Agenda of Planning and Development Committee

Planning and Development Committee 2 November 2021

2.1 Items Approved Under the Delegated Authority of Council

RECORD NUMBER: 2021/2210

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. 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 284/2012(5)	Determination Date:	30 September 2021
PR Number	PR26859
Applicant/s:	Geolyse Pty Ltd - Attn: Mr D Walker
Owner/s:	Australian AC Partners Property Pty Ltd Allity Gosling Creek
Location:	Lot 200 DP 1202634 - 1501 Forest Road, Orange
Proposal:	Modification of development consent - demolition (existing dwelling/cafe and garage), subdivision (five lot Community title) and seniors housing (retirement village). The modified proposal related to the unconstructed south-west wing of the aged care home (known as Stage 2), and involved floor plan amendments and a reduced building footprint.
Value:	Not Applicable

Reference:	DA 111/2020(3)	Determination Date:	13 October 2021
PR Number	PR4818
Applicant/s:	Bassmann Drafting Services
Owner/s:	Mr MJ and Mrs JE Truloff
Location:	Lot 2 DP 413484 - 12 Green Lane, Orange
Proposal:	Modification of development consent - dwelling house (two storey), attached garage, retaining walls and tree removal. The modified development increases the front setback of the attached double garage by 2m, in order to achieve the required vehicle cross-over and driveway gradients. The finished garage floor level and room layouts at ground and first floor will be slightly amended to suit the proposed garage location.
Value:	Not Applicable

Reference:	DA 140/2020(2)	Determination Date:	30 September 2021
PR Number	PR3565
Applicant/s:	Planning Potential
Owner/s:	JCI Group Pty Ltd
Location:	Lot 2 DP 544083, Lot 501 DP 1122616 and Lot 11 DP 575694 - 5-17 and 46‑60 Edward Street, Orange
Proposal:	Modification of development consent - mixed use development; general industry (aluminium extrusion and powder coating industry) and warehouse or distribution centre. Application pertained to the administrative/slight adjusted of Condition 14 that provided for carparking on the former Electrolux site.
Value:	Not Applicable

Reference:	DA 328/2020(2)	Determination Date:	12 October 2021
PR Number	PR12072
Applicant/s:	Central West Property Projects Pty Ltd
Owner/s:	Lollback Family Property Pty Ltd
Location:	Lot 16 DP 258976 - 13-29 Torulosa Way, Orange
Proposal:	Modification of development consent - subdivision (33 lot residential). The modification sought to amend the drainage of the land with bulk earthworks, and proposed a number of retaining walls to facilitate appropriate drainage of the site.
Value:	Not Applicable

Reference:	DA 487/2020(2)	Determination Date:	30 September 2021
PR Number	PR29025
Applicant/s:	Fenton Developments Pty Ltd
Owner/s:	Fenton Developments Pty Ltd
Location:	Lot 100 DP 1274611, Lot 101 DP 1274611, Lot 1 DP 1254889 - 6 and 6A Yackerboon Place, Orange
Proposal:	Modification of development consent - demolition (tree removal) and subdivision (12 lot residential). The modified proposal sought to include Plan DA04A(B) in the list of approved plans for the development as originally intended by Council assessment staff.
Value:	Not Applicable

Reference:	DA 165/2021(1)	Determination Date:	30 September 2021
PR Number	PR25457
Applicant/s:	Integrated Consulting Pty Ltd
Owner/s:	Mr WD and Mrs JE Stephens
Location:	Lot 110 DP 1169358 - 42 Valencia Drive, Orange
Proposal:	Secondary dwelling, BBQ area and detached garage
Value:	$226,183

Reference:	DA 270/2021(1)	Determination Date:	30 September 2021
PR Number	PR8036
Applicant/s:	Mr MJ Fabar
Owner/s:	Mr JA and Mrs AM Fabar
Location:	Lot 4 DP 222029 - 1A Maxwell Avenue, Orange
Proposal:	Subdivision (two lot residential Torrens), carport and demolition (shed)
Value:	$10,000

Reference:	DA 281/2021(1)	Determination Date:	15 September 2021
PR Number	PR25478
Applicant/s:	Mr SW Rosser
Owner/s:	Mr SW Rosser
Location:	Lot 2 DP 1168899 - 1 Callistemon Place, Orange
Proposal:	Dwelling (two storey) and attached garage
Value:	$350,000

Reference:	DA 322/2021(1)	Determination Date:	12 October 2021
PR Number	PR5187
Applicant/s:	Source Architects
Owner/s:	Mr LA and Mrs ME Knight
Location:	Lot 3 Section 12 DP 9575, 156 Hill Street, Orange
Proposal:	Demolition (shed, carport and tree removal); subdivision (two lot Torrens title); dwelling alterations and additions; and subdivision (three lot community title)
Value:	$385,000

Reference:	DA 324/2021(1)	Determination Date:	12 October 2021
PR Number	PR28325
Applicant/s:	Orange Motor Group
Owner/s:	Adtec Pty Ltd & JA & RA Eastham Pty Ltd
Location:	Lot 34 DP 270446 - 8- 14 Gateway Crescent, Orange
Proposal:	Signage (three pylon signs and replacement fascia signs)
Value:	$140,000

Reference:	DA 336/2021(1)	Determination Date:	30 September 2021
PR Number	PR6912
Applicant/s:	Mrs R Houghton
Owner/s:	Dr DV Houghton
Location:	Lot B DP 940220 - 123 Lords Place, Orange
Proposal:	Demolition (tree removal)
Value:	$4,000

Reference:	DA 356/2021(1)	Determination Date:	12 October 2021
PR Number	PR16208
Applicant/s:	Mr R Fahy
Owner/s:	Roweth Investments Pty Limited
Location:	Lot 7 DP 855526 - 22 Scott Place, Orange
Proposal:	Vehicle repair station (change of use)
Value:	Nil

Reference:	DA 363/2021(1)	Determination Date:	12 October 2021
PR Number	PR28634
Applicant/s:	James Richmark Pty Ltd
Owner/s:	James Richmark Pty Ltd
Location:	Lot 4 DP 271257 - 1533 Forest Road, Orange
Proposal:	Major project ancillary works (car parking and bin store)
Value:	$400,000

Reference:	DA 365/2021(1)	Determination Date:	28 September 2021
PR Number	PR4112
Applicant/s:	Orange Ex-Services Club Limited
Owner/s:	Orange Ex-Services Club Country Club
Location:	Lot 205 DP 42900 - 1584 Forest Road, Orange
Proposal:	Recreation facility (outdoor) (contraction of existing bowling green)
Value:	$35,000

Reference:	DA 366/2021(1)	Determination Date:	7 October 2021
PR Number	PR24835
Applicant/s:	Orange Ex-Services Club Limited
Owner/s:	Wentworth Golf Club
Location:	Lot 181 DP 1154782 - Ploughmans Lane, Orange
Proposal:	Recreation facility (outdoor) (golf course adjustments, pump shed and tree removal)
Value:	$90,000

Reference:	DA 379/2021(1)	Determination Date:	13 October 2021
PR Number	PR28388
Applicant/s:	Jo Really Does Know Pty Ltd
Owner/s:	Mr BA and Mrs LA Parianos
Location:	Lot 100 DP 1245408 - 18-20 McNamara Street, Orange
Proposal:	Serviced apartments (change of use)
Value:	$110,000

TOTAL NET* VALUE OF DEVELOPMENTS APPROVED BY THE CEO UNDER DELEGATED AUTHORITY IN THIS PERIOD: $1,750,183

* 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 September 2021 meeting report period (23 September to 20 October 2021), another 37 development applications were determined under delegated authority by other Council staff with a combined value of $7,003,782.

Planning and Development Committee 2 November 2021

2.2 Development Application DA 242/2021(1) - 98 Dalton Street

RECORD NUMBER: 2021/1498

AUTHOR: Sophie Currenti, Student Planner

EXECUTIVE Summary

Application lodged	3 June 2021
Applicant/s	Premise
Owner/s	Mrs JM Granger
Land description	Lot 6 DP 1932 - 98 Dalton Street, Orange
Proposed land use	Dual Occupancy (change of use from existing dwelling), Secondary Dwelling and Subdivision (two lot residential)
Value of proposed development	$0

Council's consent is sought for a change of use and Torrens Title subdivision at 98 Dalton Street, Orange – Lot 6 DP 1932.

The proposal intends to:

· Change of use from residential dwelling and secondary dwelling to a dual occupancy; and

· Torrens Title subdivision of the lot into two (2) allotments consisting of:

o proposed Lot 100 being 452.32m² comprising the existing primary dwelling

o proposed Lot 101 being 239m² comprising the existing secondary dwelling.

A secondary dwelling on the land was approved in December 2015 via DA308/2015(1). The definition of a secondary dwellings states that they are to be located on the same lot of land as the principal dwelling, hence this application intends to change the use of these dwellings to a dual occupancy development within Stage 1, to legally allow for a two lot subdivision within Stage 2.

The applicant has submitted a Clause 4.6 variation to Clause 4.1b of the OLEP in support of the application, as the minimum allotment size is below the minimum area of 800m² for a dual occupancy development. The subject land has an approximate site area of 664.32m², representing a variation of 16.96%.

As outlined in this report, the proposed development is considered to reasonably satisfy the Local and State planning controls that apply to the subject land and particular land use. Impacts of the development will be within acceptable limit, subject to mitigation conditions. As no built form changes are proposed within this application, there is no effect on the existing environment. Approval of the application is recommended.

Figure 1 - locality plan

DECISION FRAMEWORK

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

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

Council's consent is sought to change the use of approved secondary dwelling to a dual occupancy so as to facilitate a two lot residential subdivision of the property at 98 Dalton Street. Under the LEP definition of secondary dwelling subdivision is not permitted hence the reason for the proposed change in use in this case. The applicant has submitted a Clause 4.6 variation seeking support to vary the minimum area requirement of 800m² for a dual occupancy development. The subject land has an approximate site area of 664.32m², representing a variation of 16.96%.

There are some engineering access and servicing requirements that will be necessary to ensure that the proposed subdivision meets the requirements of Council’s Subdivision and Development Code. These matters have been addressed by recommended conditions of consent.

It is recommended that Council supports the proposal subject to the adoption of the attached Notice of Determination.

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 242/2021(1) for Dual Occupancy (change of use from existing dwelling and Secondary Dwelling) and Subdivision (two lot residential) at Lot 6 DP 1932 - 98 Dalton Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

The proposal involves a change of use and Torrens Title subdivision at 98 Dalton Street, Orange. The proposal intends to:

· Change of use from residential dwelling and secondary dwelling to a dual occupancy; and

· Torrens Title subdivision of the lot into two (2) allotments consisting of:

o proposed Lot 100 being 452.32m² and hosting the existing primary dwelling

o proposed Lot 101 being 239m² hosting the existing secondary dwelling.

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Figure 2 – proposed subdivision plan

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 (ie the need for a BDAR to be submitted with a DA):

· Trigger 1: development occurs in land mapped on the Biodiversity Values Map (OEH) (clause 7.1 of BC Regulation 2017);

· Trigger 2: development involves clearing/disturbance of native vegetation above a certain area threshold (clauses 7.1 and 7.2 of BC Regulation 2017); or

· Trigger 3: development is otherwise likely to significantly affect threatened species (clauses 7.2 and 7.3 of BC Act 2016).

The fourth trigger (development proposed to occur in an Area of Outstanding Biodiversity Value (clause 7.2 of BC Act 2016) is generally not applicable to the Orange LGA; as no such areas are known to occur in the LGA. No further comments will be made against the fourth trigger.

Summary

The site does not occur within land mapped on the Biodiversity Values Map and no clearing/disturbance is proposed. As the proposal does not trigger any of the four requirements for insertion into the BOS, a Biodiversity Development Assessment Report is not required to be lodged with the application for development consent. No other comments are warranted under this section.

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 applicable aims of the plan.

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:	Within 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

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 dual occupancy and subdivision under OLEP 2011 and is permitted with consent for this zone. This application is seeking consent.

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

1 - Objectives of the R1 General Residential Zone

· To provide for the housing needs of the community.

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

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

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

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

The proposed development is not inconsistent with the objectives of the zone. The proposed development would act to provide separate housing stock within the City. The proposed development will continue to provide a variation of housing type and density for the City. The subject site is within close proximity to routes used by public transport and is also in close proximity to shops and services.

Clause 2.6 - Subdivision - Consent Requirements

This clause triggers the need for development consent for the subdivision of land. Additionally, the clause prohibits subdivision of land on which a secondary dwelling is situated if the subdivision would result in the principal and secondary dwellings being located on separate lots. The proposed change of use will facilitate the opportunity for a two lot subdivision of the dual occupancy. The application is seeking development consent for subdivision.

Part 3 - Exempt and Complying Development

The application is not exempt or complying development.

Part 4 - Principal Development Standards

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

This clause establishes the minimum lot size required for dual occupancies and multi dwelling housing in the R1, R2 and R3 zones. The proposed dual occupancy project is situated on land within the R1 General Residential zone. Accordingly, this clause requires the site to have a minimum area of 800m². This subject land is 664.32m² and therefore inconsistent with this clause. The applicant has submitted a Clause 4.6 variation request to the minimum area requirement of 800m².

Clause 4.6 - Exceptions to Development Standards

This clause is applicable in this case as the lot in which the dual occupancy is proposed is smaller than the required minimum size. Clause 4.1b sets out minimum lot sizes for dual occupancy, multi dwelling housing and residential flat buildings, which relevantly states:

(1) The objective of this clause is to achieve planned residential density in certain zones.

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

(3) This clause does not apply to land in the Shiralee Urban Release Area.

The proposed dual occupancy project is situated on land within the R1 General Residential zone that is not identified on the Minimum Lot Size Map. Accordingly, the above described table requires the site to have a minimum area of 800m², which the lot size of this property does not meet. The proposed lot has a site area of 664.32m², representing a variation of 16.96%.

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.

Clause 4.6 may not be used to routinely seek variation to a standard and may not be used in such a way as to render a development contrary to the intent of the standard or the plan that it relates to. Clause 4.6 may also not be used as a de facto rezoning tool, and cannot be used to bypass permissibility issues that a particular proposal may have.

There are set procedures outlined in guidelines published by the NSW Department of Planning encapsulated in a circular published in 2008, and quite strongly supported and upheld in the Land & Environment Court. For obvious reasons the Department advises all Councils to allow variations only where exceptional circumstances exist and where certain other criteria can be shown to be achieved.

The Clause 4.6 variation submitted with the application generally achieves those outcomes and the procedures outlined in the Department’s circulars; and the principals established by the Courts. The main basis for justification advanced in the submission is that the proposed dual occupancy meets all other objectives of the OLEP, notwithstanding the technical non-compliance. It also states that the proposal is considered to be an orderly and economic use of the land as it is currently being used as a dwelling and a secondary dwelling. Secondary dwellings have traditionally been considered as separate residential accommodation (granny flat style development) which acts as an extension to the main dwelling that can have shared parking and open space areas.

Matters to Address in an Application

When applicants lodge development applications and associated requests to vary a development standard, they must give grounds of objection to the development standard. 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 dwelling satisfies the relevant Planning Outcomes for dual occupancy development pursuant to Orange DCP 2004 - 07 Development in Residential Areas.

· The residential development is considered a reasonable development for the site as dual occupancies are permissible within the zone.

· As the proposal relates to an existing dwelling onsite, it is considered that the lot size is able to accommodate the low relatively low-density residential character of the area.

· The proposal is unlikely to lead to the setting of an undesirable precedent which could be used as a justification for other developments of this nature, on the basis it represents a legitimate project that is permissible under planning framework.

· Strict compliance with the standard would result in an inflexible and unfair application of policy. It does not serve any purpose that is outweigh by the positive outcomes of the development.

It is considered that there are sufficient environmental planning grounds cited by the applicant to support the variation. These are as follows:

· A variation of the development standard is justified in this case because it can be demonstrated that the proposal satisfies the objectives of the R1 General Residential zone and the objectives of the MLS.

· The residential development has a high degree of compliance with the relevant LEP and DCP provisions.

· The proposed dual occupancy is considered compatible with the residential land use pattern in this area. A variation of the MLS to allow the existing secondary dwelling to be excised on a conventional allotment does not diminish this aspect of the development.

· It is demonstrated that non-compliance with the MLS development standard does not generate unacceptable impacts in the locality.

Written applications to vary development standards need to not only address the above matters, but may also 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

The Five Part Test is anchored in Land and Environment Court Planning Principles. The Department of Planning recommends that consent authorities apply the test in their assessment of Clause 4.6 variations.

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.

With regard to Point (1), a clear aim of Clause 4.6 is for flexibility in the application of a planning control where it can be demonstrated that strict compliance is unreasonable and unnecessary. This proposal relies on such flexibility to have the dual occupancy development approved at the existing lot size presented in the DA. Flexibility in this matter would result in a better outcome for and from the development for the reasons outlined below.

With regard to Point (2), it is considered that a variation of the minimum lot size for dual occupancies is a development standard that may be considered within the ambit and operation of this clause.

Minimum lot size requirements are a blunt assessment tool aimed at achieving good design outcomes, whilst at the same time making efficient use of the land at densities likely to achieve a reasonable return for the development; and at the same time ensuring that neighbourhood character and amenity is not excessively compromised.

The variation is considered acceptable in this case due largely to the fact that each dwelling will have separate and independent access arrangements. As the proposed development does not involve any changes to the built form onsite and relates to existing dwelling structures, the variation is considered to be acceptable in this instance as the effect of the proposal on the surrounding development will be minimal. It will be necessary however that the applicant provides for one undercover parking space at the rear of the property to support the dwelling in the rear yard to be consistent with the DCP requirements. No specific details have been submitted with the application but a recommended condition of consent will require such to be provided prior to the issue of a subdivision certificate. The applicant will need to either submit a separate application for this element of the development or alternatively ensure that the structure satisfies the exempt development criteria.

With regard to Point (3), it is considered that strict compliance with the 800m² 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.

With regard to Point (4), the development standard cannot be said to be abandoned. However, it is considered that other land holdings within close proximity to the subject site would most likely to be deficient in area themselves.

With regard to Point (5), the zoning of the land is reasonable and appropriate for the proposal. It is considered that insistence on full compliance with Clause 4.1B for this site is unreasonable, and unnecessary in this case.

Council may grant consent only if the concurrence of the Director General of the Department of Planning has been obtained 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.

The written request adequately addresses the variation criteria of the clause.

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. Council has assumed concurrence to assess and process Clause 4.6 variations of this nature. 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.

In accordance with the requirements of the circular, Council has quarterly reporting obligations as to the number of times it has used Clause 4.6 and for what purposes. The Department wants to keep check on the over use of Clause 4.6 to discourage inappropriate use of the clause on a routine basis. Despite some use of the clause for development in the Orange City LGA, there has been no expressions of concern from the department about the overuse of the clause.

There are some circumstances where Clause 4.6 is prohibited from being used, but this particular situation is not one of those circumstances.

The land is located within the R1 General Residential zone, which has the following objectives:

· To provide for the housing needs of the community.

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

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

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

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

The proposed development with its non-compliance to Clause 4.1 is not contrary to any of the objectives for the zone; neither does the proposed development significantly contravene the DCP’s planning outcomes.

Overall it is considered that the proposed development does not result in any adverse impact on the operation of the LEP or the DCP, 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 5 - Miscellaneous Provisions

5.10 - Heritage Conservation

(1) Objectives

The objectives of this clause are as follows:

(a) to conserve the environmental heritage of Orange,

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

(c) to conserve archaeological sites,

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

(4) Effect of Proposed Development on Heritage Significance

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

The proposal does not seek to alter the environmental heritage of Orange. The subject property being within the general heritage conservation area but is not a heritage item. The proposed change of use and subdivision have no effect on the existing built form of the site. There are no changes to the Dalton Street dwellings street presentation, therefore having no effect on the existing streetscape and its heritage significance.

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

7.2a – Floodplain Risk Management

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

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

(a) to enable evacuation of land subject to flooding in events exceeding the flood planning level,

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

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

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

(r) residential accommodation

The development is considered to not, in flood events exceed the flood planning level, affect the safe occupation of, and evacuation from, the changed land use of a dual occupancy. The proposed development is unlikely to change flooding regimes on or off the site and would be unlikely to cause or contribute to erosion, siltation or reduce riparian vegetation, and is therefore unlikely to create a cost burden on the community or neighbours.

7.3 - Stormwater Management

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

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

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

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

The proposal has been designed to include permeable surfaces and includes onsite retention of stormwater through the use of rainwater tanks. It is therefore considered that the post development runoff levels will not exceed the pre-development levels.

7.6 - Groundwater Vulnerability

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

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

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

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

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

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

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

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

Clause 7.11 - Essential Services

Clause 7.11 applies and states:

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

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) storm water drainage or onsite conservation,

(e) suitable road access.

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

STATE ENVIRONMENTAL PLANNING POLICIES

State Environmental Planning Policy 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.

The subject land is well established as a residential property with lawn areas, shrubs and garden beds. The current and previous land use history of the site is not known to have been used for any of the potentially contaminating activities listed in Table 1 of Managing Land Contamination Planning Guidelines SEPP 55 –Remediation of Land.

The site is therefore unlikely to be contaminated. In this regard, the subject land is considered to be suitable in its current form and no further investigations regarding potential contamination are required.

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 28) – Heritage Amendment

Draft Orange LEP 2011 (Amendment 28) involves new heritage conservation areas; expansion to existing heritage conservation areas; and new heritage items. The Draft Plan has no effect for the proposed development.

Draft Orange Local Environmental Plan 2011 (Amendment 29) – Park and Rifle Range Roads, Shiralee

Draft Orange LEP 2011 (Amendment 29) relates to the rezoning and amendment of minimum lot size for various sites at Park and Rifle Range Roads, Shiralee. The Draft Plan has no affect for the proposed development.

Draft Remediation of Land State Environmental Planning Policy

Draft Remediation of Land SEPP has been publicly exhibited. The Draft SEPP will repeal and replace SEPP 55 Remediation of Land. Of particular note, the Draft SEPP requires consideration of the contamination status of nearby and neighbouring properties, and its impact on the proposed use. Residential land adjoining the site is not identified or considered to be contaminated.

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

Orange DCP 2004-07 - Development in Residential Areas is relevant to this proposal. The provisions of Part 7 are considered below.

7.2-1 - Urban 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.

The proposed lots will comprise areas of 425.32m² and 239m² respectively. The size and shape of the proposed lots will retain reasonable residential amenity in terms of privacy and solar access. An assessment of the existing dwellings on each proposed lot has been carried out below under the heading “Part 7 - Design Elements for Residential Development”.

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

The proposed lots will each have direct street frontage and legal and practical access to Dalton Street and the unnamed lane respectively (subject to addressing conditions of consent). Separate access will be provided to the proposed lots via vehicle crossings and driveways. Council’s Technical Services Division have advised of no objections to the proposed access arrangements, although have outlined the need to upgrade the unnamed lane as per conditions of consent.

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

The subdivision design and construction will be required to comply with the Orange Development and Subdivision Code. Attached is a condition of consent addressing this issue.

PART 7 - DESIGN ELEMENTS FOR RESIDENTIAL DEVELOPMENT

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

Residential Design Objectives

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

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

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

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

· To encourage visually appealing cohesive streetscapes.

· To create a safe and secure environment.

· To provide consistent design elements that protect private investment.

The development is not antipathetic to the relevant objectives of this section of the DCP as detailed below.

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.

The proposed development is considered to meet the objectives related to neighbourhood character. The development has been designed to provide a reasonable amount of open space and privacy between the dwellings within the site and in relation to the adjoining residential development. The interface between the adjoining residential development and the subject land is assisted through fencing and landscape treatments.

Whilst the proposal now also includes subdivision, the built form onsite is not altered. It should be noted however that a car port structure will be required to ensure that each site has at least one undercover parking space. The provision of a car port structure accessed via the rear lane will not have an adverse impact on streetscape given the positioning of other buildings along this lane. The proposal does not diminish the solar access or visual privacy of the existing dwelling or adjoining residential development. The presentation of the existing detached dwelling to Dalton Street is retained and therefore the proposed development would have minimal effect on the streetscape of Dalton Street.

The proposal will not diminish the function of Dalton Street for pedestrian access and use. The increase in traffic movements because of the creation of one additional lot/dwelling is expected to be modest in the context of the broader traffic environment and will not detrimentally increase traffic movements beyond the current residential levels. Council have previously authorised a secondary dwelling in the rear yard. There is no proposal to alter the size of the dwelling at the rear of the property.

Building Appearance

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

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

· The frontages of buildings and their entries face the street.

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

The proposal would not alter the existing typography or character of the area. No built form changes are proposed which would impede on surrounding and existing dwellings. To the external observer there would be no change to the nature of the use of the site. The existing dwelling and its entrance will still address Dalton Street. Its siting and frontage remain consistent with adjoining dwellings.

The car parking of the existing secondary dwelling will not satisfy the DCP in respect of design and siting. The proposed parking space for the existing secondary dwelling is provided via an existing concrete pad. A condition of consent has been added requiring the construction of a carport to allow for a covered parking space for the use of the dwelling. Although front of the building line, a future car port is unlikely to dominate the laneway given the positioning of adjoining outbuildings in this location. All other aspects of the DCP will be met.

The proposed development would have minimal effect on the streetscape due to the following:

- Retention of the existing dwelling maintains the existing pattern of single detached dwellings that characterise this area of Dalton Street.

- Due to separate access, the existing secondary dwelling at the rear of the site would not be detected in views along Dalton Street.

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 existing setbacks remain for both dwellings. There are no objections to the existing setbacks. Consideration of a future car port will be the subject of a separate assessment.

Bulk and Scale Objectives

· To allow flexibility in siting buildings and to ensure that the bulk and scale of new development reasonably protects the amenity of neighbouring properties and maintains appropriate neighbourhood character.

· To allow adequate daylight, sunlight and ventilation to living areas and private open spaces of new and neighbouring developments.

· To encourage the sharing of views, while considering the reasonable development of the site.

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

Visual Bulk

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

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

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

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

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

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

- building to the boundary where appropriate.

In consideration of the DCP Guidelines, with the proposal not altering any built form onsite, the dwellings remain acceptable in terms of visual bulk. There is no proposal to alter the existing dwellings. The rear dwelling will remain single storey, consistent with the development form of residential development in the locality.

There are no changes to the existing and compliant site coverage of the allotment.

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 existing boundary fencing and landscaping will continue to preserve the privacy of neighbouring dwellings and private open space.

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.

The siting of the existing dwellings and with no changes to the built form on the land, the daylight and sunlight afforded to both the existing lot and neighbouring allotments does not change. In consideration of the DCP Guidelines, the proposal is considered to be satisfactory.

Views

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

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

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

The subject site is not within an important view corridor. The existing dwellings do not unreasonably diminish views for other properties in the vicinity.

Privacy and Security Objective

· To ensure that the siting and design of buildings provide privacy for residents and neighbours in their dwellings and principal private open space.

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

Visual Privacy

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

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

- building siting and layout

- location of windows and balconies

and secondly by:

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

The exiting dwellings are single storey and do not overlook principal living areas of adjacent properties. Landscaping and fences will continue to separate each allotment.

Acoustic Privacy

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

· Site layout and building design:

- protect habitable rooms from excessively high levels of external noise

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

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

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

Security

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

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

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

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

- The design of the dwellings will offer reasonable opportunities for surveillance of public roads, driveway, front yards and private open space areas.

- The site has reasonable access control due to perimeter and internal fencing.

- The landscape design will not restrict sight lines.

Site Access and Circulation Objectives

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

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

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

Circulation and Design

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

· Accessways and parking areas are designed to manage stormwater.

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

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

Dwellings 1 and 2 have direct street frontages to Dalton Street and the unnamed lane at the rear respectively. Separate access will be provided to the proposed lots via vehicle crossings and driveways. The proposed driveways are well separated from the intersection of Lords Place. Reverse egress will be required for both dwellings, consistent with vehicle manoeuvring arrangements for single dwellings throughout the City.

Car Parking

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

· Parking facilities are provided, designed and located to:

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

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

· Car parking is provided with regard to the:

- the number and size of proposed dwellings

- requirements of people with limited mobility or disabilities.

In consideration of the DCP Guidelines, the proposal is considered to be satisfactory. According to the car parking table in the DCP, the development generates a further parking requirement of 1.2 off-street space (based on 1.2 spaces for the two bedroom dwelling (existing secondary dwelling)). The existing principal dwelling has adequate parking provided onsite to meet the requirements (the provision of two spaces, accessible from Dalton Street, with no changes to this arrangement proposed.

The existing secondary dwelling at the rear of the site is a two- bedroom dwelling, and this will require the provision of 1.2 spaces. A concrete parking pad is existing onsite, accessed from the unnamed lane way at the rear. One parking space is considered sufficient for this building. Albeit, given this parking space is provided forward of the building line, the DCP requirements have been met. A condition of consent has been added to construct a carport over this existing concrete pad providing for an undercover parking space. Improved landscaping elements are recommended to soften this hardstand space. There are no further objections to the proposed parking arrangements.

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.

All private open space is provided behind the front building line. The site plan confirms that the private open space for each dwelling will have a minimum dimension of 3m and the yards are able to provide an area of at least 5m x 5m with access to northern sun, consistent with the requirements of the DCP. The internal living area for each dwelling will connect to its respective area of private open space. It is recommended that the rear lot incorporate further landscaping to delineate between their private open space and front yard.

Open Space and Landscaping

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

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

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

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

- allow cost effective management.

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

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

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

Existing vegetation onsite is to be retained. It is recommended that the rear lot incorporate further landscaping to delineate between their private open space and front yard. A landscaping plan will be required to be submitted prior to the issuing of a subdivision certificate.

Water and Soil Management Objectives

· To control and minimise the impact of stormwater run-off and soil erosion on adjoining land and downstream.

· To encourage reduced water wastage by reusing, recycling and harvesting stormwater.

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

Stormwater

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

· Onsite drainage systems are designed to consider:

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

- scope for onsite infiltration of water

- safety and convenience of pedestrians and vehicles

- overland flowpaths.

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

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

DEVELOPMENT CONTRIBUTIONS PLAN

Contributions for a 2 bedroom dwelling were initially levied on the secondary dwelling development. No further Section 7.11 Development Contributions are applicable to this development as they were paid via DA308/2015(1) for the secondary dwelling proposal at the time.

INFILL GUIDELINES

Development in a heritage setting must be assessed against Council’s Infill Guidelines. There is no proposal to alter the built form of the development. The proposal is not contrary to Council’s Infill Guidelines.

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 involves a change of building use for an existing building. Council is satisfied that the fire protection and structural capacity of the building are appropriate for the proposed new building use. Relevant conditions are attached.

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 relevant to this proposal as buildings are existing and compliant.

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

Generally

The proposed development is unlikely to generate any impacts that would adversely affect the quality of the environment of the locality; particularly as such development is considered to be consistent with the zone objectives and would achieve reasonable integration with the existing land use pattern.

Traffic Impacts

The proposal is considered to be satisfactory in terms of traffic impacts due to the following:

- The proposal involves the creation of only 1 additional lot that is required to be serviced by an upgraded road system.

- The provision of adequate off-street parking will assist to maintain traffic amenity.

- The access arrangements for each dwelling are satisfactory; the reverse egress for the existing dwelling is consistent with manoeuvring arrangements for the majority of dwellings in this neighbourhood.

- The existing secondary dwelling already gains access via the laneway.

- Upgrading of the unnamed lane will ensure that the road network will be sufficient to accommodate existing and new development.

Neighbourhood Amenity

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

Cumulative Impacts

The proposal is considered to be satisfactory in terms of cumulative impact. The proposed development does not alter the interface between the development site and neighbouring properties. The development will have a satisfactory level of impact upon adjoining land and is unlikely to adversely affect its future development.

The development will complement the residential density of the broader residential area comprises of single dwellings, and interspersed infill development consisting of dual occupancies and multi dwelling housing. The proposal will maintain the pattern of single storey detached dwellings at the street frontage that characterise this neighbourhood.

Existing and Future Amenity of the Neighbourhood

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

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

Servicing

Council’s Technical Services Division advises that all utility services will be required to be upgraded to service the proposed additional lot. Attached are conditions of consent addressing this issue.

Physical Attributes

The subject site is considered to be suitable for the proposed development. There are no physical attributes within the site that would unreasonably constrain the development. With no changes to the existing built form on the land, the proposal of subdivision is considered suitable.

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

The proposed development is defined as "advertised development" under the provisions of the LEP. The application was advertised for the prescribed period of 14 days and at the end of that period one (1) submission was received. The submitter has raised concerns suggesting that the driveway and garage currently serving 98 Dalton Street have been constructed across the dividing boundary and that it was originally intended (verbal agreement with previous owner) that the access would serve both properties. The submitter has requested that the boundary between the two properties be investigated and clarified in conjunction with this proposal.

A review of Council’s mapping system suggests that the driveway and garage are located wholly within the property at 98 Dalton Street. A further search of records indicates that the property is not affected by any Right of Carriageway easement or the like that would allow access to the adjoining land. Notwithstanding, a condition will be included in the Notice of Determination requiring the submission of a survey of the land showing the distance of existing buildings to boundaries prior to the issuing of a subdivision certificate to ensure compliance. It is considered that the matters raised in regard to shared driveway arrangements will not be affected by this proposal.

PUBLIC INTEREST s4.15(1)(e)

The proposed development is considered to be of minor interest to the wider public due to the relatively localised nature of potential impacts. The proposal is not inconsistent with any relevant policy statements, planning studies, 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, D21/65200 ⇩

2 Plans, D21/43936 ⇩

3 Submission, D21/64644 ⇩

Planning and Development Committee 2 November 2021

2.4 Orange Local Environmental Plan - Amendment 33 - Rosedale Gardens

RECORD NUMBER: 2021/2345

AUTHOR: Craig Mortell, Senior Planner

EXECUTIVE Summary

Council is in receipt of a draft Planning Proposal to rezone land 463 Leeds Parade and 440 Clergate Road, Orange. Referred to as Rosedale Gardens the site encompasses the former abattoir and adjoining farmland and was previously rezoned under Amendment 13. Following a review of the residential market the landowner is now requesting a further change to increase the number of lots by reducing the minimum lot size on the land and simplifying the zoning pattern.

This matter relates to the draft Orange Local Housing Strategy (OLHS) previously reported to Council on 19 October 2021. If adopted the overall lot yield for Rosedale Gardens would increase from 450 lots to 700 lots representing 1 additional year of supply. With such an increase added to the supply the OLHS would remain within the intended 20 year planning horizon.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Council has recently resolved to place the draft OLHS on public exhibition. There is a degree of overlap between this proposal and the draft OLHS, the public may question why this proposal can proceed before the draft OLHS has been resolved. This proposal is not considered to be inconsistent with the draft OLHS and will still need to obtain a gateway determination from the NSW Department of Planning, Industry and Environment (DPIE) before exhibition can occur, however exhibition may still overlap with the exhibition period of the draft OLHS.

DIRECTORS NOTE

This report relates to draft Planning Proposal to rezone land 463 Leeds Parade and 440 Clergate Road, Orange known as Rosedale Gardens. The subject land encompasses the former abattoir and adjoining farmland that was previously rezoned under Amendment 13 to Orange LEP 2011 in 2019 to provide for 450 large lot residential lots. The proposal now before Council seeks to increase the number of lots by reducing the minimum lot size on the land and simplifying the zoning pattern to provide for a residential development capped at a maximum of 700 large lots.

It is considered that the planning proposal as presented has merit and may be progressed to Gateway with the Department, however it should be noted that there remains several significant issues that will require further work by the proponent to resolve as discussed in the body of this report. It is recommended that the Planning Proposal retains the Urban Release Area designation at this stage pending preparation and adoption of a site specific Development Control Plan incorporating the matters in the attached Rosedale Gardens DCP scope of works required document, and a site specific Development Contributions Plan to address infrastructure requirements.

Recommendation

1 That Council advise the proponent of the need for the Planning Proposal to retain the Urban Release Area designation pending preparation and adoption of the following documents that must address the matters raised in this report to the satisfaction of Council:

· A site specific Development Control Plan incorporating the matters in the attached Rosedale Gardens DCP scope of works required document, and

· A site specific Development Contributions Plan or inclusion within a review of the LGA wide contributions plan

2 That staff forward the Planning Proposal to the Department of Planning, Industry and Environment requesting a Gateway Determination, with the recommendation that:

· The Planning Proposal be required to retain the current Urban Release Area designation,

· The steepest portions of the site, being areas with a slope exceeding 20%, be added to Schedule 5 of SEPP (Exempt and Complying Development Codes) to reduce the risk of landslip potential arising from inappropriate development, and

· Council requests any Gateway Determination confirm the preferred mechanism for capping the site at 700 residential lots (excluding any lots created for non-residential purposes, such as open space dedications and the like).

· Should the Gateway seek substantive changes to the proposal that Council be provided the opportunity to further review and consider such changes before proceeding further.

3 That upon receipt of a Gateway Determination staff proceed with any relevant conditions, consultations and exhibitions required before reporting the matter back to Council.

further considerations

SUPPORTING INFORMATION

Background

On 1 March 2016 Council first considered a report for a planning proposal that became Amendment 13, to rezone the former abattoir site in Leeds Parade and associated farmland to the north of the abattoir to allow for a potential residential lifestyle estate of approximately 450 lots, mainly 1 acre (4000m²) with some 2 acre (8000m²) lots. Originally called Clergate Hills by the proponent the project was subsequently renamed ‘Rosedale Gardens’.

After a lengthy process related to the drafting of Blayney Cabonne Orange sub-regional Rural and Industrial strategy (BCO) amendment 13 was ultimately exhibited between 4 October 2019 and 1 November 2019 and endorsed by Council in December 2019, subject to the site becoming an Urban Release Area requiring preparation of a Development Control Plan to address a range of matters.

Land use zones

Amendment 13 changed the site from IN1 General Industrial and RU1 Primary Production to a mix of zones R5 Large Lot Residential, E4 Environmental Living, RE1 Public Recreation and SP2 Electrical Transmission Line. This responded to a conceptual plan for 450 residential lots between 4,000m² and 8,000m² in size. The current proposal seeks to increase the R5 Large Lot Residential zone to encompass the entire site.

Subdivision - Minimum Lot Size

Similarly, amendment 13 established a combination of minimum lot sizes, predominantly W2 (4,000m²) with some X3 (8,000m²) and the current proposal is seeking to establish a uniform 2,000m² across the entire site to allow for greater flexibility in designing the final subdivision layout.

Urban Release Area

Under the LEP a site may be mapped as an Urban Release Area (URA). The effect of URA mapping is to allow the rezoning of a site to proceed but prevent actual development until such time as a range of matters in Part 6 of the LEP are satisfied. Clause 6.1 relates to State public infrastructure, clause 6.2 relates to public utility infrastructure and clause 6.3 relates to the need for a Development Control Plan.

Flexibility in design – Lot Yield Cap

The proposal has nominated a simplification of the zone and lot size maps to allow for increased flexibility in the final design. A single zone of R5 is proposed with a single minimum lot size of 2,000m2 and a local clause to control the overall number of lots to be developed across the estate.

While this has some merit in allowing the design to adapt to market needs and any constraints emerging from further survey work, it does create concern for scope creep that could degrade urban design and ecological outcomes. The proposed clause for controlling the number of lots in the estate has been modelled on a similar clause in the Cessnock LEP and would have wording similar to the following:

7.X Certain land at Leeds Parade, Clergate Road and Pearces Lane, Orange

1) This clause applies to land at 440 Clergate Road and 463 Leeds Parade, Orange being Lots 2 & 3, DP 255983 and Lots 14, 15 and 25 DP 6694, as shown edged heavy black, shaded pink and identified as “Item 6” on the Additional Permitted Uses Map.

2) Development consent must not be granted to any development on the land to which this clause applies if the granting of that consent would result in the total number of residential allotments on that land exceeding 700.

3) This clause does not prescribe a development standard that may be varied under this Plan.

There are some vulnerabilities of this approach. For instance if an early stage of the estate creates lot(s) of 4,000m² or greater and the estate is yet to be completed then buyers of such lots could seek a two lot subdivision on the basis that the estate has not yet reached the cap of 700 lots. This would potentially reduce the number of lots that can be approved in the final stage(s) of the estate.

Presumably early stage larger lots would be created in response to site constraints and/or as a method of protecting significant flora and fauna in the yards of larger lots where building envelopes act to prevent clearing. The push to allow small two lot subdivisions could erode these outcomes. This issue will be need further analysis as a part of the preparation of the DCP.

Development Control Plan

A site specific Development Control Pan required under section 6.3 of the LEP must address the matters below listed (a) to (j):

(a) a staging plan for the timely and efficient release of urban land, making provision for necessary infrastructure and sequencing,

(b) an overall transport movement hierarchy showing the major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists,

(c) an overall landscaping strategy for the protection and enhancement of riparian areas and remnant vegetation, including visually prominent locations, and detailed landscaping requirements for both the public and private domain,

(d) a network of passive and active recreational areas,

(e) stormwater and water quality management controls,

(f) amelioration of natural and environmental hazards, including bush fire, flooding and site contamination and, in relation to natural hazards, the safe occupation of, and the evacuation from, any land so affected,

(g) detailed urban design controls for significant development sites,

(h) measures to encourage higher density living around transport, open space and service nodes,

(i) measures to accommodate and control appropriate neighbourhood commercial and retail uses,

(j) suitably located public facilities and services, including provision for appropriate traffic management facilities and parking.

Attached to this report is a preliminary scope of works required for the preparation of a Rosedale Gardens specific Development Control Plan. This scope has included the matters raised by staff across a range of issues and is structured to align with the matters listed in section 6.3 of the LEP above.

Development Contributions Plan

Council staff are currently reviewing the section 7.11 contributions plans for the entire LGA, which is anticipated to be presented to Council around March / April 2022. Preparation of that plan is aware of this site having existing potential for 450 lots and that the proponent is seeking to increase this to 700 lots.

Given the timing of this planning proposal it is likely that Council will be considering exhibition of the new contributions plan at around the time that it may also be considering a post exhibition report for this planning proposal.

In that event, the development control plan for the site would be expected to include provision for the dedication to Council of such infrastructure and facilities as are wholly required by the development itself and a separate standalone contributions plan if required.

Alternatively, finalisation of this planning proposal could be made conditional upon the adoption of the new LGA-wide contributions plan.

Relationship to Orange Local Housing Strategy (OLHS)

While the site totals 293.45ha the proposal nominates a local clause to cap subdivision of the site at 700 lots. Without such a clause the proposed minimum lot size could in theory result in roughly 1,027 lots (293.45ha – 30% constraints and roads = 205.41ha / 2000m²). In practice some lots on steeper land will always need to be larger and this would reduce the yield below the 1,027 figure.

Given the proposed cap, the draft OLHS has factored in the 700 lots proposed in the land supply calculations.

Water supply and security

The DCP masterplan will need to include provision for trunk water main(s) installation with the western crossing of the railway and the potential requirement for a water storage reservoir at a high point of elevation on or adjacent to the land, subject to further investigation to ensure appropriate water pressure is achieved.

The Planning Proposal mentions stormwater harvesting in section 4.2 stating

Harvesting of water for potable purposes would be developed in conjunction with Orange City Council to augment the Council water supply and offset the additional demand generated by the development of the land

Council’s water and sewerage strategic manager advises that there would not be enough run-off generated to make this a viable secure yield option when stacked against cost. It does not currently form part of OCC’s long-term secure yield strategy and if this were to proceed then it would be at the full cost of the developer.

In view of the above it is considered that the stormwater management approach to the estate should be explored further as part of the DCP masterplan process. While stormwater harvesting may not be economically viable at this time there remains some logic to designing the estate in a manner that could enable such harvesting at a future point should the need arise.

Transgrid Transmission Line

The proponent advises that they have commenced negotiations with Transgrid to place the existing overhead 132kVA transmission line underground and re-oriented along proposed internal roads. A letter from the Central West Power Construction (CWPC) to Premise is attached to this report that confirms the negotiations are underway and that the proponent is aware of the costs and time involved and is willing to proceed and cover the costs involved.

This approach can work, but can also be costly and time-consuming to arrange the necessary Transgrid approvals. At the time of writing this report there is no definitive advice from Transgrid on this matter. While it is likely that they will support the undergrounding for the reasons outlined in the CWPC advice this is not a matter that Council can control. From a planning perspective staff support the undergrounding of the transmission line, again for the reasons outlined in the CWPC letter provided it is at no cost to Council and is the sole responsibility of the developer.

Should the proposal fail to achieve Transgrid approval, for any reason, the conceptual layout would need to be altered and the SP2 Electrical Transmission Zone retained or relocated to any new overhead path. Roads could still be placed across the SP2 zone but would need to be located clear of any towers or other assets. In such a circumstance ongoing maintenance of the SP2 zone would be a matter for the developer to resolve with Transgrid and it is not proposed that Council should acquire the land (and maintenance costs) for a transmission line easement.

Early stages of the estate would be unaffected by this issue and it may lead to the matter being deferred, in that instance the SP2 zone should be retained until such time as Council has advice from Transgrid that alternative arrangements are satisfactory to them have been confirmed.

Given the above it is likely that any gateway determination will require consultation with Transgrid to confirm the status of the transmission line, should this result in the power line remaining overhead or repositioned then the proposed zone for the land would need to be adjusted to include an SP2 corridor over the transmission line prior to public exhibition.

Rail corridor

The proponent has consulted with John Holland Rail (JHR), current manager of the Country Regional Network (CRN) owned by Transport Asset Holding Entity (TAHE), while Transport for NSW (TfNSW) is the rail authority for the CRN. The JHR contract is due to expire with UGL taking over in the new year.

JHR/UGL are responsible for reviewing the development to ensure potential impacts on rail operations (current and future) are considered and addressed. The Proposal for a rural subdivision requires two separate processes such as the DA review and an approval process for upgrading of the level crossings.

Attached is advice from JHR to the proponent in terms of the process without expressing a view on whether or not the level crossing upgrades sought would be achievable or supportable by JHR or TfNSW.

Accordingly it is considered that any Gateway Determination will require consultation with JHR/UGL and TfNSW prior to public exhibition to confirm all requirements in relation to level crossing upgrades. In the event that upgrading and use of the rail level crossings is not attainable the proponent would be expected to submit a revised traffic study as part of the DCP master-planning process.

Ecological Values

The planning proposal states:

A preliminary biodiversity analysis was completed in support of the original planning proposal applying to the land. That assessment was prepared to address the requirements of the (then) Native Vegetation Act 2003. The inception of the NSW Biodiversity Conservation Act, 2016 (BC Act) means that any development application that would result in the clearing of native vegetation must consider whether the Biodiversity Offset Scheme (BOS) applies.

Future subdivision of the land will trigger the BOS due to the presence of native vegetation on the site and the anticipated level of clearing. Any future Development Application to subdivide the land will therefore need to be accompanied by a Biodiversity Development Assessment Report (BDAR), which will assess the potential impact on biodiversity in accordance with the Biodiversity Assessment Method (BAM) established under the BC Act.

An accredited assessor must implement the BAM and prepare a BDAR in accordance with part 6 of the BC Act. A preliminary site visit to the property was completed by Premise ecologists on the 8-9 April 2021. Further vegetation surveys are required to satisfy the requirements of the BAM to adequately identify PCTs (Plant Community Types) and collect quantitative data for input into the BAM Calculator to determine any offset liability.

Database searches have predicted the presence of threatened flora, fauna and ecological communities to occur on the site. 13 threatened flora species, 40 threatened fauna species and 2 threatened ecological communities are possible on the site.

Whilst further fauna and flora surveys need to be completed to finalise the biodiversity strategy for the planned subdivision (ahead of any future DA lodgement), the proposal is considered capable of complying with the provisions of the Biodiversity Conservation Act 2016.

Council’s City Presentation Manager has advised that the proposal should retain all of the native vegetation in the south western portion of Lot 3 DP 255983 located between the existing property access track (from the railway) to the southern boundary as either public lands, estate managed public open space or on individual allotments with building envelopes (encompassing dwellings, detached garages and sheds) identified for each individual property minimising native tree removals. Furthermore, remnant vegetation along the existing water courses should be retained with no earthworks permitted within the Tree Protection Zones.

To achieve the intended living environment proposed it would be more achievable if the subdivision was managed as a private residential estate with private open space areas, managed and maintained as part of the estate. Council’s involvement should be limited to managing the road reserve and roadside street tree planting with all other landscaping and water features managed by the estate.

This outcome would need to be a requirement of any DCP masterplan for the estate. The proponent response to this matter confirms that the intent for the area of vegetation mentioned is that a portion of the native woodland be retained as public land. Further assessment will be made at the DCP masterplan and DA stages, this will allow for final flora and fauna mapping and surveys to be completed and an overall assessment of the biodiversity strategy for the estate.

The proponent asserts that the detailed assessment is unlikely to impact on the road and open space corridor but that an adjustment of lot sizes is a possible outcome. While this approach could work it is considered that there is a high probability that a gateway determination may require additional studies and design responses prior to public exhibition.

Topography and slope analysis

The site ranges from relatively flat areas in the west through to extremely steep areas in the north-eastern corner of the site. The extent of earthworks likely to be required for a residential subdivision relates to the lot sizes involved. Larger lots typically require less land shaping at the subdivision stage to produce lots that have viable building sites. In this regard it is likely that the north-eastern areas of the site will need to be larger in size to account for the steep topography.

Roads should ideally avoid the steepest areas of the site to reduce the risk of landslip. Geotechnical investigations and engineering solutions can enable development on steep lands, but at an increased cost for retaining walls and the like. While largely a matter for DA assessment it should be highlighted in the DCP masterplan as an issue that needs to be addressed.

As part of seeking a gateway determination Council should request the Department of Planning, Industry and Environment to exclude the steepest areas, from SEPP (Exempt and Complying Development Codes) to further mitigate the risk arising from inappropriate development on steeply sloping areas.

Interface with adjoining lands

To the north of the site is Cabonne Shire and lands used predominantly for horticulture and agriculture. This pattern continues to the north eastern boundary where an orchard spans across the LGA boundary. To the west the site is bounded by the railway line and to the south the site meets lands owned by Charles Sturt University. Each of these interfaces need to be carefully designed to

· Minimise disruption to primary production,

· Prevent rail vibrations from damaging buildings, and

· Preserving the operations of a public university.

By maintaining the URA mapping Council can require appropriate interface treatments as part of the Development Control Plan. This can comprise larger lots with increased depth and placement of building envelopes away from the estate edge to allow for greater physical separation. Additionally significant landscaping requirements around the estate edge to limit issues of odour and spray drift from creating conflicts between neighbours.

Traffic and access

Council staff have reviewed the traffic portion of the planning proposal and confirm the numbers and assessment are appropriate and consistent with expectations. The volumes generated do warrant upgrading of the following intersections:

· Leeds Parade and the Northern Distributor Road

· Clergate Road and the Northern Distributor Road,

· Clergate Road and Farrell Road

These upgrades will be included in the Section 7.11 Developer Contributions Plan currently being worked on by staff. However it is likely that the contributions plan may not have the capacity to fully fund all of these works and the proponent may therefore be required to enter into a planning agreement with Council to address these off site aspects.

Should approval to use the level crossing(s) onto Clergate Road be denied by the rail authority it will impact which intersections will require upgrading.

Road design and construction

The Planning Proposal states an intention to use table-drains rather than kerb and guttering. This is not presently supported by staff, especially in terms of roads in steeper areas of the site and will need to be revisited as part of the DCP masterplan exercise.

Conceptual Layout

Although the layout supplied in the Planning Proposal is purely for illustrative purposes staff have identified a number of concerns and issues that would need to be resolved during the DCP masterplan process.

· A loop road in the north east corner of the proposal should remove the section of road adjoining Pearces Lane as it is a duplication and would require removal of significant remnant vegetation.

· The road running along the eastern boundary could be redesigned with a better outcome both in terms of slope and retaining vegetation

· Pedestrian/cyclist bridges over the creek lines and waterways should be considered as a means of reducing travel distances for alternative travel modes; particularly where streets or cul-de-sacs face each other across a section of open space.

· Active transport connections to and from North Orange and beyond. Clergate Road is already a key loop for cyclists and can be hazardous given the industrial uses to the south and current residential traffic. Separate active transport routes need to be considered given the increased traffic movements (as per the TIA).

· Overall block lengths between intersections should be capped at 300m to encourage permeability.

· Irregular shaped blocks should be minimised, or have appropriate building envelopes nominated.

· Visual privacy between lots on steeply sloping land needs to be carefully managed and subdivision design should be amended or supported by a visual impact analysis to demonstrate that lower lying lots will not be overly monitored by higher neighbours – 9m separation is not considered sufficient in highly sloping conditions.

· Additional information and assessment of lot layouts having regard to existing vegetation on the property. To this end the future Master Planning for the precinct is to be accompanied by a detailed landscape assessment showing existing trees, trees proposed to be removed and an overall landscape concept plan for the subdivision layout.

Consistency with Regional Plan

The Central West and Orana Regional Plan 2036 is the NSW Government’s strategy for guiding land use planning decisions for the Central West and Orana Region for the next 20 years. At its heart is a core vision for the region supported by four supporting goals:

o The most diverse regional economy in NSW

o A stronger, healthier environment and diverse heritage

o Quality freight, transport and infrastructure networks

o Dynamic, vibrant and healthy communities.

The proposal is considered to be generally consistent with the objectives and actions of the Plan. More detail is available in Table 1 of section 4.3 of the planning proposal.

Consistency with SEPPs

The Planning Proposal has examined and responded to the following State Environmental Planning Policies

SEPP 55 – Remediation of Lands

A preliminary site investigation was performed as part of the previous rezoning of this site (Amendment 13) which found the site was suitable for residential use. The current proposal relies upon those findings and the increased yield does not affect those conclusions.

SEPP (Infrastructure) 2007

In recognition of the increased density from Amendment 13 the current proposal has been supported by a revised Traffic Impact Assessment (TIA) – refer appendix C of the planning proposal. The revised TIA found:

· The development is expected to generate approximately 5,180 vehicle movements per day, and 546 and 497 vehicle movements (two-way total) in the morning and evening peak hours respectively;

· Site traffic will have a minor impact on the surrounding road network, with modest increases to queue lengths and delays, and the traffic volumes can be accommodated on the road network in a safe and efficient manner;

· The access locations allow traffic to be distributed on the road network and they are not expected to create any operational or safety issues at the nearby railway level crossings;

· Car parking for the individual lots is to be provided in accordance with the DCP, with on-street parking provided for visitors; and

· It is recommended that future consideration be given to providing sustainable transport facilities within the site that link with existing bus routes and shared paths.

On the basis of the above the TIA supported the proposal. Council engineers have reviewed the TIA and found its assumptions and numbers to be well founded. Clearly if the proponent is unable to achieve support from the rail authorities for the level crossing upgrades then a revised TIA would be required to inform the DCP masterplan exercise.

SEPP (Vegetation in Non Rural Areas) 2017

The Planning Proposal acknowledges the role of the SEPP in regulating tree removal on smaller residential lots where the Biodiversity Conservation Act does not apply. The proposal states that a site specific DCP would be prepared to further address vegetation protection and that on this basis consistency with the SEPP can be achieved. Staff support this view.

Ministerial Directions

Under section 9.10 of the Environmental Planning and Assessment Act the Minister can provide directions that must be taken into account, where relevant, during the preparation of any LEP amendment. In this respect the Planning Proposal has identified and responded to the following Ministerial Directions

Direction 2.1 Environmental Protection Zones

The objective of the direction is to protect and conserve environmentally sensitive areas. Where the direction applies, a relevant planning authority must ensure that:

(4) A planning proposal must include provisions that facilitate the protection and conservation of environmentally sensitive areas.

(5) A planning proposal that applies to land within an environment protection zone or land otherwise identified for environment protection purposes in a LEP must not reduce the environmental protection standards that apply to the land (including by modifying development standards that apply to the land). This requirement does not apply to a change to a development standard for minimum lot size for a dwelling in accordance with clause (5) of Direction 1.5 “Rural Lands”.

Part of the land is currently zoned E4 – Environmental Living which was created to provide additional protections for remnant vegetation. The lot size applying to the E4 lands is consistent with the adjoining R5 lands and the Planning Proposal regards the vegetation SEPP as providing the appropriate mechanism to safeguard the vegetation.

In the view of staff the more significant areas of remnant / native vegetation should be either provided in a communal open space managed by the estate under a community title arrangement or alternatively incorporated within the yards of larger lots subject to building envelope restrictions. Accordingly staff agree, subject to the DCP masterplan, that the objective of Direction 2.1 can be satisfied.

Direction 3.1 Residential Zones

The objectives of this direction are:

· to encourage a variety and choice of housing types to provide for existing and future housing needs,

· to make efficient use of existing infrastructure and services and ensure that new housing has appropriate access to infrastructure and services, and

· to minimise the impact of residential development on the environment and resource lands.

Direction 3.1 is applicable where:

(a) an existing or proposed residential zone (including the alteration of any existing residential zone boundary),

(b) any other zone in which significant residential development is permitted or proposed to be permitted.

The Planning Proposal seeks to expand the area of the R5 zone (at the expense of the E4 and SP2 zones) and will be adequately serviced. Potential impacts of the residential development on the environment and resource lands are considered to be minor given the current residential status of the site and does not reduce the permissible density of the land.

Direction 3.4 Integrating Land Use and Public Transport

The objectives of this direction are to:

· ensure that urban structures, building forms, land use locations, development designs, subdivision and street layouts achieve the following planning objectives:

o improving access to housing, jobs and services by walking, cycling and public transport, and increasing the choice of available transport and reducing dependence on cars, and

o reducing travel demand including the number of trips generated by development and the distances travelled, especially by car, and

o supporting the efficient and viable operation of public transport services, and (e) providing for the efficient movement of freight.

The indicative concept plan demonstrates that there is potential to provide interconnected pedestrian and cycle networks that have the capacity to be linked to the existing networks accessing the Charles Sturt University Campus and future networks throughout the North Orange residential areas. Road connections are designed to support public transport (if required). This would meet the objectives of current transport guidelines and planning policies, and therefore the proposal is not inconsistent with the direction.

Direction 4.4 Planning for Bushfire Protection

This direction applies when a relevant planning authority prepares a planning proposal that will affect, or is in proximity to land mapped as bushfire prone land.

The Site contains a small portion of land identified as being bushfire prone. This portion of the site was understood to have been mapped as bushfire prone due to the existence of a stand of pine trees in the mapped area. These pine trees were cleared by the property owner several years ago however the bushfire prone land map has not been updated. Given the threat vegetation has been removed, and the very minor extent of mapped bushfire prone land, it is not considered likely that the proposal will result in any adverse impact on future residential development of the land,

Direction 5.10 Implementation of Regional Plans

Direction 5.10 seeks to give legal effect to the vision, land use strategy, goals, directions and actions contained in Regional Plans.

The direction applies to land to which a Regional Plan has been released by the Minister of Planning. The Central West and Orana Regional Plan has been approved and applies to the Orange LGA.

The Vision of the Regional Plan is:

A unique part of Western NSW with a diverse economy, supported by the right infrastructure, an exceptional natural environment and resilient communities.

The Vision of the Regional Plan is delivered by four key goals and 29 specific directions. Relevant to this planning proposal are a number of goals and directions, outlined and discussed in Table 1 of the draft planning proposal.

Direction 6.1 Approval and Referral Requirements

Ministerial Direction 6.1 – Approval and Referral Requirements applies to all planning proposals forwarded for Gateway Determination by a local authority.

To be compliant with Direction 6.1, a planning proposal must be consistent with the following provisions;

“A planning proposal must:

(a) Minimise the inclusion of provisions that require the concurrence, consultation or referral of development applications to a Minister or public authority, and

(b) Not contain provisions requiring concurrence, consultation or referral of a Minister or public authority unless the relevant planning authority has obtained the approval of:

(i) The appropriate Minister or public authority, and

(ii) The Director-General of the Department of Planning (or an officer of the Department nominated by the Director-General), prior to undertaking community consultation in satisfaction of section 57 of the Act, and

(i) Can satisfy the Director-General of the Department of Planning (or an officer of the Department nominated by the Director-General) that the class of development is likely to have a significant impact on the environment, and

(ii) Has obtained the approval of the Director-General of the Department of Planning (or an officer of the Department nominated by the Director-General) prior to undertaking community consultation in satisfaction of section 57 of the Act”.

The proposed planning proposal does not generate the need for any explicit concurrence, consultation or referral to the Minister or public authority and is therefore consistent with Direction 6.1.

Direction 6.3 Site Specific Provisions

Ministerial Direction 6.3 – Site Specific Provisions applies to all planning proposals forwarded for Gateway Determination by a local authority.

To be compliant with Direction 6.3, a planning proposal must be consistent with the following provisions:

(a) A planning proposal that would amend another environmental planning instrument in order to allow a particular development proposal to be carried out must either:

o Allow that land use to be carried out in the zone the land is situated on, or

o Rezone the site to an existing zone already applying in the environmental planning instrument that allows that land use without imposing any development standards or requirements in addition to those already contained in that zone, or

o Allow that land use on the relevant land without imposing any development standards or requirements in addition to those already contained in the principal environmental planning instrument being amended.

(b) A planning proposal must not contain or refer to drawings that show details of the development proposal.

The planning proposal is consistent with the above.

Conclusion

While the planning proposal as presented is considered to have merit and may be progressed, several significant issues will require further work by the proponent to resolve. If submitted to the Department of Planning, Industry and Environment for a gateway determination there is a distinct possibility that any determination will require additional studies and resubmission to the department prior to being allowed to progress to public exhibition. Notwithstanding this the site is already zoned for up to 450 residential lots and the increase in density to 700 lots is unlikely to raise entirely new or unresolvable issues. The proponent is aware of the need to obtain the support of the rail authority and transgrid in order to progress and that Council is not able to override any objections those authorities may have. Accordingly, Council may support the proposal at this time on the understanding that the Gateway process may confirm additional works and potential changes to project. Should such changes be substantial the matter may need to be reviewed further and reported back to Council.

Attachments

1 Draft Planning Proposal - Rosedale Gardens - 250 additional lots, D21/68753 ⇩

2 Rosedale Gardens DCP - scope of work required, D21/67523 ⇩

3 email between John Holland Rail and proponent - advice on rail crossing upgrades, D21/68757 ⇩

4 Central West Power Construction - Advice on undergrounding the transmission line, D21/67457 ⇩

Planning and Development Committee 2 November 2021

2.6 Development Application DA 408/2021(1) - 149-153 Summer Street

RECORD NUMBER: 2021/2368

AUTHOR: Sophie Currenti, Student Planner

EXECUTIVE Summary

Application lodged	16 September 2021
Applicant/s	Mr J Shiner
Owner/s	Belippi Pty Limited
Land description	Lot 10 DP 12353, Lot C DP 89704, Lot 1 DP 996128, Lot 781 DP 11804048 - 149-153 Summer Street, 215-223 Anson Street and 40 Sale Street, Orange
Proposed land use	Artisan Food and Drink Industry (brewery and taproom; change of use, minor demolition, construction and fitout works); Business Identification Signage (wall sign) and alterations to the public car park.
Value of proposed development	$580,192

Council's consent is sought for an artisan food and drink industry (brewery and taproom; change of use, minor demolition, construction and fit out works), business identification signage (wall sign) and alterations to the public carpark. The proposed artisan food and drink industry is to be operated by Badlands Brewery, currently operational at their premises on Mitchell Highway.

The subject tenancy was previously used for the purposes of a workshop in association with the motor dealership and has been vacant for a number of years. The building on the land is a large industrial style building, primarily constructed with masonry walls, save for a small narrow section of the building in the southeast corner that is constructed from corrugated iron sheets, and built to the boundary.

The subject lands industrial roots and unique location in the CBD lends itself well to an artisan food and drink industry use, also aligning well with the Orange Future City project. The proposed use is transforming a dilapidated, vacant premises into a unique, contemporary use, stimulating the CBD.

The brewery will be relatively small in scale, producing approximately 370lt per day on average. With appropriate hours of operation for both the brewery and taproom, the likely impacts associated with the development have been assessed and are considered acceptable.

Servicing (loading/unloading) arrangements for the brewery will occur via the proposed loading zone within the Sale Street carpark. The proposal seeks approval for an alteration to the internal configuration of the Council car park to facilitate a loading bay, pedestrian access and bicycle parking area. Access to the rear of the brewery will be provided by the driveway on the adjoining land to the north of the site. The subject land benefits from a right of way over the adjoining land. The loading zone would be available for use by all nearby commercial businesses. The area of the carpark where the loading zone is proposed, despite having some lined marked car parking spaces, is not formally recognised as parking spaces within the approved design of the carpark layout at this time.

Notable planning matters for this application include car parking requirements associated with the new use; changes to the layout of the Council car park; amenity impacts by reason of noise and odour emissions; and the contribution that the development makes to the emerging food and drink industries within the City.

Figure 1 - locality plan

DECISION FRAMEWORK

DIRECTOR’S COMMENT

Council's consent is sought for an artisan food and drink industry (brewery and taproom; change of use, minor demolition, construction and fit out works), and business identification signage (wall sign). The development will positively contribute and strengthen the City’s reputation as a regional tourist destination. The subject building has been vacant for a number of years.

It is considered that the identified impacts associated with the development can be suitably managed and have been addressed through recommended conditions of consent. The proposed changes to the Council car park to facilitate a loading bay, secondary access to the building, bicycle parking area is supported. The use of the undeveloped portion of the Council Carpark for access and also to provide a delivery area (that can be used by others) is not dissimilar to that in other Council carparks, including Woolworths and McNamarra Street. The implementation of these changes to the car park layout will benefit other business, who may also use the area and also will rejuvenate a large vacant industrial style building in the CBD.

It is recommended that Council supports the application subject to the adoption of the recommended Notice of Determination.

Link To Delivery/OPerational Plan

Financial Implications

Nil

Policy and Governance Implications

Nil

Recommendation

That Council consents to development application DA 408/2021(1) for Artisan Food and Drink Industry (brewery and taproom; change of use, minor demolition, construction and fitout works); Business Identification Signage (wall sign) at Lot 10 DP 12353, Lot C DP 89704, Lot 1 DP 996128, Lot 781 DP 11804048 149-153 Summer Street, 215-223 Anson Street and 40 Sale Street, Orange pursuant to the conditions of consent in the attached Notice of Approval.

further considerations

SUPPORTING INFORMATION

THE SITE

The site is a unique parcel of commercial land. It is effectively land locked with access dependent on historic rights of way. The land joins a laneway in the southeast corner that runs between the subject land and the adjoining property to the east and connect with the northern side of Summer Street. The laneway is part of the Orange Uniting Church land which is also the carpark that abuts the subject tenancy to the east. The Orange Ex-Services’ Club is located to the north with the egress road of the multi-storey carpark running along the northern boundary. This egress road is burdened by a 6m wide right of way which is in favour of the subject land of this application (also favours Council’s Sale Street carpark of which is to the west of the site). To the south of the subject tenancy, there is the adjoining tenancy located on Lot 10 and beyond that tenancy, there are two storey commercial shops facing Summer Street.

THE PROPOSAL

The proposal involves a change of use of the building (see plans attached) at Lot 10 DP 12353, Lot C DP 89704, Lot 1 DP 996128 and Lot 781 DP 11804048 known as 149-153 Summer Street, 215-223 Anson Street and 40 Sale Street, Orange to facilitate an artisan food and drink industry (brewery and taproom; minor demolition, construction and fit out works), and business identification signage (wall sign) and changes to the public car park. The proposal has been outlined under each component below.

1. Demolition

It is proposed to demolish the existing toilet (south-west corner) and the lean-to in the south-eastern corner of the site that connects with the laneway to Summer Street. It is also proposed to remove a portion of roof sheeting and replace it with polycarbonate sheeting for natural light over the taproom. The extent of demolition is shown in the provided demolition plan.

2. Construction/Fit Out

The construction/ fit-out works will involve:

· new wet floor in brewhouse and associated drainage

· construction of mezzanine level

· construction of central cool room

· new BCA compliant recessed PA door, northern elevation

· assembly of brewhouse equipment (relocated from existing Badlands Brewery on the Mitchell Highway)

· new western access with accessible ramp and amenities

· bar and retail/tasting area within the taproom

· construction of masonry blade wall along the eastern boundary for fire separation

· fire-rated infill to portion off south facing gable end

· new polycarbonate roof sheeting over a portion of the taproom

· new light-weight steel structure at southern entrance

· resurfacing laneway from Summer Street

· adjustment to the Sale Street carpark to provide new public loading zone and bicycle parking

· installation of steam vent; and

· painted wall signage (western elevation).

Figure 2 – ground floor plan and mezzanine floor plan

3. Artisan Food and Drink Industry

The artisan food and drink industry will comprise a brewery with:

· dry floor area with pallet racking for storage and handling of raw materials, packaging, waste storage and oxygen and carbon dioxide storage

· brewhouse/wet floor area comprising the brewing equipment

· central cool room.

Above the brewery will be a mezzanine level with storage area accessible by forklift from the dry floor below, grain store, office and staff room. The mezzanine will be accessible by stairs located in the southwest corner of the wet floor.

A central bar will divide the brewery space from the public/retail and tasting area (the taproom). In addition to the bar area, the retail sales and tasting area will include tables, retail beer fridges and amenities.

The southern entrance will comprise an open roofed structure with tables. The entrance to the retail area will be provided via the laneway from Summer Street and a new entrance in the western elevation will be provided via the Sale Street carpark. There is a change in level between the carpark and internal floor area of the retail space which will be addressed via the installation of an accessible ramp.

LOADING/UNLOADING

The proposal seeks approval for alterations to the layout of the Council car park to facilitate a loading bay, bicycle parking area and a secondary pedestrian access. The loading zone would be available for use by all nearby commercial businesses.

The loading/unloading for the brewery will occur from the proposed loading zone and into the rear (northern elevation) of the brewery through the existing large roller door via the Orange Ex-Services' Club land which the subject tenancy benefits from a right of way over. A management plan for the use of the loading bay has been submitted in support of the application.

STAFFING

Badlands Brewery existing operations employ 4 full time equivalent (FTE) staff. It is expected that the same number of staff will be required for this development. The taproom will employ 3 to 6 (FTE) additional/new staff.

HOURS OF OPERATION

The typical hours of operation are to be as follows:

Brewery

Badlands Brewery currently operate Monday to Friday 6am-6pm. Initially, these arrangements will continue for this development. However, in the long term, there is the potential for an increase in production to Monday to Saturday 6am-9pm. The applicant has requested that any condition imposed on hours of operation are to be Monday to Saturday 6am-9pm. With the justification that this would allow for occasional production increases to meet demand/larger orders in the immediate term, as well as the flexibility to increase production levels over time.

Retail/Bar

Bar/Tastings (taproom)

The typical hours of operation for the taproom will be:

- Wednesday to Saturday (inclusive) - 10am–midnight.

- Sundays - 10am–10pm.

- Public holidays (that fall on Monday, Tuesday or Wednesday) - 10am–midnight.

- Occasional private functions/events (Monday-Wednesday - 10am–midnight.

FOOD TRUCKS

Separate approval will be sought for a local food truck to be parked in the adjoining Uniting Church carpark under a separate arrangement with the church on Fridays and Saturdays. Formal details of this arrangement are still being negotiated. The arrangement within the design allows for a food truck to park directly in line with the east facing gate under the southern entrance pergola. It is envisaged that customers will simply go up to the food truck, order, pay and collect their food to consume at a table within the taproom (at all times staying within the brewery site - standing in the outside section).

Figure 3 – render of proposed southern entrance (looking from the end of laneway)

4. Business Identification Signage

A traditional-style painted wall sign displaying the Badlands Brewery logo and description of the business carried on “BREWERY & TAPROOM” is proposed to be applied to the western elevation of the tenancy.

Figure 4 – proposed business identification signage (western elevation)

MATTERS FOR CONSIDERATION

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

There are four triggers known to insert a development into the Biodiversity Offset Scheme (ie the need for a BDAR to be submitted with a DA):

· Trigger 1: development occurs in land mapped on the Biodiversity Values Map (OEH) (clause 7.1 of BC Regulation 2017);

· Trigger 2: development involves clearing/disturbance of native vegetation above a certain area threshold (clauses 7.1 and 7.2 of BC Regulation 2017); or

· Trigger 3: development is otherwise likely to significantly affect threatened species (clauses 7.2 and 7.3 of BC Act 2016).

SUMMARY

Section 4.15

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

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

Orange Local Environmental Plan 2011

Part 1 - Preliminary

Clause 1.2 - Aims of Plan

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

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

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

It is considered that the proposal will complement and enhance the unique character of Orange and offer further choice for residents and visitors to the City and reinforce Orange as an important regional tourist destination. The application is considered to be consistent with the applicable aims of the LEP.

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 B3 Commercial Core
Lot Size Map:	No Minimum Lot Size
Heritage Map:	Within heritage conservation area (and laneway forms part of land that is identified as heritage item)
Height of Buildings Map:	Building height limit 12m
Floor Space Ratio Map:	Floor space limit 1.5:1
Terrestrial Biodiversity Map:	No biodiversity sensitivity on the site
Groundwater Vulnerability Map:	Groundwater vulnerable
Drinking Water Catchment Map:	Not within the drinking water catchment
Watercourse Map:	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:	Within a flood planning area - PMF