ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 17 September 2019

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

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DEVELOPMENT ASSESSMENT UNIT MEETING 17 SEPTEMBER, 2019

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 2587/2004/ZB/G - SECTION 4.55(2) MODIFICATION TO A SUBDIVISION CREATING EIGHT RESIDENTIAL LOTS TO REMOVE ADDITIONAL TREES FOR FUTURE DWELLINGS/ BUILDING AREAS - 127 AIKEN ROAD AND 185 ORATAVA AVENUE, WEST PENNANT HILLS

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PAGE 3 MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 27 AUGUST 2019

PRESENT

Cameron McKenzie Group Manager – Development & Compliance (Chair) Paul Osborne Manager – Development Assessment

Benjamin Hawkins Acting Manager – Subdivision & Development Certification Angelo Berios Manager – Environment & Health

Craig Woods Manager – Regulatory Services

Megan Munari Principal Co-ordinator – Forward Planning Kristine McKenzie Principal Executive Planner

APOLOGIES

Nicholas Carlton Manager – Forward Planning

TIME OF COMMENCEMENT 8:30am

TIME OF COMPLETION 8:40am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 20 August 2019 be confirmed.

ITEM-2 DA 1129/2019/LA - DEMOLITION OF THE EXISTING SWIMMING POOL, CABANA, RETAINING WALLS AND TENNIS COURT AND CONSTRUCTION OF ALTERATIONS AND ADDITIONS TO AN EXISTING DWELLING - LOT 307 DP 749027, NO. 9 CORELLA COURT, WEST PENNANT HILLS

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

The development application be approved subject to conditions in the report.

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PAGE 4 REASONS FOR THE DECISION

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

 Section 88B Instrument – Variation, see report.

 LEP 2012 – Satisfactory.

 DCP Part B Section 2 Residential – Variations required, see report.

 Section 7.12 Contribution: $21,450.00

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION The development application was notified and 10 submissions were received. The issues raised were discussed in the report.

END MINUTES

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PAGE 5 ITEM-2 2587/2004/ZB/G - SECTION 4.55(2) MODIFICATION TO A SUBDIVISION CREATING EIGHT RESIDENTIAL LOTS TO REMOVE ADDITIONAL TREES FOR FUTURE DWELLINGS/ BUILDING AREAS - 127 AIKEN ROAD AND 185 ORATAVA AVENUE, WEST PENNANT HILLS

THEME: Valuing our Surroundings

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: 17 SEPTEMBER 2019

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER

GANNON CUNEO

RESPONSIBLE OFFICER:

ACTING MANAGER – SUBDIVISION AND DEVELOPMENT CERTIFICATION

BEN HAWKINS

Applicant GWMC Pty Ltd

Owner GWMC Pty Ltd

Notification 21 days

Number Advised 6

Number of Submissions 2

Zoning E4 Environmental Living Site Area 1.495 hectares

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

Section 4.15 (EP&A Act) – Satisfactory The Hills LEP 2012 – Satisfactory

SEPP No 55 – Remediation of Land – Satisfactory

The Hills DCP 2012 – Part B Section 2 – Residential – Satisfactory

Political Donation None Disclosed

Reason for Referral to DAU Submission received to a modification application Recommendation Approval subject to conditions

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PAGE 6 EXECUTIVE SUMMARY

The Modification Application relates to an approved subdivision creating eight residential lots over two stages and seeks approval to remove additional trees. The additional tree removal is as a result of potential dwelling footprints on each of the lots and the desire of the applicant to deal with tree removal through the subdivision process rather than with individual development applications for dwelling houses later.

An additional 22 trees are proposed to be removed in addition to the tree removal previously approved to accommodate the subdivision works, including services, and for bushfire safety/

asset protection zones. Council’s Environmental Health team have reviewed the proposal and are satisfied that the additonal tree removal and information submitted by the applicant is satisfactory.

No other changes are proposed to the approved subdivision.

The Modification Application was notified to six adjoining properties and two submissions were received. The concerns raised in the submissions relate to the additional tree removal and suggests that this should be left until the lots are sold and developed. In addition concern was raised regarding the process followed with respect to tree removal with the original consent in 2005 and the status of the application (whether it has lapsed). The concerns raised have been addressed in the report and do not warrant further amendment or refusal of the Modification Application.

The Modification Application is recommended for approval subject to amended conditions as recommended below.

BACKGROUND

The subject site is located within an established residential area on the corner of Aiken Road and Oratava Avenue, West Pennant Hills. Consent was granted to the subdivision creating eight residential lots on 27 January 2005. The application has been modified on a number of occasions previously and construction works are nearing completion on site.

PROPOSAL

The Modification Application relates to an approved subdivision creating eight residential lots over two stages and seeks approval to remove additional trees. The additional tree removal is as a result of potential dwelling footprints on each of the lots and the desire of the applicant to deal with tree removal through the subdivision process rather than with individual development applications for dwelling houses later.

The subdivision was approved some time ago, before the current legislation relating to biodiversity was in place (namely the Biodiversity Conservation Act 2016). With a Development Application for a proposed future dwelling on each lot within the subdivision, a separate flora and fauna assessment would be required which may trigger entry into the Biodiversity Offset Scheme. Modification to the subdivision application allows for tree removal to be undertaken in a holistic manner up-front rather than each future land owner proposing additional tree removal and triggering substantial reporting requirements. As a result the subject application has included submission of a Biodiversity Development Assessment Report pursuant to the current legislation relating to biodiversity which has calculated the required offset credits for the additional tree removal proposed. The applicant is seeking to offset this additional impact through purchasing/ retiring credits up-front.

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PAGE 7

No changes are proposed to the approved subdivision layout and no additional physical works are proposed beyond the additional tree removal.

ISSUES FOR CONSIDERATION

1. Environmental Planning and Assessment Act 1979 Clause 4.55 Clause 4.55 Modification of Consents – Generally

(2) Other modifications

Provision: Comment:

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:

- 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

The proposed development seeks to remove additional trees from the building platforms within each lot. The proposed modification does not provide any additional dwelling entitlement within the subdivision. The original approved development was for a subdivision and the proposed modification remains a subdivision. There is no change of use proposed and there are no substantial changes to the approved development. The modification will result in a development that is substantially the same as originally approved.

2. The Hills Local Environmental Plan 2012 (i) Permissibility

The land is zoned E4 Environmental Living under The Hills Local Environmental Plan 2012 (LEP). The proposed subdivision is permissible under Clause 2.6 of the LEP.

(ii) Zone Objectives

The site is zoned E4 Environmental Living under the LEP. The objectives of the zone are:

- To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

- To ensure that residential development does not have an adverse effect on those values.

The proposal is consistent with the stated objectives of the zone, in that the proposal will provide low impact residential development and protect the ecological, scientific and aesthetic values of the site.

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PAGE 8 (iii) Development Standards

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. This application seeks consent for the modification to an approved 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 2,000m².

The proposed development modification does not seek to change any approved lot sizes which are all greater than 2,000m² as shown in Attachment 3.

3. The Hills Development Control Plan 2012

The proposal has been assessed against the provisions of The Hills Development Control Plan 2012 – Part B Section 2 – Residential (DCP).

The proposed development achieves compliance with the relevant requirements of the DCP, particularly in relation to tree preservation and biodiversity. The proposal seeks to preserve significant flora and fauna species/ communities in a holistic manner through the submission of a Biodiversity Development Assessment Report (BDAR). The BDAR assesses the vegetation across the site and provides a balanced outcome between allowing tree removal for the purposes of development by offsetting the impacts elsewhere.

As such, the proposal allows for tree removal at subdivision stage to reduce the number of trees and impact of tree removal with the construction of dwellings on each lot within the subdivision in the future.

The assessment has considered all other sections of the DCP and the proposal remains compliant with the same.

The objectives of the DCP have been complied with and the proposal is satisfactory.

4. Issues Raised in Submission

The proposal was notified for 21 days as per the DCP. Two submissions were received in response. The issues raised in the submissions are summarised below:

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ISSUE/OBJECTION COMMENT

The subject property has been approved for an eight lot subdivision and works are progressing in respect of the approved works. As a result of the original approved subdivision a significant number of trees were removed by the developer which has significantly altered the environment and has caused a significant reduction in the native wildlife located within the subject property.

Furthermore, the removal of the trees has impacted the stability of the remaining trees which could be a greater risk of falling during storms. Prior to subdivision works the forest had sufficient density to protect neighbouring homes from the risk of falling branches, however following the thinning of the forest we have seen a greater number of branches falling from trees during periods of high wind.

The biodiversity report completed by Travers Bushfire and Ecology shows the extent to which the property has already been cleared for development. They have suggested that the report is intended to be a group assessment for the future dwellings on the site. The impact on the local environment and the Blue Gum High Forest has already been significant, and to approve the removal of more trees prior to receiving a Development Application from individual lot owners once their intentions for their lot is premature. They have provided comments that many of the trees unstable or dying, I would suggest that this is not the case, and they should not be removed on that basis.

Whilst I understand that there may be a need in the future to remove further trees for construction of dwellings on the individual lots, it is not reasonable to accept removal of any further trees until the lots have been sold and Development Applications can be made to council for further development.

The zoning of the subject property is E4 Environmental Living which is a zone for

The proposed tree removal has been assessed by Council’s Environmental Health team. Whilst tree retention is preferred, the location of building platforms on each lot would result in the loss of vegetation across these areas eventually. The submission of a Biodiversity Development Assessment Report and Arboricultural Impact Assessment has allowed for a holistic assessment of the proposed additional tree removal to be undertaken. Conditions have been imposed which require replanting of a number of trees to assist in offsetting the loss of vegetation on the site.

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PAGE 10

land with special environmental or scenic values. Development in this zone is supposed to give priority to preservation of the particular environmental qualities of the land. To allow the developer to continue to remove trees and the impact this has on animal life in the area to enhance the saleability of their building blocks is not the intention of this zoning.

I would ask that Council decline the request to further clear the subject land and consider any further request to remove trees once the subdivision is complete.

Individual Development Applications for future construction should be assessed by Council on an individual basis.

I note on the Council documents, the expiry date of the application is shown as 27/1/2010.

The expiry date is five years from the date that consent was granted. This is the timeframe within which works were required to commence in order for the consent to be secured. Council staff issued a letter to the applicant on 14 September 2009 confirming that works had started/ the consent had been activated and will not lapse on 27 January 2010.

Surely the information included in the Travers Bushfire and Ecology Biodiversity Development Assessment Report of June 2019 was available to the developer for inclusion in the original Development Application; otherwise how could the profits be calculated before proceeding with the development. Essential information regarding selling prices, site layouts, housing lot size, position and density, arboreal costs, earthworks, roading, drainage and similar cost elements. It would appear that if the original Development Application was approved without this second application, there appears to be gross negligence demonstrated at all levels of the development submission and development approval processes, which will require further forensic analysis before any secondary Development Application be approved for the site.

Since when could people pay money to destroy protected fauna and flora? For

The age of the original consent is an important consideration here. The subdivision was approved before the current legislation relating to biodiversity came into force on 25 August 2017 (namely the Biodiversity Conservation Act 2016).

With a Development Application for a proposed future dwelling on each lot within the subdivision, a separate flora and fauna assessment would be required which may trigger entry into the Biodiversity Offset Scheme. This would not have been an issue under the old biodiversity legislation. This is the source of the difference and the purpose of the applicant lodging the current Modification Application. The Modification Application allows for tree removal to be undertaken in a holistic manner up-front rather than each future land owner proposing additional tree removal and triggering substantial reporting requirements. As a result the subject application has included the submission of a Biodiversity Development Assessment Report pursuant to the current legislation relating to biodiversity which has calculated the required offset credits for the additional tree removal proposed. The applicant is seeking to offset this additional impact through

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PAGE 11

some time the various biodiversity credit/

exchange scheme cause much concern. It is my clear understanding that existing or remnant Blue Gum forests or various types are totally protected from destruction via development, at least which was so when I last spoke with the Ministry on the issue.

I would further note this ever reducing patch of much-valued Blue Gum is an integral part of the Bellamy Creek Wildlife Fly-Way, connecting the Kissing Point bush and forest with the Cumberland State Forest and surrounding pending/

threatened development sites.

purchasing/ retiring credits up-front. The monetary figures referred to in Table C of the BDAR relate to the credits which the developer is required to purchase and retire in order to offset the loss of native vegetation from the site.

The Biodiversity Conservation Act 2016 outlines the legislative requirements for developers and their consultants. The applicant/ developer of the site has provided the required survey work and reporting to justify the additional tree removal and this has been deemed acceptable by Council’s Environmental Health team.

We note a similar situation in the paperwork surrounding the Forestry Corporations demand to re-zone protected land at the north and south entrances of the Cumberland State Forest.

The submission also makes note of a proposed Planning Proposal relating to a different property.

These matters are beyond the scope of the assessment of the current Modification Application.

Perhaps you can explain the turquoise blue area, we understand that the red, blue, pink, green trees are either gone or to be removed. The following Field Survey Report is absurd if required to be used as a reliable document for decision making reference our valuable local wildlife.

The turquoise blue area on the plan relates to Tree 85 within the creek corridor which is to be retained and protected.

5. Internal Referrals

The application was referred to the Environmental Health team to consider the proposal with respect to ecology and tree management.

No objection was raised subject to conditions. Relevant comments have also provided below.

Ecology

A Biodiversity Development Assessment Report (BDAR) for the proposed subdivision at 127 Aiken Road, West Pennant Hills, as prepared by Travers Bushfire and Ecology dated 20 August 2019 has been submitted and reviewed. An Arboricultural Impact Assessment prepared by Travers Bushfire and Ecology dated 23 July 2019 has also been submitted and reviewed.

The BDAR has addressed all concerns relating to fauna survey effort and the report has assumed presence for both Southern Myotis and Large-eared Pied Bat and has calculated the required credits. The BDAR also reflects the proposed tree removal as per the Arboricultural Impact Assessment.

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PAGE 12 Tree Management

The proposed tree removal has been reviewed and is considered suitable. No objection is raised to the proposed tree removal based on development impacts and the Safe Useful Life Expectancy (SULE) rating of trees within close proximity to works as per the Arboricultural Impact Assessment.

6. External Referrals

Integrated Development – Natural Resources Access Regulator

The application is classified as integrated development pursuant to Section 4.46 of the Environmental Planning and Assessment Act 1979 as the development requires approval from the Natural Resources Access Regulator (NRAR).

The proposal was referred to NRAR. A response was provided raising no objections to the proposed development subject to compliance with the Controlled Activity Approval already issued for the subdivision works.

CONCLUSION

The Modification Application has been assessed against the relevant heads of consideration under Sections 4.15 and 4.55 of the Environmental Planning and Assessment Act 1979, The Hills Local Environmental Plan 2012 and The Hills Development Control Plan 2012 and is considered satisfactory.

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

Approval is recommended subject to amended conditions.

IMPACTS Financial

This matter has no direct financial impact upon Council's adopted budget or forward estimates.

The Hills Future Community Strategic Plan

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

RECOMMENDATION

The application is recommended for approval subject to the following amended conditions.

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PAGE 13 STAGE 1

GENERAL MATTERS

CONDITION 4 IS AMENDED TO:

4. Tree Removal and Fauna Protection

a) Approval is granted for the removal of 22 trees numbered 12, 17, 28, 29, 32, 36, 57, 59, 91, 99, 116, 117, 119, 121, 129, 130, 179, 181, 182, 188, 189, 192 and 193 in the Arboricultural Impact Assessment prepared by Travers Bushfire and Ecology dated 23/07/2019. All other trees are to remain and are to be protected during all works.

Suitable replacement trees are to be planted upon completion of construction.

b) Hollow-bearing trees are to be clearly marked prior to clearing.

c) The felling of all trees is to be conducted under the supervision of a fauna ecologist to ensure appropriate animal welfare procedures are undertaken, particularly for threatened species. Hollows of high quality or with fauna recorded residing within should be sectionally dismantled for relocation and all hollows should be inspected for occupation, signs of previous and active and potential for reuse.

d) Trees shall be lopped to minimise the risk of injury or mortality to fauna, such as top- down lopping, with lopped sections gently lowered to the ground, and/ or by lowering whole trees to the ground with the “grab” attachment of a machine.

e) Any injured or displaced fauna is to be appropriately cared for and released on site when re-habilitated.

f) Any hollows required to be removed, and that has retention value, are to be relocation to the corridor. If these are placed as on ground habitat and are not reattached to a new recipient tree then they are to be replaced with appropriately sized nest boxes at a ratio of 2:1. Boxes should be constructed of weatherproof timber (marine ply), fasteners and external paint and appropriately affixed to a recipient tree under the guidance of a fauna ecologist.

g) If a threatened species is found to be occupying the hollow then the hollow section is to be reattached to a recipient tree within the nearby corridor as selected and directed by the fauna ecologist. The welfare and temporary holding of the residing animal(s) is at the discretion of the fauna ecologist. The hollow section should be well secured in the recipient tree in a manner that will not compromise the current or future health of that tree.

h) If any fauna species, nest or roost is located during development works, then works should cease until safe relocation can be advised by a fauna ecologist.

CONDITION 17A IS ADDED:

17A. Biodiversity Offsetting Requirements

To offset the residual biodiversity impacts of the development the class and number of ecosystem and species credits listed in table below must be retired.

The requirement to retire credits may be satisfied by payment to the Biodiversity Conservation Fund of an amount equivalent to the class and number of ecosystem credits, as calculated by the Biodiversity Offsets Payment Calculator (the amount payable to discharge an offset obligation will be determined at the time of payment).

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PAGE 14 Impacted

plant community type

Number of ecosystem credits

Offset option

IBRA sub-region Plant community types/ species that can be used to offset the impacts from development

PCT1237 Sydney Blue

Gum –

Blackbutt – Smooth-barked Apple moist shrubby open forest on shale ridges of the Hornsby

Plateau,

Sydney Basin Bioregion

4 Like for

like

Cumberland, Burragorang,

Pittwater, Sydney Cataract, Wollemi and Yengo.

or

Any IBRA subregion that is within 100 km of the outer edge of the impacted site.

Blue Gum High Forest in the Sydney Basin Bioregion.

This includes PCT's:

1237.

(HBT – Yes)

Chalinolobus dwyeri (Large- eared Pied Bat)

4 Like for

like

Any in NSW Only for this species

Myotis macropus (Southern Myotis)

3 Like for

like

Details demonstrating compliance with the requirement to retire credits or make payment to the Biodiversity Conservation Fund must be provided to Council’s Manager – Environment and Health prior to the issue of a Construction Certificate.

PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE CONDITION 57 IS ADDED:

57. Biodiversity Compliance

Evidence that the following measures have been undertaken shall be submitted to Council’s Manager – Environment and Health for written approval:

1. Fauna Nest Boxes – Location plan and photographs of installed nest boxes.

2. Tree Removal and Fauna Protection – Details prepared by the project ecologist demonstrating compliance with the Tree Removal and Fauna Protection condition/s of this consent.

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