Part 3 Special provisions

Division 1 Provisions that apply to particular land

14   Exceptions to Zoning Table—specified development on specified land

(1)  Despite clause 11, consent may be granted to development specified in Column 2 of the Table to this subclause on corresponding land specified in Column 1 of the Table, subject to any corresponding requirements specified in Column 3 of the Table.

Column 1	Column 2	Column 3
Land	Development for the purpose of the following	Requirements
50 Pacific Crescent, Maianbar	General store and residential flat building with no more than 3 dwellings
5–17 Waratah Street, Kirrawee	Motor showroom
101–107 Princes Highway, Sylvania	Motor showroom
108–119 Princes Highway, Sylvania	Motor showroom (not including car parking)
67 Warrangarree Drive, Woronora Heights (Lot 448, DP 814427)	Townhouses
64 Anzac Avenue, Engadine (Lot 2, DP 536426)	Car parking
1–3 Kiora Road, Miranda	Motor showroom with an area set aside exclusively for customer parking	The development must not involve the provision of pedestrian or vehicular access to or from Kumbardang Avenue. There are to be deceleration lanes to all entry points from The Boulevarde.
154 Flora Street, Sutherland	Business premises
34 Shell Road, Burraneer, comprising permissive occupancy 1966/196 under the Crown Lands (Continued Tenures) Act 1989	Recreation facility, being a sailing club
Zone 22—Arterial Road	Outdoor eating areas ancillary to a restaurant Advertisements or fixed awnings	The development may only be carried out within the constructed footpath area of the relevant public road and must be ancillary to a lawful use on land adjoining the zone.
104 The Esplanade, Sylvania and the adjoining nature strip of the public road	Inclinator	The development must not obstruct pedestrian or vehicular access on the road or create a hazard to road users. The development must be ancillary to the lawful use of the land on which the residence is located.
97 Soldiers Road, Jannali	Villa houses or townhouses	The development must not result in a floor space ratio greater than 0.45:1.
121 Georges River Road, Jannali	Medical facilities or shop-top housing, or both	The development must not result in a floor space ratio greater than 0.65:1 and the landscaped area of the site of the development must be at least 30% of the area of the site.

(2) Marine travel lift, or floating pontoon and jetty, on certain land at Taren Point
Despite clauses 11 and 17, development for the purpose of a marine travel lift, or a floating pontoon and jetty, may be carried out with consent on any of the following land:

(a)  2–14 Atkinson Road, Taren Point,

(b)  13–21 (including 15A) Mangrove Lane, Taren Point.

Note. Clause 17 deals with buildings or works on land traversed by a foreshore building line.

Sydney Regional Environmental Plan No 17—Kurnell Peninsula (1989) (rather than this plan) will apply to the extent that the development is carried out on land referred to in Schedule 1 to that Regional Environmental Plan.

(3) Helicopter take-offs and landings
Despite clause 11, the following land may be used for helicopter landings and take-offs:

(a)  Sutherland Oval, The Grand Parade, Sutherland,

(b)  Waratah Park, Sutherland,

(c)  Heathcote Oval, East Heathcote,

(d)  the old tip site, Illawarra Road, Menai,

      but only if the consent authority is satisfied that the land will be used for no more than 10 landings or take-offs for non-emergency situations in any 12 month period.

(4)  Nothing in this plan restricts helicopter landings or take-offs in emergency situations.

(5) Advertisements and outdoor eating areas connected to restaurants in Zone 13—Public Open Space
Despite clause 11, development for the purpose of advertisements that is ancillary to the use of the land as a restaurant may be carried out with consent on land in Zone 13—Public Open Space, but only if:

(a)  consent has been granted to the use of the land as a restaurant, and

(b)  the sign on which the advertisement is displayed:

(i)  is attached flush with the part of the building in which the restaurant is located, and

(ii)  does not exceed 0.6 metre in height or 1.5 metres in width, and

(iii)  only displays the name of the restaurant.

(6) Outdoor eating areas in Zone 13—Public Open Space
Despite clause 11, the use of land for an outdoor eating area in conjunction with a restaurant may be carried out with consent on land in Zone 13—Public Open Space, but only if:

(a)  consent has been granted to the use of the land as a restaurant, and

(b)  the outdoor eating area immediately adjoins the part of the building in which the restaurant is located.

(7) Townhouse development—2 Corea Street, Sylvania
Despite clause 11, development for the purpose of townhouses may be carried out with consent on land at 2 Corea Street, Sylvania, being Lots 1 and 2, DP 872780, if:

(a)  each townhouse has open space for the exclusive use of the occupants of the dwelling (whether or not the open space is at finished ground level), and

(b)  the consent relates to development application DA08/0915.

15   Development in Zone 10—Neighbourhood Centre

Despite clause 11, the consent authority may consent to development of land in Zone 10—Neighbourhood Centre (the subject land) that is not otherwise allowed on land in that zone, but is allowed on land in a zone that is adjacent to or adjoins Zone 10—Neighbourhood Centre (an adjoining zone), if the consent authority is satisfied that:

(a)  the subject land is surplus to the current and future needs of the community, or development that is otherwise allowed in the Zone 10—Neighbourhood Centre is not economically viable on the subject land, and

(b)  the proposed development will not prejudice the current and future needs of the community, and

(c)  the proposed development will not adversely affect land in the adjoining zone or the surrounding area of the proposed development or, and

(d)  the proposed development is consistent with the objectives of the adjoining zone.

16   Development in Zone 17—Environmental Protection (Low Impact Rural)

(1)  This clause applies to land in Zone 17—Environmental Protection (Low Impact Rural).

(2)  Despite clause 11, the consent authority may consent to development on land to which this clause applies if:

(a)  the development is for the purpose of a dwelling house on a lot of land, being a lot that was in existence on 15 December 2000, and, in a case where part of the lot is also zoned for residential purposes, the dwelling is proposed to be located on that part, or

(b)  the development comprises the collection of native vegetation for plant propagation (including seed stock), floristry or the production of oils or fragrances, or

(c)  in the opinion of the consent authority, the proposed development would not involve the clearing of land or alteration of any water course or otherwise have an adverse impact on the natural habitat, scenic quality or bushland character of land in the zone.

17   Buildings or works on land traversed by foreshore building line

(1) Application of clause
This clause applies to land that is traversed by a foreshore building line.

(2) Objectives
The objectives of this clause are as follows:

(a)  to avoid adverse ecological effects on waterways,

(b)  to protect and enhance significant natural features and vegetation on riparian land,

(c)  to retain endemic vegetation along foreshore areas,

(d)  to restore and revegetate foreshore areas to improve estuarine flora and fauna habitat,

(e)  to minimise any adverse impact from development on water quality and, so far as is practicable, to improve the quality of urban run-off entering waterways,

(f)  to minimise any adverse visual impact of development when viewed from adjacent land and waterways by using a design and materials that complement the natural landscape of the land to which this clause applies,

(g)  to minimise any adverse impact of development on the natural landform of foreshore areas and waterways by integrating structures into the site with minimal change to the natural topography of the land to which this clause applies,

(h)  to achieve an appropriate balance between private development and the public use of waterways,

(i)  to maintain and improve public access to the intertidal area of waterfronts where there will be minimal environmental impact,

(j)  to conserve and enhance structures on waterfronts that are of heritage significance,

(k)  to minimise the obstruction of water views from public land,

(l)  to ensure that there is no development below any foreshore building line, except as provided by this clause.

(3) Meaning of “foreshore building line”—generally
In this plan:

foreshore building line, in relation to land (other than land referred to in subclause (4) or (5)), means:

(a)  if a foreshore building line is shown on the map in relation to the land:

(i)  in the case of land that has a deemed mean high water mark—a line across the land that is parallel to, and the distance specified on the map from, that deemed mean high water mark, or

(ii)  in the case of land that does not have a deemed mean high water mark—a line across the land that is parallel to, and the distance specified on the map from, any boundary of the land that adjoins a waterway or waterfront reserve, or

(b)  if a foreshore building line is not shown on the map in relation to the land:

(i)  in the case of land that has a deemed mean high water mark—a line across the land that is parallel to, and 7.5 metres from, the deemed mean high water mark, or

(ii)  in the case of land that does not have a deemed mean high water mark—a line across the land that is parallel to, and 7.5 metres from, any boundary of the land that adjoins a waterway or waterfront reserve.

(4) Meaning of “foreshore building line”—Sandy Point
In this plan:

foreshore building line, in relation to land at Sandy Point, means:

(a)  the 1 percent annual exceedance probability flood line, or

(b)  a line across the land that is parallel to, and 7.5 metres from, the deemed mean high water mark,

      whichever is further inland.

(5) Meaning of “foreshore building line”—Illawong or Oyster Bay
In this plan:

foreshore building line, in relation to specified land at Illawong or Oyster Bay, means:

(a)  in the case of land that has a deemed mean high water mark—a line across the land that is parallel to, and the distance specified on the map from, that deemed mean high water mark, or

(b)  in the case of land that does not have a deemed mean high water mark—a line across the land that is parallel to, and the distance specified on the map from, the nearest waterway to the land.

(6)  In subclauses (3)–(5):

deemed mean high water mark, in relation to land, means the mean high water mark, or high water mark, as shown on any plan relating to that land that was registered with the Registrar-General on or before 24 April 1980, being a plan that was current at that date.

Note. The deemed mean high water mark is not affected by any reclamation of land or other changes that may have occurred since registration of the plan concerned.

specified land at Illawong or Oyster Bay means any of the following land:

(a)  183–187, 189–193, 199A, 203, 207, 207A and 215 Fowler Road, Illawong,

(b)  5–7 and 9–11 Griffin Parade, Illawong,

(c)  47, 51, 83–85, 87–89, 91, 95–97, 103A, 109–111, Caravan Head Road, Oyster Bay,

(d)  85B and 85C Carina Road, Oyster Bay,

(e)  20, 22, 24, 28 and 30 Farrer Place, Oyster Bay,

(f)  15 Shipwright Place, Oyster Bay.

(7) Controls
A building must not be erected, and a work must not be carried out, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed.

(8)  Nothing in subclause (7) or clause 11 prevents consent being granted to:

(a)  any alteration (not being an addition) to an existing dwelling that is forward of the foreshore building line, or

(b)  the erection, carrying out of, or an alteration or addition to, an excluded building or work.

(9)  Nothing in subclause (7) or clause 11 prevents consent being granted to the erection of a dwelling, or any addition to an existing dwelling, on land between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed if:

(a)  the consent authority has considered the objectives of this clause, and

(b)  the consent authority is satisfied that:

(i)  the new dwelling or addition will not be erected any further forward of the foreshore building line than any existing dwelling on the land, and

(ii)  the new dwelling will not dominate the locality in which it is erected as a result of its height, bulk, design, colour or detailing, and

(iii)  the natural qualities of the foreshore are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and

(iv)  in the case of the erection of a dwelling—there is no reasonable alternative that would allow a new dwelling to be located behind the foreshore building line.

(10)  In this clause:

excluded building or work means any of the following:

(a)  a boat shed,

(b)  a watercraft facility,

(c)  an in-ground swimming pool that is no higher than 300 millimetres above ground level at any point,

(d)  a work to enable pedestrian access,

(e)  landscaping,

(f)  a barbecue,

(g)  a utility installation (except for a gas holder or generating works).

riparian land means:

(a)  submerged land, or

(b)  land that adjoins, directly influences or is directly influenced by a body of water, and the body of water itself.

18   Development in or adjacent to waterways

(1)  This clause applies to any of the following land:

(a)  land in Zone 16—Environmental Protection (Waterways),

(b)  land traversed by a foreshore building line,

(c)  land below the mean high water mark.

Note. The mean high water mark referred to here is the mean high water mark as it currently exists.

(2)  The objectives of this clause are as follows:

(a)  to ensure that any development does not result in the obstruction or interference with navigation in waterways,

(b)  to ensure restoration of land below any foreshore building line, to a natural state (so far as is practicable), with a minimum intrusion of man-made structures,

(c)  to reduce the number of structures below any foreshore building line, particularly following the redevelopment of a site,

(d)  to promote the public use of intertidal areas below the mean high water mark or high water mark, where appropriate.

(3)  The consent authority must not consent to development on land to which this clause applies unless the consent authority is satisfied that the following building or work will be removed before, or within a reasonable time after, the development is carried out:

(a)  any building or work, other than an excluded building or work, that is:

(i)  on the lot concerned or an adjoining lot owned by the person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and

(ii)  between a foreshore building line and any waterway or waterfront reserve in respect of which the line is fixed,

(b)  any building or work (other than a watercraft facility) that is:

(i)  on the lot concerned or on an adjoining lot that is owned by a person carrying out the development, or on adjacent land that person occupies under a lease or a licence, and

(ii)  below the mean high water mark.

(4)  Subclause (3) does not require the removal of any building or work if:

(a)  the proposed development is the erection or installation of any of the following:

(i)  a fence or retaining wall between a dwelling and the street on which the dwelling is located,

(ii)  a garage or carport adjacent to a dwelling or located between a dwelling and the street on which the dwelling is located,

(iii)  a deck or verandah,

(iv)  an awning or canopy, or

(b)  the consent authority is satisfied that the use of the building or work is lawful, or

(c)  the consent authority is satisfied that the removal of the building or work:

(i)  would be inconsistent with, or is not necessary to achieve, any of the objectives of this clause, or

(ii)  is unreasonable or unnecessary in the circumstances of the case.

(5)  In this clause:

excluded building or work has the same meaning as it has in clause 17.

19   Biodiversity—wetlands

The consent authority must not consent to development on wetlands unless it has considered the following matters that are of relevance to the development:

(a)  any potential that the proposed development has to fragment, pollute, disturb or diminish the values of wetlands,

(b)  the extent to which the proposed development will restore, protect or maintain ecological processes, natural systems and biodiversity within wetlands,

(c)  the extent to which the proposed development will incorporate best practice environmental design measures to maintain or improve the sustainability of wetlands,

(d)  the extent to which the proposed development will restore existing degraded wetlands or water sources to compensate for the loss or degradation of those wetlands or water sources,

(e)  in the case of land that is also bush fire prone land—the extent to which fire management regimes will be in place, and bush fire hazard reduction techniques will be used, that are appropriate in terms of their impact on wetlands.

20   Flood planning

(1)  The objectives of this clause are as follows:

(a)  to minimise the flood risk to life and property associated with the use of land,

(b)  to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

(c)  to avoid significant adverse impacts on flood behaviour and the environment.

(2)  This clause applies to:

(a)  land that is shown as “Flood planning area” on the Flood Planning Map, and

(b)  other land at or below the flood planning level.

(3)  Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a)  is compatible with the flood hazard of the land, and

(b)  will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)  incorporates appropriate measures to manage risk to life from flood, and

(d)  will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(4)  A word or expression used in this clause has the same meaning as it has in the NSW Government’s Floodplain Development Manual published in 2005, unless it is otherwise defined in this clause.

(5)  In this clause:

flood planning level means the level of 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.

21   Environmental risk—bush fire

The consent authority must not consent to development on bush fire prone land unless it has considered the following matters that are of relevance to the development:

(a)  the extent to which the proposed development will achieve an appropriate balance between the conservation of the natural environment and the provision of appropriate bush fire protection measures,

(b)  the risk of bush fire to life, property or the environment,

(c)  the extent to which any proposed buildings will be constructed using techniques and materials to maximise their resistance to bush fire,

(d)  whether adequate measures will be in place to enable the safe evacuation of people from the land, and enable access to that land by emergency services, during a bush fire,

(e)  the intensity of the existing and proposed use of the land,

(f)  the need to restrict vulnerable development on the land.

Note. Section 79BA of the Act and the Rural Fires Act 1997 also make provision for the carrying out of development on bush fire prone land.

22   Environmental risk—contaminated land management

(1)  This clause applies to land that is, or in the opinion of the consent authority is likely to be, contaminated land (within the meaning of Part 7A of the Act).

(2)  The consent authority must not consent to development on land to which this clause applies unless the consent authority is satisfied that the development will be carried out in a manner that minimises, manages or eliminates risk to human health and the environment.

23   Environmental risk—acid sulfate soils

(1)  The objectives of this clause are as follows:

(a)  to manage any disturbance to acid sulfate soils so as to minimise impacts on natural waterbodies, wetlands, native vegetation, agriculture, fishing, aquaculture and urban and infrastructure activities,

(b)  to require development consent for works that would disturb soils or groundwater levels on land identified as having, or potentially having, acid sulfate soils,

(c)  to require special assessment of certain development on land identified as being subject to risks associated with the disturbance of acid sulfate soils.

(2)  Development consent is required for the carrying out of works described in the Table to this subclause on land of the class specified for those works, except as provided by this clause.

Class of land as shown on Acid Sulfate Soils Map	Works
1	Any works.
2	Works below the natural ground surface. Works by which the watertable is likely to be lowered.
3	Works beyond 1 metre below the natural ground surface. Works by which the watertable is likely to be lowered beyond 1 metre below the natural ground surface.
4	Works beyond 2 metres below the natural ground surface. Works by which the watertable is likely to be lowered beyond 2 metres below the natural ground surface.
5	Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that are likely to lower the watertable below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

(3)  Consent must not to be granted under this clause unless:

(a)  an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Guidelines and has been provided to the consent authority, and

(b)  (Repealed)

(c)  the consent authority has considered the likelihood of the proposed works resulting in the discharge of acid water, and

(d)  the consent authority is satisfied that any disturbance of acid sulfate soils resulting from the proposed works will be managed so as to minimise impacts on natural waterbodies, wetlands, native vegetation, agriculture, fishing, aquaculture and urban and infrastructure activities.

(4)  Consent is not required under this clause for the carrying out of works if:

(a)  a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Guidelines indicates that an acid sulfate soils management plan need not be carried out for the works, and

(b)  the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works.

(5)  This clause does not require consent to carry out any works unless:

(a)  the works involve the disturbance of more than 1 tonne of soil, such as occurs in carrying out agriculture, the construction or maintenance of drains, extractive industries, dredging, the construction of artificial waterbodies (including swimming pools) or foundations, or flood mitigation works, or

(b)  the works are likely to lower the water table.

24   Environmental risk—nuclear research reactor at Lucas Heights Science and Technology Centre

(1)  This clause applies to land shown on the map marked “Sutherland Shire Local Environmental Plan 2006 (Amendment No 4)—Clause 24—Environmental Risk—Nuclear research reactor at Lucas Heights Science and Technology Centre” as being within a 1.6 kilometre radius of the nuclear research reactor at Lucas Heights Science and Technology Centre.

(2)  The consent authority must not consent to development on land to which this clause applies unless it has considered the following matters that are of relevance to the development:

(a)  any risk of radiation to life or property on the site of the proposed development,

(b)  the extent to which residential densities on the site and on the land as a whole should be limited to minimise the risk to life or property,

(c)  whether adequate measures will be in place to enable the safe evacuation of people from the land, and enable access to that land by emergency services, during an emergency,

(d)  the intensity of the existing and proposed use of the land,

(e)  the need to restrict vulnerable development on the land,

(f)  any recommendations of the Australian Radiation Protection and Nuclear Safety Agency or Australian Nuclear Science and Technology Organisation relating to development on the land.

25   Classification and reclassification of public land

(1)  The objective of this clause is to enable the Council, by means of this plan, to classify or reclassify public land as “operational land” or “community land” in accordance with Part 2 of Chapter 6 of the Local Government Act 1993.

Note. Under the Local Government Act 1993, “public land” is generally land vested in or under the control of a council (other than roads, Crown reserves and commons). The classification or reclassification of public land may also be made by a resolution of the Council under section 31, 32 or 33 of the Local Government Act 1993. Section 30 of that Act enables this plan to discharge trusts on which public reserves are held if the land is reclassified under this plan as operational land.

(2)  The public land described in Part 1 or Part 2 of Schedule 4 is classified, or reclassified, as operational land for the purposes of the Local Government Act 1993.

(3)  The public land described in Part 3 of Schedule 4 is classified, or reclassified, as community land for the purposes of the Local Government Act 1993.

(4)  The public land described in Part 1 of Schedule 4:

(a)  does not cease to be a public reserve to the extent (if any) that it is a public reserve, and

(b)  continues to be affected by any trusts, estates, interests, dedications, conditions, restrictions or covenants that affected the land before its classification, or reclassification, as operational land.

(5)  The public land described in Part 2 of Schedule 4, to the extent (if any) that it is a public reserve, ceases to be a public reserve on the commencement of the relevant classification plan and, by the operation of that plan, is discharged from all trusts, estates, interests, dedications, conditions, restrictions and covenants affecting the land or any part of the land, except:

(a)  those (if any) specified for the land in Column 3 of Part 2 of Schedule 4, and

(b)  any reservations that except land out of the Crown grant relating to the land, and

(c)  reservations of minerals (within the meaning of the Crown Lands Act 1989).

(6)  In this clause, the relevant classification plan, in relation to land described in Part 2 of Schedule 4, means this plan or, if the description of the land is inserted into that Part by another environmental planning instrument, that instrument.

(7)  Before the relevant classification plan inserted a description of land into Part 2 of Schedule 4, the Governor approved of subclause (5) applying to the land.

26   Acquisition of land

(1)  The objective of this clause is to identify, for the purposes of section 27 of the Act, the authority of the State that will be the relevant authority to acquire land reserved for certain public purposes if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991 (the owner-initiated acquisition provisions).

Note. If the landholder will suffer hardship if there is any delay in the land being acquired by the relevant authority, section 23 of the Land Acquisition (Just Terms Compensation) Act 1991 requires the authority to acquire the land.

(2)  The authority of the State that will be the relevant authority to acquire land, if the land is required to be acquired under the owner-initiated acquisition provisions, is the authority of the State indicated in Column 2 of the Table to this clause in relation to the land specified in Column 1 of the Table (or, if an authority of the State is not specified in relation to land required to be so acquired, the authority designated or determined under those provisions).

(3)  A reference to vacant land in the Table to this clause is a reference to land on which there are no buildings, except for aviaries, barns, conservatories, cycle sheds, fences, fowl houses, fuel sheds, garages, greenhouses, hay sheds, milking bails, pig sties, private boat houses, stables, summer houses, tool houses or similar buildings.

Column 1	Column 2
Land	Authority of the State
Zone 12—Special Uses and lettered “Community Facility” on the map	The Council
Zone 12—Special Uses and lettered “Parking” on the map	The Council
Zone 13—Public Open Space (except for land specified in Schedule 5)	The Council
Zone 14—Public Open Space (Bushland) (except for land specified in Schedule 5)	The Council
Land specified in Schedule 5 that is in Zone 13—Public Open Space or Zone 14—Public Open Space (Bushland)	The corporation
Zone 21—Railway	Rail Corporation New South Wales
Zone 22—Arterial Road or Zone 24—Transport Reservation:
(a)  vacant land and not on the 5 year works program of the Roads and Traffic Authority, or	The corporation
(b)  in any other case	Roads and Traffic Authority
Zone 23—Road	The Council

27   Development on land referred to in clause 26 before acquired or used for purpose for which reserved

(1)  This clause applies to land referred to in Column 1 of the Table to clause 26 that has not been acquired by the relevant authority of the State under the Land Acquisition (Just Terms Compensation) Act 1991.

(2)  Consent for development on land to which this clause applies may be granted only if:

(a)  (Repealed)

(b)  the development is of a kind, or is compatible with development of a kind, that may be carried out on land in an adjoining zone, and

(c)  the development concerned is not designated development, and

(d)  any use of the land that is authorised if development consent is granted will cease no later than 5 years after consent is granted.

(3)  (Repealed)

(4)  Before granting consent to proposed development on land to which this clause applies, the consent authority must take the following matters into consideration:

(a)  any impact of the proposed development on traffic movements and parking,

(b)  any impact of the proposed development on existing pedestrian movements,

(c)  any visual impact of the proposed development (including any proposed installation of advertisements),

(d)  the need to carry out development on the land for the purpose for which it is reserved,

(e)  the imminence of acquisition by the authority of the State,

(f)  the likely additional cost to the authority of the State resulting from the carrying out of the proposed development.

(5)  Development on land acquired by an authority of the State under clause 26 may, before it is used for the purpose for which it is reserved, be carried out, with consent, for any purpose.

Division 2 Provisions that apply to particular kinds of development

28   Subdivision—consent requirements

(1)  Despite clause 11, land to which this plan applies may be subdivided, but only with consent.

(2)  Consent must not be granted to the subdivision of land in a zone unless the consent authority has considered the relevant objectives of the zone specified in clause 11.

(3)  Nothing in this clause requires consent for subdivision that is exempt development.

29   Crown development and public utilities

(1)  Nothing in this plan (except for clause 23) is to be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit:

(a)  the carrying out of development of any description specified in subclauses (2)–(12), or

(b)  the use of existing buildings of the Crown by the Crown.

Note. Clause 23 deals with development on land identified as having, or potentially having, acid sulfate soils.

(2) Railway undertakings
The carrying out by persons carrying on railway undertakings, on land comprised in their undertakings, of:

(a)  any development required in connection with the movement of traffic by rail, including the construction, reconstruction, alteration, maintenance and repair of ways, works and plant, and

(b)  the erection within the limits of a railway station of buildings for any purpose,

      but excluding:

(c)  the construction of new railways, railway stations and bridges over roads, and

(d)  the erection, reconstruction and alteration of buildings for purposes other than railway undertaking purposes outside the limits of a railway station and the reconstruction or alteration, so as materially to affect their design, of railway stations or bridges, and

(e)  the formation or alteration of any means of access to a road, and

(f)  the erection, reconstruction and alteration of buildings for purposes other than railway purposes where such buildings have direct access to a public place.

(3) Water, sewerage, drainage, electricity or gas undertakings
The carrying out by persons carrying on public utility undertakings, being water, sewerage, drainage, electricity or gas undertakings, of any of the following development, being development required for the purpose of their undertakings:

(a)  development of any description at or below the surface of the ground,

(b)  the installation of any plant inside a building or the installation or erection within the premises of a generating station or substation established before the commencement of this plan of any plant or other structures or erections required in connection with the station or substation,

(c)  the installation or erection of any plant or other structures or erections by way of addition to or replacement or extension of plant or structures or erections already installed or erected, including the installation in an electrical transmission line of substations, feeder-pillars or transformer housing, but not including the erection of overhead lines for the supply of electricity or pipes above the surface of the ground for the supply of water, or the installation of substations, feeder-pillars or transformer housing of stone, concrete or brickworks,

(d)  the provision of overhead service lines in pursuance of any statutory power to provide a supply of electricity,

(e)  the erection of service reservoirs on land acquired or in the process of being acquired for the purpose before the commencement of this plan, provided reasonable notice of the proposed erection is given to the consent authority,

(f)  any other development, except:

(i)  the erection of buildings, the installation or erection of plant or other structures or erections and the reconstruction or alteration of buildings so as materially to affect their design or external appearance, or

(ii)  the formation or alteration of any means of access to a road.

(4) Water transport undertakings
The carrying out by persons carrying on public utility undertakings, being water transport undertakings, on land comprised in their undertakings, of any development required in connection with the movement of traffic by water, including the construction, reconstruction, alteration, maintenance and repair of ways, buildings, wharves, works and plant required for that purpose, except:

(a)  the erection of buildings and the reconstruction or alteration of buildings so as materially to affect their design or external appearance, or

(b)  the formation or alteration of any means of access to a road.

(5) Wharf or river undertakings
The carrying out by persons carrying on public utility undertakings, being wharf or river undertakings, on land comprised in their undertakings, of any development required for the purposes of shipping or in connection with the embarking, loading, discharging or transport of passengers, livestock or goods at a wharf or the movement of traffic by a railway forming part of the undertaking, including the construction, reconstruction, alteration, maintenance and repair of ways, buildings, works and plant for those purposes, except:

(a)  the construction of bridges, the erection of any other buildings, and the reconstruction or alteration of bridges or of buildings so as materially to affect their design or external appearance, or

(b)  the formation or alteration of any means of access to a road.

(6) Air transport undertakings
The carrying out by persons carrying on public utility undertakings, being air transport undertakings, on land comprised in their undertakings within the boundaries of any aerodrome, of any development required in connection with the movement of traffic by air, including the construction, reconstruction, alteration, maintenance and repair of ways, buildings, wharves, works and plant required for that purpose, except:

(a)  the erection of buildings and the reconstruction or alteration of buildings so as materially to affect their design or external appearance, or

(b)  the formation or alteration of any means of access to a road.

(7) Road transport undertakings
The carrying out by persons carrying on public utility undertakings, being road transport undertakings, on land comprised in their undertakings, of any development required in connection with the movement of traffic by road, including the construction, reconstruction, alteration, maintenance and repair of buildings, works and plant required for that purpose, except:

(a)  the erection of buildings and the reconstruction or alteration of buildings so as materially to affect their design or external appearance, or

(b)  the formation or alteration of any means of access to a road.

(8) Mining
The carrying out by the owner or lessee of a mine (other than a mineral sands mine), on the mine, of any development required for the purposes of a mine, except:

(a)  the erection of buildings (not being plant or other structures or erections required for the mining, working, treatment or disposal of minerals) and the reconstruction, alteration or extension of buildings, so as materially to affect their design or external appearance, or

(b)  the formation or alteration of any means of access to a road.

(9) Roads
The carrying out of any development required in connection with the construction, reconstruction, improvement, maintenance or repair of any road, except the widening, realignment or relocation of such road.

(10) Forestry
The carrying out of any forestry work by the Forestry Commission or Community Forest Authorities empowered under relevant Acts to undertake afforestation, the construction of roads, protection, cutting and marketing of timber, and other forestry purposes under such Acts or upon any Crown land temporarily reserved from sale as a timber reserve under the Forestry Act 1916.

(11) Development carried out by a rural lands protection board
The carrying out by a rural lands protection board of any development required for the improvement and maintenance of travelling stock and water reserves, except:

(a)  the erection of buildings and the reconstruction or alteration of buildings so as materially to affect their design or purposes, and

(b)  any development designed to change the use or purpose of any such reserve.

(12) Soil conservation, irrigation, afforestation, reafforestation, flood mitigation, water conservation or river improvement
The carrying out or causing to be carried out by the consent authority, where engaged in flood mitigation works, or by the Department of Natural Resources, of any work for the purposes of soil conservation, irrigation, afforestation, reafforestation, flood mitigation, water conservation or river improvement in pursuance of the provisions of the Water Act 1912, the Water Management Act 2000, the Farm Water Supplies Act 1946 or the Rivers and Foreshores Improvement Act 1948, except:

(a)  the erection of buildings, and installation or erection of plant or other structures or erections and the reconstruction or alteration of buildings so as materially to affect their design or external appearance, and

(b)  the formation or alteration of any means of access to a road.

30   Maintenance dredging of tidal waterways

Despite clause 11, maintenance dredging, by or on behalf of a public authority (including the Council), within tidal waterways may be carried out without consent.

31   Development for group homes

(1)  If development for the purpose of a dwelling house or a dwelling in a residential flat building may lawfully be carried out in accordance with this plan, development for the purpose of a group home may, subject to this clause, be carried out with consent.

(2)  The consent authority must not consent to development for the purpose of a group home unless it has considered the community need for the group home concerned.

(3)  Consent is not required under this clause to carry out development for the purpose of a permanent group home that contains 5 or less bedrooms and that will be occupied by not more residents (including any resident staff) than the number calculated by multiplying the number of bedrooms in that dwelling by 2.

(4)  Consent may not be refused under this clause unless an assessment has been made of the need for the group home concerned.

(5)  Nothing in this clause requires consent to be obtained by the Department of Housing (or a person acting jointly with the Department of Housing) to carry out development for the purpose of a transitional group home.

32   Seniors housing in Zone 8 or 9

Despite clause 11, development for the purpose of seniors housing may be carried out on land in Zone 8—Urban Centre or Zone 9—Local Centre only if:

(a)  it is proposed that any building in which seniors housing is to be located is also to be used for a purpose, other than seniors housing, permitted under this plan, and

(b)  the consent authority is satisfied that the development is consistent with the objectives of the zone in which it is proposed to be carried out.

33   Building height

(1) Clause does not apply to seniors housing in Zone 4, 5 or 6
This clause does not apply to seniors housing on land in Zone 4—Local Housing, Zone 5—Multiple Dwelling A or Zone 6—Multiple Dwelling B.

(2) Objectives
The objectives of this clause are as follows:

(a)  to ensure the scale of buildings:

(i)  is consistent with the desired scale and character of the street and locality in which the buildings are located, and

(ii)  complements any natural landscape setting of the buildings,

(b)  to allow reasonable daylight access to all buildings and the public domain,

(c)  to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d)  to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

(e)  to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings on land in those zones.

(3)  The consent authority must not consent to development for the purpose of a building unless it has considered the objectives of this clause.

(4) Height of building generally—default position
A building must comply with each of the following:

(a)  the building must not comprise more than 2 storeys,

(b)  the building must not exceed the following:

(i)  a height of 7.2 metres, as measured vertically from ground level to any point on the uppermost ceiling in the building,

(ii)  a height of 9 metres, as measured vertically from ground level to the highest point of the roof of the building.

(5)  Subclause (4) does not apply to a building referred to elsewhere in this clause (other than a building referred to in subclause (12) or (13)).

(6) Buildings in Zone 7
A building on land in Zone 7—Mixed Use—Kirrawee must not comprise more than the maximum number of storeys specified on the Height and Density Controls Map in relation to that land.

(7)  A building on land in Zone 7—Mixed Use—Kirrawee must not exceed any maximum height (as measured vertically from ground level to the highest point of the roof of the building) specified on the Height and Density Controls Map in relation to that land.

(8) Buildings in Zone 8, 9 or 10
A building on land in Zone 8—Urban Centre, Zone 9—Local Centre or Zone 10—Neighbourhood Centre must not comprise more than:

(a)  the maximum number of storeys specified on the Height and Density Controls Map in relation to the land concerned, or

(b)  if that map does not specify a maximum number of storeys in relation to the land concerned:

(i)  2 storeys in the case of a building located on land in Zone 10—Neighbourhood Centre, or

(ii)  3 storeys in any other case.

(9)  A building on land in Zone 8—Urban Centre, Zone 9—Local Centre or Zone 10—Neighbourhood Centre must not exceed any maximum height specified on the Height and Density Controls Map in relation to the land concerned.

(10) Maximum number of storeys and height on certain land in Miranda
Despite subclause (8) or (9), a building on land in Zone 8—Urban Centre or Zone 12—Special Uses that is shown hatched on the Height and Density Controls Map may:

(a)  comprise 8 storeys, or

(b)  have a height that exceeds 28 metres, but does not exceed 32 metres (as measured vertically from ground level to the highest point of the roof of the building),

      but only if the consent authority is satisfied that:

(c)  any overshadowing of land caused by the building is no greater than the overshadowing that would be caused if the building comprised the maximum number of storeys and had the maximum height that would otherwise apply to the building under subclause (8) or (9), and

(d)  the design of the building significantly benefits urban design and the public domain in the location.

Note. The maximum number of storeys and height applying to the above land, as shown on the Height and Density Controls Map, is 7 storeys and 28 metres respectively.

(11) Buildings in Zone 11
A building on land in Zone 11—Employment must not exceed a height of 12 metres, as measured vertically from ground level to the highest point of the roof.

(12)  Despite subclause (11), a building on land in Zone 11—Employment that adjoins land in Zone 3—Environmental Housing (Bushland) or Zone 4—Local Housing must not exceed a height of 9 metres, as measured vertically from ground level to the highest point of the roof.

(13)  Despite subclauses (5) and (11), a dwelling house on land in Zone 11—Employment must comply with subclause (4).

(14) Residential flat buildings
Despite anything to the contrary in this clause, a residential flat building must not comprise more than:

(a)  the maximum number of storeys specified on the Height and Density Controls Map in relation to the land concerned, or

(b)  if that map does not specify a maximum number of storeys in relation to the land concerned—3 storeys.

(15)  Despite anything to the contrary in this clause, a residential flat building must not exceed any maximum height (as measured vertically from ground level to the highest point of the roof of the building) specified on the Height and Density Controls Map in relation to the land concerned.

(16) Villa houses
Despite anything to the contrary in this clause, a villa house must not exceed the following:

(a)  a height of 3.6 metres, as measured vertically from ground level to any point on the uppermost ceiling,

(b)  a height of 5.4 metres, as measured vertically from ground level to the highest point on the roof.

34   Building height—seniors housing in Zone 4, 5 or 6

(1) Objectives
The objectives of this clause, in relation to seniors housing on land in Zone 4—Local Housing, Zone 5—Multiple Dwelling A or Zone 6—Multiple Dwelling B, are as follows:

(a)  to ensure that seniors housing is of a height that is compatible with:

(i)  the scale of other residential buildings in the zone in which it is located, and

(ii)  the desired scale and character of the street and locality in which the seniors housing is located, and

(iii)  complements any natural landscape setting of the seniors housing,

(b)  to allow reasonable daylight access to all buildings and the public domain,

(c)  to minimise the impacts of new seniors housing on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d)  to ensure that the visual impact of seniors housing is minimised when viewed from adjoining properties, the street, waterways and public reserves.

(2) Controls
The consent authority must not consent to development for the purpose of seniors housing on land in Zone 4—Local Housing, Zone 5—Multiple Dwelling A or Zone 6—Multiple Dwelling B unless it has considered the objectives of this clause.

(3)  Seniors housing on land in Zone 4—Local Housing or Zone 5—Multiple Dwelling A must not exceed 2 storeys.

(4)  Seniors housing on land in Zone 6—Multiple Dwelling B must not comprise more than:

(a)  the maximum number of storeys specified on the Height and Density Controls Map in relation to the land concerned, or

(b)  if that map does not specify a maximum number of storeys in relation to the land concerned—3 storeys.

(5)  Seniors housing on land in Zone 6—Multiple Dwelling B must not exceed any maximum height (as measured vertically from ground level to the highest point of the roof of the building) specified on the Height and Density Controls Map in relation to the land concerned.

(6)  If seniors housing on land in Zone 4—Local Housing, Zone 5—Multiple Dwelling A or Zone 6—Multiple Dwelling B includes a townhouse or villa house, the two-storey building in which the townhouse is located or the villa house must not exceed the maximum height specified in clause 33 (4) (b) or (16), respectively, for that kind of building.

35   Building density

(1) Application of clause
This clause does not apply to development for the purpose of a building that does not result in the creation of floor space.

(2) Objectives
The objectives of this clause are as follows:

(a)  to ensure that development is in keeping with the characteristics of the site and the local area,

(b)  to provide a degree of consistency in the bulk and scale of new buildings that relates to the context and environmental qualities of the locality,

(c)  to minimise the impact of buildings on the amenity of adjoining residential properties,

(d)  to ensure, where possible, that non-residential buildings in residential zones are compatible with the scale and character of residential buildings on land in those zones.

(3) Definition of “floor space ratio”
For the purposes of this plan:

floor space ratio means the ratio of the gross floor area of all buildings on a site to the area of the site.

(4) Site
The following is taken to be excluded from the site of proposed development for the purposes of this clause and (in relation to land at 97 Soldiers Road, Jannali) clause 14 (1):

(a)  land on which the proposed development is prohibited under this plan (other than land on which the proposed development is prohibited solely because of the application of clause 17),

(b)  in the case of an internal lot:

(i)  any access corridor to or from the lot (if the lot is a hatchet-shaped lot), and

(ii)  any right of way that traverses another lot.

Note. Among other things, clause 17 imposes certain restrictions on the erection of buildings on land traversed by a foreshore building line.

(5) Maximum gross floor area in Zone 1 or 2
The maximum gross floor area of all buildings on a site in Zone 1—Environmental Housing (Environmentally Sensitive Land) and Zone 2—Environmental Housing (Scenic Quality) is to be as indicated in the following table:

Area of site (m2)	Maximum gross floor area (m2)
Less than 850
850–less than 1,200
1,200–less than 1,800
1,800 or more

      where AS is the area of the site in square metres.

(5A)  The maximum gross floor area of all buildings at 97 Soldiers Road, Jannali may exceed the area provided for in subclause (5), but only if the proposed development is for the purpose of villa houses or townhouses.

Note. See clause 14 (1) for the maximum floor space ratio applying in relation to that development.

(6) Maximum floor space ratios
The maximum floor space ratio applying to development for the purpose of a building on a site in Zone 3—Environmental Housing (Bushland) is 0.45:1.

(7)  The maximum floor space ratio applying to development for the purpose of a building on a site in Zone 4—Local Housing is as follows:

(a)  in the case of a hostel—0.75:1,

(b)  in any other case—0.45:1.

(8)  The maximum floor space ratio applying to development for the purpose of a building on a site in Zone 5—Multiple Dwelling A is as follows:

(a)  in the case of a dual occupancy or dwelling house—0.45:1,

(b)  in the case of a hostel—0.75:1,

(c)  in any other case—0.7:1.

(9)  The maximum floor space ratio applying to development for the purpose of a building on a site in Zone 6—Multiple Dwelling B is as follows:

(a)  in the case of a dwelling house—0.45:1,

(b)  in the case of a residential flat building:

(i)  if the area of the site is 1,200 square metres or less—0.7:1, or

(ii)  if the area of the site is more than 1,200 square metres and less than 1,800 square metres—the ratio calculated as follows:

or

(iii)  if a floor space ratio is specified on the Height and Density Controls Map in relation to the site concerned—the floor space ratio specified on that map,

(c)  in the case of a townhouse or a villa house—0.7:1,

(d)  in any other case:

(i)  if a floor space ratio is specified on the Height and Density Controls Map in relation to the site concerned—the floor space ratio specified on that map, or

(ii)  if a floor space ratio is not specified on that map in relation to the site concerned—1:1.

(10)  The maximum floor space ratio applying to development for the purpose of a building on a site in Zone 7—Mixed Use—Kirrawee is as specified on the Height and Density Controls Map in relation to the site concerned.

(11)  The maximum floor space ratio applying to development for the purpose of a building on a site in Zone 8—Urban Centre or Zone 9—Local Centre is:

(a)  if a floor space ratio is specified on the Height and Density Controls Map in relation to the site concerned—the floor space ratio specified on that map, or

(b)  if a floor space ratio is not specified on that map in relation to the site concerned—2:1.

(12)  The maximum floor space ratio applying to development for the purpose of a building on a site in Zone 10—Neighbourhood Centre is:

(a)  if a floor space ratio is specified on the Height and Density Controls Map in relation to the site concerned—the floor space ratio specified on that map, or

(b)  if a floor space ratio is not specified on that map in relation to the site concerned—1:1.

(13)  The maximum floor space ratio applying to development for the purpose of a building on a site in Zone 11—Employment is 1:1.

36   Landscaped area

(1) Objectives
The objectives of this clause are as follows:

(a)  to ensure adequate opportunities for the retention or provision of vegetation that contributes to biodiversity,

(b)  to ensure adequate opportunities for tree retention and tree planting so as to preserve and enhance the tree canopy of Sutherland Shire,

(c)  to minimise urban run-off by maximising pervious areas on the sites of development,

(d)  to ensure that the visual impact of development is minimised by appropriate landscaping and that the landscaping is maintained,

(e)  (Repealed)

(f)  to ensure that landscaping carried out in connection with development on land in Zone 11—Employment is sufficient to complement the scale of buildings, provide shade, screen parking areas and enhance workforce amenities.

(2) Site
The following is taken to be excluded from the site of proposed development for the purposes of this clause:

(a)  land on which the proposed development is prohibited under this plan (other than land on which the proposed development is prohibited solely because of the application of clause 17),

(b)  in the case of an internal lot:

(i)  any access corridor to or from the lot (if the lot is a hatchet-shaped lot), and

(ii)  any right of way that traverses another lot,

(c)  40 square metres of the area of any lot on which there is, or is intended to be as part of the proposed development, a swimming pool that is ancillary to a dwelling house.

Note. Among other things, clause 17 imposes certain restrictions on the erection of buildings on land traversed by a foreshore building line.

(3) Controls
The minimum landscaped area of the site of any development for the purpose of a building on any land in Zone 1—Environmental Housing (Environmentally Sensitive Land) or Zone 2—Environmental Housing (Scenic Quality) is indicated in the Table below:

Area of site (m2)	Minimum landscaped area (m2)
Less than 850
850–less than 1,200
1,200– less than 1,800
1,800 or more

      where AS is the area of the site in square metres.

(4)  The minimum landscaped area of the site of any development for the purpose of a building on any land in Zone 3—Environmental Housing (Bushland) is 45 percent of the area of the site.

(5)  The minimum landscaped area of the site of any development is the following percentage of the area of the site specified below for that development:

(a)  development for the purpose of a building (other than a villa house or townhouse) on any land in Zone 4—Local Housing or Zone 5—Multiple Dwelling A—45 per cent,

(b)  development for the purpose of a townhouse on any land in Zone 4—Local Housing—40 per cent,

(c)  development for the purpose of a villa house on any land in Zone 4—Local Housing—30 per cent,

(d)  development for the purpose of a townhouse on any land in Zone 5—Multiple Dwelling A—35 per cent,

(e)  development for the purpose of a villa house on any land in Zone 5—Multiple Dwelling A or Zone 6—Multiple Dwelling B—20 per cent,

(f)  development for the purpose of a building (other than a dwelling house, villa house, townhouse or residential flat building) on any land in Zone 6—Multiple Dwelling B—60 per cent,

(g)  development for the purpose of a townhouse on any land in Zone 6—Multiple Dwelling B—35 per cent,

(h)  development for the purpose of a residential flat building on any land in Zone 6—Multiple Dwelling B—40 per cent,

(i)  development for the purpose of a building on any land in Zone 11—Employment—10 per cent,

(j)  development for the purpose of a dwelling house on any land in Zone 6—Multiple Dwelling B—45 per cent,

(6)  The minimum landscaped area of a site for development for the purposes of a combined villa and townhouse development is determined by applying, on a pro rata basis, the minimum percentage set out in subclause (5) for each type of dwelling in the relevant zone.

(7)–(9)  (Repealed)

37   Objectives of clauses 39–42

The objectives of clauses 39–42 are as follows:

(a)  to ensure that a new lot created for the purpose of a dwelling house has a sufficient area available for:

(i)  a dwelling house and ancillary facilities, and

(ii)  an outdoor recreation and service space, and

(iii)  vehicular access to and from the site,

(b)  to ensure that a sufficient area is available for building setbacks to reduce the effect of radiated heat from bush fire on bush fire prone land,

(c)  to ensure that newly created lots provide adequate building area to accommodate the type of dwellings that are proposed to be built on such lots,

(d)  to ensure that the area and width of lots are sufficient for their intended purpose and provide sufficient space for negative externalities to be resolved on site,

(e)  to ensure that a sufficient area of land is available, in connection with development, for landscaping, drainage and parking so as to achieve a satisfactory residential amenity,

(f)  to ensure new development complements the established scale and character of the streetscape where the development is carried out, and does not dominate the natural qualities of its setting.

38   References to area, width and depth of lot in clauses 39–42

(1)  For the purposes of applying clauses 39–42 to proposed development, the following is to be excluded in calculating the area of a lot of land:

(a)  land on which the proposed development is prohibited under this plan (other than land on which the proposed development is prohibited solely because of the application of clause 17),

(b)  any access corridor to or from the lot if the lot is a hatchet-shaped lot.

Note. Among other things, clause 17 imposes certain restrictions on the erection of buildings on land traversed by a foreshore building line.

(2)  For the purposes of clauses 39–42, the points on the boundaries of a lot of land between which the width or depth of the lot is to be measured are to be as determined by the consent authority having regard to the objectives set out in clause 37.

39   Minimum size of lot for dwelling houses

Note. Clauses 37 and 38 contain provisions that are relevant to the application of this clause.

(1)  This clause applies to a lot of land in Zone 1—Environmental Housing (Environmentally Sensitive Land), Zone 2—Environmental Housing (Scenic Quality), Zone 3—Environmental Housing (Bushland), Zone 4—Local Housing or Zone 5—Multiple Dwelling A that is created on or after the date on which this plan commences.

(2)  The area, width and depth of a lot of land to which this clause applies on which it is proposed to erect a dwelling house are not to be less than the minimum area, width and depth specified in the following Table:

Zone	Minimum area (except for internal lots) (m2)	Minimum area for internal lots (m2)	Minimum lot width (m)	Minimum lot depth (m)
Zone 1—Environmental Housing (Environmentally Sensitive Land)	850	1,000	18	27
Zone 2—Environmental Housing (Scenic Quality)	700	850	18	27
Zone 3—Environmental Housing (Bushland)	550	700	15	27
Zone 4—Local Housing	550	700	15	27
Zone 5—Multiple Dwelling A	550	700	15	27

(3)  Despite subclause (1), this clause does not apply to the erection of a dwelling house on a lot of land if development consent for the subdivision of land to create that lot was granted before the date of commencement of this plan.

40   Dual occupancies—internal lots and lot sizes

(1)  This clause applies to land in Zone 1—Environmental Housing (Environmentally Sensitive Land), Zone 2—Environmental Housing (Scenic Quality), Zone 3—Environmental Housing (Bushland), Zone 4—Local Housing or Zone 5—Multiple Dwelling A.

(2)  Despite any other provision of this plan, the following are prohibited on land to which this clause applies:

(a)  the subdivision of land for the purpose of a dual occupancy, whether attached or detached, if the lot on which the dual occupancy is proposed is an internal lot,

(b)  the subdivision of land to create a separate lot for each dwelling that currently comprises a dual occupancy, if any of the resulting lots would be an internal lot,

(c)  the erection of a dual occupancy, or the erection of a second dwelling, whether attached or detached, to create a dual occupancy on an internal lot, other than if one of the dwellings comprising the dual occupancy has a gross floor area not exceeding 65 square metres.

(3)  Despite any other provision of this plan, the subdivision of land to create a separate lot for each dwelling that currently comprises a dual occupancy is prohibited if the land is in Zone 1—Environmental Housing (Environmentally Sensitive Land) or Zone 2—(Environmental Housing (Scenic Quality).

(4)  The minimum area and minimum width of a lot of land in Zone 3—Environmental Housing (Bushland), Zone 4—Local Housing or Zone 5—Multiple Dwelling A is 800 square metres and 18 metres, respectively, if:

(a)  there is a dual occupancy on the lot, and

(b)  it is proposed to subdivide the lot to create a separate lot for each dwelling that currently comprises the dual occupancy.

(5)  Subclause (4) does not apply to a subdivision to create a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.

(6)  Despite any other provision of this plan, the subdivision of land to create a separate lot for each dwelling that currently comprises a dual occupancy is prohibited if one of the dwellings has a gross floor area that does not exceed 65 square metres.

(7)  Despite any other provision of this plan, if proposed development on a lot is for dual occupancy in a zone shown in Column 1 of the following Table and both the dwellings comprising the dual occupancy will each have a gross floor area greater than 65 square metres, development consent must not be granted to the development unless the lot is equal to or greater than the minimum area specified in Column 2 of that Table for that zone.

Table

Column 1	Column 2
Zone	Minimum area (square metres)
Zone 1—Environmental Housing (Environmentally Sensitive Land)	850
Zone 2—Environmental Housing (Scenic Quality)	700
Zone 3—Environmental Housing (Bushland)	600
Zone 4—Local Housing	600
Zone 5—Multiple Dwelling A	600

Note. The term dual occupancy is defined in the Dictionary to mean 2 dwellings (whether attached or detached) on 1 lot of land. If that lot is subdivided, the dwellings cease to be a dual occupancy.

41   Villa houses, townhouses and residential flat buildings—internal lots and lot sizes

Note. Clauses 37 and 38 contain provisions that are relevant to the application of this clause.

(1) Application of clause
This clause applies to land in Zone 4—Local Housing, Zone 5—Multiple Dwelling A or Zone 6—Multiple Dwelling B.

(2)  This clause does not apply in relation to seniors housing.

(3) Villa houses and townhouses
The erection of a villa house or a townhouse on an internal lot of land to which this clause applies is prohibited.

(4)  The minimum area of a lot of land to which this clause applies on which it is proposed to erect a townhouse or a villa house is 1,200 square metres and the minimum width of any such lot is 25 metres.

(5) Residential flat buildings
The minimum area of a lot of land in Zone 6—Multiple Dwelling B on which it is proposed to erect a residential flat building is 1,800 square metres and the minimum width of any such lot is 30 metres.

(6)  Despite subclause (5), a lot of land in Zone 6—Multiple Dwelling B on which it is proposed to erect a residential flat building may be less than 1,800 square metres, or have a minimum width of less than 30 metres, if the consent authority is satisfied that:

(a)  the amalgamation of the lot with an adjoining lot is not reasonably feasible, or

(b)  the orderly and economic use and development of the lot and the adjoining lot can be achieved if amalgamation is not feasible.

42   Seniors housing—minimum lot size

Note. Clauses 37 and 38 contain provisions that are relevant to the application of this clause.

The minimum area of a lot on which it is proposed to erect seniors housing is 1,200 square metres and the minimum width of any such lot is 25 metres.

43   (Repealed)

44   Convenience stores—maximum floor space

The maximum floor space of a convenience store is 100 square metres.

45   Childcare centres—maximum number of children in Zone 1, 2, 4, 5 or 6

The maximum number of children that may be supervised or cared for in a childcare centre is 45 if the childcare centre is located on land in any of the following zones:

(a)  Zone 1—Environmental Housing (Environmentally Sensitive Land),

(b)  Zone 2—Environmental Housing (Scenic Quality),

(c)  Zone 4—Local Housing,

(d)  Zone 5—Multiple Dwelling A,

(e)  Zone 6—Multiple Dwelling B.

46   Telecommunication facilities and electromagnetic radiation emitting facilities and structures

(1)  In this clause:

relevant facility or structure means any of the following:

(a)  a telecommunications facility,

(b)  a radio communications facility,

(c)  any other facility or structure that emits electromagnetic radiation in the radiofrequency of the electromagnetic spectrum.

(2)  The consent authority must not consent to development for the purpose of a relevant facility or structure unless it has considered the following matters that are of relevance to the development:

(a)  the extent to which reasonable access to telecommunications and other communications technology that have no adverse impact on human health or the natural environment has been encouraged, or will be encouraged by the proposed development,

(b)  the extent to which the precautionary principle has been applied in choosing the site of the relevant facility or structure,

(c)  the extent to which any proposed relevant facility or structure will be visually compatible with the character of the surrounding area and visually integrated into any building or structure on which it is located.

Division 3 Miscellaneous

47   Temporary use of land

(1)  Despite any other provision of this plan, consent may be granted to the use of any land or building for a purpose that would otherwise be prohibited by this plan, but only for a period of not more than 28 days.

(2)  However, consent must not be granted under this clause to any use of the same land or building (whether or not the same use) for more than 28 days (whether consecutive or not) in any 12-month period.

(3)  The consent authority must not consent to the use of any land or building under this clause unless it is satisfied that:

(a)  suitable arrangements have been or will be made for the removal of any structures erected or works carried out in connection with the use, and for the reinstatement of the land to its former state after the cessation of the use, and

(b)  the use is reasonable having regard to the nature of the use and the desirability of enabling the economic use of land before any further development in accordance with other provisions of this plan, and

(c)  the use would not be likely to adversely affect the residential amenity of the locality concerned, and

(d)  the use would not be likely to adversely affect the viability of any commercial centre in the locality, and

(e)  the use would not be likely to adversely affect the environmental quality of the locality.

(4)  This clause does not apply to a use of any land or building that is designated development.

48   Urban design—general

The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:

(a)  the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained by the proposed development,

(b)  the extent to which any proposed buildings are designed and will be constructed to:

(i)  strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii)  contribute to the desired future character of the locality concerned,

(c)  the extent to which recognition has been given to the public domain in the design of the proposed development and the extent to which that design will facilitate improvements to the public domain,

(d)  the extent to which the natural environment will be retained or enhanced by the proposed development,

(e)  the extent to which the proposed development will respond to the natural landform of the site of the development,

(f)  the extent to which the proposed development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

(g)  the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

49   Urban design—residential buildings

The consent authority must not consent to development for the purpose of residential buildings unless it has considered the following matters that are of relevance to the development:

(a)  the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire,

(b)  the extent to which any adverse impacts of the proposed development on adjoining land and open space in terms of overshadowing, overlooking, views, privacy and visual intrusion will be minimised,

(c)  the extent to which the quality of the streetscape concerned will be improved by the development,

(d)  the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,

(e)  the extent to which any adverse impacts of the proposed development on adjoining land in terms of size, bulk, height, scale and siting will be minimised,

(f)  the extent to which the residential building concerned integrates with a well-designed landscaped setting,

(g)  any opportunities for the provision of affordable housing.

50   Urban design—non-residential development in residential areas

(1)  This clause applies to development, other than residential development, on land in the following zones:

(a)  Zone 1—Environmental Housing (Environmentally Sensitive Land),

(b)  Zone 2—Environmental Housing (Scenic Quality),

(c)  Zone 3—Environmental Housing (Bushland),

(d)  Zone 4—Local Housing,

(e)  Zone 5—Multiple Dwelling A,

(f)  Zone 6—Multiple Dwelling B.

(2)  The consent authority must not consent to development to which this clause applies unless it has considered the following matters that are of relevance to the development:

(a)  the extent to which any proposed non-residential buildings and their design will integrate into the locality concerned,

(b)  the extent to which any such buildings will respond to the local character, and relate to the scale, streetscape, setbacks and use of materials of residential buildings,

(c)  the extent to which the residential amenity of the locality concerned will be protected from detrimental traffic-related impacts and noise associated with the development.

51   Ecologically sustainable development

The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:

(a)  the principles of ecologically sustainable development,

(b)  the extent to which the proposed development will meet the needs of the present without compromising the ability of future generations to meet their needs,

(c)  the extent to which the proposed development will improve the quality of life, both now and into the future, in a way that maintains the ecological processes on which life depends,

(d)  the extent to which the proposed development will contribute to the achievement of high quality ecologically sustainable development outcomes for the urban environment of Sutherland Shire,

(e)  to extent to which the proposed development will retain and enhance the natural environment.

52   Energy efficiency and sustainable building techniques

The consent authority must not consent to development for the purpose of buildings unless it has considered the following matters that are of relevance to the development:

(a)  the extent to which potential energy consumption may be reduced during the construction, occupation, utilisation and lifecycle of proposed buildings,

(b)  the extent to which sustainable natural resources, such as the sun and wind, will be used in proposed buildings to create naturally comfortable living and working environments,

(c)  the extent to which proposed building materials and construction techniques are ecologically sustainable and will:

(i)  minimise the expenditure of energy (including, in the case of building materials, any expenditure of energy involved in their manufacture), and

(ii)  maximise the useful lifecycle of proposed buildings.

53   Transport accessibility, traffic impacts and car parking

The consent authority must not consent to development unless it has considered the following matters that are of relevance to the development:

(a)  the extent to which the proposed development maximises opportunities, through design integration, to provide:

(i)  efficient links to identified transport nodes and corridors, such as railway stations, bus routes, pedestrian and cycle paths, and

(ii)  facilities to cater for bicycle users,

(b)  the extent to which the demand for car parking, where there is good access to public transport nodes, will be managed,

(c)  the extent to which appropriate levels of car parking will be provided in connection with the development,

(d)  the extent to which walking, cycling and the use of public transport have been or will be encouraged,

(e)  the design of proposed car parking areas and access to them.

54   Heritage

(1) Objectives
The objectives of this clause are as follows:

(a)  to conserve the environmental heritage of Sutherland Shire,

(b)  to conserve the heritage significance of heritage items, including associated fabric, settings and views,

(c)  to conserve archaeological sites,

(d)  to conserve places of Aboriginal heritage significance,

(e)  to protect and recognise locally significant trees and natural landforms as part of Sutherland Shire’s environmental heritage,

(f)  to provide flexibility in the application of standards for development or permitted uses of land to enable appropriate conservation of heritage items,

(g)  to ensure timely consultation with State agencies, the relevant local Aboriginal land council and local communities to ensure that measures to conserve items are appropriate,

(h)  to limit inappropriate and unsympathetic development in the vicinity of cultural heritage items.

(2) Requirement for consent
Development consent is required for any of the following:

(a)  demolishing or moving a heritage item,

(b)  altering a heritage item, including (in the case of a building) making changes to the detail, fabric, finish or appearance of its exterior,

(c)  altering a heritage item that is a building, by making structural changes to its interior,

(d)  disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed,

(e)  disturbing or excavating a place of Aboriginal heritage significance,

(f)  erecting a building on, or subdividing, land on which a heritage item is located.

(3) When consent not required
However, consent under this clause is not required if:

(a)  the applicant has notified the consent authority in writing of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development:

(i)  is of a minor nature or consists of maintenance of the heritage item, archaeological site or place of Aboriginal heritage significance, and

(ii)  would not adversely affect the significance of the heritage item, archaeological site or place of Aboriginal heritage significance, or

(b)  the development is in a cemetery or burial ground and the proposed development:

(i)  is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and

(ii)  would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to a place of Aboriginal heritage significance, or

(c)  the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property.

(4) Advertised development
The demolition of a heritage item is advertised development.

(5)  (Repealed)

(6) Archaeological sites of non-Aboriginal heritage significance
The consent authority must, before granting consent under this clause to development on an archaeological site (including development referred to in subclause (2) (d)):

(a)  consider the effect of the proposed development on the heritage significance of the site and any relic known or reasonably likely to be located at the place, and

(b)  be satisfied that any necessary excavation permit required by the Heritage Act 1977 has been granted.

(7)  Subclause (6) does not apply to:

(a)  any development that, in the opinion of the consent authority, does not involve:

(i)  any disturbance of below-ground relics, or

(ii)  any adverse impact on the heritage significance of above-ground relics, or

(b)  any site or relic that is listed on the State Heritage Register.

(8) Places of Aboriginal heritage significance
The consent authority must, before granting consent under this clause to carrying out development in a place of Aboriginal heritage significance (including development referred to in subclause (2) (e)):

(a)  consider the effect of the proposed development on the heritage significance of the place and any Aboriginal object known or reasonably likely to be located at the place, and

(b)  notify the local Aboriginal communities (in such way as it thinks appropriate) about the application and take into consideration any response received within 21 days after the notice is sent.

(9) Heritage impact assessment
The consent authority may, before granting consent to any development on land on which a heritage item is situated, require a heritage impact statement to be prepared.

(10)  For the purposes of considering the matters referred to in subclause (6) (a) or (8) (a), the consent authority must require a heritage impact statement to be prepared.

(11)  A heritage impact statement prepared for the purposes of considering the matters referred to in subclause (8) (a), must be prepared in consultation with a person who, in the opinion of the consent authority, is a suitably qualified Aboriginal archaeologist.

(12)  However, a heritage impact statement is not required to be prepared for the purposes of considering the matters referred to in subclause (8) (a) if:

(a)  the proposed development involves the erection or use of a building and is to be carried out wholly within an existing or previous building footprint, or

(b)  the proposed development is located away from sandstone rock features, shell deposits or other sites that, in the opinion of the consent authority, are, or have the potential to be, of Aboriginal heritage significance.

(13) Certain development permissible if retention of heritage item is dependent on consent
Despite any other provision of this plan, the consent authority may grant consent to the use of land on which a building that is a heritage item is located (including the use of the building) for any purpose if:

(a)  it is satisfied that the retention of the heritage item depends on the granting of consent, and

(b)  the proposed use is in accordance with a heritage conservation management plan that has been approved by the consent authority, and

(c)  the granting of consent to the proposed use would ensure that all necessary conservation work identified in the conservation management plan is carried out, and

(d)  the proposed use would not adversely affect the heritage significance of the heritage item, and

(e)  the proposed use would not have a significant adverse effect on the amenity of the surrounding area.

Note. The website of the Heritage Branch of the Department of Planning has publications that provide guidance on assessing the impact of proposed development on the heritage significance of items (for example, Statements of Heritage Impact).

55   Significant trees or natural landforms

(1)  This clause applies to land on which a significant tree or significant landform is located.

(2)  The consent authority must not consent to development on land to which this clause applies unless it is satisfied that:

(a)  the development will be carried out in a manner that ensures the continued good health of the tree or the continued structural integrity and visual quality of the landforms, and

(b)  in the case of development involving the erection of a building:

(i)  the building will be set back from the drip-line of any significant tree, and

(ii)  the building will not encroach on, or adversely affect, any significant landform, and

(c)  development carried out in the immediate vicinity of significant trees will not result in the alteration of any significant landform or of any contour lines or drainage patterns.

56   Preservation of trees or vegetation

(1)  The objective of this clause is to ensure the protection of trees and bushland vegetation that are fundamental to the conservation of biodiversity in Sutherland Shire.

(2)  This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

(3)  A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by:

(a)  a development consent, or

(b)  a permit granted by the Council.

(4)  The refusal by the Council to grant a permit to a person who has duly applied for the grant of the permit is taken for the purposes of the Act to be a refusal by the Council to grant consent for the carrying out of the activity for which a permit was sought.

(5)  This clause does not apply to a tree or other vegetation that the Council is satisfied is dying or dead and is not required as the habitat of native fauna.

(6)  This clause does not apply to a tree or other vegetation that the Council is satisfied is a risk to human life or property.

(7)  A permit under this clause cannot allow any ringbarking, cutting down, topping, lopping, removal, injuring or destruction of a tree or other vegetation that is or forms part of a heritage item.

Note. As a consequence of this subclause, the activities concerned will require development consent. Clauses 54 and 55 will be applicable to any such consent.

(8)  This clause does not apply to or in respect of:

(a)  trees or other vegetation within a State forest, or land reserved from sale as a timber or forest reserve under the Forestry Act 1916, or

(b)  action required or authorised to be done by or under the Electricity Supply Act 1995, the Roads Act 1993 or the Surveying Act 2002, or

(c)  plants declared to be noxious weeds under the Noxious Weeds Act 1993.

57   Removal of certain vegetation permissible without consent

Despite any other provision of this plan, any development comprised in the removal of any of the vegetation listed in the Table to this clause may be carried out without consent unless the vegetation is or forms part of a heritage item.

Trees

Botanical name	Common name
Acacia podalyriifolia	Queensland Silver Wattle
Acacia saligna	Golden wreath wattle
Acer negundo	Box elder
Araucaria bidwillii	Bunya bunya pine
Arundinaria spp	Clumping Bamboo
Chamaecyparis pisifera spp	Conifer
Cinnamomum camphora	Camphor laurel
Citrus spp	Cumquat, Grape Fruit, Lemon, Lime, Mandarin, Orange (edible species)
Cupressus arizonica	Arizona Cypress
Cupressus macrocarpa var brunniana	Brunnings Golden Cypress
Cupressus sempervirens X Cuprocyparis leylandii	Pencil Pine or Italian Cypress
Eriobotrya japonica	Loquat
Erythrina X sykesii	Coral tree
Ficus benjamina	Weeping fig
Ficus elastica	Rubber tree
Grevillea robusta	Silky oak
Hakea salicifolia	Willow Leaved Hakea
Liquidamber styraciflua	Liquidamber
Lophostemon confertus	Brush box
Morus nigra	Black Mulberry
Olea europaea subsp cuspidata	African Olive
Phoenix canariensis	Canary Island Date Palm
Phyllostachys aurea	Fishpole Bamboo
Phyllostachys nigra	Black Bamboo
Pinus radiata	Radiata Pine or Monterey Pine
Pomme spp	Apple, Crab Apple, Nashi Fruit, Pear, Quince (edible species)
Populus nigra “Italica”	Lombardy poplar
Prunus spp	Apricot, Cherry, Nectarine, Peach, Plum
Robinia pseudoacacia	Black Locust
Schefflera actinophylla	Umbrella tree
Syagrus romanzoffiana	Cocos palm

Weeds

Botanical name	Common name
Acetosa sagittatus	Turkey rhubarb
Ageratina adenophora	Crofton weed
Ageratina riparia	Mist flower
Anredera cordifolia	Madiera vine
Araujia hortorum	Moth vine
Arundo donax	Giant reed
Bambusa spp	Bamboo
Cardiospermum grandiflorum	Balloon vine
Chamaecytisis palmensis	Tree lucerne
Coreopsis lanceolata	Coreopsis
Cotoneaster franchetii	Grey Leaf or Franchet Cotoneaster
Cotoneaster glaucophyllus	Large Leaf Cotoneaster
Cotoneaster lacteus	Milkflower Cotoneaster
Cotoneaster pannosus	Silver Leaf Cotoneaster
Cytisus scoparius	Scotch broom
Delairia odorata	Cape ivy
Dipogon lignosus	Dolichos pea
Ehrharta erecta	Veldt grass
Eragrostis curvula	African love grass
Erigeron karvinskianus	Erigeron daisy
Genista monspessulana	Montpellier broom
Hedera helix	English ivy
Hedychium gardnerianum	Wild ginger
Hydrocotyle bonariensis	Kurnell curse
Ipomoea cairica	Coastal morning glory
Ipomoea indica	Morning glory
Ligustrum lucidum	Large leaf privet
Ligustrum sinense	Small leaf privet
Lonicera japonica	Japanese honeysuckle
Myrsiphyllum asparagoides	Bridal creeper
Nephrolepis cordifolia	Fish bone fern
Ochna serrulata	Ochna
Paraserianthes lophantha	Crested wattle
Persicaria capitata	Japanese knot weed
Polygala myrtifolia	Polygala
Protasparagus aethiopicus	Asparagus fern
Protasparagus plumosus	Climbing asparagus
Psoralea pinnata	African scurf pea
Senecio angulatus	Climbing groundsel
Senna pendula var glabrata	Cassia
Sollya heterophylla	Bluebell creeper
Thunbergia alata	Black-eyed Susan
Tradescantia albiflora	Wandering Jew
Vinca major	Blue periwinkle

Noxious weeds

Botanical name	Common name
Acacia nilotica	Prickly Acacia
Alternanthera philoxeroides	Alligator weed
Cestrum parqui	Green cestrum
Chrysanthemoides monilifera	Bitou bush
Cortaderia selloana	Pampas grass
Cylindropuntia spp	Tree Cholla
Eichorina crassipes	Water hyacinth
Gymnocoronis spianthoides	Sengal tea plant
Hypericum perforatum	St John’s wort
Lantana camara	Lantana red and pink flower
Ludwigia peruviana	Ludwigia
Mimosa pigra	Mimosa
Oputia spp	Prickly pear
Parietaria judaica	Asthma weed
Ricinus communis	Castor oil plant
Salix spp	Willows (includes all Salix species except Salix babylonica, Salix reichardtii and Salix calodendron)
Salvinia molesta	Salvina
Tamarix aphylla	Athel Tree
Toxicodendron succedaneum	Rhus tree

58   Savings and transitional provision

A development application made, but not finally determined, before the commencement of Sutherland Shire Local Environmental Plan 2006 (Amendment No 4) is to be determined as if the plan had been exhibited but had not been made.