Agenda of Council Meeting - Tuesday, 15 December 2020

Council Meeting 15 December 2020

5.4 City Presentation Management Practices and Service Agreement

RECORD NUMBER: 2020/2498

AUTHOR: Scott Maunder, Director Community, Recreation and Cultural Services

EXECUTIVE Summary

At the meeting on 3 November 2020 – Cr Duffy requested:

QUESTION TAKEN ON NOTICE

Cr Duffy requested a report be provided on the upkeep of the City with Long Grass on ovals and walkways, the contractor requirements and schedules for what is looked after and what is not.

The Chief Executive Officer advised a report will be provided on the City’s Presentation.

Link To Delivery/OPerational Plan

The recommendation in this report relates to the Delivery/Operational Plan strategy “5.2 Live - Ensure the community services provided by Council are professionally managed, integrated and meet demonstrated needs”.

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council acknowledge the report.

further considerations

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

SUPPORTING INFORMATION

Council manages approximately 4.1 Million square metres of open space through a mix of Council staff, Contractors and labour hire staff.

Council staff are responsible for approximately 70% of the open space whilst contactors are engaged to service the remaining 30%.

This excludes the maintenance of footpath edging, water filtration sites and gardens maintenance.

Depending on the area it is maintained to a different level, or service level. For example Cook Park is maintained at the highest level whilst East Orange Channel is maintained at the lowest level.

Irrespective of who is conducting the works (Council or Contractors) every area of Parks and Open Space has the following requirements:

· Parks and open space areas are to be visited per their service level, with maintenance performed as required to meet the performance criteria specified for each work activity.

· The active playing surface of summer sports fields is mown on a weekly basis and at times twice per week depending on the season.

· Parks with Playgrounds will be mown fortnightly irrespective of level.

· The Recreation Ground at Spring Hill is to be maintained to the performance requirements for Cricket Ovals in Season.

· Spring Hill and Lucknow village mowing includes mowing of verges that are not maintained by residents.

· Contractor is to ensure provision of own site traffic management/control activities as required for compliance with WorkSafe NSW / RMS regulations.

The services levels are:

Service Level	Corresponding Park Category	Activity	Maintenance frequency
1	Regional	All activities as specified and required.	Weekly Visitation
2	District	All activities as specified and required	Visit Every Two Weeks
3	Local	All activities as specified and required	Visit Every Four Weeks
4	Linear/Ancillary/ Natural Area	All activities as specified and required	Visit Every Six Weeks

Each area also has performance criteria for work activities that are applicable for that area. The work areas are:

· Weed control

· Care of trees and shrubs

· Gardens

· Grass mowing

· Gravel footpath repairs

· Open space litter collection

· Open space graffiti removal

· Water supply – irrigation systems

For example the performance criteria for Grass Mowing is

1420 Grass mowing (HMO) - Activity Specification

Standards

AS 2657-1985 Powered rotary lawnmowers

AS 3792 Ride-on lawnmowers

AS 3792.1-1990 Field guides for traffic control

AS 4057-1992 Powered walk-behind and hand-held lawn trimmers and lawn edge trimmers – Mechanical safety requirements and test methods

ACTIVITY DEFINITION (What work is included?)

This activity covers mowing of all classifications of parks and recreation areas and those areas classified by Council as ‘grassed areas’.

This activity includes edge trimming along footpath edges, around trees, shrubs, access chambers, hydrants, posts, poles, under and around seats and tables.

PERFORMANCE DISTRESS AND DEFECTS (What do we look for?)

Grass growth impeding safe and intended usage of parks and recreation areas and creating an unsightly appearance to parks/area users.

PERFORMANCE CRITERIA (Why do we do it?)

Grass mowing creates a neat appearance to the parks and recreation areas and allows for safe usage.

PERFORMANCE STANDARDS (What is required?)

Grassed areas are to be maintained at the following target growth limits.

1 < 75 mm

2 < 100 mm

3 < 100 mm

4 < 150 mm

The height of grass after cutting is to be no less than 50 mm.

Cricket Ovals are to be maintained during playing season at < 40 mm, and no less than 25mm.

Do not make wheel ruts more than 5 mm deep into the grass surface during mowing.

Note all sites shall be mown a minimum of 12 times during the growing season (September to May)

WORK METHOD REQUIREMENTS (Contractors undertaking to provide quality)
1.	Litter and deciduous leaf accumulation (in season) retrievable by hand up to ½ cubic metre per hectare shall be removed prior to mowing and disposed of at a recycling centre, for suitable material, or a legal tipping facility.
2.	Heavy litter or deciduous leaf accumulation (in season) or ‘dumped refuse’ not meeting the definition above shall be removed after issue of a work order by the Superintendent and will be treated as an extension of this activity and paid as Dayworks.
3.	No skidding, dragging or detrimental mowing operations permitted with clippings evenly distributed across the site.
4.	Equipment will be maintained and operated so as to minimise the danger of projecting stones or debris in a dangerous fashion. Grass and other debris shall not be projected into open surface drains, grates or culverts.
5.	The operators shall be fully trained in the safety requirements contained in:
	AS 2657	Powered rotary lawnmowers
	AS 3792.1	Ride-on lawnmowers
	AS 4057	Powered walk-behind and hand-held lawn trimmers and lawn edge trimmers – Mechanical safety requirements & test methods.
6.	The operator(s) shall be fully trained to carry out the works specified and briefed on requirements necessary to avoid damage to natural regeneration of native vegetation or landscaped areas as indicated at the commencement of the contract and from time to time during the contract period.
7.	Hand mowing and/or trimming and/or weed spraying shall be undertaken along footpath edges, around trees, shrubs, access chambers, hydrants, posts, poles and around seats and tables.
8.	Remove grass cuttings and debris from cutting operation from roads, tracks, paths, walkways, paved areas and reserve furniture.
9.	Mowing shall cease during periods of Total Fire Ban where areas are open to dry grass or bushland with high fuel load. Council approval for mowing during Fire Bans is required in all areas which are not regularly watered and protected by perimeter walkways or gardens that act as firebreaks.
10.	Mulching mowers shall be used wherever possible.
11.	Grass cuttings shall not be left in windrows.

1) CHECKLIST (For a programmed Work item)
1.	Litter clearance is adequate to allow mowing?		Yes	No
2.	Resultant mown growth height is 50 to 75 mm.		Yes	No
3.	Regeneration area noted in this sector.		Yes	No
4.	Conservation of Heritage site noted in this sector		Yes	No
5.	Noxious weeds noted?		Yes	No
	If ‘Yes’ eradication method appropriate.	………………………………………………….…..

HIGH PRIORITY AREAS

High priority areas such as Orange Botanic Gardens have an additional internal service level agreement and an agreement with the Friends of the Botanic Gardens to undertake the works.

ELEMENTS THAT AFFECT ACTIVITIES

1. Rain

The main uncontrollable element that affects the performance is rain. Often in periods of high rain, as has recently been experienced, the ground can be too wet to enable equipment to access the site to perform the activity.

Areas that are susceptible to this constraint include:

· Moulder Park

· International Gardens

· Spring Hill

2. Equipment

Specialist equipment is required to perform the activities and depending on the season the availability of equipment limits the capacity to engage additional contractors or labour hire to perform the tasks.

An analogy is that headers are required to conduct a harvest and in good years of high crop growth there are limited headers available to conduct additional works.

3. Contractors

Council manages its contractors through a tender process which governs the works to the standards required and referred to above.

Barnes Prestige Pty Ltd are the contractor engaged under the tender to provide services.

Council has been working with Barnes Prestige for many years and enjoy a strong working relationship.

The tender was conducted in 2017 and the current tender is in place until 31 August 2023.

OTHER MATTERS

1. Private Property

Long Grass on private property is a matter for the Rural Fire Service to issue orders to the landowner for the maintenance of that land.

2. Levels of Service

Levels of service are able to be adjusted to reflect the desires of the community or Council.

An increase in the level of service, for example a shift from Level 2 to Level 1 will result in additional time and resources to achieve that outcome. There will be an additional expense through either increased contractor costs or increased staff and equipment cost.

Attachments

1 Council Parks and Open Space Maintenance List - Internal, D20/75229 ⇩

2 Scope of Works - Tender - Maintenance of Public Open Space - 2020, D17/30226 ⇩

3 Orange Botanic Gardens - Service Maintenance Levels, D20/75053 ⇩

4 Friends of the Botanic Gardens - Memorandum of Understanding - June 2020, D20/75231 ⇩

5 Request for Tender - Maintenance of Public Open Space, D17/32096 ⇩

Council Meeting 15 December 2020

5.5 Development Application DA 59/2020(1) - 194A March Street

RECORD NUMBER: 2020/2528

AUTHOR: Kelly Walker, Senior Planner

EXECUTIVE Summary

Application lodged	19 February 2020, amended proposal received 19 August 2020 (183 Stop Days)
Applicant/s	T & S Flowers Pty Ltd
Owner/s	Flowers Funds Management Pty Ltd
Land description	Lot 222 DP 1239110 - 194A March Street, Orange
Proposed land use	Multi Dwelling Housing (five dwellings), and Subdivision (six lot Community title)
Value of proposed development	$1,600,000

Council's consent is sought for five new dwellings and subdivision (six lot Community title) at Lot 222 DP 1239110 - 194A March Street, Orange (see Figure 1). The first stage of the proposal involves the construction of the dwelling houses and services, and the second stage involves the subdivision to create one Community lot and five residential lots.

Figure 1 - locality plan

It is noted that the original proposal lodged with Council involved the construction of seven dwelling houses, and an eight lot Community title subdivision. Following the initial public exhibition period, where 18 submissions from 16 submitters were received opposing the development, and discussions with Council staff, the applicant revised the proposal reducing the density of dwellings and lots on the site. The amended proposal was re-exhibited to neighbours and original submitters, and nine submissions were received. The main outstanding issues raised by objectors relate to the density, scale, and height of the dwellings proposed, and the resulting heritage impacts. This is discussed in detail in the main body of the report.

It is noted that Council recently resolved to adopt the ‘Draft Heritage Study review’ at the Planning and Development Committee meeting of 1 December 2020. The next step is for Council’s strategic planning staff to commence the process of amending the Orange Local Environmental Plan 2011 (LEP) to formalise the study’s recommendations into Council’s planning scheme. Of particular interest to this proposal is the recommended expansion of the Heritage Conservation Area to include the precinct around Newman Park, which would include the subject site. However, this study has no determinative or legal weight until such time as a draft LEP amendment is placed on public exhibition, and as such is not relevant to this particular assessment. Notwithstanding this, the subject site is currently considered to be in a heritage setting given the proximity to adjacent and nearby heritage listed items. As such, the relevant heritage planning provisions need to be given consideration in the assessment of this application, which are discussed in detail in the “LEP Clause 5.10 Heritage” assessment later in this report.

It is considered that the amended proposal requires some minor design changes in regards to use of materials, colours and landscaping to be acceptable in this setting, and that recommended conditions of consent can address these matters. This is discussed in more detail in the “LEP Clause 5.10 Heritage” assessment later in this report.

Overall, the amended proposal will not contravene the planning regime that applies to the land. Impacts of the development are considered to be within reasonable limit, consistent with applicable standards, and addressed by appropriate conditions of development consent, as discussed in the main body of this report. Approval of the application is recommended, as set out in the attached draft Notice of Approval.

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

The proposed development is permissible subject to receiving development consent. The applicant amended the proposal part way through the assessment in an attempt to address concerns raised by both Council staff and the community. The application was notified on two separate occasions. It is considered that the amended proposal can now be supported by Council subject to the adoption of the recommended conditions of consent contained in the attached Notice. The recommended conditions in part require some design changes in regards to use of materials, colours and landscaping so as to ensure that the development is acceptable in this setting.

Overall, the amended proposal will not contravene the planning regime that applies to the land. Impacts of the development are considered to be within reasonable limit, consistent with applicable standards, and addressed by appropriate conditions of development consent. The development will contribute to the diversity of housing forms in the precinct in a manner that is considered consistent with the neighbourhood character.

FINANCIAL IMPLICATIONS

Nil

POLICY/GOVERNANCE IMPLICATIONS

Nil

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 consents to development application DA 59/2020(1) for Multi Dwelling Housing (five dwellings) and Subdivision (six lot Community title) at Lot 222 DP 1239110 - 194A March Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

Consent is sought for residential development of land at 194A March Street, comprising multi dwelling housing (five dwellings), and a six lot Community title subdivision in two stages as follows:

Stage 1 - Construction of five new detached dwellings and associated site works and servicing.

Stage 2 - Community title subdivision to create six (6) lots, comprising one communal lot and five residential lots to contain one dwelling on each residential lot.

The proposed site and subdivision layout is depicted in Figure 2 below.

Figure 2 - proposed subdivision plan (from sheet 4 by Peter Basha Planning & Development)

The proposed dwellings will each be two storey in height and detached. Each dwelling will contain three bedrooms, two bathrooms, open-plan kitchen/dining/living area, and laundry. Each dwelling will also comprise an attached double garage, with the exception of proposed Dwelling 3 which has a single garage. Separate private open space will be provided for each dwelling. Landscaping and visitor parking is proposed, as depicted in Figure 2 above.

External finishes for the dwellings will comprise Weathertex Selflock Eco Groove wall cladding, Colorbond roof sheeting, panel lift garage doors, and aluminium-framed glazing. Perimeter and internal fencing will be erected, and site landscaping installed.

Subdivision of the development site will follow the construction of the dwellings, so that each dwelling will be on its own Community lot, as follows:

Proposed Lot	Improvements	Lot Area
Community Lot 1	Community property – vehicle access/driveway areas, services, visitor parking, bin collection area, etc.	798.4m²
Community Lot 2	Dwelling 1	315.3m²
Community Lot 3	Dwelling 2	333m²
Community Lot 4	Dwelling 3	249.4m²
Community Lot 5	Dwelling 4	291.9m²
Community Lot 6	Dwelling 5	328m²

BACKGROUND AND HISTORY

Council refused a boarding house proposal on the subject site on 14 August 2018 (DA 86/2018(1)) due to the design and siting of the buildings being incompatible with the character of the local area, adverse impacts to the heritage setting, and adverse residential amenity impacts. The subject land has since been sold to a new owner and developer.

Council approved subdivision of the subject land excising the original dwelling house (fronting March Street) onto its own lot in June 2017, and a subsequent modification of that subdivision in November 2017 (DA 158/2017(2)).

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 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 four triggers known to insert a development into the ‘Biodiversity Offset Scheme’ (i.e. the need for a Biodiversity Development Assessment Report 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).

· Trigger 4: development proposed to occur in an Area of Outstanding Biodiversity Value (clause 7.2 of BC Act 2016).

In consideration of Triggers 1 and 4, the site is not within land mapped on the Biodiversity Values Map or LEP Biodiversity Map, or in an Area of Outstanding Biodiversity Value.

In consideration of Trigger 2, the proposal does not involve the clearing of any vegetation, where the subject site is already clear of trees, and does not contain any native grasses. The proposal has been amended to take into account the neighbouring trees which overhang the boundary. Most of the trees in the area are introduced/exotic species. Overall, and in regards to Trigger 3, it is considered that the development is unlikely to significantly affect any threatened species or communities.

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 subsequent 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, which are discussed in greater detail 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 listed item or within a heritage conservation area, but located within a heritage setting, with heritage listed items immediately adjacent and opposite the site. The recently Council adopted Heritage Study for the City includes the subject land in a draft Heritage Conservation Area.
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Groundwater vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies
Flood Planning Map:	Not within a flood planning area

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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 relevant instrument under Section 13.4 of the Crown Land Management Act 2016, 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 under Subdivision 2 of Division 7.1 of the Environmental Planning and Assessment Act 1979.

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

Part 2 - Permitted or Prohibited Development

Clause 2.1 - Land Use Zones

The subject site is located within the R1 General Residential Zone. The proposed development is defined as multi dwelling housing and subdivision, which are permitted in the R1 zone with the consent of Council.

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 area, and will complement the developing neighbouring residential density as discussed in the LEP Clauses 5.10 and DCP assessments later in this report

· the area is serviced by public transport and is in walking distance to local schools, shops, and recreation facilities (parks, sports, and the likes)

· the site does not have frontage or access to the Southern Link Road.

Clause 2.6 - Subdivision - Consent Requirements

Clause 2.6 is applicable and states:

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

Consent is sought for Community lot subdivision in accordance with this clause.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

Clause 4.1 - Minimum Subdivision Lot Size

This clause requires the subdivision of land to be equal to or greater than the size nominated for the land under the Minimum Lot Size Map. The LEP does not nominate a minimum lot size for this lot, as such, the proposal is consistent with this clause.

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

This clause applies to the subdivision of land under a community title scheme in the RU1, E2, E3 and E4 zones. The proposal involves community title subdivision, however the subject land is zoned R1, and therefore this clause does not apply.

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

This clause sets a minimum lot size for multi dwelling development (i.e. three or more dwelling houses on one lot) in R1 zones as 1,250m². This subject land is 2,316m² in size, and therefore is consistent with this clause.

Part 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

The subject land is considered to be within a “heritage setting” given the character of the surrounding area, and the proximity of the site to numerous heritage items, as set out below. LEP Clause 5.10 is applicable and states in part:

(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.

The subject land is located in the vicinity of the following Heritage Items (see Figure 3):

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

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

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

· 45-71 Spring Street, 206-212 March Street and 46‑56 Nile Street - ‘East Orange Public School’ - the school precinct is of social significance to the local community, historically marking the mature growth of East Orange and the early buildings, including the 1925 classical block. Mature trees with cultural landscape significance exist in the grounds. The school complements the streetscape and contributes as a Heritage Item, and is highly valued by the community.

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

Figure 3 - listed buildings and items (in beige hashing)

Draft Heritage Study

It is noted that Council recently resolved to adopt the ‘Draft Heritage Study review’ at the Planning and Development Committee meeting of 1 December 2020. Recommendations include renaming some of the existing Heritage Conservation Areas to reflect their heritage, new Heritage Conservation Areas, and extension of the existing Heritage Conservation Areas and list of Heritage items. Of particular interest to this proposal is the recommended expansion of the Heritage Conservation Area of Newman Park, which would include the subject site (see Figure 4).

Figure 4 - proposed Newman Park Heritage Conservation Area

(within orange line are, red hashing shows existing Heritage Conservation Area,

beige hashing shows listed Heritage Items)

The next step is for Council’s strategic planning staff to commence the process of seeking to amend the LEP to formalise the study’s recommendations, which involves further public consultation, and requires State government endorsement. Importantly, this study has no determinative or legal weight until such time as a draft LEP amendment is placed on public exhibition, and as such cannot be taken into account in this particular assessment. Notwithstanding this, and as discussed above, the subject site is already within a heritage setting and the relevant heritage planning provisions need to be given consideration.

Character of the Local Area

In order to consider the effect the proposal has on the significance of the heritage 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, the Burra Charter, ‘Design in Context: Guidelines for Infill Development in the Historic Environment’ (NSW Heritage Office and Royal Australian Institute of Architects, 2005), and relevant Case Law.

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

· Generally level topography, with Blackmans Swamp Creek nearby to the South East.

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

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

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

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

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

- predominately single storey in height, with varying roof heights (older dwellings typically have higher roofs than post-war aged dwellings)

- a mix of external materials, finishes, detailing, and colours

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

- generous front setbacks and landscaped front and rear gardens

- garages and carports typically located towards the rear of dwellings.

· Intact original Bungalows in the Autumn Street streetscape, which back on to the site where the new dwellings are proposed.

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

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

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

Departures from the historical built character include a two storey mixed use building at 49 Nile Street (Simply Nile café and residence); recent unit developments to the rear of the subject site, which comprise smaller lot sizes and single storey contemporary dwellings; recent seniors housing to the north and east of Newman Park on Nile Street comprising single storey contemporary units; and Ascott Gardens aged care facility comprising multiple large buildings and small units in addition to the heritage listed building on the site.

Thus the existing character of the area is the combination of local aspects including style, scale, and materials. In particular:

· Scale: The height is predominantly single storey.

· Form: The form is generally hipped pitched roofs with some gable elements.

· Siting: The predominant setbacks are minimal to one side of each dwelling and the width sufficient for vehicle access to the rear while frontages range from 5-7m. Contemporary infill has adopted an axe handle use of the side setback for access to the rear.

· Materials and colour: The materials and colours of earlier buildings are brick with later buildings in painted render, and the basalt base is in use early and interpreted in later buildings. Earlier buildings reflect their long-life materials while later and contemporary buildings opt for shorter-life painted surfaces.

· Detailing: The detailing generally reflects the periods and amenity with porches, gables and front verandahs to produce identity, and awnings for amenity and shading to the general elevations. Fenestration is generally double hung windows, lintels expressed, and chimneys penetrate roofs.

· Landscape: The buildings in the vicinity include generous planted front gardens within the setback, while the narrow side accommodates the minimum hard area and the other side accommodates the driveway and rear access. The rear areas vary and include soft landscape and mature trees or similar, plus garden sheds, while the typical new single storey villa units include a 3m setback between the drive and building front for soft landscaping.

Planning principles established by the Courts state that an assessment of character shall include existing character, as well as the desired future character. The controls in the LEP and DCP are relevant in determining the likely future character of the local area.

Examples of LEP permitted uses in the R1 zone include boarding houses, child care facilities, community facilities, hostels, multi dwelling housing, places of public worship, residential flat buildings (i.e. multi-storey blocks of units), seniors housing, and tourist and visitor accommodation. State polices also permit other uses such as health care and educational facilities in the zone. The LEP does not set height limits in the residential zones, where the DCP guidelines are relied upon for appropriate scale and bulk (i.e. bulk to be progressively set back from the boundaries, heights along the street to be comparable to adjacent development, etc.). Generally larger sites can build higher than smaller sites, as there is more space to provide the setback progression. Furthermore, the State code allows two-storied dwelling houses, multi dwelling housing, and attached housing generally up to 8.5m in height as complying development (i.e. without needing a DA from Council).

Based on the current planning policies and anticipated future planning strategies, it is reasonably expected that these types of uses will be more intensive than the predominant single dwelling houses of the area, including varying contemporary designs, and increased bulk, scale, heights, site coverage, traffic levels, parking demand, etc. It is also anticipated that two-storied infill development will become more common in Orange in the near future as the population increases and availability of land decreases. Thus two-storied development is expected and considered reasonable in residential zones and heritage settings, providing they meet the relevant design principles and planning requirements. Recently there have already been more intensive types of infill development in the immediate surrounds, including multi dwelling housing and seniors housing units as discussed in the existing character assessment above.

Furthermore, it is important to note that the heritage planning policies do not preclude development from occurring in a heritage setting, but rather provides additional requirements to be taken into consideration as discussed above and below.

In light of the comments above, it is considered that the desired future character for the locality is for it to remain a predominantly residential area, characterised by dwellings in a landscaped setting, with supporting neighbourhood uses and buildings as permitted by the relevant planning policies.

Character and Heritage Assessment of Proposed Development

An important aspect of good design is having regard to the context of the site and its surroundings, with particular consideration to the existing and desired character of the area (as discussed above). ‘Design in Context’ states that to achieve a successful infill design the following design criteria applies:

· character - new buildings must harmonise with their surroundings

· scale - size in relation to surrounding buildings or landscape

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

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

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

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

Furthermore, planning principles established by the Courts discuss compatibility with character which are relevant to this application. In particular Project Venture Developments v Pittwater Council [2005] NSWLEC 191 sets out the following principles:

· the design of a development does not need to be the “same” to be compatible, but it should respond to the desirable elements of the character of the area

· consideration needs to be given to whether the proposal's appearance is in harmony with the buildings around it, and it is generally accepted that buildings can exist together in harmony without having the same density, scale, or appearance

· buildings do not have to be the same height to be compatible, and it is easier to achieve compatibility when the height change is gradual rather than abrupt

· landscaping is also an important contributor to urban character, and where canopy trees define the character, new developments must provide opportunities for planting canopy trees.

The initial development lodged with Council, which proposed seven residential dwellings, was considered to be inconsistent with the predominant character of the area due to inappropriate density, setbacks, and spacing, and lack of opportunity to plant suitable plants and deep rooted trees. Design and siting feedback was provided to the applicant, and an amended application was submitted to Council reducing the density of dwellings down to five, and increasing setbacks, spacing, landscaping opportunities, etc. accordingly.

In its current amended form, it is considered that the design and siting of the proposed dwelling houses and lot layouts are generally consistent with the established character of the local area for the following reasons:

· setbacks, form, scale, bulk and siting in relation to the boundaries and neighbouring dwellings will harmonise with the surrounding built form, landscape, and character. These aspects are also consistent with the requirements of the DCP (discussed later in this report)

· although each of the dwellings are two storied in height, the bulk of the proposed first floor elements have been inset into the central part of the ground floor footprint, which is an effective means of modulating the development, and stepping the building bulk away from the boundaries and neighbours. This is in accordance with good design principles for infill development and established case law

· the subject land is a battleaxe site, thus most of the streetscape principles do not apply, and the proposed two storey configuration of the dwellings will be not be readily visible from the wider streetscape (i.e. between and over the existing neighbouring dwellings) when viewed from March, Autumn, Nile, and Byng Streets, thus will not compromise the historical significance of nearby listed items or the wider heritage setting

· the spacing between the proposed buildings generally relate to the pattern of the surrounding area, which includes a mix of small and larger lot sizes

· proposed areas of open space is reasonably sympathetic to the open nature and mature landscaping which characterises the area, consistent with other contemporary development in the immediate area

· proposed siting and hard surface coverage (buildings, car parking areas, driveways etc.) is reasonable compared to the mixed surrounding pattern of development and grain of the area

· the use of front porches is a positive contribution to both amenity and identity as it provides a contemporary interpretation of the traditional element and the practical weathering inherent of the verandah

· the rear and side setbacks are suitable for accommodating waste bins, water tanks, side access, plantings, deep rooted trees, etc.

· the overall design of the proposed buildings, including their scale, roof form, porches, and fenestrations reasonably recognise and interpret the characteristic and traditional elements of the surrounding built form.

Notwithstanding these comments, the proposed building materials, detailing, and colours need amending to ensure the proposal has a compatible visual appearance in the surrounding context. Following a review of the initial proposal, staff requested additional information and amendments from the applicant in this regard, including:

- Incorporation of distinctive or individual features to distinguish one dwelling from the next (as they are essentially all the same), through material use, colours, awnings, etc.

- Use of face brick at ground floor level to recognise characteristic materials, textures and colours used locally and in adjacent buildings, as well as in recent contemporary buildings, along with the use of sheet cladding at first floor level, rather than the proposed weatherboard style cladding which is not appropriate in the surrounding context.

- Submission of a colour scheme to reflect the surrounding character.

- Submit a photo-montage or long elevations to show the proposed dwellings in context of one another and existing dwellings.

The amended application did not take any of these recommendations into account. A proposed colour scheme was submitted with the amendment, however is not considered appropriate, as the modern bright grey colours and weatherboard style cladding will not fit in with the surrounding character. Further, the single colour scheme for all five houses is not supported due to the visual impact on bulk, scale, heritage, etc.

Council’s Heritage Advisor recommends the following changes:

· Submit amended scheme elevations to demonstrate that each of the five houses includes a set of unique identifying materials and colours based on the following:

- traditional darker coloured face bricks to all ground floor levels

- tilting garage doors in a complementary colour (but not White or light reflective colour)

- powder-coated window and door fenestrations in timber colours

- sheeting to the first floor walls above 1500mm (in place of weatherboards)

- porch details for each of the five houses to have one of the following: traditional timber posts, an expressed contemporary steel frame, circular columns, and rendered masonry column piers

- Colorbond roofs from the following colours: Shale Grey, Windspray, and Woodland Grey with contrasting gutters/fascias

- traditional awnings to windows on north, west and east elevations

- traditional rolled flashings, standard quad gutters, and circular downpipes.

· Submit an amended landscape plan to illustrate the provision of outdoor spaces, traditional timber fencing to the March Street driveway and Windspray Metroll Corodeck to other boundaries, at least one tree with a mature height of 6-8m to deep soil areas in each dwelling lot, additional ground cover plantings, and a charcoal/basalt pigment through-coloured driveway.

Staff concur with these recommended changes. Although important elements of the proposal, these matters can be dealt with via conditions of consent which are required to be satisfied prior to the issuing of a Construction Certificate, as they do not affect the main principle of the proposal, site layout, servicing, or overall scale and bulk of the buildings, which will remain unchanged. Overall, it is considered that the proposal is acceptable in terms of heritage provisions, on the basis of these recommended changes being made.

It is noted than an assessment of heritage compatibility relates to the cultural values and historical significance of the setting, and does not relate to residential amenity impacts to future occupants or neighbouring dwellings, which is discussed later in this report under the “Development Control Plan 2004” assessment section. Submissions from neighbours are discussed in the “Any Submissions” section later in this report.

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 is relatively flat, and proposed earthworks are limited to creating building slabs, driveways and related servicing requirements. Earthworks will need to be carried out in a manner that will protect neighbouring trees near and overhanging site boundaries, and Tree Protection Zone (TPZ) conditions of consent are recommended to this effect.

Council’s Development Engineers will require full engineering details prior to works to ensure driveways and services can be constructed to the appropriate standards, and will not adversely impact on the environment. Conditions of consent are recommended in relation to this, and to 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.

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.

In consideration of this clause, the proposal is considered to be acceptable subject to the conditions of consent discussed above.

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.

Council’s Development Engineer notes that the development is required to provide onsite stormwater detention to limit post-development peak flows to that of pre-development peak flows. Some natural detention will occur through the use of a 3,000L rainwater tank on each dwelling. Conditions of consent are recommended in regards to this requirements, and to satisfy Clause 7.3.

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.

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 onsite conservation,

(e) suitable road access.

In consideration of this clause, the listed utility services are available or can be made available to the land, and will be adequate for the proposal. Conditions of consent are included on the attached Notice of Approval requiring extension, augmentation and/or upgrading of urban utility services to the standards required to service the proposed dwellings/lots.

Council’s Development Engineer notes that the proposed access handle driveway is considered satisfactory for two-way low speed passing (driveway is central in access handle and has no kerbs). The common driveway has sufficient width to allow vehicles to pass, turn around inside the site, and access garages, as demonstrated by the submitted turn path analysis.

Water and sewer headwork contributions are applicable, based on five x three bedroom dwellings (one credit for a three bedroom dwelling exists for the site), pursuant to Section 64 of the Local Government Act 1993. Relevant conditions of consent are attached.

The site frontage to March Street will not accommodate the kerbside placement and collection of waste, recycling, and organic bins for the proposed dwellings. Conditions of consent are recommended requiring a run‑cost agreement be entered into with a waste collection contractor. Occupants can leave their bins at the proposed designated area towards the end of the driveway on collection day, but they must be returned for storage with the respective dwellings on other days.

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.

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

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

The BASIX SEPP is applicable to this proposal as residential accommodation. The applicant has submitted multi dwelling BASIX Certificate for the proposal which demonstrates that the amended proposal meets the NSW Government’s requirements for sustainability (water, thermal comfort and energy).

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

State Environmental Planning Policy Draft Remediation of Land

The Draft Remediation of Land SEPP is applicable, and requires in part that consideration be given to potential contamination on nearby or neighbouring properties and groundwater. Land adjoining the site is not identified as being contaminated, and the contamination status of neighbouring residential lands is unlikely to adversely impact on the proposed development.

Draft Orange Local Environmental Plan 2011 (Amendment 24)

Draft Amendment 24 involves various administrative amendments to the LEP including updated maps, and new and amended clauses. The proposed development is not contrary to any matter contained in the Draft Amendment. It is noted that Amendment 24 does not include the Draft Heritage Study recommendations previously discussed, which will be subject to a separate future LEP amendment.

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 LEP assessment. The relevant matters in Part 5 are addressed later in this report (refer “Any Submissions” section). Part 7 is assessed below.

DCP Part 7 - 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.

Neighbourhood character has been discussed extensively in the LEP Clause 5.10 heritage assessment earlier in this report. It is considered that subject to some changes in materials, colours and detailing, the proposed dwellings will complement the heritage setting and desired future character of the surrounding area.

The proposal will not adversely impact on pedestrian access associated with the residential street. All vehicles associated with the development will enter and exit the site in a forward direction. Sight lines within March Street are appropriate to avoid conflict with pedestrians.

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

Building Appearance

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

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

· the frontages of buildings and their entries face the street

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

As previously discussed in the LEP Clause 5.10 heritage assessment earlier in this report, the overall design of the dwellings is considered acceptable subject to the recommended changes to materials, colours and detailing being adopted so as to ensure that they will harmonise and complement dwellings on adjoining lands and the wider heritage setting. It is noted that other than direct views down the driveway, the proposed dwellings will not be readily visible from the street due to separation distance, and existing dwellings fronting the streets on neighbouring lots.

Each proposed dwelling incorporates an attached garage and front door facing the communal driveway/Community lot. Proposed garages will not present to March Street, therefore will not dominate the street.

Heritage

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

· Heritage buildings and structures are efficiently re-used.

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

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

Heritage was addressed in detail in the LEP Clause 5.10 assessment earlier in this report, which took into account the DCP heritage planning outcomes. Overall it is considered that the proposed development will be acceptable in the heritage setting, subject to some changes to materials, colours, detailing, and landscaping. These matters have been addressed through conditions in the attached Notice of Determination.

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.

The subject site is a battleaxe lot with no street frontage, other than the existing driveway and proposed mailboxes. Neighbourhood character has been addressed above. Adverse streetscape impacts are not anticipated as a result of this proposal.

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 given it is a battleaxe lot as discussed above.

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 following comments are made in relation to these planning outcomes:

- setbacks, scale, form and siting of bulk in relation to the boundaries are consistent with the surrounding built form as discussed previously in the LEP Clause 5.10 heritage assessment

- side and rear setbacks are progressively increased to reduce bulk and overshadowing, and the spacing between the proposed buildings relate to the pattern of the surrounding area as discussed previously in the LEP Clause 5.10 heritage assessment

- the proposed site coverage by hardstand areas (car parking, driveway, etc) and areas of open space and landscaping is reasonable compared with adjoining lands, and consistent with recent contemporary infill development in the immediate surrounds

- the subject land is a battleaxe site, therefore does not have street frontage. The proposed two storey building height and bulk, when viewed from the surrounding streets, will be consistent with the surrounding built form due to the modulated design previously discussed in the LEP Clause 5.10 heritage assessment

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

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

- building to the boundary is not appropriate nor proposed in this case

- a total building footprint of 694.8m² is proposed, and based on a site area of 2,316m² the development will have site coverage of 30%, which is in compliance with the maximum 50% prescribed for multi dwelling housing development.

Overall, it is considered that the visual impacts in terms of bulk and scale are in accordance with the above DCP planning outcomes, as well as good design principles for infill development and established case law.

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 construction of buildings on the boundary, and provides for suitable setbacks from side and rear boundaries. Visual bulk was assessed above, and privacy and solar access assessments are carried out below.

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.

The applicant has submitted shadow diagrams and calculations to demonstrate that the proposed development complies with the DCP. As set out in the following table, the proposed areas of open space for each of the dwellings will receive adequate winter sun:

The DCP also requires the proposed development to comply with these guidelines for areas of private open space on adjoining properties. As shown in the submitted shadow diagrams, most of the shadows created on neighbouring land are caused by existing boundary fence shadows. The outdoor areas of neighbouring dwellings to the east and west will have some minor overshadowing, but due to lot sizes and orientations, compliance will be achieved, and impacts will not be adverse.

Southern neighbours will be the most affected due to orientation. The neighbour at number 58 Autumn Street will have some overshadowing from proposed Dwelling 4, but will be within reasonable limits due to most of the shadowing falling on a shed and other outbuildings. The neighbour at Unit 5/45 Nile Street has a very small northern back yard, and proposed Dwelling 3 will create some additional overshadowing. Based on the shadow diagrams provided, there will be shadowing over and above the boundary fence until about 1pm, meaning they will only receive two hours of sunlight of the required three hours. It is noted that due to the bulk of the second storey element of this proposed dwelling being set back from the ground floor and boundaries, shadows cast by first floor element will not be significantly different from shadows cast by the ground floor level. As such, reducing the height of this proposed dwelling will do little to mitigate this impact, and a reduction in dwelling footprint (i.e. so it is further from the southern boundary) would be a better outcome. Staff raised overshadowing issues with the applicant during discussions, and while the reduction in overall density/unit numbers on the site has improved overall shadowing impacts, this one particular neighbour will still be impacted.

On balance, this non-compliance is considered within reasonable limits for the following reasons:

- this is only DCP non-compliance of the proposed development

- the DCP three hour sunlight criteria is only a guideline, not a prescribed standard

- the overarching planning outcomes for daylighting can be met, that is, the increase in overshadowing to this neighbour is not significant

- daylighting to the neighbour’s Northern windows can still be achieved, as discussed below.

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, some with pergolas. Submitted shadow diagrams indicate that compliance will be achieved in accordance with the DCP, both internally (i.e. the proposed dwellings), and Northern living rooms windows for adjoining dwellings.

Views

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

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

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

There are no particular views or vistas to be taken into account, other than the wider heritage streetscape. For the reasons discussed in the LEP Clause 5.10 heritage assessment, and DCP outcomes above, adverse impacts are unlikely in this regard.

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.

In regards to the ground floor levels and areas of outdoor space, the proposed site layout and building design will provide acceptable visual privacy for proposed and adjoining dwellings due to the following:

· Perimeter and internal fencing will be installed.

· Ground floor levels will be commensurate with existing natural ground levels, and boundary fencing will limit opportunities for overlooking between existing and proposed dwellings windows.

· Living room openings will overlook associated open space areas, and will not oppose windows in other dwellings due to boundary fencing and levels.

· Opposing open spaces will have minimal interface due to boundary fencing and levels.

· Dwelling entries will be recessed in individual porches.

In regards to the first floor/second storey component of each dwelling house, State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 provides guidance on when privacy screens are required, as follows:

· first floor/second storey windows at least 3m but not more than 6m from a side or rear boundary

· applies to habitable room windows less than 1.5m above the finished floor level

· does not apply to bedroom windows less than 2m² in area.

All proposed dwellings include first floor bedroom windows between 3-6m from rear boundaries, but they are all less than 2m² each. It is not considered reasonable or necessary to erect privacy screens on small-medium sized bedroom windows, as it is not expected that occupants will spend much time looking out of these. Furthermore, neighbouring dwellings are located a sufficient distance from the proposed dwellings, therefore the marginal opportunities for overlooking will be limited to garden areas and not directly at neighbour’s windows. The DCP requires a separation distance of 9m between upper level windows and living room windows of adjacent dwellings, and the development complies in this regard. Proposed Dwelling 3 is located in closer proximity to the unit development to the south and south-west, however its upper level bedroom windows are only located towards the west, where the neighbouring dwelling is some distance away. All other upper level windows are to bathrooms and stairwells, where privacy impacts will also be minimal.

All dwellings also include first floor bedroom windows overlooking the common driveway area, however only proposed Dwellings 2 and 4 windows are located directly opposite each other. Although this provides opportunity for some internal impacts, it is considered that the separation distance between them (7.75m) is sufficient to minimise impacts, occupants are unlikely to spend much time looking out of these windows, and occupants are likely to have window furnishings to individually control their bedroom privacy. Furthermore, future occupants could individually erect privacy screens at a later date if they choose too.

It is noted that the applicant has proposed translucent privacy screens to the some of the upper level windows in an attempt to address privacy impacts, however, staff do not generally support the use of these film type of screens for privacy mitigation due to their poor performance and temporary nature. Notwithstanding this, it is considered that privacy screens are not required for this proposal, as discussed above.

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.

The proposed dwellings are sufficiently separated to maintain adequate acoustic privacy. It is not expected that noise levels for the residential use of the proposed lots and dwellings will be over and above expected and surrounding noise levels.

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 in regard to safety and security the design of the dwellings will offer reasonable opportunities for surveillance of the internal driveway and common areas; the site has reasonable access control due to internal garages and perimeter and internal fencing; and the landscape design will not restrict sight lines.

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.

Access to the proposed dwellings will be via a shared private driveway from March Street. As discussed previously, the driveway is considered suitable for the proposal, and will to meet Council’s development standards.

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 DCP 2004, onsite parking is required for three+ bedroom dwellings at a rate of 1.5 spaces per dwelling; with visitor parking required at a rate of 0.2 space per dwelling. Based on five dwellings, the proposed development will require 8.5 (i.e. nine) onsite car parking spaces.

Fourteen car parking spaces will be provided on the development site, in compliance with the DCP as follows:

· a double garage for each of the proposed Dwellings 1, 2, 4 and 5 (eight spaces)

· a single garage for proposed Dwelling 3 (one space)

· visitor parking spaces in the shared/common area (five spaces).

Overall, ample car parking can be provided on the site.

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):

Dwelling	POS Required (m²)	POS Provided (m²)	DCP Compliance
Dwelling 1	73.95	112.2	Yes
Dwelling 2	72.3	136	Yes
Dwelling 3	63.7	68	Yes
Dwelling 4	73.95	142.6	Yes
Dwelling 5	73.95	95.4	Yes

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

· Private open space for the dwellings will be located behind the building line of each dwelling, will be provided with a northerly aspect, and will be directly accessible off main living room areas.

· 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.

A landscape plan has been submitted in support of the proposal. As previously discussed, the landscaping plan is not considered sufficient, particularly in terms of ground level plantings. Notably, only one hedging species and one grass species has been proposed for all dwellings and the common areas, and no middle level (i.e. shrubs) or groundcovers have been including in the landscaping design. The proposal will not adequately contribute to the overall landscaped setting of the surrounds, nor provide any differentiation from one dwelling to the next. It is considered that a wider variety of species should be used across the site, and each dwelling could have individualised front garden plantings. An amended landscaping plan, via condition of consent, is recommended to ensure the development integrates the development into the neighbourhood and meets the DCP provisions. The amended plan should also incorporate the changes recommended by Council’s heritage advisor as previously discussed in terms of plantings, fencing, and driveway colour.

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.

Conditions are recommended in relation to stormwater management of the development as discussed in the LEP assessment earlier in this report.

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 of consent is recommended in relation to this matter.

DCP Part 7 - 7.2 Residential Subdivision

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

· lots below 500m² indicate a mandatory side setback to provide for solar access and privacy

· lots below 350m² indicate existing or planned house layouts, which identify how privacy, solar access, vehicular access and private open space needs are to be achieved

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

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

The subject land will be subdivided into six Community lots, one communal lot for access, bin collection, services, visitor parking, etc. and five residential lots to contain a dwelling house each. The proposal will satisfy the above planning outcomes as follows:

· The residential lots will range in area between 249.4m² and 333m². As demonstrated in the previous sections of this report, the proposed lots will be of sufficient area to provide a reasonable standard of residential amenity to the proposed dwellings, in compliance with the DCP (Part 7.5 - Merit-Based Approach to Residential Development in Orange).

· The proposed development will be connected to urban utility services, and the proposed lots will have legal and practical access to March Street.

· The subdivision design and construction is capable of complying with the Orange Development and Subdivision Code, and conditions of consent are recommended to this effect.

INFILL GUIDELINES

Development in a heritage setting must be assessed against Council’s Infill Guidelines. Heritage was addressed in detail in the LEP Clause 5.10 assessment earlier in this report, which took the Infill Guidelines into consideration. It was concluded that overall the proposed development will be acceptable in the heritage setting, subject to some changes to materials, colours, detailing, and landscaping.

DEVELOPMENT CONTRIBUTIONS

EP&A Act Section 7.11 Development Contributions

Development contributions are applicable to the proposed development, pursuant to Orange Development Contributions Plan 2017 (Remainder of LGA) as follows:

Open Space and Recreation	Five x three-bed dwellings @ 4,106.71 less one x standard lot @ 4,106.71	16,426.84
Community and Cultural	Five x three-bed dwellings @ 1,190.93 less one x standard lot @ 1,190.93	4,763.72
Roads and Traffic Management	Five x three-bed dwellings @ 5,420.71 less one x standard lot @ 5,420.71	21,682.84
Local Area Facilities	Not applicable	-
Plan Preparation & Administration	Five x three-bed dwellings @ 321.55 less one x standard lot @ 321.55	1,286.20
TOTAL:		$44,159.60

Conditions of consent are included on the attached Notice of Approval requiring payment of the relevant 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)

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

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

Visual and Heritage Impacts

It is acknowledged that the proposed development will have visual and heritage impacts, as it involves the construction of new dwellings and the planting of new landscaping on a currently vacant lot in a heritage setting. The purpose of this report, and the role of Council staff, is to assess whether those impacts are within reasonable limits, having regard to the relevant planning legislation, policies, guidelines, and court-established planning principles.

As established by case law, an infill development does not need to be the “same” to be compatible, but it should respond to the desirable elements of the character of the area. The Courts generally accept that buildings can exist together in harmony without having the same height, density, scale, or appearance as adjoining buildings. Notwithstanding the recommended changes to landscaping, materials, colours and detailing (as discussed in detail in the main body of this report), the general siting, spacing, scale and bulk of the proposed development has been designed in accordance with good practice standards and relevant planning policies.

On balance, it is considered that the visual and heritage impacts of the amended proposed site layout and building design are reasonable and acceptable, subject to the recommended changes via conditions of consent. These changes will ensure the proposed buildings will harmonise with the existing and desired future character of the surrounding heritage setting.

Overall adverse visual and heritage impacts are unlikely.

Neighbourhood Amenity Impacts

The proposal will provide and retain a reasonable standard of residential amenity for the proposed dwellings (i.e. future occupants) and those on adjoining lands in respect of visual bulk, solar access, privacy, etc. 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 development is unlikely to have adverse impacts on neighbour privacy due to site layout, window placement, separation distances to neighbours windows, and lot orientations. As discussed in the DCP assessment section of this report, privacy screens are not considered necessary in this case.

There will be some minor overshadowing impacts to one of the neighbouring units, as discussed in the DCP assessment section of this report, however these impacts are considered within reasonable limits.

Traffic and Parking Impacts

The anticipated traffic volume increase will represent only a minor proportion of total traffic volumes in the area, and is well within the existing road capacity. As outlined previously, site access, driveways, and onsite manoeuvring areas are capable of meeting Council’s development and subdivision standards, and as such are unlikely to adversely impact on pedestrian safety. Onsite car parking exceeds with the requirements of the DCP, and as such impacts to street parking are not anticipated.

Overall, adverse traffic and parking impacts are unlikely.

Environmental Impacts

The subject land is contained within an established residential precinct and comprises cleared vacant land. Significant vegetation, threatened species or ecological endangered communities or their habitats are unlikely to be present. The site is not in proximity to any waterway, drinking water catchment, or other sensitive area. Onsite stormwater detention will be required to limit post‑development peak flows to those of pre‑development peak flows. Sediment control measures, as required by conditions, will prevent loose dirt and sediment escaping the site and polluting downstream waterways and adjacent lands. Overall, adverse environmental and biodiversity impacts are unlikely.

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 pursuant to the 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 for future and neighbour occupants

· the site has direct frontage and access to a public road

· 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 natural hazards

· the subject land has no known biodiversity or habitat value

· the site is not in proximity to any waterway or drinking water catchment

· 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)

Initial Proposal

The initial proposal involved seven dwellings/units as ‘multi dwelling housing’, which was defined as "advertised development" pursuant to Council’s Community Consultation Plan 2019 (CPP). The application was advertised in the Central Western Daily on Thursday, 5 March 2020 and neighbouring properties notified. Exhibition closed on Thursday, 26 March 2020. At the end of that period 18 submissions were received from 16 submitters. A further two submissions were received outside the exhibition period and have been included in this assessment.

Planning related issues that were raised by submitters include the following:

- character impacts (including poor quality design, materials, fencing, etc.)

- inconsistent density with surrounds

- two storey design out of keeping with surrounds

- heritage impacts

- lack of open space, greenery, and landscaping

- impacts to existing trees near boundaries

- stormwater and environmental impacts

- privacy impacts from two storey height

- safety impacts (fire safety, driver sightlines, pedestrian safety)

- traffic and parking impacts

- waste storage impacts

- noise impacts

- shadowing impacts

- bulk and scale impacts (height, mass)

- not designed to be environmentally appropriate or energy efficient

- proposed utilities impact on land with water, gas and sewerage running along the boundary fence with neighbours.

Some of the submissions raise the matter of Council’s Draft Heritage Study, noting that if this had been advanced quicker and included this site as a Heritage Conservation Area, then this subject proposal would not be permissible, and/or could be rejected. This is an incorrect assumption, as multi dwelling housing is permitted in the R1 zone, regardless of its heritage status. As discussed earlier in this report, heritage does not preclude a development from occurring, only provides additional assessment criteria. Furthermore, and most importantly, the subject land is already in a heritage setting, and thus the heritage provisions contained in Council’s LEP and DCP apply to this assessment, regardless of whether the site is included in a formalised Heritage Conservation Area or not.

Amended Proposal

The amended proposal reduced the development to five dwellings/units, and was advertised in the Central Western Daily on Thursday, 8 October 2020 and neighbouring properties were notified. Exhibition closed on Friday, 23 October 2020, and a further nine submissions were received opposing the development. It is noted that some of the submissions were from Orange residents who do not live in the immediate surrounds, but are generally interested in the proposed development.

Concern 1: Heritage values, neighbourhood character, streetscape – two storey design out of keeping; design, materials and colours out of keeping; impacts to views from Newman Park and surrounding streetscape; timber fences should be required/Colorbond fencing inappropriate; lack of greenery.

Staff comments: These matters have been discussed extensively in the main body of the report and overall is considered to be acceptable. Staff agree that the materials and colours need amending so that they are in keeping with neighbourhood character, and conditions of consent are recommended in regards to this matter, as well as in regard to appropriate fencing for the development. It is considered that steel fencing for the majority of the boundaries is appropriate, as there are ample examples of this type of material being used in the area, and furthermore, such fences can be erected without needing consent from Council.

Concern 2: Bulk and scale – visual impacts from two storey design; number of units too dense; site coverage too high; lack of greenery; building up to boundaries/fence lines is inappropriate.

Staff comments: This has been discussed extensively in the main body of the report, and is considered to be acceptable. The proposal does not involve building up to the boundaries, where most proposed dwellings will be around 3m from the boundary, with the exception of proposed Dwelling 3, which is closer at 996mm from the boundary, but still complies with the DCP and BCA requirements.

Concern 3: Overlooking, visual privacy, and acoustic privacy impacts – picture windows; looking down on neighbours from upper floors; privacy screens should be erected; privacy films not suitable.

Staff comments: This has been discussed in the main body of the report, and impacts are considered to be within reasonable limits. Most neighbouring dwellings are sufficiently separated from the development, and upper level windows on proposed Dwelling 3 which is closer to neighbours have been orientated away from those dwellings. No picture windows or living rooms are proposed on the upper levels, and the proposed small-medium sized first floor bedroom windows are unlikely to result in significant overlooking impacts.

Concern 4: Traffic impacts – traffic levels, noise, pedestrian safety, driveway width too narrow, and lack of emergency vehicle access.

Staff comments: This has been discussed the main body of the report, where it is considered that adverse traffic, parking and safety impacts are unlikely. The driveway is considered suitable for the proposal and meets Council’s standards. Specific emergency vehicle access is not required for a development of this scale.

Concern 5: Stormwater and run-off impacts.

Staff comments: This matter was discussed in the LEP section of this report. Conditions of consent are recommended for onsite stormwater detention to ensure run-off levels remain unchanged, which involves measures to slow run-off flows before entering Council’s existing system.

Concern 8: Utilities impact on land with water, gas, and sewerage running along the boundary fence with neighbours (i.e. to the west).

Staff comments: It is considered reasonable that services would be located in the driveway, whether the development involved one or multiple dwellings. Most of these services will be indiscernible to neighbours at most times, other than the routine checking of meters, which is unlikely to cause much disturbance.

Concern 9: Impacts to neighbouring trees

Staff comments: The proposal has been amended to take into account neighbours trees, through the reduction in the number of dwellings on the site, thus increasing the setbacks from boundaries and neighbours trees. Conditions of consent are recommended in regards to setting up TPZs during construction to protect trees and their root zones. It is noted that this application does not give any consent or approval to alter any existing vegetation, and any likely tree disputes between neighbours is a civic issue.

Concern 10: Waste impacts.

Staff comments: This matter has been discussed the main body of the report, where a run‑cost agreement will need to be entered into for waste collection. Waste bins can only be stored in the communal driveway are on collection day, where bins will need to be kept with their respective dwellings on all other days. There is ample room for each dwelling to store three bins within their lot. It is acknowledged that there will be some noise and inconvenience on waste collection days, but this is an existing situation for all residences in the area, and will be within reasonable limit.

Concern 11: Family dwellings should not have stairs, or the master bedroom upstairs.

Staff comments: This is not a planning issue, and potential future occupants can decide whether they are willing to live in a dwelling with stairs. All but one of the proposed dwellings have the master bedroom at ground floor level.

Concern 12: This application is similar to the boarding house DA on the land which was refused, therefore this one should also be refused for the same reasons.

Staff comments: It is considered that this subject application is not similar enough to the refused boarding house DA to be directly comparable. The boarding house DA involved three boarding house buildings comprising 24 rooms and first floor balconies and walkways. That DA was refused due to the excessive bulk of the three large buildings, lack of spacing between the buildings, extensive need for privacy screening, extensive car parking/hard surfaced areas, and lack of open space and landscaping. The subject proposal involves five residentially scaled buildings with suitable spacing between them and the boundaries, five onsite car parking spaces, and more open space and opportunities for suitable landscaping to be provided. The proposal is considered acceptable subject to some material, colour, detailing and landscaping changes as discussed extensively throughout the report, and the only non-compliance of minor overshadowing impacts to one neighbour does not warrant a recommendation for refusal. It is also noted that a redesign of the boarding house proposal could have rendered it acceptable in terms of visual, heritage and amenity impacts.

Concern 13: Draft Heritage Study - some of these submissions raise this issue again, which has been addressed above. References to this study being ‘approved’ is incorrect, as previously discussed.

It is noted that two other submissions were received in the period between the exhibition periods (i.e. “late submissions”), which raise concerns already expressed during both submission periods. As such, these submissions do not need to be separately addressed, as all matters have been discussed above.

PUBLIC INTEREST s4.15(1)(e)

The proposed development is considered to be of minor interest to the wider public due to the relatively localised nature of potential impacts. The proposal is not inconsistent with any relevant policy statements, planning studies, guidelines, etc. that have not been considered in this assessment.

SUMMARY

The proposed development is permissible with the consent of Council. The proposed development complies with the relevant aims, objectives and provisions of Orange LEP 2011 (as amended) and DCP 2004. A Section 4.15 assessment of the development indicates that the development is acceptable in this instance. Attached is a draft 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, D20/74825 ⇩

2 Plans, D20/74523 ⇩

3 Submissions, D20/74471 ⇩

Council Meeting 15 December 2020

Attachment 1 Notice of Approval

ORANGE CITY COUNCIL

Development Application No DA 59/2020(1)

NA20/ Container PR27939

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

Development Application
Applicant Name:	T & S Flowers Pty Ltd
Applicant Address:	C/- Peter Basha Planning & Development PO Box 1827 ORANGE NSW 2800
Owner’s Name:	Flowers Funds Management Pty Ltd
Land to Be Developed:	Lot 222 DP 1239110 - 194A March Street, Orange
Proposed Development:	Multi Dwelling Housing (five dwellings) and Subdivision (six lot Community title)

Building Code of Australia building classification:	Class to be determined by the Certifier

Determination made under Section 4.16
Made On:	15 December 2020
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	16 December 2020
Consent to Lapse On:	16 December 2025

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 ensure the utility services are available to the site and adequate for the development.

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

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

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

Conditions

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

(a) Plans numbered Job number 19-105, Sheet DA1-16 dated Nov 2019, prepared by Bassman Drafting Services (16 sheets); and

Subdivision plan, reference 19071DA, Figure/sheet number 4, prepared by Peter Basha Planning & Development, and dated 12.08.2020

(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.

CONSTRUCTION OF FIVE DWELLINGS

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(7) 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.

(8) Prior to the issuing of a Construction Certificate, the payment of $44,159.60 shall be made to Council in accordance with Section 7.11 of the Act and the Orange Development Contributions Plan 2017 (Remainder of LGA) for the provision of the following public facilities:

Open Space and Recreation	5 x 3-bed dwellings @ 4,106.71 less one x standard lot @ 4,106.71	16,426.84
Community and Cultural	5 x 3-bed dwellings @ 1,190.93 less one x standard lot @ 1,190.93	4,763.72
Roads and Traffic Management	5 x 3-bed dwellings @ 5,420.71 less one x standard lot @ 5,420.71	21,682.84
Local Area Facilities	Not applicable	-
Plan Preparation & Administration	5 x 3-bed dwellings @ 321.55 less one x standard lot @ 321.55	1,286.20
TOTAL:		$44,159.60

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.

(9) Prior to the issuing of a Construction Certificate, amended scheme elevation drawings shall be submitted to, and be approved by Councils Manager Development Assessments. The elevations shall provide a set of unique materials and colours for each of the five dwellings based on the following:

- traditional darker coloured face bricks to all ground floor levels, and

- tilting garage doors in a complementary colour (but not White or other light-reflective colour), and

- powder-coated window and door fenestrations in timber colours, and

- sheeting to the first floor walls above 1500mm (in place of weatherboards, which are not acceptable), and

- porch details for each of the 5 houses to have one of the following: traditional timber posts, an expressed contemporary steel frame, circular columns, and rendered masonry column piers, and

- Colorbond roofs from the following colours: Shale Grey, Windspray, and Woodland Grey with contrasting gutters/fascias, and

- traditional awnings to windows on north, west, and east elevations, and

- traditional rolled flashings, standard quad gutters, and circular downpipes.

(10) Prior to the issuing of a Construction Certificate, an amended landscaping plan prepared by a suitable qualified person shall be submitted to and be approved by Council’s Manager Development Assessments. The amended plan shall include the following:

- illustrate the provision of outdoor spaces and their surfaces, grasses etc., and

- comprise traditional timber fencing to the March Street driveway and Windspray Metroll Corodeck to other boundaries, and

- comprise at least one tree with a mature height of 6-8m to deep soil areas in each dwelling lot, and

- comprise at least 3 other trees with a mature height of 6-8m to deep soil areas in the communal areas, taking into account neighbouring boundary trees, and

- comprise additional ground cover plantings, using at least two varied species, and

- comprise shrub plantings using at least two varied species, and

- each dwelling to have unique plantings to their frontage (i.e. use a different species or alternating species for each house), and

- comprise a charcoal/basalt pigment through-coloured driveway.

(11) 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.

(12) 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.

(13) 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.

(14) 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 and proposed drainage works and are to be in accordance with Orange City Council Development and Subdivision Code. The subject driveway shall comprise a charcoal/basalt pigment.

(15) Proposed dwellings 1 to 5 are to be provided with interlot stormwater drainage. A grated concrete stormwater pit is to be constructed within each dwellings yard area. 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.

(16) The proposed dwellings shall be connected to the existing 150mm-diameter sewer junction. Internal sewer lines servicing the dwellings from the sewer junction shall be constructed as private sewer mains constructed to Australian Standard AS/NZS 3500. The sewer junction location shall be shown on the civil engineering plans.

(17) 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 4.0 ETs for water supply headworks and 4.0 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.

(18) Dwellings 1 to 5 shall be served by a single potable water meter located within the proposed common Lot. Internal water lines servicing the multi-dwelling development from the meter shall be constructed as a private water main. Engineering plans of the meter location and size shall be submitted to Orange City Council for approval prior to the issuing of a Construction Certificate.

(19) Plans detailing compliance with Fire and Rescue NSW – Fire Hydrants for Minor Residential Development and Fire and Rescue NSW – Access for Fire Brigade Vehicles and Firefighters is to be submitted to the Principal Certifying Authority for approval prior to the issuing of a Construction Certificate.

(20) 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.

PRIOR TO WORKS COMMENCING

(21) Prior to works commencing, Tree Protection Zones (TPZs) shall be established around all neighbouring trees which overhang the boundary 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 stored or placed within the TPZ during or post construction.

It is noted this consent does not approve any pruning or removal of neighbouring trees. If pruning or removal is required, please check any requirements for separate consent/approval and all relevant legislation in this regard.

(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.

(23) 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.

(24) Soil erosion control measures shall be implemented on the site.

(25) 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.

DURING CONSTRUCTION/SITEWORKS

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

(27) 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.

(28) All construction works are to be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans.

(29) All services (water, sewer and stormwater) shall be laid outside the easement unless there is a direct connection to the main within that easement.

(30) 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.

(31) No portion of the building - including footings, eaves, overhang and service pipes - shall encroach into any easement.

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

(33) 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 all the dwellings 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.

(34) 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.

(35) The existing 150mm diameter sewer main is to be accurately located. Where the main is positioned adjacent to any proposed building work, measures are to be taken in accordance with Orange City Council Policy - Building over and/or adjacent to sewers ST009.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(36) Prior to the issuing of an Occupation Certificate, a 1.8m high fence shall be provided around the perimeter of the development, excluding the frontage, in accordance with the amended and approved landscaping plan (as required by Condition 10). A fence shall be provided between each proposed dwelling on the development lot, at a height of at least 1.5m and no greater than 1.8m. The height of all fences shall be measured from the highest finished ground level adjacent to each part of that fence.

(37) Prior to the issuing of an Occupation Certificate landscaping shall be installed in accordance with the amended and approved plans (as required by Condition 10) and shall be permanently maintained to the satisfaction of Council's Manager Development Assessments.

(38) The proponent shall enter into a private service agreement with Council’s waste contractor for the collection of garbage, recycling, and organic waste associated with all dwellings from the driveway bin collection area. Details of the service agreement shall be provided to Council prior to issue of an Occupation Certificate.

(39) 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.

(40) 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.

(41) 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.

(42) 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.

(43) 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.

(44) 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.

(45) 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.

(46) 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 or Subdivision Certificate, unless stated otherwise.

(47) Finished colours and building materials for the development must be consistent with the approved amendments required by Condition 9 of this consent.

MATTERS FOR THE ONGOING PERFORMANCE AND OPERATION OF THE DEVELOPMENT

(48) Waste bins for all dwellings may be placed in the bin collection bay within the driveway on collection days only, for collection by private contractor. Kerbside placement of bins is not permitted. At all other times, bins shall be stored with the respective dwellings.

COMMUNITY TITLE SUBDIVISION

DURING CONSTRUCTION/SITEWORKS

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

PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

(50) A private service agreement for the collection of garbage, recycling and organic waste associated with all dwellings shall be incorporated into the Community Management Statement prior to the issuing of a Subdivision Certificate. The waste service agreement shall not be amended or deleted without Council approval.

(51) Prior to the issuing of the Subdivision Certificate, a Surveyor’s Certificate or written statement is to be provided to the Principal Certifying Authority, stating that the buildings within the boundaries of the proposed Lots comply in respect to the distances of walls from boundaries.

(52) Application shall be made for a Subdivision Certificate under Section 6.3(1)(d) of the Act.

(53) 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 a Subdivision Certificate.

(54) 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 a Subdivision 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 a Subdivision Certificate.

(56) A Certificate of Compliance, from a Qualified Engineer, stating that the stormwater retention basin comply with the approved engineering plans is to be submitted to the Principal Certifying Authority prior to the issuing of a Subdivision Certificate.

(57) All engineering conditions of this development consent relating to the servicing of all dwellings are to be completed prior to the issuing of a Subdivision Certificate.

(58) Where stormwater crosses land outside the lot it favours, an easement to drain water is to be created over the works. A Restriction-as-to-User under section 88B of the NSW Conveyancing Act 1919 is to be created on the title of the burdened allotment(s) 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.

(59) Prior to the issue of a Subdivision Certificate the following conditions ‘a’ to ‘e’ must be included in the Community Title Management statement:

a. water and sewer mains constructed a private services by the developer must accord with at least the National Plumbing Code standards; and

b. Orange City Council makes no representation that the private water and sewer related services provided to the development are suitable; and

c. if a request is made at any time in the future by the developer or future owner to Orange City Council to extend the private services for any reason, then such extension shall be at Orange City Council standards including appropriate easements and must be constructed, funded and transferred by the applicant; and

d. Orange City Council will not provide maintenance services to the private services; and

e. clauses a-e shall not be deleted, varied or modified without the written consent of Orange City Council.

(60) Prior to the issue of a Subdivision Certificate evidence shall be provided of the payment of water and sewer headworks charges and s711 contributions for the multi dwelling development.

(61) Certification from Orange City Council is required to be submitted to the Principal Certifying Authority prior to the issue of a Subdivision 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.

(62) 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 or Subdivision Certificate, unless stated otherwise.

ADVISORY NOTES

(1) The applicant is advised that this consent does not approve any pruning or removal of neighbouring trees. If pruning or removal is required, please check any requirements for separate consent/approval and all relevant legislation in this regard.

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:	16 December 2020

Council Meeting 15 December 2020

5.6 Development Application DA 284/2020(1) - 4 Kearneys Drive

RECORD NUMBER: 2020/2508

AUTHOR: Summer Commins, Senior Planner

EXECUTIVE Summary

Application lodged	31 July 2020 Amendments submitted 4 November 2020 72 STOP days
Applicant/s	Mr S Muffet
Owner/s	Nile Street Pty Ltd
Land description	Lot A DP 365443 - 4 Kearneys Drive, Orange
Proposed land use	Demolition (existing dwelling and outbuildings) and Centre-based Child Care Facility
Value of proposed development	$1,131,627.00 (MCG Quantity Surveyors April 2020)

Council's consent is sought for development of land at 4 Kearneys Drive, Orange, for a centre-based child care facility.

The proposal involves demolition of existing improvements on the land, and construction of a purpose-built child care centre and associated site works. The proposed care facility will provide 61 child care places for children aged between 0-5 years.

Notable planning matters for the proposed development include:

· Non-compliance with development controls relating to onsite car parking.

· The impact of the proposal on neighbourhood character and function.

· The operational impacts on residential amenity (noise and traffic).

· The impacts on the landscape character of the site and setting.

The proposal comprises advertised development in accordance with Council’s Community Participation Plan 2019. Public and written notice of the application was given. At the completion of the exhibition period, twelve submissions were received. The issues raised in the submissions generally relate to noise impacts and traffic management.

Staff assessment of the application was informed by the Land and Environment Court Judgment relating to Australian Child Care Solutions Pty Ltd V Orange City Council [2017] NSW LEC1737). Proceedings related to Council’s refusal of a development application for a proposed child care centre at 36-40 Turner Crescent. The appeal was dismissed by the LEC and the application determined by refusal.

As outlined in this report, it is considered that the proposed development will extend the site beyond its capacity, and be contrary to the established neighbourhood character and function. Impacts of the proposed development will exceed acceptable limits. The impacts cannot be suitably mitigated via consent conditions. Refusal 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

It is considered that the impacts of the proposed centre-based child care facility will exceed acceptable limits, as they relate to car parking demands; neighbourhood and landscape character; and the acoustic environment. The identified impacts cannot be mitigated via consent conditions. The proposed development will extend the site beyond its capacity. Refusal of the application is recommended.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council REFUSES Development Application DA 284/2020(1) for Demolition (existing dwelling and outbuildings) and Centre-based Child Care Facility at Lot A DP 365443 – 4 Kearneys Drive, Orange, on the following grounds:

1 Insufficient onsite car parking will be provided to accommodate the parking demands of the development.

2 The development will have adverse noise impacts for adjoining dwellings.

3 The development will have adverse impact on the landscape character of the site and setting.

4 The development will be inconsistent with the neighbourhood character and function.

5 The development is not in the public interest.

further considerations

SUPPORTING INFORMATION

Staff assessment of the application was informed by the Land and Environment Court Judgment relating to Australian Child Care Solutions Pty Ltd V Orange City Council [2017] NSW LEC1737).

Proceedings related to Council’s refusal of a development application for a proposed child care centre at 36-40 Turner Crescent. The appeal was dismissed by the LEC 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 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.

As outlined in this report, it is considered that the Final Remark above is relevant to the proposed development, in relation to car parking provision, building design and amenity impacts.

THE PROPOSAL

Council's consent is sought for development of land at 4 Kearneys Drive, Orange, for a centre-based child care facility.

Demolition

The proposal involves demolition of the following improvements on the subject land:

· Brick and tile dwelling house circa 1960.

· Attached carport and two detached metal sheds.

· Concrete driveways.

· Trees and tree groups.

Figure 2 – subject land - improvements to be removed

Construction

A purpose-built child care centre will be constructed on the cleared parcel. The proposed building will comprise a single storey structure of modern domestic design and scale.

The building will have a footprint of some 22m x 24m, and total floor area of 410.5m². The building will have frontage to Kearneys Drive and be set back some 22m from the front boundary.

Construction materials will comprise concrete slab on ground, face brick external walls, Colorbond roof sheeting and aluminium-framed openings. The proposed building will contain:

· Entry foyer with reception area, office and staff room.

· Three age group-specific playrooms with adjacent bathrooms, stores and sleeping rooms.

· Kitchen, laundry and store rooms.

· External waste storage area.

The proposed building is depicted below (see Figures 3 and 4).

Figure 3 – proposed floor plan

Figure 4 – proposed front (west) elevation to Kearneys Drive

Site Works

The proposal involves various site works including:

· An altered 6m wide footpath crossing and driveway via Kearneys Drive.

· Construction of an at-grade car park at the site frontage, containing 14 car parking spaces (standard, tandem and accessible).

· New front fencing to Kearneys Drive comprising 1.2m high brick piers with infill timber slats.

· New fencing to side and rear boundaries comprising 1.8m-2.1m high modular walls.

· Retaining walls to the side and rear boundaries of variable heights (250mm–560mm).

· External playground at the rear of the building.

· Site landscaping.

· Placement of a pylon sign at the front boundary, with overall height of 2.2m, and signage panel of 1m x 1.5m.

The proposed site layout is depicted below (see Figure 5).

Figure 5 – proposed site layout

The proposed child care centre will provide 61 long day child care places for children aged between 0-5 years, and operate between the hours of 7am and 6pm Monday to Friday. The child care centre will employ ten staff members.

MATTERS FOR CONSIDERATION UNDER THE 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

Pursuant to Clause 1.7:

This Act has effect subject to the provisions of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994 that relate to the operation of this Act in connection with the terrestrial and aquatic environment.

In consideration of this section, the proposed development is not likely to significantly affect a threatened species:

· The subject and adjoining lands are not identified as biodiversity sensitive on the Orange LEP 2011 Terrestrial Biodiversity Map.

· The proposal involves removal of a number of trees/tree groups over the site. A Basic Tree Assessment was submitted in support of the proposal (Monaco Designs Pty Ltd, 1 May 2020). Trees to be removed include (common named) Pyrus, fruit, Acacia, Thuja and Irish Strawberry. Three trees are subject to Tree Preservation Order pursuant to Orange DCP 2004, namely Acacia longifolia, Thuja CV and Arbutus unedo. None of the trees to be removed form part of the Blakely’s Box Gum Grassy Woodland; and clearing thresholds prescribed by regulation will not be exceeded (0.25ha).

· The land is not located in an area of high biodiversity value. The land is a highly disturbed urban environment and trees to be removed do not form part on an endangered ecological community. The development is not likely to give rise to any significant impact upon any endangered ecologically communities, threatened species or their habitat.

Based on the foregoing consideration, a Biodiversity Assessment Report is not required and the proposal suitably satisfies the relevant matters at Clause 1.7.

Section 4.15 Evaluation

Provisions of any Environmental Planning Instrument S4.15(1)(a)(i)

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 Aims of Plan

The particular aims of Orange LEP 2011 relevant to the proposal include:

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

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

As outlined in this report, the proposed development will adversely impact on residential amenity/lifestyle afforded to the subject residential neighbourhood. The landscape values of the site and setting are undervalued in the proposed site layout and building design. To this effect, the proposal will be contrary to the Aims of the Plan.

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 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/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.

In consideration of this clause, Council staff are not aware of the title of the subject property being affected by any of the above.

Part 2 - Permitted or Prohibited Development

Clause 2.1 Land Use Zones

The subject land is zoned R1 General Residential.

The proposal is defined as demolition and centre-based child care facility.

The proposal is permitted with consent in the R1 zone.

Clause 2.3 Zone Objectives and Land Use Table

The objectives of the R1 General Residential zone 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.

Centre-based child care facilities are a permitted and complementary landuse in the R1 zone, and not generally contrary to the Zone objectives. Notwithstanding, as outlined in this report, it is considered that the particular development as proposed is not suitable for this site as a consequence of arising impacts.

Clause 2.7 Demolition Requires Development Consent

Pursuant to Clause 2.7:

The demolition of a building or work may be carried out only with development consent.

Consent is sought for demolition of existing improvements on the land in accordance with this clause.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

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

Part 5 - Miscellaneous Provisions

The Miscellaneous Provisions do not apply to the application.

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

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

The proposed development may be designed to satisfy the requirements of Clause 7.3.

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, there are no aspects of the proposed development that will impact on groundwater and related ecosystems. Water and sewer reticulation are connected to the subject land.

Clause 7.11 Essential Services

Clause 7.11 applies and states:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or onsite conservation,

(e) suitable road access.

In consideration of this clause, the listed utility services are available to the site and adequate for the proposed development.

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, 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).

The proposal involves change of use of the subject land from residential to child care purposes. Pursuant to Clauses 2 and 4 above, a Preliminary Site Investigation (PSI) was submitted in support of the proposal (Martens Consulting Engineers May 2020).

The PSI finds that the subject and adjoining lands have longstanding residential use (circa 1960), with low potential for onsite environmental impact.

Notwithstanding, potential contamination sources on the land may be associated with past dwelling construction and maintenance (asbestos, pesticides and heavy metals); and past shed/garage construction and use (asbestos, pesticides, heavy metals and hydrocarbons). The PSI recommends further soil sampling analysis following demolition and site clearing works.

Council’s Environmental Health Officer advises as follows in relation to the contamination status of the subject land:

The PSI provided by Martens Consulting Engineers found, through an assessment of historical and recent land uses for the site and surrounding area as well as a core sample and site visit, that contamination on the site is unlikely.

The report advised a detailed site contamination assessment could be undertaken post-demolition works. They recommended any soil that is to be removed from the site has a formal waste classification assessment prior to movement.

While contamination is unlikely, conditions are included to address unexpected contamination finds on the site during works, and the aforementioned recommendation for waste classification on removed soil.

Based on the foregoing, assessment staff are satisfied that the subject land will be suitable for use as a child care centre from a contamination perspective. Should the application be approved, the EHO conditions referenced above would be imposed.

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 198.25m² is required (based on 3.25m² x 61 children) and 206.48m² provided over three 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 427m² is required (based on 7m² x 61 children) and 435.27m² 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 provisions of the Child Care Planning Guideline (Department of Planning and Environment 2017) are considered in the following assessment pursuant to Clause 23.

CHILD CARE PLANNING GUIDELINE

Part 2 - Design Quality Principles

Principle 1 - Context

The development context comprises a low density, established residential neighbourhood, circa 1960. Dwellings are detached and single storey, and of mixed finishes and forms typical of the era. Building footprints and massing are generally modest. Private landscaping is well established and front fences are a feature in the streetscape. Dwellings address the Kearneys Drive frontage with setbacks of some 6+m. The immediate neighbourhood is exclusively residential, with no non-residential landuses nearby to the site. The street is subject to residential traffic only. A centre-based child care facility could be a complementary landuse in this setting, subject to sympathetic design.

Principle 2 - Built Form

The proposed building will comprise a modern domestic design and scale. The building design and detailing will reasonably relate to the mixed domestic architectural forms within the established neighbourhood (hipped roof profiles, wall height and external finishes). Furthermore, the building will be single storey, consistent with adjoining improvements.

Building massing however, will exceed the prevailing footprint in the low density setting. Indeed, the proposed development will comprise site coverage of some 30%, compared with a typical site coverage for this streetscape of 15%. Consequently, the bulk of the building footprint will be disparate to the adjoining cottages (refer residential context at Figure 6 below).

The proposed building will be sited a minimum 22m from the front boundary to Kearneys Drive. The building siting will interrupt the pattern of development in this precinct and will not relate to the established streetscape building line; indeed, dwellings to the north and south on Kearneys Drive have setbacks of some 6m and 8.5m respectively. The front setbacks in this streetscape comprise landscaped front yards and driveways. The proposed carpark will present an expansive hardstand space in the residential context, notwithstanding some screening afforded by front fencing and landscaping. This design outcome will result in a substantial adverse impact on the existing streetscape.

Figure 6 – residential context

Principle 3 - Adaptive Learning Spaces

The proposal will provide purpose-built indoor learning spaces that are ‘fit-for-purpose, enjoyable and easy to use.’ Outdoor play spaces will be immediately adjacent and accessible via indoor play rooms. Age-specific internal playrooms will be provided to cater for various ages and abilities. Indoor and outdoor play spaces will provide various settings and facilities for interaction.

Principle 4 - Sustainability

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

Principle 5 - Landscape

A landscape plan was submitted in support of the proposal (see Figure 7 below). The landscape design concept for the site will incorporate transplanting and retention of the Magnolia in the front setback; perimeter plantings to the car park and rear playground; and landscape beds at the building entrance.

Figure 7 – proposed landscape concept

Council’s Manager City Presentation (MCP) generally supports the proposed landscape design concept for the site, excepting amendments relating to minimum tree size, species substitution and planting of a street tree.

There are two relevant matters to the landscape design concept:

1. The proposal originally involved removal of a Magnolia CV from the front setback (Tree 3 in Figure 6 below). The subject tree has a height of 7m and spread of 6m. MCP does not support removal of the tree to facilitate car parking for the development, ‘as the subject tree is a sound example and one of the larger intact specimens noted in the LGA.’

The proponent was advised of Council’s position on this matter, and amended the landscape design to include transplanting of the Magnolia to the rear playground.

MCP is generally amenable to transplanting, subject to retention of the Magnolia in the front setback to retain the streetscape landscape character.

Notwithstanding, it is the opinion of assessment staff that the Magnolia should be retained in its current location. The subject tree makes a positive and substantial contribution to the streetscape view corridor and landscape character. Furthermore, the success of the transplantation is not guaranteed. A preferred outcome for development of the land would be an amended car park design and construction to retain the Magnolia in its current location. This design outcome would inevitably result in a reduced number of car parking spaces being provided on the land which in turn raises questions over the capacity of the site to accommodate a childcare facility of this size.

A Prunus species tree is located on the adjoining land to the north (6 Kearneys Drive), nearby to the common boundary (Tree 5 in Figure 8 below). The subject tree has a height of 7m and spread of 12m. MCP advises that the tree will require significant pruning to facilitate the proposed building; and the construction works for the child care centre will be within Tree Protection Zone (TPZ) and Structural Root Zone (SRZ) of the subject tree.

Council’s City Presentation Manager has advised that the tree is likely to die in due course as a consequence of the proposed development.

The potential future loss of the tree would alter the landscape character of the rear yard at 6 Kearneys Drive which is not acceptable; and minimise the landscape buffer/screen between the child care centre and adjoining dwelling.

A preferred outcome for the development would be a greater setback for this part of the building from the northern boundary to remove construction from the TPZ and SRZ.

Figure 8 – tree survey

Principle 6 – Amenity

The proposed child care centre will provide a high standard of amenity for users:

· Learning spaces 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.

The proposed child care centre will adversely impact on residential amenity for adjoining dwellings in Kearneys Drive and Clinton Street in relation to acoustic privacy (see following sections of this report). Impacts on residential amenity in relation to visual privacy and solar access are considered to be within reasonable limit (as outlined below).

Principle 7 – Safety

The proposed child care facility is considered suitable in relation to surveillance, access control, territorial enforcement and space management. Crime prevention measures will include extensive glazing of building elevations to provide expansive sightlines over the site; external lighting; appropriate landscape design; perimeter fencing and gates; building maintenance and site beautification (ongoing).

The proposed development was referred to the Crime Prevention Officer at Central West Police District. It is advised:

‘Central West Police District have no concerns about crime risk in relation to this development contingent on the adherence to National Quality Framework and State Government requirements relating to Childcare Centre.’

Part 3 - Matters for Consideration

3.1 - Site Selection and Location

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

Noise

A Noise Assessment was submitted in support of the proposal (Renzo Tonin & Associates June 2020).

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.

Residential properties potentially impacted by noise emissions from the proposed development are shown below (see Figure 9).

Figure 9 – noise ‘receiver locations’ shown as blue dot

The submitted noise assessment recommends implementation of physical and operational mitigation measures including (but not be limited to):

- a 2.1m high boundary fence to outdoor play area

- limiting child numbers in outdoor play area

- no amplified music in outdoor play area

- signs requesting low volume interactions in the car park.

Council’s EHO has reviewed the submitted noise report and advises:

The noise report provided from Renzo Tonin & Associates noted that the predicted noise levels solely from children utilising the outdoor play areas would exceed identified noise trigger values [contained in the NSW Noise Policy for Industry] by between 1 and 2dbA at several of the nearby receivers, even with the recommended increase of boundary fence height to 2.1m. While this level may be a negligible exceedance in terms of actual perceived volume, the report has not factored in mechanical plant noise from air conditioning units on the development, as no mechanical plant plans were provided. Another noise assessment report is required that addresses mechanical plant included to manage this.

Suggested actions for administrative and operational management of noise from the Renzo Tonin report has been factored in to the facility’s management plan that was provided with the application.

Council’s EHO further advises:

The Association of Australian Acoustical Consultants Guideline for Child Care Centre Acoustic Assessment V.3. recommends that noise emitted from a (non-time limited) play area should not exceed 5dbA about background level.

The submitted acoustic report indicates that noise from the proposed (non-time limited) outdoor play area will reach the 5dBA limit though not exceed it, when the recommended physical and operational management controls are in place.

Given the noise emissions are predicted to exceed project trigger levels, and is on the borderline of the AAC guidelines without a limitation on the hours of outdoor play (meaning it could go all day in theory), it is considered that noise is likely to become offensive in nature to surrounding residents.

The guidelines also state that the cumulative noise emitted from drop off/pick up, mechanical plant, and indoor play, should not exceed 5dB above background. Given the assessment provided does not take into account mechanical plant at all, it isn’t possible to properly assess this factor.

The provision of 2.1m high acoustic fencing to support the development is a design element that is not evident in the surrounding locality. The provision of a fence of this height will be inconsistent with the character of the area and will dominate the visual setting of adjoining properties. Typically fencing in this locality comprises side fencing with a height of between 1.5 and 1.8m. Based on the foregoing, it is considered that the proposal will have unreasonable impacts on the neighbourhood character and the surrounding acoustic environment.

Visual Privacy

The proposed site layout and building design will not adversely impact on visual privacy for adjoining dwellings:

· Finished floor and ground levels will be slightly below existing natural ground levels, and thereby minimise overlooking from the development site to adjoining dwelling.

· A 1.8m and 2.1m high solid perimeter fencing will be installed to the side and rear boundaries adjacent to adjoining dwellings. Should the application be approved, fencing conditions will be imposed to this effect.

· Landscaping will be provided to the site perimeters.

· Playroom openings in the north and south façade will comprise (fire-rated) glass bricks. The glazing form will minimise overlooking to the opposing dwellings. Notwithstanding, perimeter fencing will prevent overlooking.

· The proposed building will be sufficiently removed from the eastern (rear) boundary to prevent overlooking from within the building of the adjoining dwellings in Clinton Street.

Odour

A screened waste storage area will be located on the front (east) façade near the building entrance, and well-removed from adjoining dwellings. Odour impacts are not anticipated.

Traffic Matters

A Traffic and Parking Impact Assessment was submitted in support of the proposal (Traffic Solutions Pty Ltd, June 2020). The Assessment concludes:

a. The access driveway proposed to serve the development is suitably located and will provide very good sight distance in both directions along Kearneys Drive.

b. The proposed development satisfies the related geometric design specification contained in the Australian Standards for off-street parking and vehicular access.

c. The off-street parking provided in the proposed development is one car space short of the RMS and Council requirements, however, there is ample street frontage to cater for this shortfall, without any unacceptable amenity impacts on adjoining properties.

d. The proposal has a potential net increase in estimated peak hour traffic flows in the order of 48 vehicle trips in the morning and 42 [vehicle trips in the evening], which will not have any unacceptable traffic impacts upon Kearneys Drive or the surrounding road network.

The above conclusions are considered in the following assessment.

A. Access

Access to the subject land will be via widened 6m footpath crossing and driveway to Kearneys Drive, adjacent to the southern boundary. Council’s Assistant Development Engineer concurs that reasonable sight distances will be afforded along Kearneys Drive to the north and south.

B. Car Park Design

The proposed car park layout does not comply with AS 2890.1-2004 Off-street Car Parking in relation to proposed tandem car parking spaces numbered 6, 8 and 10 (see Figure 10). Furthermore, tandem parking is not permitted under Orange DCP 2004, which requires car park design and construction to comply with AS 2890.1-2004.

Figure 10 – proposed car park (part site plan)

It is noted that the proponent was variously advised pre- and post- DA lodgement that tandem parking would not be supported for the proposed development.

Contrary to staff advice, the proponent has not been amenable to deleting the tandem spaces as requested. Instead, justification for the tandem car spaces has been submitted in support of the proposal from an alternative traffic engineer (McLaren Traffic Engineering November 2020).

The supporting information provides as follows:

1. Whilst AS 2890.1-2004 is silent with respect to any advice, provision or restriction related to tandem (or stacked) car parking, the fact that it is silent cannot be constructed to prohibit tandem car parking for specific land uses.

2. Tandem parking is a commonly accepted provision for employee parking, residential uses, commercial and industrial tenancies as well as for single dwellings. The acceptance of tandem car parking for employees and residences can be found in many council DCPs for numerous local government areas in NSW, other states and throughout Australia.

3. The use and acceptance of tandem car parking is common within the traffic and engineering transport planning profession.

4. Many examples exist for a range of land uses whereby tandem (or stacked) car parking exists with no adverse effects.

5. The reason for acceptance of tandem car parking is that it is usually approved on the basis that it can be readily managed in operational and practical terms.

6. Tandem car parking in single dwellings is fully understood to be reasonable as only one family resides on the property such that its use can be managed in practice. The same logic applies to … other land uses where the tandem spaces are allocated to individual tenants on the same parcel of land.

7. The practice of tandem staff car parking in child care centres is also very common from our experience in over 300 child care centre applications…

8. The subject child care centre is under the control of centre management and it is usual for an Operational Plan of Management to be conditioned that manages many aspects of a child care centre, including the practical management of its own onsite car parking.

For the above listed reasons, the proposed car parking layout is supported, subject to the three tandem spaces being assigned to staff that do not need to enter or leave these spaces during the weekday 7am-9am (children arrival) and 2.30pm-6pm (children departure) peak periods…

The following comments are made in relation to the proposed tandem car parking spaces for the development:

· Tandem car parking is not recognised as a parking layout in AS 2890.1-2004.

· Orange DCP 2004-15.5 prescribes the design and layout of parking areas is to comply with AS 2890.1-2004.

· It is Council’s practice to prohibit tandem parking for commercial developments in the City.

· Council has not consented to other child care centres with tandem parking spaces.

· The need for tandem car parking suggests the proposed development is extending the site beyond its capacity with adverse cumulative effects for the surrounding residential area (Australian Child Care Solutions Pty Ltd V Orange City Council [2017] NSW LEC1737).

· Council’s Assistant Development Engineer advises:

The applicant’s request for stack parking is rejected. Council’s DCP requires off street parking to be in accordance with AS/NZS 2890.1:2004. Tandem parking is not a recognised or accepted method of off street parking under AS/NZS 2890.1:2004. The applicant’s interpretation of onsite parking arrangements (tandem parking) under AS/NZS 2890.1:2004 is not accepted.

Should the application be approved, a condition of consent could be imposed requiring the car parking layout be amended to delete tandem parking spaces numbered 6, 8 and 10.

Furthermore, an additional condition could be imposed requiring the car park layout be amended to a 3A user class standard pursuant to AS 2890.1. The amended layout would improve car park manoeuvring, including catering for the expected service vehicle (courier van).

C. Car Parking Requirements

Pursuant to DCP 2004, onsite parking is required for child care centres at a rate of one space for every four children in attendance.

Based on 61 proposed child care places, 15.25 (i.e. 16) onsite car parking spaces are required for the proposed development. With deletion of tandem car spaces numbered 6, 8 and 10, eleven onsite parking spaces will be provided. This comprises a shortfall of 4.25 (i.e. five) spaces on the DCP requirement.

Should the application be approved, a condition could be imposed limiting the number of child care places to 44. This would have the effect of achieving compliance with the DCP, reducing demand for on-street parking and thereby maintaining traffic amenity along Kearneys Drive.

This is not a preferred outcome. The proposed building has been designed to accommodate 61 child care places, and exceeds the SEPP floor area requirements for a centre of 44 children. Furthermore, as established earlier, the scale of the building is contrary to the neighbourhood character and built form. The proposed layout would significantly affect the visual character of the locality.

D. Traffic Generation and Network Capacity

Council’s Assistant Development Engineer advises as follows in relation to traffic generation and the capacity of the local road network:

‘The anticipated traffic volume increase is well within the existing road capacity and will not impact on pedestrian safety. The existing road network has sufficient capacity to cater for the identified AM and PM traffic peaks. Kearneys Drive has a width of 11.0m kerb to kerb, thereby providing two parking lanes and two way traffic flow. ‘No standing’ signs are not proposed as part of any traffic control measures as Kearneys Drive.’

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

Surrounding landuses comprise residential accommodation. A child care centre is a permitted and complementary landuse in the zone. The subject land is suitable for use as a child care centre-based on lot size, configuration, dimensions and frontage. The proposed centre however, is considered to extend the site beyond its capacity with reference to acoustic and parking non-compliances; and adverse impacts on established vegetation.

The development site has shared boundaries with residential properties to the north and south on Kearneys Drive; and east on Clinton Street. A solid acoustic wall, 2.1m in height would be required on the common boundaries to achieve near-compliance with minimum noise standards. The wall is likely to visually encroach upon private open spaces for the adjoining dwellings, when partly erected atop retaining walls up to 500mm. The interface between the development and adjoining dwellings is considered unsatisfactory on this basis.

The development site is not subject to environmental risks such as flooding, landslip or bushfires. The site is considered suitable for child care use from a contamination perspective, subject to ‘unexpected finds’ conditions, should the application be approved. 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 landuses with arising adverse environmental impacts prescribed in the Guideline. The site does not contain any known environmental hazard or risk. The site is considered suitable for child care use from a contamination perspective, subject to ‘unexpected finds’ conditions, should the application be approved.

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.

As considered in the foregoing assessment, the proposed building massing and siting is considered to be contrary to the prevailing built form in the streetscape.

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

New front fencing and signage to Kearneys Drive, and front setback landscaping will establish a transition between public and private spaces. The building will address Kearneys Drive 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.

Front fencing, 1.2-1.5m high, is a feature in this streetscape. The proposed front fence will relate to fencing height and forms on adjoining residential parcels. The proposed fence will be suitable to provide some screening of vehicle areas in the front setback, and ensure the facility will remain visually permeable in the streetscape.

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 privacy for adjoining dwellings on Kearneys Drive and Clinton Street (with reference to fencing, landscaping, interface with opposing landuses and finished surface levels). Internal and external play spaces will have access to sunlight. Internal and external solar access will be provided to the adjoining southern dwelling (i.e. most impacted) in accordance with the requirements of DCP 2004.

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 single storey and of consistent height with adjoining dwellings on Kearneys Drive and Clinton Street. The building massing and footprint however, will be disparate to the cottage built form nearby to the site. The required acoustic walls will also differ to existing boundary fences, with potential for visual bulk encroachment on adjoining dwellings.

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

As considered above, the building siting will not relate to the established streetscape building line on Kearneys Drive. The proposal will adversely impact upon the pattern of development within this length of street.

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.

As outlined in the foregoing sections of this report, it is not considered that the proposed building will favourable contribute to the neighbourhood character.

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. 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.

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

Accessible design will be 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

As outlined above, it is preferred that the Magnolia CV in the front setback be retained in its current location, due to its contribution to the landscape character of the site and streetscape.

Landscaping to the site frontage and carpark perimeter will provide integration of the development in the public realm and streetscape. Retention of the Magnolia would affect the design and result in a further reduction in car parking on site in a manner not consistent with Council’s parking controls for this type of development.

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 Kearneys Drive. See previous discussion in relation to the visual impacts of a 2.1m high fence.

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 landuses and finished surface levels).

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

As outlined in the foregoing sections of this report, noise emissions from the proposed child care centre will exceed relevant criteria, even with implementation of mitigation measures.

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 landuses prescribed in the Guideline.

The submitted Noise Assessment (Renzo Tonin & Associates June 2020) states that ‘traffic flows along Kearneys Drive are minimal as it operates as a local road. Consequently, noise emissions due to traffic noise from Kearneys Drive impacting on the proposed child care centre and the outdoor play area is expected to be insignificant.’ Council’s EHO concurs with this finding.

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 site is not located in the vicinity of major roads or industrial development, and therefore air quality is considered to be acceptable.

3.7 - Hours of Operation

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

Should the application be approved, a condition would be imposed limiting hours of operation from 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.

As considered in the foregoing assessment, eleven compliant car spaces will be provided for the proposed child care centre, accounting for a shortfall of five spaces on the DCP requirement.

Based on the long-day operation of the proposed centre, car park lighting (and other external lighting) will be required. Should the application be approved, a condition would be imposed 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 Kearney Drive. A 6m vehicle crossing and driveway will be constructed to service the site.

Pursuant to the submitted Traffic and Parking Statement (Traffic Solutions Pty Ltd 24 July 2017): ‘the access driveway proposed to serve the development is suitably located and will provide good sight distances in both directions along Kearneys Drive.’ Council’s Assistant Development Engineer raised no objection to the proposed site access arrangements.

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:

· Car park layout that will allow vehicles to enter and exit the site in a forward direction.

· Provision of an accessible parking space and shared zone with bollards.

· Concrete footpath to the site frontage on Kearneys Drive, as required by condition.

· Pedestrian footpath though the site front the front boundary to building entrance.

· Pool style fencing to restrict access between the building entrance and car park.

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.

Should the application be approved, a condition will be imposed 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.

State Environmental Planning Policy 64 Advertising and Signage

SEPP 64 Advertising and Signage is applicable and states in part:

3 Aims, Objectives etc.

(1) This Policy aims:

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

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

(ii) provides effective communication in suitable locations, and

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

(8) Granting of Consent to Signage

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

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

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

Details of the proposed pylon sign are shown below (see Figure 11).

Figure 11 – pylon sign location and elevation

The proposed pylon sign will comply with the requirements of SEPP 64, as considered below.

Schedule 1 Assessment Criteria

1 - Character of the Area

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

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

There is no particular theme for outdoor advertising in this setting, being an established residential area. Notwithstanding, it is considered that the proposed single pylon sign will be suitable for this residential streetscape in respect of form, height, scale and siting.

2 - Special Areas

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

The subject land is contained within a residential area and restrictions on advertising content apply under the SEPP (Clauses 9 and 10). Details of advertising content were not included in the development application. Should the application be approved, a condition would be imposed requiring advertising content to the proposed pylon sign comprise business or building identification only.

3 - Views and Vistas

· Does the proposal obscure or compromise important views?

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

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

The proposed pylon sign will be contained/integrated within front fence and landscape bed at the site frontage and will not visually dominate the streetscape view corridor. The height of the pylon sign (1m above the fence) will not protrude above the proposed building or localised tree canopy, and is considered to be a personal scale within the residential setting.

4 - Streetscape, Setting or Landscape

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

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

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

· Does the proposal screen unsightliness?

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

· Does the proposal require ongoing vegetation management?

The proposed pylon sign will be suitable in the residential streetscape due to the following:

- A single sign is proposed.

- The sign will be of suitable proportions for a residential setting, i.e. a signage panel of 1.5m².

- The sign will integrate with the proposed fencing and landscape bed at the site frontage.

5 - Site and Building

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

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

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

The proposed sign is an expected visual element associated with use of the land as a child care centre.

6 - Associated Devices and Logos With Advertisements and Advertising Structures

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

No safety devices, platforms, lighting devices or logos are proposed or required for the pylon sign.

7 - Illumination

· Would illumination result in unacceptable glare?

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

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

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

· Is the illumination subject to a curfew?

Based on the residential setting, should the application be approved, a condition would be imposed that illumination of the proposed pylon sign is not permitted.

8 - Safety

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

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

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

The proposed siting and scale of the pylon sign will not obscure sightlines between the building and Kearneys Drive; nor reduce the safety of vehicles, pedestrians or cyclists in the onsite carpark or Kearneys Drive.

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

SEPP (Vegetation in Non-Rural Areas) 2017 is applicable to the proposal.

Pursuant to Clause 7(1):

A person must not clear vegetation in any non-rural area of the State… without the authority conferred by a permit granted by the council…

Clause 9(2) further requires that:

A development control plan may make the declaration in any manner, including by reference to any of the following:

(a) the species of vegetation,

(b) the size of vegetation,

(c) the location of vegetation (including by reference to any vegetation in an area shown on a map or in any specified zone),

(d) the presence of vegetation in an ecological community or in the habitat of a threatened species.

In consideration of the requirements of the SEPP, the proposal involves removal of a number of trees/tree groups over the site. A Basic Tree Assessment was submitted in support of the proposal (Monaco Designs Pty Ltd, 1 May 2020). Trees to be removed include (common names) Pyrus, fruit, Acacia, Thuja and Irish Strawberry.

Pursuant to DCP 2004-0.4-2 Interim Planning Outcomes- Tree Preservation, Council’s approval is required for removal of trees of a certain prescribed species and size.

Trees numbered, 10 (Acacia longifolia), 12 (Thuja CV Row) and 14 (Arbutus unedo (Irish Strawberry Tree) are subject to tree preservation order and consent is required for removal (see Figure 12).

Figure 12 – trees to be removed subject to TPO

The proposed tree removal was referred to Council’s Manager City Presentation (MCP) for review. As previously discussed the site also contains an advanced Magnolia CV which is one of the larger intact and sound specimens in the LGA. This tree will be impacted by the proposed development. The Magnolia CV makes a significant contribution to the streetscape. Retention of the Magnolia is the preferred option.

MCP raised no additional objections to tree removal, subject to replacement planting, generally in accordance with the submitted landscape plan with minor conditional amendments.

Provisions of any Draft Environmental Planning Instrument that has been placed on Exhibition 4.15(1)(a)(ii)

Draft Orange Local Environmental Plan 2011 (Amendment 24)

Draft Amendment 24 is with the Department for finalisation. The Draft Plan involves various administrative amendments to the LEP including updated maps, and new and amended clauses. The proposed development is not contrary to any matter contained in the Draft Amendment.

Draft Orange Local Environmental Plan 2011 (Amendment 25)

Draft Orange LEP 2011 Amendment 25 has recently completed public exhibition (August 2020). The Draft Plan relates to land at 1 Leewood Drive, and seeks to enable a range of additional permitted uses on the land. The Draft plan has no effect for the proposed development.

Draft Orange Local Environmental Plan 2011 (Amendment 26)

Draft Orange LEP 2011 Amendment 26 will be re-exhibited (December 2020-January 2021). The Draft plan relates to land at 1517 Forest Road, being the private health precinct. The revised proposal involves amendments to the (Concept) approved commercial use of the land, including (in part) commercial floor area restrictions and rezoning to B1 Neighbourhood Centre. The Draft plan has no effect for the proposed development.

Draft State Environmental Planning Policy - Remediation of Land

Draft Remediation of Land SEPP is applicable. The Draft SEPP requires in part that consideration be given to potential contamination on nearby or neighbouring properties and groundwater. The adjoining lands have longstanding residential use and are unlikely to be contaminated, with nil effect for the proposed development.

Draft State Environmental Planning Policy – Educational Establishments and Child Care Facilities

The Draft Education SEPP is currently on public exhibition. The Draft Plan proposes in part to introduce provisions to prevent child care centres within close proximity of each other in low density residential zones (R2). A separation distance of 200m between child care centres is being considered. The amendment seeks to address concerns raised about amenity impacts, such as noise and traffic, arising from child-care centres being in close proximity to one another.

The subject land is zoned R1 General Residential. The proposal will not be contrary to any matter in the Draft Plan.

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

DCP 2004 - 0 Tree Preservation

The relevant matters in this part were considered in the foregoing assessment under SEPP (Vegetation in Non-Rural Areas) 2017.

DCP 2004 – 2 Natural Resource Management

The relevant matters in this part were considered in the foregoing assessment under Orange LEP 2011.

DCP 2004 – 3 General Considerations

The relevant matters in this part were considered in the foregoing assessment under Orange LEP 2011.

DCP 2004 - 5 General Considerations for Zones and Development

The relevant matters in Part 5 are addressed in the following sections of this report (refer Any Submissions).

DCP 2004 – 7 Development in Residential Zones

The relevant matters in Part 7 were considered in the foregoing assessment under Child Care Planning Guideline. As outlined, the proposed is considered to be contrary to the Planning Outcomes for Neighbourhood Character, Building Appearance and Setbacks.

DCP 2004 – 15 Car Parking

The relevant matters in Part 15 were considered in the foregoing assessment under Child Care Planning Guideline. As outlined, tandem parking is not supported for development of this type and accordingly onsite parking for the development will depart from the DCP requirements by five spaces. A departure to the parking requirements will result in unacceptable impacts in the surrounding street network.

DEVELOPMENT CONTRIBUTIONS

Section 64 Local Government Act 1993

Development contributions for water, sewer and drainage works are applicable to the proposed development.

The contributions are based on 2.66 ETs for water supply headworks and 5.10 ETs for sewerage headworks. Should the application be approved, a condition would be imposed requiring payment of applicable headworks contributions.

Provisions Prescribed By the Regulations S4.15(1)(A)(Iv)

Demolition of a Building (clause 92)

The proposal involves demolition of existing improvements on the subject land. Should the application be approved, conditions would be imposed in relation to works consistent with application standards; and appropriate waste management.

Fire Safety Considerations (clause 93)

The proposal does not involve a change of building use for an existing building. The proposed building may be designed and constructed to satisfy the fire safety provisions contained in the BCA.

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

BASIX is not applicable to the proposed development. A Section J Energy Efficiency Statement will be required with the Construction Certificate application.

The Likely Impacts of the Development S4.15(1)(B)

The impacts of the proposed development have been considered in the foregoing sections of this report and include:

· Setting and context

o public domain

o landuse

o interface

o presentation

· Visual impacts

o neighbourhood character

o streetscape presentation

o building design, detailing and siting

o signage design, detailing and siting

o landscape character

· Neighbourhood amenity

o acoustic privacy

o visual privacy

o visual bulk encroachment

o external lighting

o crime prevention

o odour emissions

· Traffic matters

o site access

o onsite manoeuvring

o car parking

o traffic generation

o network capacity

· Environmental impacts

o waste management

o sediment and erosion control

o biodiversity

o groundwater

o stormwater management

o tree removal

o cultural values

o contamination.

The italicised impacts above are considered to exceed acceptable limits that may not be mitigated via consent conditions. On this basis, the cumulative impacts of the proposal are considered to be unacceptable.

The Suitability Of The Site S4.15(1)(c)

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

· Centre-based child care facilities are permitted on the subject land zoning.

· The site has direct frontage and access to Kearneys Drive.

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

The subject land is unsuitable for the proposed development due to the following:

· Insufficient site area is available to accommodate the parking demands associated with a centre-based child care facility of the scale proposed.

· The site has particular environmental values. The site contains an advanced Magnolia CV which is one of the larger intact and sound specimens in the LGA. This tree, and another on the adjoining northern parcel, will be impacted by the proposed development.

· The site is located within an exclusively residential and low density setting. A centre‑based child care facility of the scale proposed is unsuitable for this site in this neighbourhood, having regard to arising amenity impacts.

Any Submissions Made In Accordance With The Act S4.15(1)(d)

The proposed development is defined as "advertised development" pursuant to Council’s Community Participation Plan 2019. Written and public notice of the application was given for the prescribed period. At the end of that period, twelve submissions had been received.

The issues raised in the submission are considered below.

Queries in relation to fencing on the eastern (rear) boundary including height, materials, colour, timing and extension to adjoining property.

Consistent with the recommendations of the submitted acoustic assessment, the subject fence will be of solid construction and 2.1m in height. Should the application be approved, conditions would be imposed requiring the proponent liaise with the adjoining property owner in relation to fencing colour and timing of installation. There is no obligation for the developer to extend the fence to the common boundary of adjoining residents.

How will noise management measures be enforced?

Should the application be approved, noise management and mitigation measures would be enforced via conditions of consent. The operator of the centre will be responsible to ensure operation of the centre consistent with the noise operational management plan.

The ambient noise levels in the neighbourhood will be increased.

It is concurred that the neighbourhood acoustic environment will be altered by the proposed development. Noise impacts associated with the child care centre will exceed adopted criteria.

Kearneys Drive is too narrow to accommodate traffic volumes and on-street car parking demands, with associated impacts for road and pedestrian safety.

Council’s Assistant Development Engineer advises that Kearneys Drive has a width of 11.0m kerb to kerb, thereby providing two parking lanes and two way traffic flow. It is acknowledged that the residential street will be altered by traffic volumes associated with the proposed development. Notwithstanding, increased traffic volumes will be within the existing road capacity. Council’s Assistant Development Engineer and the proponent’s traffic consultant concur that road and pedestrian safety will not be adversely impacted.

The proposed access driveway will conflict with driveways opposite the site.

All vehicles associated with the proposed child care centre will enter and exit the site in a forward direction, and sight lines will be appropriate in both directions along Kearneys Drive. Conflicts with other vehicles in Kearneys Drive is considered unlikely.

The proposed development will devalue nearby properties; what compensation will be available?

This matter is not a relevant consideration in the assessment of a development application pursuant to the Environmental Planning and Assessment Act 1979.

Insufficient onsite car parking will be provided.

As considered in the foregoing assessment, eleven compliant car spaces will be provided for the proposed child care centre, accounting for a shortfall of five spaces on the DCP requirement. Tandem parking is not acceptable.

On-street car parking will impact on waste collection.

Should the application be approved, conditions will be imposed requiring the child care centre enter into a private collection agreement with a waste contractor, such that kerbside placement of bins on Kearneys Drive will not be required.

Footpaths at the frontages of adjoining properties will be worn with increased foot traffic.

Footpaths are public land available for use by all. Should the application be approved, a condition will be imposed requiring footpath construction at the site frontage of the development site.

Proposed front fencing will be insufficient to screen vehicles with adverse visual impacts on the streetscape.

The proposed front fence will be of height and materials that will complement other front fencing in this streetscape. It is concurred that the carpark in the front setback will present an expansive hardstand area that is not consistent with the character of the locality. Front fencing and landscaping will provide some screening and softening of the carpark.

The required 2.1m acoustic wall will overshadow the dwelling and associated open space at nearby properties.

Shadow lengths will be increased to the adjoining southern property associated with the acoustic wall. Notwithstanding, solar access on-ground and to northern windows at nearby properties will be maintained in accordance with the controls at DCP 2004-7.7-8 Daylight and Sunlight.

There are other child care centres nearby to the site to accommodate the needs of local residents.

Commercial supply and demand considerations are not a relevant matter in the assessment of a development application pursuant to the Environmental Planning and Assessment Act 1979.

Additional traffic will result in vehicle conflicts at the intersection of Kearneys Drive and Margaret Street.

Council’s Assistant Development Engineer is satisfied that increased traffic volumes associated with the development will be within the existing road capacity. Notwithstanding, the operation of the intersection will be monitored and traffic management measures may be implemented as required.

How will construction impacts be managed?

Should the application be approved, “During Construction” conditions will be imposed in relation to hours of works, sediment controls, dust controls etc. The Principal Certifying Authority is responsible for overseeing construction works in accordance with consent conditions.

A Noise Management Plan is required.

A Plan of Management (dated July 2020) for the proposed child care centre was included in the DA documentation, and included a part on Noise Management. The measures and strategies to mitigate potential noise impacts are consistent with the recommendations contained in the submitted acoustic report (Renzo Tonin & Associates June 2020). Should the application be approved, a condition would be imposed requiring operation of the child care centre consistent with the Plan of Management.

How will noise emissions compliance be demonstrated?

Should the application be approved, a condition would be imposed requiring preparation of an acoustic commissioning report within three months after occupation, to monitor actual noise emissions associated with the child care centre.

Mechanical plant noise was not considered in the acoustic assessment.

Assessment staff concur the submitted acoustic report has not considered the noise impacts associated with mechanical plant. Should the application be approved, a condition would be imposed requiring further acoustic assessment of plant.

All activities associated with the centre (including cleaning and maintenance) should occur between 7am and 6pm Monday to Friday.

Should the application be approved, a condition would be imposed to this effect.

Public Interest S4.15(1)(e)

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

SUMMARY

COMMENTS

The requirements of the following experts are included in the attached Notice:

· Environmental Health and Building Inspector

· Assistant Development Engineer

· Environmental Health Officer

· Manager City Presentation

· Senior Planner – Development Assessment

· NSW Police Crime Prevention Officer

Attachments

1 Notice of Refusal, D20/74785 ⇩

2 Plans, D20/74464 ⇩

3 Submissions, D20/74576 ⇩

	30/11/2020	31/10/2020
General Fund	74,191,923.58	64,197,538.73
Water Fund	59,706,595.16	63,433,342.66
Sewer Fund	53,144,050.39	53,762,850.09

Total Funds	187,042,569.13	181,393,731.48

	30/11/2020	31/10/2020
Externally Restricted
- General Fund	28,633,855.13	27,997,761.50
- Water Fund	59,706,595.16	63,433,342.66
- Sewer Fund	53,144,050.39	53,762,850.09
Internally Restricted	21,557,442.57	24,397,707.81
Unrestricted	24,000,625.88	11,802,069.42
Total Funds	187,042,569.13	$181,393,731.48

Term to Maturity Allocation	Maximum	Holding	Remaining Capacity
0 - 3 Months	100.00%	17.62%	82.38%
3 - 12 Months	100.00%	53.31%	46.69%
1 - 2 Years	70.00%	16.55%	53.45%
2 - 5 Years	50.00%	12.51%	37.49%
5+ Years	25.00%	0.00%	25.00%

Credit Rating	Maximum	Holding	Remaining Capacity	Value	Return on Investment
Bank Accounts	100.00%	8.58%	91.42%	$16,055,278.07	0.10%
AAA	100.00%	0.00%	100.00%	N/A	N/A
AA	100.00%	39.97%	60.03%	$74,756,160.00	1.27%
A	60.00%	25.61%	34.39%	$47,900,000.00	1.10%
BBB & NR	40.00%	25.84%	14.16%	$48,331,131.06	1.25%
Below BBB	0.00%	0.00%	0.00%	N/A	N/A

Reference	Update
General	· New Policy. Replace/Update ST049 - Council Communications, Incorporation of New Strategic Policy’s on Community Engagement and Social Media conduct.