The proposal has been assessed against the provisions of the DCP. Specifically:
Part B Section 2 – Residential
Part D Section 5 – Kellyville/ Rouse Hill Release Area
The Section 4.55(1A) modification application does not propose to amend any DCP controls beyond the variations previously considered relating to the dimensions of the lots, which remain as previously approved. The modification application is consistent with the requirements of both Part B Section 2 – Residential and Part D Section 5 – Kellyville/ Rouse Hill Release Area of the DCP. The requested changes are low impact and considered reasonable as explained above.
3. Issues Raised in Submissions
The proposal was notified for 21 days. Two submissions were received. One of those submissions was from a consultant acting on behalf of two adjoining property owners. The issues raised in the submissions are addressed below.
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ISSUE/ OBJECTION COMMENT
Concern is raised with the impacts on sight lines (vision) entering/ exiting the driveway associated with No. 52 Green Road if the realignment of the fence and the additional planting of trees in the Green Road footpath verge is approved.
The site was inspected and it was determined that the planned fence and additional landscaping will not impede sight lines south along Green Road beyond that available now. Specifically, there is an existing tree located in the footpath verge fronting No. 52 Green Road that is likely to be the main constraint with respect to sight lines. A request has been lodged with Council’s Reactive Maintenance team to investigate the impacts this existing tree is having now. If this tree does pose a safety risk with respect to access and sight lines, it will need to be pruned as necessary to address this concern.
It is also worth noting that No. 52 Green Road has a turning bay within the front setback of that property which ensures that vehicles are able to enter and exit the property onto Green Road in a forward direction. Further, should that property be developed, access would be required via Carlisle Crescent and the existing access onto Green Road would be removed similar to the subject subdivision.
The revised fence alignment is consistent with the existing property boundary. The footpath verge is flat and wide (approximately 5.5m) and provides ample opportunity for the additional landscape screening clear of the road carriageway. The species of planting will be consistent with what exists along Green Road.
It is again further advised to Council, noting that this modification proposal relates to the original substantive subdivision approval of the site. In submission to Council on 5 June 2018 it was respectfully submitted that the then proposed subdivision should be refused without consideration to a “deferred commencement” approval.
This comment does not relate to the subject modification application. The original application has been approved subject to deferred commencement conditions. The concerns raised previously were considered in the assessment and determination of the parent application. This modification application, like the parent application, has been assessed on its merits with regard to the relevant controls and is considered to be consistent with the LEP and DCP.
Council made an error in law in providing deferred development consent for the subdivision.
Under Section 4.16(3) of the Environment Planning and Assessment Act, 1979, deferred commencement is a valid method of approval as follows:
Development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with
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ISSUE/ OBJECTION COMMENT
the regulations, as to any matter specified in the condition.
Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
The decision to issue a deferred commencement development consent is within the scope of Section 4.16(3).
Council made an error in law by approving the subdivision because the existing easement created in 1997 over No’s 14 and 16 Carlisle Crescent cannot be utilised to benefit a new subdivision over No. 48 Green Road. A new easement agreement to service the new two lot subdivision is required and the original application should have failed as should this modification application.
The submission suggests the existing 6m right of carriageway easement has been abandoned or should cease to apply if the benefitted lot is developed (in this case subdivided).
No documentation or proof of the easement having been abandoned has been provided by the objector. The easement remains on the title of the burdened and benefitted lots. As the easement is still on title and active, a new easement (or agreement) is not considered necessary. . Further, for the easement to have been abandoned, Council would have been notified and required to comment as part of the Release by Abandonment process. As the proposal relies on the easement, it is evident that it has not been abandoned.
4. Internal Referrals
The application was referred to following sections within Council:
Planning Engineering
Tree management/ landscaping
No objection was raised to the proposal (as amended) subject to conditions.
CONCLUSION
The Development Application has been evaluated against the relevant matters to be considered as specified in Section 4.15 and 4.55(1A) of the Environmental Planning and Assessment Act 1979, The Hills Local Environmental Plan 2012 and The Hills Development Control Plan 2012 and is considered satisfactory. The issues raised in the submissions have been addressed in the report and do not warrant refusal. The subject modification application is recommended for approval subject to deferred commencement conditions (as proposed to be amended).
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Financial
This matter has no direct financial impact upon Council's adopted budget or forward estimates.
The Hills Future Community Strategic Plan
The proposed development is consistent with the planning principles, vision and objectives outlined within “Hills 2026 – Looking Towards the Future” as the proposed development provides for satisfactory urban growth without adverse environmental or social amenity impacts and ensures a consistent built form is provided with respect to the streetscape and general locality.
RECOMMENDATION
The subject application is recommended for approval subject to deferred commencement conditions (as proposed to be amended).
DEFERRED COMMENCEMENT CONDITIONS ARE AMENDED AS FOLLOWS:
A. In accordance with Section 4.16(3) of the Environmental Planning and Assessment Act 1979, the development application has been granted deferred commencement consent subject to:
1. Development consent being obtained for all essential services and works within the existing right of carriageway and easement for services created by DP 870865 over Lot 140 DP 870865 or Lot 142 DP 870865 (14 or 16 Carlisle Crescent, Kellyville) to service the development complying with the requirements of The Hills Shire Council.
For the purposes of this condition “essential services” includes:
The supply of water, The supply of electricity,
The supply of telecommunications services, and Suitable vehicular access.
Stormwater drainage is not included in this list of “essential services” and must be addressed separately in accordance Deferred Commencement Conditions A2 and A3 below.
2. The creation of a 1.5m wide (minimum) easement to drain water over Lots A and B DP 354363 (50 and 52 Green Road, Kellyville) and Lot 2 DP 877340 (Alan Pearce Reserve, 2Z Samantha Riley Drive, Kellyville) connecting to the existing public stormwater drainage network within that reserve. Alternatively, a 1.5m wide (minimum) easement to drain water over Lot 140 DP 870865 or Lot 142 DP 870865 (14 or 16 Carlisle Crescent, Kellyville) connecting to the street drainage network in Carlisle Crescent will also satisfy this condition.
3. Development consent being obtained for the stormwater drainage works within the easement/s created in accordance with Deferred Commencement Condition No. A2 above.
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PAGE 67 B. The applicant must provide Council with written evidence demonstrating that the matters listed under Deferred Commencement Conditions A1, A2 and A3 above have been satisfactorily addressed no later than four weeks before the notice of expiry date.
C. The development consent shall not operate until Deferred Commencement Conditions A1, A2 and A3 specified above are completed to Council’s satisfaction.
Upon compliance with the requirements of Deferred Commencement Conditions A1, A2 and A3 above, a full consent will be issued subject to the following conditions:
GENERAL MATTERS