Project Title to Be Vertically Centred Within This Frame

CL……. OUTCOMES

ATTACHMENT 2

Ermington Defence Site (Broadoak Waters) Development Proposal

Development Applications DA01, DA02 and DA03

Response to Submission on Section 94 Contributions prepared by JBA Urban Planning Consultants Pty Ltd (September 2002)

1.Introduction

1.1Background

Development Applications DA01, DA02 and DA03 were submitted for the Broadoak Waters site (also known as the Former Naval Stores site and the Ermington Defence site) to Planning NSW in April 2002. Under the prevailing planning provisions which apply to the subject land, the Minister for Planning is the consent authority for the applications.

The applications were publicly exhibited in mid 2002. Parramatta City Council (Council), as the relevant local authority, prepared a written submission on the applications in August 2002, to be considered by Planning NSW in its assessment of the proposal. Council’s submission, among other things, canvassed matters relating to Section 94 of the Environmental Planning and Assessment Act 1979, and in particular reviewed the applicant’s proposed ‘Section 94 Strategy’.

In short, the applicant’s Section 94 Strategy submitted with the development applications proposed that:

• the value of works, land dedications and financial assistance outlined in the strategy, be considered to be in full satisfaction of section 94 contributions for the proposed development; and
• no conditions requiring further Section 94 contributions be imposed on the 3 initial DAs for the site, or any future development consent applicable to the site in accordance with the approved Master Plan.

Council made the following submissions in relation to the applicant’s Section 94 Strategy:

• The strategy is based on a superseded Section 94 Contributions Plan.
• Council does not agree with the rationale used to justify offsetting of Section 94 contributions which would ordinarily be applicable to the site.
• Council believes that Section 94 contributions should be levied on the development of the site, in terms of:

reasonable contributions which are required under Parramatta Comprehensive Section 94 Contributions Plan (2002); and

additional contributions for traffic network upgrades, identified as part of a recent study undertaken by PPK Environment and Infrastructure.

It was identified that Council in its submission determined that the total Section 94 contributions which would apply (excluding any offset considerations) would be between $2.32 million (assuming a 573 dwelling development) and $2.83 million (assuming a 700 dwelling development – the upper limit set in the Master Plan). After considering the applicant’s Section 94 Strategy, and agreeing to numerous concessions with a notional value of over $1 million, Council recommended total contributions of $1.26 million be 50-6sed as conditions of approval on the development applications.

The applicant’s consultants have now made a response to Council’s submission. Matters relating to contributions which are sought in relation to Parramatta Comprehensive Section 94 Contributions Plan 2002 (the Section 94 Plan) were reviewed by JBA Urban Planning Consultants Pty Ltd (JBA). Matters relating to additional traffic network contributions were reviewed by Colston Budd Hunt and Kafes Pty Ltd. This response examines the responses made by JBA only.

1.2Summary of Responses

A summary of the main points raised in the JBA response submission (and which this submission responds to) follows:

• The Section 94 Plan came into effect 2 months following the lodgement of the applications, and at no time did Council consult with Defence about the plan.
• Council has taken a manifestly unreasonable approach to a number of aspects of the Section 94 Strategy, and has misrepresented Defence’s position on others.
• The criteria for Council accepting a material public benefit, works in kind or land dedication are described in Sections 2.5 and 2.6 of the Section 94 Plan. It is submitted that most of the public facilities proposed by the applicant satisfy these criteria and their entire value should be offset against monetary contributions which would ordinarily be payable under the Section 94 Plan. The facilities considered suitable for offset by JBA include:

Broadoaks Park (land and embellishments);

River Park (land and embellishments, on site and off site);

Creek Park (land and embellishments);

Navy Park (land and embellishments);

3rd and 6th Streets south extensions (land and embellishments);

Tristram/Hilder Reserve embellishments;

sea wall reconstruction;

reconstruction of Spurway Street, south of Boronia Street;

• Council’s approach for offsets in relation to Broadoaks Park, River Park is agreed to by JBA, in that these proposed parks costs (land and embellishments) should be offset against the total contribution for open space and recreation facilities which would be levied under the Section 94 Plan. There is now no dispute in this conclusion.
• Council’s approach that community facilities proposed to be provided off site should not be considered as an offset against the total contribution for community and cultural facilities which would be levied under the Section 94 Plan is agreed. There is now no dispute in this conclusion.
• In contrast to the Section 94 Strategy, the applicant agrees that contributions required for plan management and administration which would be levied under the Section 94 Plan are appropriate. There is now no dispute in this conclusion.
• Unreasonable to levy contributions for water management in North Wentworthville.

Council’s response to the matters raised by JBA are addressed in the next section.

2.Response to Issues

2.1Section 94 Plan

2.1.1Criteria for Credits and Offsets

This plan states that Council may, but is not obliged to accept the dedication of land free of cost as an offset against the total contribution. Similarly, the plan states that Council may, but is not obliged to accept a material public benefit or works in kind. Section 2.5 sets out Council’s factors of consideration when deciding to accept a dedication, while Section 2.6 sets out Council’s factors of consideration when deciding to accept a material public benefit or works in kind. These have been cited in Council’s previous submission.

The JBA submission cites these requirements and concludes that because the proposed offsets satisfy the criteria, they should be accepted as such.

Council does not agree with this conclusion. The matters listed in Sections 2.5 and 2.6 are matters to be considered when considering requests for dedications, material public benefits and works in kind. However there are broader matters relating to the administration of the entire Section 94 Plan which Council is required to consider. These matters have been alluded to in Council’s previous submission and are further discussed in Section 2.1.2 of this report and following sections.

2.1.2Other Matters for Consideration

The context of considering offsets against monetary contributions required under the Section 94 Plan must also be considered in the context of the scope of overall facility delivery espoused in the plan. This is particularly important in the case where a major development involving several hundred dwellings, and where the contributions are required for a range of facilities over a long time frame.

Council’s future public works commitments, which have a nexus with the incoming population, are substantial. The Section 94 Plan commits Council to over $265 million works programs across the City, involving over $250 million in public works, to meet the needs of an anticipated population increase of 48,000 residents and 33,500 workers, over a period of 20 years. While new development (via Section 94 levies) is anticipated to contribute only a proportion toward the total cost, it nonetheless has to carefully consider circumstances which reduce the amount of Section 94 funding it receives, including decisions concerning contribution offsets.

In this context, it is prudent for the Council to consider the effect of any offset on delivery of the entire works schedule. This is particularly in terms of balancing the benefits of the material public benefit to the wider community against the money forgone which cannot be directed to other items in the works schedule.

2.2Public Space, Open Space and Recreation Offsets

2.2.1Proposed ‘Parks’

As stated in Council’s previous submission, the Section 94 Plan commits Council to a range of facilities in this category. Only some of these facility programs have a link with the facilities intended to be provided by the developer at the Ermington Defence site as part of the residential development proposed for the land. These include street tree planting (‘City of Trees’); foreshore parks improvement; acquisition of properties for open space areas; improvement of pavilions (including some located in Rydalmere and Ermington); playground improvement.

Council is also committed to delivering the following facility programs, the need for which is partly attributable to the incoming population of the Ermington Defence site:

• CBD public domain enhancement;
• bushland protection and enhancement;
• cultural parks improvement;
• local parks and major parks improvements (including other parks in Ermington);
• Parramatta aquatic leisure facility;
• skateboard and rollerblade facilities; and
• rebuilding of playing fields (including fields located in Ermington).

Regardless of the extent of ‘significant benefit’ associated with the developer-funded facilities which would be enjoyed by the local population, this is not the sole matter to be taken into consideration in offset requests. Requests for offsets therefore have to be considered in the total context of the Section 94 Plan. In other words Council has to be mindful that a range of other projects, for which there is a nexus with the proposed development, are funded.

As Council previously stated in respect to public space, open space and recreation facilities contributions:

Council…has committed to a works program of in excess of $172 million, with section 94 contributions anticipated to contribute approximately $66 million (or 38%) toward this. Council is therefore prudent to ensure that it obtains sufficient funds to meet its commitments across a range of programs over many years. From this viewpoint, Council must carefully consider requests for offsetting contributions so that any offsets granted contribute toward Council’s documented objectives.

It is within this framework, together with the criteria described in Section 2.5 and 2.6 of the Section 94 Plan that Council considers it appropriate that the costs associated with Broadoaks Park and River Park be used to offset the contribution payable under the plan. These proposed parks meet the criteria under the plan, and as well:

• River Park is consistent with Council’s strategic foreshore improvement program, in providing the wider community with improved foreshore public space;
• Broadoaks Park is of a size, shape and nature so as to be capable of accommodating a range of recreation opportunities, including options for buildings and facilities.

Conversely, Navy Park and Creek Park, while constituting new recreation facilities, do not provide opportunities for a multitude of recreation opportunities. Council considers that these proposed parks, while it is not argued can benefit other residents of Ermington, do not represent facilities of greater strategic significance as River and Broadoaks Parks. This conclusion is made on the following grounds:

• No argument that the parks have a recreation function, but their primary function is for drainage. The parks, because of their primary drainage function, can only realistically be used for walking and cycling activities. This is not to say that these facilities are not desired, but compared to say Broadoaks Park, the range of recreation opportunities are more limited.
• If the site did not have the same drainage issues to respond to, it is unlikely that these facilities would be provided in their proposed form. On a site with less constraints (that is drainage constraints), it is likely that all available land would be set aside for development, save for the provision of a useable open space area with an area complying with generic standards (that is, 2.833 hectares per 1,000 people). It is suggested that because the drainage facilities, including water quality facilities, are required to be provided, they have been designed with a supplementary recreation function so that they become an amenity feature of, and improve the marketability of, the surrounding housing development.
• Council’s previous submission stated concern whether the proposed treatments would be able to be satisfactorily maintained in the long term and whether Council, based on the performance and quality of these facilities and potential risk management and public safety issues, would ultimately accept responsibility for the areas. These issues remain valid.

Council therefore does not resile from its previous conclusion that Creek Park and Navy Park should not be considered in any offset calculations.

2.2.2Foreshore Reconstruction

The JBA submission states that there is no nexus between the development of the Defence site and the reinstatement of the seawall, as it is not on Defence land. It also states that the sea wall upgrading is an essential and integral part of the River Park works, and it is inconsistent for Council to accept River Park embellishment and not accept the seawall improvements.

Council stated the following in its previous submission:

The foreshore works involve reconstruction of the existing sea wall and demolition of a wharf. Council’s view is that these works are part of the applicant’s responsibility to ‘make good’ the existing elements which make up the site, in the same way that the site has had to be remediated in terms of soil contamination. The subject site was used for many years for defence purposes, which incorporated the sea wall and wharf structures. It should not be left to the local authority (representing the local community) to take account of the costs of rectifying/replacing/removing these facilities.

Council’s view remains that the seawall is an asset managed by others (in this case, the Waterways Authority). For all intents and purposes, it is an existing facility in need of repair. The proposed works, whoever undertakes them, are for repair purposes, and do not, in Council’s view, constitute ‘improvements’ and does not directly lead to ‘considerable benefits’ as cited by JBA. The community currently enjoy public access across the land which is retained by the seawall. There is considered to be no augmented utility afforded to the community by these works, other than prolonging the life of the existing facility and rectifying the asset to a standard where Council would be in a position to accept responsibility of the asset (if that was desired by the land owner).

Council agrees that there is no direct nexus between the development and seawall rectification. Embellishment of River Park and continuation of the provision of public access can be achieved on Defence land, with Waterways continuing to be accountable for public access across its land. It was inappropriately stated that it was the applicant’s responsibility to ‘make good the existing elements which make up the site’, when in fact this is an off site facility. Put more accurately, notwithstanding the ownership of the land, the Department of Defence had used and benefited from the facilities now proposed to be rectified/replaced/removed and that it is the responsibility of others (not the local community) to accept the cost of bringing the seawall up to contemporary standards.

Council’s endorsement of off site offsets for River Park embellishments relates to any facilities provided on Waterways Authority land which augment recreation opportunities (such as paths and street furniture).

For the same reason that the applicant states there is no nexus between the seawall works and the proposed development, then it is also inappropriate rectification works to be credited as a material public benefit offset against contributions required for the development.

JBA states that without Defence’s contribution to the sea wall works there would be no mechanism to warrant its upgrading. Again, the maintenance of the seawall is not currently a Council responsibility. The decision to rectify the facility is not being imposed as part of this application. If Defence wishes to contribute to its upgrading (and from the perspective of Defence’s historic use and benefit from the facilities, this only seems reasonable) then that is a matter for them, and should not be connected to discussions of offsets of contributions imposed by a local authority (although in this case it would be the Minister for Planning).

2.2.3Tristram Reserve

The JBA submission states that it is reasonable that the cost of the proposed off site landscaping works in Tristram Reserve be used to offset the total open space, public space and recreation facilities contribution applying to the development of the Defence site. The justification provided is that the ‘existing park is barren and in need of embellishment’; that a collaborative design process has been underway with local residents and has received strong support, and that the need for the improvements is not generated by the development of the Defence site, and is being offered as material public benefit for the broader local community, which will create a significant improvement in the amenity and attractiveness of the park.

Council’s previous submission was made on the assumption that the proposed works to be used as an offset included provision of a weir, detention basin, watercourse formation, associated paving and landscaping. It was considered that the weir and associated drainage facilities are to be provided as part of the total drainage solution for the proposed development. The JBA submission points out that the costs related to landscaping costs only (an amount of $503,000).