Development Assessment Unit

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Development Assessment Unit

Tuesday, 24 October 2017

THE HI LLS SHIR E C OUNCI L

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DEVELOPMENT ASSESSMENT UNIT MEETING 24 OCTOBER, 2017

ITEM SUBJECT PAGE

ITEM-1 CONFIRMATION OF MINUTES 3

ITEM-2 DA NO. 78/2018/LD - TWO STOREY DWELLING - LOT 5 DP 1201325 - 168 HIGHS ROAD, WEST PENNANT HILLS

4

ITEM-3 DA 1949/2017/ZA - CHANGE OF USE TO AN ATTACHED DUAL OCCUPANCY UNDER SEPP (AFFORDABLE RENTAL HOUSING) 2009 AND AN ASSOCIATED SUBDIVISION CREATING TWO STRATA TITLE RESIDENTIAL LOTS - LOT 11 DP 1200890, 34 BRUHN CIRCUIT, KELLYVILLE

27

ITEM-4 DA 1806/2017/HA - DEMOLITION OF EXISTING STRUCTURES, TORRENS TITLE SUBDVISION INTO THREE LOTS AND THE CONSTRUCTION OF A TWO STOREY DWELLING ON EACH LOT - LOT 29 DP 200734, NO. 32 SHERWIN AVENUE, CASTLE HILL

47

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PAGE 3 MINUTES OF THE DEVELOPMENT ASSESSMENT UNIT MEETING HELD AT THE HILLS SHIRE COUNCIL ON TUESDAY, 17 OCTOBER 2017

PRESENT

Paul Osborne Acting Group Manager – Environment & Planning (Chair) Ben Hawkins Acting Manager – Subdivision & Development Certification Mark Colburt Manager – Environment & Health

Craig Woods Manager – Regulatory Services Kristine McKenzie Principal Executive Planner APOLOGIES

Cameron McKenzie Group Manager – Environment & Planning

Andrew Brooks Manager – Subdivision & Development Certification Janelle Atkins Acting Manager – Forward Planning

TIME OF COMMENCEMENT 8:45am

TIME OF COMPLETION 9:00am

ITEM-1 CONFIRMATION OF MINUTES

RESOLUTION

The Minutes of the Development Assessment Unit Meeting of Council held on 10 October 2017 be confirmed.

ITEM-2 DA 1268/2017/LA - CONSTRUCTION OF A SHED - LOT 3, DP 230086, NO. 3-3A BUSHLAND PLACE, KENTHURST

RESOLUTION

The application be approved subject to conditions as set out in the report.

ITEM-3 DA 1872/2017/HA - SECONDARY DWELLING - LOT 9 DP 30525, NO. 3 ACRES ROAD, KELLYVILLE

RESOLUTION

The application be approved subject to conditions as set out in the report with an additional condition to remove redundant layback/crossover as follows:

30. Removal of Redundant Layback/ Driveway

Due to the reduced setback to the front boundary, the disused layback and driveway on Spring Road in front of the secondary dwelling must be removed and replaced with kerb and gutter together with the restoration and turfing of the adjoining footpath verge area prior to the issue of any Occupation Certificate. A separate driveway application is required and fee payable as per Council’s Schedule of Fees and Charges.

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

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PAGE 4 ITEM-2 DA NO. 78/2018/LD - TWO STOREY DWELLING - LOT 5 DP 1201325 - 168 HIGHS ROAD, WEST PENNANT HILLS

THEME: Balanced Urban Growth

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

STRATEGY: 7.2 Manage new and existing development with a robust framework of policies, plans and processes that is in accordance with community needs and expectations.

MEETING DATE: 24 OCTOBER 2017

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER – SPECIAL PROJECTS JUSTIN KEEN

RESPONSIBLE OFFICER: MANAGER – DEVELOPMENT ASSESSMENT PAUL OSBORNE

Applicant Homestead Home Builders Pty Ltd Owner B Windsor and M Windsor

Notification 14 days Number Advised Seven Number of Submissions Three

Zoning R2 Low Density Residential

Site Area 789.6m²

List of all relevant

s79C(1)(a) matters  Section 79C (EP&A Act) – Satisfactory.

 LEP 2012 – Satisfactory.

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

 Section 94A Contribution: $8,270.14 Political Donation None Disclosed

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

Recommendation Approval subject to conditions

EXECUTIVE SUMMARY

The Development Application is for a two storey dwelling house and retaining walls.

The proposed development complies with the relevant requirements of the DCP with the exception of the rear setback control and the garage setback control. The DCP requires a minimum rear setback of 4 metres to single storey elements of the dwelling. The proposed minimum rear setback to the single storey element (garage) of the dwelling is

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PAGE 5 945mm. The DCP also requires that garages are to be a minimum of 5.5m from the boundary. The proposed garage setback is 4.065m from the edge of the Right of Access.

The application was notified and submissions from three properties were received (including two submissions from one property owner). The issues raised primarily relate to restrictions on title, compatibility with neighbouring approvals, parking and vehicular access, building setbacks, overshadowing, visual and acoustic privacy and the garage.

The application is recommended for approval subject to conditions.

BACKGROUND

Development Application 685/2014/ZA was approved on 8 April 2014 for a Torrens Title subdivision creating five residential lots including demolition. The subject allotment was created as a result of this subdivision. The subject site is currently vacant.

PROPOSAL

The Development Application is for the construction of a two storey dwelling and retaining walls. The ground floor will contain an entry foyer, lounge room, guest room, powder room, family room, dining room, kitchen and scullery, cinema room, external alfresco and a single garage with a turntable. The first floor will contain a sitting room, bathroom and four bedrooms.

The proposed dwelling is to be constructed of rendered masonry and is to have a pitched tiled roof.

ISSUES FOR CONSIDERATION

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

The site is zoned R2 Low Density Residential under Local Environmental Plan 2012.

Under LEP 2012, the proposed development is defined as a “dwelling house” as follows:

“dwelling house means a building containing only one dwelling.”

A “dwelling house” is a permissible form of development on land zoned R2 Low Density Residential under LEP 2012 subject to consent being granted by Council. Accordingly, the proposal is considered satisfactory with regard to LEP 2012.

(ii) Compliance with LEP 2012 – Zone Objectives

The site is zoned R2 Low Density Residential under Local Environmental Plan 2012. The objectives of the zone are:

 To provide for the housing needs of the community within a low density residential environment.

 To enable other land uses that provide facilities or services to meet the day to day needs of residents.

 To maintain the existing low density residential character of the area.

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PAGE 6 The proposal is considered to be consistent with the stated objectives of the zone, in that the proposal will provide additional housing stock within a low density residential environment, and maintain the existing low density residential character of the area.

(iii) LEP 2012 - Development Standard

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

CLAUSE REQUIRED PROVIDED COMPLIES

4.3 – Height of

Buildings 9m 8.8m Yes

2. Compliance with Development Control Plan Part B Section 2 – Residential The proposal has been assessed against the provisions of Development Control Plan Part B, Section 2 – Residential.

The proposed development achieves compliance with the relevant requirements of the Development Control Plan with the exception of the following:

DEVELOPMENT

CONTROL DCP

REQUIREMENTS PROPOSED

DEVELOPMENT COMPLIANCE Rear Setback 1 storey element of

dwelling – 4m

2-3 storey elements of dwelling – 6m

1 storey element of dwelling – 945mm to the garage.

2 storey element of dwelling – 6.8m

No

Yes

Garage Setback 5.5m 4.065m to the garage No

a) Building Setbacks

The DCP requires that minimum rear setbacks to single storey elements are 4 metres.

The proposed minimum rear setback to the single storey element of the dwelling is 945mm. The DCP also states that garages are to be a minimum of 5.5m from the boundary. The proposed garage setback is 4.065m from the side boundary.

The applicant has provided the following justification for the variation:

The proposed non-compliance is considered to be acceptable in this instance having regard to the orientation of the building which faces the right of way resulting in the boundary in question acting as a side boundary rather than a rear boundary.

Notwithstanding the proposed non-compliance, it is considered that the proposal is provided with appropriate setbacks and will be provided with an appropriate area of rear private open space.

Comment:

The relevant objectives of this clause of the DCP are:

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PAGE 7 (i) To provide setbacks that complements the streetscape and protects the privacy

and sunlight to adjacent dwellings in accordance with ESD Objective 7.

(ii) To ensure that new development is sensitive to the landscape setting, site constraints and established character of the street and locality.

(iii) To ensure that the appearance of new development is of a high visual quality and enhances the streetscape.

Although the entry to the dwelling and associated vehicular access is oriented towards the Right of Access, the primary road frontage setback is the setback between the Highs Road boundary and the western elevation. The dwelling complies with the primary road frontage setback requirements per the DCP, complementing the existing streetscape.

Accordingly, the setback from the eastern elevation of the dwelling to the eastern boundary is best defined as the rear setback.

The proposed dwelling is most appropriately located in its current position. If the dwelling is relocated to comply with the rear setback requirements, this will result in a non-compliance with the primary road frontage setback and will disrupt the existing streetscape and established character of Highs Road and the surrounding locality.

The variation to the rear setback is for the provision of a garage. The subject site is burdened by a restriction on title as follows:

Terms of Restriction tenthly referred to in abovementioned plan

No vehicular access or route to or from any part of Blacks Road is permitted other than via the Right of Access firstly referred to above.

The Authority having the right to release, vary or modify this easement is The Hills Shire Council.

Accordingly, the most appropriate location for the garage is the north-eastern corner (rear) of the site, which provides for access from the subject allotment to the Right of Access, and reduces the visibility of the garage from the streetscape. The length of the non-compliant portion of the dwelling is 6.35m or 27% of the length of the rear boundary. The proposal complies with the front and side setback provisions as viewed from Highs Road and the public domain, complementing the existing streetscape.

The proposed variation to the minimum rear setback for the single storey element, being the garage, does not result in unreasonable privacy impacts to the adjoining properties.

The adjoining properties will also achieve 50% of direct sunlight to private open space for a minimum of 4 hours between 9am and 3pm on 21 June as required by the DCP.

It is considered that the development as proposed will be of a high visual quality and will enhance the streetscape. The proposed rear setbacks are considered to meet the objectives of the DCP. The proposal is not considered to result in any unreasonable impact beyond that of a compliant development, and is therefore considered a suitable outcome for this particular site.

The proposal also requires a 5.5m setback to the garage. The proposal provides a 4.065m setback to the garage. The intent of the 5.5m setback to the garage is to ensure that vehicles parked on the driveway in front of the garage do not encroach into the road reservation. In this instance, there will be no opportunity for additional parking in front of the garage. The proposal provides the required amount of parking spaces in

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PAGE 8 accordance with the DCP provisions and a variation to the garage setback control is considered acceptable in this instance.

The proposed variations to the building setbacks are considered to be satisfactory in this instance.

3. Title Restrictions

A restriction on the use of land (Item 12 on DP 1201325) exists on the property title states:

Terms of Restriction twelfthly referred to in abovementioned plan

No dwelling is to be constructed on the lots burdened unless the design of the dwelling is such as to permit a vehicle manoeuvring area within the lot, and in close proximity to the garage, to ensure that access from the lot to the Right of Access is in a forward direction at all times.

The Authority having the power to release, vary or modify this positive covenant is The Hills Shire Council.

Clause 1.9A of LEP 2012 enables Council to suspend covenants to permit development that is permissible within the zone. Clause 1.9A states:

1.9A Suspension of covenants, agreements and instruments

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

In respect to the abovementioned restriction, the proposal has been referred to Council’s Engineer, who advised that the intent of this restriction was to ensure that forward movement out to Highs Road was achieved as a result of sight distance concerns due to the existing bend in Highs Road. The proposed garage has been amended, and the triple garage has been replaced with a single space garage containing a vehicle turntable. This will enable vehicles to enter and exit the lot in a forward direction. Therefore, it is considered that the intent of the restriction is still achieved and that the covenant requiring a vehicle manoeuvring area within the lot should be varied in this instance.

4. Issues Raised in Submissions

The proposal was notified for 14 days. During the notification period, three submissions were received and the issues raised in the submissions are summarised below.

ISSUE/OBJECTION COMMENT

The plans indicate that the retaining walls, retaining wall footings and boundary fences encroach onto the 0.5metre wide “Services Easement”.

The easements should provide a safe haven for pedestrian traffic when the Access Way is being utilised by vehicles.

The proposal has been amended so as to relocate the proposed retaining walls outside of the easement. Furthermore, a condition of consent has been recommended to be imposed requiring that the service easements be clear of planting.

It is noted that the 0.5 wide easement that burdens the subject lot are for services (i.e.

conduits) and are not specifically for pedestrian traffic.

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PAGE 9

The current kerb side will need to be broken and repaired at the developers expense as per Point 6 - Terms of Positive Covenant eighthly referred to in Plan DP1201325.

The Positive Covenant will not be varied as a result of the proposed development.

DA 78/2018/LD and DA 79/2018/LD should provide a balanced landscape to the home currently under construction [at 162 Highs Road] and the construction permitted by DA 1609/2017/LD [at 166 Highs Road].

The proposal has been assessed in accordance with the Environmental Planning and Assessment Act, 1979, The Hills Shire Local Environmental Plan 2012 and The Hills Shire Development Control Plan 2012 and is considered satisfactory. In accordance with the planning principle of the NSW Land and Environment Court established in Project Venture Developments v Pittwater Council [2005] NSWLEC 191, the two major aspects to determine compatibility are physical impact and visual impact. The physical impacts have been assessed previously and the development is considered acceptable in this regard. In terms of visual impact, the development is of a compliant height, has acceptable setbacks and will contain satisfactory landscaping. It is considered that the proposal will be compatible with the surrounding development.

All garaging setbacks facing the access way should be a minimum of 6 metres from the easement boundary – this is most important to ensure sufficient off street parking for visitors and residents alike i.e. residents washing their vehicles without impinging on the access way. The garage must be set back as per the current regulations without compromise.

The access way is too narrow for on street parking or vehicle turning space.

House numbers 162 and 166 have been required to have a setback to the garage entrance of at least 6 metres to enforce Item 12 of DP 1201325 and DCP Part B Section 2.14.1. DA 78/2018/LD must include the garage setback as required by DP 1201325.

Vehicles need to exit driveways in a forward direction as per land purchase contracts which included a copy of DP 1201325.

The DCP requires a minimum setback of 5.5m from the garage to a boundary. The intent of the 5.5m setback to the garage is to ensure that vehicles parked on the driveway in front of the garage do not encroach into the road reservation. In this instance, there will be no opportunity for additional parking in front of the garage.

The proposal provides the required amount of parking spaces in accordance with the DCP provisions and a variation to the garage setback control is considered acceptable in this instance.

In respect to the restriction on title requiring vehicles to enter and exit in a forward direction, the proposal has been referred to Council’s Engineer, who advised that the intent of this restriction was to ensure that forward movement out to Highs Road was achieved as a result of sight distance concerns due to the existing bend in Highs Road.

The proposal has been amended by deleting the proposed eastern most garage and by converting the proposed double garage to a

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PAGE 10

single space garage containing a vehicle turntable. The addition of the proposed vehicle turntable will allow for the vehicle utilising the proposed garage to enter and exit the site in a forward direction.

Visitor parking requirements will be severely affected by insufficient garage setback.

Driveways should be able to accommodate at least 3 extra cars with the prescribed ability to exit in a forward direction.

Vehicles stopping on the access way to discharge their passengers (including young children) and goods will also be restricted and in some cases dangerous.

The construction of a dwelling requires at least one parking space. The proposal achieves compliance with the DCP. There is no specific requirement for visitor parking for a dwelling in the DCP.

The proposal does not comply with the front and rear setbacks, or the corner block setbacks.

The front entry to this proposal should have a setback of a minimum 4 metres to provide a balanced visual landscape along the Access Way.

The initial proposal did not comply with the front setback requirements. The proposed front setback has been amended and is now has a minimum of 7.5 metres, which complies with the DCP.

The non-compliance with the rear setback control has been assessed on merit. This has been addressed previously in this report.

It is noted that the subject site is not a corner allotment, thus the corner block setback DCP controls do not apply in this instance.

The front entry off the shared access way has a setback of 2.695m to the patio and 3.165m to the porch. The subject site is not a corner allotment, and thus is not required to comply with the 4m side setback control for corner allotments. The proposed development has side setbacks which exceed the minimum 900mm required by the DCP. The proposed side setbacks are considered acceptable in this instance.

The proposed dwelling is to be designed and developed in a way that the new structure does not cause significant blockage of natural sunlight into our formal living and dining rooms which are very near the boundary fence of the proposed new dwelling.

The proposal includes shadow diagrams for mid-winter at 9:00am, 12:00pm and 3:00pm in accordance with the DCP. It is acknowledged that there will be some overshadowing cast towards the property to the south (2 Blacks Road, West Pennant Hills). However, the proposal will not result

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PAGE 11

in more than 50% of the principal area of private open space of adjoining properties receiving less than 4 hours of solar access between 9am and 3pm on June 21, which complies with the requirements of the DCP.

Ensure that the proposed windows, doors, and other features of the proposal are reviewed so that privacy is retained by ensuring that no one from the new dwelling will be able to see into our formal living and dining rooms which are located in the ground floor of our house.

It is considered that ground floor windows will be sufficiently obscured from neighbouring windows by a standard 1.8m boundary fence. Furthermore, screen planting in the form of ‘lilly pilly’ which has a mature height of 3m is proposed along the southern boundary, and ‘sweet vibrunum’ is proposed along the eastern boundary, reducing any potential privacy impacts.

The privacy from the upper floor windows has been assessed. The study room window has a separation from the front yard of the closest allotment of approximately 8.5m. As this window will overlook the front yard of the adjoining property, it is considered that there will be no adverse privacy impacts arising from this window.

It is recommended that the upper floor bathroom window be provided with obscure glazing.

The remaining windows on the upper floor rear elevation are associated with bedrooms. These windows are considered not to cause adverse privacy impacts for the following reasons:

 Bedrooms are considered low trafficable rooms,

 Adequate separation is provided between the upper floor windows and the property boundaries, and

 The windows do not have a direct outlook into neighbouring windows or private open space areas.

The triple garage is a problem as it may

be too close to the boundary. The proposed garage has been amended, and the triple garage has been replaced with a single space garage containing a vehicle turn table. The non-compliance with the rear setback control has been assessed on merit. This has been addressed previously in this report.

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PAGE 12 5. Internal Referrals

The application was referred to following sections of Council:

 Subdivision (Engineering)

 Forward Planning (Section 94A)

No objection was raised to the proposal subject to conditions.

CONCLUSION

The Development Application has been assessed against the relevant heads of consideration under Section 79C of the Environmental Planning and Assessment Act, 1979, Local Environmental Plan 2012 and Development Control Plan 2012 Part B Section 2 Residential 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

The Development Application be approved subject to the following conditions of consent GENERAL MATTERS

1. Development in Accordance with Submitted Plans (as amended)

The development being carried out in accordance with the approved plans and details submitted to Council, as amended in red, stamped and returned with this consent.

The amendments in red include:

 The rainwater tank is to have a minimum capacity of at least 5,000 litres.

 The hot water system is to have a rating of gas instantaneous with a performance of 5 stars, or be a system with a higher energy rating.

 The 0.5 services easement as identified in Restriction 4 of the 88B Instrument for DP 1201325 is to be unobstructed and clear of planting.

 The upper floor bathroom window is to contain obscure glazing.

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PAGE 13 REFERENCED PLANS AND DOCUMENTS

DRAWING NO DESCRIPTION SHEET REVISION DATE

2076 Site Plan 02/10 H 14/09/2017

2076 Ground Floor

Plan 03/10 H 14/09/2017

2076 First Floor Plan 04/10 H 14/09/2017

2076 Roof Plan 05/10 H 14/09/2017

2076 Elevations 06/10 H 14/09/2017

2076 Elevations 07/10 H 14/09/2017

2076 Sections 08/10 H 14/09/2017

- Landscape Plan L-01 G 08/09/2017

- Schedule of

Colours and Materials

- - 28/06/2017

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.

2. Construction Certificate

Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier. Plans submitted with the Construction Certificate are to be amended to incorporate the conditions of the Development Consent.

3. Adherence to Waste Management Plan

All requirements of the Waste Management Plan submitted to and approved by Council must be implemented during the construction and/or demolition phases of the development, as well as the ongoing management phase. The information submitted can change provided that the same or a greater level of reuse and recycling is achieved as detailed in the plan. Any material moved offsite is to be transported in accordance with the requirements of the Protection of the Environment Operations Act 1997 and only to a place that can lawfully be used as a waste facility. Receipts of all waste/recycling tipping must be kept onsite at all times and produced in a legible form to any authorised officer of the Council who asks to see them.

Transporters of asbestos waste (of any load over 100kg of asbestos waste or 10 square metres or more of asbestos sheeting) must provide information to the NSW EPA regarding the movement of waste using their WasteLocate online reporting tool www.wastelocate.epa.nsw.gov.au.

4. Management of Construction and/or Demolition Waste

Waste materials must be appropriately stored and secured within a designated waste area onsite at all times, prior to its reuse onsite or being sent offsite. This includes waste materials such as paper and containers which must not litter the site or leave the site onto neighbouring public or private property. A separate dedicated bin must be provided onsite by the builder for the disposal of waste materials such as paper, containers and food scraps generated by all workers. Building waste containers are not permitted to be placed on public property at any time unless a separate application is approved by Council to locate a building waste container in a public place.

Any material moved offsite is to be transported in accordance with the requirements of the Protection of the Environment Operations Act 1997 and only to a place that can lawfully be used as a waste facility. The separation and recycling of the following waste

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PAGE 14 materials is required: metals, timber, masonry products and clean waste plasterboard.

This can be achieved by source separation onsite, that is, a bin for metal waste, a bin for timber, a bin for bricks and so on. Alternatively, mixed waste may be stored in one or more bins and sent to a waste contractor or transfer/sorting station that will sort the waste on their premises for recycling. Receipts of all waste/recycling tipping must be kept onsite at all times and produced in a legible form to any authorised officer of the Council who asks to see them.

Transporters of asbestos waste (of any load over 100kg of asbestos waste or 10 square metres or more of asbestos sheeting) must provide information to the NSW EPA regarding the movement of waste using their WasteLocate online reporting tool www.wastelocate.epa.nsw.gov.au.

5. Commencement of Domestic Waste Service

The property owner or agent acting for the owner must ensure to arrange the commencement of a domestic waste service with Council. The service is to be arranged no earlier than two days prior to occupancy and no later than two days after occupancy of the development. All requirements of Council’s domestic collection service must be complied with at all times. Please telephone Council on (02) 9843 0310 for the commencement of waste services.

6. Provision of Domestic Waste Storage Area

Sufficient space must be allocated onsite to store a minimum of three 240 litre mobile bins (for waste streams as determined by Council). Note two separate areas are required for dual occupancies. The location is required to ensure that the bins are not visible from any adjoining property or public place, are easily accessible by future occupants and allow the bins to be wheeled to the street over flat or ramped surfaces, grade not to exceed 1:14, and not over steps, kerbs, landscape edging or through a habitable area of the dwelling.

7. External Finishes

External finishes and colours shall be in accordance with the details submitted with the development application and approved with this consent.

8. Building Work to be in Accordance with BCA

All building work must be carried out in accordance with the provisions of the Building Code of Australia.

9. Separate Construction Certificate Required for Retaining Walls

A separate Construction Certificate Application is required for all retaining walls shown on the approved plans.

10. Air Conditioner Location

Air-conditioning unit location is to be a minimum 450mm from the side/rear boundary, and is to comply with SEPP (Exempt and Complying Development Codes) 2008 requirements.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE 11. Section 94A Contribution

Pursuant to section 80A (1) of the Environmental Planning and Assessment Act 1979, and The Hills Section 94A Contributions Plan, a contribution of $8,270.14 shall be paid to Council. This amount is to be adjusted at the time of the actual payment in accordance with the provisions of the Hills Section 94A Contributions Plan.

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

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

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PAGE 15 Proposed cost of the development Maximum percentage of the levy

Up to $100,000 Nil

$100,001 - $200,000 0.5 %

More than $200,000 1%

PRIOR TO WORK COMMENCING ON THE SITE 12. Sydney Water Building Plan Approval

A building plan approval must be obtained from Sydney Water Tap in™ to ensure that the approved development will not impact Sydney Water infrastructure.

A copy of the building plan approval and receipt from Sydney Water Tap in™ (if not already provided) must be submitted to the Principal Certifying Authority upon request prior to works commencing.

Please refer to the website http://www.sydneywater.com.au/tapin/index.htm, Sydney Water Tap in™, or telephone 13 20 92.

13. Approved Temporary Closet

An approved temporary closet connected to the sewers of Sydney Water, or alternatively an approved chemical closet is to be provided on the land, prior to building operations being commenced.

14. Erosion and Sedimentation Controls

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

15. Stabilised Access Point

A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements with the details approved by Council and/or as directed by Council Officers. These requirements shall be in accordance with Managing Urban Stormwater – Soils and Construction produced by the NSW Department of Housing (Blue Book).

16. Builder and PCA Details Required

Notification in writing of the builder’s name, address, telephone and fax numbers to be submitted to the Principal Certifying Authority prior to work commencing.

Two days before work commences, Council shall be notified of the Principal Certifying Authority in accordance with the Regulations.

17. Management of Building Sites – Builder’s Details

The erection of suitable fencing or other measures to restrict public access to the site and building works, materials or equipment when the building work is not in progress or the site is otherwise unoccupied.

The erection of a sign, in a prominent position, stating that unauthorised entry to the site is not permitted and giving an after hours’ contact name and telephone number. In the case of a privately certified development, the name and contact number of the Principal Certifying Authority.

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PAGE 16 18. Consultation with Service Authorities

Applicants are advised to consult with Telstra, NBN Co and Australia Post regarding the installation of telephone conduits, broadband connections and letterboxes as required.

Unimpeded access must be available to the electricity supply authority, during and after building, to the electricity meters and metering equipment.

19. Principal Certifying Authority

A sign is to be erected in accordance with Clause 98 A (2) of the Environmental Planning and Assessment Regulations 2000.

DURING CONSTRUCTION 20. Hours of Work

Work on the project to be limited to the following hours: - Monday to Saturday - 7.00am to 5.00pm;

No work to be carried out on Sunday or Public Holidays.

The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work.

21. Roof Water Drainage

Gutter and downpipes to be provided and connected to an approved drainage system upon installation of the roof covering.

22. Survey Certificate

A survey certificate signed and dated (including contact details) from a registered land surveyor may be requested by the Principal Certifying Authority at footings and/or formwork stage. The certificate shall indicate the location of the building/structure in relation to all boundaries, and shall confirm the floor/coping level prior to any work proceeding on the building/structure.

23. 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. 80974S_02 are to be complied with. Any subsequent version of this BASIX Certificate will supersede all previous versions of the certificate.

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

24. Compliance with Critical Stage Inspections and Other Inspections Nominated by the Principal Certifying Authority

Section 109E(3)(d) of the Act requires certain specific inspections (prescribed by Clause 162A of the Regulations) and known as “Critical Stage Inspections” to be carried out for building work. Prior to permitting commencement of the work, your Principal Certifying Authority is required to give notice of these inspections pursuant to Clause 103A of the Regulations.

N.B. An Occupation Certificate cannot be issued and the building may not be able to be used or occupied where any mandatory critical stage inspections or other inspections required by the Principal Certifying Authority are not carried out.

Where Council is nominated as Principal Certifying Authority, notification of all inspections required is provided with the Construction Certificate approval.

NOTE: You are advised that inspections may only be carried out by the PCA unless by prior agreement of the PCA and subject to that person being an accredited certifier.

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PAGE 17 25. Landscaping Works

Landscaping works, associated plantings and the construction of any retaining walls are to be undertaken generally in accordance with the approved plans.

26. Dust Control

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

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

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

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

THE USE OF THE SITE

27. Maintenance of Landscaping Works

The landscaping works, associated plantings and construction of retaining walls are to be effectively maintained at all times and throughout the life of the development.

ATTACHMENTS 1. Locality Plan 2. Zoning Map 3. Aerial Photograph 4. Site Plan

5. Elevations 6. Section

7. Shadow Diagram 8. Landscape Plan

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PAGE 18 ATTACHMENT 1 – LOCALITY PLAN

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PAGE 19 ATTACHMENT 2 – ZONING MAP

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PAGE 20 ATTACHMENT 3 – AERIAL PHOTOGRAPH

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PAGE 21 ATTACHMENT 4 – SITE PLAN

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PAGE 22 ATTACHMENT 5 – ELEVATIONS

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PAGE 23

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PAGE 24 ATTACHMENT 6 – SECTION

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PAGE 25 ATTACHMENT 7 – SHADOW DIAGRAM

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PAGE 26 ATTACHMENT 8 – LANDSCAPE PLAN

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PAGE 27 ITEM-3 DA 1949/2017/ZA - CHANGE OF USE TO AN ATTACHED DUAL OCCUPANCY UNDER SEPP (AFFORDABLE RENTAL HOUSING) 2009 AND AN ASSOCIATED SUBDIVISION CREATING TWO STRATA TITLE RESIDENTIAL LOTS - LOT 11 DP 1200890, 34 BRUHN CIRCUIT, KELLYVILLE

THEME: Balanced Urban Growth

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

STRATEGY: 7.1 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: 24/10/2017

DEVELOPMENT ASSESSMENT UNIT

AUTHOR: SENIOR TOWN PLANNER

PADRAIG SCOLLARD

RESPONSIBLE OFFICER:

ACTING MANAGER – SUBDIVISION AND DEVELOPMENT CERTIFICATION

BEN HAWKINS

Applicant G Ritchie

Owner Mr M G Williams

Exhibition / Notification 14 days Number Advised 8

Number of Submissions No submissions received Zoning R2 Low Density Residential

Site Area 700.9m²

List of all relevant

s79C(1)(a) matters  Section 79C (EP&A Act) – Unsatisfactory

 State Environmental Planning Policy (Affordable Rental Housing) 2009 – Unsatisfactory

 State Environmental Planning Policy No 55 – Remediation of Land – Satisfactory

 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 – Satisfactory

 The Hills Local Environmental Plan 2012 – Unsatisfactory

 The Hills Development Control Plan Part D Section 7 – Balmoral Road Release Area – Satisfactory

Political Donation None Disclosed

Reason for Referral to DAU 1. Recommendation for refusal Recommendation REFUSAL

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PAGE 28 EXECUTIVE SUMMARY

The development application is for a change of use from an attached dual occupancy approved under The Hills Local Environmental Plan 2012 to an attached dual occupancy under SEPP (Affordable Rental Housing) 2009 along with an associated subdivision creating two strata title residential lots which the applicant believes the change of use would make possible. The change of use would also mean that one of the two dwelling would need to be used for the purposes of affordable housing for no less than ten years.

The subject site is located on land zoned R2 Low Density Residential. Dual occupancies are permitted with consent in the R2 zone under both the The Hills Local Environmental Plan 2012 and SEPP (Affordable Rental Housing) 2009. The construction of the dual occupancy already approved under The Hills Local Environmental Plan 2012 is nearing completion.

The proposed change of use is unable to be considered under SEPP (Affordable Rental Housing) 2009 as the site is not considered to be situated within an “accessible location”, primarily with respect to access to a bus service to be considered in-fill affordable housing.

Under SEPP (Affordable Rental Housing) 2009 the subdivision may only be subdivided with the consent of the consent authority. The application has been assessed against The Hills Local Environmental Plan 2012 which does not permit the subdivision of dual occupancies. The Hills Local Environmental Plan 2012 also establishes a minimum lot size applying to the site of 700m². The subject site has an area of 700.9m² now.

Proposed strata lots 1 and 2 have an area of 364.6m² and 336.3m² respectively. In a recent decision of the Land and Environment Court under DM and Longbow Pty Ltd v Willoughby City Council the Court held that the minimum lot size standard applied to new strata plans (with only subdivisions within an existing strata plan being exempt).

Given the decision of the Court the proposed strata subdivision of the approved dual occupancy would result in a development that fails to comply with the minimum lot size set by The Hills Local Environmental Plan 2012.

Accordingly, the application is recommended for refusal.

BACKGROUND

On 11 August 2016 development consent was granted for the construction of a new two storey attached dual occupancy at 34 Bruhn Circuit, Kellyville (1939/2016/HA). That development application was assessed against and determined in accordance with The Hills Local Environmental Plan 2012 (LEP). The construction of the dual occupancy is nearing completion.

On 16 May 2017 DA 1718/2017/ZA was lodged for the Torrens/ conventional title subdivision of an attached dual occupancy under SEPP (Affordable Rental Housing) 2009 (SEPP ARH). The assessment of that application determined that Part 2 Division 1 of SEPP ARH, relating to in-fill affordable housing, did not apply to the existing dual occupancy development as it was approved under the LEP. The applicant withdrew the application on 21 June 2017.

On 21 June 2017 the subject development application was lodged for a change of use from an existing dual occupancy approved under the LEP to a dual occupancy under SEPP ARH and an associated Torrens/ conventional title subdivision creating two residential lots.

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PAGE 29 On 3 July 2017 a revised Statement of Environmental Effects was submitted to amend the application from Torrens/ conventional title subdivision to a strata title subdivision.

The applicant was requested to withdraw the application on 3 August 2017 due to a recent decision of the Land and Environment Court under DM and Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358 which relates to the applicability of the minimum lot size for strata subdivisions. This matter is discussed in greater detail below.

PROPOSAL

The development application is for a change of use from an attached dual occupancy approved under the LEP to an attached dual occupancy under SEPP ARH and an associated subdivision creating two stata title residential lots.

ISSUES FOR CONSIDERATION

1. State Environmental Planning Policy (Affordable Rental Housing) 2009

SEPP ARH seeks to encourage investment in new affordable housing. The policy provides incentives for the development of affordable rental housing, including expanded zoning permissibility, floor space ratio incentives and non-discretionary development standards.

The subject development application is made under Part 2 Division 1 of SEPP ARH (in-fill affordable housing). The proposal has been assessed against the relevant controls prescribed in the SEPP for in-fill affordable housing. The following table shows the developments performance against the relevant controls of the policy:

DEVELOPMENT STANDARD (CLAUSE NO.)

SEPP (ARH) 2009

DEVELOPMENT COMPLIANCE Clause 8 –

Relationship with other

environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

Noted.

With regard to subdivision, Clause 18 states that land

on which

development has been carried out under SEPP ARH may be subdivided with the consent of

the consent

authority.

Yes

Part 2 New affordable rental housing

Clause 10(1) – development to which this division applies

Applies to development for the purposes of dual occupancies, multi dwelling housing or residential flat buildings if:

a) the development concerned is permitted with consent under another environmental planning instrument, and

The site is zoned R2

Low Density

Residential. Dual occupancies are permitted with consent in the R2 Zone.

Yes

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PAGE 30 DEVELOPMENT

STANDARD (CLAUSE NO.)

SEPP (ARH) 2009

DEVELOPMENT COMPLIANCE b) the development is on

land that does not contain a heritage item that is identified in an environmental planning instrument, or an interim heritage order or on the State Heritage Register under the Heritage Act 1977.

The site does not contain a heritage item or interim heritage order or listed on the State Heritage Register.

Yes

Clause 10(2) Public transport

Clause 10(1) does not apply to development on land in the Sydney region unless all or part of the development is within an accessible area.

Accessible area as defined in Clause 4 means land that is within:

800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or

(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.

The site is not located within 800 metres walking distance of a public entrance to a railway station or wharf.

The site is not located within 400 metres walking distance to a light rail station.

The site is not within 400 metres walking distance to a bus stop. This matter is discussed in greater detail below.

No

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PAGE 31 Clause 13(1)

Development to which Division applies

The clause applies if the percentage of the gross floor area of the development that is to be used for the purposes of affordable housing is at least 20%.

One dwelling (Lot 2) is proposed to be used as affordable housing, equating to 50%.

Yes

Clause 13(2) Maximum floor space ratio

The maximum floor space ratio for the development to which this clause applies is the existing maximum floor space ratio for any form of residential accommodation permitted on the land on which the development is to occur, plus and incentive calculated on the existing maximum floor space ratio for the site.

N/A – the site is not subject to an existing FSR control under the LEP.

N/A

Clause 14 (1) Standards that cannot be used

to refuse

consent

Site and solar access requirements –

A consent authority must not

refuse consent to

development to which this Division applies on any of the following grounds:

(b) site area – if the site area on which it is proposed to carry out the development is at least 450 square metres,

(c) landscaped area – if:

(ii) at least 30 per cent of the site area is to be landscaped, (d) deep soil zones – if, in relation to that part of the site area (being the site, not only of that particular development, but also of any other associated development to which this Policy applies)

Clause 14(1)(b) establishes a minimum site area requirement of 450m² to undertake infill affordable rental housing. The site has an area of

700.9m² in

accordance with this control. It is noted that clause 18 of SEPP ARH specifically relates to the subdivision of land.

350.5m² (50%) of the site comprises landscaped areas.

Deep soil zones with a minimum dimension of 3m exceed 15% of the site area. In excess of two third of the deep soil zones at

Yes

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PAGE 32 that is not built on, paved or

otherwise sealed:

(i) there is soil of a sufficient depth to support the growth of trees and shrubs on an area of not less than 15 per cent of the site area (the deep soil zone), and

(ii) each area forming part of the deep soil zone has a minimum dimension of 3 metres, and

(iii) if practicable, at least two-thirds of the deep soil zone is located at the rear of the site area,

(e) solar access – if living rooms and private open spaces for a minimum of 70 per cent of the dwellings of the development receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter.

the site are located at the side/ rear of the property.

Under DA

1939/2016/HA it was determined that the living rooms and private open space of the dual occupancy

achieved a

minimum of 3 hours of direct sunlight between 9am and 3pm in mid-winter.

Yes

Clause 14 (2) Standards that cannot be used

to refuse

consent

General –

A consent authority must not

refuse consent to

development to which this Division applies on any of the following grounds:

(a) parking – if

(ii) at least 0.5 parking spaces are provided for each dwelling containing 1 bedroom, at least 1 parking space is provided for each dwelling containing 2 bedrooms and at least 1.5 parking spaces are provided for each dwelling containing 3 or more bedrooms,

(b) dwelling size – if each dwelling has a gross floor area of at least:

(i) 35m² for a bedsitter or studio

(ii) 50m² for a 1 bedroom (iii) 70m² for a 2 bedroom (iv) 95m² for a 3 bedroom

Each dwelling is provided with a double car garage.

Both dwellings provide four bedrooms and have a GFA in excess of 95m².

Yes

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PAGE 33 Clause 16A

Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

The design of the development is considered to be compatible with the existing and future character of the local area.

Yes

Clause 17 Must be used for affordable

housing for 10 years

(1) A consent authority must not consent to development to which this Division applies unless conditions are imposed by the consent authority to the effect that:

(a) for 10 years from the date of the issue of the occupation certificate:

(i) the dwellings proposed to be used for the purposes of affordable housing will be used for the purposes of affordable housing, and (ii) all accommodation that is used for affordable housing will be managed by a registered community housing provider, and

(b) a restriction will be registered, before the date of the issue of the occupation certificate, against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, that will ensure that the requirements of paragraph (a) are met

To be imposed in

any consent. A condition of consent can be imposed

should the application be approved.

Clause 18

Subdivision Land on which development has been carried out under this Division may be subdivided with the consent of the consent authority.

An assessment of the proposal against the LEP is provided under Section 2 of this report.

Refer to

discussion under Section 2 of this report.

(i) Clause 10 – Development to which Division applies

Clause 10(2) of SEPP ARH provides that Part 2 Division 1 (in-fill affordable rental housing) applies only to development in an “accessible location”. Clause 4 of the SEPP ARH defines an accessible location as follows:

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PAGE 34 (1) In this Policy:

accessible area means land that is within:

(a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or

(b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus

service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday.

The applicant has put forward that the site is located within 400m walking distance of a bus stop.

Clause 4 of SEPP ARH defines walking distance as follows:

walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings.

As illustrated in Attachment 4 the closest bus stop to the site measured via walking distance is approximately 500m. Accordingly, Part 2 Division 1 of SEPP ARH does not apply in this instance.

It is noted that there are two pedestrian links from Bruhn Circuit to Memorial Avenue.

However, as no footpath is currently provided along this section of Memorial Avenue (and the reconstruction of Memorial Avenue by the Roads and Maritime Service is not imminent) the routes from these pedestrian links to existing bus stops should not be considered as it does not provide for safe pedestrian access.

There is an existing non-serviced bus stop located at the intersection of Arnold Avenue and Butler Avenue, located approximately 390m from the site. It is understood that the service which will operate from this bus stop will commence in late 2018. However, details regarding the frequency of the service are still to be confirmed at this stage. It is unclear whether this bus service will meet the requirements for the site to be considered an accessible location under SEPP ARH. Further, as this service is currently not operating it cannot be considered under this application now.

(ii) Clause 18 – Subdivision

Following the submission of the application legal advice, prepared by McKees Legal Solutions, which addresses the subdivision of affordable rental housing developments, was provided (Attachment 5). This advice states:

There is no doubt the SEPP ARH permits dual occupancy developments on lots that are greater than 450m² and that this minimum lot size prevails over those contained in any Council LEP. Council must accept any application made pursuant to the SEPP ARH and carry out an assessment based on the standards provided in clause 14.

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PAGE 35 We further confirm that clause 18 of the SEPP ARH provides Council, or the Land and Environment Court, with the power to approve the subdivision of any dual occupancy development approved pursuant to the SEPP ARH. The SEPP ARH clearly contemplates and permits the subdivision of dual occupancies on lots greater than 450m² and Council must have regard to this and ignore any inconsistency with its own controls given the clarity and strength of clause 8.

Clause 14(b) of SEPP ARH establishes that a consent authority must not refuse consent to development under Part 2 Division 1 provided that it achieves a minimum site area of 450m² (subject to compliance with the relevant controls of SEPP ARH). The site has an area of 700.9m² and complies with Clause 14(b). However, Clause 14(b) does not specifically relate to the subdivision of lots within an in-fill affordable housing development. This is deferred to Clause 18 of SEPP ARH which states:

Land on which development has been carried out under this Division may be subdivided with the consent of the consent authority.

On this basis, the subdivision component of the application has been assessed against the relevant provisions of the LEP.

It is noted that if the site was situated within an “accessible location” the proposed change of use component of the application could be approved with a restriction placed on the title requiring one of the dwellings to be used for the purposes of affordable housing for a period of 10 years. Nonetheless, the subdivision component of the DA would need to be assessed against the relevant provisions of the LEP.

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

The land is zoned R2 Low Density Residential under the LEP. Dual occupancies are permitted with consent in the R2 Zone.

(ii) Compliance with The Hills LEP 2012 – Zone Objectives

The site is zoned R2 Low Density Residential. The objectives of the R2 zone are:

R2 Zone Objectives

• To provide for the housing needs of the community within a low density residential environment.

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

• To maintain the existing low density residential character of the area.

Under DA 1939/2016/HA it was considered that a dual occupancy was a suitable use at the site which is consistent with the objectives of the R2 zone.

(iii) The Hills LEP 2012 - Development Standards Clause 4.1 – Minimum subdivision lot size

Part 4 Clause 4.1 of the LEP reads as follows: