ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 27 March 2018

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 27 MARCH, 2018

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 DA 960/2016/MD/A – A SECTION 4.55 MODIFICATION TO AN APPROVED THREE STOREY DWELLING WITH BASEMENT GARAGE AND ATTIC, DETACHED OUTBUILDING - LOT 4 DP 286534 - 6 CLARKE WAY, KENTHURST

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ITEM-3 DA 869/2017/HA - USE OF EXISTING PREMISES FOR A SECONDARY DWELLING AND SLEEP-OUT ASSOCIATED WITH THE PRINCIPAL DWELLING - LOT 9 DP 241639, NO. 18 JOYLYN ROAD, ANNANGROVE

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PAGE 3 MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 20 MARCH 2018

PRESENT

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

Angelo Berios Acting Manager – Environment & Health Craig Woods Manager – Regulatory Services

Stewart Seale Manager – Forward Planning Kristine McKenzie Principal Executive Planner

APOLOGIES

Mark Colburt Manager – Environment Health

Andrew Brooks Manager – Subdivision & Development Certification

TIME OF COMMENCEMENT 8:30am

TIME OF COMPLETION 8:36am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 6 March 2018 be confirmed.

ITEM-2 72/2018/AEU - APPLICATION FOR A BUILDING CERTIFICATE FOR UNAUTHORISED RETAINING WALLS AND CHANGES TO PERGOLA AND POOL COPING - LOT 9 DP 235880 NO. 9 KESWICK AVENUE, CASTLE HILL

RESOLUTION

The application for a Building Certificate be approved.

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PAGE 4 ITEM-2 DA 960/2016/MD/A - A SECTION 4.55 MODIFICATION TO AN APPROVED THREE STOREY DWELLING WITH BASEMENT GARAGE AND ATTIC, DETACHED OUTBUILDING - LOT 4 DP 286534 - 6 CLARKE WAY, KENTHURST

THEME: Balanced Urban Growth

OUTCOME: 7 Responsible planning facilitates a desirable living environment and meets growth targets.

STRATEGY:

7.2 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: 27 MARCH 2018

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: DEVELOPMENT ASSESSMENT CO-ORDINATOR STUART WHALE

RESPONSIBLE OFFICER: MANAGER DEVELOPMENT ASSESSMENT PAUL OSBORNE

Applicant J S Architect Pty Ltd

Owner Mrs Joanna Krystyna Ochudzawa

Exhibition / Notification Notification: 35 days (Christmas period) Number Advised 10

Number of Submissions 1

Zoning RU2 Rural Landscape

Site Area 7,004m²

List of all relevant

S4.15(1)(a) matters Section 4.15 (EP&A Act) – Satisfactory.

The Hills LEP 2012 – Permissible with consent.

DCP Part B Section 1 – Rural – Variation, see report.

Section 94A Contribution: $27,563.73 Political Donation None Disclosed

Reason for Referral to DAU 1. Variation to DCP.

2. Submission received.

Recommendation Approval subject to conditions

EXECUTIVE SUMMARY

The Section 4.55(2) Modification Application is for design changes to the approved three storey dwelling with basement garage and swimming pool, and changes to the finished retaining wall height and ground levels in the rear yard. The floor levels to the proposed outbuilding and horse stable will also increase due to the increase to the rear yard ground levels. The main changes to the dwelling design relates to the roof form to

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PAGE 5 provide a more simplified roof structure. Other modifications include changes to the external rear wall configuration at the alfresco area, and changes to a number of window positions and sizes.

The overall height of the development remains unchanged for the dwelling, and the proposed changes to the roof design do not result in a further increase to the approved height.

The overall height of the entertainment outbuilding increases 250mm, for an overall height of 7.42 metres from the natural ground level. The horse stable has increased 800mm to an overall height of 8.19 metres above natural ground level. The changes in level are as a result of the additional site filling and levelling, and no changes to the building facades is proposed.

The application was notified and submissions from two adjoining properties were received. One of these submissions requested clarification as to the proposed changes.

Further information was provided to this property owner, who subsequently withdrew their submission.

The issues raised in the remaining submission primarily relate to the same issues raised with the original application, with most of these not being relevant to the subject application. However, further relevant issues relate to additional filling of the site causing an increase to the rear site levels, and the finished floor levels (and subsequently finished ridge levels) of the stables and outbuilding, and loss of privacy due to a change to the ensuite window becoming larger in size.

It is recommended that the modification application be approved subject conditions.

BACKGROUND

The original Development Application 960/2016/MD approved by Council at its meeting on 9 August 2016 was for a new three storey dwelling with basement car parking, an entertainment outbuilding, in-ground swimming pool and spa, illuminated tennis court, horse stable, front fencing and retaining walls on a vacant parcel of land.

PROPOSAL

The 4.55(2) Modification Application seeks minor design changes to the dwelling roof form, wall positions and window position and sizes, filling of the rear yard area and an increase to the finished floor levels of the outbuilding and horse stable. The driveway area has been reduced overall, and there are also minor changes to the private horse arena location in the rear yard.

The overall height of the development remains unchanged for the dwelling, and the proposed changes to the roof design do not result in a further increase to the approved height.

The overall height of the entertainment outbuilding increases 250mm, for an overall height of 7.42 metres from the natural ground level. The horse stable has increased 800mm to an overall height of 8.19 metres above natural ground level. The changes in level are as a result of the additional site filling and levelling, and no changes to the building facades is proposed.

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PAGE 6 The proposal includes a further variation to external filling as the fill level in the rear yard has increased 560mm to an overall fill level of 4.06 metres in lieu of the previously approved fill level of 3.5 metres. The retaining wall at the rear of the site adjoining the community association land has increased in height 760mm to accommodate the additional fill level and to provide a kerb edge along the top of the wall. Whilst there is a further variation to filling heights, the variation has been considered on merit and the modification is worthy of support.

ISSUES FOR CONSIDERATION

1. Compliance with The Hills Local Environmental Plan 2012 (i) Permissibility

The subject site is zoned RU2 Rural Landscape and the proposed dwelling and ancillary structures are permissible within the zone. The Section 4.55(2) Modification Application proposes minor changes to the dwelling design, and an increase in fill levels in the rear yard resulting in an increase to the finished floor levels of the stable and outbuilding.

The amended plans retain the approved height limit of the building, and there is no further variation to the LEP height control.

(ii) Compliance with The Hills LEP 2012 – Zone Objectives The site is zoned RU2 Rural Landscape. The objectives of the zone are:

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

 To maintain the rural landscape character of the land.

 To provide for a range of compatible land uses, including extensive agriculture.

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

The proposal is considered to be consistent with the stated objectives of the zone, in that dwelling and ancillary structures are a permissible form of development, and given the rural cluster subdivision creating the subject allotment, a residential use was anticipated.

2. Compliance with The Hills Development Control Plan

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

 DCP Part B Section 1 – Rural

The Section 4.55(2) Modification achieves compliance with the relevant requirements of the above Development Controls with the exception of the following additional variation to that of the original consent:

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PAGE 7 DEVELOPMENT

CONTROL DCP

REQUIREMENTS PROPOSED

DEVELOPMENT COMPLIANCE Cut and Fill Maximum cut shall not

exceed: 1 metre Maximum fill shall not exceed: 600mm

Filling of land is to only be in conjunction with an approved land use or legitimate rural activity.

Fill shall be limited to the use of Virgin Excavated Natural Material (VENM) with no contaminates.

Additional filling of up to 560mm in the rear yard increasing the overall filling level from 3.5 metres (previously

approved) to 4.06 metres.

Rear retaining wall raised by 760mm to account for additional filling and kerb lip above finished ground level.

No

a) Cut and fill

The DCP requires that cut and fill is limited to 1 metre cut and 600mm fill.

The relevant Statement of Outcomes of this clause of the DCP are:



 The scale, siting and visual appearance of new development maintains the open rural feel of the landscape and preserves scenic and environmental qualities of the area.

 The location of new rural/residential development is to have regard to the potential impacts arising from existing adjacent rural business activities.

The applicant has provided the following justification for the variation:

a) The height that council is referring to South East Corner of the site where the previous survey levels were not correctly surveyed due to complexity of rock outcrop terrain, which were about 600mm off from the actual levels onsite, hence our wall is higher from the outside measurements;

b) The Proposed Concrete rain Water tank has to have minimum 500mm fill on top of concrete tank lid, with access hatch which the levels of Fill had to be raised to cover the RW tank;

c) During the excavation stage for the RW tank the sandstone rock level was reached and tank base was established to sufficiently cover the top of tank;

d) The Dressage Arena has to be at maximum 1 percent fall for the safety of the horse and training activity, since the rear area is very tight for a 20x60 area, we could not risk in battering back 500mm lover to have a unlevelled rear portion of horse arena;

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PAGE 8 e) Rear Fence has been erected on top of retaining walls for safety of occupants and

the site in general;

f) Fill shall be reduced to RL 74.56 at boundaries of the current erected retaining walls for drainage to fall towards the pits located at retaining walls.

g) The storm water absorption trenches to rear required more quality fill above existing sandstone outcrops in this area for quality soil filtration hence the fill level had to be raised slightly for drainage to work in accordance to storm water engineers instructions onsite;

h) The sewer pressure system also required good amount of soil under as we had surface sandstone boulders and rock close under the area trenching where proposed;

i) The proposed height increase demonstrates that the design of the wall does not significantly increase the impact upon the adjoining properties by way of, privacy, overshadowing or significant changes to streetscape character;

j) The retaining wall as viewed from street level maintains the same visual scene of the bushland;

k) The proposed retaining wall complies with the aim of the objectives;

l) Significant views from neighbouring dwellings are not unduly compromised;

m) We have also provided a letter from the association raising no objection to the raised retaining wall.

In this regard it is considered that the variation satisfies the objectives of the code, and it is considered the proposed variation be supported.

Comment:

The subject site has an overall fall of 8.9 metres from the front northern corner of the site down to the two most southern points of the site. The dwelling has been designed to step down the site and includes a basement level to take advantage of the natural fall within the site.

For the dwelling, cut of 1.2 metres is proposed and external fill of up to 1.9 metres is proposed to be contained in three terraced walls to the south west of the dwelling, with a formal courtyard forming part of the design.

The additional 560mm of external filling for up to 4.06 metres of external fill (at the highest point) is proposed to provide a level area at the rear of the site, which will also aid in the disposal of stormwater and on-site sewer management requirements. A letter from the Neighbourhood Association supports the application in its current form with respect to the additional retaining wall height and filling along the common boundary with the community association lot.

The DCP allows the filling of land where it is in conjunction with an approved land use or legitimate rural activity such as horse riding. With respect to the proposed development, the additional external filling at the rear of the site allows for a level area for the horse stable and paddock which would be a permitted rural activity, as well as provision for the disposal of stormwater and effluent on site. The external fill is predominately located adjacent to the community association lot and it is considered there will be minimal impacts on adjoining allotments where dwellings are permitted.

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PAGE 9 3. Issues Raised in Submission

The proposal was exhibited and notified for 35 days. The issues raised in the submission received within the notification period are summarised below.

ISSUE/OBJECTION COMMENT

Building exceeds LEP height limit. The original DA 960/2016/MD contained an LEP height variation. This was approved by Council with an overall ridge level of RL 88.69. There is no further increase to the overall height of the dwelling as the ridge level remains the same at RL 88.69.

Building exceeds site coverage ratio. Site coverage complies with the DCP control with 2380.71m² proposed or 33.99%, where the DCP permits a total hard stand area of 2500 m². Removal of 26 mature trees and

replacement with 10 juvenile trees resulting in loss of amenity to adjoining property.

The tree removal formed part of the approved development application DA 960/2016/MD and the subject Section 4.55 Modification does not seek the removal of any further trees.

No further loss of amenity as the subject application has not changed in this respect.

Site filling has increased which will raise the overall levels for the stable and outbuilding, increasing visual impacts on adjoining property.

Fill has increased 560mm overall, and the retaining wall at the rear by 760mm. The stable finished floor level has increased 800mm to RL 74.90 (previously 74.10). The proposed ridge level is RL 81.69. The outbuilding finished floor level has increased 250mm to RL 75.00 (previously RL 74.75). The proposed ridge level is RL 81.02.

Note: levels are to AHD. The finished floor levels of the objector’ dwelling are also to AHD.

The basement level of the objector’s property is RL 79.00 and the upper level is RL 82.00.

This would indicate that the finished floor level of the objector’s living rooms and entertainment areas would be above both the ridge levels for the stable and the outbuilding.

It is considered the change to the fill and ridge levels will have a minimal visual impact on the adjoining property and the structures are below the finished floor level of the adjoining residence living areas.

Stormwater runoff from over height retaining wall.

The applicant has submitted a hydraulic plan for stormwater and this has not changed from the original consent. A minor increase in fill in the rear yard does not increase any stormwater load.

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PAGE 10

Water drainage from top of retaining wall and horse manure will runoff into riparian area.

There is no change to the hydraulic design or drainage with respect to the Section 4.556 Modification as compared to the original approval.

The land is zoned RU2 Rural Landscape and the keeping of horses and other animals are permitted and common in the area, with manure etc. from such animals expected. The site has been levelled in the rear yard and as such, there will be less runoff opportunities as compared to a sloping site. Water runoff will typically soak into the filled earth area and the drainage system for the site. This will result in an improved outcome than from manure runoff directly into the riparian area if there was no fill or retaining works.

The source of potential pollutants has not changed from that of the original approval.

Post and wire fence on boundary

removed for new fence. No change has occurred with respect to the Section 4.55 Modification with respect to the front fence and side returns. Removal of the existing boundary fence is a civil matter between adjoining property owners.

Changes to windows make for less

privacy on our bedroom side. The two ensuite windows have been reconfigured to one larger window. The external wall of the ensuite is set in from the remainder of the external wall to allow for a private courtyard in front of the window. The finished floor level of the ensuite is RL 78.80, and the window is approximately 15.95 metres away from the common boundary (measured as line of sight).

The objector’s dwelling contains no windows along the closest side of their dwelling to the common boundary but does contain two deck areas, located at a finished floor level of RL 82.00, which is more than 3 metres higher than the ensuite level. It is considered the minor change to the windows has minimal impacts on the adjoining property.

Dust Control needs to be via water

carrier. Condition 25 of the development consent

requires the use of dust screens, wet down and water suppression methods and the covering of stockpiles etc. It is considered the condition addresses the matter of dust control and Council’s regulatory team can investigate should a complaint be made.

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PAGE 11 4. Issues Raised in Further Letter dated 28 February 2018

As a response to further discussions between the applicant and the objector, the objector has provided a further submission with respect to a number of issues and claims. A summary of these issues are listed below.

An architect (the applicant) is bound by the NSW Architects Code of Professional Conduct, and the applicant has not abided with this Charter with respect to:

Ignoring LEP and DCP requirements;

Being responsible for the information submitted;

To act with integrity and reasonable care;

To check and endorse all plans submitted;

To not make false or irrelevant statements.

It is not a matter for Council to make comment on opinions of either party with respect to a charter not overseen by Council. If the objector feels the charter has not been adhered to, it should be taken up with the relevant authority.

Original approval DA 960/2016/MD was approved without sufficient details with respect to levels.

The levels approved under DA 960/2016/MD were clear in that the approved fill level and retaining works for that fill were detailed at RL 74.00. The variation to fill in the original report to Council detailed overall fill of 3.5 metres with a finished AHD level of RL 74.00.

The original plans should be adhered to with respect to levels as the proposed levels will be impact view lines and property values.

The main purpose of the Section 4.55 Modification Application is to permit an additional 560mm of filling towards the rear of the site adjacent to the community association lot. It is considered this minor increase will have minimal impacts on any residential allotments adjoining the property. In this respect, retaining walls containing fill up to 3 metres in height are located on a number of surrounding properties including the objector’s property.

The objector’s property is elevated and overlooks the applicant’s property.

If the original approved levels were maintained, additional fill levels for drainage works would not be required.

A hydraulic engineer was involved with the original drainage design approved under DA 960/2016/MD. An additional 107kL underground water tank has been installed and this is the main change to the hydraulic design. This is not a matter that impacts on adjoining properties.

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PAGE 12 Loss of property values. The Section 4.55 Modification Application

proposes minor changes and is consistent with the original approval. There is no evidence that there is a loss of property values based in the Section 4.55 Modification application and this is not a planning consideration.

Boundary fence dispute This is a civil matter and the objector is currently pursuing this matter in a civil process.

5. Internal Referrals

The application was referred to following sections of Council:

 Forward Planning (Section 94A contributions)

 Certification

 Environmental Health

No objection was raised to the proposal (as amended) subject to conditions.

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 2012 and The Hills Development Control Plan 2012 and is considered satisfactory.

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

Approval is recommended subject to 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 Section 4.55 modification be approved subject to all previous conditions with the following amendments:

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PAGE 13 Condition 1 be deleted and replaced as follows:

REFERENCED PLANS

DRAWING NO DESCRIPTION SHEET REVISION DATE

01/16 BASIX Requirements 01/16 B 23/06/2016

1A/16 Fire Service Requirements 1A/16 C 23/06/2016

1B/16 Fire Service Requirements 1B/16 C 23/06/2016

02/16 Location Plan 02/16 F 05/12/2017

03/16 Site Plan 03/16 G 21/01/2018

04/16 Basement Plan 04/16 E 05/12/2017

05/16 Ground Floor Plan 05/16 E 05/12/2017

06/16 First Floor Plan 06/16 E 05/12/2017

07/16 Attic Plan 07/16 E 05/12/2017

08/16 Roof Plan 08/16 E 05/12/2017

09/16 Main Dwelling Elevations 09/16 F 05/12/2017

10/16 Main Dwelling Elevation and Section A-A

10/16 F 05/12/2017

11/16 Entertainment Outbuilding Elevations and Section B-B

11/16 E 05/12/2017

12/16 Site Coverage Calculations 12/16 D 05/12/2017

13/16 Landscape (Part) Plan 13/16 E 05/12/2017

14/16 Horse Stable Floor and Roof Plan

14/16 E 05/12/2017

15/16 Horse Stable Elevations and Section C-C

15/16 E 05/12/2017

16A/16 Tennis Court Detail and Lighting Plan

16A/16 C 20/01/2016

16/16 Tennis Court Elevations Detail 16/16 C 20/01/2016

01/01 In-ground Pool Details 01/01 D 30/11/2017

01/01 Pool Basement Floor Plan and Pool Section XX

01/01 D 30/11/2017

6337 Drainage Plan 1 of 3 B 18/01/2018

6337 Absorption Trench Design 2 of 3 B 18/01/2018

6337 Raintank Details 3 of 3 B 18/01/2018

0117-14/15 Schedule of Finishes 19 pages

A 24/06/2015

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11. Absorption Trench

The absorption trench must be constructed in accordance with the stormwater plan prepared by Nastasi and Associates Drawing 6337 Revision B dated 18/01/2018.

The following requirements also apply:

a) The trench must be at least 3m clear of the dwelling and the property boundary.

b) The trench must be sized by a suitably qualified and experienced hydraulic engineer. At a minimum, 1.8 cubic metres of volume must be provided per 100 square metres of roof/ hardstand area.

c) Rainwater reuse tank 20,000 litre must be incorporated as part of the overall site stormwater strategy.

A detailed design plan showing full construction details must be prepared by a suitably qualified and experienced hydraulic engineer. This plan must be included with the documentation approved as part of any Construction Certificate.

Condition 14 be deleted and replaced as follows:

14. Section 94A Contribution

Pursuant to section 80A (1) of the Environmental Planning and Assessment Act 1979, and The Hills Section 94A Contributions Plan, a contribution of $27,563.73 shall be paid to Council. This amount is to be adjusted at the time of the actual payment in accordance with the provisions of the Hills Section 94A Contributions Plan.

The contribution is to be paid prior to the issue of the Construction Certificate.

You are advised that the maximum percentage of the levy for development under section 94A of the Act having a proposed construction cost is within the range specified in the table below;

Proposed cost of the development Maximum percentage of the levy

Up to $100,000 Nil

$100,001 - $200,000 0.5 %

More than $200,000 1%

20. Erosion and Sedimentation Controls

Erosion and sedimentation controls shall be in place prior to the commencement of site works and maintained throughout construction activities, until the site is landscaped and/or suitably revegetated. These requirements shall be in accordance with Managing Urban Stormwater – Soils and Construction (Blue Book) produced by the NSW Department of Housing.

This will include, but not be limited to a stabilised access point and appropriately locating stockpiles of topsoil, sand, aggregate or other material capable of being moved by water being stored clear of any drainage line, easement, natural watercourse, footpath, kerb or roadside.

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25. Dust Control

The emission of dust must be controlled to minimise nuisance to the occupants of the surrounding premises. In the absence of any alternative measures, the following measures must be taken to control the emission of dust:

 Dust screens must be erected around the perimeter of the site and be kept in good repair for the duration of the construction work;

 All dusty surfaces must be wet down and suppressed by means of a fine water spray. Water used for dust suppression must not cause water pollution; and

 All stockpiles of materials that are likely to generate dust must be kept damp or covered.

27. Compliance with BASIX Certificate

Under clause 97A of the Environmental Planning and Assessment Regulation 2000, it is a condition of this Development Consent that all commitments listed in BASIX Certificate No. 691421S_03 are to be complied with. Any subsequent version of this BASIX Certificate will supersede all previous versions of the certificate.

A Section 96 Application may be required should the subsequent version of this BASIX Certificate necessitate design changes to the development. However, a Section 96 Application will be required for a BASIX Certificate with a new number.

37. Approval to Amend an On-site Sewage Management System

An application under Section 68 of the Local Government Act 1993 is to be made to alter the previous approval to install system of sewage management (104/2016/AWT) dated 24 August 2017. The application shall comply with:

a) Local Government (General) Regulation 2005; and

b) Appendix 2 – Installation of a Sewage Management Facility of The Hills Shire Council’s Local Approvals Policy (2016).

The inclusion of the following conditions:

GENERAL MATTERS:

13A. Construction Certificate

Prior to construction of the approved development relating the Section 96 Modification Application (this consent), it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier. Plans submitted with the Construction Certificate are to be amended to incorporate the conditions of the Development Consent.

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PAGE 16 PRIOR TO ISSUE OF OCCUPATION CERTIFICATE:

41A. Amendment of System of Sewage Management

Prior to the issue of any Occupation Certificate, the on-site sewage management system shall be installed in accordance with an approval subsequent to approval dated 24 August 2017 issued pursuant to an application made under section 68 of the Local Government Act 1993.

USE OF SITE:

43. Lighting

Any lighting on the site shall be designed so as not to cause a nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of Obtrusive Effects of Outdoor Lighting.

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

4. Dwelling Elevations 5. Outbuilding Elevations 6. Stable Elevations 7. Site Photographs

8. Approved Elevation Plans

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PAGE 17 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 18 ATTACHMENT 2 – AERIAL PHOTOGRPAH

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PAGE 19 ATTACHMENT 3 – SITE PLAN

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PAGE 20 ATTACHMENT 4 – DWELLING ELEVATIONS

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PAGE 21 ATTACHMENT 4 – DWELLING ELEVATIONS

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PAGE 22 ATTACHMENT 5 – OUTBUILDING ELEVATIONS

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PAGE 23 ATTACHMENT 6 – STABLE ELEVATIONS

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PAGE 24 ATTACHMENT 7 – PHOTOGRAPHS

View from front of dwelling looking north east to objector’s property.

Basement level under construction.

View from rear yard behind dwelling toward objectors dwelling.

Benched level indicates finished rear yard level.

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PAGE 25 ATTACHMENT 7 – PHOTOGRAPHS

View looking east from rear yard toward horse stable location.

Rock wall in background located on adjoining property at 4 Clarke Way.

View looking north east toward proposed location of outbuilding to left.

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PAGE 26 ATTACHMENT 8 – APPROVED ELEVATION PLANS

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PAGE 27 ATTACHMENT 8 – APPROVED ELEVATION PLANS

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PAGE 28 ITEM-3 DA 869/2017/HA - USE OF EXISTING PREMISES FOR A SECONDARY DWELLING AND SLEEP-OUT ASSOCIATED WITH THE PRINCIPAL DWELLING - LOT 9 DP 241639, NO. 18 JOYLYN ROAD, ANNANGROVE

THEME: Balanced Urban Growth

OUTCOME: 7 Responsible planning facilitates a desirable living environment and meets growth targets.

STRATEGY:

7.2 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: 27 MARCH 2018

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: DEVELOPMENT ASSESSMENT CO-ORDINATOR ROBERT BUCKHAM

RESPONSIBLE OFFICER: MANAGER – DEVELOPMENT ASSESSMENT PAUL OSBORNE

Applicant Ken Willis and Associates

Owner Y. Hodgson

Notification 14 days Number Advised 5 Number of Submissions One

Zoning RU6 Transition

Site Area 20,380m²

List of all relevant

s4.15(1)(a) matters Section 4.15 (EP&A Act) – Unsatisfactory.

The Hills LEP 2012 – Unsatisfactory.

DCP Part B Section 1 – Rural – Unsatisfactory.

Section 7.12 Contribution: $Nil Political Donation None Disclosed

Reason for Referral to DAU Recommended for Refusal Recommendation Refusal

EXECUTIVE SUMMARY

The applicant describes the proposal as the use of part of the upper floor of an existing shed as a secondary dwelling and use of part of the lower floor as ‘sleep out’ in conjunction with the primary dwelling. The proposal also appears to seek consent for use of the garage and part of the lower floor of the existing dwelling to be used as habitable purposes in order for the secondary dwelling to achieve a floor area 20% of the area of the primary dwelling (including the sleep-out associated with the principal dwelling).

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PAGE 29 The applicant identifies that the secondary dwelling has a floor area of 96.97m². The applicant outlines that based on their calculations of the principal dwelling, the secondary dwelling can have a floor area of 104.4m².

The plans submitted indicate that the upper floor is to contain a bedroom, kitchen, ensuite, television/sitting area and alfresco dining area. The ground floor (sleep-out) incorporates a tv/rumpus area, two bedrooms, laundry/bathroom and kids storage room.

Although the Statement of Environmental Effects only proposes a change in use, the plans do indicate works are to occur within the building including the existing stairs are to be made unusable and the existing dining area is to be made into an alfresco area.

The lodgement of the subject application results from ongoing compliance action seeking the cessation of the unauthorised use of the shed.

The applicant previously lodged an application to seek approval for the use of the shed as a recreation facility. The application was refused and a 8.2 (82A) review of determination was lodged. This application was also subsequently refused. The applicant appealed the decision in the Land and Environment Court however, post Section 34 Court Conciliation, withdrew the appeal.

It is unreasonable to consider that the use of the ground floor of the rear building is directly associated with the principal building located at the front of the site and not the upper floor of the rear building. It is considered that the use of the buildings on the site is best classified as a detached dual occupancy, a prohibited development.

The application was notified to neighbouring properties for 14 days and one submission was received. The issues raised in the submission relate to unauthorised works, compliance with the LEP and appropriateness of the proposed use.

The Development Application is recommended for refusal.

BACKGROUND

On 14 January 1993 a shed was approved at the rear of the property with dimensions of 9m x 24m and an area of 216m² (D92/656). The shed has been extended without approval and is currently used as a dwelling. On 4 December 2014, a building certificate for an unauthorised carport and masonry wall was approved. The carport which housed helicopters is attached to the southern side of the existing shed and has since been enclosed (without approval).

On 3 December 2014 a complaint was received advising Council staff that the shed was being occupied as a dwelling. On 22 December 2014 a letter was sent to the owner advising that the habitable use of the shed as a dwelling would not be supported in its current form due to the excessive works that would be required to upgrade the structure for habitable use. As a result the owner was required to reinstate the existing structure back to the use as a shed. The cessation of the use of the shed as a dwelling was required by 19 January 2015. The letter also advised that the building certificate approval of the carport within the 5 metre setback was a special dispensation given that the structure was open, without bounding walls and that the Building Code of Australia requires a carport to have two or more sides open and not less than one third of its perimeter open.

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PAGE 30 Between January 2015 and June 2015 a number of letters were exchanged between Council staff and the owner’s consultant seeking regulation of the unauthorised building works, use of the shed as a dwelling and shipping container on the site.

On 2 July 2015, Council staff issued the following Notice of Intention to Give an Order, which contained three Orders:

Order No 1: Seeking the cessation of the use of the shed as a habitable structure.

Order No 2: Seeking the removal of the two shipping containers and the associated slab and the removal of external Colorbond sheeting installed to the approved carport.

Order No. 15: Seeking Compliance with Development Consent D92/656, including the removal of the unauthorised mezzanine and the internal fit out to both the lower and upper levels of the approved shed.

On 2 September 2015 an Order was issued for Orders 1, 2 and 15. On 24 November another Notice of Intention to Give an Order was issued to the owner for an 850mm high masonry wall constructed within 1 metre from the southern side boundary which was erected without consent.

On the 9 December 2015 a Penalty Infringement Notice was issued for Order 2, and on 11 December 2015 an Order was issued for the unauthorised masonry wall.

On 17 February 2016 Order No. 19 was issued requiring the owner to cease carrying out building works of the unauthorised concrete column, footing and slab at the rear of the existing shed.

As outlined above, the owner as a history of construction works on the site without prior consent.

In September 2015 the applicant subsequently lodged an application for the use of the Building as a recreation facility. The application was refused by Council’s Development Assessment unit on 1 March 2016 on the following grounds:

 The proposal not appropriately defined as an recreation facility (indoor) under Local Environmental Plan 2012 (Section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act, 1979).

 The proposal is most appropriately defined as a secondary dwelling under Local Environmental Plan 2012. A dwelling could not be approved in this manner because Clause 5.4(9) of the Local Environmental Plan 2012 prohibits secondary dwellings with a floor area exceeding 60m²or 20% of the total floor area of the principal dwelling (whichever is greater) Section 79C(1)(a)(i) of the NSW Environmental Planning & Assessment Act, 1979).

 The proposed development is inconsistent with the objectives of the RU6 Rural Transition zone under Local Environmental Plan 2012 (Section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act, 1979).

 The proposed development is inconsistent with the aims and objectives of DCP Part B Section 1 – Rural (Section 79C(1)(a)(iii) of the NSW Environmental Planning and Assessment Act, 1979).

 The proposed has not been supported by adequate information including a Building Code of Australia report, Bushfire report or an On-Site Sewerage Management report.

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PAGE 31 The Applicant lodged an 82A review of determination and the application was refused by Council on 10 May 2016. Both refusals related to permissibly and outstanding information relating to Building Code of Australia, bushfire and waste water matters.

The applicant then appealed Council’s determination in the Land and Environment Court.

The matter proceeded to a Section 34 Conciliation Conference however the applicant subsequently filed a notice of discontinuance. In response to requests from Council staff to cease the use of the shed the owner (owner’s son) sought to meet to formalise the use as a secondary dwelling. Council staff provided clear advice as to what be accepted in terms of layout of the building and what information would need to be provided to demonstrate that the building was appropriate for habitation. The applicant subsequently lodged the application in the form proposed, contrary to Council staff advice.

Post lodgement of the subject application, on 10 August 2017, a Complying Development Certificate was issued by an accredited certifier, Alison Jacobs of Urban City Consulting for a swimming pool adjacent to the proposed shed.

PROPOSAL

The Development Application is for the use of a portion of an existing shed as a secondary dwelling and ‘sleep out’ associated with the primary dwelling. The plans submitted indicate the upper floor is to contain a secondary dwelling incorporating one bedroom, kitchen, ensuite, television/sitting area and alfresco dining area shown in blue on Attachment 4. The ground floor (sleep-out) incorporates a tv/rumpus area, two bedrooms, laundry/bathroom and kids storage room shown in orange on Attachment 4.

The proposal also appears to seek consent for use of the garage and part of the lower floor of the existing dwelling to be used as habitable purposes in order to for the secondary dwelling to achieve a floor area 20% of the area of the primary dwelling (including the sleep-out associated with the principal dwelling).

The structure is currently being used in part as a shed and an unauthorised dwelling which contains living areas, bathrooms, laundry, bedrooms, office area and a kitchen.

ISSUES FOR CONSIDERATION

1. Compliance with The Hills Local Environmental Plan 2012 a) Permissibility

The subject site is zoned RU6 Rural Transition. The Statement of Environment Effects (SEE) states that the proposal is for the use of part of the upper floor of an existing shed as a secondary dwelling and use of part of the lower floor as ‘sleep out’ in conjunction with the primary dwelling.

LEP 2012 defines a secondary dwelling as:

a self-contained dwelling that:

(a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and

(c) is located within, or is attached to, or is separate from, the principal dwelling.

Note. See clause 5.4 for controls relating to the total floor area of secondary dwellings

The ‘sleep out’ component of the use would be best captured by the dwelling definition.

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PAGE 32 A dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

Clause 5.4(9) of LEP 2012 limits the floor area of secondary dwellings to 60m² or 20% of the principal dwelling. The proposal relies on the use of the garage and part of the lower floor of the existing dwelling for habitable purposes, and the proposed sleep-out associated which is to be taken to be associated only with the principal dwelling, in order for the secondary dwelling to achieve a floor area approximately 20% of the area of the primary dwelling, being 96.97m².

The Applicant outlines based on the calculations of the principal dwelling that the secondary dwelling can have a floor area of 104.4m².

As outlined in this report, the plans submitted indicate that the upper floor is to contain a bedroom, kitchen, ensuite, television/sitting area and alfresco dining area. The ground floor (sleep-out) incorporates a tv/rumpus area, two bedrooms, laundry/bathroom and kids storage room.

It is considered that the use of the buildings on the site are best classified as a detached dual occupancy, a prohibited development. It is unreasonable to consider that the use of the ground floor of the rear building is directly associated with the principal building located at the front of the site (approximately 200 metres from the shed) and not the upper floor of the subject building.

A detached dual occupancy is defined as:

dual occupancy (detached) means 2 detached dwellings on one lot of land, but does not include a secondary dwelling.

The site inspection undertaken by Council staff indicated that the use of the building is for a dwelling. The applicant has clearly stated that the building is currently used as a dwelling with the owner’s son and two grandsons living within. Even if the works were to be carried out as outlined in the application it is considered that the building will be used a single dwelling.

The proposal is considered unsatisfactory in regard to LEP 2012.

b) 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 intensity or environmental sensitivities.

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

 To encourage innovation and sustainable tourist development, sustainable agriculture and the provision of farm produce directly to the public.

The proposal is contrary to the above objectives in that the proposal is for the use of a building as a dwelling which does not comply with Council’s LEP limit on area. The proposed use may result in adverse impact to adjoining properties due to use of the building and the unauthorised works which have been undertaken by the property owner.

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PAGE 33 2. Issues Raised in Submissions

The proposal was notified to surrounding property owners for a period of 14 days and one submission was received which raised the following concerns:

This application is a cover for how

the shed is actually being used. As outlined above, the use of the building as a dwelling results in the use of the site being a detached dual occupancy which is a prohibited use in the RU6 Transition zone. The Development Application is recommended for refusal.

The building has grown from one approved shed, to another shed without Council approved which has been converted to a dwelling.

As outlined above, the works have been undertaken with no prior consent. The Development Application is recommended for refusal.

3. Internal Referrals Building Matters

There are a number of major non compliances with each building with respect to the fire resistance levels required for the buildings, compartmentation required for each storey, restricting fire spread, construction of exits (including stairs/balustrades), required fire- fighting equipment, smoke hazard management and health and amenity. Further, the structural capacity of the shed structure that is proposed to be used for residential purposes is not known.

For Council staff to be satisfied the level of BCA compliance/fire safety will be sufficient for the buildings and their uses, the applicant would need to provide a BCA compliance report addressing Parts B, C, D, E & F of the BCA. The report would need to be prepared by an appropriately qualified Certifier, building regulations consultant or the like and is to make recommendations as to the proposed level of BCA compliance the buildings need to be bought into to be appropriate for their intended uses. Floor plans/elevations/sections will be required for all parts of the building.

Waste Water

The proposal includes three bedrooms, however the wastewater report has been based upon two bedrooms. The report is considered unsatisfactory for the following reasons:

• Incorrect volume used for sizing of absorption trench;

• Incorrect number of bedrooms used to calculate volumes;

• Incorrect size of conventional bed/absorption trench;

• Insufficient buffer from permanent surface waters (100m required, 60m provided);

• Details of an adequate system for the primary dwelling have not been demonstrated.

4. External Referrals Rural Fire Service

The NSW Rural Fire Service has provided the following comments in relation to Bushfire:

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PAGE 34 1. No Bush Fire Assessment Report, prepared by a suitably qualified bush fire consultant, has been provided with the development application addressing the requirements of A4.1 of 'Planning for Bush Fire Protection (PBP) 2006'.

The following details are to be provided:

 A statement that the site is located on bush fire prone land.

 The location, extent and vegetation formation of any bushland on or within 140 metres of the site.

 The slope and aspect of the site and of any bush fire prone land within 100 metres of the site, which may determine the likely path of any bush fires.

 Any features on or adjoining the site that may mitigate the impact of a high intensity bush fire on the proposed development.

 A statement assessing the likely environmental impact of any proposed bush fire protection measures.

 Information which shows that the proposed secondary dwelling and teenager’s retreat can achieve the required minimum APZs in Table A2.4, based on

<29kWsqm of radiant heat, of ‘PBP 2006’ in accordance with Section 4.3.6 and the NSW Rural Fire Service (RFS) Fast Fact 4/12 Increased density on a single parcel of land. At present the development has been assessed in the flame zone.

 Whether any building is capable of complying with Australian Standard AS 39592009 'Construction of buildings in bush fireprone areas' in relation to the construction level for bush fire protection. This shall take into consideration the requirements of Section 4.3.6 of ‘PBP 2006’and the NSW RFS ‘Fast Fact 4/12 Increased density on a single parcel of land’ for secondary dwellings.

2. Evidence which shows the effectiveness of proposed radiant heat shield shall be provided. At this time no information has been provided demonstrating how the provision of a radiant heat shield will reduce the radiant heat experienced by the proposed secondary dwelling and teenager’s retreat in the event of a bush fire.

3. Evidence which shows that a direct line of sight is not present to the bush fire prone vegetation from the proposed secondary dwelling and teenager’s retreat. At this time a direct line of sight to the vegetation to the south has been shown and it has not been considered that proposed secondary dwelling and teenager’s retreat will be shielded as proposed.

4. Architectural plans which show the full extent of the proposed upgrades, additions to the existing building and location of the secondary dwelling and teenager’s retreat within the existing building. This shall include the provision of floor plans which clearly show that the proposed teenager's retreat will not be used as a third occupancy.

Given that it would appear that the proposal would be unable to meet the criteria above, the applicant was requested to amend or withdraw the application.

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PAGE 35 CONCLUSION

The application has been assessed against the provisions of Section 4.15 of the Environmental Planning and Assessment Act, 1979, Local Environmental Plan 2012 and The Hills Development Control Plan 2012 and is considered unsatisfactory.

The proposal is recommended for refusal.

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 social and environmental impacts have been identified and addressed in the report.

The proposal conflicts with LEP 2012. It is considered unsatisfactory with regard to The Hills Future Community Strategic Plan.

RECOMMENDATION

The Development Application be refused on the following grounds:

(i) The proposal is most appropriately defined as a secondary dwelling under Local Environmental Plan 2012. A secondary dwelling could not be approved in this manner because Clause 5.4(9) of the Local Environmental Plan 2012 prohibits secondary dwellings with a floor area exceeding 60m²or 20% of the total floor area of the principal dwelling (whichever is greater).

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

(ii) The proposal is best defined as a detached dual occupancy which is a prohibited use in the RU6 Transition zone.

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

(iii) The proposed development is inconsistent with the objectives of the RU6 Rural Transition zone under Local Environmental Plan 2012

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

(iv) The proposed development has not been supported by adequate information including a Building Code of Australia report, Bushfire report or an On-Site Sewerage Management report.

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

4. Floor Plans

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PAGE 36 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 39 ATTACHMENT 4 – FLOOR PLANS

Plan above: Sleep-out associated with principal dwelling shown in orange

Plan above: Secondary Dwelling shown in blue