What is Happening with DLEP 2002?
by Lyndal Sullivan, BMCS Land Use Officer
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
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
"the Commission does not support Council's reliance
on the development application assessment process to prevent inappropriate
"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"
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.
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:
'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.
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.
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
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.
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.
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.
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.
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 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.
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:
EP zoning gained on:
• 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
• 39,40,49 Ninth Av, Katoomba - 'inholdings' in large EP area changed
to Liv BC proposed by the planners, the Commissioner & community to
• 2-8 Sublime Point Rd, Leura (EP replaced by LBC zone with Slope
• 18-22 Lindeman Rd, Leura (EP replaced by LBC zone with Slope Constraint
• North Lawson Park (lot126 DP 46533) *- by change of zoning to Rec-OS
• 62 Martin Place, Linden- EP zone reduced and replaced with LivBC
• Old brickworks Katoomba (376-380 GWH) - part
closures partly or fully reversed to allow access to the rear of properties:
• 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
• 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
• 32 Woodlands Rd Katoomba
Zoning Changes on Council owned land throughout
• 45-47 Wilson Katoomba (Coomasssie St)
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
• 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
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)
The following proposed changes will improve the environmental protection
and will need submissions from environmentalists to ensure these changes
are not reversed:
• 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 increased environmental protections on the St Columbas
• 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.