent of trade to the drive-through facility only. The reason for this restriction is due to the fact that the onsite parking will be significantly reduced at this point, limited to the six spaces in the south-eastern corner of the site.

Under Stages 3, 4 and 5A a condition is attached that limits the trade of the development to the new drive-through only and prohibits customers from entering the restaurant. This is due to the fact that not all of the requisite parking will be provided at these stages and issues around pedestrian safety on an active construction site. There are no objections to the restaurant being fully operational under stage 5B.

A further condition is attached that requires a detailed construction management plan to be prepared for development that outlines such measures as staff parking, directional signage, signage indicating drive-through only, loading and unloading for both the restaurant and the construction site, safety measures for staff using the facility etc.

The RMS has not objected to the proposed staging of the development, nor have Council’s Technical Services Division or Council’s Environmental Health and Building Surveyor.

The staging and the use of buildings will be dependent on the Principle Certifying Authority issuing Occupation Certificates at the relevant times.

Cumulative Impacts

Cumulative impacts of a development can arise under four typical scenarios, namely:

· time crowded effects where individual impacts occur so close in time that the initial impact is not dispersed before the proceeding occurs

· space crowded where impacts are felt because they occur so close in space they have a tendency to overlap

· nibbling effects occur where small, often minor impacts act together to erode the environmental condition of a locality and

· synergistic effects, where a mix of heterogeneous impacts interact such that the combined impacts are greater than the sum of the separate effects.

The construction phase of the development could potentially create one or more of the above scenarios, however appropriate conditions are attached to ensure that the development occurs in a satisfactory manner, such as the construction management plan and the requirements around noise.

The development, once operational, is not expected to result in any of the above scenarios that would lead to unsatisfactory environmental impacts. This is due to the design, operation and relevant conditions of consent.

The development is considered acceptable in terms of cumulative impacts.

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

The site is considered suitable for the proposed development. The site will continue to be used for commercial purposes, commensurate with the current and longstanding use of the land.

Council staff are not aware of site being affected by any physical, natural or technological hazards that may constrain the development from occurring in a satisfactory manner.

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

Submission 1 – resident of 87 Bathurst Road

The submission raises concerns in relation to noise and lighting impacts during both construction phase and then the ongoing operation of the development, and raises the following questions:

1 How will after hours noise be managed during construction?

2 How will noise be managed on weekends and public holiday?

3 How will lighting from the restaurant be managed?

4 How will the drive-through noise (in particular the speaker used to communicate the drive-through order) be managed?

Council staff response

To respond to the submission the following is provided;

In response to questions 1 and 2, Council’s standard condition is attached to the Notice of Approval outlining the times of the day (including requirements for Sundays and public holidays) during which construction or demolition works can occur. Working outside of these times would be a breach of the consent and Council could take regulatory action against the developer.

In response to question 3, a condition is attached that requires all external lighting to be designed and installed in a manner whereby it is consistent with AS 4282-1997 Control of the obtrusive effects of outdoor lighting.

In response to the final question relating to noise, and in particular the noise associated with the ordering point of the drive-through facility; an acoustic report has been submitted in support of the development which found that the development is satisfactory in relation to noise. The report has been reviewed by Council’s Environmental Health and Building Surveyor who has determined that the development is satisfactory. Recommended conditions are attached to the Notice of Determination.

Submission 2 – resident of 10 Garden Street

The submission raises concerns in relation to the following:

· traffic congestion within Glenroi Avenue and the Highway;

· truck movements and delivery times;

· the proposed 24 hour operation;

· the kids play ground in terms of noise and light spill;

· the landscape scheme is not sufficient for the development; and

· waste management.

Council staff response

In response to the submission from the resident of 10 Garden Street the following is provided:

· The traffic arrangements have been examined in detail by both the RMS and Council’s Technical Services Division, and subject to certain conditions of consent the development is deemed acceptable in relation to traffic.

· Truck movements and deliveries and garbage collection will need to occur outside of peak periods, but also at times that will not cause a noise impact. As such, a condition is attached that requires the applicant to prepare and then implement a Plan of Management that, inter alia, provides measures to mitigate noise as a result of deliveries and waste collection.

· The 24 hour operation is effectively a continuation of what occurs at the site currently. The noise assessment has considered the operation of the development and determined that it is acceptable. Council’s Environmental Health and Building Surveyor has not raised any objections to the proposed 24 hour operation.

· In terms of the kids’ playground, the applicant’s acoustic consultant has considered noise associated with the playground and determined that it is acceptable. Council’s Environmental Health and Building Surveyor has not raised any objections to the proposed playground. In terms of light spill, a condition is attached that requires all external light to be in accordance with the relevant Australian Standard.

· A detailed landscape plan has been submitted in support of the development and provides for seven large trees at the front of the site as well as dense hedging and groundcovers. The submitted landscape plan is considered to be satisfactory.

· In terms of waste management (and specifically litter management), the applicant has submitted a Plan of Management as well as a Waste Management Plan, both of which address litter management. A condition is imposed that obligates the beneficiary of the consent to implement the measures contained in those plans in perpetuity.

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.

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, D18/64569

2 Plans, D18/64182

3 Submissions, D18/64183

Planning and Development Committee 4 December 2018

2.7 Development Application DA 313/2018(1) - 26 Prince Street

RECORD NUMBER: 2018/2819

AUTHOR: Ella Wilkinson, Senior Planner

EXECUTIVE Summary

Application lodged	6 September 2018
Applicant	Straney Building Design
Owners	Mr RP and Mrs AM Straney
Land description	Lot 1 Sec 33 DP 155632 - 26 Prince Street, Orange
Proposed land use	Demolition (existing dwelling, ancillary structures and vegetation), Subdivision (two lot residential) and Dwelling Houses (construction of two new dwelling houses)
Value of proposed development	$420,000

Council's consent is sought for the demolition of the existing dwelling, ancillary structures and all vegetation to facilitate a two lot subdivision and development of two, three bedroom dwellings on Lot 1 DP155632 - 26 Prince Street, Orange, one on each of the proposed lot. The subject site is situated on the north eastern corner of the Central Orange Heritage Conservation Area. This is an established urban area within the Orange Local Government Area, and the site is an established residential site with an existing dwelling.

The proposal requests consent to stage the development as follows:

Stage 1:

· demolition of existing dwelling, garages and ancillary structures

· removal (demolition) of all vegetation within the site

· subdivision to create two separate lots.

Stage 2:

· construction of a new dwelling on each of the proposed Lots 1 and 2.

The subject land is located in the Central Heritage Conservation Area, and accordingly Council’s Infill Guidelines apply to the assessment of the dwelling. This development involves the replacement of an older style house, albeit not of very high quality, with a newer style of development that will stand out in the streetscape due to its contemporary nature. The proposal was referred to Council’s Heritage Adviser who has made various recommendations in regard to materials and finishes of the proposed Dwellings, to ensure the proposal integrates with the existing heritage streetscape that surrounds the subject site.

However, whilst the proposal has incorporated many of the recommendations of Council’s Heritage Adviser to ensure the proposal is sympathetic to the area, it will be noticeably contemporary in comparison to the existing dwellings within Prince and Sampson Streets. A critical part of the rationale behind the staff approval recommendation is the premise that whilst the proposal is located within a Heritage Conservation Area, it is on the periphery of the Heritage Conservation Area.

The peripheral parts of the Heritage Conservation Areas are generally more tolerant to newer, more contemporary development styles. In addition, the heritage value of this particular precinct needs to be acknowledged as being of a lower level of significance, as detailed in the proceeding sections of the report. Further, the proposed subdivision pattern is not dissimilar to the existing subdivision pattern that is currently established in surrounding sites. Council has previously adopted this rationale in the assessment of 108 Hill Street.

Finally, conditions of consent have been included to protect the health of an existing street tree located to the east of the subject site. Minor amendments in regard to the driveway layout of Dwelling 2 and landscaping of Dwelling 1 and Dwelling 2 have been recommended as a result of the protection of the street tree.

It is therefore recommended that the application be approved, subject to the conditions as outlined in the conditions of consent.

Figure 1 - locality plan

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

DIRECTOR’S COMMENT

This Development Application involves demolition of a cottage in the Heritage area, albeit not a heritage item or a valuable asset to the Heritage area, to enable to the construction of a modern two villa complex. The DA is brought to Council as a precedent may lead from this determination.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to consent to development application DA 313/2018(1) for Demolition (existing dwelling, ancillary structures and vegetation), Subdivision (two lot residential) and Dwelling Houses (construction of two new dwelling houses) at Lot 1 Sec 33 DP 155632 – 26 Prince Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

Council's consent is sought for the demolition of the existing dwelling, ancillary structures and vegetation on the subject site. The proposal outlines the intent to subdivide the subject site into two separate lots and develop a three bedroom dwelling on each of the resultant lots. The subject land is described as Lot 1 DP155632 -26 Prince Street, Orange.

THE PROPOSAL

The proposal requests consent to stage the development as follows:

Stage 1:

· demolition of existing dwelling, garages and ancillary structures

· removal (demolition) of all vegetation within the site

· subdivision to create two separate lots of the sizes identified in Table 1 (on the following page).

Stage 2:

· construction of a new dwelling on each of the proposed Lots 1 and 2. The size of each dwelling is identified in Table 1.

Proposed Lot	Area m²subject to survey	Purpose	Area m²of proposed Dwelling
1	383.5m²	Development site for proposed Dwelling 1	161.8m²
2	343.7m²	Development site for proposed Dwelling 2	171.8m²

Each dwelling will comprise:

· three bedrooms with ensuite to main

· open plan kitchen/dining/living room

· main bathroom

· separate laundry

· attached double garage.

Both dwellings are proposed to be provided private open space accessible from the proposed open plan kitchen/dining/living rooms.

The proposal outlines that the external finishes of the proposed dwellings will comprise:

· face brick walls in ‘Namoi Valley’ silver grey colour

· Colorbond custom orb roof sheeting in shale grey

· powder coated aluminium window frames in colour surf mist

· powder coated steel garage doors (panel lift style with highlight glazing) in shale grey colour.

As 26 Prince Street retains a corner lot, proposed Lot 1 is intended to obtain vehicle access via Prince Street at its north-western corner (being the location of the existing access that serves the subject land currently). Proposed Lot 2 is intended to obtain vehicle access via Sampson Street at its south-eastern corner and will require construction.

Finally, the proposal outlines the intent to:

· construct a new fence along the front yards of both dwellings with frontages to Sampson and Prince Street, which will comprise timber posts and rails with woven wire infill panels

· construct a new timber paling fence along the Sampson Street frontage of the private open space for Dwelling 1

· retain the existing Colorbond fence along the southern and western boundaries (if possible). If this is not possible, the relevant sections of the fence will be replaced with 1.8m high Colorbond in an appropriate tone.

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 4.15

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

The application is considered to be broadly consistent with these aims. Specific information relating to the aims outlined above are discussed in the proceeding document.

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 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 is defined as a “dwelling house” under the parent term “residential accommodation” under OLEP 2011. Both uses are permitted with consent for this zone and this application is seeking consent.

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

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.

In relation to the first objective, the proposed development would act to provide additional housing stock within the City.

In relation to the second objective, the proposed dwellings will provide a variation of housing type and density for the City.

In relation to the third objective, the proposed development has no effect.

In relation to the fourth objective, the subject site is within close proximity to routes used by public transport and is also in close proximity to shops and services.

In relation to the last objective, the proposed development has no effect.

The proposed development is not inconsistent with the objectives of the zone.

Clause 2.6 - Subdivision - Consent Requirements

Application has been made for the subdivision of the subject land. Clause 2.6 of Orange LEP 2011 permits the subdivision of the subject land only with development consent.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work. This requirement does not apply to any demolition that is defined as exempt development.

Clause 2.7 - Demolition Requires Development Consent (cont)

The proposal involves demolition and the applicant is seeking the consent of Council. The demolition works proposed will have no significant impact on adjoining lands, streetscape or public realm. Conditions have been imposed in respect of hours of operation, dust suppression and the need to investigate for, and appropriate manage the presence of, any materials containing asbestos.

Part 3 - Exempt and Complying Development

The application is not exempt or Complying Development.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size

This clause requires the subdivision of land to be equal to or greater than the size nominated for the land under the Minimum Lot Size Map. There is no minimum lot size applied to the site.

Part 5 – Miscellaneous Provisions

5.10 - Heritage Conservation

Note: Heritage items (if any) are listed and described in Schedule 5. Heritage Conservation Areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(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 provisions of this clause are relevant to the proposal as development consent is required for demolishing or moving a building, work, relic or tree within a Heritage Conservation Area. The proposal is located within an identified Heritage Conservation Area.

(4) Effect of Proposed Development on Heritage Significance

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

The requirements of Subclause (4) were taken into consideration during the assessment of this proposal and the request for demolition in a Heritage Conservation Area. It was considered that peripheral parts of the Heritage Conservation Areas are generally more tolerant to newer, more contemporary development styles. In this case, whilst the proposal is located within a Heritage Conservation Area, it is on the periphery of the Heritage Conservation Area. Development immediately surrounding the subject site is not characterised by heritage items of significance which would be unduly impacted by the proposal. Further, the proposed subdivision pattern is not dissimilar to the existing subdivision pattern that is currently established in surrounding sites.

A formal referral was provided to Council’s Heritage Adviser, who was requested to provide any comments or recommendations in relation to the proposal. The Heritage Adviser confirmed that demolition is acceptable in this case as the existing building retains no significance that would warrant the retention of the building.

However, the location of the proposal within an existing Heritage Conservation Area requires that future development be in keeping with the existing streetscape and character of the surrounding neighbourhood. The heritage referral outlined that the proposed hipped forms and brick walls of the proposed dwellings were sympathetic to and appropriate for addressing and integrating with the existing character of the Heritage Conservation Area.

The setbacks proposed on the corner block, while slightly more forward of other surrounding dwellings, were considered acceptable as they were proposed to step back from the corner. This is particularly in the case of the attached garage, which on both dwellings are designed to have a greater setback then the proposed living areas of the dwelling. However, Council’s Heritage Officer did make the following comments in relation to the proposed design of the dwellings, requesting the following recommendations to achieve better integration with the associated fabric, settings and views of the Heritage Conservation Area:

· provide an extra window with traditional awning on the east elevation of Dwelling 1, to further develop this elevation presenting to the street and interpret the prominence of the corner dwelling

· provide a base on both dwellings in black or dark grey brick (to interpret basalt) provide articulation and integration to the existing streetscape

· install timber windows on the north elevation of Dwelling 1 and the east elevation of Dwelling 2 to improve presentation to the Heritage Conservation Area and existing streetscape

· construct Dwelling 1 with a lighter brick and lighter roof than Dwelling 2 to achieve separation and articulation between the two dwellings

· match the fence post colour (including posts of the woven wire fence and paling fence) to the verandah posts of both Dwelling 1 and Dwelling 2

· provide traditional rolled flashings and smooth quad gutters and circular downpipes on both Dwelling 1 and Dwelling 2.

Further discussion in relation to these aspects are outlined in the “Provisions of any Development Control Plan S4.15(1)(A)(Iii)” section of this report.

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 dwellings. The extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways.

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

The site is not known to be contaminated, nor is the site known to contain any Aboriginal, European or Archaeological relics. Previous known uses of the site do not suggest that any relics are likely to be uncovered. However, conditions are imposed to ensure that should site works uncover a potential relic or artefact, works will be halted to enable proper investigation by relevant authorities and the proponent required to seek relevant permits to either destroy or relocate the findings.

The earthworks will be appropriately supported onsite and the change in ground level is not substantial. Therefore the effect on the amenity of adjoining properties is considered to be minor.

The site is not in proximity to any waterway, drinking water catchment or sensitive area. Conditions are imposed that require sediment control measures to be implemented on-site prior to works commencing. Such measures must ensure loose dirt and sediment does not escape the site boundaries.

7.2 - Flood Planning

The provisions of clause 7.2 Flood Planning are not relevant to this proposal.

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 rainwater tanks included as part of the proposal for both dwellings (western elevation for Dwelling 1 and southern elevation for Dwelling 2). It is therefore considered that the post development runoff levels will not exceed the predevelopment levels.

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.

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 this clause, all utility services are available to the land and adequate for the proposal.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy (Building Sustainability Index BASIX)

State Environmental Planning Policy (Building Sustainability Index BASIX) applies to the subject development. The applicant has submitted a BASIX certificate in support of the development which demonstrates compliance with the state Government Water and Thermal efficiency targets. The application is consistent with the SEPP.

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 applies to the subject development as the proposal requests consent to remove the site of all existing vegetation. Part 3 applies to vegetation in any non-rural area of the State that is declared by a development control plan to be vegetation that Council can issue a permit to a landholder to be cleared. Clause 26 of the SEPP (Vegetation in Non-Rural Areas) 2017 outlines that a development control plan (DCP) that is in force on the commencement of this Policy can establish the process, such as requiring a permit or development consent, for the clearing of vegetation.

Chapter 0 Transitional Provisions of the Orange DCP 2004 (the DCP) prescribes the kinds of trees and other vegetation that are subject to Clause 10 of the SEPP (Vegetation in Non‑Rural Areas) 2017. The subject site contains no trees of a size or species that would trigger the requirements outlined in these provisions. The plantings are all shrubs and hedges, with an average height of between 1-1.8m. It is considered that the vegetation that forms part of the request for removal is not identified by these provisions and therefore the requirements of the SEPP (Vegetation in Non-Rural Areas) 2017 have been met and the proposal is consistent with the provisions as outlined in the Policy and the DCP.

Notwithstanding, two established street trees are located to the east of the subject site, lining Sampson Street (see Figure 2). A referral was made to Council’s Manager City Presentation. The response indicated that the proposed dual car driveway for Dwelling 2 would be a major encroachment within the Tree Protection Zone, and close to the edge of the Structural Root Zone, of the southern street tree, closest to the proposed driveway for Dwelling 2.

The proposed building is setback 900mm from the southern boundary. Presuming that the south-eastern corner pillar of the garage is approximately 350mm, the southern edge of the concrete driveway is approximately 1250mm from the southern boundary. The double driveway, which is close to 6m in width, would put the northern edge of the driveway within approximately 3300mm from the centre of the southern Box Elder (Acer negundo). The referral indicated that subject tree is sound health with some minor deadwood and would be expected to have 20+ safe useful life expectancy (SULE) should the conditions surrounding the tree not be altered.

The tree has a Structural Root Zone (SRZ) of 2.98m and a Tree Protection Zone (Zone above and below ground and at given distance from the trunk set aside for the protection of the trees root and crown to provide viability and stability of a tree). When soil disturbance, the ‘encroachment’, (excavation, fill, trenching) is greater than 10% of the TPZ or inside the SRZ there is cause for concern about the future vigour and stability of a tree.

Therefore, the proposed dual car driveway is considered a major encroachment within the TPZ and is close to the edge of the SRZ. As such, a project arborist would be required to demonstrate that the tree will remain viable or the proposed driveway be redesigned to be constructed with less than a 10% encroachment into the TPZ.

Following the receipt of this referral, an option to reduce the width of the driveway for Dwelling 2, from the proposed approximate 6m to a width of no more than 3m leading to the double car garage, was proposed to Council’s Technical Services Division. The Technical Services Division raised no objection to the reduction to a 3m width of the vehicle crossover located within the road reserve for Dwelling 2. There was also no objection to maintaining the proposed double car garage for Dwelling 2.

Therefore, to maintain the health of the southern street tree located on the frontage of Sampson Street to the east of the subject site, a condition of consent has been included requiring the proposed site plan be amended prior to the issuing of a Construction Certificate, to amend to the width of the driveway to 3m wide within the road reserve and located 1250mm off the southern boundary. The amended plan is to be submitted to the Manager Development Services for approval.

Further, a condition requiring the protection of the street trees in line with AS4970-2009 Protection of trees on development sites Section 4-4.3 Protective Fencing and works, has been included to further maintain the health of the trees during demolition and construction.

State Environmental Planning Policy (Infrastructure) 2007

The provisions of State Environmental Planning Policy (Infrastructure) 2007 apply to the proposal as the development application involves development carried out within 5m of an exposed overhead electricity power line.

As per the requirements of the SEPP (Infrastructure) 2007, the proposal was referred to Essential Energy inviting any comments about potential safety risks. Essential Energy raised no comments in relation to potential safety risks arising from the proposed development.

The following comments were made generally in regard to the proposal and have been included in the “Other Approvals” section of the consent:

· As part of the subdivision, an easement/s are/is created for any existing electrical infrastructure. The easement/s is/are to be created using Essential Energy’s standard easement terms current at the time of registration of the plan of subdivision.

· If the proposed development changes, there may be potential safety risks and it is recommended that Essential Energy is consulted for further comment.

· Any existing encumbrances in favour of Essential Energy (or its predecessors) noted on the title of the above property should be complied with.

· Council should ensure that a Notification of Arrangement (confirming satisfactory arrangements have been made for the provision of power) is issued by Essential Energy with respect to all proposed lots which will form part of the subdivision, prior to Council releasing the Subdivision Certificate. It is the Applicant’s responsibility to make the appropriate application with Essential Energy for the supply of electricity to the subdivision, which may include the payment of fees and contributions.

· In addition, Essential Energy’s records indicate there is electricity infrastructure located within the property. Any activities within this location must be undertaken in accordance with the latest industry guideline currently known as ISSC 20 Guideline for the Management of Activities within Electricity Easements and Close to Infrastructure.

· Prior to carrying out any works, a “Dial Before You Dig” enquiry should be undertaken in accordance with the requirements of Part 5E (Protection of Underground Electricity Power Lines) of the Electricity Supply Act 1995 (NSW).

· Given there is electricity infrastructure in the area, it is the responsibility of the person/s completing any works around powerlines to understand their safety responsibilities. SafeWork NSW (www.safework.nsw.gov.au) has publications that provide guidance when working close to electricity infrastructure. These include the Code of Practice – Work near Overhead Power Lines and Code of Practice – Work near Underground Assets.

General conditions have been included by Council’s Engineering Officer in the consent that require the applicant to acquire a Notice of Arrangement from Essential Energy stating arrangements have been made for the provision of electricity supply to the development and submitted to the Principal Certifying Authority prior to the issue of a Subdivision Certificate. Therefore, it is considered that the provisions of the SEPP (Infrastructure) 2007 have been addressed.

State Environmental Planning Policy 55 - Remediation of Land

State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) is applicable. Pursuant to Clause 7 Contamination and remediation to be considered in determining development application:

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

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

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

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

Assessing the requirements outlined above, it is considered that the subject site is highly unlikely to be contaminated. The site is an existing residential property in an established urban area in an existing Heritage Conservation Area. Residential dwellings are not a use that is identified in Table 1 of Managing Land Contamination Planning Guidelines SEPP 55 – Remediation of Land.

In January 2018, the Department of Planning and Environment released an Explanation of Intended Effect and draft Guidelines outlining the intent to review SEPP 55. The draft Guidelines state that when undertaking an initial evaluation of contamination, a planning authority should consider whether there is any known or potential contamination on nearby or neighbouring properties, or in nearby groundwater, and whether that contamination needs to be considered in the assessment and decision making process.

There are no properties surrounding the site that are identified as potentially contaminated on Council’s contamination register. The closest potentially contaminated site is just over 500m to the south east of the subject site (see Figure 3). As outlined in Figure 3, the site itself is also not identified as being potentially contaminated and no identified site immediately adjoins the subject site.

Figure 3 – proximity to contaminated lands of the subject site

(red star denotes location of subject site)

As a result, potential for contamination from the site history is considered to be very low and the site is considered to be suitable for the proposed use. No further preliminary investigation is required to satisfy the requirements of SEPP 55, the draft Explanation of Intended Effect or the draft Guidelines.

However, as a precautionary measure a condition has been imposed that any unexpected finds during works such as (but not limited to) the presence of undocumented waste, odorous or stained soil, asbestos, structures such as underground storage tanks, slabs, or any contaminated or suspect material, all work onsite must cease immediately. The beneficiary of the consent must discuss with Council the appropriate process that should be followed therein. Works on site must not resume unless the express permission of the Director Development Services is obtained in writing.

Finally, the site is identified as having low asbestos potential on Council’s mapping. A condition of consent has been included requiring the removal of asbestos containing materials in accordance with the provisions of Work Health and Safety Act 2011.

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 (Part 0 - LEP 2011 and Part - 7 Development in Residential Areas). An assessment of the proposed development against the relevant Planning Outcomes will be undertaken below.

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

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

The corresponding zone to zone 2(a) Urban Residential (Orange LEP 2000) is zone R1 General Residential (Orange LEP 2011). As such, Orange DCP 2004-07 - Development in Residential Areas is relevant to this proposal. The provisions of Part 7 are considered below. The nature of the development also has relevancy to Chapter 0 - Transitional Provisions and Chapter 15 - Car Parking.

PART 7 - DESIGN ELEMENTS FOR RESIDENTIAL DEVELOPMENT

The DCP sets the following Planning Outcomes in regard to Urban Residential Development.

Residential Design Objectives

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

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

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

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

· To encourage visually appealing cohesive streetscapes.

· To create a safe and secure environment.

· To provide consistent design elements that protect private investment.

As mentioned under “5.10 Heritage conservation” section of this report, the subject site is located within the bounds of the Central Orange Heritage Conservation Area. This Heritage Conservation Area concludes at Prince Street, with properties on the northern side of Prince Street and to the north of the subject site not included within the Heritage Conservation Area (see Figure 4).

Council’s DCP 2004 (the DCP) outlines that, throughout this Heritage Conservation Area, residential areas are characterised by a spread of Victorian buildings and many buildings from the turn of the Century with late-Victorian and Edwardian features. Some significant Federation-style houses exist, a high proportion of which are located on corner blocks. The Bungalow style gradually became dominant over the next decade and bungalows of the twenties and thirties make up a major element in the housing stock of this area. Despite the mix of architectural styles, there are common design features that have been utilised across the housing stock of the Orange Central Heritage Conservation Area. These features include “buff brown or oatmeal brick” and use of corrugated iron roofs and the inclusion of a front-verandah. It is also noted that a number of dwellings retain the original style in regard to front fences and gardens, reinforcing the identity of the periods.

In consideration of the Residential Design Objectives as well as the description of the Heritage Conservation Area above, it is considered that the development is not antipathetic to the relevant objectives of this section of the DCP. However, some recommendations have been made to improve the design to assist the development to better integrate with the surrounding Heritage Conservation Area. These elements have been discussed in the following sections of this report.

Figure 4 – location of subject site within the Heritage Conservation Area

(red outline and hashing denotes Heritage Conservation Area)

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.

In considering the above planning outcomes against the proposed development, the following comments are made:

· The layout of the site has been designed to ensure the proposed dwellings are sympathetic to the role each dwelling plays on a corner lot in a Heritage Conservation Area. Both dwellings have been designed to have frontage and appropriate presentation to the streetscape, with Dwelling 1 fronting Prince Street and Dwelling 2 fronting Sampson Street.

· The proposed subdivision pattern is not dissimilar to the subdivision pattern reflected in surrounding subdivision patterns. The properties adjoining each corner of Prince and Sampson Streets at this locality all currently present to the street in a similar subdivision pattern to that proposed by this development (Figure 5).

· The driveways and proposed garages are setback appropriately from the road, with the attached Dwelling 1 garage situated 6.52m from Prince Street and the attached Dwelling 2 garage situated 5.81m from Sampson Street. In comparison, the front of the habitable section of Dwelling 1 is situated 4.9m from Prince Street, and the front of the habitable section of Dwelling 2 is situated 4.51m from Sampson Street. This provides a variation in setback from the streetscape and ensures the garage does not present directly to the street, which is in keeping with other surrounding development (see Figures 6, 7 and 8).

· The design of the buildings in regard to neighbourhood character is discussed in detail throughout later sections of this report.

· The proposed additional driveway, which will be developed over the existing footpath, will amend the existing pedestrian access. However, the residential location of the proposal and the relatively low density proposed on the site in relation to Dwelling 2, will not result in a major impact on the pedestrian access. Further discussion in relation to this driveway is discussed in greater detail in proceeding sections of this report.

Figure 6 – example of adjoining subdivision pattern in the immediate locality of the subject site

Figure 6 – example of attached garage at adjoining property located at 24 Prince Street

Figure 7 – example of attached garage at property located at 108 Sampson Street

Figure 8 – example of attached garage at property located at 107 Sampson Street

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.

Due to the location of the proposal in an identified Heritage Conservation Area, the proposal was referred to Council’s Heritage Adviser. The Heritage referral outlined that the proposed hipped forms and brick walls of the proposed dwellings were sympathetic to and appropriate for addressing and integrating with the existing character of the Heritage Conservation Area. The setbacks proposed on the corner block, while slightly more forward of other surrounding dwellings, were considered acceptable as they were proposed to step back from the corner. This is particularly so in the case of the attached garage, which on both dwellings are designed to have a greater setback then the proposed living areas of the dwelling. However, Council’s Heritage Officer did make the following comments in relation to the proposed design of the dwellings, requesting the following recommendations to achieve better integration with the associated fabric, settings and views of the Heritage Conservation Area:

· Provide an extra window with traditional awning on the east elevation of Dwelling 1, to further develop this elevation presenting to the street and interpret the prominence of the corner dwelling.

· Provide a base on both dwellings in black or dark grey brick (to interpret basalt) to provide articulation and integration of the building to the existing streetscape.

· Install timber windows on the north elevation of Dwelling 1 and the east elevation of Dwelling 2 to improve presentation to the Heritage Conservation Area and existing streetscape.

· Construct Dwelling 1 with a lighter brick and lighter roof than Dwelling 2 to achieve separation and articulation between the two dwellings. It is suggested that Dwelling 1 be constructed from the proposed Namoi Silver Grey (see Figure 9) and Dwelling 2 be constructed from Namoi Federation Blue (see Figure 10).

· Match the fence post colour (including posts of the woven wire fence and paling fence) to the verandah posts of both Dwelling 1 and Dwelling 2.

· Provide traditional rolled flashings and smooth quad gutters and circular downpipes on both Dwelling 1 and Dwelling 2.

Figure 9 – Namoi Silver Grey Brick (proposed Dwelling 1 material)

Figure 10 – Namoi Federation Blue Brick (requested Dwelling 2 material)

All requests are considered appropriate, except for the request to include an additional window with traditional awning on the east elevation of Dwelling 1. The inclusion of an additional window on the eastern elevation would have an undue impact on the amenity of the master bedroom of Dwelling 1. The 1.98cm setback from the boundary of the lot would mean that an additional window on this elevation would cause the proposed bedroom to project unnecessarily onto the streetscape along Sampson Street, and impact on the privacy of the dwelling.

Whilst the comments from the Heritage Adviser are accepted in regard to interpreting the prominence of the dwelling to the corner lot, it is considered the impact of an additional window to the amenity of the dwelling, as well as to the existing footpath that runs adjacent to the subject site, outweighs this requirement.

The frontage of Dwelling 1 facing Prince Street provides adequate prominence to the streetscape that is sympathetic to the heritage character of the area. The elevation fronting Sampson Street is a secondary frontage and is not the primary façade. Therefore, in this instance, the inclusion of a second window with traditional awning is not considered appropriate in this instance.

Consideration was given to other options to provide prominence to this wall, which included a vegetation buffer along the wall, or the fence, or a decorative wall treatment to break up the façade of the eastern elevation. In making an appropriate decision in relation to establishing the prominence of the corner dwelling, other precedents set by existing housing stock in close proximity to the dwelling were taken into account. The dwelling directly to the north (111 Sampson Street – see Figure 11) demonstrated a viable option to break up the secondary frontage and also provide additional privacy to occupants of Dwelling 2 when using the private open space.

A vegetation buffer of hedging along the inside of the proposed eastern boundary fence line would reduce the impact of the proposed east elevation, but still provide a prominence to the streetscape. The positive impact resulting from the inclusion of this landscaping treatment in the design in relation to private open space is discussed later in this report, under the sections “Front Fences and Walls” and “Private Open Space”.

Figure 11 – example of a corner block

located at 111 Sampson Street to the north of the subject site

In relation to the wider recommendations regarding the proposed heritage sympathetic details and finishes of the proposed dwellings, the combination of the external finishes are considered appropriate in this neighbourhood. The requirement for a contrast in brick materials between the two dwellings provides a sense of separation and independence between Dwelling 1 and 2, despite the close proximity of the dwellings.

This is particularly important given both dwellings are to be subdivided and maintained as separate dwellings and is more in keeping with the surrounding built form for separate dwelling houses. The inclusion of a varied base along the facade, that interprets the basalt heritage of Orange, as well as the timber windows on the north elevation of Dwelling 1 and the eastern elevation of Dwelling 2, will complement existing dwellings constructed in this locality. Finally, smaller details in relation to matching the colour of the fence and verandah posts as well as provision of traditional rolled flashings, smooth quad gutters and circular downpipes will assist to integrate the proposed dwellings with the existing built form.

Therefore, conditions have been included that request all recommendations of the Heritage referral, except for the requirement of the additional window and traditional awning.

Landscaping of the frontage of both dwellings is proposed as indicated in the site plan. This is deemed acceptable in relation to the wider heritage streetscape. However, the proposed hedging along the eastern boundary fence line is to be incorporated in an updated landscaping plan, submitted prior to the application of a construction certificate. In addition, the reduction of the proposed driveway for Dwelling 2, to limit this to a maximum of 3m, will require a small amendment to the proposed plantings for Dwelling 2. It can be assumed that as the driveway changes from a single lane (maximum 3m) in the vehicle crossover located within the road reserve to the wider approximately 6m driveway on the site, a sweeping, more fluid layout of the driveway will be the result. Therefore, it is requested that the landscape plan is amended to be updated to incorporate:

· the proposed hedging along the eastern boundary fence line, commencing from behind the building line of Dwelling 1 and concluding at the shared internal fence between Dwelling 1 and Dwelling 2

· the Rhaphiolepis Indica “Snow Maiden” plantings be redesigned to complement the change in driveway width between the 3m width within the road reserve and approximate 6m width proposed onsite.

The updated landscape plan is to be submitted to and approved by Council’s Manager Development Assessments, prior to the issuing of a Construction Certificate.

A further condition will be included requiring that prior to the issuing of an Occupation Certificate, landscaping is to be installed in accordance with the updated approved plan and shall be permanently maintained to the satisfaction of Council’s Manager Development Assessments.

The attached double garages for both Dwelling 1 and 2 will be set back slightly behind the main front dwelling façade, which is satisfactory. The garages will comprise less than 50% of the dwellings’ frontages, in compliance with the DCP requirements. The amended single car driveway (maximum width of 3m) is also considered to be a positive outcome in regard to the heritage streetscape along Sampson Street.

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 been discussed extensively in “5.10 Heritage conservation” and “Building Appearance” sections of this report. As demonstrated, it is considered the proposal addresses the relevant Planning Outcomes outlined above. Therefore, no further assessment is considered necessary.

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.

Guidelines established for the planning outcomes relating to setbacks outline “in established areas (infill) the setback shall be up to the front building line of the residential part of a building on adjoining land”.

The setbacks in relation to the proposed dwellings are slightly forward of the existing building line established by the adjoining residential dwellings to the west of Dwelling 1 and the south of Dwelling 2. Dwelling 1 sits forward between 0.5m (at the garage) and 2m (at the verandah and master bedroom). Dwelling 2 sits behind the existing building line (at the garage) and forward approximately 0.5m (verandah and master bedroom) of the existing building line.

The proposal outlines that strict application of the DCP is considered unreasonable in this case as:

· there is a variety of setbacks seen along Prince Street that are commensurate with the setback of Dwelling 1

· the front setback line of the master bedroom and verandah of Dwelling 2 to the neighbouring 109 Sampson Street is only slightly forward (approximately 0.5m), with the garage set behind the front building line of the neighbouring dwelling

· the 2m setback of Dwelling 1 to Sampson Street is consistent with examples in the existing neighbourhood where a corner dwelling sits within 1-2m of the secondary boundary

· the proposed development achieves activation of Sampson Street by removing the existing Colorbond fence and the construction of Dwelling 2 which faces the street with a landscaped yard and fencing that is sympathetic to the existing heritage character of the area.

The proposal was referred to Council’s Heritage Adviser who outlined that the variations towards the corner, while slightly forward, are appropriate in this instance as they step back to the main dwelling.

It is considered that the proposed development contributes to the desired character by providing a design that is sympathetic to the heritage character of the wider neighbourhood. The proposed design of the buildings, including the materials will integrate the dwellings with the surrounding Heritage Conservation Area. Whilst the setbacks are slightly forward of the building line, efforts have been made to soften the impact of this through landscaping as well as treatments, such as installation of appropriate, heritage sympathetic fencing; window awnings presenting to the street from the main façade; timber windows and more traditional forms of practical infrastructure such as rolled flashings; smooth quad gutters and circular downpipes.

It is considered that the inclusion of these elements will soften the impact of the development to the streetscape and for this reason, the proposed setbacks are appropriate in this instance.

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 installation of a woven wire fence (see Figure 9) is proposed along the frontage of both dwellings. The proposed front fences for both dwellings have a maximum height of 1.4m. Whilst this is not consistent with the guidelines established by the DCP, only the timber post is proposed to be a height of 1.4m, the bulk of the fence, the woven wire section will maintain a height of 1.2m. Therefore, the inconsistency is considered to be minor.

A 1.5m high timber paling fence is proposed along the eastern boundary of proposed Lot 1, which commences at the eastern building line of Dwelling 2 (in line with the master bedroom) and concludes at the shared boundary with Lot 2. The DCP outlines that “side fences on corner lots fronting a street are to have a maximum height of 1.8m behind the front building line of the dwelling” and be “compatible materials used in the locality”. The proposed timber paling fence is compatible with these requirements. The hedging requested above will further provide articulation to the streetscape and privacy to the private open space of Dwelling 1.

The proposal further requests to construct an internal 1.5m fence between Dwellings 1 and 2, which is considered acceptable.

Finally, it is proposed to retain (where possible) the existing Colorbond fence on the southern and western boundaries. If not possible, this will be replaced with 1.8m high Colorbond in appropriate tone.

The above is considered to be acceptable in regard to the proposal. Notwithstanding the acceptance of the overall design, the reduction in the width of the driveway for Dwelling 2 will require an extension of the woven wire fence along the frontage of Dwelling 2, to conclude in line with the reduced driveway. A condition of consent has been included requiring this amendment be incorporated in an updated site plan, submitted prior to the application of a Construction Certificate.

A further condition, requiring all fencing to be provided in line with the approved plans, and requiring replacement of the existing fence, if necessary, has been included at the Occupation Certificate stage.

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 dual occupancy will be single storey, which is consistent with the existing development forms surrounding the subject site.

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. In regard to this planning outcome the following comments are made:

Dwelling 1:

As demonstrated by Figure 12, the roof/gutter on the western elevation slightly overhangs the prescribed visual bulk envelope. However, this is only minor, with the remainder of the dwelling contained within the visual bulk envelope.

Figure 12 – Dwelling 1 visual bulk envelope overhang

(demonstrated within red box) on the western elevation

Dwelling 2:

Similarly in as demonstrated by Figure 13, the roof/gutter on the northern elevation of Dwelling 2 slightly overhangs the prescribed visual bulk envelope. However, the overhang is considered to be minor, with the remainder of the dwelling contained within the visual bulk envelope.

Figure 13 – Dwelling 2 visual bulk envelope overhang

(demonstrated within red box) on the northern elevation

Site Coverage

Dwelling	Footprint	Site Area	Site Coverage
1	161.8m²	383.5m²	42.2%
2	171.8m²	343.7m²	50%

The proposed development is consistent with the 60% site coverage requirement for single dwellings.

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 proposal does not involve the construction of buildings on the boundary. However, as explained in the Daylight and Sunlight section of this report, the proposed dwellings would not unreasonably reduce the amount of daylight that reaches adjoining 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.

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:

Overshadowing of Dwellings

According to the DCP Guidelines and Council’s Energy Efficiency Code, sunlight to at least 75% of north-facing living area windows within the development and on adjoining land is to be provided for a minimum of four hours on 21 June; or not further reduced than existing where already less.

Shadow diagrams prepared to support the proposed development demonstrate that the north facing living room windows of proposed Dwelling 2 achieve the required amount of direct sunlight.

In relation to impacts on neighbouring properties, one north facing window exists on the neighbouring property to the south of the subject site (109 Sampson Street – see Figure 14). The shadow caused by proposed Dwelling 2 extends to the base of the wall of the neighbouring dwelling to the south. The window on the neighbouring property has a sill height of 1.4m. Therefore, overshadowing impacts from the proposed Dwelling 2 will not affect the window.

The private open space of 109 Sampson Street is provided at the rear of the building to the south west. The private open space for this dwelling is accommodated directly behind 24 Prince Street, the site adjoining the subject site to the west. There is an approximate 3.2m setback to the dwelling from the southern boundary of 109 Sampson Street, which accommodates an approximately 23m long driveway. A large majority of the overshadowing impact is absorbed by this driveway. Therefore, as demonstrated by the shadow diagrams provided to support the proposal, Dwelling 2 will cause minor impact to the overshadowing on the private open space of the neighbouring property.

Figure 14 – location of north facing window on neighbouring property (shown in red square)

Overshadowing of Private Open Space

According to the DCP Guidelines and Council’s Energy Smart Homes Code, sunlight is to be available to at least 40% of required open space for dwellings within the development and on neighbouring properties for at least three hours between 9am and 3pm.

Shadow diagrams prepared to support the proposal show the following outcomes in regard to requirement outlined above:

	Dwelling 1	Dwelling 2
10am	41%	38% (Non-Compliant)
11am	46%	57%
12pm	44%	47%
1pm	23% (Non-Compliant)	36% (Non-Compliant)
2pm	Non-Compliant	Non-Compliant

Dwelling 1 achieves adequate amount of sunlight for required open space between the hours of 10am and 12pm. Dwelling 2 achieves adequate amount of sunlight for required open space between 11am and 12pm, however falls fractionally short of the 3 hours of the required duration. There is a shortfall of 0.3m²at 10am. This is considered to be a minor departure from the requirements of the DCP 2004 and is considered to be satisfactory in this instance.

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, however as previously mentioned, is located within a Heritage Conservation Area. The proposed dwellings will not unreasonably diminish views for other properties in the vicinity, and the minor amendments to the design of the dwellings to ensure they remain in keeping with the existing character of the surrounding neighbourhood.

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.

· The proposed 1.8m high fence along the western and southern boundaries will limit the potential for overlooking between properties.

· The finished floor levels of the proposed dwellings remain consistent with existing ground level and are below the DCP guideline of 1.5m above natural ground level.

· There are no principal living room windows in the southern or western walls of Dwelling 2, nearest the respective boundary.

· There are no principal living room windows in the western wall of Dwelling 1.

· A 1.8m high fence exists between the proposed private open space for Dwelling 2 and the existing dwelling to the west.

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 development is not inconsistent with the above objective as detailed below:

· The southern elevation of Dwelling 1 that is set back 900mm from the proposed boundary fence and is occupied by Bedroom 2 and 3 of Dwelling 1, and proposes no windows on this southern elevation. This provides additional privacy to the living areas of Dwelling 2.

· Only one small window is proposed for the ensuite bathroom, which is accommodated on the northern elevation of Dwelling 2, affording privacy to the living areas of Dwelling 1.

· Only one small window is proposed for the ensuite bathroom, which is accommodated on the east elevation of Dwelling 1, affording privacy to the living occupants of Dwelling from Sampson Street.

· The single window accommodated on the southern elevation of Dwelling 2 for Bedroom 3 has a sill height of 0.9m above constructed ground level. The top of the window sits at approximately 2.4m above constructed ground level. The 1.8m Colorbond fence proposed for the southern and western boundary covers approximately 75 per cent of the window. Further, the 3.2m setback on the neighbouring property, coupled with the slightly lower constructed ground levels on the subject site will reduce the overlooking impacts to the neighbouring property to the south.

Acoustic Privacy

The DCP sets the following Planning Outcome in regard to Acoustic Privacy:

· Site layout and building design:

- protect habitable rooms from excessively high levels of external noise

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

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

In consideration of the DCP Guidelines the proposal is considered to be satisfactory. The site is located in an area where ambient noise levels are expected to be low due to the predominant residential land use pattern. The dwellings are detached, thus limiting the potential for sound penetration between them.

Security

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

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

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

The siting and design of both dwellings is appropriate to maintain safety and minimise the potential for crime, vandalism and fear for residents. Habitable room windows will address public roads, 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 and proposed fencing will provide territorial reinforcement.

Site Access and Circulation Objectives

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

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

The development is not inconsistent with the above objectives as detailed below.

Circulation and Design

The DCP sets the following Planning Outcome in regard to Circulation and Design:

· Accessways and parking areas are designed to manage stormwater.

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

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

Dwellings 1 and 2 have direct street frontages to Prince and Sampson Streets respectively. Separate access will be provided to the proposed lots via vehicle crossings and driveways. A new driveway will be developed to provide access to Dwelling 2. The proposed driveways are well separated from the intersection of Prince and Sampson Street. Reverse egress will be required for both dwellings, consistent with vehicle manoeuvring arrangements for single dwellings throughout the City.

Car Parking

The DCP sets the following Planning Outcomes in regard to Car Parking:

· Parking facilities are provided, designed and located to:

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

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

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory. According to the car parking table in the DCP, the development generates a parking requirement of three off-street spaces (based on 1.5 spaces for each three bedroom dwelling).

The submitted plans show provision for four off-street parking spaces for both dwellings in the form of an attached double garage for each dwelling and two tandem spaces in front of the garage of each Dwelling, an excess of two spaces per dwelling.

Notwithstanding the above, the requirement to reduce the vehicle crossover located within the road reserve to a standard single width driveway for Dwelling 2, will impact slightly on the width of the part of the driveway that is situated on the site and can accommodate two tandem car spaces.

Due to the required maximum width of the driveway (3m) and the location of the driveway, 1250mm off the southern boundary, required to maintain the health of the street tree adjacent to the proposed driveway, a small reduction may be required on the site in regard to the amount of space available for car parking, due to the amended design. Notwithstanding, even with a reduction, it can be assumed that the driveway within the lot boundary of Dwelling 2 will still be wide enough to accommodate at least one car in front of the double garage, equating to three spaces provide on the site. This an excess of 1.5 spaces for Dwelling 2. As previously mentioned, Council’s Technical Services Division raised no objection to the proposed single car width driveway within the road reserve, leading to the proposed double car garage. Therefore, the proposed parking arrangements meet the requirements of the DCP 2004 and are therefore considered acceptable.

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 (ex. Garage, porches, patios etc)	Private Open Space Required by DCP	Private Open Space Provided
1	107.9m²	53.95m²	78.7m²
2	114.4m²	57.2m²	62.1m²

All private open space is provided behind the front building line. The site plan confirms that the private open space for each residential unit 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, consistent with the requirements of the DCP.

The internal living area for each dwelling will connect to its respective area of private open space via glass sliding doors that open out onto an alfresco area. Each private open space area will be enclosed by fencing. The addition of the hedging along Sampson Street will ensure the privacy of the occupants accessing the private open space of Dwelling 1 will be maintained and not open to pedestrians accessing the footpath that runs adjacent to Sampson Street.

The applicant has adequately demonstrated compliance with the Planning Outcomes for private open space.

Open Space and Landscaping

The DCP sets the following Planning Outcomes in regard to Open Space and Landscaping:

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

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

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

- allow cost effective management.

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

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

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

A landscape plan has been submitted in support of the proposal, which includes plant species that will provide integration of the dwellings and driveways within the site. The proposed landscaping will include species that are considered to be suitable to the Orange area, in particular native shrubs and ground covers, as well as hedging and trees. The development is consistent with the above planning outcome.

However, as previously mentioned, minor amendments are requested to the existing landscape plan which include the incorporation of:

· the proposed hedging along the eastern boundary fence line, commencing from behind the building line of Dwelling 1 and concluding at the shared internal fence between Dwelling 1 and Dwelling 2

· the Rhaphiolepis Indica “Snow Maiden” plantings be redesigned to complement the change in driveway width between the 3m width within the road reserve and approximate 6m width proposed on site.

A condition will be included requiring the submission of an updated landscape plan for approval by Council, prior to the issuing of a Construction Certificate. A further condition will be included requiring that prior to the issuing of an Occupation Certificate, landscaping is to be installed in accordance with the updated approved plan and shall be permanently maintained to the satisfaction of Council’s Manager Development Services.

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.

Relevant conditions of consent are attached to the notice in relation to stormwater management of the site.

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.

A condition of consent has been included requiring soil erosion control measures be implemented on the site.

INFILL GUIDELINES

Council’s Infill Guidelines (the Guidelines) outline design guidance for carrying out work in a Heritage Conservation Area or adjacent to a heritage item, to ensure new development integrates with the character of the neighbourhood.

The Guidelines are applicable to the proposal as they apply to any new development (including residential and commercial) requiring development consent to remove significant trees plus other significant changes to the landscape within a Heritage Conservation Area or on/adjacent to a heritage item listed in Schedule 5 of the OLEP 2011.

Character

The surrounding residential neighbourhood is characterised by single storey dwellings with relatively consistent street setbacks. There are some older style cottages within the vicinity of the subject land, which date from the early-mid 20^th century. Some mid to late 20^thcentury dwellings are interspersed through the neighbourhood. Reflective of the older style of buildings, roof pitch is generally steeper than typical modern building forms. Front fences are constructed of mostly sympathetic styles.

It is considered that the recommended heritage treatments will assist in integrating the proposal with this surrounding heritage character.

Scale and Form

The proposed dwellings adopt a sympathetic architectural form, bulk, height and finish which contributes to the new developments integration with the surrounding neighbourhood.

Siting

Despite the minor variation in setback (as discussed above), the proposal is considered to be forward, but step back from the corner and hence acceptable.

Materials and Colour

As indicated in previous sections of this report, the use of varying brick to differentiate the two dwellings is considered acceptable in this setting.

Detailing

Similarly, the proposed additional finishes will assist in integrating the dwelling with the existing streetscape. The increased roof pitch, additional external finishes previously discussed and the window proportions are considered complimentary to the heritage area.

Site Analysis

The proposal is in keeping with adjacent development and the setting will achieve integration with the heritage character of the area as:

· the use is in keeping with surrounding development and existing Heritage Conservation Area

· the street boundary setbacks are reasonably in keeping with existing setbacks

· the proposal will provide appropriate design elements, which will assist the development to integrate with the surrounding area

· the overshadowing and privacy impacts of the proposed development have been assessed and are considered acceptable in this instance

· the development maintains a single storey scale, in keeping with surrounding heights.

SUBDIVISION

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.

The proposed lots will comprise areas of 383.5m² and 343.7m² respectively. Both lots are defined as “Town House” lots, being an allotment with an area between 350m² and 500m².

The size and shape of the proposed lots will achieve reasonable residential amenity in terms of privacy and solar access. A detailed assessment of the proposed dwelling design for each lot has been carried out as part of the assessment in preceding sections of this report.

· 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 Prince and Sampson Streets. Separate access will be provided to the proposed lots via vehicle crossings and driveways. Council’s Technical Services Division have advised of no objections to the proposed access arrangements.

· 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. Attached is a condition of consent addressing this issue.

DEVELOPMENT CONTRIBUTIONS PLAN 2012

The development has been assessed pursuant to Orange Development Contributions Plan 2017. The following table itemises the contributions payable for the development. A condition is attached to reflect the following requirements.

Section 7.11 Development Contributions

The payment of $10,545.72 is to be made to Council in accordance with Section 7.11 of the Act and Orange Development Contributions Plan 2017 (Development in remainder of LGA) towards the provision of the following public facilities:

Open Space and Recreation	1 additional lot @ $3,922.87	3,922.87
Community and Cultural	1 additional lot @ $1,137.63	1,137.63
Roads and Traffic Management	1 additional lot @ $5,178.06	5,178.06
Local Area Facilities	1 additional lot @ $ -	-
Plan Preparation & Administration	1 additional lot @ $111.70	307.16
TOTAL:		$10,545.72

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2017 Development in 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 a Subdivision Certificate for the proposed subdivision. Attached are draft conditions requiring the payment of the required contributions prior to the issue of a Construction Certificate.

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

The development is not inconsistent with the provisions prescribed by the Regulations.

BASIX Commitments (clause 97A)

A BASIX Certificate has been submitted in support of the proposed development which demonstrates compliance with water, thermal comfort and energy requirements for both dwellings.

Dwelling	Water	Thermal Comfort	Energy
1	45 (target 40)	Pass (target Pass)	38 (target 35)
2	47 (target 40)	Pass (target Pass)	36 (target 35)

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

Traffic Impacts

The capacity of the road network in the vicinity of the site is sufficient to accommodate additional localised traffic generated by the development. Council’s Technical Services Division advises that the proposed driveway will be appropriately sited so as to prevent vehicle conflicts. Adequate parking is proposed on site, and both dwellings are equipped with a double garage and tandem spaces.

Neighbourhood Amenity

The proposed dwellings will provide and retain a reasonable standard of residential amenity for the proposed dwellings and development on adjoining lands in respect of solar access, privacy etc. The proposed development will provide for a continuation of residential landuse, albeit in a more compact form, and will not alter the function of the neighbourhood. The development will not have adverse impacts on neighbourhood amenity.

The addition of the hedging along the eastern fence line of Dwelling 1 will provide additional privacy to the occupants of the dwelling, while interpreting the prominence of the corner lot and providing articulation to users of the road network and the public footpath that runs adjacent to the eastern boundary of the subject site.

The reduction in the width of the proposed driveway for Dwelling 2, accommodated in the vehicle crossover located within the road reserve will ensure the health of the existing street tree is maintained and be more in keeping with existing access arrangements on surrounding sites and therefore the character of the Heritage Conservation Area.

Cumulative Impacts

The proposal is considered to be satisfactory in terms of cumulative impact. The proposal will maintain the pattern of single storey detached dwellings that characterise this streetscape. The building design and detailing for the proposed dwellings will generally complement the style of adjoining established dwellings. The proposal provides for a continuation of residential land use, albeit in a more compact form.

The proposed development will not reduce the open space, solar access or privacy afforded to neighbouring properties. Similarly, the site layout and building design will provide a reasonable standard of residential amenity for the proposed dwellings in terms of open space, solar access and privacy.

Environmental Impacts

The subject land has been located within an existing urban area for a number of years, evidenced by the sites location within a Heritage Conservation Area. As a result, significant vegetation, threatened species or ecological endangered communities or their habitats are unlikely. The proposed development will not impact upon the locality in terms of environmental impacts.

A condition requiring the protection of the street trees in line with AS4970-2009 Protection of trees on development sites Section 4-4.3 Protective Fencing and works have been included to further maintain the health of the street trees, located in close proximity to the subject site, during demolition and construction.

In regard to environmental impacts relating to heritage, the proposal, as demonstrated is considered acceptable in this instance. It is accepted that the proposed development will be of a more contemporary development style in an established Heritage Conservation Area. However, the location of the subject site on the periphery of the Heritage Conservation Area, coupled with the fact that the existing dwelling on the site is considered to be of limited quality, means it is considered that the demolition of the existing dwelling is acceptable in this instance The proposed subdivision pattern is not dissimilar to the existing subdivision pattern that is currently established in surrounding sites. Further, finishes and materials, as well as landscaping and fencing proposed has been designed to integrate with the surrounding streetscape and compliment the wider Heritage Conservation Area.

Existing and Future Amenity of the Neighbourhood

The potential impact upon the amenity of the neighbourhood is considered satisfactory and has been addressed above in the relevant considerations under DCP 2004.

Soil Erosion

Provided that adequate measures are implemented during the construction phase, the proposed development would not generate adverse impacts in terms of soil erosion. Attached are recommended conditions of consent addressing this issue.

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

Servicing

Council’s Technical Services Division advises that all utility services are available to the site and adequate for the proposal. The proposed development will be connected to Council’s sewer, town water and stormwater reticulations in accordance with normal requirements. Power, telephone and natural gas services will be connected to the dwellings in accordance with the requirements of the relevant supply authority. Attached is a condition of consent addressing this issue.

Physical Attributes

The subject site is considered to be suitable for the proposed development. There are no physical attributes within the site that would unreasonably constrain the development.

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

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.

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, D18/61748

2 Plans, D18/63042

Planning and Development Committee 4 December 2018

2.8 Development Application DA 349/2018(1) - 59-67 and 99 Bathurst Road

RECORD NUMBER: 2018/2685

AUTHOR: Ella Wilkinson, Senior Planner

EXECUTIVE Summary

Application lodged	26 September 2018
Applicant/s	Mr G Barrett
Owner/s	Mr GC Barrett
Land description	Lot 40 DP 810916 and Lot 30 DP 1190518 – 99 Bathurst Road and 59-67 Bathurst Road, Orange
Proposed land use	Demolition (tree removal)
Value of proposed development	$12,000

Council's consent is sought to remove thirteen English Elm trees (species Ulmus Procera) that are currently located on the boundary between 99 Bathurst Road and Kinross Wolaroi School (59-67 Bathurst Road). Eleven trees are proposed to be removed on the western boundary of 99 Bathurst Road, which is shared with Kinross Wolaroi School. A further two trees are proposed to be removed on the northern boundary of 99 Bathurst Road, which is also shared with Kinross Wolaroi School. The proposal outlines the intent to replace the trees on the western boundary with red bottlebrush, which would grow to a maximum of 12m in height. It should be noted that the two trees located on the northern boundary that are proposed for removal are not proposed for replacement.

A plan of the subject properties has been prepared by Craig Jaques and Associates (Orange) that shows the site boundary in relation to the existing fence and trees. Whilst it is difficult to determine from that plan the exact land to which the trees are located on, it is widely accepted that the eleven trees on the western boundary form the boundary line, and the two trees on the northern boundary are within the bounds of Kinross Wolaroi School (59‑67 Bathurst Road).

The removal of the trees has been requested as the proposal outlines the trees pose a safety risk to the workers, sub-contractors and future residents of 99 Bathurst Road, as well as to students, parents and teachers at Kinross Wolaroi School.

It is noted that there is a variation between the amount of trees that have been requested to be removed and the number of trees recommended as part of the supporting arborist report. Additional information was sought from the applicant in relation to the removal of all thirteen trees. Further information was provided to support this request in the letter from McPhee Kelshaw Solicitors and Conveyancers dated 12 October 2018.

A development application for the construction of seven town house units (five new detached units and conversion of existing dwelling into two units) on the 99 Bathurst Road site was approved in 2007. The location of the trees on the boundary has resulted in several of the trees structural root zones protruding into the development area. The owner of 99 Bathurst Road has commenced work on the conversion of the existing dwelling, but is unable to commence on the remaining five detached units due to the potential impact this may have on the health of the trees.

Kinross Wolaroi School is listed as an item of local heritage significance and as such, the impact of the removal of these trees and proposed replacement plantings has been considered in further detail later in this report.

The proposal is recommended for approval, subject to various conditions in relation to the proposed replanting and maintenance of the trees.

Figure 1 - locality plan

RECENT LEGISLATIVE CHANGES

DECISION FRAMEWORK

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to consent to development application DA 349/2018(1) for Demolition (tree removal) at Lot 40 DP 810916 and Lot 30 DP 1190518 - 99 Bathurst Road and 59‑67 Bathurst Road, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

Council's consent is sought for the removal of thirteen trees located on the common (northern and western) boundary of a property located at 99 Bathurst Road, shared with Kinross Wolaroi School. The proposal outlines the intent to replace the trees on the common (western) boundary, adjoining Kinross Wolaroi School.

A plan of the subject properties has been prepared by Craig Jaques and Associates (Orange) that shows the site boundary in relation to the existing fence and trees. Whilst it is difficult to determine from that plan the exact land to which the trees are located on it is widely accepted that the eleven trees on the western boundary form the boundary line, and the two trees on the northern boundary are within the bounds of Kinross Wolaroi School (59‑67 Bathurst Road). To this end both properties have been included on the development application as comprising the subject land.

Kinross Wolaroi is an item of local significance listed in Schedule 5 of the Orange Local Environmental Plan. Matters in relation to the significance of the trees to the heritage item, “Wolaroi” former mansion (main school building), are discussed in further detail within the body of this report.

THE PROPOSAL

The proposal involves the removal of thirteen trees on the common (northern and western) boundary of 99 Bathurst Road, which is shared with Kinross Wolaroi School.

The proposal outlines that the trees on the western boundary are to be replaced with red bottlebrush, which would grow to a maximum of 12m in height, forming a screen between 99 Bathurst Road and Kinross Wolaroi School.

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.

The subject site is located in an R1 General Residential area and has been utilised for urban purposes and is not shown on the Orange Local Environmental Plan 2011 maps as an area with moderate or high biodiversity significance.

While the trees proposed for removal are mature trees, between the ages of approximately 15 to 120 years, the trees, which are an English Elm (species Ulmus Procera) are not a species listed in Schedule 1 or 2 of the Biodiversity Conservation Act 2016.

Therefore, 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 broad aims of the LEP are set out under Subclause 2. Those relevant to the application are as follows:

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

The application is considered to be broadly consistent with this aim.

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
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.

· Lot 50 DP 1117270 that adjoins 99 Bathurst Road and a small section of 59‑67 Bathurst Road currently maintains an easement for access and sewer, however this does not impact either site (see Figure 2).

Figure 2 – location of existing easements on adjoining lot

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 “demolition” under OLEP 2011 and is permitted with consent. This application is seeking consent.

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

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.

Clause 2.6 - Subdivision - Consent Requirements

The provisions of Clause 2.6 do not apply, as no subdivision if proposed as part of the proposal.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work. This requirement does not apply to any demolition that is defined as exempt development.

The proposal involves demolition (tree removal) and the applicant is seeking the consent of council. Conditions have been included in the consent requiring appropriate removal and rehabilitation of the soil, including stump grinding and removal of saw dust generated from the stump grinding process.

A further condition has also been included to require the removal of the trees to be conducted in accordance with Australian Standard 4373-2007 – Pruning of Amenity Trees.

Clause 2.8 - Temporary Use of Land

The provisions of Clause 2.8 do not apply, as a temporary use of land is not proposed.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size

The provisions of Clause 4.1 do not apply, as a subdivision of the site is not proposed.

Clause 4.1AA - Minimum Subdivision Lot Size for Community Title Schemes

The provisions of Clause 4.1 do not apply, as a subdivision of the site is not proposed.

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

The provisions of Clause 4.1 do not apply, as a subdivision of the site is not proposed.

Clause 4.2 - Rural Subdivision

The provisions of Clause 4.1 do not apply, as a subdivision of the site is not proposed.

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

The provisions of Clause 4.2A do not apply, as the proposal does not request to erect a dwelling house on land in certain rural and environmental protection zones.

Clause 4.2B - Strata Subdivisions in Certain Rural Zones

The provisions of Clause 4.2B do not apply, as the proposal does not request consent for a strata subdivision in RU1 Primary Production or E3 Environmental Management.

Clause 4.3 - Height of Buildings

The provisions of Clause 4.3 do not apply, as there is no restriction applied to either site in relation to the maximum height of buildings permissible.

Clause 4.4 - Floor Space Ratio

The provisions of Clause 4.4 do not apply, as there is no restriction applied to either site in relation to the maximum floor space permissible for a building on the subject site.

Clause 4.6 - Exceptions to Development Standards

The provisions of Clause 4.6 do not apply, as there is no variance proposed to a development standard as part of this proposal.

Part 5 - Miscellaneous Provisions

Clause 5.1 - Relevant Acquisition Authority

The provisions of Clause 5.1 do not apply, as the land is not reserved for use exclusively for certain public purposes.

Clause 5.4 - Controls Relating to Miscellaneous Permissible Uses

The provisions of Clause 5.4 do not apply, as the proposal does not involve a miscellaneous permissible use.

5.10 - Heritage Conservation

Note: Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

(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.

(3) When Consent not required

However, development consent under this clause is not required if:

(a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development:

(i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and

(ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or

(b) the development is in a cemetery or burial ground and the proposed development:

(i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or

(c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or

(d) the development is exempt development.

This clause is applicable to the proposal as the trees are located on the common boundary between 99 Bathurst Road and Kinross Wolaroi School (59-67 Bathurst Road). Kinross Wolaroi School is listed as an item of local heritage significance in Schedule 5 of the Orange LEP 2011.

The proposal was not considered to be applicable to the provisions of Clause 5.10 (3) as the removal of the trees was not considered to be of minor 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).

The item listing is number I9 and is known as “Wolaroi” former mansion (High School building).

The physical description of the item outlines that the item is:

“An ornate Victorian Italianate style building of two storeys with tower. The southern and western sides remain relatively intact, except verandah infill. Projecting octagonal two storey bay on south corner, contrasts with long verandahs to remainder of south and to west elevations. Windows are arched, with emphasis on red and cream brick arches.

The octagonal bay is decorated with sandstone inset columns. The fluted Corinthian verandah columns sit on cement moulded pedestals. The gable face of the brick tower walls is surmounted by an unusual timber and glass lantern top and copper sheet. Cream brick corbelling supports the eaves all around. The chimneys are in multi-chrome brick with corbelling.

Old fir and pine trees exist in the grounds.”

It is specifically noted that the physical description of the item outlines the presence of old fir and pine trees in the grounds, but does not mention the presence or significance of English Elm trees.

The proposal was referred to Council’s Heritage Adviser who outlined that the reasons for removal outlined in the Arborist report as well as the photos provided taken as part of a site visit (in lieu of a physical site visit by the Heritage Adviser), were sufficient to warrant the removal of the trees.

The additional information provided by McPhee Kelshaw Solicitors and Conveyancers outlined that the trees, and as such the heritage item, were not visible from Bathurst Road. However, the Heritage Adviser concluded that the visual contribution of the trees is worthy of note, with the trees visible from Bathurst Road (see Figure 3) and the “Wolaroi” school building (see Figure 4). However, this did not affect their removal only that the visibility of the trees would mean an appropriate replacement is required.

Council’s Heritage Adviser outlined that the proposed red bottlebrush is not considered an appropriate replacement as the species is not similar to the scale, type (native/deciduous) or character of the trees being replaced and is not a species common to the area as noted by the general Australian mapping of the species.

It was recommended that a deciduous species, which will thrive in the local conditions and have a similar height in the range 7-12m, be provided to offset the removal of the trees and cause minor impact to the heritage item. Further discussion in relation to the appropriate species is discussed in further detail under the Provisions of any Development Control Plan S4.15(1)(A)(Iii) section of this report.

Figure 3 – view to the heritage item from Bathurst Road

Figure 4 – view from the heritage item to the trees

Part 6 - Urban Release Area

The provisions of Part 6 are not applicable to the proposal as the subject site is not located in an Urban Release Area.

Part 7 - Additional Local Provisions

7.1 - Earthworks

The provisions of Clause 7.1 are not applicable to the proposal as no earthworks are proposed as part of the proposal. However, if any unexpected find in relation to Aboriginal objects, relics, or other historical items or the like are located during the removal and rehabilitation of the soil, including stump grinding and removal of saw dust generated from the stump grinding process, all works will be required to cease and the Office of Environment and Heritage and representatives from the Orange Local Aboriginal Land Council shall be notified.

7.2 - Flood Planning

This clause applies to land identified on the Flood Planning Map as a Flood Planning Area and requires that, before any consent is issued, Council must be satisfied that the proposal:

(a) is compatible with the flood hazard of the land, and

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

A small section of the Kinross Wolaroi School site is mapped as Flood Planning Area on the Flood Planning Map. The area is approximately 208m to the north of the proposed tree removal site (see Figure 5).

Figure 5 – Flood Planning Area in proximity to the subject site

(99 Bathurst Road shown in black)

A small section of Kinross Wolaroi School is also mapped as being impacted by a Probable Maximum Flood Event. Again, this is located approximately 316m from the proposed tree removal site (see Figure 6).

Figure 6 – Probable Maximum Flood event in proximity to the subject site

(99 Bathurst Road shown in black)

It is therefore considered that the provisions of this clause are not applicable to the proposal.

7.3 - Stormwater Management

The provisions of Clause 7.3 do not apply to the proposal as the development is not considered to impact on the urban stormwater system as the proposal outlines the removal, and replacement of trees and will not cause a major impact to the existing arrangements already onsite.

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 proposal is not located on land identified as having high or moderate biodiversity value. It is therefore considered that the provisions of this clause are not applicable to the proposal.

7.5 - Riparian Land and Watercourses

This clause seeks to preserve both water quality and riparian ecological health. The clause applies to land identified as a “Sensitive Waterway” on the Watercourse Map. The subject land contains such a waterway and therefore Council must consider whether or not the proposal:

(a) is likely to have any adverse impact on the following:

(i) the water quality and flows within a watercourse

(ii) aquatic and riparian species, habitats and ecosystems of the watercourse

(iii) the stability of the bed and banks of the watercourse

(iv) the free passage of fish and other aquatic organisms within or along the watercourse

(v) any future rehabilitation of the watercourse and its riparian areas, and

(b) is likely to increase water extraction from the watercourse.

Additionally, consent may not be granted until Council is satisfied that:

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

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

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

The proposal is not located on land identified as a “Sensitive Waterway, and is also not located within 40m of the top of the bank of a “Sensitive Waterway”. It is therefore considered that the provisions of this clause are not applicable to the proposal.

7.6 - Groundwater Vulnerability

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

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

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

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

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

7.7 - Drinking Water Catchments

The proposal is not located on land identified as “Drinking Water” on the Drinking Water Catchment Map. It is therefore considered that the provisions of Clause 7.7 do not apply to this proposal.

7.9 - Airspace Operations

It is considered that the provisions of Clause 7.9 are not applicable to this proposal as the development will not penetrate the Limitations of Operations Surface of the Orange Airport.

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 this clause, all utility services are available to the land and adequate for the proposal. However, it is not considered that the services listed above are essential to carry out the proposed development.

STATE ENVIRONMENTAL PLANNING POLICIES

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

The provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 is applicable to the subject development as the proposal requests consent to demolish (remove) trees in non-rural areas of the State.

Part 3 of the SEPP applies to vegetation in any non-rural area of the State that is declared by a Development Control Plan to be vegetation that Council can issue a permit to a landholder to be cleared. Clause 26 of the SEPP (Vegetation in Non-Rural Areas) 2017 outlines that a Development Control Plan (DCP) that is in force on the commencement of this Policy can establish the process, such as requiring a permit or development consent, for the clearing of vegetation.

Chapter 0 Transitional Provisions of the Orange DCP 2004 (the DCP) prescribes the kinds of trees and other vegetation that are subject to Clause 10 of the SEPP (Vegetation in Non‑Rural Areas) 2017. The vegetation that would be impacted by the proposed demolition is of a size that would trigger the requirements outlined in these provisions.

This application is requesting consent to remove this vegetation. It is therefore considered that the requirements of the SEPP (Vegetation in Non-Rural Areas) 2017 have been met and the proposal is consistent with the provisions as outlined in the Policy and the DCP, provided the demolition (removal) is carried out in line with the conditions of consent.

State Environmental Planning Policy 55 Remediation of Land

State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) is applicable. Pursuant to Clause 7 Contamination and remediation to be considered in determining development application:

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

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

Assessing the requirements outlined above, it is considered that the subject site is highly unlikely to be contaminated. Both 99 Bathurst Road and Kinross Wolaroi School have been used for urban purposes for a number of years. 99 Bathurst Road has been utilised for residential accommodation, and Kinross Wolaroi School has been located at the current site since 1893. Neither uses are listed in Table 1 of Managing Land Contamination Planning Guidelines SEPP 55 – Remediation of Land.

As shown in Figure 7, there is a cluster of suspected properties to the south west of the site that are identified as potentially contaminated on Council’s contamination register. However, the site itself is not identified as being potentially contaminated and no identified site immediately adjoins the subject site. Both potentially contaminated sites are located approximately 178m to the north-west of the subject site.

While the potential for contamination of the site is considered to be unlikely, a condition of consent has been included requiring, in the event of an unexpected find during works, such as (but not limited to) the presence of undocumented waste, odorous or stained soil, asbestos, structures such as underground storage tanks, slabs, or any contaminated or suspect material, all work onsite must cease immediately.

Figure 7 – location of potentially contaminated land on surrounding sites

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 (Part 0). 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 2a Urban Residential and 2d Urban Transition Zone (Orange LEP 2000) is zone R1 General Residential (Orange LEP 2011). As such, Orange DCP 2004 – Chapter 7 is relevant to this proposal. However, a large majority of the provisions of Chapter 7 relate to the development of residential accommodation and not applicable to this proposal as it outlines the demolition (removal) of trees. It is therefore considered that the provisions of Chapter 0, specifically page 0.4 Tree Preservation are also applicable. Further, given the location of the trees on a shared boundary with Kinross Wolaroi School, Heritage Item I9, the provisions of Chapter 13 are considered below.

Chapter 0 – Tree Preservation

As mentioned above, the provisions of Chapter 0 – Tree Preservation are applicable to the proposal, due to the provisions included in SEPP (Vegetation in Non-Rural Areas) 2017 under Clause 26.

The provisions outline that trees, native or exotic, with a trunk diameter equal to or greater than 300mm at breast height, require approval to be ringbarked, cut down, topped, lopped or wilfully destroyed without the Council’s approval and landowners consent.

Given that some of the subject trees are located along the common boundary between 99 Bathurst Road and Kinross Wolaroi School both lots are required to provide landowners consent for the removal of the trees.

This application is seeking consent for the removal of the trees and it is therefore considered that the provisions of this clause have been met.

Chapter 7 – PO 7.7-3 Planning Outcomes – Heritage

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

Given the proposal outlines the removal of trees and has relevance to both this outcome and the outcome outlined below, the impacts to both outcomes are considered in further detail under the heading below.

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

The proposal requests consent to remove thirteen trees on the northern and western boundary of 99 Bathurst Road adjoining Kinross Wolaroi School.

As previously mentioned the arborist report outlines the removal of eleven of these trees, with two trees (numbers twelve and thirteen identified in the arborist report) to be retained (see Figure 5 and 6). The arborist report outlines that:

· tree twelve is of moderate retention value, but is immature and has an unbalanced east canopy

· tree thirteen is of moderate retention value, but is immature and has an unbalanced east canopy and suckers present.

A request was made for additional information regarding the request to remove the additional trees. A letter, received from McPhee Kelshaw Lawyers and Conveyancers outlined that the reasons for the removal of the additional trees outline that:

· the arborist report lists these trees as having only moderate value

· given this species of tree is prone to sending suckers, it would be appropriate to remove all the trees at once, to avoid any future problems with new growth

· to provide uniformity, it would be appropriate to remove all the trees and replace with a single replacement species.

A site visit concluded that the two trees on the northern boundary are located behind an existing shed, which is situated on the Kinross Wolaroi School side of the fence, as the northern boundary is not currently in dispute. It is considered that the removal of these trees in conjunction with the points raised above is acceptable. It is noted, however, that the two trees on the northern boundary are not proposed to be replaced by this proposal, which is contrary to what is outlined by the third point outlined in the additional information above.

It is considered that requiring a replacement for the two trees on the northern boundary is not necessary as:

· the trees are not visible from Bathurst Road or the Wolaroi Mansion as they are not of a height or a location that is visible from these locations

· while the significance of these trees has been established to be important in relation to the Wolaroi mansion, they are not discussed as part of the “cultural plantings” identified by the Statement of Significance for the item, which include fir and pine trees

· the replanting of trees along the northern boundary on the Kinross Wolaroi School side would have a neutral impact in regard to providing a screen for the heritage item, as the plantings would be blocked by the existing shed.

The proposal was referred to the Manager City Presentation for comment and recommendation. The following comments were received in relation to the health of the trees.

· the arborist report identifies structural issues with the trees

· these structural issues are attributed to the close proximity of growth. The juvenile and semi-mature examples are all growth from the root system of the three mature and original plantings

· this growth is generally referred to as suckering growth as it emanates from a node on the trees root system when the root system appears at ground level, through soil disturbance or when the root system impacts on a solid object

· the close proximity of excavation and construction of hard surfaces on the 99 Bathurst Road site will affect all trees within 2m of the common boundary with a decline in health, loss of vigour and compromising their structural integrity where they will become a risk of failure (limb drop or toppling over).

The referral requested from the Manager City Presentation outlined the removal of all trees on the common boundary would be supported provided that, a row of eight (minimum) suitably selected heritage derived trees, maturing to a minimum height of 12m be planted on the Kinross Wolaroi School side of the common boundary between 99 Bathurst Road and Kinross Wolaroi School; following the appropriate removal and rehabilitation of the soil ie stump grinding and removal of saw dust generated from the stump grinding process and soil amelioration undertaken to provide suitable growing conditions for new trees. The new trees shall be a minimum container size of 75 litres and the species shall be agreed to with Kinross Wolaroi School and approved by Council.

As mentioned, it is not considered that planting on the northern boundary is necessary in this instance, for the reasons outline above. Further, it was considered that, as the landowners are representative of two separate parties, that a species be recommended for inclusion in the consent to prevent any confusion or issues arising with the decision of the species of replacement trees. Council’s Manager City Presentation recommended that the one species from the following list be planted along the common (western) boundary as a replacement:

Appropriate replacement species include:

· Red Ash (Fraxinus pennsylvanica)

· White Ash (Fraxinus Americana)

· Chinese Elm (Ulmus Pavifolia).

· Chinese Pistachio (Pistacia chinensis)

These species are to be provided with spacing of 6m centres and are to be planted within six months of the removal of the English Elm trees to allow for soil restoration. The replanting is to be undertaken in accordance with established tree planting guidelines, such as those outlined in the Shiralee Development Control Plan 2015, page 57 Figure 55 (see Figure 8)

Figure 8 - Tree Planting Guidelines as outlined in Shiralee Development Control Plan 2015

(page 57, Figure 55)

Further recommendations outlined as part of the Manager City Presentation recommendation include:

· a minimum maintenance period of 24 months, during which time they shall be appropriately watered, fertilised and mulched by a qualified horticulturalist and should any example become deceased during this period it shall be replaced at the expense of the developer of 99 Bathurst Road

· placing a bond on the developer of 99 Bathurst Road that is refundable after the 24 month maintenance period of $1,000 per tree, a minimum total of $8,000.

However, it is considered as there are two landowners, both have a different set of responsibilities in relation to the proposal.

The proposal to remove the trees has been brought to Council’s attention by the owner of 99 Bathurst Road, due to safety concerns. The owner of 99 Bathurst Road has committed to pay for the removal and replacement of these trees, to facilitate the next stage of development on the 99 Bathurst Road site. Therefore, the owner of 99 Bathurst Road is responsible for the supply, installation and planting of the replacement trees as outlined in the conditions of consent.

Kinross Wolaroi School, as a consenting landowner, will benefit from the replanting, as the replacement trees are to be replanted on the Kinross Wolaroi School side of the boundary fence, in the space previously occupied by the English Elms to be removed. Kinross Wolaroi School are currently responsible for the maintenance of all vegetation within the grounds, including the English Elm trees proposed to be removed. It must therefore be assumed that, the growth of the replacement trees will be supported in line with the current maintenance provided onsite.

As the owner of 99 Bathurst Road has agreed to remove the trees and replace them at his own expense, it is considered his requirements for the replacement of the trees on Kinross Wolaroi School site will be met once the trees are planted. Therefore, in line with the current responsibility for the maintenance of vegetation on the Kinross Wolaroi School site, it is expected that Kinross Wolaroi School will also maintain the replacement species in line with current maintenance practices.

Therefore, conditions have been included in the consent which outline requirements that address the responsibilities of the separate landowners in relation to the proposal and appropriate removal of the English Elm trees and planting and management of an appropriate species.

Chapter 13 – Heritage

It is considered the requirements and provisions identified in this chapter have been extensively covered in preceding sections of this report. It is therefore considered that no further assessment is required in relation to the provisions of this chapter.

INFILL GUIDELINES

The proposal requests consent to remove thirteen trees that are located on the common (western) boundary, between 99 Bathurst Road and Kinross Wolaroi School (59‑67 Bathurst Road). The trees are distinctive in the landscape as they are visible from the Wolaroi mansion and from Bathurst Road.

Notwithstanding the trees significance, the arborist report, which has been reviewed by Orange City Council Manager City Presentation and Heritage Adviser, outlines structural issues with the trees. The removal of these trees is supported, provided an appropriate species is replanted to replace these trees.

Conditions have been included that ensure the appropriate species of an appropriate scale and size is planted to replace the trees that are proposed to be removed. These species will ensure the historic character of the site is maintained and the species are conducive to the surrounding environment and will not compromise this character.

The trees will be planted adjacent to the common (western) boundary of 99 Bathurst Road and Kinross Wolaroi School (59-67 Bathurst Road) to provide a buffer between the heritage item and the residential development approved on 99 Bathurst Road.

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)

BASIX is not applicable to the proposed development.

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

The main impact of the development will be the removal of thirteen trees on the common (northern and western) boundary of 99 Bathurst Road which is shared with Kinross Wolaroi School.

The trees, which have an established heritage significance due to the location of the trees within the Kinross Wolaroi School grounds, are supported for removal due to safety concerns with the trees and the structural root zone of these trees protruding into the development site at 99 Bathurst Road.

The owner of 99 Bathurst Road has committed to remove eleven trees on the common (western) boundary shared with Kinross Wolaroi School and two trees on the common (northern) boundary shared with Kinross Wolaroi School and replace the eleven trees on the common (western) boundary with an appropriate species. The proposal has been referred to Orange City Council’s Heritage Adviser and Manager City Presentation. Conditions have been adopted that were informed by these referrals that will ensure an appropriate species is planted that is sympathetic to the heritage item.

Should the conditions of consent be followed appropriately, the likely impacts of the development will be managed.

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

The site is suitable for the removal of eleven trees on the common (western) boundary shared with Kinross Wolaroi School and two trees on the common (northern) boundary shared with Kinross Wolaroi School, as the trees have structural defects that affect the safety of the trees. The four replacement species, which both landowners are to choose from as a replacement species and have been recommended by both the Manager City Presentation and Orange City Council’s Heritage Adviser are suitable to the site. These species have been recommended as they are sympathetic to the character of the heritage item and will provide an appropriate screen to the residential use on the 99 Bathurst Road site.

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

The proposed development is defined as "advertised development" under the provisions of the LEP. The application was advertised for the prescribed period of 14 days and at the end of that period no submissions were received. A number of enquiries were made through Council’s Customer Service desk, however these were general in nature with no opposition raised in regard to the proposal.

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, and 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 proposal was not deemed to be required for referral to the Environmental Health and Building Surveyor and the Engineering Development Section. Therefore there are requirements in relation to these sections required as part of the Notice of Approval.

Attachments

1 Notice of Approval, D18/63547

2 Plan, D18/63509

Planning and Development Committee 4 December 2018

2.9 Development Application DA 329/2018(1) - 269-279 Summer Street (Robertson Park)

RECORD NUMBER: 2018/2901

AUTHOR: Kelly Walker, Senior Planner

EXECUTIVE Summary

Application lodged	13 September 2018
Applicant/s	Orange City Council
Owner/s	Orange City Council
Land description	Lot 702 DP 1002273 - 269-279 Summer Street, Orange
Proposed land use	Recreation Area - Amenities Block and Demolition (tree removal)
Value of proposed development	$350,000

Council's consent is sought to erect an amenities facility on the eastern side of Robertson Park, near to McNamara Street, comprising a small toilet building constructed in brick with Colorbond roof, and a pergola. The building will include female, male, and accessible toilets, and a service cupboard. One tree needs to be removed to facilitate the proposed development.

Figure 1 - locality plan

Robertson Park is a listed heritage item, which includes the landscaping, trees, bandstand, war memorial, fountain, and CWA Hall. The site is also within the Heritage Conservation Area. Development consent is required for the removal of the tree, as well as the construction of the new building.

The application was advertised for the prescribed period of 14 days and at the end of that period ten (10) submissions were received objecting to the proposal. The concerns raised include matters pertaining to inappropriate site selection, building design and safety concerns. A detailed assessment of the issues raised in the submissions has been included in the main body of this report.

Council’s Heritage Advisor has reviewed the plans in consultation with Council staff. Recommendations to address concerns raised in submissions in relation to the building design have been provided in the main body of this report for Council’s consideration. The recommendations are aimed at further improving and enhancing the visual presentation of the development as designed to date so as to minimise visual and heritage impacts of the development on the locality, conservation area, streetscape and neighbouring properties.

The applicant has advised that the layout and design of the facility were determined by Council following design sessions. Council staff recommend a condition of consent amending the design of the pergola to wrap around the building to mitigate heritage and visual impacts, and to provide landscaping and lighting details for further assessment to address both visual and safety concerns raised in submissions.

Overall, a Section 4.15 assessment of the development indicates that the proposed development can be acceptable, subject to the conditions of consent altering the building design and providing landscaping and lighting as discussed in the main body of this report. On this basis, it is recommended that Council supports the subject proposal. A draft Notice of Approval is attached.

LEGISLATIVE CHANGES

DECISION FRAMEWORK

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

DIRECTOR’S COMMENT

Conditions have been recommended by planning staff and Council’s Heritage Advisor to address some of the concerns raised in submissions.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 329/2018(1) for Recreation Area - Amenities Block and Demolition (tree removal) at Lot 702 DP 1002273 - 269-279 Summer Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE PROPOSAL

The proposal involves the construction of a new amenities facility on the eastern side of Robertson Park, near to McNamara Street, comprising a small toilet building constructed in brick with Colorbond roof (see Figure 2). The building will measure approximately 11m by 4.5m, with a height of 4.5m. The building will comprise female, male, and accessible toilets, with an ambulant cubicle in each of the male and female toilets. The toilets will face into the park (west). A service cupboard is proposed on the eastern elevation. A pergola is proposed on the western elevation, measuring around 3.9m by 18m (see Figure 2).

Figure 2 - proposed western elevation

(from submitted drawing number CC 04 A, prepared by Architecture Raw, and dated 14/8/2018)

One tree needs to be removed to facilitate the proposed development. It is proposed to replace the tree, as well as grow vegetation on the proposed pergola.

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

In this instance, site inspection reveals that the subject property has no biodiversity or habitat value. Having regard to the relevant provisions and inspection, 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.

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,

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

The application is considered to be consistent with these aims, as set out in this report.

Clause 1.6 - Consent Authority

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

Clause 1.7 - Mapping

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

Land Zoning Map:	Land zoned RE1 Public Recreation
Lot Size Map:	No Minimum Lot Size
Heritage Map:	A listed heritage item and within a heritage conservation area
Height of Buildings Map:	Building height limit 6m
Floor Space Ratio Map:	Floor space limit 0.2:1
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:	Within a sensitive waterway
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:	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

The subject site is located within the RE1 Public Recreation zone. The proposed development is defined as a ‘recreation area’ under the LEP as follows:

recreation area means a place used for outdoor recreation that is normally open to the public, and includes:

(a) a children’s playground, or

(b) an area used for community sporting activities, or

(c) a public park, reserve or garden or the like,

and any ancillary buildings, but does not include a recreation facility (indoor), recreation facility (major) or recreation facility (outdoor).

The proposed toilet building is considered to be ancillary to the public park, and recreation areas are permitted with consent in this zone. This application is seeking consent.

Clause 2.3 - Zone Objectives and Land Use Table

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. These objectives for land zoned RE1 Public Recreation are as follows:

· To enable land to be used for public open space or recreational purposes.

· To provide a range of recreational settings and activities and compatible land uses.

· To protect and enhance the natural environment for recreational purposes.

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

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

The proposal is generally consistent with the objectives for the zone in that it provides a public facility which enhances the use of the land for community and recreational use, encourages walking and cycling, and does not impact on the natural environment.

Clause 2.7 - Demolition Requires Development Consent

This clause triggers the need for development consent in relation to a building or work. This requirement does not apply to any demolition that is defined as exempt development.

The proposal involves demolition/removal of one (1) tree and the applicant is seeking the consent of council. The demolition works proposed are unlikely to have significant impacts on adjoining lands, the streetscape, or the public realm. The building demolition conditions are not relevant and therefore are not required in this instance. The removal of a tree in a heritage conversation area and on a listed heritage item is discussed in greater detail later in this report.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.3 - Height of Buildings

This clause limits the height of buildings (HoB) on land identified on the Height of Buildings Map. The subject land is identified on the Map as having a HoB limit of 6m. The maximum height of the proposed building is 4.6m and is therefore consistent with the established height limit.

Clause 4.4 - Floor Space Ratio

This clause limits the floor space ratio (FSR) permitted on land identified on the Floor Space Ratio Map. The subject land is identified on the Map as having an FSR of 0.2:1. Robertson Park is considered to be community land, and its site area has been calculated under Clause 4.5 as 17,941.2m², meaning the site may have up to 3,588.2m² of floor space. The existing CWA Hall and proposed toilet building will be well under this, consistent with the FSR clause.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

Clause 5.10 applies and states in part:

(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.

(4) Effect of Proposed Development on Heritage Significance

Robertson Park is a listed heritage item, which includes the landscaping, trees, bandstand, war memorial, fountain, and CWA Hall. The site is also within the Heritage Conservation Area. The Orange Heritage database provides the following statement of significance:

“The park occupies 2 hectares, has an important central location in the city, and has considerable cultural significance in the town's history. Elements of significance which have retained their character include the diagonal layout, trees, bandstand, war memorial, fountain, Boer war memorial lamp post, and CWA Hall”.

Furthermore, the listing notes:

“This park is notable for its mature exotic trees - plains and elms on the west and ash and pin oaks on the east. A formal arrangement of paths, made of decomposed granite gravel with concrete edges, runs throughout, with focal points, which include the marble fountain. There is a timber and bluestone bandstand of 1915, with slate roof, an entrance arbour and a monument to the war dead. The grass is predominantly kikuyu. A country Women's Building occupies the north-west corner of the park”.

The park and its features are considered to be in good condition, mark the development of civic design in relation to landscaped amenity and recreational space, and have high level streetscape value. The site is highly valued by the community. Council’s Heritage Study identifies key elements in the conservation of this important public place, namely the retention and replacement of the significant vegetation, the respect and deference to the significant buildings and structures, and future development that respects the pronounced, traditional layout of the park with the central position of the rotunda and pathways that define the space.

As an amenities facility, the proposed structure is a building consistent with the use of the site as an area of open space. The architecture and style of the proposed building are different to the other elements of architecture in the park, but the separation of the building ensures that it does not challenge or significantly detract from the existing features identified as having heritage significance within the park, such as the bandstand.

Notwithstanding the above, it is considered that the current design of the proposed building could be improved so as to lessen the visual impact of the development when viewed from McNamara Street and its surrounds. The building appears to have been designed with its frontage towards the park, and ‘back of house’ towards McNamara Street (see Figure 3). However, it is considered that all elevations are ‘frontages’ given the park is surrounded on all sides by streets and commercial buildings. Views and vistas into and around the park are also considered important. As such, each of the elevations need to be designed with a suitable visual appearance.

Figure 3 - proposed eastern elevation

(from submitted drawing number CC 04 A, prepared by Architecture Raw, and dated 14/8/2018)

Council’s heritage advisor and staff have recommended changes to the design of the building as follows:

- make the building symmetrical (i.e. building footprint, cubicles, and openings)

- provide a steel plate to complete the perimeter and to screen the slope of the polycarbonate roofing, which is out of character with the otherwise well resolved pergola,

- screen the polycarbonate pergola material with a timber batten screen beneath given the tendency of this material to yellow, get dirty, and to weather, and

- reduce the length of the pergola, which extends considerably beyond the built form without a pragmatic rationale, and wrap the element around the corners and whole building to screen the building.

The applicant has responded that they do not wish to make any changes to the design of the proposed building, stating that the layout was settled on by Council following design sessions, the costs would exceed the available budget, that current polycarbonate products do not yellow, and that extending the pergola will cause more impacts given it will increase the scale of the building and impact on the security of patrons.

Ideally, amending the symmetry of the footprint and openings of the building would assist in providing a better appearance and may assist Council in addressing submissions. However, considering that the applicant has indicated a preference not alter the layout of the building, it is recommended that a wrap-around style pergola, with landscaping growing up and over it, could assist in blending the proposed building into the park surrounds and provide visual interest to the streetscape. This is considered to be a suitable compromised position between the applicant’s needs, staff recommendations, and the concerns of submitters and could adequately mitigate heritage and visual impacts. Although extending the pergola will add bulk to the building, it will be spread around each elevation and will not be visible in its whole expanse from any viewpoint other than from above. The applicant could also reduce the width of the pergola (as recommended) to achieve this, which would reduce building costs. As such, a condition of consent is recommended to amend the plans, altering the pergola to wrap around the building and for landscaping details to be provided for further assessment. It is considered that the proposed materials and colours are appropriate.

While one tree is to be removed to facilitate the development, it is a small young tree and does not have heritage significance. The proposal seeks to provide additional plantings on the pergola structure, which will assist in blending the building into the park, and offset the loss of tree canopy. The landscaping plan required by the condition of consent recommended above will ensure the tree loss is mitigated, as well as mitigate heritage impacts. It is noted that the proposed building will be constructed very close to two existing mature trees on the site (see Figure 4). A condition of consent is recommended to set up a tree protection zone (‘TPZ’) around these trees to ensure their protection during construction.

It is considered that a possibility exists for archaeological material to exist under this site, given the park's position near the heart of the first settlement of the township in the early 20th Century. As a precaution, a condition of consent is recommended to address potential archaeology on the site.

It is considered that a heritage management document and heritage management plan are not required in this case.

Overall, subject to the recommended changes to the pergola and adequate plantings being installed, heritage and visual impacts can be adequately mitigated, and the proposal meets the objectives of LEP Clause 5.10.

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 removal of the tree, and the construction of the proposed building. The earthworks can be appropriately supported onsite, and the change in ground level is not substantial. The extent of disruption to the drainage of the site is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways. The extent of the earthworks will not materially affect the potential future use or redevelopment of the site that may occur at the end of the proposed development's lifespan.

The site is not known to be contaminated. The site is not known to contain any Aboriginal, European or Archaeological relics. Previous known uses of the site do not suggest that any relics are likely to be uncovered. However, conditions are recommended 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.

Conditions are also recommended 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 during construction.

7.2 - Flood Planning

This clause applies to land identified on the Flood Planning Map as a Flood Planning Area and requires that, before any consent is issued, Council must be satisfied that the proposal:

(a) is compatible with the flood hazard of the land, and

(b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

In this regard the proposed development is unlikely to change flooding regimes on or off the site and would be unlikely to cause or contribute to erosion, siltation or reduce riparian vegetation, and is therefore unlikely to create a cost burden on the community or neighbours. Notwithstanding the above, a condition of consent is recommended relating to the use of flood compatible materials, and the location of electrical outlets as a precautionary measure.

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 proposed building is modest in size and a substantial portion of the park will be retained as permeable surfaces, therefore post development runoff levels are unlikely to exceed the predevelopment levels. The proposal will be connected to the existing stormwater system, and monetary contributions towards water, sewer and drainage will be required.