Agenda of Planning and Development Committee

Planning and Development Committee 6 July 2021

2.1 Items Approved Under the Delegated Authority of Council

RECORD NUMBER: 2021/1156

AUTHOR: Paul Johnston, Manager Development Assessments

EXECUTIVE Summary

Following is a list of more significant development applications approved by the Chief Executive Officer under the delegated authority of Council, and approved by the Western Regional Planning Panel. Not included in this list are residential scale development applications that have also been determined by staff under the delegated authority of Council (see last paragraph of this report for those figures).

Link To Delivery/OPerational Plan

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

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council resolves to acknowledge the information provided in the report by the Manager Development Assessments on Items Approved Under the Delegated Authority of Council.

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.

Reference:	DA 8/2020(2)	Determination Date:	7 June 2020(2)
PR Number	PR28326
Applicant/s:	Mr IY Zhang
Owner/s:	IJ Zhang Pty Limited
Location:	Lot 50 DP 1249530 - 3 Camellia Place, Orange
Proposal:	Modification of development consent - multi dwelling housing (four dwellings) and subdivision (four lot residential). The modification proposed to: · Include the addition of a lower ground level area within the existing footprint, which can be used for a dual purpose storage and workshop area and a new WC. The additional floor space equates to 36.6m² for Dwelling 3 and 50m² for Dwelling 4. An internal staircase will provide access to these spaces. · Changes to windows for Dwellings 3 and 4 relating to the additional lower ground level. · Minor internal and external changes to Dwellings 1 and 2.
Value:	N/A
Reference:	DA 155/2020(2)	Determination Date:	1 June 2021
PR Number	PR5848
Applicant/s:	Central West Development Trust
Owner/s:	Mrs J Blattman
Location:	Lot 1 DP366693, 7 William Maker Drive, Orange
Proposal:	Modification of development consent - subdivision (13 lot residential and drainage reserve), demolition (outbuilding and tree removal), earthworks and Category 1 remediation works. The modification involved modifying the Notice of Determination by deleting Conditions 20 and 21 due to the effect of Condition 22. Conditions 20 and 21 related to the application of an engineering bond allowing servicing and access works to be deferred for proposed Lot 100. However, Condition 22 of the consent requires a Section 88B Restriction-as-to-User prohibiting further subdivision of the land until such time all infrastructure services and access has been provided to the lot as well as payment of relevant contributions. Essentially, Conditions 20 and 21 have be duplicated in Condition 22 of the consent therefore rendering Conditions 20 and 21 superfluous.
Value:	N/A

Reference:	DA 319/2020(1)	Determination Date:	11 May 2021
PR Number	PR20969
Applicant/s:	Windoor Joinery Pty Ltd
Owner/s:	Fewato Pty Limited
Location:	Lot 17 DP 1092631 - 149-151 Peisley Street, Orange
Proposal:	Hardware and building supplies (change of use from shop)
Value:	$5,000

Reference:	DA 470/2020(1)	Determination Date:	15 June 2021
PR Number	PR3379
Applicant/s:	Mr KP McNamara
Owner/s:	Mr KP and Mrs ME McNamara
Location:	Lot 2 DP 513219, Lot 1 DP 341704, Lot 1 DP 387792 Lot 1 DP 347378 263-265 Dalton Street and 80 Bletchington Street, Orange
Proposal:	Demolition (existing dwelling and tree removal), subdivision (three lot Torrens), two dwellings, multi dwelling housing (seven dwellings) and subdivision (seven lot Community title)
Value:	$1,600,000.00

Reference:	DA 4/2021(2)	Determination Date:	7 June 2021
PR Number	PR28377
Applicant/s:	Gowrie NSW
Owner/s:	Gowrie NSW
Location:	Lot 101 1252700 - 49 Hill Street, Orange
Proposal:	Modification of development consent - centre-based child care facility (change of use and alterations and additions). The modification involved amendment to/or deletion of Conditions 4 and 7. These conditions reflect the specific requirements of Council’s Heritage Advisor, as they relate to building detailing including materials, colours, finishes and landscaping. It is considered that the proposed modified detailing will not adversely impact on the significance of the heritage item, nearby items or the heritage setting generally.
Value:	N/A

Reference:	DA 7/2021(1)	Determination Date:	31 May 2021
PR Number	PR2331
Applicant/s:	Designs@M
Owner/s:	Mr D Zhang and Ms Y Li
Location:	Lot 3 DP 362465 - 24 Casey Street, Orange
Proposal:	Demolition (existing dwelling) and dwelling
Value:	$250,000

Reference:	DA 10/2021(2)	Determination Date:	21 May 2021
PR Number	PR20436
Applicant/s:	Orange City Council
Owner/s:	Orange City Council
Location:	Lot 1 DP 1085646 - 298 Clergate Road, Orange
Proposal:	Modification of development consent - subdivision (46 lots – comprising 43 industrial lots, two lots for stormwater management and one public reserve lot). The modified proposal includes the construction of a retaining wall on the southern boundary of Lot 1 and Lot 40 of the site to enable onsite drainage to be achievable. The requirement of a retaining wall was identified post DA approval once detailed engineering design had commenced.
Value:	N/A

Reference:	DA 53/2021(1)	Determination Date:	28 May 2021
PR Number	PR5487
Applicant/s:	Mr LJ and Mrs LE Pilkington
Owner/s:	Mr LJ and Mrs LE Pilkington
Location:	Lot 4 DP 38536 - 63 Icely Road, Orange
Proposal:	Dual occupancy (one additional detached dwelling) and subdivision (two lot residential)
Value:	$185,000

Reference:	DA 111/2021(1)	Determination Date:	17 June 2021
PR Number	PR4149
Applicant/s:	Mr TE Milson
Owner/s:	Mr TE Milson
Location:	Lot 2 DP25690, 19 Fox Avenue, Orange
Proposal:	Demolition (sheds), secondary dwelling and detached garage
Value:	$150,000

Reference:	DA 139/2021(1)	Determination Date:	18 May 2021
PR Number	PR17414
Applicant/s:	Planning Potential
Owner/s:	Mr RD Cianfrano
Location:	Lot 194 and 195 DP100729026-34 and 36-40 Turner Crescent, Orange
Proposal:	Subdivision (boundary adjustment and eight lot Torrens title)
Value:	N/A

Reference:	DA 158/2021(1)	Determination Date:	7 June 2021
PR Number	PR3565
Applicant/s:	Diesel & Blue Pty Ltd
Owner/s:	JCI Group Pty Ltd
Location:	Lot 11 DP 575694 - 5-7 Edward Street, Orange
Proposal:	Doggy day care centre (change of use)
Value:	$25,000

Reference:	DA 166/2021(1)	Determination Date:	26 May 2021
PR Number	PR1772
Applicant/s:	Designs@M
Owner/s:	Ms ST Cain
Location:	Lot 110 DP 25621 - 14 Brunswick Street, Orange
Proposal:	Dwelling alterations and additions
Value:	$120,000

Reference:	DA 170/2021(1)	Determination Date:	25 May 2021
PR Number	PR598
Applicant/s:	Mr S and Mrs LG Hoffman
Owner/s:	Mr S and Mrs LG Hoffman
Location:	Lot 1 DP 86205 - 173 Anson Street, Orange
Proposal:	Demolition (tree removal)
Value:	$3,000

Reference:	DA 172/2021(1)	Determination Date:	18 June 2021
PR Number	PR8978
Applicant/s:	Ms MK Rickli
Owner/s:	Ms MK Rickli
Location:	Lot 5 DP 37493 - 5 National Avenue, Orange
Proposal:	Demolition (garage), secondary dwelling
Value:	$150,000

Reference:	DA 180/2021(1)	Determination Date:	1 June 2021
PR Number	PR28812
Applicant/s:	MAAS Group Properties Westwinds Pty Limited
Owner/s:	MAAS Group Properties Westwinds Pty Limited
Location:	Lots 123 and 124 DP 1267568 - 41 and 43 Westerly Drive, Orange
Proposal:	Subdivision (four lot Torrens title)
Value:	N/A

Reference:	DA 215/2021(1)	Determination Date:	16 June 2021
PR Number	PR8325
Applicant/s:	Mr JA Vandenberg
Owner/s:	Amberlend Pty Limited
Location:	Lot 4 DP 233405 - 45-47 McNamara Street, Orange
Proposal:	Business identification sign (projecting wall sign)
Value:	$2,283

Reference:	DA 232/2021(1)	Determination Date:	22 June 2021
PR Number	PR23637
Applicant/s:	Mr PJ and Mrs L Godson
Owner/s:	Mr PJ and Mrs L Godson
Location:	Lot 123 DP 1142127 - 3 Windamingle Place, Orange
Proposal:	Subdivision (three lot residential)
Value:	N/A

Reference:	DA 237/2021(1)	Determination Date:	22 June 2021
PR Number	PR16719
Applicant/s:	Mrs S Ford
Owner/s:	Asford Funds Management Pty Ltd
Location:	Lot 20 DP 876039 - 9 Scott Place, Orange
Proposal:	Depot (change of use)
Value:	N/A

Reference:	DA 239/2021(1)	Determination Date:	9 June 2021
PR Number	PR17415
Applicant/s:	Australian Childcare Solutions Pty Ltd
Owner/s:	Australian Childcare Solutions Pty Ltd
Location:	Lot 194 DP 1007290 - 36-40 Turner Crescent, Orange
Proposal:	Business identification signs (one pylon sign; one wall sign; and one fence sign)
Value:	$15,000

TOTAL NET* VALUE OF DEVELOPMENTS APPROVED BY THE CEO UNDER DELEGATED AUTHORITY IN THIS PERIOD: $2,505,283

* Net value relates to the value of modifications. If modifications are the same value as the original DA, then nil is added. If there is a plus/minus difference, this difference is added or taken out.

Additionally, since the June 2021 meeting report period (20 May to 25 June 2021), another 30 development applications were determined under delegated authority by other Council staff with a combined value of $5,048,702.

Planning and Development Committee 6 July 2021

2.2 Development Application DA 128/2021(1) - 1 Scarborough Street

RECORD NUMBER: 2021/1193

AUTHOR: David Paine, Senior Planner

EXECUTIVE Summary

Application lodged	29 March 2021
Applicant/s	Willowdene Constructions Pty Ltd
Owner/s	Willowdene Constructions Pty Ltd
Land description	Lot 129 DP 1237871 - 1 Scarborough Street, Orange
Proposed land use	Subdivision (two lot Torrens title) and construction of two dwelling houses
Value of proposed development	$460,000

The applicant is also seeking a variation to Council’s minimum lot size of 500m² for residential subdivision which is prescribed under Orange Local Environmental Plan 2011. An assessment of the extent of the variation is provide in the body of this report.

The proposed development comprises ‘advertised development’ pursuant to Orange Development Control Plan (DCP) 2004. No submissions were received by Council.

The proposal has been evaluated pursuant to Section 4.15 of the Environmental Planning and Assessment Act 1979 and is considered to be suitable. Approval of the application is recommended, subject to conditions of consent in the attached Notice of Approval.

Figure 1 - locality plan and site context

DECISION FRAMEWORK

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

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

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

DIRECTOR’S COMMENT

The applicant is seeking a variation to Council’s minimum lot size for residential subdivision which is prescribed under Orange Local Environmental Plan 2011. The proposed lots have site areas of 477.51m² and 428.3m², representing a variation of 4.5% and 14.3% respectively.

It is noted that the total area of the subject property complies with Clause 4.1B addressing the minimum lot sizes for dual occupancies. The creation of the proposed lots would not compromise the broader aims and principles of Orange LEP 2011; or the relevant Planning Outcomes of Orange DCP 2004 – 07 Development in Residential Areas.

It is recommended that Council supports the subject development.

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 128/2021(1) for Subdivision (two Lot Torrens title) and construction of two Dwelling Houses at Lot 129 DP 1237871 – 1 Scarborough Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

Council's consent is sought for the construction of a single storey dwelling house, subdivision of land to create two Torrens title lots and the construction of a second dwelling on the newly created lot. The proposal will be on land described as Lot 129 DP1237871, being 1 Scarborough Street, Orange.

The proposal involves development in two stages.

The first stage of the proposal involves the construction of a new single storey dwelling (Dwelling 2) on a vacant parcel of land and the subdivision of the land to create two Torrens title lots. The second stage is for the construction of a second single storey dwelling on the newly created lot.

The applicant is also seeking a variation to Council’s minimum lot size for residential subdivision which is prescribed under Orange Local Environmental Plan 2011. The applicant has submitted a formal written request to Council to vary the development standard via a Section 4.6 Exception to Development Standards application.

Each of the proposed dwellings will contain three (3) bedrooms, two (2) bathrooms, open plan kitchen/dining/living zone, media room, main bathroom, laundry, alfresco area and attached double garage.

The external finishes of the proposed dwellings will comprise:

· face brick walls with timber cladding features

· iron roof sheeting at 27 degree pitch

· powder coated aluminium framed windows

· panel lift garage doors.

While the proposed dwellings are very similar in appearance, they have been designed to each face a different street, with Dwelling 1 fronting Scarborough Street and Dwelling 2 fronting Miriam Drive (refer to Figure 2 below).

The site will be landscaped, and areas for lawn will be established. Private open space with reasonable solar access will be provided. Concrete driveways will be constructed to each dwelling.

There is an existing 1.8m metal fence along the northern boundary. Retaining walls will be established where indicated on the submitted plans.

It is proposed to subdivide the subject land after the construction of the first dwelling (Dwelling 2) to create two residential lots as follows:

LOT	AREA (m²) subject to survey
1291	477.5m²
1292	428.3m²
Total	905.8m²

Proposed Lot 1 will comprise Dwelling 1 with vehicular access via Scarborough Street. Proposed Lot 2 will comprise Dwelling 2 with vehicular access from Miriam Drive.

Each of the proposed lots/dwellings will be connected to urban utility services in accordance with the requirements of the relevant supply authority.

Figure 2 - site plan

Figure 3 – perspective

MATTERS FOR CONSIDERATION

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

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

Having regard to the relevant provisions and based on an inspection of the subject property, it is considered that the proposed development is not likely to significantly affect a threatened species. The subject property has no biodiversity or habitat value. A Biodiversity Development Assessment Report is not required in this instance.

Section 4.15

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

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

Orange Local Environmental Plan 2011

Clause 1.2 - Aims of Plan

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

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

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

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

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

Clause 1.6 - Consent Authority

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

Clause 1.7 - Mapping

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

Land Zoning Map:	Land zoned R1 General Residential
Lot Size Map:	Minimum Lot Size 500m²
Heritage Map:	Not a heritage item or conservation area
Height of Buildings Map:	No building height limit
Floor Space Ratio Map:	No floor space limit
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Groundwater vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	Not within or affecting a defined watercourse
Urban Release Area Map:	Not within an urban release area
Obstacle Limitation Surface Map:	No restriction on building siting or construction
Additional Permitted Uses Map:	No additional permitted use applies
Flood Planning Map:	Not within a flood planning area

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

Clause 1.9A - Suspension of Covenants, Agreements and Instruments

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

(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 under the National Parks and Wildlife Act 1974, or

(d) to any Trust agreement under the Nature Conservation Trust Act 2001, or

(e) to any property vegetation plan under the Native Vegetation Act 2003, or

(f) to any biobanking agreement under 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.

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

Part 2 - Permitted or Prohibited Development

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

The subject site is located within the R1 General Residential zone. The proposed development is defined as “dwelling” and “subdivision of land.”

Pursuant to the OLEP Dictionary:

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

Pursuant to Section 6.2 of the Environmental Planning and Assessment Act 1979:

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

Residential dwellings are a permitted land use in the R1 zone. Subdivision is permitted with consent pursuant to Clause 2.6 (see below).

Clause 2.3 - Zone Objectives

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

· To provide for the housing needs of the community.

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

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

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

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

The proposal is consistent with the zone objectives as follows:

· The proposal would have a positive effect on the housing needs of the community by creating additional residential accommodation.

· The proposal contributes to the variety of housing types and densities.

· The subject land is within an establishing residential area that is serviced by public bus routes and footpath along nearby Leeds Parade.

· 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 a two lot Torrens subdivision of the proposed lot in accordance with this clause.

Clause 2.6 - Subdivision - Consent Requirements

This clause triggers the need for development consent for the subdivision of land.

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.

In relation to this site, the map nominates a minimum lot size of 500m². The lots proposed are 428.3m² and 477.5m². Both lots do not comply with the minimum requirement specified by the MLS. The issues is discussed below under Clause 4.6 – Exceptions to Development Standards.

LOT	AREA (m²) subject to survey
1291	477.5m²
1292	428.3m²
Total	905.8m²

Clause 4.6 - Exceptions to Development Standards

This clause is applicable as the subdivision component of the proposed development is less than the required minimum lot size of 500m² pursuant to Clause 4.1 of the LEP. The proposed lots have site areas of 477.51m² and 428.3m², representing a variation of 4.5% and 14.3% respectively.

It is noted that the total area of the subject property complies with Clause 4.1B addressing the minimum lot sizes for dual occupancies. The subject land comprises a site area of 905.8m², and thus exceeds the minimum area of 800m² required for a dual occupancy within the R1 General Residential zone.

Clause 4.6 is intended to achieve the following objectives:

(a) provide an appropriate degree of flexibility in applying certain development standards

(b) achieve better outcomes for and from development by allowing flexibility in particular circumstances.

At its core, a Clause 4.6 variation may be supported where it can be shown that the objectives of the standard are unreasonable and/or unnecessary to apply in this particular case, and where it can be shown that the objectives of both the plan and the clause to be varied are achieved notwithstanding the non-compliance with the numerical value of the standard.

The Clause 4.6 variation submitted with the application generally achieves the outcomes and procedures outlined in the Department’s circular and guideline; and the principles established by the Courts. The main basis for justification advanced in the submission is that the degree of variation is very small (22.5m² and 71.7m²- representing a 4.5% and 14.3% variation respectively), and that the proposed subdivision and construction of two single dwellings is entirely compatible with the expected residential land use pattern in this area. Council has supported similar requests within this particular precinct in the past.

Matters to address in an application

Variation of a development standard may be justified where it is consistent with the objectives that the relevant environmental planning instrument is attempting to achieve.

The application must address:

(i) whether strict compliance with the standard, in the particular case, would be unreasonable or unnecessary and why,

and

(ii) demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard.

The applicant has argued that the minimum lot size is unnecessary and unreasonable in this instance for the reasons explained below:

· The proposed dwellings satisfies the relevant Planning Outcomes for single dwellings pursuant to Orange DCP 2004 – 07 Development in Residential Areas.

· The subdivision of each dwelling onto a separate lot is a reasonable planning outcome and expectation for residential dwellings development that is demonstrated to satisfy the relevant LEP and DCP provisions.

· Subdivision of the proposed land can actually occur via Clause 4.1(4) of Orange LEP 2011 either as strata subdivision or as community title subdivision because these forms of subdivision are not subject to a MLS. However, the proposed subdivision layout, comprising regular lots each with direct street frontage and access is not conducive to strata or community subdivision.

It should be noted that the 88b applying to the land identifies the site for dual occupancy development, and subdivision of such. This was identified at the time of the overarching subdivision of the site.

It is considered that there are sufficient environmental planning grounds to support the proposed variation. The applicant has demonstrated that the proposal satisfies the objectives of the R1 General Residential zone and the objectives of the MLS. It should be noted that Clause 4.1(4) of the LEP would actually permit the subdivision either as a community title or strata subdivision however a Torrens title subdivision is considered more appropriate in this case given that each lot has direct road frontage and does not rely on common or shared elements that typify community or strata schemes. The proposed subdivision of land and the construction of two single dwellings is entirely compatible with the expected residential land use pattern in this area. The non-compliance with the MLS development standard does not generate unacceptable impacts in the locality.

Notwithstanding the above, written applications to vary development standards are also required to address matters set out in the ‘five part test’ established by the NSW Land and Environment Court. The NSW Department of Planning strongly advises Councils to apply the Five Part Test in their assessments of Clause 4.6 matters.

The Five Part Test

Written applications to vary development standards should also address matters set out in the ‘five part test’ established by the NSW Land and Environment Court. The five part test embodies the following:

1 the objectives of the standard are achieved notwithstanding noncompliance with the standard

2 the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary

3 the underlying object or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable

4 the development standard has been virtually abandoned or destroyed by the council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable

5 the compliance with development standard is unreasonable or inappropriate due to existing use of land and current environmental character of the particular parcel of land. That is, the particular parcel of land should not have been included in the zone.

The applicant states that the proposal, including the proposed variation to the MLS, would uphold the objectives of the MLS standard due to the following:

The proposal, including the proposed variation to the MLS would uphold the objectives of the development standard due to the following.

(a) To ensure that new subdivisions reflect existing lot sizes and patterns in the surrounding locality

The proposed lots may not necessarily reflect the majority of existing lot sizes in this precinct. However, once the subdivision and the construction of the two dwellings are completed, the two dwellings will become part of the development pattern. The creation of proposed Lots 1291 and 1292 to excise each of these dwellings would indeed reflect this element of the development pattern.

(b) To ensure that lot sizes have a practical and efficient layout to meet intended use

The proposed variation of the MLS remains consistent with this objective. Each lot is intended to excise the proposed dwellings, both of which are demonstrated to satisfy the relevant LEP and DCP provisions. The proposed lots logically recognised each proposed dwelling and its associated private open space, access, and servicing requirements.

(c) To ensure that lot sizes do not undermine the land’s capability to support rural development

This objective is not relevant as the subject land is not within a rural zone.

(d) To prevent the fragmentation of rural lands

This objective is not relevant as the subject land is not within a rural zone.

(e) To provide for a range of lot sizes reflecting the ability of services available to the area

The proposed subdivision is consistent with this objective as the servicing arrangements for each of the proposed lots are readily available.

(f) To encourage subdivision designs that promote a high level of pedestrian and cyclist connectivity and accommodate public transport vehicles.

There are no aspects of the proposed MLS variation that would be adverse to this objective.

The applicant makes the following additional comments in regards to the five part test and the requirements of Clause 4.6:

· Strict compliance with the 500m² MLS would not necessarily defeat or thwart the underlying objective or purpose of the development standard. However, the proposal is considered to be consistent with the objectives of the development standard.

· The development standard cannot be said to be abandoned. However, the Leeds Parade Conceptual Subdivision Layout appears to depict several lots that are less than 500m². Further the development standard becomes irrelevant if the subdivision was to be undertaken as strata or community title.

· The proposal including the proposed variation of the MLS remains consistent with the objectives of the R1 General Residential Zone.

· The contravention of the development standard does not raise an issue of State or regional planning significance as it relates to local and contextual conditions.

· Public benefit would not suffer as a result of the variation to the development standard. The public would benefit from an increase in the choice of residential accommodation.

· The creation of the proposed lots would not compromise the broader aims and principles of Orange LEP 2011; or the relevant Planning Outcomes of Orange DCP 2004 – 07 Development in Residential Areas.

It is considered that the applicant has provided suitable justification in this case for the non-compliance with the MLS development standard in this case. It is recommended that Council supports the subject variation.

Department Of Planning’s Circular

This Circular sets out the circumstance and criteria for applying Council’s assumed concurrence to the determination of development standards under Clause 4.6.

In the event that the variation sought does not exceed 10% of the development standard, the concurrence issued by the Department may extend to a delegate of the Council. The Secretary’s concurrence does not extend to a delegate if the development contravenes a numerical standard by greater than 10%. In this instance, the variation must be considered by Council to be subject to a “greater level of public scrutiny” than decisions made by Council staff under delegation.

In this instance the variation sought is 4.5% and 14.35% and therefore must be determined by Council.

Summary

The LEP MLS requirement is an assessment tool aimed at achieving good design outcomes, making efficient use of land, and ensuring that neighbourhood character and amenity is not compromised. The subject land allows for dual occupancies pursuant to the LEP, and the fact that the proposal seeks to excise the dwellings via subdivision would be largely indiscernible in terms of impact and public perception of the development. Staff generally concur with the applicant, in that if the development strictly complies with the development standard (i.e. minimum lot size), it is unlikely to result in a better planning outcome. Furthermore, the MLS does not apply to Community or Strata subdivisions, and as such, subdivision could occur in a different arrangement than the proposed Torrens title.

Council may grant consent only if the concurrence of the Director General of the Department of Planning has been obtained (i.e. is assumed, as discussed above) and Council is satisfied that:

· the written request has adequately addressed the above, and

· the proposed development will be in the public interest because of:

- consistency with the objectives of the particular standard, and

- consistency with the objectives of the zone applying to the site.

It is considered that the written request adequately addresses the variation criteria of the clause, the Department of Planning guidelines, and the principles and test established by the Court. In particular, the proposed development is not contrary to any of the objectives for the zone or the MLS Clause; or contravene the DCP’s planning outcomes (addressed later in this report).

Overall, it is considered that the proposed variation is unlikely to result in any significant adverse impact on the operation of the LEP or the DCP, and that the proposed development is generally consistent with all relevant objectives and would not result in any significant adverse impact.

It is considered that the proposal, including the variation sought, is consistent with the above objectives.

Part 6 - Urban Release Area

The subject land is contained within an Urban Release Area on the Urban Release Area Map. The provisions in Part 6 of the LEP generally relate to servicing of the land in conjunction with subdivision. The development site was a lot created pursuant to DA 431/2012 for a proposed 88 lot residential subdivision, approved 26 March 2013. The subdivision is reflective of the Leeds Parade DCP/Masterplan for the parent parcel and adjoining lands.

Part 7 - Additional Local Provisions

7.1 - Earthworks

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

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

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

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

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

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

(f) the likelihood of disturbing relics

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

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

In consideration of this clause, the proposal is acceptable. Minor earthworks will be required to create level building pads for the proposed dwellings and associated outdoor spaces.

The earthworks will be supported onsite and the change in ground level is not substantial. Retaining walls will be constructed within the Miriam Drive frontage to a maximum height of 0.8m and 1.2m, where indicated on the plan. This will result in the finished floor levels of the dwellings being lower than the street, and therefore only a small percentage of the retaining wall will be visible from Miriam Drive. Landscaping in front of these retaining walls will assist with integration to the site.

Disruption to drainage is considered to be minor and will not detrimentally affect adjoining properties or receiving waterways. The site is not known to be contaminated, nor is the site known to contain any Aboriginal, European or archaeological relics. The site is not in proximity to any waterway, drinking water catchment or sensitive area. Conditions are recommended that require sediment control measures to be implemented onsite prior to works commencing to ensure that loose dirt and sediment does not escape the site boundaries.

7.3 - Stormwater Management

The proposed development will be connected to the existing stormwater mains in accordance with Council’s standard requirements. Conditions are recommended in relation to stormwater management to satisfy the requirements of Clause 7.3.

7.6 - Groundwater Vulnerability

In consideration of Clause 7.6, the proposal is acceptable. The proposed development does not involve processes or activities that would impact on groundwater resources. The subject land is serviced by reticulated sewer.

Clause 7.11 - Essential Services

Clause 7.11 applies and states:

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

· the subject land is connected to reticulated water supply

· electricity and telecommunications are available to the land

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

· the proposed development will connect to existing stormwater infrastructure in the road reserve

· the site has direct frontage and access to Scarborough Street and Miriam Drive.

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

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 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 terms of potential soil contamination, a contamination assessment was undertaken as part of the subdivision requirements that applied in relation to the creation of the subject land (DA 431/2012). Since its creation as a residential allotment, the subject land has remained vacant.

On this basis, Council will not require further assessment in regard to potential site contamination.

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

Draft Remediation of Land State Environmental Planning Policy

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 proposed development will not be contrary to any matter contained 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 2004-7.1 Urban Residential Subdivision

The DCP sets the following applicable Planning Outcomes for Urban Residential Subdivision:

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

· 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.

This proposal satisfies the above Planning Outcomes due to the following:

· Proposed Lots 1291 and 1292 will be of sufficient area to provide a satisfactory standard of residential amenity to the proposed dwellings in respect of solar access and privacy.

· The proposed development will be connected to Council’s sewer, town water and stormwater reticulations in accordance with normal requirements. Power, telephone and natural gas services are available to the development in accordance with the requirements of the relevant supply authority.

· The subdivision design and construction will comply with the Orange Development and Subdivision Code.

DCP 2004-7.7 Design Elements for Residential Development

The DCP sets the following Planning Outcomes at Part 7.7:

Neighbourhood Character

Site layout and building design enables the:

· creation of attractive residential environments with clear character and identity

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

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

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

The proposal satisfies the above Planning Outcomes due to the following:

· The site layout and building design is intended to create an attractive residential environment. In this regard:

- the neighbourhood character in this release area is expected to comprise mostly contemporary, detached single storey dwellings with landscaped front yards and individual driveways. The proposed development displays similar attributes and therefore remains consistent with the expected character of the neighbourhood

- the proposed development is not influenced or constrained by important views, vegetation or landmarks

- the development has been designed to provide internal living areas and private open space areas with reasonable solar access.

· The dwellings adopt a building form and finish that is considered typical of residential development in the City’s newer northern residential areas. In particular, the proposed dwellings comprise the following elements to remain consistent with the expected development form:

- detached configuration

- hipped roof lines

- face brick external walls with timber cladding on front façade

- front door facing the street

- garage door facing the street

- bulk and sale commensurate with other dwellings

- landscaped front yards

- separate driveways.

· Notwithstanding the modest increase in traffic movements (due to one additional dwelling), the proposal will not adversely impact on pedestrian access associated with the streetscape, due to the following:

- pedestrian movements are expected to be modest in this neighbourhood

- the reverse egress arrangements for the proposed dwellings will be consistent with those for single dwellings in this neighbourhood and throughout the City generally

- adequate driver and pedestrian sight lines will be achieved so that vehicles entering and exiting the site are visible to pedestrians and vice versa.

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.

This proposal can be demonstrated to be satisfactory in this regard due to the following:

· The external finishes (face brickwork walls; iron roofing; and powder coated garage doors and window frames) are considered appropriate in this developing residential neighbourhood.

· Each of the dwellings will address the street with a contemporary façade comprising windows, front entry door and porch. Landscaping is proposed as indicated in the landscape plan.

· The garages will not unreasonably dominate the respective street frontage due to the following:

- each garage is recessed in the front elevation of the respective dwelling

- the width of the garage door opening in each dwelling is less than 50% of the front elevation of the respective dwelling

- the garages are set back a minimum of 5.5m from the street boundary as encouraged by the DCP

- the frontage for each dwelling is to be landscaped.

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.

As required by the DCP, the front boundary setback for each of the proposed dwellings will be a minimum of 4.5m.

The DCP allows corner allotments to adopt a 2m setback for the secondary boundary. Given that the proposed design of Dwelling 1 provides a front door and garage that face Scarborough Street, it is submitted that Miriam Drive and the splay would represent the secondary boundary in relation to Dwelling 1. In accordance with the DCP, Dwelling 1 is sited a minimum of 2m from the secondary boundary.

The garage for each dwelling complies with the minimum setback of 5.5m required by the DCP.

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 development proposes to provide 1.8m high aluminium fencing between the two dwellings. A condition will be attached requiring 1.8m high metal fencing along the northern and western boundaries to provide privacy and security to residents.

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).

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory due to the following:

· The proposed dwellings are set back from the site boundaries to ensure that they will be contained within the visual bulk envelope (VBE) generated by planes projected at 45° over the site, commencing 2.5m above existing ground level from each side and rear boundary.

· Whilst Dwelling 1 is closer to the southern boundary, it will be sited in cut (at a lower ground level) and will therefore be contained within the VBE which applies to that boundary.

· The proposed dwellings will comprise a total building area of 195.41m²for Dwelling 1 and 180.65m² for Dwelling 2. Based on the site area of 477.21 and 428.23m² the development will have a site coverage of 40.9% for Dwelling 1 and 42.9% for Dwelling 2 both dwellings comply with the maximum of 50% prescribed in the DCP.

· The slope of the land will require earthworks and retaining structures along the proposed common boundary and part of the western boundary adjoining Lot 211 DP 1177178. Landscaping will be incorporated into the retaining walls to soften the visual bulk.

· The proposed finished floor levels of Dwellings 1 and 2 relate reasonably to existing ground levels and are not expected to generate adverse impacts in respect of visual bulk, solar access or privacy.

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.

Apart from a small section of retaining wall along the western boundary the proposal does not include any buildings built on boundaries. The proposed dwellings would not unreasonably reduce to amount of daylight that reaches adjoining properties or unreasonably impact upon their privacy.

Figure 4 - indicating retaining wall along the western boundary

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 Dwellings

According to the DCP Guidelines and Council’s Energy Efficiency Code, sunlight to at least 75% of north-facing living area windows within the development and on adjoining land is to be provided for a minimum of 4 hours on 21 June; or not further reduced than existing where already less.

The proposed development satisfies this aspect of the DCP. The shadow diagrams indicate that:

· the north facing living area windows in each of the proposed dwellings will achieve the required amount of direct sunlight on the winter solstice

· the shadow diagrams indicate that shadowing on the adjoining property to the west occurs at the greatest effect only in the morning period (9am to 10am). As such, the development would meet the DCP requirements in regard to maintaining solar access to the private open space on adjoining land

· the majority of the overshadowing is toward the south, being the roadways and therefore no impact upon adjoining residential properties.

Overshadowing of Private Open Space

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

The proposed development satisfies this aspect of the DCP as follows:

· Overshadowing of private open space within the development itself is compliant with the DCP. As indicated in the site calculation table:

- Dwelling 1 has a floor area of 147.5sqm (excluding garage, porch and alfresco) and thus requires a private open space area of 73.75m². 40% of the required open space area is 29.5m². The shadow diagrams indicate that the area of direct sunlight will range from 29.51m² to 39.98m² between 11am and 2pm on 21 June.

- Dwelling 2 has a floor area of 132m² (excluding garage, porch and alfresco) and thus requires a private open space area of 66m². 40% of the required open space area is 26.4m². The shadow diagrams indicate that the area of direct sunlight will range from 26.2m² to 61.5m² between 9am and 2pm on 21 June.

· The development would meet the DCP requirements in regard to maintaining reasonable solar access to the private open space of surrounding properties due to the following:

- the shadow diagrams indicate that no shadowing impact will occur to the adjoining property to the north

- the shadow diagrams indicate that shadowing impact on the adjoining property to the west would be mostly gone by 11am so is unlikely to affect any future development on the property.

Energy Performance Statement

BASIX/NatHERS certificates have been prepared. The dwelling houses will comply with the relevant provisions in respect of water, thermal, comfort and energy.

The proposed development is considered satisfactory in terms of Council’s Energy Efficiency Code due to the following:

· energy efficient influences in the design include northerly orientation of living areas; slab on ground; and only necessary glazing along the southern and western sides of the dwellings

· the appropriate star rated water saving devices will be installed

· the hot water system for each dwelling will be of a type that achieves the star rating recommended in the BASIX certificate for each dwelling.

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.

Being single storey and with finished floor levels reasonably commensurate with existing ground level, the proposed dwellings would not unreasonably diminish views for other properties in the vicinity.

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 consideration of the DCP Guidelines, it is considered that the applicant has suitably demonstrated that the proposal is satisfactory based on the following:

Privacy within the Development

· The principal living room windows for proposed Dwellings 1 and 2 will overlook their respective private open space area and whilst these areas will directly oppose each other, 1.8m high fencing between these spaces will address any matters pertaining to privacy.

· The proposed site levels assist to maintain privacy. Generally, the finished floor levels of the dwellings are reasonably commensurate with the existing ground level and below the DCP Guideline of 1.5m above natural ground level at which point additional privacy measures should be implemented.

· The front door and garage for each dwelling are orientated so as to ensure that occupants achieve reasonable privacy when entering or exiting their residence.

· The retaining wall and proposed 1.8m Colorbond fence will visually obstruct overlooking between the proposed common boundary.

Privacy in relation to Neighbours

· Privacy in relation to the property to the west will be achieved as follows:

- the dwelling on the property to the west is set back more than 30m from the common boundary and is visibly screened by the existing shed and established vegetation

- the primary living areas for Dwelling 2 are orientated to the north east and away from the property to the west.

· Privacy in relation to the property to the north will be achieved as follows:

- the existing 1.8m Colorbond fence along the northern boundary will break direct line of sight between the two properties and will have a height similar to the proposed eave height of Dwelling 2

- proposed Dwelling 2 will be set at a lower finished ground level

- whilst the alfresco area and glass sliding door for the living area of Dwelling 2 faces north east, these elements are well set back from the eastern boundary. Further, these do not oppose any similar elements associated with the dwelling on the neighbouring property.

Acoustic Privacy

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

· Site layout and building design:

- protect habitable rooms from excessively high levels of external noise

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

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

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

Security

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

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

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

In consideration of the DCP Guidelines, the applicant submits that proposal is satisfactory due to the following:

· the proposed building design will offer reasonable opportunities for surveillance. The dwellings will have a front door and living room windows that address their respective street frontage, thereby providing effective passive surveillance from the dwelling to public areas

· the site has reasonable access control. The lock-up garages with internal access will enhance security. The private open space areas will be fenced so as to provide a physical barrier for intruders

· the proposed landscaping limits the opportunity for potential offenders to conceal themselves.

It is considered that the planning outcomes for safety have been adequately addressed.

Public Transport

The DCP sets the following Planning Outcomes in regard to Public Transport:

· Residential unit development is accessible to public transport.

The proposal is considered to be satisfactory in this regard. The subject land is located within an establishing urban residential area that is to be serviced by public bus routes.

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 proposal is considered to be satisfactory in this regard, due to the following:

· a reverse exit will be required for each dwelling as is the case for the majority of new estate residential development throughout this City

· the driveways will be located a sufficient distance from the intersection to avoid vehicle conflicts.

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:

- number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

The proposal meets the DCP requirements. According to the car parking table in the DCP, 3.4 (4) spaces will be required for the dual occupancy (based on 1.5 spaces per 3-bedroom dwelling and 0.2 visitor spaces per unit).

As indicated in the site plan, eight off-street car spaces will be provided for the development, comprising a double garage and two tandem spaces for each proposed dwelling.

Private Open Space

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

· Private open space is clearly defined for private use.

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

· Private open space is:

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

- accessible from a living area of the dwelling

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

- orientated to optimise year round use.

The DCP Guidelines require open space to:

· be provided at a rate of at least 50% of the gross floor space of each dwelling

· have a minimum dimension of 3m

· include at least one area with minimum dimensions of 5m x 5m directly accessible to a living area preferably orientated to the north or east of the dwelling

· be adjacent to dwellings and located behind the primary front wall of the dwelling

· be allocated to individual dwellings where practicable to minimise the need for management and maintenance of communal open space.

The following table demonstrates that each of the proposed dwellings is provided with open space that complies with the minimum requirement in terms of area.

Dwelling

Living Area (ex. garage, porches, patios etc.)

(m²)

Private Open Space Required by DCP

(m²)

Private Open Space Provided

(m²)

147.5m²

73.75m²

102.68m²

132.01m²

66.01m²

112.68m²

The site plan confirms that the private open space for each dwelling will have a minimum dimension of 3m and each yard will be able to provide an area of 5m x 5m.

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

The internal living area for each dwelling will connect to its respective area of private open space via glass sliding doors and an alfresco area. Each private open space area will be enclosed by fencing.

The private open space for each dwelling will be located behind the primary front wall.

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 which includes a number of medium trees per dwelling. The plan is considered suitable to provide integration of the dwellings in the streetscape, softening of hardstand vehicle areas, and internal privacy screening.

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.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory due to the following:

· the submitted landscape plan provides for garden beds and lawn areas which will assist with onsite infiltration

· preliminary engineering investigations indicate that easements to drain water over adjoining land will not be required

· stormwater from the development will be directed to existing drainage infrastructure.

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.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory due to the following:

· an erosion and sediment control plan will be prepared as part of the engineering design plans for the development.

DEVELOPMENT CONTRIBUTIONS PLAN 2017

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

Open Space and Recreation	1 x @ 4,168.54	4,148.54
Community and Cultural	1 x @ 1,208.86	1,208.86
Roads and Traffic Management	1 x @ 5,502.32	5,502.32
Local Area Facilities
Plan Preparation and Administration	1 @ 324.44	326.39
TOTAL:		$11,206.11

A condition is recommended requiring payment of contributions prior to issue to the release of the Subdivision Certificate.

Section 64 Water and Sewer Headworks Charges

Section 64 water and sewer headwork charges are applicable to the proposed development. The contributions for water, sewer and drainage works are based on one additional ET for water supply headworks and one additional ET for sewerage headworks. Conditions are recommended requiring payment of contributions prior to issue of a Construction Certificate.

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

Demolition of a Building (clause 92)

The proposal does not involve the demolition of a building.

Fire Safety Considerations (clause 93)

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

Buildings to be Upgraded (clause 94)

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

BASIX Commitments (clause 97A)

A BASIX Certificate has been submitted in support of the proposed development which demonstrates compliance with respect of water, thermal comfort and energy targets.

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

Visual Impacts

The visual impacts of the proposal are considered acceptable, as outlined in the foregoing sections of this report. The proposed subdivision and construction of two dwellings will complement the developing neighbourhood character and streetscape built form in respect of building design, external finishes, height and site layout.

Traffic Impacts

The proposal is considered to be satisfactory in terms of traffic impacts. The capacity of the local road network is sufficient to accommodate additional localised traffic generated by the development. The proposed access, parking and manoeuvring arrangements for the development are appropriate.

Cumulative Impacts

The proposal is considered to be satisfactory in terms of cumulative impact. The proposed dwellings will complement the neighbourhood built form in respect of bulk, form, design features and external finishes. The proposed development will not reduce the open space, solar access or privacy afforded to future dwellings. Similarly, the site layout and building design will provide a reasonable standard of residential amenity for the proposed dwellings in terms of open space, solar access and privacy. The development will contribute to the diversity of housing forms in the precinct in a manner that is consistent with the developing neighbourhood character.

Environmental Impacts

The subject land is contained within a developing residential precinct and comprises vacant, cleared land. Significant vegetation, threatened species or ecological endangered communities or their habitats are unlikely to be present. The site is not in proximity to any waterway, drinking water catchment or sensitive area. Sediment control measures, as required by conditions, will prevent loose dirt and sediment escaping the site and polluting downstream waterways.

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

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

· the land is zoned R1 General Residential. The proposal is permitted with consent

· the site is of sufficient area and dimensions to accommodate the proposed subdivision and the construction of two dwellings and will provide a high standard of residential amenity

· the site has direct frontage and access to Scarborough Street and Miriam Drive

· there is no known contamination on the land

· all utility services are available and adequate

· the site is not subject to natural hazards

· the subject land has no biodiversity or habitat value

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

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

The proposed development is defined as "advertised development" under the provisions of the DCP. The application was advertised, and at the end of that period, no submissions had been received.

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 is mostly compliant 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, D21/38981 ⇩

2 Plans, D21/32274 ⇩

Planning and Development Committee 6 July 2021

Attachment 1 Notice of Approval

ORANGE CITY COUNCIL

Development Application No DA 128/2021(1)

NA21/1438 Container PR27891

NOTICE OF DETERMINATION

OF A DEVELOPMENT APPLICATION

issued under the Environmental Planning and Assessment Act 1979

Section 4.18

Development Application
Applicant Name:	Willowdene Constructions Pty Ltd
Applicant Address:	C/- Peter Basha Planning & Development PO Box 1827 ORANGE NSW 2800
Owner’s Name:	Willowdene Constructions Pty Ltd
Land to Be Developed:	Lot 129 DP 1237871 - 1 Scarborough Street, Orange
Proposed Development:	Dwelling House, Subdivision (2 lot Torrens title) and Dwelling House

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

Determination made under Section 4.16
Made On:	6 July 2021
Determination:	CONSENT GRANTED SUBJECT TO CONDITIONS DESCRIBED BELOW:

Consent to Operate From:	7 July 2021
Consent to Lapse On:	7 July 2026

Terms of Approval

The reasons for the imposition of conditions are:

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

(2) To maintain neighbourhood amenity and character.

(3) To ensure compliance with relevant statutory requirements.

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

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

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

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

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

Conditions

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

(a) Plans prepared by Sam Morgan Design Sheets No 1 to 14, dated 20/06/19

(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.

STAGE 1 - DWELLING 2 AND TWO LOT SUBDIVISION

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(7) The payment of $11,206.11 is to be made to Council in accordance with section 7.11 of the Act and the Orange Development Contributions Plan 2017 (Orange LGA) towards the provision of the following public facilities:

Open Space and Recreation	@ $4,168.54 x 1 x additional lots	4,168.54
Community and Cultural	@ $1,208.86 x 1 x additional lots	1,208.86
Roads and Traffic Management Facilities	@ $5,502.32 x 1 x additional lots	5,502.32
Local Area Facilities
Plan Preparation & Administration	@ $326.39 x 1x additional lots	326.39
TOTAL:		$11,206.11

The contribution will be indexed quarterly in accordance with the Orange Development Contributions Plan 2017 (Orange LGA). This Plan can be inspected at the Orange Civic Centre, Byng Street, Orange.

(8) 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.

(9) Proposed Dwelling 2 shall be provided with interlot stormwater drainage where the surface of the entire lot cannot be drained to the kerb and gutter at the lot frontage. A grated concrete stormwater pit is to be constructed. 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.

(10) 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

(11) 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.

(12) 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.

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

DURING CONSTRUCTION/SITEWORKS

(14) 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.

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

(16) 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.

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

(18) 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 lots 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.

(19) A concrete kerb and gutter layback and footpath crossing is to be constructed in the position shown on the plan submitted with the Construction Certificate application. The works are to be carried out to the requirements of the Orange City Council Development and Subdivision Code and Road Opening Permit.

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

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

(21) Landscaping shall be installed in accordance with the approved plans and shall be permanently maintained to the satisfaction of Council's Manager Development Assessments.

(22) 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.

(23) 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.

(24) 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.

(25) 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.

PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

(26) 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 Lot 1292 comply in respect to the distances of walls from boundaries.

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

(28) 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 1.0 ETs for water supply headworks and 1.0 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 Subdivision Certificate.

(29) 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.

(30) 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.

(31) 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.

(32) 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 proposed Lot 1291 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.

(33) 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.

(34) 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.

STAGE 2 - DWELLING 1

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

(35) 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 water, sewer and stormwater connection. No plumbing and drainage is to commence until approval is granted.

(36) Prior to the issue of a construction certificate for dwelling 1 evidence shall be provided to demonstrate that the plan of subdivision to create proposed Lots 1291 and 1292 has been lodged with NSW Land and Property Information.

(37) 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

(38) 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.

(39) 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.

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

DURING CONSTRUCTION/SITEWORKS

(41) 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.

(42) A Registered Surveyor’s certificate identifying the location of the building on the site must be submitted to the Principal Certifying Authority prior to the pouring of the slab or footings.

(43) 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.

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

(45) A concrete kerb and gutter layback and footpath crossing is to be constructed in the position shown on the plan submitted with the Construction Certificate application. The works are to be carried out to the requirements of the Orange City Council Development and Subdivision Code and Road Opening Permit.

(46) The existing 150mm diameter sewer main that crosses the site 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

(47) 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.

(48) Prior to the issue of an occupation certificate for dwelling 1 evidence shall be provided to demonstrate that the plan of subdivision to create proposed Lots 1291 and 1292 has been registered with NSW Land and Property Information.

(49) 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 compliance certificate issued, prior to the issue of either an interim or a final Occupation Certificate.

(50) 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.

(51) 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.

(52) 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.

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:	7 July 2021

Application lodged	31 July 2020 Amended proposal lodged 25 March 2021 138 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