Burwood Local Planning Panel Meeting 29 October 2024

Development Applications

(Item GB5/24) Delegations of Functions from Burwood Local Planning Panel to Council Officers Minor Heritage Works

File No: 24/44300

Report by Manager City Development

PREVIOUS ITEMS: GB1/24 - Delegation of Functions from Burwood Local Planning Panel to Council Officers in Planning Appeals - Burwood Local Planning Panel Meeting - 14 May 2024 6:00 PM

GB2/24 - Delegation of Functions to Burwood Local Planning Panel from General Manager - Burwood Local Planning Panel Meeting - 14 May 2024 6:00 PM

GB4/24 - Delegation of Functions from Burwood Local Planning Panel to Council Officers, Minor Heritage Works - Burwood Local Planning Panel Meeting - 17 Sep 2024 6:00 PM

Report

Background

Since the introduction of Local Planning Panels under the Environmental Planning and Assessment Act 1979 (the EPA Act), the NSW Minister for Planning has issued a number of directions and orders pursuant to EPA Act.

Relevant to this report is the Local Planning Panels Direction - Development Applications and Applications to Modify Development Consents dated 6 March 2024 (the Direction).

The Direction identifies at a minimum the type of development applications and modification applications that must be considered by Council’s Local Planning Panel (LPP). A copy of the Direction is annexed at “Attachment 1”.

Relevant to this report is the Environmental Planning and Assessment (Statement of Expectations) Order 2024 dated 1 July 2024 (the Order). The purpose of this Order is to set expectation for councils in relation to their performance of a range of planning and development functions under the Environmental Planning and Assessment Act 1979. If a council is found not to be meeting these expectations, the Minister can take these matters into consideration as part of determining if it is appropriate to appoint a planning administrator or Sydney district or regional planning panel to exercise a council's functions.

The Order requires Burwood Council to determine applications for which it is the consent authority (including development applications determined by the LPP) as soon as practical and within an average of 115 days. A copy of the Order is annexed at “Attachment 2”.

Previous delegations to staff

At its meeting on 14 May 2024, the LPP considered two reports seeking:

a) Delegation of Functions from the LPP to Council Officers in Planning Appeals, and

b) Delegation of Functions to the LPP from the General Manager.

The intent of these reports was to allow appeals to be dealt with in an efficient and timely manner and to allow additional applications to be considered and determined by the LPP if referred to it by the Director City Strategy or the Manager City Development. A copy of these reports are annexed at “Attachment 3”.

At its meeting on 17 September 2024, the LPP considered a report seeking:

a) Delegation of Functions from LPP to Council Officers in relation to minor works to heritage items.

The intent of this report was to allow minor works to heritage items to be addressed efficiently and in a timely manner. A copy of this report is annexed as "Attachment 4."

The LPP supported the delegation in principle but resolved to defer the matter pending further information regarding the justification for the need for the delegation and clarification on the appropriate forum to determine the delegations. There was also discussion regarding the requirement for agreement between the Principal Chair and Alternate Chairs on the matter of delegations. A copy of the meeting minutes is annexed as "Attachment 5." Each of the issues raised is addressed in this report.

Proposed Changes

To improve the efficiency of the LPP and reduce delays for applicants, it is recommended that the determination of less complex and uncontroversial applications be delegated back to Council staff.

Under section 2.20(8) of the EPA Act:

A local planning panel may delegate any function of the panel under this or any other Act (other than this power of delegation) to the general manager or other staff of the council...

It is recommended that the LPP exercise this power for minor works on sites identified as heritage items (including trees). Examples include an application for an internal fitout of a modified tenancy within a locally listed heritage item or the replacement of an under-awning sign. This is discussed in more detail below.

Delegating these minor Development Applications will reduce the number of applications reported at each LPP meeting, decrease waiting times for applicants, and allow the LPP to focus on more complex and controversial matters.

1. Works to local heritage items

Currently, all applications involving alterations or tree lopping on local heritage listed sites are required to be reported to the LPP. This follows a narrow interpretation of the term ‘demolition’ by the Department of Planning in the requirement for LPP to determine all Development Applications involving ‘demolition of a heritage item’.

It is appropriate that the LPP delegate to staff the power to determine Development Applications for locally listed heritage sites where:

· All or most of the significant heritage fabric is maintained;

· There is no adverse impact on the significant heritage fabric or setting of the item; and

· It is agreed by Council’s engaged heritage officer that the development can proceed.

Further, it is appropriate that the LPP delegate to staff the power to determine Development Applications for minor works to trees that are either

· Heritage listed; or

· On or overhanging the site of a heritage item

that affect less than (or equal to) 10% of the tree canopy where Council’s experts confirm that the proposal:

· Will not adversely affect the health of the tree; and

· Will not adversely affect the heritage significance of the tree or place.

2. Caveats

a) This delegation would only be of effect if a Development Application is not required to go before the LPP for another reason. For example, if solely due to the matter being delegated back to Council. If a minor heritage item as discussed above met another LPP threshold ‘trigger’ – say, for example, 10 objections, or the property were Council owned – then the application would still need to be reported for determination to the LPP.

b) If a Council Officer is uncertain as to the subjective elements of this delegation (terms such as ‘adverse impact’), a briefing may be held with the LPP to make sure a particular application falls within the reasonable limits of the delegation.

Additional information

At the LPP meeting of 17 September 2024 the members requested the following additional information be supplied to support the requested delegation. Each of these requests are addressed below:

1. Justification for the need for the delegation

The proposed additional delegations are sought to reduce assessment timeframes and streamline the process. Currently, all applications for works on locally listed heritage items, including trees, must be determined by the LPP.

Recent determinations by the LPP on 17 September 2024 included the construction of an awning on a contemporary building within a site containing a heritage item, and the internal fitout and use of a previously modified local heritage building as a dentistry.

In both cases, these applications were delayed by approximately four weeks to prepare reports for the LPP. There were no community or Council objections, and the works were fully supported by a Council-appointed heritage advisor. The LPP completed the meeting in just nine minutes, highlighting the minor nature of the applications—both of which were well suited for determination by Council staff.

The delay in determining these applications is inconsistent with the Environmental Planning and Assessment (Statement of Expectations) Order 2024, which sets obligations and timeframes for the determination of applications, including those to be determined by LPPs.

2. Clarification about the appropriate forum to determine the delegations.

Under section 2.20(8) of the EPA Act:

A local planning panel may delegate any function of the panel under this or any other Act (other than this power of delegation) to the general manager or other staff of the council…

The Act does not specify a forum in which to determine the delegations. Notwithstanding this the Local Planning Panels Direction – Operational Procedures issued under Section 9.1 of the Environmental Planning and Assessment Act 1979 annexed at “Attachment 6” dated 7 December 2022 sets out the following:

Schedule 1 – Operational Procedures

Part 3 Meetings and other business procedures

3.1 Role of chair

1. The chair is responsible for the management of the panel’s functions and operations including managing conflicts of interest.

2. The chair is to preside over panel meetings and other business.

3. The chair is to ensure the panel fully discharges its responsibilities under the Act, these operational procedures, and any other direction from council, and the code of conduct for local panel members in a timely manner.

The LPP at the 14 May 2024 meeting found an ordinary LPP meeting the appropriate forum to exercise the above mentioned powers to make a number of delegations.

3. Requiring agreement between the Principal Chair and Alternate Chairs.

There is no requirement for consultation between a Principal Chair and Alternate Chairs under the Environmental Planning and Assessment Act 1979, the Local Planning Panels Direction – Development Applications and Applications to Modify Development Consents dated 6 March 2024, or the Local Planning Panels Direction – Operational Procedures dated 7 December 2022.

Financial Implications

Nil.

Conclusion

Under the EPA Act, the LPP is currently required to consider all applications for locally listed heritage items. It is appropriate for the LPP to delegate its functions under section 2.20(8) of the EPA Act to the General Manager, Director City Strategy, and Manager City Development.

Enabling Council staff to determine minor applications for locally listed heritage items is expected to result in:

· Processing more routine applications, such as shop fitouts, signage, and homeowner applications, more quickly;

· Reducing the volume of minor applications being reported to the LPP;

· Shortening waiting times for applicants and owners; and

· Allowing the LPP to focus on more complex and controversial matters

Recommendation(s)

Under section 2.20(8) of the Environmental Planning and Assessment Act 1979, the Burwood Local Planning Panel resolves to delegate its determining functions on the following development types to the General Manager, Director City Development and Manager City Development:

1. Minor alterations and additions to a heritage item, being defined to include:

a) Maintains at least 90% of the significant heritage fabric; or

b) Does not adversely affect the heritage significance of the heritage item; and

c) Is supported in writing by Council’s appointed heritage advisor/expert.

2. Works to trees that are

a) Heritage listed; or

b) On a heritage site;

and, that

c) Affect less than (or equal to) 10% of the tree canopy; and

d) Will not adversely impact upon the health of the tree; and

e) Will not adversely impact upon the heritage significance of the tree or place; and

f) Is supported in writing by Council’s appointed heritage advisor/expert.