What is Happening with DLEP 2002?
by Lyndal Sullivan, BMCS Land Use Officer
November, 2003

The Draft Local Environment Plan which is to replace the existing LEP 4 was put on public exhibition from mid October to December 2002.

Council officers have reviewed the 1404 submissions received and reported back to Councillors who have been considering officer recommendations on each of the issues raised in a submission. Council has voted an all of these matters and made changes to the plan - 81 changes have been made to clauses in the written document and 78 changes to zoning or other site specific details. Most of the LEP has now been agreed to by Council, with some matters deferred for further consideration and some matters to be put back on public exhibition.

Council has voted to send the DLEP off to the Minister for gazettal with a view to amending it after the review of the deferred issues. This means that there will be no public exhibition of changes which have already been made by Council. Most of the LEP has been approved by council and there will be no public hearing. The remaining matters will be reviewed progressively and should not delay the progress of the Plan. The list of all the amendments that council has decided on is in the BMCC business paper for the meeting of Tuesday October 7, 2003. It also has the list of items which will be re-exhibited. (Margaret, can there be a link to this or list extracted and included??)

10 steps forward...
This draft is a huge improvement on the existing LEP 4. There are now many areas with creeklines and sensitive vegetation which are clearly zoned as Environmental Protection. In other zones, there will be a wide range of environmental factors which will now have to be assessed prior to approvals being granted. The planning staff have obviously put their hearts and minds into this very progressive LEP. They have also been very generous and professional in ensuring the community truly understood the draft.

The changes to the draft approved by Councillors over the last few months have been both positive and negative.

Five Steps Back...
Unfortunately the changes have brought more flexibility into the DLEP. (see the list of dot points below for some examples of how the changes have reduced the certainty of environmental protections) This runs counter to the support from The Commission of Inquiry for a prescriptive planning instrument.

"the Commission does not support Council's reliance on the development application assessment process to prevent inappropriate development" (p27)

"The Commission agrees with the principle of establishing a minimum prescriptive requirement on subdivision. This provision gives greater certainty of outcomes than an entirely merits based approach"
(p155)

Whilst clear standards may thwart an occasional good design, absolutes are needed to prevent the far more numerous cases of developments which degrade the environment. Merit assessments are those which rely on the discretion of a council officer to assess. These almost always benefit the developer and always deny the community any right to appeal to the court. This puts more pressure on council to approve developments (to avoid court costs) as, unless the correct process has not been followed, only the developer can appeal a decision of council. It also creates more work for the community because we cannot rest confidently knowing there are good standards which only need to be applied.

Changes
The exhibited DLEP had some prescriptions but relied heavily on merit assessments to take account of most environmental impacts. Unfortunately more changes have been made to increase the flexibility of the plan.The main changes of concern are:

Subdivision
'No subdivision' notation has been removed from the zoning maps (except for a handful of sites). The areas no longer protected by this indisputable limit on development are;

Blackheath - between Ridgewell and hat Hill Roads
West Katoomba - above Bonnie Doon on the highway side
Nth Katoomba - Thorpe St on creekline
Between Valley Rd Hazelbrook and Park St Woodford

Limits to Area of Development
Limits to the area of a site covered by development has been compromised by allowing swimming pools to be counted as "pervious surfaces"! Each zone has a provision of what amount of the lot should be retained as impervious surfaces.

Zone Boundaries
The zone boundaries for Environmental Protection have become more rubbery. DLEP 2002 previously proposed that a 5m variation be allowed, now that has been extended to10m. This means that development could occur up to10m inside an EP zone "in very exceptional circumstances" - but who decides? The community has no right to appeal such a decision.

Ancillary Buildings
Sheds, playground equipment and car parking spaces are to be permitted in Environmental Protection Zones! These developments defined as "ancillary to a dwelling house" are difficult to prevent in an EP zone for legal reasons. However they can be controlled through a Development Control Plan (DCP 33) which defines 'exempt and complying developments' . This is to be reviewed very soon - we will need to ensure that these small structures are not permitted to occur in EP zones except for extraordinary reasons.

Weed Management
Weed Management changes remove the responsibility from Council to refuse developments proposing to introduce environmental weeds and not to treat their noxious weeds. The change gives Council the powers to act only if it feels like it.

Excavation
More excavation is to be allowed with the proposed 1m limit to cut and fill lifted, if it is retained within the walls of the building.

Driveways
Access driveways are now to be permitted on slopes greater than 33% if 'no other alternative is available'.

3 steps forward...
Consideration of Cumulative Impact is to be included in the Planning Principles. Environmental Impact Assessment will now need to consider alternative less environmentally damaging designs and locations. (precise wording of changes to cl 11(2)(c) (ii) not seen)

Environmental Impact Assessment will now need to consider alternative less environmentally damaging designs and locations.

The energy efficiency rating to be achieved has been lifted from 3.5 star to a 4 star NatHERS rating.

Disappointments
We were disappointed that a number of specific suggestions we made which we believed would strengthen the LEP were not accepted. Some of these suggestions were also made by government authorities. One example of a loophole which needed to be addressed was how to limit the area of disturbance on a development site.

Zoning Changes
78 zoning changes have been made.

It appears that our gains in protection are mostly limited to public areas, improving the zoning from Recreation (Rec) to Environmental Protection (EP).

EP zoning has been removed from all or part of, a number of lots across the city. One of the most alarming of these changes was because a watercourse had been redirected off the private land ! This watercourse was once on 78 North St Katoomba.

Another disturbing change that will not go on public exhibition is the removal of EP zoning from properties in 39,40 and 49 Ninth Ave Katoomba. These are 'inholdings' in a large EP area on the eastern side of Minne Ha Ha Falls. Whilst 'existing use rights' would have protected the interests of current residents, the granting of additional development rights is not consistent with the planning for the protection of this whole area.

The zoning changes passed by council for the area from Mt Victoria - Linden have been assessed so far. This section will be progressively updated as our assessment is completed for the areas east of Linden.

The important changes from our perspective are listed under the headings below. Only those marked * have been identified for re-exhibition.

Zoning Abbreviations:
EP = Environmental Protection Zones
includes Environmental Protection - Open Space for public land and Environmental Protection - General for private land
Rec = Recreation Zones
includes Recreation - Open Space zone for public land and Recreation - Private zone for private land
LBC = Living Bushland Conservation zone

EP zoning removed from (all or part of ) the following lots:


32 Days Cres, Blackheath
99-71 Seventh Av, Katoomba
32 Woodlands Rd, Katoomba
45-47 Wilson St, Katoomba
37 Neale St, Katoomba
78 North St, Katoomba (because of watercourse redirected to flow thru channel)
39,40,49 Ninth Av, Katoomba - 'inholdings' in large EP area changed to Liv BC proposed by the planners, the Commissioner & community to be EP.
2-8 Sublime Point Rd, Leura (EP replaced by LBC zone with Slope Constraint Area)
18-22 Lindeman Rd, Leura (EP replaced by LBC zone with Slope Constraint Area)
North Lawson Park (lot126 DP 46533) *- by change of zoning to Rec-OS
62 Martin Place, Linden- EP zone reduced and replaced with LivBC
EP zoning gained on:
Old brickworks Katoomba (376-380 GWH) - part
Bureau Park Katoomba - one section from Rec to EP
Frank Walford Park - one section from Rec to EP
Section of Katoomba Creek - between Harold Hodgson Park & North St Katoomba
7 Peckmans Rd, Katoomba *
south part Carlton Street, Katoomba
watercourse in Katoomba cemetery (2-16 Cemetery Rd)
Gordon Falls Reserve Leura - one section from Rec -OS to EP-OS,
  another from LBC to EP-OS
part Werong Ave Wentworth Falls - road to be closed and zoned EP-OS
part Waratah St Lawson *- part road closed and zoned EP-OS
57 & 61 Terrace Falls Rd Hazelbrook - crown land changed from Liv BC to EP-OS
Road closures partly or fully reversed to allow access to the rear of properties:
32 Woodlands Rd Katoomba
45-47 Wilson Katoomba (Coomasssie St)
Zoning Changes on Council owned land throughout the mountains
24 lots were identified for review by the Assets section of Council. The changes adopted by council were for:
219 GWH Warrimoo from Rec - OS to LivBC
16 Birdwood Av Winmalee from Rec - OS to LivBC
34-48 Gates Av Katoomba from EP - OS to LivBC (edge Katoomba Falls reserve)
Consideration on land at 53-55 Mort St Katoomba was deferred because of interest from one resident in purchasing these lots (it has a watercourse and swamp)
Re-exhibition
A re-exhibition of a limited number of issues is expected in the next few months. The new Bushfire Provisions will be one matter which warrants examination from a conservation perspective. These were changed as a result of changes to NSW legislation and regulations.

Zoning changes for re-exhibition are primarily limited to where it is proposed to change zoning on private land where there may be a limiting of development rights for the owner. Whilst this may be a legal requirement, we believe that case law has asserted that community interest should also be the basis for re-exhibition. In any case, a council that prides itself on 'working in partnership with the community' should have re-exhibited land parcels where it proposes to remove the EP zone (ref to abbreviations under section called 'zoning changes above).

Some of the properties that members may have concerns about are:
The loss of protections for one section of North Lawson Park by change of zoning from EP-OS to Rec- OS (lot126 DP 46533)
Rezoning of land adjacent to Bushland Reserve along Lawson Creek, from Living Bushland Conservation to Living - General for 9-15 Waratah St Lawson. There are fewer controls in the Living General zone to protect the nearby swamp and creekline.
Environmental Protection Zoning on 7 Peckman's Rd Katoomba.
The following proposed changes will improve the environmental protection and will need submissions from environmentalists to ensure these changes are not reversed:
The increased environmental protections on the St Columbas site, Winmalee
A new EP zone on the rear of 19-20 Sir Henrys Parade, Faulconbridge

Watch the Council page in the Gazette to for notice of the re-exhibition of parts of the DLEP. If you want assistance in understanding what the changes mean in your locality, or if you would like to volunteer to assist in any way contact Lyndal on 4782 1635.