ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 15 December 2020

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

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DEVELOPMENT ASSESSMENT UNIT MEETING 15 DECEMBER, 2020

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES

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

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

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

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

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PAGE 3 ITEM-1 CONFIRMATION OF MINUTES

MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 8 DECEMBER 2020 PRESENT:

Cameron McKenzie Group Manager – Development & Compliance (Chair)

Paul Osborne Manager – Development Assessment

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

Craig Woods Manager – Regulatory Services

Janelle Atkins Principal Planner, Shire Strategy Transformation & Solutions Kristine McKenzie Principal Executive Planner

APOLOGIES:

Nicholas Carlton Manager – Forward Planning TIME OF COMMENCEMENT: 8:30 am

TIME OF COMPLETION: 8:46am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

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

ITEM 2: DA 289/2020/HA - DEMOLITION OF EXISTING DWELLING AND CONSTRUCTION OF A CHILD CARE CENTRE – LOT A DP 403923, 22 CORONATION ROAD, BAULKHAM HILLS

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

ACT, 1979 DECISION

The Development Application is recommended for refusal.

REASONS FOR THE DECISION

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

 The Hills LEP 2019 – Unsatisfactory.

 SEPP (Educational Establishments and Child Care Facilities) 2017 – Unsatisfactory

 DCP 2012 Part B Section 6 – Business – Unsatisfactory

 DCP 2012 Part C Section 1 – Parking – Unsatisfactory

 DCP 2012 Part B Section 2 – Residential – Unsatisfactory

 DCP 2012 Part C Section 3 – Landscaping - Unsatisfactory

Given the above outstanding matters, insufficient information, non-compliances, and issues raised in the submissions from adjoining properties, the Development Application is recommended for refusal.

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PAGE 4 HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION The development application was notified and Six (6) submissions were received during the notification period.

ITEM 3: DA 1012/2020/ZB - LOT 701 DP 882566, 11 MELISSA PLACE, WEST PENNANT HILLS - INFILL SUBDIVISION CREATING THREE RESIDENTIAL LOTS INCLUDING DEMOLITION

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

DECISION

The application is recommended for approval, subject to the conditions imposed.

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

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION The application was notified and four (4) submissions were received. The issues raised were addressed in the report.

ITEM 4: DA 83/2021/LA - A SWIMMING POOL AND RETAINING WALLS - LOT 1 SP 48475, 44 GILBERT ROAD GLENHAVEN

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

ACT, 1979 DECISION

The Development Application is recommended for refusal.

The proposed swimming pool does not comply with DCP 2012 Part B Section 2 – Residential as swimming pools are not permitted within the front setback of a property.

The proposed development does not comply with DCP 2012 Part B Section 2 – Dual Occupancy with regards to minimum landscaped area. In this regard the DCP requires a minimum of 50% landscape area. A landscape area of 40.8% is proposed.

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

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PAGE 5 ITEM-2 DA 278/2021/LA - CONSTRUCTION OF A DETACHED GARAGE AND RETAINING WALLS - LOT 287 DP 1152852, NO. 7 CARDELL ROAD, KELLYVILLE.

THEME: Shaping Growth

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

STRATEGY:

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

MEETING DATE: 15 DECEMBER 2020

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: TOWN PLANNER

MADISON MORRIS

RESPONSIBLE OFFICER: PRINCIPAL EXECUTIVE PLANNER KRISTINE MCKENZIE

Applicant P Schumacher

Owner P Schumacher

Notification 14 days

Number Advised Eight Number of Submissions Nil

Zoning R2 Low Density Residential

Site Area 710.3m²

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

Section 4.15 (EP&A Act) – Unsatisfactory.

LEP 2019 – Unsatisfactory.

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

DCP Part B Section 2 – Residential – Unsatisfactory.

Political Donation None Disclosed

Reasons for Referral to DAU 1. Variations to DCP 2. Refusal

Recommendation Refusal

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PAGE 6 EXECUTIVE SUMMARY

The Development Application is for the construction of a double garage with a workshop area and retaining walls. The site is a corner lot and the proposed works are located on the secondary frontage to Bush Paddock Avenue

The proposed development has been assessed against DCP Part D Section 7 Balmoral Road Release Area and DCP Part B Section 2 Residential. The proposed development does not meet the requirements for site coverage, landscaping and rear setback. The proposed variations are not supported as the proposal is inconsistent with the streetscape within an R2 Low Density Residential zone and provides an unacceptable level of amenity to the occupants and adjoining residents.

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

The application is recommended for refusal.

BACKGROUND

The subject site is part of the Home World V exhibition village and associated subdivision approved under Development Consents 1569/2008/HC and 740/2010/ZA.

Development Application 1074/2011/LD was approved under Delegated Authority on 25 July 2011 for a two storey dwelling and signage to be used for exhibition purposes on proposed lot 287 Cardell Road in a Subdivision of proposed Lots 4 to 35 pursuant to Development Consent DA 740/2010/ZA. The exhibition village use has since ceased.

The subject site currently accommodates a two storey dwelling. An existing easement for public access 6m wide and drainage easement 6m wide burdens the subject lot and adjoining three properties to the south west as per restrictions on title under DP1148537.

The easement was utilised as a temporary access as part of the approved exhibition village and has since been returned to landscaping in all lots, though it is noted that the restriction remains on the Title (see Attachment 6).

The Development Application was lodged on 27 August 2020.

A request for further information was sent to the applicant on 28 September 2020 requesting additional information regarding non-compliance with the site coverage, landscaping and setback controls and plan details. Additional information was submitted on 9 October 2020.

The information submitted was reviewed by Council staff and did not resolve the matters previously raised regarding DCP non-compliances. On 22 October 2020, the applicant was advised planning matters remained outstanding and the application was not supported in its current form. A meeting was held between the applicant and Council staff on 2 November 2020 to discuss the matters previously raised and the applicant was formally advised the proposal would be recommended for refusal.

PROPOSAL

The Development Application is for the construction of a detached double garage with a workshop area and retaining walls. The site is a corner lot and the works are located on the secondary frontage to Bush Paddock Avenue.

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PAGE 7 The proposal will be utilised by the applicant’s landscape business. The double garage will be used for storage of a utility vehicle and trailer. The applicant has indicated the proposed workshop area is to be used for flower arranging which will encourage youth employment.

A home business is permitted without consent within the R2 Low Density Residential zone under Local Environmental Plan 2019. If the application was recommended for approval, a condition of consent would have been recommended to ensure compliance with the standards prescribed in Local Environmental Plan 2019 relating to employment, retail sales and gross floor area.

ISSUES FOR CONSIDERATION

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

The subject site is zoned R2 Low Density Residential under LEP 2019. The proposed development is for a garage with a workshop and retaining walls. A garage and retaining walls are defined as an ancillary use to that of the approved dwelling house, which is permitted with consent within the R2 Low Density zoning. Accordingly, the proposed development is considered satisfactory with respect to LEP 2019 in regard to permissibility.

(ii) Compliance with Zone Objectives

The subject site is zoned R2 Low Density Residential under LEP 2019. The objectives are as follows:

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 not supported as the works are inconsistent with the objectives of the zoning. The proposal does not maintain the existing low density residential character and is considered an overdevelopment of the site.

The subject site currently provides a double garage and driveway area for a 3 bedroom dwelling house. The addition of a detached double garage and driveway area to facilitate operation of a business is not consistent with the low density residential character of the area and does not meet the objectives of the R2 Low Density Residential zone.

The proposal is considered unsatisfactory with regard to the LEP zone objectives.

(iii) The Hills LEP 2019 - Development Standards

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

CLAUSE REQUIRED PROVIDED COMPLIES

4.3 Height of Buildings Maximum 10m Height 4.05m Yes

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PAGE 8 2. Compliance with The Hills Development Control Plan

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

 Part D Section 7 Balmoral Road Release Area

 Part B Section 2 Residential

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

DEVELOPMENT CONTROL

DCP

REQUIREMENTS

PROPOSED

DEVELOPMENT COMPLIANCE Building Setbacks

(DCP Part D Section 7

Balmoral Road

Release Area)

Rear building setback

= 4m (1 Storey)

0.93m No, the proposal will result in a built form which is inconsistent with the area.

Site Coverage

(DCP Part D Section 7

Balmoral Road

Release Area)

Maximum site

coverage = 60% or 426.18m²(2 Storeys or more)

63.2% or

449.6m²

No, the proposal will result in a built form which is inconsistent with the area.

Landscaping

(DCP Part B Section 2 Residential)

Minimum landscaped area = 40% or 284.12m²

14.3% or

102.2m²

No, the proposal unreasonably impacts on private open space.

a) Rear Setback

DCP Part D Section 7 Balmoral Road Release Area requires a minimum rear building setback of 4m. The proposal has a rear setback of 930mm to the eastern boundary.

The applicant has designed the proposal and considers the eastern boundary a side setback.

Comment:

The relevant objectives of this clause are:

(i) To provide setbacks that complement the streetscape and protect the privacy and sunlight to adjacent dwellings in accordance with ESD objective 7.

(ii) To ensure that new development is sensitive to the landscape setting, site constraints and desired future character of the street and locality

The site is a corner allotment and the rear setback has been taken in accordance with the location of a primary frontage, surrounding development characteristics and having consideration to amenity impacts on neighbouring properties. The dwelling has an established primary frontage to Cardell Road and accordingly the rear setback is considered to be the eastern boundary which adjoins No. 3 Bush Paddock Avenue. Existing development along Cardell Road, including a similar corner allotment at No. 1 Cardell Road

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PAGE 9 Kellyville provide established rear setbacks greater than 6m to the eastern boundaries (see Attachments 2 and 6). It is therefore considered, application of a rear boundary to the east rather than a side boundary, is considered appropriate based on surrounding characteristics.

The intent of the setback control is to provide setbacks that complement the streetscape, create opportunities for landscaped open space and provide suitable solar access and visual and acoustic privacy to adjoining development. The proposed development is inconsistent with the objectives listed above in that it does not allow for suitable separation between the proposed garage and adjoining property to the east, adversely impacting the visual amenity, solar access and provision of privacy of the adjoining properties. No design articulation or screen planting has been included within the proposal to mitigate these impacts.

The proposed development complies with the front setback requirements for secondary street frontages. Notwithstanding this, the reduced setback to the eastern boundary does not allow for the desired building separation and has the potential to negatively affect the streetscape of Bush Paddock Avenue.

The proposal does not provide appropriate setbacks or separation between buildings, and does not respond appropriately to the landscape setting. The proposal does not meet minimum requirements for landscaping, and as a result inadequate open space is provided and separation between dwellings is reduced. This is considered unsatisfactory with respect to the desired future character of low density residential areas within the Balmoral Road Release Area.

The proposed rear setback is not supported.

b) Site Coverage and Landscaping

DCP Part D Section 7 Balmoral Road Release Area and DCP Part B Section 2 Residential require site coverage to be a maximum of 60%, and the landscaped area to be a minimum of 40% respectively.

The following site coverage and landscaped area are proposed.

DCP

Requirements

Existing Development

Proposed Development Site Coverage

(Maximum)

60% or 426.18m² 60.2% or 428.2m². 63.2% or 449.6m².

Landscaping (Minimum)

40% or 284.12m² 32.1% or 228.6m² 14.3% or 102.2m²

The applicant has provided the following justification for the proposed variations:

The Hills DCP stipulates gross site coverage of 60%, whereas this DA requires 65.6%. We argue that this is acceptable because it is only 5.6% percentage points above the standards, and is a substantial improvement over what has been the case over the last 8 years when the entire rear of the lot was paved bitumen road (part of the exhibition home development).

This new proposal will restore an additional 56.9m² of private open space to the allotment.

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PAGE 10 Strict compliance would have detrimental effect on the social and economic welfare of the community because one goal of this minor development is to assist in youth employment.

Flower-arranging in the rear of the garage will effectively create a job, which assist community well-being. Additionally, one goal of the [Environmental Planning and Assessment] Act is to create a better environment. The development will help the environment because it will remove one utility vehicle and one trailer from the streetscape;

these will be parked in the new double garage.

The provision of open space will be increased by 56.9m², drainage and salinity problems are reduced by returning 72.77m² of deep soil landscaping to the site, and 42m² of the remaining impervious area will have rain water captured into the existing 9000L tank.

There are a multitude of planning grounds that are being met with this minor development, so as to make the missing of a numerical goal by 6 percentage points a negligible variation, with an extremely high likelihood that residents will be fully satisfied with their environment as submitted, in these key areas of the standard:

(i) Landscaping efficiently maintained.

(ii) A pleasant and safe living environment.

(iii) No removal to maintain the character of the area.

(iv) Design of a high quality landscaped setting for urban housing.

(v) Fully integrated landscape design in all private area.

(vi) To preserve and enhance existing landscape features on the property.

(vii) Adequate open space area for the enjoyment and use by residents.

(viii) Providing opportunities for additional landscaping compared to the last 8 years.

(ix) Open space areas within the development for recreation of residents and children’s play will be enhanced and enlarged compared to the last 8 years.

Comment:

The relevant objectives of the site coverage clause are:

(i) To maximise the provision of private open space.

(ii) To avoid the creation of drainage and salinity problems, through minimising the amount of impervious area in accordance with Council’s ESD objective 3.

(iii) To facilitate spatial separation between buildings.

(iv) To provide adequate landscaped area.

(v) Maintain the character of existing areas by retaining vegetation.

The relevant objectives of the landscaping clause are:

(i) To enhance the quality of the built environment by providing a high standard of landscaping.

(ii) To ensure that landscaping may be efficiently maintained.

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PAGE 11 (iii) To promote a pleasant and safe living environment.

(iv) To limit tree removal to maintain the character of the area.

(v) To design a high quality landscape setting for urban housing development.

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

(vii) To preserve and enhance existing landscape features.

(viii) To encourage existing vegetation to be included wherever possible into site landscaping.

(ix) To provide adequate open space areas for the enjoyment and use by residents.

(x) To enhance the quality of the built environment by providing opportunities for landscaping.

(xi) To provide an open space area within the development for the recreation of residents and children’s play.

The proposed variation to site coverage results in unreasonable bulk and scale when viewed from Bush Paddock Avenue. The built form does not facilitate separation between buildings, and in conjunction with limited landscaping on site, does not maintain the character of the existing Balmoral Road Release Area by retaining the natural open grassed area within the rear corridor of surrounding properties. The proposed garage is considered to be out of character with the existing built form in the area.

The proposal does not provide an adequate landscape outcome. Insufficient landscaping is provided within the rear yard to provide a natural buffer between adjoining properties. This results in an adverse amenity outcome for the subject site and adjoining properties.

In accordance with DCP Part B Section 2 Residential all setback and car parking areas are to be landscaped and maintained in accordance with the provisions of Part C Section 3 – Landscaping. Landscaped area provided in accordance with the above requirements equates to 14.3% of the site area, or 102.2m². Inclusion of the smaller areas such as garden beds, and paved areas to be returned to grass, equates to 34.8% or 247.6m².

Notwithstanding the inclusion of smaller landscaped areas, the proposal does not satisfy the desired amenity outcome for the site. The proposed development does not provide adequate open space areas for the enjoyment and use by residents, and does not provide an open space area within the development for recreation of residents and children’s play.

The proposed variations to site coverage and landscape areas are not supported.

3. Internal Referrals Engineering

No objection was raised to the proposal subject to conditions. Had the application been recommended for approval, appropriate conditions of consent would have been recommended requiring a vehicle crossing request and removal of existing easements.

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PAGE 12 CONCLUSION

The Development Application has been assessed against the relevant heads of consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979, Local Environmental Plan 2019, and The Hills Development Control Plan 2012, and is considered unsatisfactory with respect to suitability of the site for the proposed development.

The scale of the development is not considered suitable for the site or in the context of the surrounding low density residential area, and 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.

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 Development Application 278/2021/LA be refused for the following reasons:

1. The proposed development does not satisfy the objective of R2 Low Density Residential zone under Local Environmental Plan 2019 since it does not maintain the existing low density residential character of the area.

(Section 4.15 (1)(a)(i) 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 setbacks, site coverage and landscaping.

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

3. The non-compliances with the relevant controls contribute to the proposal being an overdevelopment of the site, resulting in an unsatisfactory intensity of use, which adversely impacts on the amenity of residents surrounding the proposed development and occupants of the dwelling. The cumulative impact of the proposal is unreasonable.

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

4. The proposed development is not in the public interest does not demonstrate that the proposal complies with the relevant development controls or that the proposal is suitable for the subject site. It is considered the proposed detached double garage is an overdevelopment of the site and results in unacceptable impacts to adjoining properties.

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

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PAGE 13 ATTACHMENTS

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

4. Floor Plan and Elevations 5. Landscape Plan

6. Current Aerial Photograph

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PAGE 14 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 15 ATTACHMENT 2 – AERIAL PHOTOGRAPH

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PAGE 16 ATTACHMENT 3 – SITE PLAN

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PAGE 17 ATTACHMENT 4 –FLOOR PLAN AND ELEVATIONS

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PAGE 18 ATTACHMENT 5 –LANDSCAPE PLAN

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PAGE 19 ATTACHMENT 6 – CURRENT AERIAL PHOTOGRAPH

Red square demonstrates 6m wide historic easement under DP1148537 returned to landscaped area.

(Image dated 2 October 2020, NearMap. Subject site marked with pin)

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PAGE 20 ITEM-3 DA 910/2020/ZB - SUBDIVISION CREATING FIVE RURAL RESIDENTIAL LOTS - LOT 1 DP 544723, 8 ST JOHNS ROAD, MARAYLYA

THEME: Shaping Growth

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: 15 DECEMBER 2020

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SUBDIVISION PLANNER

ALEXANDRA HOPKINS

RESPONSIBLE OFFICER:

MANAGER – SUBDIVISION AND DEVELOPMENT CERTIFICATION

BEN HAWKINS

Applicant Mr D J Whitmore

Owner Mr D J Whitmore and Mrs V Whitmore

Number Advised 16 properties (including five within Hawkesbury LGA) Number of Submissions No submissions received

Zoning RU6 Rural Transition

Site Area 10.69ha

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 55 – Remediation of Land – Satisfactory

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

Political Donation None Disclosed

Reason for Referral to DAU 1. Recommendation for refusal 2. Variation to DCP

Recommendation Refusal

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PAGE 21 EXECUTIVE SUMMARY

The development application is for a rural subdivision creating five rural residential lots at 8 St Johns Road, Maraylya. The development application seeks to retain the existing dwelling, shed, swimming pool and dam on one of the proposed lots with the other four lots being vacant. All five lots front/ are accessed directly from St Johns Road.

The subject site is zoned RU6 Transition under The Hills Local Environmental Plan 2019.

Subdivision is permitted and the proposal complies with the zone objectives and development standards included.

The key issue for consideration is the ecological impact of the proposed development given the tree removal and vegetation clearing needed to provide for the building platforms and associated Asset Protection Zones for the planned lots. Section 7.16 of the Biodiversity Conservation Act 2016 requires the consent authority to refuse to grant development consent where a development will have a serious and irreversible impact. The site contains the critically endangered Shale Sandstone Transition Forest vegetation community. Clause 7.2 of the Biodiversity Conservation Regulation 2017 states that land with a minimum lot size of less than 40 hectares but not less than 1 hectare will exceed the biodiversity offset scheme threshold if an area of 0.5 hectares or more is cleared. The Biodiversity Development Assessment Report submitted with the development application provides insufficient reporting and information for adequate assessment against the Biodiversity Conservation Act 2016 to occur. The applicant was requested to provide this information but has been unwilling or unable to do so.

The development application includes a variation to The Hills Development Control Plan 2012 relating to the development footprint/ the proposed building platform for two of the five lots extending into the constrained land layer included with the DCP further emphasising the concerns raised relating to ecology impacts.

The development application was notified between 16 January 2020 and 24 February 2020 and no submissions were received.

The application is recommended for refusal.

BACKGROUND

The applicant/ owner attended a pre-lodgement meeting with Council on 13 November 2018 with written advice provided following the meeting. Concern was raised at the meeting and documented in the advice regarding a number of items that are proposed in this application.

On 23 December 2019 the subject application was lodged. A request for additional information was sent on 10 February 2020. The contents of the letter are summarised as follows:

 An Aboriginal Heritage Information Management System Search has not been submitted.

 Concern was raised with the proposed building platforms located on constrained land as mapped by The Hills Development Control Plan 2012 (DCP).

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PAGE 22

 The development application did not adequately address the proposed tree removal and the potential impact on critically endangered vegetation on the site.

The first matter was subsequently resolved by the project manager engaged by the owner/

applicant.

With respect to the second ecology matter the project manager engaged by the owner/

applicant advised that the ecologist engaged to work on this project was no longer working on the project and a replacement ecologist was being pursued.

The project manager engaged by the owner/ applicant subsequently advised they too were no longer working on the project.

The owner/ applicant was requested to provide a response to the outstanding matters included with the request for additional information dated 10 February 2020. They were advised that if the information was not provided the matter would be determined based on the information available most likely by way of refusal.

PROPOSAL

The development application is for the subdivision of one existing rural residential lot into five rural residential lots. The proposal seeks to retain the existing dwelling, shed, swimming pool and dam within proposed lot 10 with the other four lots being vacant. All five lots front/ are accessed directly from St Johns Road. The plan of proposed subdivision is included in Attachment 10. The proposed building envelopes for the four vacant lots are shown on the plan of proposed subdivision.

In addition to the subdivision of land the development application includes the removal of a number of trees to make way for the building platforms and associated Asset Protection Zones for the planned lots. The proposal also includes four new driveways to/ from St Johns Road and the reconstruction/ realignment of three stormwater outlets from St Johns Road that extend into the subject site. A further two stormwater outlets are proposed to be retained in their current state.

1. Biodiversity Conservation Act 2016

The Biodiversity Conservation Act 2016 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 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.

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

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PAGE 23 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; or

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

The Biodiversity Offset Scheme 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.

The development application proposes the clearing of native vegetation in order to facilitate the 5 lot rural residential subdivision. The submitted Biodiversity Development Assessment Report (BDAR) states that approximately 1.0 hectares of native vegetation is to be cleared.

However the area of clearing calculated by Council’s ecologist in their assessment has a much higher area of approximately 1.8915 hectares based on the plans provided showing an APZ at 30 to 50 metres. Under Clause 7.1 of the Biodiversity Conservation Regulation 2017, proposed development exceeds the biodiversity offsets scheme threshold if it involves the clearing of native vegetation of an area declared by Clause 7.2 as exceeding the threshold.

Clause 7.2 states that land with a minimum lot size of less than 40 hectares but not less than 1 hectare will exceed the biodiversity offset scheme threshold if an area of 0.5 hectares or more is cleared. The Biodiversity Values Map is included as Attachment 8. The documentation submitted with the development application provides insufficient reporting and information for adequate assessment against the Biodiversity Conservation Act 2016 to occur.

The Shale Sandstone Transition Forest located on site is listed as critically endangered under the NSW Biodiversity Conservation Act 2016 and is listed to be a Serious and Irreversible Impact (SAII) entity under the Environment Protection and Biodiversity Conservation Act 1999. Additional information is required to be supplied in accordance with Section 10.2 of the BAM for any entities that are listed as SAII. The potential presence of other SAII located on site cannot be determines as the information supplies in the submitted reporting is inadequate. As per Clause 7.7 of the Biodiversity Conservation Act 2016, under Part 4 – Development Assessment and Consent of the Environmental Planning and Assessment Act 1979. The approval authority must not grant approval if they determine the proposal is likely to have a serious and irreversible impact on biodiversity values. The decision is to be made in accordance with the principles set out in Clause 6.7 of the Biodiversity Conservation Regulation 2017.

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

State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) contains guidelines and prescriptive measures with regard to site contamination and remediation requirements for all land-based development across the State. In considering a development

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PAGE 24 application for new development, the consent authority is to have regard for the prescriptive requirements of Clause 7 of SEPP 55 provided below.

(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.

Issues with potential contamination have been considered in accordance with SEPP 55. The intended use of the site remains consistent with the existing use being for rural residential purposes. No history of past land use indicates any likely contamination of the subject site.

The Environmental Health team has reviewed the application and documents and raised no objection from a contamination perspective.

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

The land is zoned RU6 Rural Transition under The Hills Local Environmental Plan 2019 (LEP). 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 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 within adjoining zones.

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

The proposal is consistent with the stated objectives of the zone.

(iii) Development Standards

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

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PAGE 25 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.

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 2ha.

The proposed development seeks to create five rural residential lots which are identified on the plan of proposed subdivision as lots 10 to 14. The lots are proposed to be between 2.001ha and 2.232ha in size. The proposed lots comply with the requirements of Clause 4.1 of the LEP.

4. The Hills Development Control Plan 2012

The proposal has been assessed against the provisions 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

Part 1(B) Development areas must be clear of the Constrained Land Layer shown in Figure 1.

The building platform on proposed lots 11 and 12 are located within the constrained land layer.

No – see discussion below

Part 1(B) Constrained Land Layer

The DCP provides a constrained land layer for development in Maraylya, Box Hill and Nelson.

These controls stemmed from a reduction to the minimum lot size in this area from 40ha to 2ha that came into force with The Hills Local Environmental Plan 2012.

The subject site is included within the constrained land mapping as it contains.

 Land with a slope of 20% or more.

 Watercourses.

 High conservation corridors.

 Riparian corridors for creek categories two and above (Strahler method of ordering watercourses).

 The 1 in 100 year flood extent from the Hawkesbury River.

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PAGE 26 The building platforms of proposed lots 11 and 12 are within the constrained land area (refer to Attachments 9 and 10). Development is not permitted to occur within this area and the location of the building platform as indicated on the submitted plan of subdivision is not supported.

5. Internal Referrals

The application was referred to following sections of Council with comments provided as follows:

Engineering

As per section 4.6 of Council’s Design Guidelines for Subdivision/ Developments the minimum width of a public stormwater easement with an overland flow component is 5m.

The easements over piped drainage that include an overland flow path shown on the plan need to be widened to 5m (minimum). This may require the relocation of the building platform for proposed lot 11. In addition the batter for vehicular crossings reliant on fill is to have a minimum batter of 1V: 4H. These outstanding matters have not been addressed.

Environmental Health

Issues with potential contamination have been considered in accordance with SEPP 55. The intended use of the site remains consistent with the existing use being for rural residential purposes. No history of past land use indicates any likely contamination of the subject site.

The Environmental Health team has reviewed the application and documents and raised no objection from a contamination perspective.

Salinity and wastewater have also been considered. The subject site is not likely affected by saline soils and sufficient area and soil depth has been demonstrated for a number of effluent disposal methods for the lots proposed.

Tree Management

The Arborist Impact Assessment submitted was reviewed by the Tree Management Officer.

Based on the number of outstanding ecology matters to be resolved a detailed review of the report is not possible. Once matters have been resolved in regards to ecology, a detailed review of the Arborist report can be undertaken. The applicant did not provide the information requested and further assessment has not occurred.

Ecology

The BDAR was reviewed by the Ecology Officer. The report has not been prepared in accordance with the Biodiversity Assessment Method (BAM) and contains a number of errors and omissions which are required to be corrected and updated in order for further assessment to occur. It appears that the assessor may not have received all the required reports and latest subdivision plan necessary to complete the report including the Effluent Management Plan where the EMA areas in lot 11 are located approximately 60m to 100m south-east from the building envelope. This area has not been assessed in the BDAR.

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PAGE 27 The report has not indicated whether or not the streamlined BAM assessment method has been applied. The application has not included all required shape files for maps provided which is a requirement outlined in Appendices 10 and 12 of the BAM.

As noted in the tree comments above the information requested via letter dated 10 February 2020 has not been provided therefore further assessment against the requirements of the Biodiversity Conservation Act 2016 cannot occur as the submitted report does not clearly identify the impact the proposed works will have on the environment.

6. 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 17 January 2020. A bushfire safety authority was issued on 10 April 2020 providing general terms of approval.

The general terms of approval relate to asset protection zones, construction standards, access to fire trails and water and utility services (refer to Attachment 11).

Natural Resources Access Regulator

In accordance with Section 4.46 of the Environmental Planning and Assessment Act 1979, the site of the proposed subdivision contains a mapped natural watercourse and work is proposed in the vicinity (and therefore requires concurrence from the Natural Resources Access Regulator).

The development application was referred to the Natural Resources Access Regulator on 17 January 2020. A response dated 9 April 2020 confirmed a controlled activity approval is not required and no further assessment is necessary by NRAR. A copy of the NRAR esponse is provided in Attachment 12.

TransGrid

The application was referred to TransGrid for concurrence on 17 January 2020. No response was provided to the referral sent. The applicant has sought concurrence prior to the lodgment of the application; and has provided a copy of correspondence with TransGrid requesting a review of the development application. TransGrid have determined the proposed works to be acceptable subject to condition of approval being met. A copy of the response from TrandGrid can be found at Attachment 13.

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. No submissions were received.

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PAGE 28 IMPACTS

Financial

This matter may have a direct financial impact upon Council’s adopted budget as refusal of this matter may result in Council having to defend a Class 1 Appeal in the NSW Land and Environment Court.

The Hills Future Community Strategic Plan

The proposed development is consistent with the planning principles, vision and objectives outlined within “Hills 2026 – Looking Towards the Future” as the proposed development provides for satisfactory urban growth without adverse environmental or social amenity impacts and ensures a consistent built form is provided with respect to the streetscape and general locality.

RECOMMENDATION

The application is recommended for refusal for the following reasons.

REASONS FOR REFUSAL

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 Environmental Planning and Assessment Regulation 2000:

Clause 54 Consent authority may request additional information:

The following information has not been submitted:

a) A plan showing the location of the proposed development footprint/ building platforms relative to the constrained land mapping layer from The Hills Development Control Plan 2012.

b) Adequate assessment against the Biodiversity Conservation Act 2016 relating to the ecological impacts of the subdivision works proposed.

2. 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.

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 site is not suitable for the proposed development.

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PAGE 29 ATTACHMENTS

1. Locality Plan 2. Aerial Photograph 3. LEP Land Zoning Map 4. LEP Minimum Lot Size Map 5. Bushfire Prone Land Map 6. LEP Terrestrial Biodiversity Map 7. Council Vegetation Mapping 8. Biodiversity Values Map 9. DCP Constrained Land Layer 10. Plan of Proposed Subdivision

11. Rural Fire Service Response/ Bushfire Safety Authority 12. Natural Resources Access Regulator Response

13. Transgrid Response/ Conditions

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PAGE 30 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 31 ATTACHMENT 2 – AERIAL PHOTOGRAPH

Subject Site – Red Outline

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PAGE 32 ATTACHMENT 3 – LEP LAND ZONING MAP

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PAGE 33 ATTACMENT 4 – LEP MINIMUM LOT SIZE MAP

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PAGE 34 ATTACHMENT 5 – BUSHFIRE PRONE LAND MAP

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PAGE 35 ATTACHMENT 6 – LEP TERRESTRIAL BIODIVERSITY MAP

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PAGE 36 ATTACHMENT 7 – COUNCIL VEGETATION MAPPING

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PAGE 37 ATTACHMENT 8 – BIODIVERSITY VALUES MAP

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PAGE 38 ATTACHMENT 9 – DCP CONSTRAINED LAND LAYER

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PAGE 39 ATTACHMENT 10 – PLAN OF PROPOSED SUBDIVISION

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PAGE 40 ATTACHMENT 11 – RURAL FIRE SERVICE RESPONSE/ BUSHFIRE SAFETY AUTHORITY

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PAGE 44 ATTACHMENT 12 – NATURAL RESOURCES ACCESS REGULATOR RESPONSE

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PAGE 49 ATTACHMENT 13 – TRANSGRID RESPONSE/ CONDITIONS

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PAGE 50 ITEM-4 470/2018/ZA/A - SECTION 4.55(2) MODIFICATION TO A SUBDIVISION CREATING 104 RESIDENTIAL LOTS AND ONE RESIDUE LOT TO DELETE 12 LOTS AND THREE LANEWAYS, AMEND THE LOT LAYOUT AND INTRODUCE STAGING - LOTS 1 AND 2 DP 1246839, 32- 34 MASON ROAD, BOX HILL

THEME: Valuing our Surroundings

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:

15 DECEMBER 2020

DEVELOPMENT ASSESSMENT UNIT

AUTHOR:

SUBDIVISION PLANNER ALEXANDRA HOPKINS

RESPONSIBLE OFFICER:

MANAGER – SUBDIVISION & DEVELOPMENT CERTIFICATION

BEN HAWKINS

Applicant MDS Commercial Developments Pty Ltd Owner Box Hill land Holdings Pty Ltd

Number Advised Ten

Number of Submissions Two unique submissions Zoning R2 Low Density Residential

R3 Medium Density Residential Site Area 4.677 hectares

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

Section 4.15 (EP&A Act) – Satisfactory Section 4.55 (EP&A Act) – Satisfactory

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

SEPP 55 – Remediation of Land – Satisfactory

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PAGE 51 SREP 20 – Hawkesbury-Nepean River – Satisfactory

Box Hill Growth Centre Precincts Development Control Plan – Satisfactory

Section 7.11 Contribution – $3,600,000.00 (over five stages) Political Donation None disclosed

Reason for Referral to DAU 1. Two unique submissions received to a modification application

2. Additional DCP variation sought Recommendation Approval subject to conditions

EXECUTIVE SUMMARY

The subject modification application seeks to amend an approved subdivision creating 104 residential lots and one residential lot including new road, demolition and dam dewatering to remove twelve residential lots, remove three laneways, amend the lot layout in response to those changes and introduce staging to the application (create the lots over five stages instead of one).

The modification application has been assessed against State Environmental Planning Policy (Sydney Region Growth Centres) 2006 – Appendix 11 The Hills Growth Centre Precincts Plan and the Box Hill Growth Centre Precincts Development Control Plan in relation to the controls that apply to residential subdivisions and is compliant with the Growth Centres SEPP but includes an additional variation to the DCP relating to earthworks. Two variations to the DCP relating to lot mix and the indicative road layout previously approved have been removed as a result of the proposed changes. The modification application is considered to be substantially the same development as originally approved pursuant to Section 4.55 of the Environmental Planning and Assessment Act 1979.

The modification application was notified on two separate occasions noting the planned staging was added later. Two unique submissions from the owner/ occupier of one adjoining property were received in response. The concerns raised relate to the location of construction access to the site and earthworks/ battering on adjoining land. These matters have been addressed through the submission of an amended Statement of Environmental Effects and existing conditions of consent which will remain.

The modification application is recommended for approval subject to amendments to Conditions 1, 4, 21, 46, 61 and 62 along with two new Conditions 61A and 61B as included below.

BACKGROUND

The development consent to which this modification application relates was approved on 3 August 2018. The approved plan of subdivision is included as Attachment 7. This modification application was lodged on 6 March 2020 and originally sought to delete twelve

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PAGE 52 residential lots, delete three laneways and amend the lot layout. The modification application was subsequently amended to introduce the proposed staging.

PROPOSAL

The modification application seeks to amend an approved subdivision creating 104 residential lots and one residential lot including new road, demolition and dam dewatering to remove twelve residential lots, remove three laneways, amend the lot layout in response to those changes and introduce staging to the application (create the lots over five stages instead of one). As a result the modified proposal creates 92 residential lots and three residue lots across five stages. The proposed plan of subdivision is included as Attachment 5 and the proposed staging is shown in Attachment 8.

Because of the laneways previously included 68 of the 104 lots in the existing plan were rear loaded and below 300 square metres requiring a Building Envelope Plan as per State Environmental Planning Policy (Sydney Region Growth Centres) 2006 – Appendix 11 The Hills Growth Centre Precincts Plan (Growth Centres SEPP). The amendments reduce the number of undersized lots to eight. These are supported by an amended Building Envelope Plan. A further two lots larger than 300 square metres have also been included with the Building Envelope Plan given they are irregularly shaped. The proposed Building Envelope Plan showing these ten lots is included as Attachment 6.

The site is located within the Box Hill Growth Centre Precinct and is subject to the requirements of the Box Hill Growth Centre Precincts Development Control Plan (DCP). The controls relating to residential subdivisions have been considered in the assessment of the modification application as outlined further throughout this report.

1. Section 4.55(2) of the Environmental Planning and Assessment Act 1979

Under the provisions of Section 4.55(2) of the Environmental Planning and Assessment Act 1979, a consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

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PAGE 53 (i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application.

The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

Specifically with respect to point (a) above:

The modification application seeks to amend the subdivision to remove twelve residential lots, remove three laneways, amend the lot layout in response to those changes and introduce staging to the application (create the lots over five stages instead of one).

Given the scope of the changes the relevant case law relating to this has been considered below.

Our Lady Aged Care v City of Parramatta Council [2020] NSWLEC 1596 relevantly considered whether a modification application for minor amendments to the yield and extent of development is substantially the same as that originally approved for the purposes of addressing Section 4.55(2)(a) of the Environmental Planning and Assessment Act 1979.

That case relied upon Agricultural Equity Investments v Westlime Pty Ltd (No 3) [2015]

NSWLEC 75 where the applicable legal principles governing the exercise of power contained in Section 4.55(2)(a) and states these as follows:

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PAGE 54 Given the applicant bears the onus to show the modified development is substantially the same they were tasked with responding to this and provided the following written justification.

Council has requested that this application address the principles set out by Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (as referenced recently in Our Lady Aged Care Centre Ltd v City of Parramatta Council [2020] NSWLEC 1596) and specifically "the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8)".

This application presents justification that the modification will result in a development that is substantially the same as the development for which development consent was originally granted. In presenting this justification we canvass the scope of the changes, the approved and proposed land use and