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3. Issues Raised in Submissions
The proposal was notified for 14 days when the DA was lodged. In response, submissions were received from 11 properties (5 of which are unique).
The issues raised in the first round of submissions are summarised below:
ISSUE/OBJECTION COMMENT
The rear setback of 2.84 metres does not
comply with the DCP. Table 1 of Clause 2.3(a) of the DCP states that the minimum rear setback for a dual occupancy development is permitted to be 900mm to the ground floor and 4 metres to the first floor provided the requirements for private open space are met.
As detailed in this report, the requirements for private open space were not met and as a result, the applicant was requested to amend the design.
Amended plans were subsequently submitted increasing the rear setback from 2.84 metres to 9.36 metres (Refer to Attachment No. 3).
The DCP control referenced in the submission is a development standard for dwellings contained in the DCP Part D Section 7 – Balmoral Road Release Area. The control requires a minimum 4 metre ground floor setback and a 6 metre first floor setback for a dwelling.
While it is noted that these are not the
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development standards that are used when assessing a dual occupancy development, the amended setback still achieves compliance with the abovementioned dwelling development control.
The fill proposed at the rear, coupled with the non-compliant rear setback, will adversely impact privacy and allow overlooking into adjoining properties.
The rear of the development (alfresco area) was approximately 770mm above existing ground level at the highest point.
After concern was raised with the proposed design, the rear setback was increased to 9.36 metres and the alfresco area has been removed from the design altogether.
The rear of the development is now approximately 590mm above existing ground level at the highest point and there are no first floor rear facing windows proposed.
All fill is proposed to be contained within the building footprint.
In addition, an amended Landscape Plan was submitted that now includes tree planting along the side and rear property boundaries in the rear yard to mitigate overlooking and assist in protecting privacy.
The addition of tree planting, a reduction in fill within the building footprint and a significantly increased rear setback are considered sufficient to mitigate any adverse privacy impact and overlooking into adjoining properties.
The landscaping proposed does not meet the requirements of the DCP and is not consistent with surrounding properties.
The original landscape plan submitted showed only grass was proposed for the development and as detailed in Section 2 of this report, the overall landscaped area provided did not meet the minimum area required for a dual occupancy development.
The applicant was requested to amend the design and amended plans were submitted that showed that the landscaped area of the development had been increased to comply with the DCP.
Tree and shrub planting is also now proposed throughout the site (Refer to Attachment No. 5).
There are concerns regarding the management of stormwater given the setbacks and landscaping proposed.
As detailed in this report, the design has been amended to increase building setbacks as well as the landscaped area provided within the lot. In
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addition, an amended Landscape Plan has been submitted which now includes tree and shrub planting throughout the site.
The improved the landscape outcome, coupled with the stormwater management design, is considered sufficient to ensure stormwater can be managed effectively for the proposed developments without adverse impact on adjoining properties.
The proposed development is not aesthetically pleasing as it is a mirror image. It will not complement existing surrounding development.
As detailed in Section 2 of this report, amendments have been made to the external appearance of the development to ensure it does not present as a mirror image design.
The amended design is considered to be in keeping with existing development (Refer to Attachment No.’s 4 and 7) and the low density character of the area.
The development will impact solar access
to adjoining properties. The private open space of the subject lot, as well as those on the adjoining properties, faces north.
As detailed above, concern was raised with the rear setback originally proposed and it has been increased to 9.36 metres.
Amended shadow diagrams have also been submitted that demonstrate that compliant solar access is provided to both the subject lot and adjoining properties (Refer to Attachment No. 6).
When the adjoining dwelling to the side of this property was planned, consideration was given to side facing windows to ensure privacy impacts were minimised.
Given the nature of the development, it will likely be a rental property, and so concern is raised with the proposed first floor windows and how they overlook the adjoining property. It is requested that the windows be obscure glass.
In this regard, it is worth noting that the first floor side setback requirements for a dual occupancy and a dwelling are different.
A minimum 900mm side setback is permitted for dwellings however a dual occupancy development is required to provide a minimum 4 metre first floor side setback.
One of the objectives of the setback clause of the Dual Occupancy DCP (Clause 2.3) is to ensure privacy is protected and overshadowing of adjoining properties is minimised.
The building setbacks for the proposed development have been amended to comply with those detailed in the Dual Occupancy DCP.
In addition, the number of windows proposed on
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each side of the development has been reduced from five to four. The first floor side facing windows that remain are for an ensuite, a void area and two bedrooms. The ensuite window is small and positioned toward the front of the building. The void area is not habitable and therefore overlooking from this window is not possible and the bedroom windows are a standard size.
Requiring bedroom windows to be obscure glass is not considered to be appropriate in this instance as they are the only windows for these bedrooms as no first floor rear facing windows are proposed.
In addition, an amended Landscape Plan was submitted that now includes tree planting along the side and rear property boundaries in the rear yard to mitigate overlooking and assist in protecting privacy.
As a result of the amendments made, the proposed development satisfies the DCP objectives and is considered satisfactory.
The setbacks proposed are not a true reflection of the actual dimensions and will adversely impact property values.
The setbacks detailed on the plans are required to be adhered to if approval is granted.
Notwithstanding this, the setbacks have been amended as detailed in this report and are now considered satisfactory with regard to the DCP.
Impact on property values is not a consideration during the assessment of an application however it is noted that the proposed development is a permissible form of development in the zone.
The open space provided is not consistent
with adjoining properties. It is acknowledged that the original design and open space provided was not consistent with adjoining properties, however amended plans have been submitted amending the setbacks to 9.36 metres to the rear boundary and 4 metres to both sides (for the portion of the development behind the garage).
If a dwelling were proposed on the subject lot, a 4 metre rear setback and a 900mm side setback would be permitted within which open space would be provided.
The setbacks that are now proposed exceed those required for a dwelling and allow for each dwelling to be provided with in excess of 140m2 of useable private open space.
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The amended design is considered to be consistent with adjoining properties and satisfactory with regard to the DCP.
An adjoining property was intending on installing solar panels however the impact of the proposed development will render this endeavour pointless.
As detailed in this report, the proposal has been amended to ensure compliance with the setback controls for a dual occupancy development are achieved. These setbacks, it is also noted, also exceed some of those required for a dwelling.
The building height proposed (8.8 metres) is less than the 10 metres permitted for any development on the lot.
Shadow diagrams have been submitted which demonstrate that adequate solar access is provided to both the subject lot and adjoining properties (Refer to Attachment No. 6).
As a result, the proposed development is not considered to adversely impact adjoining properties any more than a dwelling on the lot would any further amendment to the design is not considered appropriate in this instance.
The front setback proposed does not comply with the Balmoral Road Release Area DCP which requires 6 metres.
In addition, the front porch setback is not dimensioned on the plans and appears to be around 3.6 metres.
As detailed in Section 2 of this report, Clause 2.3(b) of the Dual Occupancy DCP states that front setbacks are to be consistent with the setbacks in the locality to a minimum of 4.5 metres.
As a result, Clause 8.1.1(b) of the Balmoral Road Release Area DCP was consulted to ensure the proposed development is consistent with setbacks permitted for a dwelling in the locality.
The minimum front setback required to be provided is 6 metres however it is noted that stairs, single storey verandahs, single storey entry features, and single storey porticos are permitted to encroach up to 1.2 metres into the building setback. In this instance, this would result in a setback of 4.8 metres to the abovementioned features being permitted also.
The plans originally lodged with the DA showed a front setback of 5.5 metres was proposed with a 3.6 metre setback to the porch.
The applicant was requested to amend the design and amended plans were submitted that show that
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a 6 metre front setback is now proposed with a 4.8 metre setback to the single storey porch.
These setbacks are considered to be consistent with the locality as required by Clause 2.3(b) of the DCP and the amended design is considered satisfactory.
Clause 2.8(a) of the DCP states that dual occupancies are to portray an external appearance of a single dwelling.
The proposed development is mirror imaged with two garages, two driveways, two front doors and two porches.
A good example of a better design is 49 John Hillas Avenue.
As detailed in Section 2 of this report, the front façade has been amended to modify finishes, window and door selections and porch roof styles to provide points of difference to the development from the street.
A dual occupancy is, by definition, two dwellings on one lot of land and therefore some separation (and by consequence, duplication of elements) is required, such as two front doors and entry porches as both dwellings cannot be accessed from the same front door.
It is acknowledged that some dual occupancies utilise a shared driveway however there is no DCP control that stipulates that a shared driveway is the only acceptable driveway configuration.
The applicable DCP controls are instead used as a guide to ensure consistency is achieved with existing and future development in an area.
The development at 49 John HIllas Avenue was reviewed and while it is noted that the design differs from the one proposed on this lot, it is not the role of Council to dictate design to an applicant as it is accepted that needs and tastes differ from person to person.
The bulk and scale of the development has not been minimised. It has been designed to provide maximum bulk with little regard to visual aesthetics.
As detailed in this report, the proposal has been amended to increase building setbacks, modify the external appearance and improve the landscape outcome throughout the site effectively reducing the overall bulk and scale of the development.
Garages should be located behind the building line and not prominent elements in the streetscape. Two driveways will affect safety for pedestrians.
The proposed garages are located behind the front building line (Refer to Attachment No. 3).
As mentioned above, there is no DCP requirement that prevents two driveways being provided for a dual occupancy development.
The amended proposal has been reviewed against the relevant controls in the DCP and is considered
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satisfactory.
The proximity of the driveway to the side boundary will impact stormwater runoff into the adjoining property.
In addition, there is no landscape screening between the driveway and side property boundary.
The setback of the garages from the side property boundaries are 1.095 metres and 1.1 metres which complies with Clause 2.3(a) of the Dual Occupancy DCP as well as the setback controls for dwellings. The side setbacks proposed are also consistent with surrounding development.
The original Landscape Plan proposed only grass within the front setback area which was not acceptable.
An amended Landscape Plan has been submitted which now proposes shrub planting between the driveways and side boundaries (grevillea) which will grow to a height of 1.5-2 metres as well as tree and shrub planting between the driveways (Refer to Attachment No. 5).
Both driveways are also now splayed in at the front boundary to minimise hardstand within the site and maximise opportunities for landscaping within the front setback area. Again, this is in keeping with driveways for the surrounding dwellings, most of which service triple garages.
Approving the development will set a precedent for undeveloped land in the area.
The proposed development is a permissible form of development in the zone and therefore will not set any precedent for undeveloped land in the area.
When the amended plans were submitted on 14 July 2021, the proposal was again notified for 14 days. Submissions were received from 15 properties plus 7 further submissions from properties who lodged a submission to the original proposal. Of the submissions received, 5 are unique.
The issues raised in the second round of submissions are summarised below:
ISSUE/OBJECTION COMMENT
Lot size / Zone Objectives / Density
The area has a minimum lot size of 700m2 and is zoned for low density residential dwellings only.
Permitting development that will essentially be 2 separately serviced and accessed dwellings on what will essentially be 2 x 350m2 blocks is unacceptable. This is a higher density of residential occupation than that contemplated by the zoning.
The area is subject to a 700m2 minimum lot size as per The Hills Local Environment Plan 2019 (LEP). Subdivision of the development is not proposed and therefore compliance with the LEP lot size control is maintained.
The subject lot is zoned R2 Low Density Residential. A range of development is permissible with consent in this zone, including dual occupancies.
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It would be extremely reckless of Council to permit such a development. It will lower the baseline of what is acceptable in an area where all the surrounding the properties have a minimum area of 700m2 The development does not meet the objectives of the R2 zoning that apply:
• To provide for the housing needs of the community within a low density residential environment.
• To maintain the existing low density residential character of the area.
This development will set a precedent for undeveloped land and negatively impact the amenity, enjoyment and value of all properties in the area.
As per Clause 4.1A(2) of the LEP, an attached dual occupancy development is permissible on a lot that is 600m2 or larger in the zone. The subject lot is 700m2 in size. As a result, the proposed development will not set a precedent for undeveloped land in the area.
The proposed development will provide for the housing needs of the community and as it is permissible in the zone, is also considered to maintain the low density residential character of the area. As a result, the proposed development is considered to satisfy the zone objectives.
DCP Objectives
These are just some of the DCP objectives (in one of the applicable DCPs):
• Encourage a high standard of aesthetically pleasing and functional developments that sympathetically relate to adjoining and nearby developments.
• Encourage innovative and imaginative design with particular emphasis on the integration of buildings and landscaped areas that add to the character of the neighbourhood.
• Ensure the appearance of dual occupancy developments enhance the streetscape, complement adjoining and surrounding residential or rural development in terms of scale and character
• Ensure dual occupancy developments are compatible with the desired nature of housing within the Shire
• Complement the streetscape, protect the privacy of … adjoining dwellings
• Ensure a high standard of environmental
As detailed in this report, the proposed development has been reviewed against the relevant controls for dual occupancy development and achieves compliance. As a result, the proposed development is considered to complement and integrate with development in the area and consequently satisfy the relevant DCP objectives.
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quality of dual occupancy developments and the overall visual amenity and character of the neighbourhood
• To provide a satisfactory relationship between buildings, landscaping areas and adjoining developments
• Site and design buildings to ensure visual privacy between dwellings in accordance with Council’s ESD objective 7
• Avoid overlooking of living spaces in dwellings and private open spaces.
• Provide sufficient convenient parking and manoeuvring for residents in order to maintain the amenity of adjoining properties, the efficiency of the road network and the safety of road users
• Ensure that all carparking demands generated by the development are accommodated on the development site There is also the requirement for many of these to be read together with the Council’s ESD Objectives, and in particular, ESD 7 in Part A of the Hills DCP, which states:
‘To protect neighbourhood amenity and safety in the design and construction and operation of the development.’
While it is acknowledged that legislation does state that a DCP does not have statutory effect, and Section 4.15(3A) of the Act provides that where there is a DCP that applies to the land, as is the case here, Council “should be flexible in applying the DCP and allow reasonable alternative solutions that achieve the objects of the DCP” for dealing with that aspect of the development, this does not require Council to grant development consent, or apply a loose interpretation of the DCP, where the objectives of the DCP have not been achieved.
The development fails to meet the objectives of the DCP.
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DCP Controls
While it is noted that the type of development is permissible, it should be subject to strict compliance with planning requirements in particular, the Balmoral Road Release Area DCP.
Approving the DA will be unfair to the other properties in the area that have gone to extreme extents to comply with planning requirements.
The proposal has been assessed against the relevant provisions of DCP Part B Section 3 – Dual Occupancy.
DCP Part D Section 7 - Balmoral Road Release Area does not contain development standards for this type of development.
As detailed in this report, the proposed development is considered satisfactory and compliant with regard to the objectives and development standards of the DCP.
Character
The character of the area is determined by its zoning, character of surrounding property, the quality of the proposed dwelling and its capacity to add value and amenity of the area.
For all functional purposes, other than title based ownership interests, the property will function as, and is designed to operate as, 2 separate dwellings with separate entry points, road access and garages which will ultimately serve as medium density housing in direct contravention of the low density character of the area.
This intent is clear from all documentation submitted to Council by the applicant – that the design, streetscape, use and function of the dwellings are unreservedly and unapologetically medium density in nature and character, pushing every possible DCP design requirement to, or beyond its maximum limit.
How does the proposed development possibly achieve any amenity for future residents of the development (which is a DCP objective) when it has built to the maximum size and soft to hard surface ratio without any sheltered open space or reasonable private open space in either of the 350m2 dwelling zones?
A dual occupancy is, by definition, two dwellings on one lot of land and therefore some separation (and by consequence, duplication of elements) is required, such as front doors and entry porches as both dwellings cannot be accessed from the same front door. This does not mean that a development is out of character with the area however.
The proposed development is considered to be in keeping with the low density residential character of the area and the scale is in proportion with existing development in the area. This is demonstrated by the fact the proposed development achieves compliance with the built form development standards within the DCP, such as setbacks, building height and floor space ratio.
The proposed development is a two storey development which is consistent with surrounding development. The development is proposed to be constructed of concrete roof tiles and a rendered and painted finished wall which is also consistent and in keeping with surrounding development.
Each dwelling is proposed to be provided with a double garage. As can be seen in Attachment No.
7, all the surrounding dwellings are provided with either a double or triple garage.
As detailed in this report, the building setbacks comply with the DCP and the building height is less than the 10m permitted for any development on the lot.
An amended Landscape Plan has been submitted which provides good quality, dense landscaping within the front setback as well as trees in the rear yard to provide screening and protect privacy. The