Addendum Agenda of Ordinary Meeting - Wednesday, 16 November 2022

Ordinary Meeting

16 November 2022

Planning & Compliance Report

PLAN 04

Draft Voluntary Planning Agreement in conjunction with State Significant Development Application SSD-10446 at 275 Adams Road, Luddenham

Strategic Objective	Liveable, Sustainable, Resilient Manage waste effectively and maximise recycling opportunities
File Ref	371747.2022
Report By	Claire Scott - Coordinator Contributions Planning
Approved By	David Smith - Director Planning & Compliance

Executive Summary

The Department of Planning and Environment, as consent authority, has received a State Significant Development Application (SSD-10446) for the construction and operation of a resource recovery facility located at 275 Adams Road, Luddenham. It is proposed that the resource recovery facility (Advanced Resource Recovery Centre) will have a capacity to receive and process up to 600,000 tonnes per annum of general solid waste (non-putrescible) for recycling.

The development site is situated within the Western Sydney Aerotropolis and is zoned primarily as Agribusiness and part Environment and Recreation under State Environmental Planning Policy (Precincts - Western Parkland City) 2021 and would be required to pay a development contribution. Liverpool City Council and Penrith City Council are working collaboratively to finalise a single s7.12 Contributions Plan to apply to development within the Aerotropolis. The draft contributions plan was endorsed by both Council’s and was publicly exhibited in 2021. Further amendments are required to the draft contributions plan following finalisation of the zoning and precinct plans by the Department. It is anticipated that a revised contributions plan will be re-exhibited next year.

Until a contributions plan is in force (and approved by the Minister), development applications in the Aerotropolis are unable to be determined due to Clause 66 of the Environmental Planning and Assessment Regulation 2021 (Regulations) which states:

66 - Contributions plans for certain areas in Sydney – the Act s 4.16(1)

(1) A development application for development on the following land must not be determined by the consent authority unless a contributions plan has been approved for the land to which the application relates

(c) land shown on the land acquisition map under State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Chapter 4

However, Clause 66(2) of the Regulations also states that the consent authority may dispense with the requirement for a contributions plan if:

(a) The consent authority considers the development application is of a minor nature, or

(b) The developer has entered into a planning agreement for the matters that may be the subject of a contributions plan.

In accordance with Clause 66(2)(b) of the Regulations, the developer has submitted a letter of offer to Liverpool City Council to enter into a Voluntary Planning Agreement (VPA) to meet the requirements of Clause 66(2) of the Regulations to enable the Department to determine the state significant development application.

The terms of the letter of offer are that the developer pays an indexed monetary contribution of 10% of the Capital Investment Value (CIV) of the development. If the final Contribution Plan applying to the land is adopted before 31 December 2024 and results in a s7.12 levy of more than 10% of the CIV of the development, the developer will pay the applicable top up amount to Council. If the final Contribution Plan applying to the land is adopted before 31 December 2024 and results in a s7.12 levy less than 10% of the CIV of the development, Council will refund the difference. If a contributions plan is in force at the time of payment outlined in the VPA, then the s7.12 Contribution Rate identified in the final contributions plan will prevail.

This report seeks Council endorsement of the draft VPA, and to place the draft VPA and explanatory note on public exhibition for a minimum 28 days as required by Council’s Community Participation Plan and the Environmental Planning and Assessment Regulation 2021 and to delegate authority to the Acting CEO (or delegate) to execute the VPA, should no significant submissions relevant to the VPA be received.

RECOMMENDATION

That Council:

1. Endorse the draft Voluntary Planning Agreement, in conjunction with State Significant Development Application SSD10446 at 275 Adams Road, Luddenham and directs the A/CEO to publicly exhibit the planning agreement and explanatory note for a period of 28 days;

2. Delegate authority to the A/CEO (or delegate), subject to consideration of any changes following public exhibition, to execute the planning agreement in the form that is publicly exhibited or with minor alterations; and

3. Advise the proponent and the Department of Planning and Environment of Council’s decision on the draft planning agreement, noting that the assessment of the State Significant Development Application is a matter for the Department of Planning and Environment as consent authority.

REPORT

Background

The Department of Planning and Environment is the consent authority for State Significant Development Application SSD-10446 for a proposed Resource Recovery Facility at 275 Adams Road, Luddenham.

The site is situated within the Western Sydney Aerotropolis and is zoned primarily Agribusiness and part Environment and Recreation under State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Chapter 4.

Location – Map 1

For the Department of Planning and Environment, as the consent authority, to determine a development application within the Aerotropolis, a Contribution Plan applying to the land must be in force. Until a contributions plan is in force (and approved by the Minister), development applications in the Aerotropolis are unable to be determined due to Clause 66 of the Environmental Planning and Assessment Regulation 2021 (Regulations) which states:

66 - Contributions plans for certain areas in Sydney – the Act s 4.16(1)

(2) A development application for development on the following land must not be determined by the consent authority unless a contributions plan has been approved for the land to which the application relates

(c) land shown on the land acquisition map under State Environmental Planning Policy (Precincts – Western Parkland City) 2021, Chapter 4

However, Clause 66(2) of the Regulations also states that the consent authority may dispense with the requirement for a contributions plan if:

(c) The consent authority considers the development application is of a minor nature, or

(d) The developer has entered into a planning agreement for the matters that may be the subject of a contributions plan.

The Regulations do not explicitly state who the proponent is to enter into the agreement with i.e. The Minister or Council. The Department has entered into a Voluntary Planning Agreement for payment of local contributions for the first building in Bradfield, and that contribution will be remitted to Council, as the proponent was the Western Parkland City Authority (a Crown Agency). For this state significant development application, which is not on behalf of the Crown, the Department is requesting Council be the sole party to the agreement.

Initially, Council has resisted calls to consider planning agreements in the Aerotropolis until such time as a s7.12 contribution plan is in force. However, the Department of Planning and Environment is the consent authority for this development application and can enter into an agreement with the proponent to satisfy Clause 66(2) of the Regulations.

Whilst the purpose of this report is to progress the draft Voluntary Planning Agreement, it is important to note that this does not mean that Council supports the state significant development application under assessment by the Department. The VPA is an administration mechanism to allow the Department to make a determination on the development application, based on a merit assessment of the proposal, not as a result of a contribution plan not applying to the land.

Draft Aerotropolis Section 7.12 Contributions Plan

Liverpool City Council and Penrith City Council are working collaboratively to finalise a single s7.12 Contributions Plan to apply to development within the Aerotropolis. The draft contributions plan was endorsed by both Council’s and was publicly exhibited in 2021. Further amendments are required to the draft contributions plan following finalisation of the zoning and precinct plans by the Department. It is anticipated that a revised contributions plan will be re-exhibited next year. The draft Plan that was exhibited identified an aggregated rate of 6.5% across the whole precinct and would apply to both Liverpool and Penrith Local Government Areas. To date, there is still uncertainty surrounding Sydney Water’s Integrated Water Management Concept for the Aerotropolis and the water management assets that will need to be costed into the s7.12 Plan. The draft plan is also waiting finalisation of the Aerotropolis Development Control Plan (DCP), which is expected shortly from the Department, as this will impact the costing of roads within the s7.12 Plan.

Planning agreement negotiations

On 14 June 2022, Coombes Property Group contacted Council regarding the progress of the draft s7.12 contribution plan and to discuss the option of entering into a planning agreement as a means of satisfying the requirements of Clause 66 of the Regulation. The developer continued discussions with Council and submitted a letter of offer dated 23 August 2022, where it was noted that they would draft a Voluntary Planning Agreement for Council’s consideration based on an ‘under and overs’ offer.

The ‘under and overs’ offer is a formula in the VPA that will ensure that the developer pays a monetary contribution based on a percentage on the developments Capital Investment Value, the same framework as a 7.12 plan. If the future contribution plan that is to apply to the land identifies a rate that is more than or less than the rate within the agreement, the council will reimburse the difference (less any administration costs) or alternatively the developer will pay Council the difference.

The monetary contribution is to be paid prior to the issuing of a construction certificate and the planning agreement is registered on title, to ensure that the agreement will always apply to current and any subsequent owners. The only way to remove the planning agreement from title is by the applicant surrendering any development consent (if not given effect to) or the payment of the contribution to Council which will satisfy their obligation.

The developer must also pay legal and administration costs associated with the execution of the Planning Agreement, including Council’s costs.

Conclusion

It is recommended that the draft VPA be endorsed by Council and exhibited for a minimum 28 days and that Council delegate to the A/CEO (or delegate) (subject to consideration of any changes following public exhibition) to execute the planning agreement in the form that is publicly exhibited or with minor administration alterations.

The planning agreement will be subject to the approval of the associated state significant development application (SSD-10446) currently under assessment by the Department of Planning and Environment.

FINANCIAL IMPLICATIONS

The monetary contribution will be placed into a restricted funds account for the future delivery of public infrastructure within the Liverpool LGA Aerotropolis precinct.

The developer is to reimburse Council for legal and administration costs associated with the preparation and execution of the agreement.

CONSIDERATIONS

Economic	Deliver a high quality local road system including provision and maintenance of infrastructure and management of traffic issues. Facilitate economic development.
Environment	Manage the environmental health of waterways. Manage air, water, noise and chemical pollution.
Social	There are no social and cultural considerations.
Civic Leadership	There are no civic leadership and governance considerations.
Legislative	Environment Planning and Assessment Act 1979 Environment Planning and Assessment Regulation 2021 – Clause 66 State Environmental Planning Policy (Precincts – Western Parkland City) 2021 The draft planning agreement has been reviewed by Council’s external legal advisors.
Risk	There is no risk associated with this report

ATTACHMENTS

1. Draft VPA and Explanatory Note

2. ASIC - Current Extract - CFT NO 13 Pty Ltd. - Confidential

Ordinary Meeting

16 November 2022

Economy & Commercial Development Report

ECD 01

Proposed Closure and Sale of Surplus Portions - Croatia Avenue, Edmondson Park

Strategic Direction	Visionary, Leading, Responsible Ensure Council is accountable and financially sustainable through the strategic management of assets and resources
File Ref	266982.2022
Report By	Rodney MacFarlane - Senior Property Officer
Approved By	Julie Scott - Acting Director Economy & Commercial Development

Executive Summary

Due to progressive surrounding development and the Development Control Plan (DCP) Road layout within the Edmondson Park precinct, there is an opportunity for portions of Croatia Avenue to be closed and offered for sale on the open market, including to adjoining landowners for development consolidation. Croatia Avenue, Edmondson Park is a public road under the Roads Act 1993.

There are a number of utility assets within the subject sections of Croatia Avenue. It is therefore recommended to proceed with the closure and sale of the subject sections of Croatia Avenue, Edmondson Park as alternative public road access opportunities arise. Further reports will be submitted to Council upon successful negotiations for the closure and sale of the subject portions of Croatia Avenue, Edmondson Park.

RECOMMENDATION

That Council:

1. Supports the investigation of the closure and sale of the subject sections of Croatia Avenue, Edmondson Park as alternative public road access opportunities arise.

2. Note that the closure is affected by the notice published in the Gazette and that this step cannot be taken until the objections of notifiable authorities have been withdrawn or set aside

REPORT

Council resolved on 25 May 2022 as follows:

That Council:

1. Approves the commencement of a road closure process of the subject surplus sections of Croatia Avenue, Edmondson Park, as outlined in the report;

2. Notes, that a public notification process, which also involves the notification of relevant service authorities and NSW Crown Lands, will be undertaken;

3. Approves to classify the land compromising any area of closed road area as “Operational” land pursuant to s.43 of the Roads Act 1993;

4. Authorises the A/CEO or his delegated officer to execute any documents, under Power of Attorney, necessary to give effect to this decision; and

5. Resolves that a further report be made to Council upon completion of the road closure consultation process, prior to any proposed sales progressing

In accordance with the resolution, the road closures were advertised in the Liverpool City Champion on 8 June 2022 and a separate notification was sent to adjoining landowners, relevant authorities and utility providers.

A total of 4 objections were received to the road closure:

Endeavour Energy – Require an easement for underground cables measuring 3m in width, easement for overhead power lines 9m wide and streetlights to be relocated (adjoining 12-14 & 50 Croatia Avenue being the most northern portions of Croatia Avenue proposed for closure).

Sydney Water – 100mm water main along southern portions of area for closure (adjacent to boundary) and 150mm water main along northern portion (also adjacent to boundary)

Jemena Gas – 110 PE / 210 KPA gas main along southern portions of area for closure (adjacent to boundary) and along northern portion (also adjacent to boundary).

Registered Proprietor of 24 Hutton Road, Edmondson Park – Like their corner block spending $15k extra to purchase the property and have spent $29k on special fencing. Alternatively, would be interested in purchasing the closed road / half width or receiving compensation for losing corner lot.

The determining authority, being Crown Lands NSW, have supported the proposed road closures and does not object to:

· The closure of the Council public road

· The proposed vesting as “Operational Land” upon closure.

The diagram below highlights the location of existing public utilities:

Given the impost of various public utility assets within the sections of Croatia Avenue proposed for closure and sale, it is recommended that the closure and sale of the public roads are progressed only once alternative public road access opportunities arise.

Costs of the road closures are to be borne by the purchaser/applicants including but not limited to service relocation, creation of easements, survey fees, subdivision and Land Registry Services fees.

FINANCIAL IMPLICATIONS

There are no current financial implications relating to this recommendation. Should the road closures be approved in a future report to Council, it is intended to identify any potential income that Council could receive from a potential sale of land at that time. Any costs incurred by Council associated with the road closures would be offset against the cost of sale.

CONSIDERATIONS

Economic	Facilitate economic development.
Environment	There are no environmental and sustainability considerations.
Social	There are no social and cultural considerations.
Civic Leadership	There are no civic leadership and governance considerations.
Legislative	The Roads Act 1993, sections 38A to 38F and 43 The Council may propose the closure of a public road for which it is the roads authority if – (a) the road is not reasonably required as a road for public use (whether for present or future needs), and (b) the road is not required to provide continuity for an existing road network, and (c) if the road provides a means of vehicular access to particular land, another public road provides lawful and reasonably practicable vehicular access to that land. After publicly notifying a proposed road closure, Council may proceed to close the road after considering any submissions duly made. The closure is effected by publishing a notice in the Gazette. If a notifiable authority has formally objected, then Council may not close the road until the objection is withdrawn by the authority or set aside by the Land and Environment Court. Land that is vested in Council and forming part of a former public road is operational land unless the council resolves that it is to be community land. If the land is disposed of by sale, the proceeds of sale are to be paid to the council.
Risk	The risk is deemed to be Low as the road closure and sale process is governed by Council under the provisions of S38 of The Roads Act 1993 and further reports will be presented to Council as opportunities to close and sell the various sections of Croatia Avenue arise.

ATTACHMENTS

Nil

1
PLAN 04	Draft Voluntary Planning Agreement in conjunction with State Significant Development Application SSD-10446 at 275 Adams Road, Luddenham
Attachment 1	Draft VPA and Explanatory Note