The proposed development has been assessed against the provisions of the DCP, specifically Part B Section 1 – Rural. The proposed development does not comply with the relevant requirements of the DCP as tabulated below:
CONTROL PROPOSAL COMPLIANCE
Part 1: General Development Minimum Lot Width (for lots fronting a public road)
60m at the building line
All lots: 60m (minimum) Yes
Building Platforms (all rural development)
Minimum size 15m by 20m Must not be sited on slopes greater than 20% or on prominent ridgelines
All lots: 15m by 20m (minimum) Yes
New Public Road Construction Width
20m
A new (private) road is proposed, which is 10 metres wide
N/A
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CONTROL PROPOSAL COMPLIANCE
Minimum area for wastewater and effluent disposal areas 1,000m2
Insufficient information has been submitted; it has not been clearly illustrated that the proposed lots achieve compliance with this control
No, see report/ below
Battle-axe lots may be considered on merit based on site constraints. Minimum access widths are set out below:
Number of lots to be accessed
Minimum access widths One lot 6.0 metre
wide access handle with the
construction of a 3.0 metre wide all-weather pavement 2 to 4 lots 6.0 metre
wide access handle with the
construction of a 3.0 metre wide all-weather pavement and suitable passing bays Greater than
4 lots
Public road required Note: Refer Council’s Subdivision Design Guidelines for specification detail.
No battle-axe shaped lots are proposed; all of the proposed lots have direct frontage and access to the planned new road
N/A
Site Layout
Lots must be clustered and grouped
A minimum of 3 development lots (excluding the association property) are to be provided.
Lot location and arrangement must consider both ecological constraints and bushfire risk
The proposed subdivision is clustered/ the lots are grouped together.
Eight development lots are proposed. However, as discussed this results in the overdevelopment of the site due to the ecological and bushfire constraints described earlier.
Yes
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PAGE 63
CONTROL PROPOSAL COMPLIANCE
The location of the eight development lots, specifically Lots 6 to 9, has not been planned to accord with the requirements of the Rural Fire Service or the constraints of the site, namely slope and ecology.
Site Access
Vehicular access must be via a common driveway with secondary access to individual dwellings
Site Access: Separate access to individual dwellings from an existing public road may be considered where a single common driveway is not achievable due to site constraints or where necessary to facilitate emergency access for emergency services.
All of the proposed lots have direct frontage and access to the planned new (private) road. The proposal does seek to retain the existing driveway to/ from Old Northern Road for the existing dwelling on proposed Lot 5;
which the Roads and Maritime Services have supported subject to conditions relating to the design and use of this driveway.
This is permitted by the DCP, as noted.
Yes, subject to the DCP foreshadowing variations being accepted on merit
Association Property Minimum 60% of site area All lots must have direct access to the association property
The association lot has an area of 10.44 hectares, being 64.6%
of the total site area. However, the site is significantly constrained with respect to ecology and slope, and by extension bushfire safety also.
This DCP control is a minimum requirement and for constrained sites like this, it is expected that a larger retained area will be required to adequately respond to these constraints, which has not occurred here.
Yes, however still considered insufficient with respect to the site
constraints and
environmental impacts
Vegetation Management Plan A Vegetation Management Plan shall demonstrate the subdivision will ensure the protection of the landscape, biodiversity and rural setting of the land
Environmental management measures must demonstrate:
The same or greater biodiversity values on the site will be retained after subdivision
The applicant has submitted an arborist report and a flora and fauna report which have been reviewed by Council’s Environmental Health team. It is considered that these reports do not accurately represent the quality of vegetation and fauna habitat on the site. The underestimation of habitat quality and potential impacts result in additional impacts to threatened species and their habitats above that considered
No, see report/ above
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CONTROL PROPOSAL COMPLIANCE
Natural creek lines are protected from increased nutrient loads and weed infestation, and
High biodiversity features including threatened ecological communities, populations, species and their habitats are maintained
Note: Refer Council’s Vegetation Management Plan Guidelines for detailed guidelines on content and requirements.
by the applicant.
Should the application be approved a condition of consent would need to be imposed requiring a Vegetation Management Plan to be established over the community association lot which details how the vegetation is to be managed on an ongoing basis. This would be bound to the title and be a legal obligation on the association once formed.
Council’s Vegetation
Management Plan Guidelines allow for these Vegetation Management Plans to be submitted post-determination; as opposed to with the development application.
Part 2: New Development Minimum Setbacks
Lots fronting a classified road 30m
Lots fronting any other road 10m
Side and rear setbacks 5m
Side setback for a residential dwelling adjacent to a lot where intensive plant agriculture, intensive livestock agriculture, rural industry, plant nursery or other approved rural activity
40m
All lots:
Setbacks to Old Northern Road:
10m (minimum)
Setbacks to the internal/ new road: 10m (minimum)
Side and rear setbacks: 5m (minimum)
Yes
Cut and fill
Cut shall not exceed 1m and fill shall not exceed 600mm.
Filling of land is to only be in conjunction with an approved land use or legitimate rural activity such as horse riding.
Fill shall be limited to the use of Virgin Excavated Material as defined under the Protection of the Environment Operations Act 1997
No cut or fill greater than 1m or 0.6m respectively is proposed as part of the subdivision works;
however those works do not represent an acceptable outcome with respect to bushfire safety. The Development Application has not given adequate consideration to the site constraints and is likely to significantly impact upon existing species and their habitats, without then also accounting for the additional
Yes, however the design presented does not represent an acceptable outcome with respect to bushfire safety
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CONTROL PROPOSAL COMPLIANCE
significant impacts required in order for the concerns of the Rural Fire Service to be addressed (namely the extension of the Asset Protection Zones, flattening and filling of the cliff face and steeply sloped areas and the inclusion of a perimeter fire trail, which cannot be reasonably accommodated anyway).
Stormwater Management Stormwater management arrangements are to demonstrate there are no impacts to adjoining lots, watercourses or existing native bushland.
Stormwater runoff from the lots is able to be managed as/ when the lots are developed.
Yes
Wastewater and effluent disposal areas
Proposals must demonstrate sufficient area is available for any proposed on-site sewerage management and effluent disposal areas.
Proposals must ensure compliance with Council’s applicable Local Approvals Policy.
Wastewater and effluent disposal areas must be located on land that meets the following locational criteria:
40m from a dam or intermittent watercourse 100m from a permanent water course
6m from a structure, property boundary or native vegetation Not on slope greater than 15%
Soil depth greater than 300mm
Insufficient information has been submitted; it has not been clearly illustrated that the proposed lots achieve compliance with this control
No, see report/ below
The proposal does not comply with the DCP as outlined in the above table.
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PAGE 66 Onsite Wastewater/ Effluent Disposal
The applicant was requested to provide sufficient information addressing the DCP and Council’s Local Approvals Policy with respect to this matter, which was not forthcoming. The most recent comments from Council’s Environmental Health team with respect to this matter state:
The further information provided for the wastewater report is inadequate.
The applicant must clearly demonstrate either:
a) 300mm of soil depth across 1,000 square metres for effluent disposal (in addition to other matters listed in the DCP); or
b) Demonstrate a suitable effluent disposal system could be installed for each proposed lot (not complying with the DCP, but able to be considered on its merits). The system should be designed on a minimum of 5 bedrooms.
The submission received has not demonstrated 300mm across all proposed lots and nor has it demonstrated that a system could be installed, rather it states that soil could be imported if needed and designed at the development application stage for a future dwelling. The problem with this approach is that if a suitable system cannot be installed, the development could be severely constrained.
5. Internal Referrals
The application was referred to following sections of Council:
Planning
Engineering
Environmental Health (contamination, onsite wastewater and road traffic noise)
Tree Management
Ecology/ Sustainability (vegetation management)
Resource Recovery (waste management)
Heritage (Old Northern Road) Onsite Wastewater/ Effluent Disposal
As noted earlier in the report, the Development Application has not been accompanied by information sufficient to enable Council’s Environmental Health team to assess whether the lots ought to be created/ are able to be serviced by an onsite wastewater system when developed later, complying with the DCP and Council’s Local Approvals Policy. The lots/
areas of concern are Lots 6 to 9 across the rear of the site, which are the same lots that are not supported from an ecology, slope and bushfire safety perspective.
Vegetation Management
The applicant submitted an arborist report and a flora and fauna report which have been reviewed by Council’s Environmental Health team. It is considered that these reports do not accurately represent the quality of vegetation and fauna habitat on the site; the underestimation of habitat quality and potential impacts result in additional impacts to threatened species and their habitats above that considered by the applicant. This issue was raised with the applicant who has not adequately responded to these concerns. The most recent comments from Council’s Environmental Health team with respect to this matter state:
DEVELOPMENT ASSESSMENT UNIT MEETING 25 SEPTEMBER, 2018
PAGE 67 The Keystone report cannot be relied upon for input into the bushfire hazard assessment as the quadrats surveyed are located in the extreme western portion of the site >250m from the proposed lot boundaries. The report itself states that
“understorey is dense in parts due to the time since fire, with the mid stratum currently occupied by young trees as well as shrubs”. While this assessment was conducted in the western portion, it indicates a vegetation community that is undergoing a succession process, with increasing complexity expected over time and if not currently then likely to climax as a Forest vegetation type.
The flora and fauna report is also referenced in the letter as supporting the vegetation classification with respect to fire hazard. The report uses general criteria to assess habitat quality for threatened flora, generally around species diversity, vegetation structure and weed presence/ absence. Soil disturbance is only listed under one criteria (cleared and disturbed), and fire history and/ or regeneration is not included under any criteria.
The report states that the area below the ridgeline in the community lot (below the cliff line where the Asset Protection Zone would extend in Lots 7 to 9) contains native trees, shrubs, grasses, and groundcovers, and no weed species are mentioned.
Based on the criteria, this would equate to good habitat. While some cleared areas occur on the north south ridgeline in Lots 6 to 9, the vegetation as described would also fit into the good category. As stated previously, in the cleared areas that have been slashed, native plant regeneration is occurring.
Using the fauna habitat criteria, the community lot is assessed as good by the consultant and Lots 6 to 7 as moderate. The majority of Lots 8 and9 should also be assessed as good, with the poorer quality portions located adjacent to the cleared and disturbed areas.
Quotes from the arborist report are also provided to support the theme of lower quality open vegetation; however that report also recognises that the high density of shrubs/ small trees recorded is a result of previous fires. This again is evidence of a successional ecology on the site, and it is likely fully structured diverse native Forest vegetation would develop over time if left undisturbed.
Finally, the creation and ongoing maintenance of Asset Protection Zones below the cliff line is not practical for residential lots. While erosion may be an issue, the initial removal and ongoing maintenance to remove vegetation within an area only accessible on foot via steep pedestrian paths is problematic.
In summary, the vegetation type is Forest from a bush fire hazard perspective, and habitat quality and tree health do not significantly influence the setbacks required to establish a satisfactory, from a bushfire perspective, building envelope when conducting an assessment under Planning for Bushfire Protection 2006.
Again, the condition and quality of vegetation, fauna habitat and tree health within proposed Lots 6 to 9 is being down-graded; with information drawn from reports that use conclusions based on qualitative criteria and/ or limited assessments. The tree assessment was not prepared by a suitably qualified Australian Qualification Framework Level 5 Arborist (minimum Diploma Arboriculture or equivalent) as per Council requirements.
DEVELOPMENT ASSESSMENT UNIT MEETING 25 SEPTEMBER, 2018
PAGE 68 The tree survey did not survey any trees below the cliff line, so that report cannot be referenced in trying to establish the quality of vegetation in areas west of the proposed lots. That report did observe numerous young trees and dense Casuarina, again indicating vegetation that is actively regenerating following previous disturbance due to fire and/ or clearing.
In summary, the tone of the letter and discussions in the recent meeting between Council staff and the applicant/ owner have attempted to denigrate the quality of the vegetation and fauna habitat on the site in order to support the lot layout proposed.
The site is suitable for a rural cluster development if the residential lots are concentrated on the eastern portion of the site. This section of the lot, above the cliff line, includes the cleared and disturbed area and the flatter topography were the required setbacks from good quality vegetation can be created and maintained in order to protect life and property.
Due to the Forest vegetation and topography, a significant bush fire threat exists on the site and the adjoining lots, and this is a critical factor to consider in the development design. Vegetation on lots to the north and south also impact the locations of compliant building envelopes, especially for Lot 9 as currently proposed.
Lot boundaries that extend beyond the existing cliff line (rear proposed Lots 7 to 9) are not supported, and therefore the number of lots may need to be reduced and/ or the lot configuration amended.
With respect to the commentary on trees and the arborist report submitted, Council’s Environmental Health team have commented with respect to this matter:
Two previous requests have been made for arboriculutral impact assessments to be prepared by a suitably qualified Australian Qualification Framework Level 5 Arborist (minimum Diploma Arboriculture or equivalent) Arborist to address the impact to trees from the proposed development. On each occasion this information has not been provided and alternative sources have been supplied to address impacts to trees from the proposed development.
This includes the most recent report. The conclusion of the report states:
A total of 153 trees were examined in this study. Most if not all of these trees will be required to be removed to make way for the proposed access driveway into proposed Lots 1 to 3 as well as to satisfy Asset Protection Zone fire conditions around and within the proposed building platforms in each lot.
This statement is vague and does not provide any clear indication of the trees actually requiring removal to facilitate the development. The reference to Lots 1 to 3 also appears incorrect.
The updated tree survey does adequately identify trees within the footprint of the proposed road and associated cut and fill areas, however the arborist report has not considered the impact to trees adjacent to these works nor made any tree recommendations for protection or removal of the remaining trees on site.
In addition to the above, the vegetation management (above) and bushfire safety (below) concerns indicate there is still uncertainty around the Asset Protection Zones required for the proposed lots. In proposing tree removal for the creation of Asset Protection Zones, consideration should be given to the requirements of Planning for Bushfire Protection 2006; whilst preference should be given to the retention of significant trees and/ or those with a long Useful Life Expectancy.
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PAGE 69 6. External Referrals
The application was submitted as “integrated development” pursuant to Section 4.46 of the Environmental Planning and Assessment Act 1979 as it seeks to subdivide bushfire prone land. The Rural Fire Service has reviewed the proposal and have thus far refused to issue a bushfire safety authority for the development; which is required before it could be approved even if deemed acceptable and appropriate by Council staff. In order to comply with the requirements of the Rural Fire Service, the applicant would need to either reduce the development footprint/ remove Lots 6 to 9 from the proposal; noting that the proposed Asset Protection Zones are already undersized and an increase to make them compliant would further impact upon this existing vegetation. Further, these lots and Asset Protection Zones are located on the steeply sloping area, which includes a cliff line, meaning they are not suitable. The Rural Fire Service have also required a perimeter fire trail across the rear of these lots, however that is not able to be accomodated due to the slope and prescence of the cliff line, and the applicant has refused to amend the plans to include it anyway.
The Rural Fire Service has advised that they are unable to support the application because of the reasons explained above and summarised here:
The proposed development will need to be substantially modified, including the reduction in the number of lots and the provision of a perimeter road, to comply with the objectives, and the specific provisions under Section 4.1.3 and Appendix 2 of Planning for Bushfire Protection 2006.
Given the ongoing outstanding non-compliances, Council may wish to determine the application on this basis.
Council cannot determine to approve the application, as Integrated Development; in the absence of a Bush Fire Safety Authority (BFSA) from the Rural Fire Service.
A copy of the Rural Fire Service response is provided in Attachment 8.
The application was also referred to the Roads and Maritime Service, with respect to the proposed new private road connecting to Old Northern Road. The Roads and Maritime Services have raised no objection to the proposal subject to conditions.
CONCLUSION
The Development Application has been evaluated in accordance with Section 4.15 of the Environmental Planning and Assessment Act 1979, The Hills Local Environmental Plan 2012 and The Hills Development Control Plan 2012 and is considered unsatisfactory.
Further, as the application is classified as Integrated Development and the Rural Fire Service have raised concern and not issued terms of approval in the form a Bush Fire Safety Authority, The application cannot lawfully be approved.
Accordingly, the application is recommended for refusal.
IMPACTS Financial
This matter may have a direct financial impact upon Council’s adopted budget as refusal of this matter may result in Council having to defend a Class 1 Appeal in the NSW Land and Environment Court.