ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 04 September 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 04 SEPTEMBER, 2018

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 DA 1667/2016/HB/C - SECTION 4.55(1A) MODIFICATION TO AN APPROVED RESIDENTIAL FLAT BUILDING DEVELOPMENT - PROPOSED LOT 13 IN A SUBDIVISION OF LOT 3 DP 23258 AND LOTS 40, 41 AND 42 DP 119377, NOS. 19-21 WITHERS ROAD, NORTH KELLYVILLE

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PAGE 3 MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 14 AUGUST 2018

PRESENT

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

Andrew Brooks Manager – Subdivision & Development Certification Mark Colburt Manager – Environment & Health

Craig Woods Manager – Regulatory Services

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

APOLOGIES

Stewart Seale Manager – Forward Planning

TIME OF COMMENCEMENT 8:30am

TIME OF COMPLETION 8:37am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on be 24 July 2018 be confirmed.

ITEM-2 DA 1878/2017/ZA – SUBDIVISION CREATING 40 RESIDENTIAL LOTS AND ONE RESIDUE LOT INCLUDING NEW ROAD AND DEMOLITION – LOT 76 DP

10167 (NO. 45 MASON ROAD, BOX HILL)

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

DECISION

The application be approved subject to conditions as set out in the report with an additional two conditions as follows:

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PAGE 4 PRIOR TO WORK COMMENCING

23A. Dust Management Plan

Due to the size of the area being disturbed by the works, a site specific Dust Management Plan (DMP) must be prepared by a suitably qualified and experienced construction management consultant in conjunction with the civil contractor to proactively address this issue. This DMP must be approved prior to work commencing and shall address/ include the following matters:

 Water carts must be used to regularly wet down exposed areas. The number of water carts on site at all times (and additional carts available on demand) must be nominated and justified.

 Additives that can be mixed with the water to aid dust suppression.

 A dust cloth must be installed along the perimeter of the site.

 A sprinkler/ misting system along the perimeter of the site.

 Dust control at source, such as machine mounted sprinklers, ground mounted water cannons where material is being excavated, loaded and placed and measures to ensure loads are covered.

 Vehicle speed control on access routes.

 Stockpile management such as location, orientation, volume and height must be carefully considered to minimise impacts on neighbouring properties. Covering of stockpiles with tarpaulins or vegetation should also be considered where warranted by the duration of the stockpile. Stockpiles expected to be in place for longer than 14 days are considered non-temporary.

 Interim seeding and/ or hydro-mulching of exposed areas as work progresses.

 Final topsoil placement and planting or seeding exposed areas as soon as possible.

 Weather forecast systems to predict adverse weather conditions and allow for early action for dust management and to avoid dust generating activities when weather conditions are unfavourable.

 Education of all site personnel on reducing dust.

 Community engagement plan and complaints management system demonstrating how dust complaints will be received, recorded, resolved and responded to.

 The DMP must also demonstrate how the dust management controls will be monitored, reviewed and revised on a regular basis to ensure their ongoing effectiveness.

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PAGE 5 DURING CONSTRUCTION

40. Dust Control

The emission of dust must be controlled and monitored for on-going effectiveness to minimise nuisance in accordance with the Dust Management Plan (DMP) referred to in Condition 23A

DATE OF DECISION:

14/8/2018

REASONS FOR THE DECISION

 Section 4.15 (EP&A Act)

 SEPP (Sydney Region Growth Centres) 2006, Appendix 11 The Hills Growth Centres Precinct Plan

 Draft SEPP (Sydney Region Growth Centres) 2008 North West Priority Growth Area Land Use and Infrastructure Implementation Plan

 SEPP 55 Remediation of Land

 SREP 20 Hawkesbury-Nepean River

 Box Hill and Box Hill Industrial Precinct Development Control Plan

 State Infrastructure Contribution

 Section 7.11 Contribution

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION The development application was notified and two submissions were received. The issues raised in the submission do not warrant refusal of the application.

END MINUTES

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PAGE 6 ITEM-2 DA 1667/2016/HB/C - SECTION 4.55(1A) MODIFICATION TO AN APPROVED RESIDENTIAL FLAT BUILDING DEVELOPMENT - PROPOSED LOT 13 IN A SUBDIVISION OF LOT 3 DP 23258 AND LOTS 40, 41 AND 42 DP 119377, NOS. 19-21 WITHERS ROAD, NORTH KELLYVILLE

THEME: Building a Vibrant Community & Prosperous Economy 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: 4 SEPTEMBER 2018

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER

AMANDA HAWKINS

RESPONSIBLE OFFICER:

PRINCIPAL EXECUTIVE PLANNER KRISTINE MCKENZIE

Applicant Balintore Withers Rd Pty Ltd Owner Balintore Withers Rd Pty Ltd Notification 14 days

Number Advised 38 Number of Submissions One

Zoning R1 General Residential, R2 Low Density Residential, R3 Medium Density and SP2 Local Road Widening

Site Area 10,120m² (4,838m² Proposed Lot 13) 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 Regional Growth Centres 2006 – Satisfactory.

SEPP BASIX 2004 – Satisfactory.

SEPP No 55 - Remediation of Land – Satisfactory.

SEPP No 65 – Design Quality of Residential Apartment Development – Satisfactory.

Draft SEPP Sydney Regional Growth Centres 2006 – Satisfactory.

North Kellyville Growth Centre Precinct DCP 2016 - Satisfactory.

Section 94A Contribution: $1,586,850.52 (No change) Political Donation None Disclosed

Reason for Referral to DAU 1. Variation to SEPP standard between 7-10%

2. Submission received.

Recommendation Approval subject to conditions

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PAGE 7 EXECUTIVE SUMMARY

The Section 4.55(1A) Modification Application seeks to modify an approved residential flat building development comprising two buildings and basement parking. The modification seeks approval to increase the floor to floor heights of the three residential levels within Buildings C and D from the approved 2.9 metres to 3.1 metres.

The SEPP limits height on the site to 9 metres and 16 metres. The modification increases the overall height of the buildings by 600mm. The maximum height is increased to 9.85 metres on the portion of the site with a 9 metre height limit and 16.75 metres on the portion of the site with a 16 metre height limit. This represents a 9.4% and 4.7% variation to each control respectively.

The application was notified to adjoining properties. One submission was received. The issue raised in the submission relates to the impact the development will have on solar access to the private open space of the dwelling. The development is located to the south of the objector’s property and does not directly adjoin the objector’s property. As such this development will not have any impact on solar access to any properties to the north.

The modification application is recommended for approval.

BACKGROUND

Deferred Commencement Development Consent 1667/2016/HB for a residential flat building development of two buildings comprising 75 apartments and 120 car parking spaces within proposed Lot 13 in a subdivision of Lots 40, 41 and 42 DP 1193771 and Lot 3 DP 23258 was issued under Delegated Authority on 14 August 2017

A Section 96(1A) Modification Application 1667/2016/HB/A to delete the Deferred Commencement condition relating to the registration of the easement required for the stormwater management of the proposed development was approved under Delegated Authority on 14 November 2017

A further Section 96(1A) Modification Application 1667/2016/HB/B to expand the lower level basement level and provide an additional 63 car parking spaces (increasing the total number of car parking spaces to 183) was approved under Delegated Authority on 16 March 2018.

Minor internal layout modifications primarily related to the relocation of bathrooms and alterations to the window layouts were also approved.

PROPOSAL

The Section 4.55(1A) Modification Application seeks to modify an approved residential flat building development comprising two buildings and basement parking. The modification seeks approval to increase the floor to floor heights of the three residential levels within Buildings C and D from the approved 2.9 metres to 3.1 metres.

The applicant advised that the 2.9 metre floor to floor height approved in the original development application allowed for ceiling mounted light fixtures, non-ducted air- conditioning with bulk heads and acoustically treated floorboards rather than carpet. The applicant has also indicated that there is a demand for amended internal fitouts for the units and so the floor to floor height has been increased to 3.1 metres (with a clear 2.7 metre floor to ceiling height within the units) to allow for in-ceiling downlights, ducted air conditioning (within a false ceiling) and timber floors with acoustic treatment.

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PAGE 8 The modification increases the overall height of the buildings by 600mm with the two lift overruns exceeding the height control by 850mm (Building C) and 750mm (Building D). As a result, the maximum height is increased to 9.85 metres on the portion of the site with a 9 metre height limit and 16.75 metres on the portion of the site with a 16 metre height limit.

This represents a 9.4% and 4.7% variation respectively.

No change to unit numbers, apartment mix, parking or external finishes are proposed as part of the modification application.

ISSUES FOR CONSIDERATION 1. Section 4.55(1A) Modification

Under the provisions of Section 4.55(1A) of the Environmental Planning and Assessment Act, 1979, a consent authority may, in response to an application, modify consent if it is satisfied that the proposed modification is substantially the same development as originally approved and involves a minor environmental impact.

The proposed modification is considered to be substantially the same development and involves minor environmental impact. The application seeks to modify the floor to floor heights from 2.9 metres to 3.1 metres to allow for various services to be provided within the units. No additional floor space is proposed, nor is there any change to unit numbers or apartment mix.

Accordingly, the proposed modification complies with the provisions under Section 4.55(1A) of the Environmental Planning & Assessment Act, 1979.

2. Compliance with SEPP (Sydney Region Growth Centres) 2006 (i) Permissibility and Zone Objectives

The development site is zoned R1 General Residential, R2 Low Density Residential, R3 Medium Density and SP2 Local Road Widening. All works are contained within the R1 General Residential and R3 Medium Density zoned land.

The proposal is defined as a residential flat building development as follows:

“residential flat building” means a building containing three or more dwellings, but does not include an attached dwelling or multi dwelling housing.

Pursuant to the Land Use Table in Appendix 2 North Kellyville Precinct Plan, a residential flat building is permitted with consent within the R1 General Residential and R3 Medium Density zone.

The objectives of the zone are:

 To provide for the housing needs of the community.

 To provide a variety of housing types and densities.

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

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 To encourage medium density housing in locations of high amenity adjoining open space and accessible transport corridors.

 To support the well-being of the community, including educational, recreational, community, religious and other activities, and where appropriate, neighbourhood shops if there will be no adverse effect on the amenity of proposed or existing nearby residential development.

The proposed development is consistent with the above objectives in that it provides for the housing needs of the community through enabling a higher density form of development in an appropriate location situated near a future town centre and public open space areas.

(ii) Development Standards

The following addresses the relevant principal development standards of the SEPP:

CLAUSE REQUIRED PROVIDED COMPLIES

4.1AB Minimum lot sizes for residential

development in certain zones

Minimum 4,000m² 4,838m² Yes (no change

from that

previously approved) 4.1B Residential

density.

Min 12.5 dwg/ha – R1 General Residential zone

Min 20 dwg/ha - R3 Medium Density zone

Overall – 155 dwg/ha Yes (no change

from that

previously approved) 4.3 Height of

buildings.

9m – R1 General Residential zone

16m – R3 Medium Density zone

9.85m

16.75m

No, a 9.4%

variation is proposed.

No, a 4.7%

variation is proposed.

4.6 Exceptions to development standards.

Exceptions will be considered subject to appropriate assessment.

Variations proposed to height are addressed below.

N/A

a. Variation to Height

SEPP Sydney Region Growth Centres 2006 limits the height of development on the site to 9 metres for the R1 General Residential zoned portion and 16 metres for the R3 Medium Density zoned portion.

The modification seeks approval to increase the floor to floor heights of the three residential levels within Buildings C and D from the approved 2.9 metres to 3.1 metres. The modification increases the overall height of the buildings by 600mm with the two lift overruns exceeding the height control by 850mm (Building C) and 750mm (Building D). As a result, the maximum height is increased to 9.85 metres on the portion of the site with a 9 metre height limit and 16.75 metres on the portion of the site with a 16 metre height limit. This represents a 9.4% and 4.7% variation to each control respectively.

Attachment 3 shows the SEPP height limit and Attachment 6 shows the proposed heights.

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PAGE 10 The objectives of the SEPP are:

(a) to preserve the amenity of adjoining development in terms of solar access to dwellings, private open space and bulk and scale,

(b) to provide for a range of residential building heights in appropriate locations that provide a high quality urban form,

(c) to facilitate higher density neighbourhood and town centres while minimising impacts on adjacent residential areas,

(d) to provide appropriate height controls for commercial development, (e) to restrict the height of buildings within the curtilage of heritage items.

The proposed height of the buildings is considered satisfactory as the design of the buildings has ensured that the habitable floor space is contained below the maximum building height line.

The extent of the variation associated with the roof structure that encroaches is not easily identified from the street due to its minor nature and is therefore considered to have a negligible impact on the streetscape and character of the area.

The minor height increase of 600mm also does not unreasonably impact privacy or overshadowing of adjoining properties. Shadow diagrams have been submitted in this regard which show that overshadowing from the development is contained within the site and the adjoining roads with some impact to the property to the west which contains a child care centre (Refer to Attachment 7).

The proposed 600mm height increase is considered to be minor in nature and will not result in unreasonable amenity impacts on future residents of the development or those on adjoining properties.

It is also noted that no amendment is proposed to the approved floor space, number of units or apartment mix for the development.

The development is considered to be in keeping with the desired emerging character of the area and the proposed height is considered satisfactory and supportable in this instance.

Clause 4.6 – Not Applicable to a Section 4.55

It is noted that case law demonstrates that for a Section 4.55 application, a Clause 4.6 Exceptions to Development Standards is not required.

The relevant judgments say that Section 4.55 is a ‘free-standing provision’, meaning that “a modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application”. A Section 4.55 consent authorises the development to be approved notwithstanding any breach of development standards. Section 4.55 is a broad power to approve, subject to its own stand-alone tests (such as the “substantially the same” test, and a requirement to consider all relevant s.4.15 matters). Section 4.55 does not rely upon having any SEPP 1 objection or Clause 4.6 variation in order to enliven that power to approve.

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PAGE 11 The Courts have stated that SEPP 1 cannot be used at Section 4.55 stage, as SEPP 1 expressly only applies ‘where a development application is made’, not when a modification application is made. The same would apply to Clause 4.6 variations, which expressly only regulates whether ‘development consent’ may be granted, not whether an existing consent may be modified.

As such, a Clause 4.6 variation has no application to Section 4.55 modifications. However the variation as proposed has still been reviewed in relation to recent judgments of the Land and Environment Court. It is considered that the variation can be supported as:

 The proposed variation results in a development that is consistent with the objectives of Clause 4.3 Height of Building and the R3 Medium Density Residential zone objectives;

 Compliance with the standard is unnecessary or unreasonable in this instance; and

 The proposal results in a better planning outcome as the increased height facilitates increased floor to ceiling heights to increase the amenity of future residents.

3. Draft Amendment to State Environmental Planning Policy (Sydney Region Growth Centres) 2006

In May 2017 the Department of Planning released the draft North West Land Use and Infrastructure Implementation Plan. In addition to a new growth centres structure plan and an infrastructure schedule the package proposes a draft amendment to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 and associated draft changes to the DCP. The proposed changes include the introduction of density bands (rather than only minimum density) and reinstatement of minimum lot sizes for all residential areas (which were removed as part of the 2014 Housing Diversity changes).

The draft identifies the R1 General Residential and R3 Medium Density zoned site as having a density band of 15-35 dwg/ha and 20-100 dwg/ha respectively. The proposed modification does not result in any additional units and does not seek to alter 155 dwellings per hectare approved as part of the original Development Application.

The Explanation of Intended Effect states that “a consent authority is not required to apply the provisions of the Explanation of Intended Effects to a DA lodged before May 22 2017”.

The original Development Application was lodged on 12 May 2016 which meant that the original application was not subject to the proposed density band requirements.

4. Compliance with State Environmental Planning Policy (SEPP) No. 65 – Design Quality of Residential Flat Buildings

The proposal has been reviewed under the provisions of SEPP 65 and the Apartment Design Guideline (ADG). The ADG contains a provision that states that a 2.7 metre floor to ceiling height is preferred to help achieve good daylight access and natural ventilation. The proposed development satisfies this requirement. The amendments are minor and the proposal remains consistent with the provisions of the SEPP and DG.

5. Compliance with The North Kellyville Development Control Plan

An assessment of the proposed modifications against the relevant controls under The North Kellyville DCP and the modifications are considered minor, satisfactory and will have no adverse impacts on the environmental amenity of the locality.

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PAGE 12 6. Issues Raised in Submission

The proposal was notified for 14 days and one submission was received. The issue raised in the submission is summarised below.

ISSUE/OBJECTION COMMENT

A five storey building may block the natural sunlight in the backyard.

The proposed modification seeks to increase the overall height of the buildings by 600mm with the two lift overruns exceeding the height control by 850mm (Building C) and 675mm (Building D).

The height increase is considered to be reasonable given the scale of the buildings and the minor nature of the variation.

Shadow diagrams have been submitted with the application which demonstrate that no overshadowing of the properties to the north of the site occurs, which is where the objectors property is located (refer to Attachment 7).

It is also noted that the development site (Proposed lot 13) does not directly adjoin the objector’s property.

CONCLUSION

The Development Application has been assessed against the heads of consideration under Section 4.15 and 4.55 of the Environmental Planning and Assessment Act, 1979, SEPP Sydney Regional Growth Centres 2006 and North Kellyville Development Control Plan and is considered satisfactory.

The proposal is considered to be substantially the same development as originally approved and is considered satisfactory with respect to Section 4.55(1A) of the Environmental Planning and Assessment Act, 1979.

The issue raised in the submission has been addressed in the report and does 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.

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PAGE 13 RECOMMENDATION

The Section 4.55(1A) application be approved subject to the following:

1. Condition No. 1 to be deleted and replaced as follows:

1. Development in Accordance with Submitted Plans

The development being carried out in accordance with the following approved plans and details, stamped and returned with this consent except where amended by other conditions of consent.

REFERENCED PLANS AND DOCUMENTS – Development Consent 1667/2016/HB

DRAWING NO. DESCRIPTION ISSUE DATE

- Cover Page G -

DA100 Site Analysis G 17/07/2017

DA200 Site Plan G 17/07/2017

DA201 Lower Basement Plan G 17/07/2017

DA202 Upper Basement Plan G 17/07/2017

DA203 Ground Floor Plan F 05/07/2017

DA204 Level 1 & 2 Plan G 17/07/2017

DA205 Level 3 Plan G 17/07/2017

DA206 Level 4 Plan G 17/07/2017

DA207 Roof Plan G 17/07/2017

DA300 Elevations G 17/07/2017

DA301 Sections I/II G 17/07/2017

DA302 Sections II/II G 17/07/2017

DA400 Driveway and Fence Details G 17/07/2017

DA700 Erosion and Sediment Control Plan G 17/07/2017

04.17(16)/131 ‘A’ DA Landscape Plan one/two May 2017

04.17(16)/132 ‘A’ Materials Palette two/two May 2017

- External Materials and Finishes - -

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PAGE 14 REFERENCED PLANS AND DOCUMENTS - AMENDED APPROVED PLANS 1667/2016/HB/B

- Cover Page A -

S96:200 Site Plan A 17/05/2017

S96:201 Lower Basement Plan A 17/05/2017

S96:202 Upper Basement Plan A 17/05/2017

S96:203 Ground Floor Plan A 17/05/2017

S96:204 Level 1 & 2 Plan A 17/05/2017

S96:205 Level 3 Plan A 17/05/2017

S96:206 Level 4 Plan A 17/05/2017

S96:207 Roof Plan A 17/05/2017

S96:300 Elevations (Building C & D) A 17/05/2017 S96:301 Sections I/II (Building C & D) A 17/05/2017 S96:302 Sections II/II (Building C & D) A 17/05/2017

S96:400 Driveway and Fence Details A 17/05/2017

REFERENCED PLANS AND DOCUMENTS - AMENDED APPROVED PLANS 1667/2016/HB/C

- Cover Page A -

S4.55:200 Site Plan A 24/05/2018

S4.55:201 Lower Basement Plan A 24/05/2018

S4.55:202 Upper Basement Plan A 24/05/2018

S4.55:203 Ground Floor Plan (Building C & D) A 24/05/2018 S4.55:204 Level 1 & 2 Plan (Building C & D) A 24/05/2018 S4.55:205 Level 3 Plan (Building C & D) A 24/05/2018 S4.55:206 Level 4 Plan (Building C & D) A 24/05/2018

S4.55:207 Roof Plan A 24/05/2018

S4.55:208 Deep Soil Calculation A 24/05/2018

S4.55:300 Elevations (Building C & D) A 24/05/2018 S4.55:301 Sections 1 of 2 (Building C & D) A 24/05/2018 S4.55:302 Sections 2 of 2 (Building C & D) A 24/05/2018

S4.55:400 Driveway and Fence Details A 24/05/2018

No work (including excavation, land fill or earth reshaping) shall be undertaken prior to the issue of the Construction Certificate, where a Construction Certificate is required.

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PAGE 15 ATTACHMENTS

1. Locality Plan 2. Aerial Photograph 3. SEPP Height Limit 4. Proposed Site Plan 5. Approved Elevations 6. Proposed Elevations 7. Shadow Diagrams

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PAGE 16 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 17 ATTACHMENT 2 – AERIAL PHOTOGRAPH

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PAGE 18 ATTACHMENT 3 – SEPP HEIGHT LIMIT

9 metre height limit 16 metre height limit

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PAGE 19 ATTACHMENT 4 – PROPOSED SITE PLAN

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PAGE 20 ATTACHMENT 5 – APPROVED ELEVATIONS

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PAGE 23 ATTACHMENT 6 – PROPOSED ELEVATIONS

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PAGE 26 ATTACHMENT 7 – SHADOW DIAGRAMS

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