notice of rescission extraordinary meeting, 7/10/03

NOTICE OF RESCISSION Extraordinary Meeting, 7/10/03

ITEM NO: 1 SUBJECT: DLEP 2002 - REVIEW OF DEFERRED MAP BASED AND

MISCELLANEOUS MATTERS - RECOMMENDATION Z14.26 AND RELATED RECOMMENDATIONS CONCERNING THE ST COLUMBA’S SITE, 168 HAWKESBURY ROAD, SPRINGWOOD

FILE NO: C03150 By Councillors J Angel, J Egan, T Hamilton, C Kime and C Van der Kley:

“That the decision in relation to the matter of St Columba’s, made at the Extraordinary Meeting of Council held on 23 September 2003, be rescinded.”

Note by Councillors Angel, Egan, Hamilton, Kime and Van der Kley: Should this rescission motion be carried, it is the intention of the signatories to move the recommendations in the Business Paper at this meeting. Note by General Manager: The resolution in this regard, made at the Extraordinary Council Meeting of 23 September 2003, read as follows:

“10. That Council amend deferred recommendation Z14.26 and all related

recommendations for the St Columba’s site to read:

‘That the zoning of Living – Bushland Conservation on the St Columba’s site at 168 Hawkesbury Road, Springwood be removed and replaced with: (a) the Environmental Protection – General zone, for that part of

the site that is uncleared bushland and is within either the Grose River Conservation Area Sub Catchment under SREP 20 or within the Middle Nepean Sub catchment; and

(b) the Recreation – Private zone for that part of the site that is cleared land to the east of that Precinct be extended to that land to permit accessible housing.’”

PLANNING FOR A SUSTAINABLE FUTURE Extraordinary Meeting, 7/10/03

ITEM NO: 2 SUBJECT: DRAFT LEP 2002 - REVIEW OF ZONING AND MAP BASED

PROVISIONS FOR COUNCIL OWNED LAND FILE NO: C03150 Recommendation: That Council endorse the recommendations contained within the document “Review of proposed zonings of Council owned land” as the basis for guiding changes to the statutory map series of Draft LEP 2002. Report by Group Manager, City Sustainability: Methodology Since the close of exhibition of DLEP2002 Council has been progressively reviewing submissions received from both the public and from public authorities. One element of the review is to confirm, or adjust as appropriate, the zonings and related map-based provisions for both community and operational land owned by Council. In this regard, Council’s Corporate Property Management and Governance Branch of the Corporate Policy Group has provided input to the exhibited DLEP2002 and has, in the case of 24 individual sites, sought a further consideration of the zoning or map-based provisions applying to Council holdings. A preliminary review of these Council owned properties was undertaken by Council staff, consistent with the review process for all privately owned land. A preliminary report was then prepared in a similar format to that provided to Council when dealing with privately owned sites (Enclosure 1 to this Report). The report consisted of:

o A summary of the comments made in respect to that property; o Discussion on the issues raised in the submission for that property; and o A recommendation for either appropriate change to the zone/protected area

or retention of the zone/protected as exhibited. To ensure that this part of the review is transparent and objective, an independent planning company, ATP Planning was commissioned to scrutinise the methodology and outcomes of the preliminary review. In particular, the consultant was asked to ensure that the outcomes were consistent with the application of the zone criteria adopted by Council for DLEP2002, and to recommend any adjustments to the methodology and outcomes of the preliminary review if or where necessary.

PLANNING FOR A SUSTAINABLE FUTURE Item 2 - Extraordinary Meeting, 7/10/03

The recommendations in the preliminary review of map based and site specific matters relating to Council owned land have been endorsed by the consultant. The consultant’s report entitled “Review of proposed zonings of Council owned lands” is provided separately as Enclosure 2 to this Report, and incorporates discussion and findings for each of the sites nominated for review. Recommended changes to the Plan The changes in zoning identified by the preliminary staff review and endorsed by the independent review are as summarised below.

Address Current zoning Proposed zoning Recommended zoning

603a Great Western Highway Faulconbridge

9(d) Reservation Local Open Space

Living-Bushland Conservation

Environmental Protection-Open Space

219 Great Western Highway Warrimoo

6(a) Recreation Existing

Recreation-Open Space


16 Birdwood Avenue Winmalee

2(a1) Residential Recreation-Open Space


38-48 Gates Avenue Katoomba

6(e) Recreation Special Purposes

Environmental Protection-Open Space


Conclusion The recommendations arising from the review of zoning and map-based provisions affecting the nominated Council owned properties under DLEP 2002, as identified in the enclosed document to this report, are commended to Council.

PLANNING FOR A SUSTAINABLE FUTURE Extraordinary Meeting, 7/10/03

ITEM NO: 3 SUBJECT: DRAFT LOCAL ENVIRONMENTAL PLAN 2002 – FINALISATION

OF THE REVIEW PROCESS FILE NO: C03150 Recommendations: 1. That pursuant to Section 68(1) of the Environmental Planning and Assessment Act

1979 (as amended) (the Act), Council not hold a public hearing into Draft Local Environmental Plan 2002 (DLEP 2002) as it considers that the issues raised in submissions requesting a public hearing are not of such significance that they should be the subject of a hearing before Council decides whether and, if so, what alterations should be made to DLEP 2002.

2. That Council defer those matters identified in Attachment C to this report,

including the proposed new bushfire provisions, from DLEP 2002 for the purpose of public re-exhibition of the alterations made in respect of those matters.

3. That, other than the matters identified in 2 above Council formally adopt the

recommendations endorsed as the basis for guiding changes to DLEP 2002 at its Ordinary Meetings of 10 June, 15 July, 26 August, 9 September and 30 September 2003 and its Extraordinary Meetings of 22 July, 12 August, 16 September (as continued on 23 September) and 7 October 2003 for the purpose of revising DLEP 2002.

4. That pursuant to Section 68 of the Act, the revised DLEP 2002 be forwarded to the

Minister for Infrastructure, Planning and Natural Resources, together with the required report and supporting documentation, requesting that the revised DLEP 2002 be made.

5. That a revised clause relating to the “No Subdivision” notation be incorporated

into the revised DLEP 2002 reflecting the altered intention of Council to apply the notation in specific circumstances where development is not to be further intensified or is to be the subject of more detailed planning for a site. Further, that the revised “No Subdivision” notation be applied to 39, 40 and 49 Ninth Avenue, Katoomba (in line with Council’s previous resolution), 14 – 24 Maidment Road, Katoomba and the existing RAAF base at Lapstone.

6. That Council delegate authority to the General Manager to undertake and

authorise such incidental changes to the revised DLEP 2002 as may be required for the purpose of legal drafting and other requirements of the Director-General to facilitate gazettal of the revised DLEP 2002 where those changes do not affect the intent or substance of the revised DLEP 2002.


7. That Council delegate authority to the General Manager to make any incidental

changes to Schedule 7, Map Panel C and the Heritage Register as part of the revision of DLEP 2002 where those changes do not affect the listing of a property as a heritage item.

Report by Group Manager, City Sustainability: Background In accordance with Council’s resolution of 10 September 2002 and s66 of the Environmental Planning and Assessment Act, 1979 (the Act), Blue Mountains Draft Local Environmental Plan 2002 (DLEP 2002), together with a range of supporting documentation, was placed on public exhibition between 16 October and 13 December 2002. Further, under delegated authority pursuant to Council’s resolution of 3 December 2002, the period within which public submissions on DLEP 2002 could be received was extended until 17 January 2003. The public exhibition of DLEP 2002 has represented an important element of the intensive public process commencing in 1994 with the development and exhibition of EMP 2. DLEP 2002 has built on previous inputs from the community through: • The preparation and public exhibition of DLEP 1997; • the public hearing into DLEP 1997 and Commissioner Carleton’s 1999 report; • the extensive program of collaboration and consultation with key community, industry

and stakeholder reference groups to develop and test a wide range of concepts and approaches to DLEP 2002; and

• the extensive collaboration with some 3,750 people from local communities in the design based workshops for Stage 2 of DLEP 2002 for the core village areas.

The public exhibition of DLEP 2002 was undertaken in strict accordance with the requirements of the Act. Those requirements were also enhanced to improve the accessibility of the exhibition to the community. The exhibition of DLEP 2002 comprised the following key elements: • A mail-out to all property owners in the DLEP 2002 area advising of the purpose and

details of the exhibition; • An extensive publicity campaign both prior to and during the exhibition comprising

statutory and non statutory notifications and a series of articles related to each of the key planning principles underpinning DLEP 2002;

• Two (2) public meetings immediately prior to the commencement of the public exhibition to introduce and explain the structure, concepts, tools, application and operation of DLEP 2002;

• Full statutory exhibitions at the Katoomba and Springwood Business Information Centres;

• Non-statutory displays at the Blackheath; Katoomba, Lawson, Springwood and • Blaxland Branch Libraries; and • The non-statutory DLEP 2002 web site;


The level of community interest and engagement in the exhibition process for DLEP 2002 has been significant with over 6,500 people attending the statutory and non-statutory exhibition venues and 6,100 people accessing the exhibition either through the DLEP 2002 web site or direct meetings with Council staff. In addition, Council staff provided detailed briefings on request from a number of interest groups including: • Biznet • the Builder’s and Developer’s Forum • Blackheath Chamber of Commerce • SWAG • Blue Mountains Hotel School of Management • RAID • Blue Mountains Access Committee • Blue Mountains Conservation Society • Katoomba High School P&C Council staff also held separate meetings with a wide range of individuals, submitters, organizations, Government and semi-government authorities on request during the exhibition period as well as in the months since the exhibition concluded to discuss various aspects of DLEP 2002. In response, Council received a total of 1,404 formal submissions to the exhibition of Draft LEP 2002 from the broader community. From the submissions received, support for DLEP 2002 from the community was relatively strong. 51.9% of submissions expressed support for the DLEP. 42.5% of submissions received raised objection to one or more elements of DLEP 2002 and 5.5% of submissions were neutral and typically dealt with matters unrelated to the draft plan. Of those submissions raising an objection to elements of DLEP 2002, 57 % (or 24.2% of all submissions received) related exclusively to the permissibility of Proprietary Food Outlets (PFOs). The remaining 18.2% of submissions received raised objection to one or more other aspect/s of the draft plan. However, one of the key features of the public response to DLEP 2002 is that only 4.3% of submissions received sought major changes to the draft plan. A further 17.1% of submissions received specifically request that no changes be made to DLEP 2002 while the remaining 78.4% of submissions received sought minor or individual changes to DLEP 2002 As part of the exhibition process, DLEP 2002 and the associated documentation were referred to some 56 government authorities, semi government organizations, surrounding councils and representative aboriginal groups for comment. This process built on the extensive consultation with public authorities undertaken in developing DLEP 2002 in accordance with s62 of the Act. A total of 21 submissions were received from public authorities and follow up liaison with public authorities has been undertaken since the conclusion of the exhibition.


This has particularly included liaison with the Rural Fire Service regarding the need for and nature of new provisions within the DLEP to reflect the new bushfire legislation. Both in the development of DLEP 2002, and since the commencement of the exhibition, extensive testing of the provisions and application of the draft plan against current development applications has been undertaken by Council’s Environmental and Customer Services and City Sustainability Groups. Amongst other benefits, this work has provided valuable information regarding the need for any refinements to ensure that the objectives of DLEP 2002 can be achieved while at the same time allowing practical application of the provisions so that they are not unreasonably onerous. The DLEP 2002 Review Process Based on a report to its Ordinary Meeting of 20 May 2003, Council embarked on a staged process of reviewing the matters raised in submissions and identifying any refinements required to DLEP 2002 in response to submissions and/or to improve the operation of the draft plan. The review process has been one of the most rigorous and intensive applied to any City-wide local environmental plan in NSW. It has involved, but has not been limited to:

• 16 Councillor briefing sessions on both the major elements of the review and specific matters arising from submissions;

• A program of Councillor site visits to see and discuss a range of site specific and general planning issues emerging from submissions and the review process;

• 14 formal Council reports on both the major elements of the review and specific matters arising from submissions;

• The obtaining of additional legal advice and input from government authorities on key matters; and

• A substantial number of meetings and further liaison with submitters, land owners, government authorities and community interest groups.

As a result of the review of DLEP 2002, Council has, progressively, endorsed over 1,127 detailed recommendations covering some 6,500 matters raised in submissions related to:

• Parts 1 and 2 of the written instrument to DLEP 2002; • Parts 3 and 4 of the written instrument to DLEP 2002; • Map based and site specific matters; • A range of miscellaneous matters; and • The application of Accessible Housing Areas.

In addition, Council will be considering a number of additional recommendations elsewhere on this business paper relating to the zoning of a small number of Council owned sites.


As part of this process, Council has endorsed 81 alterations to clauses within the DLEP written instrument and 78 alterations to the DLEP 2002 maps in response to map based and site specific matters. A table identifying the alterations endorsed by Council (excluding those recommended elsewhere on this business paper) is included as Attachment A to this report. Nature of alterations to DLEP 2002 endorsed by Council As identified variously in reports to Council regarding the review of DLEP 2002, the guiding principles of the review process have been to:

• respond appropriately to matters raised in submissions by both the community and public authorities; and

• introduce an appropriate degree of flexibility and responsiveness to allow DLEP 2002 to be applied more practically through the development assessment process and result in better design solutions,

while maintaining the outcomes, objectives and operation of the draft plan This approach has been maintained and is reflected in the alterations endorsed by Council. In this regard, the key features of the alterations endorsed by Council can be summarised as follows: Alterations to clause based provisions within Parts 1 to 4 of the written instrument 67 or 83% of the alterations endorsed by Council related to the provisions of the written instrument:

• involve minor alterations to clarify wording or operation of clauses; or • to improve interpretation of those clauses; or • to maintain consistency with other clauses or government authority/legislation

wording; or • to clarify relevant linkages between clauses; or • to introduce an appropriate degree of flexibility in the application of clauses.

These have no effect on the role, operation or purpose of the clauses nor the outcomes sought for development. 11 or 14% of the changes endorsed by Council have involved more substantial alterations to:

• improve and simplify the construction of the clauses to make them easier to understand and apply (eg Clause 55 – Site disturbance and erosion control); or

• improve the practical application of the clauses through the development assessment process (eg alterations to Clause 43 – Environmental impact); or

• reinforce the objectives sought by DLEP 2002 but provide some additional flexibility within the framework established by those objectives (eg added flexibility within the available 40% ceiling of site cover requirements for the Living – Conservation and Living – Bushland Conservation zones); or

• remove redundant clauses as a result of changes to other parts of the provisions (eg deletion of the “No Subdivision” notation in light of the minor changes to Clause 83 – Provision of services for subdivision).


Again, these alterations have no effect on the role, operation or purpose of the clauses nor the strategic outcomes sought for development. 2 or 3% of the changes endorsed by Council (excluding changes to the bushfire provisions discussed separately below) involve more material changes to the permissible of land uses within zones through changes to Clause 32 – Land use matrix. These relate to the prohibition of sex establishments within all zones within the City and the inclusion of a newly defined land use of “holiday let” and its identification within the land use matrix as permissible in all zones where a dwelling house is permissible. These changes introduce substantive changes in relation to those matters and may be of interest to the public. For the purpose of discussion later in this report regarding the re-exhibition of DLEP 2002, a number of matters/sites for which more material alterations have been endorsed by Council have been listed at Attachment C to this report. Alterations to zonings or other map based provisions These alterations have been the subject of specific resolutions of Council and should be distinguished from any consequential changes to zones etc discussed separately below. 63 or 81% of the changes endorsed by Council have been minor alterations to zonings or map based provisions. These alterations:

• have been made in response to submissions; • meet the objectives of DLEP 2002 and the relevant zone and other related criteria;

and • are beneficial to owners.

These alterations would not be expected to have any consequential or flow on effects that will be detrimental to adjoining owners or the community. 15 or 19% of the changes endorsed by Council have been more substantive changes either in response to;

• submissions from owners; • submissions by parties other than the land owner/s; or • reassessment or recommended changes either by Council or staff as part of the

DLEP 2002 review process. In some of these cases, the outcome will be of interest to the public or adjoining owners. In other cases, land owners may not be aware of those changes nor had the opportunity to comment on the proposed changes to date through the exhibition process. Again, for the purpose of discussion later in this report regarding the re-exhibition of DLEP 2002, a number of matters/sites for which more material alterations have been endorsed by Council have been listed at Attachment C to this report.


Alterations to Accessible Housing Areas In response to the review of Accessible Housing Areas, alterations to either add or delete certain parts of the Accessible Housing Areas of the following villages have been endorsed by Council:

• Blackheath • Lawson • Hazelbrook • Springwood • Blaxland • Winmalee

While some of these changes have been made in response to submissions, not all have. Further, where Accessible Housing Areas have been either added or deleted from properties, owners of the land subject to those changes may not be aware of those changes and may wish to make comment on the endorsed changes. For the purpose of discussion later in this report regarding the re-exhibition of DLEP 2002, the more material alterations to the Accessible Housing Areas endorsed by Council have been listed at Attachment C to this report. Consequential Changes In a very limited number of cases, changes to zones or zone boundaries endorsed by Council will have a flow on effect to adjoining properties. The principal example of these consequential changes is where Council has endorsed a change to the location of a boundary between an Environmental Protection – General zone and an adjoining zone (usually Living – Bushland Conservation zone) and that change requires a consequential change to the matching boundary on one or more adjoining properties to properly reflect or transition the location of the zone boundaries on the ground. In these cases, the modification of the zone boundaries will likely be considered by the adjoining owners as beneficial. However, there is the need for the adjoining owners concerned to have the opportunity to view and/or comment on those changes. Therefore, reference to sites affected by these consequential changes has, as with the other categories covered above, been included in Attachment C to this report for the purpose of later discussion on re-exhibition of DLEP 2002. New Bushfire Provisions The review of the exhibited clauses within DLEP 2002 to respond to the new bushfire legislation is discussed in detail in a separate report elsewhere within this business paper. The alterations required to the bushfire clauses would introduce a range of new controls to be incorporated into DLEP 2002. It should be noted that under the new bushfire legislation, the provisions of Planning for Bushfire Protection and the RFS approved local guidelines for infill development currently apply to the Blue Mountains irrespective of local planning provisions.


The primary template for the review of bushfire provisions in Draft LEP 2002 is the s.117 Ministerial Direction G20 (Planning for Bushfire Protection), which was directed on 5 July 2002. As with other Directions of the Minister under the EP&A Act 1979, a local environmental plan is to comply with the provisions of a relevant Direction. However, a council may argue that its inconsistency with a Direction is justifiable in the circumstances, with the Director - General and finally the Minister having the final discretion to permit an inconsistency to occur. In addition to this, and importantly for Draft LEP 2002, Ministerial Direction G20 states that should Council not comply with the specific provisions of bushfire protection as listed in G20 a special approval is required. In effect, Council must obtain written advice from the Commissioner of the NSW Rural Fire Service that the NSW RFS does not object to the non-compliance, as it relates to the progression of Draft LEP 2002. At face value, this would appear to limit the ability of a council to alter its response to bushfire protection to meet local needs, without the endorsement of the NSW RFS. Both during the exhibition of DLEP 2002 and since the conclusion of exhibition, Council staff have been liaising with the Rural Fire Service (RFS) to develop an appropriate new set of bushfire provisions for DLEP 2002. The detail of the proposed provisions and the liaison with RFS was presented in the separate report to Council’s Ordinary Meeting of 30 September 2003. The proposed provisions address the requirements of Ministerial Direction G20. However, it should be noted that the new provisions incorporate appropriate departures from the provisions of Planning for Bushfire Protection. These departures will need to be endorsed by the Commissioner of RFS. Whilst it is expected that such endorsement will be forthcoming, liaison with the RFS to date indicates that further departures are unlikely to be endorsed. Should this be the case, pursuant to Ministerial Direction G20, Council will not have discretion to further alter the proposed provisions other than through direct appeal to the Minister of Infrastructure, Planning and Natural Resources. This matter has important implications for Council’s decisions on re-exhibition of DLEP 2002 either in part or in whole, discussed later in this report. For the purpose of that discussion, the changes to the bushfire provisions for DLEP 2002 have been identified in Attachment C to this report. Process for Finalising DLEP 2002 The process for finalising DLEP 2002 is largely governed by Section 68 of the Act and the Regulations thereto and the interpretation of the Act by the Courts in relation to the LEP process. With the consideration of the zoning of a number of parcels of land owned by Council and the proposed new bushfire provisions, Council has now completed the preliminary review of DLEP 2002 in response to the exhibition. In line with the process identified on 20 May, and in order to satisfy its responsibilities under the Act, Council must now make decisions on the following matters to progress DLEP 2002 to finalisation:

• Determine whether to hold a further public hearing into DLEP 2002 and, if so the nature and extent of that public hearing.

• Determine whether to re-exhibit DLEP 2002 in whole or in part.


• Identify any matters that should be deferred from the provisions of DLEP 2002 • Adopt the alterations to be made to DLEP 2002, either in whole or in part, to enable

DLEP 2002 to be revised. • Forward the revised DLEP 2002 to the Minister pursuant to s68 of the Act

Public Hearing

That part of Section 68 of the Act dealing with public hearings requires that:

“68. (1) Where:

(a) a person making a submission so requests; and (b) the council considers that the issues raised in the submission are of

such significance that they should be the subject of a public hearing before the council decides whether and, if so, what alterations should be made,

the council shall, in the prescribed manner, arrange a public hearing in respect of the submission.

(2) A report of the public hearing shall be furnished to the council and the

council shall make public the report. (3) The council shall consider the submission and the report furnished pursuant

to subsection (2) and may make any alterations it considers necessary to the draft local environmental plan arising from its consideration of submissions or matters raised in any public hearing.

(3A) An alteration made by a council pursuant to subsection (3) need not relate to

a to a submission.” From s.68(1)(b) it is clear that the decision on whether to hold a public hearing is one for Council. This is confirmed in the judgement on John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning and Others in relation to LEP 1991 Amendment 25. In that case, the applicant submitted that Council was obliged to hold a public hearing. However, the judge identified that:

“Section 68(1) of the Act gives council a broad discretion to determine whether a public hearing is necessary and whether the issues raised in any submission are of such significance as to warrant the holding of a public hearing…

The applicant refers to the report considered by Council on 12 May 1998 which recommended that requests for a public hearing not be granted since the report ‘addressed the issues of significance raised in the submissions’. Council accepted the recommendations not to hold a public hearing.


There is a distinction to be drawn between the phrases ‘matters of significance raised in the submissions’ (as used in the report) and issues that are of ‘such significance that they should be the subject of a hearing’ (s68(1)(b)). There is no necessary correlation. Whilst issues of significance may have been raised in submissions, that does not mean that they necessarily comprise issues of such significance as to require Council to hold a meeting. The Council retains the discretion as provided by s68. It could not be said that the exercise of its discretion was fundamentally erroneous. Accordingly, this ground of challenge fails.”

However, it is also clear that in reaching any decision not to hold a public hearing, Council must formally consider any request for a public hearing made by a person making a submission/s and must base its decision on the significance of the issues raised in submission/s. Whilst DLEP 2002 has been developed substantially in response to the previous public hearing into DLEP 1997 and Commissioner Carleton’s report and recommendations on the public hearing, the Act does not relieve Council of its responsibilities under s.68 to consider requests for a further public hearing.

From the 1,404 submissions received on DLEP 2002, ten requests for a public hearing have been made. Conversely, 238 submissions have requested that:

• DLEP 2002 proceed without delay; • There be no further public hearing/s; • There be no re-exhibition; and • Minor details and variations should be dealt with without re-exhibition of the draft

plan and, if necessary, addressed as an amendment to the plan once it is gazetted.

In considering requests for a public hearing, Council essentially has two (2) options as follows:

a) Council can determine now that the matters raised in the submissions requesting a public hearing are not of such significance that they should be the subject of a public hearing before Council decides whether and, if so, what alterations should be made to DLEP 2002; or

b) Council can determine now that the matters raised in one or more of the submissions requesting a public hearing are of such significance that they should be the subject of a public hearing before Council decides whether and, if so, what alterations should be made to DLEP 2002 and resolve as to the timing of any public hearing.

Where Council is inclined to hold a public hearing, Council will need to consider whether the public hearing is limited to the matters raised in submissions requesting the public hearing (as identified under the Act) or whether the scope of any public hearing should be expanded to include any additional matters. Council gave consideration to whether or not to hold a further public hearing at its Ordinary Meeting of 20 May 2003. At that meeting, Council resolved to defer its decision on whether to hold a further public hearing until the review of DLEP 2002 was completed.


As part of the report to that meeting, the details of the relevant submissions and a summary of the issues raised in each submission relating to the request for a public hearing were provided and full copies of each submission requesting a public hearing was provided separately to Councillors. The summary of submissions requesting a public hearing is again provided at Attachment B to this report. In determining its preferred option, the following matters are worthy of Council’s consideration:

• During the review of DLEP 2002 the matters raised in the submissions requesting a public hearing have been considered in detail by Council;

• In all but 3 cases, the matters raised in submissions requesting a public hearing were deferred by Councillors for further detailed consideration at the various Extraordinary Meetings of Council relating to DLEP 2002;

• All submitters were advised in advance in writing of the dates of Council’s Ordinary and Extraordinary Meetings related to the relevant matters. In 3 cases, those parties requesting a public hearing have taken the opportunity to address Council at the relevant Extraordinary Meeting on the matters raised in their submissions or related matters; and

• In 4 cases, Council has satisfied the submitter’s request, either in part or in full, through its endorsed recommendations on the relevant matter/s.

Attachment B also identifies Council’s endorsed recommendation in each of the matters raised in submissions requesting a public hearing. The relevant review sheets and Council’s endorsed recommendations in respect to the matters raised in those submissions are referenced in Attachment B and are provided in full at Enclosure 1 to this report. Attachment B also provides comments on whether the matters raised in the identified submissions are of such significance as to require a further public hearing before Council decides whether and, if so, what alterations should be made to DLEP 2002. It is clear that Council has given detailed and individual consideration to the matters raised in submissions requesting a public hearing. In a number of cases, Council has also given considerable detailed consideration to related matters such as the extent and location of Accessible Housing Areas. It is therefore considered that the matters raised in the identified submissions are not of such significance as to require a further public hearing before Council decides whether and, if so, what alterations should be made to DLEP 2002.

It will therefore be recommended that Council not hold a further public hearing. Re-exhibition

Section 68(3B) of the Act provides that:

“68(3B) The council may (but need not) give public notice of and publicly exhibit,

wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). The provisions of this section and sections 66 (in relation to the public exhibition of a draft LEP) and 67 (in relation to the making of submissions), with any necessary adaptations, apply to any such exhibition of a draft plan, but not so as to require a further certificate under section 65.”


At face value, s.68 (3B) provides that the decision to re-exhibit the whole or part of a draft LEP that has been altered is one for Council. However, case law, including John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning (1999) in respect of LEP 1991 Amendment 25 establishes that where alterations to an exhibited draft LEP are substantive to the operation of the plan, the whole or relevant parts of a modified draft plan “should (be) re-exhibited to fulfil the important public participation objectives of the Act which (are) essential to ensure transparency and fairness in the plan making process”. That view has been reinforced in correspondence to all councils by PlanningNSW. The central issues related to the need for re-exhibition in the case of Amendment 25 were that, following the initial exhibition, Amendment 25 underwent substantial change. That change significantly altered the way in which Amendment 25 operated and how the provisions were applied to the development of land. Additionally, those changes were of such a nature as to make the provisions of the plan more onerous for land owners and/or applicants for development than was the case under the exhibited draft plan. The fact that the alterations to Amendment 25 were not re-exhibited meant that fairness and transparency could not be seen to have applied as interested parties were not provided the opportunity to make submissions on those more onerous altered provisions.

From this and the other observations of the Court in relation to John Brown Lenton, the tests that need to be applied in determining whether to re-exhibit part or all of a draft LEP are:

a) Have the alterations made to the draft LEP been substantive to its operation? In other words, is the plan substantially the same plan (achieving the same objectives and outcomes) following alteration?

b) Are the altered provisions more onerous than those originally exhibited? In other words, what has been the likely impact of the changes for owners and/or applicants for development?

c) Has procedural fairness been applied in relation to the alterations made to the plan? In other words, have those parties likely to be adversely affected by the changes been given the opportunity to make submissions in respect of those changes?

As identified earlier in this report, alterations to DLEP 2002 have been endorsed in response to issues raised in submissions from the public and/or public authorities, new legislation and to improve the practical application of some provisions. In determining whether to re-exhibit DLEP 2002 in part or in whole, the above tests need to be applied. In so doing, it is useful to consider the bulk of DLEP 2002 and the proposed alterations to the bushfire clauses separately. Balance of DLEP 2002 With regard to the bulk of DLEP 2002, the nature of the endorsed alterations relative to the above tests is as follows:


Have the alterations made to the draft LEP been substantive to its operation? From the above discussion regarding the nature of the alterations endorsed by Council, it is clear that, other than with regard to the matters/sites identified in Attachment C to this report, the alterations proposed retain the nature, purpose and operation of the exhibited plan. With regard to the changes to the written instrument, the structure of the plan, the nature of the objectives of the plan, zones, protected areas and precincts as well as the individual provisions designed to deliver those objectives have been retained. The alterations endorsed by Council have served only to improve or clarify the wording and practical application of the provisions of the draft plan as exhibited. Again with the exception of sites identified at Attachment C to this report, alterations to the zoning or mapped based provisions that have been endorsed by Council have been made to either address an anomaly in the application of zones etc or specific requests raised in submissions. In each case, those alterations are consistent with the relevant adopted zone or map based provision criteria, do not alter the land use structure established as the basis for DLEP 2002 nor will they have implications for adjoining owners or the broader community. Are the altered provisions more onerous than those originally exhibited? With the possible exception of some of the alterations to permissible uses and the zoning etc of some sites identified at Attachment C to this report, the alterations endorsed by Council have not made the provisions of DLEP 2002 more onerous. The alterations have been made in response to submissions and the broader review process. They serve to introduce an appropriate degree of flexibility to the provisions of the draft plan and improve the clarity, practical application and interpretation of the provisions. With regard to the zoning of land, the endorsed alterations have, in part or in full, satisfied requests made by submitters. In so doing, the alterations endorsed by Council are beneficial to owners of land, applicants for development and other users of DLEP 2002. Has procedural fairness been applied in relation to the alterations made to the plan? As identified in discussions earlier in this report, both the exhibition of DLEP 2002 and the post-exhibition review of DLEP 2002 have been highly rigorous and accessible to the public. Again with the possible exception of the matters identified at Attachment C, the alterations endorsed by Council have not changed the outcomes sought by DLEP 2002 nor have the various planning tools and provisions within DLEP 2002 been changed other than to improve the clarity and practical application of the draft plan. With regard to the matters identified Attachment C, the owners of the land the subject of specific alterations to zoning etc as well as other interested parties may not be aware of those changes and the opportunity to do so would need to be made available for this test to be satisfied. Likewise, some of the changes to the permissibility of certain land uses are considered to be materially different to the case under the exhibited draft plan. Again, for the important public participation objectives of the Act to be met, it would be necessary to seek public comment on the proposed alterations.


New Bushfire Provisions An assessment of the proposed alterations to Draft LEP 2002 arising from the requirements of Planning for Bushfire Protection, as they relate to the above tests, is as follows: Have the alterations made to the draft LEP been substantive to its operation? The proposed bushfire provisions maintain Draft LEP 2002’s core principle of achieving a balance between protecting life and property from the impact of bushfire and the conservation of the natural environment. However, the provisions represent a comprehensive review of bushfire planning under Draft LEP 2002, which had previously followed the model of the Building in Bushfire Prone Area DCP No. 26, as adopted by Council in 1997. Looking at Draft LEP 2002 in isolation, the provisions alter a range of clauses relating to the assessment of the threat of bushfire, through to the asset protection zones and the measures needed to protect various types of development against bushfire attack. It is important to note, however, that from 1 August 2002 the Rural Fire and Environmental Assessment Legislation Amendment Act 2002 brought in a new scheme for the consideration of bushfire for development in the Blue Mountains, as it did for other bushfire prone areas elsewhere in NSW. The proposed new bushfire provisions of Draft LEP 2002 do not represent a significant change from the provisions operating currently under s.79BA of the Act and s 100B and 100C of the Rural Fires Act 1997. As Draft LEP 2002 had previously called up bushfire protection as a primary consideration, and the proposed amendments reflect the new legislation and requirements for current DA assessment, the alterations to Draft LEP 2002 are not considered to substantially alter its operation. Are the altered provisions more onerous than those originally exhibited? The provisions are, in some instances, more onerous than those previously exhibited as part of Draft LEP 2002. However, in light of the legislative changes outlined above, the proposed provisions are not more onerous than the current requirements for the assessment of bushfire under the relevant State legislation. In fact, the proposed provisions are aimed at making the State legislation more workable at a local level and providing appropriate flexibility to meet the circumstances of particular sites. Has procedural fairness been applied in relation to the alterations made to the plan? Unlike other changes made to Draft LEP 2002, a Ministerial Direction directly governs the preliminary bushfire provisions. Any alteration to these provisions requires express permission of the Rural Fire Service. In addition, the content of the provisions are pre-ordained by State legislation and are in effect irrespective of the changes to Draft LEP 2002.


In terms of public participation in policy making, this provides a significant challenge. The provisions of s.66 of the Act indicate that, should a Direction apply to land subject of a draft plan, a statement is to be made that the Direction substantially governs the content and operation of the draft plan and that any submission made is to have regard to that Direction. This is particularly the case for Ministerial Direction G20, as it is governed in addition by approval from the Commissioner of the NSW RFS before any change could be permitted. This mirrors the nature of the direct legislative intervention for bushfire planning via the Act and the Rural Fires Act 1997. Other than exhibiting the provisions for educational and information purposes, the ability for Council to consider and fully respond to the submissions will be somewhat limited. The current legislation has undermined, to some extent, the usual principles of procedural fairness that would otherwise be applied to local plan preparation, in preference for ensuring a comprehensive and standard response to bushfire. In terms of DLEP 2002 then, it becomes questionable that procedural fairness would be substantially reduced if the provisions were not publicly exhibited. However, there may be benefit in providing for the exhibition of the provisions, so that any concerns and suggestions made by the public could be incorporated into the plan making process, even if these suggestions did not make a material change to the provisions of Draft LEP 2002. Options for Re-exhibition Pursuant to s68(3B) of the Act, the options available to Council are as follows: A. Council could resolve to re-exhibit DLEP 2002 in full incorporating the alterations

endorsed by Council, including the new bushfire clauses; or B. Council could resolve to re-exhibit part of DLEP 2002. In its purest sense, this

would involve delaying the adoption of the balance of the revised DLEP 2002 and forwarding it to the Minister until Council has considered submissions in relation to the re-exhibited parts of the draft plan; or

C. Council could resolve to exclude certain provisions and/or sites from DLEP 2002 as deferred matters pursuant to ss68(5) and 68(6) for the purpose of re-exhibition of the deferred matters. This would enable the balance of DLEP 2002 (as revised in line with the alterations endorsed by Council) and to be forwarded to the Minister. Once the deferred matters had been re-exhibited and Council had considered submissions, the revised deferred matters could be adopted by Council and forwarded to the Minister to be incorporated into DLEP 2002 either prior to the gazettal of DLEP 2002 or as an early amendment to a gazetted DLEP 2002;or

D. Council could resolve not to re-exhibit DLEP 2002 either wholly or in part. In this case, Council would adopt the alterations endorsed to date as the basis of a revised DLEP 2002 and forward it to the Minister for gazettal

In deliberating on this matter, Council will need to consider, amongst other things, the following matters:

• DLEP 2002, incorporating the alterations made in response to submissions, has been the product of an extensive and intensive public process that has taken place since 1994 as identified earlier in this report;


• Whether the nature and extent of alterations to the exhibited DLEP 2002 in

response to submissions is sufficient to warrant re-exhibition as discussed above; • The relative public benefit of replacing the current outdated LEP 4 as soon as

possible versus the need to further contain the risk of potential challenge to the plan by extending the public process to re-exhibition;

• The expectations of Planning NSW in light of the John Brown Lenton findings; • The fact that the proposed new bushfire provisions will not have been viewed by

the community versus the fact that Council has limited discretion in the content and application of the new bushfire provisions. In this case, re-exhibition of Draft LEP 2002 may incorrectly raise community expectations that Council could alter the provisions in response to public submissions.

In light of these considerations, the relative advantages and disadvantages of each option is discussed separately below. Option A Option A provides the greatest level of protection available under the Act to challenge in the Courts in relation to the LEP process undertaken by Council. It would ensure that the public has a further opportunity to comment on any part of DLEP 2002 including the changes endorsed by Council through the review process. However, in view of the nature of the alterations endorsed by Council in all but a very limited number of cases in relation to the tests flowing from the John Brown Lenton findings, the full re-exhibition of DLEP 2002 is considered unnecessary to ensure that procedural fairness has been afforded to the community. Further, the nature and extent of a comprehensive re-exhibition will result in substantial delays in finalising DLEP 2002. This is significant as it is important to replace the current provisions of LEP 4 as soon as possible to improve the outcomes of development within the City through the more contemporary controls available through DLEP 2002. Option B Option B would see the matters identified by Council (such as those identified at Attachment C) placed on public exhibition to ensure that procedural fairness has been applied. The balance of DLEP 2002 would be held in abeyance pending Council’s consideration of submissions in respect of the re-exhibited matters. This approach has the advantage that once Council has considered submissions and made any consequential alterations to the exhibited matters, those matters can be incorporated into the balance of DLEP 2002 and the entire plan can be forwarded to the Minister for gazettal as an integrated package. However, given the limited scope of the matters that would need to be re-exhibited to ensure procedural fairness is achieved, the delays in forwarding the balance of DLEP 2002 are considered unnecessary. Given the nature of DLEP 2002, the work required by Planning NSW to review the draft plan, consult with relevant government authorities and prepare the necessary reports to enable the Minister to consider and gazette the plan could quite reasonably take between 3 –6 months. The time available during the re-exhibition of the identified matters could be used more productively if the balance of DLEP 2002 was adopted by Council and forwarded to the Minister to enable the bulk of the work leading to gazettal to be progressed.


Option C Option C would see the matters identified by Council (such as those identified at Attachment C) deferred from DLEP 2002 pursuant to ss68(5) and 68 (6) of the Act to enable those matters to be re-exhibited. This would ensure that procedural fairness has been applied in respect of those matters, thus satisfying the relevant test arising from the John Brown Lenton findings. It would also enable the balance of DLEP 2002, incorporating the alterations endorsed by Council, to be adopted and forwarded to the Minister. In turn, this would make best use of the time involved with the re-exhibition of the deferred matters to progress the balance of DLEP 2002 through the Department and facilitate its gazettal in a timely fashion. Given the time required for Planning NSW to process the draft plan for gazettal, it is most likely that the deferred matters could be re-exhibited, submissions considered and the revised clauses/matters forwarded to the Minister in a timeframe that would allow the deferred matters to be incorporated into the principal instrument prior to gazettal. It should be noted that s68(5) requires that Council may:

“…exclude certain provisions of the draft plan or exclude part of the land from the draft plan, or both (in this section referred to as “the deferred matter”) which, in its opinion, require or requires further consideration but which should not prejudice the consideration by the Director-General and the Minister of the draft plan as submitted.”

Under Option C, should Council resolve to defer the new bushfire clauses for the purpose of public exhibition, this would not prejudice the consideration by the Director-General or the Minister of the draft plan as, whilst these are important provisions in the context of the draft plan, the provisions of Planning for Bushfire Protection prevail in any case until the revised bushfire provisions come into force through the gazetted DLEP 2002. Option D Option D would see Council resolve not to re-exhibit DLEP 2002 either in part or in full and to forward a revised draft plan to the Minister for gazettal. This option would incur the minimum delays enabling DLEP 2002 to proceed through the gazettal procedures at the earliest possible time. Given the limited discretion available to Council to further alter the new bushfire clauses and the relatively minor nature of the alterations endorsed by Council, including those matters identified at Attachment C, this option has some attraction in that it would enable the current provisions of LEP 4 to be replaced at the earliest possible time. However, in light of the John Brown Lenton findings this option would leave DLEP 2002 vulnerable to challenge on the grounds that procedural fairness had not been applied in respect of, as a minimum, those matters identified at Attachment C.


Recommended Approach In light of the above discussion, Option C would appear to offer the dual advantages of minimal time delay in progressing DLEP 2002 to finalisation while satisfying the tests of procedural fairness established in the John Brown Lenton findings. Consequently, it will be recommended that Option C be adopted by Council as the basis for the finalisation of DLEP 2002. Should Council adopt Option C, it will be necessary for Council to determine what matters it wishes to defer for re-exhibition and, in particular, whether it wishes to defer the proposed new bushfire provisions for that purpose. In light of the above discussions related to the nature of alterations to DLEP 2002 endorsed by Council, it will be recommended that the matters identified in Attachment C to this report be deferred for the purpose of re-exhibition in line with Option C. However, as discussed above in relation to the tests for re-exhibition related to the new bushfire provisions, the decision whether to defer those provisions for re-exhibition is not as straight forward. Given the lack of discretion Council will likely have to further alter the new provisions in response to submissions, the public may view the re-exhibition of the provisions somewhat cynically.

In this regard, Council could take the view that, as it has limited ability to make further changes, the interests of the local community are best served by not placing the provisions on public exhibition. Rather, they may be best served by incorporating the new provisions within the revised DLEP 2002 in the shorter term to ensure that this important area of control is adequately covered in the draft plan and to facilitate the flexibility of the new provisions that is not currently available under Planning for Bushfire Protection. Alternatively, Council may form the view that it is important to exhibit the new provisions principally so that the community is aware of their content. Submissions received could then be promoted as a measure of public opinion on the new legislation to inform any further debate with Government on the matter. However, should Council wish to exhibit the new bushfire provisions, it will be important that a notice accompany the exhibition clearly advising the public of Council’s limited ability to make changes in response to submissions, at least in the shorter term. From a planning perspective there is normally a bias in favour of extending opportunities for the community to participate in cases such as this. However, the limitations on being able to respond appropriately to public submissions somewhat negates the usual advantages of the public process. Nonetheless, in light of the expectation generated within the community at the time of public exhibition that any revised bushfire provisions may be re-exhibited and to ensure that the test of procedural fairness is met, it will be recommended that the proposed new bushfire provisions be deferred from DLEP 2002 for the purpose of re-exhibition. Consequently, the new bushfire provisions have been included in Attachment C as one of the matters that are recommended for deferral and re-exhibition.


Section 70 of the Act Section 70 of the Act sets out the procedures and authorities of the Minister in the making of a local environmental plan after considering the Director -General’s report made under s69 of the Act. In summary, the Minister may: a) make a local environmental plan either in accordance with the submitted draft local

environmental plan or in accordance with the submitted draft plan with such alterations as the Minister thinks fit relating to a matter of significance for State or regional environmental planning;

b) direct that action be taken in accordance with subsection 70(3); or c) decide not to proceed with the draft local environmental plan. Relevant to this report, subsection 70(3) provides that the Minister may (but need not) direct the council to exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to s68 or s70 of the Act.

This means that the Minister could make changes to any aspect of DLEP 2002 prior to gazettal and/or direct Council to re-exhibit part or all of DLEP 2002 where, in his opinion, the re-exhibition is warranted. Whilst the ability for the Minister to direct Council to re-exhibit part or all of the plan may appear to be quite an onerous proposition, it is unlikely to occur should Council take the reasonable approach recommended through Option C above. Further, subsection 70(3) provides an additional check and balance in the process that the Minister can employ to manage the risk of a successful challenge to a local environmental plan.

Further, in deciding whether to make a local environmental plan, the Minister may defer certain matters from the draft plan and may direct a council to reconsider certain matters.

In his deliberations under s70, the Minister may have regard to representations or submissions made to him by members of the public, Government Departments, Members of Parliament or other interested parties. Adoption of endorsed recommendations As part of the review process to date for DLEP 2002, Council has endorsed a significant number of recommendations as the basis for guiding changes to DLEP 2002 at its Ordinary Meetings of 10 June, 15 July, 26 August, 9 September and 30 September 2003 and its Extraordinary Meetings of 22 July, 12 August, 16 September (as continued on 23 September) and 7 October 2003. Subject to the other recommendations to this report, it remains for Council to formally adopt the recommendations endorsed by Council to date as the basis for revising DLEP 2002. An appropriate recommendation is commended to Council accordingly. It will be further recommended that, upon completion of the work to revise the draft plan in accordance with Council’s resolution, that the revised DLEP 2002, together with the appropriate report required pursuant to s68 of the Act, be forwarded to the Minister with a request that the revised DLEP 2002 be made.


Incidental changes Legal Drafting etc The preparation of the revised DLEP 2002 for forwarding to the Minister will involve the legal drafting of clauses in line with Council’s resolutions. This work will require minor changes to DLEP 2002 that are not the subject of the endorsed recommendations to ensure proper legal construction and wording of clauses and appropriate linkages between relevant clauses. Further, Parliamentary Counsel may require changes to the legal wording of clauses during its consideration of DLEP 2002 for gazettal and Planning NSW may require incidental changes to the written instrument or statutory map series to meet its protocols for the gazettal of LEPs.

It will be important for the relevant Council officers to liaise with Council’s legal advisors, Parliamentary Counsel and Planning NSW and to make and monitor such changes to facilitate the passage of DLEP 2002 through the gazettal process. It will therefore be recommended that Council delegate authority to the General Manager to undertake such incidental changes to the DLEP 2002 written instrument and/or statutory map series as required where those changes do not alter the intent or substance of draft plan. Heritage Information During the most recent stages of the review process, a small number of inconsistencies have been identified between the details of properties identified in Schedule 7 – Heritage, the statutory map Panel C and the relevant State Heritage Inventory (SHI) forms within Council’s Heritage Register. These inconsistencies do not affect the listing of the items but occur principally where the SHI forms refer inconsistently to current or former cadastral parcels in describing a listed item. It is important to ensure that the information related to heritage items is consistent and accurate and it will be recommended that the General Manager be delegated authority to make any incidental changes to Schedule 7, map Panel C and the Heritage Register as part of the revision of DLEP 2002 where those changes do not effect the listing of a property as a heritage item. Altered application of the “No Subdivision” (NS) notation At its Extraordinary Meeting of 22 July 2003, Council endorsed a recommendation to delete the NS notation from DLEP 2002 (as established under Clause 39 of the exhibited draft plan) and its application to relevant land within the City in response to alterations to Clause 83 (Provision of services for subdivision). However, at its Extraordinary Meeting of 12 August, 2003, Council resolved to amend the zoning of certain properties in North Katoomba to Living Bushland Conservation and to retain a NS notation. Unlike the original intention of the NS notation (that was applied specifically to lots that would not be able to be provided with essential sewerage services in the foreseeable future) the retention of the NS notation in this case was intended to limit further intensification of development given the isolated nature of the subject properties. It was identified at that meeting that the exhibited NS notation that applied to a nearby property, 14 – 24 Maidment Road, Katoomba, should be similarly retained as the identical constraints apply to that property.


Further, it was identified that a NS notation had been applied to the existing RAAF base at Lapstone as a holding mechanism to allow further detailed site master planning and the development of relevant planning controls for the future re-development of the site should the current uses of the site be discontinued by the Commonwealth. However, specific resolutions in respect of 14 – 24 Maidment Road, Katoomba and the RAAF base were not made by Council at this or any subsequent meeting of Council. It is therefore necessary for Council to adopt appropriate recommendations to enable its intentions for the NS notation and its application to the above sites to be incorporated into a revised DLEP 2002.

Consequently, it will be recommended that a revised clause relating to the NS notation be incorporated into the revised DLEP 2002 reflecting the altered intention of Council to apply the notation in specific circumstances where development is not to be further intensified or is to be the subject of more detailed planning for a site. Further it will be recommended that the revised NS notation be applied to 39, 40 and 49 Ninth Avenue, Katoomba (in line with Council’s previous resolution), 14 – 24 Maidment Road, Katoomba and the existing RAAF base at Lapstone. Conclusion The post exhibition review of DLEP 2002 represents the culmination of a very intensive and rigorous public process that has its origins in 1994 with the development of EMP2 as a first step in replacing the current provisions of LEP 4. DLEP 2002 has been developed in direct response to the 1999 findings of Commissioner Carleton in relation to the 1998 public hearing into DLEP 1997, the subsequent work with the community, stakeholder groups and industry organisations as well as changes in State legislation. The process of developing DLEP 2002, its public exhibition and the post exhibition review of the draft plan have been undertaken strictly in accordance with the requirements of the Act with respect to the LEP process. It is now incumbent on Council to set the direction for the final stages of that process for revising DLEP 2002 to enable its gazettal. The recommendations to this report would allow DLEP 2002 to be revised and forwarded to the Minister in a timely manner that meets Council’s responsibilities under the Act.


Attachment A


Attachment B


Attachment C

PROVISION OF RECREATIONAL & COMMUNITY SERVICES/FACILITIES Extraordinary Meeting, 7/10/03

ITEM NO: 4 SUBJECT: LOWER BLUE MOUNTAINS AQUATIC CENTRE – TENDER FOR

SUPPLY OF LABOUR AND MATERIALS FOR THE CONSTRUCTION OF HYDRAULIC SERVICES AND ASSOCIATED WORKS

FILE NO: C06917 Recommendations: 1. That Council receives and notes this report 2. That Council resolves to accept the tender from Earnshaw Plumbing Services. for

the sum of $308,550.00, ($280,500.00 + $28,050.00 GST). 3. That the General Manager or the Public Officer be authorised to sign the Contract

on behalf of Council. Report by Group Manager, City Solutions: Introduction This report recommends the acceptance of the tender submitted by Earnshaw Plumbing Services, (a Division of Zexbap Pty. Ltd.), for the sum of $308,550.00, ($280,500.00 + $28,050.00 GST), for the Supply of Labour and Materials for the Construction of Hydraulic Services and Associated Works trade packages for the Lower Blue Mountains Aquatic Centre (LBMAC). Background This tender package was part of the works approved by Council at the Ordinary Meeting of 10 June 2003 (Minute No. 230). The tender package works comprises the supply of all labour, plant, materials, fixtures, fittings, rough-in, fit-off, overheads and profit and associated works for hydraulic services. The Tender Open Tenders were called in accordance with Council’s Tendering Guidelines. The Tender was advertised in the Sydney Morning Herald on 26th August and 2nd September 2003 and in the Blue Mountains Gazette on 27th August 2003. Tenders originally closed at 2:00 p.m. on Tuesday 16 September 2003. The tender period was extended to 2:00 p.m. on Tuesday 23 September 2003, for the reasons as reported to Council via Council Bulletin of 30 September 2003.

PROVISION OF RECREATIONAL & COMMUNITY SERVICES/FACILITIES Item 4 - Extraordinary Meeting, 7/10/03

Two (2) copies of the tender documents were issued to prospective tenderers. The following Tender was received and was scrutinised for errors and or discrepancies. EARNSHAW PLUMBING SERVICES $308,550.00 (a Division of Zexbap Pty. Ltd). Tender Evaluation The tenders was assessed using a weighted attribute evaluation method relating to selection criteria specified in the brief and in accordance with Local Government Tendering Regulation 1999.

ITEM ATTRIBUTE WEIGHTING 1 Relevant experience with similar projects 10%

2 Performance on previous projects 10%

3 Environmental Management Plan 10%

4 Site Safety Management Plan 10%

5 Risk Management System 10%

6 Financial Capability 10%

7 Price 40%

TOTAL 100%

Discussion Assessment of the submission was based on the ability of the contractor to meet the requirements of the brief, selection attributes and in providing the essential documents requested in the brief. A copy of individual Tender assessments, based on the evaluation criteria listed above, is available on file for Councillors information. The resulting total weighted attributes are listed in order below (most favourable to least favourable):

TENDERER TOTAL WEIGHTED ATTRIBUTE

1 EARNSHAW PLUMBING SERVICES 3.27 *Total Weighted Attribute is out of a maximum of 4. The references for the recommended Contractor were checked by the selection panel and were found to be satisfactory. These are available on file.


Conclusion It is recommended that the tender from Earnshaw Plumbing Services for the sum of $308,550.00 ($280,500.00 + $28,050.00 GST) be accepted. Comment by Tender Review Committee The Tender Review Committee has reviewed the tender procedure and is satisfied as to the fairness of the process. Funding for this proposed contract is available in the 2003/04 Capital Works Program.

PROVISION OF RECREATIONAL & COMMUNITY SERVICES/FACILITIES Extraordinary Meeting, 7/10/03

ITEM NO: 5 SUBJECT: LOWER BLUE MOUNTAINS AQUATIC CENTRE – TENDER FOR

THE SUPPLY OF LABOUR AND MATERIALS FOR THE CONSTRUCTION OF CONCRETE ELEMENTS AND ASSOCIATED WORKS – CALL FOR FRESH TENDERS

FILE NO: C06914 Recommendations: 1. That Council receives and notes this report. 2. That Council resolves to invite fresh public tenders for the “supply of labour and

materials for the construction of concrete elements and associated works” as there were no companies/organisations which submitted a Tender for this element of work / trade package.

Report by Group Manager, City Solutions: Introduction This report recommends that for the trade package listed above for which no tenders were submitted for the Lower Blue Mountains Aquatic Centre (LBMAC) project, be re-advertised more extensively with the previously prepared tender documents containing detailed specifications and drawings, with tenderers asked to submit a fixed, lump sum tender for the work and a schedule of rates for various elements of work. Background The Construction is part of the works approved by Council at the Ordinary Meeting of 10 June 2003 (Minute No. 230). The works consists of the supply of all labour and materials for the construction of concrete elements and associated works including footing beams, ground slabs, suspended slabs and columns. The Tender Open Tenders were called in accordance with Council’s Tendering Guidelines. The Tender was advertised in the Sydney Morning Herald on 26th August and 2nd September 2003 and in the Blue Mountains Gazette on 27 August 2003. Tenders originally closed at 2:00 p.m. on Tuesday 16 September 2003. The tender period was extended to 2:00 p.m. on Tuesday 23 September 2003, for the reasons as reported to Council via Council Bulletin of 30 September 2003.


Three (3) copies of the tender documents were issued to prospective tenderers. Conclusion It is recommended that the trade package as listed above be re-advertised as public tenders in both the “Local Government” section of the Sydney Morning Herald and also the “Tenders” section of the Sydney Morning Herald on two (2) consecutive Wednesdays and Saturdays and that prospective tenderers be provided with the relevant documents for them to provide a fixed lump sum price for the work and a schedule of rates for various elements of work. Comment by Tender Review Committee The Tender Review Committee has reviewed the tender procedure and is satisfied as to the fairness of the process. Funding for the proposed contracts is available in the 2003/04 Capital Works Program.

notice of rescission extraordinary meeting, 7/10/03

Documents