ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 22 December 2020

T O S T R I V E F O R B E T T E R T H IN G S

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DEVELOPMENT ASSESSMENT UNIT MEETING 22 DECEMBER, 2020

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 DA 2136/2018/JP/A - SECTION 4.55 (1A) MODIFICATION TO AN APPROVED EXTRACTIVE INDUSTRY - LOT 1 DP 590937, NO. 4567 OLD NORTHERN ROAD, MAROOTA

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PAGE 3 ITEM-1 CONFIRMATION OF MINUTES

MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING

HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 15 DECEMBER 2020 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: -

TIME OF COMMENCEMENT: 8:30 am TIME OF COMPLETION: 8:48am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 24 November 2020 to be confirmed.

ITEM 2: DA 278/2021/LA - CONSTRUCTION OF A DETACHED GARAGE AND RETAINING WALLS - LOT 287 DP 1152852, NO. 7 CARDELL ROAD, KELLYVILLE

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 is recommended for refusal.

REASONS FOR THE DECISION

 Section 4.15 (EP&A Act) – Unsatisfactory.

 LEP 2019 – Unsatisfactory.

 DCP Part D Section 7 – Balmoral Road Release Area –Unsatisfactory

 DCP Part B Section 2 – Residential – Unsatisfactory.

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION The development application was notified and no submissions were received during the notification period.

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PAGE 4 ITEM 3: DA 910/2020/ZB - SUBDIVISION CREATING FIVE RURAL RESIDENTIAL LOTS - LOT 1 DP 544723, 8 ST JOHNS ROAD, MARAYLYA

The application is recommended for refusal.

 Section 4.15 (EP&A Act) – Unsatisfactory

 Biodiversity Conservation Act 2016 – Unsatisfactory

 The Hills DCP 2012 – Part B Section 1 Rural – Variation sought (see report)

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION The development application was notified between 16 January 2020 and 24 February 2020 and no submissions were received.

ITEM 4: 470/2018/ZA/A - SECTION 4.55(2) MODIFICATION TO A SUBDIVISION CREATING 104 RESIDENTIAL LOTS AND ONE RESIDUE LOT TO DELETE 12 LOTS AND THREE LANEWAYS, AMEND THE LOT LAYOUT AND INTRODUCE STAGING - LOTS 1 AND 2 DP 1246839, 32- 34 MASON ROAD, BOX HILL

The Development Application is recommended for Approval subject to conditions.

 Section 4.15 (EP&A Act) – Satisfactory

 Section 4.55 (EP&A Act) – Satisfactory

 SEPP (Sydney Region Growth Centres) 2006 – Appendix 11 The Hills Growth Centre Precinct Plan – Satisfactory

 SEPP 55 – Remediation of Land – Satisfactory

 SREP 20 – Hawkesbury-Nepean River – Satisfactory

 Box Hill Growth Centre Precincts Development Control Plan – Satisfactory

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PAGE 5 HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION The application was notified and two submissions were received. The issues raised were considered in the report.

ITEM 5: DA 1515/2020/HC- SENIORS HOUSING CONTAINING 12 SINGLE STOREY SELF-CONTAINED DWELLINGS AND TORRENS TITLE SUBDIVISION - LOT 102 DP 1205322, 1A MILLS ROAD GLENHAVEN

The Development Application is recommended for Approval subject to conditions.

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

 The Hills LEP 2019 – Satisfactory.

 SEPP (Housing for Seniors or People with a Disability) 2004 – Satisfactory.

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

 DCP Part B Section 1 – Rural – Satisfactory.

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION The application was notified and 1 submission from an adjoining property owner was received. Note: A further submission from an owner within “Glenhaven Gardens” raising concern with the lack of notification to her was tabled and considered at the meeting. It was noted that the landowner and operators of the site provided valid owners consent. Five late submissions from owners within “Glenhaven Gardens” were tabled in support of the development.

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PAGE 6 ITEM-2 DA 2136/2018/JP/A - SECTION 4.55 (1A) MODIFICATION TO AN APPROVED EXTRACTIVE INDUSTRY - LOT 1 DP 590937, NO. 4567 OLD NORTHERN ROAD, MAROOTA

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 DECEMBER 2020

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: PRINCIPAL CO-ORDINATOR

KRISTINE MCKENZIE

RESPONSIBLE OFFICER: MANAGER – DEVELOPMENT ASSESSMENT PAUL OSBORNE

Applicant PF Formation

Owner J and L Landholdings Pty Ltd Exhibition / Notification 31 days

Number Advised 97. This includes property owners and occupiers.

Number of Submissions Nil

Zoning RU1 Primary Production and SP2 Infrastructure (Classified Road)

Site Area 15.046 hectares List of all relevant s4.15(1)(a)

matters

SEPP State and Regional Development 2011 - Satisfactory SEPP 55 – Remediation of Land - Satisfactory

SEPP Mining, Petroleum Production and Extractive Industries 2007 - Satisfactory

Draft SEPP Environment - Satisfactory

SREP 9 – Extractive Industry (No. 2 – 1995) - Satisfactory SREP 20 – Hawkesbury Nepean River – Satisfactory Section 4.15 (EP and A Act, 1979) – Unsatisfactory Section 4.55 (EP and A Act, 1979) – Unsatisfactory LEP 2019 - Unsatisfactory

DCP Part B Section 1 – Rural - Unsatisfactory Section 7.11 Contribution: Unsatisfactory Political Donation None Disclosed

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PAGE 7 Reason for Referral to DAU Recommended for part refusal/part approval

Recommendation Part refusal/part approval EXECUTIVE SUMMARY

The original Development Application was for the extraction and processing of approximately three million tonnes of sand from the site over a 20 year period. An additional two year period is required for the final rehabilitation of the site. During the extraction, rehabilitation will be undertaken in a progressive manner to return the land to agricultural use.

The development is defined as a “Designated Development” under Schedule 3 of the Environmental Planning & Assessment Regulation, 2000 as the proposed development will process in excess of 30,000 tonnes per annum, will disturb more than 2 hectares of land and there is an extractive industry located opposite which is approximately 200m away to the north.

The proposed Modification Application seeks to amend the following conditions:

a. Condition 3 - Setbacks and Landscape Works b. Condition 12 - Rehabilitation Bond

c. Condition 23 - Quarry and Rehabilitation Management Plan

d. Condition 36 - Management of Area Subject to Vegetation Management Plan (VMP) e. Condition 56 - Section 7.11 Contribution – Extractive Industry

The proposed modifications to Conditions 3 and 36 are supported in part, with a reduced setback and amended timeframe for the maintenance of the area the subject of the VMP agreed to however it is noted that the recommended conditions are not as per the applicant’s request. The recommended conditions are based on the need to maintain rural amenity and character and to ensure that management of the VMP area is undertaken and maintained in an appropriate manner.

The proposed modifications to Conditions 12, 23 and 56 are not agreed to. This is on the basis of the need to maintain an appropriate rural character, natural environment and road infrastructure.

The application was advertised and notified and no submissions were received.

The application is recommended for part approval/part refusal.

BACKGROUND

Development Application 2136/20178/JP was approved by the Sydney Central City Planning Panel on 12 December 2019 for the extraction and processing of approximately three million tonnes of sand from the site over a 20 year period. An additional two year period is required

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PAGE 8 for the final rehabilitation of the site. During the extraction, rehabilitation will be undertaken in a progressive manner to return the land to agricultural use.

The subject Modification Application was lodged on 02 June 2020. Additional information was requested from the applicant on 02 September, which was submitted on 22 September 2020.

PROPOSAL

Development Application 2136/2018/JP was approved by the Sydney Central City Planning Panel on 12 December 2019.

The proposal was for the extraction and processing of approximately three million tonnes of sand from the site over a 20 year period. An additional two year period is required for the final rehabilitation of the site. During the extraction, rehabilitation will be undertaken in a progressive manner to return the land to agricultural use.

The development is defined as a “Designated Development” under Schedule 3 of the Environmental Planning & Assessment Regulation, 2000 as the proposed development will process in excess of 30,000 tonnes per annum, will disturb more than 2 hectares of land and there is an extractive industry located opposite which is approximately 200m away to the north.

The proposed modification seeks to amend the following conditions:

a. Condition 3 - Setbacks and Landscape Works b. Condition 12 - Rehabilitation Bond

c. Condition 23 - Quarry and Rehabilitation Management Plan

d. Condition 36 - Management of Area Subject to Vegetation Management Plan (VMP) e. Condition 56 - Section 7.11 Contribution – Extractive Industry

Following lodgement of the application, an email was received from the applicant’s planning consultant stating that:

If you are going to approve any modifications please correct the following minor errors created by Council in the original development consent. Conditions 24, 39 (a) ii and 39 (f) incorrectly reference the Environmental Protection Authority and an Environmental Protection Licence.

The correct terms being the Environment Protection Authority and Environment Protection Licence should be used in these conditions.

As the application includes the transport and processing of materials from the subject site to a property located in Hornsby Shire Council Local Government area (Lot 2 DP 748820, No.

311 Old Telegraph Road) and also includes the construction of a sand slurry pipeline under

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PAGE 9 and within the Old Telegraph Road reserve, owner’s consent for the proposed works has been provided from both The Hills Shire Council and Hornsby Shire Council

ISSUES FOR CONSIDERATION

1. Justification and Assessment of the Proposed Modifications a. Modification to Condition 3 - Setbacks and Landscape Works Condition 3 is as follows:

3. Setbacks and Landscape Works

All setbacks to boundaries are to be surveyed prior to work commencing and pegs or other appropriate markers placed in the ground. This includes:

 Ten (10) metres from the northern and southern boundary;

 Thirty (30) metres from the eastern boundary (with Old Telegraph Road);

 Fifty (50) metres from the common boundary with No. 4557 Old Northern Road.

High visibility fencing is to be installed to delineate the setback areas. No works are to be undertaken within setback areas with the exception of a two metre encroachment (if necessary) of the batter/toe of the bund walls i.e.: a minimum 8 metre setback is to remain for landscape works along both the northern and southern boundaries.

The 8 metre setback area along the northern and southern boundaries is to contain screen planting which reduces views of the bund walls and fencing.

In accordance with Condition 3, the bund walls are required to be set back a minimum of 8 metres from the north and south property boundaries. The applicant has requested that the bund wall have a nil setback along the northern and southern boundaries, with the extraction area continuing to be setback 10 metres from the boundary.

The applicant has submitted the following justification for the proposed modification:

The EIS provided several options to build the bund walls including using concrete panels as one option because it was not certain if The Hills Shire Council would approve the importation of VENM or ENM. It is not the preferred option to construct a 2.1m high bund with a 2.1 or 3.1m high concrete wall on top of the bund within a 2m width as presently required by condition 3. The project approval allows the import of VENM or ENM so that PF Formation Pty Ltd.’s preference now is for construction of the perimeter bunds from on-site overburden material, and/or imported VENM or ENM. The bunds will be screen planted. It is not reasonable to have any other restrictions placed on the encroachment or location of the noise bund and walls within the northern and southern boundary 10 metre setback areas, as no fire trail or vehicle access is required and the setback areas will be included in the Biodiversity Offset Strategy and requirements as per conditions 21 and 22.

Fire trails are not required around the extraction area (see Attachment 2 being a 14 November 2019 letter from Building Code & Bushfire Hazard Solutions).

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PAGE 10 Any vegetation to be removed for the extraction and associated works area is included in the Biodiversity Offset Strategy (see Attachment 3 being a 29 October 2018 letter from WSP).

With a modified condition 3 all setback areas will continue to include 4.2m or 5.2m high bunds around the extraction area with the remaining setback area landscaped including screen planting to reduce views of the bund walls. Figure 6 over provides a concept cross section of a 5.2m high perimeter bund wall.

The May 2018 Environmental Impact Statement for the project showed it was always the intention to place the bunds in the offset area and this is common practice in quarries in the Maroota area. For example, the Hitchcock Road Sand Project located within The Hills Shire has bunds within setback areas. For the project the setback areas can have bund walls placed within using a batter of approximately 1H (Horizontal):1V (Vertical) in order to achieve a maximum 5.2m high bund wall, which would alleviate the need to construct a concrete panel wall. The batters would be less steep for the 4.2m high bund walls. Similar bund walls have been constructed by PF Formation Pty Ltd for the Maroota Lodge quarry located on Old Telegraph Road within Hornsby Shire Council. The bund will be screen planted which will be a better outcome aesthetically than a concrete panel wall.

With the modified condition the perimeter screen planting requirements and the minimum setbacks from adjoining properties and public roads in The Hills Development Control Plan 2012 for extractive industries will continue to be met.

In addition, approximately 170,000m3 (8m width x 18m depth x 1200m length) of valuable resource material will not be able to be extracted if the condition is not modified.

In a request for additional to the applicant on 02 September 2020, the applicant was requested to provide further justification for the nil setback. The applicant provided the following additional comment:

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PAGE 11 In relation to the setbacks, the DCP states that the setbacks may vary depending upon the nature and location of extractive industries. The 10m setback for the extraction area within a rural landscape complies with the DCP, the only variation is bunds and screen planting within 10m and we have provided examples where this occurs within the Maroota area. The vegetated bund wall will also comply with the Section 4 Visual Amenity & Scenic Quality statement of outcomes in that the natural, scenic and landscape quality of the area is conserved and the rural character is retained. A screen planted bund wall has a more rural character than a concrete panel wall and with more natural and visually acceptable impact.

The 4.4m to 5.2m screen planted bund wall along the perimeter will be of sufficient height to screen views of the site from surrounding public and private places.

The earth bund walls will be vegetated with locally endemic native shrubs and grasses under 1 metre in height; selected from the species below.

Shrubs

Acacia ulicifolia, Banksia spinulosa, Actinotus helianthin, Hibbertia scandens, Monotoca scoparia, Bossiaea heterophylla, Dillwynia retorta, Hovea linearis, Grevillea buxifolia, Grevillea mucronulata, Grevillea speciosa, Lambertia formosa, Boronia ledifolia, Boronia floribunda, Pimelea linifolia, Daviesia ulicifolia and Pultenaea villosa.

Grasses

Lomandra longifolia, Anisopogon avenaceus, Austrostipa pubescens, Entolasia stricta, Themeda australis, Imperata cylindrica, Rytidosperma racemosum, Aristida vagans, Cymbopogon refractus and Digitaria ramularis.

The landscape planting will be regularly maintained on foot with priority weed removal and replacement of any dead or diseased native vegetation by the project ecologist. The bund wall will be regularly checked for structural integrity and any other damage and defects rectified. These maintenance activities associated with the bund wall will be listed in the Vegetation Management Plan and Environmental Management Plan for the project. We reiterate that landscaped earth bund walls will provide a better aesthetic outcome than concrete panel walls.

With the revised bund wall in place approximately 170,000m³ of valuable resource material will able to be extracted. This additional extractive material will be in accordance with the aims of Sydney Regional Environmental Plan No 9 – Extractive Industry (No 2 – 1995).

Comment:

The DCP requires a minimum 10 metre setback to an adjoining property boundary. The Statement of Outcomes of the DCP are:

 Extractive industries and related activities maintain an effective buffer to protect landscape quality, the habitats of threatened species, populations and ecological communities of the shire.

 Extractive industries maintain and enhance the rural-residential streetscape, existing character and amenity of rural-residential activities.

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PAGE 12 The proposed modification seeks to locate the toe of the bund wall on the property boundary as shown above on the northern and southern boundaries. The proposed acoustic wall differs in design from the original proposal which indicated a 2.1 metre high bund wall with a 2.1m or 3.1m high noise barrier erected atop. Council’s Co-ordinator Environmental Health has advised that there is no change to acoustic impact as a result of the amended bund wall design.

Notwithstanding the design of the acoustic barrier, the proposal to locate the bund wall on the boundary is considered unsatisfactory and has the potential to adversely impact on the adjoining property owners in regard to visual impact. The applicant has proposed a variety of shrub and grass species to be planted on the wall to provide a landscape screen with some of the species nominated reaching a mature height of 2-3 metres in optimum conditions.

However, in order to maintain the integrity of the bund wall, taller shrub species would be likely to be located on the lower areas of the bund wall. As such the wall and associated planting is unlikely to result in a satisfactory landscape outcome in regard to visual impact or to maintain the scenic rural character of the area given that there is no area proposed between the toe of the bund and the boundary for taller landscape screen planting which is in keeping with the native vegetation in the area.

As such, a revised condition has been recommended which requires that the bund wall adjoining the northern and southern boundary of the site be set back a minimum of 2 metres from the property boundary. This will allow for access to be provided for maintenance of the bund wall, installation of any erosion and sedimentation control devices and maintenance of landscape screen planting.

The extraction of materials will continue to be set back a minimum of 10 metres from the northern and southern boundaries.

The proposed modification to Condition 3 is supported in part.

b. Modification to Condition 12 - Rehabilitation Bond Condition 12 is as follows:

12. Rehabilitation Bond

The proponent shall submit a Rehabilitation Bond in the form of an unconditional bank guarantee to be held by Council as a legal document over the life of the development.

The rehabilitation bond shall be based upon $10.00 per square metre of extracted

area in accordance with the approved extraction and rehabilitation program for the subject development unless otherwise agreed by Council’s Manager Environment and Health. This rehabilitation bond is to be lodged with Council prior to any works commencing that relate to this consent.

Upon completion of establishment works, the applicant is to submit certification from a suitably qualified bush regenerator or restoration ecologist that all establishment

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PAGE 13 revegetation works have been completed in accordance with the approved Quarry and Rehabilitation Management Plan. Upon receipt of the certification report The Hills Shire Council’s Environment Team will inspect the site and upon approval this shall form the Council-certified completion of establishment works date.

The release of the bond will be staged as follows:

1. 50% 12 months after the Council-certified completion of establishment works.

The release of the bond is subject to the submission of annual maintenance reports prepared by the bush regeneration contractor and inspection by The Hills Shire Council to certify compliance with the Quarry and Rehabilitation Management Plan.

Attachment 4 provides the 16 March 2020 submission to The Hills Shire Council on reducing the condition 12 rehabilitation bond rate from $10.00 per square metre to $1.50 per square metre of extracted area and the 24 April 2020 Council email response. The rehabilitation bond based on $1.50 per square metre of extracted area would be $150,000 rather than the current $1,000,000. The modified rehabilitation bond rate is based on costs and would be less than that required in The Hills Development Control Plan 2012 for extractive industries which states the rehabilitation bond is a minimum rate of $3 per square metre. Note that many of the rehabilitation works will be carried out by the PF Formation Pty Ltd workforce and machinery as the site is progressively rehabilitated for bushland and agricultural use. PF Formation Pty Ltd has successfully carried out rehabilitation works for over 30 years at other quarries in the Maroota area.

In a request for additional to the applicant on 02 September 2020, the applicant was requested to provide a Vegetation Management Plan (VMP) to support the reduction in the rehabilitation bond. The applicant advised that Condition 12 did not request nor was linked to the submission of a VMP and as such a VMP was not provided for review.

Comment:

Council’s Senior Biodiversity Officer has reviewed the proposed modification and has advised as follows:

The applicant wishes to reduce the rehabilitation bond rate from $10 per square metre to

$1.50 per square metre of extracted area. The applicant notes that the modified rehabilitation bond rate is based on costs and would be less than that required in The Hills Development Control plan 2012 for extractive industries which states that the rehabilitation rate of $3 per square metre. The applicant has attempted to justify that many of the rehabilitation works will be carried out by PF Formation Pty Ltd workforce and machinery as the site is progressively rehabilitated for bushland and agricultural use. PF Formation Pty Ltd has successfully carried out rehabilitation works for over 30 years at other quarries in the Maroota area.

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PAGE 14 The application contains supporting information/ quotation supplied by South East Environmental to provide an estimated cost for rehabilitation post quarrying activities.

It is understood that the Development Application was approved by the Joint Regional Planning Panel with the requirement to provide a VMP/Rehabilitation bond. The applicant did not provide any information to support a bond amount, despite this being requested to do so.

In the absence supporting information at the time the bond was set at the maximum the Development Control Plan (DCP) allows for this type of development ($10/square metre).

The letter requests that the bond is reduced to $1.50 per m² which equates to $150,000.

I have reviewed the information provided and after consideration the request to reduce the bond is not accepted for the following reasons.

i. The amount suggested is not high enough to cover the costs to rehabilitate the land in the event that the applicant is unable to rehabilitate the land for unforeseen circumstances and Council is required to remediate and rehabilitate the land.

ii. The quotation and costing does not take into consideration inflation and when it comes time to rehabilitate the land cost of materials, labour and supplies will be more than what is quoted now and the quotation and costing does not consider this.

iii. Based on the information supplied in the letter which included examples of other similar development approvals that had bonds of a lesser amount – the individual circumstances and details of the required rehabilitation works are not known for each example and may not be a suitable comparison.

iv. The costing provided in South East Environmental is an estimated quotation and the costing relies on the applicant/land owner undertaking a lot of the work themselves.

Condition 23 states the Quarry and Rehabilitation Management Plan is to be supported by a Vegetation Management Plan (VMP) is to be prepared for the rehabilitation of the native bushland corridors as an appendix to the Quarry and Rehabilitation Management Plan.

Further consideration to reduce the bond may be made upon receipt of a Vegetation Management Plan that is prepared in accordance with the Hills Shire Council Vegetation Management Plan guidelines and includes costings.

The proposed modification to Condition 12 is not supported.

c. Modification to Condition 23 - Rehabilitation Management Plan Condition 23 is as follows:

23. Quarry and Rehabilitation Management Plan

The Quarry and Rehabilitation Management Plan is to be amended to increase vegetation/habitat connectivity across the site. The rehabilitation plan is to incorporate the following.

a. Increase the width of proposed riparian corridors to a minimum of 10 metres vegetated riparian corridor from top of bank each side of the water course.

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PAGE 15 b. Re-establishment of a minimum 30 metre bushland corridor along the full length of

the northern and southern boundaries.

c. Increase the width of the bushland corridor along the northern property boundary.

A Vegetation Management Plan (VMP) is to be prepared for the rehabilitation of the native bushland corridors as an appendix to the Quarry and Rehabilitation Management Plan. The VMP must be prepared in accordance with Council’s Vegetation Management Plan Guideline (available on Council’s website www.thehills.nsw.gov.au). The plan must be prepared by a suitably qualified bush regenerator or restoration ecologist with a minimum Certificate IV in Conservation Land Management.

The VMP plan is for the rehabilitation of the native bushland corridors and must include:

ii. Details of the rehabilitation strategies and plant maintenance.

ii. Measurable performance targets and a contingency plan if performance targets are not achieved.

iii. Details on the requirement to restrict domestic grazing stock from bushland rehabilitation areas and the provision of permanent bushland protection fencing.

The Quarry and Rehabilitation Management Plan must be submitted to Council’s Manager – Environment and Health for approval prior to works extraction commencing.

The proposed modification seeks to delete 23b and 23c.

Page 21 of the Environmental Impact Statement for the project stated as follows.

"The proposal will not fragment extractive resources or agricultural land. Although the proposal would restrict agriculture in the medium term it is proposed to rehabilitate all of the extraction area as Class 3 agricultural land once extraction has ceased. Environmental and rural qualities of the area will be maintained with rehabilitation of the extraction areas for agriculture and dams. In particular the proposal will facilitate the economic extraction of materials from the land and the subsequent rehabilitation of that land."

As part of the Environmental Impact Statement the Quarry and Rehabilitation Management Plan stated the site would be progressively rehabilitated for bushland and agricultural use.

All vegetation to be removed for the extraction and associated works area would be included in the Biodiversity Offset Strategy on other lands. The Hills Shire Council Planning Certificate Number 55243 also states the land is not biodiversity certified land and has no biobanking agreements.

The objectives of the RU1 Primary Production zone (the zoning of the majority of the site) under The Hills Local Environmental Plan 2019 are as follows.

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

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PAGE 16

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To facilitate the economic extraction of materials from land and the subsequent rehabilitation of that land.

Extensive agriculture is permitted without consent in the RU1 zone and there is no mention in the objectives of The Hills Local Environmental Plan 2019 for the RU1 zone that bushland has any priority. Native vegetation is defined but bushland is not defined in The Hills Local Environmental Plan 2019 as included in condition 23.

The inclusion of conditions 23b and 23c would increase the areas of existing bushland along the northern and southern boundaries rather than as the preferred agricultural land and would be contrary to the objectives of the RU1 Primary Production zone. The objectives of the RU1 Primary Production zone are for primary production which requires agricultural land rather than increased areas of bushland which cannot be used as agricultural land. There is no justification for the inclusion of conditions 23b and 23c which have the intent of increasing areas of bushland (or native vegetation) rather than agricultural land.

The biodiversity offset outcomes sought to be achieved through additional areas of bushland corridors on part of the site are more appropriately and effectively accommodated through the biodiversity offset scheme which applies to and requires consolidated regeneration in other parts of the locality or State.

In a request for additional to the applicant on 02 September 2020, the applicant was requested to provide further justification for the deletion of parts (b) and (c) on the basis the current requirement for a vegetated corridor assist in compensating for the loss of vegetation and habitat on the site. The applicant advised that they considered that the justification provided in the application was sufficient and no further information was provided.

Comment:

It is understood that the applicant proposes to delete 23b and 23c removing the requirement to:

23b. Re-establish of a minimum 30 metre bushland corridor along the full length of the northern and southern boundaries.

23c. Increase the width of the bushland corridor along the northern property boundary.

From an ecology perspective these modifications are not supported as the removal of these requirements as a revegetated corridor would assist in compensating for the loss of the vegetated corridor (approximately 50m wide) that exists currently on the northern boundary

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PAGE 17 and bushland on the eastern half of the site to retain habitat corridors in the landscape.

Vegetated corridors provide fauna including a number of threatened species the ability to move between habitats which may be critical for their survival e.g. breeding, foraging and dispersal. These corridors also become essential when conditions become unfavourable in other areas such as bushfire and drought. The buffer may also assist in reducing weed spread from future Agriculture land use to adjoining property and improve visual amenity.

d. Modification to Condition 36 – Management of Area Subject to Vegetation Management Plan (VMP)

Condition 36 states as follows:

36. Management of Area Subject to Vegetation Management Plan (VMP)

Any area that is subject to a Vegetation Management Plan (VMP) shall be managed in accordance with the approved VMP in perpetuity by the property owner/s.

The proposed modification seeks to replace the term ‘in perpetuity’ with ‘until Completion of the Quarry and Rehabilitation Management Plan’.

In perpetuity, as a legal term applies to a transfer of rights or clauses that survive contract termination or in this case development consent for the life of the development. It is unreasonable and unnecessary to require the VMP to be managed in perpetuity and beyond the 22 year life of the development consent. Condition 12 also requires a rehabilitation bond that does not expire until 36 months after the Council-certified completion of establishment works.

All vegetation to be removed for the extraction and associated works area has been accounted for and will be included as permanent offsets on other lands in the Biodiversity Offset Strategy. On completion of the project the site will revert to agricultural land and bushland as per the Quarry and Rehabilitation Management Plan.

In a request for additional to the applicant on 02 September 2020, the applicant was requested to provide further justification for the modified wording to the condition. The applicant advised that they considered that the justification provided in the application was sufficient and no further information was provided.

Comment:

The applicant proposes to replace the term ‘in perpetuity’ with ‘until completion of the Quarry and Rehabilitation Management Plan’.

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PAGE 18 The applicant states that this is ‘unreasonable and unnecessary to require the VMP to be managed in perpetuity and beyond the 22 year life of the development consent. Condition 12 also requires a rehabilitation bond that does not expire until 36 months after the Council – certified completion of establishment works.”

Concerns are raised from an ecology perspective regarding the ongoing maintenance of the remediated area, particularly the riparian areas.

The proposed change to the length of time the area is subject to management in accordance with the Vegetation Management Plan may not achieve the objectives of the VMP and the area may be subjected to weed invasion without the area actively managed and allow rectification of attrition of plants.

As such the following wording is proposed:

Life of consent plus a minimum of 36 months until the performance criteria of the Vegetation Management Plan is achieved.

The proposed modification to Condition 36 is supported in part.

e. Modification to Condition 56 – Section 7.11 –Extractive Industry Condition 56 is as follows:

56. Section 7.11 Contribution – Extractive Industry

The applicant shall pay or procure payment to the Council of a developer contribution under Section 7.11 of the Environmental Planning and Assessment Act, 1979 at the rate of $1.05 per tonne of all extracted/processed material transported from the subject site, and in respect of the said contribution, the following provisions shall apply:-

a) The developer contribution will be calculated and paid monthly from the date on which development consent became effective. The amount of contributions imposed in a development consent will calculated based on the contribution rate applicable to Contributions Plan No.6 at the time of the issuing of development consent.

b) The contribution rate imposed under this condition will indexed and adjusted annually in accordance with the Consumer Price Index for Sydney applicable to each year ending 30 June, commencing 1 July 2008 for the duration of the development consent. The quantum of the adjustment will be consistent with the change in CPI over the preceding 12 months to 30 June of each year. At the time of payment of developer contributions, the contributions payable will be adjusted and the amount payable will be calculated on the basis of the contribution rate that is applicable at the time of payment.

c) On or before the fourteenth day of each month of the duration of the consent, the applicant shall deliver or procure delivery to the Council of true certified copy weighbridge or other returns or records showing the true quantities of extracted/processed material transported from the property during the immediately

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PAGE 19 preceding month and the Council will then, as soon as it can conveniently do so, issue an invoice to the applicant or its consenting assignee, who will pay to the Council within fourteen (14) days of the date thereof.

d) The Council has the right to inspect and have the original records relating to any of the extracted/processed material, including numbers and types of laden trucks, trailers and load quantities transported from the property audited by any person nominated by its internal accountant any time when he may, be written request so require.

e) The Council will pay all of the said contribution payments into a specially identified account for payments towards the rehabilitation, restoration, repair and/or maintenance of Old Northern and Wisemans Ferry Roads between the intersection of the access road and the Baulkham Hills Shire boundary at Cattai Creek and other projects identified in the Plan of Management for Extractive Industries adopted by Council.

Prior to payment of the above contributions, the applicant is advised to contact Council’s Development Contributions Officer on 9843 0268. Payment must be made by cheque or credit/debit card. Cash payments will not be accepted.

This condition has been imposed in accordance with Contributions Plan No. 6. Council’s Contributions Plans can be viewed at www.thehills.nsw.gov.au or a copy may be inspected or purchased at Council’s Administration Centre.

The proposed modification seeks to add additional clauses to the end of Condition 56 as follows:

f) The contribution for extracted material removed from the site by road truck via Old Telegraph Road Maroota for processing at Lot 2 DP 748820 will be at the rate of

$0.02 per tonne. The contribution rate imposed under this condition will be indexed and adjusted annually in accordance with the Consumer Price Index for Sydney applicable to each year ending 30 June, commencing 1 July 2020 for the duration of the development consent.

g) All contributions paid for all extracted/processed material transported from the site will be offset monthly from the $686,150 cost incurred by the applicant for upgrading 500 metres of Old Telegraph Road Maroota between the site and Lot 2 DP 748820.

The offset contributions will commence on completion of the upgrade of Old Telegraph Road until the cost of the upgrade is exceeded.

Section 7.11 five year works program for 2017/18 – 2021/2022. The works program includes Old Northern Road and Wisemans Ferry Road with no mention of works for Old Telegraph Road. Yessie Page 4 of the Contributions Plan No.6 – Extractive Industries states as follows.

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PAGE 20 All Contributions collected under this Plan will be transferred to RMS for expenditure in accordance with the parameters set by the Land & Environment Court judgement Collin C Donges & Associates Pty Ltd v BHSC in 1989. RMS may undertake works additional to those identified within the Works Program, as deemed necessary by RMS and in accordance with the parameters set by the Land & Environment Court judgement Collin C Donges & Associates Pty Ltd v BHSC in 1989. Notwithstanding the value of works completed by RMS, the value of funds to be transferred to RMS by Council shall not exceed the value of funds collected under this Plan.

The Land and Environment Court judgement Collin C Donges & Associates Pty Ltd v BHSC in 1989 is provided in Attachment 5. The case was funded by PF Formation Pty Ltd and the findings within the judgment have informed (sometimes inappropriately) the levies provided for in contributions plans which apply to extractive industries across NSW.

The 1989 judgement determined a contribution rate of 50 cents per tonne of extracted material transported a distance of 31.7km along Old Northern Road and 18.7km along Wisemans Ferry Road, that is an average of 25.3 km that trucks travelled on roads in The Hills Shire from the development. This rate was determined 30 years ago for the average truck distance of 25.3km at $0.50 per tonne and has been indexed ever since and applied to every The Hills Shire extractive industry consent no matter what distance trucks travel from the development. PF Formation Pty Ltd believe that there is no basis for the contribution rate that is proposed under the Contributions Plan No.6 – Extractive Industries unless the trucks related to the development travel 25.3km within the Maroota area of The Hills Shire; this is not always the case. The contribution rate of $1.05 per tonne of extracted material in condition 56 does not fairly or reasonably relate to the development.

The contribution rate was indexed and in 2020 is currently $1.05 per tonne of extracted material. Despite Old Telegraph Road not being included in the five year works program of Contributions Plan No.6 – Extractive Industries the formula provides a rate of $0.02 per tonne as included in proposed modification condition 56 (f). The calculation is based on 500 metres of travel along Old Telegraph Road, divided by 25.3km of future transport along Old Northern Road and Wisemans Ferry Road, multiplied by the current contribution rate of

$1.05 per tonne of extracted material, which equals $0.02 per tonne. Section 7.11 contributions should relate to the scale of the development and they should be equitable, just, fair and reasonable.

In relation to DA 2136/2018/JP on 4 May 2018 PF Formation Pty Ltd wrote to Council about Section 7.11 development contributions for the site. A response was received from Council on 12 September 2018 stating it would be inappropriate and contrary to the Contributions Plan to enter into a works-in-kind or Voluntary Planning Agreement diverting Section 7.11 development contributions towards local road works.

In relation to proposed modification condition 56 (g), page 4 of the May 2018 Environmental Impact Statement for the site stated about 500m of Old Telegraph Road would be sealed by the proponent between the site and processing plant provided the cost was offset by Section 7.11 development contributions. Section 7.11 contributions for three million tonnes of

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PAGE 21 extracted material over 20 years at the current rate of $1.05 tonne would be $3,150,000. The upgraded 500m section of Old Telegraph Road would be maintained and repaired for the life of the project by PF Formation Pty Ltd which would benefit Council by transferring any upgrade and future maintenance and repair costs for the local road. In addition, the estimated cost for the civil works for upgrading 500 metres of Old Telegraph Road would be approximately $623,773 plus GST as shown in Attachment 6.

The basis on which the contribution is proposed to be levied is fundamentally flawed as it seeks to require payment of a contribution on two separate occasions for the transport of the same load of material along the road network. Contributions should not be paid twice on material that is only transported once outside the Maroota area. Only one set of Section 7.11 contributions should be paid for the project for future main roads (i.e. Old Northern Road and Wisemans Ferry Road) repairs, maintenance and reconstruction in the Maroota area. Under condition 56 Council wants the Section 7.11 development contributions plus the upgrading of Old Telegraph Road and this extra or double payment for the project would be inequitable, unjust, unfair and unreasonable. At present with condition 56 double Section 7.11 contributions for the project would need to be paid to both Hornsby Shire Council and The Hills Shire Council in accordance with the terms of the two development consents which apply to the extraction of the material at the site and the processing of the material at Pit 4.

The condition to upgrade Old Telegraph Road is not justified as it is not mentioned in the works program in The Hills Shire Contributions Plan No.6 – Extractive Industries unless it is offset by Section 7.11 development contributions. To require the upgrade of a road at the expense of PF Formation Pty Ltd and simultaneously to levy a contribution amount for its upgrade is double dipping or double payment.

The imposition of the Section 7.11 contributions in condition 56 plus upgrading Old Telegraph Road is unreasonable and overly onerous in that the amount does not reflect or have any direct nexus to the scope of any impacts to the road network impacts in The Hills Shire or upgrade requirements which would arise as a result of the development. The imposition of the amount proposed is unjustified, grossly excessive and disproportionate to the impacts of the development. In addition, the imposition of upgrading 500m of Old Telegraph Road does not have any direct nexus to the actual requirement for the provision of or increase the demand for public amenities and public services within the area.

Double payment of Section 7.11 contributions for the project would be in conflict with the relevant objects of the Environmental Planning and Assessment Act 1979 which include:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii) the promotion and co-ordination of the orderly and economic use and development of land,

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PAGE 22 (iii) the protection, provision and co-ordination of communication and utility services,

and;

(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State.

Double payment of Section 7.11 contributions for the project would not be in accord with Section 7.14 Cross-boundary issues of the Environmental Planning and Assessment Act 1979 which states:

(1) A condition may be imposed under section 7.11 or 7.12 for the benefit (or partly for the benefit) of an area that adjoins the local government area in which the development is to be carried out.

(2) Any monetary contribution that is required to be paid under any such condition is to be apportioned among the relevant councils:

(a) in accordance with any joint or other contributions plan approved by those councils, or

(b) if provision is not made for the apportionment in any such plan - in accordance with the terms of the development consent for the development.

(3) Any dispute between the councils concerned is to be referred to the Secretary and resolved in accordance with any direction given by the Secretary.

The addition of clauses (f) and (g) at the end of condition 56 is justified.

Comment:

Council’s Forward Planner has reviewed the proposed modification and has advised as follows:

The reduction to the contribution rate (proposed Condition 56f) is not supported. The nexus for Council to levy extractive industries has been established under Contributions Plan No. 6 – Extractive Industries. This Contributions Plan has been prepared in accordance with the principles of Section 7.11 of the Environmental Planning and Assessment Act 1979 and the Plan demonstrates that the facilities proposed to be levied reasonably relate to the uses which are authorised to be levied under the Plan. Heavy vehicles associated with the operation of extractive industries ultimately travel along the roads which, the maintenance and repair of, are funded under the Contributions Plan (being Old Northern Road and Wisemans Ferry Road). The contribution rate has been established in accordance with the findings of Collin C Donges & Associates Pty Ltd v BHSC (1999) and is considered to be fair and reasonable. Council is legislatively bound to apply the contribution rate established under the adopted Plan and cannot consider variations on a site by site basis, unless it is expressly authorised by the adopted Plan.

The offsetting of contributions (proposed Condition 56g) is also not supported. Contributions collected under the Plan are transferred directly to Transport for NSW (RMS) to fund the

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PAGE 23 repair and maintenance of Old Northern Road and Wisemans Ferry Road. CP6 does not fund repairs or improvements to Council owned roads such as Old Telegraph Road and the contribution condition under 2136/2018/JP is therefore not ‘double dipping’. The proposed reduction in contributions would divert funds ‘earmarked’ for RMS expenditure on Old Northern Road and Wisemans Ferry Road towards local road works.

The upgrade of Old Telegraph Road was conditioned to bring the road up to the required standard for the increased traffic which would occur as a result of the new extractive industry use. Council required that the unsealed portions of the road be sealed up to the point at which the applicant accesses their site, upgrading the road to a sealed rural road standard as per Councils drawing SD42. It should be noted that construction of local roads across the Shire is generally required to be undertaken by developers as part of new developments unless these works are identified and funded through an applicable contributions plan.

2. Internal Referrals

The application was referred to following sections of Council:

 Ecology

 Forward Planning

 Environmental Health

The proposal is recommended for part approval/part refusal.

3. External Referrals

The proposal was referred to the following authorities: Transport for NSW (formerly Roads and Maritime Services), Environment, Energy and Science (formerly Office of Environment &

Heritage), NSW Department of Planning and Environment - Division of Resources and Geoscience NSW, Department of Primary Industries – Agriculture, NSW Department of Primary Industries – Fisheries, Rural Fire Service, Natural Resources Access Regulator, Department of Planning, Industry and Environment, NSW Environment Protection Authority, Darug Tribal Aboriginal Corporation, Deerubbin Local Aboriginal Land Council, Castle Hill Police and Hornsby Shire Council.

Comments were received from the following authorities:

a. Transport for NSW (RMS) – advised that no comments were required on the proposed modifications.

b. Department of Primary Industries (Fisheries) – advised that as there were no impacts on key fish habitats no comments were required.

c. Environment, Energy and Science – provided comments stating that should Council approve the application in regard to Condition 3, the Biodiversity Offset Strategy (BOS) is required to incorporate the revised biodiversity impact calculations.

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PAGE 24 d. Rural Fire Service – provided an update wording for Condition 6 of the original consent. However the applicant has not requested that this condition be amended and as such the existing condition will remain.

e. Natural Resources Access Regulator – advised that no further assessment was required of the proposed modification.

f. Resources and Geoscience – advised that there are no issues or comments regarding the proposed modification.

g. Environment Protection Authority – provided general comments on the proposed modification to Condition 3 however did not advise whether the EPA supported the proposed changes to setbacks, advised that the change to the bond amount was not opposed subject to the amended bond amount being enough to ensure that the land is rehabilitated and advised that they had no comments in regard to Conditions 23, 36 and 56.

h. NSW Police – no objection is raised to the proposed modifications.

i. Department of Primary Industries (Agriculture) – provided general comments and advised that the modification to Condition 3 relates to visual impact and does not affect the use of the land for agricultural purposes, no opposition is raised to a modification to the bond amount provided the consent authority is satisfied that the bond amount will be sufficient to ensure the land is rehabilitated for agricultural use, they note in regard to Condition 23 that while native vegetation corridors may provide benefits to some types of agriculture or contribute to the mitigation of potential land use conflict, however its omission would allow a greater area of land to be used for agricultural purposes which may improve its economic viability however as the future type of agricultural use on the site is not known Agriculture do not support nor oppose the proposed modification. In regard to Condition 36 Agriculture have advised that they have no concerns subject to the consent authority is satisfied that the land will be able to be used for agricultural purposes once it has been rehabilitated and no comments have been provided in regard to Condition 56.

CONCLUSION

The Modification Application has been assessed against the relevant heads of consideration under Sections 4.15 and 4.55 of the Environmental Planning and Assessment Act, 1979, Local Environmental Plan 2019 and The Hills Development Control Plan 2012. The proposed modified conditions have been reviewed and it is considered reasonable to amend Conditions 3 and 36, however the proposed modifications to Conditions 12, 23 and 56 are not supported.

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PAGE 25 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 partly consistent with the planning principles, vision and objectives outlined within “Hills 2026 – Looking Towards the Future”. The proposed modifications have been reviewed and are partly supported.

RECOMMENDATION

The modification application be determined as follows:

1. Condition 3 be deleted and replaced with:

3. Setbacks and Landscape Works

All setbacks to boundaries are to be surveyed prior to work commencing and pegs or other appropriate markers placed in the ground. This includes:

 Ten (10) metres from the northern and southern boundary;

 Thirty (30) metres from the eastern boundary (with Old Telegraph Road);

 Fifty (50) metres from the common boundary with No. 4557 Old Northern Road.

High visibility fencing is to be installed to delineate the setback areas. No works are to be undertaken within setback areas with the exception of the construction of the bund walls adjacent to the northern and southern boundaries. A minimum 2 metre setback is required to be provided between the toe of the bund wall and the property boundary adjacent to the northern and southern boundaries. The 2 metre setback area along the northern and southern boundaries is to contain screen planting which reduces views of the acoustic bund walls and any associated works.

2. Condition 36 be deleted and replaced with:

36. Management of Area Subject to Vegetation Management Plan (VMP)

Any area that is subject to a Vegetation Management Plan (VMP) shall be managed in accordance with the approved VMP for the life of consent plus a minimum of 36 months until the performance criteria of the Vegetation Management Plan is achieved.

3. Conditions 24 and 39 are updated to refer to the Environment Protection Authority and Environment Protection Licence

4. The proposed modifications to Conditions 12, 23 and 56 are not supported.

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PAGE 26 ATTACHMENTS

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

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PAGE 27 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 28 ATTACHMENT 2 – AERIAL PHOTOGRAPH

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PAGE 29 ATTACHMENT 3 – APPROVED SITE PLAN