ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 22 June 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 22 JUNE, 2021

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES

ITEM-2 DA 890/2020/HA - EXTENSION TO HOURS OF

OPERATION FOR THE 'BELLA VISTA HOTEL' 5 ITEM-3 DA 1311/2021/LA - ALTERATIONS AND ADDITIONS TO

AN EXISTING DWELLING INCLUDING A FIRST FLOOR ADDITION

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MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 25 MAY 2021

PRESENT

Cameron McKenzie Group Manager – Development & Compliance (Chair) Ben Hawkins Manager – Subdivision & Development Certification Angelo Berios Manager – Environment & Health

Craig Woods Manager – Regulatory Services Paul Osborne Manager – Development Assessment Nicholas Carlton Manager – Forward Planning

Kristine McKenzie Principal Coordinator – Development Assessment APOLOGIES

NIL

CIRCULATED ELECTRONICALLY

ITEM-1 CONFIRMATION OF MINUTES RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 18 May 2021 be confirmed.

ITEM-2 DA 178/2020/ZB - SUBDIVISION CREATING THREE RURAL RESIDENTIAL LOTS - LOT 2 DP 565176, 55 NELSON ROAD, NELSON

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 Development Application was refused.

REASONS FOR THE DECISION

1. The application is not satisfactory for the purposes of Section 7.16(2) of the Biodiversity Conservation Act 2016 as the proposal is likely to have a serious and irreversible impact on the biodiversity values of the subject site.

2. The development application is not satisfactory for the purposes of Section 4.46 of the Environmental Planning and Assessment Act 1979 in that the concurrence from the Rural Fire Service/ a bushfire safety authority is required but has not been provided.

3. The development application is not satisfactory for the purposes of Section 4.15(1)(a)(iv) of the Environmental Planning and Assessment Act 1979 as the proposal does not meet the following matters prescribed by the Regulations:

The following information able to be requested under Clause 54 has not been submitted:

a) Biodiversity Assessment Report addressing the Biodiversity Conservation Act 2016.

b) Amended flora and fauna report addressing the Cumberland Plain Woodland threshold along with Clause 7.4 of The Hills Local Environmental Plan 2019 and providing an accurate estimate of native vegetation present on site.

c) An amended set of plans and bushfire reporting addressing the concerns from the Rural Fire Service regarding access.

d) Information regarding onsite waste collection and/ or a permanent bin storage location.

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e) An amended site plan demonstrating effluent disposal areas complying with The Hills Development Control Plan (primary and reserve) including soil depth and buffer distances.

f) A report detailing the condition/ status of Nelson Road fronting the site so that the extent and scope of any required upgrades can be determined.

g) Amended plans showing a suitable drainage arrangement for proposed lots two and three.

4. The development application is not satisfactory for the purposes of Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 as the proposal has not demonstrated compliance with the following provisions from The Hills Local Environmental Plan 2019:

a) The objectives of the RU6 Transition zone

b) The controls in Clause 7.5 Terrestrial Biodiversity

5. The application is not satisfactory for the purposes of Section 4.25(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 as the proposal is inconsistent with the following provisions of The Hills Development Control Plan:

a) Part B Section 1 – Wastewater and effluent disposal areas

6. The application is not satisfactory for the purposes of Section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 as the proposal has not considered the likely impacts of the development.

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION Notification letters were issued to adjoining properties over 21 days. Two submissions were received. The issues raised in the submissions were addressed in the report.

END MINUTES

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PAGE 5 ITEM-2 DA 890/2020/HA - EXTENSION TO HOURS OF

OPERATION FOR THE 'BELLA VISTA HOTEL'

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: 22 JUNE 2021

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: PRINCIPAL COORDINATOR DEVELOPMENT ASSESSMENT

CYNTHIA DUGAN

RESPONSIBLE OFFICER: MANAGER - DEVELOPMENT ASSESSMENT PAUL OSBORNE

Applicant PGH Environmental Planning Notification 14 days

Number Advised 140 Number of Submissions One

Zoning B7 Business Park

Site Area 1.837 Hectares List of all relevant s4.15(1)(a)

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

The Hills LEP 2019 – Satisfactory.

DCP Part B Section 6 – Business – Satisfactory.

Political Donation None Disclosed

Reason for Referral to DAU Submission received from NSW Police Recommendation Approval subject to conditions

EXECUTIVE SUMMARY

The Development Application is for the extension to the hours of operation for the Bella Vista Hotel. The extended hours of operation only relate to the Sports Bar which comprise a bar area, separate TAB and Gaming room. The Sports bar is a restricted area and accessed via a corridor from the main bar area.

The proposed hours of operation to the Sports Bar is for 24 hour trading, seven days a week. All other areas of the Hotel will operate as per the approved hours of operation under

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PAGE 6 condition No. 47 of Development Consent 986/2010/HA which is restricted to 7am to 3am (Monday to Saturday) and 7am to midnight (Sunday) for the pub and 9am to 9pm (Monday to Saturday) and 10am to 8pm (Sunday) for the bottle shop.

The proposal complies with all relevant development standards under LEP 2019 and the relevant controls under the DCP.

The application was notified and no submissions from adjoining properties were received.

A submission was received from the NSW Police objecting to the proposal. The issues raised primarily relate to the proposal being inconsistent with harm minimisation and as a result, creates further potential for alcohol related violence and antisocial behaviour.

Under the Liquor Act 2001 (s11A) and Gaming Machines Act 2001 (s39), the Liquor Licence will include mandatory shutdown periods for the sale of alcohol and operation of Gaming Machines. Section 11A of the Liquor Act 2007 requires that liquor must not be sold by retail on a licenced premises for a continuous period of 6 hours between 3am and 9am during each consecutive period of 24 hours. Similarly, the Gaming Machines Act 2001 (s39) requires that the gaming machines are to be shut down for a 6 hour period between 4am to 10am on each day of the week. The licensee must comply with this 6 hours closure period along with any other limits specified in the trading hours for the liquor licence. In this regard, whilst the subject application increases the hours of operation for the Sports bar to 24 hours a day, seven days a week, the sale of liquor and use of gaming machines will increase from 3am to 4am which is only an additional hour to the approved hours of operation.

Subject to a condition requiring the sale of alcohol and gaming machines are to be shut down from 4am to 10am in accordance with Section 11A of the Liquor Act 2007 and The Gaming Machines Act 2001 (s39) and the implementation of the Plan of Management, it is considered that the matters relating to Crime Prevention Through Environmental Design has been adequately addressed.

The application is recommended for approval subject to conditions of consent.

BACKGROUND

On 8 June 2010, Development Application No. 986/2010/HA was approved by the Development Assessment Unit for the refurbishment and occupation of an existing commercial premises for use as a licensed hotel "Bella Vista Hotel". Concerns were raised by the NSW Police in relation to insufficient car parking provision and traffic management measures however these concerns were not considered sufficient grounds to refuse the application. Condition 47 of the development consent required the hours of operation for the hotel to be restricted to 10am to 12am Monday to Saturday and 10am to 10pm on Sunday.

Section 96 Modification Application No. 986/2010/HA/A was approved at a Delegated Authority Meeting on 12 January 2012 for deletion of conditions of consent concerning building upgrade requirements, car parking provision, amended landscaping and increase in hours of operation. The NSW Police raised objection to any increase in liquor trading hours.

The applicant’s request for extended trading until 3am was not supported however condition 47 was amended to increase the hours of operation to 10am to 1am on Monday to Saturday and 10am to 12am on Sunday.

Section 96 Modification Application No. 986/2010/HA/C was considered at an Ordinary Meeting of Council on 10 July 2012 for amended landscaping works, increased hours of operation and amended acoustic conditions of consent. Concerns were raised by the NSW

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PAGE 7 Police and Norwest Association Limited in relation to the increase in hours of operation.

Whilst the Council Officer’s report recommended an increase in hours of operation to 1am only on Monday to Saturday, Council resolved to approve the application subject to the following amendment to condition 47:

47. Hours of Operation

The hours of operation being restricted to the following:- 7.00am - 3.00am (Monday to Saturday)

7.00am - 12.00am Midnight (Sunday)

Any alteration to the above hours of operation will require the further approval of Council.

On 4 December 2012, Section 96 Modification Application No. 986/2010/HA/D was approved by the Development Assessment Unit for amended landscaping, amended parking provision (number and location), amended internal configuration of the hotel including entrances, introduction of a bottle shop component and construction of additional lifts.

Condition 47 was amended as follows:

47. Hours of Operation

The hours of operation of the pub being restricted to the following:-

• 7.00am – 3.00am (Monday to Saturday)

• 7.00am – 12.00am Midnight (Sunday)

The hours of operation of the bottle shop being restricted to the following:-

• 9.00am – 9.00pm (Monday to Saturday)

• 10.00am – 8.00pm Sunday

Any alteration to the above hours of operation will require the further approval of Council.

Development Application No. 47/2018/HA was approved by the Development Assessment Unit on 5 December 2017 for the increase in patron numbers, expansion of the outdoor bar/

dining area and increased parking for the Bella Vista Hotel. The hours of operation under this consent was to reflect the hours of operation approved under the parent consent 986/2010/HA.

The subject application was lodged on 20 December 2019.

On 16 March 2020, a submission was received from the NSW Police objecting to the proposal. A letter was sent to the Applicant on 23 March 2020 requesting an acoustic report and concerns raised by NSW Police to be addressed.

Additional information addressing the acoustic and NSW Police concerns were submitted on 26 May 2020 and 4 June 2020. On 26 May 2020, this additional information was forwarded to the NSW Police for comment. On 27 July 2020 and 16 October 2020, phone calls and emails were sent to the NSW Police requesting comments to be provided in response to the information submitted by the Applicant. NSW Police responded by advising that they are liaising with the Applicant and will provide a response shortly.

On December 2020, Application 1-7849630939 for a change of Liquor Licence condition to remove the 1.30am lockout condition was approved by Liquor & Gaming NSW. The NSW

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PAGE 8 Police consented to this liquor licence application on the basis that there would be a one year trial period.

On 17 December 2020, the Sydney Central City Planning Panel approved Development Application No. 1083/2020/JP for a mixed use development including commercial floor space and 77 serviced apartments and alterations and additions to an existing licenced hotel. The hours of operation under this development consent is as per the hours of operation under the parent consent 986/2010/HA.

On 22 March 2021, 22 and 29 April 2021, emails were sent to NSW Police requesting comments to be provided.

On 30 April 2021, a further submission was received from the NSW Police.

PROPOSAL

The proposal is for the extension to hours of operation for the Bella Vista Hotel.

The proposed hours of operation of the hotel are as follows:

Bella Vista Hotel (all areas except Sports Bar)

• 7:00am to 3:00am (Monday to Saturday) and

• 7:00am to 12:00am (Sunday)

• 10.00am – 8.00pm Sunday Sports Bar:

• 24 hour trading – seven (7) days a week.

The approved hours of operation for the Bella Vista Hotel under condition No. 47 of Development Consent 986/2010/HA (as amended) is as follows:

47. Hours of Operation

The hours of operation of the pub being restricted to the following:-

• 7.00am - 3.00am (Monday to Saturday) and

• 7.00am - 12.00am Midnight (Sunday)

• 10.00am – 8.00pm Sunday

Any alteration to the above hours of operation will require the further approval of Council.

The extended hours of operation only relate to the Sports Bar which comprise a bar area, separate TAB and Gaming room. The Sports bar is a restricted area and accessed via a corridor from the main bar area.

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PAGE 9 ISSUES FOR CONSIDERATION

1. Compliance with The Hills Local Environmental Plan 2019 (i) Permissibility

The land is zoned B7 Business Park under LEP 2019. The proposed works include additions to an existing ‘pub’ and ‘food and drink premises’ which are defined as follows:

pub means licensed premises under the Liquor Act 2007 the principal purpose of which is the retail sale of liquor for consumption on the premises, whether or not the premises include hotel or motel accommodation and whether or not food is sold or entertainment is provided on the premises.

and:

Food and drink premises means premises that are used for the preparation and retail sale of food or drink (or both) for immediate consumption on or off the premises, and includes any of the following:

(a) a restaurant or café

(b) take away food and drink premises (c) a pub

(d) a small bar

A ‘pub’ is a type of ‘food and drink premises’ which is a permissible land use in the B7 Business Park zone.

The proposal is therefore satisfactory with respect to land use permissibility in LEP 2019.

(ii) Compliance with The Hills LEP 2019 – Zone Objectives

The site is zoned B7 Business Park under LEP 2019. The objectives of the zone are:

• To provide a range of office and light industrial uses.

• To encourage employment opportunities.

• To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

• To make provision for high technology industries that use and develop advanced technologies, products and processes.

The proposal is considered to be consistent with the stated objectives of the zone, in that the proposal will provide for increased hours of operation for the use of an existing ‘food and drink premises’ that services the day to day needs of the workers in Norwest Business Park.

The proposal is satisfactory in regard to the objectives of the B7 Business Park zone.

2. Compliance with The Hills Development Control Plan

The proposal has been assessed against the provisions of The Hills Development Control Plan (THDCP) particularly:-

• Part B Section 6 – Business

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PAGE 10

• Part C Section 1 – Parking

• Part C Section 3 – Landscaping

The proposed development achieves compliance with the relevant requirements of the above Development Controls. Compliance with the hours of operation control is discussed below.

(i) Hours of Operation

Clause 2.9(c) of The Hills DCP Part B Section 6 – Business states that for land in Norwest Business Park, hours of operation for developments may be 24 hours, 7 days per week provided operations do not adversely affect adjoining properties or businesses.

The application proposes 24 hour, 7 days a week trading for the Sports Bar area with the hotel to retain the current approved hours under Condition No. 47 of Development Consent No. 986/2010/HA/C:

• 7:00am to 3:00am (Monday to Saturday) and

• 7:00am to 12:00am Midnight (Sunday)

The objective of Clause 2.9 of the Hills DCP Part B Section 6 – Business is as follows:

1. To ensure that commercial/retail developments operate in a manner compatible with adjoining land uses.

The Bella Vista Hotel is located within the Norwest Business Park. As the closest residential receivers are over 250m to the east and west of the subject site, negligible acoustic amenity impacts would occur to adjoining properties. In addition, Council’s Environmental Health section has reviewed the submitted acoustic report. No objections are raised to the proposed hours of operation subject to a condition of consent requiring the management of noise to operate as required under previous development consents for the Bella Vista Hotel and that the sale of alcohol and gaming machines are to be shut down from 4am to 10am in accordance with Section 11A of the Liquor Act 2007 and The Gaming Machines Act 2001 (s39).

3. Issues Raised in Submissions

The proposal was notified for 14 days. No submissions were received from adjoining properties. A submission was received from NSW Police and is addressed in the below section.

4. Internal Referrals

The application was referred to following sections of Council:

• Environmental Health

No objection was raised to the proposal (as amended) subject to conditions. Relevant comments have also provided below:

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PAGE 11 ENVIRONMENTAL HEALTH

Council’s Environmental Health section has reviewed the submitted acoustic report prepared by Rodney Stevens Acoustics and dated 3 June 2020. The acoustic report concluded there would be minimal impact on residents as the closest residents on Northridge Avenue approximately 250m north east and west of the site and is shielded by a number of commercial buildings. The acoustic report demonstrates compliance to the NSW EPA Industrial Noise Policy and Department of Industry Liquor & Gaming requirements.

No objections are raised to the proposed hours of operation subject to a condition of consent requiring the management of noise to operate as required under previous development consents for the Bella Vista Hotel and that the sale of alcohol and gaming machines are to be shut down from 4am to 10am in accordance with Section 11A of the Liquor Act 2007 and The Gaming Machines Act 2001 (s39).

5. External Referrals NSW Police

The proposal was referred to the NSW Police. A submission was received from the NSW Police on 16 March 2020 objecting to the proposal on the following grounds:

“The application includes a request to change the hours of liquor sales until 4am. Police object to this as it is not in line with harm minimisation, and creates further potential for alcohol related violence. Police believe that changing the liquor hours may increase the opportunity for the following:

• Patrons increasing their intoxication to an unsafe level.

• Patrons becoming victims of opportunistic crime as they leave the venue. Patrons will be increasingly isolated in the early hour of the morning as they leave the premises. This, as well as their level of intoxication could make them more vulnerable and easier targets in relation to assaults, stealings and robberies.

• Alcohol related assaults on staff and security may increase due to patrons levels of intoxication. If patrons are excluded from the Sports Bar area until 3am due to the area being at capacity, this would increase arguments with security at the entrances and there is a very real likelihood that some of these arguments would become physical assaults.

• Increased levels of antisocial behaviour. With a change in liquor hours occurring only in the Sports bar, there will be a significant increase in patrons in this area as people leave other areas of the venue to continue drinking.

In the Hills PAC, the highest incident rate for alcohol related crime occurs between 12am and 3am. It is not in line with the Harm Minimisation Strategy to further extend the liquor sales hours and potentially extend the crime risk hours.

Police object to the proposed increase of Trading Hours (24 hours) for the Sports Bar area of the Bella Vista Hotel. Police believe the crime risk is unacceptable, and has not been sufficiently addressed or mitigated in the documents provided by the applicant.

• Armed Hold up – heighted risk due to decreased staffing numbers.

• Robbery/Steal from person – As discussed previously, there is an increased risk of offences against patrons as they come and go from the venue during these times.

• Negative community impact – Police strongly negate the position of the applicant that the “proposal has the potential to provide positive social and economic benefits”.

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PAGE 12 The only members of the community that could possibly believe they are benefiting from the extended hours, are people who may be problem gamblers.

• The negative social and economic benefits of extending the hours far outweigh any perceived benefit.

In the event that the change of hours is approved by Council, Police expect that there would be extra provisions implemented to mitigate the added risk.

The Applicant submitted a Plan of Management with the subject application and the following response to the concerns raised by the Police:

“By way of introduction, Liquor Advisory Services (LAS) has been engaged by Momento Hospitality (the Applicant) to provide a response to the dissenting report submitted to The Hills Shire Council by the Hills Police Area Command Crime Prevention Officer dated 16 March 2020 relating to the extended trading hour for the Sports Bar at Bella Vista Hotel…LAS consultants as former NSW police officers have previous extensive experience in the liquor, registered clubs and gaming industry, with the Principal Consultant Bobby Stefanovski being qualified in Crime Prevention Through Environmental Design (CPTED) through training and implementation with the NSW Police. That experience is relied upon for the purposes of this submission.

In summary, the following key points are submitted for consideration:

a. The hotel has operated since 2011 and with since 2014 extended trading hours to 1:00am initially and currently 3:00am Monday to Saturday and 12 midnight Sundays with an unquestionable trading and compliance history.

b. Various applications for changes to trading hours, measures adopted by the hotel and objections by police have been intensely scrutinised by Liquor and Gaming NSW when granting extended trading hours and imposing conditions on the hotel licence.

c. The CPTED process adopted by the police and relied upon on for the purposes of the application is flawed due to their failure to consult with the Applicant and to undertake a site assessment and/or risk assessment and absences of material and verifiable data and evidence to support their perceptions and speculations relating to the increase in from in the area and safety risk to patrons and staff members.

d. The proposed hours to extend the liquor sale and supply trading hours in the Sports Bar from 3am to 4am (Monday to Saturday) will not increase the risks for crime in the area, intoxication, and alcohol related violence given the measures in place and the anticipated demographics of patrons either involved in gaming or watching sports.

e. The conditions of the hotel licence that apply to the current extending trading period if the ETA to 4am is granted would be equally relevant to the additional hour of liquor sales and supply if amended to reflect that change. This will make the extended trading hours for liquor sales and gaming consistent with each other…the mandatory shutdown period of six hours would commence at 4am to 10am.

f. Currently the hotel has adopted the practice of installing a security officer at the door leading through from the main bar area to the gaming and sports area at 1am on Friday and Saturday nights were patronage is high, and entertainment has ceased, and many patrons leave bound for other areas.

g. For the additional hour ETA to 4am, the hotel licence conditions, staffing levels (including security), current CCTV coverage of the hotel footprint, patron access and egress controls in those areas and surveillance and supervision measures will effectively remain. As will the elements of the Plan of Management with some modification to reflect necessary changes and external mobile security patrols of the Norwest Business Park (Highland Security) will continue. These measures will effectively mitigate the risk of crime in the vicinity of the hotel, safety to patrons and

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PAGE 13 staff, intoxication and alcohol related violent incidents, as they effectively already do so within the current approved extended trading period to 3am.

h. During proposed 24 hours 7 day extended trading period in compliance with the mandatory shutdown period condition on the Hotel Licence, the consumption of alcohol will not occur in the Sports Bar outside the trading hours of 10am – 4am Monday to Friday, 10am to 12 Midnight Sunday, Good Friday and Christmas Day (if granted) in accordance with the approved trading hours of the Hotel Liquor Licence.

As from 1.30am Friday and Saturday night, a security officer will operate at the door leading from the main bar area to the Gaming and Sports Bars, to assess and filter patrons entrance to those areas to ensure a safe level of patrons and that the comfort of patrons already in those areas is not unduly affected or disrupted. The Gaming Area will be secured during the mandatory shutdown period 4am – 10am and not accessible to patrons attending the Sports Bar, appropriate levels of staffing will be provided to ensure safety, security and service during this period.

i. In respect to the suggestion by police in their dissenting submission addressing the potential to provide positive social and economic benefits the police submit that the only members benefiting from the extended trading hours are people who may be problem gamblers.

j. The proposed extended trading hours will provide the opportunity to meet demands by patrons wishing to watch international sporting events not normally available to them at home”.

This response was forwarded to the NSW Police on 26 May 2020. On 30 April 2021, the NSW Police provided a further submission objecting to the proposal and reiterated their view that the CPTED principles were not satisfied. The NSW Police indicated that a meeting was held between the Applicant, Liquor Advisory Services and NSW Police’s Liquor Licence Specialist which agreed to include a trial period for removing the 1:30am lockout as part of the liquor licence application.

The majority of NSW Police concerns relate to alcohol related crime and anti-social behaviour. Application 1-7849630939 for a change of Liquor Licence condition to remove the 1.30am lockout condition was approved by Liquor & Gaming NSW in December 2020.

The NSW Police consented to this liquor licence application on the basis that there would be a one year trial period. Under the Liquor Act 2001 (s11A) and Gaming Machines Act 2001 (s39), the Liquor Licence will include mandatory shutdown periods for the sale of alcohol and operation of Gaming Machines. Section 11A of the Liquor Act 2007 requires that liquor must not be sold by retail on the licenced premises for a continuous period of 6 hours between 3:00am and 9:00am during each consecutive period of 24 hours. Similarly, the Gaming Machines Act 2001 (s39) requires that the gaming machines are to be shut down for a 6 hour period between 4.00am to 10.00am on each day of the week. The licensee must comply with this 6 hours closure period along with any other limits specified in the trading hours for the liquor licence.

In this regard, whilst the subject application increases the hours of operation to 24/7, 7 days a week for the Sports bar, the sale of liquor and use of gaming machines will increase from 3am to 4am which is only an additional hour to the approved hours of operation.

The Sports Bar comprises a bar area, separate TAB and Gaming room. The Sports bar is a restricted area and accessed via a corridor from the main bar area. The Plan of Management and response provided by the Applicant indicates that appropriate levels of staff including a security officer at the door leading through the main bar area to the gaming and sports area will be present to assess and filter patrons. The application is also supported with a Social Impact Assessment which addresses harm minimisation and Crime

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PAGE 14 Prevention Through Environmental Design (CPTED). With regard to harm minimisation, the report notes that “research has shown that staff and security officers can also contribute to the level of violence at a hotel…strict enforcement of responsible, service of alcohol and the prevention of intoxication, through good staff and training, will be a key factor in reducing the potential for social impact and will complement the design factors of the hotel”. With regard to CPTED, territorial reinforcement, surveillance, access and space/activity management is achieved as the Gaming Area will be “sectioned off” and secured by security officers during the mandatory shutdown period 4am – 10am and not accessible to patrons attending the Sports Bar. Signage, lighting and surveillance systems already operate externally at all main entrances to the pub and internally within the pub including the sports bar, TAB and gaming area.

To ensure that the proposal is in accordance with the hours supported under the liquor licence, a condition is recommended in the development consent requiring the sale of alcohol and gaming machines to be shut down between 4am – 10am. Refer to condition 1 and below:

Hours of Operation

The hours of operation of the pub being restricted to the following:- Bella Vista Hotel (all areas except Sports Bar)

• 7.00am - 3.00am (Monday to Saturday)

• 7.00am - 12.00am Midnight (Sunday)

• 10.00am – 8.00pm Sunday Sports Bar:

• 24 hour trading – seven (7) days a week. However, the sale of alcohol and gaming machines are to be shut down from 4am to 10am in accordance with Section 11A of the Liquor Act 2007 and The Gaming Machines Act 2001 (s39).

Any alteration to the above hours of operation will require the further approval of Council.

Subject to the above condition and implementation of the Plan of Management, it is considered that the matters relating to Crime Prevention Through Environmental Design has been adequately addressed.

CONCLUSION

The Development Application has been assessed against the relevant heads of consideration under Section 4.15 of the Environmental Planning and Assessment Act, 1979, The Hills Local Environmental Plan 2019 and The Hills Development Control Plan 2012 and is considered satisfactory.

The issues raised by the NSW Police have been addressed in the report and do not warrant refusal of the application.

Approval is recommended subject to conditions.

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PAGE 15 IMPACTS

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 development application be approved subject to the following conditions USE OF THE SITE

1. Hours of Operation Hours of Operation

The hours of operation of the pub are restricted to the following:- Bella Vista Hotel (all areas except Sports Bar)

• 7.00am - 3.00am (Monday to Saturday)

• 7.00am - 12.00am Midnight (Sunday) Sports Bar:

• 24 hour trading – seven (7) days a week. However, the sale of alcohol and gaming machines are to be shut down from 4am to 10am in accordance with Section 11A of the Liquor Act 2007 and The Gaming Machines Act 2001 (s39).

The hours of operation of the bottle shop is restricted to the following:-

• 9.00am – 9.00pm (Monday to Saturday)

• 10.00am – 8.00pm Sunday

Any alteration to the above hours of operation will require the further approval of Council.

2. Noise – Operational

The premises is required to operate in accordance with all noise requirements as outlined in the following development consents applicable to the premises;

- Development Consent 986/2010/HA;

- Development Consent 701/2013/HA;

- Development Consent 942/2014/HA; and - Development Consent 47/2018/HA.

3. Plan of Management

Compliance with the Plan of Management prepared by Liquor Advisory Services, dated 3 December 2018 and submitted to Council as part of the subject application. A copy of the plan of management is to be maintained at the premises and be made available for any Authorised Officer when requested.

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PAGE 16 ATTACHMENTS

1. Locality Plan 2. Aerial Photograph 3. LEP 2019 Zoning Map 4. Site Plan

5. Floor Plan

6. Applicant’s response to NSW Police Comments and Plan of Management

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PAGE 17 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 18 ATTACHMENT 2 – AERIAL PHOTOGRAPH

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PAGE 19 ATTACHMENT 3 – LEP 2019 ZONING MAP

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PAGE 20 ATTACHMENT 4 – SITE PLAN

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PAGE 21 ATTACHMENT 5 – FLOOR PLAN

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PAGE 22 ATTACHMENT 6 – APPLICANT’S RESPONSE TO NSW POLICE COMMENTS AND PLAN OF MANAGEMENT

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PAGE 50 ITEM-3 DA 1311/2021/LA - ALTERATIONS AND ADDITIONS TO

AN EXISTING DWELLING INCLUDING A FIRST FLOOR ADDITION

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: 22 JUNE 2021

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER

MADISON MORRIS

RESPONSIBLE OFFICER: PRINCIPAL COORDINATOR KRISTINE MCKENZIE

Applicant SKL Planning

Notification 14 days Number Advised Eight Number of Submissions Nil

Zoning R2 Low Density Residential

Site Area 909.4m²

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

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

SEPP BASIX – Satisfactory.

LEP 2019 – Satisfactory – Clause 4.6 variation required, see report.

DCP 2012 Part B Section 2 – Residential – Satisfactory Section 7.12 Contribution: $7,600.00

Political Donation None Disclosed

Reason for Referral to DAU Variation to Development Standard between 7% and 10%

Recommendation Approval subject to conditions.

EXECUTIVE SUMMARY

The Development Application is for alterations and additions to a dwelling house including a first floor addition.

The application is accompanied by a request to vary Clause 4.3 Height of Buildings development standard pursuant to Clause 4.6 of LEP 2019. Clause 4.3 limits the height of development on the site to 9m. The proposed maximum building height is 9.856m which represents a variation of 9.51% to the height standard. The application is accompanied by a

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PAGE 51 written request to vary the building height development standard pursuant to Clause 4.6 of the LEP. It is considered that the applicant’s request is well-founded and the variation to the development standard can be supported.

The proposal has been assessed against the provisions of Development Control Plan Part B Section 2 Residential and achieves compliance with all relevant requirements.

The application was notified for 14 days to adjoining property owners and no submissions were received.

The application is recommended for approval subject to conditions.

BACKGROUND

The Development Application was lodged 10 March 2021. The proposal was notified to adjoining properties between 12 March 2021 and 2 April 2021. No submissions were received during the notification period.

On 6 April 2021 a letter was sent to the applicant which raised concern regarding the height of the development. On 18 May 2021 additional information and amended plans were submitted by the applicant which reduced the height from 10.2m to 9.856m.

PROPOSAL

The Development Application is for alterations and additions to a dwelling house. The alterations include reconfiguration of the ground and first floor to amend the internal layout and the addition of a first floor which will contain bedrooms and bathrooms.

The external finishes of the dwelling are to be updated with a mid-grey render and dark grey colorbond roof.

ISSUES FOR CONSIDERATION

1. Compliance with Local Environmental Plan 2019

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

CLAUSE REQUIRED PROVIDED COMPLIES

4.3 Height of

Buildings Maximum 9m 9.856m No, refer to

discussion below.

4.6 Exceptions to Development Standards

Exceptions will be considered subject to appropriate assessment

A variation to Clause 4.3 Height of Buildings is proposed and addressed below.

Refer to discussion below.

Clause 4.3 limits the height of development on the site to 9m. The proposed maximum building height is 9.856m which represents a variation of 9.51% to the height standard.

Attachment 7 shows the proposed height of the dwelling and Attachment 8 is the Clause 4.6 Variation Request.

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PAGE 52 The applicant has provided a Clause 4.6 Variation Request which is provided at Attachment 8. Clause 4.6 allows consent to be granted for development even though the development contravenes a development standard imposed by the LEP. The clause aims to provide an appropriate degree of flexibility in applying certain development standards to achieve better outcomes for and from development.

Clause 4.6 – Exceptions to Development Standards states:

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

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless—

(a) the consent authority is satisfied that—

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Planning Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Planning Secretary must consider—

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

(6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone E2 Environmental Conservation, Zone E3 Environmental Management or Zone E4 Environmental Living if—

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PAGE 53 (a) the subdivision will result in 2 or more lots of less than the minimum area

specified for such lots by a development standard, or

(b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard.

(7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

(8) This clause does not allow development consent to be granted for development that would contravene any of the following—

(a) a development standard for complying development,

(b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index:

BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4,

(ca) clause 6.2 or 6.3, (cb) clause 7.11.

In determining the appropriateness of the variation request, a number of factors identified by the applicant have been taken into consideration to ascertain whether the variation is supportable in this instance. They include:

- The point by which building height is required to be measured previously excavated up to 2m based on natural ground levels has been maintained adjacent to the side boundaries of the site. This in effect reduced the height that the site would otherwise have been entitled.

- The non-compliance is restricted to the central western component of the first-floor addition. The pitched roof form with its limited extent ensures that it will not be readily perceived from the street frontage, noting also that the roof form forward of the basement landing and stair will screen to a degree.

- The first-floor form responds to the cross fall of the site through provision of a significant setback from the western boundary and reduced footprint to that of the ground floor.

Effective articulation is facilitated with a 3.3m setback behind the existing primary façade, with southern elevation broken up through provision of a central wall recess.

- The first-floor addition provides a limited floor to ceiling level and 16-degree roof pitch similar to existing and of which does not add unnecessarily to the building height.

- The site has a beneficial orientation with a north south long axis with first-floor addition separated from built from to the east by a battle axe handle. Shadow diagrams demonstrate that private open space of adjoining sites is not impacted and thus compliance with section 2.14.10 of THDCP is retained.

- From a visual privacy perspective, separation from built form adjoining is noted with only one window provided to the eastern elevation of the first floor (associated with an ensuite and obscure) and no openings to the western side elevation. A two-storey presentation is provided to the rear elevation.

- The environmental impacts of the proposed development are acceptable notwithstanding non-compliance with the building height standard.

- The proposal achieves and/or is not inconsistent with the relevant objectives of the development standard in that:

o The site maintains a low-density character noting that the proposed application relates only to alterations and additions to an existing dwelling; and

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PAGE 54 o The proposed development seeks to update existing dwelling, providing

additional accommodation and a more flexible layout, thus supporting the housing needs of the community.

Comment:

The application is supported by a written request addressing the provisions of Clause 4.6 of LEP 2019 (see Attachment 8). The variation has been considered with regard to the criteria of Clause 4.6(3) of LEP 2019.

In accordance with the NSW LEC findings in the matter of Wehbe v Pittwater Council, one way in which strict compliance with a development standard may be found to be unreasonable or unnecessary is if it can be demonstrated that the objectives of the standard are achieved despite non-compliance with the development standard. The objectives of Clause 4.3 Height of Buildings of LEP 2019 are:

• To ensure the height of buildings is compatible with that of adjoining development and the overall streetscape,

• To minimise the impact of overshadowing, visual impact, and loss of privacy on adjoining properties and open space areas.

The development has been designed to consider the low density context of the immediate locality and provide a built form outcome which responds to the site’s constraints. The building form and massing is considered appropriate in this context given compliance with the development controls for building setbacks, building design, solar access and overshadowing. Adjoining properties achieve adequate solar access as result of the separation distances and site orientation. The proposed bulk and scale is compatible with the existing and desired future character of the site.

LEP 2019 defines building height to be measured from the existing ground level which is located at the garage. The exceedance is not readily perceived from the street frontage as it is located in the central portion of the dwelling. This results in a minimal impact when viewed from the street. The development includes a pitched roof form which is compatible with the roof form forward of the addition and the existing character of the street. Enforcing compliance with the development standard would restrict a development that would otherwise be appropriate on the site.

Pursuant to Clause 4.6(4)(a) of LEP 2019, consent must not be granted to a proposal that contravenes a development standard unless that proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is to be carried out.

The objectives of the R2 Low Density Residential zone are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maintain the existing low density residential character of the area.

The proposal will meet the objectives of the zone as the development does not result in excessive bulk and scale, nor will it create any unreasonable impacts on the amenity of

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PAGE 55 adjoining properties and will maintain a built form which is consistent with the low density residential character.

In this instance, the applicant has adequately addressed the matters in Clause 4.6(3) of the LEP 2019. The applicant’s written submission has provided a suitable argument as to why compliance with the standard is unreasonable and unnecessary in the circumstances of this case and there are sufficient environmental planning grounds to justify contravening the development standard.

In accordance with Planning Circular PS18-003 (dated 21 February 2018) issued by the NSW Department of Planning, the Secretary’s concurrence may be assumed in this instance as the application relates to a development standard within an EPI that adopts Clause 4.6 of the Standard Instrument.

The variation to the development standard can be supported for the following reasons:

• The Applicant’s request is well-founded,

• The proposed variation results in a development that is consistent with the objectives of Clause 4.3 Height of Buildings and the R2 Low Density Residential zone objectives,

• Compliance with the standard is unreasonable and unnecessary in this instance and there are sufficient environmental grounds to justify the contravention, and

• The proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for the development within the relevant zone.

CONCLUSION

The Development Application has been assessed against the relevant heads of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, Local Environmental Plan 2019 and Development Control Plan 2012 and is considered satisfactory. The Clause 4.6 written request has adequately demonstrated that the proposed development is consistent with the objectives of Clause 4.3 Height of Buildings and the R2 Low Density Residential zone. The variation to building height is compatible with adjoining development and will not cause unreasonable impacts upon the amenity of adjoining properties. The submission has demonstrated that the development standard is unnecessary in this instance and there are sufficient environmental grounds to justify the contravention. In this instance, it is considered that the proposal meets the objectives of the height standard and is in the public interest.

Approval is recommended subject to conditions.

IMPACTS 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.

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PAGE 56 RECOMMENDATION

The Development Application be approved subject to the reasons listed below and subject to the following conditions.

Clause 4.3 limits height of development on the site to 9m. The proposed maximum building height is 9.856m which represents a variation of 9.51% to the height standard. The variation to the development standard can be supported for the following reasons:

• The Applicant’s request is well-founded,

• The proposed variation results in a development that is consistent with the objectives of Clause 4.3 Height of Buildings and the R2 Low Density Residential zone objectives,

• Compliance with the standard is unreasonable and unnecessary in this instance and there are sufficient environmental grounds to justify the contravention, and

• The proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for the development within the relevant zone.

CONDITIONS OF CONSENT GENERAL MATTERS

1. Development in Accordance with Submitted Plans

The development being carried out in accordance with the following approved plans and details, stamped and returned with this consent except where amended by other conditions of consent.

REFERENCED PLANS AND DOCUMENTS

DRAWING NO. DESCRIPTION ISSUE DATE

DA01 Cover Page 17 17/05/2021

DA02 BASIX Commitments 17 17/05/2021

DA03 Proposed Site Plan 17 17/05/2021

DA07 Garage Plans 17 17/05/2021

DA09 Ground Floor – Demolition Plan 17 17/05/2021

DA11 Proposed Ground Floor Plan 17 17/05/2021

DA12 Proposed First Floor Plan 17 17/05/2021

DA13 Proposed Roof Plan 17 17/05/2021

DA14 South Elevation 17 17/05/2021

DA15 West Elevation 17 17/05/2021

DA16 North Elevation 17 17/05/2021

DA17 East Elevation 17 17/05/2021

DA18 Section 01 and Colour Schedule 17 17/05/2021

DA19 Section 02 17 17/05/2021

DA21 Garage to Roof Section 17 17/05/2021

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PAGE 57 No work (including excavation, land fill or earth reshaping) shall be undertaken prior to the issue of the Construction Certificate, where a Construction Certificate is required.

2. Bushfire Requirements - BAL 12.5 – Residential i) Asset Protection Zone

At the commencement of building works and in perpetuity the entire property shall be managed as an Inner Protection Area (IPA) as outlined within section 3.2 and Appendix 4 of Planning for Bush Fire Protection 2019 and the NSW Rural Fire Service's document Standards for asset protection zones.

The Inner Protection Area shall comprise of the following:

● minimal fine fuel at ground level;

● vegetation that does not provide a continuous path to building/s for the transfer of fire;

● shrubs and trees that do not form a continuous canopy and vegetation is planted/cleared into clumps rather than continuous rows;

● species that retain dead material or deposit excessive quantities of ground fuel are avoided;

● shrubs and trees are pruned or removed so they do not touch or overhang the building/s; and

● vegetation is located far enough away from the building/s so that plants will not ignite the building/s by direct flame contact or radiant heat emission.

ii) Water Supply and Utilities

a) Water, electricity and gas are to comply with section 7.4 of Planning for Bush Fire Protection 2019.

iii) Design and Construction

a) New construction shall comply with section 3 and section 5 (BAL 12.5) Australian Standard AS3959 ''Construction of buildings in bush fire-prone areas'' and the additional construction requirements contained within Sections 7.5, 7.5.1, 7.5.2, 7.5.4 (where applicable), and 7.6 (where applicable) of Planning for Bush Fire Protection 2019. Any retaining structures or free-standing walls shall also meet the requirements of Section 7.6.

b) The existing building is required to be upgraded to improve ember protection. This is to be achieved by enclosing all openings (excluding roof tile spaces) or covering openings with a non-corrosive metal screen mesh with a maximum aperture of 2mm.

Where applicable, this includes any sub floor areas, openable windows, vents, weepholes and eaves. External doors are to be fitted with draft excluders.

c) Where fitted, leaf protection to stop the accumulation of debris to new roofing valleys and guttering shall be non-combustible.

iv) Landscaping

Landscaping to the site is to comply with the principles of Appendix 4 of Planning for Bush Fire Protection 2019. In this regard the following landscaping principles are to be incorporated into the development:

● Grassed areas/mowed lawns/ or ground cover plantings being provided in close proximity to the building;

● Restrict planting in the immediate vicinity of the building which may over time and if not properly maintained come in contact with the building;

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PAGE 58

● Planting should not provide a continuous canopy to the building (i.e. trees or shrubs should be isolated or located in small clusters);

● When considering landscape species consideration needs to be given to estimated size of the plant at maturity;

● Avoid species with rough fibrous bark or which retain/shed bark in long strips or retain dead material in their canopies;

● Use smooth bark species of trees species which generally do not carry a fire up the bark into the crown;

● Avoid planting of deciduous species that may increase fuel at surface/ ground level (i.e. leaf litter);

● Avoid climbing species to walls and pergolas;

● Locate combustible materials such as woodchips/mulch, flammable fuel stores away from the building;

● Use of low flammability vegetation species.

3. Building Work to be in Accordance with BCA

All building work must be carried out in accordance with the provisions of the Building Code of Australia.

4. Construction Certificate

Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or a Registered Certifier.

Plans submitted with the Construction Certificate are to be amended to incorporate the conditions of the Development Consent.

5. Adherence to Waste Management Plan

All requirements of the Waste Management Plan submitted as part of the Development Application must be implemented except where contrary to other conditions of consent. The information submitted regarding construction and demolition wastes can change provided that the same or a greater level of reuse and recycling is achieved as detailed in the plan.

Any material moved offsite is to be transported in accordance with the requirements of the Protection of the Environment Operations Act 1997 and only to a place that can lawfully be used as a waste facility. Receipts of all waste/recycling tipping must be kept onsite at all times and produced in a legible form to any authorised officer of the Council who asks to see them.

Transporters of asbestos waste (of any load over 100kg of asbestos waste or 10 square metres or more of asbestos sheeting) must provide information to the NSW EPA regarding the movement of waste using their WasteLocate online reporting tool

www.wastelocate.epa.nsw.gov.au.

6. Management of Construction and/or Demolition Waste

Waste materials must be appropriately stored and secured within a designated waste area onsite at all times, prior to its reuse onsite or being sent offsite. This includes waste materials such as paper and containers which must not litter the site or leave the site onto neighbouring public or private property. A separate dedicated bin must be provided onsite by the builder for the disposal of waste materials such as paper, containers and food scraps generated by all workers. Building waste containers are not permitted to be placed on public property at any time unless a separate application is approved by Council to locate a building waste container in a public place.