Agenda of Planning and Development Committee

Planning and Development Committee 3 September 2019

2.2 Development Application DA 141/2019(1) - Lot 78 Lantana Place

RECORD NUMBER: 2019/1787

AUTHOR: Kelly Walker, Senior Planner

EXECUTIVE Summary

Application lodged	14 May 2019
Applicant/s	Housing Plus
Owner/s	Mr KS Baker
Land description	Lot 78 DP 1172183 - Lantana Place, Orange
Proposed land use	Multi Dwelling Housing (10 dwellings)
Value of proposed development	$2,750,000

Council's consent is sought for proposed residential development of land at Lot 78 DP 1172183 – Lantana Place, Orange (see Figure 1). The proposed development is for a multi housing development containing 10 dwellings, comprising of a mix of four x 1 bedroom dwellings and 6 x two bedroom dwellings. The completed development will consist of five separate buildings, each of which will accommodate two dwellings in an attached duplex design. The proposed development is being carried out by Community Housing Provider, Housing Plus, as part of the NSW government’s ‘Social and Affordable Housing Fund,’ a key initiative under the ‘Future Directions for Social Housing in NSW’ strategy.

Figure 1 - locality plan

The proposed development is single storey in height, and predominantly of brick construction. The six dwellings at the front of the development will address Lantana Place, which will be extended along to the west and adopted as Council road. The 2 bedroom dwellings have private entrances, kitchen/dining, living room, bathroom/laundry, 2 bedrooms, and an attached single garage. The 1 bedroom dwellings have private entrances, kitchen/dining/living, bathroom/laundry, 1 bedroom, and an adjacent single carport.

The proposal comprises advertised development pursuant to Clause 5.3 of the Orange Development Control Plan 2004 (DCP). At the completion of the public notice and exhibition period, 47 submissions were received in relation to the proposed development, of which 31 oppose the proposal, and 16 are in support. The submissions generally relate to overdevelopment of the site and the associated impacts on the neighbourhood (traffic, servicing, character, etc.). These matters are discussed in detail in the main body of the report.

It is noted that the application originally proposed an internal pedestrian ramp down the driveway to the rear. Following the advertisement of the application, the drawings were changed removing this aspect, and were submitted to Council as an amended application. It was considered that the amended proposal did not require re-advertising as it only involved minor internal site changes that reduce hard surface areas, and amended minor engineering and landscaping details.

A Section 4.15 assessment demonstrates that the proposal is consistent with the planning regime that applies to the land, where multi dwelling housing is permitted with consent in the R1 General Residential zone. Impacts of the development are considered to be within reasonable limit, are consistent with applicable standards and policies, and can be addressed by appropriate conditions of consent. Approval of the application is recommended.

DECISION FRAMEWORK

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

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

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

DIRECTOR’S COMMENT

This development proposal for 10 dwellings funded through the Social and Affordable Housing Fund. The proposal is compliant in terms of state and local planning requirements. 47 submissions were received with 16 submissions in support and 31 submissions against the development. 2 Petitions were also received. The proposed development makes good use of large allotment. The recommendation of approval is supported.

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to consent to development application DA 141/2019(1) for Multi Dwelling Housing (10 dwellings) at Lot 78 DP 1172183 - Lantana Place, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

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

THE APPLICATION/PROPOSAL

Council's consent is sought for proposed multi dwelling residential development of land at Lot 78 DP 1172183 – Lantana Place, Orange. The proposal involves the construction of 10 new dwellings, comprising of a mix of four x 1 bedroom dwellings and six x 2 bedroom dwellings. The completed development will consist of five separate buildings, each of which will accommodate two dwellings in an attached duplex design (see Figure 2).

Figure 2 – proposed site plan (from submitted drawing A003 Rev H)

The proposed development is single storey in height, and predominantly of brick construction. The six dwellings at the front of the development will address the street, which will be extended along to the west, and adopted as public/Council road (see Figure 3). The 2 bedroom dwellings have private entrances, kitchen/dining, living room, bathroom/laundry, 2 bedrooms, and an attached single garage. The 1 bedroom dwellings have private entrances, kitchen/dining/living, bathroom/laundry, 1 bedroom, and an adjacent single carport. A driveway will extend down to the rear of the site to access the rear four dwellings, and visitor parking spaces, a bin collection area for these dwellings, and landscaping are proposed off this driveway (see Figure 4).

Figure 3 – visualisation render Lantana Place (looking west at front six dwellings)

Figure 4 – visualisation render rear of site (looking east from rear dwellings)

Proposal Amendments

It is noted that the application originally proposed an internal pedestrian ramp down the driveway to the rear, however the applicant deemed this unnecessary, and drawings were amended removing this aspect. The publically exhibited drawings included this ramp, and it was considered that the amended proposal did not requiring re-advertising, as they only involved minor internal site changes that reduced hard surface areas, and amended engineering and landscaping details accordingly.

Further amended plans were received following a letter to the applicant requesting further information and asking for issues raised from Council staff and through neighbouring submissions to be addressed. These amendments did not alter the fundamental aspects of the proposal, but rather clarified details, provided further analysis, and resolved minor issues such as straightening a driveway, providing more suitable tree species, etc. These matters are discussed in the following assessment.

MATTERS FOR CONSIDERATION

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

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

There are three applicable triggers in the Orange LGA known to insert a development within the Biodiversity Offset Scheme, and thereby require submission of a Biodiversity Development Assessment Report (BDAR):

1. Whether development occurs within land mapped on the Biodiversity Values Map.

The subject land is not identified as biodiversity sensitive on the Orange LEP 2011 Terrestrial Biodiversity Map, or the Biodiversity Values map published by NSW Office of Environment and Heritage.

2. Whether development involves clearing/disturbance of native vegetation above prescribed threshold.

The prescribed clearing threshold for the site is 0.25ha (based on the total lot size for the subject land being less than 1ha pursuant to Cl. 7.2 Biodiversity Conservation Regulation 2017). As set out in the submitted “Ecological Assessment” (prepared by Flora Search, and dated 16 April 2019), the site is highly disturbed and dominated by introduced grasses and weeds, and the proposed development does not involve the clearing or disturbance of native vegetation. This is discussed in greater detail in point 3 below.

3. Whether development is likely to affect a threatened species.

With regard to the third trigger, the test for determining whether proposed development is otherwise likely to significantly affect threatened species is listed in the BC Act 2016, under s7.3:

(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity:

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(c) in relation to the habitat of a threatened species or ecological community:

(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,

(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),

(e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.

Subdivision of land is considered a ‘key threatening process’ and the applicant has submitted an “Ecological Assessment” in support of the proposal (prepared by Flora Search, and dated 16 April 2019). An assessment of the site was carried out in relation to the relevant provisions of the Acts and Regulations, and found 33 ground cover flora species and one shrub, 9 of which are native to the site, and the remaining 24 species are introduced pasture plants and weeds. Ground cover is dominated by introduced grasses and forbs. No animal species, native or introduced were observed on the site. Almost none of the original native flora and wildlife habitat exists, and only 4 Silver Wattles remain from the original tree cover.

The assessment notes that the native vegetation of the area was formerly dominated by Yellow Box (Eucalyptus melliodora), as demonstrated by the continued presence of mature trees on adjoining land to the west. The presence of Yellow Box nearby indicates that the site formerly hosted Box-Gum Woodland Endangered Ecological Community (EEC), however no visible remnants of this community now remain on the site. As the site is highly disturbed (through past use of the land for farming and grazing), and is dominated by introduced flora species and weeds, which provide poor habitat, there are no other flora or fauna species, populations, ecological communities or critical habitat listed under the BC Act or the Environmental Protection and Biodiversity Conservation Act 1999 that have the potential to occur.

The proposed development has a small potential to impact on the three Yellow Box trees (Box-Gum Woodland EEC, protected under State and Commonwealth legislation) on the neighbouring western property at the northern end of the development footprint. The assessment notes that the largest trees are approximately 6.6m and 7.0m from the boundary, where the northern most trees are well clear of proposed Dwelling 1, and are unlikely to be impacted. The southernmost tree is closest to proposed Dwelling 1, and a branch of this tree overhangs the boundary, and is likely to require lopping, which is unlikely to result in a decline in tree health. The root system may extend into the development area and may suffer minor disturbance as a result of construction earthworks for proposed Unit 1. The assessment considers that only a small percentage of the root system would be affected as the building angels away from the tree, and the trunk is far enough away from the boundary such that any disturbance would only affect small feeder roots and is unlikely to result in a decline of the tree.

The assessment concludes that:

- the site is highly disturbed and is dominated by introduced flora species and weeds

- no Endangered Ecological Communities (EECs) are present on the site

- ‘native vegetation’ as defined by the Local Land Services Act 2013 no longer occurs on the site

- no other threatened flora or fauna has potential to occur on the site owning to its high level of disturbance and poor habitat quality

- it is not considered necessary to conduct flora and fauna surveys on the site under the BC Act, or to undertake a formal biodiversity impact assessment on account of threatened biodiversity

- in order to minimise damage to a Yellow Box tree on the adjoining property to the west, the proponent undertakes to minimise soil disturbance within the area below the existing tree canopy as much as practical.

Council staff generally concur with these conclusions, although the lopping of the overhanging branch is not supported, as the discriminant removal of a branch often leaves points of decay. Instead it is recommended the tree is pruned by a qualified arborist. Relevant conditions of consent are recommended in relation to the protection of the neighbouring tree during construction works, including only pruning and not lopping, and establishing a Tree Protection Zone (TPZ) during construction periods. Based on the foregoing considerations, a BDAR is not required and the proposal satisfies the relevant Section 1.7 of matters.

Section 4.15

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

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

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

The application is considered to be consistent with the above objectives as outlined below and in the following sections in this report:

· there are no aspects of the proposal that would adversely impact on the character of Orange as a major regional centre. Indeed, ongoing development of residential lands will contribute to the role of the City as a major centre,

· there are no aspects of the proposal that would compromise the principles of ecologically sustainable development

· the proposal will contribute to the City’s range and supply of housing choices

· the proposal will not adversely affect the value of heritage, landscape, and scenic features of the city, as discussed in the main body of this report.

Clause 1.6 - Consent Authority

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

Clause 1.7 - Mapping

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

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

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

Clause 1.9A is applicable and states in part:

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

(2) This clause does not apply:

(a) to a covenant imposed by the Council or that the Council requires to be imposed, or

(b) to any prescribed instrument within the meaning of Section 183A of the Crown Lands Act 1989, or

(c) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or

(d) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or

(e) to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or

(f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or

(g) to any planning agreement within the meaning of Division 6 of Part 4 of the Act.

The subject lot is benefited by an easement to drain water to the neighbouring lot to the east (DP1122907), and is burdened by positive covenants on the title requiring the following:

- all infrastructure services required by Council’s Development and Subdivision Code are provided for the lot

- chemical residue and soil classification tests are provided

- contributions required by Council’s Contribution plan are paid.

These matters are assessed and discussed in the main body of this report. Council staff are not aware of the title of the subject property being affected by any of the other above instruments.

Part 2 - Permitted or Prohibited Development

Clause 2.1 - Land Use Zones

The subject site is located within the R1 General Residential Zone. The proposed development is defined as ‘multi dwelling housing’, which pursuant to the LEP means:

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

Multi dwelling housing is permitted with consent in the R1 zone.

Clause 2.3 - Zone Objectives and Land Use Table

The objectives for land zoned R1 General Residential are:

· To provide for the housing needs of the community.

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

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

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

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

The proposal is not contrary to the relevant R1 zone objectives as follows:

· the proposed development will provide additional housing stock to accommodate the housing needs of the community

· the development will contribute to the variety of housing types and densities in the precinct, and complement the developing neighbouring residential density

· the proposal involves residential land use only

· the surrounding residential area is serviced by public transport

· the site is not located in the vicinity of the Southern Link Road.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

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

Clause 4.1B applies and states in part:

(2) Development consent may be granted to development on a lot in a zone shown in Column 2 of the Table to this clause for a purpose shown in Column 1 of the Table opposite that zone, if the area of the lot is equal to or greater that the area specified for that purpose and shown in Column 3 of the Table.

Column 1 Column 2 Column 3

Multi dwelling housing R1 General Residential 1250m²

In consideration of this clause, the proposed development is situated on land zoned R1 General Residential. The subject land comprises site area of 4,991m², and exceeds the minimum area of 1,250m² required for a multi dwelling housing development.

It is noted that the proposal does not involve subdivision, and the extension of the road through the lot will result in one Torrens lot split into two areas by the road, being proposed Dwelling 1 and 2 to the north, and all other proposed Units to the south. Following the dedication of the road to Council, the northern part of the site containing Dwellings 1 and 2 will be approximately 790m² in size, which would be undersized if a dual occupancy (2 dwellings on one lot) was proposed, where the LEP requires a minimum lot size of 800m². This standard however is not relevant in this case, as the proposal does not involve subdivision or a dual occupancy, and the total overall area is sufficient in size for multi dwelling housing.

Part 5 - Miscellaneous Provisions

The Part 5 provisions are not applicable to the subject land or proposed development.

Part 6 - Urban Release Area

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

Part 7 - Additional Local Provisions

7.1 - Earthworks

Clause 7.1 applies. This clause states in part:

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

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

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

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

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

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

(f) the likelihood of disturbing relics,

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

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

The site slopes steadily towards the rear of the site (south), with overall cross fall in the order of some 13m. Considerable earthworks will be required to create the driveway and parking areas, however generally the proposal has taken into account the natural slope of the site so that substantial changes do not need to be made. Retaining walls will be constructed throughout the site and on side and rear boundaries to achieve appropriate levels for building pads and outdoor open space areas (see Figure 5).

Figure 5 – cross section of the site (looking west)

Appropriate drainage infrastructure can be provided within the development to ensure construction earthworks and finished levels will not impact on adjoining properties or receiving waterways.

The site is not known to be contaminated, nor is the site known to contain any Aboriginal, European or archaeological relics. The site is not in proximity to any waterway, drinking water catchment or sensitive area. Conditions are recommended that require sediment control measures to be implemented onsite prior to works commencing to ensure that loose dirt and sediment does not escape the site boundaries. Potential contamination and unexpected finds during construction are discussed in the SEPP 55 assessment later in this report.

In consideration of this clause, the proposal is considered to be acceptable.

7.3 - Stormwater Management

Clause 7.3 is applicable. This clause states in part:

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

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

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

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

Stormwater from the development will be directed to the lowest part of the site, being the south-western corner, where it will be detained before being piped to the adjacent watercourse. Preliminary interlot stormwater drainage and detention has been designed by the applicant’s engineer, as set out in the attached drawings. It is noted that the adjacent watercourse is not a mapped ‘sensitive waterway’ pursuant to the LEP, and the majority of stormwater run-off for the surrounding residential land and streets is also piped to this watercourse, which feeds into the Burrendong Way Wetland. When stormwater flows are high, water is pumped from the wetland into the Ploughman’s Creek Stormwater Harvesting Scheme, which contributes to the City’s drinking water.

Council’s Development Engineer has reviewed the proposal and considers that stormwater can be designed to satisfy the requirements of LEP Clause 7.3. Various conditions of consent are recommended in relation to this matter, including stormwater design and detention standards; full engineering plans for stormwater, driveway and car parking areas, etc. to be assessed prior to the issuing of a Construction Certificate; and the payment of contributions for water, sewer, and drainage works.

7.6 - Groundwater Vulnerability

The subject land is identified as ‘Groundwater Vulnerable’ on the Groundwater Vulnerability Map. Clause 7.6 applies. This clause states in part:

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

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

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

In consideration of Clause 7.6, there are no aspects of the proposed residential development that will impact on groundwater and related ecosystems. It is noted that the submitted “Detailed Contaminated Site Investigation” (prepared by EnviroScience, and dated February 2019) demonstrates that the water table is typically >10m deep, and no natural springs or dampness were found during field inspections.

Clause 7.11 - Essential Services

Clause 7.11 applies and states:

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

(a) the supply of water

(b) the supply of electricity

(c) the disposal and management of sewage

(d) storm water drainage or on-site conservation

(e) suitable road access.

Conditions of consent are recommended in relation to the provision of urban utility services to the satisfaction of the appropriate body (Council, Essential Energy, Telstra, etc.), and easements may need to be created in relation to drainage services that cannot be contained within the lot.

Conditions of consent are also recommended in regards to the proposed extension and adoption of Lantana Place. It shall be constructed full road width from the end of the existing road construction to the boundary with adjoining land (Lot 4 DP 1065251). This work is to include road pavement and pavement surfacing, kerb and gutter construction, and earth-formed footpath on both sides of the road formation. New street trees are also recommended. A run-cost agreement will need to be entered into with a waste contractor in relation to waste collection for the development, which is discussed later in this report.

All costs associated with the provision and/or upgrade of services is the responsibility of the proponent. In consideration of this clause, the listed utility services are available or can be made available to the land and made adequate for the proposal.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 - Remediation of Land

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

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

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

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

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

Since its creation as a residential allotment, the subject land has remained vacant. Prior to this, the land was used for grazing, and is likely to have contained gum trees before it was farmed (as discussed in the BC Act assessment earlier in this report). Previous subdivisions of the original parcel of land (i.e. the surrounding Botanic Way precinct/Gardens Estate) did not assess this lot for contamination, and as such, a positive covenant was placed on the title requiring chemical residue and soil classification tests to be carried out for any further development of the land.

In consideration of this covenant, and Clause 7 of SEPP 55, a “Detailed Contaminated Site Investigation”, prepared by EnviroScience, and dated February 2019, was undertaken and has been submitted in support of this application. The investigation examined the history of the site, carried out soil sampling and testing, and undertook airborne asbestos air monitoring in accordance with the relevant guidelines.

The investigation concludes that the available history of the site found no potential contaminants from on-site activities, and soil samples returned results below the thresholds for residential with gardens/accessible soil (HIL A Standard), therefore based on the evidence and current science, the site is suitable for the proposed residential use.

Recommendations have been made with the investigation, including soil erosion control to protect the nearby waterway during construction, a waste management plan for construction which includes measures for classifying and testing waste soils that need to be removed from the site, and measures should an unexpected find be discovered during construction (including any Aboriginal or European heritage artefacts). Conditions of consent are recommended to this effect.

Overall it is considered that the proposed development meets Clause 7 of SEPP 55.

It is noted that a “Geotechnical Investigation Report”, prepared by Barnson, and dated 3.05.2019 has also been submitted in support of the application. This investigation is a geotechnical assessment of the site in regards to soil classification and foundation recommendations, to assist in the engineering and design of the buildings. It is not directly relevant to SEPP 55, however was a requirement of the covenant on the title.

State Environmental Planning Policy No 70—Affordable Housing (Revised Schemes)

State Environmental Planning Policy No 70—Affordable Housing (Revised Schemes) (SEPP 70) sets out:

- the definition for ‘Affordable Housing’, being very low income households, low income households and moderate income households whose gross incomes fall within the following ranges of percentages of the median household income according to the Australian Bureau of Statistics:

Very low income household	less than 50%
Low income household	50 or more but less than 80%
Moderate income household	80–120%

- identifies that there is a need for affordable housing across the whole of the State,

- describes the kinds of households for which affordable housing may be provided,

- makes a requirement with respect to the imposition of conditions relating to the provision of affordable housing.

Schedule 2 of SEPP 70 lists the Affordable housing principles as follows:

1 Where any of the circumstances described in section 7.32 (1) (a), (b), (c) or (d) of the Act occur, and a State environmental planning policy or local environmental plan authorises an affordable housing condition to be imposed, such a condition should be imposed so that mixed and balanced communities are created.

2 Affordable housing is to be created and managed so that a socially diverse residential population representative of all income groups is developed and maintained in a locality.

3 Affordable housing is to be made available to very low, low or moderate income households, or any combination of these.

4 Affordable housing is to be rented to appropriately qualified tenants and at an appropriate rate of gross household income.

5 Land provided for affordable housing is to be used for the purpose of the provision of affordable housing.

6 Buildings provided for affordable housing are to be managed so as to maintain their continued use for affordable housing.

7 Rental from affordable housing, after deduction of normal landlord’s expenses (including management and maintenance costs and all rates and taxes payable in connection with the dwellings), is generally to be used for the purpose of improving or replacing affordable housing or for providing additional affordable housing.

8 Affordable housing is to consist of dwellings constructed to a standard that, in the opinion of the consent authority, is consistent with other dwellings in the vicinity.

The proposed development is being carried out by Community Housing Provider ‘Housing Plus’ as part of the NSW government’s ‘Social and Affordable Housing Fund,’ a key initiative under the ‘Future Directions for Social Housing in NSW’ strategy. The proposed dwellings will be occupied by tenants who have been assessed as eligible under the NSW Housing Pathways Strategy. The proposal is aimed at meeting the needs of aging women (over 55 years), however, the development will not necessary be used exclusively by this demographic.

It is considered that the proposal is generally consistent with the Affordable Housing Principles outlined above. In particular, it is considered that the proposed dwellings will be constructed to a standard that is consistent with other dwellings in the vicinity, as discussed in the DCP assessment of this report. No conditions of consent for affordable housing are considered necessary in this case.

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Affordable Rental Housing) 2009 sets out design provisions and standards for affordable housing in relation to floor space, landscaping, parking, dwelling sizes, etc. Although the Policy applies to the subject land, the assessment criteria for affordable housing does not apply to this application, as the subject land is not within 400m walking distance of land within B2 Local Centre or B4 Mixed Use zones (land not in the Sydney region) pursuant to Division 1, Clause 10(3). The subject land is within R1 General Residential zoned land, and is surrounded by residential, rural and recreational zoned land. The closest local centre (B4 zone) is about 1.5km away in North Orange.

In light of the above, the proposed design will be assessed against Council’s DCP, set out later in this report. It is noted that the DCP criteria is generally stricter than the provisions set out in the SEPP, which allows for lesser standards for affordable housing close to local centres.

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

Draft Planning Guidelines for the proposed Remediation of Land SEPP

From 31 January to 13 April 2018 the Department of Planning and Environment publically exhibited an Explanation of Intended Effect (EIE) and Draft Planning Guidelines for the proposed Remediation of Land SEPP, which will repeal and replace State Environmental Planning Policy 55 – Remediation of Land (SEPP 55). Of particular note, the Draft Planning Guidelines state:

“In undertaking an initial evaluation, a planning authority should consider whether there is any known or potential contamination on nearby or neighbouring properties, or in nearby groundwater, and whether that contamination needs to be considered in the assessment and decision making process.”

“If the planning authority knows that contamination of nearby land is present but has not yet been investigated, it may require further information from the applicant to demonstrate that the contamination on nearby land will not adversely affect the subject land having regard to the proposed use.” (Proposed Remediation of Lands SEPP - Draft Planning Guidelines, Page 10).

Land adjoining the site is not identified or considered to be contaminated. Assessments and testing was undertaken prior to the subdivision of surrounding land within the Botanic Way precinct/Gardens Estate, which concluded that the land was suitable for residential use. As discussed in the SEPP 55 assessment above, the subject site is also considered suitable for residential use, as concluded by recent sampling and testing. As such, the provisions of the draft EPI are considered to have been addressed.

Draft Orange Local Environmental Plan 2011 (Amendment 24)

Draft Orange LEP Amendment 24 is currently on public exhibition (26 July – 26 August 2019). The Draft plan involves administrative amendments to the LEP and seeks to:

· Correct anomalies in the Heritage Map and Schedule 5 Environmental Heritage.

· Amend all LEP maps to update the cadastre.

· Create several new entries in Schedule 2 Exempt Development to include additional minor forms of development; and enable some exempt development of land zoned E3 Environmental Management.

· Amend the flood planning controls by linking the LEP with the recent floodplain risk management plan.

· Adopt a missing water catchment map tile to fully identify the water catchment area.

· Amend the Combined Local Map to reflect changes to the Orange Airport Obstacle Limited Surface area associated with the runway extension.

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

· Amend Clause 4.2 to include the E3 Environmental Management Zone, and facilitate the transfer of non-residential rural land holdings between primary producers without creating additional dwelling entitlements.

· Adopt a new clause to enable subdivision of land with more than one zone or minimum lot size.

· Adopt a new clause to enable boundary adjustments of lots already below the minimum lot size, without creating additional dwelling entitlements.

· Adopt a new clause to enable small scale cafés in residential areas, and amend Clause 5.4 in relation to size limitations for same.

· Amend the Land Zoning Map and Lot Size Map to provide for a range of minor rezoning.

Draft Amendment 24 has no effect for the subject land or proposed development.

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

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

Development Control Plan 2004

The following parts of DCP 2004 are applicable to the proposed development:

· Part 2 - Natural Resource Management

· Part 3 - General Considerations

· Part 4 - Special Environmental Considerations

· Part 5 - General Considerations for Zones and Development

· Part 7 – Development in Residential Zones.

The relevant matters in Parts 2, 3, and 4 were considered in the foregoing assessment under the LEP clause assessments. The relevant matters in Part 5 are addressed later in this report (refer to the “ANY SUBMISSIONS” section). The proposal will reasonably satisfy the relevant planning outcomes in Part 7 as outlined in the following assessment.

DCP 2004-7.7 Design Elements for Residential Development

Neighbourhood Character

The DCP sets the following Planning Outcomes in regard to Neighbourhood Character:

Site layout and building design enables the:

· creation of attractive residential environments with clear character and identity

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

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

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

In order to consider the effect the proposal has on the neighbourhood and setting, an assessment of character needs to be undertaken. In defining the relevant character of the local area, reference tools include the Orange LEP, Orange DCP, Council’s Infill Guidelines, and relevant Case Law. The character and identity of a particular area is influenced by the interrelationship of the public and private realms, taking into account the qualitative interplay of many factors which contribute to creating a unique neighbourhood character (‘Design in Context’ NSW Heritage Office and Royal Australian Institute of Architects, 2005). These factors include:

· the underlying natural landform and topographic characteristics, including landscape elements and vegetation

· the fabric and style of the buildings, including materials, colours, building techniques, detailing etc.

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

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

The Botanic Way/Gardens Estate precinct is characterised by residential dwelling houses set around public recreational lands, creeks, and a wetland (see Figures 6, 7, and 8). Surrounding residential development is made up of dwellings, dual occupancies, and unit developments; all recently built, and contemporary in design. Dwellings range in size from small to moderate, are mostly single-storey in scale, and are constructed in brick veneer, with steel or tile hipped roofs. Lot sizes also vary, which is common in the General Residential zone. An analysis of the surrounding residentially developed lots shows the average lot size in the precinct to be around 595m².

Figure 6 – aerial photograph of surrounding precinct (from Google Maps)

Figure 7 – photograph of Burrendong Way Wetland and surrounding precinct

(viewed from Burrendong Way/Northern Distributor (NDR) roundabout)

Relevant case law notes that an assessment of character needs to take into account not only the existing character, but the future desired character, as set out in the relevant planning instruments (i.e. LEP zoning and lot sizes) and Council policies (i.e. the DCP). Land to the west and north of the subject site is currently rural in character, where the neighbouring land to the west is still being used for grazing and a rural-residential dwelling (see Figure 7). However, this land is likely to be subdivided into residential lots similar in scale to the adjacent precinct, as it is zoned R1 General Residential (see Figure 8). Land to the north of the NDR is likely to remain rural, being zoned E4 Environmental Living (see Figure 8).

Figure 8 – LEP Zoning Map (KEY: star – subject site, pink/purple – residential, beige – rural/environmental, green – public recreation, yellow – infrastructure/major roads)

The proposed dwellings will adopt a building form and finish typical to the neighbourhood, with use of design elements consistent with the prevailing development form including contemporary design and finishes, including brick veneer, front porches, and hipped steel roofs; front elevation attached garages and dwelling entrances (carports for the rear dwellings); and landscaped front setbacks and private rear gardens. Although duplex/attached in form, the scale is similar to single dwelling houses, dual occupancies, and unit developments in the surrounding area.

Based on the above considerations, and the DCP planning outcomes for neighbourhood character, it is considered that:

· the proposed bulk, scale, siting, form, and appearance of the development is consistent with other dwellings, dual occupancies, and unit developments in the surrounding area, where it recognises characteristic materials, textures, colours and detailing used locally and in adjacent buildings, adding sympathetically to the local streetscape and grain of the area

· the scale, setbacks, spacing, and layout of the development are consistent with the existing streetscape and surrounding built form, which will result in an attractive residential environment, and will continue the clear residential character of the area

· the extent of proposed landscaped areas and siting of buildings is consistent with the surrounding area, and have been designed to complement the existing features of the site and the surrounding neighbourhood, including views, slope, aspect, and the adjacent creek and trees

· although the proposed hard surface coverage (driveways, car parking areas, etc.) is higher compared with neighbouring lots, it is considered necessary given the slope and shape constraints of the site. Any development of the site would result in the need for additional hard surfaces, and the engineered design includes ample areas of open space and landscaping, as discussed later in the DCP assessment, and adequately considers stormwater as discussed previously. Furthermore, the proposal is well below maximum site coverage, also discussed later

· the proposal will not adversely impact on pedestrian access associated with the residential street as it currently exists, or when the street is extended to the west. Rear dwellings will enter and exit the site in a forward direction, and dwellings fronting the street will reverse into the street in the same manner as adjacent dwelling houses. Sightlines within Lantana Place are appropriate to avoid conflict with pedestrians

· neighbourhood amenity impacts are considered within reasonable limits, as discussed in the remaining DCP assessment and “Likely Impacts” sections below.

It is contented by neighbours and submitters that a duplex style unit development and the proposed carports are not the ‘same’ as surrounding development, and therefore should not be supported by Council. However, the development satisfies the R1 zone objectives to provide a variety of housing types and densities, and multi dwelling housing is a permitted and complementary land use in the zone. There are other similar unit developments in the area, the closest being to the south of the site, on the other side of Brooklands Reserve that adjoins the southern boundary of the site (see Figure 6). Furthermore, the courts have established that to be ‘compatible’ does not mean a development has to be the same as the surrounding neighbourhood; that having considered whether a proposal's physical impacts on surrounding development are acceptable, and if the proposal's appearance is in harmony with the buildings around it, then it can be considered consistent with neighbourhood character.

Overall, it is considered that the development is sited and designed to reasonably integrate in the immediate context and setting, as well as the wider local area, without adversely impacting on the neighbourhood character or function.

Building Appearance

The DCP sets the following Planning Outcomes in regard to Building Appearance:

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

· the frontages of buildings and their entries face the street

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

The design, detailing, and finishes for the proposed dwellings are appropriate for this neighbourhood, and will complement recent dwellings on adjoining lands, as discussed in the “Neighbourhood Character” assessment above.

As shown in the attached drawings and in Figures 3 and 9, front elevations for proposed Dwellings 1-6 will address the street with front doors, front porches, and attached garages all fronting an extended Lantana Place. Garages will satisfy the DCP guidelines in respect of design, sting, and width, and are less than 50% of each of the frontages, therefore they will not dominate the street. The buildings have been designed to look similar to a single dwelling with a double garage, where each duplex has two garage doors, one for each unit. Front landscaping is also proposed to soften and integrate the buildings into the streetscape.

Figure 9 – visualisation render street frontage (looking south)

The rear dwellings and visitor car parking spaces will not be readily visible from the street. Proposed Dwellings 7-10 include front doors, front porches, and adjacent carports fronting the communal space to the rear of the site, which includes driveway/manoeuvring areas, visitor parking, landscaped areas, and bin collection area (see Figure 4). Boundary fencing and retaining walls means these areas will not be readily visible from neighbouring properties, nearby streets, or adjacent and nearby areas of public open space (Brooklands Reserve, Burrendong Way Wetlands, etc.) (see Figure 5).

Heritage

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

· heritage buildings and structures are efficiently re-used

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

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

The subject land does not contain or adjoin a heritage item, and is not located within a heritage conservation area. As such, the heritage planning outcomes are not relevant to this site or application.

Setbacks

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

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

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

Proposed Dwellings 1-6 will have frontages to an extended Lantana Place. The dwellings will be sited a minimum 4.5m from the (future) street boundaries, and complement the siting of the adjoining dwellings to the east (being 4m setbacks for numbers 3, 6, and 8 Lantana Place and 5m setback for number 3 Lantana Place). Proposed Dwelling 3 will be set back a few metres further from the street than the other dwellings to allow for sufficient manoeuvring out into the street. This will still be consistent with the general setbacks for the development and surrounding area. The dwellings fronting the street will be similar in scale to neighbouring dwellings, and front landscaping is proposed to integrate the buildings into the streetscape. Street trees are also recommended, which is discussed later in the DCP assessment.

Single garages at the site frontage for Dwellings 1-6 will be sited a minimum of 5.5m from the (future) front boundaries, which will allow for tandem additional/visitor car parking wholly within the subject land. Visitor spaces for the rear dwellings is provided to the rear of the site, away from the site frontages.

Overall, visual encroachment impacts on the public road are not anticipated, given the proposal exceeds the minimum setbacks, and proposed setbacks and building scale are consistent with neighbouring dwellings.

Front Fences and Walls

The DCP sets the following Planning Outcomes in regard to Fences and Walls:

· Front fences and walls:

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

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

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

The proposal does not involve the erection of front fencing to Lantana Place. The open front setback will complement those for nearby dwellings in the streetscape, as discussed previously. Ample space is available for landscaping, street trees, mail boxes and the likes.

Visual Bulk

The DCP sets the following Planning Outcome in regard to Visual Bulk:

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

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

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

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

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

- building to the boundary where appropriate.

The site slopes steadily to the rear/south, with overall cross fall in the order of some 13m. Considerable earthworks will be required to create the driveway and parking areas, however generally the proposal has taken into account the natural slope of the site so that substantial changes in existing levels do not need to be made. Retaining walls will be constructed throughout the site and on side and rear boundaries to achieve appropriate levels for building pads and outdoor open space areas (see Figure 5).

Finished floor levels will range from 864.5 for proposed Dwellings 1 and 2 at the highest part of the site (northern side of extended road), to between 859.0 and 859.7 for proposed Dwellings 7-10 at the lowest part of the site (south/rear). Based on the finished levels, visual bulk encroachment impacts are not anticipated for adjoining dwellings within or adjoining the site. The development has been designed so that the bulk of the proposed dwellings match or are lesser than the bulk of neighbouring dwellings (i.e. are either in-line with the bulk of neighbouring dwellings, or sit lower/are smaller than the neighbours). The attached elevations show the proposed dwellings in relation to the boundaries and in context of neighbouring dwellings.

The proposed dwellings will be single storey, with reasonable setbacks from side and rear boundaries. The dwellings will complement the bulk and scale of dwellings nearby to the site in Lantana Place, Botanic Way and Brooklands Drive. The proposed dwellings will be contained within the DCP-prescribed visual bulk envelope planes, as demonstrated in the submitted elevation drawings.

The proposed dwellings, attached garages, and adjacent carports will comprise a total building footprint of 801.35m². Based on a site area of 4,991m² the development will have site coverage of 16.1%, well below the maximum 50% prescribed for multi dwelling housing development.

Walls and Boundaries

The DCP sets the following Planning Outcome in regard to Walls and Boundaries:

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

- the privacy of neighbouring dwellings and private open space

- the access to daylight reaching adjoining properties

- the impact of boundary walls on neighbours.

The proposal does not involve the construction of buildings on the boundary, where minimum 900mm side setbacks will be maintained for fire safety reasons (pursuant to the Building Code of Australia/National Construction Code discussed later in this report). This is a common side setback for new dwellings within the precinct and across the City. The attached elevations demonstrate that the proposed dwellings, as well as the proposed boundary/near to boundary retaining walls and fences comply with the DCP-prescribed visual bulk envelope planes. As discussed throughout this report, the site layout and building design will not adversely impact on adjoining dwellings in respect of privacy, solar access, or visual bulk.

Daylight and Sunlight

The DCP sets the following Planning Outcome in regard to Daylight and Sunlight:

· Buildings are sited and designed to ensure:

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

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

- consideration of Council’s Energy Efficiency Code.

Overshadowing of Private Open Space

Pursuant to the DCP Guidelines:

Sunlight is to be available to at least 40% of required open space for dwellings within the development and those on adjoining lands for at least three hours between 9am and 3pm.

Shadow diagrams and calculations were submitted in support of the proposal, which demonstrates that all but one of the proposed dwellings will receive at least 3 hours sunlight to at least 40% of the main area of private open space midwinter. Proposed Dwelling 6 will receive around half an hour less than the required 3 hours, where 40% of the private open space area will be unshaded from around 11.30am to 2pm. The amount of private open space provided to this proposed dwelling well exceeds the DCP requirements in terms of area, and the half hour less daylighting will result in only very minor impacts to the future occupant of that dwelling in winter.

The submitted information also demonstrates that the proposed development is unlikely to reduce daylight on the private open space areas of adjoining residential land during the winter. While the adjoining property at number 37 Botanic Way will be the most overshadowed property, as demonstrated in the attached shadow diagrams, most of the shadowing comes from the existing property boundary fence. Shadowing from this fence and daylighting to the neighbour would have already been considered in the assessment of the development of that adjoining lot, and the proposal will not worsen the existing situation, as required by the DCP.

Overall, daylighting to private open space areas for future dwellings on the subject land, and neighbouring dwellings is considered acceptable.

Overshadowing of Dwellings

Pursuant to the DCP Guidelines:

Sunlight to at least 75% of north-facing living area windows within the development and on adjoining land is to be provided for a minimum of four hours on 21 June; or not further reduced than existing where already less.

The proposed dwellings will each contain north-facing living room windows. The attached solar access drawings demonstrate that daylight will be provided to those windows for a minimum of 4 hours on the winter solstice, consistent with the DCP Guidelines.

The proposed dwellings will not cause overshadowing of northern living rooms windows for adjoining dwellings due to the north-south orientation of the site, and the matching of the bulk of the proposed dwellings to their neighbours.

Furthermore, habitable rooms include windows that are generally facing private open space areas, the street, the internal communal landscaped areas, or the reserve to the rear, providing for adequate amenity and sunlight for future occupants.

Overall it is considered that the proposal is generally in accordance with the DCP planning outcomes for daylight and sunlight.

Views

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

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

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

While the subject site is not located within the scenic protection area under the DCP, it is located within an important view corridor, where the subject site and some of its neighbours enjoy full or partial views to the southwest towards Mount Canobolas and Pinnacle (see Figure 10). The DCP includes some guidelines with regard to view analysis and identifies certain features as providing ‘highly valued’ views. The DCP identifies Mount Canobolas as the primary view in Orange. In addition, the rear boundary of the subject land presents to Brooklands Reserve, which provides for highly valued outlook (see Figure 10).

20190621_111626

Figure 10 – views towards Mount Canobolas and Pinnacle (looking south-west from subject site)

As these views are considered to be significant, the proposed development should be designed to share them where possible. The proposed development has the potential to obstruct the partial views from the front windows of the neighbouring properties to the east at numbers 4, 6, and 8 Lantana Place; and partial and full views from side and rear windows of the neighbouring properties to the east at numbers 3 Lantana Place, and 37 Botanic Way.

The Court has established some planning principles with regard to view loss and view sharing assessment. The salient principles can be found in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 in paragraphs 25-29, as set out below:

25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable). To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skillful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

In relation to this four step assessment, the following observations are made:

· the views towards Mount Canobolas are considered to be highly valued under the DCP

· the views from the neighbouring properties are not full or panoramic, as they are partially obstructed from existing vegetation on other land

· the views from Lantana Place properties are obtained primarily from the front or rear windows, and generally from standing positions

· the view from the neighbour at number 37 Botanic Way is obtained from living room windows, and a small outdoor patio on the side of the dwelling, from both sitting and standing positions. As this is a battleaxe site, this boundary could be considered either the side or rear, however it is the side boundary of the subject lot

· neighbour’s private outdoor areas are unlikely to enjoy views due to orientation, slope and boundary fencing

· it is to be expected that a proportion of views will be reduced as a result of future residential development on the subject lot, where it is considered unreasonable to assume that the vacant site would remain so indefinitely

· there is currently no boundary fence between the subject site and the neighbour at number 37 Botanic Way, presumably to take advantage of the view, and the existing neighbouring dwelling has been constructed very near to the boundary. It is considered reasonable to assume a boundary fence would be erected in relation to future development of the subject land, and that views would be obstructed given the proximity of existing windows to a future fence.

The applicant has undertaken an assessment of views, and notes the following:

- “In terms of view sharing consideration we acknowledge there are view sharing principles established and a balance should be struck between the right to be able to develop adjoining land versus the right to maintain views.

- The design has taken into account there may be long distant views of Mount Canobolas and other smaller hills in the locality. The design features include ensuring all buildings are (low) single storey with equal to or less than 25° roof pitches; a low site coverage (at 16%) and buildings generally follow the natural profile of the land so that views can be maintained.

- In respect to No. 37 Botanic Way we note that no boundary treatment currently exists between that land and the subject site and a 1.8m fence has been proposed which may impede some views at lower levels. It is reasonable to expect that a boundary fence should be (sic) installed between the properties in this location at a height that can be conditioned between the parties.

- Notwithstanding this fence height the finished floor levels for proposed Units 7 -10 are generally below the dwelling at No. 37 Botanic Way and the majority of the unit/s roofline shall be at or below the expected fence height depending on the point at which you consider on the property. An adult of average height standing on the deck of the existing dwelling should still retain views over the fence and unit rooflines across to Mount Canobolas.

- In respect to Nos. 3, 6 and 8 Lantana Place their views are interrupted by large trees on adjoining lot/s not related to the subject site. Building (window) openings on the directly elevations facing Mount Canobolas also do not lend themselves to capturing the views. The partial views can be maintained in the case of Nos. 6 and 8 along a corridor at the front of the subject site, and in the case of No. 3 a corridor exists through the centre of the proposed development.

Unfortunately, the trees on the adjoining site shall still block most of the long distant views and they are outside the developer’s control.

- Landscaping along the boundaries have also been re-considered to ensure views are maintained.

- Please refer to further details regarding view sharing on the attached architectural drawings”.

In light of the view sharing planning principles, Council staff generally concur with the applicant’s comments. The views from the Lantana Place neighbours are already partially obscured, and it is reasonable to expect that any future development of the subject land would further obscure views. The proposal has been designed to minimise the scale and bulk of the buildings, as discussed earlier in the report.

It is also reasonable to expect that the side/rear views obtained from number 37 Botanic Way would also be obstructed from future boundary fencing and development of the subject land. As demonstrated on the attached elevations and in Figure 11 below, proposed Dwellings 7-10 are much lower than number 37 Botanic Way. The view analysis carried out on this elevation from the neighbouring property appears to show the view directly west, however, it is actually angled south west over/across the proposed carport roof for Dwelling 7. As such, the potential impact to this neighbouring property is unlikely to be a total loss of view, and some degree of view sharing from living room windows is possible.

Figure 11 – northern elevations of number 37 Botanic Way and proposed Dwellings 7, 8 and 9

In relation to paragraph 29 of the planning principles for views, the proposed development is consistent with other planning controls as set out in the LEP and other DCP assessment sections of this report. Consideration also needs to be given as to whether a more ‘skillful’ design could reduce the impact on views. As already discussed, the proposal has been designed to minimise the scale, bulk, and floor levels of the buildings. It is considered that the roof pitch of the rear Dwellings (7-10) could be reduced to 22.5 degrees, which would slightly lower the ridge line of those dwellings, therefore further reducing the scale of these dwellings and increasing the view sharing potential with the neighbour at number 37 Botanic Way.

It could be argued that the number of units proposed on the site increases the impacts of view loss, however this is not considered to be the case for this site. It is unlikely that the site was ever intended for a single dwelling or only a few dwellings due to its expansive size, therefore it is reasonable to expect that there would be multiple dwellings or lots created in this locality.

Furthermore, pursuant to State Environmental Planning Policy – Exempt and Complying Development multiple buildings, such as manor houses, up to 8.5m/two storeys in height could be constructed on the land without the requirement for a Development Application to be assessed by Council, thus giving little to no consideration to views, and likely resulting in a bulkier development with more adverse impacts and view loss.

Overall, while certain elements of these views will be impacted after the subject property is developed, it is not considered that such losses are excessive or unreasonable as a result of the proposed development. Part of the neighbour’s views currently enjoyed would be retained, and as such the view loss impact is considered to be minor-moderate in this circumstance, having regard to the Court’s planning principles for view sharing and the requirements of the DCP.

The development proposes to substantially cut the units into the site as they move down the sloping site. The development has the potential to impact on views from the neighbour at 37 Botanic Way. The applicant was therefore required to install height poles indicating the overall height of the last unit (unit 7) to allow the assessment of actual impacts. These poles were checked for accuracy by a registered surveyor (red line has been drawn on the photo below for clarity of the extent of the roof of the proposed unit). The unit development will not impact on view from 37 Botanic Way of Mount Canobolas.

Figure 12 – View from Living Room of 37 Botanic Way indicating view of Mt Canobolas will be fully retained.

Visual Privacy

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

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

- building siting and layout

- location of windows and balconies

and secondly by:

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

The proposed site layout and building design will provide acceptable visual privacy for dwellings within the development and those on adjoining parcels in accordance with the DCP due to the following:

· The proposed dwellings will primarily overlook their associated private open space areas and front garden/communal garden areas.

· There will be no interface between proposed and existing dwelling’s windows and open space areas due to the orientation and attached design of the buildings.

· Perimeter and internal fencing and retaining walls will be installed of sufficient height to minimise overlooking.

· Finished ground levels have been designed to be similar or be lower than the respective neighbours, and will not result in overlooking.

Acoustic Privacy

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

· Site layout and building design:

- protect habitable rooms from excessively high levels of external noise

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

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

Proposed Dwellings 1-6 have been designed with their garages attached rather than their habitable spaces, thus minimising noise transfer between these units. The rear attached dwellings have habitable bedrooms of the units adjacent to one another, but can be constructed in a way that minimises noise disturbance between each unit. These details will be assessed during Construction Certificate stage, ensuring compliance with the BCA/NCC. The proposed development has been laid out in a way that it is not expected neighbouring dwellings will be impacted by sound transmission over and above usual residential levels.

Concerns have been raised in relation to noise generated from waste storage and collection, however it is considered that noise generated from these activities will not be dissimilar to other residential development in the area, where it is expected that there will be some noise disturbance to the area on waste collection days. Road noise impacts are assessed in the “Likely Impacts” section later in this report.

Overall, it is considered that the proposed development achieves the planning outcomes of the DCP in terms of acoustic privacy.

Security

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

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

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

The proposal is considered acceptable in regards to safety and security as follows:

· the design of the dwellings will offer reasonable opportunities for surveillance of Lantana Place, the internal driveway, communal areas, front yards, and private open space areas

· the site has reasonable access control due to internal garages and perimeter and internal fencing

· the landscape design has been amended so that it will not restrict sight lines.

It is noted that no external lighting is proposed as part of the site design, and is considered necessary for night time safety. A condition of consent is recommended that lighting is installed, and is consistent with the applicable standards to ensure glare does not impact on adjoining neighbours.

Circulation and Design

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

· accessways and parking areas are designed to manage stormwater

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

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

Stormwater management has been engineered down the driveway, and full details will be assessed during Construction Certificate stage, as discussed previously in the LEP section of this report. Amended landscaping has been reviewed in terms of suitability to the site, climate, and for amenity, and is discussed in detail later in the DCP assessment.

Proposed Dwellings 1-6 will have direct frontage and separate access to Lantana Place, as well as internal garages providing direct access to their respective car parking spaces. Reverse egress to the street will be required for these dwellings, and sufficient manoeuvring area will be available within the driveway area and roadway, which is considered acceptable in this case.

The rear dwellings will enter and exit the site in a forward gear, where sufficient area is provided at the rear of the site for reverse manoeuvres from carports and visitor spaces, onsite turning, and forward egress up the driveway. Council’s Development Engineers consider that part of the driveway needs to be widened to render it sufficient for the 4 rear dwellings, where an extended double width entry will allow two-way passing of cars (B85 vehicles) (i.e. entering vehicles can stop and wait at the top if another vehicle is exiting up the driveway).

Internal roadways for residential development of this scale are not required to accommodate access and manoeuvring for service vehicles. Notwithstanding this, the proponent will need to enter into a run-cost agreement for the collection of waste, and the design of the road and driveway need to be designed and constructed in accordance with the Orange Development and Subdivision Code and NSW Fire Brigades Guidelines for Emergency Vehicle Access.

Conditions of consent are recommended in regards to the above matters. Overall, the proposal meets the planning outcomes for circulation design.

Car Parking

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

· Parking facilities are provided, designed and located to:

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

- reduce the visual dominance of car parking areas and access ways.

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

Pursuant to Chapters 7 (Residential Development) and 15 (Car Parking) of the DCP 2004, onsite parking is required for 1 bedroom dwellings at a rate of 1.0 space per unit, 2 bedroom dwellings at a rate of 1.2 spaces per unit, and visitor parking at a rate of 0.2 space per unit. Based on 10 dwellings (four x 1 bedroom and six x 2 bedroom), the proposed development will require 13.2 (i.e. 14) car parking spaces.

The proposal provides 20 car parking spaces for the development, exceeding the requirements of the DCP as follows:

· six (6) single garages, one for each of Dwellings 1-6

· four (4) carports, one for each of Dwellings 7-10

· four (4) onsite visitor parking spaces to the rear

· six (6) onsite tandem spaces adjacent to the single garages for Dwellings 1-6 are also available, although not technically required in terms of minimum numbers.

Private Open Space

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

Private open space is clearly defined for private use.

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

· Private open space is:

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

- accessible from a living area of the dwelling

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

- orientated to optimise year round use.

Private open space for the proposed dwellings will generally comply with the DCP Guidelines as follows:

· Each of the proposed dwellings will be provided with open space that complies with the minimum requirement in terms of area (i.e. 50% of the gross floor area of the dwelling):

Proposed Dwelling	GFA (m²)	POS Required (m²)	POS Provided (m²)	DCP Compliance
Dwelling 1	67.78	33.89	112.91	Yes
Dwelling 2	68.22	34.11	220.91	Yes
Dwelling 3	68.22	34.11	127.10	Yes
Dwelling 4	68.17	34.08	107.26	Yes
Dwelling 5	68.22	34.11	90.07	Yes
Dwelling 6	68.22	34.11	106.53	Yes
Dwelling 7	48.48	24.24	99.64	Yes
Dwelling 8	48.48	24.24	90.11	Yes
Dwelling 9	48.48	24.24	89.06	Yes
Dwelling 10	48.48	24.24	256.89	Yes

· Private open space for each dwelling will have a minimum dimension of 3m and will accommodate a 5m by 5m area.

· Private open space for the dwellings will be located behind the building line, will be fully fenced for privacy, and will be accessed from a main living room area.

· As outlined previously, the solar access to each area of private open space on the winter solstice is considered satisfactory.

Open Space and Landscaping

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

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

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

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

- allow cost effective management.

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

· major existing trees are retained and protected in a viable condition whenever practicable through appropriate siting of buildings, access ways and parking areas

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

Landscape plans have been submitted in support of the proposal. The original landscape plan included a pedestrian access ramp down the driveway to the rear part of the site, which the applicant deemed unnecessary, and subsequently deleted. An amended plan removed the ramp, however concerns were raised by staff in regards to landscaping beds being provided in areas of the site intended be adopted as part of the public road (road reserve areas), landscaping in areas required to be clear of obstacles for vehicular sightlines, and inappropriate landscaping species in the shaded retaining wall area to the rear of the site, adjacent to the visitor parking spaces. In particular, while the spacing between each level of the retaining walls would be adequate to establish plants, a small tree growing to 5m in height planted on the top/highest level of the retaining walls would overshadow the plants to the south/on lower levels of the retaining wall, and they would receive insufficient sunlight to fully prosper.

A further amended plan has been submitted to Council, and is considered adequate in terms of species, climate, sightlines, softening of the development into the surrounds, contributing to vegetation in the area, provide privacy buffering, etc. Notwithstanding this, it is considered that street trees would further improve the visual appearance of the development, and provide for some canopy and additional softening in a street that is currently lacking in trees. A condition of consent is recommended, requiring a minimum of three (3) street trees to the satisfaction of Council’s Manager City Presentation.

Stormwater

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

· Onsite drainage systems are designed to consider:

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

- scope for onsite infiltration of water

- safety and convenience of pedestrians and vehicles

- overland flow paths.

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

Stormwater management of the development has been discussed in the LEP assessment section earlier in this report. Subject to the recommended stormwater conditions of consent, stormwater management will be adequate and in accordance with the DCP.

Erosion and Sedimentation

The DCP sets the following Planning Outcome in regard to Erosion and Sedimentation:

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

An erosion and sediment control plan will be required in conjunction with the engineering design plans for the development. A condition is recommended in relation to this matter.

DEVELOPMENT CONTRIBUTIONS

Section 7.11 Development Contributions

Development contributions are applicable to the proposed development, pursuant to Orange Development Contributions Plan 2017 (North West Orange Area) as follows:

Open Space and Recreation	Six x 2 bedroom dwellings @ $2,273.36 plus four x 1 bed dwellings @ $1,679.68, less 1 x standard lot @ $3,982.01	16,376.90
Community and Cultural	Six x 2 bedroom dwellings @ $659.27 plus four x 1 bed dwellings @ $487.12, less 1 x standard lot @ $1,154.78	4,749.32
Roads and Traffic Management	Six x 2 bedroom dwellings @ $3,091.82 plus four x 1 bed dwellings @ $2,473.46, less 1 x standard lot @ $5,256.12	23,188.60
Local Area Facilities	Six x 2 bedroom dwellings @ $3,693.00 plus four x 1 bed dwellings @ $2,728.57, less 1 x standard lot @ $6,468.63	26,603.70
Plan Preparation & Administration	Six x 2 bedroom dwellings @ $288.79 plus four x 1 bed dwellings @ $213.26, less 1 x standard lot @ $505.86	2,079.92
TOTAL:		$72,998.40

These figures are indexed quarterly, in accordance with the Plan. Conditions are included on the attached Notice of Approval requiring payment of these development contributions prior to the issuing of a Construction Certificate.

Section 64 Headworks Charges

Pursuant to the Local Government Act 1993 and the Water Management Act 2000 headworks charges for water supply, sewerage, and stormwater also apply to the proposal.

The contributions are based on six x 2 bedroom dwellings and four x 1 bedroom dwellings (the existing allotment has a credit equivalent to a single 3 bedroom dwelling which will be applied at the time of payment). Conditions are recommended requiring payment of these contributions.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

A satisfactory BASIX certificate has been submitted with the application.

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

Neighbourhood Amenity

The proposed development will provide for a continuation of residential land use, albeit in a more compact form, and will not alter the function of the neighbourhood. The proposal will provide and retain a reasonable standard of residential amenity for the proposed dwellings and existing dwellings on adjoining lands in respect of solar access, privacy, visual appearance, neighbourhood character, acoustic privacy, etc.

In terms of waste bins, it is considered that each dwelling has ample room for the storage of three waste bins (general waste, garden waste, and recycling). Collection can take place on the street for proposed Dwellings 1-6, which each have street frontage and sufficient space for the placement of bins on collection days. A communal collection area is proposed to the rear for proposed Dwellings 7-10, and a private run-cost agreement will need to be entered into for the collection of these bins. A condition of consent is recommended to this effect, as well as ensuring this collection area is only used on collection days, and bins for Dwellings 7-10 are not placed directly on the street on collection days.

Conditions of consent are recommended to ensure than neighbourhood amenity for existing and future dwellings is maintained to a reasonable standard. As discussed in the main body of this report, and subject to these conditions, the proposed multi dwelling housing development is unlikely to have adverse impacts on neighbourhood amenity.

Visual Impacts

The visual impacts of the proposed site layout and building design are considered acceptable, as outlined in the foregoing sections of this report. Conditions of consent are recommended in relation to landscaping and street trees, to ensure that a satisfactory level of visual amenity is achieved in the streetscape and wider area.

Overall, the proposed development has been designed to an acceptable standard for this locality, and adverse visual impacts are unlikely.

Road Noise Impacts

The site will be exposed to some road noise from the Northern Distributor Road (NDR), particularly proposed Dwellings 1 and 2, which are in closer proximity to the NDR. An assessment of the impacts of road noise has been undertaken by Council staff against all relevant policies, including “The NSW Road Noise Policy (RNP); and Roads and Maritime Services (RMS) – “Noise Criteria Guideline” and “Noise Mitigation Guideline”.

The original development of the Botanic Way/Gardens Estate precinct carried out detailed noise assessments and recommended noise mitigation measures. As a result, an engineered noise mound was constructed between northern most lots and the NDR to provide sound attenuation for future dwellings. This mound includes a lapped and capped timber fence, is planted with vegetation and irrigation, with the land being dedicated as a Council reserve. Since the original noise reporting was carried out, NDR traffic volumes have increased, and are higher than originally expected, and thus noise volumes are also higher. Notwithstanding this, the existing mound provides for effective noise mitigation for current levels. Part of this mound extends from the reserve to the south into the subject site, to provide sound attenuation for dwellings to the east.

It is proposed to remove some of the mound from within the subject site to allow for the construction of the proposed development, as shown on the attached plans. The applicant provides the following comments in this regard:

“It is intended to extend the noise and mound barrier and existing acoustic fence along Lot 57 DP 1122907 (public reserve) to the boundary with Lot 4 DP 1065251, thus providing similar noise mitigation enjoyed by the existing dwellings on Lantana Place for the subject site. It is also intended to construct a dividing fence between Units 1 and 2 which shall help with any potential noise impact. Given the placement of the proposed dwelling on the subject site and extension of the acoustic fence it is not anticipated traffic noise impact shall increase at the existing dwelling on Lot 56 (No. 6 Lantana Place) and noise impact can be effectively managed for the proposed development”.

The submitted drawings propose the sound mound to be reduced back, but still extend partly into the subject site. This is not considered reasonable for future occupants of proposed Dwellings 1 and 2 in terms of residential amenity. Council’s Acting Director Development Services, Environmental Health officer, and Manager Engineering have reviewed the proposal and recommend that the mound be removed from the subject site, and only be contained within Council’s adjacent reserve (i.e. amended so that none of the mound is located within the subject lot), and be extended along the full length of the adjacent reserve. It is also recommended that a 2.5m high solid fence, in a dark recessive colour (such as Colorbond Monument), be installed along the western boundary from the top north-western corner of the subject site, to the front building line of proposed Dwelling 1, to ensure effective sound attenuation is provided in lieu of the sound mound to be removed from the subject site. This will protect the proposed dwellings, as well as the adjacent neighbour to the east at number 8 Lantana Place.

A condition of consent is recommended to this effect, with an option to provide a noise report demonstrating that a lower height fence would achieve acceptable attenuation, as well as a provision that the fence could be lowered to a standard 1.8m high fence once the sound mound is extended along the NDR to the west following any future development of the adjacent western lot.

Further conditions of consent are also recommended to ensure the design and construction details of proposed Dwellings 1 and 2 will comply with the relevant guidelines for road noise through a noise assessment report; and that the proponent carries out changes to the mound, and its vegetation and irrigation, in consultation with Council’s Development Engineer and Manager City Presentation. A suitable boundary fence can then be erected along the northern boundary of the subject site to ensure the privacy of future occupants.

Overall, subject to the above recommended conditions of consent, it is considered that the proposed development and its immediate neighbours are unlikely to be affected by adverse road noise impacts from the NDR.

Traffic and Parking Impacts

The proposal is considered to be satisfactory in terms of traffic impacts. Traffic generation will increase in the street as a result of the development, however further development of the vacant lot and future neighbouring lots to the west were anticipated when Lantana Place was constructed. As such, traffic volume increases for residential development are well within the existing road capacity. The extension of Lantana Place to the west will be carried out in accordance with Council’s standards so that it can be adopted as a local/public road. The proposed development will not exceed environmental goals for peak volumes on local streets, nor will it adversely impact on pedestrian safety.

As outlined previously in this report, site accesses and onsite manoeuvring areas are appropriate subject to minor changes, and will be designed to accommodate standard vehicles associated with the development. Onsite car parking complies with the requirements of the DCP, and as such adverse impacts on street parking are not anticipated.

Overall it is considered that traffic and parking impacts resulting from the proposed development are unlikely.

Cumulative Impacts

The proposed dwellings will complement the neighbourhood built form in respect of bulk, design features, and external finishes. The proposed development will not reduce the open space, solar access, or privacy afforded to neighbouring properties. Similarly, the proposed site layout and building design will provide a reasonable standard of residential amenity for the future occupants of the dwellings in terms of open space, solar access, and privacy. The development will contribute to the diversity of housing forms in the precinct in a manner that is consistent with the neighbourhood character, and is consistent with the LEP objectives for the zone, as set out in the main body of this report.

Overall, the proposal is unlikely to result in adverse cumulative impacts.

Environmental Impacts

The subject land is contained within a developing residential precinct and comprises vacant, cleared land. Significant vegetation, threatened species or ecological endangered communities or their habitats are unlikely to be present. The adjoining property to the west contains protected Yellow Box trees and the proponent undertakes to minimise soil disturbance within the area below the existing tree canopy as much as practical during construction. Conditions of consent are recommended in regards to this matter, as discussed earlier in this report.

Other than the adjacent biodiversity sensitivity, the site is not in proximity to any mapped sensitive waterways, drinking water catchment, or other environmentally sensitive areas. Sediment control measures, as required by recommended conditions, will prevent loose dirt and sediment escaping the site and polluting downstream waterways. Environmental protection recommendations made by the applicant’s consultants in submitted reports, assessments, and investigations are also recommended as conditions of consent.

Overall, and subject to conditions of consent and preventative measures undertaken during construction, the proposal is unlikely to result in adverse environmental impacts.

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

The subject land is suitable for the development due to the following:

· the proposed multi dwelling housing development is permitted on the subject land R1 General Residential zoning

· the site is of sufficient area and dimensions to accommodate multi dwelling housing and provide a suitable standard of residential amenity

· the site has direct frontage and access to public street

· there is no known contamination on the land

· all utility services are or can be made available and adequate

· the site is not subject to known natural hazards

· the subject land has no biodiversity or habitat value, and the adjacent protected trees can be protected during construction

· the site is not in close proximity to any mapped waterway, drinking water catchment, or other sensitive area

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

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

The proposed development is defined as "advertised development" under the provisions of the DCP. The application was advertised for the prescribed period of 14 days and at the end of that period 47 submissions were received, 31 opposing the proposed development, and 16 in support. Two petitions were also received, signed by a total of 125 people, some of whom were also submitters. The issues raised in the submissions are outlined below, and considered here or in the foregoing sections of this report.

Oppose Affordable/Cheap Housing

- “unwanted trouble” and existing problems with nearby social housing in the area

- out of character

- no infrastructure for “cheap rental” housing

- social issues.

Staff comments: the proposed development is defined as ‘multi dwelling housing’ under the LEP, and the State Government has identified that affordable housing is required throughout NSW pursuant to SEPP 70. The proposal is consistent with the general principles set out for affordable housing in this SEPP, where reasonable amenity can be provided and maintained, and the development fits into the character of the area, which is discussed below. Servicing is or can be made sufficient for the proposed development.

Character

- “ruin” the quiet and calm nature of the area

- does not match the “low density” and “semi-rural” nature of surrounding area

- generally does not match/complement the character of the area

- proposed carports do not match character of dwellings with attached garages

- proposed dwellings are not the same as surrounding houses and “stand-out”

- covenants on neighbourhood state homes within the estate need to be brick veneer construction with an attached garage – does this lot have the same covenant?

- adverse amenity impacts out of character – Management Plan should be submitted with the Development Application.

Staff comments: As discussed in the DCP “Neighbourhood Character” assessment earlier in this report, the proposed development fits in with the character of the area, and the other DCP assessment sections demonstrate that adverse neighbourhood/residential amenity impacts are unlikely. As established by the Courts, a proposal does not have to be the ‘same’ to be consistent with the surrounding area, and it is considered that the visual appearance, landscaping, siting, etc. of this proposal are all consistent with the neighbourhood. It is not considered that the proposed dwellings will ‘stand out’ from the surrounding houses, as, although more compact being duplexes, they are similar in scale, form, colours, materials, detailing, etc. to their neighbours. The fact that they are duplexes will be visually indiscernible in the streetscape and wider area, except on close inspection. Furthermore, given the level of landscaping proposed, and the additional street trees required, the proposed development is likely to improve the visual appearance of the streetscape. Pursuant to Section 1.9A of the EP&A Act, covenants placed on titles by developers in relation to materials are not relevant to Council’s assessment of the proposal, where instead the DCP requirements have been taken into consideration, as required by Section 4.15 of the EP&A Act.

Density/over-development

- this is a “high-density” development - not suitable for the area

- density too high compared with other smaller unit complexes in the area

- already many dual occupancy and unit developments in the area (e.g. to South), increasing traffic, noise, people, cars, etc.

- “…potential of an additional 60 people living in this small area”

- density is “3 times” higher than other development in the area

- previous indicative subdivision plans for the area showed only four lots in the location of the subject lot, whereas the development proposes 10 units

- does not match “zoning” of the area.

Staff comments: The density is not considered to be higher than surrounding development, which although predominately made up of single dwelling houses, also contains dual occupancies and unit development. Furthermore, the relative density is much lower than the surrounding area, with a 16% site coverage proposed, where most new single dwellings range between 30-60% site coverage. Indeed the DCP allows up to 60% site coverage for a single dwelling. Previous indicative subdivision layouts are not relevant to this application, which does not propose subdivision. Given the breakdown of the 10 proposed dwellings, being 6 x 2-beds and 4 x 1 x-beds, the development is likely to be occupied by between 16‑32 people, not up to 60 as suggested by submitters. The surrounding road and servicing network is adequate for the minor increased demand, and Lantana Place will be extended to the appropriate road standards for the anticipated volume.

As set out in the LEP sections of this report, the zoning allows for multi dwelling housing on this site, where it well exceeds the minimum area required. The end use of the proposed buildings are residential dwellings, which matches all surrounding building uses, also residential dwellings.

Visual Appearance

- carports should be garages (poor outlook from Callistemon Pl and Brooklands Drive)

- high retaining walls can be seen from surrounding neighbourhood

- duplex design creates “substantial” street frontage

- lack of details for retaining wall – design, height, appearance, etc.

Staff comments: As discussed in the DCP “Neighbourhood Character” and “Building Appearance” assessments earlier in this report, it is considered that the proposed development fits in with the character of the area and provides for an acceptable visual appearance. Additional information has been provided in relation to walls and fences, and the ‘high’ retaining walls are internal to the site and will not be readily visible from neighbouring properties as the proposed dwellings and landscaping will buffer views. Perimeter walls and fencing are moderate in height, and overall the development is generally in-line or lower than neighbours. The DCP requires parking to be in the form of ‘covered spaces’ and a carport is considered as such. Although carports are different to the usual attached garage in the area, they meet the DCP parking requirements, and have been designed to have an adequate visual appearance.

Those dwellings fronting Lantana Place each have an attached garage, and have been designed to an adequate standard to not dominate the streetscape. The carports are located to the rear and will not be visible from the street. Boundary fencing will ensure they are not visually dominate when viewed from the wider surrounding area. Furthermore, landscaping will soften the built form into the environment, and will provide a higher standard and greater quantity of landscaping compared with neighbouring residential land in the area.

Views/Vistas

- impacts on views to Mount Canobolas.

Staff comments: This matter has been discussed in the DCP “Views” section of this report, where it was concluded that there would be some moderate view loss impacts, however they are considered reasonable impacts, and the proposed development has been designed in a way to provide for some view sharing by using existing levels where possible, low profile roofs, view corridors between buildings and vegetation, etc.

Shadowing

- high retaining walls will overshadow neighbours

- Units 5 and 6 walls and fences will impact north facing living room and garden (37 Botanic Way).

Staff comments: As discussed in the DCP “Daylight and Sunlight” section of this report, the proposal complies with the DCP requirements, and adverse impacts to neighbours are not likely, as demonstrated in the attached shadow diagrams. It is acknowledged that the original exhibited shadow diagrams did not show the extent of shadowing to neighbouring properties, however, Council staff requested this information and it was provided, demonstrating compliance.

Noise

- construction noise not addressed and is a concern

- additional occupancy in street means more people and traffic noise

- noisy garbage trucks, bin storage, and wheeling bins up and down steep driveway

- removal of earth banks (sound barrier) will increase noise pollution – not addressed in application

- previous consent requirements of sound barrier not addressed

- acoustic report should be submitted.

Staff comments: Noise has been discussed in the DCP “Acoustic Privacy” and “Likely Impacts” sections of this report, where it was concluded that the existing sound mound can be modified and sound fencing can be installed to ensure adequate sound attenuation for future occupants of the proposed dwellings, as well as existing dwellings. Increased NDR traffic volumes and higher traffic noise volumes have been taken into account in this assessment. Although additional population will result in additional noise, it was always anticipated that this vacant lot would contain residential development, and noise from the proposed dwellings is unlikely to be over and above usual residential noise levels.

A run-cost agreement will need to be entered into for waste collection, and it is considered reasonable that there will be some noise pollution in the wider area on collection days, as with collection arrangements for the current existing dwellings in the street and area.

Safety/Crime

- increased density means increased crime

- no street lighting proposed/night time lighting of development

- increased traffic has safety impacts of children playing in front yards

- snakes and rats in the wetlands

- drowning hazard of on-site detention basin

- creates hazardous habitat for mosquitos, frogs, birds and snakes

- anti-social and unlawful behaviour affecting safety and security

- high retaining walls – safety risk and should have a risk mitigation method in place

- no provision for emergency vehicles

- the area has a “very real fire hazard”.

Staff comments: Potential safety impacts relevant to this proposal can be addressed by conditions of consent, and have been discussed in the DCP “Security” section of this report. Increased population and traffic has always been anticipated for this street and site, and it is not considered that the development of this site would result in increased crime, or traffic or pedestrian safety. The retaining walls are not considered particularly high or dangerous, where the highest wall is part of a tiered arrangement rather than one high wall. It is considered that the proposed development does not increase the potential for snake, rat, and other local fauna, any more than other development in the area, and is not relevant to this assessment. Emergency vehicle access and fire safety will be assessed in detail at the Construction Certificate stage.

Traffic

- increase in traffic volumes – number of occupants, plus visitors

- increase in pressure on roads/congestion

- increased parking on-street, reducing available road width

- no visitor parking for units facing the street (units 1-6)

- traffic safety concerns from increased volumes

- pedestrian safety concerns – no footpaths

- parking on-street could obstruct emergency vehicles – no provision for emergency vehicles within site

- “unfinished” cul-de-sac – no bell end for turning, how do units 3 and 4 reverse out, etc.

- “kink” in driveway – potential access issues

- traffic count numbers based on Guide to Traffic Generating Developments rather than actual traffic counts – should have traffic report by traffic engineer

- insufficient manoeuvring area for unit 10 to reverse out of driveway.

Staff comments: As discussed in the DCP assessment and “Likely Impacts” sections of this report, traffic impacts are unlikely, where Lantana Place and the surrounding road network has been designed for an increased volume of traffic, having anticipated increased population as lots are developed. Lantana Place will be extended to the same appropriate standard. Although Lantana Place will be ‘unfinished’ without a turning circle, Council’s Development Engineers consider this sufficient in the interim, until such time as it is further extended into the neighbouring future subdivision. The proposal provides sufficient on-site parking for all dwellings and their visitors. Although some residents and visitors may choose to park on the street, they can do so provided they are legally parked, and this situation is no different to any other residential development in the area and wider City. Drawings have been amended to provide for sufficient on-site manoeuvring, and ingress and egress, and the driveway to the rear will require further amendments to render it sufficient. Conditions of consent are recommended providing for footpaths in the extended street.

Privacy

- Privacy impacts to adjoining neighbours

- Privacy impacts in general from number of units proposed

- Overlooking to neighbour to South

Staff comments: This matter has been discussed in the DCP “Visual Privacy” section of this report, where it was concluded that finished ground and floor levels, and boundary fencing will ensure adequate visual privacy to neighbouring dwellings, as well as between proposed dwellings.

Waste

- increase in pressure on waste services

- number of bins to be serviced on the street unachievable

- manoeuvring of waste collection vehicles difficult

- concerns that bins will not be taken to and from road for collection/storage

- gradient of driveway too steep for rear units to easily take bins to and from the street

- noise impacts of taking bins up and down driveway

- waste management needs to be addressed further

- odour and noise impacts

- bin store directly adjacent to neighbouring residential dwellings – odour, noise, etc.

Staff comments: These matters have been addressed in various parts of the report, where it is considered that waste storage and collection impacts will be no greater than anticipated for residential development of the subject land, or neighbouring land. It is considered acceptable that proposed Dwellings 1-6 place their bins directly on the street on collection days, but the rear proposed Dwellings 7-10 will require a run-cost agreement for private waste collection. As such manoeuvring for service vehicles is not required on the site. There is ample space available on the site for the storage of resident’s bins. The proposed communal waste collection area for the rear units is for collection rather than storage, therefore impacts to the immediate adjacent neighbour will be limited to one day a week.

It is acknowledged that some residents fail to bring their bins in following collection, or store or use their bins in ways that create impacts to neighbours, however the potential for this is no greater for the proposed development than any other residential development. It will be the responsibility of the land owner/manager to ensure impacts are minimised.

Subdivision staging

- should not be developed until adjacent land (to west) is subdivided/developed

- does not match original Gardens Estate subdivision plans/outline which showed three/four separate blocks – should be separate blocks for larger homes

- “such housing” should be constructed in an area first so other prospective residents/buyers are aware of the social housing developments.

Staff comments: The proposal does not involve subdivision of the land, and as such previous indicative subdivision layouts are not relevant to this application. Any future subdivision of the land will need to be in accordance with the subdivision provisions of the DCP. There is no requirement for affordable housing to be built prior to any other development, and in doing so would render the integration of affordable housing development into communities more difficult, and inconsistent with the Affordable Housing SEPPs.

Servicing

- can the sewer system handle the increase in development?

- can all other servicing cope with the increased connections – not adequately addressed in application

- unsafe and very poor pedestrian access to facilities (shops, public transport, medical, etc.)

- too far from CBD for social housing

- no footpaths or cycle paths

- nearby bus top is not a “formal designated public bus stop” therefore is not a reliable form of public transport

- rainwater tanks should be provided and made mandatory.

Staff comments: This matter has been addressed in the main body of the report, where urban services are or can be made available and adequate for the proposal. The upgrading and costs of any services required is the responsibility of the proponent, in consultation with the relevant authority. It is acknowledged that the development is not in close/walking proximity to shops, medical services, etc. however this is no different to all other existing dwellings in the area, and public transport to these services is available. There is no mandated requirement for rainwater tanks, where residential developments need to meet the NSW Government BASIX energy and water efficiency targets. As noted earlier in the report, a satisfactory BASIX certificate has been submitted with the application.

Environmental Impacts (Trees, biodiversity, Flooding/Stormwater, etc.)

- loss of existing trees on the site – affect existing fauna

- mapped as high biodiversity area and not addressed (STAFF NOTE: site is not mapped, but near to a high biodiversity area)

- impacts to groundwater quality and quantity

- flood risk from run-off to units 7 and 8

- increased run-off to ecosystem below – environmental impacts to species in waterways and downstream high biodiversity area

- not adequately addressed in application, should submit a biodiversity assessment report, etc.

- trees will drop leaves into neighbour’s gutters.

Staff comments: As discussed in the main body of this report environmental impacts can be adequately mitigated through conditions of consent. Potential impacts will generally be during construction only, and the site does not contain any mapped environmental sensitivity. A biodiversity assessment was provided with the application, and was amended to include the EEC trees on the adjoining western site, as discussed in the BC Act assessment earlier in this report. Stormwater run-off is considered adequate, as discussed throughout the report. Proposed landscaping has been amended, and is considered adequate.

Alternative locations

- this type of development should be built in a “more suitable” area such as a new housing estate

- should be built somewhere else.

Staff comments: Council has been requested to carry out an assessment of this particular proposal on the subject land. The EP&A Act and Regulations do not require local development applications to consider alternatives, and as such Council’s assessment does not need to address this matter.

Affects land value

- will reduce land value

- proposal has already reduced land value in the area.

Staff comments: Land value is not a planning consideration, and as such is not relevant to this assessment.

Human/Civil Rights

- respecting the “basic human rights” of “ordinary citizens”.

Staff comments: It is unclear what is meant by this comment, however it is considered that the proposal will have a positive impact on the wider area by providing a mix of residential dwelling types.

Misuse of Public Funds

- costs of construction on this site are high therefore is not “good value” for tax payers of NSW.

Staff comments: This matter is not relevant to Council’s assessment of the application.

Council’s Declaration of Planning and Development Assessment Procedures and Protocols (2010) sets out that where at least five submissions objecting to a development application, and where those issues are capable of negotiation, a meeting will be offered to all parties in an attempt to resolve issues and find compromise prior to the application being determined. It is considered that all reasonable and planning related objections raised can be mitigated through conditions of consent, as set out in the main body of this report, and as such a negotiation meeting was not considered necessary in this case.

PUBLIC INTEREST s4.15(1)(e)

The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines, etc. that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. Impacts of the development are considered to be within reasonable limit, consistent with applicable standards, and can be addressed by appropriate conditions of development consent. Approval of the application is recommended.

Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

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

Attachments

1 Notice of Approval, D19/50564 ⇩

2 Plans - 23.08.19, D19/51287 ⇩

3 Submissions, D19/35824 ⇩

Planning and Development Committee 3 September 2019

Attachment 1 Notice of Approval

ORANGE CITY COUNCIL

Development Application No DA 141/2019(1)

NA19/ Container PR25617

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

Development Application
Applicant Name:	Housing Plus
Applicant Address:	C/- Barnson Pty Ltd Unit 1, 36 Darling Street DUBBO NSW 2830
Owner’s Name:	Mr KS Baker
Land to Be Developed:	Lot 78 DP 1172183 - Lantana Place, Orange
Proposed Development:	Multi Dwelling Housing (10 dwellings)

Building Code of Australia building classification:	Class as determined by certifier

Determination made under Section 4.16
Made On:	3 September 2019
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	4 September 2019
Consent to Lapse On:	4 September 2024

Terms of Approval

The reasons for the imposition of conditions are:

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

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

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

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

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

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

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

Conditions

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

(a) Plans numbered A001 Rev E, A002 Rev F, A003 Rev H, A004 Rev I, A005 Rev E, A006 Rev G, A007 Rev F, A008 Rev F, A101-108 Rev E, A109 and A110 Rev C, prepared by Beraldo Design, and dated Mar 2019 (18 sheets); Landscaping Plans, prepared by House of Manuela, and dated 19.7.2019 (3 sheets); Engineering Plans numbered C0482-C01 Rev A, C02 Rev C, C10 Rev C, C11 Rev A, C20 Rev C, C21 Rev A, and C30 Rev B, prepared by Barnson (7 sheets); and BASIX Certificate number 1009938M.

(b) statements of environmental effects or other similar associated documents that form part of the approval

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) Where any excavation work on the site extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must, at the person’s own expense:

(a) protect and support the adjoining premises from possible damage from the excavation, and

(b) where necessary, underpin the adjoining premises to prevent any such damage.

Note: This condition does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to this condition not applying.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(7) Prior to the issuing of a Construction Certificate, plans shall be amended reducing the pitch of the roofs of Dwellings 7-10 to a maximum of 22.5 degrees.

(8) Engineering plans, showing details of all proposed work and adhering to any engineering conditions of development consent, are to be submitted to, and approved by, Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing of a Construction Certificate.

(9) A water and soil erosion control plan is to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) for approval prior to the issuing of a Construction Certificate. The control plan is to be in accordance with the Orange City Council Development and Subdivision Code and the Landcom, Managing Urban Stormwater; Soils and Construction Handbook.

(10) The development’s stormwater design is to include stormwater detention within the development, designed to limit peak outflows from the land to the pre-existing natural outflows up to the 100 year ARI frequency, with sufficient allowance in overflow spillway design capacity to safely pass flows of lower frequency (that is, a rarer event) without damage to downstream developments. Where appropriate, the spillway design capacity is to be determined in accordance with the requirements of the Dam Safety Committee.

The design of the detention storage is to be undertaken using the ILSAX/DRAINS rainfall-runoff hydrologic model or an approved equivalent capable of assessing runoff volumes and their temporal distribution as well as peak flow rates. The model is to be used to calculate the flow rates for the existing and post-development conditions. The developed flows are to be routed through the proposed storage within the model so that the outflows obtained are no greater than the flows obtained for the pre-existing natural flows. A report detailing the results of the analysis, which includes:

· catchment plan showing sub-catchments under existing and developed conditions;

· schematic diagram of the catchment model showing sub areas and linkages;

· tabulation detailing the elevation, storage volume and discharge relationships; and

· tabulation for the range of frequencies analysed, the inflows, outflows and peak storage levels for both existing and developed conditions;

together with copies of the data files for the model and engineering design plans of the required drainage system are to be submitted to Orange City Council upon application for a Construction Certificate.

(11) Engineering plans providing complete details of the proposed driveway and car parking areas are to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) upon application for a Construction Certificate. These plans are to provide details of levels, cross falls of all pavements, proposed sealing materials, structural engineer’s details of the driveway indicating compliance with the NSW Fire Brigades Guidelines for Emergency Vehicle Access, proposed drainage works, and are to be in accordance with Orange City Council Development and Subdivision Code. The driveway serving units 7 – 10 shall have a minimum clear width of 6.0m for a distance of 10m from the Lantana Place kerb and be designed in accordance with NSW Fire Brigades Guidelines for Emergency Vehicle Access.

The common driveway serving units 5 and 6 shall be constructed at 90 degrees to the kerb alignment between the kerb and garage doors.

(12) Proposed lots are to be provided with interlot stormwater drainage, including those lots abutting public land, where the surface of the entire lot cannot be drained to the kerb and gutter at the lot frontage. A grated concrete stormwater pit is to be constructed within each lot provided with interlot stormwater drainage. Engineering plans for this drainage system are to be approved by Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) prior to the issuing of a Construction Certificate.

(13) Stormwater from the site is to be piped to the adjacent watercourse, where it is to be discharged through a standard headwall with appropriate scour protection. Engineering plans of this required drainage system are to be approved by Orange City Council or by an Accredited Certifier (Categories B1, C3, C4, C6) and a licence from the Department of Planning Infrastructure and Natural Resources for work within 40 metres of the watercourse is to be submitted prior to the issuing of a Construction Certificate.

(14) A sewer access chamber and 150mm-diameter sewer junction is to be constructed from Council’s existing main to serve the proposed development. Internal sewer lines servicing the development from the sewer junction shall be constructed as private sewer mains. Prior to a Construction Certificate being issued engineering plans for this sewerage system are to be submitted to and approved by Orange City Council.

(15) Payment of contributions for water, sewer and drainage works is required to be made at the contribution rate applicable at the time that the payment is made. The contributions are based on water supply headworks, sewerage headworks and stormwater for 6 x two bedroom dwellings and 4 x one bedroom dwellings (the existing allotment has a credit for a single 3 bedroom dwelling which will be applied at the time of payment). A Certificate of Compliance, from Orange City Council in accordance with the Water Management Act 2000, will be issued upon payment of the contributions.

This Certificate of Compliance is to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

(16) A water reticulation analysis is to be carried out by Orange City Council on any proposed water reticulation system for the development. Engineering plans of the water mains extension to the boundary of Lot 4 DP 1065251 are to be submitted to and approved by Orange City Council prior to the issue of a Construction Certificate.

The reticulation system is to be designed to supply a peak instantaneous demand by gravity of 0.15 L/s/tenement at a minimum residual head of 200kPa.

(17) A single common water service and meter shall be located in the common driveway area of units 1 - 2 and units 3 – 10. Engineering plans of the water reticulation layout and sizing are to be submitted to Orange City Council for approval prior to the issuing of a Construction Certificate.

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

(19) The applicant is to submit a waste management plan that describes the nature of wastes to be removed, the wastes to be recycled and the destination of all wastes. All wastes from the demolition and construction phases of this project are to be deposited at a licensed or approved waste disposal site.

(20) Prior to the issuing of a Construction Certificate, the payment of $72,998.40 shall be made to Council in accordance with Section 7.11 of the Act and the Orange Development Contributions Plan 2017 (North West Orange Area) for the provision of the following public facilities:

Open Space and Recreation	Six x 2 bedroom dwellings @ $2,273.36 plus four x 1 bed dwellings @ $1,679.68, less 1 x standard lot @ $3,982.01	$16,376.90
Community and Cultural	Six x 2 bedroom dwellings @ $659.27 plus four x 1 bed dwellings @ $487.12, less 1 x standard lot @ $1,154.78	$4,749.32
Roads and Traffic Management	Six x 2 bedroom dwellings @ $3,091.82 plus four x 1 bed dwellings @ $2,473.46, less 1 x standard lot @ $5,256.12	$23,188.60
Local Area Facilities	Six x 2 bedroom dwellings @ $3,693.00 plus four x 1 bed dwellings @ $2,728.57, less 1 x standard lot @ $6,468.63	$26,603.70
Plan Preparation & Administration	Six x 2 bedroom dwellings @ $288.79 plus four x 1 bed dwellings @ $213.26, less 1 x standard lot @ $505.86	$2,079.92
TOTAL:		$72,998.40

The contribution shall be indexed quarterly in accordance with the Orange Development Contributions Plan 2017, which may be inspected at the Orange Civic Centre, Byng Street, Orange, or on Council’s website.

PRIOR TO WORKS COMMENCING

(21) Prior to works commencing, soil erosion control measures shall be implemented on the site.

(22) A Construction Certificate application is required to be submitted to, and issued by Council/Accredited Certifier prior to any excavation or building works being carried out onsite.

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

(24) Prior to works commencing, a Tree Protection Zone (TPZ) for the two larger remnant Yellow Box trees (Eucalyptus melliodora) on the adjacent neighbouring site to the west (Lot 4 DP 1065251) shall be established in accordance with the relevant Standards, and shall be maintained during construction works, to the satisfaction of Council’s Manager City Presentation. No fill material shall be placed closer than 900mm to the boundary or 900mm outside of the building footprint.

The boundary fence at this location shall be established as a TPZ fence to prevent disturbance of the soil and the impact on the trees' root systems.

(25) Prior to works commencing, the existing sound mound (and its vegetation and irrigation) shall be relocated from the subject land, and extended along the full length of the adjacent public reserve (Lot 57 DP 1122907) up to its western boundary with adjacent Lot 4 DP 1065251. These works shall be carried out in consultation with Councils Manager City Presentation and Council’s Development Engineer. The completed development shall not contain any of the modified sound mound within the subject site.

(26) Prior to works commencing, a solid 2.5m high fence in a dark recessive colour (such as Colorbond Monument or similar) shall be erected along the western and northern boundaries of the subject lot, from the edge of the sound mound, amended in accordance with Condition (26) near the north-western corner of the site, to the rear bedroom of Dwelling 1, to the satisfaction of Councils Director Development Services and Manager City Presentation. Beyond this, the fence height is as detailed on the approved plans.

Alternatively, the proponent may submit a noise assessment report, prepared by an appropriately qualified and experienced Acoustic Consultant, to Councils Director Development Services for approval which demonstrates that acceptable noise attenuation can be achieved to the development site and the adjacent residential dwelling at number 8 Lantana Place using a lower fence height.

As set out in Condition (24), the boundary fence in the location of the two larger remnant Yellow Box trees (Eucalyptus melliodora) on the adjacent neighbouring site to the west (Lot 4 DP 1065251) shall be established as a TPZ fence to prevent disturbance of the soil and the impact on the trees' root systems.

This condition allows for the 2.5m high fence to be reduced down to a 1.8m high fence after the Northern Distributor Road (NDR) sound mound is extended to the west following the future development of the adjacent land to the west (Lot 4 DP 1065251).

DURING CONSTRUCTION/SITEWORKS

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

(28) The provisions and requirements of the Orange City Council Development and Subdivision Code are to be applied to this application and all work constructed within the development is to be in accordance with that Code.

The developer is to be entirely responsible for the provision of water, sewerage and drainage facilities capable of servicing the development from Council’s existing infrastructure. The developer is to be responsible for gaining access over adjoining land for services where necessary and easements are to be created about all water, sewer and drainage mains within and outside the lots they serve.

(29) Lantana Place shall be constructed full road width from the end of the existing road construction to the boundary with Lot 4 DP 1065251. This work is to include road pavement and pavement surfacing, kerb and gutter construction and earth-formed footpath on both sides of the road formation.

(30) All driveway and parking areas are to be sealed with bitumen, hot mix or concrete and are to be designed for all expected loading conditions (provided however that the minimum pavement depth for gravel and flush seal roadways is 200mm) and be in accordance with the Orange City Council Development and Subdivision Code.

(31) Heavy-duty concrete kerb and gutter laybacks and footpath crossings are to be constructed for the entrances to the proposed development. The construction of the laybacks and footpath crossings shall be in accordance with the approved plans and the Orange City Council Development and Subdivision Code.

(32) Dual water and sewerage reticulation is to be provided to every dwelling in the proposed residential development in accordance with the Orange City Council Development and Subdivision Code.

(33) All services are to be contained within the allotment that they serve.

(34) A concrete footpath, a minimum of 1.2 metres wide, shall be constructed on the southern side of Lantana Place for the full frontage of the development.

Construction work is to be to the requirements and standards of the Orange City Council Development and Subdivision Code.

(35) All construction/demolition work on the site is to be carried out between the hours of 7.00 am and 6.00 pm Monday to Friday inclusive, 7.00 am to 5.00 pm Saturdays and 8.00 am to 5.00 pm Sundays and Public Holidays. Written approval must be obtained from the General Manager of Orange City Council to vary these hours.

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

(37) All materials on site or being delivered to the site are to be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 are to be complied with when placing/stockpiling loose material or when disposing of waste products or during any other activities likely to pollute drains or watercourses.

(38) If European or Aboriginal objects, relics, or other historical items or the like are located during development works, all works in the area of the identified object, relic or item shall cease, and the NSW Office of Environment and Heritage (OEH), and representatives from the Orange Local Aboriginal Land Council shall be notified. Where required, further archaeological investigation shall be undertaken. Development works in the area of the find(s) may recommence if and when outlined by the management strategy, developed in consultation with, and approved, by the OEH.

(39) Any pruning of the Yellow Box trees (Eucalyptus melliodora) on the adjacent neighbouring site to the west (Lot 4 DP 1065251) required to facilitate construction activities shall be undertaken by a Qualified Arborist, and in accordance with AS4373 - 2007. Lopping shall not be undertaken.

(40) Works shall be carried out in accordance with the submitted “Ecological Assessment”, prepared by Flora Search, and dated 16 April 2019. Where conditions of consent provided elsewhere in this Notice are inconsistent with recommendations set out in the Assessment or any other consultant reports, the specific condition shall prevail.

(41) Works shall be carried out in accordance with the submitted “Detailed Contaminated Site Investigation”, prepared by EnviroScience, and dated February 2019. Where conditions of consent provided elsewhere in this Notice are inconsistent with recommendations set out in the Investigation or any other consultant reports, the specific condition shall prevail.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(42) A Certificate of Compliance, from a Qualified Engineer, stating that the stormwater detention basin complies with the approved engineering plans is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(43) Certification from Orange City Council is required to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate stating that all works relating to connection of the development to Council assets, works on public land, works on public roads, stormwater, sewer and water reticulation mains and footpaths have been carried out in accordance with the Orange City Council Development and Subdivision Code and the foregoing conditions, and that Council will take ownership of the infrastructure assets.

(44) No person is to use or occupy the building or alteration that is the subject of this approval without the prior issuing of an Occupation Certificate.

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

(46) The cut and fill is to be retained and/or adequately battered and stabilised (within the allotment) prior to the issue of an Occupation Certificate.

(47) A 1.8m high fence shall be provided around the perimeter of the development, excluding within the frontages. A 1.5m high fence shall be provided between each dwelling internal to the site. The height of the fence shall be measured from the highest finished ground level adjacent to each part of that fence.

(48) Prior to the issuing of any Occupation Certificate, landscaping shall be installed in accordance with the approved plans and shall be permanently maintained to the satisfaction of Council's Manager Development Assessments.

In addition to the approved landscaping, prior to the dedication of the extension of Lantana Place as public road, at least three street trees shall be planted within the road reserve of Lantana Place in consultation with, and to the satisfaction of, Council's Manager City Presentation.

(49) The proponent shall enter into a private service agreement with a waste contractor for the collection of garbage, recycling, and organic waste associated with Dwellings 7-10 from the rear bin collection area. Details of the service agreement shall be provided to Council prior to issue of an Occupation Certificate.

(50) Prior to the issuing of any Occupation Certificate, outdoor lighting shall be installed within the development site for safety and security of residents, and be installed in accordance with the Australian Standard 4282-1997 Control of the obtrusive effects of outdoor lighting.

(51) Prior to the issue of an Occupation Certificate evidence shall be provided to the Principal Certifying Authority that the extension of Lantana Place through Lot 78 DP 1172183 has been dedicated as Public Road at no cost to Orange City Council. A new survey plan shall be prepared for Lot 78 DP 1172183.

(52) Application is to be made to Telstra/NBN for infrastructure to be made available to each individual lot within the development. Either a Telecommunications Infrastructure Provisioning Confirmation or Certificate of Practical Completion is to be submitted to the Principal Certifying Authority confirming that the specified lots have been declared ready for service prior to the issue of an Occupation Certificate.

(53) A Notice of Arrangement from Essential Energy stating arrangements have been made for the provision of electricity supply to the development, is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

(54) An easement to drain sewage and to provide Council access for maintenance of sewerage works a minimum of 2.0 metres wide is to be created over the proposed sewerage works. The Principal Certifying Authority is to certify that the easement is in accordance with the Orange City Council Development and Subdivision Code prior to the issuing of an Occupation Certificate.

(55) All services are to be contained within the allotment that they serve. A Statement of Compliance, from a Registered Surveyor, is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(56) A Maintenance Security Deposit, in accordance with the provisions and requirements of the Orange City Council Development and Subdivision Code, is to be provided to Orange City Council prior to the issuing of an Occupation Certificate.

A Certificate of Compliance, from Orange City Council, certifying that the maintenance security deposit has been paid, is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(57) Where stormwater crosses land outside the lot it favours, an easement to drain water is to be created over the works. Prior to the issuing of an Occupation Certificate, a Restriction-as-to-User under section 88B of the NSW Conveyancing Act 1979 is to be created on the title of the burdened Lot requiring that no structures are to be placed on the site, or landscaping or site works carried out on the site, in a manner that affects the continued operation of the interlot drainage system. The minimum width of the easement is to be as required in the Orange City Council Development and Subdivision Code.

(58) All of the foregoing conditions are to be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions is to be completed prior to the issuing of an Occupation Certificate, unless stated otherwise.

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(59) The carport is not to be enclosed on any elevation (including enclosure by the installation of roller doors) without separate development consent.

(60) Waste bins for Dwellings 7-10 shall be placed in the shared onsite waste storage facility on collection days only, for collection by private contractor. At other times, bins shall be stored with the respective dwellings. Kerbside placement of bins in Lantana Place for Dwellings 7-10 is not permitted. Kerbside placement of bins for Dwellings 1-6 on collection days only is permitted.

Other Approvals

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

Nil

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

Nil

Right of Appeal

If you are dissatisfied with this decision, Section 8.7 of the Environmental Planning and Assessment Act 1979 gives you the right to appeal to the Land and Environment Court. Pursuant to Section 8.10, an applicant may only appeal within 6 months after the date the decision is notified.

Disability Discrimination Act 1992:

This application has been assessed in accordance with the Environmental Planning and Assessment Act 1979. No guarantee is given that the proposal complies with the Disability Discrimination Act 1992.

The applicant/owner is responsible to ensure compliance with this and other anti-discrimination legislation.

The Disability Discrimination Act covers disabilities not catered for in the minimum standards called up in the Building Code of Australia which references AS1428.1 - "Design for Access and Mobility". AS1428 Parts 2, 3 and 4 provides the most comprehensive technical guidance under the Disability Discrimination Act currently available in Australia.

Disclaimer - S88B of the Conveyancing Act 1919 - Restrictions on the Use of Land:

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


Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	4 September 2019

Planning and Development Committee 3 September 2019

2.3 Development Application DA215/2019(1) - 36-40 Turner Crescent (Centre Based Child Care Facility)

RECORD NUMBER: 2019/1822

AUTHOR: Summer Commins, Senior Planner

EXECUTIVE Summary

Application lodged	11 July 2019
Applicant/s	Australian Childcare Solutions Pty Ltd
Owner/s	Australian Childcare Solutions Pty Ltd
Land description	Lot 194 DP 1007290 - 36-40 Turner Crescent, Orange
Proposed land use	Centre Based Child Care Facility
Value of proposed development	$2,685,106

Council's consent is sought for a proposed centre based child care facility at Lot 194 DP 1007290 - 36-40 Turner Crescent, Orange. The proposal involves construction of a purpose-built facility for use as a long day child care centre; and associated site works including vehicle areas, external play space, fencing and landscaping. The facility will provide 94 child care places for children aged between 0-5 years, and operate between the hours of 7am to 6pm Monday to Friday.

The site was the subject of a DA for a larger child centre in 2017 (DA 63/2017(1)). The DA was refused by Council, and subsequently dismissed on appeal in the Land and Environment Court. The site layout and building design for the current proposal have been informed by the judgement of the previous DA in the Land and Environment Court; and extensive pre-lodgement consultation with Council staff and advisors.

The proposed development comprises "advertised development" pursuant to Orange Development Control Plan (DCP) 2004-5.3. Public and written notice of the application was undertaken consistent with regulation. At the conclusion of the exhibition period, 14 submissions had been received. The issues raised in the submissions generally relate to traffic matters and residential amenity.

The proposal does not contravene the applicable planning regime applying to the land. Impacts of the development are considered to be within reasonable limit; consistent with applicable State and Local standards, and addressed by appropriate conditions of development consent. Approval of the application is recommended.

Figure 1 - locality plan

DECISION FRAMEWORK

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

DIRECTOR’S COMMENT

This new Development Proposal is for a 94 space childcare centre. Council would recall this site previously was the subject of a DA that was refused by both Council and the Land and Environment Court. This application has taken on board all matters raised by the Court and effectively is very different. The most notable being the significant reduction of child numbers. The proposal is considered to be a good response to achieve a compliant development.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to consent to development application DA 215/2019(1) for Centre Based Child Care Facility at Lot 194 DP 1007290 - 36-40 Turner Crescent, Orange, pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

Australian Childcare Solutions was the proponent for a former DA relating to the subject land. DA 63/2017(1) involved construction of a purpose-built facility for use as a long day child care centre, offering 124 child care places. Thirty one (31) public submissions were received in response to advertising of the DA. The issues raised in the submissions generally related to traffic generation and management; and impacts on residential amenity.

DA 63/2017(1) was considered by the Planning and Development Committee at its meeting held on 1 August 2017. The application was refused on the following grounds:

1 The subject site is not suitable for the proposed development due to the traffic impacts:

(a) traffic generation associated with the proposed development will unreasonably alter the residential character of the locality;

(b) the proposed site access arrangements are unsuitable to manage traffic conflicts in Turner Crescent;

(c) the proposed development will utilise on-street parking resources, with associated traffic congestion in Turner Crescent;

(d) traffic impacts associated with the development will adversely impact on pedestrian safety in the residential setting.

2 The proposed development will have adverse noise impacts on adjoining dwellings.

3 The proposed development will have adverse privacy impacts on adjoining dwellings.

4 The proposed development is inconsistent with the neighbourhood character and function of the locality.

5 The site is unsuitable for the proposed development.

Australian Childcare Solutions appealed Council’s refusal of the DA in the Land and Environment Court (LEC). Proceedings were held between October and December 2017. The appeal was dismissed by the LEC on 21 December 2017 and the application determined by refusal. The following Final Remark is made on the Court Judgement:

A lower scale development would be more respective of residential character. I find that the proposed development pushes the site beyond its capacity. A less intense use… would potentially also have the effect of removing children and play equipment from the front setback, which would increase the development’s compatibility with the surrounding residential area. A smaller centre would meet the day to day needs of residents as contemplated by the objectives of the zoning. It would also allow for more generous parking arrangements, and result in an overall less intrusive and more compatible development. A smaller, lower, less bulky building (or buildings) could be placed on the site so as to reduce visual and other amenity impacts, including traffic movements.

The proponent submits that the current DA has been informed by the Court judgement relating to the former application; community concerns on the former application; and pre‑lodgement advice with Council staff and consultants. The current proposal differs from the former application as follows:

· The proposed building will be split-level with domestic architectural forms, and constructed at existing natural ground levels [DA 63/2017(1) involved a single-level structure with extensive earthworks and site filling].

· Ninety four (94) child care places are being offered [DA 63/2017(1) involved 124 places].

· Outdoor play space will wholly located at the rear of the building [DA 63/2017(1) provided outdoor play space partly within the Turner Crescent front setback].

· The front setback to Turner Crescent will be open to the street and landscaped to complement adjoining residential parcels [DA 63/2017(1) provided outdoor play space and fencing within the Turner Crescent front setback].

· Onsite parking will well-exceed the requirements of DCP 2004 [onsite parking for DA 63/2017(1) met requirements of DCP 2004].

· Traffic generation will be reduced due to fewer child care places being offered.

THE PROPOSAL

The proposal involves construction of a purpose-built centre-based child care facility on the subject land.

The proposed building will comprise a split-level (two-level) structure at existing natural ground level. The building will be centrally located on the development site, and oriented to the north-south. The upper level will address Turner Crescent, with the lower level obscured from view at the Turner Crescent frontage due to the topography. The building will present to Molong Road as two attached residential forms (refer Figures 3 and 4 below).

The building will have an overall footprint of some 59m x 22m, and total floor area of 986.8m². The proposed building will be of contemporary styling with a mix of roof forms; external finishes; and opening sizes and orientations.

The upper ground floor level at Turner Crescent will contain entry foyer, reception, staff amenities, and two age-group specific playrooms with adjacent bathrooms and sleeping rooms. The lower ground floor level will address Molong Road and comprise four age-group specific playrooms with adjacent bathrooms, art room and stores. Both building levels will have separate outdoor play spaces adjacent to playrooms.

Onsite car parking for 32 vehicles will be provided to the west of the building at the site frontage, with access via Turner Crescent. The car park will be at grade, with minor earthworks/filling at the northern end.

Extensive landscaping will be undertaken of the site perimeter, car park, front setback area and outdoor play spaces.

Perimeter fencing will be constructed, as follows:

· Fencing to the south and west side boundaries adjoining the existing dwellings will comprise 1.8m high solid fencing (Colorbond or timber palings).

· Fencing to the north boundary to the Northern Distributor Road (NDR) adjacent the proposed carpark will comprise 1.8m high solid fencing (timber palings).

· Fencing to the balance of the north boundary to the NDR and east boundary to Molong Road will comprise 1.2m-1.5m high timber fencing atop retaining walls. The total height of the retaining wall and fencing to the public streets will be 1.8m.

The presentation of the site with fencing to the Molong Road/NDR intersection is depicted below (refer Figure 3).

Consent is not sought for signage for the proposed centre- based child care facility. Signage will be the subject of a separate DA. Signage depicted in the plan set and below figures is indicative only.

The proposed care facility will provide 94 long day child care places for children aged between 0-5 years, and operate between the hours of 7am to 6pm Monday to Friday.

The proposed site layout and building design are depicted below.

Figure 2 – proposed site layout

Figure 3 – presentation to Turner Crescent

Figure 4 – presentation to Molong Road/NDR

MATTERS FOR CONSIDERATION

Environmental Planning and Assessment Act 1979

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

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

There are 3 applicable triggers in the Orange LGA known to insert a development within the Biodiversity Offset Scheme, and thereby require submission of a Biodiversity Development Assessment Report (BDAR):

1. Development occurs within land mapped on the Biodiversity Values Map.

The subject land is not identified as biodiversity sensitive on the Orange LEP 2011 Terrestrial Biodiversity Map.

2. Development involves clearing/disturbance of native vegetation above prescribed threshold.

The prescribed clearing threshold for the site is 0.25ha (based on minimum lot size for the subject land of less than 1ha ((Cl. 7.2 Biodiversity Conservation Regulation 2017). There are no trees within the site and the predominant surface cover is grass/dirt. The proposal does not involve clearing/disturbance of native vegetation.

3. Development is likely to affect a threatened species.

The subject land is contained within an urban residential subdivision. The development site does not contain or adjoin mapped biodiversity sensitive lands. There are no trees within the site and the predominant surface cover is grass/dirt. The natural state of the site and surrounding area has been highly modified by the urban landuse pattern and original subdivision works. It is considered that the proposed development will not adversely affect a threatened species.

Based on the foregoing consideration, a BDAR is not required and the proposal suitably satisfies the relevant matters at Clause 1.7 EPAA 1979.

Section 4.15

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

The particular aims of the LEP relevant to the proposal include:

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

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

The application is considered to be consistent with the above objectives, as outlined in this report.

Clause 1.6 Consent Authority

Clause 1.6 is applicable and states:

The consent authority for the purposes of this Plan is (subject to the Act) the Council.

Clause 1.7 Mapping

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

Land Zoning Map:	Land zoned R2 Low Density Residential
Lot Size Map:	No minimum Lot Size
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Ground water vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies
Flood Planning Map:	Not within a flood planning area

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

Clause 1.9A Suspension of Covenants, Agreements and Instruments

Clause 1.9A is applicable and states in part:

(2) This clause does not apply:

(a) to a covenant imposed by the Council or that the Council requires to be imposed, or

(b) to any prescribed instrument within the meaning of Section 183A of the Crown Lands Act 1989, or

(c) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or

(d) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or

(e) to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or

(f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or

(g) to any planning agreement within the meaning of Division 6 of Part 4 of the Act.

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

An easement to drain sewer traverses the front boundary of the subject land, adjacent to the Turner Crescent curved frontage (noted as “B” on the deposited plan below). The proposed development is sited clear of and will not affect the operation of the easement.

Figure 5 – extract DP 1007290

As depicted above, the development site is split by a parcel of land described as Lot A DP 381033 – 159 Molong Road. The proposed development does not involve any works on the landlocked triangular shaped portion to the south.

Part 2 - Permitted or Prohibited Development

Clause 2.1 Land Use Zones

The subject site is located within the R2 Low Density Residential Zone. The proposed development is defined as a centre-based child care facility and is permitted with consent in the zone.

Clause 2.3 Zone Objectives

The objectives for land zoned R2 Residential are as follows:

· To provide for the housing needs of the community.

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

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

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

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

The proposed development is consistent with the relevant objectives of the R2 zone. The proposal does not involve residential landuse. The proposed centre-based child care facility will provide a long-day child care service that will be utilised by local and wider residents. Centre-based child care facilities are a permitted and complementary landuse in the R2 zone. The subject residential precinct is serviced by public transport. The land does not have frontage or access to the Southern Link Road.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

The Part 4 Principal Development Standards do not relate to the subject land or proposed development.

Part 5 - Miscellaneous Provisions

The Part 5 Miscellaneous Provisions are not applicable to the proposal.

Part 6 - Urban Release Area

The subject site is not located in an Urban Release Area and Part 6 does not apply.

Part 7 - Additional Local Provisions

Clause 7.3 Stormwater Management

Clause 7.3 is applicable. This clause states in part:

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

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

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

In consideration of Clause 7.3, conditions are included on the attached Notice of Approval in relation to stormwater infrastructure associated with the proposed development. Council’s Assistant Development Engineer advises that stormwater detention can be provided on the subject land. Compliance with conditions will ensure that stormwater runoff will not adversely impact on adjoining properties.

Clause 7.6 Groundwater Vulnerability

The subject land is identified as Groundwater Vulnerable on the Groundwater Vulnerability Map. Clause 7.6 applies. This clause states in part:

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

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

In consideration of Clause 7.6, the proposal is considered to be acceptable. The proposed development does not involve processes or activities that would impact on groundwater resources. The centre will be connected to Council’s reticulated sewerage system.

Clause 7.11 Essential Services

Clause 7.11 applies. This clause states:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or onsite conservation,

(e) suitable road access.

In consideration of this clause, all utility services are available to the site and adequate for the proposed development, as follows:

· the land is connected to reticulated water supply

· electricity and telecommunications are available

· the land is serviced by Council’s reticulated sewerage system

· stormwater detention will be provided onsite

· the site has direct frontage and access to Turner Crescent

· kerbside waste collection will be provided by contractor.

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 55 Remediation of Land

SEPP 55 is applicable and states in part:

(1) A consent authority must not consent to the carrying out of any development on land unless (a) it has considered whether the land is contaminated.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in Subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(4) The land concerned is:

(c) to the extent to which it is proposed to carry out development on it for residential, educational, and recreational or child care purposes, or for the purposes of a hospital—land:

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

In consideration of the provisions above:

· The development site was created by a subdivision approved under DA L337/98 (20 January 1999). Condition 6 of DA L337/98 requires soil sampling for chemical residue be undertaken, to demonstrate the suitability of the land for residential landuse.

· A Contamination Screening Survey was undertaken and submitted in accordance with Condition 6 (Terra Sciences February 1999). Six (6) soil samples were taken from the development site (refer below figure).

Figure 5 – soil samples over the subject land

· The Terra Sciences assessment concludes “further investigation is not warranted on the subject site, and that no further specific precautions are required in the use of the site for residential development.”

· Council may be satisfied that the contamination investigation status of the development site is “unrestricted” and therefore suitable for all land uses including the proposed centre-based child care facility.

· The findings of the Terra Sciences report (1999) were discussed with Geolyse (former Terra Sciences) Environmental Scientist, Mr Brendan Stuart, in June 2017. He confirmed standards today are consistent with or lower than they were in 1999 when the contamination assessment was undertaken. If further sampling was undertaken today, findings would be consistent with the 1999 assessment.

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017

SEPP (Educational Establishments and Child Care Facilities) 2017 is applicable. The relevant provisions of the SEPP are considered below.

Clause 5 - Interpretation

· The proposed development is defined as a “centre-based child care facility” pursuant to Clause 5.

Clause 22 - Centre-based child care facility - concurrence of Regulatory Authority required for certain development

· Indoor unencumbered floor space will comply with Regulation 107 of the Education and Care Services National Regulations pursuant to Clause 22. Indoor floor space of 305.5m² is required (based on 3.25m² x 94 children) and 358.48m² provided over 6 playrooms.

· Outdoor unencumbered space requirements will comply with Regulation 108 of the Education and Care Services National Regulations, pursuant to Clause 22. Outdoor play space of 658m² is required (based on 7m² x 94 children) and 846.51m² provided.

· Based on the compliance with the Regulations for indoor and outdoor unencumbered floor space, notice to and concurrence of the Regulatory Authority for NSW under the Children (Education and Care Services) National Law (NSW) is not required for the proposed development.

Clause 23 - Centre-based child care facility - matters for consideration by consent authorities

· The proposed development complies with the applicable provisions of the Child Care Planning Guideline (Department of Planning and Environment 2017) pursuant to Clause 23, as demonstrated below.

CHILD CARE PLANNING GUIDELINE

Part 2 - Design Quality Principles

Principle 1 - Context

· The proposed building design will respond to the established neighbourhood built form. The proposed development was referred to Council’s Urban Design Advisor for consideration. He advises ‘the proposed design is satisfactory in terms of setbacks; bulk and scale; character; colours and materials; and details.’

· The development site is accessible to public transport.

· The site is well-located to attract facility users in surrounding residential neighbourhoods.

· Design and detailing for the proposed building and site works are of a high standard, and commensurate with the site’s gateway location within the Mitchell Highway and NDR view corridor.

Principle 2 - Built Form

· The finished levels for the proposed building will relate to existing natural ground levels; and finished levels for adjoining dwellings.

· The building design and detailing will be relate to domestic architectural forms within the established neighbourhood (hipped roof profiles at the Turner Crescent frontage, wall height, window fenestration, external finishes).

· Landscaping to the site frontage and perimeter will provide site beautification and integration of the development in the public realm and streetscapes.

· Council’s Urban Design Advisor supports the proposed building design and detailing in this streetscape.

Principle 3 - Adaptive Learning Spaces

· The proposal will provide purpose-built indoor learning spaces that are ‘fit-for-purpose, enjoyable and easy to use.’

· Separate creative spaces will be provided in addition to indoor playrooms, including art room and picking yard.

· Outdoor play spaces will be immediately adjacent and accessible via indoor play rooms.

Principle 4 - Sustainability

· The proposed building will incorporate energy efficient influences in the design.

Principle 5 - Landscape

· Landscaping to the Turner Crescent frontage will provide site beautification and integration of the development in the public realm and streetscape.

· The proposed landscape design will complement private landscaping in the established residential neighbourhood.

· A variety of hard and soft landscaping elements will be provided in outdoor play spaces.

· Council’s Manager City Presentation supports the proposed landscape design concept for the site, and advises the ‘plant pallet selection is acceptable for both climatic appropriateness and asthma awareness for a child care centre.’

Principle 6 - Amenity

· Learning spaces in the proposed addition will be efficient and functional, with direct access to bathrooms, sleep rooms, stores and service areas.

· Indoor playrooms will provide ideal learning and play environments, with generous natural light, ventilation and outlook.

· The facility will provide ‘comfortable, diverse and attractive spaces to learn, play and socialise.’

· Outdoor play spaces will be immediately adjacent and accessible via indoor play rooms.

· As outlined in this report, the proposal will not adversely impact on residential amenity for adjoining dwellings in Turner Crescent in respect of visual privacy, acoustic privacy, and solar access or built form encroachment.

Principle 7 - Safety

· The proposed building design and site works will satisfy the principles of Crime Prevention through Environmental Design.

· The proposed development was referred to the Crime Prevention Officer at Central West Police District. The Crime Prevention Officer raised no objection to the proposal and did not provide specific recommendations/conditions of consent.

Part 3 - Matters for Consideration

3.1 - Site Selection and Location

Objective: to ensure that appropriate zone conditions are assessed when selecting a site

· A Noise Assessment was submitted in support of the proposal (Wilkinson Murray June 2019).

Noise associated with the proposed child care facility will be generated by outdoor play, mechanical plant, traffic noise in the car park, and traffic noise in local streets generated by vehicles associated with the centre. Furthermore and conversely, the centre will be affected by traffic noise intrusion from the NDR and Molong Road.

The submitted noise assessment confirms that subject to implementation of mitigation measures (eg. solid fencing, 4mm glazing, treatment to mechanical plant, and hours of operation), noise emissions from and noise intrusion to the proposed care facility will comply with the relevant criteria.

Council’s Environmental Health and Building Inspector concurs with the findings and recommendations of the noise assessment. Conditions are included on the attached Notice of Approval in relation to physical and operational mitigation measures. On this basis, noise impacts are considered to be within reasonable limit.

· The proposed site layout and building design will provide acceptable visual privacy for adjoining dwellings to the south and west:

- Finished floor and ground levels will relate to existing natural ground levels, and thereby minimise overlooking from the development site to adjoining dwelling.

- 1.8m high solid perimeter fencing will be installed to the south and west boundaries adjacent to adjoining dwellings.

- Extensive landscaping will be provided to the site perimeters.

- South-facing openings opposing the southern boundary will comprise two windows in sleep and store rooms. The openings will be located some 3m from the southern boundary of the site. This separation and use of rooms is considered suitable to prevent overlooking of the adjoining south dwelling at 159 Molong Road.

- The proposed building will be sufficiently removed from the western side boundary to prevent overlooking from within the building of the adjoining western dwelling at 42 Turner Crescent.

· The refuse store / bin storage area is located adjacent to the proposed building and well removed from adjoining dwellings. Odour impacts are not anticipated.

· The proposed building will be sited a minimum 21m from the front boundary to Turner Crescent. The siting of the building will suitably integrate with the streetscape building line formed by adjoining dwellings to the south and west. Landscaping to the front setback will provide site beautification and integration of the development in the public realm and streetscapes.

· A Traffic and Parking Impact Assessment was submitted in support of the proposal (McLaren Traffic Engineering and Road Safety Consultants April 2019). The Assessment concludes:

The subject proposal is fully supportable in terms of its traffic and parking impacts. The following [paraphrased] outcomes are relevant to note:

- Onsite car parking will comply with Council’s DCP requirements, with a surplus of 8 spaces.

- The proposed parking layout has been assessed against the relevant Australian Standards… and found to be compliant.

- The child care centre is expected to generate 75 AM vehicle trips (38 in and 37 out) and 66 PM vehicle trips (33 in and 33 out) at peak periods. This additional level of traffic has been assessed using SIDRA intersection analysis… Traffic generation will represent minimal delays and additional space capacity is maintained.

- The additional traffic generation of 75 peak AM and 66 peak PM vehicular trips will result in two-way traffic flow of 165 and 195 vehicles during the AM and PM peak periods respectively within Turner Crescent. These two-way traffic flows are below the environmental goal of 200 vehicles per hour and well below the maximum threshold of 300 vehicles per hour for local streets as specified in the RMS Guides. The impact upon the collector road of Sieben Drive is also acceptable.

- The typical size of vehicles used for small and infrequent deliveries to child care centres is a B99 utility / courier van, which can access a normal sized car space. The site can accommodate a delivery vehicle onsite between 9am and 4pm outside peak times, when car spaces are very likely to be vacant.

- A queuing analysis has been undertaken for the proposed development…The provision of 10 parent drop-off/pick-up spaces satisfies the 98^th percentile queue for the parking demand of the proposed 94 place child care centre.

Council’s Technical Services Division concur with the findings of the submitted Traffic and Parking Impact Assessment, and advise as follows:

§ The existing road network has sufficient capacity to cater for the 2 identified AM and PM traffic peaks. The 90 degree bend in Turner Crescent at the entrance to the development has previously been identified as a traffic consideration.

§ The anticipated traffic volume increase is well within the existing road capacity and will not impact on pedestrian safety. Existing speed humps are considered adequate ‘traffic calming’ devices.

§ The carpark has sufficient parking spaces to meet Council’s DCP for both staff and peak time drop off/pick-ups. As such, there is not expected to be any overflow on-street parking. Technical Services has previously advised that the carpark requires parking spaces to suit a high turnover user Class 3A design.

§ ‘No standing’ signs are not proposed as part of the line marking works in Turner Crescent.

§ The following local traffic improvements are required and have been included as conditions of consent on the attached Notice of Approval:

1. Line marking for Mastronardi Way.

2. A raised traffic island, road surfacing and line marking at the corner of Turner Crescent (entry to child care centre) to reduce the speed of vehicles entering the site and regulate traffic flows.

3. Amendments of the carpark dimensions, aisle widths and turn bay to suit user class 3A under AS 2890.1 are considered adequate to address high-turnover car park manoeuvring and minimise bottlenecks at peak drop off/pick up times.

4. A concrete footpath is to be constructed for the full frontage of the development to Turner Crescent (condition) to cater for pedestrian traffic to the centre.

Objective: To ensure that the site selected for a proposed child care facility is suitable for the use

· Surrounding land uses comprise residential accommodation. The proposal is a permitted and complementary landuse in the zone and setting.

· The development site is not subject to environmental risks such as flooding, landslip or bushfires.

· As outlined in the assessment under SEPP 55 Remediation of Land above, the site is free from contaminants and suitable for child care use.

· Lot size, configuration, dimensions and frontage are suitable for the proposed child care facility.

· The development site has shared boundaries with residential properties to the south and west. The interface between the development and adjoining dwellings is considered satisfactory (as considered above).

· There are no incompatible social activities and users in the vicinity of the development site.

Objective: To ensure that sites for child care facilities are appropriately located

· The site is well-located to attract facility users in surrounding residential neighbourhoods.

· The development site is serviced by public transport.

Objective: To ensure that sites for child care facilities do not incur risks from environmental, health or safety hazards

· The subject land is not in proximity to land uses with arising adverse environmental conditions prescribed in the Guideline.

· The site does not contain any known environmental hazard or risk.

· The site is free from contamination and suitable for child care use (refer assessment under SEPP 55 Remediation of Land above).

3.2 - Local Character, Streetscape and the Public Domain Interface

Objective: To ensure that the child care facility is compatible with the local character and surrounding streetscape

· The finished levels for the proposed building will relate to existing natural ground levels; and finished levels for adjoining dwellings. As such, the building will present as single storey at Turner Crescent, with the lower level effectively concealed from street view. The building will present to Molong Road as two attached residential forms.

· The siting of the building will suitably integrate with the streetscape building line formed by adjoining dwellings to the south and west.

· Landscaping to the site frontage and perimeter will provide site beautification and integration of the development in the public realm and streetscapes.

· The proposed development was referred to Council’s Urban Design Advisor for consideration. He advises ‘the proposed design is satisfactory in terms of setbacks; bulk and scale; character; colours and materials; and details.’

Objective: To ensure clear delineation between the child care facility and public spaces

· Landscaping to the front setback and car park will establish a transition between public and private spaces.

· The building will address Turner Crescent for passive surveillance and connectivity with the public domain.

Objective: To ensure that front fences and retaining walls respond to and complement the context and character of the area and do not dominate the public domain

· The proposal does not involve a front fence to Turner Crescent. The facility will remain visually permeable in the streetscape.

· Fencing/retaining walls to the north and west boundaries adjoining Molong Road and NDR will have an overall height of 1.8m. Fencing materials and perimeter plantings will have appropriate visual interest and quality at the gateway location.

· Landscaping to the site frontage to Turner Crescent will complement private landscaping in the established residential neighbourhood.

3.3 - Building Orientation, Envelope and Design

Objective: To respond to the streetscape and site, while optimising solar access and opportunities for shade

· As outlined previously, the development will provide acceptable visual and acoustic privacy for adjoining dwellings to the south and west (with reference to fencing, landscaping, interface with opposing land uses and finished surface levels).

· Internal and external play spaces will have access to sunlight.

· A sun study / shadow diagrams were submitted in support of the proposal. Internal and external solar access will be provided to the adjoining southern and western dwellings, in accordance with the requirements of DCP 2004.

· The finished levels for the proposed building will relate to existing natural ground levels; and finished levels for adjoining dwellings. As such, the building will present as single storey at Turner Crescent, with the lower ground level effectively concealed from street view in the residential streetscape.

Objective: To ensure that the scale of the child care facility is compatible with adjoining development and the impact on adjoining buildings is minimised

· The proposed building will be split level, however will present as single storey at the Turner Crescent frontage. The proposed building bulk and scale will relate to the height of dwellings on adjoining parcels.

Objective: To ensure that setbacks from the boundary of a child care facility are consistent with the predominant development within the immediate context

· As outlined, the proposed building street setbacks are considered suitable in this context.

· The public reserve to the east of the development site will provide a buffer between Molong Road and the proposed facility.

Objective: To ensure that the built form, articulation and scale of development relates to its context and buildings are well designed to contribute to an area’s character

· The development site has no particular heritage or cultural values.

Objective: To ensure that buildings are designed to create safe environments for all users

· The proposed development will achieve ease of access and secure entry to the site and building.

· Crime prevention measures are included in the site layout and building design.

Objective: To ensure that child care facilities are designed to be accessible by all potential users

· Accessible design is achieved via accessibility to and within the facility; ramped pathways to key areas; and continuous paths of travel to and within the building.

3.4 - Landscaping

Objective: To provide landscape design that contributes to the streetscape and amenity

· Landscaping to the Turner Crescent frontage will provide site beautification and integration of the development in the public realm and streetscape.

· The proposed landscape design will complement private landscaping in the established residential neighbourhood.

· Landscaping in the car park will incorporate shade trees.

3.5 - Visual and Acoustic Privacy

Objective: To protect the privacy and security of children attending the facility

· Outdoor play spaces will be located at the rear (east) of the building and will not be visible from Turner Crescent. Perimeter fencing and landscaping will prevent overlooking of indoor and outdoor play spaces from the NDR and Molong Road.

Objective: To minimise impacts on privacy of adjoining properties

· As outlined previously, the development will provide acceptable privacy for adjoining dwellings (with reference to boundary fencing, landscaping, interface with opposing land uses and finished surface levels).

Objective: To minimise the impact of child care facilities on the acoustic privacy of neighbouring residential developments

· As outlined previously, subject to migration conditions, noise emissions from the proposed centre will comply with the relevant criteria.

3.6 - Noise and Air Pollution

Objective: To ensure that outside noise levels on the facility are minimised to accepted levels

· The subject site is not located in the vicinity of noise generating infrastructure or land uses prescribed in the Guideline.

· As outlined, the proposed development will be subject to traffic noise exposure. Mitigation measures will be required to ensure compliance with relevant noise criteria in indoor and outdoor play spaces.

Objective: To ensure air quality is acceptable where child care facilities are proposed close to external sources of air pollution such as major roads and industrial development

· The subject land adjoins the NDR and Molong Road. Council’s Environmental Health and Building Inspector advises that particular measures to address air quality will not be required for the development. Perimeter fencing and extensive landscaping will provide a buffer.

3.7 - Hours of Operation

Objective: To minimise the impact of the child care facility on the amenity of neighbouring residential developments

· A condition is included on the attached Notice of Approval that hours of operation are not to exceed 7am to 6pm Monday to Friday, consistent with the assessment in the submitted acoustic report.

3.8 - Traffic, Parking and Pedestrian Circulation

Objective: To provide parking that satisfies the needs of users and demand generated by the centre

· Pursuant to DCP 2004, onsite parking is to be provided for child care centres at a rate of 1 space per 4 children. The proposed centre will provide 94 child care places, with 23.5 (ie. 24) parking spaces required. Thirty two (32) onsite car parking spaces will be provided, including 1 space for disabled drivers, in compliance with the DCP.

· Car park design is consistent with AS 2890.1 Off street car parking. Notwithstanding, Council’s Development Engineer has attached a condition that will require the applicant to confirm that the car park design (dimensions, aisle widths and turn bay) will comply 3A (highest) user standard available under AS 2890.1-2004. This standard is considered adequate to address car park manoeuvring, including catering for the expected service vehicle (courier van). Conditions are included on the attached Notice of Approval to reflect the requirements.

· Based on the long-day operation of the proposed centre, car park lighting (and other external lighting) will be required. A condition is included requiring outdoor lighting comply with AS 4282:1997 Control of the obtrusive effects of outdoor lighting.

Objective: To provide vehicle access from the street in a safe environment that does not disrupt traffic flows

· The subject land has direct frontage and access to Turner Crescent. A 6m vehicle crossing and driveway will be constructed to service the site. In order that adequate sight distances are provided for vehicles turning right into the site (ie. when travelling north along Turner Crescent), a raised median and line marking will be provided along Turner Crescent. Conditions are included to this effect.

Objective: To provide a safe and connected environment for pedestrians both on and around the site

· The proposed development will adopt the following design solutions:

- a car park layout that will allow vehicles to enter and exit the site in a forward direction

- fencing to separate vehicle areas from outdoor play spaces

- provision of an accessible parking space

- concrete footpath to the site frontage on Turner Crescent, as required by condition.

Part 4 - Applying the National Regulations to Development Proposals

The proposed development will satisfy the National Regulations:

· Regulation 104 - Fencing or barrier that encloses outdoor spaces

· Regulation 106 - Laundry and hygiene facilities

· Regulation 107 - Unencumbered indoor space

· Regulation 108 - Unencumbered outdoor space

· Regulation 109 - Toilet and hygiene facilities

· Regulation 110 - Ventilation and natural light

· Regulation 111 - Administrative space

· Regulation 112 - Nappy change facilities

· Regulation 113 - Outdoor space - natural environment

· Regulation 114 - Outdoor space - shade

· Regulation 115 - Premises designed to facilitate supervision

A condition is attached requiring submission of a schedule demonstrating development compliance with the National Regulations prior to the issue of a Construction Certificate.

Clause 26 - Centre-based child care facility - development control plans

· DCP 2004 does not contain prescribed provisions for centre-based child care facilities (including operational or management plans; the demonstrated need for child care services; proximity to other facilities; design considerations, etc.). Notwithstanding, such provisions would not apply to the proposed development pursuant to Clause 26.

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

Draft Remediation of Land State Environmental Planning Policy

Land adjoining the site is not identified or considered to be contaminated. Testing was undertaken pursuant to the subdivision DA which concluded that this and surrounding sites were suitable for residential use. As such, the provisions of the draft EPI are considered to have been addressed.

Draft Orange Local Environmental Plan 2011 (Amendment 24)

Draft Orange LEP Amendment 24 has recently completed a public exhibition process (26 July – 26 August 2019). The Draft plan involves administrative amendments to the LEP, including but not limited to updating various maps; amending the flood planning controls; and adopting or amending clauses in relation to multi dwelling housing, rural subdivision and new landuses. Draft Amendment 24 has no effect for the subject land or proposed development.

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

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

Development Control Plan 2004

The following parts of DCP 2004 are applicable to the proposed development:

· Part 2 - Natural Resource Management

· Part 3 - General Considerations

· Part 4 - Special Environmental Considerations

· Part 5 - General Considerations for Zones and Development

· Part 7 – Development in Residential Zones.

· Part 15 – Car Parking

The relevant matters in Parts 2, 3 and 4 were considered in the foregoing assessment under Orange LEP 2011.

The relevant matters in Part 5 are addressed below (refer Any Submissions).

The relevant matters in Parts 7 and 15 were considered in the foregoing assessment under Child Care Planning Guideline (Department of Environment and Planning 2017).

DEVELOPMENT CONTRIBUTIONS

Development contributions for water, sewer and drainage works are applicable to the proposed development. The contributions are based on 4.64 ETs for water supply headworks and 8.4 ETs for sewerage headworks. A condition is included on the attached Notice of Approval requiring payment of the applicable contributions.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

Fire protection measures will be required appropriate to the building class. Fire safety considerations will be addressed at Construction Certificate stage.

Buildings to be Upgraded (clause 94)

This matter is not relevant as the subject land is vacant.

BASIX Commitments (clause 97A)

BASIX is not applicable to the proposal. A Section J Energy Efficiency statement will be required at Construction Certificate stage.

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

The impacts of the proposed development have been considered in the foregoing assessment and include:

· Visual impacts (neighbourhood character, design, siting, landscaping).

· Traffic impacts (traffic generation, road capacity, site access, car parking layout, service vehicle manoeuvring).

· Amenity impacts (traffic generation, acoustic privacy, overlooking, solar access, visual bulk encroachment, lighting).

· Environmental impacts (waste management, sediment and erosion control, groundwater, biodiversity values, cultural values, contamination).

It is considered that the impacts of the proposed development are within reasonable limit and may be addressed by conditions of consent on the attached Notice of Approval.

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

The subject land is suitable for the development due to the following:

· the proposal is permitted on the subject land R2 Low Density Residential zoning

· the site is of sufficient area and dimensions to accommodate building, outdoor play space and vehicle areas

· the site has direct frontage and access to Turner Crescent

· the local road network has sufficient capacity to accommodate additional traffic volumes

· there is no known contamination on the land

· all utility services are available and adequate

· the site is not subject to natural hazards

· the subject land has no particular environmental values

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

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

The proposed development comprises "advertised development" pursuant to DCP 2004‑5.3. The application was advertised for the prescribed period of 14 days. At the conclusion of the exhibition period, 14 submissions had been received. The issues raised in the submissions have been considered in the foregoing assessment and/or are addressed below.

Residential amenity will be adversely impacted

Comment: The development will broaden the function of the neighbourhood by introducing a non‑residential component. Indeed, the proposed care facility comprises the only non‑residential landuse in the residential neighbourhood. Notwithstanding, centre-based child care facilities are a permitted use in the R2 zone, and the proposal is considered to be complementary in this setting. As outlined in this report, the proposal will not adversely impact on residential amenity for adjoining dwellings in Turner Crescent in respect of visual privacy, acoustic privacy, solar access or built form encroachment. Impacts of the development are considered to be within reasonable limits; consistent with applicable standards and environmental goals; and addressed by appropriate conditions of consent.

Turner Crescent is too narrow to accommodate traffic volumes and on-street car parking demands, with associated impacts for road and pedestrian safety

Comment: Council’s Assistant Development Engineer advises that Turner Crescent has a formed minimum width of 9m within an 18m road reserve, and comprises an urban local access street pursuant to the Orange City Development and Subdivision Code.

The particular road design will accommodate on-street car parking and limited two-way vehicle passing at the speed limited 50km/hr. It is noted that the curved road formation at the site frontage will necessitate slower speeds, with potential conflicts between stationary and moving vehicles further reduced.

It is acknowledged that the residential street will be altered by traffic volumes associated with the proposed development. Notwithstanding, as demonstrated in the foregoing assessment, increased traffic volumes will be within the existing road capacity and below RMS environmental goals. Council’s Assistant Development Engineer and the proponent’s traffic consultant concur that road and pedestrian safety will not be impacted.

Access to Turner Crescent and the development site will be restricted for emergency services and waste collection vehicles

Comment: Council’s Technical Services Division advises the proposal will not restrict access to the neighbourhood or the development site for emergency services vehicles; furthermore, waste collection arrangements for dwellings in Turner Crescent will not be impacted.

On-street car parking will be required to accommodate parking demands for visitors and staff

Comment: Onsite parking for the proposed development exceeds the minimum parking requirements under Orange DCP 2004. A condition is included on the attached Notice of Approval requiring dedicated staff parking spaces be provided onsite (car spaces numbered 1-8).

Access to the site via Molong Road or NDR would overcome traffic concerns

Comment: Consent is not sought for site access via Molong Road or NDR.

The submitted Traffic and Parking Impact Assessment contains errors and omissions

Comment: Council’s Technical Services Division concur with the findings and recommendations of the submitted Traffic and Parking Impact Assessment.

Recommended traffic management measures will inconvenience residents in adjacent dwellings, ie. on-street parking is not permitted within 3m of double centre lines

Comment: The submitted Traffic and Parking Impact Assessment recommends external traffic management measures including double centre lines at the intersection of Mastronardi Way and Turner Crescent; and at the development site frontage in Turner Crescent.

Council’s Assistant Development Engineer advises that double centre lines will indeed restrict on-street car parking adjacent to the lines. He considers that the centre line in Turner Crescent near Mastronardi Way will have limited traffic management effect for the development, and may be deleted. Furthermore, the double centre lines at the site frontage may terminate after the centre median at the tangent point of the inside kerb of Turner Crescent. Conditions are included on the attached Notice of Approval to delete and terminate the double centre lines. As such, external traffic management measures will not alter the availability of on-street parking in the neighbourhood.

Access to the site is on a blind corner

Comment: as outlined in the foregoing assessment, conditions are included on the attached Notice of Approval requiring a raised median and double centre lines be provided at the site frontage in Turner Crescent, in order to achieve safe access to the development site. A further condition is included requiring asphalt resealing of Turner Crescent at the site frontage.

There is potential for traffic accidents at the Mitchell Highway/NDR intersection to enter the site

Comment: the likelihood of a traffic accident entering the site via the adjacent intersection of considered to be is low based on vehicle speeds at the intersection and separation of the site from the formed carriageway.

Clarification on opening hours is requested

Comment: A condition is included on the attached Notice of Approval that hours of operation are not to exceed 7am to 6pm Monday to Friday, consistent with the assessment in the submitted acoustic report.

The proposed development will devalue adjoining properties

Comment: This matter is not a relevant consideration in the assessment of a development application pursuant to the Environmental Planning and Assessment Act 1979.

What are the waste collection arrangements for the proposed centre?

Comment: The proposed development includes a waste storage facility adjacent to the proposed disabled parking space. The proposed storage enclosure is well separated from adjoining properties and well setback from Turner Crescent. The applicant’s proposal involves the storage of waste within this enclosure with staff to place waste storage bins kerbside on pickup days. The kerbside placement of bins on pickup days is not supported. Conditions are included on the attached Notice of approval requiring the bins to be stored within the onsite waste storage facility for the development with collection of waste to be undertaken from the site by the waste contractor (‘run cost’ arrangement) on collection days. This arrangement is a common practice adopted by Council where multiple bins are required on narrow frontages.

PUBLIC INTEREST s4.15(1)(e)

The proposed development is considered to be of minor interest to the wider public due to the relatively localised nature of potential impacts. The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines etc that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004 and relevant State Environmental Planning Policies. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

The requirements of the Environmental Health and Building Surveyor and the Engineering Development Section are included in the attached Notice of Approval.

Attachments

1 Notice of Approval, D19/50931 ⇩

2 Plans, D19/50991 ⇩

3 Submissions, D19/50783 ⇩

Planning and Development Committee 3 September 2019

Attachment 1 Notice of Approval

ORANGE CITY COUNCIL

Development Application No DA 215/2019(1)

NA19/ Container PR17415

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

Development Application
Applicant Name:	Australian Childcare Solutions Pty Ltd
Applicant Address:	C/- HCC Planning 26 Riverglade Drive TAMAHERE, WAIKATO, NZ 3283
Owner’s Name:	Australian Childcare Solutions Pty Ltd
Land to Be Developed:	Lot 194 DP 1007290 - 36-40 Turner Crescent, Orange
Proposed Development:	Centre Based Child Care Facility

Building Code of Australia building classification:	Class to be determined by the PC

Determination made under Section 4.16
Made On:	3 September 2019
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	4 September 2019
Consent to Lapse On:	4 September 2024

Terms of Approval

The reasons for the imposition of conditions are:

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

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

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

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

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

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

Conditions

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

(a) Architectural Drawing Nos:

16004_DA1-100_F;16004_DA1-110_F;16004_DA1-120_F;16004_DA1-200_D;16004_DA1-210_D;16004_DA1-300_C;16004_DA1-500_B (7 sheets)

Landscape Design Intent by Larc Collective;LD1-L2 – 11 (Revision E) (10 sheets)

(b) statements of environmental effects or other similar associated documents that form part of the approval

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

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

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

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

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

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

(4) Where any excavation work on the site extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must, at the person’s own expense:

(a) protect and support the adjoining premises from possible damage from the excavation, and

(b) where necessary, underpin the adjoining premises to prevent any such damage.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(5) Compliance with the requirements of Education and Care Services National Regulations shall be demonstrated on the detailed construction drawings (including a compliance schedule format) submitted with the application for a construction certificate.

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

(7) Detailed plans and specifications are to be provided specifying the proposed fitout of the food preparation and storage areas in accordance with the requirements of Australian Standard 4674-2004 "Design and construction and fitout of food premises" and Standard 3.2.3 "Food Premises and Equipment" of the Australian New Zealand Food Standards Code.

(8) The applicant is to submit a waste management plan that describes the nature of wastes to be removed, the wastes to be recycled and the destination of all wastes. All wastes from the demolition and construction phases of this project are to be deposited at a licensed or approved waste disposal site.

(9) Engineering plans providing complete details of the proposed Turner Crescent traffic island, line marking and pavement resurfacing, Mastronardi Way line marking, childcare centre driveway and car-parking areas is to be submitted to Orange City Council upon application for a Construction Certificate. These plans are to provide details of levels, cross falls of all pavements, proposed sealing materials and proposed drainage works and be in accordance with the Orange City Council Development and Subdivision Code. The plans shall also include the following details:

· Turner Crescent raised traffic island generally as per McLaren Traffic Engineering plan on sheet 2 of 5 Annexure E from report 18532.01FC dated 16 April 2019 including construction details, line marking and signage. Centreline marking west of the traffic island shall terminate at the tangent point of the inside kerb of Turner Crescent;

· Mastronardi Way and Turner Crescent line marking details generally as per McLaren Traffic Engineering plan on sheet 4 of 5 Annexure E from report 18532.01FC dated 16 April 2019. Centreline marking shall be deleted from Turner Crescent;

· Carpark driveway entry / exit raised central splitter island including construction details, line marking and signage;

· A full width reseal in 30mm AC10 asphalt of Turner Crescent for the frontage of the development, as defined by the kerb tangent points located on the inside of the bend;

· Carpark layout generally as per drawing number 16004_DA1-100_F (dated 15/08/2019) with the following amendments:

o Parking spaces numbered 1 to 8 to be clearly identified by signage or line marking as ‘staff parking only’;

o Turning bay to be clearly identified by signage and line marking as ‘turning bay’;

o Turning bay to be widened to 3.6m by including 1.0m central aisle extension;

o Central aisle and parking spaces 17 to 32 to be constructed to dimensions specified for User Class 3A in figure 2.2 of AS 2890.1 (using 6.6m aisle width option).

(10) A water and soil erosion control plan is to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) for approval prior to the issuing of a Construction Certificate. The control plan is to be in accordance with the Orange City Council Development and Subdivision Code and the Landcom, Managing Urban Stormwater; Soils and Construction Handbook.

(11) The development’s stormwater design is to include stormwater detention within the development, designed to limit peak outflows from the land to the pre-existing natural outflows up to the 100 year ARI frequency, with sufficient allowance in overflow spillway design capacity to safely pass flows of lower frequency (that is, a rarer event) without damage to downstream developments. Where appropriate, the spillway design capacity is to be determined in accordance with the requirements of the Dam Safety Committee.

The design of the detention storage is to be undertaken using the DRAINS rainfall-runoff hydrologic model or an approved equivalent capable of assessing runoff volumes and their temporal distribution as well as peak flow rates. The model is to be used to calculate the flow rates for the existing and post-development conditions. The developed flows are to be routed through the proposed storage within the model so that the outflows obtained are no greater than the flows obtained for the pre-existing natural flows. A report detailing the results of the analysis, which includes:

· catchment plan showing sub-catchments under existing and developed conditions;

· schematic diagram of the catchment model showing sub areas and linkages;

· tabulation detailing the elevation, storage volume and discharge relationships; and

· tabulation for the range of frequencies analysed, the inflows, outflows and peak storage levels for both existing and developed conditions;

(12) The existing sewer manhole on the northern boundary is to be raised to the design finished surface level. Prior to a Construction Certificate being issued engineering plans for this work are to be submitted to and approved by Orange City Council.

(13) A Liquid Trade Waste Application is to be submitted to Orange City Council prior to the issuing of a Construction Certificate. The application is to be in accordance with Orange City Council’s Liquid Trade Waste Policy. Engineering plans submitted as part of the application are to show details of all proposed liquid trade waste pre-treatment systems and their connection to sewer.

Where applicable, the applicant is to enter into a Liquid Trade Waste Service Agreement with Orange City Council in accordance with the Orange City Council Liquid Trade Waste Policy.

(14) Payment of contributions for water, sewer and drainage works is required to be made at the contribution rate applicable at the time that the payment is made. The contributions are based on 4.64 ETs for water supply headworks and 8.40 ETs for sewerage headworks. A Certificate of Compliance, from Orange City Council in accordance with the Water Management Act 2000, will be issued upon payment of the contributions.

This Certificate of Compliance is to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

(15) A Road Opening Permit in accordance with Section 138 of the Roads Act 1993 must be approved by Council prior to a Construction Certificate being issued or any intrusive works being carried out within the public road or footpath reserve.

(16) Prior to the issue of the Construction Certificate an acoustic report is to be submitted to the Principal Certifying Authority and to Council, confirming the type and location of any mechanical plant proposed to be installed. The report shall confirm that the Leq15min noise level emitted from the cumulative noise impact of children playing indoors, mechanical plant and traffic on the site will not exceed 51 dB(A) at the assessment location. Where mitigation measures are required in order to achieve this noise goal, details of these measures are also to be provided within this report.

(17) Minimum 1.8 metre high solid fences are to be constructed along each of the boundaries of the external play areas to mitigate external traffic noise intrusion, as well as a minimum 1.8 metre high solid fence to be constructed along the western boundary of the proposed car parking area, as shown in Figure 6-1 of the Acoustic Assessment prepared by Wilkinson Murray (Report No. 18428 Version B) dated June 2019. Fences are to consist of standard lapped and capped timber, colorbond, or the like consistent in design with the approved plans. The existing 1.8 metre high fence located along boundary with 159 Molong is to be retained.

(18) Standard 4mm glazing is to be fitted to all external windows in order to control internal noise levels, as recommended in the Noise Control Summary (7.1) of the Acoustic Assessment prepared by Wilkinson Murray (Report No. 18428 Version B) dated June 2019. .

PRIOR TO WORKS COMMENCING

(19) Where existing fencing on the west and south boundaries of the site adjoining dwellings needs to be removed, or is of a type which does not ensure the occupants adequate privacy, new fencing of the type shown on the approved development application plans, or as referred to elsewhere in this Notice, shall be erected prior to any building or construction work being carried out upon this development.

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

(21) A Construction Certificate application is required to be submitted to, and issued by Council/Accredited Certifier prior to any excavation or building works being carried out onsite.

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

DURING CONSTRUCTION/SITEWORKS

(23) All construction/demolition work on the site is to be carried out between the hours of 7.00 am and 6.00 pm Monday to Friday inclusive, 7.00 am to 5.00 pm Saturdays and 8.00 am to 5.00 pm Sundays and Public Holidays. Written approval must be obtained from the General Manager of Orange City Council to vary these hours.

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

(25) All construction works are to be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans.

(26) All materials on site or being delivered to the site are to be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 are to be complied with when placing/stockpiling loose material or when disposing of waste products or during any other activities likely to pollute drains or watercourses.

(27) The fit-out of the food preparation and storage areas are to be installed in accordance with the requirements of Food Safety Standard 3.2.3 "Food Premises and Equipment" of the Australian New Zealand Food Standards Code and Australian Standard 4674-2004 "Design and construction and fit-out of food premises".

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

(29) The provisions and requirements of the Orange City Council Development and Subdivision Code are to be applied to this application and all work constructed within the development is to be in accordance with that Code.

(31) A heavy-duty concrete kerb and gutter layback and footpath crossing is to be constructed in the position shown on the plan submitted with the Construction Certificate application. The works are to be carried out to the requirements of the Orange City Council Development and Subdivision Code and Road Opening Permit.

(32) A 1.2m wide concrete footpath is to be constructed for the full frontage of the development to Turner Crescent. The footpath is to be located and constructed in accordance with the Orange City Council Development and Subdivision Code.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(33) Landscaping shall be installed in accordance with the approved plans and shall be permanently maintained to the satisfaction of Council's Manager City Presentation.

(34) Car parking spaces shall be provided upon the site in accordance with the approved plans and be constructed in accordance with the requirements of Council's Development and Subdivision Code prior to the issue of an Occupation Certificate.

(35) Perimeter fencing shall be provided in accordance with the approved plans and Acoustic Assessment (Wilkinson Murray Report No. 18428 June 2019) and as amended as follows:

· 1.8m high solid fencing (Colorbond or lapped and capped timber) to the south and west boundaries adjoining the existing dwellings.

· 1.8m high solid fencing (lapped and capped timber) to the part north boundary adjacent to the car park.

· 1.2m-1.5m high timber fencing atop retaining walls to the part north boundary adjacent the outdoor play area; and east boundary. The total height of the retaining wall and fencing to external play areas adjacent the roads shall be 1.8m.

The height of fencing shall be measured from the highest finished ground level adjacent to each part of that fence.

(36) No person is to use or occupy the building or alteration that is the subject of this approval without the prior issuing of an Occupation Certificate.

(37) The owner of the building/s must cause the Council to be given a Final Fire Safety Certificate on completion of the building in relation to essential fire or other safety measures included in the schedule attached to this approval.

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

(39) The cut and fill is to be retained and/or adequately battered and stabilised (within the allotment) prior to the issue of an Occupation Certificate.

(40) A Certificate of Compliance, from a Qualified Engineer, stating that the stormwater detention basin complies with the approved engineering plans is to be submitted to the Principal Certifying Authority prior to the issuing of an Occupation Certificate.

(41) Certification from Orange City Council is required to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate stating that all works relating to connection of the development to Council assets, works on public land, works on public roads, stormwater, sewer and water reticulation mains and footpaths have been carried out in accordance with the Orange City Council Development and Subdivision Code and the foregoing conditions, and that Council will take ownership of the infrastructure assets.

(42) A Road Opening Permit Certificate of Compliance is to be issued for the works by Council prior to any Occupation/Final Certificate being issued for the development.

(43) The proponent shall enter into a private service agreement with a waste contractor for the collection of garage, recycling and organic waste associated the proposed development. Details of the service agreement shall be provided to Council prior to issue of an Occupation Certificate.

(44) All of the foregoing conditions are to be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions is to be completed prior to the issuing of an Occupation Certificate, unless stated otherwise.

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(45) A separate development application shall be submitted to and approved by Council prior to the erection of any advertising structures or signs of a type that do not meet the exempt development provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

(46) Exterior lighting shall be sited and designed to comply with Australian Standard AS 4282-1997 Control of the obtrusive effects of outdoor lighting.

(47) The owner is required to provide to Council and to the NSW Fire Commissioner an Annual Fire Safety Statement in respect of the fire-safety measures, as required by Clause 177 of the Environmental Planning and Assessment Regulation 2000.

(48) Hours of operation of the childcare centre shall be between the hours of 7.00am and 6.00pm, Monday to Friday.

(49) The physical noise mitigation measures and operational management plans for the childcare centre shall be maintained for the duration of the development.

(50) The Leq.15min noise level emitted from the cumulative noise impact of mechanical plant and traffic on the site shall not exceed the background noise level by 51 dB(A) at the assessment location.

(51) The performance of the development in terms of noise, shall be verified through testing at adjoining neighbours within six (6) months of the occupation of the Centre. The applicant shall provide Council with a copy of the Verification Report and also certification that any additional mitigation works identified in the Report have been completed.

(52) Waste bins for the proposed development shall be placed in the onsite waste storage facility shown on the approved plans. These bins shall be screened from view at all times. Waste pickup from the site shall be in accordance with the approved private service agreement for the proposed development. Kerbside placement of bins in Turner Crescent is not permitted.

Other Approvals

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

Nil

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

Nil

Right of Appeal

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

*Disclaimer - S88B of the Conveyancing Act 1919 -* Restrictions on the Use of Land:**	The applicant should note that there could be covenants in favour of persons other than Council restricting what may be built or done upon the subject land. The applicant is advised to check the position before commencing any work.

Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	4 September 2019

Planning and Development Committee 3 September 2019

2.4 Development Application DA 42/2018(3) - 167-177 Peisley Street and 185-187 Peisley Street, Orange (Aldi Foods Pty Ltd)

RECORD NUMBER: 2019/1534

AUTHOR: Ella Wilkinson, Senior Planner

EXECUTIVE Summary

Application lodged	15 May 2019
Applicant/s	Stimson and Baker Planning
Owner/s	Aldi Foods Pty Limited
Land description	Lot 500 DP 1033145 - 167-177 Peisley Street, Orange
Proposed land use	Shop (alterations and additions to existing building).
Value of proposed development	$1,364,000

Application has been made to modify development consent DA 42/2018(2). The modified proposal will link the recently re-constructed Aldi car park (Lot 500 DP 1033145 – 167‑177 Peisley Street) at the northern end to the adjoining Council owned car park to the south (Lot 96 DP 1190941 – 185-187 Peisley Street).

The proposal will result in the loss of two car parking spaces within the Aldi site, however, as discussed in the body of this report, the number of spaces provided on the Aldi site currently exceeds the amount required pursuant to the Orange Development Control Plan 2004 and as such, will not cause ongoing traffic and parking issues in this instance. The proposed link would provide direct access for Aldi customers to access this car park with limited direct benefit to the operation of the Council carpark. Having said this the proposed link does not change the existing management arrangements of the Council car park in terms of timed parking restrictions or the number of spaces. Further, the proposal does not contemplate the exclusive use of this car park by Aldi customers and the car park will be available to all members of the community, under the management of Orange City Council. It is currently open for Aldi staff and customers to park within the public car park at any time without the link being provided.

Council in determining this matter is required in part to consider the impacts of the proposed arrangements on the function and use of the existing Council car park. As alluded to above Lot 96 DP 1190941 (185-187 Peisley Street) is owned and managed by Orange City Council and therefore, pursuant to the Local Government Act 1993, is defined as public land: Public land must be classified by Council as either “community” or “operational” land to determine future management requirements. Where land is classified as “community” land, there are more onerous requirements on the management of land, because of its use or special features. In this case Council’s records indicate that the land is classified as operational land, meaning the land has no special restrictions other than those that may apply to any piece of land. It is open to Council to consider this proposal.

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

Figure 1 - locality plan

RECENT LEGISLATIVE CHANGES

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

DIRECTOR’S COMMENT

The proposal would provide a direct link from the private Aldi carpark into Councils Peisley Street carpark. The proposal generally complies with Council’s planning controls.

6 written submissions and a petition with over 150 names were received from nearby businesses who back onto this carpark, indicating a significant public interest. The submissions and petition object to the proposal. Whilst the proposal to access Council’s carpark, which is operational land, would clearly benefit a private business, Council’s contributions plan does not detail a contribution applicable in this case. Therefore a contribution for this purpose cannot be charged via the Contributions Plan.

The existing Aldi carpark provides 91 carparks, but would forego two parks to provide the direct access to Council’s carpark. Currently Aldi staff and customers can access the area via the separate public access point in Peisley Street.

The Council carpark provides approximately 60 spaces (50% all day; 50% 2 hour). The carpark is very popular with users of the adjoining shops, with spaces generally full by 8.30am.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council modifies development consent DA 42/2018(2) for Shop (alterations and additions to existing building) at Lot 500 DP 1033145 - 167-177 Peisley Street, and Lot 96 DP 1190941 – 185-187 Peisley Street, Orange pursuant to the conditions of consent in the attached modified Notice of Approval.

further considerations

SUPPORTING INFORMATION

Application has been made to modify development consent DA 42/2018(2). The modified proposal will link the recently constructed Aldi car park (Lot 500 DP 1033145 – 167‑177 Peisley Street) at its the northern end, to the adjoining car park located at Lot 96 DP 1190941 – 185-187 Peisley Street, which is Council owned property.

To facilitate the development, the existing kerb will be demolished and a new pavement will be constructed to match existing levels, which will provide the access driveway from the Aldi car park to the adjoining lot.

The concrete median located on the entry driveway on Lot 96 DP 1190941 – 185-187 Peisley Street will also be extended by way of a new kerb and gutter being constructed to match existing.

A Give Way sign will be installed and line marking undertaken. No other changes are proposed as part of the modification.

The proposal will result in the loss of two car parking spaces in total in the Aldi car park. The impact of this loss is not considered significant, given the number of spaces approved on the site currently exceeds the required number of spaces under Council’s Development Control Plan 2004.

MATTERS FOR CONSIDERATION

Section 4.55 of the Environmental Planning and Assessment Act 1979 states:

A consent authority may…modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

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

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

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

(ii) a development control plan, if the consent authority is a council that has made a development control plan under section 72 that requires the notification or advertising of applications for modification of a development consent, and

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

In consideration of the above, the following comments are made:

(a) The proposed modification is considered to be of minimal environmental impact for the following reasons:

- The additional access is a minor amendment to the approved car park layout and does not materially change the development as approved under DA 42/2018 (1) (as modified). As demonstrated by the assessment below, and undertaken as part of the original assessment for DA 42/2019 (1), the number of car parks approved onsite exceeds the requirements of the DCP 2004. As such, the loss of two car parks to provide for the link between the two car parking areas is considered minor, and the proposal is permissible in regard to this requirement. An amended site plan was submitted demonstrating the proposed arrangements on the site, and will supersede the previous approved plan.

- The proposal does not result in an increase in the capacity of the use on either lots. Further, the existing number of car parking spaces is not proposed to be increased on either lot.

(b) In regard to the addition of land to the consent as part of this modification, reference is made to the Land and Environment Court ruling in the Scrap Metal v. Botany case. The ruling stated that, “the power of a consent authority to “modify” a consent is a power to alter without radical transformation of the consent”. Further, whilst the consent authorises the carrying out of development only on the land the subject development is carried out, this does not preclude the consent being modified to extend the development approved by the consent on other land. As such, whilst the consent can be modified to extend the development approved by the consent to other land, the “substantially the same development” test must be undertaken to determine that the proposal meets this requirement as established for a modification under s.4.55 of the Act. Assessment against the “substantially the same development” test is outlined below.

The proposed modification is considered to be “substantially the same development” as the work simply relates to improving circulation between two adjacent car parks. The approved use of the both sites are not proposed to be amended as part of this application, with the proposed works relating to a small section of each car park. The use of the two car parks will remain the same, and no change is proposed that would reduce the effectiveness of the use of either car park. The proposed works will simply improve traffic arrangements between two sites and better integrate the two car parks. As the proposed works are not considered to materially change the use of the sites, nor will it negatively impact on the effectiveness of the car parking facilities on each site, the proposal is considered to meet the “substantially the same development” test.

(c) The modified development does not effect a condition imposed as a requirement of concurrence by a Minister, public authority or approval body.

(d) The modified development does not comprise advertised development pursuant to cl117 of the Environmental Planning and Assessment Regulation 2000 or Orange DCP 2004 – Section 5.3. However, adjoining neighbours were notified of the modified development.

(e) Six formal submissions and one petition with 164 signatures were received in relation to the development as modified. These are outlined in further detail below.

Pursuant to Section 4.55(3) of the EPAA 1979:

In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in Section 4.15(1) as are of relevance to the development the subject of the application.

The relevant matters are considered below.

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

Orange Local Environmental Plan 2011 (as amended)

The initial development was approved under the provisions of Orange LEP 2011. The subject land is zoned Zone B3 Commercial Core. The initial development was defined as Shop (alterations and additions to an existing building). The proposed works are considered to be ancillary to the overall use of the land for this purpose. The ongoing use of the Council car park will remain unchanged.

State Environmental Planning Policy 55 - Remediation of Land

SEPP 55 was applicable to the original development. The modified development does not alter the previous assessment under the SEPP.

State Environmental Planning Policy (Infrastructure) 2007

Clause 101 of the ISEPP states:

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

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

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

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

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

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

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

In relation to the above, the following comments are made:

· Access from to the sites are not proposed to change. The existing access arrangements from the classified road will be maintained.

· The safety and efficiency and ongoing operation of the classified road is not envisaged to be affected by the development. In essence, the linking of the two car parks rationalises an action that is already happening, however, instead of cars going into the Aldi car park, driving out onto the classified road and then accessing the car park in the adjoining lot from the classified road. The proposal will not change the current arrangements or result in an increase in traffic, instead will simply rationalise an arrangement that is currently occurring informally. As such, the nature, volume or frequency of vehicles is not considered to increase over and above that which already occurs, particularly given the proposal does not result in an increase in parking spaces or an extension of any uses on either site.

The ISEPP was applicable to the original development (Clause 104 Traffic generating development; and Clause 45 Determination of development applications – other development).

Clause 104 of the SEPP states:

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

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

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

The proposal is not considered to trigger the requirements for referring the proposal to RMS under the SEPP.

Finally, the ISEPP has controls for development adjacent to rail corridors.

Clause 84 states:

This clause applies to development that involves:

(c) a new level crossing, or

(d) the conversion into a public road of a private access road across a level crossing, or

(e) a likely significant increase in the total number of vehicles or the number of trucks using a level crossing as a result of the development.

The proposal is in proximity to the level crossing that traverses the Mitchell Highway (Summer Street). Notwithstanding, the proposed modification is not considered to result in a significant increase in the total number of vehicles or the number of trucks using this level crossing.

The proposal relates to works that would provide integration between two car parks, and as such, does not alter the size or capacity of the shop nor the existing Council car park on the adjoining site. The linking of the two car parks rationalises an action that is already occurring between the two lots. The proposal will not change the current arrangements or result in an increase in traffic, instead will simply rationalise an arrangement that is currently occurring informally.

A submission was received from John Holland, who manage the Country Regional Network and have an interest in the rail corridor to the west of the subject site. The submission indicated that no objection is proposed to the development, provided that Council consider SEPP (Infrastructure) 2007 and Development Near Rail Corridors and Busy Roads – Interim Guidelines (2008).

As demonstrated, Council have considered the relevant provisions of the SEPP (Infrastructure) 2007. In relation to the guidelines, given the proposed modification relates specifically to the construction of a driveway to adjoin two parcels and provide internal access between two car parks, Council officers have reviewed the document and are of the opinion that the works relating to the modification are not contrary to the guidelines.

Notwithstanding, the construction works are proposed to occur immediately adjacent to an electricity substation. As such, the proposed modification was referred to Essential Energy in line with the requirements of Clause 45. Clause 45 specifies that:

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

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

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

Essential Energy have responded and advised that they have no comments to make as to potential safety risks arising from the proposed development. The advice received included five advisory notes which have been attached to the Notice of Determination.

DESIGNATED DEVELOPMENT

The proposed development is not designated development.

INTEGRATED DEVELOPMENT

The proposed development is not integrated development.

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

Development Control Plan 2004

The original development was assessed pursuant to the following chapters in DCP 2004:

· Chapter 0 – Transitional Provisions

· Chapter 3 – General Considerations

· Chapter 8 – Development in Business Zones

· Chapter 13 – Heritage

· Chapter 15 – Car parking.

· Infill Guidelines

The proposed modified development remains generally consistent with the previous assessment under the DCP in relation to the above chapters. Of particular note in relation to this proposal is Chapter 15 – Car parking, which is discussed in detail below.

Chapter 15 – Car Parking

According to the previous assessment carried out for the proposal, a Shop in the CBD generates a requirement of 4.1 spaces per 100m²of Gross Leasable Floor Area (GLFA).

The alterations and additions approved as part of the original consent resulted in the Shop having a GLFA of 1,846m². As such, a total of 76 car spaces were required. The assessment indicated that, provided specific conditions of consent were met in relation to the development, a total of 91 spaces would be provided, exceeding the required amount by 15 spaces. The second modification approved on 27 August 2018 did not amend the approved car parking layout.

The current proposed amendments to the car parking layout to provide an access driveway to the adjoining car park on the adjacent lot will result in the loss of two approved car parking spaces. Notwithstanding, the loss of two spaces is not considered to result in an adverse environmental impact as the development will still be able to provide a total of 89 spaces, which exceeds the required amount by 13 spaces.

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

The proposed development is not inconsistent with any provisions prescribed by Regulation.

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

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

ENVIRONMENTAL IMPACTS

Visual Impacts

The proposal as modified is satisfactory in terms of visual impacts as the proposed works are minor in nature. Further landscaping proposed and approved as part of preceding applications that this modification relates will serve to mitigate potential impacts.

Traffic and Access

The proposal as modified will serve to provide better circulation between two car parks. Whilst the construction of the proposed driveway will reduce car parking on the site, the number of spaces provided as part of previous applications exceeded the DCP 2004 requirement. As such, the loss of two spaces does not reduce the functioning of the car park and the proposed use of the site remains supported by the remaining number of car parks.

Further, the proposed driveway does not provide additional access onto Peisley Street. The existing access ways onto public roads will be maintained. The proposal was reviewed by Council’s Development Engineer and considered appropriate in this instance.

The engineering referral provided by Council’s Assistant Development Engineer has required that the proposed barrier kerb extension between the two traffic islands inside Orange City Councils car park shall be deleted. Left turn only traffic movements from the driveway link shall be regulated by a left turn arrow on the pavement and ‘Left Turn Only’ sign.

The condition further requests engineering plans be provided to Council or an accredited certifier, showing complete details of the proposed driveway and car parking areas upon application for a Construction Certificate. Therefore, at this stage, whilst the Applicant provided three plans, including the Proposed Site Plan, the Siteworks and Grading Plan and the Soil Erosion Control Concept Plan, Notes and Details, only the Site Plan has been formally stamped as part of the issuing of Development Consent. This is because the design is subject to minor changes that aim to improve traffic and access, to ensure the proposal is satisfactory to Council’s Assistant Development Engineer, and construction details will be formally amended in line with the requirements of the condition.

SOCIAL AND ECONOMIC IMPACTS

Impact on Council owned public car park

The Council owned car park is currently used by staff and customers of the businesses that are located in the vicinity of this land. The proposed works including line markings and medians to provide for the connection of the two car parks has been designed by the Applicant to primarily improve the parking opportunities available for Aldi customers. Whilst the proposed arrangements will improve the circulation internally between the two car parks, the proposed link will provide limited benefit to the current operation of the Council owned public car park. Having said this, it is currently open for Aldi staff and their customers to park within the public car park at any time by accessing the site directly from Peisley Street.

Whilst there are no changes contemplated to the overall management of the Council car park in terms of timed parking restrictions, it is recommended that additional signage be installed at the transition between the two car parks to advise the public that they are entering a public car park.

Council has recently resolved to enter into a private parking agreement with Council for patrols of their car park. The patrols will be designed to align with the existing short term parking restrictions that currently apply within parts of the Council car park.

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

Council has previously determined that the site is suitable for the proposed development There are no aspects of the site to indicate that it would be unsuitable to accommodate the modified development.

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

The proposed development is not defined as advertised development under the provisions of the LEP, and, as such, no formal exhibition of the application was required. Notwithstanding, adjoining neighbours were notified of the proposal. A summary of the submissions received are outlined in further detail below.

PUBLIC INTEREST s4.15(1)(e)

Adjoining neighbours were notified of the proposal, due to the localised nature of potential impacts of the proposed changes. No formal exhibition was undertaken as the proposed development is considered to be of minor interest to the wider public. The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines etc that have not been considered in this assessment.

Six submissions and one petition were received in relation to the proposal. The issues raised are summarised below:

· The proposal will limit the car parking spaces available to the customers and staff of existing businesses.

The proposed management and ownership of the car park is not proposed to change. Further, the current timing arrangements within the car park and the number of parking spaces within the car park will not be altered. The car park will continue to provide spaces for the wider community and will be available to all members of the community, under the management of Orange City Council.

· The proposed modification will negatively affect trading ability and access for existing businesses undertaking daily operations due to increase in use.

The car park in question provides car parking spaces in a 2 hour time limited, and all day format. The car park is owned and managed by Council as a public car park. As such, the car park can be accessed by any member of the public without issue, provided the time limits are observed. The proposed link would provide direct access for Aldi customers to access this car park, but does not change the existing management arrangements of the Council car park in terms of timed parking restrictions or the number of spaces. Further, the proposal does not contemplate the exclusive use of this car park by Aldi customers and the car park will be available to all members of the community, under the management of Orange City Council.

· Proposed modification will impact on volunteers of United Protestant Association of NSW Ltd accessing existing businesses in proximity of the Council car park who have mobility challenges.

Council have previously resolved to provide non-profit organisations with a number of parking permits that waive the short-term car parking timeframes and prevents parking infringements being issued. United Protestant Association (UPA) of NSW Ltd were beneficiaries of this arrangement.

· The existing car park is currently at capacity servicing the existing businesses.

Further, the proposal does not contemplate the exclusive use of this car park by Aldi customers and the car park will be available to all members of the community, under the management of Orange City Council.

· Car parking spaces should be added in the vicinity of the CBD before traffic flow is increased to already congested areas.

This concern raised is considered to be beyond the scope of a site specific development application. Therefore, this comment is noted.

· The modification will increase the chances of traffic/pedestrian incidents if traffic flow is increased in an already busy area.

The proposal was referred to Council’s Technical Services team who raised no concerns in relation to the safety of the proposal.

· The needs of local, long serving businesses should come before that of Global Corporations.

This comment is noted, however, is not considered a planning matter in regard to the provisions of section 4.15 of the Environmental Planning and Assessment Act 1979.

· The proposed modification is not in the best interests of the wider community.

This comment is noted. The interests of the wider community are taken into consideration pursuant to the provisions of section 4.15 of the Environmental Planning and Assessment Act 1979 relating to the environmental, economic and social impacts. The merits of the proposal have been assessed throughout the body of this report, with impacts and submissions tabled for the consideration of Councillors. Notwithstanding, the proposal is permissible with the consent of Council.

· Increased traffic movement in the car park will impact on Peisley Street.

The proposal does not result in the construction of a new premises, nor does it enlarge or extend an existing premises. The original application for the Aldi redevelopment was referred to RMS. The modified proposal does not alter the previous assessment under the SEPP given the modification does not request consent to increase the number of car parking on a site, over and above that already approved. The proposal relates to works that would provide integration between two car parks, and as such, does not alter the size or capacity of the shop nor the existing Council car park on the adjoining site. No change is proposed to the existing driveways that are currently accessible via Peisley Street. Further, the arrangement serves to formalise an activity that is currently already being undertaken by way of customers leaving the Aldi car park Peisley Street access, taking a left hand turn onto Peisley Street and accessing the Council car park via the Peisley Street driveway. As such, whilst the adjoining driveway may formalise this arrangement and provide internal access within the site, changing the overall traffic flow internally, exiting traffic onto Peisley Street will not increase over and above what is already occurring.

· The new redesigned car park reduced the number of parking spaces on the Aldi site. The proposal to link the car parks will mean the decision to reduce the number of car parking spaces on the Aldi site will affect customers and operations of surrounding businesses.

Whilst the modified proposal for the Aldi redevelopment resulted in a loss of overall car parking on the site, as demonstrated above, the car parking provided on the ALDI site exceeds the requirements for the number of car parking spaces required for the development pursuant to the DCP 2004.

Further, the proposal to link the two car parks is a formalisation of an arrangement currently being undertaken between the two car parks. The proposed link would provide direct access for Aldi customers to access this car park, but does not change the existing management arrangements of the Council car park in terms of timed parking restrictions or the number of spaces. Further, the proposal does not contemplate the exclusive use of this car park by Aldi customers and the car park will be available to all members of the community, under the management of Orange City Council.

· The proposal will provide space for Aldi shoppers in the Council car park, but Aldi don’t allow the existing businesses customers to park in the private Aldi car park.

Council does not have control over how a landowner undertakes operations and provides access to a privately owned lot. The proposal does not contemplate the exclusive use of this car park by Aldi customers and the car park will be available to all members of the community, under the management of Orange City Council. It is currently open for Aldi staff and customers to park within the public car park at any time without the link being provided.

· The proposed modification could mean that Aldi may apply for a modification of the all-day parking section in future, amending this to short stay to benefit their customers, meaning the city losses the all-day parking resource.

The current modified proposal before Council is to construct a driveway to link the two car parking areas together. There is no request to amend the current timed parking arrangements within the car park. Further, the car park will continue to be managed by Orange City Council. Therefore, any proposal to amend timed parking arrangements will continue to require the consent of Council.

· The proposal will clash with a previous offer relating to businesses purchasing a space within the car park.

This comment is noted, however, is not considered a planning matter in regard to the provisions of Section 4.15 of the Environmental Planning and Assessment Act 1979.

· Why is Aldi being given use of a Council owned car park without due compensation to the community.

The proposal does not contemplate the exclusive use of this car park by Aldi customers and the car park will be available to all members of the community, under the management of Orange City Council.

SUMMARY

The proposed modification is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. The modification is consistent with the provisions of the Environmental Planning and Assessment Act 1979. Section 4.15 assessment of the development as modified indicates that the development is acceptable in this instance. Attached is a draft amended Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

COMMENTS

The requirements of the Environmental Health and Building Surveyor and the Engineering Development Section are included in the attached amended Notice of Approval.

Attachments

1 Notice of Approval, D19/49652 ⇩

2 Plan, D19/49626 ⇩

3 Petition, D19/49653 ⇩

4 Submissions, D19/49742 ⇩

Planning and Development Committee 3 September 2019

2.5 Development Application - DA 81/2019(1) - 111 Clinton Street

RECORD NUMBER: 2019/1692

AUTHOR: Kayla Clanchy, Town Planner

EXECUTIVE Summary

Application lodged	28 March 2019
Applicant/s	Mr PK Bromley
Owner/s	Mr PK Bromley
Land description	Lot 1 DP 196341 - 111 Clinton Street
Proposed land use	Demolition of Garage, Carport, and Swimming Pool; Partial demolition and replacement of western portion of existing Dwelling House; Partial demolition and replacement of boundary fencing; New detached Garage (ground floor) with Secondary Dwelling (first floor)
Value of proposed development	$700,000

Council's consent is sought for demolition of some outbuildings and rear portion of the existing dwelling house on the subject site – being 111 Clinton Street (Lot 1 DP 196341):

Figure 1 - Locality Plan with subject site outlined in red

Demolition is proposed in order to make way for a single storey house extension and two storey detached garage/secondary dwelling. The proposed secondary dwelling will be located above a three-bay garage, and comprise one bedroom. The maximum height of this structure to the ridgeline from natural ground level will be approximately 6.15m. An extension is proposed to the existing dwelling house on the site, to enhance indoor and outdoor living areas. The extension will follow existing setbacks of the dwelling house from property boundaries.

The subject site occurs in the R1 General Residential Zone and central Heritage Conservation Area of Orange, and is a corner Lot bordered by Clinton Street and a ‘bottleneck’ portion of Rosemary Lane. Therefore, the assessment heavily focusses on heritage considerations.

A number of submissions were received from neighbouring properties and the primary concern for most submitters were issues relating to overshadowing, overlooking, and traffic impacts.

***

Council’s resolution at the 6 August 2019 PDC Meeting:

All of the previous submitters were notified of the above resolution.

The applicant submitted further design changes to the two-storey building, including reducing the roof pitch to 30 degrees at all elevations, lowering the overall height of the structure by at least 250mm (due in part to altering wall heights of the secondary dwelling and ceiling height of garage), adding a window on the west elevation wall of the first floor, and increasing the proportion of external brick so as to make the two-storey structure appear less top-heavy. These design changes were forwarded to the objector at 26A Rosemary Lane and a further submission from this objector was received (see attached). This submission has been addressed together with other submissions under “Any submissions made in accordance with the act s4.15(1)(d)”.

To elucidate the intent of the resolution, it is noted that during the Meeting concerns were raised in relation to private open space, visual bulk (and setbacks), character considerations, and use of the secondary dwelling for the purposes of Airbnb accommodation or similar. These concerns have been explicitly addressed in the body of the report in greater detail and taking into account the third-round of design changes proposed by the applicant – see comments under Development Control Plan 2004, Chapter 7: PO 7.7-1, 7.7-6 and PO 7.7-16.

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of the LEP, DCP, and relevant SEPPs. In short, it is recommended that Council supports the application. The applicant has made considered and careful design changes throughout the course of the development assessment period. The series of changes put forward by the applicant have assisted in meeting all of the planning outcomes in the DCP.

RECENT LEGISLATIVE CHANGES

DIRECTORS COMMENT

This proposal relates to the construction of additions to the rear of the existing dwelling, and construction of a detached garage with a first floor secondary dwelling. This report was considered at the August PDC. Council deferred determination and requested the applicant consider alteration to address some of the concerns raised by a neighbour. The applicant has made substantial changes to the development as requested. The two storey building has a reduced ceiling and wall weight and also reduced roof pitch. I suggest that this is very reasonable of the applicant as it has reduced the amount of usable floor space in the secondary dwelling. It is considered that no further changes could be practicably be made to this building. Whilst the fascia of the roof extends outside the bulk and scale envelope this does not result in adverse impacts on the neighbours. The development is considered to be compliant and therefore approval is recommended.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to consent to development application DA 81/2019(1) for Demolition of Garage, Carport, and Swimming Pool; Partial demolition and replacement of western portion of existing Dwelling House; Partial demolition and replacement of boundary fencing; New detached Garage (ground floor) with Secondary Dwelling (first floor) at Lot 1 DP 196341 - 111 Clinton Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE APPLICATION/PROPOSAL

Council's consent is sought for demolition of some outbuildings and rear portion of the existing dwelling house on the subject site, to make way for a single storey house extension and two storey detached garage/secondary dwelling.

The proposed secondary dwelling will be located above a three-bay garage, and comprise one bedroom. The maximum height of this structure to the ridgeline from natural ground level will be approximately 6.15m.

An extension is proposed to the existing dwelling house on the site, to enhance indoor and outdoor living areas. The extension will follow existing setbacks of the dwelling house from property boundaries.

BACKGROUND INFORMATION

1982	In-ground swimming pool approved.
1984	Rear alterations and additions to existing house, new outbuildings, and new carport approved.
November 2018	pre-DA advice to the applicant from Council for proposed development. This advice focussed on heritage design considerations for the proposed rear house demolition and extension, and secondary dwelling.

MATTERS FOR CONSIDERATION

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

There are four triggers known to insert a development into the Biodiversity Offset Scheme (ie the need for a BDAR to be submitted with a DA):

· Trigger 1: development occurs in land mapped on the Biodiversity Values Map (OEH) (Clause 7.1 of BC Regulation 2017).

· Trigger 2: development involves clearing/disturbance of native vegetation above a certain area threshold (Clauses 7.1 and 7.2 of BC Regulation 2017).

· Trigger 3: development is otherwise likely to significantly affect threatened species (Clauses 7.2 and 7.3 of BC Act 2016).

The fourth trigger (development proposed to occur in an Area of Outstanding Biodiversity Value (Clause 7.2 of BC Act 2016) is generally not applicable to the Orange LGA; as no such areas are known to occur in the LGA. No further comments will be made against the fourth trigger.

Trigger 1

The site is not identified on the Biodiversity Values Map.

Trigger 2

The clearing threshold is not exceeded for the site.

Trigger 3

With regard to the third trigger, the test for determining whether proposed development is otherwise likely to significantly affect threatened species is listed in the BC Act 2016, under s7.3.

Comments against s7.3:

The site is not identified on the high biodiversity sensitivity LEP map. The land is zoned R1 General Residential and has been zoned/used this way for several decades. The site and surrounds mostly contain deciduous, non-native trees and shrubs, typical for the Heritage Conservation Area. There are no known habitat corridors or linkages at the site or in proximity to the site. Some outbuildings are proposed to be removed as part of the proposal. Given the isolation of these outbuildings from any other native feed trees or roosting areas, it is unlikely these outbuildings provide shelter for native fauna. No tree removal is proposed on the site. It does appear, however, that tree removal has been undertaken previously at the site for up to two trees, when comparing a recent site visit with 2015 Google Streetview. In any case, tree plantings are proposed as part of the Landscaping Plan for the development. None of the trees proposed, however, appear to be native species and have mostly been selected based on heritage character considerations for the locality.

Based on the above, no direct impacts to threatened species are likely to occur as a result of the development. Indirect impacts may be generated through unfettered soil and sedimentation making its way into receiving waters, and impacting on creek stormwater quality. This indirect impact can be mitigated by a standard condition of consent requiring an erosion and sediment control plan and measures to be in place for the life of the project construction.

Having consulted the ‘Key Threatening Processes’ schedule of the BC Act (sch. 4), no potential threats have been identified as a result of the development in this location.

Summary

The proposed development is not likely to significantly affect threatened species.

Section 4.15

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

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

Orange Local Environmental Plan 2011

Parts 1, 2, 5, and 7 apply to the development and are addressed below.

Part 1 - Preliminary

1.2 - Aims of Plan

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

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

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

With regard to (b), developable land in the Orange LGA is a limited resource, and allowing infill development in established parts of the City ensures land resources are being efficiently used with regard to present and future generations.

With regard to (e), the addition of a secondary dwelling at the subject location adds variety to the mix of housing and residences available in proximity to the city centre.

With regard to (f), the design of the proposed development is sympathetic to the Heritage Conservation Area.

1.6 - Consent Authority

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

1.7 - Mapping

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

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

1.9A - Suspension of Covenants, Agreements and Instruments

This clause provides that covenants, agreements and other instruments which seek to restrict the carrying out of development do not apply, with some exceptions. Council staff are not aware of the title of the subject property being affected by any restrictions that would seek to curb the development proposed.

Part 2 - Permitted or Prohibited Development

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

The subject site is located within the R1 General Residential zone. The proposed development comprises a few elements – being Demolition of Garage, Carport, and Swimming Pool; Partial demolition and replacement of western portion of existing Dwelling House; Partial demolition and replacement of boundary fencing; New detached Garage (ground floor) with Secondary Dwelling (first floor). All of these elements are permissible in the zone under the LEP.

Clause 2.3 of LEP 2011 references the Land Use Table and Objectives for each zone in LEP 2011. Relevant objectives of the Zone are:

· To provide for the housing needs of the community.

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

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

Secondary dwellings are generally small in area and thus are affordable types of residential accommodation. Secondary dwellings are subservient to a primary dwelling occurring on the same site and generally cannot be subdivided off from the main dwelling. Therefore, secondary dwellings inherently meet the first two relevant objectives of the General Residential zone. The subject site fronts Clinton Street, and at this part of Clinton Street, two bus routes (western and north-western route) are in operation. Furthermore, the subject site occurs within a locality that is well-serviced by footpaths.

The house extension also accords with the above objectives.

2.7 - Demolition Requires Development Consent

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

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

Part 5 - Miscellaneous Provisions

5.4 - Controls Relating to Miscellaneous Permissible Uses

This clause contains various development standards that apply to specific types of development. Of relevance to the proposal:

(9) Secondary dwellings

If development for the purposes of a secondary dwelling is permitted under this Plan, the total floor area of the dwelling (excluding any area used for parking) must not exceed whichever of the following is the greater:

(a) 60 square metres,

(b) 50% of the total floor area of the principal dwelling.

This clause refers to “total floor area” (no definition in LEP), as opposed to “gross floor area” (definition in LEP). However, “floor area” is defined in State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘Affordable Rental Housing SEPP’) and this definition is similar to the standard instrument definition of gross floor area found in the LEP. The “floor area” definition in the Affordable Rental Housing SEPP excludes calculation of a stairway or void above a lower storey (Schedule 1 of SEPP).

Given that the Affordable Rental Housing SEPP administers many provisions to do with secondary dwellings, and that the SEPP generally overrides any local provisions in an LEP that may be in conflict with the SEPP (per Clause 8 of the SEPP), the “floor area” definition as found in the SEPP is applied in interpreting Clause 5.4 of the LEP.

In light of the above, the secondary dwelling element of the proposal comprises a “floor area” of approximately 68.28sqm (excluding stairs/void), which is less than half the “floor area” of the main dwelling on the site.

5.10 - Heritage Conservation

This clause applies.

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

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

(c) to conserve archaeological sites,

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

(4) Effect of proposed development on heritage significance

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

Prior to lodgement of the Development Application, advice was sought from Council by the applicant for design considerations in a Heritage Conservation Area (among other things). Council provided pre-lodgement advice, recommending certain colours, materials, treatments, landscaping, and built-form principles be observed. This advice was delivered by Council’s Heritage Planner in conjunction with comments from Council’s External Heritage Advisor.

Post-lodgement and during the assessment of the proposal, a referral was sent to Council’s External Heritage Advisor for their comments on the proposed development. More comments were received from the Heritage Advisor, and these were delivered to the applicant. The applicant considered these comments and made further design alterations, particularly with regard to colours, materials, and roof-forms.

Following the 6 August PDC Meeting, the applicant has accommodated further design changes that reiterate heritage design principles and respond to numerical “suggested solutions” standards of the Development Control Plan.

House extension

Double-hung windows are proposed for the house extension along prominent elevations, to ensure windows are in keeping with the existing windows of the house and the general character of the Heritage Conservation Area. ‘Scyon’ cladding (vertical panelling) is proposed for the house extension in Murobond ‘Salt’ colour (see Figure 2 below). Double gable-ended roofing at the western elevation of the house is proposed, which is sympathetic to the gable projections which occur on other elevations of the house. Angles of new roofing measured above the horizontal are in keeping with existing dwelling roofing.

Roof material is proposed to be custom orb roofing in Colorbond ‘Windspray’ colour (see Figure 3 below). The existing stucco chimney will be retained and slightly relocated in the roofline which is to be joined with the extension. The alfresco area will be framed by hardwood timber posts. Gutter and fascia trims are proposed to match existing gutter and fascia trim colours of the house (being cream fascia and dark blue gutters).

Figure 2 - wall cladding colour Figure 3 - roof custom orb colour

The assessing officer does not oppose any of these features, in light of previous advice from Council’s Heritage Advisor.

Garage and secondary dwelling

The two storey structure incorporates face brickwork at the lower level (similar colour to bricks of existing dwelling), double roller door, and a separate single roller door. No colour has been nominated for the roller doors. The upper level wall for the secondary dwelling is proposed to be clad ‘Scyon’, similar to the house extension cladding but in Dulux ‘Windspray’ (see above, Figure 3). Roof-form is proposed to be hipped on all sides, with box gutters. Roof pitch is proposed at 30 degrees and this is considered sympathetic to the roof angles existing and proposed for the primary dwelling on the land. Roof material and colour is proposed as custom orb sheeting in ‘Windspray’.

The assessing officer does not oppose any of these features, however, it is recommended that, in light of previous advice from Council’s Heritage Advisor, to impose the following condition:

· Garage roller doors are to be darker in colour than the surrounding brick external walls in order to make the roller doors appear more recessive at the southern elevation.

Landscaping

The site currently has varying fencing and landscaping arrangements:

· The frontage to Clinton Street has a white timber picket fence (up to 900mm in height) extending west along the side boundary fencing to Rosemary Lane and terminating in line with entry verandah.

· The side boundary fencing to Rosemary Lane between the entry verandah and extending west beyond the front building line of the existing house is brown timber paling (up to 1.5m in height).

· West of this point, solid brick fencing occurs and is mostly covered with mature hedging (stepped in height up to 1.8m).

· Further west to the rear boundary, this brick fencing is solid and exposed (up to 1.8m in height).

· The dividing fence between the subject site and 113 Clinton Street is stepped Colorbond (up to 1.8m in height) in varying colours (maroon, blue).

· Variable plantings in the front setback area to Clinton Street. Hedges, garden beds, shrubs and turf in backyard area.

The development proposes to alter the above fencing arrangements by:

· Replacing brown timber paling at side boundary portion to Rosemary Lane with pickets 900mm in height and planting Star Jasmine climbing variety on the fence.

· Removing a portion of hedging and replacing solid brick 1.8m high fencing along portion of Rosemary Lane to 1.8m high timber paling fence (lapped and capped).

· Retaining hedging and plantings further west along the boundary to Rosemary Lane, and replacing 1.8m high solid brick fence with brick pillars, low wall, and upright black metal panel inserts (palisade), and wrapping around the rear boundary:

Figure 4 - perspective view of proposed brick pillar and palisade fencing at western portion of the site, facing out toward Rosemary Lane

· Replacing north-west portion of solid brick fencing with Colorbond up to 1.8m high.

· Inserting tension cables and timber frames as fence toppers (up to 1m additional height) to facilitate planting of Star Jasmine climbers.

· Introducing English variety plantings and other species sympathetic to the Heritage Conservation Area.

The assessing officer is amenable to most of the above proposed changes as was Council’s Heritage Advisor, with the following exceptions:

· It is inferred from the Landscaping Plan that the 1.8m high timber paling fence (lapped and capped) proposed for a portion of the side boundary to Rosemary Lane will be painted a dark colour such as Dulux “Monument”. Based on previous advice from the Heritage Advisor and to ensure this part of the fence is in keeping with the dwelling on the site and the overall Heritage Conservation Area, it is recommended to include a condition that stipulates the lapped and capped timber fencing shall be hardwood natural timber, or no darker than “Windspray”.

· There is little to no nature strip or Council verge between the Lot boundary of the site and carriageway of Rosemary Lane. This situation can pose not only visual amenity impacts on the locality if fencing is dominant at this interface, but also sight safety issues for pedestrians and vehicles. On the other hand, fencing at this location that is too meek or short will result in significant loss of privacy to users of the subject site. In light of these considerations, it is recommended to include a condition to the effect that brick pillars proposed as part of the fencing schedule for the southern and western boundaries shall have a maximum width and depth of 300mm, and maximum height above natural ground level (stepped, if necessary) of 1.5m with intervening palisade fencing inserts not extending above the height of respective enclosing brick pillars.

· The low brick wall element of this fencing shall not exceed 400mm above natural ground level. Visual permeability of the intervening palisade fencing shall be at least 75% (e.g. solid elements 30mm wide will be offset by 90mm wide gaps between solid elements).

· In order to preserve solar access and to reduce fence bulk at side boundaries, it is recommended to include a condition of consent that fence toppers (timber frames and tension cables) proposed at the north-western corner of the Lot and northern boundary of the Lot shall result in an overall structure height between 1.8 to 2.2m above natural ground level. For example, if existing Colorbond fence height is 1.8m and proposed to be retained, a fence topper shall not exceed 400mm in height above the top of that Colorbond fence.

Intangible elements

The central Heritage Conservation Area of Orange seeks to identify and promote the heritage characteristics of these older parts of town. The locality in which the subject site occurs has an ongoing connection to vernacular, residential built-forms, ornamental gardens, and leafy streetscapes. The nature of the proposed development does not interrupt this ongoing connection with the intrinsic character of the Heritage Conservation Area.

Summary

In consideration of the above, the design elements of the development in its revised form are considered satisfactory or can be made satisfactory through imposition of some clear conditions. Thus, the development will have a neutral or beneficial impact on the heritage significance of the Heritage Conservation Area.

Part 7 - Additional Local Provisions

7.1 - Earthworks

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

The proposal involves earthworks to demolish structures and establish footings. The pool area will be backfilled with earth and compacted according to Australian Standards.

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

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

The site is not known to be contaminated and conditions may be imposed requiring the use of verified clean fill only. Excavated materials will be reused onsite as far as possible and conditions may be imposed to require that surplus materials will disposed of to an appropriate destination.

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

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

7.3 - Stormwater Management

This clause applies to all industrial, commercial and residential zones.

The proposal has been designed to include permeable surfaces and includes onsite retention of stormwater through the use of a rainwater tank, required to be 5000L per BASIX requirements. The two storey structure reduces the amount of site coverage and thus hardstand areas that would have otherwise occurred if the development was proposed to include the same floor area but across a single storey.

7.6 - Groundwater Vulnerability

This clause seeks to protect hydrological functions of groundwater systems and protect resources from both depletion and contamination. The proposal is not anticipated to involve the discharge of toxic or noxious substances and is therefore unlikely to contaminate the groundwater or related ecosystems. The proposal does not involve extraction of groundwater and will therefore not contribute to groundwater depletion. The design and siting of the proposal avoids impacts on groundwater and is therefore considered acceptable.

7.11 - Essential Services

Clause 7.11 applies. In consideration of this clause, all utility services are available to the land and can be made adequate for the proposal, subject to conditions of consent as recommended by the Environment Health & Building team and Technical Services team.

It should be noted that Council does not have an endorsed lane widening/dedication strategy for established parts of the City. Rosemary Lane ‘bottlenecks’ at the intersections with Clinton Street and Sampson Street. Absent a strategy for lane widening and dedication, it is not appropriate to assert that the development will prejudice future lane widening opportunities for Rosemary Lane at this location.

State Environmental Planning Policy No 55 - Remediation of Land

Pursuant to Clause 7, the subject site is not identified on Council’s Draft Contaminated Land Information System. The property has been used as a residence, with one detached dwelling, since at least the 1920s. Having regard to Table 1 of the current Managing Land Contamination Planning Guidelines from DUAP 1998, no contaminating activities are known to have occurred prior to the site’s use for residential purposes. The site was likely previously used for grazing or other agricultural pursuits.

The development will mostly be in the western portion of the site. The western portion of the site contains some outbuildings such as a garage, carport, shed, in-ground pool, garden beds, lawn, and driveway. Conditions will be imposed for caution to be applied during demolition, especially with respect to asbestos.

It is not considered likely that the land is contaminated, nor that further consent for remediation works will be required at the site.

State Environmental Planning Policy (Affordable Rental Housing) 2009

The proposed development is for a secondary dwelling, not being a manufactured home, and so the SEPP applies.

The subject Lot exceeds 450sqm, and so consent cannot be refused on the basis that the Lot size is too small (cl. 22).

The secondary dwelling does not need to be serviced by a dedicated car parking space (cl. 22), and as such there is no mechanism available to ask for these provisions to be made available for the secondary dwelling.

A dedicated, separate private open space area does not need to be provided for the secondary dwelling, as implied by Schedule 1 of the SEPP. That is to say, in order for a secondary dwelling to be considered “complying development”, it does not need to have a separate private open space area from the main dwelling on the land. As such, it follows that a merits-assessment pursuant to a Development Application should not be more onerous than this “complying” provision.

Further comments on car parking and private open space provisions for the development as a whole are included later in this report, under the Development Control Plan 2004.

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

SEPP No 55 Review

From 31 January to 13 April 2018 the Department of Planning and Environment publicly exhibited an Explanation of Intended Effect (EIE) and Draft Planning Guidelines for the proposed Remediation of Land SEPP, which will repeal and replace SEPP No 55. Of particular note, the Draft Planning Guidelines state:

No nearby land contamination is identified in Council’s Draft Contaminated Land Information System. The surrounding properties have been mostly used for residential purposes for several decades. The likelihood of significant soil and groundwater contamination originating offsite and migrating onsite is therefore considered low.

LEP Amendment No 24

A housekeeping amendment is proposed to the Orange LEP, known as Amendment No 24. No aspects of the housekeeping amendment relate to the site or the proposed development of the site.

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

Development Control Plan 2004

The DCP 2004 applies. References to zone 2a throughout the DCP are taken to be references to zone R1 General Residential, per the current LEP zone convention. Relevant planning outcomes from relevant chapters are included below.

DCP03 General Considerations

PO 3.1-1 – Cumulative Impact

See comments under “Likely Impacts of the Development” per s4.15(1)(b) of the Act later in this report.

PO 3.4-1 – Waste Generation

· Applications involving demolition indicate measures that will be implemented for reuse and recycling of waste materials.

· Development involving demolition is carried out in a manner that optimises reuse and recycling of waste materials consistent with waste-minimisation principles.

The Building team has recommended a condition of consent for a Waste Management Plan to be submitted, which shall outline the nature of wastes to be disposed of or recycled.

DCP05 General Considerations for Zones and Development

Section 5.3 of this Chapter outlines ‘demolition of a building, work, relic or place within a heritage conservation area’ as advertised development. Given the scope of works proposed to be undertaken, the application was advertised and submissions invited for a 14 day period. See comments under “Any Submissions Made in Accordance with the Act” per s4.15(1)(d) of the Act later in this report.

DCP07 Development in Residential Areas

PO 7.7-1 Planning Outcomes – Neighbourhood Character

· Site layout and building design enables the:

- creation of attractive residential environments with clear character and identity

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

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

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

The characterisation of the Heritage Conservation Area and how the development responds to this characterisation is described under Clause 5.10 of the LEP, earlier in this report. An additional comment is made, being that the residential character of the neighbourhood includes a mix of single storey detached homes, two storey additions and attic conversions, and some multi dwelling housing (units) in Rosemary Lane, Clinton Street, and Sampson Street.

The proposal will contribute to the long-standing residential identity of the area and eclectic features of urban laneways. The proportions, colours, and materials proposed are in keeping with other homes and buildings in the locality.

As the desired neighbourhood character is intimately linked to heritage considerations, the proposed development responds well to the desired neighbourhood character. All aspects of the proposal will incorporate more heritage-sensitive measures than those already established along Rosemary Lane. For example, there is an existing dominance of Colorbond fencing and garage roller doors along Rosemary Lane, between Sampson and Clinton Street:

Figure 5 – Views along Rosemary Lane, noting other properties’ heritage conservation area anomalies.

Landscaping and fencing features will soften all appearances to Rosemary Lane, and the two-storey structure will include colours and materials that make recessive the appearance of proposed garage roller doors.

Limited vegetation exists on the site, and the Landscaping Plan proposed as part of the development will enhance key elements of the heritage character of the locality.

The Clinton Street frontage, being the primary frontage, will be mostly unaltered by the development, save for some enhanced landscaping elements. The Rosemary Lane frontage will be altered by the development; even so, the streetscape at this location is not considered likely to be negatively affected. See further comments on this point under Clause 5.10 of the LEP, earlier in this report.

PO 7.7-2 Planning Outcomes – Building Appearance

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

· The frontage of buildings and their entries address the street.

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

Building appearances at the primary frontage (Clinton Street) will be mostly unchanged, save for limited views to the upper storey of the structure proposed at the rear of the subject site (west of the main dwelling on the Lot).

The secondary street interface will include elements such as new fencing, the housing extension, and two storey structure. These elements have been designed, and will be conditioned, to ensure views from Rosemary Lane are acceptable and do not detract from the streetscape. Considerable thought has gone into how the details and finishes of the two-storey structure respond to the desired neighbourhood character – see comments under clause 5.10 of the LEP, PO 7.7-1, and PO 7.7-6.

PO 7.7-3 Planning Outcomes – Heritage

See analysis under Clause 5.10 of the LEP, earlier in this report.

PO 7.7-4 Planning Outcomes – Setbacks

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

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

See comments below under PO 7.7-6 Visual Bulk.

PO 7.7-5 Planning Outcomes – Fences and Walls

See analysis under Clause 5.10 of the LEP, earlier in this report.

PO 7.7-6 Planning Outcomes – Visual Bulk

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

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

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

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

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

- building to the boundary where appropriate.

Suggested solutions that correspond to the planning outcomes:

1. Buildings are contained within an envelope generated by planes projected at 45° over the site commencing 2.5m above existing ground level from each side and rear boundary.

2. Buildings within 15m of the street frontage, in areas of predominantly single storey houses, are or appear as single storey.

3. Buildings may cover up to 50% of the site area (except for single dwellings which may cover up to 60% including outbuildings).

The ‘bulk’ of the development occurs at the rear of the lot. The two storey structure will encroach slightly – due to roof guttering – into the suggested solution visual bulk envelope standard of the DCP. It should be noted that the original built-form proposed for the secondary dwelling (at lodgement) included high-gable ends to the east and west elevation, which significantly encroached into the visual bulk envelope development standard. The applicant was advised to revise this element, and as such hipped ends were instead proposed for all elevations of the two storey structure.

This change minimised encroachment into the visual bulk envelope and resulted in a better design outcome with respect to heritage and streetscape impacts.

“Street frontage” in the above context for the second suggested solution refers to the primary street, which is the frontage to which the 15m setback standard applies. The main dwelling presents to Clinton Street and as such, Clinton Street is the primary street frontage. The secondary street interface between the corner allotment and Rosemary Lane is not a “frontage”. Therefore, the two storey structure meets the suggested solution for buildings within 15m of the frontage (Clinton Street) appearing as single storey.

The following southern elevation (street view from Rosemary Lane) highlights how the overall built-form for the proposed two storey structure compares to existing and proposed built-form of the single storey dwelling house on the site:

Figure 6 - southern elevation of the subject site (P = proposed and E = existing development),

as viewed from Rosemary Lane. (Note the ridge height and overall massing of the secondary dwelling is mostly on par with existing elements of the main dwelling)

The two storey structure setback to Rosemary Lane (being the secondary street) is more than that of the main dwelling house on the land. The two storey structure will be forward of the front building line established by the neighbouring property to the west, 25 Rosemary Lane, by about 5m. Therefore, the two storey structure will be visible to road users, travelling east along Rosemary Lane. The visual prominence and perceived bulk of the two storey structure at this point will be ameliorated by trees that occur on western neighbouring land (Lot 122 DP 622188), landscaping proposed within the site, and decorative fencing proposed for site boundaries. Note that the trees occurring on neighbouring land (including structural root zones) shall be protected during construction, per the relevant Australian Standard, as a condition of consent.

Site coverage as a result of the development will be approximately 41%, which is within the acceptable range for residential site coverage per the third suggested solution. Note that site coverage calculations exclude hardstand areas such as driveways and paving.

In considering the above points, it is submitted that the development meets the visual bulk planning outcomes of the DCP.

PO 7.7-8 Planning Outcomes – Daylight and Sunlight

· Buildings are sited and designed to ensure:

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

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

- consideration of Council’s Energy Efficiency Code.

The recommended development standards to meet the planning outcomes include:

· the provision of sunlight to at least 40% of the main area of private open space on adjoining land and within the site being not reduced to less than 3 hours between 9am and 3pm on the winter solstice, and

· provision of 4 hours sunlight to 75% of north-facing living-area windows on adjoining land and within the site on the winter solstice.

Overshadowing within the site:

The submitted shadow diagrams demonstrate that between 9am and approximately 1pm on the winter solstice, at least 40% of the private open space for the subject site will receive sunlight. Furthermore, north-facing living-area windows within the site will not be impacted as a result of the development.

Overshadowing to 26A Rosemary Lane and 109 Clinton Street:

Shadow diagrams were submitted with the application, and these shadow diagrams were independently and manually checked by the assessing officer, in light of submitter concerns that overshadowing impacts would be greater than those alluded to in the applicant’s shadow diagrams. The independent, manual check of the shadow diagrams included 4 x sample point checks along the southern elevation of the proposed house addition and two storey garage/secondary dwelling structure. These sample checks confirmed that the applicant’s shadow diagrams are an accurate representation of the likely overshadowing impacts of the development. For reference, the shadow diagrams and manual check (working copies) are attached at the end of this report (these shadow diagrams reflect the previously submitted plans and not the amended plans. The amended plans will have a lesser impact due to the lowered height of the proposed building).

The shadow diagrams demonstrate that sunlight to living-area windows for surrounding properties (notably, 26A Rosemary Lane and 109 Clinton Street) will achieve the development standard outlined in the DCP for planning outcomes associated with solar access to dwellings. Specifically, no overshadowing to living-area windows will occur as a result of the development to either 26A Rosemary Lane or 109 Clinton Street. Of note is the fact that the development will not result in a cumulative negative impact on solar access to living-area windows for these properties, when accounting for existing overshadowing situations to living-area windows. For example, the existing (and to be retained) built-form of the dwelling on the development site overshadows the northern wall of 109 Clinton Street in the morning hours. The proposed addition to the dwelling house will result in a ridgeline lower than the existing ridgeline, and the shadow diagrams demonstrate that overshadowing to windows along this same northern wall of 109 Clinton Street will not occur.

Limited private open space area exists for 26A Rosemary Lane:

IMG_20190516_101209

Figure 7 - LEFT: aerial view with translucent parcel overlay showing 26A Rosemary Lane (red asterisk) and 109 Clinton Street (blue asterisk) relative to the subject site.

RIGHT: view to part of the frontage area of 26A Rosemary Lane,

looking south from within the subject site.

It appears that the most useable portion of outdoor area for this property occurs in the frontage to Rosemary Lane, opposite the subject site. Overshadowing to the frontage (including driveway and enclosed courtyard) of 26A Rosemary Lane will occur at 9am and through until 11am. From 11am through to 3pm, the frontage area of 26A Rosemary Lane will be totally devoid of overshadowing from the development. The existing built-form at 111 Clinton Street does not overshadow 26A Rosemary Lane, and as such, the development will not result in a cumulative negative amount of overshadowing. On this basis, the proposal meets the development standard outlined in the DCP for planning outcomes associated with solar access for outdoor areas that function as private open space.

In a similar vein, overshadowing to a portion of private open space adjoining the driveway of 109 Clinton Street will occur at 9am and through until 11am as a result of the development. From 11am through to 3pm, the private open space of this property will be totally devoid of overshadowing from the development.

It is understood that the existing (and to be retained) built-form of the dwelling on the subject site results in some overshadowing to a small portion of private open space for 109 Clinton Street. On the whole, however, more than 40% of the main private open space for 109 Clinton Street will retain solar access between the hours of 11am and 3pm.On this basis, the proposal meets the development standard outlined in the DCP for planning outcomes associated with solar access for private open space.

PO 7.7-9 Planning Outcomes – Views

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

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

Views to prominent areas, landmarks, or heritage items will not be diminished as a result of the development.

PO 7.7-10 Planning Outcomes – Visual Privacy

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

- building siting and layout

- location of windows and balconies.

and secondly by:

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

Overlooking to the subject site

The main private open space area for the subject site will occur in the centre of the lot, adjacent to the northern boundary and to the linked alfresco area. These areas are not likely to be subject to overlooking as a result of the development. Note that ‘overlooking’ between the primary dwelling and secondary dwelling is not able to be considered a privacy issue, due to the provisions and intent of the Affordable Rental Housing SEPP.

Overlooking to 113 Clinton Street

Overlooking to the north is unlikely to be an issue from the private open space area or house extension. Existing and proposed fence heights at this dividing fence will be conditioned at 1.8 to 2.2m in height. The finished floor level of the proposed house extension will be no greater than 300mm above natural ground level. It should be noted that the subject land is mostly level with the northern property and both sites slope very gradually to the west. So, the effective fence height above FFL of the dwelling extension will be 1.5 to 1.9m. This arrangement is satisfactory to prevent direct overlooking to living areas and private open space of 113 Clinton Street, when also considering setback distances between the dwellings on each site and staggered private open space locations.

The secondary dwelling on the first floor of the two storey structure will contain no windows on the northern elevation wall. Skylights are proposed for the roof of the secondary dwelling.

The positioning of the skylights will prevent overlooking to the northern neighbour at 113 Clinton Street. A small portion of the backyard of 113 Clinton Street is likely to be overlooked by the bedroom window on the eastern elevation of the secondary dwelling:

Figure 8 - overlooking diagram for secondary dwelling, using calculation parameters of

9m horizontal distance measured beyond a 45 degree angle

from the plane of the wall containing the opening

This overlooked portion will be approximately 10sqm. Bedrooms are infrequently occupied during the daytime compared to living rooms/areas of a dwelling. 113 Clinton Street contains approximately 162sqm of private open space. Accordingly, the total proportion of overlooked area will be 6.2 percent. This portion of overlooked area directly adjoins the southern boundary fence of 113 Clinton Street, and that portion appears to contain trees/shrubs that reduce overlooking exposure:

IMG_20190516_101135

Figure 9 - looking north to 113 Clinton Street from within the site.

The tree depicted appears to occur in the area of overlooked space

that will occur as a result of the development.

For the above reasons, it is not considered likely that overlooking impacts will be detrimental to the northern neighbour at 113 Clinton Street and specific privacy control measures (such as privacy screens to a window) do not need to be employed.

Overlooking to 25 Rosemary Lane

No part of the private open space area or house extension will overlook 25 Rosemary Lane.

With regard to the secondary dwelling, it is noted that Lot 122 DP 622188 appears to be used in conjunction with the dwelling house located at 25 Rosemary Lane. So, any overlooking of that Lot from the secondary dwelling (as depicted earlier in Figure 8) is considered to be an area overlooked in association with 25 Rosemary Lane.

The secondary dwelling on the first floor of the two storey structure is proposed to contain one kitchen window at the western elevation wall. The opening of the window is proposed to occur in the range of approximately 0.96-1.38m above FFL of the first floor of the secondary dwelling. This low window height range will essentially limit the opportunity for overlooking from the kitchen to 25 Rosemary Lane, as common practice for calculating overlooking includes the assumption of eye level being at around 1.5m above FFL.

The applicant has not provided any details on the types of windows that occur in the eastern and southern elevation of 25 Rosemary Lane. Mature trees occur between the secondary dwelling and the affected walls of the dwelling at 25 Rosemary Lane. However, these trees are deciduous and not sufficient on their own to mitigate any overlooking impacts that may occur.

In light of the above and in adopting a conservative approach to ensure the planning outcomes for visual privacy are met, it is considered necessary to require privacy treatments to the western elevation window as a condition of consent. The privacy treatment shall incorporate fixed angled external louvres that are designed in such a way that blocks views towards windows of dwelling at 25 Rosemary Lane.

Overlooking to southern properties

The house extension will be set back at least 7.5m from the northern property boundary of 109 Clinton Street. The finished floor level of the proposed house extension will be no greater than 300mm above natural ground level. Proposed southern boundary fencing for the subject site that coincides with southern windows in the proposed extension will be lapped and capped timber fencing at 1.8m height. No overlooking issues to 109 Clinton Street are therefore likely to arise as a result of the development.

The secondary dwelling on the first floor of the two storey structure is not proposed to include any windows in the southern elevation. No overlooking impacts are likely to occur to 26A Rosemary Lane.

PO 7.7-11 Planning Outcomes – Acoustic Privacy

· Site layout and building design:

- protect habitable rooms from excessively high levels of external noise

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

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

There will be limited openings and opportunities for transfer of noise between the secondary dwelling and surrounding properties. Further, the house extension and secondary dwelling are residential uses and as such noise generated from these uses are likely to be within community expectations for noise levels in a General Residential Zone.

PO 7.7-12 Planning Outcomes – Security

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

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

Passive surveillance from the primary dwelling to both street frontages will be achieved. Access to the secondary dwelling is proposed to occur from within the ground floor garage, and so passive surveillance from the secondary dwelling is not generally possible but nor is it warranted in this instance.

PO 7.7-14 Planning Outcomes – Circulation Design

· Accessways and parking areas are designed to manage stormwater.

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

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

Development consent will be conditioned to ensure stormwater is not a nuisance to neighbouring properties and users of Rosemary Lane.

Forward-facing vehicle movements onto Rosemary Lane are not required as a result of the development. This is because Rosemary Lane is not a major road in the road hierarchy, and the type of development proposed is not ‘multi dwelling housing’.

Landscaping is proposed and considered adequate for the site. The driveway width at site entry will not exceed 6m, and laybacks are existing.

PO 7.7-15 Planning Outcomes – Car Parking

· Parking facilities are provided, designed and located to:

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

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

· Car parking is provided with regard to the:

- number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

Sufficient onsite car parking will be available through provision of three covered car parking spaces. A Landscaping Plan has been submitted in support of the development, which helps to soften the appearance of hardstand areas.

PO 7.7-16 Planning Outcomes – Private Open Space

· Private open space is clearly defined for private use.

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

· Private open space is:

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

- accessible from a living area of the dwelling

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

- orientated to optimise year-round use.

Suggested solutions that correspond to the planning outcomes:

1 Private open space at ground level has:

- a useable area of at least equivalent to 50% of the dwelling floor space (gross) with a minimum dimension of 3m and including:

at least one area with minimum dimensions of 5m by 5m directly accessible to a living area, preferably orientated to the north or east of the dwelling.

Private open space for each dwelling located above the ground is in the form of a balcony or roof terrace with:

- convenient access from the main living area;

- a minimum area of 8m2 and a minimum dimension of 2m;

- appropriate solar access/orientation and privacy.

2. Open space is:

- located behind the main façade of the dwelling, ie, the primary front wall excluding decorative elements such as porticoes or similar;

- adjacent to dwellings; and

- is allocated to individual units where practicable to minimise the need for management and maintenance of communal open space.

- Communal open space may be appropriate for units above ground level. Communal space is provided at the same rate as for private open space above.

Gross floor area (‘GFA’) of the dwelling including extension is used with reference to the first suggested solution. The secondary dwelling floor area is not included in this calculation as this floor area is not captured by the DCP for private open space and nor is it the intention of the Affordable Rental Housing SEPP for private space requirements for secondary dwellings to be based on a per metre rate. Because of this, the second suggested solution does not apply to secondary dwellings, whether or not they occur at ground level or first floor level.

When using GFA per the LEP Dictionary definition (which excludes outdoor areas such as verandahs and alfrescos), the following break-down of square meterage applies:

Ø GFA of dwelling house and its extension = 257.18sqm

Ø Half of GFA = 128sqm

Ø Extent of proposed private open space (‘POS’) = 103.90sqm

Ø It is common practice to include alfresco areas in the calculation for POS, so this adds another 34.71sqm.

Therefore, total nominated POS for the site will be 138.61sqm, which exceeds the first suggested solution numerical standard of the DCP. Further, POS will be able to accommodate a 5m x 5m area and all POS will achieve at least minimum width of 3m. It is therefore asserted that sufficient private open space will be retained on the subject site for the primary dwelling, and shared with the secondary dwelling, and all elements of the proposal correspond to the suggested solutions for planning outcomes for private open space such that the proposal is deemed to comply with PO 7.7-16.

PO 7.7-17 Planning Outcomes – Open Space and Landscaping

See analysis under Clause 5.10 of the LEP, earlier in this report.

DCP13 Heritage

PO 13.3-1 Planning Outcomes – Heritage Development

See analysis under Clause 5.10 of the LEP, earlier in this report.

Infill Guidelines

See analysis under Clause 5.10 of the LEP, earlier in this report.

Development Contributions Plan 2017

As a result of the development, one extra 1-bedroom dwelling will be available on the site. The site occurs within the Contributions Plan area for ‘remainder of LGA’ in the Plan, i.e. not a growth area in North Orange or any other identified locality. Based on the Table for contributions, the contribution amount for the indexed period 1 September to 30 November 2019 is:

Facility	Per 1 bedroom dwelling	TOTAL
Open space and recreation	1679.68	1 x 1679.68
Community and cultural	487.12	1 x 487.12
Roads and traffic management	2473.46	1 x 2473.46
Local area facilities	-	-
Plan preparation and administration	131.52	1 x 131.52
$4,771.78

Payment of this, prior to issue of a Construction Certificate, is required.

Section 64 (under the Local Government Act 1993) Water and Sewer headwork charges may also apply.

ANY PLANNING AGREEMENT OR DRAFT PLANNING AGREEMENT s4.15(1)(a)(iiia)

No planning agreements, draft or otherwise, are known to exist in relation to the site or development.

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

Demolition of a Building (clause 92)

The proposal involves the demolition of structures. A condition is attached requiring the demolition to be carried out in accordance with AS2601 (current edition).

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

Upgrading of the building will be required to ensure the existing building is brought into partial or total conformity with the Building Code of Australia. Conditions are attached in relation to the required upgrading works.

BASIX Commitments (clause 97A)

Two BASIX Certificates have been submitted in support of the proposed development.

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

Air/odour

Dust suppression measures shall occur during construction to limit impacts.

Cumulative

Throughout this report, cumulative impacts to do with overshadowing and privacy have been at the fore. Secondary dwellings are a popular form of infill development, and cannot be refused on the grounds of inadequate car parking space availability, among other things (refer to Affordable Rental Housing SEPP). Therefore, cumulative effects with regard to traffic and on-street parking in Rosemary Lane and surrounding streets are not able to be considered in the assessment of the secondary dwelling component.

All other aspects of the development are not likely to contribute to negative cumulative impacts.

Visual/streetscape

Visual impacts and impacts to the streetscape have been addressed earlier in this report, under Clause 5.10 of the LEP and planning outcomes related to visual bulk under the DCP.

Noise

During construction, conditions will be imposed to limit hours of work. Use of the land for residential accommodation is not likely to generate unacceptable impacts to the locality.

Traffic

Development of this scale is not likely to have a significant impact on the local road network.

Impacts on surrounding properties

Impacts to surrounding properties have been considered earlier in this report under the LEP and DCP. All impacts are either within an acceptable range, or will be made to be within an acceptable range as a result of imposing conditions on the development. Other site specific concerns, as raised by some neighbouring properties, are addressed later in this report under “Any Submissions Made in Accordance with the Act” per s4.15(1)(d) of the Act later in this report.

Waste

A waste management plan will need to be submitted and implemented during construction, detailing how materials on the site will be reused or removed.

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

The site is considered suitable and able to accommodate the proposed development.

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

The proposed development is defined as "advertised development" under the provisions of the DCP.

The application was advertised for the prescribed period of 14 days, from Friday, 31 May 2019 to Friday, 14 June 2019. Exhibition included one ad in the Central Western Daily on Thursday, 30 May 2019 and neighbour notification letters being sent prior to the beginning of the exhibition period.

Follow-up letters were sent a week later during the exhibition period to reiterate that the exhibition period closes 14 June 2019, as the original neighbour notification letter stated a 14 day exhibition period applied being from “31 May 2019 to 14 May 2019”. The correct exhibition period was printed in the newspaper ad.

During the exhibition period, six (6) submissions were received. Following the close of the exhibition period, one (1) ‘supplementary’ submission was received from a previous submitter. Of the total seven (7) submissions, four (4) submissions originated from the one neighbour, being 26A Rosemary Lane.

As a result of Council’s resolution from 6 August PDC Meeting, the opportunity to make further submissions was available for previous submitters up to 20 August 2019. A key objector from 26A Rosemary Lane was given a copy of the applicant’s two-storey design changes prior to 20 August 2019. Two (2) further submissions were received from the objector at 26A Rosemary Lane on the proposed design changes to the two-storey structure.

The collated submissions raised the following planning matters/issues:

House extension – privacy issues in relation to 113 Clinton Street

The house extension is a single storey addition to the rear of the existing dwelling. Privacy issues have been addressed under the DCP planning outcomes for visual privacy. An analysis was undertaken which demonstrates that overlooking to 113 Clinton Street from the house extension is not anticipated, due to existing and proposed fence heights, finished floor levels, and relatively even ground levels between the subject site and 113 Clinton Street to the north.

Secondary dwelling – privacy issues in relation to 113 Clinton Street

The secondary dwelling will occur on the first floor of the detached structure to be located in the rear yard of the subject site. A small portion of the rear yard of 113 Clinton Street may be overlooked by the bedroom window of the secondary dwelling – refer Figure 8 earlier in this report. An analysis of this overlooking impact has been undertaken per the DCP’s planning outcomes for visual privacy. The 10sqm of overlooked portion currently contains a tree and other greenery, reducing overlooking exposure. Overlooking will occur from the bedroom window, and bedrooms are infrequently occupied during daylight hours in comparison to living rooms/areas. For these reasons, overlooking to 6.2% of the total private open space of 113 Clinton Street is considered acceptable.

House extension – overshadowing issues in relation to 109 Clinton Street

The house extension is a single storey addition to the rear of the existing dwelling. Overshadowing issues have been addressed under the DCP planning outcomes for daylight and sunlight. An analysis was undertaken which demonstrates that overshadowing to 109 Clinton Street from the house extension will be minor, due to the house extension’s ridgeline height, and the separation of the house extension from 109 Clinton Street by Rosemary Lane.

Two storey structure – overshadowing issues in relation to 26A Rosemary Lane

Shadow diagrams were submitted in support of the application, and a manual shadow diagram check was undertaken by the assessing officer. A full analysis of overshadowing was performed for the development, per the DCP planning outcomes for daylight and sunlight. To summarise, on the winter solstice – being the shortest day of the year with the longest shadows cast – no direct overshadowing will occur to living area windows of 26A Rosemary Lane on the winter solstice between the key hours of 9am and 3pm. Overshadowing will occur to the frontage area (including driveway) of 26A Rosemary Lane from 9am to 11am only. These outcomes are considered acceptable impacts, per the DCP.

Two storey structure – loss of views in relation to 26A Rosemary Lane

Submissions originating from 26A Rosemary Lane raised concerns about loss of views to the skyline and tree line to the north, as a result of the two storey structure. This is of particular importance to the submitters at this address, as they have limited to no views from within dwelling on the site to the east, south, or west. The submitter’s provided some photos from within their dwelling to the north, one of which is included in this report:

Figure 10 - views to the north from within 26A Rosemary Lane

Consideration of views from 26A Rosemary Lane to the north must balance reasonable expectations for views to prominent landmarks and scenic corridors. Views to the north from 26A Rosemary Lane do not include views to a recognised scenic corridor or recognised landmark that needs to be protected. Views up and down Rosemary Lane, and the skyline above the secondary dwelling will be maintained for 26A Rosemary Lane. Tree lines will still be able to be observed beyond the secondary dwelling and to the east and west of the secondary dwelling. Therefore, impacts to 26A Rosemary Lane views are within the acceptable range. In considering Clause 5.10 of the LEP and planning outcomes for views in the DCP, it is considered that the visual impact of the two storey structure is acceptable.

Excessive traffic in Rosemary Lane and flow on effects to Clinton Street

The use of the subject site will be for the purposes of a primary and secondary dwelling. As the primary dwelling already exists on the site, an extension to that house for the purpose of providing more living areas is not likely to impact on traffic generation along Rosemary Lane or Clinton Street. The primary dwelling will continue to contain 4 bedrooms. A three space garage is proposed as part of the development, which is considered more than adequate to service the primary dwelling.

The secondary dwelling component will comprise one bedroom, and feasibly 1-2 occupants. The definition of “secondary dwelling” does not extend to the use of a secondary dwelling for the purposes of short term holiday letting. Although this issue was not explicitly raised in written submissions, concerns have been expressed on the end-use of the secondary dwelling through phone conversations with submitters. To address this concern, an advising note is recommended in the notice of approval that outlines further consent must be sought in the event that it is proposed to use the secondary dwelling for short term holiday letting, depending on exempt and complying provisions of any environmental planning instruments.

Per the Affordable Rental Housing SEPP, dedicated car parking spaces do not need to be provided for secondary dwellings. Therefore, the traffic and on-street parking impact associated with the secondary dwelling is not able to be considered. In any event, on-street car parking would be available to visitors to the site on Clinton Street adjacent to the front yard area of the subject site.

Traffic and safety concerns

Rosemary Lane ‘bottlenecks’ at both ends to Sampson and Clinton Street. Submitters have raised concerns in relation to reverse vehicle egress onto Rosemary Lane, and the safety implications this would have on other vehicles and pedestrians.

This concern has been addressed earlier in the report per DCP planning outcomes for circulation design and LEP Clause 5.10 fencing/landscaping considerations. The ultimate recommendation is for prescribed fencing height and design in proximity of the driveway to ensure safe egress onto Rosemary Lane. Per the DCP, Council does not have the capacity to request onsite manoeuvring for forward-facing vehicle movements onto Rosemary Lane as a result of the proposed development and also when considering Rosemary Lane’s position in the road hierarchy.

During construction impacts

Dust, noise, and traffic concerns have been raised for the construction phase. Conditions of consent are recommended for dust suppression and restricted construction hours. It may be prudent to require a construction management plan be submitted prior to construction commencing, detailing traffic movements and site management matters to alleviate traffic concerns for Rosemary Lane in particular.

Inaccuracies in the planning application submitted

The supplementary submission raised issues in relation to the adequacy of the planning application submitted, particularly assertions to do with current site conditions and landscaping at the subject site. There were also concerns that the planning application erroneously referred to surrounding addresses that contain two storey structures in the locality.

Two site visits have been undertaken by the assessing officer, and the assessing officer is satisfied that although there may be some inaccuracies in the planning application supporting reports and the like, these inaccuracies do not hinder the assessment of the development proposed. For example, site visits confirmed the existing range of landscaping on the site and that some mature hedging has already been pared back along the southern boundary of the site. This work would not have required consent and as such does not materially impede the assessing officer’s assessment.

Whilst the hedges would have contributed to the streetscape of Rosemary Lane, their loss does not diminish the level of assessment that goes into analysing an area’s character and how the character may or may not change as a result of the development.

Creation of a ‘precedent’ for two storey structures

A number of submitters were concerned that by allowing a two storey structure at this location, momentum would build in the locality for more two storey structures. It is noted that a number of attic conversion and two storey additions occur in the locality and are associated with either primary or secondary dwellings.

All proposed development is considered on a case-by-case basis, and for this locality, particular scrutiny is paid to how development responds to the Heritage Conversation Area character and values.

Post-PDC 6 August Meeting submission: Alternatives to two-storey structure proposal

The further submission by the objector at 26A Rosemary Lane queries the need for the “granny flat” and why the applicant has not proposed an extra room or suite of rooms in the main dwelling house.

The planning assessment can only assess the proposal put forward by the applicant. Notwithstanding this and based on conversations with the applicant, it is understood that the applicant did not pursue further, single-storey additions to the main dwelling house due to site coverage concerns and loss of private open space/yard area, particularly where erection of a new garage was to be pursued anyway.

Post-PDC 6 August Meeting submission: Split the application into two parts

The further submission by the objector at 26A Rosemary Lane requests that the application be split into two parts, meaning separate DAs would apply to the house extension and the secondary dwelling/garage.

Again, the planning assessment can only assess the proposal put forward by the applicant. The applicant has requested the full scope of proposed development to be dealt with in one application. It is not clear what outcome would be achieved by splitting the application into two DAs, especially where the secondary dwelling/garage component in its current form complies with the Council’s DCP requirements. The splitting of the application would only serve to delay approval of the secondary dwelling/garage.

Post-PDC 6 August Meeting submission: Two-storey structure – not compliant with planning outcomes and local planning provisions

The further submissions by and on behalf of the objector at 26A Rosemary Lane assert that the two-storey structure does not meet some planning outcomes and local planning provisions, particularly in relation to visual bulk, character and appearance considerations, and private open space areas. Further, these submissions state that the proposal may alter/redirect the character of the area in an undesirable way.

Broadly, misconceptions about the “street frontage” have been addressed earlier in this report under PO 7.7-6. The two-storey structure results in only a slight encroachment (due to roof guttering) into the suggested standard visual bulk envelope. Notwithstanding this, the two-storey structure still meets the overarching planning outcome for visual bulk. Note that a proposal does need to meet the numerical suggested standard attached to a planning outcome – the numerical suggested standards are one way of meeting the planning outcome but not the only way.

See comments under clause 5.10 of the LEP and PO 7.7-1 of Chapter 7 of the DCP in relation to neighbourhood character considerations. To summarise, the proposal responds well to desired future character principles for the locality and heritage conservation area.

In relation to private open space area controls, see the breakdown of gross floor areas and private open space requirements under PO 7.7-16. To be brief, the private open space area to be maintained for the subject site will meet the suggested numerical standard under the private open space planning outcome of the DCP. This open space area will also meet solar access requirements, per PO 7.7-8.

PUBLIC INTEREST s4.15(1)(e)

On balance, approval of the proposed development is considered to be in the public interest.

The omission of reference to certain planning guidelines, policies, and SEPPs does not indicate that those documents have not been considered in this assessment; rather, this omission indicates that those documents are not relevant to the application or do not require comments to be made against them.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of the LEP, DCP, and relevant SEPPs. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. In short, it is recommended that Council supports the application. The applicant has made considered and careful design changes throughout the course of the development assessment period. The series of changes put forward by the applicant have assisted in meeting all of the planning outcomes in the DCP.

Attached is a draft Notice of Approval outlining a range of conditions considered appropriate to ensure that the development proceeds in an acceptable manner.

Attachments

1 Notice of Approval, D19/47145 ⇩

2 Plans, D19/50953 ⇩

3 Shadow Diagram + Manual Check, D19/44675 ⇩

4 Submissions- Received During Exhibition Period, D19/50974 ⇩

5 Submissions - Received After 6 August PDC Meeting, D19/50969 ⇩

Planning and Development Committee 3 September 2019

Attachment 1 Notice of Approval

ORANGE CITY COUNCIL

Development Application No DA 81/2019(1)

NA19/ Container PR2678

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

Development Application
Applicant Name:	Mr P K Bromley
Applicant Address:	111 Clinton Street ORANGE NSW 2800
Owner’s Name:	Mr P K Bromley
Land to Be Developed:	Lot 1 DP 196341 - 111 Clinton Street, Orange
Proposed Development:	Demolition of Garage, Carport, and Swimming Pool; Partial demolition and replacement of western portion of existing Dwelling House; Partial demolition and replacement of boundary fencing; New detached Garage (ground floor) with Secondary Dwelling (first floor)

Building Code of Australia building classification:	Class To be determined by Certifying Authority

Determination made under Section 4.16
Made On:	3 September 2019
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	4 September 2019
Consent to Lapse On:	4 September 2024

Terms of Approval

The reasons for the imposition of conditions are:

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

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

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

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

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

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

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

Conditions

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

(a) Plans prepared by TK Worboys Drafting & Design (Job no. 037-18) and dated 21-05-19: Site Plan, Demolition Plan, Proposed Floor Plan, and Proposed Elevations.

Plans prepared by TK Worboys Drafting & Design (Job no. 037-18) and dated 16-08-19: Proposed Secondary Dwelling and Garage.

Landscape Plan – Project no. 30G – Drawing no. L01 – Revision C – dated 23/5/19 – Drawn by OT.

BASIX Certificate no. 995752S_02 dated 21 May 2019 and BASIX Certificate no. A340753 dated 14 February 2019. (8 sheets)

(b) statements of environmental effects or other similar associated documents that form part of the approval

as amended in accordance with any conditions of this consent.

PRESCRIBED CONDITIONS

(2) Fulfilment of commitments listed in BASIX Certificates 995752S_02 and A340753 (or later amendments to those Certificates) is a prescribed condition of consent, per s97A of the Environmental Planning and Assessment Regulation 2000.

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

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

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

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

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

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

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

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

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

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

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

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

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

(7) Where any excavation work on the site extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must, at the person’s own expense:

(a) protect and support the adjoining premises from possible damage from the excavation, and

(b) where necessary, underpin the adjoining premises to prevent any such damage.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(8) Prior to the issue of a Construction Certificate, the approved plans shall be amended in the following way:

· Brick pillars proposed as part of the fencing schedule for the southern and western boundaries shall have a maximum width and depth of 300mm, and maximum height above natural ground level (stepped, if necessary) of 1.5m with intervening palisade fencing inserts not extending above the height of their respective enclosing brick pillars.

· The low brick wall element of this fencing shall not exceed 400mm above natural ground level.

· Visual permeability of the intervening palisade fencing shall be at least 75% (e.g. solid elements 30mm wide will be offset by gaps between solid elements of at least 90mm wide).

Sight distance shall be provided in accordance with AS2890.1:2004.

(9) Prior to release of a Construction Certificate, amended plans are to be submitted to the satisfaction of the Certifying Authority, demonstrating:

· Garage roller doors are to be darker in colour than the surrounding brick external walls in order to make the roller doors appear more recessive at the southern elevation.

· The lapped and capped timber fencing proposed for part of the southern boundary will be hardwood natural timber, or painted no darker than Dulux ‘Windspray’. This is required to ensure fencing is in keeping with the primary dwelling on the site and the overall Heritage Conservation Area.

· Fence toppers (timber frames and tension cables) proposed at the north-western corner of the Lot and northern boundary of the Lot will result in an overall structure height between 1.8 to 2.2 metres above natural ground level. For example, existing Colorbond fence height of 1.8m shall be accompanied by a fence topper not exceeding 400mm in height above the top of the Colorbond fence. No solid fencing element on the northern boundary shall be below 1.8m in height as measured from natural ground level. These limits are required to preserve solar access to the subject site, reduce fence bulk at side boundaries, and maintain privacy between properties.

(10) AAW04515, being the western elevation window to the kitchen of the secondary dwelling, shall be treated with fixed, angled, external louvres that are designed in such a way that blocks views towards windows of the dwelling at 25 Rosemary Lane. Details shall be submitted to the satisfaction of the Certifying Authority, prior to release of a Construction Certificate.

(11) Trees on neighbouring land – particular those in proximity to the western property boundary – shall be protected with tree protection zones and structural root zones during construction, per AS4970 (current version). Details of how this will be achieved shall be submitted to and approved by the Certifying Authority prior to release of a Construction Certificate.

(12) The payment of $4,743.31 is to be made to Council prior to release of Construction Certificate, in accordance with section 7.11 of the Act and the Orange Development Contributions Plan 2017 (Remainder LGA) towards the provision of the following public facilities:

Open Space and Recreation	1 x 1 bedroom dwelling @ $1679.68	$1679.68
Community and Cultural	1 x 1 bedroom dwelling @ $487.12	$487.12
Roads and Traffic Management Facilities	1 x 1 bedroom dwelling @ $2473.46	$2473.46
Local Area Facilities	-	-
Plan Preparation & Administration	1 x 1 bedroom dwelling @ $131.52	$131.52
TOTAL:		$4,771.78

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

(13) A Construction Management Plan shall be submitted to the satisfaction of the Certifying Authority, prior to the issue of a Construction Certificate. This is required to ensure work is undertaken safely and to minimise nuisance to the surrounding areas during all construction/works on site. This Plan shall include, where possible, provision for:

· Off-street parking for employees, contractors, sub-contractors and visitors to the site.

· Site access for construction vehicles and equipment.

· Construction Traffic Management Plan.

· Provision of sanitary amenities and ablution facilities for employees.

· Fencing and security details, including site hoardings to be provided, safeguarding both contractors and the public while works are being carried out on any public footpath areas. Contractor should endeavour to minimise disturbance to pedestrian / vehicle traffic in the vicinity of the site.

· Details of all construction-related signs.

· Method of support to any excavation adjacent to adjoining properties, or the road reserve.

(14) Payment of contributions for water, sewer and drainage works is required to be made at the contribution rate applicable at the time that the payment is made. The contributions are based on water supply headworks, sewerage headworks and stormwater for a one bedroom dwelling. A Certificate of Compliance, from Orange City Council in accordance with the Water Management Act 2000, will be issued upon payment of the contributions.

This Certificate of Compliance is to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

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

(16) The applicant is to submit to Council a waste management plan that describes the nature of wastes to be removed, the wastes to be recycled and the destination of all wastes. In addition details as to the proposed pool demolition are to be included. All wastes from the demolition and construction phases of this project are to be deposited at a licensed or approved waste disposal site.

(17) A water and soil erosion control plan is to be submitted to Orange City Council or an Accredited Certifier (Categories B1, C3, C4, C6) for approval prior to the issuing of a Construction Certificate. The control plan is to be in accordance with the Orange City Council Development and Subdivision Code and the Landcom, Managing Urban Stormwater; Soils and Construction Handbook.

(18) A new 150mm-diameter sewer junction is to be constructed from Council’s existing sewer main (located parallel to the western boundary) to serve the existing dwelling and proposed secondary dwelling. Prior to a Construction Certificate being issued plans for this sewerage system are to be submitted to and approved by Orange City Council.

The existing sewer connections located on the Clinton Street and Rosemary Lane frontages shall be capped off.

PRIOR TO WORKS COMMENCING

(19) A Construction Certificate application is required to be submitted to, and issued by Council/Accredited Certifier prior to any excavation or building works being carried out onsite.

(20) The location and depth of the sewer junction/connection to Council’s sewerage system is to be determined to ensure that adequate fall to the sewer is available.

DURING CONSTRUCTION/SITEWORKS

(21) All works are to be undertaken in accordance with outcome requirements of conditions 11, 13, 16, and 17.

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

(23) The provisions and requirements of the Orange City Council Development and Subdivision Code are to be applied to this application and all work constructed within the development is to be in accordance with that Code.

(24) All driveway and parking areas are to be sealed with bitumen, hot mix or concrete and are to be designed for all expected loading conditions (provided however that the minimum pavement depth for gravel and flush seal roadways is 200mm) and be in accordance with the Orange City Council Development and Subdivision Code.

(25) All construction/demolition work on the site is to be carried out between the hours of 7.00 am and 6.00 pm Monday to Friday inclusive, 7.00 am to 5.00 pm Saturdays and 8.00 am to 5.00 pm Sundays and Public Holidays. Written approval must be obtained from the General Manager of Orange City Council to vary these hours.

(27) Building demolition is to be carried out in accordance with Australian Standard 2601:2001 - The Demolition of Structures and the requirements of Safe Work NSW.

(28) Asbestos containing building materials must be removed in accordance with the provisions of the Work Health and Safety Act 2011 and any guidelines or Codes of Practice published by Safe Work NSW, and disposed of at a licenced landfill in accordance with the requirements of the NSW EPA.

(29) Effective dust control measures to be maintained during construction to maintain public safety/amenity and construction activities are to be restricted solely to the subject site. Note that failure to take effective action may render the developer liable to prosecution under the NSW Protection of the Environment Operations Act.

(30) If Aboriginal objects, relics, or other historical items or the like are located during development works, all works in the area of the identified object, relic or item shall cease, and the NSW Office of Environment and Heritage (OEH), and representatives from the Orange Local Aboriginal Land Council shall be notified. Where required, further archaeological investigation shall be undertaken. Development works in the area of the find(s) may recommence if and when outlined by the management strategy, developed in consultation with and approved by the OEH.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(31) No person is to use or occupy the building or alteration that is the subject of this approval without the prior issuing of an Occupation Certificate.

(32) Certification from Orange City Council is required to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate stating that all works relating to connection of the development to Council assets, works on public land, works on public roads, stormwater, sewer and water reticulation mains and footpaths have been carried out in accordance with the Orange City Council Development and Subdivision Code and the foregoing conditions.

(33) All aspects approved in relation to conditions 8, 9, and 10 shall be in place prior to release of any Occupation Certificate.

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

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

(36) All of the foregoing conditions are to be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions is to be completed prior to the issuing of an Occupation Certificate, unless stated otherwise.

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(37) Any ancillary light fittings fitted to the exterior of the building are to be shielded or mounted in a position to minimise glare to adjoining properties.

ADVISORY NOTES

(1) Further consent must be sought in the event that it is proposed to use the secondary dwelling for short term holiday letting, depending on exempt and complying provisions of any environmental planning instruments.

(2) Hydromulching should be considered in lieu of turfing during water restriction periods, to ensure that when sufficient rain is received, some groundcover will be produced. Otherwise, the developer or landowner may be liable for pollution of waterways by unfettered soil and sediment leaving the site.

Other Approvals

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

Nil

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

Nil

Right of Appeal

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

*Disclaimer - S88B of the Conveyancing Act 1919 -* Restrictions on the Use of Land:**	The applicant should note that there could be covenants in favour of persons other than Council restricting what may be built or done upon the subject land. The applicant is advised to check the position before commencing any work.

Signed:	On behalf of the consent authority ORANGE CITY COUNCIL
Signature:
Name:	PAUL JOHNSTON - MANAGER DEVELOPMENT ASSESSMENTS
Date:	4 September 2019

Planning and Development Committee 3 September 2019

Attachment 1 Draft Planning and Development Community Participation Plan 2019

Planning and Development: Community Participation Plan 2019

Draft version 22 August 2019

Contents

Foreword: Community participation in the planning system.. 4

Chapter 1: What is the Plan and how will it be used?. 5

1.1 What is the Plan and why is it being made now?. 5

1.2 In what circumstances does the Plan apply?. 5

1.3 How to use the Plan. 6

1.4 Community participation objectives. 6

Chapter 2: Strategic planning, plan-making and early engagement 8

Chapter 3: Development Applications and community views. 9

Chapter 4: Major Council activities and transparency. 10

Chapter 5: Feedback and making submissions. 10

5.1 Can I make a submission?. 10

5.2 When can I make my submission?. 10

5.3 What does my submission need to include?. 10

5.4 Before making a submission. 11

5.5 Where to send my submission?. 12

5.6 Acknowledgement of submissions received. 13

5.7 How are submissions considered?. 13

Chapter 6: Post-determination. 15

6.1 Notices of determination. 15

· Strategic planning and plan-making. 15

· Development Applications. 15

· Council activities. 15

Chapter 7: Details – Exhibition procedures and timeframes. 16

7.1 What is meant by exhibition types ‘advertised’ and ‘neighbour notified’?. 16

7.2 Advertised proposals. 18

7.3 Neighbour notified proposals. 21

7.4 Other proposals – no exhibition. 22

7.5 Timeframes – advertised and neighbour notified exhibition. 23

Questions?. 24

Links of interest 25

Glossary. 26

List of Tables

Table 1. What functions does the Plan apply to?.............................................................................. 5

Table 2. Community participation objectives and directions............................................................ 7

Table 3. Proposals – advertised exhibition...................................................................................... 19

Table 4. Proposals – neighbour notified exhibition......................................................................... 21

Table 5. Minimum exhibition timeframes....................................................................................... 23

Foreword: Community participation in the planning system

Orange City Council recognises community participation throughout the planning system is not only a civic right, but that it also delivers better planning results for the city of Orange.

Ultimately, our responsibility is to deliver on the objectives of various environmental planning documents and legislation, including the Environmental Planning and Assessment Act 1979 (‘the Act’), Orange Local Environmental Plan (‘the LEP’), Central West and Orana Regional Plan 2036, and the forthcoming Local Strategic Planning Statement. The Planning and Development: Community Participation Plan 2019 (‘the Plan’) is intended to be consistent with the principles of any in-force Community Engagement Strategy required under the Local Government Act 1993.

Lost already?

The Glossary section contains some quick definitions for terms commonly used throughout this Plan. Refer to page 26.

The planning system of NSW is shifting focus to enable more meaningful community participation earlier in the planning process. Because of this, the Plan places greater emphasis and weight on strategic planning and plan-making phases when trying to gauge community views on how land and natural resources will be used and protected into the future.

The Plan also consolidates and updates advertising and notification requirements for some types of development proposals, as previously found in Development Control Plans (‘DCPs’). Council’s policy for planning and development assessment procedures has been brought into alignment with the Plan.

In terms of engagement with the community when Council is proposing to undertake major activities or infrastructure projects, the Plan sets out when we will broadcast proposals for those types of activities, to ensure greater transparency in our role as a public authority.

The underpinning community participation objectives of the Plan can be found in Chapter 1: What is the Plan and how will it be used?. Throughout the Plan, references to the three major planning functions (strategic planning and plan-making; development assessment; and Council activities) are made. More information on these three planning functions is embedded in Chapter 1.

The level and extent of community participation will vary depending on the planning function, the scope of the proposal under consideration, and the potential impact of the decision. The Orange community is dynamic and diverse, so community participation needs to involve any individuals, groups, or businesses who are likely to be interested in or affected by planning decisions.

Why is community participation important?

· It builds community confidence in the planning system

· Community participation creates a shared sense of purpose, direction, and understanding of the need to balance environmental changes against amenity considerations

· It provides decision-makers access to community knowledge, expectations, ideas, and expertise.

Chapter 1: What is the Plan and how will it be used?

1.1 What is the Plan and why is it being made now?

The Planning and Development: Community Participation Plan 2019 is a strategic document that sets the parameters for community participation in the environmental and land-use planning framework of the Orange Local Government Area (‘LGA’).

The NSW Department of Planning, Industry & Environment (‘DPIE’) requires a Plan to be in place for each LGA and finalised by 1 December 2019, in line with the Act reforms.

The Plan must incorporate statutory community participation objectives, which we will use to guide our approach to community engagement.

1.2 In what circumstances does the Plan apply?

This Plan is a requirement of the Act (see Division 2.6 and Schedule 1) and applies to the exercise of planning functions by certain authorities. A break-down of the type of functions that the Plan applies to is delineated in Table 1:

Table 1. What functions does the Plan apply to?
Plan-making	Strategic planning is an essential aspect of Council’s planning functions, where the strategic direction for environmental planning and development is set. This involves planning for communities which integrates social, environmental, and economic considerations. Examples of this work include amendments to or the creation of the LEP, development control plans, contribution plans, specific land use strategies, and the like.
Development Applications	The Regional Planning Panel, the Council, the CEO of the Council, and delegated officers all make planning decisions on a range of developments (Development Applications). When making decisions on these developments, consideration is given to whether land use proposals are in accordance with the strategic priorities of Council, the NSW Government, relevant legislation, and the public interest. Proposals assessed may be in relation to residential, industrial/commercial, rural, and physical or social infrastructure developments. In these proposals, the planning assessment phase is just one aspect of the overall project lifecycle. At other phases of the project, separate community engagement may be undertaken by proponents/developers, or other government agencies. Note that this Plan does not apply to “Complying Development”. Complying Development provisions are administered by DPIE and these types of development are not subject to local requirements for exhibition periods, and submissions cannot be considered on proposed Complying Development.
Activities	Council is oftentimes the determining authority for its own activities which relate to Council’s role as a “public authority”, e.g. Council could be the determining authority and the proponent when undertaking works in a public park. Sometimes, these activities are of such a scale that before the works can occur, an Environmental Impact Statement (‘EIS’) is required to be prepared in accordance with DPIE requirements. These EISs are subject to scrutiny from the public, and so this Plan applies to these types of scenarios.

The Plan will be reviewed on a periodic basis to make sure it is fit for purpose. It should be noted that the Plan has been prepared with reference to current requirements in the Act and Environmental Planning and Assessment Regulation 2000 (‘the Regulation’), and that the parent requirements found in that Act and Regulation may change from time to time. We will endeavour to keep the Plan as up-to-date and relevant as possible in light of these broader, State-led changes. Nevertheless, the reader is encouraged to refer to the current legislation – please see Links of interest section of this Plan.

1.3 How to use the Plan

This Plan will be consulted by Council staff who undertake certain planning functions. The Plan is likely to help inform staff when analysing:

· What approaches should be taken in engaging the community,

· The level of emphasis that should be placed on community participation, relative to the planning function,

· At what point in time community participation is of most use to the community and to Council, and

· The method and duration of engagement and exhibition.

It is also envisaged that the Plan will be used by the community to help guide their expectations for when they are likely to be engaged – and why – in relation to certain planning functions. As a result, it is anticipated that the Plan will help community members:

· Feel empowered in understanding the different planning functions that they may be consulted on,

· Engage better and more meaningfully with the planning system,

· Understand how they can use their voice in the planning system, and

· Keep informed of the planning decisions being made in their area.

1.4 Community participation objectives

Table 2 on the following page illustrates the community participation objectives that underpin this Plan, as adapted from the Act. Some directions have been attributed to each objective.

These objectives have helped inform our approach to community engagement and will help inform future revisions of this Plan and our policy for planning and development assessment procedures, especially when analysing if our community engagement approaches are fit for purpose.

Table 2. Community participation objectives and directions
Objectives	Directions
Community participation is open and inclusive	· Encourage community participation by keeping the community informed, promoting participation opportunities, and seeking community input. · Build strong partnerships with the community. · Ensure community engagement accurately captures the relevant views of the community. · Conduct community engagement opportunities in a safe environment.
Community participation is easy	· Clearly set out the purpose of any engagement and how and when the community can participate in respect of a planning function. · Prepare information for the community that is relevant, concise, written in Plain English and easy to understand. · Use visual representations to make it easier to understand the possible impacts of a proposal. · Ensure information is accessible in order to attract input from groups who may find it difficult to participate in standard engagement activities (e.g. young and older people; people with disabilities; Aboriginal and Torres Strait Islander people; people from a culturally and linguistically diverse background).
Community participation is relevant	· Clearly establish the purpose for engagement and tailor engagement activities to match the context (e.g. location; type of application; stage of the assessment process; previous engagement undertaken), scale and nature of the proposal and its impacts, level of community interest, and community’s preference about how they would like to participate. · Adjust engagement activities (if necessary and/or appropriate) in response to community input.
Community participation is timely	· Start community engagement as early as possible (subject to proper documentation being available), and continue this engagement for an appropriate period. · Ensure the community has reasonable time to provide input on proposals.
Community participation is meaningful	· Explain how community input was taken into consideration, and ensure the response to community input is relevant and proportionate. · Give genuine and proper consideration to community input. · Keep accurate records of engagement activities and community input. · Regularly review the effectiveness of community engagement. · Integrate community input into the evaluation process. · Comply with any statutory obligations. · Protect privacy and respect confidentiality.

Chapter 2: Strategic planning, plan-making and early engagement

Council must create and implement strategic plans for the LGA, under both the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993. These plans are informed by overarching State and Federal strategic plans, policies, and legislation, Census data, spatial and temporal trends, specialist studies, and local needs and expectations. For the remainder of this Chapter and the Plan, strategic plans that are referred to do not include strategic plans required by the Local Government Act 1993.

Strategic plans set the vision for our City into the future – how we will grow and change (spatially or otherwise), what we will preserve and value, what we need to provide for our residents, what our land and resource capabilities are, and how we can use these resources responsibly…

Some proponents for creation and implementation of strategic plans are private actors. For example, amendments to the LEP can be floated by bodies other than Council, despite Council being the Planning Proposal Authority. In these instances, proponents are encouraged to look more broadly at a locality and its development and cohesion. This helps prevent “spot rezonings” and encourages precinct planning for more predictable, and less ad-hoc outcomes across the Orange LGA.

In formulating some major strategic plans and particularly when undertaking research to help inform strategic plans, early engagement with communities that are likely to be impacted now and into the future is required. This could involve:

· Neighbourhood surveys,

· Focus groups,

· Open-invite night forums,

· Creation of podcast series,

· Seeking specific feedback from community groups and organisations.

How and when these methods might be used are at the discretion of Council, and will largely depend on the scale, complexity, and nature of the strategic plan being formulated or amended. Further guidance on this matter is contained in our policy for planning and development assessment procedures.

When a strategic plan has been drafted, the plan in its entirety will be exhibited to the public and submissions will be able to be made on the draft. Because most strategic plans can be somewhat abstract, we will endeavour during the exhibition process to make available diagrams, maps, and other visual guides to aid the community in understanding the plan. Council staff will also be available to answer questions on the intent of the proposal.

For more information on exhibition procedures and timeframes, see Chapter 7: Details – Exhibition procedures and timeframes. For more information on making a submission, see Chapter 5: Feedback and making submissions.

Chapter 3: Development Applications and community views

Development Applications (‘DAs’) can be made for land-uses and development types that are ‘permissible with consent’ in an environmental planning instrument, such as Council’s LEP. For more information on this point, refer to Table 1 earlier in the Plan under Chapter 1: What is the Plan and how will it be used?.

Pre-DA community participation – the proponent’s role

We are exploring options on how to incentivise proponents to hold community consultation sessions prior to lodging DAs. This could involve a streamlined scheme – meaning that where genuine consultation with a locality has occurred before lodging a DA, that DA may be given priority status in assessment. The proponent would need to submit evidence of the method for engaging the community, and how outcomes of the consultation were considered and implemented into the development’s design.

In assessing DAs, assessing staff must have regard to underpinning land-use plans, policies, and other strategic documents. This is why the strategic planning and plan-making phase is so important in the planning process. See Chapter 2: Strategic planning, plan-making and early engagement for details on how Council hopes to enhance community participation in our strategic planning functions.

Assessment of DAs must also take into account community views, particularly those views expressed in a formal submission to Council during an exhibition phase for a Development Application. Not all DAs will be exhibited for public comment, but proposals which are likely to be of interest to the community and to nearby neighbours (mostly due to potential impacts) will usually be exhibited. Refer to Chapter 7: Details – Exhibition procedures and timeframes for guidance on the types of proposals that will be exhibited, how they will be exhibited, and for how long.

Community expectations

Where a lot of groundwork has gone into strategic plan(s), the community should have practical expectations about the types of individual development proposals that might follow from the making of those plans. If we can get the strategic planning framework right – and get as much input in this early phase as possible – we hope that resultant Development Applications will be mostly understood and accepted by the community.

In particular, our Development Control Plans are higher order plans which usually sets the criteria for individual development proposals with respect to built-form, operational matters, design, and the like. Sometimes, local planning provisions are overridden by State policies and plans.

It is important that submitters understand the planning context that applies to each and every Development Application, so that their expectations for a certain outcome are realistic and able to be communicated effectively to the assessing officer.

If you have not had the chance to have your say during the strategic planning phase, you may be more inclined to make submissions on individual DAs during their exhibition. Before making a submission on a DA, you should be familiar with what the submissions process involves – see Chapter 5: Feedback and making submissions.

Chapter 4: Major Council activities and transparency

Council, in undertaking its functions as a public authority, may from time-to-time propose to do activities or provide infrastructure that could have significant environmental impacts. More information on this point can be found under Chapter 1: What is the Plan and how will it be used?.

If an Environmental Impact Statement (‘EIS’) is required to be prepared before the activity can occur, the EIS will generally be placed on exhibition. See Chapter 7: Details – Exhibition procedures and timeframes for a break-down on what the exhibition phase involves and how long exhibition is likely to occur.

The EIS will outline what the activity is, what key environmental impacts need to be considered, the magnitude and likelihood of those impacts occurring as a result of the proposed activity, and how the activity is proposed to occur in such a way that mitigates or minimises those impacts.

The public can query, make submissions, and generally scrutinise the EIS during its exhibition. For information on how to make a submission on an EIS for Council activities, see Chapter 5: Feedback and making submissions below.

Chapter 5: Feedback and making submissions

If you have received a letter in the mail, or have become aware of a proposal through the local newspaper or Council’s website, you may wish to make a submission.

5.1 Can I make a submission?

For proposals undergoing exhibition, anyone can make comments on these proposals through a written submission addressed to the CEO of Council. We can give no assurances that submissions received for non-exhibited proposals will be considered as part of the proposal’s assessment. For a break-down of the differences between exhibition types and how things will be exhibited – or what proposals will not be exhibited – see Chapter 7: Details – Exhibition procedures and timeframes.

5.2 When can I make my submission?

The exhibition period is also the submissions period for a proposal. Any submissions received before or after this period may not necessarily be considered in the making of a decision. If early/late submissions are considered, they may not be explicitly mentioned in an assessment report.

5.3 What does my submission need to include?

Your submission must include the following:

· The reference numbers and address of the proposal to make it clear which proposal you are commenting on. These are the numbers that have prefixes such as ‘DA’ or ‘PR’ or ‘F’ in the exhibition material. The address of the subject site can be found in the exhibition material.

· A nominated contact person (you, or someone you trust). This contact person must be clearly defined with details such as NAME, POSTAL ADDRESS, TELEPHONE NUMBER, and EMAIL (if applicable). This is so Council can advise the contact person of the progress and outcome of the application.

Anonymous submissions or submissions using aliases may not be considered when assessing the proposal, as there is no accountability on the part of the submitter. Meaning that, the submitter cannot be asked for information to verify the contents of their submission nor be asked to attend a Council meeting, should a proposal end up being subject to a Council meeting.

5.4 Before making a submission

A submission may support a proposal, oppose it, request that amendments be made, or that conditions be imposed. If the matter is complex, you may engage a consultant to prepare and make a submission on your behalf. You are not obliged to lodge a submission simply because you have been alerted of a proposal as a neighbouring property owner.

Please be aware of the following before making a submission:

· In the context of making a submission, any information provided to, or collected by, Orange City Council is for the purpose of assessing a proposal.

· The information supplied to Council in a submission will be made publicly available.

· The intended recipients of the information are Council staff, the proponent, the public, and Councillors.

· The submitter’s name and general address may be made publicly available.

· Notwithstanding the above, signatures, personal contact details, personal financial information, personal medical information, photographs depicting persons, and other sensitive information will not be made publicly available.

· The making of any submission is entirely voluntary.

· The person providing the information has a right to access the information to correct any personal information supplied.

· The submission will be placed in Council’s file and a redacted version may appear on Council’s website during the consideration of the proposal.

· Council’s file on the proposal may be accessed by any person, subject to an information request being received and agreed to by Council.

· Comments of an abusive or offensive nature should be avoided.

Other parties may view comments within a submission as potentially offensive, slanderous, libellous, or defamatory. In this regard:

· The views expressed in submissions remain those of the submitter only and do not reflect the views or position of Council, or of any Councillor, staff member, or contractor.

· Submitters should not rely upon Council’s redaction procedures.

· Council accepts no liability for, or responsibility to defend or protect the authors of, submissions in respect of any legal proceedings that may arise from the publication of submissions.

If in doubt, ask a friend or advisor to review your comments before making a submission.

If you decide to make a submission and object to the proposal, the reasons for your objection must be included in your submission. Your reasons should be based on planning matters relating to the impact on your amenity and environmental outcomes, and not irrelevant considerations. Council acknowledges that there may be peripheral concerns from neighbours to do with a proposal, but assessing officers are limited to considering ‘planning matters’. For example, speculation on devaluation of property or private market fluctuations are not relevant planning matters; however, concerns about noise, visual privacy, view loss or other environmental impacts are relevant planning matters and if raised in your submission, can be considered by assessing officers.

What are ‘planning matters’?

Council’s LEP sets the legislative framework for a lot of land use objectives and development standards. More fine-grain planning outcomes for particular types of development are contained in our Development Control Plans. If a proposal is also relying on the provisions of a State Environmental Planning Policy to justify the proposal, certain objectives and development standards in those State policies may override local plans and policies.

It is important to read the proponent’s own planning report for cues as to what is a ‘planning matter’ that you can comment on. The following are all examples of planning matters, and using these topics to guide your submission is recommended:

· Air/odour impacts

· Biodiversity/ecological impacts

· Land/soil suitability and capability

· Noise/vibration impacts

· Privacy impacts

· Solar access impacts

· Traffic impacts

· Visual/streetscape impacts

· Waste impacts

· Water (surface and ground) impacts.

What are not ‘planning matters’?

Anyone wishing to make a submission on a proposal should be familiar with what is/is not a planning matter. The following are not planning matters, and cannot be given weight by assessing officers in their decision-making role:

· Speculation on devaluation of property or private market fluctuations

· Character assessments of the developer, future neighbours, or anyone else

· Hearsay as to what other neighbours would or would not be concerned about

· Assumed bad faith or non-compliance with road rules or other laws.

5.5 Where to send my submission?

There are three ways you can send your submission in to Council:

1. Mail a copy of your written submission to:

CEO/General Manager

Orange City Council

PO Box 35

ORANGE NSW 2800

2. Bring a printed version of your written submission to the Customer Service Counter at 135 Byng Street (being the corner of Byng Street and Lords Place, opposite Robertson Park), Orange, with “Attention: CEO or General Manager” included in the title of the submission.

3. Email a copy of your written submission to council@orange.nsw.gov.au, making sure to quote the reference number for the proposal and “Attention: CEO or General Manager” in the subject heading or in the title of the submission attachment.

Engagement with Councillors

Correspondence with Councillors or other elected representatives regarding your concerns on a proposal is not a submission. This is because Councillors are not required to forward correspondence to the assessing officer and may have a variety of reasons for opting not to.

Note that if a submission is not received in any of the above three (3) modes, the submission is not considered a formal, written submission for the purposes of the Act and may not be taken into consideration in the assessment of a proposal. In particular, ‘make a comment’ or ‘leave a reply’ functions on Council’s website or on Council’s social media platforms such as Facebook page do not constitute formal, written submissions for the purposes of the Act.

How far away are we from accepting submissions online?

We are exploring ways to receive online submissions, such as through Council’s website or the NSW Planning Portal. Setting up online receipt of submissions will be subject to an endorsed works program, and budget/staffing allocations. Until then, however, submissions can only be made in the above modes.

5.6 Acknowledgement of submissions received

Council will confirm submissions have been received at the end of the exhibition period, by sending out an acknowledgement letter to the nominated contact person (submitter). If you are a signatory to a petition, but not the nominated contact person, you will not receive an acknowledgement letter.

The acknowledgement letter will not express any opinion on either the submission or the subject proposal. If further clarification is sought from a submitter on the content of their submission, the assessing officer will be in touch separately.

5.7 How are submissions considered?

Council must balance several heads of consideration when making a planning decision. One of these heads of consideration is the need to consider submissions received in relation to a proposal. As noted earlier in this Chapter, there is a distinction between relevant and irrelevant issues which may be raised in submissions. Assessing officers’ will turn their mind to and give greater consideration to relevant issues raised in submissions.

The number of submissions (or number of signatures attached to a submission) received in response to a proposal has no bearing on the outcome of the application. Rather, the quality and content of individual submissions will be considered.

Petitions and duplicate submissions

Adding a signature to a petition does not fortify the status of a submission. For example, a petition with pre-amble outlining only 3 planning issues, will be considered 1 submission containing 3 planning issues, regardless of the number of signatures attached.

Copy and paste submission letters outlining the same 2 planning issues will be considered duplicate submissions with duplicate planning issues. We will consider the merits and significance of the planning issues raised with the same regard, no matter how many duplications exist.

The content, individual perspective, and scope of planning issues raised in submissions will be what the assessing officers’ turn their mind to in considering submissions. Therefore, different perspectives on the same issue are more likely to benefit the assessment process than duplication of the same perspective.

In the case of strategic planning and plan-making functions, if many and varied issues are raised through submissions, further consultation through working groups or forums may occur. The proposed plan may be revised, amended, postponed, or made as is, depending on the outcome of any further community consultation and the recommendations of Councillors through a Council meeting and any relevant advice from DPIE. Submitters may be invited to speak or make representations at a Council meeting (usually Council’s Planning & Development Committee meeting), prior to determining whether or not the plan should be finalised.

For Development Applications, if relevant issues are raised through submissions and those issues have merit that could reasonably be negotiated with the proponent, Council will act as neutral negotiator in an attempt to resolve issues or to find a compromise prior to recommending any sort of determination on the proposal. In some circumstances and as outlined in our policy for planning and development assessment procedures, we may offer to undertake formal mediation sessions with interested parties and the proponent.

Where many and varied relevant issues are raised through submissions – and negotiation has been exhausted – the proposal will be assessed and either determined by the General Manager under delegation or referred to Council depending upon the issues (usually Council’s Planning & Development Committee meeting) for determination by the Councillors. If the matter is to be determined by Council’s Planning and Development Committee the determination recommendation could be either ‘approval’ or ‘refusal’, depending on other factors, such as whether or not the proposal as a whole complies with the legislation, strategic plans, and policies.

Objecting to proposals

Community expectations should be realistic when objecting to proposals. If you make a submission on a proposal objecting to it in principle, this position needs to be clearly articulated why – see earlier points about “community expectations” (page 9) and “what are/are not planning matters” (page 12).

We encourage submitters to identify what their ideal result would be in relation to a proposal, but to also list other acceptable middle-ground results in case their ideal result cannot eventuate.

In the case of Council activities that are subject to advertisement (e.g. where an EIS is required), if many and varied issues are raised through submissions, the proposed activity may be revised, amended, postponed, or sent to a separate determining authority for their consideration.

Chapter 6: Post-determination

Following a determination being made on a proposal, several different parties will be notified. Detailed post-determination notification to submitters will take place when proposals have attracted submissions during their exhibition.

6.1 Notices of determination

Strategic planning and plan-making

If Council determines that a plan should be made/amended, submitters will be advised in writing by letter that the plan has been made/amended.

In most circumstances, a media release will accompany the making of a plan or an amendment to a plan and these releases will be uploaded to https://www.orange.nsw.gov.au/category/media-releases/ or, for matters relating specifically to the LEP, updates will be posted to https://www.orange.nsw.gov.au/planning-directions-and-policies/local-environmental-plan/ .

Development Applications

Broadly, all DAs that have been determined will be listed as a monthly summary in a local newspaper. A ‘notice of determination’ will be sent to the proponent, as well as any submitters that commented on the DA. This notice will be sent to submitters in writing by letter.

The notice of determination will also be uploaded to the NSW Planning Portal website, which can be accessed by anyone through https://www.planningportal.nsw.gov.au/ or, if uploads to the Planning Portal is not available, the notice of determination will be uploaded to Council’s own website. See Links of Interest later in this Plan.

The notice of determination will set out:

· The result of the determination

· The reason for the determination (also known as ‘Statement of Reasons’)

· The reason for imposition of conditions (if the determination is an approval).

The Statement of Reasons will detail how community views were taken into account in making the decision, as well as touching on the statutory requirements that applied to making the decision.

Council activities

If Council determines that an activity – being an activity subject to an EIS – should be undertaken, submitters will be advised in writing by letter that the activity will be undertaken. Public notice of the determination must also occur, and that notice must include:

· The result of the determination

· The reason for the determination (also known as ‘Statement of Reasons’)

· The reason for imposition of conditions (if any apply).

The Statement of Reasons will detail how community views were taken into account in making the decision, as well as touching on the statutory requirements that applied to making the decision.

In most circumstances, public notice will occur by way of a media release through Council’s website https://www.orange.nsw.gov.au/category/media-releases/ .

Chapter 7: Details – Exhibition procedures and timeframes

We encourage open, inclusive, easy, relevant, timely, and meaningful opportunities for community participation in the planning system. Proponents for development are encouraged to carry out their own consultation with the community, prior to lodging a development application, as recommended by Division 2.6 of the Act – see comments under Chapter 3: Development Applications and community views.

The most common method for involving the community in the planning system is through inviting feedback on proposals during exhibition periods for:

· the preparation of a strategy or plan, such as an amendment to the LEP,

· the assessment phase of Development Applications, and

· the determination of certain Council activities.

The community will be invited to view documents and plans associated with proposals that are on exhibition. If clarification is needed on any of the exhibited material, Council staff will be available to answer enquiries in a prompt manner, usually face-to-face, over the phone, or by email. It should be noted, however, that Council staff are not proponents and so will not defend/advocate the proposal.

By routinely applying the below exhibition approaches for ‘advertised’ and ‘neighbour notified’ proposals, there can be acknowledgement that a process was fair with proper and genuine consideration given to community views and concerns, even where there may not be community-wide consensus on a decision or outcomes.

Safety

To achieve the best planning results, Council must ensure everyone can participate in a safe and open manner. All community members, stakeholders, and our staff have the right to participate in a respectful environment and behave in a manner that supports everyone’s right to present their point of view.

7.1 What is meant by exhibition types ‘advertised’ and ‘neighbour notified’?

The two key exhibition streams for proposals are advertisement, and neighbour notification. For advertised proposals, details will be:

· Advertised in a local newspaper of the region,

· Included in letters sent out to properties adjoining or forming the land to which the proposal relates (copies of the proposal documents themselves will not be included in the letter),

· Available online through Council’s website, meaning plans and supporting material will be uploaded to www.orange.nsw.gov.au/development-applications-in-progress/development-applications-on-exhibition/ and

· Available in hard copy for viewing at the Civic Administration Building located at 135 Byng Street, Orange (being the corner of Byng Street and Lords Place, opposite Robertson Park).

Social media coverage

Council’s Communications Team may, from time-to-time, broadcast proposals of interest through social media channels, such as Council’s Facebook page. This type of broadcasting does not mean that a proposal is ‘advertised’ in accordance with this Plan. Whilst social media has developed to be a significant communication platform in society, please be aware that commenting on social media posts is not an acceptable format for making a formal, written submission. Comments on a social media post are just that – social commentary. If you would like to make a formal submission to Council on a proposal so that it comes to the attention of the CEO, please see Chapter 5: Feedback and making submissions earlier in this Plan.

The other exhibition mechanism for engaging the community is discretionary neighbour notification of proposals by Council. This approach is used mostly for some types of Development Applications.

Neighbour notification of proposals is considered discretionary, as adjoining and adjacent neighbours of a proposed development may be alerted by a letter or other written notification that a proposal is with Council for assessment. More clarification on when this discretion will be exercised is contained later in this Chapter under section 7.3 Neighbour notified proposals.

Neighbour notification involves the following elements:

· Letters being sent out to properties adjoining or forming the land to which the proposal relates (copies of the proposal documents themselves will not be included in the letter),

· Proposal documents being available online through Council’s website, meaning plans and supporting material will be uploaded to www.orange.nsw.gov.au/development-applications-in-progress/development-applications-on-exhibition/ and

· Ability to view proposal documents in hard copy at the Civic Administration Building located at 135 Byng Street, Orange (being the corner of Byng Street and Lords Place, opposite Robertson Park).

For neighbour notified proposals, the details of the proposal will not be advertised in a local newspaper.

Which neighbours are notified?

In undertaking discretionary neighbour notification, only those properties that adjoin or form the site to which the proposal relates will receive a written notification of the proposal during the exhibition period. This includes any properties that would adjoin the site, if it were not for an intervening road, creek, or the like.

Neighbour notification letters – for both ‘advertised’ and ‘neighbour notified’ proposals – will only be sent to the postal address that Council has for the identified property, i.e. wherever the rates notice for the property are sent to is where neighbour notification letters will also be sent.

Inherent to the exhibition phase is the ability for anyone to make a submission on the proposal. More information on how to make a submission is contained under Chapter 5: Feedback and making submissions.

7.2 Advertised proposals

Table 3 on the following page describes the types of proposals that will routinely be advertised. The rationale for inclusion of certain types of proposals in the below Table is embedded in public interest principles, i.e:

· What would broadly be of interest to the community?

· What types of proposals would have a notable impact on the dynamics of the local economy, environment, or social fabric?

· Is advertisement in the public interest, when considering the need to balance timely decision-making and planning outcomes against the ability for the community to have their say?

Council reserves the right to advertise any other type of proposal, even if the proposal is not listed in Table 3. The decision to do this would be based on the scale and nature of the proposal, and whether it is our view that it serves the public interest to advertise the proposal.

Please note that Table 3 has been compiled mostly using definitions found in the LEP Dictionary.

Table 3. Proposals – advertised exhibition
Occurring in all land zones	Occurring in residential land zones only	Heritage (all zones)
**Consent sought for the purposes of:***
Airstrip Air transport facility Attached dwelling Backpacker’s accommodation Boarding house Caravan park Correctional centre Development in relation to clause 4.6 of the LEP, where variation from a standard exceeds 10% Development in relation to ‘existing use rights’ Eco-tourist facility Educational establishment Extractive industry Freight transport facility Group home Health services facility Helipad Hostel Hotel or motel accommodation Mine/Mining Multi dwelling housing Place of public worship Recreation facility (major) Residential flat building Seniors housing Sex services premises Torrens subdivision which would create three or more additional lots than what has been planned for, per a prior endorsed subdivision concept plan (in a DCP)	Camping ground Centre-based child care facility Community facility Crematorium Emergency services facility Entertainment facility Function centre Information and education facility Neighbourhood supermarket Oyster aquaculture Pond-based aquaculture Recreation facility (indoor) Recreation facility (outdoor) Respite day care centre Shop top housing Tank-based aquaculture Veterinary hospital	Advertising structure (not building or business identification signage) in/on heritage item or heritage conservation area Conservation works which would otherwise be prohibited (clause 5.10(10) of LEP) Demolition (whole or part) of a building or object, and that building or object contributes to the significance of a heritage item Tree removal for tree that is or forms part of a heritage item, being a tree of significance or with trunk diameter greater than 300mm at breast height
Modifications to consent, made under s4.55(2) or s4.56 of the EP&A Act, are to be exhibited in the same manner that the original development application was exhibited.
*Generally excludes consent sought for modest alterations/additions or other works to an already approved land use, except in the case of development relating to ‘existing use rights’.

There may be other types of proposals that need to be advertised, per overarching legislation that we do not administer. Council wishes to advise that legislation is dynamic, and the requirements for exhibition/advertising are dynamic. That is to say, the below list is indicative of the types of proposals that – at the time of writing – would be required to be advertised:

· Designated development. The method of exhibiting designated development is contained in the Act and Regulation. Broadly, more in-depth reports from the proponent must accompany a Development Application of this type and these reports are subject to public scrutiny.

· Nominated integrated development. This refers to certain development types that require other approvals under different Acts or from different government bodies. In particular, some approvals that need to be obtained under the Heritage Act 1977, the Water Management Act 2000, and the Protection of the Environment Operations Act 1997 are considered ‘nominated integrated development’.

· Threatened species development. This is development which is likely to significantly affect threatened species under the Biodiversity Conservation Act 2016 or Fisheries Management Act 1994. Broadly, more in-depth reports from the proponent must accompany a Development Application of this type and these reports are subject to public scrutiny.

· Other ‘advertised development’ as nominated in a State Environmental Planning Policy. The relevant State Environmental Planning Policy will generally set the parameters for exhibition of those types of development.

· Strategic Plans to be made or amended, such as:

Ø the LEP,

Ø contributions plans,

Ø DCPs,

Ø the Local Strategic Planning Statement, and

Ø the Community Participation Plan (this Plan).

· Certain public authority (Council) activities which require an Environmental Impact Statement (EIS) to be prepared in accordance with Part 5 activities under the Act. The method of exhibiting an EIS is contained in the Act and Regulation. Broadly, EISs are in-depth reports from the proponent that must accompany a proposal, and these reports are subject to public scrutiny.

The Local Government Act 1993 governs how other types of proposals and plans will be exhibited – such as Community Strategic Plans, Delivery and Operational plans, Annual Budgets, Plans of Management (for community land), and so on. To avoid confusion, it is a recognised action for future versions of the Planning and Development: Community Participation Plan to be merged with a Community Engagement Strategy required under the Local Government Act 1993.

Information on exhibition timeframes for the public to view proposals and make submissions is contained under section 7.5 Timeframes – advertised and neighbour notification exhibition of this Chapter.

7.3 Neighbour notified proposals

When considering public interest principles and community participation objectives, the types of development applications that will routinely be neighbour notified are per Table 4 below.

Table 4. Proposals – neighbour notified exhibition
Occurring in all land zones	Occurring in residential land zones only	Heritage (all zones)
**Consent sought for the purposes of:***
Artisan food and drink industry Cellar door premises Dual occupancy, whether or not subdivision will occur first and result in two dwellings being located on separate lots Exhibition home Exhibition village Highway service centre Innominate use Plant nursery Pub Recreation area Registered club Restricted premises Semi-detached dwelling Service station Small bar Temporary use of land, if the use would ordinarily be prohibited on that land	Bed and breakfast accommodation Environmental facility Home business Home industries Home occupation (sex services) Kiosk Neighbourhood shop Secondary dwelling Serviced apartments Short-term rental accommodation**	Building identification sign in/on heritage item Business identification sign in/on heritage item Demolition (whole) of a building or object, and that building or object contributes positively to a heritage conservation area Major alterations/additions to a heritage item or building in a heritage conservation area Tree removal in a heritage conservation area, being a tree with trunk diameter greater than 300mm at breast height
Modifications to consent, made under s4.55(2) or s4.56 of the EP&A Act, are to be exhibited in the same manner that the original development application was exhibited.
*Generally excludes consent sought for modest alterations/additions or other works to an already approved land use.
**Refer to DPIE proposed new land-use definition through the NSW Planning Portal.

Other types of development applications could be neighbour notified, depending on the assessing officer’s initial view as to the potential impacts of the development. When Council staff are considering whether or not to neighbour notify a proposal during the assessment phase, the following factors are likely to be considered:

· Is the proposed development ‘out of character’ for the neighbourhood?

· Is the proposed development inconsistent to a notable degree with local plans, such as the LEP or Development Control Plans? In particular, would there be issues in terms of privacy, overshadowing, visual bulk, noise, traffic generation, or other environmental matters that neighbouring properties are likely to want advanced notice on?

· Is it anticipated that the development would require the enforcement of stringent conditions and restrictions, in order to mitigate impacts that would otherwise be likely to occur as a result of the development?

· Is it in the public interest to notify the development, when balancing the likely impacts of the development against timely decision-making obligations under the Act?

Council may elect to elevate a proposal’s exhibition status from simply being “neighbour notified” to “advertised development”. The decision to do this would be based on the scale and nature of the proposal, and whether it is our view that it serves the public interest to advertise the proposal instead of simply undertaking neighbour notification.

Information on exhibition timeframes for the public to view proposals and make submissions is contained under 7.5 Timeframes – advertised and neighbour notified exhibition.

7.4 Other proposals – no exhibition

Proposals that fall out of the above two categories will generally not be exhibited for public comment. These proposals will be assessed by staff, having regard to statutory assessment requirements.

Did you know…?

Council lists all of its incoming Development Applications as a weekly summary in a local newspaper (excluding “advertised” and “designated” Development Applications that will be formally advertised at a later time). Also, you can do a status search through our website of applications lodged, under assessment, or determined for particular properties, using the DA Tracking Portal: https://www.orange.nsw.gov.au/lodging-a-development-application/track-your-da/

Council staff are available during office hours to help clarify the details of any type of proposal. Contact details are contained under the Questions? section of this Plan.

7.5 Timeframes – advertised and neighbour notified exhibition

Mandatory minimum timeframes for certain proposals are contained in Schedule 1 of the Act. There may be other mandatory minimum timeframes in the Regulation and State Environmental Planning Policies.

We will always exhibit a proposal in accordance with mandatory minimum timeframes, but may elect to extend exhibition timeframes beyond the mandatory minimum when having regard to public interest principles and Council’s policy for planning and development assessment procedures.

Table 5 highlights the minimum exhibition timeframes as formulated by Council or otherwise in accordance with the Act and Regulation (current at the time of writing). This Table does not reference any State Environmental Planning Policies, some of which may include their own minimum requirements for exhibition.

Table 5. Minimum exhibition timeframes
Plan-making
Draft community participation plan	28 days
Draft local strategic planning statement	28 days
Planning proposals for Local Environmental Plan (amendments or new LEP), subject to a Gateway Determination	28 days, or any other period specified in the Gateway Determination
Re-exhibition of any of the above, which is required due to substantial changes being put forward in revised plans/documents received during the processing phase	14 days
Development Applications
Development Application, being advertised	14 days
Development Application, being neighbour notified	14 days
Development Application, being designated development	28 days
Development Application, being nominated integrated development	28 days
Threatened species development	28 days
Modification of a Development Application, made under s4.55(2) or s4.56 of the EP&A Act	However long the original development application was exhibited for, but not exceeding 14 days
Re-exhibition of any of the above, which is required due to substantial changes being put forward in revised plans/documents received during the assessment phase	14 days
Activities
Environment Impact Statement (including a Fauna Impact Statement, or Species Impact Statement) pursuant to Part 5 activities under the EP&A Act	28 days

Key points to note about exhibition include the following:

· The exhibition dates will be outlined in the local newspaper ad (for advertised proposals) and in neighbour notification letters. The closing time for an exhibition period will always be “close of business (5pm)”

· Timeframes are in calendar days and include weekends and public holidays

· The exhibition period will always be due to close on a weekday

· If the closing day is a weekday but that weekday is a public holiday, Council may extend the exhibition period to finish on the first available work day

· The period between 20 December and 10 January (inclusive) is not included in the calculation of a period of public exhibition. This means that extra days (at least 22 calendar days) will be added to the exhibition period if a proposal is exhibited at any point during the Christmas/New Year phase of 20 December to 10 January

· All exhibited material will exclude sensitive or private information, such as floor plans for residential accommodation, and proponent details such as phone numbers and signatures

· Determination of plans, applications, or activities will not be finalised until after the exhibition period has closed, and all relevant submissions have been considered, per statutory obligations.

There may be other aspects of exhibition that are not touched on in the above dot points. In this regard, the reader is encouraged to refer to the current legislation – please see the Links of interest section of this Plan.

Questions?

If you have questions regarding anything to do with the Planning and Development: Community Participation Plan 2019, please contact Council through any of the following channels:

Phone: 02 6393 8000

Email: council@orange.nsw.gov.au

Street address: Civic Centre

135 Byng Street

Orange NSW 2800

In person: Customer Service, 9am to 5pm, Monday to Friday

Postal address: Orange City Council

PO Box 35

Orange NSW 2800

Website: https://www.orange.nsw.gov.au/contact/

Links of interest

Throughout this Plan, reference is made to legislation and webpages. These resources can be found through the following links, or by typing into a search engine some key words:

‘Environmental Planning and Assessment Act 1979’
https://www.legislation.nsw.gov.au/#/view/act/1979/203/full

‘Environmental Planning and Assessment Regulation 2000’ https://www.legislation.nsw.gov.au/#/view/regulation/2000/557/full

‘Local Government Act 1993’
https://www.legislation.nsw.gov.au/#/view/act/1993/30/full

‘Orange Local Environmental Plan’
https://www.legislation.nsw.gov.au/#/view/EPI/2012/55/full

‘Orange Development Control Plans’
https://www.orange.nsw.gov.au/planning-directions-and-policies/development-control-plan/

‘Orange City Council Development Applications tracking’
https://www.orange.nsw.gov.au/lodging-a-development-application/track-your-da/

‘Orange City Council LEP updates’
https://www.orange.nsw.gov.au/planning-directions-and-policies/local-environmental-plan/

‘Orange City Council media releases’
https://www.orange.nsw.gov.au/category/media-releases/

‘NSW Planning Portal’
https://www.planningportal.nsw.gov.au/

‘Central West and Orana Regional Plan 2036’
https://www.planning.nsw.gov.au/Plans-for-your-area/Regional-Plans/Central-West-and-Orana/Plan

Glossary

Complying Development. Some types of development which require consent are not subject to a merits assessment, provided they meet a pre-determined checklist which is usually set by NSW Department of Planning, Industry & Environment in State Environmental Planning Policies. Private certifiers or Council can verify that development is Complying Development.

Contribution plans. Plans developed by councils for the purpose of gaining financial contributions from new development towards the cost of new and upgraded public amenities and/or services required to accommodate the new development.

Designated development. Proposed development that – due to its scale, nature, or likely impacts – will require a higher standard of reporting to be undertaken by a proponent, in accordance with Secretarial requirements of the NSW Department of Planning, Industry & Environment (see ‘Environmental Impact Statement’ below).

Determining authority. When Council proposes to undertake an activity as a public authority, it may also be the determining authority. The determining authority could be another government agency, however, such as NSW Office of Environment and Heritage, depending on the type of the activity and associated impacts.

Development Application. When a land-use or development requires consent under the Act (and its associated environmental planning instruments), one way to obtain this consent is through lodging a Development Application. The Development Application is assessed on its merits and considered against any statutory assessment requirements.

Development control plans (‘DCP’). These are plans that provide detailed planning and design guidelines to support the planning controls and objectives in a Local Environmental Plan.

Environmental Impact Statement. A statement prepared for a proposal, where the statement must meet Secretarial requirements of the NSW Department of Planning, Industry & Environment

Environmental Planning and Assessment Act 1979. The principal piece of legislation within which all planning functions exist. Referred to as ‘the Act’ throughout this Plan.

Local Environmental Plan (‘LEP’). This is an environmental planning instrument development by councils. An LEP sets the planning framework for a Local Government Area.

Local Government Act 1993. This Act oversees how councils operate and what their obligations are, as a local government agency. Community engagement principles for certain council functions are stipulated in that Act and its regulations.

Planning proposal authority. Councils are generally the planning proposal authority wherever changes/amendments are being sought to the LEP.

Proponent. The applicant or person/group facilitating the plan to be made, development to be undertaken, or activity to be completed.

Proposal. Generally, wherever ‘proposal’ is used throughout this Plan, reference is being made to a plan-making proposal, development proposal, or activity proposal. See Table 1 for a break-down of these planning functions.

Public authority. Council, in some of its functions, is a public authority.

TABLE OF CONTENTS

Contents

1 INTRODUCTION.. 3

2 THE PLANNING AND DEVELOPMENT SYSTEM... 3

2.1 Introduction. 3

2.2 The System.. 3

3 PREPARING PLANS. 4

3.1 Strategic Plans. 4

3.2 Statutory Plan Making. 6

3.3 Delegations. 7

3.4 Guidelines. 7

4 DEVELOPMENT ASSESSMENT. 8

4.1 Issues. 8

4.2 Development System.. 8

4.3 Assessment System.. 9

4.4 Pre-Application Guidance. 9

4.4.1 .. Pre-lodgement consultation with the community. 9

4.5 Heritage Advisor. 10

4.6 Lobbying/Preliminary Meetings etc. 10

4.7 Lodgement 11

4.8 Exhibition of development applications. 12

4.9 Application Evaluation. 13

4.10 Delegations - Decision Making. 15

4.11 Determination of Applications. 19

5 COMPLAINT HANDLING PROCEDURES. 20

1 INTRODUCTION

This document is provided in accordance with Council’s obligation under the Local Government Act (LG Act) to inform the community of its operations. Council acknowledges that frustration may arise from both prospective developers and affected community members where misunderstanding of the system occurs. There is a need to provide clear information about the complex planning system. Transparency and accountability in the decision making process is a commonly expressed objective.

Orange City Council undertakes to apply the following procedures and protocols when implementing its planning and development responsibilities derived from the Environmental Planning and Assessment Act 1979 (EP&A Act). The declaration includes complaint-handling procedures in the event that unreasonable non-compliance with procedures is alleged.

2 THE PLANNING AND DEVELOPMENT SYSTEM

2.1 Introduction

Development in NSW is principally regulated through two related documents prepared for each Council area - Local Environmental Plans (LEPs) and Development Control Plans (DCPs). LEPs govern the types of development that are permissible or prohibited in different parts of the City, and also provided some assessment criteria in specific circumstances. DCPs provide detail on design requirements and particular issues that need to be addressed.

A number of overlapping and sometimes complicated planning controls at a State level also apply.

This document seeks to outline the Council commitments to the community in carrying out proper planning assessment of development proposals.

Planning is essentially about the quality of life and the environment in which we live, work and play. Planning is about deciding, or helping elected representatives make decisions on the best use of resources, including land and natural resources, to maximise amenity for all people. It is also about protecting, and where possible, enhancing the biophysical environment (Development Assessment Forum: Agreed Principles of Leading Practice).

2.2 The System

The planning system comprises the following main elements listed generally in sequence from developing a planning framework, to assessing a specific development within that planning framework, and finally certifying that the development is constructed to the required standard:

· Broad-based strategic planning involving strategies, studies and plans (structure plans or master plans) that give direction to policy but which may not be subject to statutory procedures.

· Statutory planning establishes development controls over specific areas and provides the legal framework for the way development proposals are assessed. Statutory planning affects private development rights for the public good. Development controls in plans are the primary means of implementing strategic planning objectives.

· Development assessment involves the practical implementation of the statutory planning system whereby an organisation is given responsibility through legislation to assess and determine applications in accordance with established criteria.

· Certification (for building approvals or subdivision releases) provides a mechanism for determining that particular works carried out in accordance with a consent or criteria established under the statutory planning system meet approved standards.

The detail of the investigation increases as the process moves from strategic planning to assessment and certification. Therefore, issues may arise or more information may need to be sought as a proposal moves through the planning process.

A statutory plan may vary in some respects from strategic planning following consultation, but a development application must be consistent with the relevant statutory plan.

3 PREPARING PLANS

Council acknowledges that the purpose of local planning in Orange is to provide quality, sustainable environmental outcomes which are consistently applied through transparent and accountable decision making, and which provide for appropriate community involvement.

3.1 Strategic Plans

Strategic planning at its simplest can be described as a planning process comprising three main elements: “survey – analysis – plan”. This simple description relates to the collection of information (which may include detailed environmental investigations), analysis of the information to determine development options and the creation of planning policy consistent with the analysed information. Each phase may involve community consultation and liaison with government agencies with specific planning and environmental responsibilities.

Strategic planning in this case may include the preparation of an environmental study which may be required under the Act, and as such has some statutory elements too. The EP&A Act requires that an environmental study be prepared for Local Environmental Plans (LEPs). LEPs, however, may be prepared on the basis of former environmental studies, and accordingly a new environmental study may not be required for each new plan.

In formulating some strategic plans and particularly when undertaking research to help inform strategic plans, early engagement with communities that are likely to be impacted now and into the future is required. This means, where necessary, seeking community views on major strategic planning initiatives prior to a draft strategic plan being placed on exhibition. Per Council’s endorsed Planning and Development: Community Participation Plan (‘PDCPP’), the following combination of methods will be drawn from for early engagement:

• Community surveys,

• Focus groups,

• Open-invite night forums,

• Creation of podcast series,

• Seeking specific feedback from community groups and organisations.

A combination of the above methods will be used, dependent on the type of strategic plan being formulated and the resources available to Council. How and when these methods should be implemented are described below:

a) For community surveys, affected community members should be posted surveys in the mail or invited to partake in online surveys. The ability to fill out surveys should occur over a reasonable time period (i.e. 14 to 28 calendar days). Outcomes of the surveys will be considered by Council staff when moving forward in preparing strategic plan(s).

b) For focus groups, randomly selected persons and/or community representatives from groups likely to be affected will be invited to attend periodic focus groups to discuss matters relating to the strategic plan being formulated. These focus groups may be held in locations such as Council’s Civic Administration Building, the Library, or through online interactive platforms. Written feedback as a result of these focus groups will be considered by Council staff when moving forward in preparing strategic plan(s).

c) For open-invite night forums, a media release by Council will call for anyone interested to register and attend Council’s Civic Administration Building or Library. The media release will be made public at least 14 days before the planned night forum, and the Communications Team of Council will be encouraged to duplicate the media release on Council’s Facebook page. The intent of holding these forums at night is to make sure that people who may not usually be able to make it to an event during daylight hours of a weekday have the ability to partake in the strategic planning process. The forum will be steered by Council staff and points of discussion between staff and attendees will be focussed on particular matters relating to the strategic plan(s). Recurring themes and questions raised by attendees will be considered by Council staff when moving forward in preparing strategic plan(s).

d) For podcast series, Council staff will investigate what opportunities there are for uploading pre-recorded audio sessions to Council’s website or a subsidiary platform. These audio sessions will be approximately 10-20 minutes per session and will be scripted to be conversational in nature, to ensure that planning matters are communicated in plain English. The public will then be able to access these recordings, and provide written feedback or ask questions on matters covered. Feedback and questions may be able to be received online through a comment function, or otherwise through regular avenues such as by email, post, or phoning through to the Planning section of Council. Written feedback and questions will be considered by Council staff when moving forward in preparing strategic plan(s).

e) For specific feedback being sought from community groups and organisations, Council staff will make targeted verbal or written contact with key groups and organisations that are likely to be affected by or interested in the strategic plan(s) being formulated. Written feedback will be considered by Council staff when moving forward in preparing strategic plan(s).

Note that when a draft strategic plan has been prepared, the opportunity will still exist for further community participation during the relevant exhibition period of the draft plan. Refer to Council’s endorsed PDCPP for further guidance on exhibition periods and timeframes.

DECLARATIONS FOR STRATEGIC PLANNING

Council undertakes:

· To prepare strategic plans where a significant shift in existing planning policy is proposed with potential impacts on the function and form of the City, whether or not such strategies may be required by a State Government Directive

· That strategic planning will be carried out objectively and impartially, taking into account the objectives of the Act and planning principles that relate to the capabilities of the City’s resources. To ensure objectivity, Council may utilise professional consultants.

· To establish and articulate the scope of strategic investigations.

· That the principles of ESD will be applied in strategic plans.

· That community representation will be encouraged in the formulation of major strategic plans utilising appropriate modes and methods as derived from the endorsed Planning and Development: Community Participation Plan and points a) to e) in section 3.1.

· That, where practicable, community views will be incorporated into strategic plans. It is acknowledged, however, that community opinions may vary and that some local interests may be inconsistent with recognised planning and ESD principles.

3.2 Statutory Plan Making

The Orange Local Government Area is covered by Orange Local Environmental Plan 2011 (OLEP 2011) prepared in accordance with the EP&A Act. This plan has legal status and, within a broad framework, governs what type of development may occur, in what form and where.

OLEP 2011 is supplemented by a number of State Environmental Planning Policies (SEPPs), Ministerial Directions (s117 of the EP&A Act) and DCPs. While there are currently no regional strategies or plans affecting Orange, the City’s planning may also need to relate to these in the future.

Otherwise Council may decide to prepare amendments based on community interest as a consequence of monitoring planning/development issues and trends associated with assessment of development proposals or growth trends.

Council will apply charges for considering submissions to amend LEPs relating to site-specific changes (spot rezonings) where such amendments are beyond the terms of strategic plans or where further environmental investigation is required before plan amendments can be considered.

In accordance with section 57 of the EP&A Act, Council is able to seek contributions from the proponent towards the cost of undertaking an environmental study. To eliminate potential probity issues where a developer contributes to the preparation of the study, such agreement shall be sought on the basis that there are no guarantees that the environmental study will be supported, and that the developer will not attempt to influence the outcome of the study beyond the opportunities provided through the defined community consultation phase, in the same way as any community member may participate in meetings and make formal submissions.

The LEP process is quite lengthy and normally involves:

· early engagement with communities that are likely to be impacted (where relevant and giving consideration to Council’s endorsed PDCPP)

· notification to the Department of Planning, Industry & Environment (‘DPIE’) of Council’s decision via the Gateway process

· consultation with State agencies

· preparation of the draft plan, taking into account agency requirements

· certification that the plan is consistent with State and regional policies, plans and directions

· public exhibition

· referral to Parliamentary Counsel to ensure that the draft plan meets legal drafting requirements

· adoption of the draft plan by Council

· reporting to the Minister on the draft plan

· making of the plan by the Minister

· gazettal of the plan.

For highly controversial matters, Council may determine that a Commission of Inquiry should be held on the whole or part of the draft plan; or that the draft plan be considered by the Joint Regional Planning Panel.

3.3 Delegations

As shown above, Council has certain responsibilities in the preparation of local plans, but the process involves a partnership between Council, the community and the State Government. Certain statutory functions can be delegated to allow Council to make the plan and prepare a report to the Minister.

3.4 Guidelines

Council has a number of functions, including owning land and preparing draft plans which may affect Council land. LEPs that have the effect of bestowing particular benefits on Council land are prone to perceptions of unfair advantage. Because of the situation where Council has potentially conflicting interests, guidelines have been prepared to outline appropriate procedures. The 1997 LEPs and Council Land - Best Practice Guidelines prepared by the former Department of Urban Affairs and Planning currently applies.

DECLARATIONS FOR STATUTORY PLANNING

Council undertakes:

· To prepare statutory plans which are generally consistent with relevant strategic plans and will provide information that explains any variation following additional inquiry and consultation. The ability to proceed with statutory plan amendments may be delayed while strategic planning is undertaken.

· To prepare LEPs affecting Council land in accordance with any guidelines, regulations and directions applicable at the time to ensure planning decisions are open and transparent, and free from claims of bias.

· To encourage innovation in development through application of a performance-based approach to regulation.

· To regularly review existing provisions as outlined in Council’s operational plans. Council will attempt to provide for a single annual review of the LEP within the capacity of Council’s resources. Accordingly, some proposals may be held-over pending receipt of others to justify preparing a draft plan. Only where there is a public interest imperative will site-specific LEP amendments be prepared as a single plan.

· To seek contribution from developers to the cost of preparing Planning Proposals/ Environmental Studies which relate to proposals on specific land and are otherwise not part of a strategic review. The payment of funds towards studies will not necessarily provide for an outcome favourable to the proponent. Payment is at the full risk of the proponent.

· To charge for LEP amendments for site-specific proposals or proposals beyond the terms of an adopted strategic plan in accordance with Council’s Management Plan effective at the time of applications.

4 DEVELOPMENT ASSESSMENT

4.1 Issues

The development assessment system directly affects property rights, and accordingly must be based on legislation (refer DAF Agreed Principles of Leading Practice in Development Assessment).

The way that the development assessment process is managed within councils or State agencies can affect the speed under which determinations are made and the quality of outcomes (Local Development Taskforce - “Bird Inquiry”: 60).

The development assessment system involves complex legislation and a host of complicated planning instruments. The roles that councillors and staff are obliged to fulfil are not always well understood by those involved in the system (ICAC discussion paper - Taking the Devil Out of Development: 10).

4.2 Development System

There are many views on the expectations of the development assessment system, but it is commonly agreed that the system should:

· focus on achieving high quality sustainable outcomes

· be cost effective, streamlined, simple and accessible

· promote transparency and accountability in administration

· incorporate performance measurement and evaluation

· promote continuous improvement

· provide for appropriate community involvement in decision making.

To achieve this requires appropriate systems and policies, appropriate delegation arrangements, clearly defined and articulated roles and responsibilities at various stages of the development assessment process, improved knowledge of the system and awareness of proposals and consistent application of development rules, dispute resolution techniques and monitoring mechanisms.

4.3 Assessment System

The assessment system comprises the following stages:

· pre-application information gathering

· lodgement

· notification/consultation

· assessment and reporting

· decision making

· appeals and dispute management

· enforcement/compliance.

4.4 Pre-Application Guidance

Council provides, through the Development Coordinating Committee (DCC), the opportunity for to developers to engage with Council staff so that staff are able to advise on possible issues that may affect a development proposal. The DCC comprises staff with skills and experience in the fields of planning, engineering and building control, and meets on a daily basis. Appointments to discuss proposals with the DCC can be made through Council’s Customer Service Team to a Committee member. The DCC is a free service. Opportunity exists for future versions of Council’s Fees and Charges to introduce a pro rata charge for accessing the DCC service, particularly in circumstances where the DCC service has been requested on more than one occasion by the same proponent for the same site.

4.4.1 Pre-lodgement consultation with the community

In accordance with the endorsed PDCPP, proponents are encouraged to undertake consultation with community members who may be affected by the proposed development prior to lodging a Development Application with Council. For those development designs that have been subject to community consultation at the pre-lodgement stage Council will determine if the matter can be channelled into a more streamlined assessment procedure. This will however depend upon the complexity of the proposed development and the nature of identified issues. If the application is of a proposal type that would need to be exhibited per the PDCPP, the DA will still be exhibited during the assessment process.

The proponent would need to submit evidence for engagement with the community, and how outcomes of the consultation were considered and implemented into the development’s design. Evidence to be submitted would include:

· The timeframe for active engagement with community members engaged in the pre-DA consultation (‘the consultation group’),

· An indication as to the members or households in the consultation group and their nexus to the proposed development,

· Draft plans and documents viewed and commented upon by the consultation group,

· Log of meeting dates and correspondence with the consultation group, and

· Details on how feedback from the consultation group influenced the final proposal.

The proponent should be aware that in the making of a Development Application, false or misleading information which is supplied to and then used by a consent authority (such as Council) when coming to a decision may result in that decision being invalid.

The streamlined scheme will occur on a trial basis initially, beginning 1 December 2019 and up for review by 1 June 2020 via the Director of Development Services.

4.5 Heritage Advisor

Council also has an appointed Heritage Advisor available to provide pre-DA advice on both heritage and urban design issues. Appointments with the Heritage Advisor can be arranged with Council staff.

4.6 Lobbying/Preliminary Meetings etc

Council has adopted a Code of Conduct that applies to all staff and councillors. The Code of Conduct applies in interactions with Council officials. Of particular significance are the Code’s requirements in respect to conflict of interest, gifts and bribery, improper or undue influence and conduct of Council officials, including interactions between councillors and staff.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT-

PRE LODGEMENT

Council undertakes:

· To encourage proponents to perform pre-DA lodgement consultation with community members through implementation of section 4.4.1.

· To make a panel of relevant staff (currently known as the Development Coordinating Committee or DCC ) freely available for up to 1 hour of staff time to discuss issues and outline aspects of development that may require particular attention according to the panel’s understanding of the site and development.

· That the advice from the panel is provided in good faith to inform, but the panel is not to be construed as an agent for the proponent; and as such applicants need to make their own independent decisions of how issues may affect their development, and must solely rely on their own investigations and independently utilise or consider advice from their agents and consultants.

· That a Code of Conduct applies in all interactions with staff and councillors, and that proponents may need to be advised of aspects of the Code where circumstances require.

· That a written record of any conversation be attached to the relevant property or subject container in Council's electronic records system.

4.7 Lodgement

In receiving development applications Council is obliged to record certain information. Development application information is recorded on electronic systems. These systems are also used to provide support to the subsequent processing and assessment of the application, including preparation of reports and correspondence, and defining responsibilities and performance through workflows.

Council has also established computer-equipped interview rooms to allow for convenient perusal of applications at the time of lodgement. Not all areas of compliance are likely to be able to be determined at this point until a thorough review of the application has been undertaken.

The Act also lists the information that is required to accompany an application. In particular and in accordance with Council resolution 19/381, a schedule shall be submitted with all development applications that involve physical works outlining estimated cost of works:

a) For development up to $500,000, the estimated cost be estimated by the applicant or a suitably qualified person (such as a licenced builder, architect, accredited building designer, registered quantity surveyor, or a licenced person with suitable experience), with the methodology used to calculate that cost submitted with the DA.

b) For development between $500,000 and $3 million, a suitably qualified person (such as a licenced builder, architect, accredited building designer, registered quantity surveyor) should prepare the cost estimate and submit it, along with the methodology, with the DA.

c) For development more than $3 million, a detailed cost report prepared by a registered quantity surveyor verifying the cost of the development should be submitted with the DA.

The Planning System Circular PS13-002 Calculating the genuine estimated cost of development dated 14 March 2013 (or later replacement version), issued by the NSW Government is to be consulted in this regard. In particular, Attachment A to PS13-002 shall be used by applicants when providing a breakdown of estimated costs.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

LODGEMENT

Council undertakes:

· To screen applications for lodgement pursuant to the Act and Regulation. If incomplete applications are rejected, staff will provide information to the applicant on what is required for lodgement and work with the applicant to ensure their applications are fit for lodgement.

· To accept complete applications and process these as soon as practicable. A Statement of Environmental Effects is required to accompany all applications. Such statements are consistent with a performance-based approach to regulation where the applicant demonstrates how the development proposal meets the expected outcomes.

· To only request additional information necessary to reasonably consider the environmental impacts of the development and the suitability of the site for the proposal, in accordance with Council’s obligations as a consent authority. A Statement of Environmental Effects is a mandatory requirement under the Act.

· That, where a more detailed review of the application reveals that more information or clarification is required, Council will endeavour to notify the applicant as soon as possible of the nature of the information required for the application to proceed.

· That a Code of Conduct applies in all interactions with staff and councillors and that proponents may need to be advised of aspects of the Code where circumstances require. In this respect, Council staff will not guarantee a timeframe for determination or be induced to facilitate the progress of an application.

4.8 Exhibition of development applications

The Local Government and Shires Associations (LGSA) has held the view that:

“community control of development assessment is the foundation of local democracy”.

ICAC has acknowledged that:

“many complaints are received each year of councils approving developments where people who feel they are affected by the decision say they did not receive notification of the proposed development. Invariably, allegations are made that the failure to notify them is indicative of some maladministration or corrupt behaviour – the public suspects information is being deliberately concealed. When this occurs, considerable resources can be consumed in assessing and responding to such complaints".

Some years ago, the Land and Environment Court held that notification and consideration of unsolicited submissions beyond the requirements of a planning instrument could raise expectations of rights that were not supported by the legal process; and where objections were taken into account, that councils could be seen to be considering irrelevant matters. This view has since shifted in line with community expectations and legislative reforms.

A right to make a submission does not necessarily extend to the right to appeal a decision on its merits unless specifically provided for in the Act. Third party appeals (ie appeals by someone other than the consent authority or applicant) on the merits of a development are limited to Designated Development. There are no appeals on the merits of a development for “advertised” or “neighbour notified” development. In those cases, submissions assist the consent authority in making a decision by taking into account community views. Council is not, however, bound by those opinions.

The Act provides procedures for “advertised development” and other forms of exhibition as defined in an LEP and other environmental planning instruments In addition, Council commits to a weekly notification in a local newspaper outlining a list of incoming development applications lodged during the preceding week. This list does not include those development applications that fall under the category of "advertised” development.

The Act provides specific procedures for “advertised development” and “designated development”. See the PDCPP for more details on exhibition and notification procedures.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

COMMUNITY NOTIFICATION

Council undertakes:

· To publish each week in a local newspaper circulating in the region and on Council’s website (www.orange.nsw.gov.au) a list of all incoming development applications lodged and registered up until and including the previous Friday.

· That exhibition occurs in accordance with PDCPP.

· That applications for “advertised development” shall be notified in a separate notice in a local newspaper circulating in the region.

· To act as neutral negotiator on applications where relevant issues have been raised through submissions and those issues have merit and a compromise could reasonably be negotiated with the proponent.

· To offer a mediation meeting to all parties where Council receives submissions by at least ten (10) different submitters, and those submitters have expressed objections to or concerns with a proposed development and the issues raised are considered by Council able to be reasonably capable of negotiation. A mediation session may also be offered at the discretion of the Director of Development Services where at least five (5) submitters have responded with an interest and willingness to participate in a mediation session with the applicant and Council, and those submitters have outlined what issues they are willing to negotiate on in the mediation session.

· That where the PDCPP and this document indicate that the application is required to be considered by the Planning & Development Committee/Council, submitters will have the opportunity to address a Council meeting. The DA tracking system on the web enables residents to follow the progress of an application. Otherwise people can make direct contact with the Development Services staff to determine when an application is expected to be determined.

· That, as part of the planning review and monitoring system, submissions raising issues of planning policy may be used in future reference in considering if amendments are required to planning instruments or policies.

· To provide electronic tracking of the progress of all development applications accessible by all interested people on the web through Council’s e‑services system.

· To extend exhibition timeframes beyond the PDCPP minimum timeframes, at the discretion of the Director of Development Services.

4.9 Application Evaluation

Council is charged with the responsibility as the consent authority for determining applications that can only be carried out with development consent. The Act outlines the criteria that Council must consider when determining an application as stipulated generally in section 4.15. Section 4.15 reads in part as follows:

SECTION 4.15 Evaluation

(1) Matters for consideration – general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

In 1997 the former Department of Urban Affairs and Planning (DUAP) released a paper outlining how matters should be considered under (then) section 79C – now section 4.15. Despite some changes to the law since, this Table may still be referred to for guidance, as will case law from the NSW Land and Environment Court (LEC) and higher courts of review. The Land and Environment Court displays planning principals on its website:

http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_planningprinciples

The requirements of s4.15 are mandatory factors and failure to consider any of the mandated factors in a reasonable manner “where relevant” may result in the determination being declared invalid by a Court. Although s4.15 requires that the listed considerations be taken into account in determining an application, the relevance of each of those factors needs to be determined by the consent authority. Section s4.15 does not require that any particular weight be applied to these factors; however they have to be reasonably considered (Bates, 2002: para 11.7 pp 259-260). Because the provisions of a planning instrument (such as an LEP) are statutory, the first test for Council is to be satisfied that the development the subject of an application may be approved.

Reports by Council’s professional assessment staff are therefore prepared by listing the relevant heads of consideration under s4.15 to ensure that the decision making body has information before it relevant to the application.

The ICAC has expressed concern that Council officers can be subject to significant pressure when undertaking their responsibilities in development assessment. Council’s Code of Conduct outlines appropriate interactions between staff and Councillors.

The following section from the Local Government Act also addresses issues relating to appropriate interactions between councillors and staff.

352 Independence of staff for certain purposes

(1) A member of staff of a council is not subject to direction by the council or by a councillor as to the content of any advice or recommendation made by the member.

(2) This section does not prevent the council or the mayor from directing the general manager of the council to provide advice or a recommendation.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

APPLICATION EVALUATION

Council undertakes:

· To prepare and consider reports for applications in accordance with the section 4.15 criteria. Reports will include consideration under headings relating to the relevant prescribed matters.

· That, where relevant, applications will be considered in accordance with practice notes and guidelines from DoP and planning principals of the Land and Environment Court (http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_planningprinciples).

· To have reports prepared by staff in the least possible time taking into account the complexity of the development, need for referrals, community submissions, existing workloads and priorities.

· To provide reports to applicants (and to other interested persons upon a specific request) following preparation of the meeting agenda. All other information shall be provided in accordance with section 12 of the Local Government Act and the relevant provisions of the Privacy Act.

· That impartiality of staff (or consultant) recommendations are respected and maintained in accordance with the Act and Council’s Code of Conduct.

· That Council’s adopted Code of Conduct applies in all respects to Councillors and staff in performing their respective responsibilities in evaluating and determining development applications.

· That, for potentially controversial development applications affecting Council land, the evaluation may be referred to an independent assessor for recommendation to Council.

4.10 Delegations - Decision Making

Councillor’s Role

Like the assessment system, there are many opinions on the role of Council in development assessment. While some believe that Councillors should only be involved in setting of policy through strategic and statutory planning, others see the Councillor’s role in a political setting of representing community aspirations. The ICAC has encouraged delegations to an appropriate level. Issues of transparency and accountability remain.

The ICAC has held the view that:

The Council in Chamber is expected to act as a “board” overseeing policy development and regularly monitoring operational decisions. It is the responsibility of the council to have internal control systems in respect of delegations.

Internal control mechanisms include:

· a risk management approach that, where public or political concerns may arise, consideration should be given to referring the matter to a more senior body

· use of delegations when there is no conflict of interest

· appropriate separation of responsibilities between evaluating staff and decision making.

The risk management approach is achieved where applications are reviewed in the first instance by the staff panel of the Development Coordinating Committee (DCC), secondly by Planning Management peer review, and thirdly by the General Manager via any determining panel that he may establish. Management may also be required to review determinations by staff based on receipt of community submissions. With the involvement of the DCC and the abovementioned review procedure, the ICAC’s concerns for potential probity issues are lessened.

A hierarchy of delegations operates based on the level of assessment and potential for community involvement (submissions) in the determination.

This hierarchy is identified according to the following list, with number 1 being the highest level of authority:

Decision-making Authority	Delegated to
1 Council in Chamber as the consent authority	No delegation
2 Planning & Development Committee	Councillors only
3 General Manager	General Manager and senior staff
4 Staff delegation report prepared for review	Staff supervisor/Manager/Director
5 Staff delegation (minor development)	Staff to assess and issue consent

Delegations are based on the type of development and potential issues that are likely to arise from the development – refer to “Declarations for Development Assessment – Delegation” beginning on page 17. Certification is delegated in the following way:

CERTIFICATION	(Sub) delegation
Construction (and occupation) Certificate for Class 1 and 10 buildings (dwelling houses and associated outbuildings, swimming pools, garages, garden sheds, patios and pergolas)	General Manager sub-delegated to EHBS - mostly received as a joint DA/CC
Construction (and occupation) Certificate for Class 2-9 buildings	Manager Building and Environment
Construction Certificate - subdivision works	Director Technical Services
Subdivision Certificate	Director Development Services

In exercising their delegated authority, the General Manager may establish a determination panel to assist in the decision-making process. The General Manager, usually at the recommendation of Council staff, reviews DAs received to establish whether the determination of the application should be delegated to the General Manager or to the Planning & Development Committee (‘PDC’). The General Manager and other “lower-level” delegations can only grant consent subject to conditions.

Other delegates may advise applicants that applications are incomplete and cannot be determined. In circumstances where a development application remains incomplete after 100 days, despite the request of staff for the submission of additional information to enable the assessment to be formally undertaken, the General Manager may refuse the development application. Council is not in a position to hold applications in abeyance indefinitely.

The DLG Model Code (2004) includes a specific section on “development decisions” as follows:

5.7 It is your duty to ensure that development decisions are properly made and that parties involved in the development process are dealt with fairly. You must avoid impropriety. You must also avoid any occasion for suspicion and any appearance of improper conduct.

5.8 In determining development applications, it is essential that you are highly conscious of the potential for even the slightest impropriety to lead to suspicion of misconduct. This means you must ensure that no action, statement or communication between yourself and applicants or objectors conveys any suggestion of willingness to provide concessions or preferential treatment.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT - DELEGATION

Council undertakes:

· To delegate development assessment decisions to the appropriate level of decision making in order to facilitate efficient development assessment systems:

Proposal type	(Sub) Delegation
1 - BCA Class 1 and 10 buildings (dwelling houses and associated outbuildings, swimming pools, garages, garden sheds, patios, pergolas, and the like) often as combined DA/CC and for many of these proposal they could have been dealt with as Complying Development if it were not for one or two minor factors. This shall also include an application to modify a development consent for development of this type.	Environmental Health & Building Surveyor Team or fast-track Planner
2 All development and subdivision types, subject to 3(a), 3(b), 4, 5(b), 7, 8, 9(a), 10, 11(a), 11(b), 12, 13, 14, 15, and 16 below	General Manager
3(a) In residential zones – Torrens subdivision which would result in eleven (11) or more Lots being created without an existing DCP or prior endorsed subdivision concept plan	Council/PDC
3(b) In business, commercial, recreation, or infrastructure zones – Torrens subdivision which would result in six (6) or more Lots being created without an existing DCP or prior endorsed subdivision concept plan	Council/PDC
4 Designated development	Council/PDC
5(a) Development that meets the performance outcomes of clause 4.6 of LEP and results in a less than 10% variation to the Development Standard being varied	General Manager
5(b) Development that meets the performance outcomes of clause 4.6 of LEP but results in more than 10% variation to the Development Standard being varied	Council/PDC
6 Modifications to development consent	General Manager
7 Development prevented from delegation by statute (some specified development on community land)	Council/PDC
8 Development specifically resolved by Council/PDC to be determined solely by it	Council/PDC
9(a) Where an application is recommended for refusal by Council staff	Council/PDC
9(b) Where an application is recommended for refusal by Council staff on the grounds that the application remains incomplete following the request for the supply of additional information	General Manager
10 Any DA with a value exceeding $2.5 million	Council/PDC
11(a) Where there is a request to waive development contributions exceeding $20,000	Council/PDC
11(b) Where there is a request to waive in whole or part the application lodgement fees	Council/PDC
12 Any DA with a “significant public interest”	Council/PDC
13 Any DA lodged by or on behalf of Council	Council/PDC
14 Any significant Council development where Council will be financial beneficiary	Council/PDC
15 Any DA lodged by, or on behalf of, or benefitting a Councillor or member of Senior Staff	Council/PDC
16 Where three (3) Councillors have formally approached the General Manager with reasons in writing, and the General Manager, Mayor, and the Chairman of the PDC have agreed to forward the DA to PDC	Council/PDC

The above hierarchy depends on the delegate exercising the authority. Where issues arise for the delegate, the matter will be referred to the next higher level (ie from 3 to 2, 2 to 1 etc).

· To operate formal systems of review applying a risk management approach.

· That Council’s adopted Code of Conduct applies to all delegates in performing their respective responsibilities in determining development applications.

· To review delegations according to the requirements of the Local Government Act.

Significant public interest cannot be defined precisely. As a guide in determining significant public interest, consideration will be given to:

· the number and variety of public submissions received but, more particularly, greater weight will be given to the planning issues raised in those submissions that cannot be addressed through negotiation or by conditions of consent, and

· development that falls short of many objectives and development standards of environmental planning instruments, and planning outcomes of DCPs.

Where three Councillors have formally approached the General Manager to request that a development application be referred to PDC for determination, the reasons in writing should not indicate a position on the merit of the application, but should demonstrate why it is considered that the application is not one that should be determined under delegation, having regard to the provisions of the relevant delegation.

Where an application is scheduled to be determined by the Planning & Development Committee (PDC) or Council, arrangements can be made for any person to make representation at the relevant meeting. Potential speakers need to complete a Speaker Registration Form and comply with the requirements set out on that form. The form is available on Council’s website at www.orange.nsw.gov.au or from Council’s Customer Service Team at the Civic Centre from 9am to 5pm Monday to Friday. Fully completed forms must be received by Council staff prior to 6.50pm prior to the meeting.

4.11 Determination of Applications

The notice of determination will also be uploaded to the NSW Department of Planning, Industry & Environment’s Planning Portal website, which can be accessed by anyone through https://www.planningportal.nsw.gov.au/ or, if the Planning Portal is not available for uploads, the notice of determination will be uploaded to Council’s own website.

The notice of determination will set out:

• The result of the determination

• The reason for the determination (also known as ‘Statement of Reasons’)

• The reason for imposition of conditions (if the determination is an approval).

The Statement of Reasons will detail how community views were taken into account in making the decision, as well as touching on the statutory requirements that applied to making the decision.

A development consent becomes effective from the date indicated on the Notice of Determination. Council generally provides a five (5) year period to formally act upon the consent.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

NOTIFICATION OF DETERMINATIONS

Council undertakes:

· To notify applicants, owners and people who have made a submission of the outcome of the decision on the application as soon as practicable after the determination has been made by the appropriate authority.

· That Councillors will be advised in reports to the Planning & Development Committee of decisions made under delegation.

· To keep a register in electronic format in accordance with section 4.58 of the Act.

· To notify determination of all consents in accordance with the Act and Regulation.

5 COMPLAINT HANDLING PROCEDURES

The ICAC has expressed the view that:

A decision that represents a ‘loss’ in a development control dispute under a system where the applicant or objector feel that they have not had a ‘fair go’ can lead to an assumption that undue influence or bias may have played a part in the decision making.

Complaints are occasionally received by Council regarding development decisions.

Council has adopted the following policies/procedures that may be applied in relation to allegations of staff performance in the handling of development applications:

· Customer Service Guarantee Policy

· Disciplinary Procedures Policy

· Civic Square Enterprise Agreement

Council has adopted a Code of Conduct that applies to Councillors and staff in undertaking their responsibilities.

Where Council receives written (and signed) allegations of staff non-compliance with accepted standards of performance, then the matter will be investigated according to the above policies and subject to the following summarised actions.

The allegation will be referred to the staff supervisor. The staff member the subject of allegations will be requested to respond to the allegations and a letter of response will be provided to the complainant from the staff member’s supervisor, Director or the General Manager depending on the seriousness of the allegation. In accordance with the disciplinary policy, an investigation of the allegations may be carried out.

Investigations may also be carried out by other organisations such as the Department of Local Government under the terms of the Local Government Act, the ICAC, the Ombudsman or the Police.

Procedures for addressing allegations against Councillors are specifically addressed under Division 3 (Misbehaviour) of Chapter 14 of the Local Government Act - Honesty and Disclosure of Interests.

Chapter 14 also applies in respect to disclosure of interests and corrupt conduct of staff and Councillors.

The Protected Disclosures Act 1994 provides for facilitating disclosures with protection from reprisal to be made by Council employees for the purpose of reporting allegations of corrupt conduct or maladministration as defined.

All letters of complaint regarding staff or Councillors should be addressed to:

The General Manager

Orange City Council

PO Box 35

ORANGE NSW 2800

Respondents must be responsible in making complaints and be aware of any implications of the Defamation Act 1974. It is important to express views objectively and accurately.

DECLARATIONS FOR DEVELOPMENT ASSESSMENT -

COMPLAINT HANDLING

Council undertakes:

· To address all reasonable complaints according to Council policies, procedures and legal requirements.

· To respond in writing within a reasonable time to written complaints about staff after the staff member has been given an opportunity to respond to any allegations made and following any formal investigation deemed necessary as a consequence of the complaint.

Originally adopted by Council on 29 August 2005

(resolution number 05/406).

Version 5 adopted on ______

Planning and Development Committee 3 September 2019

Attachment 3 Edits to DCP 2004 Chapter 5 - General Considerations for Zones and Development

Contents

5. GENERAL CONSIDERATION FOR ZONES AND DEVELOPMENT. 5.1

5.1 EXEMPT DEVELOPMENT. 5.1

5.2 COMPLYING DEVELOPMENT. 5.2

WHERE COMPLYING DEVELOPMENT DOES NOT APPLY. 5.2

STANDARD CONDITIONS.. 5.2

5.3 ADVERTISED DEVELOPMENT. 5.3

ADVERTISED DEVELOPMENT. 5.3

Table 5.3 - Advertised Development 5.3

NOTIFICATION OF OTHER DEVELOPMENT. 5.4

SUFFICIENT WRITTEN NOTICE.. 5.4

NOTIFICATION OF DEVELOPMENT APPLICATIONS OTHER THAN “ADVERTISED DEVELOPMENT” 5.4

5.4 ANCILLARY DEVELOPMENT. 5.5

PO 5.4-1 PLANNING OUTCOMES FOR ANCILLARY DEVELOPMENT. 5.5

5.5 ZONE BOUNDARIES.. 5.5

PO 5.5-1 PLANNING OUTCOMES FOR DEVELOPMENT AT ZONE BOUNDARIES.. 5.6

5.6 UNZONED LAND.. 5.6

PO 5.6-1 PLANNING OUTCOMES FOR UNZONED LAND.. 5.7

5.7 SUBDIVISION.. 5.7

GENERAL. 5.7

QUALITY ASSURANCE PROCEDURES FOR CONSTRUCTION CERTIFICATES.. 5.7

PO 5.7-1 PLANNING OUTCOMES FOR CERTIFYING SUBDIVISION.. 5.8

5. GENERAL CONSIDERATION FOR ZONES
AND DEVELOPMENT

5.1 EXEMPT DEVELOPMENT

Exempt development is considered to involve minor proposals that have minimal environmental impact. Exempt development will not require development consent. Exempt development is subject to established standards and criteria to ensure that it has minimal environmental impact.

Section 76(2) of the Environmental Planning and Assessment Act (“the Act”) states that an environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.

Orange Local Environmental Plan 2000 (“the LEP”) species exempt in Clause 20. Clause 20 references exempt development criteria in Schedule 1 of this Development Control Plan (“the DCP”).

A development application or an application for a complying development certificate may need to be made for development that does not meet the exempt development criteria under the LEP or this DCP.

If development is undertaken without approval and if that development does not meet the exempt development criteria, then Council may require that an application be lodged. Council may also take action by giving orders or by instituting legal proceedings to rectify any breaches according to the Act.

5.2 COMPLYING DEVELOPMENT

The complying development category recognises that some development that is subject to established criteria does not require detailed assessment. The complying development category provides for “fast tracking” of standard or routine development.

A complying development certificate can be issued either by Council or by an accredited certifier within seven days of application where the development complies with established standards and criteria in all respects.

Section 76A(5) of the Environmental Planning and Assessment Act 1979 states that an environmental planning instrument may provide that local development that can be addressed by predetermined development is complying development. Subsection 6 provides a number of restrictions on applying complying development.

Clause 22 of Orange Local Environmental Plan 2000 (“the LEP”) provides for complying development and outlines the circumstances in which complying development may be used. The LEP also references the development criteria for complying development in Appendix 2 of this Development Control Plan (“the DCP”).

WHERE COMPLYING DEVELOPMENT DOES NOT APPLY

Section 76A(6) provides that complying development does not apply to:

· State significant development;

· Designated development;

· Development that requires concurrence;

· Land that is critical habitat (with the meaning of the Threatened Species Conservation Act 1995);

· Land affected by or within a wilderness area (within the meaning of the Wilderness Act 1987);

· An item of environmental heritage (either subject to a conservation order under the Heritage Act 1977 or listed in Schedule 8 of Local Environmental Plan 2000 (as amended);

· Land identified as an environmentally-sensitive area.

Orange Local Environmental 2000 identifies the following land as environmentally sensitive:

· Land indicated by diagonal red hatching, being land that is in the vicinity of major industries or utility installations;

· Land within the Scenic Area adjacent to Orange Botanic Gardens;

· Land within the Water Supply Quality Protection Area in the vicinity of creeks and water storages within the City’s water supply catchment;

· Within the Lucknow Village and adjacent areas affected by mining operations.

Because these areas define various potential environmental impacts, complying development is not considered appropriate.

STANDARD CONDITIONS

· Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate other than for subdivision are listed in Schedule 3.1.

· Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for strata subdivision are listed in Schedule 3.6.

· Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for subdivision creating residential lots in Spring Hill Village are listed in Schedule 3.5.

· Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for subdivision of residential lots in the urban residential zone are listed in Schedule 3.4.

· Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for rural subdivision are listed in Schedule 3.3.

· Standard conditions that will be applied by Council or the accredited certifier to a complying development certificate for dual occupancies in residential zones, consulting rooms, industrial and warehouse buildings are listed in Schedules 3.1 and 3.2.

5.3 ADVERTISED AND NEIGHBOUR NOTIFIED DEVELOPMENT

~~ADVERTISED DEVELOPMENT~~

~~Council will give written and published notice of applications for “advertised development” as required by the~~ ~~Environmental Planning and Assessment Regulations~~ (see Part 6 Division 7 of the EP&A Regulation 2000). The Regulations require written notice to be given to persons who appear to Council to own or occupy the adjoining land to the land to which the application relates and for a notice to be placed in the local newspaper.

~~Under this Plan, written notice will also be given to persons who appear to own or occupy land directly opposite the street frontage of the land affected by the development application.~~

For the purposes of the Act, development - whether wholly or in part - of a kind listed in the Advertised Development Table (see below) is declared to be Advertised Development, unless it is also exempt development or complying development.

~~Advertised Development~~

~~(General)~~

~~Advertised Development (Heritage)~~

· ~~Animal boarding or training establishments~~

· ~~Bed and breakfast accommodation~~

· ~~Caravan parks~~

· ~~Child care centres~~

· ~~Dual occupancies~~

· ~~Educational establishments~~

· ~~Exhibition homes~~

· ~~Exhibition villages~~

· ~~Group homes~~

· ~~Health consulting rooms~~

· ~~Home businesses~~

· ~~Hotel or motel accommodation (in residential zones)~~

· ~~Seniors' housing~~

· ~~Serviced apartments~~

· ~~Multi dwelling housing~~

· ~~Places of public worship~~

· ~~Plant nursery~~

· ~~Recreation facilities (whether indoor, outdoor or major)~~

· ~~Residential flat buildings~~

· ~~Restaurants (in residential zones)~~

· ~~Neighbourhood shops (in residential or industrial zones)~~

· ~~Proposals involving the subdivision of existing lots and the erection of dwellings (being development of the same effect as dual occupancy and multi dwelling housing)~~

· ~~the complete or substantial demolition of a building or work that is a heritage item~~

· ~~the complete or substantial demolition of any significant feature of a heritage item~~

· ~~the demolition of a building, work, relic or place within a heritage conservation area,~~

· ~~the carrying out of development under clause 5.10(10) of Orange Local Environmental Plan 2011.~~

~~Table 5.3 - Advertised Development~~

~~NOTIFICATION OF OTHER DEVELOPMENT~~

~~Section 79A of the Act allows for notification of specified development in accordance with DCPs.~~

Under this Plan, Council will give written notification of development applications for new buildings or alterations/additions to existing buildings in residential zones where, in the opinion of Council, the development is likely to:

· ~~affect views to or from the adjoining land including generation of glare; or~~

· ~~substantially overshadow the private open space or living areas of adjoining land; or~~

· ~~impact on the privacy of adjoining land; or~~

· ~~significantly alter the streetscape character of the locality.~~

~~In determining if privacy is likely to be affected, Council will consider the proximity of existing and proposed windows (location, height, transparency), screening, fencing and landscaping.~~

Overshadowing is taken into account for the worst-case example of between the hours of 9:00 am and 3:00 pm on June 21. Shadow diagrams, where required, need to indicate the impact of development for this period. When evaluating the potential impacts of overshadowing, the following criteria will be considered:

· ~~Solar access to solar hot water and photovoltaic panels in the vicinity (design goal - full access)~~

· ~~Direct sunshine received for other north-facing solar collectors (design goal - 4 hours of sunshine for 75% of other north-facing solar collectors)~~

· ~~Sunlight availability to required private open space areas (design goal - sunlight to be available to 40% of area for at least 3 hours)~~

· ~~Sunlight availability to clothes-drying areas (design goal – at least 4 hours to one metre above ground level under clothes lines)~~

Development applications for buildings in residential areas that are proposed to be two storey or greater are to include details sufficient to clearly indicate the impact of the development on overshadowing of adjoining land.

~~SUFFICIENT WRITTEN NOTICE~~

~~Written notice from Council will include at least the following information:~~

· ~~Description and address of the land the subject of the development application~~

· ~~The name of the applicant~~

· ~~Description of the development and application number~~

· ~~A statement advising that the application and plans may be inspected at the Orange Civic Centre for the period specified in the notice~~

· ~~A statement inviting written submissions to be made to Council within the specified period of 14 days~~

~~Written submissions objecting to the development must indicate how the development adversely affects views, privacy, solar access or streetscape character.~~

~~NOTIFICATION OF DEVELOPMENT APPLICATIONS OTHER THAN “ADVERTISED DEVELOPMENT”~~

Council has a policy of listing all new development applications in the local newspaper to satisfy its obligations under the Local Government Act to inform the community. This is additional to procedures required for designated or advertised development.

~~Council’s charter as defined under the Local Government Act (section 8) requires that Council keep the local community informed about its activities.~~

Section 12 of the Local Government Act also states that everyone is entitled to inspect development applications. The notification approach is consistent with facilitating opportunities to inspect development applications and to accordingly keep the community informed.

Notification does not however extend to providing formal opportunities for objections. Formal submissions, including objections, can however be made on applications for “advertised development” or “designated development” as defined by Orange LEP 2000 and the Environmental Planning and Assessment Regulation 2000 respectively.

[Insert instead]:

Council’s Planning and Development: Community Participation Plan (current edition) is to be referred to for guidance on “advertised” and “neighbour notified” development.

5.4 ANCILLARY DEVELOPMENT

Clause 25 of LEP 2000 outlines where development may be prohibited under Orange LEP 2000. Subclause 25(2) of LEP 2000 identifies uses that are considered not to be ancillary to a dwelling. The LEP otherwise does not outline ancillary use. This section is intended to assist in determining ancillary use issues.

Some development may comprise more than one use. In the event that a development comprises more than one specific purpose (ie, an industry, showroom and office), then consideration may be given to the development even where one purpose may normally be prohibited in the zone if that purpose is reasonably considered to be ancillary, dependent, incidental or subordinate to a permissible use.

For the purposes of this Plan, the following principles are applied in considering if a use may be ancillary development:

· The subordinate, dependent, incidental or ancillary purpose is on the same land as the dominant one;

· Building(s) erected and/or used for ancillary development are necessary for the dominant use to operate effectively;

· The area required for the subordinate, dependent, incidental or ancillary purposes is substantially less than the area used for the dominant use;

· The number of employees involved in the subordinate, dependent, incidental or ancillary use are less than the number engaged in the dominant use.

Where one or more of the above principles cannot be achieved, an applicant must be able to demonstrate to the satisfaction of Council that the use is subordinate, ancillary or incidental to or dependent on the dominant use and is not an independent use.

PO 5.4-1 PLANNING OUTCOMES FOR ANCILLARY DEVELOPMENT
1 Development comprising more than one purpose including a purpose that would normally be prohibited in that zone operates in a manner where any ancillary purpose is subordinate, dependent or incidental or ancillary to the primary purpose of the development according to the ancillary development principles.

RELATED INFORMATION – ANCILLARY DEVELOPMENT

1 Farrier, David, 1993 The Environmental Law Handbook: Planning and Land Use in New South Wales, Second Edition (p:116). Redfern Legal Centre Publishing, Sydney

2 Grainger, Chris. 1993 “The Doctrine of Ancillary Use” in Environmental and Planning Law Journal. Vol 10 pp:267-277. Law Book Company, Sydney

5.5 ZONE BOUNDARIES

Zones are used in LEP 2000 to broadly define areas that are considered appropriate for various forms of development subject to more detailed site-specific considerations.

Zones provide for a range of uses within an area while excluding others. As a consequence, some areas may have a number of different uses being undertaken that generate the character of the locality. This variety in character occurs particularly where different zones meet at a zone boundary, often referred to as “transitional areas”. In specific cases, there may be justification to provide some development flexibility adjacent to a zone boundary provided that the planning principles underlying the zone are maintained.

This provision does not allow additional development in a water-supply catchment, since the water-catchment zone boundary is based on topographical limits for the purposes of restricting development that could potentially impact on water quality in the water-catchment area.

Formerly, LEP amendments were required to allow development on land that could otherwise only be carried out on land in the adjoining zone. In those cases, submissions were required to substantiate a change to the LEP. Similarly, a proposal to undertake development under clause 26 of LEP 2000 adjacent to a zone boundary must be substantiated.

The following considerations are required to substantiate development in accordance with clause 26 of LEP 2000:

· Description of the existing land use pattern

· Suitability of the land (services, character of adjoining development, etc) to provide for the proposed development

· Evaluation of alternative opportunities within the adjoining zone

· Review of the development potential for the site, taking into account site-specific opportunities and constraints for development and associated environmental impacts

· Conclusions on the potential impacts of the development on the character of the area and the extent to which the development is compatible with the character of the area

PO 5.5-1 PLANNING OUTCOMES FOR DEVELOPMENT AT ZONE BOUNDARIES
1 Applications for development under clause 26 of LEP 2000 demonstrate to the satisfaction of Council that the land is suitable for the proposed use and is compatible with the character and amenity of the area in accordance with this DCP.
2 The development complements the character of the area.

5.6 UNZONED LAND

Under LEP 2000, railway land, roads and some creeks have been left unzoned. Under clause 27, unzoned land may be used for a purpose permitted in the adjoining zone. Development for road and railway purposes undertaken by the relevant transport authorities may be carried out without consent on unzoned roads and railway land respectively.

Where an unzoned road or railway land forms a boundary between two zones, development permitted under clause 27 of LEP 2000 must take into account the character of surrounding land.

Development of unzoned land comprising a public road also requires the consent of the relevant Roads Authority under section 138 of the Roads Act.

Section 138 of the Roads Act 1993 relates to:

a erecting a structure or carrying out a work in, on or over a public road; or

b digging up or disturbing the surface of a public road, or

c removing or interfering with a structure, work or tree on a public road, or

d pumping water into a public road from any land adjoining the road, or

e connecting a road (whether public or private) to a classified road.

Applications for development involving any of the matters listed in section 138 affecting a “classified road” (such as a main road or State Highway as indicated with a red line on the LEP map) will be referred to the Roads and Traffic Authority.

Where development involves works on a road that is the responsibility of the adjoining Shire Council (Cabonne or Blayney), the development will be integrated development.

The Council will consider all matters relating to section 138(a) to (e) of the Roads Act affecting local roads under Council’s control.

PO 5.6-1 PLANNING OUTCOMES FOR UNZONED LAND
1 Development applications on unzoned land demonstrate that the development is consistent with the nearest adjoining zone or predominant development in the area permitted by an adjoining zone.
2 Applications for development on Main Roads meet the requirements of the Roads and Traffic Authority.
3 Applications affecting roads under another local roads authority (such as Cabonne or Blayney Councils) meet the requirements of the relevant council.

RELATED INFORMATION – UNZONED LAND

Roads Act 1993

5.7 SUBDIVISION

GENERAL

The Orange City Development and Subdivision Code (in Four Volumes), referred to below as “The Code”, is deemed to form part of this Plan.

QUALITY ASSURANCE PROCEDURES FOR CONSTRUCTION CERTIFICATES

Quality assurance procedures for construction works that are required to be approved by Council under clause 28 of Orange LEP 2000 refer to the:

1 Quality Manual under section CQS-6 of Volume 4 of the Orange City Development and Subdivision Code (“The Code”) and

2 the Quality Plan under section CQS-7 of Volume 4 of the Orange City Development and Subdivision Code,

For clause 28 to apply, the Principal Certifying Authority must be satisfied that all job-specific requirements and quality-control procedures have been implemented in accordance with section CQS of Volume 4 of The Code.

Works carried out in accordance with the above quality assurance procedures to the standards required in the Orange City Development and Subdivision Code must be completed, or security arrangements made with Council for the completion of works, prior to a Certificate of Compliance under the Water Supplies Authorities Act and a Construction Certificate under the Act being issued.

PO 5.7-1 PLANNING OUTCOMES FOR CERTIFYING SUBDIVISION
1 All subdivision works are designed and undertaken in accordance with Council’s adopted standards as outlined in the Orange City Development and Subdivision Code.

NOTE At the time of the adoption of this (draft) Plan, the Development and Subdivision Code was under review. For the purposes of this Plan, any reference to the Development and Subdivision Code relates to the Code as adopted by Council that applies at the time of issue of a construction certificate for either buildings or subdivision works.

Reference:	DA 445/2011(5)	Determination Date	9 August 2019
PR Number	PR1936
Applicant/s:	Mr J J Norris
Owner/s:	Mr J J Norris
Location:	Lot B DP 152339 – 47 Byng Street, Orange
Proposal:	Modification of development consent – restaurant and shop. The modification is in regards to an extension fronting Clinton Street to enclose the outdoor dining courtyard area, and involves the addition of an accessibility ramp and steps required to address the change in levels between the extension approved in the previous modification and its external adjacent area.
Value:	$150,000 (being the same value as the original development)

Reference:	DA 285/2018(3)	Determination Date	31 July 2019
PR Number	PR20233 and PR20234
Applicant/s:	Shed World
Owner/s:	Mr AL Gersbach
Location:	Lots 65 and 66 DP 1077737 – 70 and 72 Astill Drive, Orange
Proposal:	Modification of development consent - general industry (change of use) and warehouse or distribution centre. The modification requests consent to delete Condition 6 on the basis that the condition is superfluous to the development control process.
Value:	$560,000 (being the same value as the original development)

Reference:	DA 77/2019(1)	Determination Date	22 July 2019
PR Number	PR25414
Applicant/s:	RCI Group
Owner/s:	Pearl Investment (Aust) Pty Ltd
Location:	Lot 85 DP 1167633 – 5 Hanrahan Place, Orange
Proposal:	Subdivision (two lot Torrens)
Value:	$0

Reference:	DA 124/2019(1)	Determination Date	24 July 2019
PR Number	PR25962
Applicant/s:	Mr C S Booth
Owner/s:	Mr C S and Mrs R C Booth
Location:	Lot 131 DP 1183180 – 81 Peisley Street, Orange
Proposal:	Health consulting rooms and associated signage (change of use)
Value:	$30,000

Reference:	DA 140/2019(1)	Determination Date	30 July 2019
PR Number	PR27959
Applicant/s:	Zhang Building and Development Pty Ltd
Owner/s:	Zhang Building and Development Pty Ltd
Location:	Lot 221 DP 1238394 – 6 Handford Place, Orange
Proposal:	Dual occupancy (detached) and subdivision (two lot Torrens title)
Value:	$350,000

Reference:	DA 145/2019(1)	Determination Date	31 July 2019
PR Number	PR11547
Applicant/s:	Anandmahi Pty Ltd AFT Ravivijay Unit Trust
Owner/s:	Anandmahi Pty Ltd
Location:	Lot 4 DP 576169 - 312-324 Summer Street, Orange
Proposal:	Hotel (alterations and additions)
Value:	$50,000

Reference:	DA 150/2019(1)	Determination Date	7 August 2019
PR Number	PR25812
Applicant/s:	Mr IAK and Mrs LJ Shilling
Owner/s:	Mr IAK and Mrs LI Shilling
Location:	Lot 8 DP 1176470 – 1 Atlas Place, Orange
Proposal:	Vehicle repair station (additions to existing building)
Value:	$100,000

Reference:	DA 157/2019(1)	Determination Date	24 July 2019
PR Number	PR26330
Applicant/s:	Orange Ex-Services Club Limited
Owner/s:	Orange Ex-Services Club Limited
Location:	Lot 200 DP 1191450 - 225-243 Anson Street, Orange
Proposal:	Registered club (alterations and additions - smoking terrace)
Value:	$40,000

Reference:	DA 179/2019(1)	Determination Date	28 July 2019
PR Number	PR20238
Applicant/s:	Mr S O’Dea
Owner/s:	Poonondie Pty Ltd
Location:	Lot 70 DP 1077737 – 55 Astill Drive, Orange
Proposal:	Depot
Value:	$600,000

Reference:	DA 182/2019(1)	Determination Date	12 August 2019
PR Number	PR12433
Applicant/s:	Mr M Lofts and Ms M P Grgat
Owner/s:	Mr C D Lofts and Ms M P Grgat
Location:	Lot 3 Sec 2 DP 8196 – 152 Warrendine Street, Orange
Proposal:	Subdivision (two lot Torrens title)
Value:	$0

Reference:	DA 198/2019(1)	Determination Date	7 August 2019
PR Number	PR10247
Applicant/s:	Ms K Griffiths
Owner/s:	Mr TM Houghton
Location:	Lot 2 DP 9553 – 62 Prince Street, Orange
Proposal:	Demolition (tree removal), replacement of retaining wall, and driveway works)
Value:	$1,700

Reference:	DA 209/2019(1)	Determination Date	1 August 2019
PR Number	PR11580
Applicant/s:	Laser Clinics Australia Pty Ltd
Owner/s:	Alceon Group Pty Limited
Location:	Lot 564 DP 776383 – 212-220 Summer Street, Orange
Proposal:	Business premises (first use and fit-out)(Tenancy 48)
Value:	$360,000

Reference:	DA 217/2019(1)	Determination Date	16 August 2019
PR Number	PR2744
Applicant/s:	Orange Croquet Club Inc
Owner/s:	Orange City Council
Location:	Lot 1 DP 434040 – 149 Hill Street, Orange
Proposal:	Advertisements
Value:	$2,000

Reference:	DA 231/2019(1)	Determination Date	2 August 2019
PR Number	PR9813
Applicant/s:	Orange Regional Arts Foundation
Owner/s:	Ms L A Madigan
Location:	Lot 11 DP 800314 - 86-88 Peisley Street, Orange
Proposal:	Temporary use of land (entertainment facility)
Value:	$0

Reference:	DA 236/2019(1)	Determination Date	13 August 2019
PR Number	PR11580
Applicant/s:	Sportsgirl Pty Ltd
Owner/s:	Alceon Group Pty Limited
Location:	Lot 564 DP 776383 - 212-220 Summer Street, Orange
Proposal:	Shop (first use and fit-out) (tenancy 46)
Value:	$193,000