Agenda of Planning Meeting - 19 November 2008

Planning Report No. PLN216/08

Date of Meeting: 19/11/2008

1 DEVELOPMENT APPLICATION - DEMOLITION OF OUTBUILDINGS, ALTERATION TO THE EXISTING DWELLING AND SUBDIVISION OF ONE ALLOTMENT INTO TWO ALLOTMENTS
20 NYARA ROAD MT KURING-GAI

Development Application No:	552/2008 – Section 82A Review
Description of Proposal:	Demolition of outbuildings, alteration to the existing dwelling and subdivision of one allotment into two allotments.
Property Description:	Lot 27 DP 6358, No. 20 Nyara Road, Mt Kuring-gai
Applicant:	McKittrick Fry And O’Hagan
Owner:	Quantum Extracts Pty Ltd
Statutory Provisions:	Hornsby LEP 1994 Residential A (Low Density) SREP 20 – Hawkesbury Nepean River
Estimated Value:	$4000
Ward:	A

RECOMMENDATION

THAT Development Application No. 552/2008 for the demolition of outbuildings, alteration to the existing dwelling and subdivision of one allotment into two allotments at Lot 27 DP 6358, No. 20 Nyara Road, Mt Kuring-gai be approved subject to conditions of consent as detailed in Schedule 1 of this report.

EXECUTIVE SUMMARY

1. On 2 July 2008 Council refused DA/552/2008 for the demolition of outbuildings, alteration to the existing dwelling and the subdivision of one allotment into two allotments with the retention of the existing dwelling on proposed lot 1.

2. Pursuant to Section 82A of the Environmental Planning and Assessment Act, 1979 (the Act), a request has been made of the Council to review its determination.

3. The amended proposal complies with Hornsby Shire Local Environmental Plan 1994 (HSLEP) and Council’s Residential Subdivision Development Control Plan (RSDCP).

4. Sixteen submissions have been received in respect of the application.

5. It is recommended that the application be approved.

HISTORY OF THE APPLICATION

On 2 July 2008 Council’s Planning Committee first considered the subject application and resolved:

“THAT Development Application No. 552/2008 for demolition of outbuildings, alteration to the existing dwelling, subdivision of one lot into two and to retain the existing dwelling on proposed lot 1 be refused on the following grounds:

1. The development does not comply with objective (c) of the Hornsby Shire Local Environmental Plan 1994 as the development is not within the environmental capacity of the site.

2. The proposal does not comply with the “Drainage Control” element of the Residential Subdivision Development Control Plan as it proposes to fill a portion of the proposed rear allotment by 1.7m. This will result in landform modification and any future dwelling house on the allotment will have adverse impact on the privacy, views and solar access of the neighbouring properties.

3. The proposed development fails to comply with the ‘Accessway Design’ element of the Residential Subdivision Development Control Plan with the regard to the effective width of the access handle.

4. The proposal does not comply with the ‘Private Open Space’ element of the Dwelling House Development Control Plan, as it fails to demonstrate that appropriate private open space can be provided for the existing dwelling on lot 1.

5. The proposed development does not comply with the “Site Coverage” element of the Dwelling House Development Control Plan.

6. The proposed lot 2 does not comply with the prescriptive measure of the Residential Subdivision DCP in relation to the rear setback.

7. The proposal is unsatisfactory as a landscape plan is not included for the accessway design and the proposed private open space area in the front setback of lot 1.

8. Insufficient information has been provided regarding the details of the covered patio and any possible obstruction to the driveway due to the location of a post/column supporting the roof of the patio.”

In response, the applicant has supplied amended plans and further information in support of the application. This report details the assessment of an application for Council to review its determination pursuant to s.82A of the Act.

HISTORY OF THE SITE

On 15 August 2007 Council refused Development Application No. 245/07 for subdivision of one allotment into two allotments and the retention of the existing dwelling on proposed lot 1.

THE SITE

The site is rectangular in shape and has an area of 1,226 sqm. The property is located on the northern side of Nyara Road with an average slope of 10% from east to west (across the property).

A single storey brick veneer dwelling exists in the front portion of the site. The dwelling accommodates a double garage which is accessed via a driveway off Nyara Road. The front setback is landscaped and partly screened from the road due to the planting. There is an existing solid fencing along part of the western boundary. A retaining wall is constructed along this boundary behind the front building line with a wire mesh fence above it.

The site accommodates 21 trees including locally native Scribbly Gum and introduces Callistemon species.

The surrounding area is characterised by low density single and two storey dwellings. A few of the surrounding properties on Nyara Road and Alicia Road include battleaxe allotments with access via a 4 m wide driveway from the street.

THE PROPOSAL

The development application, as originally submitted to Council, involved the demolition of the outbuildings at the rear, alterations to the existing dwelling by removing a section of the eve and gutter and replacement with a gable roof, and the Torrens title subdivision of one allotment into two allotments, with an existing dwelling to be located on proposed lot 1. Lot 2 would be a battleaxe allotment, access being provided by an access handle off Nyara Road.

· Site area for lot 1: 548 sqm

(564 m²including right of way)

· Site area for lot 2: 545 sqm

(662 m² including access handle)

· FSR of existing dwelling on lot 1: 0.3:1

Proposed Lot 1 would be a rectangular allotment with a frontage to Nyara Road and would accommodate the existing single storey brick dwelling retaining the access to the double garage. The allotment would have a right of way over to accommodate an access handle servicing Lot 2.

Proposed Lot 2 would comprise a battleaxe allotment with access from Nyara Road via a 4m wide access handle which reduces to 3.5m within the portion of the site adjoining the existing dwelling. The allotment is capable of accommodating a building envelope with an area of 200 m². The proposed allotment would have a right of way over a section of lot 1 (16 sqm) along the eastern boundary of the access handle to increase the width of the handle to 4m and provide landscaping.

The applicant has submitted additional information in support of the Section 82A application to address Council’s previous reasons for refusal. In summary, the applicant submits that the amended plans address the reasons of refusal as follows:

· The patio attached to the existing dwelling on proposed lot 1 is proposed to be demolished. The removal of the patio would result in the reduction of the site coverage of the dwelling house and would increase the amount of useable private open space area at the rear and the side of the dwelling.

· The details of landscaping along both sides of the access handle are provided in the submitted plan.

· The proposal involves filling the north-western section of the site at the rear to a maximum height of 800 mm and construction of a retaining wall. The filled section would reduce in height and gradually be levelled at a distance of 10m from the western boundary.

· The proposed method of stormwater disposal has been amended. The proposed wall along the western boundary would intercept and direct overland flows (from rainfall) through a pit (to be constructed with the interallotment drainage system) to Council’s drainage system within Nyara Road.

ASSESSMENT

The development application has been assessed having regard to the ‘2005 City of Cities Metropolitan Strategy’, the ‘North Subregion (Draft) Subregional Strategy’ and the matters for consideration prescribed under Section 79C of the Environmental Planning and Assessment Act 1979 (the Act). Subsequently, the following issues have been identified for further consideration.

1. STRATEGIC CONTEXT

1.1 Metropolitan Strategy – (Draft) North Subregional Strategy

The Metropolitan Strategy is a broad framework to secure Sydney’s place in the global economy by promoting and managing growth. It outlines a vision for Sydney to 2031; the challenges faced, and the directions to follow to address these challenges and achieve the vision. The draft North Subregional Strategy acts as a framework for Council in the preparation of a new Principal LEP by 2011.

The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:

· Employment capacity to increase by 9,000 jobs; and

· Housing stock to increase by 11,000 dwellings.

The proposed development would be consistent with the draft Strategy by providing an additional allotment and would facilitate greater housing choice in the locality.

2. STATUTORY CONTROLS

Section 79C(1)(a) requires Council to consider any relevant environmental planning instruments, draft environmental planning instruments, development control plans, planning agreements and other prescribed matters.

2.1 Hornsby Local Environmental Plan 1994

The subject land is zoned Residential A (Low Density) under the Hornsby Local Environmental Plan 1994 (HSLEP). The objectives of the zone are:

a) to provide for the housing needs of the population of the Hornsby area.

b) to promote a variety of housing types and other land uses compatible with a low density residential environment.

c) to provide for development that is within the environmental capacity of a low density residential environment.

The uses are defined as ‘demolition’ and ‘subdivision’ and are permissible within the zone pursuant to Clause 7 of the HSLEP.

The development would facilitate the provision of housing for the population of the area and would be compatible with the low density residential environment. The proposal complies with objectives (a) and (b) of the zone in this regard.

The proposal, as amended, would provide a method of stormwater drainage that is considered suitable and would improve the current drainage situation in the street. The proposed width of the new access handle servicing the rear allotment is considered adequate, given the landscaping opportunities. The proposed land fill is within the prescribed measures of the RSDCP. The proposal therefore would result in a development within the environmental capacity of the site and complies with objective (c) of the zone. The amended proposal addresses reason no. 1 for refusal of the original application satisfactorily.

Clause 14 of HSLEP prescribes that the minimum size of allotments within the zone is 500 sqm. The proposal complies with Clause 14 in this regard.

Clause 15 of HSLEP prescribes that the maximum floor space ratio (FSR) of development within the zone is 0.4:1. The proposed FSR for the existing dwelling on proposed allotment 1 is 0.3:1. Therefore, the proposal complies with Clause 15 with regard to proposed FSR. Having regard to the proposed size of lot 2, a dwelling of 218 sqm could be constructed within the FSR requirement.

2.2 State Regional Environmental Plan No. 20 – Hawkesbury Nepean River

The application has been assessed against the requirements of Sydney Regional Environmental Plan No. 20. This Policy provides controls to protect the environment of the Hawkesbury-Nepean system, including its water quality. The plan addresses matters related to water quality, significant vegetation habitats, extraction, environmental heritage and scenic quality, recreation and tourism, and agriculture.

It is considered that the proposed development is not inconsistent with the objectives of the Plan. The matters in relation to “water quantity” are discussed in Section 2.3.7 of this report.

2.3 Residential Subdivision Development Control Plan

The proposed development has been assessed having regard to the relevant performance and prescriptive design standards within Council’s Residential Subdivision Development Control Plan (RSDCP). The following table sets out the proposal’s compliance with the prescriptive measures of the Plan:

Residential Subdivision Development Control Plan

Control

Proposal

Requirement

Compliance

Density

Lot 1

Lot 2

548 m²

545 m²

500 m²

Yes

FSR

Lot 1

0.3:1

0.4:1

Yes

Site cover

Lot 1

38%

40%

Yes

Building Envelope

Lot 2

218 m²

200 m²

Yes

Building Envelope minimum dimension

Lot 2

12m

10m

Yes

Car parking

Lot 1

Lot 2

2 spaces

Yes

Private Open Space

Lot 1

Lot 2

140m²

147m²

120 m²

Yes

Landscaping

Lot 1

Lot 2

48%

45%

Yes

Setbacks

Lot 1

Front (Nyara Road)

Western side

Eastern side No Yes

Rear

Lot 2

Front

Western side

Eastern side No Yes

Rear

No change

5 m

7.5m

Yes

Cut and Fill

Lot 2

0.8m

Yes

Width of Access Handle

3.5m – 4m

As detailed in the above table, the proposed development does not comply with one prescriptive measure within Council’s RSDCP. The matter of non-compliance is detailed below, as well as a brief discussion on compliance with relevant performance criteria.

2.3.1 Design

The allotments are designed to have a north-south orientation. The proposed allotment at the rear would be capable of accommodating a building envelope exceeding the required 200 sqm including adequate car parking and turning areas. The existing dwelling within proposed lot 1 would maintain an adequate setback from the rear boundary to retain the privacy of any future dwelling house on proposed lot 2. The design of the allotments is considered appropriate.

2.3.2 Density

The amended plans include the demolition of the covered patio. Therefore, proposed lot 1 now complies with the ‘Site Coverage’ control of Council’s Residential Subdivision DCP. The Section 82A review application addresses reason No. 5, of refusal of the original application and is considered satisfactory.

2.3.3 Setbacks

The dwelling on proposed lot 1 currently exists on the site. The provision of the access handle along the western boundary would result in a nil setback of a section of the dwelling house from the boundary. This section of the dwelling house includes the western wall of the garage with a window opening.

The effect of the nil setback of the window from the boundary can be mitigated via a condition to protect the opening in accordance with the fire separation requirements of the Building Code of Australia. Given the above, the non-compliance with the prescriptive measure regarding the setbacks is acceptable.

The building envelope on proposed lot 2 is setback at a distance of 3m from the rear boundary and complies with Council’s RSDCP. The amended application therefore addresses reason No. 6 of refusal of the original application.

2.3.4 Private Open Space

The amended proposal involves the demolition of the patio attached to the existing dwelling. The private open space area for proposed lot 1 would be wholly contained behind the front building line and is considered suitable. A condition is recommended for screen planting along the eastern boundary of the access handle to retain the privacy of the open space. A condition is also recommended that no fence be erected on the front boundary of the allotment to avoid any detrimental impact on the streetscape.

The amended application addresses reason No. 4 for refusal of the original application with regard to private open space areas and is considered satisfactory.

2.3.5 Access Handle

The RSDCP requires the minimum width of access handles to be 4m. The proposed access handle maintains an effective width of 4m for the majority of its length. However, the width would reduce to 3.5 m in the section of the site accommodating the existing dwelling. Given that the dwelling house is existing and that 0.3m -0.5m of landscaping can be provided between the driveway and the dwelling in addition to the 3m wide driveway, the non-compliance is considered acceptable. The amended application involves the removal of the post located within the driveway to comply with the driveway width and addresses reason No. 8 for refusal of the original application.

The application also provides details of the landscaping along the eastern and western boundaries to ensure that the privacy of the dwelling house at 22 Nyara Road, is retained. The application therefore adequately addresses reasons Nos. 3 and 7 of the original application by providing details of landscaping opportunities on either side of the driveway.

2.3.6 Car Parking

The proposal would not have any adverse impact on transport, traffic, access and parking within the site. The existing dwelling accommodates two car spaces and is acceptable. The proposed allotment at the rear is capable of accommodating two car spaces and a turning area.

2.3.7 Drainage Control

The proposal would result in the increase of the hard surface areas by creating an additional allotment and therefore increasing the quantity of water runoff from the site. The original application was refused due to non-compliance with the ‘drainage control’ element of the RSDCP.

The engineering assessment of the proposal concludes that the amended proposal is acceptable as the amount of stormwater generated currently due to rainfall, to downstream properties, would be reduced by the proposed retaining wall at the rear. In absence of this wall, the overland flows would normally enter the downstream properties. A positive covenant would be created for provision of an on -site detention system with any future dwelling within proposed lot 2 in addition to an interallotment drainage easement.

Stormwater is proposed to be drained to Council’s drainage system within Nyara Road, which has adequate capacity to accommodate the flow from any on-site detention system to be built with any future dwelling house within proposed lot 2. A section of the site at the rear would be filled to achieve the stormwater drainage. The fill would attain a maximum height of 800 mm along the western boundary and is acceptable.

The applicant addresses reason No. 2 for refusal by proposing a suitable method of stormwater disposal and reducing the height of the proposed fill in the amended plans.

2.3.8 Soil and Water Management

The amended proposal reduces the height of the proposed fill from 1.7m to 0.8m. Further, the proposed fill on site would effectively improve the stormwater management of the land and Nyara Road and is considered suitable. The amended proposal addresses the matters of non-compliance in relation to the proposed fill, raised in the original application and is assessed as satisfactory.

2.3.9 Dwelling House Development Control Plan

The existing dwelling house on proposed lot 1 has been assessed having regard to the relevant performance and prescriptive design requirements of Council’s Dwelling House Development Control Plan. The proposal does not alter the height or design of the existing dwelling. The compliance of the dwelling house with the relevant performance criteria such as FSR, site cover, setbacks, private open space, car parking and landscaping are discussed in Section 2.3 of this report.

3. ENVIRONMENTAL IMPACTS

Section 79C(1)(b) of the Act requires Council to consider “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”.

3.1 Natural Environment

The proposed development would necessitate the removal of two trees on proposed lot 2.

Council’s assessment of the proposal included a detailed examination of the existing trees on site. No trees within the site are identified as ‘significant trees’ apart from a street tree within the frontage of the property. The proposal would not have an adverse impact on the tree subject to compliance with relevant conditions.

The development is considered acceptable with regard to its impact on the natural environment.

3.2 Built Environment

The proposal involves alterations to the existing dwelling by removing a section of the eve and gutter and replacement with a gable roof and the removal of a patio attached to the dwelling. The proposed alterations would have negligible impact on the streetscape. The proposed allotments comply with the minimum allotment size requirement.

The proposal, as amended includes the demolition of a patio to reduce the overall building footprint of the existing dwelling house.

The current proposal involves the filling of a section of the site and increasing the level by 800 mm along the western boundary. This is considered acceptable as it complies with the prescriptive measures of Council’s RSDCP and would improve the overall drainage pattern on site. The provision of 1.8 m high boundary fence on the retaining wall would assist to retain the privacy of the adjoining property at 22 Nyara Road. However, the impact of any future dwelling house on the surrounding built environment would be assessed under a separate development application.

Council’s engineering assessment of the traffic impacts of the development concludes that the proposal is acceptable with regard to the driveway widths, accessway provisions and car spaces on site. The proposal would not result in a detrimental impact on the built environment of the area.

4. SITE SUITABILITY

Section 79C(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

The site is considered suitable for the development as it would generate two allotments exceeding 500 sqm and capable of accommodating two dwelling houses with minimal impact on the natural and built environment.

5. PUBLIC PARTICIPATION

Section 79C(1)(d) of the Act requires Council to consider “any submissions made in accordance with this Act”.

5.1 Community Consultation

The proposed development was placed on public exhibition and was notified to adjoining and nearby landowners between 25 September 2008 and 9 October 2008 in accordance with Council’s Notification and Exhibition Development Control Plan. During this period, Council received sixteen submissions. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

2 SUBMISSIONS RECEIVED OUT OF MAP RANGE

Sixteen submissions objected to the development. The concerns raised by the objectors and the merits of the matters raised in community submissions have been addressed below:

· Any proposed dwelling will have potential overlooking opportunities.

· The private open space area for lot 2 will not receive sufficient solar access due to the north-west orientation.

· Any future dwelling house on Lot 2 would intercept the existing overland flow from properties further up the street. This would result in inconvenience to the downstream properties.

· The level of the rear allotment will be increased unacceptably due to the proposed fill. Any future dwelling house on the proposed allotment will have adverse impact on the surrounding properties with regard to privacy and views.

The proposed fill on site is 0.8m and complies with the requirements of Council’s Dwelling House DCP. As discussed in this report, the proposed fill and the retaining wall would improve stormwater management on site. The proposed fill is within the required 1m, thus minimizing the impact on privacy and solar access to the adjoining dwelling houses. Any impacts on privacy can be mitigated by the construction of a boundary fence. However, the matters in relation to potential overlooking opportunities, solar access and overland flows would be assessed in detail under a separate development application for a dwelling house on proposed lot 2.

· The materials proposed for land fill and methods of preventing future erosion are

not specified.

A condition is recommended requiring that all imported fill material be clean, that is, non-contaminated excavated material (i.e. soil, rock or similar material) and not putrescible and non-putrescible solid waste (including demolition material). All fill, including existing fill, would be compacted in accordance with Council’s Civil Works - Construction Specification 2005.

· The proposal is only for the profit of the developer.

The proposal would result in the creation of one additional allotment and therefore increase the housing choice within the LGA.

· Construction of a 800mm high retaining wall, 1800mm high solid boundary fence and any future development, being setback 1m from the boundary, would adversely impact on the solar access to the existing dwelling at No. 22 Nyara Road.

The current proposal does not include the construction of a dwelling house. In accordance with the Dwelling house DCP, any future dwelling house on site should be limited to single storey to have limited overshadowing impact on the adjoining western property. However, this matter would be assessed in detail under a separate development application.

· The application does not include a landscape plan for viewing by the neighbours.

The proposed subdivision plan includes details of landscaping and is considered satisfactory.

· The proposed demolition of the patio is not credible as the patio can be constructed after the approval of the application.

The proposal includes the demolition of the patio and the subdivision certificate would not be released without the demolition of the patio and construction of the driveway providing access to the battleaxe allotment.

· The development would result in the destruction of trees.

· The drainage on the street is inadequate. The proposal would aggravate this problem.

· The proposal will result in reduced amenity for the neighbouring properties due to lack of privacy.

· Privacy of the open space area for lot 1 will be hampered due to the location of the access handle. Location of the private open space area within the front setback is not acceptable.

· The width of the access handle is deficient due to the location of the retaining wall.

· The proposal does not include details of the right-of-way.

· No satisfactory overland flow path is available for the proposed on-site-detention system. If the detention tank overflows due to a major storm event or a blockage due to low maintenance, then the adjoining property at No. 22 Nyara Road would be flooded.

· The propose 375mm diameter pipeline across Nyara Road is considered inadequate. The connection of the pipeline to a pit on the northern side of the roadway and replacement of the deep table drain by a kerb and gutter is preferred to the current system.

· The development is not within the environmental capacity of the land.

· The proposed development does not comply with the site coverage element of the RSDCP.

· The building envelope on proposed lot 2 does not comply with RSDCP with regard to rear setback.

The above matters have been discussed in the body of this report under the relevant headings.

6. THE PUBLIC INTEREST

Section 79C(1)(e) of the Act requires Council to consider “the public interest”.

The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to, and respecting, the future desired outcomes expressed in environmental planning instruments and development control plans.

The application is considered to have satisfactorily addressed Council’s criteria and would provide a development outcome that, on balance, would result in a positive impact for the community. Accordingly, it is considered that the approval of the application, would be in the public interest.

7. CONCLUSION

The application proposes the demolition of outbuildings and patio, alterations to existing dwelling and subdivision of one allotment into two allotments with the retention of the existing dwelling on proposed lot 1.

The original application did not comply with the ‘site cover’, ‘private open space’ and ‘access handle’ elements within the RSDCP. Further, the application proposed to fill a section of the site at the rear, to a height of 1.7m and did not comply with the ‘soil and water management’ element and the ‘drainage control’ element of the DCP.

The Section 82A review application for DA/552/2008 has addressed the reasons for refusal of the original application by addressing the issues of non-compliance with the above provisions. The submitted additional information involves the demolition of the patio and demonstrates compliance of proposed lot 1 with the elements ‘site cover’ and ‘private open space’. Landscaping opportunities are provided along the majority of the access handle and the non-compliance with regard to the width for a section of the site is considered acceptable. The amended application reduces the fill on site and proposes appropriate drainage of the site to Nyara Road. Therefore, the amended proposal has addressed the reason for refusal of the original application in relation to the above matters.

Having regard to the assessment of the proposed development, it is recommended that Council approve the application subject to the recommended conditions in Schedule 1 of this report.

Rod Pickles

Manager - Assessment Team 2

Planning Division

Scott Phillips

Executive Manager

Planning Division

Attachments:

1.View	Locality Plan
2.View	Landscape Plan
3.View	Floor Plan and Elevation
4.View	Subdivision Plan

File Reference: DA/552/2008

Document Number: D01029165

SCHEDULE 1

Approved Plans and Supporting Documentation (applicable to all stages)

1. The development must be carried out in accordance with the following plans and documentation listed below and endorsed with Council’s stamp, except where amended by other conditions of this consent:

*Plan No.*	*Drawn by*	*Dated*
Plan of Subdivision	McKittrick Fry and O’Hagan	9/09/2008
Erosion and Sediment Control Plan	McKittrick Fry and O’Hagan	9/09/2008
Landscape Concept Plan	McKittrick Fry and O’Hagan	9/09/2008
Floor Plan	McKittrick Fry and O’Hagan	9/09/2008

*Plan No.*	*Drawn by*	*Dated*
Waste Management plan	McKittrick Fry and O’Hagan	9/09/2008

Building Code of Australia

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

Fencing

3. No fencing shall be erected on the front boundary of proposed lot 1.

Screen planting

4. The area adjoining the access handle, as indicated in the approved plan, shall be provided with screen planting to retain the privacy of the open space area of proposed lot 1. The landscaping works shall be undertaken prior to the release of the subdivision certificate.

Fill

5. All fill, including existing fill, must be compacted in accordance with the Hornsby Shire Council Civil Works - Construction Specification 2005. The fill material imported to the site is to consist of clean fill material only, that is, non-contaminated excavated material (i.e. soil, rock or similar material). Putrescible and non-putrescible solid waste (including demolition material) is not permitted.

6. A compaction certificate is to be obtained from a chartered civil engineer / geotechnical engineer verifying that the correct compaction requirements have been met.

7. At the completion of filling works, a certificate prepared by a registered surveyor shall be submitted to Council certifying finished ground levels are in accordance with the approved plans.

Sydney Water

8. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au or telephone 13 20 92 for assistance.

9. The concrete vehicular crossing shall be a minimum of 150mm in depth reinforced with F72 steel reinforcing fabric. The vehicular crossing shall have a minimum width of 3.0m at the property boundary alignment.

10. The driveway is to be constructed with a turning area within the proposed lot 2 to ensure that vehicles can come out to the premises using Australian Standard AS 2890.1-2004 85^th percentile car turning template.

11. The vehicular crossing and the internal driveways are to be designed and constructed in accordance with Hornsby Shire Council Civil Works Specifications and AS 3727 and shall comply with the following requirements:

a) Longitudinal sections through the centrelines of the driveways from the street /road to the proposed garages, showing proposed driveway grades and allowing or suitable transition at changes of grades, are to be submitted for consideration with a construction certificate application.

b) The maximum grade is to be 25% with maximum transition for changes of grade to be 8% per plan meter.

Kerb and gutter

12. The kerb, gutter and pavement would be constructed in line with the adjoining property laybacks and gutters with footpath formation, necessary drainage and sealing of road pavement between the existing pavement and lip of the gutter. The existing road pavement is to be saw-cut, a minimum of 300mm from the existing edge of bitumen and reconstructed. The work is to be completed prior to the issue of the occupancy or subdivision certificate, whichever is first. The footpath is to be graded at 4% from the kerb to the property boundary.

Drainage

13. An interallotment drainage system is to be constructed for drainage of any future dwelling on the proposed lot 2 and stormwater discharged to Council drainage system in accordance with the plan, prepared by Mckittrick Fry and O’Hagan, Reference No 08/38A1. The system is to be designed with a provision for connection of a discharge pipe from a future on-site detention facility. The drainage lines shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall be:

a) be in accordance with Hornsby Shire Council Civil Works – Design Specification 1999;

b) be in accordance with Australian/New Zealand Standard 3500.3; and

c) ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance

to adjoining properties.

14. Each of the proposed lots serviced by the proposed interallotment drainage easement shall have burden and benefit created pursuant to Section 88B of the Conveyancing Act 1919.

Subdivision Certificate

15. A surveyor’s certificate stating that no services, drainage lines or access way encroach over the proposed boundary other than as provided for by easements created by the final plan of subdivision shall be submitted to Council at the completion of works.

Rights of Access and Easement for Services

16. Reciprocal rights of access and easement for services are to be created over the common driveway (access corridor) under Section 88B of the Conveyancing Act 1919.

Positive Covenant

17. A “Positive Covenant” is to be created over the proposed lot 2 requiring that any future development is to provide an on-site detention system. The on site detention system is to have a storage capacity of 5 cubic meters and a maximum discharge of 8 litres per second into Council’s drainage system in accordance with Council’s standard wording.

Works as Executed Plan

18. A works-as-executed plan prepared by a chartered engineer or a registered surveyor must be lodged with Council when the engineering works are complete with the Subdivision Certificate application. The works–as executed plan shall clearly show the location of all public utility service pipes, mains and conduits (provision of services).

Council Property

19. The cost of repairing any damage caused to Council's assets in the vicinity of the subject site as a result of construction works associated with the approved development is to be paid for by the applicant/developer prior to release of the linen plan.

Fire Upgrading

20. The window opening located in the western wall of the garage is to be protected in accordance with the fire separation requirements of Part 3.7.1.5 of the Building Code of Australia.

Demolition Works

21. All demolition work is to be carried out in accordance with the applicable provisions of Australian Standard 2601-2001 ‘The Demolition of Structures’.

22. In order to maintain the amenity of adjoining properties, demolition works shall be restricted to between 7.00 am and 6.00 pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless written Council gives consent.

Dust Control

23. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works.

Asbestos Removal

24. The collection, storage, transportation or disposal of any type of asbestos waste is to comply with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996. Upon completion of disposal operations, the applicant must lodge with the principal certifying authority, within seven (7) days, all receipts (or certified photocopies) issued by the receiving landfill site as evidence of proper disposal.

Note: The person responsible for disposing of the asbestos material shall consult with the Environment Protection Authority to determine the location of an approved landfill site to receive asbestos material.

Tree Trunk Protection

25. To avoid mechanical injury or damage, tree numbered 1 is to have its trunk protected by 2m lengths of 75mm x 25mm hardwood timbers spaced at 80mm secured with galvanised wire (not fixed or nailed to the tree in any way). Trunk protection is to be installed prior to the issue of a construction certificate and maintained in good condition for the duration of the construction period. Affixing signage to trees located on site or located on the nature strip is not permitted.

Materials

26. The applicant is to ensure that no building materials, stockpiles or fill encroaches upon retained trees for the duration of the works. No underground services (i.e. water, drainage, gas, and sewer) should be laid within 3m of any tree located on the property protected under Council’s Tree Preservation Order.

Contribution

27. The payment of a contribution of $ 18,996.80 for one (1) additional allotment, towards the cost of transport and traffic management, open space and recreation facilities, library and community facilities, bushland regeneration, stormwater drainage, civic improvements and section 94 plan administration in accordance with sections 94, 94A and 94C of the Environmental Planning and Assessment Act, 1979 and the Hornsby Shire Council’s Development Contributions Plan 2007-2011. The contribution is based on a rate of $ 18,996.80 per additional allotment and it is to be paid by the end of the 30 December 2008 and prior to the issuing of the subdivision certificate. The contribution will be adjusted in accordance with the underlying consumer price index for the subsequent financial quarters.

Note 1: It is recommended that you contact Council on 9847 6030 to ascertain the indexed value of contributions prior to payment.

Erection of Construction Sign

28. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

a) showing the name, address and telephone number of the principal certifying authority for the work;

b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours; and

c) stating that unauthorised entry to the work site is prohibited.

Hours of Construction

29. In order to maintain the amenity of adjoining properties, site works must be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. Site works may extend to 4.00 pm on Saturdays if inaudible on residential properties. No work must be undertaken on Sundays or public holidays. Plant, goods or materials must not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.

ADVISORY NOTES

The following information is provided for your assistance to ensure compliance with the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, other relevant Council Policy/s and other relevant requirements. This information does not form part of the conditions of development consent pursuant to Section 80A of the Act.

Environmental Planning and Assessment Act, 1979 Requirements

1. The Environmental Planning and Assessment Act, 1979 requires you to:

a) Obtain a construction certificate prior to the commencement of any works. Engineering design plans and specifications are to be prepared by a chartered professional engineer for any proposed works. The plans and specifications are to be in accordance with development consent conditions, appropriate Australian standards, and applicable Council standards, in particular “Hornsby Shire Council Civil Works - Design and Construction Specification”. The information that is required to be submitted with a construction certificate is as follows:

· Copies of any compliance certificates that are to be relied upon

· Four (4) copies of the detailed engineering plans in accordance Hornsby Shire Council's Civil Works - Design Specification 1999. The detailed plans may include but are not limited to the earthworks, roadworks, road pavements, road furnishings, stormwater drainage, landscaping and erosion control works.

· Hornsby Shire Council’s approval is required for any works within the public road reserve of Oleander Road or Highlands Avenue prior to the issuing of a construction certificate for these works.

Enquiries regarding the issue of a construction certificate can be made to Council’s Customer Service Centre on 4645 4608

b) Nominate a principal certifying authority and notify Council of that appointment prior to the commencement of any works;

c) Give Council at least two days notice prior to the commencement of any works;

d) Have mandatory inspections of nominated stages of the construction inspected;

f) Lodge separate applications under the Local Government Act 1993 and Roads Act 1993 to Council for approval for:-

§ The installation of vehicular footway crossings servicing the proposed lot 2 and the removal of any redundant crossings.

Note: You are advised to contact Council’s Works Division on (02) 9847 6940 to obtain a list of Council’s Authorised Vehicular Crossing contractors.

§ The undertaking of work within a public road (this includes laneways, public pathways, footways).

g) Obtain a construction certificate from Council for approval of the kerb and gutter works (Council is the only authority that can issue such a certificate for its assets). Details are to be submitted by Chartered Professional Civil Engineer of the Institution of Engineers, Australia.

Fire Upgrading

2. Smoke alarms are required in the existing dwelling building in accordance with the Building Code of Australia. A certificate from a licensed electrician certifying that the smoke alarms have been connected to the consumer mains power is to be submitted to Hornsby Council

- END OF CONDITIONS -

Planning Report No. PLN220/08

Date of Meeting: 19/11/2008

2 DEVELOPMENT APPLICATION - CONSTRUCTION OF A NEW MULTI-PURPOSE HALL, OFFICE AND STORE ROOM FOR USE AS A PLACE OF WORSHIP
3 AMOR STREET ASQUITH

Development Application No:	977/2007
Description of Proposal:	Demolition of part of the existing church offices and hall and construction of a new multi-purpose hall, office and store room for use as a place of worship
Property Description:	Lot 1 DP 136101 and Lot 39 DP 12901, No. 3 Amor Street Asquith
Applicant:	Asquith Church of Christ
Owner:	Church of Christ Property Trust
Statutory Provisions:	Hornsby Shire Local Environmental Plan 1994: Special Uses A (Community Purposes) State Environmental Planning Policy No. 64 Advertising and Signage Community Uses Development Control Plan Car Parking Development Control Plan Outdoor Advertising Development Control Plan
Estimated Value:	$997,700
Ward:	A

RECOMMENDATION

THAT Development Application No. 977/2007 for the demolition of part of the existing church offices and hall and construction of a new multi-purpose hall, office and store room for use as a place of worship at Lot 1 DP 136101 and Lot 39 DP 12901, No. 3 Amor Street Asquith be refused for the reasons detailed in Schedule 1 of this report.

EXECUTIVE SUMMARY

1. The application proposes the demolition of part of the existing church offices and hall and construction of a new multi-purpose hall, office and store room for use as a church.

2. The proposal does not comply with the provisions of the Community Uses Development Control Plan and the Car Parking Development Control Plan.

3. No submissions have been received in respect of the application.

4. It is recommended that the application be refused.

HISTORY OF THE SITE

The site has been used as a place of worship for 66 years. During this time a number of extensions comprising a hall, amenities block, offices, and Sunday School building have been constructed.

THE SITE

The site has an area of 1361 sqm and is bounded by Amor Street to the north, Wattle Lane to the east, a Council car park to the south and residential property to the west. The site is characterised by a slight fall from the northern boundary down to the southern boundary.

Existing development on the site comprises:

· The main building along the western boundary, which is divided into a church and a multi-purpose hall. The multi-purpose hall includes a kitchen, stage and a storeroom.

· A small single storey meeting room with a pitched roof along the eastern boundary of the site.

· A small single storey building, which serves as a hall, located along the eastern boundary of the site adjacent to the amenities block.

· A small amenities building along Wattle Lane in the south eastern corner containing toilets.

There is currently no car parking available on the site and the congregation predominantly utilises the Council car park immediately to the south of the site.

The site is surrounded by a variety of land uses and activities including business, civic and residential uses. It is located in close proximity to retail and commercial uses along the Pacific Highway and the Main Northern Railway line.

The development immediately adjoining and opposite the site is detailed below:

· A Council owned car park is located directly south of the site.

· A supermarket is located further south of the car park.

· The Asquith local retail strip is located east of the site, on the opposite side of Wattle Lane.

· A post office, fast food retail outlet and residential dwellings are located north of the site on Amor Street.

· A residential allotment adjoins the church on the western boundary.

THE PROPOSAL

The proposed redevelopment seeks to demolish part of the existing church offices and hall and construct a new multi-purpose hall, office and store room for use as a place of worship.

The development components are summarised as follows:

· Demolition of the existing chapel, which comprises the northern half of the main building along the western boundary. The rear portion, accommodating the multi-purpose hall is to be retained.

· Demolition of the fibro hall and offices/outbuildings adjacent the eastern boundary/ Wattle Lane.

· Construction of a church comprising the following features:

Development Component

Description

Ground Floor

- Worship area with seating for 240 people. (During special events the site may accommodate up to 300 people).

- Raised platform with baptistery

- Two change rooms and storeroom located at the rear of the raised platform.

- Bio box and crying room at the rear of the worship area.

- Office with book display

- Three bathrooms

- Cleaner storage

First Floor

- Two ancillary meeting rooms

- Three ancillary offices

· Installation of an awning along the northern entrance of the church.

· Construction of three storerooms.

· New opening to the foyer from a relocated door and new door to kitchen.

· A new paved forecourt area, with provision for three car parking spaces to cater for people with a disability and for special occasions, such as weddings and funerals.

· Landscaping within the front setback to enhance the appearance of the site and the eastern side setback adjacent to the new courtyard.

· Removal of the chain wire fence and provision of new gates along the eastern boundary and rear of the site.

· Erection of four signs as follows:

Development Component	Description
Sign 1	A freestanding advertisement for the purpose of displaying changeable messages. The sign would be located on the Amor Street frontage and would have an overall height of 3 metres and a width of 2.42 metres. The sign would not be illuminated.
Sign 2	A building identification sign on the northern Amor Street elevation of the building. The sign consists of a logo and 3D lettering containing the words ‘Church of Christ - Asquith’ with dimensions of 4.8 metres (L) x 2.2 metres (H). The sign would not be illuminated.
Sign 3	A building identification sign on the eastern Wattle Lane elevation of the building. The sign consists of a logo and 3D lettering containing the words ‘Church of Christ - Asquith’ with dimensions of 3.8 metres (L) x 1.8 metres (H). The sign would not be illuminated.
Symbol	A Cross would be affixed to the pre-cast concrete panels along the Amor Street elevation.

ASSESSMENT

1. STRATEGIC CONTEXT

1.1 Metropolitan Strategy – (Draft) North Subregional Strategy

The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:

· Employment capacity to increase by 9,000 jobs; and

· Housing stock to increase by 11,000 dwellings.

The proposed development would be consistent with the draft Strategy in so far as providing additional jobs in the locality.

2. STATUTORY CONTROLS

2.1 Hornsby Local Environmental Plan 1994

The subject land is zoned Special Uses A (Community Purposes) under Hornsby Local Environmental Plan 1994 (HSLEP). The objectives of the Special Uses A (Community Purposes) zone are:

(a) to provide for the cultural needs of the community.

(b) to identify land for the provision of community services and facilities.

(c) to ensure that community uses are compatible with the amenity of the area in which they are located.

The proposed development is defined as ‘place of worship’ under HSLEP and is permissible in the zone with Council’s consent.

2.2 State Environmental Planning Policy No. 64 Advertising and Signage

SEPP 64 establishes development standards for advertising signs. The Policy aims to:

(a) ensure that signage (including advertising) is compatible with the desired amenity and visual character of the area, provides effective communication in suitable locations and is of a high quality and finish;

(b) regulate signage (but not content) under Part 4 of the Act; and

(c) provide time-limited consents for the display of certain advertisements.

The proposed signage satisfies the requirements of the Policy.

2.3 Community Uses Development Control Plan

The proposed development has been assessed having regard to the relevant performance and prescriptive design requirements within Council’s Community Uses Development Control Plan (Community Uses DCP). The following table sets out the proposal’s compliance with the prescriptive measures of the Plan:

Community Uses Development Control Plan
Control	Proposal	Requirement	Compliance
FSR	0.64:1	0.4:1	No
Height	7 metres	9 metres	Yes
No. of Storeys	2 storeys	2 storeys	Yes
Site coverage	58%	40%	No
Car parking	3 spaces	48	No
Setbacks - Front - Side (Wattle Lane) - Side - Rear	5.5 - 16 metres 1.9 metre 1 metre unchanged	6 metres 1 metre 1 metre 3 metres	Yes Yes Yes Yes
Landscaping	24%	45%	No

As detailed in the above table, the proposed development does not comply with a number of prescriptive measures within Council’s Community Uses DCP. The matters of non-compliance are detailed below, as well as a brief discussion on compliance with relevant performance criteria.

2.3.1 Floor Space Ratio

Under the DCP, the floor space ratio of development should not exceed 0.4:1 in the Special Uses A zone. Existing development on the site complies with the FSR provisions. However, the proposed development increases the FSR to 0.64:1 which does not comply with the prescriptive measure of 0.4:1.

The objectives of the Density element of the Community Uses DCP states:

‘To control the density and scale of development to ensure compatibility with the density and scale of the surrounding area.’

The applicant states that the proposed development is consistent with the objectives of the density provisions of the DCP, as the building would be compatible with the surrounding development being a development which is less in scale than the adjoining shops and of a similar scale to 2 storey residential development with a garden area fronting Amor Street.

The departure from the development standard for FSR is not supported as the proposal represents an overdevelopment of the site and exacerbates the proposals non-compliance with the site coverage, car parking and landscaping provisions of the DCP.

2.3.2 Site Cover

Under the DCP, site coverage should not exceed 40% of the site area. The performance criteria states that site coverage should allow adequate areas for access, car parking, landscaping and useable outdoor recreation. Furthermore, the area of the site covered by impervious surfaces (including roofed areas, paving, driveways etc) should be minimised to reduce stormwater runoff from the site.

The proposed development does not allow for adequate car parking and landscaping of the site and accordingly, the non-compliance with the site coverage prescriptive measure is not supported.

2.3.3
Car Parking

Under the DCP, the proposed development would require 48 car spaces. The proposal includes 3 spaces. The application has been supported by a Traffic and Parking Report. An assessment of the parking provisions for the proposal assumes the church will utilise the existing Council carpark at the rear of the site as well as parking in surrounding streets. The report concludes that the typical weekly parking demand created by the redeveloped church would be 23 spaces more than the current demand and that the Council car park has adequate spare capacity to cater for the extra needs of the Church.

The submitted Traffic and Parking Report does not consider that the existing shopping strip at Asquith has historically utilised the Council carpark for parking and that the availability of parking within the carpark is a result of the vacancy rate within the Shopping Centre. In 2004, Council implemented a revised Masterplan for the commercial centre and HSLEP (Amendment No. 83) was gazetted significantly increasing the floor space potential of properties within the commercial centre.

The increased use of the Council car park for church parking has the potential to restrict the availability of parking for other uses within the Centre and may detrimentally impact on the economic viability of any future revitalisation of the shopping centre. If business activity in the area was to improve and lead to a reduction in the number of vacant premises, the parking demand would outstrip supply. The flow on effect would be an increase in on-street parking within Amor Street and Lords Avenue which would detrimentally impact on the amenity of the surrounding residential area.

Furthermore, a search of Council records indicated that Council acquired the land to provide a free parking area in Wattle Street and resolved to set aside this area for the convenience of shoppers. Accordingly, a departure from the prescriptive measures for carparking is not supported.

2.3.4 Landscaping

The objective of the Landscaping element of the Community Uses DCP is to provide attractive landscapes which reinforce the function of a street, enhance the amenity of buildings and to preserve significant stands of trees or natural vegetation. The proposed landscaping involves 24% of the site and does not comply with the prescriptive measure of 45%. The application includes a landscape plan which addresses the streetscape of Amor Street and Wattle Lane. However, the proposal does not enhance the amenity of the adjoining residential property to the west.

Whilst it is acknowledged that the shortfall in landscaping would not be significant as to warrant refusal of the application in itself, a departure from the prescriptive measure is not considered acceptable in this instance as the development exceeds Council’s minimum development standards in a number of areas, (i.e. floor space ratio, site coverage and car parking) and, on balance, the development outcome would not be reasonable.

2.3.5 Acoustics

Whilst it is recognised that there would be some increase in noise associated with an increase in development on site, it is considered that the noise increase would not be significant as to warrant a refusal of the application in itself. Any unreasonable or excessive noise is governed by the Protection of the Environment Operations Act 1997 and could be reasonably managed onsite.

Notwithstanding the above, the proposed development has been designed to minimise potential acoustic impacts on the adjoining and surrounding residential properties. The platform of the church is located towards the western boundary and directed inward. The storeroom, change rooms and access way provide an additional buffer between the church activities and the adjoining residential property and the location of the store rooms along the western boundary of the multi-purpose hall would act as a buffer between the activities in the hall and the residential property to the west. Furthermore, there are no windows within the main worship area, which minimises the opportunity for acoustic impacts.

2.5.6 Solar Access

The application includes shadow diagrams which demonstrate compliance with Council’s requirements for developments maintaining a minimum of 4 hours of sunshine to the open space areas of adjoining residential properties, in accordance with the Community Uses DCP solar access requirement.

2.5.7 Crime Prevention

The proposed development has been designed to minimise crime in accordance with Crime Prevention Through Environmental Design (CPTED) principles by way of clear sightlines, windows that overlook the streetscape and pedestrian access and clearly defined building entry and access.

The proposal complies with the Community Uses DCP crime prevention element objective.

2.6 Car Parking Development Control Plan

The primary purpose of this DCP is to provide parking controls for the development.

The deficiency in the provision of car parking for the proposed development has previously been addressed in Section 2.3.3 of this report.

2.7 Access and Mobility Development Control Plan

The primary purpose of this DCP is to assist proponents and Council in ensuring the requirements for equality of access in the Anti Discrimination Act 1977 are satisfied when building work is proposed.

The applicant submitted an Access Report prepared by ‘E Armstrong’. The development is designed to provide suitable access for people with disabilities. Council’s assessment of the access and mobility impacts of the development notes that wheelchair access is not available to the mezzanine level which is proposed to be used as church offices. However, there are other offices at ground level. It is recommended that should the application be approved, a condition be imposed that no activities be planned for the mezzanine level that are not duplicated on the ground level. This would not be an ideal outcome, however, acceptable in the circumstances of the case.

2.8 Outdoor Advertising Development Control Plan

The primary purpose of the Plan is to control the visual impact of advertisements and advertising structures on the environment and to provide adequate opportunities for the community to advertise their goods and/or services.

The proposed development has been assessed having regard to the relevant performance and prescriptive design requirements within Council’s Outdoor Advertising Development Control Plan Development Control Plan (Outdoor Advertising DCP). The following table sets out the proposal’s compliance with the prescriptive measures of the Plan:

Outdoor Advertising Development Control Plan
Control	Proposal	Requirement	Compliance
Sign 1 Area (advertising panel)	2.9 sqm	4 sqm	Yes
Sign 2 Area (wall sign)	4 sqm	4 sqm	Yes
Sign 3 Area (wall sign)	3.2 sqm	4 sqm	Yes
No. of Signs	3	3	Yes

2.9 Waste Minimisation and Management Development Control Plan

The primary purpose of this Development Control Plan is to provide planning strategies and controls to promote waste minimisation and management. The applicant has submitted a waste management plan in accordance with the requirements of the DCP.

The waste generated by the operation of the proposed development would be collected by commercial waste contractor at the street frontage. If Council was minded to grant approval to the development, it is recommended that conditions of consent relating to disposal of waste be imposed to ensure the proposed development is consistent with the objectives of the Plan.

2.10 Sustainable Water Development Control Plan

The DCP aims to achieve the implementation of sustainable water practices into the management of development in the Hornsby Shire.

If Council was minded to grant approval, conditions of consent would be required in relation to erosion and sediment control and stormwater management.

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

There is no known hazard/risk associated with the site with respect to bushfire, landslip, subsidence and flooding that would preclude approval of the proposed development.

There are no trees or significant vegetation located on the site.

3.2 Built Environment

The built environment would not be adversely affected by the proposed development.

3.3 Social Impacts

The development would make a positive social contribution to the local community by providing a modern place of worship with expanded facilities to service the needs of the Church community.

3.4 Economic Impacts

The economic impact of the proposed development on the locality is considered minimal. However, the loss of available parking within the Council car park may have a detrimental impact on the economic viability of commercial premises within the Asquith shopping centre because there is insufficient parking for the future needs of the adjoining land uses.

4. SITE SUITABILITY

Section 79C(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

The site is currently used as a place of worship and subject to the provision of adequate parking for the intensification of the use; the site would be suitable for the proposed development.

5. PUBLIC PARTICIPATION

Section 79C(1)(d) of the Act requires Council to consider “any submissions made in accordance with this Act”.

5.1 Community Consultation

The proposed development was placed on public exhibition and was notified to adjoining and nearby landowners between 23 July 2007 and 23 August 2007 in accordance with Council’s Notification and Exhibition Development Control Plan. During this period, Council received no submissions.

6. THE PUBLIC INTEREST

Section 79C(1)(e) of the Act requires Council to consider “the public interest”.

The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to and respecting the future desired outcomes expressed in environmental planning instruments and development control plans.

As indicated in Section 3.3 above, the proposed development would provide the public with a modern place of worship with expanded facilities. However, the application does not satisfactorily address Council’s planning policies, specifically in relation to a significant shortfall in the provision of car parking onsite. This would be to the detriment of other uses and visitors to the Asquith Commercial Centre. Therefore, the proposal would not provide a development outcome that, on balance, would result in a positive impact for the community. Accordingly, it is considered that the approval of the proposed development would not be in the public interest.

7. CONCLUSION

The application proposes the demolition of part of the existing church offices and hall and construction of a new multi-purpose hall, office and store room for use as a place of worship.

The proposal does not comply with Council’s Community Uses Development Control Plan with respect to the density landscaping and car parking requirements and the Car Parking Development Control Plan with respect to vehicle parking requirements.

The proposed development would require 48 car spaces and the proposals includes the provision of 3 car spaces. The submitted Traffic and Parking Report assumes the church will utilise the existing Council carpark at the rear of the site as well as parking in surrounding streets.

The assessment of the traffic and parking impacts of the development has not considered that the existing shopping strip at Asquith has historically utilised the Council carpark for parking and that the high availability of parking within the carpark is a result of the vacancy rate within the shopping centre. The loss of available parking within the Council car park would have a detrimental impact on the economic viability of commercial premises within the Asquith shopping centre.

Accordingly, the proposal is recommended for refusal.

Rod Pickles

Manager - Assessment Team 2

Planning Division

Scott Phillips

Executive Manager

Planning Division

Attachments:

1.View	Locality Plan
2.View	Landscape Plan
3.View	Site Plan
4.View	Floor Plans
5.View	Elevations and Sections
6.View	Signage Details
7.View	Fence Plan

File Reference: DA/977/2007

Document Number: D01030913

SCHEDULE 1

REASONS FOR REFUSAL

1. The proposal is unsatisfactory in respect to the provisions of Section 79C(1)(a) of the Environmental Planning and Assessment Act, 1979, as the proposal does not comply with the requirements of the Community Uses Development Control Plan, in particular, the element controls for density, landscaping and carparking.

2. The proposal is unsatisfactory in respect to the provisions of Section 79C(1)(a) of the Environmental Planning and Assessment Act, 1979, as the proposal does not comply with the requirements of the Car Parking Development Control Plan, in particular, the element control for parking provision, which requires a minimum of 48 car parking spaces.

3. Pursuant to the provisions of Section 79C (1) (e) of the Environmental Planning and Assessment Act 1979, the adverse impacts on the proposed development on the amenity of the adjoining properties is not in the public interest.

- END OF REASONS FOR REFUSAL -

Planning Report No. PLN221/08

Date of Meeting: 19/11/2008

3 DEVELOPMENT APPLICATION - INDUSTRIAL DEVELOPMENT COMPRISING 21 WAREHOUSE UNITS, SIGNAGE, STRATA SUBDIVISION AND FIRST USE
8 - 20 MUNDOWI ROAD MOUNT KURING-GAI

Development Application No:	600/2008
Description of Proposal:	Industrial development comprising 21 warehouse units, signage, strata subdivision and first use
Property Description:	Lots 57, 58 and 1071 DP 752053 (Nos. 8 – 20) Mundowi Road, Mount Kuring-gai
Applicant:	Gelder
Owner:	TKB Development Private Limited
Statutory Provisions:	Hornsby Shire Local Environmental Plan (HSLEP) 1994 Industrial Lands B (Light) Zone
Estimated Value:	$ 2.39 million
Ward:	A

RECOMMENDATION

THAT Development Application No. 600/2008 for an industrial development comprising 21

warehouse units, signage, strata subdivision and first use at Lots 57, 58 and 1071 DP 752053 Nos. 8 – 20 Mundowi Road, Mount Kuring-gai be approved subject to the conditions of consent detailed in Schedule 1 of this report.

EXECUTIVE SUMMARY

1. The application proposes the erection of an industrial development comprising 21 warehouses with associated parking, signage and strata subdivision on vacant land.

3. The proposal complies with the provisions of HSLEP 1994 and the Industrial Lands Development Control Plan.

4. No submissions have been received in respect of the application.

5. It is recommended that the application be approved.

HISTORY OF THE SITE

On 19 September 2007 Council refused DA/1887/2006 for the Community Title subdivision of 3 allotments into 12 industrial allotments and one (1) road allotment at Nos. 8 – 20 Mundowi Road.

A Class 1 appeal was lodged at the Land and Environment Court and was upheld on 23 October 2007, subject to conditions. The subject site is to be created as a result of that subdivision. However, the allotment has not yet been registered with the Land Titles Office.

The site is currently cleared and vacant and has been used in the past as a site for charity events/concerts known as the ‘Mundowi Music Festival’.

THE SITE

The site comprises proposed lot 2 of the subdivided allotments within Nos. 8 – 20 Mundowi Road with an area of 3758 sqm. The property is cleared and generally level in accordance with the conditions of DA/1887/2006 with a 10% cross fall from the south eastern corner to the north western corner. The building platform has been delineated on site.

The allotment is located on the south-eastern corner of the site and has vehicular access from Mundowi Road and the newly constructed internal road (Woodland Way). There is a minor scattering of existing trees along the south-eastern and south-western boundaries.

The site adjoins a vacant allotment to the north-west and industrial developments to the south of Mundowi Road. The adjoining allotment to the north-east accommodates undisturbed bushland (land identified as Environment Protection area). A catch drain is located along this boundary of the site.

THE PROPOSAL

The proposal involves the erection of a building comprising three levels of industrial warehouses with strata subdivision. The details of the proposal are described below:

Warehouse	Gross Industrial Floor Area	Office Component	Loading bay	Proposed use
Unit 1	103.2 m²	61 m² = 32%	21 m²	Warehousing, repackaging and distribution of plant equipment
Unit 2	85.8 m²	44.7 m²= 34%	21 m²	Warehousing, repackaging and distribution of sewing equipment
Unit 3	129.8 m²	70 m²= 35%	21 m²	Warehousing, repackaging and distribution of computer equipment
Unit 5	247.78 m²	74 m² = 20%	21 m²	Warehousing, repackaging and distribution of electronic goods
Unit 6	87.19 m²	42.17 m² = 32%	21 m²	Warehousing, repackaging and distribution of computer equipment
Unit 7	87.19 m²	42.5 m² = 41%	21 m²	Warehousing, repackaging and distribution of electronic goods
Unit 8	89.1 m²	42.6 m²= 32%	21 m²	Warehousing, repackaging and distribution of office supplies
Unit 9	174.9 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of hardware
Unit 10	155.11 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of electronic goods
Unit 11	137.9 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of office supplies
Unit 12	148.23 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of electronic goods
Unit 13	200.8 m²	48 m²= 17.8%	21 m²	Warehousing, repackaging and distribution of electronic goods
Unit 14	188.4 m²	45 m² = 17%	21 m²	Warehousing, repackaging and distribution of office equipment
Unit 15	188.4 m²	45 m²= 17%	21 m²	Warehousing, repackaging and distribution of radio equipment
Unit 16	188.4 m²	45 m²= 17%	21 m²	Warehousing, repackaging and distribution of tools and equipment
Unit 17	197.66 m²	45 m²= 17%	21 m²	Warehousing, repackaging and distribution of medical equipment
Unit 18	94.4 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of timber shades
Unit 19	89.24 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of paper products
Unit 20	89.24 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of homeware
Unit 21	89.24 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of electronic equipment
Unit 22	91 m²	No office proposed	21 m²	Warehousing, repackaging and distribution of electronic good.
Total area proposed	2862.97 m²	604.97 m²	441 m²
Corridors	61 m²
Gross floor area	3528 m²
FSR	0.93:1

Access to the lower ground floor of the industrial building is proposed via the internal access road. Units 13 - 22 are proposed on the north-western and the south-eastern sides with parking provided in between and at the rear. Landscaping would be provided at the front and rear. Individual loading bays are provided with each unit. The lower ground level has been designed to accommodate heavy rigid vehicles.

Units 13 – 17 are proposed in two levels. The upper levels of these units are located on the ground floor with access from the lower ground floor via internal stairs and separate access at the ground level being provided via a corridor. The upper level of these units would accommodate repackaging areas and storage for the lighter components of the warehouse, in addition to the office area. A common loading dock is included at the ground level to provide direct loading/unloading facilities. Units 9 – 12 are proposed to be located on the ground floor with individual loading bays and direct access from Mundowi Road. Car parking is located at the ground level within the setback fronting Mundowi Road and screened by proposed landscaping.

The first floor of the industrial building would comprise of Units 1 – 3 & 5 - 8 (Unit 4 was deleted in amended plans submitted to Council) and the ancillary office spaces located on mezzanine levels. The first floor would include at grade car parking and loading bays being accessed by a ramp off Mundowi Road.

The proposed development includes 60 car spaces located in three levels including accessible spaces. The office areas at the ground floor level include balconies proposed to be used as employee outdoor eating areas in addition to the landscaped areas. The development does not involve any cut and fill in addition to that approved pursuant to DA/1887/2006. The proposed building generally follows the approved building platform.

The proposal includes 6 wall signs, each with an area of 4 sqm, fronting Mundowi Road and the internal road on the lower ground and ground levels.

The proposed uses are primarily for warehouse and distribution centres with no manufacturing being included. The first uses would involve storage of products and repackaging prior to distribution. The applicant indicates that the proposed number of staff within the industrial complex would be a maximum of 57.

The operating hours of the premises would be 7:00am to 6:00pm Monday to Friday and 8:00am to 4:00pm Saturday. No works are proposed to be undertaken on Sunday or public holidays.

ASSESSMENT

1. STRATEGIC CONTEXT

1.1 Metropolitan Strategy – (Draft) North Subregional Strategy

The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:

· Employment capacity to increase by 9,000 jobs; and

· Housing stock to increase by 11,000 dwellings.

The proposed development would be consistent with the draft strategy by providing an additional 57 jobs (applicant’s estimate) in the locality and a variety of employment opportunities.

2. STATUTORY CONTROLS

2.1 Hornsby Local Environmental Plan 1994

The subject land is zoned Industrial B (Light) zone under Hornsby Shire Local Environmental Plan 1994 (HSLEP). The objectives of the zone are:

(a) to encourage economic growth and employment opportunities.

(b) to allow a broad range of light industrial, warehousing and other compatible land uses to locate within the area.

(c) To promote development that does not adversely impact upon the natural and built environment.

The proposed uses are defined as ‘Warehouse and distribution centres’ and ‘Subdivision’ under HSLEP 1994 and are permissible in the zone with Council’s consent.

The proposed development encourages economic growth and employment opportunities, provides a compatible land use in the area and has been sited and designed to minimise further site disturbance to preserve the existing environment. The development complies with the zone objectives.

Clause 15 of HSLEP 1994 prescribes that the maximum floor space ratio (FSR) of development within the zone is 1:1. The applicant addresses this requirement by proposing a FSR of 0.93:1

2.2 State Environmental Planning Policy No. 55 – Remediation of Land

SEPP 55 requires that Council must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated or requires remediation for the proposed use.

The application relates to a recently subdivided vacant land. The site was rezoned for industrial purposes in the 1970s and was used as the grounds for a music festival historically. The site is unlikely to be affected by contamination and the application is assessed as satisfactory against the provisions of SEPP 55.

2.3 Sydney Regional Environmental Plan No. 20 – Hawkesbury – Nepean River

The application has been assessed against the requirements of Sydney Regional Environmental Plan No. 20. This Policy provides general planning considerations and strategies requiring Council to consider the impacts of this proposal on water and scenic quality, aquaculture, recreation and tourism.

2.3.1 Water Quality

The applicant addresses this requirement by providing a Gross Pollutant Trap (GPT) in accordance with the requirements of DA/1887/2006. Council’s assessment of the GPT location is considered satisfactory and would improve the water quality on site.

Further, the proposal does not involve any light industrial use that would have detrimental impact on the water quality of the site and the surrounding properties.

2.3.2 Water Quantity

The proposed development includes an on-site detention system for stormwater management and the proposed building envelope does not encroach into the existing catch drain located along the north-eastern boundary. An engineering assessment of the proposed stormwater management system on site is considered satisfactory.

The proposal would not result in a significant increase in stormwater runoff on site.

2.4 Industrial Lands Development Control Plan

The proposed development has been assessed having regard to the relevant performance and prescriptive design requirements within Council’s Industrial Lands DCP. The following table sets out the proposal’s compliance with the prescriptive measures of the Plan:

Industrial Lands Development Control Plan
Control	Proposal	Requirement	Compliance
FSR	0.93:1	1:1	Yes
Height	3 storeys	3 storeys	Yes
Car parking	60 spaces	52 spaces	Yes
Site cover	50%	50%	Yes
Setbacks Front(Mundowi Road) Side (Woodland Way) Side (South-eat) Rear	10.4m 10m 9m 30	10m 10m 10m 0m	Yes Yes No Yes
Landscaping	549 m²	Minimum 10 m² and @1 m²/employee	Yes
Signs	30 m²	27.75 m² @ 0.25 m²/linear metre of the road	No

As detailed in the above table, the proposed development does not comply with a number of prescriptive measures within Council’s Industrial Lands DCP. The matters of non-compliance are detailed below, as well as a brief discussion on compliance with relevant performance criteria.

2.4.1 Site Cover

The proposed development complies with the site coverage requirements of the Industrial Lands DCP. It is considered that the proposal is in keeping with the intensity of development of the surrounding industrial developments.

2.4.2 Design

The building design follows the natural slope of the land and involves a lower ground floor which reduces the overall bulk of the building. The appearance of the building from Mundowi Road would be that of a two storey development and is considered acceptable. The development would not dominate the existing streetscape in terms of its bulk and scale. The building includes a well articulated façade treatment and provides landscaping opportunities in three levels for screening of the proposed car park areas in accordance with the requirements of the DCP.

The proposed development would not result in overshadowing or have adverse amenity impacts on any future development on the adjoining south-eastern property, given that the design and scale are satisfactory.

2.4.3 Setbacks

The proposal results in minor non-compliance with the side setback on the south-eastern side. However, the non-compliance is minor and the proposal does include a reasonable setback from the boundary with landscaping and car parking being provided as a buffer.

The proposed development complies with the setback requirements from the other boundaries and is considered acceptable in this regard.

2.4.4 Landscaping

The Industrial Lands DCP requires that a minimum of 10 sqm landscaping be provided with employee outdoor eating and seating area @ 1 sqm per employee. The proposal includes landscaping opportunities along the boundary setbacks and provides outdoor eating and seating areas at all levels. The development also proposes to utilise the balconies adjoining the office area for employee recreation area in future. This is considered satisfactory as the areas are directly accessible from the office components and would be convenient for the future users. The development is considered acceptable with regard to landscaping.

2.4.5 Car Parking

The development proposes car parking on three levels with separate access provided to each level. The parking area includes accessible car spaces. The proposed number of car spaces complies with the Industrial Lands DCP.

Loading bays are provided for individual units, being directly accessible from the driveway. One common loading bay is provided for the ground floor components of units 13-17. As these units have their separate loading bays also at the lower ground level, the proposed facility on the ground floor is considered satisfactory. The engineering assessment of the proposal is also considered satisfactory in this regard.

Due to the constraints of the site, a number of car spaces are located within the front setback. However, the car parking area would be screened to a considerable extent due to existing trees and proposed landscaping. This is not detrimental to the design of the development.

2.4.6 Signs

The development proposes four wall signs fronting Mundowi Road and the internal access road. The total area of signage proposed has minor numerical non-compliance with the requirements of the DCP and would not have a detrimental impact on the streetscape. The non-compliance with regard to the above is considered acceptable.

The signs would be for business identification and would blend with the proposed elevations. No further signage is proposed in conjunction with the current application. Any further signage would require further approval of Council under separate development applications. This is recommended in a condition of consent.

2.4.7 Waste Management

It is proposed that each unit would have individual bins. The applicant intends that bins be serviced from each individual unit. The proposal enables the waste collection vehicles to manoeuvre appropriately within the site and be parked adjacent to the loading bays for picking up the bins in each of the three levels. The proposal is assessed as satisfactory in this regard.

2.4.8 Acoustics

The proposed first uses of the industrial units are primarily for warehouse and distribution centres. No heavy noise generating machinery would be installed in any of the units and therefore, the proposed uses would not generate unreasonable noise. The development is acceptable with regard to acoustics.

2.5 Car Parking Development Control Plan

The proposal has been assessed having regard to the relevant performance and prescriptive design requirements within Council’s Car Parking Development Control Plan. The DCP requires that parking be provided @ 1 per 100 sqm of Gross Leasable Floor Area (GLFA) for industrial use and 1 per 40 sqm for the office component, should it exceed 20 % of the Gross Floor Area (GFA) of the unit. The proposal complies with this requirement and provides 60 spaces servicing the development.

The compliance of the proposal with the relevant performance criteria is discussed in Section 2.4 of this report.

2.6 Access and Mobility Development Control Plan

The proposal has been assessed having regard to the relevant performance and prescriptive design requirements within Council’s Access and Mobility Development Control Plan.

A condition is recommended for the applicant to submit an Access Report prepared by an accredited Access Consultant and complying with Council’s Access and Mobility Development Control Plan, Australian Standard 1428 Parts 1 and 4 and the Building Code of Australia prior to the issue of any Construction Certificate.

2.7 Outdoor Advertising Development Control Plan

The proposed signs are assessed against the requirements of the Outdoor Advertising DCP.

The development proposes four wall signs, each sign not exceeding 4 sqm and complies with the requirements of the DCP. The compliance of the proposal with the total signage area proposed is discussed in Section 2.4 of this report.

2.8 Waste Minimisation and Management Development Control Plan

A waste management plan has been provided and is to be implemented in accordance with recommended conditions consistent with the DCP.

2.9 Sustainable Water Development Control Plan

The DCP aims to achieve the implementation of sustainable water practices into the management of development in the Hornsby Shire. (Refer to discussion under SREP No. 20 above.)

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Trees

The industrial building is proposed to be located on a vacant allotment. The majority of the site has been cleared pursuant to conditions of DA/1887/2006. The existing trees are located primarily near the boundary fronting Mundowi Road and the north-eastern boundary. The application does not include removal of any significant tree on site.

Council’s assessment of the proposal included a detailed examination of the existing trees on site and is considered satisfactory. In order to replace the trees proposed to be removed and maintain a canopy cover on site, a condition is recommended to plant a minimum of ten (10) medium to large trees such as Sydney Red Gum, Grey Gum, Scribbly Gum and Banksia species.

It is considered that the removal of the trees is acceptable in this case.

3.1.2 Environment

The application includes Environmental Management Plans (EMP) for the proposed uses to estimate the impact of the industrial uses on the environment. The submitted EMPs are assessed as satisfactory. The proposal would not have any impact on the undisturbed bushland of the adjoining allotment and is acceptable with regard the impact on the natural environment.

3.2 Built Environment

3.2.1 Streetscape

The proposal would be located on a corner allotment with frontage to Mundowi Road and the internal accessway to the community title allotments, of which the site forms a part. As discussed in Section 2.4 of this report, the development would present a well articulated built form to the streetscape and have a two storey appearance when viewed from Mundowi Road. The character of the building blends with the industrial character of the area and would have a positive impact on the built environment.

3.2.2 Views

The proposed development is not located on a ridge directly visible from the Berowra Heights or Mount Colah residential areas. The development would not have a negative impact on the residential or other sensitive areas due to its location.

3.2.3 Traffic

The development would generate an acceptable level of traffic having regard to the road network and provides for sufficient off-street car spaces within the site. The submitted plans demonstrate compliance with the ramp grades in accordance with the relevant Australian Standards. The ground level warehouses would require access by medium rigid vehicles only due to the nature of the uses. Swept path analyses on the amended plans indicates that a medium rigid vehicle can enter and exit the site in a forward direction. The lower ground level provides access to the heavy rigid vehicles and includes appropriate manoeuvring facilities.

Council’s engineering assessment of the traffic impacts of the development concludes that the proposal is satisfactory with regard to traffic generation, car parking, ramp gradients and turning area for the vehicles within the site subject to conditions.

3.3 Social Impacts

The social impacts of the development on the local and broader community have been considered with specific reference to the potential employment generation within the complex. It is estimated that the development would generate a minimum of 57 equivalent full time positions post construction. This is consistent with the North Subregion (Draft) Subregional Strategy that provides a target of 9,000 jobs within the Hornsby LGA by 2031.

As the site is currently vacant, the land is not presently yielding any employment. There would also be a number of multiplier effects that the development would provide throughout the local and regional economies. These multiplier effects would result from the sourcing of goods and services from suppliers to businesses within the complex as well as the increased consumption generated by the increase of employment in the area. The complex is likely to provide employment opportunities to younger age groups, which typically have higher unemployment rates within the region.

3.4 Economic Impacts

The proposed development would result in a notable increase in the total industrial floor space within the Mount Kuring-gai Industrial Estate. As discussed above, the development would result in employment generation and therefore result in a positive economic impact on the locality.

4. SITE SUITABILITY

Section 79C(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

4.1 Bushfire Risk

The proposal is identified as being on bushfire prone land. The applicant has submitted a Bushfire Hazard Assessment Report regarding provisions of Asset Protection Zones on site. (Refer to discussion in Section 5.2 of this report).

5. PUBLIC PARTICIPATION

Section 79C(1)(d) of the Act requires Council to consider “any submissions made in accordance with this Act”.

5.1 Community Consultation

The proposed development was placed on public exhibition and was notified to adjoining and nearby landowners between 29 May 2008 and 27 June 2008 in accordance with Council’s Notification and Exhibition Development Control Plan. During this period, Council did not receive any submissions.

5.2 Public Agencies

The application was referred to the following Agency for comment:

5.2.1 Rural Fire Service

The development application constitutes Integrated Development pursuant to the Rural Fires Act 1997 and was referred to Rural Fire Services for comments. The RFS has raised no objection to the development subject to recommended conditions being imposed regarding asset protection zones and design standards for construction.

6. THE PUBLIC INTEREST

Section 79C(1)(e) of the Act requires Council to consider “the public interest”.

The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to and respecting the future desired outcomes expressed in environmental planning instruments and development control plans.

The application is considered to have satisfactorily addressed Council’s and relevant agencies’ criteria and would provide a development outcome that, on balance, would result in a positive impact for the community. Accordingly, it is considered that the approval of the proposed industrial development would be in the public interest.

7. CONCLUSION

The application proposes the erection of an industrial development comprising 21 units, associated car parking, landscaping, and signage, first use of the proposed units and strata subdivision.

This application has been assessed having regard to the matters for consideration under Section 79C(1) of the Act, Hornsby Shire Local Environmental Plan, relevant State Environmental Planning Policies, Sydney Regional Environmental Plan No. 20 and relevant Development Control Plans. The proposal complies with the objectives of the elements within the Industrial Lands DCP and would result in a positive social and economic impact on the locality.

The design provides for variable building setbacks to the front and side property boundaries, a well articulated building façade and the proposal is considered to provide a reasonable outcome for the subject site and surrounding land uses through consideration of height, design and landscaping provided.

The proposed uses comply with the definition of ‘warehouse and distribution centres’ and would not have an unreasonable impact on the existing environment with regard to noise, air or water quality as no manufacturing is included.

Approval of the application is recommended.

Rod Pickles

Manager - Assessment Team 2

Planning Division

Scott Phillips

Executive Manager

Planning Division

Attachments:

1.View	Locality Plan
2.View	Site Plan
3.View	Floor Plans
4.View	Elevations and Sections
5.	Perspectives
6.	Landscape Plan

File Reference: DA/600/2008

Document Number: D01031865

SCHEDULE 1

PART 1 – DEFERRED COMMENCEMENT

THE CONSENT SHALL NOT BECOME EFFECTIVE OR OPERATIVE UNTIL THE INFORMATION SPECIFIED IN PART 1 HAS BEEN SUBMITTED TO THE SATISFACTION OF COUNCIL.

A. Documentary evidence of registration of the subdivision of No. 8-20 Mundowi Road and the registration of the allotment.

PART 2

UPON NOTICE OF COUNCIL’S WRITTEN SATISFACTION THAT THE DEFERRED COMMENCEMENT CONDITION IN PART 1 HAS BEEN ENACTED THIS CONSENT SHALL OPERATE IN ACCORDANCE WITH THE FOLLOWING CONDITIONS

GENERAL CONDITION APPLICABLE TO ALL STAGES

Approved Plans and Supporting Documentation

1. The development must be carried out in accordance with the following plans as amended in red and documentation listed below and endorsed with Council’s stamp, except where amended by other conditions of this consent:

*Plan No.*	*Drawn by*	*Dated*
Ground Plan DA03-K	Gelder	2/10/2008
Sediment and Erosion Control Plan DA03-H	Gelder	2/10/2008
Site Plan DA01-H	Gelder	16/07/2008
Lower Ground Floor plan DA02-H	Gelder	16/07/2008
Ground Floor plan DA03-H	Gelder	16/07/2008
First Floor plan DA04-H	Gelder	16/07/2008
Mezzanine Floor Plan DA05-H	Gelder	16/07/2008
Roof plan DA06-H	Gelder	16/07/2008
Elevations DA07-H	Gelder	16/07/2008
Elevations DA08-H	Gelder	16/07/2008
Sections DA09-H	Gelder	16/07/2008
Perspectives DA10-H	Gelder	16/07/2008
Landscape Plan DA11-B	Gelder	9/05/2008
Stormwater details –S08062 St 1/2	Neilly Davies	2/10/2008
Stormwater details –S08062 St 2/2	Neilly Davies	16/07/2008

*Documents*	*1. Drawn by*	*2. Date*
Soil and Water management Statement	ATR Projects	2/10/2008
Environmental Management Plan	Gelder	4/06/2008
Schedule of Finishes	ATR Projects	12/05/2008
Statement of Environmental Effects	Gelder	12/05/2008

PRIOR TO THE RELEASE OF THE CONSTRUCTION CERTIFICATE

Access Report

2. An Access Report prepared by an accredited Access Consultant and complying with Council’s Access and Mobility Development Control Plan, Australian Standard 1428 Parts 1 and 4 and the Building Code of Australia shall be submitted to Council.

Road Works

3. Construction at the property boundary, including fences and driveways, must not be carried out until footpath levels have been determined by Hornsby Council. The footpath levels must be obtained from Council.

4. A Traffic Control Plan (TCP), prepared by a qualified work site traffic controller, is to be submitted with any construction certificate, demonstrating compliance with the Road & Traffic Authority’s Traffic Control At Worksites Manual, 1998, and detailing:-

· Public notification of proposed works.

· Long term signage arrangement.

· Short term (during actual works) signage.

· Vehicle Movement Plans, where applicable.

· Traffic Management Plans.

5. A certificate from a chartered civil engineer must be obtained verifying that the structures associated with the on‑site detention system have been designed to withstand all loads likely to be imposed on them during their lifetime.

6. The planting schedule within the Landscaping Plan prepared by Gelder Architects shall be amended to include Angophora hispida and replace Banksia integrifolia with locally occuring Banksia serrata.

Design and Construction

7. The proposed buildings are required to improve ember protection from bushfires by incorporating the following:

· Screen all openings (excluding roof tile spaces) with non combustible screening (bronze or corrosion resistant steel) with a maximum aperture size of 2.00 mm. Screens shall be placed over the openable part of the window.

· Vents and weepholes shall be screened with corrosive resistant steel with an aperture not greater than 2.0 mm.

· External doors are to be sealed with draft excluders to prevent the entry of embers.

· The sub-floor shall be enclosed with either corrosion resistant steel mesh with an aperture size of 2.0 mm or non-combustible material, to prevent the entry of embers.

· Roller doors, tilt-a-doors and the like shall be sealed to prevent the entry of embers into the building.

The details of the above requirements are to be indicated in the construction certificate plans.

Sydney Water – Quick Check

8. The application must be submitted to a Sydney Water ‘Quick Check Agent’ or ‘Customer Centre’ for approval to determine whether the development will affect any Sydney Water infrastructure and whether further requirements are required to be met.

Note: Refer to www.sydneywater.com.au or telephone 13 20 92 for assistance.

At the commencement of site works

Building Code of Australia

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

10. In order to protect the proposed development from flood inundation, access from the Community Road (Woodland Way) shall be constructed in the following manner:

a) The boundary of the subject site at the access driveway must be graded up by 4 per cent from the existing top of kerb; which is 120 mm higher the existing top of kerb level in community road fronting the driveway.

b) A lay back shall be provided.

11. The commercial vehicular crossings shall be designed and constructed in accordance with Council’s Civil Works - Design and Construction Specification 2005.

Parking and Loading Area

12. The designed and construction of commercial vehicular crossings to facilitate turning movement for Medium Rigid Vehicles shall be in accordance with AS 2890.2 and Council’s Civil Works - Design and Construction Specification 2005.

Drainage

13. Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall: -

a) Be in accordance with Hornsby Shire Council Civil Works – Design Specification 1999.

b) Provide for drainage discharge to the existing drainage system.

c) Ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties.

14. The drainage system is to be constructed with an on-site-detention system, having a capacity of not less than 25 m³and a maximum discharge, when full, of 30 l/s. The system shall be designed by a chartered professional civil engineer to the following requirements:

a) A surcharge/inspection grate is to be located directly above the outlet.

b) Stormwater discharge from the detention system is to be controlled via a one metre length of pipe not less than 50mm diameter discharging into a larger diameter pipe capable of carrying the design flow to Council's gutter/stormwater pit.

c) Where the on-site detention system is proposed under the vehicular driveway, the engineer is to certify that the detention tank is structurally capable of withstanding the maximum anticipated traffic loads.

15. All stormwater runoff generated from this development site shall be collected and connected to the Gross pollutant device (GPT). The GPT shall discharge the treated stormwater runoff into the On Site Detention system.

16. Any catch drain at the rear of the site shall not be altered in order to prevent flood inundation from the adjacent rear property.

17. The applicant is to ensure that no building materials, stockpiles or fill encroaches upon adjacent bushland or retained trees for the duration of the works.

18. Prior to commencement of works, a temporary protection fence (i.e. start picket and wire fence or highly visible plastic mesh barrier fence) shall be installed along the edge of the north eastern boundary of the site in order to delineate the development from adjacent bushland. The fence is to be adequately maintained throughout the duration of on-site works.

19. All landscape works shall meet the minimum construction standards identified in the Hornsby Shire Council Landscape Code.

20. Dust control measures must be utilised to ensure airborne dust particulates are abated and airborne movement of sediment blown from exposed disturbed areas is contained within the site.

21. Disturbed areas shall be rehabilitated and treated by approved methods of erosion mitigation such as mulching with preferably indigenous plant species or other suitable approved stabilising processes within fifteen days of the completion of works.

Sediment and Erosion Control

22. Sedimentation and erosion barriers are to be constructed to control the discharge of sediment from the site. The barriers are to be designed and installed in accordance with the requirements of Landcom’s “Managing Urban Stormwater: Soils and Construction”, Volume 1, 4^th Edition, March 2004, (the Blue Book), and Hornsby Shire Council’s “Sustainable Water Best Practices” manual and must be effectively maintained at all times during the course of construction and must not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction.

Erection of Construction Sign

23. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

a) showing the name, address and telephone number of the principal certifying authority for the work;

b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours; and

c) stating that unauthorised entry to the work site is prohibited.

Note: Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

Hours of Construction

24. In order to maintain the amenity of adjoining properties, site works must be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. Site works may extend to 4.00 pm on Saturdays if inaudible on residential properties. No work must be undertaken on Sundays or public holidays. Plant, goods or materials must not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.

Damage to Council Assets

25. The repair of any damage caused to Council's assets in the vicinity of the subject site as a result of construction works associated with the approved development is to be completed to Council’s requirements at no cost to Council.

Asset Protection Zone

26. At the commencement of building works the property to the east of the building to a distance of 9 metres, shall be maintained as an inner protection area (IPA) as outlined within section 4.1.3 and appendix 5 of Planning for Bush Fire Protection 2006 and the NSW Rural Fire Service’s document ‘Standards for asset protection zones.’

Landscaping

27. Landscaping to the site is to comply with the principles of Appendix 5 of Planning for Bushfire Protection 2006. In this regard the following landscaping principles are to be incorporated into the development:

· Suitable impervious areas being provided immediately surrounding the building such as courtyards, paths and driveways

· Grassed areas/mowed lawns/or ground cover plantings being provided in close proximity to the building

· Restrict planting in the immediate vicinity of the building which may over time and if not properly maintained come in contact with the building

PRIOR TO THE RELEASE OF THE SUBDIVISION CERTIFICATE

28. The creation of an appropriate "Positive Covenant" and "Restriction as to User" over the constructed on-site detention/retention systems and outlet works, within the lots in favour of Council to ensure the continued maintenance and performance of the stormwater management system in accordance with Council’s standard wording. The position of the on-site detention system is to be clearly indicated on the final plan of subdivision.

29. A compliance certificate is to be submitted to Council which includes work-as-executed details of the on-site-detention system prepared by a chartered engineer/registered surveyor verifying that the required storage and discharge volumes have been constructed in accordance with the design requirements. The details are to show the invert levels of the on system as well as the pipe sizes and grades. Any variations to approved plans must be shown in red and supported by calculations.

30. The two “Small car only” spaces shall be clearly marked on ground with white paint.

31. To maintain local tree canopy cover, a minimum of ten (10) medium to large trees such as Angophora costata (Sydney Red Gum), Eucalyptus punctata (Grey Gum), Eucalyptus haemastoma (Scribbly Gum) and Banksia species are to be planted on the subject site. The planting location shall not be within 4 metres of the foundation walls of a dwelling or in-ground pool. The pot size is to be a minimum 25 litres and the tree/s must be maintained and protected until they reach the height of 3 metres.

South Western boundary screen planting

32. To ensure adequate screen planting is provided along the front boundary of the site (Woodland way) planting to the on-grade landscape setback zone shall include an additional:

· 20 Banksia spinulosa planted in mulched planter beds.

· 20 Leptospermum polygalifolium planted in mulched planter beds.

· 20 Grevillea liearfolia planted in mulched planter beds.

· 60 Lomandra longifolia planted in mulched planter beds.

South Eastern boundary screen planting

33. To ensure adequate screen planting is provided along the side boundary of the site (Mundowi Road) planting to the on-grade landscape setback zone shall include an additional:

· Angophora costata planted in mulch planter beds.

· 20 Grevillea liearfolia planted at 2 metres centres in mulched planter beds.

· 40 Lomandra longifolia planted in mulched planter beds.

All shrubs to be installed at minimum pot size of 5 litres.

North Western boundary planting

34. To ensure adequate planting is provided to side boundary planting to the on-grade landscape setback zone shall include an additional:

· 15 Allocasuarina torulosa planted 5 metres centres in mulch planter beds.

· 15 Acacia linifolia planted at 10 metres centres in mulched planter beds.

All shrubs to be installed at minimum pot size of 5 litres.

North Eastern boundary planting

35. To ensure adequate planting is provided to side boundary planting to the on-grade landscape setback zone shall include an additional:

· 10 Elaeocarpus reticulatus planted 5 metres centres in mulch planter beds. Trees to installed minimum pot size of 5 litres.

PRIOR TO THE RELEASE OF THE OCCUPATION CERTIFICATE

36. A certificate from a chartered civil engineer/registered surveyor must be obtained prior to release of final occupation certificate verifying that the on-site detention system will function hydraulically in accordance with the approved design plans.

Waste Management

37. Prior to the issue of the occupation certificate, documentary evidence (ie. tipping dockets/receipts from recycling depots, transfer stations and landfills) and a summary report of actual destinations and quantities of waste generated by the works carried out under this development consent should be submitted to Council’s satisfaction. This summary report is to be based on and be in the format of the Waste Management Plan Section One – Demolition Stage and/or Section Three – Construction Stage. If less than 60% waste was reused or recycled, then the summary report must include the reasons why the 60% target was not achieved.

Survey Reports

38. To ensure that the building is being erected in accordance with the approval, a registered surveyor’s report must to be submitted to the principal certifying authority prior to the release of the occupation certificate certifying that:

a) the building, retaining walls and the like, have been correctly positioned on the site; and

b) the finished floor level(s) are in accordance with the approved plans.

Section 94 Contributions

39. The payment of a contribution of $ 139,842.86 for 21 industrial units, towards the cost of transport and traffic management, open space and recreation facilities, library and community facilities, bushland regeneration, stormwater drainage, civic improvements and section 94 plan administration in accordance with sections 94, 94A and 94C of the Environmental Planning and Assessment Act, 1979 and the Hornsby Shire Council’s Development Contributions Plan 2007-2011. The contribution is based on a rate of $1981.90 per employee calculated at 50 sqm gross floor area per employee, prior to the issuing of the Occupation certificate. The contribution will be adjusted in accordance with the underlying consumer price index for the subsequent financial quarters.

Note 1: It is recommended that you contact Council on 9847 6030 to ascertain the indexed value of contributions prior to payment.

Note 2: Council’s Contribution Plan can be viewed at www.hornsby.nsw.gov.au/Building & Development, or a copy may be inspected during business hours at the first floor of Hornsby Shire Council’s Administration Building located at No. 296 Pacific Highway, Hornsby.

Use of the Premises

40. The approved development must be occupied or used solely for the approved use as indicated in the Statement of Environmental Effects. No separate occupation or use of any part of the approved development shall take place without prior development consent, (other than for exempt or complying development).

Operating Hours

41. The operating hours of the premises would be 7:00am to 6:00pm Monday to Friday and 8:00am to 4:00pm Saturday. No proposed works are to be undertaken on Sunday or public holidays.

Signage

42. No signage would be erected on the premises apart from that approved under this development application. Any other signage requires further approval except exempt or complying development.

Traffic

43. All deliveries shall be made within the site, under no circumstances delivery vehicles to be loaded or unloaded upon the public road.

44. All vehicles shall enter and exit the site in forward direction.

45. Parking spaces shall not be used for storage of goods or materials.

Tree Planting

46. The landscape works shall be maintained into the future to ensure the establishment and successful growth of plant material to meet the intent of the landscape design.

47. All Dangerous Goods shall be stored in accordance with AS 1940-2004: The Storage and Handling of Flammable and Combustible Liquids (Standards Australia, 1993); and/or The Protection of the Environment Operations Act 1997.

48. A sufficient supply of appropriate spill control equipment must be kept on the premises at all times. Materials used in the clean up of a spill must be disposed of to an appropriately licensed waste facility.

49. All above ground storage's of hazardous materials, oils, chemicals or fertilisers must be bunded. The bund is to be made from an impervious material and must be covered and large enough to hold the contents of the largest container plus 10%.

50. All wastewater and stormwater treatment devices (including drainage systems, sumps and traps) must be regularly maintained in order to remain effective. All solid and liquid wastes collected from the device must be disposed of in accordance with the Protection of the Environment Operations Act 1997.

Water and Utilities

51. Water, electricity and gas are to comply with the following requirements of section 4.1.3 of the Planning for Bushfire Protection 2006:

· Fire hydrant spacing, sizing and pressures shall comply with Australian Standard AS 2419.1 – 2005 ‘Fire Hydrant Installations’.

· Fire Hydrants shall not be located within any road carriageway.

· Where the rear or most distant part of a proposed building is greater than 70 metres from the nearest hydrant, a new hydrant is required to be installed as per Australian Standard AS 2419.1-2005 ‘Fire Hydrant Installations’. Locations of fire hydrants are to be delineated by blue pavement markers offset 150 mm from the centre of the road. The direction of offset shall indicate on which side of the road the hydrant is located.

ADVISORY NOTES

Environmental Planning and Assessment Act, 1979 Requirements

1. The Environmental Planning and Assessment Act, 1979 requires you to:

a) Obtain a construction certificate prior to the commencement of any works. Enquiries regarding the issue of a construction certificate can be made to Council’s Customer Service Centre on 4645 4608;

b) Nominate a principal certifying authority and notify Council of that appointment prior to the commencement of any works;

c) Give Council at least two days notice prior to the commencement of any works;

d) Have mandatory inspections of nominated stages of the construction inspected;

e) Obtain an occupation certificate before occupying any building or commencing the use of the land.

Long Service Levy

2. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986, any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.35% of the total cost of the work and must be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under Section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a construction certificate being issued. (clause 98(1) (b) of the Environmental Planning and Assessment Regulation. 2000.)

Road works

3. A separate application under the Local Government Act 1993 and Roads Act 1993 shall be submitted to Council for approval for the following:

· the installation of a vehicular footway crossing servicing the development, and the removal of any redundant crossings.

· a construction certificate must be obtained from Council in order to carry out work on the Public road. Payment of fee for the issue of Construction Certificate and Compliance Certificate is required prior to commencement of work.

- END OF CONDITIONS -

Planning Report No. PLN217/08

Date of Meeting: 19/11/2008

5 DEVELOPMENT APPLICATION - MODIFICATION TO AN APPROVED GARAGE
22 PAUL CLOSE, HORNSBY HEIGHTS

Development Application No:	1366/2007/A
Description of Proposal:	Section 96(2) application to modify an approved garage by increasing its size and height
Property Description:	Lot 3, DP 247109, (No 22) Paul Close, Hornsby Heights
Applicant:	Mr G M Donnelly
Owner:	Mr G M Donnelly and Ms L G Stewart
Statutory Provisions:	Hornsby Shire LEP 1994 Residential A (Low Density) Zone
Estimated Value:	$12,000 (additional to the $40,000 original proposal).
Ward:	B

RECOMMENDATION

THAT Development Application No. 167/2007/A for modifications to an approved garage at Lot 3, DP 247109 (No. 22) Paul Close, Hornsby Heights be approved subject to the conditions of consent detailed in Schedule 1 of this report.

EXECUTIVE SUMMARY

1. The application seeks to modify DA/167/2007 for an approved double garage by increasing the height and size of the building to accommodate four motor vehicles with a roof-top deck.

2. Council approved DA/167/2007 on 14 November 2007, permitting the erection of a double garage at the front of the site within an existing retained area.

3. The amended proposal complies with the provisions of the Hornsby Shire Local Environmental Plan 1994 (HSLEP) and Council’s Dwelling House Development Control Plan (DHDCP) in regard to height, setbacks, solar access and privacy.

4. A red sticker has been placed against the application and has subsequently been referred to Council for determination.

5. One submission has been received in respect of the application.

6. It is recommended that the application to modify the consent be approved.

HISTORY OF THE APPLICATION

On 14 November 2007, consent was granted under delegated authority for the erection of a double garage to the eastern façade of an existing 2 storey dwelling-house on a steep, battle-axe allotment. The garage has a finished floor level of RL12.07 and is accessed from the eastern elevation.

A Section 96(2) application was lodged on 14 August 2008, seeking approval to amend the existing consent by increasing the height and size of the garage to accommodate four motor vehicles with a roof-top deck. The proposed structure would have an over-under configuration with the lower finished floor level of RL12.07 and the upper level finished floor level of RL14.52. The deck would have a finished floor level of RL17.17. The new (proposed) level of the garage would be accessed off the northern elevation of the building.

THE SITE

The battle-axe shaped site has an area of 1100m², is located on the southern side of the cull-de-sac at the end of Paul Close, Hornsby Heights, and experiences an average fall of 40% towards the right-of-carriageway along the eastern side boundary. This sealed 4.5m wide right-of-carriageway provides level access to the subject property and the adjoining premises, No. 24 Paul Close. The adjacent right-of-carriageway to serve the latter property is unmade.

The site contains a 1970s era, two storey, brick and tile dwelling-house with a FFL of RL18.8. A portion of the underfloor area comprises a double garage with a FFL of RL16.11. The driveway providing access to this garage has been partly demolished to make way for the excavation of the site for the second double garage approved under the original application. This excavation has been stabilised by the erection of “Bessa-block” walls. Work on this garage has ceased, pending determination of the Section 96 application.

Adjoining development comprises one and two storey dwelling-houses of similar age and design, dictated in large part, by the steep topography of the immediate area.

THE PROPOSAL

The Section 96(2) application proposes alterations to the development approved under the original consent as follows:

1. The deletion of the curved, concrete slab/driveway over the approved double garage at levels that vary from RL 15.4 to RL 16.1, replacing it with a level floor at a finished floor level of RL 14.52;

2. The erection of a structure above this new, level floor with sufficient space to accommodate two additional vehicles, together with the re-instatement of the curved driveway;

3. The use of the waterproofed concrete roof slab above this second garage at RL 17.17 as a deck, with a 1m high handrail facing the bushland reserve to the east and the right-of-carriageway to the north of the site;

4. The erection of a 1.8m high privacy screen along the southern side of the deck to address any concerns about a loss of privacy in relation to the north-facing windows of the adjacent premises, at No. 24 Paul Close; and

5. The installation of an internal spiral stairway between the two garage levels and the extension of the existing external stairs to provide access around the structure.

If approved, the amended development would provide secure accommodation for 4 motor vehicles on the subject site and a level, outdoor living area facing the adjacent Berowra Valley Regional Park.

The existing double garage directly below the dwelling-house would be used for domestic storage purposes.

ASSESSMENT

1. STRATEGIC CONTEXT

1.1 Metropolitan Strategy – (Draft) North Subregional Strategy

The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:

· Employment capacity to increase by 9,000 jobs; and

· Housing stock to increase by 11,000 dwellings.

The amended proposal would not be inconsistent with the draft Strategy.

2. STATUTORY CONTROLS

Section 79C(1)(a) of the Environmental Planning and Assessment Act, 1979, requires Council to consider any relevant environmental planning instruments, draft environmental planning instruments, development control plans, planning agreements and other prescribed matters.

2.1 Environmental Planning and Assessment Act, 1979 – Section 96

In considering the application, Council must be satisfied that the development to which the consent as modified relates, is substantially the same development as originally approved.

The proposal seeks approval to alter the height and size of the garage to accommodate four motor vehicles with a roof-top deck. In that respect, it is considered that the proposal as amended is substantially the same as the development originally approved.

2.2 Hornsby Local Environmental Plan, 1994

The subject land is zoned Residential A (Low Density) Zone under Hornsby Shire Local Environmental Plan 1994 (HSLEP). The objectives of the zone are:

“(a) to provide for the housing needs of the population of the Hornsby Shire;

(b) to promote a variety of housing types and other land uses compatible with a low density residential environment;

(c) to provide for development that is within the environmental capacity of a low density residential environment.”

The development is defined as “dwelling-house” (ancillary structure) under the HSLEP, and is permissible in the zone, with Council’s consent.

Clause 15 of HSLEP prescribes that the maximum floor space ratio (FSR) of development within the zone is 0.4:1. The proposed amendment to the consent would not exceed the maximum FSR standard for the site.

2.3 Dwelling House Development Control Plan

The proposed amendment to the development has been assessed having regard to the relevant performance criteria and prescriptive measures within Council’s Dwelling House Development Control Plan.

The following table sets out the proposal’s compliance with the prescriptive measures of the Plan:

Dwelling House Development Control Plan
Control	Proposal	Requirement	Compliance
FSR	0.32:1	0.4:1	Yes
Site coverage	10%	40%	Yes
Height (incl. privacy screen)	6.9 metres	9 metres	Yes
Storeys	2 storeys	2 storeys	Yes
Car parking	4 spaces	2 spaces	Yes
Setbacks - Front (east) - Side (north) - Side (south) - Rear	4.5 metres 10 metres 3.2 metres 23 metres	6 metres 1 metre 1 metre 3 metres	No Yes Yes Yes
Landscaping	65%	45%	Yes

As detailed in the above table, the proposed amended development does not comply with the setback requirements in relation to the front, northern boundary. This issue of non-compliance is addressed in detail below, together with a brief discussion on compliance with the relevant performance criteria.

2.3.1 Vehicle Access and Parking

The DHDCP encourages the design of driveways and parking areas on residential allotments that is simple, safe and direct and which minimises the impact on the amenity of adjoining properties.

To provide for visitor parking on battleaxe allotments, the DHDCP requires that garages are set back a minimum 5.5m from the right-of-carriageway or access handle.

Whilst the partly demolished driveway that served the original underfloor garage does not comply with the prescriptive measures of the Vehicle Access and Parking element of the DHDCP in terms of gradient and transition, it is an acceptable component of the proposal to amend the consent, given the shape and steep slope of the allotment.

The amended proposal satisfies this requirement in a performance manner by providing space for visitors to park vehicles so as not to obstruct access to the adjacent premises No. 24 Paul Close.

2.3.2 Private Open Space

The existing private open space is at the rear of the subject dwelling-house and is directly accessible from the living areas. Given the steep topography of the site, there is little scope to adequately provide for relaxation, dining, entertainment and recreation.

Approval of the roof-top deck above the extension to the garage would improve the amenity of the site by providing a level area on the site with bushland views and year round solar access.

2.3.3 Privacy

The active living rooms and entertaining areas of the existing dwelling-house are located on the ground floor and are set back and orientated to minimize any impacts on adjoining properties. To address any loss of privacy in relation to the adjoining premises No. 24 Paul Close by the construction of a rooftop deck, the applicant has proposed that a 1.8m high privacy screen be erected along the southern side of the deck. This would satisfy the DHDCP requirements.

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

The proposed amendment to the approved development would have no further impact on the environment than the original proposal, as the extension to the garage would not involve any additional site disturbance or impact on any existing trees within 3 metres of the proposal.

3.2 Built Environment

The proposed amendment to the approved development is consistent with the mix of dwelling-house design in the locality. The amendment would have a minor additional visual impact in terms of bulk and height when viewed from the neighbouring properties.

This impact is considered to be acceptable, given the significant physical constraints on the site, the consistency of the design in terms of bulk and scale with adjacent dwelling-houses, the 48m setback from the public street and the provision of off street parking to allow visitors to park clear of the accessway.

4. PUBLIC PARTICIPATION

Section 79C(1)(d) of the Act requires Council to consider “any submissions made in accordance with this Act”.

4.1 Community Consultation

The proposed amendment to the development was notified to adjoining and nearby landowners between 21 August and 4 September 2008, in accordance with Council’s Notification and Exhibition Development Control Plan.

During this period, Council received one submission, raising concerns regarding loss of privacy, solar access and setbacks.

The map below indicates the location of the property owner who made a submission to the proposal in proximity to the subject site.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

An assessment of the grounds for objection to the amended proposal is addressed as follows:

4.1.1 Solar Access

The applicant has submitted shadow diagrams prepared for 9am, 12 noon and 3pm on 22 June (the winter solstice). The diagrams confirm that the solar access impact is acceptable, given that the shadows cast over the adjacent premises No. 24 Paul Close comply with the prescriptive measures and objectives of the Solar Access element of the DHDCP.

4.1.2 Privacy

To address any possible privacy impacts upon the neighbouring premises to the south, No. 24 Paul Close, the amended plans propose the erection of a 1.8m high privacy screen along the southern edge of the deck.

Subject to a requirement that this screen be designed to prevent a direct line of sight, the proposal complies with the objectives of the Privacy element of the DHDCP and is considered acceptable.

4.1.3 Front boundary setback

The structure is proposed to be sited 4.5m from the eastern boundary of the site, being the width of the right-of-carriageway which serves the subject property.

The eastern boundary is considered as the front of the premises, given the orientation of the dwelling-house towards the east and the steep topography and shape of the battle-axe allotment site. It is considered that this 1.5m variation to the 6m requirement would have minimal visual impacts, given the consistency of the amended design with adjacent development in terms of bulk and height and the 48m setback from the public street.

The proposal meets the objectives of the Setbacks element of the DHDCP and is considered acceptable.

5. THE PUBLIC INTEREST

Section 79C (1) (e) of the Act requires Council to consider “the public interest”.

The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to and respecting the future desired outcomes expressed in environmental planning instruments and development control plans.

The application is considered to have satisfactorily addressed Council’s criteria and would provide a development outcome that, on balance, would result in a positive impact for the community. Accordingly, it is considered that approval of the proposal would be in the public interest.

6. CONCLUSION

Council is in receipt of a Section 96(2) application to amend Development Consent No. 1366/2007 by increasing the height and size of the garage to accommodate four motor vehicles together with a roof-top deck. This amendment is considered to be an appropriate development of the site.

The additional garage area takes advantage of the disturbance to the site already approved under the original consent with minimal additional impacts on the surrounding natural and built environments, at the same time recognizing the significant physical constraints of the property.

Council has received one submission concerning the application. It is considered that the grounds for objection to the application can be overcome by way of an appropriate condition of consent.

It is recommended that the application be approved subject to the conditions held at Schedule 1.

Simon Evans

Manager - Assessment Team 1

Planning Division

Scott Phillips

Executive Manager

Planning Division

Attachments:

1.View	Locality Map
2.View	DA Plan - approved
3.View	DA Plan - amended
4.View	DA Shadow Plan
5.View	Notice of Determination dated 14 November 2007

File Reference: DA/1366/2007/A

Document Number: D01030083

SCHEDULE 1

Amendment to the description of the proposal:

“Erection of two level garage and a deck”

Addition of the following conditions:

Approved Plans and Supporting Documentation

32. The development must be carried out in accordance with the following plans and documentation listed below and endorsed with Council’s stamp, except where amended by other conditions of this consent:

*Plan No.*	*Drawn by*	*Dated*
1/3, 2/3,3/3	Not shown	August 2008
Shadow diagram – not numbered	Milton J Brown	16/9/2008

33. The proposed 1.8m high privacy screen along the southern side of the roof-top deck is to incorporate solid or horizontal louvered screening of opaque design, angled in such a way as to prevent a direct line of sight of the adjacent property at No. 24 Paul Close.

Advisory Note –As the site is located in a bushfire prone area, the privacy screen must be constructed in accordance with the relevant bushfire protection requirements.

- END OF CONDITIONS -

Planning Report No. PLN222/08

Date of Meeting: 19/11/2008

6 DEVELOPMENT APPLICATION - EDUCATIONAL ESTABLISHMENT (DULKARA ADULT DAY CARE)
118 FRANKLIN ROAD CHERRYBROOK

Development Application No:	878/2008
Description of Proposal:	Demolition of existing buildings, staged construction of an educational establishment (Dulkara Adult Day Centre) and associated landscaping works.
Property Description:	Lot 12 DP 16975, No. 118 Franklin Road Cherrybrook
Applicant:	PMDL Architects
Owner:	Inala
Statutory Provisions:	Hornsby Shire Local Environmental Plan 1994: Residential A (Low Density) State Environmental Planning Policy No. 55 Remediation of Land Community Uses Development Control Plan Cherrybrook Precinct Development Control Plan Car Parking Development Control Plan Access and Mobility Development Control Plan
Estimated Value:	$2.97 million
Ward:	B

RECOMMENDATION

THAT Development Application No. 878/2008 for the demolition of existing buildings, staged construction of an educational establishment (Dulkara Adult Day Centre) and associated landscaping works at Lot 12 DP 16975, No. 118 Franklin Road, Cherrybrook be approved subject to conditions of consent detailed in Schedule 1 of this report.

EXECUTIVE SUMMARY

1. The application proposes the demolition of existing buildings, staged construction of an educational establishment (Dulkara Adult Day Centre) and associated landscaping works.

2. The proposal complies with the provisions of the Hornsby Shire Local Environmental Plan 1994 and is consistent with the provisions of Council’s Community Uses Development Control Plan, Cherrybrook Precinct Development Control Plan and Car Parking Development Control Plan.

3. Three submissions have been received in respect of the application.

4. It is recommended that the application be approved.

HISTORY OF THE SITE

On 8 January 2008 Council refused Development Application No. 1342/2006 for subdivision of two lots into eleven lots generally on environmental grounds and non-compliance with statutory controls.

On 13 May 2008, a Class 1 appeal was lodged in the Land and Environment Court for the refusal of the application. A hearing was set down for 27 and 28 October 2008 before Commissioner Hussey. Amended plans were lodged to address Council’s concerns and the matter goes back before the Court on 7 November 2008.

Notwithstanding the outcome of the Court decision, this application can be assessed and determined by Council based on its individual merits.

THE SITE

The site has an area of 13,433 sqm with a 50.15 metre north-eastern frontage to Franklin Road at Cherrybrook. The site is characterised by a slight fall from the north eastern boundary down to the south western boundary at an average gradient of 8.7%.

The land is dissected by a transmission line easement which runs on a north-south alignment and is approximately centrally located. A drainage channel ends within the transmission line easement in the vicinity of the south western boundary. A stormwater pipe ends at the drainage channel via a concrete headwall and spillway. The concrete pipe runs from a concrete detention tank which is located on the adjoining allotment to the north east.

The part of the site which is to the south east of the transmission line easement accommodates the ‘Inala’ Adult Day Centre which includes approximately twelve buildings. This portion of the site has an area of 6816 sqm. A concrete driveway runs along the south western boundary and a gravel track runs along the north eastern boundary between Franklin Road and the School buildings, providing access to the school. Informal parking for up to 8 vehicles is available on the front lawn adjacent the driveway.

The part of the site which is within, and to the west of, the transmission line easement is generally separated from the south eastern part of the site by a mesh fence, is vacant other than for a small fibro shed and generally cleared of vegetation except in the vicinity of the side boundaries. That part of the land is proposed to be subdivided into residential lots and is the subject of a Class 1 appeal in the Land and Environment Court.

There are fifty two trees on this site comprising of a variety of species including locally native and introduced species.

Adjoining development consists of:

· To north - single and two storey dwelling houses;

· To the east on the opposite side of Franklin Road - Tangara School for Girls;

· To the south – single storey dwelling house and a vacant battleaxe lot containing remnant Blue Gum High Forest (BGHF); and

· To the west – vacant rear part of site separated by an electricity transmission line and subject to an appeal in the Land and Environment Court to subdivide the land.

DESCRIPTION OF DAY CENTRE USE

The Dulkara Adult Day Centre operated by Inala on the subject site since the early 1970s provides structured educational programs for adults with an intellectual disability. The Centre operates from 8.30am to 5.00pm Monday to Friday, with educational care services provided from 9.00am to 3.00pm.

There are currently 44 clients enrolled at the Centre. A number attend on a part-time basis, so there is an average of 38-40 clients involved in Centre activities in any given week. Several groups of clients participate in various outings from the Centre, departing around 9.30am and arriving back at the Centre at various times up to 2.40pm. There are generally 25-35 clients on site at any one time while others are on outings.

The activities and programs are designed to enhance the lives of clients, increasing their independence and participation in the wider community. They include:

· Art and Craft;

· Community access - recreational, leisure and educational outings;

· Work experience;

· Communication and social skills;

· Living skills; and

· Specialised therapies including massage and music.

Participation in the activities and programs is tailored to meet the varied needs of the individual clients who range in age from 18 to 60 years. Most are in the 30-40 year age group.

The Centre is operated by 18 staff in roles of teaching, disability support, physiotherapy, music therapy, massage therapy and administration.

THE PROPOSAL

The proposed development is for the demolition of all existing structures and erection of a new purpose built facility to enable continuation of the current use with an increased number of clients.

The use of the new centre would be a continuation of the existing day care centre use with the same activities and mode of operation as detailed above and the hours of operation would remain unchanged.

Seven structures are proposed to be erected around a central outdoor recreation area. Vehicle access remains unchanged and parallel parking for 8 vehicles is provided along the main driveway adjacent to the main building. A driveway down the south eastern side of the buildings provides access to 8 visitor parking spaces at the front and 10 staff parking spaces at the rear. The buildings encircling the central garden are connected by metal palisade type fencing.

The buildings are all single storey and the development has a total gross floor area of 1263 sqm. The layout ensures that clients and staff have safe and easy access to all rooms, facilities and to a large central garden that is secure, private and visible to staff.

The buildings comprise a main administration and function building across the front, five activity rooms arranged behind that on each side of the central garden and a utility building at the rear. The main building is split into two sections with a combined floor area of 343.6 sqm and uses of the main building include function rooms, kitchen, laundry, WC, display room and gallery, offices and meeting rooms.

The activity rooms range in area from 73.5-160.8 sqm and provide space for therapy, sensory activities, pottery, woodworking and general activities such as art, craft and exercise. The utility building has an area of 68.5 sqm and contains offices, staff room, storage and WC.

The development is proposed to be constructed in two stages as follows:

Stage One:

· Demolish existing clad building;

· Construct temporary gravel road for drop off during construction;

· Construct main administration building;

· Construct Therapy Room building;

· Construct Activity Room 1 building;

· Construct Activity Room 3 building;

· Construct Staff Room/ Office 3 & 4/ Store Building;

· Construct Carpark 1;

· Construct sealed road to access new works; and

· Complete Landscape works for Stage 1.

Stage Two:

· Demolish the remainder of the existing structures on the site;

· Construct Activity Room 2 building;

· Construct Woodworking, Machinery and Pottery Room building;

· Construct Staff Room/ Office 3 & 4/ Store building;

· Construct Carpark 2;

· Complete construction of sealed road/driveway; and

· Complete Landscape works for Stage 2.

ASSESSMENT

1.
STRATEGIC CONTEXT

1.1 Metropolitan Strategy – (Draft) North Subregional Strategy

The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:

· Employment capacity to increase by 9,000 jobs; and

· Housing stock to increase by 11,000 dwellings.

The proposed development would be consistent with the draft Strategy in so far as providing education for local people to secure additional jobs in the locality.

2. STATUTORY CONTROLS

2.1 Hornsby Local Environmental Plan 1994

The subject land is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 (HSLEP). The objectives of the zone zone are:

(a) to provide for the housing needs of the population of the Hornsby area.

(b) to promote a variety of housing types and other land uses compatible with a low density residential environment.

(c) to provide for development that is within the environmental capacity of a low density residential environment.

The proposed development is defined as an educational establishment under HSLEP and is permissible in the zone with Council’s consent.

Clause 15 of HSLEP prescribes that the maximum floor space ratio (FSR) of development within the Residential A (Low Density) zone is 0.4:1. The proposed development would have an FSR of 0.18:1, which satisfies the development standard.

2.2 State Environmental Planning Policy No. 44 Koala Habitat

The application has been assessed against the requirements of State Environmental Planning Policy No. 44. This Policy provides State-wide planning controls to encourage the proper conservation and management of areas of natural vegetation that provide habitat for koalas to ensure a permanent free-living population over their present range and reverse the current trend of koala population decline.

The site does not contain any potential habitat for koalas and no further assessment of the site is required under the provisions of SEPP 44.

2.3 State Environmental Planning Policy No. 55 Remediation of Land

The application has been assessed against the requirements of State Environmental Planning Policy No. 55. This Policy provides State-wide planning controls to promote the remediation of contaminated land to reduce the risk of harm to human health and the environment.

Historical information and inspection of the site and surrounding areas indicates that the site has been used for agricultural purposes. Consequently, some contamination of the land may have occurred. A recommended condition of consent has been included in Schedule 1, requiring the submission of a preliminary site contamination audit to ensure there is no contamination on the site which may pose a risk to human health and the environment.

2.4 Sydney Regional Environmental Plan No. 20 Hawkesbury-Nepean River

The application has been assessed against the requirements of Sydney Regional Environmental Plan No. 20. This Policy provides regional planning controls to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of development are considered in the regional context. The plan addresses matters related to water quality, significant vegetation habitats, extraction, environmental heritage and scenic quality, recreation and tourism, and agriculture.

The applicant has submitted an erosion and sediment control plan as part of the application and a recommended condition of consent has been included in Schedule 1 with regard to the installation and maintenance of sediment and erosion control devices to protect water quality which would ensure compliance with SREP No. 20.

2.5 Community Uses Development Control Plan

Community Uses Development Control Plan
Control	Proposal	Requirement	Compliance
FSR	0.19:1	0.4:1	Yes
Height	5 metres	9 metres	Yes
Storeys	1 storeys	2 storeys	Yes
Site coverage	33%	40%	Yes
Car parking	26 spaces	Parking study	Yes
Setbacks - Front - Side - Side - Rear	16.1 metres 3.4 metre 7.7 metre 22.9 metres	6 metres 1 metre 1 metre 3 metres	Yes Yes Yes Yes
Landscaping	47%	45%	Yes

As detailed in the above table, the proposed development complies with the prescriptive measures within Council’s Community Uses DCP. A brief discussion on compliance with relevant performance criteria is provided below.

2.5.1 Site Selection Criteria

The Community Uses DCP includes the following site selection criteria as being appropriate locations for educational establishments:

· sites close to public transport facilities (i.e. bus, rail).

· large sites with potential for extensive recreation areas.

· sites with good vehicular access.

· sites with less exposure to dwellings.

· sites close to populations with a large proportion of the age group being served.

· sites which have a minimum frontage of 60m to provide for a bus set down area, car set down areas and driveway ingress/egress.

The subject site comprises a large lot with a frontage of 54 metres to Franklin Road. The site is within walking distance of the proposed North West Metro (Franklin Road Railway Station) and is a large site with extensive recreation areas for the proposed use.

The proposal is a continuation of the existing use of the site and is consistent with the performance criteria and prescriptive measures of the control.

2.5.2 Design

The proposed development is single storey in height and has been designed to complement the existing residential development on adjoining properties. The development would enhance the character and amenity of the area and has regard for the topography of the land as it steps down the site.

The development is further complemented by generous setbacks and screen planting to the property boundaries to maintain privacy to the adjoining residential dwellings.

2.5.3 Recreation Space

The development includes 5 buildings for indoor activities to meet the long term needs of clients of the Centre. The design of the development incorporates safe, private, sunny, easily supervised open space for use of clients, through the provision of a central recreation space of approximately 1125 sqm of which 500 sqm is useable lawn. This represents approximately 8 sqm useable open space per client and whilst less than the 20 sqm per student required in the Community Uses DCP, this is considered reasonable, as a large proportion of the 20 sqm would comprise sporting fields which are not appropriate or required for the specific use undertaken on the site.

The development makes appropriate provision for the recreation needs of clients and meets the objective of this element.

2.5.4 Acoustics

Whilst it is recognised that there would be some increase in noise associated with an increase in development on site, it is considered that the noise increase would not be significant as to warrant refusal of the application in itself. Any unreasonable or excessive noise is governed by the Protection of the Environment Operations Act 1997.

Notwithstanding, the proposed development has been designed to minimise potential acoustic impacts on the adjoining and surrounding residential properties by orientating the building to face into a central outdoor recreation area and providing generous setbacks to the property boundaries.

2.5.5 Solar Access

The development is single storey and the submission of shadow diagrams is not required with the application. Notwithstanding, the design of the development and the proposed setbacks from the property boundaries ensure that the proposal would comply with the requirements for developments to maintain a minimum of 4 hours of sunshine to the open space areas of adjoining residential properties, in accordance with the Community Uses DCP solar access requirement.

2.5.6 Crime Prevention

The proposed development has been designed to minimise crime in accordance with Crime Prevention Through Environmental Design (CPTED) principles by way of clear sightlines, windows that overlook the streetscape and pedestrian access and clearly defined building entry and access.

The proposal complies with the Community Uses DCP crime prevention element objective.

2.6 Cherrybrook Precinct Development Control Plan

The primary purpose of the Plan is to provide controls for the Cherrybrook Precinct. The objectives of the DCP are to provide a detailed planning strategy; to provide guidelines for development; and to provide measures to protect the natural and built environment.

The subject site is included within the precinct and complies with the provisions of the DCP and the Cherrybrook Precinct Masterplan.

2.7 Car Parking Development Control Plan

The primary purpose of this DCP is to provide parking controls for the development.

Council’s engineering assessment of the traffic impacts of the development concludes that the proposal is acceptable with regard to the driveway widths, accessway provisions and car spaces on site.

2.8 Access and Mobility Development Control Plan

The application includes an access report prepared by Blythe Sanderson Group that made recommendations for the proposal, in compliance with Australian Standard 1428, the Building Code of Australia, the Disability Discrimination Act 1992 and Council’s Access & Mobility DCP.

In this respect, it is necessary that the recommendations contained in the report are incorporated into the construction certificate plans for the development. A condition is recommended for implementation of the access report recommendations.

2.9 Waste Minimisation and Management Development Control Plan

The primary purpose of this Development Control Plan is to provide planning strategies and controls to promote waste minimisation and management.

The applicant has submitted a waste management plan in accordance with the requirements of the DCP.

Council’s waste assessment of the development concludes that the proposal is acceptable with regard to the location and size of the bin enclosure area and access to it.

2.10 Sustainable Water Development Control Plan

The DCP aims to achieve the implementation of sustainable water practices into the management of development in the Hornsby Shire. This matter has been addressed in Section 2.4 of this report.

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree Removal

There are a total of 52 trees on that part of the site the subject of the development application. The proposed development would necessitate the removal of 28 trees from the site. No trees to be removed are identified as ‘significant trees’ under Council’s Tree Management Plan. The application has been supported by an arborist report that assesses the 24 remaining trees as being healthy trees and recommends measures for the trees to be retained and protected.

Council officers concur with the recommendations of the arborist report.

3.1.2 Natural Watercourse

The Department of Water and Energy has previously advised Council that the watercourse/ drainage line on the site is not defined as a “river” for the purposes of the Water Management Act 2000. Notwithstanding, the proposed development would not impact on the drainage line and would maintain the existing vegetated open channel that has been identified on the site.

3.1.3 Natural Hazards

There is no known hazard/risk associated with the site with respect to bushfire, landslip, subsidence and flooding that would preclude approval of the proposed development.

3.2 Built Environment

The proposed development is for the demolition of existing structures, staged construction of an educational establishment (Dulkara Adult Day Centre) and associated landscaping works.

The proposal has attempted to minimise the visual impact by ensuring the layout, scale, materials, design and finishes of the buildings combine to give the development a domestic rather than institution presentation. Each of the buildings is single storey in height and the landscape treatment of the development provides both recreational space for the occupants and visual interest and screening to maintain and enhance the amenity of adjoining properties.

3.3 Social Impacts

The development would make a positive social contribution to the local community by providing a modern place for structured educational programs for adults with an intellectual disability. There is a current shortage of places and the proposal will increase social welfare and provide an increased opportunity for people with a disability to be included in the wider community.

3.4 Economic Impacts

The economic value of the development on the local and broader community has been considered with specific reference to the potential employment generation through the provision of training for people with a disability. This is consistent with the North Subregion (Draft) Subregional Strategy that provides a target of 9,000 jobs within the Hornsby LGA by 2031.

4. SITE SUITABILITY

Section 79C(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

The site has a gradual slope and is currently used as an educational establishment - Adult Day Centre. The proposal is similar in bulk, scale and form to recent residential development occurring in the locality and the site is suitable for the proposed development subject to the implementation of erosion and sediment control measures during construction to protect downstream water quality.

5. PUBLIC PARTICIPATION

Section 79C(1)(d) of the Act requires Council to consider “any submissions made in accordance with this Act”.

5.1 Community Consultation

The proposed development was placed on public exhibition and was notified to adjoining and nearby landowners between 3 July 2008 and 7 August 2008 in accordance with Council’s Notification and Exhibition Development Control Plan. During this period, Council received three submissions. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

NOTIFICATION PLAN
• PROPERTIES NOTIFIED	X SUBMISSIONS RECEIVED	PROPERTY SUBJECT OF DEVELOPMENT
NO SUBMISSIONS RECEIVED OUT OF MAP RANGE

The three submissions made the following observations:

· Request that Council impose a condition of consent requiring that the applicant install kerb, gutter and a footpath to link with the adjoining residences.

· Is there enough off-street parking, catering for visitors, disabled adults/students, carers and administration staff?

· Could there be provision made for a large commercial rubbish bin built at the front of the property instead of the currently used standard household garbage bins.

· Request adequate screening trees and shrubs to be planted to ensure privacy to adjoining properties.

The merits of the matters raised in community submissions have been addressed in the body of the report with the exception of the following:

5.1.1
Kerb and Gutter

It is considered to be a reasonable request that the applicant be required to construct the kerb and gutter and footpath at the Franklin Road frontage of the site. A condition of consent has been included in Schedule 1.

5.1.2 Location of Bin Enclosure

Two submissions received raised concern with respect to the location of the waste bin storage area and that smells from the bins and rats, mice and flies may be attracted to the area.

Council’s waste assessment of the development concludes that the proposal is acceptable with regard to the location and size of the bin enclosure area and access to it. It is recommended that all putrescible waste generated is to be deposited in approved container(s) which are water, fly and vermin proof and that the bin enclosure is provided with water/hose for cleansing, graded floors with drainage to sewer, sealed/impervious surfaces, adequate lighting and ventilation. Appropriate conditions of consent have been included in Schedule 1.

5.1.3 Screen Planting/Privacy

The submitted landscape plan provides for appropriate screen planting for the development, particularly adjacent to the property boundaries. Council’s landscape assessment of the development concludes that the proposal is acceptable with regard to visual amenity and privacy and conditions of consent have been included in Schedule 1.

5.2 Public Agencies

There were no submissions received from public authorities.

6. THE PUBLIC INTEREST

Section 79C(1)(e) of the Act requires Council to consider “the public interest”.

The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to and respecting the future desired outcomes expressed in environmental planning instruments and development control plans.

7. CONCLUSION

The proposed educational establishment is consistent in scale with low density residential development in the locality and complies with the provisions of the Community Uses DCP.

The concerns raised in the submissions to the application are principally in respect of the provision of kerb and gutter and footpath to the street frontage, provision of adequate screen planting, location of the waste bins and provision of adequate car parking. The concerns have been considered in the assessment of the application and are addressed by the recommended conditions.

On balance, and having regard to the community benefit of the proposal, it is considered that the development is worthy of Council’s consent. Accordingly, recommended conditions of consent are held at Schedule 1 to this report.

Rod Pickles

Manager - Assessment Team 2

Planning Division

Scott Phillips

Executive Manager

Planning Division

Attachments:

1.View	Locality Plan
2.View	DA Plans and Survey
3.View	Landscape Plans
4.View	Tree Survey

File Reference: DA/878/2008

Document Number: D01031973

SCHEDULE 1

CONDITIONS APPLICABLE TO ALL STAGES

Approved Plans and Supporting Documentation

Architectural Plans by PMDL Architecture & Design

*Plan No.*	*Title*	*Rev*	*Dated*
DA101	Site Plan	C	27 June 2008
DA102	Demolition Plan	C	27 June 2008
DA103	Roof Plan	C	27 June 2008
DA104	Elevations	C	27 June 2008
DA105	Sections	C	27 June 2008
DA106	Ground Floor Plans (Part A & B)	C	27 June 2008

Landscape Plans by Material

*Plan No.*	*Title*	*Rev*	*Dated*
08-0009-01	Landscape Plan	A	26 August 2008
08-0009-02	Planting Plan	A	26 August 2008

Hydraulic Services Plans by Sydney All Services Pty Ltd

*Plan No.*	*Title*	*Rev*	*Dated*
H01	Hydraulic Services Site Plan	C	June 2008
H02	Sediment & Erosion Control Plan	A	June 2008
H03	Hydraulic Services Details	A	June 2008

Tree Location Plans by Urban Tree Management

*Plan No.*	*Title*	*Rev*	*Dated*
Appendix I	Survey of Subject Trees	-	9 June 2008
Appendix J.1	Tree Protection Plan	-	9 June 2008
Appendix J.2	Tree Protection Plan	-	9 June 2008

Supporting Documents

*Document Title*	*Prepared by*	*Dated*
Schedule of Finishes	PMDL Architecture & Design	Undated
Access Report	Blythe-Sanderson Group	6 June 2008
EMR Appraisal Report	EMR Australia Pty Ltd	25 November 2006
Waste Management Plan	John Wilshire	27 June 2008
Arboricultural Assessment	Urban Tree Management	9 June 2008

Note: This development consent does not provide for any signage. A separate development application must be submitted for any proposed signage for the Centre.

Hours of Use

2. The hours of use are to be restricted to Monday to Friday, 7.00am to 6.00pm.

No. of Clients

3. The maximum number of clients on site at any one time is limited to 60 persons. No increase in clients beyond this level shall occur without the consent of Council.

Roadworks

8. In order to provide for pedestrian and vehicular traffic generated by the development the following works to be undertaken at the Applicant’s cost:

(a) The existing dish drain across the entire frontage of the development shall be removed and reconstructed with Council’s standard 150mm integral kerb and gutter, except for that part of the frontage within 4m of the significant street trees, which shall be constructed with Council’s standard asphaltic concrete kerb;

(b) To ensure a smooth kerb transition from the southern side 4.0m wide footpath verge to the 3.5m wide footpath verge north of the site, the kerb design shall include a suitable reverse curve with radii at least 12.0m. Where required, adjacent vehicular crossings shall be adjusted to suit the design;

(c) In order to match with the pavement in the public road, the Applicant shall remove and reconstruct at least the nearest 600 mm of road pavement across the site frontage, with grades and levels designed in accordance with Council’s standard;

(d) The footpath shall, where possible, be grade up between the top of the kerb and the boundary at 2-4%;

(e) Pursuant to the Roads Act 1993, these works, once approved shall be supervised by and constructed to the complete satisfaction of Hornsby Shire Council’s Manager, Subdivisions prior to the release of any Occupation Certificate;

Footpath

9. A 1.2m wide concrete fooptath shall be designed and constructed across the full frontage to Franklin Road in accordance with Hornsby Shire Council's Civil Works Design and Construction Specification 2005.

Redundant Crossings

10. Redundant crossings shall be removed and reinstated to Hornsby Shire Council’s standard kerb and gutter.

Traffic Control

11. A Traffic Control Plan (TCP), prepared by a qualified work site traffic controller, is to be submitted with any construction certificate, demonstrating compliance with the Road & Traffic Authority’s Traffic Control At Worksites Manual, 1998, and detailing:

(a) Public notification of proposed works.

(b) Long term signage arrangement.

(d) Vehicle Movement Plans, where applicable.

(e) Traffic Management Plans.

(f) Pedestrian and cyclist access/safety.

The cost of repairing any damage caused to Council's assets in the vicinity of the subject site as a result of construction works associated with the approved development is to be paid for by the applicant/developer prior to issue of any occupation certificate.

Drainage

12. Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall:

(a) Be in accordance with Hornsby Shire Council Civil Works – Design Specification 2005;

(b) Provide for drainage discharge to an existing Council controlled drainage system;

(c) Ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties;

(d) Be submitted for consideration with the construction certificate plans.

Overland Flow

13. An open swale is to be designed to cater for the ephemeral watercourse adjacent to the buildings, courtyard, car stand and driveway areas. The swales are to be able to carry the 100 year average recurrence interval (ARI) storm flow. In order to prevent stormwater inundation of the developing areas, the existing and proposed buildings shall be located outside the flooded extent of the 100 year average recurrence interval (ARI) storm flow.

Headwall Construction

14. All headwall outlets shall incorporate flow velocity reduction controls (i.e. bedded boulders and small stones) to minimise erosive and scouring impacts to the watercourse. Accordingly, energy dissipator controls shall be landscaped to accommodate outlet sheet flow (forced jump). No engineering works are permitted within the bed of the watercourse.

On-Site Detention

15. An on site detention (OSD) system is to be provided and designed and constructed in accordance with the following requirements:

(a) The system shall drain all roofing, driveway and landscape areas in accordance with Hornsby Shire Council’s Design and Construction Specification 2005. The developed 20 year average recurrence interval (ARI) flow shall be restricted to the 5 year ARI predevelopment flow rate;

(b) Where an OSD system is proposed under a vehicular driveway, the Engineer is to certify that the detention tank construction is structurally capable of withstanding the maximum anticipated traffic load;

(c) Calculations, details and hydrology of the upstream catchment shall be prepared by a suitably qualified and Chartered Engineer and included on Construction Certificate plans;

(d) The outlet discharge shall be a slow control discharge (i.e. riser or a sheet flow spillway) designed to discharge at peak flow of a 20 year frequency storm. Trash collection screening filters should be installed at the inlet of the basin.

Easements & Restrictions on Title

16. Any easement(s) or restriction(s) on Title required by this consent must nominate Hornsby Shire Council as the authority to release, vary or modify the easement(s) or restriction(s).

17. In regard to the On-Site Detention system, the following requirements are to be completed prior to release of the Occupation Certificate:

(a) Upon completion of the OSD works, Work-as-Executed (WAE) plans shall be prepared by the consulting Engineer/Registered Surveyor to verify that the volume of storage has been attained and that critical water and floor levels are in accordance with design requirements. Any changes or variations to the approved plans shall be highlighted in red;

(b) Certification must be prepared by a suitably qualified and Chartered Engineer, which must state that the system complies with Council's OSD policy, all relevant codes and standards and also that it is generally in accordance with the approved plans;

(c) A copy of the WAE plans, and Certifications must be submitted to Hornsby Shire Council’s Manager, Subdivisions for consideration and written approval prior to release of the occupation certificate;

(d) For all on-site detention (OSD) systems, including roof guttering and downpipe systems. A Positive Covenant and Restriction on Use of Land shall be required on the Certificate of Title in favour of Hornsby Shire Council. They are created under Section 88B of the Conveyancing Act 1919 for newly created lots or by application to the Land Titles Office using the appropriate forms such as 13PC and 13RPA for existing Titles under S88E of the Conveyancing Act. The property titles must be altered prior to the release of the occupation certificate. The purpose of this is to ensure that the registered proprietor has care, control and maintenance obligations of the OSD system including the guttering and downpipe systems. A copy of Hornsby Shire Council's draft terms for the above is available on request.

Building Code of Australia

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

Sydney Water – Quick Check

19. The application must be submitted to a Sydney Water ‘Quick Check Agent’ or ‘Customer Centre’ for approval to determine whether the development will affect any Sydney Water infrastructure and whether further requirements are required to be met.

Note: Refer to www.sydneywater.com.au or telephone 13 20 92 for assistance.

Erection of Construction Sign

20. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

a) showing the name, address and telephone number of the principal certifying authority for the work;

b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours; and

c) stating that unauthorised entry to the work site is prohibited.

Note: Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

Hours of Demolition/Construction

21. In order to maintain the amenity of adjoining properties, site works must be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. Site works may extend to 4.00 pm on Saturdays if inaudible on residential properties. No work must be undertaken on Sundays or public holidays. Plant, goods or materials must not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.

Demolition

22. All demolition work is to be carried out in accordance with the applicable provisions of Australian Standard 2601-2001 ‘The Demolition of Structures’.

Note: Applicants are reminded that WorkCover NSW requires all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications.

Dust Control

23. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works.

Excavation & Backfilling

24. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, are to be constructed together with associated stormwater drainage measures prior to occupation of the development or before where site conditions require.

Food Premises

25. The construction, fitout and operation of the proposed development, or any part thereof, to be used for the manufacture, preparation or storage of food for sale, is to be in accordance with AS 4674-2004, Design and fit out of food premises, the Food Act 2003, and the Food Regulation 2004.

Lighting

26. All external lighting on the proposed development shall be designed so as not to cause a nuisance to adjoining properties and shall comply with the Australian Standard AS3282:1997 - The Control of Obtrusive Effects of Outdoor Lighting.

Environmental Sustainability

27. To ensure that past agricultural land uses on the site have not resulted in any contamination of the land, a preliminary investigation of the proposed development site must be prepared by a suitably qualified environmental consultant for any land contamination. Such an investigation must be undertaken in accordance with NSW Environment Protection Authority’s Contaminated Sites – Guidelines for Consultants Reporting on Contaminated Sites and Contaminated Sites – Sampling Design Guidelines.

If the preliminary investigation finds that contamination may have occurred, a Remedial Action Plan is to be prepared in accordance with the Contaminated Land Planning Guidelines.

28. Council and the PCA must be notified immediately should the presence of asbestos or soil contamination, not recognised during the original assessment process be identified during demolition or construction works.

29. Any imported soils to the subject site must be Virgin Excavated Natural Material (VENM) as defined in Schedule 1 of the Protection of the Environment Operations Act 1997 or a material as approved under the DECC general resource recovery exemption.

30. All excavated material removed from the site must be classified in accordance with NSW EPA (1999) Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes prior to disposal. All excavated material must be disposed of to an approved waste management facility.

31. Waters captured in the sediment basin shall be flocculated to ensure that discharges contain no more than 50 mg/L of suspended solids, turbidity is no more than 30 ntu’s and the pH is between 6.5 – 7.5 before being discharged. Gypsum (calcium sulfate) shall be used as the flocculant agent and applied within 48 hours following rainfall events. The flocculant shall be evenly distributed over the surface area of the sediment retention basin. Settled sediment shall be pumped out and disposed of to an approved waste management facility. Approval must be sought from Council prior to discharge into Council’s stormwater system.

32. The following sediment control measures are required to be provided in conjunction with the Hydraulic Services Sediment and Erosion Control Plan prepared by Sydney All Services Pty Ltd dated April 2008:

(a) Stormwater kerb inlets and drains receiving stormwater must be protected at all times during work on site.

(b) Contamination of surface waters on downslope lands must be mitigated by installing sediment control fences downslope of the disturbed areas to capture sediment and debris escaping from the site.

(c) Geofabric sediment fencing must be installed parallel to the proposed works or along the natural contours of the site.

(d) Topsoil stockpiling stripped from the construction site must be diverted away from drainage lines and stormwater inlets, be suitably covered by impervious membrane material and screened by sediment fencing.

(e) Kerb inlet sediment traps are to be installed downslope of the site to facilitate the capture of sediment.

(f) Street sweeping must be undertaken as required along Franklin Road during and after excavation and construction until the site is fully established.

(g) Erosion and sediment control measures must be maintained in good working order, and be repaired or replaced throughout the course of works on site.

(h) Sediment and erosion controls must be inspected weekly or after each storm event for litter, sediment, and organic waste accumulation. All sediment/debris shall be removed within two (2) working days or when reached 40% capacity.

33. The installation of rainwater tanks and associated plumbing must be in accordance with Sydney Water’s Guidelines for Rainwater Tanks on Residential Properties: Plumbing Requirements, dated April 2003.

34. All noise generated by the proposed development is to be attenuated to prevent levels of noise being emitted to adjacent premises which possess tonal, beating and similar characteristics or which exceeds background noise levels by more than 5dB(A).

Bushland & Biodiversity Management

35. To ensure that invasive plants identified as weed species are effectively removed and not allowed to proliferate or interfere with a quality landscaping and environmental outcome, all environmental and noxious weeds including Small-leaved Privet (Ligustrum lucidum), Large-leaved Privet (Ligustrum sinense) and Bamboo (Phyllostachys spp.) are to be removed and suppressed using an appropriate method as detailed on Council’s web site under Environment/ Bushland and Biodiversity/ Weeds: www.hornsby.nsw.gov.au.

Tree Removal Prohibited

36. To protect trees, the removal of trees numbered 9-22, 38, 39, 43, 44, 46-52 and 55-59 marked on the plan or excavation or filling of soil or the placing of building materials or associated works (ie water, sewer, telephone, drainage) within the tree protection zones is not permitted without written approval from Council.

Tree Fencing

37. Prior to work commencing, tree protection fencing must be erected around trees numbered 9-22, 38, 39, 43, 44, 46-52 and 55-59 to be retained and protected within the tree protection zones.

Excavation

38. To prevent damage to tree roots, excavation (for services and other works), change of soil level (cut or fill), parking (vehicles or plant), or placement of building materials (including disposal of cement slurry and waste water) within the specified tree protection setbacks, and within 3m of all other trees to be retained onsite, is not permitted. No tree roots located within the specified tree setbacks shall be severed or injured in the process of any site works during the construction or landscaping phases of the approved project. The applicant shall ensure that all underground services (i.e. water, drainage, gas, and sewer) shall not be laid within 3m of any tree located on the property protected under Council’s Tree Preservation Order.

Boundary Tree Plantings (Western and Southern Boundary)

39. To ensure adequate tree planting is provided to replace existing trees removed from the site, planting to the landscape setback zone along Western and Southern boundaries shall include an additional:

· Six (6) Angophora costata trees. Trees to be installed at minimum 25 litre size.

· Six (6) Backhousia myrtifolia. Trees to be installed at minimum 25 litre size.

The landscape works shall be maintained into the future to ensure the establishment and successful growth of plant material to meet the intent of the landscape design.

Screen Planting of Car Park 2 Wall

40. To ensure adequate screen planting is provided to adjoining properties, screen planting shall be provided in front of the retaining wall associated with car park 2 and shall include fifteen (15) Acacia linfolia capable of reaching a mature height of 3 metres planted at 1 metre centres in mulched planter beds. Shrubs are to be installed at minimum pot size of 5 litres.

The landscape works shall be maintained into the future to ensure the establishment and successful growth of plant material to meet the intent of the landscape design.

Traffic Management

41. In order to avoid vehicular conflict, the entry and departure crossings shall be signposted prior to occupation.

Waste Minimisation and Management

42. All putrescible waste generated is to be deposited in approved container(s) which are water, fly and vermin proof.

43. Bin storage areas must be designed and constructed in accordance with Hornsby Shire Council’s Waste Minimisation and Management Development Control Plan.

44. To confirm compliance with the Waste Management Plans lodged with this Development Application, prior to issue of the occupation certificate, submit to Council documentary evidence (ie. tipping dockets/receipts from recycling depots, transfer stations and landfills) and a summary report of actual destinations and quantities of waste generated by the works carried out under this development consent.

ADVISORY NOTES

Environmental Planning and Assessment Act, 1979 Requirements

1. The Environmental Planning and Assessment Act, 1979 requires you to:

b) Nominate a principal certifying authority and notify Council of that appointment prior to the commencement of any works;

c) Give Council at least two days notice prior to the commencement of any works;

d) Have mandatory inspections of nominated stages of the construction inspected;

e) Obtain an occupation certificate before occupying any building or commencing the use of the land.

Construction Certificates – Engineering Works

2. A Construction Certificate must be obtained from either Council or a suitably qualified Accredited Certifier. Engineering design plans and specifications towards the Construction Certificate(s) are to be prepared by a chartered professional engineer for any proposed works. The plans and specifications are to be in accordance with development consent conditions, appropriate Australian standards, and applicable Council standards, in particular “Hornsby Shire Council Civil Works - Design and Construction Specification”. Information required to be submitted with a construction certificate is as follows:

(a) copies of certificates relied upon. This includes the Quality Assurance of Engineering Design – Design Certification Report in Council’s Design Specification 2005;

(b) Four (4) copies of the detailed engineering plans and specifications in accordance Hornsby Shire Council's Civil Works - Design Specification 2005. The detailed plans may include but are not limited to the earthworks, roadworks, road pavements, road furnishings, stormwater drainage, landscaping and erosion control works;

(c) Pursuant to Section 138 of the Roads Act 1993, Hornsby Shire Council’s approval for any works in the existing public road and works involving Council-controlled drainage systems is required prior to the issuing of a construction certificate for these works;

(d) Where development consents provide for the above works but also consent to works for erection or alteration of Class 1-10 Buildings under the BCA, a separate Construction Certificate shall be applied for and approved by Council or an Accredited Certifier with Building Professionals Board A-Category accreditation prior to the commencement of any building work.

Vehicular Crossings

3. Concrete footpath and gutter crossings are to be constructed to match with the proposed internal driveway. The crossing shall be designed and constructed in accordance with the following provisions:

(a) Under the provisions of the Local Government Act 1993 and Roads Act 1993 approval for the construction of the proposed concrete footpath and gutter crossing to be sought with the Roadworks Construction Certificate Vehicular Crossing Application and the appropriate fees paid prior to the commencement of work;

(b) The crossings are to be designed and constructed in accordance with Hornsby Shire Council’s standard. The crossing is to have adequate width at the layback as appropriate for the adjacent driveway or car park. A plan of the standard is available on request;

(c) In order to ensure adequate sight distances for pedestrian traffic along the public way, the driveway gates and abutting fences shall be designed in accordance with Australian Standard AS2890.1 – Off Street car parking Section 3.2.4 provisions for sight distance safety at driveway exits;

(d) The vehicular crossing design and construction must be certified by Hornsby Shire Council’s Works or Planning Division as being constructed in accordance with Council’s standard, prior to release of any Occupation Certificate.

Tree Preservation Order

4. A Tree Preservation Order exists within the Hornsby Shire whereby the cutting down, topping, lopping or wilful destruction of any tree exceeding 3.0 metres in height (except where exempt as defined under Council’s Tree Preservation Order ) or substantially altering the soil level around the trunk or within 3 metres of the trunk, without prior written consent is prohibited. Release of the Construction Certificate gives automatic approval to the removal of those trees located on the subject property within 3 metres of the foundation footprint of an approved residential, commercial or community building, garage, inground swimming pool or within the alignment of approved vehicular access or parking area. Other trees shall not be removed or damaged without approval being granted under Council’s Tree Preservation Order. Penalties apply for non-compliance.

Long Service Levy

5. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986, any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.35% of the total cost of the work and must be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under Section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a construction certificate being issued. (clause 98(1) (b) of the Environmental Planning and Assessment Regulation. 2000.)

- END OF CONDITIONS -

Planning Report No. PLN212/08

Date of Meeting: 19/11/2008

7 DEVELOPMENT APPLICATION - BALCONY ENCLOSURE TO MULTI-UNIT DWELLING
1/5B HANNAH STREET, BEECROFT

Development Application No:	1033/2008
Description of Proposal:	Balcony enclosure to multi-unit dwelling.
Property Description:	Lot 7 SP 72498, (Unit 1, No. 5B) Hannah Street, Beecroft.
Applicant:	Mrs Rosalind Elizabeth Dayman
Owner:	Mrs R E Dayman
Statutory Provisions:	Hornsby Shire LEP 1994 - Business A (General)
Estimated Value:	$10,000
Ward:	C

RECOMMENDATION

THAT Council approve Development Application No. 1033/2008 at Unit 1, 5B Hannah Street Beecroft (Lot 7 SP 72498) subject to the conditions of consent detailed in Schedule 1 of this report.

EXECUTIVE SUMMARY

1. The application proposes the enclosure of a balcony of an existing multi-unit dwelling.

2. The existing development on the site comprises a 3 storey mixed use retail/residential building which exceeds the floor space ratio standard pursuant to clause 15 of Hornsby Shire LEP.

3. The proposed balcony enclosure increases the existing floor space and is the subject of an objection pursuant to SEPP 1 – Development Standards in respect to the floor space ratio standard.

4. No submissions have been received in respect of the application.

5. It is recommended that the application be approved.

HISTORY OF THE SITE

The existing three storey building on the site was the subject of Development Application No. DA/1876/2001 approved by Council 17 April 2002, for erection of five shops and seven residential units and strata title subdivision. The development included the conservation of the adjoining former Beecroft Post Office (heritage item), which is now used as a restaurant.

THE SITE

The site has an area of 1,114sqm and occupies the south east corner of Beecroft Road and Hannah Street and is within the Beecroft commercial centre. The site includes an existing 3 storey mixed use building and the former Beecroft Post Office. The existing building includes 5 shops and 7 multi-unit dwellings and basement car parking.

The multi-unit dwelling subject of the application is located on the first floor and includes a large balcony at the frontage and a smaller balcony at the rear. The unit balcony proposed for enclosure is at the rear of the unit at the south western corner of the building. The outlook from the rear balcony is to the adjoining three storey building fronting 97-99 Beecroft Road which comprises 16 multi-units dwellings and 2 commercial units, completed this year (DA/1571/2006). The rear balcony view to Beecroft Road is partially obstructed by the former Beecroft Post Office.

At the frontage the site forms part of an active street frontage with a range of shops and business activity.

THE PROPOSAL

The proposal involves the enclosure of the rear balcony of Unit 1 for inclusion in the living area of the unit. The balcony has an area of 6sqm. The proposed enclosure is in glazed panels and openable sashes.

The proposed enclosure results in a 16% reduction in the unit’s private open space which would not be significant as the remaining front balcony is relatively large with an area of 30sqm.

ASSESSMENT

1. STRATEGIC CONTEXT

1.1 Metropolitan Strategy – (Draft) North Subregional Strategy

The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:

· Employment capacity to increase by 9,000 jobs; and

· Housing stock to increase by 11,000 dwellings.

The proposal is not contrary to the Strategy.

2. STATUTORY CONTROLS

2.1 Hornsby Shire Local Environmental Plan 1994

The subject land is zoned Business A (General) under Hornsby Shire Local Environmental Plan 1994 (HLEP). The objectives of the zone zone are:

(a) to encourage economic growth and employment opportunities.

(b) to accommodate the retail, commercial and social needs of the community.

(c) to encourage development that improves the health, vitality, cultural environment and social environment within the area.

The proposed development is defined as ‘multi-unit housing’ under HLEP and is permissible in the zone with Council’s consent.

Clause 15 of HLEP prescribes that the maximum floor space ratio (FSR) of development within the zone zone is 1:1. The existing development slightly exceeds the floor space ratio being 1.029:1 and the proposal further increases the ratio to 1.035:1, an increase in floor space of 0.005%. The non-compliance with the ratio standard is the subject of the SEPP 1 objection submitted by the applicant (refer to discussion in Section 2.2).

Clause 18 of HLEP sets out heritage conservation provisions within the Hornsby LGA. The site includes the former Beecroft Post Office which is a heritage item of local significance listed under Schedule D of HLEP. The site is within the Beecroft Heritage Conservation Area listed under Schedule E of HLEP.

2.2 State Environmental Planning Policy No. 1 – Development Standards

The application has been assessed against the requirements of SEPP 1. This policy provides flexibility in the application of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objectives of the Act.

The Land and Environment Court has expressed the view that there are five different ways in which an objection may be well founded and that approval of the objection may be consistent with the aims of the policy:

1. the objectives of the standard are achieved notwithstanding non-compliance with the standards;

2. the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

3. the underlying object of purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

4. the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

5. the zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone.

It is considered that the first four of the above points are relevant matters to consider in respect to this application.

The applicant has submitted an objection pursuant to SEPP 1 in support of the proposal. The applicant’s submission has been summarised (in italics) below:

· The area is an existing space within the building and does not increase the overall density of the area, and therefore will not be a net increase in the density of the development.

· The increase in floor space is not going to impact on the density of the business area.

· The area is currently open to the elements, therefore is unusable in it’s present state in inclement or windy weather.

· The quality of the private recreation area would be improved on completion of the proposed alteration. It would provide and protect acoustic and visual privacy, which is necessary and required due to the completion of the development south of the lot, and proximity to the kitchen of the adjacent restaurant.

· The Council approved the existing ratio of 1.03:1 for the development. The ratio would be an increase of 0 .005:1.

The existing development exceeds the floor space ratio standard pursuant to Clause 15 of HLEP. The proposed enclosure of the existing balcony increases the floor area of the unit and is in non-compliance with the standard. The submitted objection to the standard is considered well founded as the increase in floor area is relatively minor (6sqm) and does not increase the existing building footprint.

The variation to the floor space ratio standard is therefore considered acceptable.

2.3 Medium/High Density Multi-Unit Housing Development Control Plan (DCP)

The proposed development has been assessed having regard to the relevant performance and prescriptive design standards within Council’s Medium/High Density Multi-Unit Housing DCP, which provides a guideline for multi-unit development within the Business A (General) Zone. The following table sets out the proposal’s compliance with the relevant prescriptive standards of the Plan:

Medium Density Multi-Unit Housing Development Control Plan
Control	Proposal	Requirement	Compliance
Private Open Space	30m²	10m²	Yes

As detailed in the above table, the proposed development results in 30m² of private open space for Unit 1 in compliance with the DCP.

2.3.1 Car Parking

The proposed balcony enclosure results in total floor area for the unit of 72.4m². The proposed floor area does not attract any additional requirement in respect to car parking.

2.3.2 Design

The DCP includes the following design prescriptive measure:

To maintain the design integrity of buildings the enclosure of balconies should not occur.

The existing rear balconies at the southern elevation of the building are not a predominant element in the appearance of the building or the streetscape. The proposed glazed enclosure of the balcony is consistent with the existing glazed balustrade and would not detract from the building’s appearance. The proposal is therefore considered acceptable as an exception to the prescriptive measure.

The balcony enclosure creates additional area to the living room of the unit. The enclosure would not create an undesirable precedent in respect to the building’s 2 remaining balconies at the southern elevation in the event that they sought consent for enclosure.

2.4 Business Lands Development Control Plan

The residential development element of the DCP applies to the proposal.

The proposal improves the amenity of the dwelling in relation to noise and odours from the adjoining restaurant. The proposal does not result in any inconsistency with the requirements of the DCP.

2.5 Heritage Development Control Plan

The existing mixed use building adjoins the former Beecroft Post Office which is an item of environmental heritage of local significance listed under Schedule D of HELP. The item is also listed on the National Trust Register. The site is within the Beecroft Conservation Area.

The heritage item would not be adversely affected by the proposal. The proposed work is to the rear of the mixed use building and the item and would not be highly visible from the street. The enclosure is of design to match the existing building and would not affect significance of the heritage item or the conservation area. The proposal is therefore satisfactory in respect to the design and streetscape elements of the DCP.

3. ENVIRONMENTAL IMPACTS

The proposed development is of a minor nature and would not result in any appreciable impact on the built environment or the locality.

4. SITE SUITABILITY

Section 79C(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

The site is that of an existing building. The proposal does not involve any increase in the existing building footprint or otherwise affect the site.

5. PUBLIC PARTICIPATION

Section 79C(1)(d) of the Act requires Council to consider “any submissions made in accordance with this Act”.

5.1 Community Consultation

The proposed development was placed on public exhibition and was notified to adjoining and nearby landowners between 13 August 2008 and 3 September 2008 in accordance with Council’s Notification and Exhibition Development Control Plan. There were no submissions received in response to the notification.

6. THE PUBLIC INTEREST

Section 79C(1)(e) of the Act requires Council to consider “the public interest”.

The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to and respecting the future desired outcomes expressed in environmental planning instruments and development control plans.

7. CONCLUSION

The proposal is for enclosure of the rear balcony of an existing multi-unit dwelling and inclusion of the balcony space in the floor area of the unit. The existing floor space for the mixed-use building is in non-compliance with the floor space ratio standard, pursuant to Clause 15 of Hornsby Shire LEP. The proposal results in a minor increase in the existing floor space ratio. The submitted SEPP 1 objection to the floor space ratio standard is considered well founded and is supported.

The proposed balcony enclosure does not detract from the design integrity of the existing building. The proposal improves the amenity of the unit with regard to the adjoining restaurant and does not significantly diminish the unit’s available private open space.

The application is recommended for approval.

Rod Pickles

Manager - Assessment Team 2

Planning Division

Scott Phillips

Executive Manager

Planning Division

Attachments:

1.View	Locality Plan
2.View	Site Plan
3.View	Floor Plan/Elevation

File Reference: DA/1033/2008

Document Number: D01022983

SCHEDULE 1

Approved Plans and Supporting Documentation

*Plan No.*	*Drawn by*	*Dated*
Site Plan	Plan Concepts Pty Ltd	Undated
2972.01 Floor Plan/Elevation	Plan Concepts Pty Ltd	April 2008

Building Code of Australia

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

Signs for Construction Sites

3. On-site signage is required to clearly identify the PCA and the principal contractor (the coordinator of the building work) pursuant to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, s157(1)(c1), Cl 98A, 136C & 227A.

Hours of Construction

4. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.

Home Building Act 1989

5. The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence.

Long Service Levy

6. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.35% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a construction certificate being issued.

- END OF CONDITIONS -

Planning Report No. PLN214/08

Date of Meeting: 19/11/2008

8 DEVELOPMENT APPLICATION - CONSTRUCTION OF A TWO STOREY DWELLING-HOUSE
18 THORNLEIGH STREET, THORNLEIGH

Development Application No:	993/2008 – Section 82A Review
Description of Proposal:	Demolition of a dwelling-house, erection of a two storey dwelling-house
Property Description:	Lot 13, Sec 5, DP 1854, No. 18 Thornleigh Street, Thornleigh
Applicant:	Mr K L Willis
Owner:	Mrs L M Zaiter, Miss N M Zaiter and Mr C A Zaiter
Statutory Provisions:	Hornsby Shire LEP 1994 (Residential A-Low Density)
Estimated Value:	$180,000
Ward:	C

RECOMMENDATION

That Council adheres to its decision to refuse Development Application No. 993/2008 for the demolition of a dwelling-house and the erection of a two storey dwelling-house, for the reasons detailed in Schedule 1.

EXECUTIVE SUMMARY

1. On 2 October 2008, Council refused, under delegated authority, Development Application No. 993/2008 for the demolition of a dwelling-house and the erection of a two storey dwelling-house.

2. Pursuant to Section 82A of the Environmental Planning and Assessment Act, 1979 (the Act), a request has been made of the Council to review its determination.

3. The proposal does not comply with Hornsby Shire Local Environmental Plan, 1994 (HSLEP) and Council’s Dwelling House Development Control Plan (DHDCP). The application is supported by an objection under State Environmental Planning Policy No. 1 – Development Standards (SEPP 1).

4 One submission has been received in respect of the application.

5. It is recommended that Council adheres to its decision to refuse the application.

HISTORY OF THE APPLICATION

Council, under delegated authority on 2 October 2008, refused Development Application 993/2008 application for the following reasons:

“1. The proposal is unsatisfactory as it does not comply with objective (c) of the zone and clause 15 (Floor Space Ratio) of the Hornsby Shire Local Environmental Plan, 1994. The proposal is an overdevelopment of the site and is inconsistent with the intensity and scale of development within the locality which does not exceed the 0.4:1 floor space ratio requirement.

2. The proposal does not comply with the prescriptive measures and objectives of the Scale element of the Dwelling House DCP. The proposal has a floor area of 209m² and a floor space ratio of 0.47:1 which does not comply with the prescriptive measures of the Scale element which requires a maximum of 0.4:1 and a maximum floor area of 178m². The development exceeds the allowable floor area by 31m² which is a significant non-compliance with the standard. The density and scale of the proposal would set an undesirable precedent for further inappropriate development within the surrounding residential area.

3. The proposal does not comply with the performance criteria and objectives of the Height element of the Dwelling House DCP. The 8.2m height of the dwelling-house is not sympathetic to the topography of the site and would unreasonably restrict sunlight, and compromise the privacy, to the eastern adjoining allotment, No 20 Thornleigh Street, Thornleigh.

4. The proposal does not comply with the prescriptive measures, performance criteria and objectives of the Solar Access element of the Dwelling House DCP. The shadows cast by the proposed two-storey dwelling-house would unreasonably restrict solar access to the northern-facing living room windows of the eastern adjoining allotment, between the hours of 9 am and 3 pm.

5. The proposal does not comply with the prescriptive measures, performance criteria and objectives of the Privacy element of the Dwelling House DCP. The rear outdoor alfresco area, with a floor level between 1.2m and 1.6m above natural ground level, would afford the direct overlooking to the private open space, and compromise the privacy and enjoyment for residents, of the eastern adjoining allotment.”

In response, the applicant submitted amended plans for further assessment to address Council’s concerns. The amendments include:

1. The ridge height being lowered by 610mm;

2. The first floor level being lowered by 200mm;

3. The ground floor to the lounge, dinning, family, kitchen, living room and alfresco area being lowered by 514mm; and

4. A privacy screen being added to the eastern side of the alfresco area.

This report details the assessment of the application for Council to review its determination pursuant to Section 82A of the Act.

THE SITE

The rectangular shaped site, located on the low, southern side of Thornleigh Street, Thornleigh, has an area of 445.9m², and experiences an average fall of 13% to the south eastern corner of the allotment.

The site accommodates a single-storey dwelling-house of fibro and metal roof construction. There is no significant vegetation on the site.

The immediate area is characterised by residential development of various vintage, style and condition. Thornleigh Street is one of a number of streets on the eastern side of Pennant Hills Road within the Thornleigh Precinct which have allotment sizes of approximately 450 square metres. The other streets include Station and Bellevue Streets. To the west of Thornleigh Street is the intersection of Pennant Hills Road, which contains commercial and other employment generating development.

THE PROPOSAL

The application proposes the demolition of the existing dwelling-house and the erection of a new dwelling-house comprising a double garage, front porch, WC, laundry, lounge room, dining room, kitchen, family room and rear-facing “Alfresco area” located on the ground floor level. Four (4) bedrooms, an ensuite, a walk-in-robe, bathroom and front balcony are located on the first floor level.

The dwelling-house would be of brick veneer and tiled roof construction of similar style to the recently constructed dwellings on each adjoining side boundary.

ASSESSMENT

The development application has been assessed having regard to the matters for consideration prescribed under Section 79C of the Environmental Planning and Assessment Act, 1979 (the Act). Subsequently, the following issues have been identified for further consideration.

1. STRATEGIC CONTEXT

1.1 Metropolitan Strategy – (Draft) North Subregional Strategy

The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:

· Employment capacity to increase by 9,000 jobs; and

· Housing stock to increase by 11,000 dwellings.

The proposal would have no impact on the Draft Strategy targets as it does not result in the net increase of the housing stock in the Hornsby LGA.

2. STATUTORY CONTROLS

2.1 Hornsby Shire Local Environmental Plan, 1994

The subject land is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan, 1994 (HSLEP). The objectives of the zone are:

(a) to provide for the housing needs of the population of the Hornsby area;

(b) to promote a variety of housing types and other land uses compatible with a low density residential environment;

(c) to provide for development that is within the environmental capacity of a low density residential environment.

The use is defined as a “dwelling-house” and is permissible within the zone pursuant to Clause 7 of the HSLEP.

Clause 15 of HSLEP prescribes that the maximum floor space ratio (FSR) of development within the low density zone is 0.4:1. The applicant seeks to erect a dwelling-house with an FSR of 0.47:1 and consequently, the proposal does not comply with the development standard contained within Clause 15.

This variation to the development standard is both incompatible with the surrounding low density residential environment and fails to meet Council’s policy of encouraging a variety of housing types within the Shire.

In this regard, the proposal does not satisfy the zone objectives and consequently, the objectives of the development standard. To address this matter, the applicant has submitted an objection to the FSR development standard under SEPP1.

2.2 State Environmental Planning Policy No. 1 – Development Standards

The application has been assessed against the requirements of SEPP 1. This Policy provides flexibility in the application of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary, or tend to hinder the attainment of the objectives of the Act.

1. The objectives of the standard are achieved notwithstanding non-compliance with the standard;

2. The underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unnecessary;

3. The underlying object of purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable;

4. The development standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

5. The zoning of the particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning is also unreasonable and unnecessary as it applies to the land and compliance with the standard would be unreasonable or unnecessary. That is, the particular parcel of land should not have been included in the particular zone.

It is considered that points 1 to 4 listed above are relevant matters to consider in respect of this application.

The applicant’s SEPP 1 submission in support of the proposal is summarised (in italics) below:

“(1) The subject site is part of a very old subdivision, is virtually level, 100% arable, in a long established residential area close to shops and public transport – making it a desirable home site. Many such sites in the vicinity have been redeveloped of recent years with new homes – a number of which appear to considerably exceed the 0.4:1 FSR.”

The objection has not quantified, by providing examples of where Council has abandoned the 0.4:1 FSR requirement within the immediate area. Council has consistently applied a maximum FSR of 0.4:1 for dwelling-houses within the low density residential zones within the Shire since the inception of the Hornsby Shire Local Environmental Plan in 1994.

It is Council’s practice to support a SEPP No. 1 objection to vary the floor space ratio only where the proposal satisfies the following criteria:

(a) an in-fill type development, sited on an allotment between two dwelling-houses that exceed the floor space ratio requirement or;

(b) transitional type development adjoining a dwelling-house that exceeds the floor space ratio to a greater extent than the proposal whilst the dwelling on the opposite adjoining allotment complies with the floor space ratio.

Given that both the dwelling-houses either side of the subject development have an FSR of 0.37:1, the proposal is not consistent with (a) or (b), being neither “in-fill type development” nor “transitional type development”.

Applications for dwellings approved by Council in close proximity to the site and following the inception of the 0.4:1 FSR requirement in 1994 under Council’s LEP are as follows:

Address:	FSR	Site Area	Gross Floor Area (m²⁾
16A Thornleigh Street	0.37:1	445.9	165
16B Thornleigh Street	0.36:1	445.9	160
20 Thornleigh Street	0.37:1	445.9	165
23 Thornleigh Street	0.33:1	445.9	149
29 Thornleigh Street	0.40:1	445.9	179
19 Thornleigh Street	0.40:1	445.9	175.49
19 Station Street	0.40:1	445.9	180
22 Station Street	0.40:1	442.6	176

There are also dwelling houses within the immediate area that were approved prior to the introduction of the HSLEP which could exceed Council’s 0.4:1 FSR requirement. These properties are listed below and where available the FSR calculation is provided:

Address:	FSR	Site Area (m²)	Gross Floor Area (m²)
38 Bellevue Street	0.51:1	475	-
28 Thornleigh Street	-	445.9	-
35 Thornleigh Street	-	724.6	-
40 Thornleigh Street	-	557.48	-

(2) “The home proposed complies with all the relevant setbacks, site coverage, landscaped areas and provides Private Open Space areas, etc in compliance with Council’s Dwelling House DCP.”

An assessment of the amended plans reveals that the proposed development complies with Council’s DHDCP in terms of design, height, solar access and privacy.

(3) “Forcing the building to comply with the 0.4:1 maximum FSR would result in having to reduce the family living area on the ground floor by 20sq m – forcing the rear wall on that level to be moved in by 2.1m. The upper bedroom floor must be retained as is – providing only the required number of bedrooms for the family. Save for this “squeezing in” of the ground floor living space, the building would remain the same with the same site coverage and the Alfresco area increasing in size by 20 sq m.”

The argument that reducing living space and thus the floor space ratio to achieve numerical compliance is not well founded. The proposed dwelling would have four bedrooms and it is considered that the living to bedroom ratio is already marginal. Any further reduction in living space without a comparable reduction in bedrooms would result in poor internal amenity and consequently poor design. Such a development would not likely be supported. Notwithstanding the above, the FSR requirement should not be viewed in respect to an individual allotment but rather in relation to the overall housing needs throughout the Shire. Thornleigh Street is one of a number of streets within the Thornleigh Precinct which has allotment sizes of approximately 450m². Station and Bellevue Streets are two neighbouring streets that also have allotments of approximately 450m². The use of a floor space ratio standard to control the scale of development throughout the Shire ensures that these smaller allotments provide for a variety of housing types and sizes to address the needs of the community and therefore, satisfy Council’s Housing Strategy.

(4) “The 0.4:1 FSR standard appears to have been predicated on Council’s minimum 500sq m lot size. As the subdivision of which the subject lot forms part had been in existence for many years preceding Council’s adoption of this standard, it is submitted that it should not be enforced in the circumstances of this case.”

The FSR upper limit of 0.4:1 was not predicated on a minimum lot size of 500m² and there is no concession to allow “undersized allotments” to have an FSR greater than 0.4:1. The intentions of Clause 15 of the HSLEP are to establish an upper limit floor space ratio to ensure that development is within the environmental capacity of the land and to facilitate a variety of housing types within the Shire. It was anticipated that the smaller lots within the Shire would accommodate smaller houses.

(5) “The lot provides an excellent home site and as the home proposed complies with Council’s relevant DCP except for the FSR standard, it is recommended that in the circumstances of this case the proposed 0.44:1 FSR should be approved.”

The intentions of Clause 15 of HSLEP are to preclude development having an FSR above 0.4:1 and to facilitate a variety of housing types within the Shire which contributes towards housing to accommodate young families in accordance with objective (a) and (b) of the Residential A (Low Density) zone.

Consequently, the proposal seeks approval for a development that, under Clause 15 of HSLEP, does not comply with either the intent or the objective of Clause 15. It is considered that the proposal would result in a negative social impact by reducing housing choice in the Shire and would set an undesirable precedent for the area.

Having regard to the above, it is considered that the applicant has not demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

2.3 Dwelling House Development Control Plan

Pursuant to Section 79C(1)(a)(iii) of the Environmental Planning and Assessment Act, 1979 the proposed development has been assessed having regard to the relevant performance and prescriptive design requirements of Council’s Dwelling House DCP. The following table sets out the proposal’s compliance with the prescriptive measures of the Plan:

Dwelling House Development Control Plan
Control	Proposal	Requirement	Compliance
Scale
· Site Area	445.9m²	N/A	N/A
· Gross Floor Area	209m²	178m²	No
· Floor Space Ratio	0.47:1	0.4:1	No
· Site Cover	41%	40%	No
Setbacks
· Front	6m	6m	Yes
· Side (western)	1m	1m	Yes
· Side (eastern)	0.9m	1m	No
· Rear	10.6m	3m	Yes

Dwelling House Development Control Plan
Control	Proposal		Requirement	Compliance
Design
· Unbroken wall length	14.4m		10m	No
· Total wall length	19.9m		24m	Yes
· Cut and Fill	0m		1m	Yes
· Designed to contours	1.1m		1m	No
· External finishes	N/A		Consistent with area	Yes
Height
· Number of storeys	2		2	Yes
· Height	7.55m		<9m	Yes
Privacy
· Living areas	N/A		Located at ground level	Yes
Solar Access
· Private open space	N/A		4 hrs	No
· North facing windows	N/A		3 hrs	No
Private Open Space
· Area	181m²	120m²		Yes
· Location	N/A	Extension of living areas		Yes
Landscaping
· Area	48%	45%		Yes
Carparking
· No. of spaces	2 spaces	2 spaces		Yes
· Vehicular access grades		Complies with Council’s driveway grade template		Yes

As detailed in the above table, the proposed development does not comply with a number of prescriptive measures within Council’s Dwelling House DCP. The matters of non-compliance are detailed below, as well as a brief discussion on compliance with the relevant performance criteria.

2.3.1 Scale

The Scale element of the DCP requires that:

“The maximum floor space ratio for dwelling-houses is 0.4:1. The floor space includes the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls, including voids, but does not include carports, decks, terraces and the like.

The floor space also includes the area of any garage in excess of the car parking requirements (refer to car parking element).”

The applicant’s FSR calculation indicates that the gross floor area is 202.08 m²which equates to an FSR of 0.45:1. In calculating the gross floor area, the applicant has not included the stair void area within the first floor of the dwelling-house. The inclusion of this void area results in a correct FSR of 0.47:1.

As indicated in the discussion under the report heading State Environmental Planning Policy No. 1 – Development Standards, the application does not comply with HSLEP with respect to the FSR. It is considered that the proposal does not provide a development that is both compatible with the surrounding low density residential environment or contributes towards a variety of housing within the Shire. In this regard, the proposal does not satisfy the zone objectives and consequently, the objectives of the development standard.

The proposal also exceeds the maximum 40% site coverage requirement by 1% which, equates to 4.48m². This is a minor variation to the DCP and would be acceptable should the development satisfy the FSR development standard.

2.3.2 Design

The amended proposal complies with the prescriptive measures of the Design element which seeks development that relates to the slope of the land. In this instance, the land falls from RL 161.04 AHD at the front of the allotment to RL158.52 AHD at the rear, some 2.52m over a distance of 19 metres, representing a 13% fall.

The amended design shows that the ground floor level at its highest point is 1.1m above the natural ground level when measure directly below this point and is considered acceptable.

The RL 167.59 AHD ridge height of the proposed dwelling-house would be 1.79 metres above the ridge height of the single storey dwelling-house to the west, No. 16 Thornleigh Street and 2.39 metres higher than the ridge height of the two storey dwelling-house to the east, No. 20 Thornleigh Street. The design provides an acceptable transition between the proposed and neighbouring dwelling-houses.

2.3.3 Setbacks

The proposed garage wall setback of 0.9m from the eastern boundary is a small variation to the 1m prescriptive measure and is considered acceptable.

The remaining portion of the dwelling-house complies with the prescriptive 1m setback requirement of the DHDCP.

2.3.4 Height

The height is not inconsistent with the height of other development within the street and would not result in significant adverse privacy or overshadowing impacts.

2.3.5 Solar Access

The living room windows located in the western wall of the dwelling-house to the east, No. 20 Thornleigh Street, do not currently receive the required sunlight as prescribed under the DCP, due to the location and level of this dwelling-house and the height of the boundary fence. Notwithstanding, the DCP requires “that where adjacent properties do not currently receive solar access in compliance with the DCP, proposed buildings should not further compromise solar access.”

It is considered that the amended plans that lower the first floor by 0.2 metres, result in a development that provides sufficient sunlight to the property to the east. The shadows cast from the development would generally fall within the shadows cast from the boundary fence.

2.3.6 Privacy

The lowering of the ground floor level by 0.51 metres from the original proposal and the provision of a privacy screen to the eastern side of the alfresco area would ensure that reasonable privacy is maintained to the property to the east.

3. ENVIRONMENTAL IMPACTS

Section 79C (1) (b) of the Act requires Council to consider “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”.

The likely impacts of the development have been addressed in the previous section of the report. No additional environmental impacts of the development are anticipated.

4. SITE SUITABILITY

Section 79C (1) (c) of the Act requires Council to consider “the suitability of the site for the development”.

The site is not suitable for the proposed development for the reasons detailed in the previous section of this report.

5. PUBLIC PARTICIPATION

Section 79C (1) (d) of the Act requires Council to consider “any submissions made in accordance with this Act”.

The original proposal was placed on public exhibition and was notified to adjoining and nearby landowners between 24 July, 2008 and 10 August, 2008 in accordance with Council’s Notification and Exhibition Development Control Plan. During this period, one submission was received raising concerns about the density, scale, height and solar access. These matters have been discussed in the body of the report. The map below illustrates the location of the landowner who made a submission in proximity to the subject site.

The amended plans lodged on 21 October 2008 were not placed on public exhibition as the plans demonstrate a reduced impact on neighbouring properties.

The merits of the matters raised in the submission that relate to excessive residential density and excessive overshadowing have been addressed in the body of the report.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

6. THE PUBLIC INTEREST

Section 79C (1) (e) of the Act requires Council to consider “the public interest”.

The proposed increase in the FSR would set an undesirable precedent for other inappropriate developments on undersize lots in the street and the locality and ultimately, the development standard would be undermined by the Council's own actions in granting consents that depart from the standard.

The application does not satisfactorily meet Council’s development standards and therefore would not provide a development outcome that, on balance, would result in a positive impact for the community. Accordingly, it is considered that approval of the proposal would not be in the public interest.

7. CONCLUSION

The application proposes the demolition of a dwelling-house and the erection of a two storey dwelling-house.

The proposal does not comply with the development standards under Clause 15 (Floor Space Ratio) of the HSLEP. The applicant has submitted an objection under the provisions of SEPP 1 to vary the FSR requirements. It is considered that the SEPP 1 submission does not demonstrate that the approval of the development is warranted in the circumstances of the case. The s.82A application for DA/993/2008 fails to justify the non-compliance of the proposal with the relevant provisions within Clause 15 (Floor Space Ratio) of the HSLEP. The application has failed to demonstrate that the proposal would not set an undesirable precedent for the area.

Other minor non-compliances with prescriptive measures are otherwise acceptable.

Having regard to the assessment of the proposed development, it is recommended that Council adheres to its original decision and refuse the application.

Simon Evans

Manager - Assessment Team 1

Planning Division

Scott Phillips

Executive Manager

Planning Division

Attachments:

1.View	Locality Map
2.View	Site Plan
3.View	Floor Plan
4.View	Elevations
5.View	Shadow Diagram

File Reference: DA/993/2008

Document Number: D01024451

SCHEDULE 1

1. Pursuant to the provisions of Section 79C(1)(a)(i) and (c) of the Environmental Planning and Assessment Act, 1979 the proposal does not comply with the objectives (a), (b) and (c) of the Residential A (Low Density) zone under Hornsby Shire Local Environmental Plan 2004 insofar as promoting a variety of housing types compatible with a low density residential environment.

2. Pursuant to the provisions of Section 79C(1)(a)(i) of the Environmental Planning and Assessment Act, 1979, the proposed development does not comply with Clause 15 (Floor Space Ratio) within the Hornsby Shire Local Environmental Plan, 1994.

3. Pursuant to the provisions of Section 79c(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the State Environmental Planning Policy No. 1 objection does not demonstrate that compliance with the development standard under Clause 15 of Hornsby Shire Local Environmental Plan 1994 would be unreasonable or unnecessary in the circumstances of the case.

4. Pursuant to Section 79C(1)(e) of the Environmental Planning and Assessment Act, 1979, the proposal would set an undesirable precedent for similar inappropriate development and is therefore not in the public interest.

- END OF REASONS FOR REFUSAL -

Planning Report No. PLN225/08

Date of Meeting: 19/11/2008

9 DEVELOPMENT APPLICATION - SENIORS LIVING DEVELOPMENT COMPRISING 17 SELF CARE DWELLINGS
15 EYLES AVENUE, EPPING

Development Application No:	942/2008
Description of Proposal:	Demolition of two existing dwellings and construction of a Seniors Living development comprising 17 self care dwellings with associated basement carparking and landscaping
Property Description:	Lot 12 DP 28247 No. 15 Eyles Avenue Epping and Lot 3 DP 201713 No. 15 Anthony Street, Carlingford
Applicant:	Radray Construction Pty Ltd
Owner:	Radray Construction Pty Ltd
Statutory Provisions:	Residential A (Low Density)
Estimated Value:	$4,135,235
Ward:	C

RECOMMENDATION

THAT Development Application No. 942/2008 for demolition of two existing dwellings and construction of a Seniors Living development comprising 17 self care dwellings with associated basement carparking and landscaping at 15 Eyles Avenue Epping (Lot 12 DP 28247) and 15 Anthony Avenue Carlingford (Lot 3 DP 201713) be refused for the reasons detailed in Schedule 1 of this report.

EXECUTIVE SUMMARY

1. The application proposes the demolition of two existing dwellings and the construction of a Seniors Living development comprising 17 self care dwellings with basement carparking and the relocation of an existing watercourse.

2. The proposal is Integrated Development and requires the concurrence of the Department of Water and Energy.

3. The site was the subject of an appeal in the Land and Environment Court against Council’s refusal of Development Application No. 443/2004 for the demolition of the two existing dwellings and the construction of a Seniors Living development comprising 22 strata title apartments. That appeal was dismissed by the Court.

4. The site is subject to a high flood hazard and is unsuitable for the proposed development.

5. Ten submissions have been received in respect of the application.

6. It is recommended that the application be refused.

HISTORY OF THE SITE

The site has been the subject of a number of development applications refused by Council, principally on grounds that the site is unsuitable for significant development due to flooding impacts of the watercourse that bisects the site.

13 Dec 1994 Development Application No. 718/94 was withdrawn for erection of 9 dwellings to create a multi-unit housing development and strata title subdivision.

29 Mar 1995 Council refused Development Application No. 8/95 for the erection of 8 dwellings to create a multi-unit housing development and strata title subdivision.

7 Jan 1997 Council refused Development Application No. 342/95 for the subdivision of three allotments into 6 lots.

16 May 2001 Council refused Development Application No. 1240/00 for the erection of 16 units as housing for older people or people with a disability.

6 Oct 2004 Council refused Development Application No. 443/2004 for the demolition of two existing dwellings and the construction of a Seniors Living development comprising 22 strata title apartments.

31 Jan 2007 In the Land & Environment Court Senior Commissioner Roseth dismissed an appeal (Proceedings No. 11650 of 2004) concerning an amended Seniors Living proposal for the site for 18 dwellings (DA/443/2004).

THE SITE

The site has an area of 3,787sqm and comprises two existing parcels of land. No. 15 Eyles Avenue forms a battleaxe lot on the western side of Eyles Avenue and adjoins No. 15 Anthony Street which forms an irregular shaped lot on the northern side of Anthony Street. A watercourse tributary of Devlins Creek flows south to north through the central part of the site and into a culvert on the northern boundary. The watercourse flows into a piped system for 700metres until it reaches below Lyndal Place from where it flows naturally to Devlins Creek.

The site has an average fall of 5% to the watercourse. The site includes numerous large trees and remnant bushland identified on Council’s mapping as Blue Gum High Forest.

There are two existing dwellings on the site. The dwelling at No. 15 Anthony Street is a two storey timber dwelling with tiled roof. The dwelling at No. 15 Eyles Avenue is a single storey timber/fibro dwelling with fibro roof and is fire damaged and derelict. A reciprocal right of way over the handle with adjoining Nos. 17-19 Eyles Avenue provides access to the site via a meandering, partly elevated, concrete driveway.

The northern adjoining battleaxe lots at Nos. 17-19 Eyles Avenue include a townhouse development comprising 7 multi-unit dwellings. Dwelling-houses adjoin the eastern boundary of the site at Nos. 5, 7, 9 & 11 Eyles Avenue and the western boundary of the site at Nos. 2, 4, 6 & 8 Paterson Street. Dwelling houses at Nos. 11 and 17 Anthony Street adjoin the southern part of the site.

The southern boundary the site adjoins a Council drainage reserve 12metres wide (lot 1 DP 571045) which includes the open watercourse. The watercourse is then within an easement and piped system below No. 17 Anthony Street and the Anthony Street road reserve. The catchment of the watercourse is localised and has been highly modified by urban development. The watercourse forms part of Council’s stormwater drainage system.

The site is subject to flooding. During a maximum flood, floodwaters flow over the road at the Anthony Street frontage and the road becomes impassable. The watercourse is permanent and carries a substantial volume of water during heavy rainfall. A flow rate of 47 cubic metres of water per second, is estimated at the Anthony Street culvert during a maximum flood event.

THE PROPOSAL

The proposal involves the demolition of existing structures and construction of a Seniors Living development comprising 17 self care dwellings with associated basement carparking and landscaping. The development comprises 3 buildings. The South Building is 2 storeys and contains 13 dwellings. The North Building is single storey and contains 4 dwellings. The ‘Communal Building’ is single storey and contains a manager’s office and a large meeting room with kitchen.

The proposed buildings are elevated on piers above the floodway and basement car parks and are inter-connected by elevated timber walkways. A flood free pedestrian access is proposed to Eyles Avenue. Flood gates are proposed to prevent the entry of floodwaters into the basement carpark.

The proposed dwellings include 1 x 3br, 15 x 2br and 1 x 1br dwellings. The dwellings range in size from 64sqm to 92sqm in floor area.

The proposal includes relocation of the northern section of the watercourse 10m toward the residential development at Nos. 17-19 Eyles Avenue, and excavation for the basement carparks for ‘Building 1’ and ‘Building 2’ adjacent to the watercourse.

The proposed basement car parking areas and the watercourse relocation involve extensive landform modification.

ASSESSMENT

1. STRATEGIC CONTEXT

1.1 Metropolitan Strategy – (Draft) North Subregional Strategy

The draft Subregional Strategy sets the following targets for the Hornsby LGA by 2031:

· Employment capacity to increase by 9,000 jobs; and

· Housing stock to increase by 11,000 dwellings.

The proposed development would be consistent with the draft Strategy by providing an additional 17 dwellings.

2. STATUTORY CONTROLS

2.1 Hornsby Local Environmental Plan 1994

The subject land is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 (HSLEP). The objectives of the zone are:

(a) to provide for the housing needs of the population of the Hornsby area.

(b) to promote a variety of housing types and other land uses compatible with a low density residential environment.

(c) to provide for development that is within the environmental capacity of a low density residential environment.

The proposed development is defined as ‘housing for aged or differently abled persons’ under HSLEP and is permissible in the zone with Council’s consent.

The application is submitted pursuant to the provisions of SEPP (Housing for Seniors or People with a Disability) 2004. The SEPP prevails to the extent of any inconsistency with HSLEP.

2.2 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

The application has been assessed against the requirements of the Seniors Living SEPP. The relevant provisions applicable to the proposal are discussed as follows:

2.2.1 Self-contained dwellings

For the purpose of the SEPP, the proposed development is identified as “in-fill self-care housing” which is “seniors housing on land zoned primarily for urban purposes that consists of 2 or more self-contained dwellings where none of the following services are provided on site as part of the development: meals, cleaning services, personal care, nursing care”.

2.2.2 Location and access to facilities

The site is within 825m of Carlingford Court Shopping Centre which includes a wide range of shops, finance and health care services. The site is within 135m of a bus stop on Dunrossil Avenue and the Sydney Buses Route 546 which operates between Epping and Parramatta and includes Carlingford Court.

The proposed provision for access to facilities is to appoint a site manager and provide an accessible vehicle to transport residents of the development to Carlingford Court and other facilities within the local area.

The provision of a transport service is required by the SEPP for those developments that are not within the Sydney Statistical Division (ie NSW country). The subject site is within the Division and the SEPP requirement is for access to public transport. The proposed on-site transport arrangement does not comply with the SEPP in this regard.

However, subject to an accessible pathway being provided between the site and the bus stop on Dunrossil Avenue, the proposal would be acceptable.

2.2.3 Site analysis

The site analysis includes details of the site, the adjoining properties and information that describes the built form and character of the locality. The analysis however fails to discuss the flood prone nature of the site which is fundamental to the design of the proposed development. Consequently, the application does not satisfy this aspect of the SEPP.

2.2.4 Design of in-fill self-care housing

The provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development must be considered by Council in determining the development application. The guideline is addressed in Section 3 of this report under the relevant headings.

2.2.5 Design of Residential Development

The proposed development must demonstrate adequate regard to the SEPP design principles in respect of neighbourhood amenity and streetscape.

The site is within the Residential A (Low Density) Zone and is located within a suburban residential area developed since the 1960s. The local planning controls, including the Dwelling House DCP and Low Density Multi-Unit Housing DCP that apply to the site, control development within the zone and typify the character of the locality.

The proposed South Building is two storey and setback 8.0m to 8.4m from the Anthony Street frontage. The front balconies/decks are setback 4.5m to 6.0m. The proposed South Building basement carpark is set back 0.7m to 4.0m which is insufficient to support deep soil landscaping at the frontage. The proposed front setback is consistent with the predominant Anthony Street building alignment and would be acceptable in the streetscape subject to attention to landscaping.

The site is traversed by a watercourse and is subject to flooding. Approximately 34% of the site is clear of the 1 in 100 year floodway. The proposed development is inconsistent with the local planning controls which require development to be setback 10m from the crest of watercourse banks and not to be constructed within the overland flow path of flood waters. The proposal is for development setback 5m from the watercourse bank and within the 1 in 100 year flood area.

In accordance with the SEPP definitions under Clause 3, a riparian zone is defined as follows:-

Riparian zone means the area along or surrounding a natural water body such as a river where the vegetation and associated ecology are influenced by the passage and storage of water, and conversely, the aquatic environment benefits from the proximity of the vegetation (for example, from bio-filtering of sediment or pollutants, imputs of detritus and shading).

The proposed development is subject to the Water Management Act 2000 which requires a ‘Controlled Activity Permit’ to be obtained from the Department of Water and Energy. In this regard the proposal is ‘Integrated Development’ in accordance with the Environmental Planning and Assessment Act, 1979, and cannot be approved by Council unless ‘General Terms of Approval’ are issued by the integrated development authority.

Council’s assessment of the application has identified that the watercourse within the site has the potential to support riparian and aquatic habitat and does exhibit geomorphic creek line features that are ecologically significant.

The proposed development includes relocation of the watercourse and extensive landform modification adjacent to the watercourse. The Department of Water and Energy has raised concerns that the 5m setback from the watercourse detailed on the submitted plans is inconsistently shown on the drawings and that the building eaves, decks and basement car parking encroach on the 5m setback. Further, the riparian zone detailed on the submitted landscape plan should be a width of 5m from the top of the bank and not the centreline of the watercourse.

The application does not include engineering design details for the relocation of the watercourse which carries substantial volumes of water during heavy rainfalls. The location of the banks of the watercourse and the width of the riparian zone, therefore have not been ascertained with regard to the hydrology of the site. In this regard, the application has not demonstrated compliance with the Seniors Living SEPP.

2.2.6 Visual and acoustic privacy

The site is not impacted on by external noise sources. The proposed dwellings are elevated in relation the neighbouring properties and privacy screens are relied on to address visual privacy. The walkway along the eastern elevation of the Northern Building has a minimum 0.3 metre setback from the boundary and is elevated to the rear yards of adjoining dwelling houses fronting Eyles Avenue. Notwithstanding the proposed elevated timber privacy screens, the walkway would impose on the visual privacy of adjoining properties and would significantly detract from the existing amenity.

2.2.7 Solar access and design for climate

The proposed development is generally satisfactory in maintaining sunlight access to neighbours. The north facing clerestory windows of the proposed dwellings are designed to provide for sunlight access to living areas. However, the proposed ground floor units of the two storey South Building would not achieve required solar access in winter and should be re-designed in any scheme that is otherwise acceptable.

2.2.8 Stormwater

The proposal increases the non-porous surface area of the site and stormwater runoff. The applicant has not submitted details of the proposed stormwater drainage and detention system. Any stormwater detention system would need to be clear of the floodway. The proposal does not comply with the design principle under the SEPP.

2.2.9 Crime prevention

The proposed design raises issues in respect to crime prevention due to:

· the lack of surveillance of the access off Eyles Avenue;

· the expansive areas beneath the buildings which are to remain unobstructed for flood flow;

· the lack of casual surveillance within the development; and

· open nature of the watercourse.

It is considered the proposal is not of design to minimize crime in accordance with Crime Prevention Through Environmental Design principles.

2.2.10 Accessibility

The proposal does not include pedestrian access to public transport and relies on a proposed accessible vehicle operated by a site manager (details not provided). The proposal does not comply with the requirements of the Policy for access to public transport for development within the Sydney Statistical Division, in accordance with the SEPP.

2.2.11 Waste management

The proposed development should be provided with waste facilities that maximise recycling by the provision of appropriate facilities. Information to demonstrate compliance with this aspect of the SEPP has not been provided to Council officers satisfaction.

2.2.12 Minimum sizes and building height

The proposed development complies with standard site size, site frontage and building height standard, pursuant to the SEPP.

2.2.13 Accessibility and useability

Council must not consent to the development application unless the proposed development complies with the standards specified in the SEPP for wheelchair access. Whilst the proposal meets the technical specifications for wheelchair access, concern is raised regarding the practical implications for the proposal during a flood event.

2.2.14 Standards that cannot be used to refuse development consent for self-contained dwellings

The proposal complies with the standards of the SEPP in respect to building height, density and scale, landscaped area, deep soil zones, private open space and parking.

The proposal does not comply with the standard for 70% of dwellings to receive direct sunlight to living areas for not less than 3 hours in mid winter. Only 53% of dwellings meet this requirement.

2.3 Water Management Act 2000

The proposed development involves subdivision and relocation of a watercourse and requires Integrated Development approval from the Department of Water and Energy for the issue of a ‘Controlled Activity Permit’.

The Department raised concerns regarding the application (refer to discussion in Section 2.2 above) and has yet to issue its General Terms of Approval. Consequently, Council has no authority to approve the development application in its current form.

2.4 Threatened Species Conservation Act 1995

The site includes vegetation identified as Blue Gum High Forest which is identified as a Critically Endangered Ecological Community under Schedule 1A of the Threatened Species Conservation Act 1995.

The flora and fauna report submitted with the application is incorrect as it does not identify the vegetation as critically endangered (refer to discussion in Section 3.1).

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree Removal

The proposed development would necessitate the removal of 34 trees from the site. No trees to be removed are identified as ‘significant trees’ under Council’s Tree Management Plan. The application has been supported by an arborist report that assesses 32 existing trees as healthy trees and recommends measures for the trees to be retained and protected.

Council’s assessment of the application supports the recommendations of the arborist report.

3.1.2 Blue Gum High Forest

The site includes remnant Blue Gum High Forest which is identified as a Critically Endangered Ecological Community under the Threatened Species Conservation Act 1995 and the Environmental Protection and Biodiversity Conservation Act 1999. The proposed development involves the removal of 2000sqm of vegetation identified as Blue Gum High Forest.

The flora and fauna report submitted by the applicant’s ecologist assessed the forest remnant as an ‘Endangered Ecological Community’ not as critically endangered. Council’s assessment of the application does not support the opinions of the ecologist’s report.

3.1.3 Natural Watercourse

The watercourse across the site is identified as supporting riparian and aquatic habitat and is required to be maintained as a naturally functioning system in accordance with the requirements of the Department of Water and Energy.

The proposal involves substantial landform modification, relocation of a section of the watercourse and construction of a basement carpark 5m below ground level on each side of the watercourse. The Department’s requirement for a 5m setback from the watercourse banks for establishment of a riparian zone on each side of the watercourse, cannot be achieved by the proposed development. The watercourse is subject to substantial flows in times of heavy rain and the applicant has not addressed the hydrology of the watercourse in the design for the proposed works. Further, stormwater drainage and the impact of the proposal on drainage of neighbouring properties to the watercourse, has not been address by the applicant.

The proposed development is not sustainable in maintaining the watercourse as a natural system (refer also to discussion in Section 3.2 and Section 5.2).

3.2 Built Environment

3.2.1 Building Design For Seniors Living

The subject site has an area of 3,787m². The existing dwelling at No. 15 Eyles Avenue is sited in close proximity to the western boundary to minimise any impact from the watercourse and flooding. The site has a relatively limited area (approx 1,300sqm or 34%) outside the flood affected area.

The proposed development is designed with regard to the 5m setback from the watercourse, required by the Department of Water & Energy and to the required floor level above the 1 in 100 year flood level, in accordance with the Building Code of Australia.

During a flood event, floodwaters would flow below the proposed buildings and above the basement car parks. Council’s engineering assessment is that the area of inundation during a 1 in 100 year event would be similar to that of more frequent storm events but with an increased flow rate. The site has a relatively high flood hazard with a probable maximum flood flow of 47 cubic metres per second at the Anthony Street culvert outlet.

The proposed buildings are therefore elevated above natural ground level. The proposed design is for the units to access a central walkway which extends to form a bridge over the watercourse and interconnects the South Building, the North Building and the Communal Building. The proposed buildings are divided into modules defined by the 12 skillion roofs which provide north facing clerestory windows to the units below. In this regard the ground floor units of the South Building would be disadvantaged in respect to solar access.

The configuration of the proposed dwellings onto a central walkway results in a ‘motel unit style’ development with compromised amenity for senior living residents due to:

· Lack of expression for individual units with access off a central walkway, as the walkway design does not allow for a buffer or individual treatment to the unit entries.

· The design is integral to ensuring the dwellings are above flood height and have flood free pedestrian access. The design is primarily in response to the flood hazard and not to enhance a residential living environment for elderly or disabled people.

· The large living room windows of Units 2, 4, 13 & 15 interface directly with the walkway. The lack of separation from the walkway would impact on privacy and amenity of residents.

· The dwellings of the North Building access the walkway in direct interface to the rear of adjoining detached dwellings fronting Eyles Avenue.

· The ground floor walkway of the two storey South Building is overlaid by the first floor walkway above and is unroofed.

The proposed buildings are designed to address the required 5m setback from the watercourse. The setback results in the stepped arrangement of the buildings, restricts design opportunity to maximise solar access and results in the proposed clerestorey windows. The outlook from the majority of dwellings is restricted and confined by the building arrangement.

The design is dominated by the flood constraint which compromises opportunity to create an appropriate living environment for elderly people or people with a disability.

3.2.2 Landscaping & Riparian Zone

The proposed outlook for the majority of units is to the watercourse and the proposed landscaping and riparian area. Concerns are that the possible tree plantings would not meet the requirements for the development or compensate for the loss of existing trees. It would not be possible for the restoration of the watercourse to achieve flood and engineering requirements and provide an appropriate landscape, especially for trees.

The proposed 5m setback from the watercourse is to allow for the establishment of vegetation and restoration of the riparian corridor. This aspect of the proposal is uncertain with regard to the hydrology of the watercourse and engineering design. Concerns are also that there are no engineering plans submitted to demonstrate how the proposed relocation of the watercourse and the landform modification could be achieved in accordance with Council’s Civil Works Specification. Further, the engineering plans should address the existing and proposed levels, the impact of the 1 year, 5 year, 20 year, 100 year and Probable Maximum Flood (PMF) flood events on the post and pre development site and include velocity, depth mapping, erosion potential, flood storage volumes and impact of all proposed structures within the flood way.

The establishment of a riparian zone within the 5m setback from the watercourse is uncertain as the engineering details for relocation of the watercourse; ie, depth, width and top of bank location, are unknown. The proposed 5m setback is flawed as the applicant has not demonstrated that this requirement of the Department of Water and Energy for establishment of a riparian zone can be met.

3.2.3 Traffic & Road Safety

Traffic generated by Senior Living developments is generally low with a rate of 0.2 trips per day per dwelling. The proposal would not detract from the capacity of the local road network.

The proposed 21 car parking spaces exceed the required number of spaces (17) for the Seniors Living development, pursuant to Clause 50(h)(i) of the SEPP.

Concern is raised that the proposal is not of design to allow access for an ambulance, furniture delivery or bulk garbage collection.

3.3 Social Impacts

Whilst the development would contribute to seniors living in the Shire and thus would improve housing choice, the proposed development would place elderly people and people with a disability at risk, due to the high flood hazard that occurs across the site. During a flood, residents would not be able to access their vehicles. Emergency vehicles would not gain direct access to the site due to the volume and velocity of water across Anthony Street. Notwithstanding the design of the development for residents to be above flood height, the hazard results in a residential environment that is inappropriate for seniors living.

It is considered that development would be an unsatisfactory location to house people who are at a stage of their lives when they look for peace and tranquillity in living.

3.4 Economic Impacts

The proposal would have a minor economic impact in so far as increasing demand for goods and services available at Carlingford Court Shopping Centre.

4. SITE SUITABILITY

Section 79C(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

4.1 Flooding

The site is subject to flooding and has a high flood hazard. The area of inundation for a 1 in 100 year storm is similar for more frequent storm events due to the ponding effect of the site. Approximately 66% of the site is flood prone and unsuitable for residential development being below the 1 in 100 year flood level.

4.2 Soils

In accordance with Council’s Sensitive Urban Lands Study the site is identified as Level 3 Soil Dispersibility and Level 2 Soil Landscapes. The proposal involves relocation of the watercourse and excavation to a depth of 5m within 5m of the watercourse to construct the basement car parks for the proposal. The watercourse has a high flood hazard.

The application does not include details of how the work in the vicinity of the watercourse is to be undertaken and managed, a geotechnical analysis of the site with regard to the excavation work, or a soil and water management plan to address the hydrology of the site and impacts on the environment and downstream properties.

5. PUBLIC PARTICIPATION

Section 79C(1)(d) of the Act requires Council to consider “any submissions made in accordance with this Act”.

5.1 Community Consultation

The proposed development was placed on public exhibition and was notified to adjoining and nearby landowners between date and date in accordance with Council’s Notification and Exhibition Development Control Plan. During this period, Council received 10 submissions. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

Ten submissions objected to the development, generally on the following grounds that the development would result in:

· Adverse impacts from flooding;

· Unacceptable loss of trees and visual amenity;

· Development unsuitable for seniors;

· Unacceptable impacts on privacy;

· Unacceptable impacts on traffic and parking:

· No provision for stormwater drainage;

· Loss of bushland and destruction of natural watercourse;

· Development that is not ecologically sustainable;

· Adverse impact on residential character;

· Development within the 1 in 100 year flood level;

· Tree planting within 3m of buildings;

· Adverse visual impact;

· Change in soil conditions affecting foundations and walls of adjoining properties.

The merits of the matters raised in community submissions have been addressed in the body of the report.

5.2 Public Agencies

The development application is Integrated Development under the Act. Accordingly, the application was referred to the Department of Water and Energy for comment:

5.2.1 Department of Water and Energy

The Department requested additional information concerning the proposal and made the following comments:

A plan or diagram showing details of all proposed works within the bed of the watercourse is required. The plan/diagram should show a naturally functioning watercourse with pool and riffle sequences and riparian vegetation.

It is noted that the 5 metre setback from the top of the bank on the architectural plans is not accurate across the site. The Department is not supportive of any encroachment into the 5 metre riparian zone, measured from the top of the bank of the watercourse and on both sides of the watercourse on the site. Encroachments include basement carparking, decking and roof eves.

In addition, there appears to be a contradiction between the architectural plans that show a 5 m setback from the top of the bank of the watercourse and the Riparian Plan that shows the 5m riparian zone measured from the centreline of the watercourse. The Department requires that the riparian zone be measured from the top of the highest bank.

The 5m setback is the setback determined by the Department for the establishment of the riparian zone. The establishment of the required riparian zone is not achievable for the proposal, as the proposal involves the relocation of the watercourse to within 1.0m of the boundary with the adjoining townhouse development at Nos. 17-19 Eyles Avenue and would involve the establishment of the riparian zone on the adjoining land. Further, proposed Unit 10 and the vehicle access ramp of the Northern Building cannot be accommodated on the site and maintain a 5m setback from the watercourse banks.

The applicant has not demonstrated the proposed 5m setback is achievable with regard to the hydrology of the watercourse, engineering design to relocate the watercourse and the Department’s criteria for a naturally functioning watercourse.

6. THE PUBLIC INTEREST

Section 79C(1)(e) of the Act requires Council to consider “the public interest”.

The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to and respecting the future desired outcomes expressed in environmental planning instruments and development control plans.

The implications of the proposed development on adjoining and downstream properties, has not been determined in respect to a flood event during construction or following completion of the development. The proposal places liability on Council and emergency services agencies in this regard.

The proposed development does not maintain the natural watercourse or allow replacement planting for trees to be removed and is not ecologically sustainable. Further, the proposal is not sustainable with regard to the implications of storm events, on the flood hazard of the watercourse.

The proposal is therefore not in the public interest.

7. CONCLUSION

The site is severely constrained by the impacts of flooding and is unsuitable for Seniors Living development. The proposal would result in the loss of a remnant area of critically endangered Blue Gum High Forest and a natural landscape.

The proposal would result in a poor quality living environment for elderly people or people with a disability as the design is primarily in response to building within and above the floodway. The proposal is compromised by the flood constraint and does not address the design principles under the Seniors Living SEPP to provide a quality living environment.

The proposed relocation of the watercourse and landform modification are not supported by engineering details. The designation of a 5 metre setback for the establishment of a riparian zone is not qualified or substantiated. The application does not demonstrate the proposed 5 metre setback is possible or achievable for the proposed development and in this regard the application is fundamentally flawed.

The proposed development is not ecologically sustainable, involves a flood risk for neighbouring and downstream properties and is not in the public interest.

The application has not received General Terms of Approval from the Department of Water and Energy and is recommended for refusal.

Rod Pickles

Manager - Assessment Team 2

Planning Division

Scott Phillips

Executive Manager

Planning Division

Attachments:

1.View	Locality Plan
2.View	Site Plan
3.View	1:100 Year Flood Level
4.View	DA Plans
5.	Landscape Plan

File Reference: DA/942/2008

Document Number: D01035095

SCHEDULE 1

1. Pursuant to Section 79C(a)(i) of the Environmental Planning and Assessment Act, 1979 the proposal is unacceptable as it does not comply with the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 as follows:

1.1 The proposal relies on the provision of a private vehicle for access to services and facilities and does not comply with the access requirements of Clause 26 Location and access to facilities, for access to public transport.

1.2 The proposal involves building within a riparian zone and does not comply with Clause 33(g).

1.3 The proposal does not adequately address the requirement of Clause 36 Stormwater to control stormwater drainage impacts on neighbouring properties.

1.4 The proposal does not adequately address the requirements of Clause 37 Crime Prevention.

1.5 The proposal does not provide a pedestrian link to public transport and does not adequately address Clause 38 Accessibility.

1.6 The proposal does not adequately address waste management design to maximise recycling pursuant to Clause 39 Waste Management

1.7 The proposal does meet the minimum requirement for sunlight access to 70% of dwellings pursuant to Clause 50(e).

1.8 The proposal is unsatisfactory in meeting the Seniors Living Policy Urban Design Guidelines For Infill Development in respect to internal site amenity and impact on neighbours.

2. Pursuant to Section 79C(1)(b) of the Environmental Planning and Assessment Act, 1979 the proposal is unsatisfactory as it results in adverse impacts on the natural environment and social environment as follows:

2.1 The proposal results in the loss of remnant Blue Gum High Forest identified as a critically endangered ecological community pursuant to the Threatened Species Conservation Act 1995.

2.2 The proposal results in the loss of a natural landscape and a watercourse that supports aquatic habitat and riparian land.

2.3 The proposal results in development that is unsuitable for elderly people or people with a disability due to the high flood hazard occurring on the site.

3. Pursuant to Section 79C(1)(c) of the Environmental Planning and Assessment Act, 1979 the proposal is unsatisfactory in that the site is unsuitable for Seniors Living development as follows:

3.1 The site is subject to a high flood hazard and is unsuitable for development.

3.2 The site is subject to development constraints involving dispersible soils and a watercourse that have not been addressed in the development application that includes extensive landform modification.

4. Pursuant to Section 79C(e) of the Environmental Planning and Assessment Act, 1979 the proposal is unsatisfactory in that it is not in the public interest as follows:

4.1 The proposal places a liability on Council as the applicant has not adequately addressed the impact of the proposal on adjoining and downstream properties.

4.2 The proposed development is not ecologically sustainable.

- END OF REASONS FOR REFUSAL -

Standard Report No. PLN224/08

Planning Division

Date of Meeting: 19/11/2008

10 UPDATE REPORT IN RESPECT OF LEGAL ACTIONS CONCERNING HORNSBY QUARRY

EXECUTIVE SUMMARY

This report provides an update on two legal actions being progressed by Council concerning the acquisition of Hornsby Quarry.

Council commenced preliminary discovery proceedings in the Supreme Court of NSW seeking documents considered by the Valuer-General in determining the value of the Quarry. Council has received legal advice that Council is likely to have reasonable prospects of success in suing the Valuer-General and/or the contract valuer for negligence if they did not properly consider geotechnical advice which supports the stability of the land identified as capable of residential development. The purpose of obtaining the documents is to be satisfied of the causes for action against any party. The matter was heard in the Supreme Court on 25 and 26 August 2008. His Honour has reserved his decision.

Council has also commenced action in the Administrative Appeals Tribunal to seek to recover the GST component of the compensation paid to CSR for the compulsory acquisition of the Quarry. The issue before the Tribunal is essentially whether the compulsory acquisition of the Quarry was a taxable supply under the Goods and Services Tax Act. If it is established that CSR made a taxable supply of the land, Council would be entitled to input tax credits. The matter was heard in the Tribunal on 22 and 23 October 2008. The Deputy Presidents have reserved their decision.

It is recommended that Council receive and note the contents of this report.

PURPOSE

The purpose of this report is to provide Council with an update on legal actions being progressed by Council concerning the acquisition of Hornsby Quarry.

BACKGROUND

When Council zoned the Hornsby Quarry ‘Open Space A (Public Recreation – Local)’ in 1994 under the Hornsby Shire Local Environmental Plan (HSLEP), Council’s decision carried with it an obligation for Council to acquire the land upon the owner serving notice on Council in writing to do so. This obligation is in Clause 17(5) of the HSLEP which states that the owner of land zoned Open Space A may request, in writing, the Council to acquire the land. On receipt of the request, the Council must acquire the land.

Consequently, when Notice was served upon Council by CSR Limited (CSR) in 2001 to acquire the land, Council was obliged to acquire the property in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. Upon taking ownership of the land, Council requested the Valuer-General to determine the compensation payable to CSR for the compulsory acquisition of the site.

The Valuer-General contracted a consultant valuer, Mr Brian Nicholson, to prepare a valuation. The Valuer-General reviewed the valuation by Mr Nicholson and determined that Council would pay $25 million for the market value of the land and $99,500 for disturbances. The valuation was on the basis that the site was capable of accommodating 400 multi-unit dwellings.

Following acquisition of the Quarry, the site has been the subject of considerable study and analysis by consultants on behalf of Council concerning opportunities and constraints for development and land management. Council has also received numerous legal advices concerning the acquisition process and the payment of compensation to CSR. Council has received advice that Council has until February 2009 to commence legal proceedings concerning the acquisition of the Quarry. With this timeframe in mind, Council's solicitor is coordinating the progression of various legal actions in consultation with Council, Senior and Junior Counsel. This report relates to two current legal proceedings being pursued by Council as outlined below.

1. Preliminary Discovery Application proceedings in the Supreme Court of NSW

At its meeting on 30 May 2007, Council considered a confidential report (Executive Manager’s Report No. PLN140/05) presenting legal advices to inform actions by Council and a way forward to determine the future use and management of the Quarry and environs. Council resolved (in part) to commence preliminary discovery proceedings in the Supreme Court of NSW seeking access to documents relating to the valuation of the Quarry.

The matter was heard in the Supreme Court on 25 and 26 August 2008.

2. Appeal in the Administrative Appeals Tribunal concerning the payment of Goods and Services Tax (GST)

At its meeting on 4 October 2006, Council considered a confidential report (Executive Manager’s Report No. PLN279/06) concerning legal advice received in respect of Council’s entitlement to recover the GST component of the compensation paid to CSR for the compulsory acquisition of the Quarry. Council resolved to progress actions in accordance with the legal advice seeking entitlement to an input tax credit.

The matter was heard in the Administrative Appeals Tribunal (AAT) on 22 and 23 October 2008.

DISCUSSION

This report provides a progress report in respect of the legal actions.

Preliminary Discovery Application proceedings in the Supreme Court of NSW

By way of background, in 2004, Council engaged a consultant to prepare a Land Capability Study and Masterplan for the Quarry and its environs. The Land Capability Study examines opportunities and constraints within the site for development and land management. The draft Masterplan builds on the findings of the Study and promotes concentrated residential development and the provision of multi-purpose sports fields. The draft Masterplan identifies that due to environmental constraints, a maximum of 225 multi-unit dwellings could be accommodated on the Quarry site. This figure is significantly lower than the dwelling-yield on which the land valuation was based. There is potential for an additional 335 dwellings on the adjacent Council owned land within Old Mans Valley.

Following completion of the draft Masterplan, Council commissioned a Feasibility Review of the draft Plan. The Feasibility Review indicates that development providing 560 dwellings in accordance with the Masterplan would increase Council's $26 million deficit. Infrastructure costs and land values are the main factors impacting on feasibility. The Valuer-General estimated that the gross land value per unit would be in the vicinity of $100,000. However, given the current market and supply of units in the Hornsby/Waitara area, the present land value per unit is more likely to be $50-55,000.

Council engaged Mr Tim Robertson, Senior Counsel (SC), who provided advice (in part) as to whether there are avenues of appeal in view of the findings of the Land Capability Study and Feasibility Review. In September 2006, Mr Robertson advised that Council is likely to have reasonable prospects of success in suing the Valuer-General and/or contract valuer for negligence if they did not properly consider geotechnical advice which supports the stability of the land identified as capable of residential development. However, Mr Robertson qualified his advice, commenting that prior to commencement of any action seeking compensation, or to determine whether there was any negligence on the part of any party, access should be sought to the documents considered by the Valuer-General in determining the value of the Quarry.

Council’s solicitor sought to obtain the documents from the Valuer-General via applications made under the Freedom of Information Act. Although, some documents were obtained, the important documents for the purposes of investigation, being those reports submitted to Mr Nicholson by CSR were not provided. It was claimed by the Valuer-General that these documents are exempt for being of commercial value.

Council’s solicitor, in consultation with Mr Jason Lazarus, Junior Counsel, subsequently submitted a preliminary discovery application to the Supreme Court of NSW seeking documents from CSR and the Valuer-General. The matter was heard by His Honour, Justice Adams, on 25 and 26 August 2008. Mr Ian Jackman, SC appeared on behalf of Council, leading Mr Lazarus and instructed by Council’s solicitor. The General Manager and Manager, Town Planning Services also attended the proceedings.

The Proceedings

An applicant for preliminary discovery must satisfy the Court that there is potential for an action against the defendants which cannot be discovered without viewing the documents sought. In this regard, Council relied on the advice of Mr Robertson that it has a potential action against the Valuer-General and/or Mr Nicholson. However, without seeing the documents, a decision about whether Council has such an action cannot be made. Mr Jackman also informed the Court that there may be some potential action against CSR under the Trade Practices Legislation for false and misleading conduct in the course of trade or commerce.

Counsel for the Valuer-General indicated that his client did not oppose the release of the documents but felt constrained by a confidentiality agreement with CSR. The release of the documents was not opposed subject to a determination by His Honour with respect to the confidentiality of the documents.

Mr Potter, SC (on behalf of Mr Nicholson) and Mr Beasley, SC (on behalf of CSR) opposed the release of the documents. Mr Beasley submitted that there is little prospect of action against CSR and that the documents held by CSR have demonstrated commercial value based on the interest shown by developers arising from the expression of interest process recently conducted by Council. He submitted that the documents have a commercial value as they could be sold to interested parties. Mr Jackman responded that release of the documents could be subject to an undertaking that the documents would not be used for any purpose other than to make a decision concerning further legal action.

Mr Beasley also indicated that the responses by developers to the expression of interest process, including AV Jennings and Lend Lease, prove that there could not be a case for negligence when developers considered the land to have commercial value. Mr Jackman responded that no expression of interest has been properly costed or received development consent. More importantly, the land for which expressions of interest were sought included a substantial area (Old Mans Valley) outside the area acquired from CSR.

His Honour has reserved his decision and Council’s solicitor is unable to advise when a decision is likely to be handed down.

Proceedings in the Administrative Appeals Tribunal concerning the Decision by the Australian Taxation Office regarding GST

By way of background, the amount determined by the Valuer-General for the acquisition of the Quarry was $25,099,500 (inclusive of GST). The determination arose from the valuation by Mr Nicholson of Alcorn Corbin Nicholson Pty Ltd on behalf of the Valuer-General who assessed compensation in the sum of $22,700,000 exclusive of GST. The addition of the GST component increased the sum to $25,000,000. An additional $99,500 was included for disturbance.

The Compensation Notice required CSR to provide Council with a tax invoice for $2,300,000 which anticipated GST at the full rate of 10%. CSR accepted the offer of compensation but failed to provide a tax invoice and subsequently advised that it met its GST obligations by utilisation of the “Margin Scheme” under the Goods and Services Tax Act (GST Act).

The Margin Scheme permitted CSR to charge GST only on the increase in value of the land since July 2000 when GST was introduced. The use of the scheme prevents input tax credits from being claimed by Council and CSR had no obligation to issue a tax invoice. The amount of GST payable under the Margin Scheme was $168,182.

Council initiated proceedings in the Supreme Court of NSW seeking a declaration that CSR be required to issue a tax invoice for the full amount of GST calculated at the rate of 10%. Additionally, Council paid the sum of $22,700,000 to CSR and withheld the balance of the compensation payable in a trust account until such time as the Supreme Court proceedings were heard.

Justice Gzell of the Supreme Court of NSW handed down his judgement on 14 October 2004. His judgement required that Council pay the outstanding amount of compensation. His Honour recognised that the Commissioner for Taxation had ruled that no taxable supply was involved in the transaction to acquire the Quarry, and Council’s cross claim of unjust enrichment to CSR was refused. Consequently, the balance of compensation was paid to CSR. His Honour did not make a judgement on the issue of whether the acquisition constituted a “supply” of land.

In June 2007, Mr David McGovern, SC prepared on behalf of Council, Notices of Objection to the ATO concerning Council’s entitlement to recover the GST component of the compensation. The Notices sought a declaration that the acquisition of the Quarry constituted a “taxable supply”, which would enable Council to obtain input tax credits. However, on 16 October 2007, Council received a Notice of Decision on the objection providing an unfavorable result.

Council’s solicitor, in consultation with Mr McGovern, lodged an Application for Review of the decision by the ATO with the AAT. The matter was heard by Deputy President Block and Deputy President Walker on 22 and 23 October 2008. Mr McGovern appeared on behalf of Council, leading Mr Ian Young, Junior Counsel and instructed by Council’s solicitor. The General Manager and Manager, Town Planning Services also attended the proceedings.

The Proceedings

The issue before the AAT was essentially whether the compulsory acquisition of the Quarry was a “taxable supply” under the GST Act. If it could be established that CSR had supplied the land, Council would be entitled to input tax credits.

Mr McGovern submitted that, unlike other compulsory acquisition cases where the Statutory Authority takes the active role of acquiring the land, in this case CSR initiated the action forcing Council to acquire the land. It was stated that such action was a “taxable supply” for the purposes of the GST Act.

Under the GST Act, a taxable supply required that CSR take “any positive action” to transfer or surrender its legal interest in the land to Council. Mr McGovern submitted that the initiation of the acquisition process and the many actions by CSR, including legal proceedings to force Council to acquire the land, were positive actions.

Mr A Robertson (on behalf of the Commissioner of Taxation) argued that the acquisition was as a consequence of Council zoning the land Open Space A under the HSLEP 1994 which carried with it an obligation for Council to acquire the land in accordance with Clause 17(5). The process was triggered by CSR but set in train by the gazettal of the HSLEP. Mr McGovern responded that CSR had a number of different options including selling the land to another party, developing the land or requiring Council to acquire that land. CSR chose the latter option which initiated the “supply” of the land.

The Deputy Presidents reserved their decision.

CONSULTATION

The General Manager and Council’s solicitor were consulted in the preparation of this report.

FINANCIAL

Council has received funding under the Test Case Litigation Program in relation to the action against the Commissioner of Taxation in the AAT. Funding was granted as a consequence of the law needing clarification in relation to what constitutes a “supply”. Test Case Funding is intended to subsidise legal fees and does not mean that all legal fees will automatically be covered by the ATO. Rates for solicitors are in excess of the rates charged by Council’s solicitor. However, it is anticipated that the funding will only cover part of the fees charged by Council’s Counsel.

The Planning Division budget does not include an allocation of funds to undertake the legal actions outlined in this report. A further report will be presented to Council upon receiving decisions in the Supreme Court of NSW and the AAT addressing any further action. The report to Council will include details of monies required to be allocated from General Funds to cover the associated costs.

TRIPLE BOTTOM LINE SUMMARY

Triple Bottom Line is a framework for improving Council decisions by ensuring accountability and transparency on social, environmental and economic factors. It does this by reporting upon Council’s strategic themes. As this report provides Council with information and does not propose any actions which require a sustainability assessment, no Triple Bottom Line considerations apply.

CONCLUSION

Council is currently progressing two legal actions concerning the acquisition of Hornsby Quarry. Council commenced preliminary discovery proceedings in the Supreme Court of NSW seeking documents considered by the Valuer-General in determining the value of the Quarry. Council has also commenced actions in the Administrative Appeals Tribunal to seek to recover the GST component of the compensation paid to CSR for the compulsory acquisition of the Quarry. The matters have been heard by the Court and Tribunal respectively. In both instances decisions have been reserved.

RECOMMENDATION

THAT the contents of Executive Manager’s Report No. PLN/08 providing a progress report in respect of legal actions concerning Hornsby Quarry be received and noted.

James Farrington

Acting Executive Manager

Planning Division

Attachments:

There are no attachments for this report.

File Reference: F2007/01279-02

Document Number: D01035090

Standard Report No. PLN226/08

Planning Division

Date of Meeting: 19/11/2008

11 HERITAGE FESTIVAL 2009

EXECUTIVE SUMMARY

The National Trust organises an annual Heritage Festival to promote an awareness of heritage and conservation throughout Australia. The Trust coordinates a series of events throughout the Festival and encourages local councils and the community to do the same.

Council’s Town Planning Services Branch is coordinating events to take place as part of the Hornsby Shire Heritage Festival 2009 to be held from 4 April to 19 April 2009. Council’s Heritage Advisory Committee has been involved in the event planning. This Report provides further detail of the programme and budget for the Heritage Festival 2009.

PURPOSE/OBJECTIVE

The purpose of this report is to seek Council’s endorsement of a programme of events and budget for the Heritage Festival 2009, and request that the judging of Council’s annual Heritage Awards be delegated to Council’s Heritage Advisory Committee.

BACKGROUND

Every year, the National Trust organises a Heritage Festival to promote an awareness of heritage and conservation throughout Australia. The Trust coordinates a series of events throughout the Festival and encourages local councils and the community to do the same.

Council has held its own Heritage Festival each year since 1994. The Festival aims to promote heritage conservation and education within the Shire and has included guided cruises, plaque ceremonies, talks, bushwalks and other community events. Publicity is provided through the National Trust’s advertising and publications, as well as Council’s own promotion of events.

Following Council’s endorsement, the organisation of events will be finalised and dates for each event confirmed. Quotes for most events have been obtained and are discussed in this report.

DISCUSSION

The National Trust has advised that the upcoming Heritage Festival will be held from 4 April to 19 April 2009 and is two weeks in duration (details of the Festival are attached). The National Trust has adopted the theme “Our Place in Space – Under the Southern Cross” for the Festival. The theme endeavours to highlight astronomic accomplishments in recognition that 2009 is the International Year of Astronomy.

At its meeting on 3 November 2008, Council’s Heritage Advisory Committee agreed that the following events should be considered for the Heritage Festival 2009:

* Hawkesbury River Boat Trip: As per previous years, a guided Hawkesbury River Boat Trip would depart from Brooklyn. A local historian would guide a boat trip from Brooklyn, following the historic development of the Hawkesbury River settlements, including Brooklyn, Mooney Mooney Bridge, Dangar Island and Bar Island. The focus would be on the cultural landscape of the river environment. The duration of the trip would be approximately three (3) hours. Numbers would be limited to a maximum of fifty (50) people, and there would be a small booking fee ($10.00) for the event. A suitable boat would be chartered.

* Open Day at Fagan Park: The Friends of Fagan Park have organised an annual Open Day within Fagan Park. Farm machinery and blacksmith demonstrations, and a parade of old farm vehicles will be arranged throughout Netherby Homestead and the Rural Museum.

* Library Exhibition: Each year, the Hornsby Shire Historical Society, in conjunction with Council’s Local Studies Library, coordinates a display within Council libraries which reflects the theme of the NSW Heritage Festival. The exhibition would be shown from 4 April to 18 April 2009, during opening hours, at the Hornsby, Epping and Pennant Hills libraries.

* Aboriginal Heritage Walk: An Aboriginal guide, in conjunction with a local historian, would lead a guided walk providing a commentary of the philosophical, cultural and historical issues concerning both Aboriginal and European culture in Hornsby Shire. The duration of the walk would be approximately two and a half hours. Numbers would be limited to twenty (20) people and there would be no charge for the event. The location of the walk is under discussion.

* Heritage Walk and Talk – Observatory Park: This walk would be a joint undertaking between the Council’s Local Studies Library and Town Planning Services Branch. The tour would include a guided walk of Observatory Park in Beecroft, site of the former Red Hill Observatory. The history of the observatory and other astronomic ventures within the Shire would be discussed. The duration of the walk/talk would be approximately two hours. Numbers would be limited to twenty (20) people and there would be no charge for the event.

Details for all events would be finalised following Council’s endorsement of the proposed events.

Heritage Awards

Each year, Council has offered awards to recognise and publicly acknowledge work undertaken on items of heritage significance, or the education and promotion of heritage conservation. The Hornsby Shire Heritage Awards form part of the Heritage Festival celebrations. Nominations for the annual awards will be called in time for the presentation of the Awards at the Council Meeting on Wednesday, 15 April 2009.

The awards consist of three categories:

Category A: Work involving the preservation, restoration, reconstruction or maintenance of a heritage item;

Category B: Work involving either (a) the erection of a sensitively designed new building in a Heritage Conservation Area or in close proximity to a heritage item; or (b) a sensitively designed extension or alteration to an existing heritage item or building in a Heritage Conservation Area.

Owen Nannelli Memorial Award (Category C): This award is in honour of the contributions of the late Councillor Owen Nannelli to heritage conservation within the Shire and will be awarded to a group or individual who has made an outstanding contribution to the education and promotion of heritage within the Shire.

Winners of categories A and B are awarded a commemorative bronze plaque to attach to the dwelling/structure and a framed certificate. Participants who receive a ‘highly commended’ award for categories A and B and winners of the Owen Nannelli Memorial Award are presented with a framed certificate.

To enable the timely exhibition of entries during the Heritage Festival and the presentation of the awards at the Council Meeting on 15 April 2009, it is recommended that the final judging of Council’s annual Heritage Awards be delegated to Council’s Heritage Advisory Committee.

Advertising

The Heritage Festival events will be advertised in Council’s Calender of Events, Bushland Shire News, advertisements in local newspapers and by the distribution of a free postcard outlining the events. The postcard will be placed in libraries and Council offices, and distributed to historical societies.

Based on a recommendation from the Heritage Advisory Committee, a photograph of the Hornsby Radio Astronomy Station within Old Man’s Valley (copy attached) has been chosen for the postcard. Permission for use of the image is being sought from the owner of the photograph. The photograph represents astronomical pursuits in Hornsby Shire to reflect the theme for the Festival. This photograph has been chosen for the postcard for the following reasons:

* The photograph depicts a historical view of the Hornsby Radio Astronomy Station which is recommended to be the topic of the Heritage Walk during the Heritage Festival 2009, and so is likely to draw interest to the event;

* It is in keeping with the historical photographs used in previous years. The view is a striking image which would attract the attention and interest of the community; and

* The photograph displays part of the astronomical accomplishments of the Hornsby Shire in keeping with the NSW Heritage Festival theme of “Our Place in Space - Under the Southern Cross”.

The Hornsby Shire Heritage Advisory Committee endorsed the photograph at its meeting on 3 November 2008. It is recommended that Council endorse the use of the photograph for advertising the Heritage Festival 2009.

BUDGET

An amount of $5,000 is available for the Heritage Festival 2008 (including the Heritage Awards). The following cost estimates are provided:

Event	Requirements	Cost Estimate $
Hawkesbury River Boat Trip	Charter of suitable boat (less income for booking fee)	1,500 (- 500)
Open Day at Fagan Park	Nil (advertising included in general Heritage Festival advertising)	Nil
Aboriginal Heritage Walk	Guides	600
Heritage Walk – Observatory Park	Nil (advertising included in general Heritage Festival advertising)	Nil
Library Exhibition	Nil (advertising included in general Heritage Festival advertising)	Nil
Heritage Awards	Plaques and framed certificates	600
Advertising	Local papers, brochures, postcard etc	2,800
TOTAL		5,000

Although not all costs have been finalised, it is anticipated that the $5,000 budget will be adequate for all events and advertising.

CONSULTATION

At its meeting on 3 November 2008, Council’s Heritage Advisory Committee endorsed a series of events for consideration as part of the Heritage Festival 2009.

Other groups involved in the events have been consulted in the preparation of this report, including the National Trust, Hornsby Shire Historical Society, Friends of Fagan Park and the various guides and hosts.

TRIPLE BOTTOM LINE SUMMARY

This Triple Bottom Line (TBL) Statement forms part of Council’s efforts towards “creating a living environment”. The statement addresses the strategic themes within Council’s Management Plan that cover social, environmental and economic factors and the corresponding sustainability questions contained in the TBL checklist.

* Working with our community: The Heritage Festival events have been prepared in consultation with key stakeholders and community representatives to cover significant places and events throughout the Shire. All sections of the local community would have access to information on the events via advertising in the local papers, the Festival postcard and information on Council’s website.

* Conserving our natural environment: The Heritage Festival would promote significant historic places and environments at locations throughout Hornsby Shire. The Heritage Walk event would directly promote the conservation of native vegetation.

* Contributing to community development through sustainable facilities and services: The project does not relate directly to the provision of services and facilities. Accordingly, no adverse impact on opportunities for community development would be expected.

* Fulfilling our community’s vision in planning for the future of the Shire: The Heritage Festival would facilitate community understanding of the important heritage values within the Shire.

* Supporting our diverse economy: The Heritage Festival events do not relate directly to economic development. However, the events would utilise local services to cater for the events.

* Maintaining sound corporate and financial management: Council has allocated funds in its annual budget for the project. The Heritage Festival events do not have other corporate or financial implications for Council.

* Other Sustainability Considerations: The project would be managed to ensure any potential negative impacts of the events would be minimised.

CONCLUSION

Council’s Heritage Advisory Committee has recommended that Council organise a number of events for the Heritage Festival 2009. The events include a Hawkesbury River Boat Trip, Open Day at Fagan Park, Aboriginal Heritage Walk, Heritage Walk at Observatory Park, library exhibition and Heritage Awards.

Following endorsement by Council, the details of events would be finalised and promoted. A budget of $5,000 is available for the Heritage Festival 2009. An estimate of costs indicates that the budget would be adequate for all events and advertising.

It is recommended that Council endorse the Heritage Advisory Committee’s proposal for events to be included in the Heritage Festival 2009. To enable the timely exhibition of entries during the Heritage Festival and the presentation of the awards at the Council Meeting on 15 April 2009, it is also recommended that the final judging of Council’s annual Heritage Awards be delegated to Council’s Heritage Advisory Committee.

RECOMMENDATION

THAT

1. Council endorse the programme of events and budget for the Heritage Festival 2009 as outlined in Executive Manager’s Report No. PLN219/08

2. Council delegate the judging of the Heritage Awards 2009 to Council’s Heritage Advisory Committee to enable the timely exhibition of entries during the Heritage Festival and the presentation of awards at the Planning Meeting on 15 April 2009.

3. Council endorse the photograph of the Hornsby Radio Astronomy Station attached to Executive Manager’s Report No. PLN219/08 to be used on the postcard to advertise the Heritage Festival 2009.

James Farrington

Acting Executive Manager

Planning Division

Attachments:

1.View	Promotional Postcard
2.View	National Trust Invitation

File Reference: F2008/00551

Document Number: D01038510

Hornsby Shire Council	Agenda and Summary of Recommendations
Page 1

Development Application No:	542/2008
Description of Proposal:	Alterations and additions to existing community facility and use by the ‘Hornsby Woodworking Men's Shed’
Property Description:	Headen Park Lot 47, DP 35569, No. 3X, Sinclair Avenue, Thornleigh
Applicant:	Hornsby Shire Council
Owner:	Hornsby Shire Council
Statutory Provisions:	Open Space A (Public Recreation-Local)
Estimated Value:	$120,000
Ward:	B

*Document No.*	*Prepared by*	*Dated*
RV0241/DA/01/A	Shire of Hornsby, Parks and Landscape	August 2008