ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 23 March 2021

T O ST R IV E F O R B E T T ER T H IN G S

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DEVELOPMENT ASSESSMENT UNIT MEETING 23 MARCH, 2021

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 DA 31/2021/HA - ALTERTIONS AND ADDITIONS TO AN EXISTING CARWASH FACILITY - LOT 3 DP 550411, 2 ACRES ROAD KELLYVILLE

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MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 9 MARCH 2021

PRESENT

Cameron McKenzie Group Manager – Development & Compliance (Chair) Paul Osborne Manager – Development Assessment

Ben Hawkins Manager – Subdivision & Development Certification Angelo Berios Manager – Environment & Health

Craig Woods Manager – Regulatory Services Nicholas Carlton Manager – Forward Planning Kristine McKenzie Principal Executive Planner APOLOGIES

NIL

CIRCULATED ELECTRONICALLY

ITEM-1 CONFIRMATION OF MINUTES RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 2 March 2021 be confirmed.

ITEM-2 DA 792/2021/HA – DETACHED SECONDARY DWELLING AND SHED - LOT 20 DP 2456385, NO. 13 VENETTA ROAD GLENORIE

PUBLIC NOTIFICATION OF THE DETERMINATION PURSUANT TO ITEM 20(2)(c) AND (d) OF SCHEDULE 1 OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979

DECISION

The Application be approved subject to conditions outlined in the report.

REASONS FOR THE DECISION

• Section 4.15 (EP&A Act) – Satisfactory.

• The Hills LEP 2019 – Satisfactory.

• SEPP Growth Centres – Satisfactory.

• SEPP BASIX 2004 – Satisfactory.

• State Environmental Planning Policy No 55—Remediation of Land – Satisfactory.

• DCP Part B Section 1 – Rural – Variation, see report.

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION Notification letters were issued to adjoining properties over 14 days. Three submissions were received. The issues raised in the submissions have been addressed in the report.

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ITEM-3 DA 896/2021/LD – TWO STOREY DWELLING AND RETAINING WALLS ON PROPOSED LOT 2 IN A SUBDIVISION OF LOT 25 DP 883498 BRECON COURT, CASTLE HILL

PUBLIC NOTIFICATION OF THE DETERMINATION PURSUANT TO ITEM 20(2)(c) AND (d) OF SCHEDULE 1 OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979

DECISION

The Application be approved subject to conditions outlined in the report.

REASONS FOR THE DECISION

• Section 4.15 (EP&A Act) – Satisfactory.

• LEP 2019 – Satisfactory.

• SEPP BASIX 2004 – Satisfactory.

• DCP Part B Section 2 Residential – Variation proposed, see report.

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION Notification letters were issued to adjoining properties over 14 days. Two submissions were received. The issues raised in the submissions have been addressed in the report.

END MINUTES

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ITEM-2 DA 31/2021/HA - ALTERTIONS AND ADDITIONS TO AN EXISTING CARWASH FACILITY - LOT 3 DP 550411, 2 ACRES ROAD KELLYVILLE

THEME: Shaping Growth

OUTCOME: 5 Well planned and liveable neighbourhoods that meets growth targets and maintains amenity.

STRATEGY:

5.1 The Shire’s natural and built environment is well managed through strategic land use and urban planning that reflects our values and aspirations.

MEETING DATE: 23 MARCH 2021

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER

JUSTIN KEEN

RESPONSIBLE OFFICER: PRINCIPAL COORDINATOR KRISTINE MCKENZIE

Applicant J & M Cleaning Services

Owner S Trlin

Notification 14 days Number Advised Nine Number of Submissions One

Zoning R2 Low Density Residential

Site Area 1556m²

List of all relevant s4.15(1)(a) matters

Section 4.15 of the Environmental Planning and Assessment Act (EP&A Act) – Unsatisfactory

Sections 4.65-4.70 of the Environmental Planning and Assessment Act (EP&A Act) – Unsatisfactory.

Clauses 39-46 (EP&A Regulations) – Unsatisfactory.

LEP 2019 – Unsatisfactory.

DCP Part B Section 2 – Residential – Unsatisfactory.

DCP Part C Section 3 – Landscaping – Unsatisfactory.

Political Donations None Disclosed

Reasons for Referral to DAU 1. Submission received, 2. Refusal recommended.

Recommendation Refusal.

EXECUTIVE SUMMARY

The Development Application is for alterations and additions to an existing car wash facility to provide an additional car wash bay, associated shade sail and store room.

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The subject site is located on land zoned R2 Low Density Residential under LEP 2019. The site benefits from ‘existing use rights’ and has been continuously used for commercial uses since the 1950’s.

The proposal does not satisfy the provisions of Sections 4.65-4.70 of the Environmental Planning and Assessment Act, 1979 and Clauses 39-46 of the Environmental Planning and Assessment Regulations, 2000 which relate to the requirements for the continuance of, and limitations pertaining to, sites operating under existing use rights. The Development Application introduces an additional car wash bay which, when considered with all other uses on site, will result in an unacceptable intensification of use on the site and has the potential to have an adverse impact on neighbours.

The DCP does not provide specific controls which directly relate to commercial developments in residential zones. Notwithstanding, a merit assessment against the applicable controls contained within DCP Part B Section 2 – Residential is considered appropriate to ensure a consistent character within the streetscape and wider locality. The Residential DCP requires a maximum site coverage of 60% and a minimum landscaped area of 40%. The subject site has an existing site coverage of approximately 82%

(1269.9m²) and an existing landscaped area of approximately 18% (286.1m²) which is an existing non-compliance with the DCP controls. The proposed development will result in a site coverage of approximately 89% (1386.3m²) and a landscaped area of approximately 11% (169.7m²). The proposed alterations and additions will result in a further intensification of the existing commercial use and will result in an undesirable landscaped outcome.

The application was notified to adjoining property owners and one submission was received.

The concerns raised relate to unacceptable intensity of use, non-compliance with existing use rights provisions, inadequate landscape outcome and visual and acoustic privacy impacts. It is considered that the intensification of the use will result in adverse amenity impacts on the residential amenity of the area.

The existing car wash operation had been originally approved and appropriately conditioned to ensure that it would be a small scale operation. Approval of the new works will be contrary to the original car wash consent and the character of the low density residential locality and does not satisfy the provisions of the Environmental Planning and Assessment Act and Regulations.

The application is recommended for refusal.

BACKGROUND

The site benefits from ‘existing use rights’ and has been continuously used for commercial uses since the 1950’s. On 29 November 1968 there was a ribbon development proclamation that allowed existing non-residential uses to continue. On 1 March 1991 the subject site was rezoned to Residential 2(a) under the Baulkham Hills Local Environmental Plan 1991. The site is currently zoned R2 Low Density Residential under LEP 2019. There have been numerous Development Applications approved on the site which have relied on ‘existing use rights’.

The car wash and detailing facility is one of three commercial uses approved to operate on the site. An existing physiotherapist operates from the site within Tenancy 2 which was approved under Development Application No. 1648/2011/HA on 17 June 2011.

Development Application No. 1420/2015/HA approved the use of Tenancy 1 as a mortgage broker on 26 May 2015 however this particular use no longer operates from the subject site.

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Tenancy 1 is currently vacant. Attachment 8 depicts the locations of the three tenancies on- site.

On 16 February 2016 consent was granted for a car wash operation to operate out of Tenancy 1A. This consent resulted in three commercial uses operating from the site. The existing car wash approved under Development Consent No. 1645/2015/HA was a low scale operation. A condition was imposed to limit vehicles being washed/detailed to a maximum of 10 per business day and a maximum of six vehicles were permitted on site at any one time (refer to Condition 30 of DA 1645/2015/HA in Attachment 9). Employees were restricted to one full time and one part time staff member (refer to Condition 31 of DA 1645/2015/HA).

On 22 May 2018, Development Consent No. 1827/2017/HA was granted for alterations and additions to the approved car wash. The application approved a new deck area for waiting customers with a shade sail over and a second cantilevered shade sail to provide weather protection for staff. The wooden deck for customers is shown as containing two coffee tables and chairs. The application also approved additional business identification signage. The proposed alterations and additions were considered acceptable and reasonable in accordance with the Environmental Planning and Assessment Act and Regulations.

The subject Development Application was lodged on 10 July 2020. A request for further information was sent to the applicant on 5 August 2020 raising concerns regarding amenity impacts, inadequate information and engineering matters. The applicant was advised to withdraw the application. Additional information and amended plans were submitted on 27 October 2020 and 12 January 2021.

PROPOSAL

The Development Application is for alterations and additions to an existing car wash facility.

Specifically, it is proposed to provide an additional car wash bay, shade sail and store room.

The applicant has identified that there will be no increase in the number of vehicles washed per day and that the proposed car wash bay will be used for detailing only. No operational changes are proposed.

ISSUES FOR CONSIDERATION 1. Existing Use Rights

The subject site is zoned R2 Low Density Residential under Local Environmental Plan 2019 and commercial uses are prohibited within the zone. The site benefits from existing use rights and three separate commercial uses are currently operating on site. The provisions of Section 4.65 and Section 4.66 of the Environmental Planning and Assessment Act, 1979 and Clauses 39-46 of the Environmental Planning and Assessment Regulation, 2000 specifically relate to the requirements for the continuance of and limitations pertaining to sites operating under the existing use rights provisions of the Act.

Sections 4.65 – 4.66 of the Environmental Planning and Assessment Act, 1979 Section 4.65 of the Act provides the definition of “existing use”. Existing use means:

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and

(b) the use of a building, work or land:

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(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision

commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

Comment: Existing use rights apply to the property and the property has a history of commercial use.

Section 4.66 of the Act identifies that nothing in the Act or an environmental planning instrument prevents the continuance of an existing use and identifies that a use is abandoned if it ceases to be actually so used for a continuous period of 12 months.

Comment: The owner has advised that the commercial use of the property has not ceased or been abandoned. The applicant has provided the following statement:

The use of the site has not been abandoned and the landowner continues to pay commercial land rates instead of residential rates to allow the continuance to occur.

There is no evidence the use of the has been abandoned.

Section 4.67 of the Act identifies that the Regulation incorporates provisions for existing uses.

Comment: The relevant sections of the Regulation are addressed below.

Section 4.68 of the Act identifies that consent is not required for the continuance of an existing use unless enlargement, expansion and intensification is proposed.

Comment: The subject application seeks development consent for the expansion and intensification of the approved commercial car wash use on the site. The proposed additional car wash bay would constitute an expansion and intensification of the existing development.

Section 4.69 of the Act identifies that a use must have lawfully commenced.

Comment: It has been established that the property benefits from existing use rights. In 1968 a Ribbon development proclamation allowed the existing non-residential uses at that time to continue. Development Consent for the car wash business was granted on 16 February 2016. Commercial use has continued since that time.

Section 4.70 of the Act identifies that nothing requires further consent be sought for the carrying out of development that consent has been granted for.

Comment: The section has no effect on the current application.

Clauses 39-46 of the Environmental Planning and Assessment Regulation, 2000

Clause 39 of the Regulation relates to the definition of “relevant date” in the context of the use becoming an existing use through prohibition in an environmental planning instrument or the use commencing.

Comment: The owner has advised that the commercial use of the property has not ceased or been abandoned. The applicant has provided the following statement:

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The use of the site has not been abandoned and the landowner continues to pay commercial land rates instead of residential rates to allow the continuance to occur.

However, no supporting evidence has been provided with this application beyond the statement provided.

Clause 40 of the Regulation relates to the object of this part of the Regulation. The object is to regulate existing uses.

Comment: This report provides an assessment against the relevant clauses of the Regulation to ensure the use is regulated.

Clause 41(1) of the Regulation permits an existing use to be enlarged, expanded, intensified and changed to another use under certain circumstances. These circumstances are as follows:

(1) An existing use may, subject to this Division—

(a) be enlarged, expanded or intensified, or (b) be altered or extended

Comment: The proposal seeks approval for alterations and additions to an existing car wash facility. Specifically, it is proposed to provide an additional car wash bay, shade sail and store room. The application seeks to intensify and alter the existing use which is permitted under the Environmental Planning and Assessment Regulations.

Clause 42 of the Regulation identifies that development consent is required for enlargement, expansion and intensification of existing uses.

Comment: The previous application sought development consent for a change of use to a car wash facility. The subject development application seeks to further intensify the approved use and the incremental increase is unacceptable.

Clause 43 of the Regulation identifies that development consent is required for alteration or extension of buildings and works. The specific clause reads as follows:

(1) Development consent is required for any alteration or extension of a building or work used for an existing use.

(2) The alteration or extension—

(a) must be for the existing use of the building or work and for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.

Comment: The subject application seeks consent for the alteration or extension of works under existing use rights. Specifically, the works involve the construction of a car wash bay, waterproof sail structure and associated shed. The works are proposed within the existing landscaped area on the site.

Clause 44 of the Regulation identifies that development consent is required for rebuilding of buildings and works.

Comment: The subject application does not involve rebuilding of a building or works.

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Clause 45 of the Regulation identifies that development consent is required for changes of existing uses.

Comment: No further change of use is proposed.

Clause 46 of the Regulation identifies that nothing prevents the granting of development consent referred to in Clauses 42, 43 or 44 at the same time as the granting of a development consent referred to in Clause 45.

Comment: The subject application seeks development consent for the change of use to the existing use on the premises to include the enlargement, expansion and intensification of the existing use.

Accordingly, the proposal does not satisfy the relevant existing use rights provisions. The proposal to introduce a new car wash/detailing use and to include new structures results in a further intensification of the existing use and the cumulative impact of the increase results in an unacceptable intensity of use.

In respect to Land and Environment Court Planning Principles on intensification of use, the relevant issue is whether the cumulative impact of activities will result in unacceptable impacts on residential amenity. In Randall Pty Ltd v Leichardt Council [2004] NSWLEC 277 it was stated:

First, is the impact of the operation of the existing use on residential amenity acceptable? If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact.

Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable?

The operation of the existing car wash use, as approved under DA 1645/2015/HA was considered acceptable in respect to adjoining residential amenity. The car wash and detailing facility is operating out of one of three tenancies on-site. An existing physiotherapist operates from the site within Tenancy 2 which was approved under Development Application No. 1648/2011/HA on 17 June 2011. Development Application No. 1420/2015/HA approved the use of Tenancy 1 as a mortgage broker on 26 May 2015 however this particular use no longer operates from the subject site and the tenancy is currently vacant. However, it is reasonable to consider that the floorspace will be used (subject to consent) in the future.

Attachment 8 shows the locations of the three tenancies on-site and the associated parking allocation.

The potential for adverse amenity impacts was previously resolved by restricting the number of customer vehicles to six at any one time and a maximum of 10 cars be detailed per day. It was considered that the proposed car wash business, appropriately conditioned and managed by the operator, would have acceptable impacts on the immediate residential locality.

This proposal includes the construction of a second car wash bay to that approved under 1645/2015/HA and 1827/2017/HA which is bound by the conditions of consent of 1645/2015/HA. The construction of a second car wash bay is considered to be an intensification of the site. The subject site is surrounded by residential properties, specifically

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4 Acres Road, Kellyville and 59 Windsor Road, Kellyville which have the potential to be adversely impacted by the additional car wash bay and the intensification of the business.

It is recommended that the subject application be refused due to the scale and intensity of development.

2. Compliance with SEPP (Infrastructure) 2007

Clause 101(2) of SEPP (Infrastructure) 2007 requires that the consent authority must not grant consent to development on land that has a frontage to a classified road unless:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

Comment:

The proposed development does not propose to alter the existing vehicular access via Windsor Road. The safety, efficiency and ongoing operation of the classified road would not be adversely affected by the proposed alterations and additions in respect to vehicular access, emission of smoke and dust from the development, and the nature, volume or frequency of vehicles using the classified road to access the site. Additionally the proposed development, being a commercial use, is not a use that is sensitive to traffic noise or vehicle emissions.

3. Compliance with LEP 2019 (i) Permissibility

The land is zoned R2 Low Density Residential under The Hills Local Environmental Plan 2019. The proposed commercial use is not permissible. However, the site benefits from existing use rights, which is discussed in Section 1 above.

(ii) Development Standards

The following addresses the principal development standards of the LEP relevant to the subject proposal:

CLAUSE REQUIRED PROVIDED COMPLIES

4.3. Height of Buildings

10 metres 3.7 metres Yes

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4. Compliance with DCP

A merit assessment against the applicable controls is considered appropriate to ensure a consistent character with the streetscape and wider locality. Accordingly, the proposal has been assessed against the following provisions of DCP 2012:

• Part B Section 2 – Residential, and

• Part D Section 3 – Landscaping.

The proposed development achieves compliance with the relevant requirements of the above Development Controls with the exception of the following:

DEVELOPMENT CONTROL

DCP

REQUIREMENTS

PROPOSED DEVELOPMENT

COMPLIANCE Site Coverage Maximum 60% of total

site area

Maximum site coverage permitted:

933.6m² Existing site coverage:

Approximately 82%

(1269.9m²) Proposed site coverage:

Approximately 89%

(1386.3m²)

No, refer to discussion below.

Landscaped Area Minimum 40% of total site area

Minimum landscaped

area required:

622.4m²

Existing landscaped area: Approximately 18% (286.1m²)

Proposed landscaped area: Approximately 11% (169.7m²)

No, refer to discussion below.

a) Site Coverage/Landscaped Area

DCP Part B Section 2 – Residential requires that for residential properties, a maximum 60%

of a site area be impervious, and a minimum of 40% of site area is landscaped. The subject site has an existing site coverage of approximately 82% (1269.9m²) and an existing landscaped area of approximately 18% (286.1m²) which is an existing non-compliance with the DCP requirements. The proposed development will result in a site coverage of approximately 89% (1386.3m²) and a landscaped area of approximately 11% (169.7m²). The proposal results in a further non-compliance with the provisions of DCP Part B Section 2 – Residential.

The relevant objectives of the site coverage and landscaped area controls of the DCP are as follows:

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Site Coverage

• To maximise the provision of open space.

• To avoid the creation of drainage and runoff problems, through minimising the amount of impervious area in accordance with Council’s ESD Objective 3.

• To minimise bulk and scale of development.

• To facilitate spatial separation between buildings.

• To provide for adequate landscaped area.

• Maintain the character of existing areas by retaining vegetation.

Landscaped Area

• To enhance the quality of the built environment by providing a high standard of landscaping.

• To ensure that landscaping may be efficiently maintained.

• To promote a pleasant and safe living environment.

• To limit tree removal to maintain the character of the area.

• To fully integrate the landscape design in communal, private and public areas as necessary element in any well designed residential project.

• To preserve and enhance existing landscape features.

• To encourage existing vegetation to be included wherever possible into site landscaping.

• To enhance the quality of the built environment by providing opportunities for landscaping.

Comment:

The proposal results in the removal of the most substantial portion of landscaping on the site. It is noted that the applicant has not provided any justification in support of the removal or reduction of landscaped area. Support for the proposal will be contrary to the objectives of the site coverage and landscaped area DCP requirements, in that the alterations and additions will result in the reduction of landscaped area, and will result in an unacceptable streetscape outcome. Furthermore, it is also noted that Council’s Landscape Assessment Officer has raised concerns regarding the overall landscape outcome (refer to Section 5 below). The proposed alterations and additions will result in a further intensification of the existing commercial use and will result in an undesirable landscaped outcome.

5. Insufficient Information

The application has provided insufficient information in respect to the following:

• The existing car park is not accurately detailed on the architectural plans;

• The applicant has not adequately addressed the provisions of DCP 2012;

• There is a level difference between the proposed development and the northern carpark (630mm) and the existing concrete driveway (780mm) and it is unclear as to how this level change will be managed;

• Specifications / elevations for the proposed oil separator (located in the new store room), details regarding how the water will be pumped from the wash bay pit to the oil separator within the store room and where the connection / discharge point to the Sydney Water Sewer line will be; and

• The submitted survey plan is from 2015 and does not accurately reflect the current conditions of the subject site.

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6. Internal Referrals

The application was referred to following sections of Council:

• Engineering,

• Environmental Health,

• Fire Safety,

• Landscaping/Tree Management, and

• Resource Recovery.

Relevant comments are provided below:

ENGINEERING COMMENTS

Council’s Subdivision Engineer has reviewed the proposal and raised no objections subject to conditions of consent, if consent is granted to the Development Application.

ENVIRONMENTAL HEALTH COMMENTS

Council’s Environmental Health Coordinator has reviewed the proposal. An acoustic report was submitted in support of the proposed application. The acoustic report recommends the provision of an acoustic barrier to mitigate noise impacts to adjoining residential properties.

The following concerns with the submitted acoustic report were identified by Council’s Environmental Health Officer:

• The report does not specify if the existing carwash business was operating during the unattended ambient noise measurements.

• The unattended ambient noise measurements were rain impacted for two of the required seven days. Therefore additional days should have been added.

• One of the days impacted by rain was Sunday so there were no valid ambient readings for Sunday.

• The report provided a table indicating compliance of the proposed development with the project specific noise levels but did not provide any justification or explanation.

• The compliance with the noise criteria is dependent on the provision of an acoustic barrier on along the western boundary and the diagram at Figure 3 of the acoustic report shows the barrier extending right to the front boundary.

The acoustic report is considered unsatisfactory.

Furthermore, no specifications / elevations for the proposed oil separator (located in the new store room), details that show the water will be pumped from the wash bay pit to the oil separator within the store room and the connection / discharge point to the Sydney Water Sewer line have been provided.

FIRE SAFETY COMMENTS

Council’s Fire Safety Officer has reviewed the proposal and raised no objections subject to conditions of consent, if consent is granted to the Development Application.

LANDSCAPING COMMENTS

The proposal was reviewed by Council’s Landscape Assessment Officer. Concerns were raised in respect to lack of detail regarding impact on existing trees, reduction of existing planting, lack of replacement planting, inconsistent detail regarding existing and proposed pervious areas. The proposal also results in the removal of a substantial portion of landscaped area which will result in a site that is paved for the majority of the area of the site. The proposal has not addressed landscaping/tree matters.

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RESOURCE RECOVERY COMMENTS

Council’s Resource Recovery Coordinator has reviewed the proposal and raised no objections subject to conditions of consent, if consent is granted to the Development Application.

7. Submissions

The proposal was notified to adjoining properties for 14 days. One submission was received following the notification period. The issues raised in the submission are summarised below.

ISSUE/OBJECTION COMMENT

The property is zoned residential. It has existing use rights as a result of previous amendments and re-zoning but those rights have attached to them certain restrictions, e.g. the 10% rule for enlargement and intensification. If this rule is applied as it should, there should be no scope for this application to proceed any further or be considered in the first place.

It would appear that what is zoned residential with existing use rights is being fully commercialised by stealth.

An assessment against the Existing Use Rights provisions under the Environmental Planning and Assessment Act and Regulations has been discussed in the body of the report.

Clause 41(2)(b) of the Environmental Planning and Assessment Regulations, 2000, states that an existing use must not be changed unless the change does not involve an increase of more than 10% in the floor space of the premises associated with the existing use. As a change of use is not proposed under this application, this clause does not apply.

The application proposes intensification by way of adding further land erosion from the only landscaped area left on the site, closely adjacent to my premises. The only separation from the proposed action on this site is our own narrow foot path and the driveway on the site.

The current customer traffic by way of driving along the driveway adjacent to our property gives rise to loss of privacy. There is a gap in the vegetation meant for screening for privacy towards the back end of the site in front of the shed where the area was cleared by a contractor, intentionally or accidentally and a concrete slab was laid for a small shed. The shed was removed but the slab remains and screening gone along with some of our privacy. Important to us with the amount of traffic.

The proposed site coverage and landscape outcome is inadequate and results in unacceptable and undesirable amenity impacts to adjoining properties. This matter is discussed in the body of the report.

The current working area on this site gives rise to noise due to equipment usage, radio playing in cars being attended to and elevated conversations between customers and workers.

The proposal has been supported by an Acoustic Report which has been reviewed by Council’s Environmental Health Officer. The acoustic report is inadequate. This matter is discussed in the body of the report.

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With reference to DA 580/2012/HA, the proposal said that the determination was based on the zoning of the property and Council's legal obligations under the Environmental Planning and Assessment Act 1979.

The area is not commercial but existing use rights prevail. The business was initially refused until it was re-applied for with a change of the area being noted as 22.9sqm, a very convenient number of 10% of the total area with absolutely no change in actual area in what was offered up as the measurement in the refused application.

This is a matter in respect to the previous approved Development Application. The subject application has been assessed against the relevant provisions of the Environmental Planning and Assessment Act and Regulations.

CONCLUSION

The Development Application has been assessed against the relevant heads of consideration under Section 4.15 and 4.65-4.70 of the Environmental Planning and Assessment Act, 1979, Clauses 39-44 of the Environmental Planning and Assessment Regulations, 2000, Local Environmental Plan 2019 and Development Control Plan 2012 and is considered unsatisfactory.

The proposal is not in the public interest as it has not been demonstrated that the proposal is suitable for the subject site. It is considered that the proposed alterations and additions will result in an overdevelopment of the site and result in an unacceptable intensity of use.

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.

The Hills Future Community Strategic Plan

The proposed development is inconsistent with the planning principles, vision and objectives outlined within “Hills 2026 – Looking Towards the Future” as the proposed development results in adverse environmental or social amenity impacts.

RECOMMENDATION

The Development Application be refused for the following reasons:

1. The proposal does not demonstrate compliance with the existing use rights provisions of the Environmental Planning and Assessment Act, 1979 and the Environmental Planning and Assessment Regulations, 2000 as the proposal results in an unacceptable intensification of the use.

(Section 4.15(1)(a)(iv) and Section 4.65-4.70 of the Environmental Planning and Assessment Act, 1979)

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2. The proposed development does not satisfy the relevant provisions of Development Control Plan Part B Section 2 – Residential with regard to the proposed site coverage and landscaped area, noting the Development Control Plan has been used as a guide to character in the residential zone. The proposed alterations and additions will result in an overdevelopment of the site and result in an unsatisfactory landscaped outcome.

(Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act, 1979).

3. Insufficient information has been submitted to allow for a full and proper assessment of the likely impacts of the development, and the suitability of the site for the development.

(Section 4.15(1)(b) and (c) of the Environmental Planning and Assessment Act, 1979) 4. The proposal has not adequately addressed landscaping, environmental health and

planning concerns raised by Council staff.

(Section 4.15(1)(a)(i), (ii), (iii), 1(b) and 1(c) of the Environmental Planning and Assessment Act, 1979).

5. The proposal results in an overdevelopment of the site, resulting in an unacceptable intensity of use, which adversely impacts on the amenity of residents surrounding the proposed development. The cumulative impact of the proposal is unreasonable.

(Section 4.15(1)(a)(c) of the Environmental Planning and Assessment Act, 1979).

6. The proposal is not in the public interest as it has not been demonstrated that the proposal is suitable for the subject site. It is considered that the proposed alterations and additions will result in an overdevelopment of the site and result in an unacceptable intensity of use.

(Section 4.15(1)(e) of the Environmental Planning and Assessment Act, 1979).

ATTACHMENTS 1. Locality Plan 2. Aerial Photograph 3. Site Plan

4. Wash Bay Layout 5. Elevations

6. Sections

7. Landscape Plan

8. Tenancy Layout and Car Parking Allocation 9. Notice of Determination 1645/2015/HA 10. Approved Plans 1645/2015/HA

11. Notice of Determination 1827/2017/HA 12. Approved Plans 1827/2017/HA

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ATTACHMENT 1 – LOCALITY PLAN

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ATTACHMENT 2 – AERIAL PHOTOGRAPH

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ATTACHMENT 3 – SITE PLAN

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ATTACHMENT 4 – WASH BAY LAYOUT

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ATTACHMENT 5 – ELEVATIONS

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ATTACHMENT 6 – SECTIONS

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ATTACHMENT 7 – LANDSCAPE PLAN

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ATTACHMENT 8 – TENANCY LAYOUT AND CAR PARKING ALLOCATION

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ATTACHMENT 9 – NOTICE OF DETERMINATION 1645/2015/HA

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ATTACHMENT 10 – APPROVED PLANS 1645/2015/HA

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ATTACHMENT 11 – NOTICE OF DETERMINATION 1827/2017/HA

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ATTACHMENT 12 – APPROVED PLANS 1827/2017/HA

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