ASSESSMENT UNIT

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DEVELOPMENT

ASSESSMENT UNIT

Tuesday, 12 March 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 12 MARCH, 2019

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 DA 182/2017/HA/A - A SECTION 4.56 MODIFICATION APPLICATION TO AN APPROVED SHOP TOP HOUSING DEVELOPMENT - LOT 1 DP 706726 AND LOT 6 DP 20881, NO. 930 OLD NORTHERN ROAD AND NO. 4 POST OFFICE ROAD GLENORIE

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ITEM-3 DA 277/201/HB/A - SECTION 4.55(1A) MODIFICATION TO AN APPROVED MULTI DWELLING HOUSING DEVELOPMENT - 44-46 OLD CASTLE HILL ROAD CASTLE HILL

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ITEM-4 DA 2229/2018/LD - DEMOLITION OF THE EXISTING DWELLING AND CONSTRUCTION OF A THREE STOREY DWELLING AND RETAINING WALL - 4 SAVOY COURT WEST PENNANT HILLS.

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PAGE 3 MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 19 FEBRUARY 2019

PRESENT

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

Andrew Brooks Manager - Subdivision & Development Certification Angelo Berios Manager - Environmental & Health

Craig Woods Manager – Regulatory Services Nicholas Carlton Acting Manager – Forward Planning Kristine McKenzie Principal Executive Planner

APOLOGIES Nil

TIME OF COMMENCEMENT 9.00am

TIME OF COMPLETION 9.09am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 12 February 2019 be adopted with the correction that Item 3 – DA 687/2017/ZD – Subdivision Creating Six Community Title (Neighbourhood) Residential Lots and One Association Lot Including New Road, Demolition and Contamination Remediation – Lot 4 DP 11754, 148 Foxall Road, North Kellyville – was withdrawn by the applicant.

ITEM-2 75/2019/AEU - BUILDING CERTIFICATE APPLICATION FOR AN UNAUTHORISED PERGOLA - LOT 107 DP 233467, 2 PATRINE PLACE, BELLA VISTA

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 Building Information Certificate application be approved subject to the pergola downpipe being connected to the existing surface water drainage outlet.

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PAGE 4 REASONS FOR THE DECISION

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

 The Hills LEP 2012 – Satisfactory.

 SEPP Growth Centres – Satisfactory.

HOW THE COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION

The development application was notified and one (1) submission was received, the issues raised were considered in the report.

NB: A further submission from the same resident was tabled and considered at the meeting.

END MINUTES

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PAGE 5 ITEM-2 DA 182/2017/HA/A - A SECTION 4.56 MODIFICATION APPLICATION TO AN APPROVED SHOP TOP HOUSING DEVELOPMENT - LOT 1 DP 706726 AND LOT 6 DP 20881, NO. 930 OLD NORTHERN ROAD AND NO. 4 POST OFFICE ROAD GLENORIE

THEME: Valuing our Surroundings

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

STRATEGY:

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

MEETING DATE: 12 MARCH 2019

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: DEVELOPMENT ASSESSMENT CO-ORDINATOR

ROBERT BUCKHAM

RESPONSIBLE OFFICER: MANAGER – DEVELOPMENT ASSESSMENT PAUL OSBORNE

Applicant Tazcol Pty Ltd

Owner I, P, C and C Pirina

Notification 14 days

Number Advised 112

Number of Submissions 4 (2 Objections, 2 In Support) Zoning B1 Neighbourhood Centre

Site Area 6,395m²

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

SEPP No. 65 – Design Quality of Residential Apartment Development

SEPP Infrastructure 2008

SEPP No 55 — Remediation of Land The Hills Local Environmental Plan 2012 The Hills Development Control Plan 2012 Political Donation None Disclosed

Reason for Referral to DAU Submissions received.

Recommendation Approval subject to conditions

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PAGE 6 EXECUTIVE SUMMARY

Development Application 182/2017/HA for the staged development of a shop-top housing development was approved by the Land and Environment Court on 14 June 2017 (Proceedings 382279 of 2016). The approved works include partial demolition of the existing centre and at-grade carpark and construction of 20 residential units over ground floor and first floor retail and commercial space. The development also includes two levels of basement parking.

The proposed Modification Application seeks approval for a number of design changes that the applicant states primarily relate to a rationalisation of the design. The modifications include minor internal and external reconfiguration of the basement carpark, residential units, retail and commercial spaces and relocation of the proposed gym from the first floor fronting Old Northern Road to an at ground level location adjacent to Post Office Road. The number of residential units remains at 20, however an additional bedroom is provided by virtue of a 1 bedroom unit being replaced by a 2 bedroom unit. The proposal also includes the redesign of the basement levels and increases parking on site from 199 spaces to 221 spaces.

Amendments relating to shop-top housing in Council’s Local Environmental Plan were gazetted after the determination of this application by the Court. However the amendments were draft and consideration was given to them by the Court. These provisions primarily relate to height and floor space ratio and are addressed in this report. The subject application does not seek to exceed the height and floor space mix beyond what was granted by the Court.

A Clause 4.6 variation request to vary the LEP standards is not required as the application is for modification of a development consent ie: a Clause 4.6 variation request is only required for the granting of a development consent, however an equivalent assessment has been undertaken for the subject modification application.

The scale and type of development remains consistent with that established as an acceptable planning outcome from the Court and also remains substantially the same development.

The proposal was notified to adjoining property owners and those who made a submission to the original application. Four submissions were received. Two submissions were received in support and two submissions were received which relate to the character of the development and building height. These matters do not warrant further modification or refusal of this application.

The proposed modification is recommended for approval subject to conditions.

BACKGROUND

Development Application 182/2017/HA for the staged redevelopment of the existing shopping centre for a shop-top housing development was approved by the Land and Environment Court on 14 June 2017 (Proceedings 382279 of 2016). The approved works include partial demolition of the existing centre and at-grade carpark and the construction of 20 residential units over ground floor and first floor retail and commercial space. The development also included two levels of basement parking.

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PAGE 7 An amendment to LEP 2012 was made on 16 March 2018 which included additional controls applying to shop top housing and residential flat buildings as part of mixed use development (Clause 4.3A). The relevant matters of consideration pursuant Clause 4.3A are as follows:

(1) The objectives of this clause are as follows:

a) to reinforce the Council’s established centres hierarchy and ensure centres are appropriate in scale and design for their location,

b) to ensure that shop top housing and residential flat buildings as part of mixed use developments are compatible with the prevailing character and amenity of surrounding land.

(2) Development consent must not be granted to development on land identified as “Area C”

on the Key Sites Map for the purposes of shop top housing if:

a) the height of the building exceeds 7 metres, or

b) less than 50% of the total floor area of the building will be used for non-residential purposes.

Although the amendment to LEP 2012 came after determination of the parent application, the matter was still considered.

The subject application was lodged on 14 August 2018. Amended information was sought on 30 October 2018 in relation to engineering, landscaping fire safety and acoustic matters.

Additional information was submitted on 7 December 2018.

PROPOSAL

The Section 4.56 Modification Application seeks to modify an approved shop-top housing development. The modifications sought as outlined by the applicant are generally as follows:

• Modify staging to allow for efficiency in project delivery.

• Modify basement cut and design to maximise car parking and design opportunities.

• Delete Level 2 external elevated bridge and internalise residential foyers, corridors and access arrangements. Reconfiguration modifies some residential unit designs and layouts.

• Delete Unit 102 (1-bedroom) on Level 1 and add Unit 210 (2-bedroom) on Level 2.

Residential unit numbers remain as approved (20 units). Total bedroom numbers increase from the approved 37 to a proposed 38.

• Minor reconfiguration of commercial / retail floor areas to facilitate proposed modifications and future lease requirements.

• Relocate approved fitness centre from tenancy 201 (Level 1) to a ground floor tenancy.

• Modify tenancy 201 floor area and entrance arrangements. No use associated with tenancy 201 under this modification.

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• Minor alterations to external building façade in response to internal design and floor reconfigurations.

• Increase car parking on-site to 221 spaces.

• Re-reference floor plans to ensure consistency with impending subdivision DA.

• Delete and modify superfluous DA conditions relating to the original proposal.

It is noted that the architectural plans include some minor amendments to the development in Stage 1 however these amendments have not been specifically requested under this modification application. It is understood that these changes are to be incorporated in a future Construction Certificate application.

Staging

The modification to staging is outlined in the table below:

Stage Approved Staging Modified Staging

Stage 1 Retention of the existing

commercial buildings, partial demolition of existing buildings and construction of an at grade parking area over part basement parking.

During Stage 1 Construction:

69 commercial car parking spaces available.

Retention of commercial buildings fronting Old Northern Road, partial demolition of commercial building fronting Post Office Road and partial demolition of at-grade car park.

Construction of retail / commercial floor area, including erection of a fitness centre on ground floor, two levels of above ground residential accommodation, containing 10 units (Units 106-111 & 205-209), and basement car with a total of 93 spaces provided.

26 at-grade car parking spaces available.

Stage 2 Retention of the existing

commercial buildings, construction of two storeys of residential accommodation containing 20 apartments (3

× 1 bedroom, 17 × 2 bedroom) above ground floor retail commercial floor space, construction of remainder of 2 levels of basement car parking with a total of 165 car parking spaces provided within the basement and at

Demolition of commercial premises fronting Old Northern Road (retention of the existing commercial building located at the corner of Old Northern Road and Post Office Road) and remaining at-grade car park.

Redevelopment of the commercial premises fronting Old Northern Road, including retail / commercial floor area (Ground and Level

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PAGE 9 grade and construction of

additional commercial space on the ground floor.

11 car parking spaces available.

1) and residential common open space constructed on roof top, construction of two levels of above ground residential accommodation containing 10 Units (Units 101, 102-105, 201-204 &

210) and car parking (at- grade and basement), with a total of 128 spaces provided.

Stage 2 will be constructed and delivered to connect into Stage 1.

93 car parking spaces available.

Stage 3 Redevelopment of the

commercial premises fronting Old Northern Road (retention of the existing commercial building located at the corner of Old Northern Road and Post Office Road), common open space constructed on roof top of commercial building, erection of a fitness centre on the first floor of the development and construction of 8 additional at grade spaces.

Deleted

Final Car Parking The development (Condition 6) is required to be provided with 199 off-street car parking spaces comprising:

• 41 resident spaces;

• 8 residential visitor spaces;

• 1 carwash bay;

• 149 retail / commercial spaces.

221 off-street car parking spaces (18 at-grade and 203 in basement) comprising:

• 39 residential spaces;

• 8 residential visitor spaces;

• 1 carwash bay;

• 173 non-residential spaces;

Basement Levels

The original proposal includes two basement levels, delivered in three stages. The modification, as proposed, seeks to limit excavation outside the approved building footprint, and improve the carpark design and optimise car parking provision in over two stages.

The modification increases on-site car parking numbers from 199 spaces to 221 spaces.

Increased car parking will accommodate the additional commercial / retail floor space as proposed under this modification.

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PAGE 10 Residential Units

The residential module of Stage 2, as proposed under this application, will be reconfigured to allow for foyers, units and common open spaces to be accessed internally. The reconfiguration results in bedroom mix, access arrangements and general layouts to be amended as follows:

 Deletion of one (1) lift.

 Deletion of external elevated foot bridge.

 Deletion of Unit 102 (1-bedroom unit) on Level 1 and the inclusion of Unit 210 (2- bedroom) on Level 2.

 Total unit provision remains unchanged (20 units). Unit 203 be modified from a 2- bedroom unit to a 1-bedroom. Unit 201 be modified from a 1-bedroom unit to a 2- bedroom.

 Residential unit mix modified from approved 3 × 1-bedroom and 17 × 2-bedroom mix to the proposed 2 × 1-bedroom and 18 × 2-bedrooms. Bedroom supply increased from 37 to a proposed 38

Commercial Floor Space

The non-residential floor area comprising retail and commercial floor space including existing café and shops to be retained totals 2,876m². The approved development capped retail floor area at 2,395m² to ensure car parking compliance (2,395m² of retail GFA and 481m² of commercial premises GFA).

The modification, as proposed, includes minor adjustments and reconfigurations to the ground floor non-residential layouts and footprints, as well as an enlargement to tenancy 201 (Level 1) to meet the future tenant requirements. The modifications have also resulted in the net non-residential floor area being increased by 357m². The fitness centre will now occupy 545m² (instead of 481m²) of floor area (unit 201 was approved as a fitness centre with car parking requirements being 1 space per 25m²), thus reducing the car parking demand by 2.6 spaces. A total of 17 additional car parking spaces are required, to what was approved, to accommodate the non-residential modifications. A total of 22 additional spaces are provided overall.

As noted above, Stage 3 of DA Consent 182/2017/HA included the erection of a 350m² fitness centre plus office (107m²) and administration space (24m²), on Level 1, fronting Old Northern Road. The fitness centre is proposed to be relocated to the ground floor (545m²), within Stage 1. The relocation of the fitness centre is considered beneficial for overall amenity given sensitive residential living uses, shared areas and potential noise conflicts are now separated.

The non-residential total floor area, under this modification, represents over 58% of the total floor area.

External Modifications

Modifications external of the building are generally limited to window and balcony rearrangements in response to floor and tenancy reconfigurations. Apart from these minor adjustments, the application includes the deletion of the Level 2 external foot bridge, privacy screening on eastern elevation of Unit 210 (Level 2) and the addition of a stairwell from ground floor to roof top common open space fronting the internal courtyard.

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PAGE 11 The height, bulk and scale of the redevelopment, as established by the court, remains consistent with that established under the Determination.

Conditions of Consent

As a result of the modifications it is proposed to amend the following conditions of development consent:

a. Amend Condition 1 Approved Plans

The approved plans are referenced in condition No.1. It is proposed to modify the conditions to reflect the current submitted plans.

b. Amend Condition 6 Provision of Parking Spaces

The condition is proposed to be amended to address the increase in car parking spaces being provided on-site from 199 to 221.

c. Amend Condition 42 Acoustic Requirements

The condition is to be amended to address an addendum to the approved acoustic report specifically given the relocation of the gym to the ground floor.

d. Amend Condition 59 Section 94A Contribution

Contribution amount to be updated to reflect the revised cost of development, however it is noted that the revised cost of works has not changed.

e. Amend Condition 62 Protection of Internal Noise Levels (Residential Unit Development)

f. Amend Condition 121 Compliance with BASIX Certificate

The condition is to be amended to reflect the updated BASIX Certificate g. Amend Condition 127 Acoustic Compliance

h. Amend Condition 149 Acoustic Compliance Report

i. Amend Condition 161 Creation of Restrictions / Positive Covenants

A restriction on retail floor space is proposed to be deleted given sufficient car parking on-site for retail uses. The restriction reads:

“Restriction – Retail Floor Space

(b) The subject site must be burdened with a restriction permitting no more than 2,395m² of retail floor space (to satisfy the car parking requirements of the Hills Development Control Plan 2012).”

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PAGE 12 ISSUES FOR CONSIDERATION

1. Section 4.56 of the Environmental Planning and Assessment Act 1979

Under Section 4.56, previously Section 96AA, of the Environmental Planning and Assessment Act, 1979, a consent authority may, in response to an application previously granted by the Land and Environment Court, modify a consent if it is satisfied that the proposed modification is substantially the same development as originally approved.

The development to be modified remains a mixed-use commercial and residential development comprising commercial / retail floor area, a fitness centre and upper level residential dwellings with associated basement and at-grade car parking. The height, bulk and scale of the development remains consistent with that approved.

Accordingly, the proposed modification complies with the provisions under Section 4.56 of the Environmental Planning & Assessment Act, 1979.

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

The land is zoned B1 Neighbourhood Centre. The proposed development remains best defined as a shop-top housing development.

shop top housing means one or more dwellings located above ground floor retail premises or business premises.

(iii) The Hills LEP 2012 - Development Standards

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

CLAUSE REQUIRED PROVIDED COMPLIES

4.3 - Height of Buildings

9 metres 9 metres Yes

4.3A – Additional controls applying to shop top housing and residential flat buildings as part of

mixed use

development

Development consent must not be granted to development on land identified as “Area C”

on the Key Sites Map for the purposes of shop top housing if:

a) the height of the building exceeds 7 metres, or

b) less than 50% of the total floor area of the building will be used for non- residential

purposes.

9 metres

42% of the total floor area of the building will be used for residential purposes

No, in relation to height, however the proposal remains consistent with the height, bulk and scale approved by the Court

4.4 – Floor Space Ratio

1:1 0.86:1 Yes

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PAGE 13 Clause 4.3 Height of Buildings restricts the maximum height of buildings on the subject site to 9.0m. An amendment to LEP 2012 was made on 16 March 2018 which included additional controls applying to shop top housing and residential flat buildings as part of mixed use development (Clause 4.3A). The relevant matters of consideration pursuant Clause 4.3A are as follows:

(1) The objectives of this clause are as follows:

c) to reinforce the Council’s established centres hierarchy and ensure centres are appropriate in scale and design for their location,

d) to ensure that shop top housing and residential flat buildings as part of mixed use developments are compatible with the prevailing character and amenity of surrounding land.

(2) Development consent must not be granted to development on land identified as “Area C”

on the Key Sites Map for the purposes of shop top housing if:

c) the height of the building exceeds 7 metres, or

d) less than 50% of the total floor area of the building will be used for non-residential purposes.

Although the amendment to LEP 2012 came after determination of the parent application, the matter was still considered. The Court concluded that the 9.0m height limit could be supported, notwithstanding the impending 7.0m height limit restriction. The modification as proposed under this 4.56 application maintains the 9.0m height limit established by the Court. There is some minor re-massing of the development however the development remains consistent with development as approved specifically the maximum overall height of the building.

Although this application breaches the recent amendment to LEP 2012, in terms of height for shop top housing, under Clause 4.3A, the application remains compliant with overall height controls pursuant Clause 4.3 and consistent with what the Court considered appropriate. In addition, the modified development, in terms of shadow impacts, setbacks, overlooking and amenity is maintained, if not generally improved under this modification, and therefore considered consistent with Clause 4.3A objectives.

The non-residential floor use component of the development represents over 58% of the total floor area on-site. The modification meets the 50% total floor area requirement of Clause 4.3A.

Clause 4.4 limits the maximum floor space ratio (FSR) of development on the subject site to a 1:1 ratio. The development, as proposed under this application, results in a maximum FSR of 0.86:1.

The modification is considered compliant with the building, social and environmental objectives of LEP 2012 as well as being consistent with character and amenity expectations.

Clause 4.6 – Not Applicable to a Section 4.56

It is noted that caselaw demonstrates that for a Section 4.55 and 4.56 application, a Clause 4.6 Exceptions to Development Standards is not required.

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PAGE 14 The relevant judgments originating with North Sydney Council v Michael Standley and Associates Pty Ltd 1998 say that Section 4.56 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 4.56 modification authorises the development to be approved notwithstanding any breach of development standards. Section 4.56 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 4.56 does not rely upon having any SEPP 1 objection or Clause 4.6 variation in order to enliven that power to approve.

The Courts have stated that SEPP 1 cannot be used at Section 4.56 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 4.56 modifications.

3. Compliance with The Hills Development Control Plan

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

 Part B Section 5 – Residential Flat Building

 Part B Section 6 – Business

 Part B Section 8 – Shop Top Housing and Mixed Use Development

 Part C Section 1 – Parking

 Part C Section 3 - Landscaping

The sections of the DCP relating to residential flat buildings and shop-top housing were only draft at the time when the application was determined by the Court, however they have now been considered where relevant to the modification. The proposed development achieves compliance with the relevant requirements of the above Development Controls with the exception of 75% of common open space to be provided at ground level and unit size requirements. Given the minor changes to the proposal it is unreasonable to require compliance in this regard.

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

The proposal has been reviewed under the provisions of SEPP 65 and the Apartment Design Guideline. The amendments are minor and the proposal remains consistent with the provisions of the SEPP and Apartment Design Guide.

5. Issues Raised in Submissions

The proposal was notified to adjoining property owners and those who made a submission to the original application. Four submissions were received. Two submissions were received in support and two submissions were received which relate to the character of the development and building height. The issues raised in the submissions are summarised below.

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ISSUE/OBJECTION COMMENT

The building should be restricted to 9 metres in height as per the Land and Environment Court Decision.

There is no change to the overall height of the building.

The proposal is out of character for the locality.

The amended proposal remains consistent with the built form approved by the Court.

6. Internal Referrals

The application was referred to following sections of Council:

 Engineering

 Environmental Health

 Landscape

No objection was raised to the proposal (as amended) subject to conditions. Relevant comments have also provided below:

CONCLUSION

The Development Application has been assessed against the relevant heads of consideration under Section 4.15 and 4.56 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 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

Pursuant to the provisions of Section 4.56 of the Environmental Planning and Assessment Act 1979, the modification be approved as follows:-

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PAGE 16 Conditions Nos. 1, 6, 42, 62, 121, 127, 149 and 161 be deleted and replaced as follows:

1. Development in accordance with submitted plans

The development being carried out in accordance with the approved plans and details associated with development application 182/2017/HA (Court Orders 2016/382279) and as further modified by the following plans approved with Development Consent No.

182/2017/HA/A, except where amended by other conditions of consent.

REFERENCED PLANS

PLAN NO. TITLE DRAWN BY SHEET DATE

S9653b

Proposed Stage 1 Layout Plan Ground Floor

Brooks Projects

Architects - 10/05/2018

S960e Stage 2 Basement 2 Plan

Brooks Projects

S961e Stage 2 Basement 1 Plan

Brooks Projects

S962h Ground Floor Plan Brooks Projects

S963g Level 1 Plan Brooks Projects

S964f Level 2 Plan Brooks Projects

S9613e Elevations Brooks Projects

S9614c Elevations Brooks Projects

16086 Landscape Concept Plan

Vision Dynamics

1/3 30/11/2018 16086 Landscape Concept

Plan

Vision Dynamics

2/3 30/11/2018 16086 Landscape Concept

Plan

Vision Dynamics

3/3 30/11/2018 6. Provision of Parking Spaces

The development is required to be provided with 221 off-street car parking spaces comprising:

 39 resident spaces;

 8 residential visitor spaces;

 1 carwash bay;

 173 retail / commercial spaces.

These car parking spaces shall be available for off street parking at all times.

42. Acoustic requirements

The following acoustic requirements are to be implemented:

a) Living room sliding doors and sliding windows are to have a Rw 26 rating (6mm clear glass in acoustically sealed frame or similar) and bedroom sliding doors and sliding windows are to have a Rw rating of 28 (6.38mm laminated glass in acoustically sealed frame or similar);

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PAGE 17 b) The proposed acoustic wall adjacent 926 shall be constructed of 2100mm high Hebel

Sound barrier wall panels (minimum 100mm thick);

c) The gymnasium shall have the following:

i. Floor - acoustic underlay minimum 50mm thick and with a density of at least 600kg/m²;

ii. Structural columns - the columns within the gymnasium will need to be isolated from the equipment and flooring within the gymnasium to ensure structure-borne noise and vibration will not travel through the structure;

iii. Walls - acoustic treatment of finished walls to ensure 42 dB(A) in residential units and 65 dB(A) in commercial units;

iv. The use of battle ropes and other activities such as sprint training is to be limited to day and evening hours. For the purpose acoustic conditions in this consent, Day, Evening and Night hours are defined as:

 Day 7am - 6pm, Monday - Saturday;

8am - 6pm - Sundays and public holidays;

 Evening 6pm - 10pm;

 Night the remaining hours.

v. Leg press, Smith machine and power and squat racks are to have rubber isolation mounts where metal on metal contact exists.

vi. Speakers for music are to have a maximum volume set a level that cannot exceed a sound pressure level of 85 dB(A) at 1 metre from the speaker.

vii. Speakers are to be mounted with isolation mounts so that they are structurally separated from the building.

viii. Rubber isolation pads are to be installed underneath all treadmills and cross trainers.

ix. Amplified sound equipment (such as televisions and stereo systems) are to be controlled by the gymnasium staff only. Noise levels are to be set so as not to cause offensive noise in residential and commercial premises.

d) The carparking areas are to be concreted with a surface additive to reduce noise.

The selection of the additive is to be reviewed by a qualified acoustic consultant before installation.

62. Protection of Internal Noise Levels

Mechanical plant operation at night shall be selected to not cumulatively exceed a LAeq, 15 minutes 42 dB(A).

Specifications of commercial plant operating after 7am and before 10pm must not exceed a LAeq, 15 minutes 48 dB(A).

Specifications of mechanical plant for residential units shall not exceed a sound pressure level of 55dB(A) at 1 metre from the plant.

Roller doors/gates for the carpark shall not exceed a sound pressure level of 65 dB(A) at 1 metre from the doors/gates.

Automatic doors and motors shall be isolated from the wall and any part of the ceiling using vibration isolators

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PAGE 18 121. 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.

929635M are to be complied with. Any subsequent version of this BASIX Certificate will supersede all previous versions of the certificate.

A Section 4.55 Application may be required should the subsequent version of this BASIX Certificate necessitate design changes to the development. However, a 4.55 Application will be required for a BASIX Certificate with a new number.

127. Acoustic Compliance

An Acoustic Consultant is to inspect all noise suppressant components during construction to ensure compliance with the requirements of this consent.

149 Acoustic Compliance Report

Certification by an acoustic consultant that all noise suppressant components, as determined prior to the issuing of the construction certificate have been installed is to be provided to Council prior to the issue of any occupation certificate. This includes the automatic retractable bollards within the loading dock.

161. Creation of Restrictions / Positive Covenants

Before an Occupation Certificate is issued the following restrictions/ positive covenants must be registered on the title of the subject site via a request document, Section 88B instrument associated with a plan or the like. Council’s standard recitals must be used.

Restriction – Bedroom Numbers

(a) The subject site must be burdened with a restriction using the “bedroom numbers” terms included in the standard recitals.

Restriction/ Positive Covenant – Onsite Stormwater Detention

(b) The subject site must be burdened with a restriction and a positive covenant using the

“onsite stormwater detention systems” terms included in the standard recitals.

Restriction/ Positive Covenant – Water Sensitive Urban Design

(c) The subject site must be burdened with a positive covenant that refers to the WSUD elements referred to earlier in this consent using the “water sensitive urban design elements”

terms included in the standard recitals.

Positive Covenant – Stormwater Pump

(d) The subject site must be burdened with a restriction and a positive using the “basement stormwater pump system” terms included in the standard recitals.

Positive Covenant – Onsite Waste Collection

(e) The subject site must be burdened with a positive covenant relating to onsite waste collection using the “onsite waste collection” terms included in the standard recitals.

ATTACHMENTS 1. Locality Plan 2. Aerial Photograph

3. Court Approved Floor Plans 4. Proposed Floor Plans

5. Approved and Proposed Elevations 6. Court Orders

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PAGE 19 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 20 ATTACHMENT 2 – AERIAL PHOTOGRAPH

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PAGE 21 ATTACHMENT 3 – COURT APPROVED FLOOR PLANS

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PAGE 32 ATTACHMENT 4 – PROPOSED S4.56 FLOOR PLANS

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PAGE 38 ATTACHMENT 5 – ELEVATIONS

North Elevation - Court Approved

North Elevation - S4.56 Modification

Court Approved

S4.56 Modification

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PAGE 39 ATTACHMENT 6 – COURT ORDERS

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PAGE 65 ITEM-3 DA 277/201/HB/A - SECTION 4.55(1A) MODIFICATION TO AN APPROVED MULTI DWELLING HOUSING DEVELOPMENT - 44-46 OLD CASTLE HILL ROAD CASTLE HILL

THEME: Valuing our Surroundings

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

STRATEGY:

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

MEETING DATE: 12 MARCH 2019

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER

HUGH HALLIWELL

RESPONSIBLE OFFICER: PAUL OSBORNE

MANAGER DEVELOPMENT ASSESSMENT

Applicant Huasheng Austra Pty Ltd

Owner Huasheng Austra Pty Ltd

Notification 21 days

Number Advised Eighteen

Number of Submissions Three (including one submission on behalf of two properties) Zoning R3 Medium Density Residential

Site Area 2,205.5m²

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

Section 4.15 (EP&A Act) – Satisfactory.

SEPP No. 55 – Remediation of Land – Satisfactory.

LEP 2012 – Satisfactory.

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

DCP Part C Section 3 – Landscaping – Variation, see report.

Political Donation None Disclosed

Reason for Referral to DAU 1. Variation to DCP 2. Submissions received.

Recommendation Approval subject to conditions.

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PAGE 66 EXECUTIVE SUMMARY

The Section 4.55(1A) Modification Application seeks to modify an approved multi dwelling housing development comprising seven units with minor external alterations to the front facades and rear private open space areas of the units.

The proposed works under this modification have been substantially completed on-site without prior consent. In this regard, the following works will need to be addressed through a separate Building Information Certificate Application:

 Various internal changes to Townhouses 1, 2, 3, 4 and 5;

 Various external changes to window and external opening placements and dimensions; and

 Modifications to external finished ground levels, driveway levels, internal finished floor levels and building heights.

The proposal complies with DCP 2012 Part B Section 4 – Multi Dwelling Housing with exception of a further variation to landscaped area. The DCP requires a minimum landscaped area of 50% of the total lot size. The proposed landscaped area is 42%

(933.26m²) of the total lot size. The proposed variation to landscaped area is considered reasonable and will not result in unacceptable impacts to future occupants of the development or residents on adjoining sites.

The application was notified for 21 days and submissions from three properties were received (including one submission being on behalf of two properties). The issues raised primarily relate to visual and acoustic privacy impacts, cut and fill and tree removal. These concerns are addressed in the report and do not warrant refusal of the application.

The proposed modification is recommended for approval, subject to conditions of consent requiring the submission of a Building Information Certificate for the unauthorised works.

BACKGROUND

Development Application 277/2015/HB approved the demolition of existing structures and the construction of a multi dwelling housing development comprising of seven dwellings with associated at-grade car parking for 17 vehicles. The approved multi dwelling housing development comprises 2 x 4 bedroom and 5 x 3 bedroom dwellings.

The subject modification was lodged with Council on 20 February 2018 and subsequently referred to internal referral officers for comments and/or recommendations.

The modification originally sought to modify the front fence associated with Townhouses 1, 2 and 3 from decorative masonry fencing with metal infill slats, to a lightweight PVC fence due to potential impacts on the existing gum trees within the nature strip along Old Castle Hill Road. Concerns were raised in respect to the streetscape impact of such a fence. Following consultation with Council’s Landscape Architect, conditions of consent were prepared to allow for the construction of the decorative fencing as approved with timber infill slats, whilst ensuring that the root system of the trees in the nature strip are not impacted through appropriate construction methods.

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PAGE 67 PROPOSAL

The Section 4.55(1A) Modification Application seeks approval for amendments to an approved multi dwelling housing development containing seven units. The following modifications are sought:

 Deletion of the pergola and privacy screens associated with Townhouse 6 and Townhouse 7;

 Additional pergolas to the front facades of Townhouse 1, Townhouse 2 and Townhouse 3;

 Amendment of the terraces of Townhouse 1, Townhouse 2 and Townhouse 3 from grass to timber decking;

 Front entry stairs and disabled ramp for Townhouse 1 and Townhouse 2 to be deleted and replaced with ramped pathways;

 Modification of the front porch of Townhouse 5; and

 Modification of Townhouse 4 to delete the rear pergola.

The works proposed under this modification have been substantially completed on-site without prior consent. The following works will need to be addressed through a separate Building Information Certificate Application:

 Driveway levels lowered by 580mm;

 Lower ground level in Townhouses 6 and 7, lowered by 810mm to accommodate the revised level of the stormwater detention tank;

 Electrical and NBN cupboards provided near Townhouse 1 garage door;

 Modification to approved materials and finishes;

 Various external changes to window and external opening placements and dimensions;

o TH1: 1 highlight window added on the western wall of bedroom 3 o TH4: One circular high window added to the western side of the study o TH4: Bedroom 3 window changed from square window to a long window o TH5: Highlight window added in the family/dining areas on the northern

elevation above sliding door

o TH6: Highlight windows added in the family/dining areas, one on the eastern and northern elevations

o TH7: 2 Highlight windows added in the family/dining areas, on the northern elevation above the window and door

 Modifications to external finished ground levels, internal finished floor levels and building heights.

o TH1, 2 & 3: Garage floor level lowered by 500mm

o TH1, 2 & 3: Lower and upper level 1 floor levels increased by 100mm o TH1, 2 & 3: Kitchen, living and dining areas on ground level lowered 30mm o TH4 & 5: Garage levels lowerd 200mm

o TH4: Ground floor lowered 60mm

o TH4 & 5: First floor level lowered increased 100mm

o TH6 & 7: Family/dining and kitchen areas have been lowered by 580mm o TH6 & 7: Garage levels lowered 590mm

o TH6 & 7: Living areas lowered 670mm

o TH6 & 7: Bedrooms 1-3 (ground floor) lowered 580mm

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PAGE 68 The changes in levels are due to an error in the original survey levels provided with the original development application.

ISSUES FOR CONSIDERATION

1. Section 4.55(1A) of the Environmental Planning and Assessment Act, 1979 Under the provisions of Section 4.55(1A) of the Environmental Planning and Assessment Act, 1979, Council may in response to an application, modify a consent if the development, as modified, is substantially the same development as originally approved.

The proposed modifications are considered to be substantially the same development as originally approved by Council’s Development Assessment Unit, and involves minor environmental impact. There are minor internal and external changes proposed to the overall development. No additional floor space is proposed, nor is there any change to the overall unit numbers or unit mix. It is considered that the multi dwelling housing development will not adversely impact upon the amenity of the locality subject to compliance with conditions of consent.

Accordingly, the proposed modifications comply with the provisions under Section 4.55(1A) of the Environmental Planning and Assessment Act, 1979.

2. Compliance with LEP 2012

(i) Permissibility

The land is zoned R3 Medium Density Residential under LEP 2012. The proposed multi dwelling housing development is permissible with consent. The proposal satisfies LEP 2012 in this regard.

(ii) The Hills LEP 2012 - Development Standards

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

CLAUSE REQUIRED PROVIDED COMPLIES

Clause 4.3 – Building Height

9 metres Satisfactory - <9m Yes

3. Compliance with DCP 2012

The proposal has been assessed against the following provisions of DCP 2012:

 Part B Section 4 – Multi Dwelling Housing;

 Part B Section 1 – Parking; and

 Part C Section 3 – Landscaping.

The proposal achieves compliance with the DCP with the exception of the following:

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PAGE 69 DEVELOPMENT

CONTROL

DCP

REQUIREMENTS

PROPOSED DEVELOPMENT

COMPLIANCE Landscaped Area 50% of the total lot

area, exclusive of access driveways and parking

42% (933.26m²) of landscaped area provided.

No, however the proposal results in an acceptable landscaped

outcome.

a) Landscaped Area

The DCP requires that a minimum of 50% of the site shall be provided with landscaped area.

The applicant has provided the following justification for the variation:

We have given consideration to the controls set out in Part B of The Hills DCP and are satisfied that the proposal to convert the grassed area at the rear of townhouses 1, 2 and 3 to a mix of timber deck and planter boxes is a good planning outcome and is not only practical, but is consistent with the intent of the DCP. Our reasons for arriving at this decision are set out in point form as follows:

The proposal is consistent with 3.7 Landscaped Area Objectives as:

 The timber deck is a more practical solution for land that adjoins the primary living spaces of the dwelling and that will be subject to continued year round use as an extension to the living spaces. The maintenance of this area will be challenged by a fence that will shadow the space and inhibit grass growth.

 The timber decking will not result in any additional stormwater being generated.

 The amended design incorporates planter boxes that will enable the growth of screen planting at the edges of the open space area.

 Therefore the benefit of screen planting and vegetation growth is not inhibited by the proposal.

 The visual impacts of the amendment are inconsequential as the timber decking (if seen) is a positive aesthetic material and vegetation growth at the edges of the open space area is being maintained.

The proposal is consistent with 3.7 Landscaped Area Development Control as:

 The timber deck area was never intended for the purpose of growth of substantial planting by virtue of its location immediately adjacent the living areas of the townhouses, and therefore was always intended as an extension of the living space. Accordingly, the proposal to convert the grassed area to a timber deck does not impact upon the proposals overall provision of substantial planting in the form of trees.

 The landscape treatment harmonises with the building design.

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PAGE 70 Comment:

The relevant objectives of this clause of the DCP are:

(i) To provide a satisfactory relationship between buildings, landscaped areas and adjoining developments.

(ii) To minimise stormwater runoff and provide the opportunity for on-site groundwater recharge in accordance with Council’s ESD objective 3.

(iii) To ensure a high standard of environmental quality in multi dwelling housing developments and the overall visual amenity and character of the neighbourhood in accordance with Council’s ESD objective 7.

(iv) To ensure that landscaped areas can be efficiently maintained.

(v) To ensure that existing trees are given every opportunity to be incorporated into the final design.

(vi) To ensure that vegetation removed as a part of the land development process is replaced by suitable endemic species in accordance with Council’s ESD objective 4.

(vii) To avoid the creation of drainage and runoff problems through minimising the amount of impervious area.

(viii) To minimise bulk and scale of the development.

The proposal falls short in providing the minimum required landscaped area. The non- compliance is considered acceptable for the following reasons:

 The further shortfall in landscaping is a result of converting the elevated rear facing balconies associated with Townhouse 1, 2 and 3 from turf to timber decking. As identified in the applicant’s justification, the landscaping in this area will be difficult to maintain and support;

 The proposal provides for extensive pervious areas to assist in facilitating stormwater run-off. The proposal has been reviewed by Council’s Subdivision Engineer who raises no objection to the proposed stormwater concept subject to conditions of consent;

 The proposed development maintains the same extent of deep soil planting throughout the site, consistent with the approved Development Application; and

 The proposal has been reviewed by Council’s Landscape Assessment Officer who raises no objection to the proposed landscape concept plan subject to conditions of consent.

The proposal is consistent with the objectives of the control and a variation is considered acceptable in this instance.

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PAGE 71 4. Unauthorised Works

As previously identified, the works on-site have been substantially completed, and a number of modifications have been made without consent. The following works have been undertaken without development consent and will need to be addressed through a separate Building Information Certificate Application:

 Driveway levels lowered by 580mm;

 Lower ground level in Townhouses 6 and 7 lowered by 810mm to accommodate the revised level of the stormwater detention tank;

 Electrical and NBN cupboards provided near Townhouse 1 garage door;

 Modification to approved materials and finishes;

 Various external changes to window and external opening placements and dimensions; and

 Modifications to external finished ground levels, internal finished floor levels and building heights.

The three storey building at the front of the premises (containing Townhouses 1, 2 and 3) has been approved at Construction Certificate stage as class 1a and 10a. Following a review of the as-built building by Council staff, it is considered that the building should be classed as a class 2 and 7a building. When issuing a Building Information Certificate, a classification must be given and Council would not be in a position to issue a Building Certificate on the building that is not consistent with the classification given at CC stage. This would then trigger a Fire Safety Order for upgrading.

To resolve this matter, a Development Application for a change in use for this building should be lodged and include a BCA report on how to upgrade the premises by way of a performance solution as class 2 & 7a building should be provided.

5. Issues Raised in Submissions

The proposal was exhibited and notified for 14 days. The issues raised in the submissions are summarised below.

ISSUE/OBJECTION COMMENT

The two townhouses on the rear boundary would be provided with privacy screening around the landings, off the rear sliding doors. This is a wide opening and looks directly into our rear yard, as we are downhill from this development, we will lose our privacy.

Following a site inspection, it was observed that any view towards the neighbouring property are obscured by the existing lattice screening which sits on top of the shared boundary fence between the objector’s property and Units 6 and 7.

Nevertheless, the developer has agreed to retain the privacy screens required under the parent development consent. This will be reinforced via condition of consent with the modification.