Late Items Attachments of Planning and Development Committee

Enforcement Policy

1. Introduction

1.1 This Enforcement Policy (Policy) provides an overview of Orange City Council’s (Council) policy objectives, regulatory responsibilities and enforcement actions that can be taken by Council. The Policy also includes specific processes and procedures that provide guidance to those carrying out enforcement actions.

1.2 Council is involved in a broad range of regulatory activities, including but not limited to:

1.2.1 Local Government Act 1993 (LG Act),

1.2.2 Environmental Planning and Assessment Act 1979 (EP&A Act);

1.2.3 Protection of the Environment Operations Act 1997 (POEO Act)

1.2.4 Food Act 2003;

1.2.5 Public Health Act 2010; and

1.2.6 Companion Animals Act 1998.

1.3 The Policy helps Council staff act promptly, consistently and effectively in response to allegations of unlawful activity. The Policy reflects the need for a transparent decision making process and for enforcement actions to be carried out in an efficient, fair and consistent manner having regard to all the circumstances.

1.4 This Policy updates Council’s draft Enforcement Policy dated July 2010. The Policy reflects the updated NSW Ombudsman’s Model Compliance and Enforcement Model Policy (December 2015) and other key policy documents including the NSW Department of Planning and Environment’s Prosecution Guidelines (May 2016) and NSW Environment Protection Authority’s (EPA) Prosecution Guidelines (March 2013).

2. Purpose and scope

2.1 This Policy provides information for Council staff and the community about Council’s position on compliance and enforcement matters in the Orange local government area.

2.2 The purpose of this Policy is to:

2.2.1 enable the Council to acknowledge its obligation under section 8A of the LG Act to ensure that its regulatory powers are carried out fairly, ethically and without bias;

2.2.2 provide transparency in decision making and to facilitate a proportional approach to compliance and enforcement;

2.2.3 provide a proactive policy statement regarding the enforcement of compliance with legislation and/or condition/s of development consent;

2.2.4 foster prompt, consistent and effective action by the Council in response to allegations of unlawful activity while ensuring that the principles of procedural fairness are adhered to; and

2.2.5 set out how the Council balances its responsibilities for ensuring compliance with expected standards of conduct while also ensuring best possible value for residents and ratepayers in the use of Council funds. This Policy outlines matters to be considered at the various stages of the enforcement process.

2.3 In certain circumstances Council may have shared enforcement responsibilities with other regulatory authorities such as the NSW EPA and SafeWork NSW. This Policy sets out a collaborative and cooperative approach to such matters. Advice and guidance is also provided on the role of Council in building and construction compliance matters where there is a private certifier, and the role of councillors in enforcement.

2.4 Responsible Council staff are not limited by this Policy in their use of discretion and the exercise of official functions. The full circumstances and facts of each case need to be considered when determining whether any enforcement action should be taken by Council.

3. Organisational approach

3.1 Compliance and enforcement is important:

3.1.1 to prevent or minimise harm to health, welfare, safety, property or the environment;

3.1.2 to improve the safety and amenity of the City’s residents and visitors to the area;

3.1.3 for the collective good, the welfare of the community or the public interest;

3.1.4 to promote social policies (for example to preserve or protect the environment or assets of heritage significance);

3.1.5 to manage risks;

3.1.6 to uphold social order;

3.1.7 to meet the expectations of the community;

3.1.8 to encourage reports about possible unlawful activity from the community;

3.1.9 to make the regulated community aware of their legal obligations and how to comply; and

3.1.10 details of any other relevant strategic planning.

3.2 The objects section of the legislation that Council administers can specify the nature of the harm that is being addressed and explicitly state the regulatory purposes of the legislation. These objects should be considered when carrying out enforcement actions.

3.3 Under section 8A of the LG Act councils are obliged to ensure that in the exercise of their functions, relevantly:

3.3.1 councils should provide strong and effective representation, leadership, planning and decision-making;

3.3.2 councils should carry out functions in a way that provides the best possible value for residents and ratepayers;

3.3.3 councils should plan strategically, using the integrated planning and reporting framework, for the provision of effective and efficient services and regulation to meet the diverse needs of the local community;

3.3.4 councils should apply the integrated planning and reporting framework in carrying out their functions so as to achieve desired outcomes and continuous improvements;

3.3.5 councils should work co-operatively with other councils and the State government to achieve desired outcomes for the local community;

3.3.6 councils should manage lands and other assets so that current and future local community needs can be met in an affordable way; and

3.3.7 councils should act fairly, ethically and without bias in the interests of the local community.

4. Definitions

Term

Meaning

Complaint

A complaint is an expression of dissatisfaction made about a Councillor or Council services, staff or the handling of a complaint, where a response or resolution is explicitly or implicitly expected or legally required.

For the purposes of this Policy, a complaint does not include:

§ a report alleging unlawful activity (see definition below);

§ a request for information about a Council policy or procedure;

§ a request for an explanation of actions taken by Council; or

§ a request for internal review of a Council decision;

§ a customer service request

Enforcement

Actions taken in response to serious or deliberate contraventions of laws.

Regulation

Using a variety of tools and strategies to influence and change behaviour to achieve the objectives of an Act, Regulation or other statutory instrument administered by Council.

Report alleging unlawful activity

An expression of concern or a request for service in relation to alleged unlawful activity, where a response or resolution is explicitly or implicitly expected or legally required.

Unlawful activity

Any activity or work that has been or is being carried out contrary to the below and/or failure to take required action in order to be compliant with:

§ terms or conditions of a development consent, approval, permit or licence;

§ an environmental planning instrument that regulates the activities or work that can be carried out on particular land;

§ a legislative provision regulating a particular activity or work; or

§ a required development consent, approval, permission or licence.

5. Policy objectives

5.1 The intent of this Policy is to establish clear guidelines and protocols for Council staff in the management of Council’s regulatory activities.

5.2 It provides guidance on:

5.2.1 responding to reports alleging unlawful activity;

5.2.2 assessing whether reports alleging unlawful activity require investigation;

5.2.3 deciding on whether enforcement action is warranted;

5.2.4 options for dealing with confirmed cases of unlawful activity;

5.2.5 taking legal action; and

5.2.6 implementing shared enforcement responsibilities.

5.3 The Policy also provides advice and guidance on:

5.3.1 the role of the Principal Certifying Authority; and

5.3.2 the role of councillors in enforcement.

6. Application

6.1 This Policy applies to regulatory activities within Council’s area of responsibility including, but not limited to:

6.1.1 development and building control;

6.1.2 pollution control;

6.1.3 environmental health;

6.1.4 public health and safety;

6.1.5 noxious weeds;

6.1.6 water and sewer;

6.1.7 septic systems;

6.1.8 control over animals;

6.1.9 food safety;

6.1.10 fire safety;

6.1.11 parking; and

6.1.12 tree preservation;

6.1.13 assets of heritage significance.

7. Compliance and enforcement principles

7.1 The following principles underpin Council actions relating to compliance and enforcement:

Principle: Accountable and transparent

7.1.1 acting in the best interests of public health and safety and in the best interests of the environment;

7.1.2 ensuring accountability for decisions to take or not take action;

7.1.3 acting fairly and impartially and without bias or unlawful discrimination;

7.1.4 providing information about compliance and enforcement priorities and reasons for decisions to improve understanding and certainty by the regulated community;

7.1.5 ensuring decisions are transparent, particularly when there is a departure from this Policy;

7.1.6 acting on any complaints or concerns about the conduct of compliance officers in accordance with Council’s Complaint Management Policy [ST016] and procedures advising people and organisations subject to enforcement action of any avenues available to seek an internal or external review of a decision;

Principle: Consistent

7.1.7 ensuring compliance and enforcement action is implemented consistently;

7.1.8 encouraging reports about possible unlawful activity by acting reasonably in response to the circumstances and facts of each matter;

Principle: Proportional

7.1.9 ensuring the level of enforcement action is proportionate to the level of risk and seriousness of the breach;

7.1.10 making cost-effective decisions about enforcement action;

7.1.11 taking action to address harm and deter future unlawful activity;

Principle: Timely

7.1.12 ensuring responses to reports alleging unlawful activity, and decision making and action in relation to those is timely.

8. Responsibility

8.1 Council receives information about alleged unlawful activity from members of the public, other government agencies and Council officers following inspections.

8.2 All Council staff who deal with reports alleging unlawful activity are responsible for implementing this Policy. Council staff are also responsible for ensuring that any other possible unlawful activity identified as a result of an inspection, proactive enforcement or other activity is brought to the attention of the appropriate Divisional Director of Council.

8.3 Council staff are required to:

8.3.1 treat all relevant parties with courtesy and respect;

8.3.2 communicate with all relevant parties and provide feedback on the progress of an investigation and any reasons for delay without compromising the integrity of the investigation;

8.3.3 make full and proper records in relation to the assessment and investigation of reports alleging unlawful activity, including reasons for any decisions;

8.3.4 inform all relevant parties of reasons for decisions;

8.3.5 ensure the outcomes of investigations demonstrate that adequate and appropriate action was taken and/or is proposed to be taken in response to a report of alleged unlawful activity; and

8.3.6 provide information to all relevant parties about any avenues to seek an internal or external review of a decision.

8.4 All reports alleging unlawful activity are to be entered into Council’s Customer Request Management System and actioned in a timely manner by the appropriate business unit in accordance with Council’s Customer Service Obligation Policy [ST021]. Council’s Customer Request Management System identifies:

8.4.1 responsibilities of those recording reports;

8.4.2 reasonable response time requirements and type of response;

8.4.3 reasonable timeframes in which actions need to be completed;

8.4.4 what information should be provided to the individual;

8.4.5 how information should be provided to the individual – [e.g. over the phone or in writing, with approval of general manager or team leader]; and

8.4.6 when such information should be provided to the individual.

8.5 Council’s action on reports alleging unlawful activity will be instigated within the following time frames:

8.5.1 Urgent and life threatening matters will be actioned as soon as possible following receipt of the report. Unsafe building works, unsafe pool fencing, dangerous awnings, collapsed building/wall, serious pollution, food safety issues, imminent damage to assets of heritage significance and public health and safety matters will be dealt with on the day of the receipt of a complaint.

8.5.2 General compliance matters will be dealt with on a priority basis having regard to the relative seriousness of the matter. These include works not in accordance with consent or construction without consent, illegal use, noise and food complaints.

8.5.3 Nuisance matters will be actioned in accordance with available resources; examples include domestic noise matters, minor non-compliance such as overgrown land or other matters in which there are no likely immediate health or safety implications.

8.6 Only Council staff with appropriate delegations from the General Manager can undertake investigations or compliance and enforcement action in relation to this Policy.

9. Responding to concerns about unlawful activity

How reports alleging unlawful activity will be dealt with by Council

9.1 Council will record and assess every report alleging unlawful activity.

9.2 Council will respond to every report unless the person raising the matter has indicated they do not wish to receive a response about Council’s handling of the matter, or the report is anonymous.

9.3 Generally speaking, Council’s objectives when dealing with reports alleging unlawful activity are to:

9.3.1 maintain the collective good and welfare of the community;

9.3.2 prevent or minimise harm to health, welfare, safety, property or the environment;

9.3.3 consider the broader public interest having regard to Council’s priorities and any resource limitations; and

9.3.4 consider the report fairly and impartially.

9.4 Not all reports will be investigated. A preliminary assessment of all matters will be made to determine the priority for a response, and whether investigation or other action is required.

9.5 An investigation of alleged unlawful activity may take a significant amount of time to complete, particularly where the issues are complex. If Council decides to investigate, staff will give the person who reported the alleged unlawful activity feedback on the progress of the investigation, and any reasons for delay. That person cannot expect to be given details about every aspect of the investigation or information that would compromise the integrity of the investigation.

9.6 Decisions about what action should be taken by Council are made at the Council’s discretion. This means the objective is that reports alleging unlawful activity will be resolved to the satisfaction of Council, not necessarily the person raising the matter. Council will generally try to resolve matters as quickly and informally as possible where this will lead to a satisfactory outcome so as to avoid unnecessary costs of taking formal action.

9.7 Council staff will endeavour to manage the expectations of people who report alleged unlawful activity, and in particular explain that in the absence of sufficient evidence of unlawful activity, Council may be unable to take further action. Council does not have unlimited resources and powers to deal with reports alleging unlawful activity. If Council is unable to fully investigate or take action on a matter because it is restricted by any legal or resource limitations this will be explained to the person.

9.8 While there are certain statutory requirements that must be met in relation to notices and orders Council staff will endeavour that all explanatory communications are made in plain English and explain any technical language that the law requires to be used.

Confidentiality of people who report allegations of unlawful activity

9.9 A person who reports allegations of unlawful activity should not expect that their identity will remain confidential from the subject of their report in all circumstances. Council may have to disclose information that identifies a person in the following cases:

9.9.1 the disclosure is necessary to investigate the matter;

9.9.2 their identity has already been disclosed to the subject of their report directly or in a publicly available document;

9.9.3 the person was consulted following receipt of a Government Information (Public Access) Act 2009 application and did not object to the disclosure;

9.9.4 the person consents in writing to their identity being disclosed;

9.9.5 the disclosure is required to comply with principles of procedural fairness; and

9.9.6 the matter proceeds to court.

9.10 Council will take seriously any concerns a person may have about their physical safety being endangered as a result of making a report. However, this may limit Council’s ability to investigate the matter.

What Council expects from people who report allegations of unlawful activity

9.11 Council expects a person who reports allegations of unlawful activity will cooperate and act in good faith in respect of any investigations conducted by Council. This includes:

9.11.1 providing a clear description of the problem (and the resolution sought, if relevant);

9.11.2 giving all available and relevant information to Council, including any new information about the alleged activity that may become known to the person following the making of their report;

9.11.3 not giving any information that is intentionally misleading or wrong;

9.11.4 cooperating with Council’s inquiries and giving timely responses to questions and requests for information;

9.11.5 treating Council’s staff with courtesy and respect; and

9.11.6 allowing the investigation to be completed without prematurely taking the matter to other agencies unless referred to by Council.

9.12 If these expectations of the reporting person are not met, Council may need to set limits or conditions on the continuation of the investigation or may need to restrict any further communications with the person.

9.13 Any unreasonable conduct will be dealt with in accordance with the principles of Council’s Code of Conduct [ST010] and the NSW Ombudsman’s Managing Unreasonable Complainant Conduct Manual 2012.

What parties can expect from Council staff

9.14 A person who reports alleged unlawful activity, as well as individuals or businesses that are subject to investigation and any enforcement action, can expect that Council staff will:

9.14.1 treat them with courtesy and respect;

9.14.2 advise them of the outcome of Council’s investigation of the alleged unlawful activity, including explanation of the reasons why that outcome was considered to be reasonable in the circumstances;

9.14.3 clearly explain decisions in plain English;

9.14.4 provide information about any relevant internal and external appeal processes that may be available; and

9.14.5 carefully assess any new information provided by any party after a decision has been made and advise whether further action will be taken.

9.15 Any disclose of information is subject to the overriding obligations of Council in relation to legal professional privilege, the Government Information (Public Access) Act 2009 and the Privacy and Personal Information Protection Act 1998.

Complaints about Council’s enforcement actions

9.16 Any complaints about Council’s handling of reports alleging unlawful activity will be recorded separately and handled in accordance with Council’s Complaints Management Policy and procedures.

9.17 Where a person or organisation subject to enforcement action merely disputes Council’s decision to take enforcement against them, they will be directed to make representations in accordance with any relevant internal and external appeal processes.

9.18 Council staff will act on any complaints about the conduct of compliance officers in accordance with Council’s Complaints Management Policy and procedures.

9.19 Anonymous reports will be recorded and assessed in accordance with the above requirements. However, because it is not possible to seek clarification or additional information about a matter, it may be more difficult to evaluate the allegations and therefore these reports are less likely to lead to investigation.

Unlawful activity outside business hours

9.20 Unlawful activity can occur outside business hours. In particular, Council may receive reports about matters such as dogs, offensive noise and failure to comply with limitations on hours of operation during nights and weekends.

9.21 Due to resource and operational capability restraints on Council, investigations into alleged unlawful activity outside business hours will be assessed on the basis of risk of harm to health, welfare, safety, property or the environment or whether it is otherwise in the public interest to take such action.

Neighbour disputes

9.22 Council will at times receive reports from parties involved in neighbour disputes seeking Council’s involvement. When a dispute between two neighbours is a civil matter, Council will often have no authority to resolve the issue in dispute. Some reports will raise several matters, some of which will require Council’s involvement and some of which will be personal to the parties.

9.23 Council staff will thoroughly assess such reports to determine whether there is evidence of any possible unlawful activity requiring action by Council. Care will be taken to explain which aspects of a report Council can deal with and which cannot be dealt with and why. Where possible, parties will be provided with information or referred to services and resources about how to resolve neighbour disputes such as LawAccess NSW, Community Justice Centres or private mediation.

9.24 It is possible that one party will provide further information about a matter which changes Council’s decision about whether it will become involved. In such circumstances, Council staff will carefully consider the matter before taking action and document reasons for the new decision. The parties will be advised about the reasons Council has changed its position on a matter. Council staff will not change a decision about whether or not Council should be involved purely as a response to the conduct of an individual such as persistent demands or threats.

10. Investigating alleged unlawful activity

10.1 Not all reports alleging unlawful activity will warrant investigation. A preliminary assessment of all matters will be made to determine whether investigation or other action is required. Council will prioritise matters on the basis of risk to public safety, human health, the environment and risk to assets of heritage significance.

10.2 Council uses a risk based category system which identifies high, medium and low risks for common unlawful activities in order to prioritise enforcement action. This assists Council with managing expectations and the allocation of its resources. Appendix E includes flow charts of Council’s decision making for common unlawful activities. The flowcharts identify the actions taken by Council when the risks of the unlawful activity have been identified as high, medium and low risk.

10.3 If there is insufficient information in the report to undertake a preliminary assessment, further information may need to be sought from the person who made the report or an inspection undertaken.

Circumstances where no action will be taken

10.4 Council will take no further action if, following a preliminary assessment, it is identified that:

10.4.1 Council does not have jurisdiction to investigate or is not the appropriate authority to take action on the issues raised. Where there is another appropriate authority or course of action, council may bring the matter to the attention of the authority or provide information and contact details to the person reporting the incident. For example SafeWork NSW for workplace safety matters and the NSW EPA for possible environmental offences and Community Justice Centres NSW for personal disputes;

10.4.2 the report relates substantially to a matter previously determined by Council and no new or compelling information is presented which would cause Council to change its earlier decision. In this case, Council staff will acknowledge the report and advise that no further action will be taken as no new information had been provided (other than where the person has previously been advised they would receive no further response);

10.4.3 the allegations relate to a lawful activity (for example, where there is an existing approval or the activity is permissible without Council approval or consent being required);

10.4.4 the report is not supported with evidence or appears to have no substance; and

10.4.5 the relevant Council manager, director or the general manager determines that investigation or other action would have an unreasonable impact on resources and/or is unlikely to achieve an outcome sufficient to justify the expenditure of resources.

Relevant factors guiding decisions as to whether to take action

10.5 When deciding whether to investigate, Council will consider a range of factors including whether:

10.5.1 the activity is having a significant detrimental effect on the environment or assets of heritage significance, or it constitutes a risk to public safety or human health;

10.5.2 the report is premature as it relates to some unfinished aspect of work that is still in progress;

10.5.3 the activity or work is permissible with or without permission;

10.5.4 all conditions of consent are being complied with;

10.5.5 much time has elapsed since the events the subject of the report took place;

10.5.6 another authority is a more appropriate agency to investigate and deal with the matter;

10.5.7 it appears there is a pattern of conduct or evidence of a possible wide spread problem;

10.5.8 the person or organisation reported has been the subject of previous reports;

10.5.9 the report raises matters of special significance in terms of the Council’s existing priorities;

10.5.10 there are significant resource implications in relation to an investigation and any subsequent enforcement action; and

10.5.11 it is in the public interest to investigate the report.

10.6 The above are factors for Council to consider and weigh in making a determination. Council staff are not limited in their use of discretion by these considerations and may decide to investigate based on these and other factors.

10.7 The objective of the processes council staff use when investigating incidents of alleged unlawful activity is to:

10.7.1 determine the cause of the incident;

10.7.2 determine if there has been a contravention of law, policy or standards;

10.7.3 gather evidence to the required standard to support any required enforcement action; and

10.7.4 determine any necessary action to mitigate the possibility of reoccurrence of similar incidents.

10.8 Any decision not to investigate an allegation of unlawful activity will be recorded and the reasons for that decision clearly stated.

11. Taking enforcement action

11.1 When deciding whether to take enforcement action in relation to a confirmed case of unlawful activity, Council will consider the full circumstances and facts of the matter and the public interest. The following common considerations will assist Council staff in determining the most appropriate response in the public interest. A further explanation of the considerations below is provided in Appendix A.

Considerations about the alleged offence and impact

11.2 Council will consider:

11.2.1 the nature, extent and severity of the unlawful activity, including whether the activity is continuing;

11.2.2 the harm or potential harm to the environment, assets of heritage significance, public health, safety or amenity caused by the unlawful activity;

11.2.3 the seriousness of the breach, including whether the breach is merely technical, inconsequential or minor in nature; and

11.2.4 the time period that has lapsed since the date of the unlawful activity.

Considerations about the alleged offender

11.3 Council will consider:

11.3.1 any prior warnings, instructions, advice that was issued to the person or organisation reported or previous enforcement action taken against them;

11.3.2 whether the offence was committed with intent;

11.3.3 whether the person or organisation reported has been proactive in the resolution of the matter and assisted with any Council requirements and instructions;

11.3.4 any mitigating or aggravating circumstances demonstrated by the alleged offender; and

11.3.5 any particular circumstances of hardship affecting the person or organisation reported.

Considerations about the impact of any enforcement action

11.4 Council will consider:

11.4.1 the need to deter any future unlawful activity;

11.4.2 whether an educative approach would be more appropriate than a punitive approach in resolving the matter;

11.4.3 the prospect of success if the proposed enforcement action was challenged in court;

11.4.4 the costs and benefits of taking formal enforcement action as opposed to taking informal or no action;

11.4.5 what action would be proportionate and reasonable in response to the unlawful activity; and

11.4.6 whether Council is prevented from taking action based on earlier advice given, i.e. whether an estoppel situation has been created.

Considerations about the potential for remedy

11.5 Council will consider:

11.5.1 whether the breach can be easily remedied;

11.5.2 whether it is likely consent would have been given for the activity if it had been sought;

11.5.3 whether there is a draft planning instrument on exhibition that would make the unauthorised use legal;

Legal or technical issues

11.6 Where legal and/or technical issues are in question, Council staff will consider whether legal advice or professional advice from duly qualified staff or other experts should be obtained and considered. Council may also require the person subject to possible enforcement action to obtain professional advice in relation to issues of concern to Council for assessment as to whether further action is required.

Requirements of Council staff considering enforcement action

11.7 Prior to taking enforcement action, Council staff will take into account the above considerations as well as the evidence gathered during their investigation. Council staff must act impartially, be mindful of their obligations under Council’s Code of Conduct and not act as a decision-maker in relation to any matter in which they have a personal interest. Enforcement action will not be taken (or not taken) purely as a response to the conduct of an individual such as persistent demands or threats.

11.8 Council staff are required to maintain records about decision-making processes in relation to reports alleging unlawful activity and any enforcement action, as well as records of interactions with relevant parties. Council staff will at all times adhere to Council’s internal approval processes prior to the commencement of any enforcement action

11.9 Council staff will take steps to ensure that any enforcement action is taken against the correct person or organisation. Where there are multiple possible parties to an alleged unlawful activity, it will generally not be appropriate to take enforcement action against every person who may be liable for the alleged unlawful activity. In such circumstances, Council staff will be guided by legal advice in determining the appropriate person/s to pursue.

11.10 In addition to this Policy, Council may also adopt guidelines for Council staff about specific types of regulatory activity and the circumstances in which enforcement action will or will not be taken. Appendix B provides specific guidelines for Council staff for unauthorised building works. Council may prepare further guidelines for other areas of regulatory activity.

11.11 The guidelines prepared by Council are intended to be used as a guide only, and therefore may be departed from by Council staff at any time. The full circumstances and facts of each case will be considered.

Procedural fairness

11.12 Council will ensure that the principles of procedural fairness are adhered to prior to a decision being made about enforcement action. The following principles will be addressed and implemented by the Council:

11.12.1 Whoever is the subject of concern will know all the allegations in relation to their action;

11.12.2 All parties to the alleged unlawful activity will have the right to be heard;

11.12.3 All relevant submissions and evidence will be considered;

11.12.4 Matters which are not relevant will not be taken into account;

11.12.5 The person reporting the alleged unlawful activity will not determine the matter; and

11.12.6 The decision-maker will be fair and just.

12. Options for dealing with confirmed cases of unlawful activity

12.1 Council will try to use the quickest and most informal option to deal with unlawful activity wherever possible unless:

12.1.1 there is little likelihood of compliance with such options;

12.1.2 the unlawful activity is part of a pattern of conduct and formal action is appropriate in the circumstances.

12.2 Council staff will use discretion to determine the most appropriate response to confirmed cases of unlawful activity and may take more than one approach.

12.3 Any enforcement action taken by Council will depend on the full circumstances and facts of each case, with any decision being made on the merits.

12.4 At all times, Council’s key concerns are:

12.4.1 to prevent or minimise harm to health, welfare, safety, property, assets of heritage significance, or the environment; and

12.4.2 to influence behaviour change for the common good and on behalf of the community.

12.5 Council has a range of enforcement options available to it. The following enforcement options to be considered by Council are ordered to reflect an escalation in response that is proportionate to the level of risk, the seriousness of the confirmed breach or the need for a deterrent.

Level of risk: very low

12.5.1 take no action on the basis of a lack of evidence or some other appropriate reason;

12.5.2 provision of information/advice on how to be compliant;

Level of risk: low

12.5.3 negotiating with the person to obtain voluntary undertakings or an agreement to address the issues of concern;

12.5.4 issuing a verbal/written warning, a formal caution or a show cause letter;

Level of risk: Medium

12.5.5 issuing a letter requiring work to be done or activity to cease in lieu of more formal action;

Level of risk: High

12.5.6 issuing a penalty notice;

12.5.7 issuing a notice of intention to serve an order or notice under relevant legislation, and then serving an order or notice if appropriate (for example, under ss. 124-128 of the LG Act, s. 9.39 of the EP&A Act, and Pts 4.2-4.4 and 8.6, and Schedule 5 of the POEO Act);

12.5.8 carrying out the works specified in an order at the cost of the person served with the order (s. 678 LG Act).

Level of risk: Very High

12.5.9 seeking an injunction through the courts to prevent future or continuing unlawful activity;

12.5.10 issuing an order under relevant legislation in an emergency (for example, Schedule 5, items 5(3) and 6(2)(c) of the EP&A Act);

12.5.11 commence civil proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the relevant Act or Regulation (s. 673 LG Act; s. 9.45 EP&A Act); and

12.5.12 commence criminal proceedings for an offence against the relevant Act or Regulation (s. 691 LG Act, ss. 9.37, 9.50 EP&A Act, Chapter 5 POEO Act).

12.6 Appendix C lists the offences where prior warning (verbal or written) is likely to be given to the offender/s before any enforcement action (in the form of the service of an order or notice or penalty notice or court action) is taken.

12.7 Appendix D lists the offences where no prior warning is likely to be given to the offender/s before any enforcement action is taken.

Following up enforcement action

12.8 All enforcement action will be reviewed and monitored to ensure compliance with any undertakings given by the subject of enforcement action or advice, directions or orders issued by Council. Reports alleging continuing unlawful activity will be assessed and further action may be taken if necessary. If the unlawful activity has ceased or the work has been rectified, the matter will be resubmitted for follow up action to ensure compliance outcomes are met. Should initial enforcement action be found to have been ineffective, Council staff will consider other enforcement options.

13. Taking legal action

13.1 Council and its delegated staff will consider the following in deciding whether to commence criminal or civil proceedings:

13.1.1 whether there is sufficient evidence to establish a case to the required standard of proof;

13.1.2 whether there is a reasonable prospect of success before a court; and

13.1.3 whether the public interest warrants legal action being pursued.

Whether there is sufficient evidence to establish a case to the required standard of proof

13.2 Council considers the decision to take legal action a serious matter, and as such will only initiate and continue proceedings once it has been established that there is admissible, substantial and reliable evidence to the required standard of proof and the public interest warrants legal action being pursued.

13.3 The basic requirement of any criminal prosecution is that the available evidence establishes a prima facie case. The prosecutor is required to prove the elements of the offence beyond reasonable doubt.

13.4 In civil enforcement proceedings, Council will require sufficient evidence to satisfy the court that an actual or threatened breach has occurred on the balance of probabilities.

Whether there is a reasonable prospect of success before a court

13.5 Given the expense of legal action Council will not take legal action unless there is a reasonable prospect of success before a court. In making this assessment, Council staff will consider various matters including the availability, competence and credibility of witnesses, the admissibility of the evidence, all possible defences, and any other factors which could affect the likelihood of a successful outcome.

Whether the public interest requires legal action be pursued

13.6 The principal consideration in deciding whether to commence legal proceedings is whether to do so is in the public interest. In making this determination, the same factors to be considered when taking enforcement action apply (See Section 11, Taking enforcement action).

13.7 The following considerations relate more specifically to the decision to commence legal proceedings and will assist Council and its delegated staff in making this determination:

13.7.1 the availability of any alternatives to legal action;

13.7.2 whether an urgent resolution is required (court proceedings may take some time);

13.7.3 the possible length and expense of court proceedings;

13.7.4 any possible counter-productive outcomes of court proceedings;

13.7.5 what the effective sentencing options are available to the court in the event of conviction; and

13.7.6 whether the proceedings or the consequences of any resulting conviction would be unduly harsh or oppressive.

Time within which to commence proceedings

13.8 Council staff must be aware of legislative time limits (limitation periods) in which enforcement proceedings must be commenced. Sometimes legal action will be statute barred despite good evidence that unlawful activity has occurred.

13.9 Limitation periods vary for criminal and civil enforcement actions. Council staff will consider the relevant limitation periods in the relevant legislation administered by Council.

14. Shared enforcement responsibilities

14.1 Some reports will raise matters involving shared regulatory responsibilities between Council and other authorities including the NSW EPA, the NSW Police Force, Liquor & Gaming NSW, NSW Fair Trading, NSW Food Authority and Department of Industry (Crown Lands).

14.2 Council recognises that collaboration and cooperation between authorities to address issues of shared regulatory responsibility is the best approach. To this end, where there are shared legislative responsibilities, Council staff will liaise with relevant authorities to establish:

14.2.1 which authority will take the leading role on any joint investigation;

14.2.2 which activities each authority will carry out;

14.2.3 responsibilities for updating an individual where relevant; and

14.2.4 protocols for exchanging confidential information between the relevant authorities.

14.3 Council will reasonably endeavour to respond to requests for information or assistance on joint regulatory matters in a timely manner.

15. Role of Council where there is a private certifier

15.1 Council retains its regulatory role and enforcement powers where a private certifier has been appointed the Principal Certifying Authority (PCA). However, if a private certifier is appointed the PCA, it is not Council’s responsibility to ensure building and construction compliance.

15.2 Private certifiers have limited enforcement powers as the PCA. Private certifiers have the power to issue a notice of intention to issue an order to the owner or builder to comply with the conditions of consent or rectify any breaches. A copy of any notice of intention issued by a private certifier must be provided to Council for assessment as to whether Council will enforce the notice by issuing an order.

15.3 Council and private certifiers will work together to resolve any issues when they arise to achieve compliance with the development consent or complying development certificate. Council staff will take steps to ensure individuals are clear about which agency performs which role.

16. Role of councillors in enforcement

16.1 Decision making relating to the investigation of reports alleging unlawful activity and taking enforcement action is the responsibility of appropriately authorised Council staff or the Council itself.

16.2 Individual councillors do not have the right to direct Council staff in their day-to-day activities. Councillors can help individuals who raise concerns with them by satisfying themselves that Council’s policies are being carried out correctly, however they cannot deviate from Council’s policies in order to satisfy that individual’s concerns.

16.3 The general manager may present certain decisions to be ratified by Council if this is necessary or desirable, and the councillors may also have the right to call for a report about particular issues at a Council meeting.

17. Delegations

17.1 Delegations conferred on staff to initiate various levels of enforcement action are set out in the relevant Council officer’s delegations, all officers having appropriate delegations are authorised to undertake appropriate enforcement action.

17.2 Council officers have delegations under the following legislation:

17.2.1 Australian Road Rules;

17.2.2 Roads Act 1993;

17.2.3 Impounding Act 1993;

17.2.4 Companion Animals Act 1998;

17.2.5 Food Act 2003;

17.2.6 Public Health Act 1991;

17.2.7 Swimming Pools Act 1992;

17.2.8 Noxious Weeds Act 1993;

17.2.9 Rural Fires Act 1997;

17.2.10 Contaminated Land Management Act 1997;

17.2.11 Environmental Planning and Assessment Act 1979;

17.2.12 Local Government Act 1993; and

17.2.13 Protection of the Environment Operations Act 1997, and the various Regulations made there under.

17.3 Council staff delegations for taking action under this Policy are included in Council’s Delegation Register

18. Approval

18.1 This Policy was approved by Council on [Council to insert date].

19. Review

19.1 This Policy is to be reviewed every five years.

Appendix A Taking enforcement action

1.1 When deciding whether to take enforcement action in relation to a confirmed case of unlawful activity, Council will consider all the circumstances of the matter. The section below is intended to assist staff by providing a further explanation of matters to be taken into consideration when deciding whether to take enforcement action.

Considerations about the alleged offence and impact

1.2 Considerations include:

1.2.1 the nature, extent and severity of the unlawful activity including whether the activity continued;

1.2.2 the harm or potential harm to the environment, assets of heritage significance, public health, safety or amenity caused by the unlawful activity;

1.2.3 the seriousness of the breach, including whether the breach is merely technical, inconsequential or minor in nature;

1.2.4 the costs and benefits of taking formal enforcement action as opposed to taking informal or no action; and

1.2.5 the time period that has lapsed since the date of the unlawful activity.

1.3 Consideration should be given to the nature, extent and severity of any actual or potential impact of the unlawful activity. If there is actual or potential detriment to the natural or built environment, to the health or safety of residents or the amenity of an area, this would normally warrant a decision to take action to remedy or restrain the breach. It is also important to consider whether the unlawful activity is ongoing or has ceased.

1.4 Consideration should be given to whether the likely costs and benefits of any enforcement action is justifiable where breaches result in no material impacts upon any other party or the health, safety and amenity of the environment and community. A breach of a technical, inconsequential or minor nature, in the absence of any other aggravating factor, will generally not warrant a decision to take action to remedy or restrain the breach.

1.5 Legislation may provide time limits in which to commence proceedings and take enforcement action, and sometimes prosecution will be statute barred despite good evidence that unlawful activity has taken place. Carefully consider any such statutory time periods for taking action or obtain advice if necessary.

1.6 In addition, consideration should be given to the time at which the offence or breach occurred and the ‘reasonableness’ of taking enforcement action if a significant time has lapsed since the time of the offence or breach.

Considerations about the alleged offender

1.7 Considerations include:

1.7.1 any prior warnings, instructions, advice that was issued to the person or organisation reported or previous enforcement action taken against them;

1.7.2 whether the offence was committed with intent;

1.7.3 whether the person or organisation reported has been proactive in the resolution of the matter and assisted with any Council requirements and instructions;

1.7.4 any mitigating or aggravating circumstances demonstrated by the subject of the report; and

1.7.5 any particular circumstances of hardship affecting the person or organisation reported.

1.8 Consideration should be given to the previous history of the offender. If prior warnings, instructions or advice have been issued to the person or organisation reported and were not followed, a more formal (and/or punitive) enforcement approach may be more appropriate.

1.9 Consideration should be given to whether the offence was committed deliberately, recklessly or with gross negligence. Cases of this nature may more appropriately result in prosecution. Where an offence was committed as a result of an accident or genuine mistake, providing education and guidance or a formal warning may be more suitable in achieving desired outcomes.

1.10 Where the offender has been proactive in the resolution of the matter and has assisted Council in the resolution of the matter, it may be that the public interest would not be best served by prosecuting the offender, especially if the offending conduct or work has been rectified. If the offender has demonstrated a lack of contrition and is uncooperative with the investigation or mediation, a prosecution or monetary penalty would appear more appropriate.

1.11 Consideration should be given to any genuine mitigating circumstances of the offender such as age, physical or mental health, disability and any financial hardship of the offender resulting in an inability to pay.

Considerations about the impact of the enforcement action

1.12 Considerations include:

1.12.1 the need to deter any future unlawful activity;

1.12.2 whether an educative approach be more appropriate than a punitive approach in resolving the matter;

1.12.3 the prospect of success if the proposed enforcement action was challenged in court;

1.12.4 the costs and benefits of taking formal enforcement action as opposed to taking informal or no action;

1.12.5 what action would be proportionate and reasonable in response to the unlawful activity; and

1.12.6 whether the Council has created an estoppel situation.

1.13 Consideration should be given to the deterrent effect, both on the offender and others. Prosecutions, because of their great stigma if a conviction is secured, may be appropriate even for minor unlawful activity where it is likely to result in a greater level of overall deterrence.

1.14 When deciding whether to take an educative approach or enforcement approach, consideration should be given to the following matters:

1.14.1 the reasonable likelihood that the person may have known or should have known the relevant requirements or rules;

1.14.2 the level of contrition shown by the responsible person;

1.14.3 whether the parties have previously been advised of the regulatory requirements or provisions;

1.14.4 whether or not any previous warnings or instructions have been provided; and

1.14.5 the apparent level of intent shown by the responsible person.

1.15 It may not be appropriate to take enforcement action if the chances of success, in the event of an appeal or hearing, are unlikely. In such situations, you would need to identify the causes of that likelihood and address them in the particular case or as a general issue.

1.16 Consideration should be given to what is reasonable in the particular circumstances that apply. This includes a reasonable proportionality between the ends to be achieved and the means used to achieve them.

1.17 Consideration is to be given to what is reasonable in the circumstances and ensure the action is not disproportionate to the level of harm or damage arising from the breach.

1.18 Legal proceedings are expensive. When doing a cost-benefit analysis, costs and benefits should be assessed broadly and indirect costs and benefits should also be considered.

1.19 Estoppel is a legal rule which prevents a person from later denying something which may have previously been relied on, and acted upon by another person.

1.20 Consideration should be given to whether the actions of Council have created a reasonable expectation that no enforcement action would be taken.

Considerations about the potential for remedy

1.21 Considerations include:

1.21.1 whether the breach can be easily remedied;

1.21.2 whether it is likely consent would have been given for the activity if it had been sought; and

1.21.3 whether there is a draft planning instrument on exhibition that would make the unauthorised use legal.

1.22 If there is evidence of a significant issue of unlawful activity and that matter can be easily remedied by some action on the part of the person the subject of the report, there is a less compelling case for enforcement action, depending on the other circumstances of the case such as the conduct of the offender.

1.23 If retrospective approval is possible, it may be reasonable to allow an opportunity to obtain this prior to taking other enforcement action. In some cases, compliance by informal means may be the most efficient way to resolve the matter and other enforcement action may not be necessary.

1.24 This needs to be balanced with other considerations such as the public interest in enforcing the law.

Appendix B Specific enforcement guidelines for certain regulatory activities

Unauthorised building works

Scope of Council’s role

1.1 Council’s role as a regulatory authority is to protect public health and safety. Council is also responsible for certification and compliance with building standards and fire safety requirements. Council deals with reports alleging unlawful activity and takes action where appropriate.

1.2 Council’s officers are authorised to inspect premises and structures for compliance with the legislation.

1.3 Structural and other work to a property and some uses of buildings for activities may require Council approval.

Relevant legislation and standards

1.4 Relevant legislation and standards include:

1.4.1 Local Government Act 1993;

1.4.2 Building Professionals Act 2005;

1.4.3 Environmental Planning and Assessment Act 1979;

1.4.4 Protection of the Environment Operations Act 1997;

1.4.5 National Construction Code – Volumes 1, 2 and 3 (includes the Building Code of Australia);

1.4.6 National Plumbing Code:

1.4.7 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; and

1.4.8 Orange Local Environmental Plan 2011.

What action may be taken on confirmed cases of unlawful activity?

1.5 Council assesses allegations of unlawful activity in accordance with its compliance and enforcement policy.

1.6 Some examples of how Council staff may decide to act in particular circumstances are outlined below. The examples are not exhaustive and are intended as a guide only.

1.7 Enforcement option: Warning

1.8 Enforcement option: Penalty notice

1.9 Enforcement option: Notice of intention to issue an order

1.10 Enforcement option: Emergency order (without notice)

1.11 Enforcement option: Injunction

Appendix C Offences with prior warning

1.12 The following offences may result in a prior written warning being given to the person/s before any enforcement action in the form of the service of an order or notice or penalty infringement notice or court action is undertaken.

1.12.1 Annual Fire Safety Statement- non submission by owner;

1.12.2 Advertising signs without approval or creating unsightly conditions;

1.12.3 Air pollution – smoky chimney;

1.12.4 Barking / Roaming dog, unregistered dog;

1.12.5 Development / Activity without consent or not in accordance with a condition/s of consent;

1.12.6 Minor development or old unauthorised development;

1.12.7 Minor breach of consent condition/s;

1.12.8 Erosion & sediment control matters (owner/builder – sediment fences and similar offences, minor environmental offences);

1.12.9 Fire hazard of a less serious nature;

1.12.10 Food safety/hygiene matters of a less serious nature;

1.12.11 Obstruction of public place / road (minor matters);

1.12.12 Residential swimming pool issue not serious (e.g. resuscitation chart not provided); and

1.12.13 Revocation of an approval (e.g. footpath dining/ place of public entertainment).

1.13 In relation to noise pollution:

1.13.1 Air conditioner (s 45(b));*

1.13.2 Musical instrument and sound equipment (s 57(b));*

1.13.3 Power tools (s 51(1)(b));*

1.13.4 Motor vehicle on residential premises (s 8B);*

1.13.5 Use of refrigeration equipment fitted to motor vehicle (s 9B);*

1.13.6 Intruder alarm; and

1.13.7 Non-compliance with an Order/Notice/Direction- work partly done or other mitigating circumstances.

* Mandatory warning required under the Protection of the Environment Operation (Noise Control) Regulation 2017.

1.14 Note that the above list of offences is an indication only and any offences not listed will be considered on their individual merits and by reference to Council’s relevant statutory obligations and powers.

Appendix D Offences without prior warning

1.15 The following offences may result in no prior warning being given to the person/s before any enforcement action in the form of the service of an order or notice or penalty infringement notice or court action is undertaken:

1.15.1 Dangerous Dog Order / Attacking Dog / Restricted Dog;

1.15.2 Nuisance Dog Order;

1.15.3 Dangerous building / awning;

1.15.4 Dangerous waterhole;

1.15.5 Littering;

1.15.6 Deposit litter from vehicle;

1.15.7 Deposit litter / Dumped Rubbish;

1.15.8 Pollution Incident – Failure to notify;

1.15.9 Noise pollution generally after prescribed mandatory warning;

1.15.10 Noise abatement direction;

1.15.11 Pollute Waters;

1.15.12 Environmental damage of a significant nature;

1.15.13 Significant damage to or destruction of assets of heritage significance;

1.15.14 Erosion & sediment control matters;

1.15.15 Development not in accordance with consent / risk to health and safety / bush fire protection / notice of intention issued by PCA;*

1.15.16 Development without consent – unsatisfactory explanation / no explanation repeat offender / prohibited development / risk to health and safety or environment;*

1.15.17 Not comply with condition of development consent/approval to operate;*

1.15.18 Dilapidated building;

1.15.19 Fire hazard threatening an asset;

1.15.20 Food safety matters of a serious nature;

1.15.21 Failure to pay Clean Up / Prevention Notice fee;

1.15.22 Failure to comply with order / notice / cease use of premises / failure to comply with order regarding development consent / demolish remove unlawful building / threatening life / public safety / environment / amenity protection/ fence land / keeping of birds and animals/ remove object from public place / contravene noise control notice/ noise pollution;

1.15.23 Obstruction of road / public place involving safety;

1.15.24 Obstruction / intimidation/ assault of a Council officer;

1.15.25 Parking offences;

1.15.26 Swimming Pool fencing / gates / open; and

1.15.27 Street Trading without consent / approval.

*Only considered in an emergency (see Schedule 5 of the EP&A Act).

1.16 Note that the above list of offences is an indication only and any offences not listed will be considered on their individual merits and by reference to Council’s relevant statutory obligations and powers.

Appendix E Enforcement procedures

INTRODUCTION

Orange City Council, as the planning proposal authority, has prepared this Planning Proposal to amend Orange Local Environmental Plan 2011 (‘the LEP’). The Planning Proposal has been prepared in accordance with Division 3.4 of the Environmental Planning and Assessment Act 1979 (‘EP&A Act 1979’), A Guide to Preparing Planning Proposals and A Guide to Preparing Local Environmental Plans (August, 2016) issued by the NSW Department of Planning & Environment (‘DPE’).

The Planning Proposal is primarily an administrative housekeeping exercise, seeking to correct a number of anomalies and update the instrument to respond to emerging issues and trends encountered by Council over the past several years.

A number of very minor spot rezonings have also been identified along with one additional permitted use to rectify an unintended consequence of the adoption of Orange LEP 2011.

Further commentary on these matters can be found throughout this report, including under Part 3 Sections B, C, and D.

PART 1 – OBJECTIVES OR INTENDED OUTCOMES

The objectives of this planning proposal are to

· Rectify a series of anomalies that have been identified over time.

· Expand upon the range of exempt development that may be undertaken within the Orange LGA.

· Amend the approach to flood planning controls to automatically link the LEP with the most recent and up-to-date floodplain risk management plan when adopted by Council.

· Adopt a missing water catchment map tile to ensure the water catchment area is fully identified.

· Amend the Combined Local Map 1 in terms of the airport Obstacle Limitation Surface in view of the runway extension.

· Amend clause 4.1C to remove ambiguity in relation to multi-dwelling housing in Ploughmans Valley.

· Amend clause 4.2 to add Zone E3 Environmental Management to the list of zones that the clause applies to in order to facilitate the transfer of rural land between primary producers without creating additional dwelling entitlements.

· Adopt a clause to enable subdivision of land in situations where an LEP amendment results in a lot being subjected to more than one land use zone (split-zoned) or where a lot is subjected to more than one minimum lot size (split-sized) so that the overall intent of the LEP can be delivered in an orderly fashion.

· Adopt a clause to facilitate the orderly management of land by allowing boundary adjustments between two lots that are already below the minimum lot size, without creating new or additional dwelling entitlements.

· Adopt a clause that enables small scale café’s and residential areas subject to a floor space size limitation under clause 5.4, in recognition of and in order to support the importance of the food sector of Orange.

PART 2 - EXPLANATION OF PROVISIONS

The objective of this planning proposal will be achieved by

· Correct several anomalies that have been identified in the Heritage map and Schedule 5 Environmental Heritage as outlined in Attachment 1.

· Amend all LEP maps to update the cadastre used and properly align the values of each map and tile with the cadastral property boundaries where relevant as outlined in Attachment 2

· Create several new entries to Schedule 2 Exempt Development as shown in Attachment 3 in order to enable certain benign and minor forms of development to occur. Additionally to enable land in the E3 Environmental Management zone to access certain forms of exempt development currently permitted in the RU1 zone under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

· Amendment to the approach to flood control planning as outlined in Attachment 4 to align with new and updated floodplain risk management plans.

· Adoption of a missing map tile for Combined Local Map 1 sheet 12 as shown in Attachment 5a.

· Amendment of Combined Local Map 1 sheets 9, 10 and 15 as shown in Attachment 5b to reflect changes to the Orange Airport Obstacle Limitation Surface area

· Amend clause 4.1C as shown in attachment 6a to remove an ambiguity concerning multi-dwelling housing in Ploughmans Valley.

· Amend clause 4.2 as shown in attachment 6b to include the E3 Environmental Management zone in the list of zones to which the clause applies. This will facilitate the transfer of non-residential rural land holdings between primary producers.

· Adoption of a new clause as shown in attachment 6c to enable subdivision of split-zoned or split-sized land so that the intent of the LEP can be more fully delivered without establishing additional dwelling entitlements in rural areas.

· Adoption of a new clause as shown in attachment 6d to allow boundary adjustments in cases where both properties are already below the minimum lot size, without creating additional dwelling entitlements.

· Adoption of a new clause as shown in attachment 6e to enable small scale café’s in residential areas, without enabling larger chain restaurants that would have undue impacts upon the local amenity.

PART 3 - JUSTIFICATION

Section A. Need for the planning proposal

Q1. Is the planning proposal a result of any strategic study or report?

The planning proposal is not the direct result of any strategic study or report. The planning proposal results from and responds to the emergence of a range of issues over several years and is in recognition of the Department of Planning and Environments guidance to review the performance of LEPs on a regular basis.

Q2. Is the planning proposal the best means of achieving the objectives or intended outcomes, or is there a better way?

Due to the administrative nature of the planning proposal it covers a diverse mix of issues. In many cases, such as misdescriptions in the heritage schedule or errors in certain maps, the only possible response is to amend the LEP. In other situations alternative approaches have been considered and ultimately rejected on the grounds of practicality or efficiency.

Section B. Relationship to strategic planning framework

Q3. Is the planning proposal consistent with the objectives and actions of the applicable regional, sub-regional or district plan or strategy (including any exhibited draft plans or strategies)?

The Central West and Orana Regional Plan 2036 (June, 2017) by DPE (‘CWO Regional Plan’) will guide the NSW Government’s land use planning priorities and decisions in the region up to 2036. The CWO Regional Plan provides an overarching framework to guide subsequent and more detailed land use plans, development proposals and infrastructure funding decisions and is accompanied by an Implementation Plan.

The goals of the CWO Regional Plan are:

· The most diverse regional economy in NSW

· A stronger, healthier environment and diverse heritage

· Quality freight, transport and infrastructure networks

· Dynamic, vibrant and healthy communities

For each goal, the CWO Regional Plan identifies directions and associated actions to assist in achieving the goal.

Table 1 below summarises the directions of the CWO Regional Plan, provides comment on the directions and actions of the Plan that are directly relevant to the Planning Proposal, and indicates whether the Proposal is considered to be consistent or inconsistent with the Plan.

Table 1. Central West and Orana Regional Plan
Goal 1: The most diverse regional economy in NSW		Planning Proposal response – is the Proposal consistent with the Strategy?
DIRECTIONS & APPLICABLE ACTIONS	TIMEFRAME OF IMPLEMENTAT-ION	COMMENTS
D1: Protect the region’s diverse and productive agricultural land 1.2: Protect important agricultural land from land use conflict and fragmentation, and manage the interface between important agricultural lands and other land uses.	Ongoing	The Planning Proposal is considered to be consistent with the intent of this Direction. The Planning Proposal seeks to facilitate the ability for primary producers to manage their holdings and improve the ability to transfer land between farms without creating new dwelling entitlements or further fragmenting productive land.
D3: Develop advanced manufacturing and food processing sectors. A3.4: Develop a food and fibre strategy for the Central West, reflecting the opportunities identified in Regional Development Australia Central West’s Value Adding to Agriculture in Central West NSW study.	Immediate	The Planning Proposal is considered to be consistent with the intent of this Direction. The proposal seeks to allow small scale cafes in residential areas and also adjusts the extent of the B3 Commercial Core and B4 Mixed Use zones to the east of the railway line. These changes would support the intent and direction of a food and fibre strategy.
D10: Promote business and industrial activities in employment lands. A10.1: Encourage the sustainable development of industrial and employment land to maximise infrastructure and connect to the existing freight network. A10.2: Use local environmental plans to promote the development of specialised industry clusters and the co-location of related industries. A10.6: Accommodate future commercial and retail activity in existing commercial centres, unless there is a demonstrated need or social and economic benefits to locating this activity elsewhere.	Ongoing	The Planning Proposal is considered to be consistent with the intent of this Direction. The Planning Proposal rezones some land on the eastern side of the railway line from B6 Enterprise Corridor to a mix of B3 Commerical Core and B4 Mixed use. The proposed zoning pattern better reflects the actual on the ground use of premises in this location as well as providing, through the use of B4, a transition between commercial and residential land. Additionally the Planning proposal seeks to provide a B1 Neighbourhood Centre zone to some existing shops and post office in East Orange, again this better reflects the use of the premises on the ground and further promotes employment into the future. The B1 zone will also enable and better provide for a minor expansion of the East Orange post office, which needs space to adapt its operations due to the changing nature of the post and parcel delivery industry.
D12: Plan for greater land use compatibility. A12.4: Amend planning controls to deliver greater certainty of land use.	Ongoing	The Planning Proposal is considered to be consistent with the intent of this Direction. The minor rezonings within this planning proposal are generally intended to reflect the actual use of premises and properties.

Goal 2: A stronger, healthier environment and diverse heritage		Planning Proposal response – is the Proposal consistent with the Strategy?
DIRECTIONS & APPLICABLE ACTIONS	TIMEFRAME OF IMPLEMENTAT-ION	COMMENTS
D15: Increase resilience to natural hazards and climate change. A15.5: Implement the requirements of the NSW Floodplain Development Manual by updating flood studies and floodplain risk management plans.	Ongoing	The Planning Proposal is considered to be consistent with the intent of this Direction. The Planning Proposal seeks to amend the planning controls to align with updating of Councils floodplain risk management study and plans.
D17: Conserve and adaptively re-use heritage assets. A17.2: Prepare, review and update heritage studies in consultation with the wider community to recognise and conserve heritage assets and items, and include appropriate local planning controls	Ongoing	The Planning Proposal is considered to be consistent with the intent of this Direction. The planning proposal seeks to correct a number of identified errors and misdescriptions in the Heritage Map and Schedule 5 Environmental Heritage.
Goal 4: Dynamic Vibrant and Healthy Communities		Planning Proposal response – is the Proposal consistent with the Strategy?
DIRECTIONS & APPLICABLE ACTIONS	TIMEFRAME OF IMPLEMENTAT-ION	COMMENTS
D22: Manage growth and change in regional cities and strategic and local centres A22.2: Reinforce the role, function and relationship between regional cities and strategic centres in local housing strategies.	Ongoing	The Planning Proposal is considered to be consistent with the intent of this Direction. The Planning Proposal adjusts the commercial zoning pattern in the CBD and around the East Orange post office. These minor adaptations will further reinforce the role of the respective locations within the context of Orange’s commercial centres.

Q4. Is the planning proposal consistent with a Council’s local strategy or other local strategic plan?

The Blayney, Cabonne, Orange Rural and Industrial Land Use Strategy (July, 2008) by GHD (‘BCORILUS’) was prepared for Blayney, Cabonne, and Orange City councils. The Strategy outlines key land use policies and principles for the three council areas in relation to rural and industrial land, and provided the planning context for the preparation of the Standard LEP Instruments for each local government area. The Strategy, which has a timeframe up to 2038, was adopted by the three councils and endorsed by the Director-General of the Department of Planning & Infrastructure.

The Planning Proposal is considered to be consistent with the current strategy. One minor rezoning involves part of 1 Barrett Street Orange being rezoned from IN1 General Industrial to R1 General Residential. This land is located at the rear (southern) end of the property behind the existing industrial shed and due to the lot configuration is not of practical use to the industrial site. Rezoning of this section will facilitate the orderly development of the neighbouring residential land. The loss of industrial land represented by this section of 1 Barrett Street will not impact upon the supply of industrial land as it is too small to be practically used for industrial purposes.

Although not formally endorsed by DPE, Council has endorsed the Strategic Commercial and Industrial Review (April 1, 2014) by RedeConsult. This Review outlined key trends and points of interest in commercial and industrial spaces and uses for Orange city. Pertinent to this Planning Proposal is the conclusion that there is adequate retail floor space in the commercial zones of Orange, but that the size/configuration of the CBD favoured smaller shop footprints and layouts. Respondents in the Review indicated that more investment into business areas and more education opportunities for commercial/retail staff would assist in strengthening the retail fabric of Orange. Expansion of the B3 Commercial Core zone over the railway into East Orange recognises the current use of this land for a mixture of shops and offices.

Q5. Is the planning proposal consistent with applicable State Environmental Planning Policies?

Yes. See Attachment 9 for more details.

Q6. Is the planning proposal consistent with applicable Ministerial Directions (section 9.1 Directions)?

On the whole, yes. Refer to Attachment 10.

Section C. Environmental, social, and economic impacts

Q7. Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats, will be adversely affected as a result of the proposal?

It is considered unlikely that critical habitats or threatened species/populations/ecological communities will be adversely affected as a result of the Planning Proposal.

Q8. Are there any other likely environmental effects as a result of the planning proposal and how are they proposed to be managed?

Groundwater

Orange has a high water table and large areas of the LGA are identified as groundwater vulnerable in the Groundwater Vulnerability Map of the LEP. None of the rezonings, new or amended clauses, new exempt development provisions or other matters in the Planning Proposal are considered to materially effect groundwater.

Flooding

Parts of the Orange LGA are flood affected, due to Ploughmans Creek, Blackmans Swamp Creek, and their tributaries. Council is in the process of undertaking a new Floodplain Risk Management Study and Plan. This Planning Proposal will enable the LEP to respond dynamically to future flood mapping updates without the need for formal LEP amendments.

See further comments under Ministerial Direction 4.3 in Attachment 10.

Q9. Has the planning proposal adequately addressed any social and economic effects?

European and Aboriginal Heritage

The Planning Proposal is likely to have a negligible-to-positive impact on heritage items and conservation areas. A number of mapping and schedule errors have been identified and will be rectified by the Planning Proposal.

See comments under Ministerial Direction 2.3 of Attachment 10.

Employment

The Planning Proposal is likely to have a positive impact on employment opportunities.

Refer to Ministerial Direction 1.1 of Attachment 10.

Residential Growth

The Planning Proposal is likely to have a negligible but beneficial effect on residential growth. One additional permitted use for a dwelling in relation to 120 Calton Road, and a minor rezoning of part of 1 Barrett Street to facilitate the residential development of adjacent land to the west will enable some infill residential development.

Refer to Ministerial Direction 3.1 of Attachment 10.

Retail Centres

The Planning Proposal will reinforce the primacy of the Orange CBD as the key retail and commercial centre for the Orange region and surrounds. The Planning Proposal will extend the B3 Commercial Core zone eastwards into current B6 Enterprise Corridor land. This better reflects the pattern of existing development in this area. Additionally the Planning Proposal seeks to rezone the East Orange Post Office and adjacent shops in East Orange to B1 Nieghbourhood Centre to better reflect their role within the Orange hierarchy of commercial centres as well as facilitating a minor expansion of the post office so that it can adapt to the changing nature of the post and parcel industry.

Refer to Attachment 7g and 7i for more details.

Section D. State and Commonwealth interests

Q.10 Is there adequate public infrastructure for the planning proposal?

Utilities

Existing urban zones are equipped with adequate utilities (water, sewer, electricity, stormwater, NBN infrastructure). Water/sewer headworks charges may apply to proposed development, and this would be levied at the development application stage.

Public Transport

The commercial zones of Orange are serviced by buses that capture public transport users from residential areas of Orange and surrounds (including Molong, Lucknow, and Bathurst). The planning proposal is not anticipated to unduly impact on the operation of transport services.

Roads

The Planning Proposal is likely to have a negligible-to-minimal impact on roads.

Waste Management and Recycling Services

The Planning Proposal is unlikely to create significant impacts on the provision of waste management and recycling services.

Emergency Services Provision

The Planning Proposal is unlikely to generate significant demand on the existing emergency services network. The proposal seeks to clarify the role of part of the SP2 zone on Forest Road to reflect the use of the site by the NSW Rural Fire Service.

Q.11 What are the views of State and Commonwealth Public Authorities consulted in accordance with the gateway determination?

Preliminary views of State or Commonwealth public authorities have not been obtained prior to preparing this Planning Proposal. Having regard to the Ministerial Directions and overall scope of the Planning Proposal, no recommendations are made as to agencies that should be consulted in connection with progressing the Proposal. The Gateway Determination may stipulate additional consultation requirements in the planning proposal process.

PART 4 – MAPPING

The planning proposal seeks to amend the LEP maps in a number of ways. This includes:

· Rectification of a cadastre misalignment across the LGA resulting from an update of the standard used by the NSW government.

· Amendment of the Heritage map to correct several errors in the mapping of existing heritage items.

· Repeal of the current flood planning map so that the LEPs flood controls can dynamically respond to changes in the Floodplain Risk Management Plan as it evolves over time, rather than creating a delay between updates of the FRMP and consequential updates of the LEP.

· Amendment of the Minimum Lot Size map in relation to a future caravan park site

· Amendment to the Zoning Map in relation to a range of minor rezoning items

· Amendment to the Additional Permitted Uses Map in relation to a dwelling entitlement issue at 120 Calton Road

· Amendment of Combined Local Map 1 in relation to a missing tile (12) that contains part of the water catchment boundary as well as amendment of tiles 9, 10 and 15 in relation the Airport Obstacle Limitation Surface which needs to be updated given the extension of the airport runway.

PART 5 – COMMUNITY CONSULTATION

Community consultation will be undertaken in accordance with the requirements of the Gateway Determination. It is, however, anticipated that an exhibition period of 28 days will be required per the default in Schedule 1 of EP&A Act 1979.

Consultation will commence by giving notice of the Planning Proposal via:

• an advertisement in the Central Western Daily,

• a notification on the Orange City Council website (www.orange.nsw.gov.au), and

• social media.

All forms of the notice will include:

• a brief description of the objectives and intended outcomes of the Planning Proposal,

• an indication of the land affected by the Planning Proposal,

• the location and dates where the Planning Proposal may be inspected,

• the contact name and address at Orange City Council where submissions may be directed, and

• the closing date of the submission process.

During the exhibition period, the following materials will be made freely available for public inspection:

• the Planning Proposal, in the form approved for community consultation by DPE,

• the Gateway Determination, and

• any studies and supporting material relied upon by the Planning Proposal.

Following the exhibition period, a report will be prepared analysing any submissions received and making recommendations as to any appropriate changes or adjustments to the Planning Proposal, for the consideration of Orange City Council.

Where contact details have been provided, all persons and organisations making a submission will be advised of the date and time of the relevant Council (or committee) meeting where the report is to be considered, and subsequently advised of the determination.

PART 6 – PROJECT TIMELINE

The anticipated project timeline for completion of the Planning Proposal is outlined in Table 2.

Table 2. Project timeline

Project stage	Commencement	Completion
Gateway Determination	Late 2018
Government Agency consultation	Jan 2019	Jan 2019
Public Exhibition Period	Dec 2018	Jan 2019
Public Hearing	Not anticipated to be required
Consideration of Submissions	Feb 2019	Feb 2019
Consideration of post exhibition proposals (Report to Council)	March 2019
Seeking and obtaining legal opinion from Parliamentary Counsels Office	March and April 2019	March and April 2019
Submission to DPE to finalise	April 2019
Anticipated date Council will make the plan (if delegated)	May 2019
Anticipated date Council will forward to DPE for notification	May 2019

Attachment 1 Heritage corrections

Schedule 5 Environmental Heritage of the LEP provides the formal particulars, address and title, of properties affected by state and local heritage listings. This schedule is a form of cross referencing for the heritage maps of the LEP that visually identify where heritage items and conservation areas are located.

Over time some technical errors have been identified, due in part to the extensive number of items that were added to the schedule under Amendment 1 and in some cases due to title particulars changing as a result of subdivision or street renumbering.

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

Drafting recommendation:

In schedule 5:

for item I308 “Emmaville”, omit the item.

for item I158 omit the address and insert instead “282 Summer Street”

for item I159 omit the address and insert instead “286-294 Summer Street”

for item I303 omit the property description and insert instead “Lot 3 Section 8 DP 758921”

Add the following entries, in appropriate order, to schedule 5 Environmental Heritage:

Suburb	Item Name	Address	Property Description	Significance	Item No
Orange	Geolyse Building	154 Peisley Street	Lot 200 DP 1231431	Local	I365
Orange	Former Ambulance Station	291 Anson Street	Lot 1 DP 758817*	Local	I366
Orange	House	26 Caroline Street	Lot 13 DP 16510	Local	I268
Orange	Terrace cottages	170-174 Moulder Street	Lots A, B & C DP 152958	Local	I110
Huntley	House	26 Kinghorne Lane	Lot 101 DP 1092868	Local	I282

* The former ambulance station is currently the subject of a subdivision application to facilitate redevelopment of the adjacent land (the former hospital site). As such the property is expected to have slightly adjusted boundaries and become known as Lot 502 in the subdivision of lots 1 & 2 Section 4 DP 758817. The Final version of this planning proposal will be updated to reflect the Lot and DP numbers prior to gazettal.

Add the following entries, in appropriate order, to Part 1 of Schedule 5 Environmental Heritage:

Suburb	Item Name	Significance	Item No
Glenroi	Duration Cottages Heritage Conservation Area	Local	C6

Attachment 2 Cadastre update

As the earth is not perfectly spherical, cadastral information is typically mapped, or projected, onto a ‘geoid’ which is a slightly deformed sphere, intended to reflect bulges and depressions in the overall shape of the earth. Changes to the adopted geoide therefore alter the 2 dimensional representation of land when drawn or mapped but do not alter physical boundaries or dimensions in the real world.

Periodically the State government reviews and updates the legal cadastre based on the latest and most accurate geoide. Spatial data that is prepared before such a change will therefore not align properly with spatial data prepared after the geoide change. Most of the LEP maps were prepared in 2010 prior to the most recent Geoide/Cadastre changes.

It is proposed to update all maps to reflect the most current cadastre used by the lands office. This adjustment does not involve any material change to the zone or other classification of land and is required to facilitate the orderly administration of the LEP, enabling the various map layers to be integrated more efficiently in Councils internal GIS system to enhance administration of the LEP.

Mapping recommendation

That all map tiles of all LEP maps be updated to the current cadastre, with no change to the intended content of the maps other than those changes detailed elsewhere in this planning proposal.

Attachment 3 Local Exempt Development provisions

Development services receive a range of enquiries for relatively minor works and projects that, while relatively benign, are either not addressed (or not sufficiently covered) by the State Environmental Planning Policy for exempt and complying development. The standard template LEP allows councils to add to the State provisions by creating local exempt and complying listings in schedules 2 and 3 respectively. Many councils have opted to rely on the SEPP provisions alone or with very few additions while some councils have adopted a wide range of additional exempt and complying provisions.

The following proposed listings have been sourced from either a review of other councils LEPs and/or in response to local enquiries for relatively minor projects. Each listing includes development standards that if exceeded would still require a development application to be considered.

Signage—general requirements

(1) Must be non-moving.

(2) Must relate to the lawful use of the building (except for temporary signs or tourist information or directional signs).

(3) Must not be detrimental to the character and functioning of the building.

(4) Must not cover mechanical ventilation inlet or outlet vents.

(5) Must not be externally illuminated.

(6) Must not be animated or flashing.

(7) Must not involve audible elements such as speakers, radios, p.a. systems or the like.

(8) Must not be internally illuminated unless located on land in Zone B2 Local Centre, B3 Commercial Core, B5 Business Development, B6 Enterprise Corridor or IN1 General Industrial zones, or on business or industrial premises in Zone RU5 Village.

Current Schedule 2 signage listings, other than internal signs, will be amended to include a requirement to comply with “Signage – General requirements” by amending the entries as follows:

Amend Advertising signage (business identification signs in Zone IN1 and Zone IN2)

Insert as (1)(e) the phrase “Must meet the general requirements for signage.”

Insert as (2)(d) the phrase “Must meet the general requirements for signage.”

Insert as (3)(c) the phrase “Must meet the general requirements for signage.”

Amend Advertising signage (other signs)

Insert as (2)(c) the phrase “Must meet the general requirements for signage.”

Signage—A-framed signs on private land

A-framed signs on private land must comply with the following:

(1) Must meet the general requirements for signage.

(2) Must be on land on which lawful commercial/industrial activity is being conducted,

(3) Only 1 per property,

(4) Must be contained within the property boundaries

(5) Maximum display area (on each side)—0.5m²,

(6) Must not obstruct access to the land or any adjacent land,

(7) Must be secured, stable and anchored against wind gusts,

(8) Must not require construction work,

(9) Must be removed at the close of business each day.

Signage (sports field advertising)

(1) Relates to signage associated with a public sports field or public sports ground that faces towards the sports ground, sports field or playing surface and that does not primarily address a public road.

(2) Must meet the general requirements for signage.

(3) Must be located on the playing field surface or facing the playing area on the inside of a fence around the playing surface, spectator stands or scoreboards.

(a) Maximum height when located on a perimeter fence enclosing the sports field —1.2m or the height the fence, whichever is lower.

(b) When located on spectator stands, scoreboards or other buildings and structures associated with the sports field, must be located on the elevation that faces the sports field or playing surface.

(4) Must provide information about sponsors, or products of sponsors, of teams or organisations using the sporting facility.

Signage—sponsorship signs (corporate sponsorship of a community or sporting use)

(1) Must meet the general requirements for signage.

(2) Maximum height—6m.

(3) Must not include commercial advertising apart from the name or logo of any event sponsors.

(4) Must be located and oriented to be predominantly visible to spectators within the site rather than to the general public externally.

(5) Must not obstruct the sight line of vehicular traffic.

(6) Must not be located on land on which there is a heritage item.

Bee Keeping in RU1, RU5, R1, R2, R5, E2, E3 and E4 zones

(1) Maximum number of hives per lot:

(a) For lots below 1,000m² – 1 hive

(b) For lots between 1,000m² and 4,000m² – 2 hives

(d) For lots above 20,000m² – no limitation

(2) Hives must be located more than 15m from the nearest dwelling or swimming pool.

(3) Hives must be located more than 50m from any school, hospital, centre-based child care facility or public facility.

(4) In R1, R2 and RU5 zones, any property boundary fence located within 5m of the hive(s) must have a height of at least 1.8m

(5) An appropriate water source must be located as close as practicable to the hive(s), which must be closer than the nearest dwelling or swimming pool.

(6) Hives must be owned by a person registered under the Apiaries Act 1985.

(7) A docile strain of bees must be kept in all hives.

(8) Water must be provided for the bees on the property on which the hives are located.

(9) Bee hives must not be located in the front yard on land in the R1 General Residential zone, R2 Low Density Residential Zone, RU5 Village Zone or the R5 Large Lot Residential Zone.

Change of use - exhibition home to dwelling

(1) Current use must be a lawful use and must not be an existing use within the meaning of section 4.65 of the Act.

(2) New use must be permissible in the land use zone in which it is carried out.

(3) Must not involve any building alterations or additions that are not a type of exempt development.

(4) The size of the lot must not be less than the minimum size shown on the Lot Size Map in relation to that land.

(5) Must have at least 1 off-street car parking space.

Emergency services facilities

(1) Must be for the use of the NSW Rural Fire Service.

(2) Must have obtained all required approvals.

(3) Must not be constructed or installed on or in a heritage item, heritage conservation area, land on which an Aboriginal item is located or land at or below the flood planning level (within the meaning of clause 7.2).

(4) Must be located on land in Zone RU1 Primary Production or Zone E3 Environmental Management.

(5) Must not have an area of more than 140m².

(6) Must not exceed a height of 5m above ground level (existing).

(7) Must be located at a distance of at least 20m from the primary road frontage and at least 10m from any other lot boundary.

(8) Must not be constructed or installed within 50m of a dwelling.

(9) Must be located at least 50m from any natural waterbody.

(10) To the extent it is comprised of metal components—must be constructed of low reflective materials and designed and constructed in accordance with a professional engineer’s specifications.

(11) If it is located on bush fire prone land—must be constructed in accordance with Planning for Bush Fire Protection (ISBN 0 9751033 2 6) prepared by the NSW Rural Fire Service in co-operation with the Department of Planning in 2006.

Balconies, decks, patios, pergolas, terraces and verandahs on large lots

The construction or installation of a balcony, deck, patio, pergola, terrace or verandah (whether free standing or attached to the ground floor level of a building, or roofed or unroofed) is exempt development if it satisfies the following:

(1) Is situated on a lot in the R1, R2, R3, R5, RU1, RU5, E3 or E4 zones, and

(2) The lot is a minimum of 2,000m² in area, and

(3) Not be constructed or installed on or in a heritage item or a draft heritage item, and

(4) Not be constructed or installed on bushfire prone land or land on which an asset protection zone has been required as a condition of any development consent, and

(5) The development must:

(a) have an area of not more than 100m², and

(b) not cause the total floor area of all such structures on the lot to be more than 25% of the ground floor area of the dwelling on the lot, and

(d) not involve removal of any tree with a trunk/stem diameter greater than 300mm at breast height (1.4m above ground level), and

(e) if the dwelling is less than 8m setback from any road frontage be located behind the building line, and

(f) be located at a distance from each lot boundary of at least 15m, and

(g) to the extent it is comprised of metal components—be constructed of low reflective, factory pre-coloured materials, and

(h) if it is a roofed structure attached to a dwelling—not extend above the roof gutter line of the dwelling, and

(i) the deck/floor surface must be no higher than 1.0m at its highest point above ground level (existing), and

(j) if it is connected to a fascia—be connected in accordance with a professional engineer’s specifications, and

(k) be constructed or installed so that any roofwater is disposed of into an existing stormwater drainage system, and

(l) not interfere with the functioning of existing drainage fixtures or flow paths, and

(m) if it is located on bush fire prone land be constructed of non-combustible material, and

(n) if it is constructed or installed in a heritage conservation area or a draft heritage conservation area—be located behind the building line of any road frontage.

Community use of Educational Establishments, Places of Public Worship and Centre-Based Child Care facilities

An educational establishment, place of public worship or centre-based child care facility (including the site and facilities) may also be used for the physical, social, cultural or intellectual development of the community, whether or not any such use is a commercial use of the land. Community and fundraising events open to the general public may only operate from 7.00am to 7.00pm Monday to Saturday, excluding public holidays.

Farm dams

(1) Must be on land within Zone RU1 Primary Production, Zone RU4 Primary Production Small Lots, E3 Environmental Management or Zone E4 Environmental Living.

(2) Must not contravene the Water Management Act 2000.

(3) Maximum embankment fill batter grades 1:2.5 (vertical:horizontal).

(4) Minimum distance from property boundary at closest point – 10m.

(5) Minimum fill embankment crest width – 3m

(6) Minimum height difference between the embankment crest level and the spillway level – 1m.

(7) Maximum fill embankment height, as measured from ground level (existing) immediately down slope of the embankment to the top of the embankment crest level – 3m.

(8) Trees must not be removed or damaged by dam construction.

(9) Maximum capacity of water storage – 3ML.

(10) Must not be constructed in a watercourse.

(11) Must not involve the removal of extractive material from the property on which the dam is constructed.

(12) On-site reuse of extracted material must not be placed in or within 10m of any watercourse.

Fences (Swimming pool safety fences)

If installed in accordance with the requirements of the Swimming Pools Act 1992 and the Swimming Pools Regulation 2008.

Hail Protection structure in zones RU1 and E3

Must be ancillary to agricultural use and consist of light construction (for example, poles, wire and mesh).

Subdivision

Must relate to land comprising a council public road proposed for closure under Division 3 of Part 4 of the Roads Act 1993.

Security grills, screens or shutters—commercial purposes

(1) Must not open onto a road reserve, public footpath or other public space.

(2) Must not be a roller shutter or roller door.

(3) If installed in ground floor retail or office premises—must be transparent grills or screens.

(4) Must be the same colour as the window frame or door frame to which it is attached.

(5) If installed on land at or below the flood planning level, must be located above natural ground level.

(6) Must be removable or retractable.

Re-stumping an existing building

(1) Existing floor height must not be altered except if the alterations result from floor levelling to rectify unevenness.

(2) Termite barriers must be maintained or installed in accordance with AS3660.2:2017 Termite Management – In and Around Existing Buildings and Structures.

(3) Must not involve alterations to existing plumbing and drainage works. Repairs to defective pipe work must be undertaken by a licensed plumber.

(4) If the building is a heritage item, part of a heritage conservation area or an archaeological site, the materials used must be the same as the existing stumps, bracing or any infill.

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

(1) Must enclose the works area.

(2) The vertical height above footpath level of the structure being erected or demolished must be less than 4m.

(3) If it is a temporary construction site fence adjoining, or on, a public place, must be covered in chain wire mesh.

(4) Must be removed immediately after the purpose for which it was erected has finished and when no safety issue will arise from its removal.

Grain silos and grain bunkers in the E3 Environmental Management zone

(1) Must be used for the purpose of the storage of grain that has been produced on the landholding, and

(2) not constructed or installed on land shown the Obstacle Limitation Surface Map as being within the Obstacle Limitation Surface Building Siting and Construction area.

Temporary structures (other than temporary builders’ structures)

(1) Must be on land within Zone B1, Zone B2, Zone B4, Zone B5, Zone B6, Zone IN1, Zone IN2, Zone RE2 or Zone SP2.

(2) Must not remain erected more than 72 hours.

(3) Must be at least 6m from any public street.

(4) Must not be used for a recurring use or a use that would otherwise require development consent.

(5) Must be installed in accordance with the manufacturer’s specifications.

(6) Must not be used for commercial or industrial purposes.

(7) Changes or alterations to the surface and surrounding environment, where it is constructed or erected, must be superficial and temporary.

Demolition

(1) Must be the demolition of development that would be exempt development under this Schedule.

(2) Must comply with AS 2601:2001 The demolition of structures.

Tennis courts (private and non-commercial)

(1) Must be on a lot in the RU1, RU5, E3 or R5 zones with a site area greater than 1ha and associated with a dwelling house.

(2) Must not have lighting.

(3) Only 1 per property.

(4) Must not interfere with any approved on-site effluent disposal or treatment system.

(5) Maximum cut and fill—600mm.

(6) Must be located behind the front building line.

Truck parking areas (in Zones RU1, RU2, RU4, E3 and E4)

(1) Must be for a maximum of 2 trucks per property.

(2) May also be for associated plant transported by the trucks.

(3) Must be for trucks and associated plant owned or operated by the occupier of the property.

(4) Must not include the construction of a shed or earthworks to create the parking area.

(5) Must be at least 5m from each property boundary.

(6) Maximum area for parking and manoeuvring (excluding driveway)—200m²(to facilitate parking and manoeuvring in accordance with AS 2890.2—2002, Parking facilities—Off-street commercial vehicle facilities).

(7) Vehicular access and manoeuvring must be sealed.

(8) Must be screened from view from adjoining properties.

(9) Must not interfere with the functioning of existing drainage fixtures or flow paths or be located to obstruct, prevent use of or reduce the effective operation of any existing facilities, services or development on the site (such as on-site effluent disposal).

(10) Must not require the removal of any tree or native vegetation, unless that removal is undertaken in accordance with a permit or development consent.

Boundary adjustment in Zones RU1 and E3

(1) Must not create additional lots or increase the number of lots with a dwelling entitlement or increase the opportunity for additional dwellings, and

(2) Any lot that is already smaller than the minimum size specified by the minimum lot size map must not be reduced in area by more than 10%, and

(3) Must not result in any increased fire risk to existing buildings, and

(4) Any asset protection zone in relation to existing building(s) must be retained on the same lot as the building(s) concerned, and

(5) Must not adversely affect the provision of existing services on a lot, and

(6) Both resultant lots must have legal and practical access to the public road network, and

(7) Must not be carried out in relation to land on which a heritage item or draft heritage item is situated, and

Casual Leasing Areas

Temporary or seasonal retailing located within the enclosed circulation space of approved shopping centres are permitted without consent subject to the following:

(1) Each casual leasing area must not occupy more than 5m² of floor space.

(2) A maximum of three casual leasing areas per shopping centre.

(3) Circulation space of a minimum 3m must be maintained on at least three out of four directions from the casual leasing area. i.e. the casual leasing are may “back onto” a wall or other permanent fixture.

(4) Casual leasing areas that by nature of their operation require queuing space may include cordon ropes or similar that extend beyond the casual leasing area provided such queues do not obstruct the minimum circulation space.

(5) Casual leasing areas, and any associated queueing lines, must not obstruct or hinder access to or egress from any approved permanent tenancy, emergency exit, fire escape, public restrooms, parent change rooms.

(6) Where casual leasing areas involve the sale and/or preparation of any food or beverage for public consumption:

a. Food Act requirements

b. Etc…

Significant amounts of rural land within the Orange LGA has been zoned E3 Environmental Management, principally due to being within the water catchment area of either Orange or Molong. This has had an unintended consequence of causing several forms of development that would be exempt development where the land zoned RU1 Primary Production, to require development consent. The following forms of development are exempt in the RU1 zone in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 are recommended to be exempt development in the E3 zone, as they are unlikely to be detrimental to urban water supplies.

Treat E3 zone as an RU1 zone for the purposes of exempt development for the following types of exempt development.

Animal Shelters in the E3 zone

(1) Must meet the development standards of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that apply to animal shelters in the RU1 zone.

(2) Must not involve biodiversity sensitivity land identified on the Terrestrial Biodiversity Map, or land otherwise identified as environmentally sensitive land under this or any other environmental planning instrument.

Farm Buildings in the E3 zone

(1) Must meet the development standards of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that apply to farm buildings in the RU1 zone.

Fowl and poultry houses in the E3 zone

(1) Must meet the development standards of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that apply to fowl and poultry houses in the RU1 zone.

Rainwater tanks (below ground) in the E3 zone

(1) Must meet the development standards of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that apply to rainwater tanks (below ground) in the RU1 zone.

Windmills in the E3 zone

(1) Must meet the development standards of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that apply to windmills in the RU1 zone.

Fences in the E3 zone

(1) Must meet the development standards of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that apply to fences in the RU1 zone.

Carports in the E3 zone

(1) Must meet the development standards of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that apply to carports in the RU1 zone.

Cabanas, cubby houses, ferneries, garden sheds, gazebos and greenhouses in the E3 zone

(1) Must meet the development standards of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 that apply to Cabanas, cubby houses, ferneries, garden sheds, gazebos and greenhouses in the RU1 zone.

Attachment 4 flood control planning to align with new and updated floodplain risk management study and plans (FPRMS&P)

To implement the recommended approach set out in the FRMS&P, clause 7.2 of Orange LEP 2011 would require minor amendments, namely in regards the wording of sub clause (2) and (5).It is recommended that the following clause replaces the existing clause 7.2 of Orange LEP 2011:

7.2 Flood planning

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

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change,

(2) This clause applies to land at or below the flood planning level.

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

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

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

(d) will not 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.

(4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual, unless it is otherwise defined in this Plan.”

(5) Within this clause:

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.

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

It is also recommended that a new floodplain risk management clause be added to Orange LEP 2011 as follows:

Floodplain risk management

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

(a) in relation to development with particular evacuation or emergency response issues, to enable evacuation of land subject to flooding in events exceeding the flood planning level,

(b) to protect the operational capacity of emergency response facilities and critical infrastructure during extreme flood events.

(2) This clause applies to land which lies between the flood planning level and the level of the probable maximum flood, but does not apply to land at or below the flood planning level.

(3) Development consent must not be granted to development for the following purposes on land to which this clause applies unless the consent authority is satisfied that the development will not, in flood events exceeding the flood planning level, affect the safe occupation of, and evacuation from, the land:

(a) amusement centre

(b) camping ground

(d) child care centre

(e) commercial premises (including business premises and retail premises)

(f) community facility

(g) correctional centre

(h) eco-tourist facility

(i) educational establishment (including schools and tertiary institutions)

(j) emergency services facility

(k) entertainment facility

(l) extractive industry

(m) function centre

(n) health services facility

(o) industry

(p) mining

(q) place of public worship

(r) residential accommodation (including seniors housing)

(s) respite day care centre

(t) tourist and visitor accommodation

(u) waste or resource management facility

(4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual, unless it is otherwise defined in this Plan.”

(5) Within this clause probable maximum flood means the largest flood that could conceivably occur at a particular location, usually estimated from probable maximum precipitation.

Attachment 5a.

Adoption of Combined Local Map 1 Sheet 12 to complete the water catchment boundary.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 5b Amend Combined Local Map 1 Sheets 9, 10 and 15 to update the airport Obstacle Limitation Surface

Review of maps:

6150_COM_CL1_009_020_20111129

6150_COM_CL1_010_020_20111129

6150_COM_CL1_015_020_20111129

To amend the Obstacle Limitation Surface – Formal LEP mapping to be provided prior to public exhibition.

Attachment 6a Amend clause 4.1C in relation to multi dwelling housing in Ploughmans Valley

Multi Dwelling Housing in Ploughmans Valley

The issue:

Clause 4.1C(2)(b)(ii) includes the phrase “multi dwelling housing” which 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 600 square metres and this form of development is more intensive than was intended for the Ploughman’s Valley area.

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

Drafting recommendation:

Omit the phrase “or multi dwelling housing” as shown below:

4.1C Exceptions to minimum lot sizes for certain residential development

(1) This clause applies to land in Ploughmans Valley that is both:

(a) within Zone R2 Low Density Residential, and

(b) identified on the Lot Size Map as having a minimum lot size of 850 square metres.

(2) Despite any other provision of this Plan, development consent may be granted to the subdivision of land to which this clause applies if:

(a) a dual occupancy is lawfully erected on the land, and

(b) the area of each resulting lot will not be less than:

(i) 650 square metres for a dual occupancy (attached), or

(ii) 600 square metres for a dual occupancy (detached) ~~or multi dwelling housing~~, and

(3) Development consent may be granted to a single development application for consent to development of land to which this clause applies that involves both of the following:

(a) the subdivision of land into 2 or more lots,

(b) the erection of a dual occupancy (attached) or dual occupancy (detached) with a single dwelling on each lot resulting from the subdivision, if the size of each lot is equal to or greater than:

(i) 650 square metres for a dual occupancy (attached), or

(ii) 600 square metres for a dual occupancy (detached).

Attachment 6b Amend clause 4.2 to include Zone E3 Environmental Management.

The issue:

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.

Drafting recommendation:

Insert “Zone E3 Environmental Management” into the list of zones the clause can apply to, as shown:

4.2 Rural subdivision

(1) The objective of this clause is to provide flexibility in the application of standards for subdivision in rural zones to allow land owners a greater chance to achieve the objectives for development in the relevant zone.

(2) This clause applies to the following rural zones:

(a) Zone RU1 Primary Production,

(b) Zone RU2 Rural Landscape,

(d) Zone RU6 Transition,

(e) Zone E3 Environmental Management.

Note. When this Plan was made it did not include Zone RU2 Rural Landscape, Zone RU4 Primary Production Small Lots or Zone RU6 Transition.

(3) Land in a zone to which this clause applies may, with development consent, be subdivided for the purpose of primary production to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to that land.

(4) However, such a lot cannot be created if an existing dwelling would, as the result of the subdivision, be situated on the lot.

(5) A dwelling cannot be erected on such a lot.

Note. A dwelling includes a rural worker’s dwelling (see definition of that term in the Dictionary).

Attachment 6c Adopt a new clause in relation to the Subdivision of split-zoned or split-sized land.

The issue:

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.

Drafting recommendation:

4.2C Subdivision of split-zoned or split-sized land

(1) The objective of this clause is to enable subdivision of land that has two or more zones, or two or more minimum lot sizes, to facilitate the orderly and efficient use of land.

(2) This clause applies to land comprising a single lot of land that is:

(a) Affected by two or more land use zones regardless of the size of the lot, or

(b) Affected by two or more minimum lot size categories within the boundaries of the lot.

(3) Land to which this clause applies may, with consent, be subdivided consistent with the zone or minimum lot size boundaries, provided that:

(a) Each resultant lot must have legal and practical access to the local road network,

(b) No resultant lot will be split-zoned or split-sized,

(d) Where the parent lot has a dwelling entitlement, the plan of subdivision must nominate which resultant lot will preserve the dwelling entitlement, all other lots shall have no dwelling entitlement.

(e) In the event that no lot is nominated, all dwelling entitlements, other than existing dwellings, shall be deemed to be extinguished.

(f) All existing dwelling(s) or other buildings must be located a minimum of 900mm from any lot boundary,

(4) Lots created under this clause without a dwelling entitlement are to have an appropriate restriction as to user under section 88B created on the title confirming that the land does not benefit from any dwelling entitlement.

(5) In this clause:

(a) Split-zoned means a lot of land that is identified on the Land Zoning Map as being subject to more than one land use zone.

(b) Split-sized means a lot of land that is identified on the Lot Size Map as being subject to more than one minimum lot size.

(c) Dwelling entitlement means the ability for a lot of land to have a dwelling house, or other form of residential accommodation, permitted with consent under the provisions of this plan.

Attachment 6d Adopt a new clause in relation to small scale café’s in residential areas and amend clause 5.4 to limit the floor space area for such development.

Drafting recommendation:

7.13 Café’s in the R1 General Residential Zone

(1) The objective of this clause is to enable small scale café’s, that are designed, constructed and operated in a manner that respects and preserves the residential amenity of the area to be developed in the R1 General Residential Zone.

(2) This clause applies to development for the purposes of a Restaurant or Café in the R1 General Residential Zone.

(3) Despite any other provision of this plan land to which this clause applies may, with consent, be developed for the purpose of a Restaurant or Café subject to:

(a) The development may not comprise or contain a drive through service element, and

(b) The gross floor area of the development being limited to no more than 100m², and

(c) All car parking requirements of the development, as determined under the relevant Development Control Plan, must be provided on site, and

(d) The development may only contain a single flush wall sign placed on the streetward oriented elevation of the building in a position that is logically consistent with the architectural elements of the building, and

(e) No illuminated or animated signage may be erected or installed that is visible from the public realm, and

(f) Any outdoor seating area must be located forward of the building alignment only, and

(g) The hours of operation being limited to 8:00am to 10:00pm Monday to Friday and 8:00am to 3:00pm on Saturdays and public holidays, and

(h) If the development is proposed in relation to a heritage item, a heritage impact statement from a suitably qualified heritage consultant or architect must be provided that:

(i) identifies which aspects or elements of the building provide heritage significance of the building, and

(ii) makes recommendations in relation to the preservation, maintenance and enhancement of the heritage values of the item.

Attachment 7a. Minor rezoning of residue industrial land at Narrambla

Residue Industrial land in Narrambla has, through previous subdivisions resulted in land that is split zoned between IN1 General Industrial and SP2 Infrastructure. The SP2 area is intended to provide a noise and odour buffer from the Sewage treatment plant resource recovery centre to the southeast and the residential lands to the north.

It is therefore proposed to adjust the IN1 and SP2 boundary to reflect the cadastre boundaries of the residue industrial land and the buffer land respectively.

Attachment 7b. Minor adjustment to land use zones along the Teamsters Walkway (Crinoline Street, Anson Street, Hargraves Crescent, Heatherbrae Parade through to Phillip Street)

The zone boundary between the RE1 Public Recreation zone of the Teamsters Walkway and neighbouring R1 General Residential properties has not adhered to the cadastral property boundaries, resulting in a number of residential properties appearing to be split zoned. The proposal is to amend the zone boundary to be consistent with the cadastre boundaries.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7c. Amending the SP2 zone applying to the Rural Fire Services site in Forest Road.

The property at 1385 Forest Road, is already zoned SP2 however it requires a descriptive name added to the zone title. It is recommended that the zone be titled SP2 “Emergency Services Facility” as this would cater for the Rural Fire Service while also retaining the potential for other emergency service facilities to be co-located on the site – for example an SES facility or similar.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7d. Minor rezoning of part of 1 Barrett Street to convert surplus industrial land to residential

1 Barrett Street, on the corner of Racecourse Road is currently zoned IN1 General Industrial. It is bounded to the west by land zoned R1 General Residential. The neighbouring land to the west has been approved for residential units with the layout being designed to be able to absorb and utilise the some of the land at 1 Barrett Street subject to that portion of the site being rezoned to R1 General Residential.

This would enable the residential units to obtain direct access onto Racecourse Road. The part of 1 Barrett Street proposed is located to the rear of the existing industrial shed and is not accessible to, and is of no direct benefit, to the industrial use.

Accordingly it is proposed to rezone the area of land at the rear of 1 Barrett Street to R1 General Residential to facilitate the potential development of additional housing in this otherwise residential area.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7e. Minor rezoning to change the designation of Jack Brabham Park from Private Recreation to Public Recreation.

The land indicated above is currently zoned RE2 Private Recreation. This zone was adopted on the understanding that Zone RE1 Public Recreation was intended to be applied only to recreation land that had not limitations on public access and use at any time. Jack Brabham Park hosts a range of sporting events and fixtures during which the general public are restricted from crossing the playing field.

It is now understood that this distinction between RE1 and RE2 was not the intended effect. Given that Jack Brabham park is a public asset and intended to be generally available to the public without restriction it is now considered appropriate to rezone the land to RE1 Public Recreation.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7f. Minor rezoning of the Orange Function Centre on Bathurst Road

The land indicated above is currently zoned RE1 Public Recreation. The site is developed as a convention centre and is not practically used for recreation purposes. Rezoning of the land to B6 Enterprise Corridor would expand the range of potential uses for the site. Its location along Bathurst Road makes it highly suited to a range of commercial activities that require or benefit from prominent positioning in the road network. It is noted that he car parking are in Eyles Street is zoned R1 General Residential, this is not proposed to change as, although not a typical use of residential land, the car park provide a physical buffer between any future built form and the dwellings on the western side of Eyles Street, whereas neighbouring land to the east is already part of the B6 zone.

The property on Bathurst Road that is bounded by the subject site on three sides is also zoned B6, it is currently developed as a service station and operates 24 hours, the parking area to its east and access way to the southwest are within the subject site of this rezoning. Due to the fragmented nature of this site and the overlapping non-recreational uses of parking and accessways, the site is not considered to provide any significant recreational or ecological benefit.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7g. Minor rezoning to extend the B3 zone eastwards on the northen side of Summer Street to William Street and create a B4 zone on the eastern side of William Street between Bathurst Road and Byng Street

Both of the indicated areas are currently zoned B6 Enterprise Corridor, however only the service station on the corner of Summer Street and William Street could be regarded as consistent with the intention of a B6 zone.

The land indicated to be zoned B3 comprises a large office building adjacent to the railway corridor and a series of small shopfronts along Summer Street. A service station is located on the corner of Summer Street and William Street, north of this is the heritage listed Orange City Band Hall and a light industrial shed. The character of this section of Orange is consistent with the main part of the CBD to west (over the railway).

The area indicated to be zoned B4 comprises a mix of dwellings and non-residential uses in converted dwellings. This includes a veterinary hospital, health consulting rooms, professional offices. Rezoning this area to B4 will recognise the range of current uses and ensure that this land continues to serve as a buffer between commercial and residential land further to the east.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7h. Minor adjustment to the land use zone and minimum lot size maps in Shiralee to reflect the layout of approved subdivisions.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7i. Minor rezoning of neighbourhood shops in East Orange, to better recognise the current use of the land around the East Orange Post Office

The land indicated is currently zoned R1 General Residential and comprises the East Orange Post Office, a denture clinic, a Café, a vacant former office premises and one dwelling (owned by the post office owner/operator).

Several approaches from the Post Office owner/operator seeking the ability to expand have been received over the last several years. They advise that the postal service is undergoing a structural adjustment in response to the rise of internet based communications and online retailing, the combined effect of which has been a significant decrease in traditional letters and a significant increase in the parcel and package delivery aspects of the business. As a consequence more storage and handling space is needed to store and sort parcels and packages.

Given the cluster of non-residential uses in this location it is considered appropriate to rezone the group as a whole rather than only the post office. Due to the limited ability in the neighbourhood to provide for any new off-street parking, already at a premium in the area, the extent of the zone is proposed to be limited to the current built form only. Most of the affected premises have already maximised their footprint to occupy almost of the lots. Therefore the rezoning is not expected to lead to an intensification of the area, but will instead allow the range of uses to evolve more readily in the future.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7j. Minor amendment to the minimum lot size in relation to land intended for a future caravan park on the eastern edge of the City

The area indicated has recently been rezoned to allow for a caravan park development. Recent consideration of a subdivision to facilitate this concept, by excising the go-kart track onto a separate allotment highlighted the fact that the southern section remains within a 100ha minimum lot size designation. That lot size was originally adopted while the land was rural, given the change in zone and intended future development it is proposed to remove the minimum lot size from the site, as is currently the case for the northern section of the site.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 7k. Minor adjustment to the water catchment boundary and zoning map in relation to land at Shadforth

Lot 102 DP1079487, shown above, is currently split zoned between the E3 Environmental Management Zone and the RU1 Primary Production Zone. The zone boundary is intended to reflect the natural water catchment boundary. The current water catchment, and hence zone boundary was prepared using the best available information at the time.

The owner of this land has requested that the boundary be adjusted to facilitate the placement of a dwelling on the land. In support of this the above diagram has been prepared from a survey of the land to illustrate that the current zone boundary does not match the actual watershed alignment.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 8. Creation of an Additional Permitted Use in relation to a dwelling entitlement at 120 Calton Road

The subject land indicated above was originally an ‘existing holding’ within the meaning of clause 4.2A. When the new LEP was introduced in 2012 a sunset clause was introduced to bring existing holdings to an end, with applications needing to be lodged by 31 December 2012.

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.

It is therefore proposed to create an Additional Permitted Use listing for this property within Schedule 1 and the associated Additional Permitted Uses Map.

Formal LEP mapping to be provided prior to public exhibition.

Attachment 9. Applicable State Environmental Planning Policies

SEPP

Consistent

Comment

SEPP 55 - Remediation of Land

Yes

SEPP No 55 aims to identify lands where potential contamination requires that land to be remediated prior to being developed, used, or zoned in a certain way. The Planning Proposal seeks to rezone a number of properties across the LGA.

The minor nature of the rezonings and the known histories of the sites involved do not indicate that there is, or would be likely to be, any contamination present. Notwithstanding this, the sites in question can be required to undertake formal investigation works as part of any future Development Applications.

Prior to any use or development occurring subject to a development application, land will need to be assessed against clause 7 of the SEPP.

The Planning Proposal is considered to be consistent with – and not in contravention of – this SEPP.

Exempt and Complying Development Codes 2008

The Planning Proposal seeks to include a number of local exempt development listings. These are either not covered by the SEPP or limited in terms of the zones where they apply. The proposed listings do not conflict with, or duplicate the SEPP

Therefore, the Planning Proposal is considered to be consistent with – and not in contravention of – this SEPP.

Attachment 10. Applicable Ministerial Directions (section 9.1 Directions)

1 Employment and Resources

Direction

Consistent?

Comments

1.1 Business and Industrial Zones

Yes

The Planning Proposal is consistent with this Direction.

Direction 1.1 stipulates that Planning Proposals must:

· give effect to the objectives of the Direction,

· retain existing business and industrial zones,

· not reduce total potential floor space for employment and related public services in business zones and industrial uses in industrial zones, and

· ensure that proposed new employment areas are in accordance with a strategy that is approved by DPE.

Rezoning of land adjacent to the CBD seeks to convert from one business zone B6 to a mix of two other business zones B3 and B4.

The rezoning of land around the east orange post office technically adds a modest amount of supply, but in practice simply recognises the current range of commercial activities already in operation.

The minor rezoning of IN1 land at the rear (southern end) of 1 Barrett street only involves a disused and inaccessible section of the lot to facilitate the orderly development of adjacent residential land to the west.

The Proposal therefore responds satisfactorily to this Direction.

2 Environment and Heritage

Direction

Consistent?

Comments

2.3 Heritage Conservat-ion

Yes

The Planning Proposal is consistent with the objective of this Direction, it involves only the rectification of misdescriptions in Schedule 5 and correction of several mapping errors and anomolies. The only removal relates to Emmaville Cottage in North Orange (item I308) which was physically relocated the Orange Adventure Playgoround (Lot 20 DP 1076343)

The Proposal therefore responds satisfactorily to this Direction.

3 Housing, Infrastructure and Urban Development

Direction

Consistent?

Comments

3.1 Residential Zones

No – justified

The Planning Proposal is consistent with the objectives of this Direction.

No current residentially zoned land is to be changed.

One very minor rezoning at the rear of 1 Barrett Street will technically add to the supply of R1 land.

3.4 Integrating Land Use and Transport

The Planning Proposal is consistent with this Direction.

The Direction requires the planning authority to have regard to:

· Improving Transport Choice – Guidelines for planning and development (August, 2001) by former NSW Department of Urban Affairs and Planning (DUAP), and

· The Right Place for Business and Services – Planning Policy (August, 2001) by DUAP.

Improving Transport Choice highlights the need to concentrate a mix of uses in centres, improve walkability and cyclability of urban areas, plan public transport to work with land use strategies, and design hubs in a way that they are to human-scale.

The Right Place for Business and Services outlines key objectives such as co-locating trip-generating activities in highly accessible areas, minimising car-dependence through limiting dispersed, inaccessible commercial development, ensuring public transport meaningfully connects to mixed use centres, protecting/maximising community investment in centres and dependent infrastructure, encouraging private and public investment into centres, and fostering growth, competition and innovation in centres.

The CBD expansion (into land that is already in a business zone) will enhance the ability of the CBD to provide a consolidated shopping and commercial precinct which is consistent with principles of minimising private vehicle usage by enabling one trip to serve as many purposes as possible. As a result of the Planning Proposal, car dependence will be reduced in Orange for leisure/retail/hospitality consumer trips.

4 Hazard and Risk

Direction

Consistent?

Comments

4.3 Flood Prone Land

No – but justified

The Planning Proposal is consistent with the objectives of this Direction, but not the terms of the Direction.

Council is undertaking a Floodplain Risk Management Study and Plan, that reviews the current FRMP which only applies to the Blackmans Swamp Creek (roughly the eastern and central parts of the city and terminates at the rail corridor in the South) and the LEP currently only applies to riverine flooding and does not identify or respond to overland flooding from stormwater.

The new FRMP includes, for the first time, a detailed study and modelling of the Ploughmans Creek catchment (roughly the western parts of the city) as well as expanding the Blackmans Swamp Creek catchment southwards to encompass Shiralee and the Bloomfield areas. The new FRMP will also map overland flooding as well as riverine flooding.

The resultant maps within the new FRMP provide an improved and updated understanding of the extent of risk present. This document (intended to be publicly exhibited roughly in parralel to this planning proposal) will inform future engineering and remediation works, which over time are expected to reduce the extent of hazard. Council anticipates being able to update the FRMP on a rougly annual basis. As such the current LEP approach would almost always be behind the latest knowledge. Accordingly the proposal seeks to amend Clause 7.2 and introduce a new clause that will link the LEP to the current adopted FRMP, meaning that as soon as the FRMP is updated the LEP will automatically respond to the latest information

Therefore, the Planning Proposal will not result in development of flood prone land that is inconsistent with the Floodplain Development Manual 2005. The proposed changes are intended to ensure that flood planning controls will always remain as up-to-date as possible. Whenever additional flood studies are undertaken and adopted the planning controls will respond automatically to the new information.

5 Regional Planning

Direction

Consistent?

Comments

5.10 Implemen-tation of Regional Plans

Yes

The Planning Proposal is consistent with this Direction.

The Central West and Orana Regional Plan 2036 has been consulted and comments made against that Regional Plan under Q3 of this proposal. The Planning Proposal was deemed to be consistent with relevant Directions and Actions of that Plan.

6. Local Plan Making

Direction

Consistent?

Comments

6.1 Approval and Referral Requirem-ents

Yes

The Planning Proposal is consistent with this Direction.

The Planning Proposal does not propose to require concurrence for additional uses or situations.

6.3 Site Specific Provisions

Yes

The Planning Proposal is consistent with this Direction.

The Planning Proposal seeks to create an additional permitted use on land at 120 Calton Road, which is considered to be the best way to provide the owner with an equitable outcome given the history of this site as detailed in attachment 8

Heading	Page

INTRODUCTION	1
PART 1 – OBJECTIVES OR INTENDED OUTCOMES	1
PART 2 – EXPLANATION OF PROVISIONS	1
PART 3 – JUSTIFICATION	2
SECTION A: Need for the planning proposal	2
Q1. Is the planning proposal a result of any strategic study or report? Q2. Is the planning proposal the best means of achieving the objectives or intended outcomes, or is there a better way?	2 3
SECTION B: Relationship to strategic planning framework	3
Q3. Is the planning proposal consistent with the objectives and actions of the applicable regional, sub-regional or district plan or strategy (including any exhibited draft plans or strategies)? Q4. Is the planning proposal consistent with a Council’s local strategy or other local strategic plan? Q5. Is the planning proposal consistent with applicable State Environmental Planning Policies? Q6. Is the planning proposal consistent with applicable Ministerial Directions (section 9.1 Directions)?	3 8 9 9
SECTION C: Environmental, social, and economic impacts	9
Q7. Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats, will be adversely affected as a result of the proposal? Q8. Are there any other likely environmental effects as a result of the planning proposal and how are they proposed to be managed? Q9. Has the planning proposal adequately addressed any social and economic effects?	9 10 12
SECTION D: State and Commonwealth interests	13
Q.10 Is there adequate public infrastructure for the planning proposal? Q.11 What are the views of State and Commonwealth Public Authorities consulted in accordance with the gateway determination?	13 13
PART 4 – MAPPING	14
PART 5 – COMMUNITY CONSULTATION	14
PART 6 – PROJECT TIMELINE	15

ATTACHMENTS
Attachment 1. Amendment to Schedule 5 Environmental Heritage
Attachment 2. Amendment to LEP maps to rectify cadastre changes
Attachment 3. Amendment to Schedule 2 Exempt Development
Attachment 4. Amendment to Flood planning controls
Attachment 5a. Adoption of Combined Local Map 1 Sheet 12 to complete the water catchment boundary
Attachment 5b. Amend Combined Local Map 1 Sheets 9, 10 and 15 to update the airport Obstacle Limitation Surface
Attachment 6a. Amend clause 4.1C in relation to multi dwelling housing in Ploughmans Valley
Attachment 6b. Amend clause 4.2 to include Zone E3 Environmental Management.
Attachment 6c. Adopt a new clause in relation to split-zoned and split-sized land
Attachment 6d. Adopt a new clause in relation to small scale café’s in residential areas and amend clause 5.4 to limit the floor space area for such development.
Attachment 7a. Minor rezoning of residue industrial land at Narrambla
Attachment 7b. Minor adjustment to land use zones along the Teamsters Walkway
Attachment 7c. Amending the SP2 zone applying to the Rural Fire Services site in Forest Road
Attachment 7d. Minor rezoning of part of 1 Barrett Street to convert surplus industrial land to residential.
Attachment 7e. Minor rezoning to change the designation of Jack Brabham Park from Private Recreation to Public Recreation
Attachment 7f. Minor rezoning of the Orange Function Centre on Bathurst Road
Attachment 7g. Minor rezoning to extend the B3 zone eastwards on the northen side of Summer Street to William Street and create a B4 zone on the eastern side of William Street between Bathurst Road and Byng Street.
Attachment 7h. Minor adjustment to the land use zone and minimum lot size maps in Shiralee to reflect the layout of approved subdivisions.
Attachment 7i. Minor rezoning of neighbourhood shops in East Orange, to better recognise the current use of the land around the East Orange Post Office
Attachment 7j. Minor amendment to the minimum lot size in relation to land intended for a future caravan park on the eastern edge of the city.
Attachment 7k. Minor adjustment to the water catchment boundary and zoning map in relation to land at Shadforth
Attachment 8. Creation of an Additional Permitted Use in relation to a dwelling entitlement at 120 Calton Road
Attachment 9. Applicable State Environmental Planning Policies
Attachment 10. Applicable Ministerial Directions (Section 9.1 Directions)

Development Application
Applicant Name:	Mayoh Architects Pty Ltd - PD Mayoh Pty Ltd
Applicant Address:	(Attention Melodie Kaplan) 60 Strathallen Avenue NORTHBRIDGE NSW 2063
Owner’s Name:	Denoc Holdings Pty Ltd
Land to Be Developed:	66 Byng Street and 77 Hill Street, Orange
Proposed Development:	Alterations and extension to an existing heritage mansion to provide boutique hotel accommodation, conference room, kitchen and dining facilities, on-site car parking and landscaping

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

Determination made under Section 4.16	Development consent was initially granted by the Land and Environment Court on 1 June 2017 – Appeal Number 2016/183468.
Made On:	4 December 2018 – Determination date of the modification application
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	1 June 2017
Consent to Lapse On:	1 June 2022