ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 4 August 2020

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 4 AUGUST, 2020

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES

ITEM-2 1438/2018/ZD - LOT 1 DP 541048, 177 WRIGHTS ROAD, CASTLE HILL - INFILL SUBDIVISION CREATING 24 COMMUNITY TITLE RESIDENTIAL LOTS AND ONE ASSOCIATION LOT

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ITEM-3 DA 683/2020/HA - PROPOSED BOARDING HOUSE - 36 KATHLEEN AVENUE, CASTLE HILL

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ITEM-4 DA225/2020/HA - TWO SEMI DETACHED DWELLINGS AND TORRENS TITLE SUBDIVISION - LOT 2510 DP1238548, NO 28 CERES WAY, BOX HILL

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MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 28 JULY 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 Nil

TIME OF COMMENCEMENT 8.30am

TIME OF COMPLETION 8.38am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 7 July 2020 be confirmed.

ITEM-2 DA 683/2020/HA - PROPOSED BOARDING HOUSE - LOT 1 DP 609626, 36 KATHLEEN AVENUE, CASTLE HILL PUBLIC NOTIFICATION OF THE DETERMINATION PURSUANT TO ITEM 20(2)(c) AND (d) OF SCHEDULE 1 OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979

DECISION

The matter was deferred as notification letters were not sent out due to a system error.

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ITEM-3 DA 225/2020/HA - TWO SEMI-DETACHED DWELLINGS AND TORRENS TITLE SUBDIVISION - LOT 2510 DP 1238548, NO. 28 CERES WAY BOX HILL

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

DECISION

The matter was deferred as notification letters were not sent out due to a system error.

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ITEM-2 1438/2018/ZD - LOT 1 DP 541048, 177 WRIGHTS ROAD, CASTLE HILL - INFILL SUBDIVISION CREATING 24 COMMUNITY TITLE RESIDENTIAL LOTS AND ONE ASSOCIATION LOT

THEME: Shaping Growth

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

STRATEGY:

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: 4 AUGUST 2020

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: GRADUATE SUBDIVISION PLANNER JACOB KINER

RESPONSIBLE OFFICER:

MANAGER – SUBDIVISION AND DEVELOPMENT CERTIFICATION

BEN HAWKINS

Applicant GM Architects

Owner Au Yu Pty Ltd

Exhibition/ Notification 31 days Number Advised 27 Number of Submissions 9

Zoning R2 Low Density Residential

Site Area 2.023ha

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

Section 4.15 (EP&A Act) – Unsatisfactory

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

SEPP No 19 – Bushland in Urban Areas – Unsatisfactory SEPP No 55 – Remediation of Land – Satisfactory

The Hills DCP Part B Section 2 Residential – Unsatisfactory Political Donation None Disclosed

Reason for Referral to DAU 1. Submissions received 2. Variation to the DCP 3. Refusal recommended Recommendation Refusal

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EXECUTIVE SUMMARY

The development application is for an infill subdivision creating 24 community title residential lots and one association lot at 177 Wrights Road, Castle Hill. There is no built form included as part of this application.

The subject site is located on land zoned R2 Low Density Residential under The Hills Local Environmental Plan 2019 (LEP). The site is currently vacant. The application originally included demolition however during the assessment a separate Complying Development Certificate 4/2019/CDA for demolition was approved and demolition of the existing dwelling and associated structures completed.

The application was lodged on 6 February 2018 and has been the subject of a number of requests for additional information and amendments however the application remains unsatisfactory. The application has not demonstrated compliance with The Hills Development Control Plan 2012 (DCP), particularly with regards to the ecological and stormwater controls pertaining to the site. The Biodiversity Conservation Act 2016 has not been adequately addressed and the extent of vegetation clearing and habitat removal proposal is not supported.

The application was notified between 27 February 2018 and 30 March 2018 and nine unique submissions were received from seven adjoining properties. The issues raised primarily relate to stormwater, privacy, termites and snakes, noise pollution, tree removal, overdevelopment, fencing with adjoining properties, notification of the separate demolition CDC 4/2019/CDA, traffic, removal of fauna habitat and the impact on flora.

The application is recommended for refusal.

PROPOSAL

The development application is for an infill subdivision creating 24 community title residential lots and one association lot. The site is currently vacant. The application originally included demolition however during the assessment a separate Complying Development Certificate 4/2019/CDA for demolition was approved and demolition of the existing dwelling and associated structures completed. The application also includes:

• Vegetation clearing/ tree removal to provide for the proposed lots and the bushfire Asset Protection Zone (APZ) to the existing vegetation to the south and east. Between the two the entire site is affected by the development footprint.

• The construction of an internal/ private road extending south from Wrights Road and terminating at a cul-de-sac turning head within the site.

• The construction of a stormwater management basin in the north-eastern corner of the site adjacent to Wrights Road.

• The partial width reconstruction of Wrights Road fronting the site.

• Earthworks, stormwater drainage and servicing linked to the above subdivision works.

The proposed plan of subdivision is included as Attachment 5. The tree removal and APZ plan are included as Attachments 7 and 8 respectively. The concept subdivision works plan is included as Attachment 9.

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THE SITE

The subject site, formally known as Lot 1 in DP 541048, is approximately 2.023 hectares in size. The lot is rectangular in shape and has an approximate width of 92 metres and depth of 219 metres.

To the east of the site is the Castle Hill Wastewater Treatment Plant owned and operated by Sydney Water. To the west of the site is the “Castlegreen” neighbourhood which is subject to a community title subdivision plan. The community association property, Lot 1 in DP 285477, is located between the subject site and the community title residential lots/ dwellings fronting Longley Place, therefore providing a buffer between the sites. That association property was created when the adjoining property was developed to match the then odour buffer/ setback to the Castle Hill Wastewater Treatment Plant. That development also has their stormwater management system within this area.

North of the site is predominantly characterised by low density residential dwellings.

Immediately south of the site is another community association property, being Lot 1 in DP 285548, which extends off Lomandra Circuit.

BACKGROUND

The site was the subject of a planning proposal (1/2011/PLP) which came into force on 23 August 2013. The planning proposal amended the LEP Lot Size Map to apply a minimum lot size of 450 square metres to the site. Previously the minimum lot size was 40 hectares commensurate with the surrounding properties (refer Attachment 4) and related to the odour buffer to the Sydney Water sewage treatment plan on the opposite side of Cattai Creek east of the site. The planning proposal focused on this odour issue and did not establish a lot yield or subdivision pattern for the site. Several constraints pertaining to the site such as bushfire risk and flora and fauna were acknowledged with the planning proposal however were considered to be matters that needed to be considered in more depth at the development application stage.

The applicant attended a pre-lodgement meeting with Council staff on 30 August 2016 with written advice provided following that meeting. Concern was raised at the meeting and documented in the advice that followed regarding a number of items that are proposed in this application.

Contrary to the pre-lodgement advice the application was lodged on 6 February 2018.

Following a preliminary assessment of the application a Phase 2 Site Investigation Assessment relating to contamination was requested. The Phase 2 Site Investigation Assessment was submitted by the applicant on 19 October 2018 and was deemed acceptable with respect to contamination.

In March 2018 the applicant was requested to provide additional information and amended plans addressing the following:

• The plan of subdivision was to be amended to reflect the constraints of the site and reduce the lot yield by removing the development footprint over the eastern portion of the site.

• The Tree Removal Plan submitted did not provide enough detail of the work proposed.

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• A targeted assessment regarding the impacts on Cumberland Land Snail was not undertaken or provided.

• The Flora and Fauna Assessment was deficient and required to be amended.

• Cease the clearing of vegetation on the site; which was dealt with separately.

• Provide further details regarding stormwater, earthworks/ roads and services.

The applicant submitted the amended Flora and Fauna Assessment on 12 July 2018. The amended report was still incomplete and required additional information including the need for a reduced development footprint. The Flora and Fauna Assessment was further amended and resubmitted on 19 October 2018 and was again deemed deficient. The development footprint remained unchanged. Another request for additional information was sent on 13 December 2018 and followed up on 16 April 2019 and 11 June 2019.

The applicant responded to this request on 12 June 2019 and provided a revised set of plans, a revised Arborist Report, a revised earthworks plan and a revised Flora and Fauna Assessment (specifically, an addendum addressing the Cumberland Land Snail noted earlier). Following a review of the submitted plans and reports another request for additional information was issued on 9 August 2019. The contents of the letter are summarised as follows:

Ecology

The addendum regarding the Cumberland Woodland Snail was adequate; however the proposed development footprint and plan of proposed subdivision were still unable to avoid impacts and address the ecological constraints of the site. The position of Council staff regarding the ecological constraints and the need for a reduced development footprint retaining some of the existing vegetation present on site has been consistently held.

Planning and Engineering

Concern was raised regarding the lot yield. The applicant was advised to remove the lots on the eastern portion of the site and use this area as the APZ for the lots on the western side of the planned road so that the vegetation further east could be retained/ protected.

The concept architectural plans submitted by the applicant to demonstrate that the lots were of sufficient size were drawn in relation to the incorrect DCP requirements. Advice was provided for the applicant to refer to Part B Section 2 – Residential of the DCP which applies to this site; however the concept dwellings were drawn with respect to Part D Section 5 – Kellyville/ Rouse Hill DCP which applies to land on the opposite side of Wrights Road.

Concern was raised that the flora and fauna report does not match the extent of impact associated with the subdivision works shown on the concept subdivision works. Specifically with respect to the stormwater management basin in the bottom corner facing Wrights Road and the extent of road reconstruction and associated stormwater extension in Wrights Road fronting the site.

Concern regarding the lot grading was raised as the lot grading/ benching and batter slopes were not site responsive and required amendment. There is a substantial retaining proposed along the eastern site boundary that has not been considered in the environmental reporting submitted.

The design and sizing of the stormwater management basin and associated outlet to Wrights Road (and Cattai Creek beyond) had not been addressed.

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Tree Management

An amended tree removal plan previously requested had not been submitted.

The Preliminary Tree Assessment was not sufficient and required updating/ a full assessment.

The request for an Arboricultural Impact Assessment had not been addressed.

Given the repeated requests for additional information and the reluctance by the applicant to amend the proposal to reduce the development footprint the applicant was requested to withdraw the application with the above letter.

A meeting was held with the applicant on 3 September 2019 to discuss the issues raised above. Further advice was provided to the ecologist working for the applicant in October.

Letters were sent on 14 April 2020, 21 April 2020 and 28 April 2020 following up this information and advising that if a response was not provided within 21, 14 and seven days respectively that the matter would be determined based on the information provided to date.

The applicant responded to the letter dated 21 April 2020 but did not provide any indication they would be submitting the requested information. No response has been provided to the most recent letter dated 28 April 2020.

ISSUES FOR CONSIDERATION

1. Biodiversity Conservation Act 2016

The Biodiversity Conservation Act 2016 (BCA) establishes the requirements for the protection of biodiversity, outlines the requirements for the regulating a range of development activities on land and provides mechanisms for the management of impacts resulting from development activities. Part 7 of the BCA sets out the requirements for biodiversity assessment and establishes criteria for development or activity likely to significantly affect threatened species.

Clause 7.3 of the BCA states that development or an activity is likely to significantly affect threatened species if:

(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or

(c) it is carried out in a declared area of outstanding biodiversity value.

Comments by Council staff dating back to 2012 for the planning proposal and more recently via the pre-lodgement meeting and development application itself have made it clear that any development on the site should be designed to avoid impacts to the biological constraints present. These constraints include the Cumberland Land Snail, Allocasuarina littoralis which provides habitat for the Glossy Black Cockatoo and the wildlife/ riparian corridors along the southern and eastern portions of the site. The Glossy Black Cockatoo is

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identified as a ‘Vulnerable Species’ under Schedule 1 of the BCA. Similar comments were provided by the [then] Office of Environment and Heritage in June 2011 as part of the planning proposal too.

Whilst the memorandum prepared by Envirotech dated 1 May 2019 regarding the Cumberland Land Snail addresses the concerns raised by the Environmental Health team specifically relating to that species of snail; the applicant has failed to address the other ecological constraints of the site and has not appropriately amend the proposed plan of subdivision to reflect these constraints as requested on numerous occasions. The removal of vegetation and future residential development of the site poses significant risks to the flora and fauna on the site and thus present the development as likely to significantly affect threatened species.

In light of the above the proposal is not considered to be consistent with the BCA.

2. State Environmental Planning Policy No 19 – Bushland in Urban Areas

State Environmental Planning Policy 19 – Bushland in Urban Areas (SEPP 19) aims to protect and preserve bushland with urban areas and applies to land within The Hills Local Government Area. The protection and preservation of bushland is due to the value of the bushland to the community, its aesthetic value and its value as a recreational, educational and scientific resource. Specifically, Clause 9 of SEPP 19 states:

(1) This clause applies to land which adjoins bushland zoned or reserved for public open space purposes.

(2) Where a public authority:

(a) proposes to carry out development on land to which this clause applies, or

(b) proposes to grant approval or development consent in relation to development on land to which this clause applies,

the public authority shall not carry out that development or grant the approval or development consent unless it has taken into account:

(c) the need to retain any bushland on the land,

(d) the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, on the erosion of soils, the siltation of streams and waterways and the spread of weeds and exotic plants within the bushland, and

(e) any other matters which, in the opinion of the approving or consent authority, are relevant to the protection and preservation of bushland zoned or reserved for public open space purposes.

The subject site is located adjacent to land zoned for public open space purposes.

The subject site is densely vegetated; with connectivity to the extensive vegetation that is part of the riparian corridor of Cattai Creek to the east. The vegetation on the site is noted to contain a number of critically endangered flora and fauna species as advised by the Environmental Health team.

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The proposed subdivision is not responsive to the ecological constraints of the site and is considered to have a significant impact on the flora and fauna situated on the site. Several requests for information have been sent to the applicant requesting a reduction in lot yield in response to the several ecological issues raised by the Environmental Health team however these have not been adequately responded to as detailed above.

The application is considered inconsistent with the objectives of SEPP 19 as it does not provide a site responsive subdivision layout that considers the ecological constraints present.

3. State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) contains guidelines and prescriptive measures regarding site contamination and remediation requirements for all land-based development across the State. In considering a development application a consent authority is to have regard for the requirements of Clause 7 of the SEPP as follows:

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

The application was initially accompanied by a Phase 1 Contamination Assessment.

Following a preliminary assessment of the application a Phase 2 Site Investigation Assessment relating to contamination was requested. The Phase 2 Site Investigation Assessment was submitted by the applicant on 19 October 2018 and was deemed acceptable with respect to contamination by the Environmental Health team subject to conditions relating to the need for remediation in line with the Phase 2 Site Investigation Assessment. The Phase 2 Site Investigation Assessment recommends that remediation of the site occur due to the presence of asbestos.

Following the remediation of the site a validation report would be required to confirm the site is suitable for residential purposes. The proposal complies with the requirements of SEPP 55 in this regard.

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

The land is zoned R2 Low Density Residential under the LEP. The proposed development is defined as subdivision which is permissible with consent under Clause 2.6 of the LEP.

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(ii) Zone Objectives

The site is zoned R2 Low Density Residential under the LEP. The objectives of the zone are:

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

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

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

The proposal is considered to be consistent with the stated objectives of the zone.

(iii) Development Standards

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

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. 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 size shown on the Lot Size Map. The minimum size shown on the Lot Size Map for the subject site is 450 square metres (following the planning proposal referred to earlier).

The proposed development is for a community title subdivision. As such the proposal is also assessed under Clause 4.1AA of the LEP and is discussed below.

Clause 4.1AA Minimum subdivision lot size for community title schemes

Clause 4.1AA is applicable to land zoned R2 Low Density Residential amongst other zones, allowing for the subject site to propose a community title scheme. The objectives of Clause 4.1AA are as follows:

(a) to ensure that land to which this clause applies is not fragmented by inappropriate subdivisions that would create additional dwelling entitlements,

(b) to encourage rural cluster subdivision that will ensure the land is developed, managed and conserved in a holistic and sensitive manner where affected by biodiversity

The proposed subdivision is consistent with the objectives of Clause 4.1AA.

Clause 4.1AA (3) requires ”the size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 1989) is not to be less than the minimum size shown on the Lot Size Map in relation to that land”.

The lot sizes proposed are as follows:

• Lots 2 to 12 are 450 square metres;

• Lot 13 is 1,519 square metres;

• Lot 14 is 2,868 square metres;

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• Lots 15 to 24 are 839 square metres; and

• Lot 25 is 894.2 square metres.

As such the proposed subdivision complies with the minimum lot sizes specified under Clause 4.1 and Clause 4.1AA.

There are no other miscellaneous or additional local provisions under Parts 5 or 7 of the LEP that apply.

5. The Hills Development Control Plan 2012

The proposed development does not comply with the following requirements of the DCP.

Part B Section 2 – Residential

DEVELOPMENT CONTROL PROPOSED DEVELOPMENT

COMPLIANCE 2.4 Site Analysis

(a) Development should be designed to respect site constraints such as topography, drainage, soil, landscapes, flora, fauna and bushfire hazard.

(b) Disturbance to existing natural vegetation and

landforms, watercourses, wetlands and overland flow

paths should be minimised.

The proposed development has included lots on the eastern and western portion of the site. The Environmental Health team have advised this would not be supported as it does not respond to the flora and fauna constraints on the site and unreasonably disturbs the natural vegetation and fauna habitat present. A map of the site was provided to the applicant by the Environmental Health team showing what they deemed to be an appropriate development footprint however the applicant has

not amended the proposal to take this into account.

No

2.8 Bushland and Biodiversity (a) Significant flora and fauna species, communities and ecological communities should be preserved.

(b) Development should be designed to retain existing bushland and fauna habitats, including identifiable corridors and linkages.

Submission Requirements

Comments by Council staff dating back to 2012 for the planning proposal and more recently via the pre- lodgement meeting and development application itself have made it clear that any development on the site should be designed to avoid impacts to the biological constraints present. These constraints include the Cumberland Land Snail, Allocasuarina littoralis which

No

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COMPLIANCE

• Applications should include a Fauna and Flora Assessment in accordance with Section 5A of the Environmental Planning and Assessment Act 1979 if there is likely to be a significant effect on

threatened species, populations or ecological

communities, or their habitats.

• Applicants may be required to submit a Species Impact Statement (SIS) for development likely to significantly affect threatened species, populations and ecological communities.

Reference should be made to the requirements of the Environmental Planning and Assessment Act 1979, and the Threatened Species Conservation Act 1995.

provides habitat for the Glossy Black Cockatoo and the wildlife/ riparian corridors along the southern and eastern portions of the site.

The Glossy Black Cockatoo is identified as a ‘Vulnerable Species’ under Schedule 1 of the BCA. Similar comments were provided by the [then] Office of Environment and Heritage in June 2011 as part of the planning proposal too.

Several issues related to the Flora and Fauna reporting submitted with the application were raised through the assessment. The applicant has not amended the development to respond to the existing bushland and fauna habitats. The development is considered unsatisfactory and an overdevelopment of the site given that the development footprint occupies the entire property.

2.12 Stormwater Management (a) Water Sensitive Urban Design (WSUD) measures should be employed in the management of the site’s/

development’s stormwater in terms of water retention, reuse and cleansing.

(e) Onsite detention systems (OSD) when required, are to be designed in accordance with (a) above and the specific requirements of (as relevant) the Upper Parramatta River Catchment Trust Onsite Detention Handbook.

The proposal has provided for a consolidated/ single stormwater management basin in the north-eastern corner of the site. No OSD was included as part of the proposal. The basin solely deals with water quality.

Council’s engineer raised concern with the location of the basin, the presence of a surcharge pit and requested that modelling/ calculations relating to the sizing of the basin be provided. It was also pointed out that OSD is required but had not been

No

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COMPLIANCE provided.

The applicant has failed to provide the required information and therefore the existing proposal is inconsistent with the required stormwater management guidelines of the DCP.

2.13 Subdivision

(b) The minimum frontage for other road frontages for a lot where a dwelling is permissible is 18m.

Lots 2 to 25 – 15m No

2.13 Subdivision

(c) The minimum depth of lots where a dwelling is permissible is 27m. Except for land zoned E4 Environmental Living where the minimum depth is 50m.

Lots 2 to 13 – 30m

Lots 13 to 25 – 55.93m (effective depth 19.43m once APZ is excluded)

No

2.13.2 Building Platform and Views

(a) The site must be capable of providing a building platform of at least 20 metres by 15 metres.

The platform shall be sited in an accessible and practical location and on relatively flat terrain with stable soil and geology.

Because of the lot widths (15m as above) none of the proposed lots are capable of accommodating a compliant building platform.

No

2.13.2 Building Platform and Views

(c) The building platform is to be applied independently of the minimum building setbacks.

Because of the lot widths (15m as above) none of the proposed lots are capable of accommodating a compliant building platform with complying building setbacks (below). The building setbacks applied to the notional architectural detail provided do not comply with the DCP too.

No

2.14.1 Building Setbacks Lots 2 to 25 – 4.5m building No

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COMPLIANCE

(b) The minimum road frontage setback requirement for any non- classified roads is as follows:

Primary Road Frontage Setback 10m

setback (and 5.5m garage setback)

2.14.1 Building Setbacks

(g) The minimum side boundary setback requirement is:

Height of building

Distance of wall to boundary line

Distance of eave to

boundary line 1 or 2

storeys

900mm 675mm

3 storey

1500mm 1175mm

Lots 2 to 25 – 0.9m (approximately/ plans not dimensioned)

Yes

2.14.1 Building Setbacks

(h) The minimum rear boundary setback requirement is:

Height of building

Setback

1 storey element of dwelling

4 metres

2-3 storey elements of dwelling

6 metres

Lots 2 to 13 – 6m (approximately/ plans not dimensioned)

Lots 13 to 25 – 36.5m (accounting for the APZ within the rear of these lots)

Yes

The pre-lodgement meeting held for this application advised the applicant to utilise the controls included with Part D Section 5 – Kellyville Rouse Hill Release Area of the DCP as a guide in relation to the subdivision component of the proposed development due to the fact the planning proposal established a minimum lot size of 450 square metres whereas the subdivision standards included under Part B Section 2 – Residential of the DCP which do apply to this site/ development are based on a minimum lot size of 700 square metres. This issue is represented in the extent of non-compliance noted in the table above.

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The application is for subdivision only and does not include any built form. A notional/

concept architectural plan was submitted for the lots and is included Attachment 6. The concept architectural plan was provided to show that each lot could provide a building envelope; however the building envelopes provided do not comply with either Part B Section 2 – Residential or Part D Section 5 – Kellyville Rouse Hill Release Area of the DCP as detailed in the following table.

Part D Section 5 – Kellyville Rouse Hill Release Area

DEVELOPMENT CONTROL PROPOSED DEVELOPMENT COMPLIANCE 2.3 Orientation and Shape of

Allotments

(g) All allotments (not including small lot housing or multi-unit housing) are to have a minimum width of 15 metres and a minimum depth of 30 metres.

(h) All allotments are required to be capable of containing a rectangular building platform of 10 metres x 15 metres within the required setbacks.

The eastern allotments have an APZ at the rear of the lots thus providing a developable area 15 metres wide and approximately 19.43m deep.

The lots are therefore unable to provide a minimum depth of 30 metres for the developable area.

The western allotments are exactly 15m by 30m/

compliant.

Based on the notional/

concept architectural plan the available building platforms are between 87 square metres and 90 square metres in size (approximately) and would therefore not satisfy Section 2.3 (h) requiring 150 square metres.

The applicant has further failed to annotate the setbacks on the concept architectural plans also.

In light of this any future residential dwelling on these lots would not be suitable as the lots are too small and would not provide a sufficient envelope with respect to the required setbacks.

No

3.3 Setbacks

(a) The minimum building setbacks are shown in the following table.

Front Setback:

Lots 2 to 25 – 4.5m building setback (and 5.5m garage setback)

Yes

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Part D Section 5 – Kellyville Rouse Hill Release Area

DEVELOPMENT CONTROL PROPOSED DEVELOPMENT COMPLIANCE

Table 4 Building setbacks Location/

Frontage

Setback Primary

Street

4.5 metres Secondary

Street (corner allotments)

2.0 metres

Garages 5.5 metres Side

Boundaries

0.9 metres Rear

boundary setback

1 storey 4.0 metres 2 storey 6.0 metres

Side Setback:

Lots 2 to 25 – 0.9m (approximately/ plans not dimensioned)

Rear Setback:

Lots 2 to 13 – 6m (approximately/ plans not dimensioned)

Lots 13 to 25 – 36.5m (accounting for the APZ within the rear of these lots)

6. Likely Impacts

Consideration has been given to the likely impacts of the proposed subdivision as well as the impact of the non-compliant aspects of the development.

Support for the proposed subdivision in its current form would result in significant environmental impacts to the locality and would represent an inappropriate infill subdivision within the R2 Low Density Residential zoned area. The information provided with the proposed development has not sufficiently justified the non-compliances proposed. Support of this application would set an undesirable precedent for infill subdivisions of this nature in the future and likely result in significant environmental impacts.

The likely impacts of the subdivision and future residential development of the site have not been given adequate consideration. The application has not provided an adequate subdivision layout that responds to the topographical and ecological constraints of the site.

Clearing of the site as part of the subdivision stage and development of the site for residential dwellings will disrupt several ecological processes and destroy habitat for several species. The proposed subdivision is therefore not supported as the subdivision is considered unsuitable and may result in further adverse impacts on the natural environment.

Based on the information provided with this application and the assessment undertaken based on that information; the likely impacts of the proposed subdivision would be significant and are not supported.

7. Suitability of the Site

The site is subject to several ecological constraints which the application has not adequately addressed. Further the application does not comply with the relevant DCP controls. The assessment of the application has progressed based on the provided information which

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considers the site to be unsuitable for the proposed development and is reflected in the reasons for refusal outlined below.

8. Issues Raised in Submissions

The proposal was advertised between 27 February 2018 and 30 March 2018. Nine unique submissions from seven adjoining or nearby properties were received in response. The issues raised in the submissions are summarised below.

ISSUE/ OBJECTION COMMENT

Concern was raised regarding the privacy issues that would arise from development on the site. The dwellings along Longley Place which back onto the subject site have their bathrooms located facing the site and do not have frosted windows due to the understanding that the site would not be developed at the time these dwellings were built.

The proposal is for subdivision only and does not include dwelling construction. However it is noted that the subdivision would result in future residential development (dwellings) on the lots created. Visual privacy impacts would be mitigated through building setbacks and design measures put in place for the dwellings as part of any future development application/s.

Concern was raised in regards to the water retention pit that is used in the existing drainage system and how the additional dwellings would overload this system and cause damage to the drainage system.

Several concerns were also raised as to who would be responsible for repairing/ upgrading the water retention pit if the proposed development were to be approved.

Concern has been raised by Council staff through the assessment concerning the design and location of the stormwater management basin in the bottom corner of the site adjacent to Wrights Road.

Concern was raised for the potential noise pollution that would generate during the construction and occupation stages of the development.

If the application was to be approved relevant conditions restricting working hours for the subdivision works would be included however this is not required due to the application being recommended for refusal.

Noise generated from constructed/ completed future dwellings is considered to be minor, notwithstanding that this application is for subdivision only and residential dwellings are not included. Residential dwellings are not considered to be noise generating development.

Concern was raised that development of the site would disrupt the termite nests existing on the site and would cause termites to damage neighbouring properties.

If the application was to be approved relevant conditions relating to the displacement/

relocation of fauna during construction would be included however this is not required due to the application being recommended for refusal.

Concern was raised that development on the site would cause snakes to be forced off the existing site and relocate to the neighbouring

If the application was to be approved relevant conditions relating to the displacement/

relocation of fauna during construction would

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residential properties. be included however this is not required due to the application being recommended for refusal.

Concern was raised that the site is environmentally sensitive and that development of the site will remove habitat for a number of animals.

Concern has been raised by Council staff through the assessment concerning the ecological constraints of the site which have not been adequately considered by the applicant. The impacts of the development are considered to be significant and therefore the proposal is not supported.

Concern was raised that the proposal is overdevelopment of the site and would otherwise remove the large semi-rural style lots existing in the neighbourhood.

The proposed development provides compliant lot sizes however the development footprint and building areas are not supported as explained above.

Tree removal is not supported and an accusation was made that trees had been poisoned illegally. Specifically, several submissions raised concern with the impacts of the development on the large gum trees bordering the Castlegreen neighbourhood development/ lot adjacent to the western site boundary.

Concern has been raised by Council staff through the assessment concerning the ecological constraints of the site which have not been adequately considered by the applicant. The impacts of the development are considered to be significant and therefore the proposal is not supported. The information submitted relating to tree removal/ impacts was also not supported and the additional information requested has not been provided.

Concern was raised concerning the existing fencing between the subject site and the Castlegreen neighbourhood development/ lot adjacent to the western site boundary. Several submissions raised concern that there is no indication whether the developer will upgrade/

replace the fencing.

Fencing between private properties is a private matter under the Dividing Fences Act 1991. No new or replacement fencing was proposed with the application which is common for subdivision applications. Fencing us usually addressed at the building stage later.

One submission brought attention to 4/2019/CDA which the applicant had applied for demolition. Concern was raised that not all properties were notified of the demolition application and that it should not be approved until considered with this application. The submission also mentioned clearing had taken place prior to approval of 4/2019/CDA.

A Complying Development Certificate (CDC) application has different notification requirements to a development application.

The CDC application provided a 14 day pre- approval period for neighbours within a 20 metre radius to discuss the proposal with the applicant as per the complying development legislation/ SEPP.

The applicant/ owner were directed to cease any unauthorised clearing being carried out on the site in the initial request for information letter. The CDC application lodged was in response to this and later approved on 6 August 2018. Those demolition works are now completed. As a result the demolition originally proposed as part of this application is now

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removed.

Concern was raised that the additional dwellings would contribute to the traffic of the area and result in congestion issues. Several submissions also stated that no traffic study was completed to support this application.

The nature of the proposed development for 24 residential lots/ future residential dwellings is considered low traffic generating development. Whilst the number of cars in the neighbourhood would increase; the impact on the road network would be negligible given the width and function of Wrights Road fronting the site.

One submission brought attention to a letter which they had submitted at the rezoning stage of the subject site. Specifically, concern was raised that the issues which they had initially raised had still not been addressed in this application. The issues raised include the interference to the natural flow water and the lack of consideration for OSD to avoid pollution of Cattai Creek; failure to address bushfire risks, failure to provide retention of significant trees, failure to disclose dumping of fill and earthworks and the failure to address traffic/

complete a traffic study.

The aforementioned letter would have been considered in the assessment of the planning proposal. Notwithstanding this a number of these concerns have been raised and addressed above with respect to this application again.

One submission was received in support of the tree removal proposed with the application.

9. Internal Referrals

The application was referred to following sections within Council with comments provided as follows.

Tree Management

The Environmental Health team requested additional information as part of the request for information letter issued on 21 March 2018 as the tree removal plan submitted was inadequate and an Arboricultural Impact Assessment was required to be submitted. A revised Arborist Report was submitted on 12 June 2019. In response the Environmental Health team reiterated that the ecological constraints of the site had not been properly considered and further stated that the Preliminary Tree Assessment report was still not sufficient. This information remains outstanding.

In light of the above the outstanding comments are summarised as follows:

The Preliminary Tree Assessment prepared by Nada Kbar dated 27 May 2019 is not sufficient. This should not be submitted as an Arborist Report as it is missing necessary information and clear recommendations. The correct report to lodge with a development application is an Arboricultural Impact Assessment as requested.

Once the final lot layout has been decided an Arboricultural Impact Assessment is requested that addresses all the impacts to trees within the site. The Impacts that will need to be

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addressed include Asset Protection Zones, roads, services, building platforms, engineering works, retaining walls, site remediation and any other works associated with the development. Specifically, the targeted Phase 2 Site Assessment prepared by Envirotech Pty Ltd has identified asbestos contamination within the area containing fill that has not been validated. Should this area need to be remediated any tree removal associated with this work will need to be shown and addressed also.

Engineering

Information was requested relating to the management of stormwater runoff from the development; including details for the proposed basin and the need for Onsite Stormwater Detention (OSD). Specifically:

• The concept subdivision works plan does not show how runoff from the low side lots is directed to the bio-retention basin.

• The bio-retention basin needs to be relocated to a more appropriate location (with respect to the ecology constraints).

• The bio-retention basin addresses water quality treatment with respect to the development footprint however stormwater detention/ OSD is not addressed and is required too. If OSD is proposed as an on-lot matter when the individual lots are developed then the runoff from the planned driveway/ private road still needs to be addressed.

• The bio-retention basin section includes a surcharge pit with a depth of 1.3m. This should not be necessary/ runoff from the development footprint should be able to be directed to the bio-retention basin surface based on the site slope and location of the bio- retention basin in relation to the development lots and planned driveway/ private road.

• The calculations/modelling (MUSIC) used to size the bio-retention basin must be submitted in addition to a stormwater report addressing the calculations and other stormwater management measures.

Further there are concerns with the concept subdivision works plan also as below.

• The design and location of the cul-de-sac turning head differs between the plans. This road needs a minimum diameter of 24m as per the bushfire safety authority from the Rural Fire Service.

• The concept subdivision works plan proposes a 6.5m wide road with a 1.5m service allocation/ easement on either side. This cannot be an easement in the front of the residential lots. Rather it needs to be a verge associated with the road and formatting part of the association property.

• The 1.5m verge width needs to be justified still too with respect to the standard service/

verge allocations based on actual written input/ advice from the various service providers (or accredited persons such as an electrical designer with respect to electricity and street lights and a water servicing coordinator with respect to water, recycled water and sewer).

Where a wider verge is needed this needs to be accounted for on an amended plan. The subdivision plan must be amended to reflect this arrangement also.

• The lot grading detailed on the concept subdivision works plan needs to be extended to the western site boundary to show the tie-in and interface with those adjoining properties.

• The architectural plans show drop edge beams along the depth/ length of some of the dwellings which needs to be accounted for in the lot grading detailed on the concept subdivision works plan.

• The lot grading/ berm across the front of lot 2 is excessive and not supported.

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• The lot grading through lot 13 is propped up by a 1.5m wall across the rear yet still results in a lot slope of 13%. The approach to this wall being included for this lot but not others is unclear.

• The concept subdivision works plan includes a typical retaining wall detail/ section with a height of 4m. The location and height of all proposed walls must be included on the concept subdivision works plan.

The applicant has not provided a response to these concerns.

Contamination

The application was initially accompanied by a Phase 1 Contamination Assessment.

Following a preliminary assessment of the application a Phase 2 Site Investigation Assessment relating to contamination was requested. The Phase 2 Site Investigation Assessment was submitted by the applicant on 19 October 2018 and was deemed acceptable with respect to contamination by the Environmental Health team subject to conditions relating to the need for remediation in line with the Phase 2 Site Investigation Assessment. The Phase 2 Site Investigation Assessment recommends that remediation of the site occur due to the presence of asbestos.

Ecology

The Environmental Health team has consistently advised as far back to the planning proposal in 2012 that the development needs to avoid impacting the ecology present by:

• Avoiding impacts to the habitat of the Cumberland Land Snail.

• Avoiding impacts to Allocasuarina littoralis on the site (habitat for Glossy Black Cockatoo).

• Avoid tree removal/ vegetation clearing within the wildlife/ riparian corridors along the southern and eastern portions of the site.

The applicant was requested to prepare and submit a map of important habitat features on the site. In lieu of this being provided by the applicant the Environmental Health team has provided an outline of the habitat features on the site to indicate those areas that are less constrained by biodiversity (and so able to be developed for subdivision purposes). The applicant was directed to use this indicative mapping to provide a subdivision plan that retains the important habitat features of the site within the association lot so it could be managed into the future. This vegetation is part of a regionally significant corridor and as such should be retained within the association lot free of Asset Protection Zone maintenance impacts. That plan is included below. The subject site is shown with a red outline and the expected development footprint shaded yellow.

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The applicant has not responded to these comments and so the Environmental Health team do not support the proposal on ecology grounds.

Resource Recovery

The Waste Management Plan prepared by Envirotech dated 26 July 2017 suggested that the owners/ occupiers of future dwellings on the lots would present their bins fronting Wrights Road for collection. This was not supported due to the length of the private road.

Onsite collection via this private road is required. On 27 April 2018 a swept path plan was requested demonstrating that the design service vehicle was able to access the site from Wrights Road and collect waste from the edge of the private access way fronting the lots.

The applicant has not addressed this request to date.

10. External Referrals

The application is classed as integrated development pursuant to Section 91 of the Environmental Planning and Assessment Act 1979 as the development requires approval from the Rural Fire Service and the Natural Resources Access Regulator. The proposal was also referred to Sydney Water as it relates to land in the vicinity of an existing water recycling plant under the control of Sydney Water.

Integrated Development – NSW 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 residential lots requires concurrence from the Rural Fire Service.

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The proposal was referred to the Rural Fire Service on 27 February 2018. A bushfire safety authority was issued on 22 March 2018 providing general terms of approval conditions. The general terms of approval relate to asset protection zones, water/ utilities, access and the design and construction of existing and future dwellings on the site.

The application was re-referred to the Rural Fire Service on 19 June 2019. The Rural Fire Service provided a response stating they had no objections subject to compliance with the previous bushfire safety authority.

Integrated Development – Natural Resources Access Regulator

In accordance with Section 4.46 of the Environmental Planning and Assessment Act 1979, the proposed subdivision involves works within 40 metres of a mapped natural watercourse and therefore requires concurrence from the Natural Resources Access Regulator.

The proposal was referred to the then Department of Primary Industries – Water on 27 February 2018. A response was provided on 26 March 2018 providing General Terms of Approval requiring a Controlled Activity Approval under the Water Management Act 2000.

Development Requiring Concurrence – Sydney Water

The application was sent to Sydney Water for concurrence on 27 February 2018. Sydney Water provided a response to the referral of the application on 23 April 2018 regarding odour concerns due to the proximity of the site to the Castle Hill Wastewater Treatment Works. The applicant had numerous meetings and discussions with Sydney Water and a response was formally issued from Sydney Water on 16 July 2018 asking for the applicant to submit an Odour Assessment. The applicant provided Sydney Water with the Odour Assessment on 17 July 2018. Sydney Water then gave their support for the application on 26 September 2018 subject to a number of conditions to be included/ considered in the application.

CONCLUSION

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

Some of the issues raised in the submissions have been addressed in the report and do not warrant refusal of the application. Some of the issues raised in the submissions are similar to the concerns raised by Council staff and the application is therefore not supported.

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.

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The Hills Future Community Strategic Plan

The proposed development is inconsistent with the planning principles, vision and objectives outlined within Hills 2026 – Looking Towards the Future as the proposed development does not provide for satisfactory urban growth without adverse environmental or social amenity impacts and does not ensure a consistent (future) built form is provided with respect to the streetscape and general locality.

RECOMMENDATION

It is recommended that the Development Application be refused for the following reasons.

1. The 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 has not been submitted and is able to be requested under Clause 54.

a) An amended subdivision plan providing for a suitable compliant development footprint and compliant lot layout.

b) An Arboricultural Impact Assessment.

c) An amended Tree Removal Plan.

d) A map of important habitat features on the site and revised Flora and Fauna assessment.

e) An amended Concept Subdivision Works Plan and accompanying stormwater calculations/ modelling addressing the concerns raised relating to access, earthworks and stormwater management.

2. The application is not satisfactory for the purposes of Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 as the proposal is inconsistent with the following provisions from Part B Section 2 – Residential of The Hills Development Control Plan 2012:

a) 2.4 Site Analysis (a) and (b)

b) 2.8 Bushland and Biodiversity (a) and (b) c) 2.12 Stormwater Management (a) and (e) d) 2.13 Subdivision points (b) and (c)

e) 2.13.2 Building Platform and Views (a) and (c) f) 2.14.1 Building Setbacks (b)

3. 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.

4. The application is not satisfactory for the purposes of Section 4.15(1)(c) of the Environmental Planning and Assessment Act 1979 as the application has not demonstrated that the site is suitable for the proposed development.

5. The application is not satisfactory for the purposes of Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979 as the proposal is not in the public interest.

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ATTACHMENTS 1. Locality Plan 2. Aerial Photograph 3. LEP Zoning Map

4. LEP Minimum Lot Size Map 5. Proposed Plan of Subdivision 6. Concept Architectural Plan 7. Tree Removal Plan

8. Asset Protection Zone Plan 9. Concept Subdivision Works Plan

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ATTACHMENT 1 – LOCALITY PLAN

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ATTACHMENT 2 – AERIAL PHOTOGRAPH

Subject Site – Red Outline

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ATTACHMENT 3 – LEP ZONING MAP

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ATTACHMENT 4 – LEP MINIMUM LOT SIZE MAP

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ATTACHMENT 5 – PROPOSED PLAN OF SUBDIVISION

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ATTACHMENT 6 – CONCEPT ARCHITECTURAL PLAN

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ATTACHMENT 7 – TREE REMOVAL PLAN

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ATTACHMENT 8 – ASSET PROTECTION ZONE PLAN

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ATTACHMENT 9 – CONCEPT SUBDIVISION WORKS PLAN

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ITEM-3 DA 683/2020/HA - PROPOSED BOARDING HOUSE - LOT 1 DP 609626, 36 KATHLEEN AVENUE, CASTLE HILL

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: 28 JULY 2020

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: DEVELOPMENT ASSESSMENT CO-ORDINATOR CLARO PATAG

RESPONSIBLE OFFICER: MANAGER – DEVELOPMENT ASSESSMENT PAUL OSBORNE

Applicant Urban Revolutions

Owner Nexgen Investments Pty Ltd Exhibition / Notification 14 days

Number Advised Fifty-five (55) Number of Submissions One (1)

Zoning R3 Medium Density Residential

Site Area 1,047sqm

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

Section 4.15 (EP&A Act) – Unsatisfactory The Hills LEP 2019 – Satisfactory.

SEPP (Affordable Rental Housing) 2009 - Unsatisfactory SEPP (BASIX) 2004 – Satisfactory

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

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

DCP Part B Section 4 – Multi Dwelling Housing – Variation, see report.

DCP Part C Section 1 – Parking – Variation, see report.

DCP Part D Section 19 – Showground Precinct – Variation, see report.

Section 94A Contribution: $195,505.29 Political Donation None Disclosed

Reason for Referral to DAU 1. Non-compliance with Clause 30A of the SEPP (ARH) 2009 2. Variation to DCP

3. Submission received.

Recommendation Refusal

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EXECUTIVE SUMMARY

The Development Application is for the demolition of an existing dwelling and construction of a 2-3 storey boarding house containing 23 rooms with associated basement carpark pursuant to the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009.

The subject site is located on land zoned R3 Medium Density Residential.

The proposed development includes a variation to front and side setbacks and car parking.

Insufficient information has been provided with the application to enable a proper assessment of the proposal in relation to tree protection plan, updated arboricultural assessment and waste collection arrangement. The applicant has been requested to provide additional information in relation to the above matters and basically advised that no further information will be provided arguing that the subject proposal is not different from what has been previously approved by the Land and Environment Court on 17 June 2016.

The proposal is not supported as the reduction in the approved front setback will not enable the protection and longer term retention of two significant trees highlighted in the Land and Environment Court judgement in 2016.

The application was advertised and notified and a submission from one (1) property was received. The issues raised primarily relate to noise, privacy, quality of living, development interface and building height.

The application is recommended for refusal.

BACKGROUND

On 14 April 2015, Council’s Development Assessment Unit refused Development Application No. 561/2015/HA for the demolition of the dwelling and other structures on the site and the construction of a three level, 24 room boarding house. The boarding house comprised of a basement level containing parking spaces for 10 cars, 5 bicycles, 5 motor bikes, storage bays, common laundry, lift and 3 self-contained units, one of which to be occupied by a caretaker, the other two as ambulant units, the ground floor containing 10 self-contained units, common area, library, common outdoor barbeque and clothes drying area, and a first floor containing 11 self-contained units. The subject site was zoned R2 Low Density Residential at the time of lodgement of the above application.

The applicant subsequently lodged a Class 1 Appeal with the Land and Environment Court (The Hills Shire Council ats Urban Revolutions Land and Environment Court Proceedings No. 2016/159472).

During the proceedings, the applicant was granted leave by the Court to rely upon further amended plans with the total number of boarding rooms being reduced from 24 to 18 rooms which included a caretaker room, with the basement level parking containing 8 cars, 4 motor bikes and 4 bicycles, common laundry, bin storage, air conditioning plant and lift entry, the ground floor containing 9 self-contained units and the first floor containing 9 self-contained units.