ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 25 May 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 25 MAY, 2021

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

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

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PAGE 3 MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 18 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 4 May 2021 be confirmed.

ITEM-2 DA 835/2021/LA – ADDITIONAL GARAGE AND DRIVEWAY – LOT 15 DP 1168875, NO. 44 ARNOLD AVENUE, 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 was refused for the reasons outlined in the report.

REASONS FOR THE DECISION

1. The proposed is considered to be unsatisfactory in regards to the objectives of the R2 Low Density Residential zone as the proposal does not maintain residential character.

(Section 4.15 (1)(a)(ii) of the Environmental Planning and Assessment Act, 1979) 2. The proposed development does not satisfy the requirements of The Hills Development

Control Plan 2012 including landscaping and vehicular access.

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

3. The proposed development is not in the public interest. It is considered the proposed driveway will unreasonably impact on streetscape.

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

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PAGE 4 4. The applicant has provided insufficient plan detail/information to allow for a proper and

thorough assessment of the extension of the driveway as per Clause 54 of the Environmental Planning and Assessment Regulation 2000.

(Section 4.15(1)(b) and (c) of the Environmental Planning Assessment Act 1979)

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION Notification letters were issued to adjoining properties over 14 days. No submissions were received.

END MINUTES

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PAGE 5 ITEM-2 DA 178/2020/ZB - SUBDIVISION CREATING THREE RURAL RESIDENTIAL LOTS - LOT 2 DP 565176, 55 NELSON ROAD, NELSON

THEME: Valuing our Surroundings

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

STRATEGY: 9.3 Manage new and existing development with a robust framework of policies, plans and processes that is in accordance with community needs and expectations.

MEETING DATE: 25 MAY 2021

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SUBDIVISION PLANNER

ALEXANDRA HOPKINS

RESPONSIBLE OFFICER: MANAGER – SUBDIVISION AND DEVELOPMENT CERTIFICATION

BENJAMIN HAWKINS

Applicant Mr M L Hession Notification 21 days

Number Advised 26 Number of Submissions Two

Zoning RU6 Transition

Site Area 6.854 hectares List of all relevant

s4.15(1)(a) matters Section 4.15 of the Environmental Planning and Assessment Act 1979 – Unsatisfactory

Biodiversity Conservation Act 2016 – Unsatisfactory The Hills LEP 2019 – Unsatisfactory

SEPP 55 – Remediation of Land – Satisfactory

The Hills DCP – Part B Section 1 – Rural – Variations sought Political Donation None disclosed

Reason for Referral to DAU 1. Refusal

2. Variations to DCP 3. Submissions received Recommendation Refusal

EXECUTIVE SUMMARY

The development application is for a subdivision creating three rural residential lots at 55 Nelson Road, Nelson. The site is zoned RU6 Transition and contains a locally listed heritage item known as ‘Rosedale’, Item 152 under Schedule 5 of The Hills Local Environmental Plan 2019.

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PAGE 6 Despite proposing to create final lots intended to be sold and developed separately the applicant has declined to address the environmental impacts arising from the subdivision (including the inevitable future development and use of the lots). The plans and reports submitted with the proposal include asset protection zones around proposed building platforms along with onsite wastewater treatment areas for each of the proposed lots however the applicant has clarified that the proposal is for a paper subdivision creating three rural (not residential) lots with the only works proposed being that associated with the shared access driveway to/ from Nelson Road. Any planned future use or development on the lots created would be the subject of separate development applications later. As a result the information submitted with the application does not satisfy the requirements of The Hills Local Environmental Plan 2019 or the Biodiversity Conservation Act 2016 relating to ecology impacts. The extent of these impacts is likely to trigger the need to enter into the Biodiversity Offset Scheme requiring a Biodiversity Development Assessment Report which the applicant has failed to provide.

The proposal includes variation to The Hills Development Control Plan relating to the minimum required wastewater and effluent disposal areas required for each of the three lots.

Additional information was requested from the applicant but was not provided.

A bushfire safety authority/ general terms of approval from the Rural Fire Service is required.

The Rural Fire Service have raised concern with the access arrangements for the three lots.

The Rural Fire Service have also confirmed the asset protection zones nominated as part of the submitted bushfire reporting would have to be applied and managed as a part of the subdivision application. Ongoing management of these asset protection zones would also need to be undertaken by future landowners for dwelling protection.

The application was notified to nearby and adjoining properties and two submissions were received raising concern with ecology, heritage, character and the location of the proposed dwellings relative to their boundary.

The application is recommended for refusal.

BACKGROUND

A pre-lodgement meeting was held with Council on Tuesday 12 March 2013 with written advice provided following that meeting dated 2 April 2013. The key concerns noted were heritage and ecology.

On 9 August 2019 the subject application was lodged. Originally the proposal sought to create four rural residential lots (with one undersized lot containing the heritage item and relying on the heritage incentive clause from The Hills Local Environmental Plan 2019 (LEP)). A stop the clock letter was sent on 30 August 2019 raising the following concerns.

• Non-compliant four lot subdivision not supported.

• Heritage assessment against Section 5.10 of the LEP not sufficient.

• Plans and reporting were prepared four/ five years prior to lodgement and are no longer accurate.

• Proposed building platforms with associated asset protection zones are to be shown as required by The Hills Development Control Plan (DCP).

• Compliance with planning for bushfire protection not demonstrated.

• Traffic report required.

• Reasoning for why stormwater management/ onsite stormwater detention had not been provided.

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PAGE 7

• Assessment against Biodiversity Conservation Act 2016 not provided.

• The Cumberland Plain Woodland and Shale Sandstone Transition Forest (critically endangered) located on site are likely to trigger the need for a Biodiversity Development Assessment Report (BDAR) under the Biodiversity Conservation Act 2016.

• Flora and fauna assessment required to determine if the proposed development will have a Serious and Irreversible Impact (SAII).

• Tree removal plan required.

• Onsite effluent disposal was inadequate.

• Driveway exceeds max distance for wheeling bins for collection from the road edge (75 metres) and driveway cannot facilitate the turning of a heavy rigid vehicle necessary for onsite waste collection.

A meeting was held with the applicant on 25 October 2019 to discuss these matters.

A partial response was provided on 3 December 2019. The applicant advised the remaining information requested would be provided mid-February.

A review of the partial response was carried out and a response sent to the applicant on 13 February 2020 reiterating the same concerns noted above. The applicant was advised to amend or withdraw the application.

A further response was provided 16 July 2020 including an amended plan reducing the proposed number of lots to three/ providing for compliant lot sizes. A waste management report and bushfire report were also submitted. A flora and fauna report was then also submitted on 22 July 2020.

The applicant was advised on 6 August 2020 that a BDAR was needed to address the ecology impacts of the subdivision. They were also advised that appropriate effluent disposal areas need to be shown on an amended plan. The applicant responded advising that a BDAR should not be required as the subdivision does not propose any physical works and so there is no ecology impact to address as follows.

• The only physical works proposed under this application is the construction of the access driveway. The removal of trees has not been proposed under this application and therefore there is no impact on the biodiversity of the site.

• Indicative dwelling footprints have been provided to show that future development of the site is possible. The BDAR should be required at the stage when development involving the removal is vegetation is proposed.

• It has been demonstrated that it is possible to construct a dwelling in the proposed lots and a BDAR is not required and will not be prepared for this application.

• Similarly, the effluent disposal area requirements are to be shown at the residential development stage and will not be submitted with this application.

A response was provided to the applicant on 10 August 2020 clarifying that any subdivision needs to consider the total area of native vegetation that is likely to be cleared after the land has been subdivided. In considering the merits of the proposed subdivision the site constraints necessitate that the location of the future dwellings on the lots created (along with their associated asset protection zones and onsite wastewater areas) are established and linked to any approval granted.

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PAGE 8 On 12 August 2020 the applicant provided additional engineering detail and further argued against the need to consider ecology at the subdivision stage. An amended flora and fauna report was submitted 23 August 2020 concluding that further reporting will be done upon future residential development of the site.

A second/ final letter requesting additional information was sent to the applicant on 1 October 2020. That letter sought to explain how the BDAR was necessary at the subdivision stage as follows.

Consideration of these impacts is required to be assessed at the time of subdivision in accordance with Section 7.1 of the NSW Biodiversity Conservation Regulation 2017 Part 3 which states:

If proposed development is or involves the subdivision of land, the subdivision is taken to involve the clearing of native vegetation that, in the opinion of the relevant consent authority or other planning approval body, is required or likely to be required for the purposes for which the land is to be subdivided.

Once that clearing has been taken into account, the clearing for the purposes of the subsequent development of the land for which it was subdivided is not to be taken into account when determining whether the subsequent development exceeds the threshold.

Therefore based on this calculation the proposed subdivision will exceed the area clearing threshold and therefore triggers the Biodiversity Offset Scheme.

The applicant responded on 6 October 2020 again arguing against the need to consider ecology at the subdivision stage. It was suggested that their ecologist speak to Council’s ecologist directly to discuss the detail relating to the application of the Biodiversity Conservation Act 2016.

On 22 October 2020 comments from the Rural Fire Service raising concern with the submitted plans and reporting specifically with respect to access to the lots were forwarded to the applicant to respond also.

On 1 December 2020 Council staff sought an update from the applicant. A partial response was provided on 11 December 2020 again arguing against the need to consider ecology at the subdivision stage. Council staff responded on 15 December 2020 and again on 24 December 2020 advising as follows.

The information we need is as previously advised and remains outstanding. I understand you are in the process of preparing additional information in response to the other matters in my previous correspondence. In particular, the requirement for a Biodiversity Development Assessment Report (BDAR) to be submitted because of the extent/ area of clearing the threshold for entry into the Biodiversity Offset Scheme is met is the primary concern. In the absence of a BDAR we have no option other than to refuse the application.

The subdivision results in the creation of residential lots, building areas and associated bushfire asset protection zones and areas for onsite wastewater disposal which will have an impact on the vegetation within those lots. Your position that the subdivision itself does not require any vegetation removal but rather if/ when the lots are created and developed that future development will create the impact and any ecology impacts should be addressed then is not supported. As mentioned

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PAGE 9 previously, the Biodiversity Conservation Regulation 2017 requires that the impacts associated with a subdivision be considered. In this instance, the NSW Rural Fire Service will require the Asset Protection Zones to be established with the subdivision and will therefore impact the vegetation on the site requiring a BDAR to be prepared and submitted. I note also the Rural Fire Service have raised issue with your bushfire report and have refused to issue their concurrence. Lastly, the future owners would be burdened with dealing with these matters that you as the subdivider/ developer now should be dealing with.

On the basis of the above, if your position remains that a BDAR will not be prepared and submitted you are requested to withdraw the application by COB Friday 25 January 2021. Should the application not be withdrawn, the application will be determined based on the information submitted which will result in a recommendation to Council’s Development Assessment Unit for refusal. If you do intend on providing a BDAR and would like to discuss this, or any other aspect of the outstanding request for additional information, myself and any other relevant Council staff will be happy to meet with you early in the new year. If you do intend on providing a BDAR please confirm this before the date noted above.

A meeting was subsequently organised for 12 January 2021 where the outstanding matters primarily relating to ecology and bushfire were discussed. The applicant subsequently provided further written explanation on 1 February 2021 asserting that Council staff had changed their application from what was proposed. The applicant clarified the proposal was for a paper subdivision creating three rural (not residential) lots with the only works proposed being that associated with the shared access driveway. The applicant argued that future lot owners will seek to develop the land to suit their own requirements and that asset protection zones cannot be established at the subdivision stage to protect assets that do not exist. The applicant also raised concern with the planned establishment of a restricted development area/ vegetation management plan over the vegetation over the rear of the site not impacted by the proposed building platforms (along with their associated asset protection zones and onsite wastewater areas) on the basis it will restrict what future owners can/ cannot do with their lots. Clarification was sought from the Rural Fire Service as to the required timing for the establishment of the asset protection zones proposed by the submitted bushfire report and this was incorporated into a response sent the same day advising as follows.

The subdivision of land is not just a paper exercise/ involves more than just drawing boundary lines on a plan as discussed in our meeting. Whether you want to or not in seeking to subdivide the land you have to consider the planned future use of the lots.

Our Development Control Plan and other legislation concerning related matters including, but not limited to, bushfire and ecology require that you address the planned future use of the lots at the subdivision stage.

Whether we term your proposed lots “residential lots”, “rural residential lots” or “rural lots” does not change this fact that you need to address the planned future use.

I appreciate you clarifying the exact extent and scope of your proposal however again we discussed this at our meeting where we confirmed our advice matched that of the RFS, namely that “APZs would need to be applied and managed as a part of the subdivision application. Ongoing management of these APZs would also need to be undertaken by future landowners for dwelling protection.”

Given the constraints of the land we expect that as part of any approval granted we will impose conditions that restrict what future owners can/ cannot do and where on

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PAGE 10 the site. Specifically, you/ a future owner would be held to the building platforms, asset protection zones, restricted development areas and onsite wastewater areas established by your submitted reporting. The constraints of the land require this to make any subdivision sustainable.

The applicant responded on 6 February 2021 reiterating that the application only sought to create three vacant lots. A response was sent on 15 February 2021 advising as follows.

Given your response and the significant difference that is now apparent between what you would like from this application/ the proposed lots compared to what needs to be included in order to adequately deal with the sites constraints we will proceed to determine the application based on the information provided to date as noted previously. This will likely result in a recommendation to Council’s Development Assessment Unit that the application be refused. We will look to finalised this report and determine the matter in the coming weeks.

A further meeting with the applicant was held on 2 March 2021 to again discuss the ecology concerns.

On 12 March 2021 the applicant sought an extension until the end of April before Council staff determined the application pending a possible sale of the site. No further responses/

update concerning that possible sale were provided.

PROPOSAL

The development application is for a subdivision creating three rural residential lots. See Attachment 7 for a copy of the proposed plan of subdivision. The plans and reports submitted with the development application included asset protection zones around proposed building platforms along with onsite wastewater areas on each of the proposed lots however the applicant has subsequently clarified as noted in the background section of this report that the proposal is for a paper subdivision creating three rural (not residential) lots with the only works proposed being that associated with the shared access driveway. Any planned future use or development on the lots created would be the subject of separate development applications later.

There is an existing item of local environmental heritage (Item I152 – Rosedale) on proposed lot 1 facing Nelson Road. An indicative building platform along with their associated asset protection zones has been shown for all three lots as required under DCP (refer to Attachments 7 and 8).

As above the applicant has confirmed they are not proposing to remove of any vegetation under this application.

ISSUES FOR CONSIDERATION

1. Biodiversity Conservation Act 2016

The Biodiversity Conservation Act 2016 establishes the requirements for the protection of biodiversity, outlines the requirements for regulating a range of development activities on land that provides mechanisms for the management of impacts resulting from development activities. Part 7 of the Biodiversity Conservation Act 2016 sets out the requirements for biodiversity assessment and sets out significant impact threshold criteria that trigger entry into the Biodiversity Offset Scheme (BOS).

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PAGE 11 Development or an activity is likely to significantly affect threatened entities if:

1. The amount of native vegetation being cleared exceeds clearing thresholds (see part 7 of the Regulations); or

2. The development is likely to significantly affect threatened species using the test of significance in section 7.3 of the Biodiversity Conservation Act 2016 (known as the five part test); or

3. The development has any impact within an area mapped on the Biodiversity values Map;

4. The development is to be carried out in a declared Area of Outstanding Biodiversity Value.

The BOS must be applied to applications under Part 4 of the Environmental Planning and Assessment Act 1979 for which Council is the consent authority wherever the project is likely to have a significant impact on threatened biodiversity based on the criteria outlined above.

A threatened species test of significance report was submitted with the application. The Environment team reviewed the report and provided the following comments:

The report does not provide any native vegetation maps which identifies the native vegetation present on site with the exception of Council’s own vegetation map. The introduction states that two vegetation communities are present but does not discuss derived native grassland.

The test of significance is not comprehensive enough to demonstrate a significant impact would not occur due to the lack of maps demonstrating the local occurrence of Cumberland Plain Woodland. Part (b) of the test of significance should discuss to what percentage the area of clearing represents of the local occurrence. The consultant should quantify what constitutes the local occurrence of the Cumberland Plain Woodland and what percentage of the local occurrence will be impacted by the proposed development.

The document states that 0.45 hectares will be impacted.

In addition the flora and fauna assessment has not addressed the following.

• Whether or not the vegetation present on site meets the condition thresholds for Cumberland Plain Woodland listed under the Environment Protection and Biodiversity Conservation Act 1999.

• Section 7.4 Terrestrial Biodiversity of the LEP as the development area is located partly on the Terrestrial Biodiversity Map.

• Underestimated the amount of native vegetation that will be impacted.

As part of the review undertaken by the Environment team the development footprint was overlaid onto the Terrestrial Biodiversity Map (refer Attachment 6). The area of impact has been based on these observations of the native vegetation present on the site during the site inspection undertaken which had included derived native grassland covers an area of 0.54 hectares (see Figure 1 below).

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PAGE 12 Figure 1: Footprint as shown in Figure 1.2 in the threatened speces test of significance report showing the buidling envelopes and asset protection zone over native vegetation identified on site

Yellow: derived native grassland Green: Intact native vegetation

Black hatching: Terrestrial Biodiversity Layer

The area of impact to native vegetation has not been calculated for the access road from Nelson Road or the drainage swales as shown on the concept engineering plan (see Figure 2 below). No site plan showing the effluent disposal areas and proposed reserve areas have been received therefore impacts from this have not been considered either. Therefore the overall impact to native vegetation is likely to be larger than 0.54 hectares.

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PAGE 13 Figure 2: Concept engineering plan showing earthworks extent

Consideration of these impacts is required to be assessed at the time of subdivision in accordance with Section 7.1 of the NSW Biodiversity Conservation Regulation 2017 Part 3 which states:

If proposed development is or involves the subdivision of land, the subdivision is taken to involve the clearing of native vegetation that, in the opinion of the relevant consent authority or other planning approval body, is required or likely to be required for the purposes for which the land is to be subdivided. Once that clearing has been taken into account, the clearing for the purposes of the subsequent development of the land for which it was subdivided is not to be taken into account when determining whether the subsequent development exceeds the threshold.

Further the Rural Fire Service has confirmed that:

APZs would need to be applied and managed as a part of the subdivision application.

Ongoing management of these APZs would also need to be undertaken by future landowners for dwelling protection.

The proposed subdivision will exceed the area clearing threshold triggering the BOS.

The application must be accompanied by a BDAR prepared by a person accredited by the NSW Office of Environment and Heritage.

The applicant maintains that a BDAR is not required to be submitted with the application for the reason that works are not being undertaken as part of this application (excluding the access road). The applicant further justifies this position by indicating there are many potential locations for building envelopes on each resulting lot and so the vegetation required to be removed will vary depending on where a future purchaser will decide to

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PAGE 14 construct their dwelling which may have differing ecological outcomes to the indicative building platform provided with the application. Council staff have reviewed the numerous and repeated requests from the applicant arguing against the need to submit a BDAR however as per Section 7.1 of the NSW Biodiversity Conservation Regulation 2017 above the native vegetation likely to be cleared in future development works is to be taken into account when determining whether the subsequent development exceeds the threshold.

Based on the calculation of the area impacted by the Environment team the proposed subdivision will trigger entry into the BOS and a BDAR is required. Until a BDAR is submitted the application cannot be considered to have satisfactorily addressed the requirements of the Biodiversity Conservation Act 2016.

2. The Hills Local Environmental Plan 2019 (i) Permissibility

The land is zoned RU6 Transition under the LEP (see Attachment 3). The proposed development is defined as subdivision. Subdivision is permissible with consent under Clause 2.6 of the LEP.

(ii) Zone Objectives

The objectives of the RU6 Transition zone are:

• To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities.

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

• To encourage innovative and sustainable tourist development, sustainable agriculture and the provision of farm produce directly to the public.

The proposal is generally consistent with the stated objectives of the zone. If the information requested was to be provided and appropriate protections put in place as part of any approval granted relating to the remnant vegetation clear of the development footprint then the environmental sensitivities of the site would have been addressed. The proposed development is not accompanied by adequate reporting to justify that the development will be managed to avoid any significant adverse environmental impact as discussed earlier in this report. Development consent cannot be granted until adequate reporting and justification has been provided.

(iii) Development Standards

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

Clause 2.6 Subdivision – consent requirements

Clause 2.6 of the LEP requires that development consent be sought for subdivision of land to which this clause applies. The application seeks consent for subdivision and therefore complies with this requirement of the LEP.

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PAGE 15 Clause 4.1 Minimum subdivision lot size

The subject site is located on land identified on the Lot Size Map under Clause 4.1 of the LEP (refer Attachment 4). In accordance with the requirements of Clause 4.1 the size of any lot resulting from a subdivision of land is not to be less than the minimum lot size shown on the Lot Size Map. The minimum size shown on the Lot Size Map for the subject site is 2 hectares. The amended proposed subdivision seeks to create three rural residential lots proposed to be between 2 hectares and 2.84 hectares in size. The proposed lots comply with the requirements of Clause 4.1 of the LEP.

Clause 5.10 Heritage conservation

Clause 5.10 requires heritage conservation to be considered against the objectives of this clause for development including subdivision.

Clause 5.10(10) includes conservation incentives relating to development that would otherwise not be permitted by the LEP where the development provides for the conservation of the heritage item. The applicant initially sought an additional undersized lot containing the heritage item citing this clause which Council staff argued did not extend to subdivision as there was no ongoing use following the one-off subdivision that would satisfy this clause.

The applicant subsequently amended the plan to remove this additional undersized lot and so as a result the proposal is considered satisfactory with respect to Clause 5.10 of the LEP.

Clause 7.4 Terrestrial Biodiversity

The subject site contains land identified on the Terrestrial Biodiversity Map (refer Attachment 6). Clause 7.4(4) states that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

a) The development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

b) If that impact cannot be reasonable avoided – the development is designed, sited and will be maintained to minimise the impact, or

c) If that impact cannot be minimised – the development will be managed to mitigate the impact.

The proposed development is not accompanied by adequate reporting to justify that the development will be managed to avoid any significant adverse environmental impact as discussed earlier in this report. Development consent cannot be granted until adequate reporting and justification has been provided.

3. The Hills Development Control Plan

The proposal has been assessed against the provision of the DCP, specifically Part B – Section 1 – Rural. The proposed development does not comply with the following requirements of the DCP.

DEVELOPMENT CONTROL PROPOSED

DEVELOPMENT COMPLIANCE Minimum area for

wastewater and effluent disposal areas:

The specific locations of wastewater and effluent disposal areas for each of the three lots have not been

No

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PAGE 16 1000sqm provided within the submitted

site effluent disposal report.

Wastewater and effluent disposal areas:

Proposals must demonstrate sufficient area is available for any proposed on-site sewerage management and effluent disposal areas.

Proposals must ensure compliance with Council’s applicable Local Approvals Policy.

Wastewater and effluent disposal areas must be located on land that meets the following locational criteria:

40m from a dam or intermittent watercourse

100m from a permanent water course

6m from a structure, property boundary or native vegetation

Not on slope greater than 15% Soil depth greater than 300mm

The specific locations of wastewater and effluent disposal areas for each of the three lots have not been provided within the submitted site effluent disposal report.

No

Wastewater and Effluent Disposal Areas

The DCP requires rural residential lots created from a subdivision must detail an area for wastewater and effluent disposal area being a minimum of 1,000 square metres and complying with the relevant locational criteria noted in the DCP. The submitted site effluent disposal report states that effluent disposal should be located within the asset protection zone area but does not provide any specific location in which the effluent disposal areas are to be located on each proposed lot. In addition an intermittent watercourse is located on site which will likely restrict the possible location of an effluent disposal area to be located on proposed lot two.

The applicant has provided the following comments in relation to the provision of an effluent disposal area under the subject application:

In relation to the wastewater requirement, the 40m buffer is a planning control for actual development. It can be demonstrated that it is possible for the development control to be achieved by creating a different discharge path for the neighbouring

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PAGE 17 dam water, but this is not to be construed as works proposed under the application as submitted.

The justification above provided by the applicant is not considered satisfactory as a compliant effluent disposal area must be demonstrated at the subdivision stage as required by the DCP. The application cannot be supported until the specific location of effluent disposal area that complies with the DCP requirements above is provided. The response from the applicant on this point is related to their comments generally concerning the scope/

purpose of subdivision. Namely that that the proposal is for a paper subdivision creating three rural (not residential) lots with the only works proposed being that associated with the shared access driveway. Any planned future use or development on the lots created would be the subject of separate development applications later.

4. Issues Raised in Submissions

The proposal was notified for 21 days. Two submissions were received. The issues raised in the submissions are summarised below.

ISSUE/ OBJECTION COMMENT

The existing property at 55 Nelson Road containing a heritage building, a considerable amount of cleared land and a large amount of bushland currently is in keeping with the preservation of both heritage significance of the building and the huge importance of the bushland which is inhabited by a large population of native wildlife.

The proposed development did not satisfy the requirements of Clause 5.10. The applicant has subsequently amended the proposal to remove the undersized lot relating to the heritage incentives clause.

The amended proposal is considered acceptable from a heritage impact perspective given the heritage item is contained to the largest of the three lots facing Nelson Road.

Allowing the development is giving the green light for new owners to start selectively clearing the properties over time to facilitate ancillary works such as pools, sheds, landscaping, open paddocks etc; We have experienced the extent of native wildlife that relies on this bushland remaining intact for survival.

Council staff have similar concerns which have been raised with the applicant. The required asset protection zones are to be provided at the subdivision stage as confirmed by the Rural Fire Service. The applicant is not willing to provide this information or do the required works. The application is recommended for refusal partly on this basis.

The proposal intends to create four lots from the existing lot all directly adjoining our boundary. The proposed building envelopes are located within metres of the shared boundary and face into the backyard.

The number of lots has subsequently been reduced to three. The minimum side and rear setbacks are 5m as per the DCP. The indicative building platforms provided are setback 5m or more and comply with this control. Any privacy issues arising from the future built form can/ will be assessed at a future development application stage.

It greatly affects the enjoyment of our property, and significantly reduces the privacy and rural appeal of the property. We do not believe this development is in line of

The land is zoned RU6 with the intention of providing a transition between rural and other land uses. The proposed development does not conflict with the objectives of the

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PAGE 18 what is intended of RU6 zoning. RU6 zone if the environmental impact

concerns raised by Council staff were to be addressed through additional reporting from the applicant.

The application shows no consideration to maintain the true heritage significance of the property being developed. Natural landscape, biodiversity and rural setting of the land will be lost.

The proposed development did not satisfy the requirements of Clause 5.10. The applicant has subsequently amended the proposal to remove the undersized lot relating to the heritage incentives clause.

The amended proposal is considered acceptable from a heritage impact perspective given the heritage item is contained to the largest of the three lots facing Nelson Road.

5. External Referrals Rural Fire Service

In accordance with Section 4.46 of the Environmental Planning and Assessment Act 1979 the proposed subdivision of bushfire prone land to create rural residential lots requires concurrence from the Rural Fire Service.

The development application was referred to the Rural Fire Service on 20 August 2019 who responded on 6 September 2019 requesting the following additional information.

• Updated subdivision plans shall be provided which show the required minimum asset protection zone (APZ) for future dwellings to achieve bush fire attack level (BAL) 29. It is recommended that minimum APZs of 32 metres are maintained to the east, northeast and southeast of the proposed building envelopes in this instance and clearly marked on the plan.

• Further information which demonstrates that the proposed property access road can meet the acceptable solutions of Section 4.1.3(2) ‘Planning for Bush Fire Protection (PBP) 2006’ shall be provided. It has been shown that future dwellings will be located over 200 metres from the public road and no alternative access route has been provided in accordance with Section 4.1.3(2) of ‘PBP 2006’. As such, further details and amended plans are required in this regard.

The applicant responded and that response was sent to the Rural Fire Service on 8 October 2020. The RFS provided the following response dated 22 October 2020:

An updated bush fire report must be provided for further assessment that addressed the following acceptable solutions of table 5.3b of Planning for Bushfire Protection (PBP) 2019:

• Perimeter roads are provided for residential subdivision of three or more allotments;

• Subdivisions of three or more allotments have more than one access in and out of the development; and

• Dead end roads are not recommended, but if unavoidable, are not more than 200 metres in length, incorporate a minimum 12 metres outer radius turning circle, and are clearly signposted as a dead end.

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PAGE 19 The applicant is yet to respond to these concerns.

Further the Rural Fire Service has confirmed that:

APZs would need to be applied and managed as a part of the subdivision application.

Ongoing management of these APZs would also need to be undertaken by future landowners for dwelling protection.

The applicant has explicitly confirmed they are not proposing to remove of any vegetation under this application including the clearing necessary to establish these asset protection zones.

These concerns remain unresolved and in the absence of a bushfire safety authority/

general terms of approval from the Rural Fire Service the development application must be refused.

6. Internal Referrals

The application was referred to various internal teams within Council as follows.

Engineering

The proposed subdivision is not supported for the following reasons:

1. RFS require subdivision of three or more allotments to have more than one access in and out of the development. The proposed development only provides one access.

2. The proposed road is 237m; the RFS requires dead end access roads to be no greater than 200m.

3. The turning bay at the end of the access road is to be a minimum of 12m, the revised plan prepared by Storm Consulting Revision C indicate 6m radius turning bay which is short of the required 12m.

4. The building envelope will form part of the restriction on title requiring the future dwelling to be built within the area indicated, as such it is reasonable to request for suitable drainage at the sag (chainage 177.199) extending past the building envelope to manage the stormwater runoff from the access road does not impact on the future dwelling.

5. The development is proposing a subdivision to create three lots as such, the drainage that is extending from the upstream property Lot 1 DP 234478 into proposed lot two must be formalised and an easement for stormwater drainage must be created and shown on the subdivision plan.

6. The traffic report is to address the standard of Nelson Road fronting the site, and where the existing road does not comply with Council’s rural public road standard is to be upgraded as part of the subdivision as per Standard Drawing SD 42. Further the traffic report shall also address the intersection sight distance which is to be prepared by a suitably qualified traffic consultant.

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PAGE 20 Environmental Health

The original wastewater report submitted with the application stated that there was limited soil depth on the site (between 50mm and 200mm) found across lots 2 to 4. The soils were found to be silty clay loam. However the amended report based on a reduced lot yield now states that soil depth is up to 1-1.2m. The report states that a subsurface irrigation area of 610sqm (based on water balance and storage) is required but still recommends Ecomax mounds as per the original report. No reserve has been discussed. No site plan showing the effluent disposal areas has been attached.

The following matters are required to be addressed:

• A site plan demonstrating the effluent disposal areas, both primary and reserve, and including buffer distances, is to be submitted.

• The report proposes amended soil mound (Ecomax) systems, a system that requires minimal area. Under Council’s Local Approvals Policy 2018, designs for subdivisions must demonstrate multiple potential designs for effluent disposal to enable any future owner of the property to have a range of options available. This is to be shown on the site plan.

• Council’s Local Approvals Policy 2018 requires a minimum of two boreholes located within the proposed disposal area, representative of the effluent disposal area and marked on site. The reports states that two auger holes were bored in each allotment;

however their locations have not been shown on a site plan.

• The flow of water to and from dams on adjoining properties has not been considered. A 40m buffer distance to any intermittent waterway (swale/ pit/ earth drain) is required from an effluent disposal area. To be clear, an open swale with headwall is proposed on lot two that drains water from the adjacent dam at 51 Nelson Road (as per the concept engineering plan by Storm Consulting). The swale flows through 55 Nelson Road into an intermittent waterway that joins Caddies Creek approximately 600m away. A 40m buffer to any effluent disposal area is required to be demonstrated from this swale/ intermittent waterway on the property.

Tree Management/ Ecology

The threatened species test of significance report does not provide any native vegetation maps which identifies the native vegetation present on site with the exception of Council’s own vegetation map. The Introduction states that two vegetation communities are present but does not discuss derived native grassland.

The test of significance is not comprehensive enough to demonstrate a significant impact would not occur due to the lack of maps demonstrating the local occurrence of Cumberland Plain Woodland. Part (b) of the test of Significance should discuss to what percentage the area of clearing represents of the local occurrence. The consultant should quantify what constitutes the local occurrence of the Cumberland Plain Woodland and what percentage of the local occurrence will be impacted by the proposed development.

The document states that 0.45 hectares will be impacted and the only supporting map to demonstrate what area was used is Appendix 2: Biodiversity Values Map Report for the subject site. The area that has been identified has worked out that the impact is 0.54 hectares as discussed earlier in this report.

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PAGE 21 In addition, the submitted flora and fauna report is required to provide additional information as below before assessment can proceed:

• Whether or not the vegetation present on site meets the condition thresholds for Cumberland Plain Woodland listed under the Environment Protection and Biodiversity Conservation Act 1999.

• Not addressed Section 7.4: Terrestrial Biodiversity of the LEP as the development area is located partly on the Terrestrial Biodiversity Map.

• Underestimated the amount of native vegetation that will be impacted.

The proposed subdivision will exceed the area clearing threshold and therefore triggers the BOS. The application must be accompanied by a BDAR. Any changes required by the Rural Fire Service or any impacts to native vegetation due to stormwater infrastructure (direct and indirect) impacts will need to be considered in the BDAR.

The proposal must be designed to avoid and minimise impacts to biodiversity and address how residual impacts can be offset. Once the BDAR is prepared and submitted further assessment of the application can proceed.

Resource Recovery

Future dwelling houses will be allocated a set of bins each to dispose of household garbage and recyclables. The length of the driveway far exceeds the permitted distance (75 metres) for wheeling bins to the collection point along Nelson Road. As an alternative to onsite collection a permanent bin storage area could be considered along the edge of the driveway located at the entrance. Amended plans must be submitted showing the permanent bin storage area along the driveway entrance suitably sized to store six 240 litre bins. Bins must be screened from view from neighbouring residential properties and public land.

The applicant has not submitted the required detail in relation to bin storage and screening at the frontage of Nelson Road. The application cannot be supported until this information is provided.

Heritage

Clause 5.10 of the LEP requires heritage conservation to be considered against the objectives of this clause for development including subdivision. Clause 5.10(10) includes conservation incentives relating to development that would otherwise not be permitted by the LEP where the development provides for the conservation of the heritage item. The applicant initially sought an additional undersized lot containing the heritage item citing this clause. The Forward Planning team objected to this as follows.

The applicant has not provided sufficient justification to demonstrate that the ongoing conservation of the heritage item is either directly linked to, or reliant upon the proposed subdivision.

The applicant subsequently amended the plan to remove this additional undersized lot and so as a result the proposal is considered satisfactory with respect to Clause 5.10 of the LEP.

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PAGE 22 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 and is considered unsatisfactory for the reasons explained in this report. The issues raised in the submissions are either aligned with the concerns raised by Council staff or have been addressed in the report as reflected in the recommended reasons for refusal below.

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 Hills Future Community Strategic Plan outlines the aspirations of community residents in the region. Desired community outcomes include balanced urban growth, vibrant communities and a protected environment. The social and environmental impacts have been identified and addressed in the report.

RECOMMENDATION

The development application be refused for the reasons listed below.

REASONS FOR REFUSAL

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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PAGE 23 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.

ATTACHMENTS 1. Locality Plan 2. Aerial Photograph 3. LEP Land Zoning Map 4. LEP Minimum Lot Size Map 5. LEP Heritage Map

6. LEP Terrestrial Biodiversity Map 7. Plan of Proposed Subdivision

8. Aerial Photograph/ Subdivision Overlay

9. Rural Fire Service Comments/ Request for Additional Information

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PAGE 24 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 25 ATTACHMENT 2 – AERIAL PHOTOGRAPH

Subject Site – Red Outline

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PAGE 26 ATTACHMENT 3 – LEP LAND ZONING MAP

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PAGE 27 ATTACHMENT 4 – LEP MINIMUM LOT SIZE MAP

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PAGE 28 ATTACHMENT 5 – LEP HERITAGE MAP

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PAGE 29 ATTACHMENT 6 – LEP TERRESTRIAL BIODIVERSITY MAP

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PAGE 30 ATTACHMENT 7 – PLAN OF PROPOSED SUBDIVISION

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PAGE 31 ATTACHMENT 8 – AERIAL PHOTOGRAPH/ SUBDIVISION OVERLAY

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PAGE 32 ATTACHMENT 9 – RURAL FIRE SERVICE COMMENTS/ REQUEST FOR ADDITIONAL INFORMATION