DEVELOPMENT ASSESSMENT UNIT

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DEVELOPMENT ASSESSMENT UNIT

Tuesday, 28 February 2023

TO STRIVE FOR BETTER THINGS

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DEVELOPMENT ASSESSMENT UNIT MEETING 28 FEBRUARY 2023

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 FURTHER REPORT - DA 247/2020/LD/B - SECTION 4.55 (2) MODIFICATION TO AN APPROVED TWO STOREY DWELLING AND RETAINING WALL - CHANGE IN DWELLING DESIGN AND BUSHFIRE CONSTRUCTION REQUIREMENTS – LOT 3 DP 286704 – 14 BERNABEAU STREET NORTH KELLYVILLE

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ITEM-1 MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 24 JANUARY 2023

PRESENT

Cameron McKenzie Group Manager – Development & Compliance (Chair) Angelo Berios Manager – Environment & Health

Amanda Burke Acting Manager – Regulatory Services Paul Osborne Manager – Development Assessment Nicholas Carlton Manager – Forward Planning

Kristine McKenzie Principal Coordinator – Development Assessment Ben Hawkins Manager – Subdivision & Development Certification

APOLOGIES

Craig Woods Manager – Regulatory Services

CIRCULATED ELECTRONICALLY

ITEM-1 CONFIRMATION OF MINUTES RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 17 January 2023 be confirmed.

ITEM-2 DA 1025/2022/HA – CONSTRUCTION OF A CAFE WITH ASSOCIATED CAR PARKING - LOT 220 DP 868989, NO. 33 GLENHAVEN ROAD, GLENHAVEN

DECISION

The Application be Approved in accordance with the recommendation.

REASONS FOR THE DECISION Section 4.15 (EP&A Act) – Satisfactory.

The Hills LEP 2019 – Satisfactory.

DCP Part B Section 1 – Rural – Variation, Satisfactory.

HOW COMMUNITY VIEWS WERE TAKEN INTO ACCOUNT IN MAKING THE DECISION Notification letters were issued to 5 adjoining properties over 14 days. Four submissions were received, one in support. The issues raised in the submissions were addressed in the report.

The recommendation to approve the Application was unanimously supported.

END MINUTES

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ITEM 2 FURTHER REPORT - DA 247/2020/LD/B - SECTION 4.55 (2) MODIFICATION TO AN APPROVED TWO STOREY DWELLING AND RETAINING WALL - CHANGE IN DWELLING DESIGN AND BUSHFIRE CONSTRUCTION REQUIREMENTS – LOT 3 DP 286704 – 14 BERNABEAU STREET NORTH KELLYVILLE

THEME: Valuing our Surroundings OUTCOME:

9 Our natural surroundings are valued, maintained and enhanced and impacts are managed responsibly through education and regulatory action.

STRATEGY:

9.3 Manage new and existing development with a robust framework of policies, plans and processes that is in accordance with community needs and expectations.

MEETING DATE: 28 FEBRUARY 2023

DEVELOPMENT ASSESSMENT UNIT

AUTHOR:

PRINCIPAL COORDINATOR DEVELOPMENT ASSESSMENT

STUART WHALE

COI DECLARATION None disclosed

RESPONSIBLE OFFICER:

MANAGER – DEVELOPMENT ASSESSMENT PAUL OSBORNE

COI DECLARATION None disclosed

Applicant Eden Brae Homes

Owner S Gagg

Notification 1st Notification: 14 days 2ndNotification: 14 days 3rd Notification: 14 days Number Advised 1st Notification: Five

2ndNotification: Five 3rd Notification: Five

Number of Submissions 1st Notification: Two (from two property owners) 2ndNotification: Seven (from two property owners) 3rd Notification: Four (from two property owners)

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List of all relevant s4.55(2) matters

Section 4.15 EP&A Act – Unsatisfactory Section 4.55 (2) EP&A Act - Satisfactory

SEPP Precincts - Central River City 2021 – Satisfactory SEPP BASIX – Satisfactory

North Kellyville Precincts Development Control Plan 2018 – Unsatisfactory

Political Donation None Disclosed

Reason for Referral to DAU Matter previously reported to DAU Recommendation Refusal

EXECUTIVE SUMMARY

Development Application 247/2020/LD was approved on 28 February 2020 under Delegated Authority for the construction of a two-storey dwelling and a retaining wall.

A Section 4.55 (2) modification application for changes relating to the internal layout, the location of the dwelling and setbacks, window placement, and for the reduction of the bushfire construction requirements and the associated bushfire attack level (BAL) was lodged for consideration.

A report for the S4.55 (2) Modification was prepared and considered at Council’s Development Assessment Unit Meeting (DAU) on Tuesday 18 October 2022. DAU resolved as follows.

The Modification Application be deferred to relocate the dwelling and increase the setbacks to the south-western elevation (front) by a minimum of 1 metre to each building element as follows;

 Proposed 5 metre setback to guest bedroom to increase to 6 metres.

 Proposed 3.560 metre setback to porch columns to increase to 4.560 metres.

 Proposed 6.230 metre setback to garage door to increase to 7.230 metres.

 Proposed 6.0 metre setback to garage wall to increase to 7.0 metres.

The reasons for the decision was outlined as follows:

Having regard to the context of surrounding lots, built form and location of private open space, it is considered the proposed setbacks unreasonably impact on the amenity of adjoining residents.

The applicant was advised of the decision with the application being held in abeyance pending amended plans and documentation addressing the above requirements.

The applicant has chosen not to amend the plans and the owner has made further representations for the proposal to be re-considered as previously presented.

The application is recommended for refusal due to non-compliance with the DAU resolution of 18 October 2022 to increase the front setback.

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BACKGROUND

The parent consent Development Application (DA) No. 247/2020/LD was approved on 28 February 2020 under Delegated Authority.

The approved dwelling included a front boundary setback of 6.0 metres at the closest point and a Bushfire Attack Level (BAL) of Flame Zone (FZ). The bushfire threat is located to the rear of the allotment to the north-east.

The subject Section 4.55 (2) Modification Application was lodged on 11 November 2021 and notified on 15 November 2021 for the consideration of an amended design/siting of the proposed dwelling so as to achieve a lower BAL rating by relocating the dwelling 2.5 metres closer to the “front” or south-west property boundary.

On 18 October 2022, a report for the S4.55 (2) Modification was prepared and considered at Council’s Development Assessment Unit Meeting with resolved to defer the application pending amended plans detailing an increase to the front setback by a minimum of 1 metre.

On 19 October 2022, the owner responded to the DAU decision and advised that the plans will not be amended any further as to do so would vastly impact the design and amenity of the actual building, making the build uneconomical, unreasonable and beyond the reasonable expectations to build on the Lot.

On 20 October 2022, the applicant responded to the DAU decision and advised of the owner’s response to the decision. The owner on the same date sent correspondence questioning the DAU panel’s decision to require an increase to the front setback based on the surrounding development. Additionally, the owner questioned whether Council would permit a BAL 40 bushfire rating in lieu of BAL FZ if the dwelling setback was increased as requested. In response on 26 October 2022 a reply was sent to the owner regarding their concerns, advising the DAU panel stands by their decision. The owner was also advised that the BAL will not be reduced contrary to RFS advice.

On 7 November 2022, the owner requested a meeting with Council staff to discuss the outcome of the DAU. Council staff met with the owner on 15 November 2022 regarding the outcome of the DAU and further design options.

On 23 November 2022, the owner sent correspondence with respect to the applicant’s position on the design, and an enquiry regarding the existing Vegetation Management Plan (VMP) and Asset Protection Zone (APZ) within the community association lot. In reply, a response was sent on 9 December 2022 to the owner with respect to the existing Vegetation Management Plan (VMP) and their Asset Protection Zone (APZ) enquiry, stating the VMP could not be altered.

On 2 February 2023, further correspondence was sent to the applicant advising that amended plans have not been forthcoming to address the DAU decision and that the matter has been relisted for determination.

On 3 February 2023, the owner sent correspondence requesting reconsideration of the DAU decision and outlines reasons in his correspondence. The applicant on the same date sent a response confirming that there will not be any further amended plans submitted.

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PROPOSAL

The Section 4.55 (2) application sought changes to the dwelling design which includes the internal design, amended setbacks to all boundaries, windows, bushfire construction requirements and the associated bushfire attack level (BAL) from BAL Flame Zone and BAL 40 to BAL 40 and BAL 29. The proposed dwelling was proposed to be repositioned 2.5 metres closer to the south west “front” boundary and a further 1.75 metres away from the south east side boundary.

The applicant and owner have advised they do not wish to relocate the dwelling 1 metre further away from the front boundary as this would result in BAL FZ construction requirements. The applicant (builder) does not carry out BAL FZ construction, and the owner has advised it is cost prohibitive.

ISSUES FOR CONSIDERATION

1 - Compliance with outcome of Development Assessment Unit meeting 18 October 2022 A report for the S4.55 (2) Modification was prepared and considered at Council’s Development Assessment Unit Meeting on Tuesday 18 October 2022. The following decision was made with respect to the Section 4.55 (2) Modification Application:

The Modification Application be deferred to relocate the dwelling and increase the setbacks to the south-western elevation (front) by a minimum of 1 metre to each building element as follows;

 Proposed 5 metre setback to guest bedroom to increase to 6 metres.

 Proposed 3.560 metre setback to porch columns to increase to 4.560 metres.

 Proposed 6.230 metre setback to garage door to increase to 7.230 metres.

 Proposed 6.0 metre setback to garage wall to increase to 7.0 metres.

The reasons for the decision was outlined as follows:

Having regard to the context of surrounding lots, built form and location of private open space, it is considered the proposed setbacks unreasonably impact on the amenity of adjoining residents.

2 – Further representations from property owners in response to Development Assessment Unit deferred decision

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REPRESENTATIONS COMMENT The proposed setbacks are

similar to setbacks approved for Lot 4 No. 16 Bernabeau Street.

The DAU Panel considered the original report on its merits and was aware of the surrounding developments and the approved setbacks of the adjoining dwellings.

It is considered that a front setback increase to the development is necessary given the setbacks were not deemed acceptable in the context of the adjoining allotments.

While the proposed setbacks are not dissimilar to the existing dwelling front setbacks at No. 16 Bernabeau, the subject allotment/front boundary line at No.14 sits approximately 4.3 metres forward of the adjoining allotment.

Given the above, the current setbacks as outlined result in a proposed dwelling which is substantially forward of the adjoining dwelling at No. 16, which has the potential to result in an excessive built form forward of the adjoining building line.

In addition, the presently detailed location of the proposed dwelling has the potential to negatively impact upon the amenity of the surrounding allotments including No. 12 Bernabeau given its proximity to the neighbouring private open space area.

In the context of the surrounding allotments and shared right of accessway, it is also considered an increased front setback is necessary to provide adequate clearance to the easement for the Right of Carriageway (H) and to allow for sufficient spatial separation between dwellings and for access for the properties serviced.

It was resolved to increase the setback from the south-western boundary a further 1 metre having regard to the context of surrounding lots, built form and location of private open space, and it was considered the proposed setbacks unreasonably impact on the amenity of adjoining residents.

The design of the dwelling in its current form provides greater levels of privacy than dwellings on the surrounding lots.

The DAU Resolution is for the whole dwelling to be shifted back 1 metre, as this would then not require design changes to the dwelling. Although the lower level may not contribute to privacy/overlooking or amenity issues, the DAU Panel resolved the setbacks (as a whole) unreasonably impact on the amenity of adjoining residents.

The amenity of the private open space areas such as the rear yards must be considered irrespective of building setbacks and the DAU Panel considered the proposed setbacks unreasonably impact on the amenity of adjoining residents, hence the request for a greater setback to be provided.

Owner outlined that plans will not be amended as it will make the build uneconomical due to the cost of a Bushfire Attack Level (BAL) of Flame Zone (FZ).

With respect to the bushfire threat, the NSW Rural Fire Service (RFS) have advised that in the current position, the dwelling will achieve a BAL 40 rating. The RFS has also advised that relocating the dwelling any further to the rear of the site will result in BAL FZ for the dwelling.

It is agreed that Council is the consent authority in determining the conditions to impose on a development consent, and this is carried out taking into consideration advice from various experts such as the RFS. The bushfire threat and the safety of residents is important and, in this respect, the advice of the RFS for the subject application will not be dismissed.

The DAU requirement to reduce 1m from the front of the proposed design would result in a complete new set of plans as this change is beyond

“simply reducing the front area by 1m”.

Should further modifications not be feasible to achieve the increased setbacks as identified in the DAU resolution and maintaining the current BAL 40 rating determined by the RFS, a new dwelling design will be required. This would result in the current application being refused and a new Development Application being lodged for further consideration.

The applicant and owner have advised they do not wish to increase the setback as requested and wish to have the matter determined based on the current dwelling setbacks detailed in the previous report to DAU.

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Consideration of revisiting the Vegetation Management Easement on the community association lot.

Both the owner and the applicant have been advised that the asset protection zones (APZ) associated with the proposed development should be located so as to not extend beyond the property boundaries. Despite the above, as requested by the owner the circumstances of creating an easement to manage part of the community association lot as an APZ was further considered.

The Biodiversity Certification for the North Kellyville release area was undertaken as part of the rezoning process to enable urban development. The impact on Biodiversity was considered across the release area which created a certified area and a non- certified area (referred to as the Native Vegetation Retention Area or NVRA). This requires the protection of the NVRA (which forms the community association lot) as an offset to the loss of vegetation within the certified area on the basis that the NVRA area is rehabilitated and managed in perpetuity.

The North Kellyville Development Control Plan 2008 requires that a Vegetation Management Plan (VMP) is prepared, and the area mapped as NVRA be managed in accordance with the VMP. The VMP for this community association lot requires planting of 3 overstorey trees, 6 shrubs and 15 ground cover species for every 5m x 5m area. This is not compatible with managing an area as an APZ (Inner Protection Area) which requires maintaining the ground layer by mowing. The VMP is bound to the association property by title via both a positive covenant requiring that the owner of the association lot manage the area in accordance with this Council approved plan and by way of by-law included as part of the neighbourhood management plan.

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, State Environmental Planning Policy (SEPP), Precincts – Central River City 2021, North Kellyville Precinct DCP 2018 and the resolution of the DAU dated 18 October 2022, and is considered unsatisfactory.

The issues raised in the submissions have been addressed in the report and warrant refusal of the application.

IMPACTS Financial

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

The Hills Future Community Strategic Plan

The proposed development is not consistent with the planning principles, vision and objectives outlined within “Hills 2026 – Looking Towards the Future” as the proposed development does not provide for satisfactory urban growth and will cause adverse environmental amenity impacts.

RECOMMENDATION

The modification application be refused.

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GROUNDS FOR REFUSAL

The Section 4.55 (2) modification application is recommended for refusal on the following grounds:

1. Having regard to the context of the surrounding lots, built form and location of private open space, the proposed setbacks unreasonably impact on the amenity of adjoining residents in terms of privacy, bulk and scale.

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

2. The application does not meet the objectives of the North Kellyville DCP (2018) 4.2.4 Side and Rear setbacks. (b) to minimise the impacts on neighbouring properties and (c) to provide appropriate separation between buildings. Section 4.15 (1) (a) 3 of the Environment Planning and Assessment Act 1979.

3. Approval of the application is not considered to be in the public interest.

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

ATTACHMENTS

1. Previous DAU report 18 October 2022 2. Outcome of DAU meeting 18 October 2022

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ATTACHMENT 1 – PREVIOUS DAU REPORT 18 OCTOBER 2022

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ATTACHMENT 2 – OUTCOME OF DAU MEETING 18 OCTOBER 2022