BMCS
SUBMISSION TO Draft LEP 2002
SECTION
PART
ONE
DIVISION
1 - ADMINISTRATION
Cl:3.3
- STATE ENVIRONMENTAL PLANNING POLICY NO:1
We
believe that the provisions of this Plan should not be watered down,
and therefore support the exemption from SEPP 1 which applies
to minimum development space and site coverage in some zones. Moreover,
we believe that the exemption from SEPP 1 should apply to the whole
LEP. We strongly contend that a court should not have the power
to distort its meaning or diminish its intent - under the umbrella
of flexible interpretation.
The
community itself, through the planning process, should decide which
limits are absolute, and which are guidelines for flexible interpretation.
These definitions should be written into the LEP and it should not
be possible by a court which has been given the power by the State
Government to interpret all LEPs 'flexibly' (through SEPP 1). The
environment and the community are almost always the losers when
SEPP 1 is applied.
Cl:4
- REGULATORY INSTRUMENTS
This
clause could be interpreted as allowing Council to override covenants
regarding conservation or recreational use and we do not believe
this is the intention of the Plan. We recommend an additional point
be inserted to state that this clause should not be used to override
any existing covenants in the public interest.
Cl:6.2(c)
- BETTER LIVING DCP
We
support the inclusion of the important development standards in
the LEP itself, rather than being in a separate document. This higher
level of legal recognition gives more certainty to the community.
We
support the improvement of the DCP's legal status that will result
from its being 'called up' in the LEP. It would be preferable that
the entire DCP is called up in this clause, not just part D.
Cl:7
- MAP SUPPORTING THE PLAN
We
support the use of maps created specifically to identify protected
areas, as well as zones.
Commissioner
Carlton's Recommendation (Page 142 Item 9g) states that "mapping
of undeveloped areas of watercourses should be included in the Draft
LEP and other watercourses should be included in a DCP".
The
mapping of watercourses in the legal maps would give greater legal
clarity. This would allow for an amended definition of watercourse
as that identified map panel X or if not then satisfying the existing
dictionary definition. (See Appendix A for a discussion of watercourses)
Cl:9
- CONSIDERATIONS BEFORE DEVELOPMENT CONSENT
We
support the requirement for compliance (rather than consistency)
with objectives, management provisions and assessment requirements,
etc. However we note that compliance with zone objectives is not
specifically stated here - this is a concern.
DIVISION
2 - PLANNING PRINCIPLES
Cl:11-
ECOLOGICALLY SUSTAINABLE DEVELOPMENT
We
support the inclusion of a full definition in this Plan. We particularly
support the inclusion of Clause 11[2(e)]
for continual improvement. Currently, developments are often approved
on the basis of the existence of 'past and current impacts of development'.
For example, the extension of fairways into a hanging swamp at Katoomba
Golf Course was justified because of existing mowing practices and
blackberry infestation.
There
is a need for a clause which clearly states that present degradation
does not justify future degradation. This clause could provide some
guidelines to control cumulative impact.
We
propose the following addition to subclause (c ) (ii): ' . . .(options),
with particular consideration given to cumulative impacts and ensuring
that previous environmental damage is not compounded.'
The
DUAP guide to s 79C of the EP&A Act clearly identifies cumulative
impacts as an important consideration on p 9.
Cl:
12 - PRINCIPAL OBJECTIVES OF THE PLAN -
Plan
objectives (cl:12) and zones objectives (Part Two, Division 2 ,
Clauses 18-31) should be prioritised to provide greater legal certainty.
These objectives are potentially in conflict unless a priority order
has been established. The priorities should be established by the
community, not by a court, whose role should be only to interpret.
Tim
Robertson, QC discussed
in detail the importance of prioritised objectives to make LEPs
work effectively at a Conference organised by the Nature Conservation
Council held 27-28th August 1999. The lack of this prioritisation
was supported by other legal practitioners as a major weakness in
most LEPs in NSW.
PART TWO
DIVISION 2 - ZONE OBJECTIVES
Refer
to comments in cl 12 about re the prioritisation of Zone Objectives.
Cl:18
& 19 - VILLAGE - TOWN CENTRE & NEIGHBOURHOOD CENTRE
The
objective " To permit only development that does not place
unacceptable demands on infrastructure and services" should
also be included in these zones, just as it is in the other two
Village zones.
Cl:25
& 26 - EMPLOYMENT - GENERAL & ENTERPRISE ZONES
The
objective " To permit only development that does not place
unacceptable demands on infrastructure and services" should
also be included in these zones.
Cl:
30 & 31 - ENVIRONMENTAL PROTECTION
We
support the application of EP zoning to sensitive sites throughout
the LGA based on slopes, sensitive vegetation, watercourses etc.
We
strongly recommend the inclusion of an additional objective that
would justify and encourage Council actions/decisions to retain
an area in good condition. The proposed set of objectives do not
precisely address this issue in relation to EP-General Zones. For
example, if Council is to prevent the planting of non-indigenous
plants in an EP zone, there should be both more specific zone objectives
as well as the identification of this activity as a prohibited activity.
We
propose the following amendment to objective 30 (a) :
"To
protect and promote the conservation of environmentally sensitive
land and areas of high scenic value in the City from development
and other degrading activities"
DIVISION THREE - PERMISSIBILITY OF LAND USE
Cl:
32 - LAND USE MATRIX
Grazing
of hooved animals does not appear to be restricted within the DLEP.
Hooved animals cause major degradation on creeklines and slopes,
and in sensitive vegetation. The grazing of individual "pets"
should be excluded from all EP zones. As development not included
in the land use matrix is prohibited [cl32 (3)], it is unclear whether
the keeping of individual animals is prohibited by this DLEP. Would
they come under the definition of "rural livestock" in
the definition of animal establishments?
We
believe that there is a need for specific detail on this matter.
In the past, Council Officers have expressed their belief that neither
LEP4 nor LEP91 empowers them to exclude hooved animals where only
small numbers of animals were involved.
Parking
as a permissible use in the land use matrix for EP zones is a concern.
Whilst it may be reasonable for a small area beside a road to be
used for parking, it is not appropriate to use a large paved area
for this purpose. This distinction was apparently intended by creating
separate definitions for 'parking' and 'parking facilities'. A site
area limit could be included in the definition of 'parking'.
Prohibited
Activities in EP Zones and Protected Areas
There
is a need to specifically prohibit non-indigenous animals and the
planting of non-indigenous plants in both EP zones. A bushcare group
attempted unsuccessfully to persuade Council to take action under
LEP91 against a land owner planting rhododendrons on EP land. Council
stated it could not interfere, as the LEP objectives only related
to development applications. (see copy of letter attached in Appendix
C ))
This
letter from BMCC dated 22 May 1997, stated
"Council
has no control over what people plant in their yards if the plants
are not noxious weeds . . .Likewise there is no obligation on land
owners to meet the objectives of the LEP if no development consent
is required for the activity they are carrying out."
If
the land use matrix is not be the most appropriate place to identify
these as prohibited activities in an EP zone, it does need to be
stated clearly somewhere in the LEP.
Cl:
33 - EXEMPT AND COMPLYING DEVELOPMENT
There
is a need to update DCP No 33 to ensure consistency with both LEP
91 and this DLEP 2002. Even prior to this DLEP, the DCP maps identify
some areas as "complying" that are not, in fact, if the
introductory exemption clauses are read. Certain provisions of this
DLEP for hard surfaces etc. will mean that some exempt development
provisions will have to be revisited and modified.
Cl:34
- DEVELOPMENT NEAR ZONE BOUNDARIES
We
strongly object to this clause. It allows development to encroach
on adjoining zones in which such development would not normally
be permissible. Even an encroachment of 5 metres into an EP zone,
given the scale at which mapping for these zones was carried out
and the resultant margin of error, could effectively abolish an
important buffer. The potential enroachment of up to 20 metres into,
for example, Living Conservation or Living Bushland Conservation
from Living General, Employment or Village zones could result in
a considerable increase of hard surfaces and an extension of activities
unsuitable to the predominant land uses within these zones.
We
maintain this objection despite the existence of provisions in Part
3, Div 2, Cl:43(4) which seek to prevent environmental impacts on
development-excluded land, since these safeguards rely solely on
the discretion of the consent authority as to "adverse environmental
impacts". Appeals against this discretionary decision can only
ever be undertaken by the applicant, if he/she considers the Council
is being too harsh in preventing environmental impacts. It can never
be challenged by those who believe that Council is not being stringent
enough in the prevention of environmental impacts. The EP&A
Act does not allow third party merit appeal rights to the Land and
Environment Court.
Cl:36
- BUSHFIRE HAZARD REDUCTION
Nothing
in this clause or in the definition of an asset protection zone
( APZ ) in the Dictionary clarifies what proportion of vegetation
within the APZ can be cleared in order to achieve bushfire protection.
It is not uncommon practice to bulldoze an area to bare earth in
the name of achieving bushfire protection. This degree of clearing
should be clearly defined as development, requiring a development
assessment and appropriate conditions of consent.
The
maximum proportion/amount of vegetation that can be cleared within
an APZ for the purposes of bushfire protection should be defined
- either in this clause or in the definition of an APZ.
A
readily measurable standard must be established. Such a standard
will need to be in accordance with the provisions of a Bushfire
Environmenal Assessment Code under Division 8 of the Rural Fires
Act 1997 (which we recognise has not yet been developed, but which
is expected early in 2003).
This
clause should also specify the acceptable means of clearing - namely,
cutting and slashing, but not pushing over vegetation. The soil
surface must not be disturbed. Mulch should be retained and packed
down to control erosion.
The
Rural Fires Act section 100C ss (3) (a) to (c) gives exemption from
the EP&A Act (and therefore the LEP) only if
-
hazard
reduction is in accordance with a bush fire risk management
plan,
-
a
bush fire hazard reduction certificate is in force, and
-
work
is done in accordance with a bushfire code applying to the land.
This
LEP may need to repeat these requirements. Clearing that does not
meet the defined criteria must be approved under the EP&A Act.
Cl:
39 - NO SUBDIVISION (NS)
The
term 'Boundary adjustments' in subclause (2) (a) must be more precisely
defined to ensure that an effective subdivision cannot occur using
this subclause as justification.
One
example of a situation where this same clause under LEP 91 could
not prohibit an effective subdivision occurred at 131-133 Grand
Canyon Rd Medlow Bath (DA S/14/2001). The owner purchased a small
lot adjoining land under a NS notation. The land under NS was then
proposed for subdivision with the smaller part added to the new
lot. Council officers has to rely on a merit assessment of the environmental
impacts to recommend the rejection of this subdivision. It should
have been clear that this situation was not a "boundary adjustment".
PART
THREE
DIVISION 1- SITE ANALYSIS
Cl:
41 - SITE ANALYSIS PLAN
There
should be a clearly defined trigger where a site analysis plan is
required. Cl 41 (1) leaves the decision to the discretion of the
consent authority in individual cases.
A
detailed site analysis plan and environmental assessment should
be triggered where a site has any of the following features:
-
slopes
greater than 20%
-
significant
vegetation on site or within 60 m
-
likely
habitat of threatened species
-
rare
species of flora
-
watercourse
on site or within 100 metres of siterock outcrops, rock ledges
and cliffs
(it
is recognised that clause 51 triggers this in the case of significant
communities and rare flora)
The
Society's experience with DAs decided under LEP 91, which involves
similar assessments to those proposed here under clause 43, shows
that such a defined trigger is necessary.
One
example is the DA X01/1323 at 60 First Avenue Katoomba which involved
a lot with a number of the features listed above. Although the site
contained the likely habitat of a listed threatened species, and
the proposal involved building in a hanging swamp, no detailed site
analysis or environmental assessment was undertaken.
It
would be useful if the DLEP stated that all assessment documents
- including the statement of environmental effects and the site
analysis - are freely and readily available to the public (as required
by the Local Government Act). Currently there is no clear understanding
amongst the public or BMCC staff responsible for providing the community
with such information. Frequently, permission must be obtained from
BMCC's executive officer to inspect or copy documents; sometimes
community members are informed that they cannot see or copy documents.
Cl:
42 - CONTENTS OF SITE ANALYSIS PLAN
We
support the detailed requirements of this section, and in particular
sub clause (3)(e) to identify all vegetation to be removed.
DIVISION 2 - PROTECTING THE NATURAL ENVIRONMENT
Cl:
43 - ENVIRONMENTAL IMPACT
Throughout
this clause the following phrase is used: "the development
will incorporate effective measures, satisfactory to the consent
authority" . This implies that some 'end of pipe' solutions
should be tacked on; it does not give clear powers to Council to
reject a development unless it proposes a design, location or size
that will minimise the impact. This same phrase is currently used
in assessments made by council under LEP 91, in clause 10.5 and
has proven to be inadequate.
Council's
interpretation of the similar cl 10.5 (da) enabled Council to approve
a development within a Schedule 3 vegetation unit which was also
the likely habitat of a listed threatened species. No consideration
was given to the possibility of an alternative development that
would result in less impact (refer to BMCC Business Paper 11/12/01
item 19). Such an assessment could have resulted in a dwelling of
lesser impact.
Where
there is a requirement for "a detailed environmental assessment"
it should be referenced to the requirements of clause 42 (of this
DLEP) and also the Better Living DCP.
Cl:43(1)
- DWELLING HOUSES AND ANCILLARY DEVELOPMENT
This
clause is critical in implementing the ESD planning principle 11(2)
(e)(i.e. for continual improvement). Most of the adverse impacts
are the cumulative impact of residential development.
Concerning
the words "development will not have a significant environmental
impact"- some attempt should be made to define 'significant'.
The use of such a subjective and imprecise term leaves enormous
scope for discretionary interpretation, and has meant that a large
number of individual degrading developments have been approved.
This terms appears to allow Council to justify further development
on the basis of existing degradation (eg item 19 BMCC ordinary meeting
11/12/01).
We
propose that a clause along the following lines be added at the
end of cl 43 (1) (to be included in this sub clause on dwelling
houses)
"Consent
shall also not be granted unless Council is satisfied that it is
not possible to reduce the impact on any of the above features by
either relocating the development, reducing its site coverage, or
changing its design or type."
This
suggestion is an attempt to include the concept used in the assessment
of protected areas. Without such a requirement to assess possible
alternatives, we believe that clause 43(1) in DLEP2002 will not
change the current situation, where such features are being damaged.
(ref to discussion of DA X01/1323).
Cl:43(2)
& (3) - DEVELOPMENTS ON LOTS CREATED WITHIN THE LIVING - BUSHLAND
CONSERVATION ZONE / SUBDIVISION
These
clauses should clearly state that development on lots created by
the subdivision of land under this DLEP is prohibited in the Development
Excluded Land (DEL). This is clearly the intention of this clause.
For community certainty and clarity this should be stated.
The
phrasing of this clause has made this a 'merit assessment' about
whether the impacts are adverse. The community is excluded from
ever appealing a decision by Council, were it to approve development
in DEL.
Detailed
environmental assessments should cover all subdivisions which have
the potential to impact on DEL.
Where
new lots are being created, it is important that they be created
so as to protect DEL. Otherwise the subdivision should not proceed,
if the principal objectives of this Plan are to be meaningful.
Car
parking and driveways are specifically mentioned in clause 43 (1)
as an ancillary development to a dwelling house; they should also
be covered by this clause as part of developments on newly created
lots.
Cl:43(4)
- OTHER DEVELOPMENT
We
propose that the following clause be added under (and at the end
of) cl 43 (4)
"Consent
shall also not be granted unless Council is satisfied that it is
not possible to reduce the impact on any of the above features by
either relocating the development, reducing its site coverage, or
changing its design or type."
Council
should have the power to assess whether there are other development
options that would have a lesser impact. If it cannot do so the
principle objectives of this Plan become meaningless in practice.
Car
parking and driveways are specifically mentioned in clause 43 (1)
as an ancillary development to a dwelling house; they should also
be covered by this clause as part of the development.
Cl:43(5)
- IMPACTS ON THE NATIONAL PARK
We
support the powers explicitly given to Council to reject developments
on the basis of adverse environmental impact on the National Park.
We
urge Council to extend Clause 43(5) to explicitly cover all land
within a catchment of a National Park.
Currently
this clause only applies to land immediately adjacent to the National
Park and would not, for example, protect the Park from any future
proposals for trout farms on Govetts Creek or elsewhere, so long
as these were one property away from the boundary.
There
are no other development consent criteria that would allow Council
to reject a development on the basis of impact on the Park. The
principal objectives of the Plan would not allow Council to reject
a development that would degrade the Park through weed invasion
or feral
animals, for example. There is no clear objective to maintain the
biological diversity and integrity of the Park. Whilst this objective
is obvious to a conservationist, it could be successfully argued
that weed or feral animal invasion of the Park is not clearly counter
to objectives 12 (a) or (c) .
Cl:44
- PROTECTED AREA - SLOPE CONSTRAINT AREA
We
agree that the slopes of the Blue Mountains are vulnerable to erosion
and must be safeguarded by Environmental Protection (EP) zones and
Protected Area status as proposed.
We
support the objectives and consent criteria, in particular (3) (e)
and (4,) which will allow consideration of how impacts may be minimised
and alternative development options.
Watercourses
are "deemed' to be Protected Areas even when not mapped (cl
50) , we propose that a similar clause be included to cover slopes
>20%.
Cl:45
- PROTECTED AREA - VEGETATION CONSTRAINT AREA
We
support the protection of significant vegetation communities by
the use of Environmental Protection (EP) zones and Protected Areas-
Vegetation Constraint Areas.
We
agree that there is a need for ecological buffers around significant
vegetation communities and support the protection they are given
by EP zoning, the use of Protected Areas, and inclusion in development
assessment criteria (clauses 43-53).
We
commend Council on the extensive vegetation mapping undertaken.
We
urge Council to ground truth all mapped significant vegetation communities
to give them the better protection afforded by an EP zone plus the
protection of a 60-metre buffer (part EP- part PA).
In
order for Protected Areas to be maintained, it is essential that
Council include requirements in its development consent criteria
that will exclude non-indigenous plants and animals from these areas.
(see previous discussion under cl 32 above). In order for this to
occur, there must be some explicit statements to this effect here,
An
additional clause is required to cover not only when development
occurs on protected land but also when it occurs in the vicinity
of adjacent land and may have an impact.
One
suggested clause is as follows:
Cl
45 (5) Consent shall not be granted to development on land which
contains protected land or is within 60 m of protected land unless
the consent authority is satisfied that:
-
adequate
provision is made for the ongoing management of the protected
land to ensure its biological integrity
-
the
introduction of non-indigenous plants will not be permitted
in the protected land
Ideally
Protected Areas should also be 'protected' from the deliberate introduction
of non-indigenous animals. However the problem of regulating companion
animals in existing developed areas is recognised. This proposed
clause in the LEP could give more direction to officers to propose
development consent conditions to exclude animals from protected
areas by the use of fences where appropriate.
Watercourses
are "deemed' to be Protected Areas even when not mapped (cl
50) , we propose that a similar clause be included to cover significant
vegetation communities where these have not been mapped.
Cl:46
- ECOLOGICAL BUFFER AREA
In
order for Protected Areas to be maintained, it is essential that
Council include in its development consent criteria requirements
that will prohibit the introduction of non-indigenous plants and
animals to these areas. (see previous discussion above and under
cl 32 ). In order for this to occur, there must be some explicit
statements to this effect here,
An
additional clause is required to cover not only when development
occurs on protected land but also in the vicinity of adjacent land,
for example:
Cl
46 (5) Consent shall not be granted to development on land which
contains protected land or within 60 m of protected land unless
the consent authority is satisfied that:
-
adequate
provision is made for the ongoing management of the protected
land to ensure its biological integrity
-
the
introduction of non-indigenous plants* will not be permitted
in the protected land
*
see discussion under cl 45 above re the regulation of animals.
WATERCOURSES
We
strongly support the protection of watercourses by the use of Environmental
Protection (EP) zones and Protected Areas-Ecological Buffer Areas
around the watercourse corridor and a buffer area.
In
order to give greater consistency between those watercourses which
have been mapped and zoned (according to the methodology outlined
in the Planning Report) and those which have been omitted, we are
suggesting some amendments to the definitions. The proposals outlined
in Appendix A of this submission are intended to give greater clarity
to identify the terms 'watercourse buffer' and 'watercourse corridor'.
Cl:47 - PROTECTED AREA- WATER
SUPPLY CATCHMENT
We
support the provisions of this section with the exception of clause
47(4)(b). Any further pump-out connections should be opposed, particularly
in a Water Supply Catchment, for reasons of pollution. The evidence
of illegal disposal of effluent is discussed fully under cl 87 and
appendix B.
Cl:50
- WATERCOURSE
We
support this clause which gives Protected Area status to watercourse
corridors that have not been mapped.
CL
51 - SIGNIFICANT VEGETATION COMMUNITIES AND RARE SPECIES OF FLORA
We
support the detailed provisions in this clause, in particular subclause
(2) (b) which is the requirement to assess alternatives.
CL 52 - MANAGEMENT OF VEGETATION
It
should be specified that it is not permissible to remove trees by
pushing them over with large machinery, because of the associated
soil disturbance and impact on ground and shrub layer vegetation
(ref to above discussion under cl 36).
Cl:53 - PROTECTION OF VEGETATION
We
support the DLEP clause (53) giving Council powers to introduce
a Vegetation Management Order (VMO) that can extend the existing
Tree Preservation Order to cover all native vegetation (to cover
shrub and groundlayer native vegetation)
We
urge Council to proceed with the VMO. We believe that the VMO should
focus on native vegetation and not include exotic gardens, regardless
of their size
We
propose the following detailed changes to the clause to better reflect
these concerns.
-
It
is proposed that the following be added to the end of clause
53(4):
.
. . . .in order to comply with the aims of the order as specified.'
-
It
is proposed that clause 53(5) (c ) be amended to read as follows
'That
taking the action was reasonably necessary to protect human life,
buildings or other property from imminent danger from a bush fire
burning in the vicinity of the tree or vegetation'
This
change is proposed to achieve consistency with the wording of 2.2
(r) of the draft VMO, and also for a more specific and tighter definition.
The current draft would allow clearing on large lots at great distances
away from fire.
-
It
is proposed that clause 53(6) be amended to read as follows:
In
this clause "likely habitat tree: means any tree naturally
occurring (being native vegetation or remnant native vegetation)
which provides habitat for any locally indigenous flora or fauna.
"Habitat" means a place where a plant or animal lives,
either permanently or periodically, which fulfils any of its resource
needs, which include food, water, shelter, nesting, hunting, perching
etc. It may include any biotic or abiotic component.
The
proposed definition in the DLEP excludes the requirements of some
birds or other animals with very specialised feeding or perching
needs. For example Eucalyptus
punctata, Eucalyptus gummifera and some stringybarks are a particularly
rich source of nectar for birds in the Blue Mountains.
-
An
additional clause 53 (7) is suggested to give Council powers
to order the restoration of vegetation in cases where vegetation
has been removed or damaged illegally.
This
should include powers to order vegetation regeneration, to require
the making of a vegetation management plan, to undertake bushland
regeneration works and to recover costs. It is understood that these
powers are already available to Council through the EP&A Act,
given that clearing comes under the definition of development. It
would be useful to the community if this were spelt out in the LEP
and also in the VMO document itself.
Cl:
54 - WEED MANAGEMENT
We
support the powers to allow Council to reject DAs that proposed
the planting of environmental weeds in the Living - Bushland Conservation
zone (Schedule 6).
We
ask Council to extend this ban on deliberately introducing environmental
weeds in landscape plans to new developments in all other zones
It
is suggested that the planting of environmental weeds in EP zones
and Protected Areas be explicitly stated as a prohibited activity.
This prohibition should extend to non-locally indigenous plants
in areas where the objective is to maintain their natural condition
(refer to earlier discussion under clause 32).
Cl:
55 - SITE DISTURBANCE AND EROSION CONTROL
All
references in this clause to controlling erosion on "the site"
should be defined more precisely to mean keeping sediment "within
the approved disturbed area". It is not uncommon practice to
erect sediment fences around the property, and as a result native
vegetation on the property is being harmed by sediment.
An
additional clause is needed to specify the need for an erosion and
sediment control plan where tree removal is to occur. This could
be defined as a 'land disturbance' and then covered under cl 55
(3) and (5) (a).
Cl:
56(3) - STORMWATER MANAGEMENT
We
support these provisions.
This
clause could be misread to mean that increased site coverage from
that permitted in Schedule 2 would be permissible if there were
to be water tanks. This requires clarification to ensure that minimum
soft areas are not compromised by this clause.
Cl: 64 & 65 - LANDSCAPING
FOR RESIDENTIAL DEVELOPMENTS
The
conditions in these clauses requiring the replacement of vegetation
removed during development with suitable replacement planting should
specify that mature vegetation must not be replaced with any species
included in Schedule 6, even if these weed species were
present
in the original vegetation.
Cl 73 SITES OF ABORIGINAL SIGNIFICANCE
28
days is not sufficient time for local Aboriginal communities to
respond to such requests.
Cl:76- CONSERVATION INCENTIVES
Safeguards
are necessary to ensure that exemptions from the provisions for
a Heritage item do not result in adverse impact on the natural environment.
An additional clause should be inserted to the effect that consent
cannot be granted if there will be any adverse impact on any Protected
Area or Environmental Protection Zone, or if the site has any of
the following significant environmental features:
slopes greater than 20%
significant vegetation on site or within 60 metres
likely habitat of listed threatened species
rare species of flora
watercourse or within 100 metres
rock outcrops, rock ledges and cliffs
DIVISION 5 - HAZARD & RISK
ASSESSMENT
Cl: 77 - BUSHFIRE RISK ASSESSMENT
Cl: 78- PROTECTION OF DEVELOPMENT
AGAINST BUSHFIRE
We
support subclauses (1) & (3) to limit the location of APZ. We
also support the intent of (4) - (6), which will allow Council to
reject developments where Council is not satisfied that there are
adequate measures in place to protect the lives of residents and
firefighting personnel.
PART FOUR
DIVISION 1 - SUBDIVISION
Cl:82- LOT LAYOUT
82(1)
We
support the planning approach to contain urban development, and
to restrict any growth to the inner-town/village areas.
We
support the minimum lot sizes proposed in DLEP 2002 because of the
environmental impacts.
Smaller
lot sizes would not only increase the amount of development directly
but also the demand for land for social and utility infrastructure
services.
We
particularly support a minimum 1200 m2 lot size in Living
Conservation and Living- Bushland Conservation zones. This constitutes
a good mechanism to restrict large increases in densities in outer
areas.
We
commend the work done in the Residential Subdivision Study to provide
the detailed information required to assess the likely consequences
of the various lot size options.
82(2)
We
strongly support the exclusion of Environmental Protection zoned
land from calculations of the minimum lot areas.
82(9)
(a)
We believe that the provisions of this Plan to establish a minimum
development space in each newly created lot in a subdivision should
not be watered down and therefore support the exemption from SEPP
1 in Living-Bushland Conservation (clause 3 [3]).
This
exemption from SEPP 1 should be extended to apply to minimum allotment
sizes and development spaces in all zones.
(d)
We strongly support the exclusion of environmentally constrained
land (DEL) from land that can be developed in areas zoned Living
- Bushland Conservation. This principle should be extended to all
zones.
There
should be no obstacles to this as this is a prerequisite for creating
new lots in clause 43(3).
Cl:
83 - PROVISION OF SERVICES FOR SUBDIVISION
We
support the requirement for effluent disposal by a reticulated sewerage
system on all new lots.
Cl: 84(1) - SUBDIVISION RELATED
TO SPECIFIC LAND USES
We
support most of the requirements for cluster housing in subclause
(2) on the basis that the requirements on Schedule 2 still apply.
We oppose the exemption from cl 82(9).
We
believe that the provisions to ensure an adequate development space
outside of DEL should apply equally to cluster housing . We strongly
oppose this exemption.
Cl: 85(1) - SUBDIVISION IN RECREATION
OR EP ZONES
The
following additional words are proposed for cl 85(1) (e) to ensure
that 'boundary re-alignments' are not used to diminish the size
of the Recreation or EP Zoned land.
(Refer
to previous discussion in clause 39 above )
Cl:86 - GENERAL PROVISION OF SERVICES
In
subclause (1) "unacceptable impact on the environment"
should be defined. The requirements for no adverse environmental
impact outlined in clause 43 could be applied here also.
Cl:87 - PROVISION OF SERVICES
FOR SPECIFIC LAND USES
We
oppose Clause 87 (1). This Clause will allow developments to proceed
on existing lots (not new subdivisions) where there is no reticulated
sewerage system, and will allow a service to be provided by a pump-out
system.
A
pump-out service is acceptable if it is guaranteed that a reticulated
sewerage system will be supplied to the locality within a defined
time period (say two years). This is certainly not an acceptable
long-term solution. Building should not be allowed to proceed in
areas where it is likely that a reticulated sewerage system will
not be available within a few years, or ever.
Pump-out
systems contribute considerable pollution into the World Heritage
Area.
On
the basis of figures provided by Council on 14 February 2001, when
there were 784 households on a pump-out system, it has been estimated
that 63 473 816 litres
per year is being disposed of illegally, and finds its way into
the World Heritage Area.
There
are many lots where it is not economically feasible to supply a
reticulated sewerage system. The average cost per lot in some localities
is as much as $89,750, with $113,461 in one locality [ref Sydney
Water " Blue Mountains Fringe development (Residential Bushland
Conservation) Indicative Costs as at August 2000"].
We
support subclause 87(2).
DIVISION 5 - ENERGY EFFICIENCY
Cl: 97 ENERGY EFFICIENCY
-
This
clause should apply to extensions that increase the size of
a house by a set area - not by a set proportion of the existing
house size. The latter criterion means that people with large
houses can avoid this requirement but those with small houses
cannot. It is proposed that an increase in house size of 45
sq metres would be appropriate for this provision.
The
3.5 star energy rating is inconsistent with the ESD planning principles
outlined in clause 11. This is such a low standard that:
-
it
is not equitable for future generations [11(2) (d)];
-
it
does not support continual improvement [11(2)(e)] (it is a lower
standard than has been easily achieved over the last 20 years);
and
-
it
does not support improved valuation of environmental resources
[11(2)(g)]
The
rating should be 5 star.
A
more adequate building sustainability index should be used which
takes account of more than immediate energy efficiency considerations.
Such an index is being developed by Planning NSW but is not at the
stage to incorporate as yet into this DLEP.
DIVISION 9 - MANAGEMENT OF PUBLIC LAND AND PUBLIC
INFRASTRUCTURE
Cl 122 - ACQUISITIONS
The
methodology used to identify land recommended for acquisition is
commended (ref Planning Study Vol 1 pp103). We agree that the lots
identified are worthy of Environmental Protection - Open Space for
voluntary acquisition.
If
Council considers withdrawing any of these lots from the list presented
in the DLEP, the reasons for such a change should be advertised
widely to the community and an opportunity given for community debate
to ensure that changes are not made behind closed doors.
We
urge Council to make representation to the state government for
funding to purchase these lots. Some lots may be most appropriately
added to the National park. (see comments on specific sites in
Section II).
Cl:126
- CROWN DEVELOPMENT AND PUBLIC UTILITIES
Although
it is recognised that Council has limited power to prevent public
bodies from carrying out development in an environmentally damaging
manner, we suggest that a code of practice be established to provide
guidance to public bodies undertaking work in this LGA. Such guidelines
should set the width of work corridors , especially on development
excluded land, and to require the marking of work corridors with
temporary barriers to encourage adherence to such guidelines.
SCHEDULE
2 : LOCALITY MANAGEMENT WITHIN LIVING ZONES
We
support the provisions that will reduce the amount of hard surfaces
in new developments in Living Zones in Schedule 2.
We
particularly support the requirement fo a minimum of 60% of any
lot zoned either Living-Conservation or Living-Bushland Conservation
to be retained as water-absorptive surfaces.
SCHEDULE
3 : LOCALITY MANAGEMENT WITHIN EMPLOYMENT ZONES
We
urge Council to increase the area of land to be retained as soft
surfaces in the Employment zones from the 20% and 30% proposed.
In
some employment areas adjacent to creeklines or containing significant
vegetation, this would be difficult to achieve unless there are
Consolidation requirements imposed. For example in the North Katoomba
employment zones east of Barton Street and the South Katoomba area
north of Megalong St.
SCHEDULE
4 : LOCALITY MANAGEMENT WITHIN RECREATION ZONES
We
support the provisions to limit hard surfaces and agree with the
maximum of 40% in Recreation-Private. However, no limits have been
defined for Recreation-Open Space. The same standards should apply.
SCHEDULE
5 : SIGNIFICANT VEGETATION COMMUNITIES
The
Society congratulates Council on the extensive vegetation mapping
that has been undertaken. We support the number of communities identified
and wish to make one suggestion to ensure that the definitions would
encompass degraded remnants.
We
propose the inclusion of an introductory statement that allows for
the inclusion of a community even if the dominant species may be
missing as the result of logging etc. Such recognition could give
the protection that would allow for possible future regeneration
of the species, if propagules are still present.
SCHEDULE
6 : WEEDS OF THE BLUE MOUNTAINS
The
Society strongly supports the concept of this list's inclusion within
the LEP.
There
is a need for a regular review process as new species become naturalised
and need to be added.
We
will be making specific suggestions for additions to the list in
our supplementary submission.
SCHEDULE 10: RIPARIAN CORRIDOR BUFFER
An
additional Schedule is proposed for inclusion in the LEP itself.
"The Riparian Corridor Buffer model" contained in EMP
2002 Vol.1: Planning Framework for DLEP 2002, Appendix 2 should
be added as a Schedule to the DLEP Written Instrument.
This
has been used as the basis of the mapping to establish Ecological
Buffer Areas around watercourses. In Appendix A of this submission
we argue the value in using this model to assess buffers for those
watercourses for which this buffer has not been mapped.
DICTIONARY
Development
Excluded Land (see proposals outlined in appendix A)
Watercourse
corridor (see proposals outlined in appendix A)
Parking
(refer to discussion under clause 32)
APPENDIX
A
WATERCOURSE ISSUES IN DLEP
2002
1.0
Unmapped Watercourses
There
is a difficulty where watercourses have not been mapped in the planning
studies.
We
understand from the methodology outlined in the Planning Study for
Blue Mountains Draft Local Environment Plan 2002, that it is intended
to identify all watercourses and their buffers and zone the watercourse
corridor as EP and give the buffer a PA status.
Where
omissions have been made and the watercourses have not been identified
disputes are likely to arise due to the lack of specific definitions
for 'watercourse corridor' and 'buffer'. The point of dispute will
always be that an applicant believes council is requiring too large
a watercourse corridor or buffer. Council should have some clearly
defined standards which are best quantified in the LEP.
There
is no provision in the legislation for a community-based third party
to be heard before the Land and Environment Court, therefore there
can never be a dispute based on the inadequacy of the corridor or
buffer.
There
are two situations where watercourse corridors have not been given
an EP zone where disputes are likely to arise.
1.
1 development on an existing lot containing an unmapped watercourse
corridor
If
the watercourses have not been mapped (and zoned EP) , the land
"within a watercourse corridor" is deemed to be within
a Protected Area-Ecological Buffer Area [clause 50]. Special considerations
are given to Protected Area-Ecological Buffer Areas.
The
problem arises as to what area of land is covered by a "watercourse
corridor" and therefore what becomes the PA. We suggest clarification
of this in the definition of watercourse corridor [Dictionary
p 433]. The following amended definition is suggested:
"the
land occupied by a perennial or intermittent watercourse, and any
associated riparian creek line vegetation (belonging to a significant
vegetation community) adjacent to that land which may provide habitat
for aquatic or terrestrial animals.
In
the event of the watercourse corridor not having been identified
on the Zoning maps as an Environmental Protection Zone, the corridor
means all the land within 20 metres of the centre-line of a watercourse
or the extent of the riparian creekline vegetation, whichever is
the greater.
In
the event of the riparian vegetation having been previously cleared
the corridor means all the land within 20 metres of the centre-line
of a watercourse"
The
reason for the 20m is based on the existing legislation and also
the Environmental Management Plan 2002 Volume 1 Planning Framework
for Draft LEP 2002 - Appendix 2 - "Riparian Corridor Buffer".
The Rivers and Foreshores Improvement Act uses the 20m width. The
Buffer model found that 20m was a significant breakpoint in the
relationship between width and potential impact (p124)
1.2
A subdivision development with an unmapped (& unzoned) watercourse
All
new lots are required to have adequate development space outside
of the "buffer required to protect the watercourse corridor".
This development space must be created outside of all Development
Excluded Land.
The
current definition of Development Excluded Land [ref p415]. is:
"any land:
(a)
zoned Environmental Protection-General, or
(b)
that is designated on Map Panel B as a Protected Area- Slope Constraint
Area, or
(c)
that is designated on Map Panel B as a Protected Area- Ecological
Buffer Area or that comprises a watercourse corridor, together with
any buffers required
to
protect the watercourse corridor, or
(d)
on which any significant vegetation community is located, together
with any buffers required to protect that community, or
(e)
that is the habitat of any threatened species, population or ecological
community, the development of which would have a significant effect
on the threatened species, population or ecological community as
determined in accordance with section 5A of the Act, or
(f)
on which any rare species of flora is located, together with any
buffers required by the Council to protect that flora, or
(g)
on which there is located any significant landscape or special feature
which in the opinion of Council is worthy of preservation."
The
issue is the need to establish the width of the "buffer
required to protect the watercourse corridor". We
propose that greater clarity would be given by amending subclause
(c ) as follows:
that is designated on Map Panel B as a Protected Area- Ecological
Buffer Area or that comprises a watercourse corridor, together with
a
100m wide Riparian Corridor Buffer from the centreline of the watercourse
unless a lesser width Riparian Corridor
Buffer
can be calculated using the Riparian Corridor Buffer algorithm model
(defined in the EMP 2002 Vol.1: Planning Framework for DLEP 2002,
Appendix 2*) to
protect the watercourse corridor, or
It
would preferable if the reference marked * were to a Schedule in
the LEP itself. For that reason we are proposing the Schedule 10
include the Riparian Corridor Buffer Model.
The
reason for the 100m is based on the Environmental Management Plan
2002 Volume 1 Planning Framework for Draft LEP 2002 - Appendix 2
- "Riparian Corridor Buffer". To quote this document,
"Buffers generated using the model have a minimum width of
20 metres, with variation occurring beyond that distance up to a
maximum of 100 metres according to the characteristics of the individual
watercourse." The buffer of 100 metres reserves the maximum
riparian corridor until an on-site inspection and Riparian Buffer
calculation can be performed.
This
reservation is compliant with Clause 11 (2c) "Ecologically
Sustainable Development - Precautionary behaviour - where there
are threats of serious or irreversible environmental damage, lack
of full scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation. In the
application of the precautionary principle, public and private decisions
should be guided by:
(i)
careful evaluation to avoid, wherever practicable, serious or irreversible
damage to the environment, and
(ii)
an assessment of the risk weighted consequences of various options.
2.0
Exclusion of Piped Watercourses
Under
the definition of a 'watercourse', piped drainage lines are specifically
excluded even if these follow the line of the pre-piped watercourse.
Development within these piped regions is unconstrained by any environmental
control. Developments can be built in the near vicinity or even
over the watercourse if no Environmental Protection zone exists.
This
raises two issues:
2.1
Possible future restoration of creeklines
Piped
creeklines are being restored within the Sydney area, for improved
urban stormwater management reasons as well as for residential amenity.
Future generations should not be denied this opportunity (ref ESD
principles in Clause 11)
2.2
Management of Urban Stormwater
Any
development's impervious surfaces would naturally drain into grates
that would be directly connected to the stormwater pipes following
the line of the watercourse. Foreign road-borne sediments, non-endemic
seed, plant foliage, litter and other pollutants would pass through
the drainage grates and flow down the piped watercourse at high
speed to downstream sites. This situation usually results in highly
eroded creeklines on the urban-bushland interface which deliver
sediment and pollutants into the national park. The piped watercourses
have to be considered part of the watercourses and an appropriate
riparian buffer determined around any inlet and outlet.
Commissioner
has stated that "the commission does not support the acquisition
of buffer areas for watercourses on private land, instead a condition
of consent should be imposed for all new development of land containing
a watercourse, requiring the maintenance and regeneration of buffers
wherever feasible" (Page 142 Item 9f)
In
order to allow adequate space for filtration or other stormwater
control infrastructure, new developments should be required to leave
the same EP zone as with a natural creekline, particularly around
existing inlets, but also along the whole channel to allow for possible
future works.
Significant research is being undertaken stormwater control infrastructures
by
CSIRO, the Cooperative Research Centre for Catchment Hydrology the
University of Newcastle etc. (see references below). The philosophies
are also stated in the "Better Living - Blue Mountains Draft
Development Control Plan" but the LEP itself must ensure that
appropriate space is provided for urban stormwater infrastructure
projects.
Without
this riparian buffer no ecological controls can be deployed to safeguard
streams flowing into our neighbouring World Heritage listed National
Parks.
Lloyd,
Sara D., et.al., Opportunities and Impediments to Water Sensitive
Urban Design in Australia, 2nd South Pacific Stormwater Conference,
Auckland, New Zealand, 27 - 29 June 2001, pp302-309.
Duncan,
H.P. 1997, 'An Overview of Urban Stormwater Quality', 24th Hydrology
and Water Resources Symposium, Auckland, New Zealand, NZ Hydrological
Society & IEAust, pp. 143-148.
Fletcher,
T.D., Wong, T.H.F., Duncan, H.P., Coleman, J.R. and Jenkins, G.A.
(2001), Managing Impacts of Urbanisation on Receiving Waters: A
Decision-making Framework, proceedings of the 3 rd Australian Stream
Management Conference, Brisbane, 27-29 August, 2001, pp. 217 - 223.
Lloyd,
S.D., Fletcher, T.D., Wong, T.H.F. and Wootton, R.M. (2001), Assessment
of Pollutant Removal in a Newly Constructed Bio-retention System,
proceedings of the 2nd South Pacific Stormwater Conference, Auckland,
New Zealand, 27 - 29 June 2001, pp.20-30.
Wong,
Tony H F., A Changing Paradigm in Australian Urban Stormwater Management,
Keynote address, 2nd South Pacific Stormwater Conference, Auckland,
New Zealand, 27 - 29 June 2001.)
APPENDIX B
INFORMATION
ON PUMP OUT SEWER SYSTEMS.
State
Government Guidelines state that pump out systems are "not
a viable option in the long term because of widespread misuse and
abuse by householders" ["Environmental and Health Protection
Guidelines - On Site Sewage Management for Single Households"
Dept of Local Government, EPA, NSW Health, DLWC, DUAP Jan 1998]
The
Blue Mountains City Council has been servicing 784 households on
a "pump out system" over the 12 month period between February
2000 and Feb 2001. The average effluent removed per household was
79,310 litres
per year.
The
AS/NSS 1547 - 2000 specifies the typical domestic wastewater flow
design allowance as
180
Lpd for households on reticulated water. If this figure is used
for the average household
of 2.73 people, then 179,361 L is estimated as being produced per
year.
This
indicates that only 44% of effluent produced is being collected.
If this is the case 56% of the effluent is disposed of illegally
and finding its way into the World Heritage Area which surrounds
the urban area. Currently that is 78 439 984 litres per year (or
100 051 litres per household pa).
If
water-saving devices are installed it is estimated that a lesser
amount of effluent would be produced per household, i.e. 144,485
litres pa. Therefore the estimate of the proportion of effluent
that is collected would increase to55%. This means that 79 310 litres
(55%) is collected and that 65 175 litres (45%) is illegally disposed
of per household per year.
Given
that the proportion of households using water-saving devices is
unknown, the estimate of the amount of effluent disposed of illegally
is somewhere between 56% and 45%,
An
estimate of the total effluent illegally disposed of in the catchment
for the 784 households each year is calculated as an average of
the two situations (with and without water saving devices)
Amount
disposed if no households were using water saving devices
=
784 x 100 051 litres = 78 439 984
Plus
amount disposed if all households were using water saving devices
=
784 x 65 175 litres = 51 097 200
129 537 184
divide by 2 = 64 768 592
Estimate
of average household effluent illegally disposed of in
the catchment pa = 82 613
APPENDIX C
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