General Meeting


Wednesday 14 December 2016

at 6:30PM



Hornsby Shire Council                                                                                           Table of Contents

Page 1





Item 11    LM17/16 Further Report - Development Application - Subdivision of four allotments into four lots - Water Recreation Structure - Calabah Point, Berowra Creek........................................... 2  

Item 17    MM8/16 Undergrounding of power lines....................................................................... 1

Item 18    MM9/16 Mayoral Minute - South Dural Planning Proposal.............................................. 3 




Planning Division

Date of Meeting: 14/12/2016




PL77/16 - Further Report - Development Application - Subdivision Of Four Allotments Into Four Lots - Water Recreation Structure - Calabash Point, Berowra Creek



Additional information with  NO CHANGE  to Recommendation

A late submission has been received from Concordia Pacific Environmental, Government and Town Planning Law.  The submission (in part) raises concern that Council’s planning report has not appropriately considered the provisions of the Hornsby Local Environmental Plan 2013.

As discussed in Section 2.2 of the Report, the proposed subdivision is subject to the provisions of the Hornsby Shire Local Environmental Plan 1994 (HSLEP) being the planning instrument in place prior to the Hornsby Local Environmental Plan 2013 (HLEP) coming into force on 11 October 2013. The subject development application was lodged on 24 September 2013.

At the time of lodgement of the application, HLEP was a draft planning instrument. Pursuant to Section 79C(1)(a)(ii) the provisions of any draft environmental planning instrument are to be taken into consideration by a consent authority in determining a development application.

The implications of the HLEP were considered in the assessment of the application as noted in the report. However, for abundant clarity, the following discussion confirms the assessment of the application against the HLEP 2013.

2.13A   Hornsby Local Environmental Plan 2013 (HLEP)

The draft HLEP was referred to the Department of Planning and Infrastructure on 21 January 2013 pursuant to Section 68 Environmental Planning and Assessment Act 1979. The provisions of the HLEP that are relevant of the proposed subdivision are discussed as follows.

2.13A.1   Aims of Plan

The HLEP includes the following aims at Section 1.2 (2) (h), (i) and (j).

(h)        to protect and enhance the scenic and biodiversity values of environmentally sensitive lands, including bushland, river settlements, river catchments, wetlands and waterways, and  

(i)         to protect and enhance the heritage of the Shire, including place of historic, aesthetic, architectural, natural, cultural and Aboriginal significance, and

(j)         to minimise risk to the community in areas subject to environmental hazards, including flooding and bushfires.

The aims of the Plan are implemented by the application of the land uses zones and relevant provisions of the Plan in the regulation of development. The proposal is consistent with the aims of the HLEP as it would result in a more environmentally sensitive allotment design than currently exists which facilitates future development adjacent to the foreshore and away from the ridgeline.

2.13A.2   Savings provision relating to development applications

The subject application was lodged before the commencement of the HLEP 2013.  Accordingly, the application must be determined as if the plan had not commenced.  In this instance, the HSLEP 1994 is the relevant planning instrument and a SEPP 1 objection is required for the variation to the minimum allotment size development standard.  The HLEP 2013 is relevant as a draft plan as exhibited as addressed in this memorandum.

2.13A.3   Land Use Zones

The following land use zones apply to the site under the HLEP namely, RE1 Public Recreation, E3 Environmental Management and E4 Environmental Living. 

The objectives of the RE1 Public Recreation Zone are:

·              To enable land to be used for a public open space or recreational purposes.

·              To provide a range of recreational settings and activities and compatible land uses.

·              To protect and enhance the natural environment for recreational purposes.

·              To protect and maintain areas of bushland that have ecological value.

The RE1 zone applies to the area of the site zoned Open Space B (Public Recreation – District) Zone under HSLEP. The proposed subdivision does not involve any works within the RE1 zone.

The objectives of the E3 Environmental Management Zone are:

·              To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

·              To provide for a limited range of development that does not have an adverse effect on those values.

·              To protect the natural environment of steep lands and floodplains within the catchment of the Hawkesbury River.

The E3 Zone replaces the Environmental Protection E (River Settlement) Zone area and Rural AR (Large Holdings – Rural Landscapes) Zone area of the site within Lot 78 DP 752048 and Lot 163 DP 1113746. The proposed subdivision does not involve any works within the E3 Zone.

The objectives of the E4 Environmental Living Zone are:

·              To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

·              To ensure that residential development does not have an adverse effect on those values.

·              To permit development that is compatible with the character, infrastructure capacity and access limitations of the area.  

The E4 Zone replaces the remaining Environmental Protection E (River Settlement) Zone area of the site. The E4 zoning objectives essentially maintain the objectives of the Environmental Protection E (River Settlement) Zone which have been considered in the assessment of the proposal as discussed in Section 2.3 of the report.

The Calabash Bay area at the frontage of the site is zoned E2 Environmental Conservation and W1 Natural Waterways. The E2 zone replaces the Environmental Protection A (Wetlands) Zone which is discussed in Section 2.3 of the report.

The objectives of the E2 Environmental Conservation Zone are:

·              To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

·              To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

·              To maintain and improve water quality in the Hawkesbury River.

The objectives of the E2 Zone have been considered in the assessment of the application and are addressed by recommended condition No. 1.

The objectives of the W1 Natural Waterways Zone are:

·              To protect the ecological and scenic values of natural waterways.

·              To prevent development that would have an adverse effect on the natural values of waterways in this zone.

·              To provide for sustainable fishing industries and recreational fishing.

·              To provide for a limited range of development that facilitates access to the waterways. 

The W1 Zone generally includes the proposed jetties and pontoons which are permissible in the zone with development consent. The objectives of the zone have been considered in the assessment of the application with regard to the Hornsby Development Control Plan 2013 requirements for water recreation structures as discussed in Section 2.3.7 of the report.

2.13A.4   Minimum Lot Size

A minimum lot size of 40 hectares applies to the E3 and E4 zoned areas of the site pursuant to Clause 4.1 which specifies the minimum lot size under the HLEP. However, pursuant to Clause 4.6(6) development consent must not be granted for subdivision of land in the E4 Environmental Living zone if the subdivision results in 2 or more lots less than the minimum lot size or at least one lot that is less than 90% of the minimum lot size. The provision under Clause 4.6(6) would effectively prohibit the proposed subdivision as State Environmental Planning Policy No. 1 – Development Standards (SEPP 1) does not apply pursuant to Clause 1.9 of HLEP.

In this regard, the HLEP would be determinative of the proposed subdivision in prohibiting the development. As discussed in Section 2.2 of the report, the application must be assessed as if the HLEP had not commenced (which would prohibit the development).

Although the proposed subdivision would be a prohibited form of development under the HLEP, the proposed realignment of the subdivision boundaries would result in an improved subdivision layout from that which currently exists. The proposal would facilitate 4 regular building envelopes adjacent to the waterfront which is consistent with the pattern of development in the locality. No additional allotments would be created by the proposal. Accordingly, the application is consistent with the objective of the lot size control to provide for subdivision of land at a density that is appropriate for the site constraints, development potential and infrastructure capacity of the land.  Furthermore, the proposal would not create a precedent as no other applications are pending for proposed subdivisions involving boundary adjustments prior to the implementation of HLEP.

2.13A.5        Exception to Development Standards

Clause 4.6 of HLEP makes provision for the variation of development standards. As discussed above, the provisions under Clause 4.6(6) would be determinative of the proposal in prohibiting the proposed subdivision. However, the application of SEPP 1 for variation of the minimum lot size development standard under the applicable planning instrument (HSLEP) would in this instance result in a better environmental outcome, by reducing the potentially larger development impact that would result from the dwelling entitlement of the existing lots on the upper ridge land area of the site.

In this regard, the variation of the development standard under SEPP 1 is consistent with the objectives of Clause 4.6 to provide an appropriate degree of flexibility in applying development controls to achieve a better planning outcome; notwithstanding the provision under Clause 4.6(6).  Although a submission in accordance with Clause 4.6 is not strictly required, to avoid any doubt, the applicant has submitted a Clause 4.6 objection (copy attached) which states that:

1.         The proposed lots are entirely consistent with the scale and nature of existing waterfront lots which accommodate waterfront dwellings at Calabash Point.  The existing waterfront properties at Calabash Point are proven to be environmentally capable of accommodating environmentally sensitive dwelling house developments.

2.         The proposed subdivision and development at the site represents a minor extension of the existing Calabash Point river settlement with the proposed dwelling entitlement for the larger residual proposed Lot 1 confined to the waterfront, preventing any residential development of the bushland ridge area.

3.         The proposal will not create a precedent for similar development in the Calabash Point River settlement as the proposed realignment of existing lot boundaries cannot readily be applied to other waterfront land within the E4 Environmental Living zone in this locality.

4.         The proposed subdivision and development would maintain the pattern of waterfront low density residential settlement at Calabash Point.

5.         The proposal would have limited environmental impacts in the context of the 43.38 hectare site.

In summary, the conclusion of the Clause 4.6 variation is supported in this instance as it is agreed that the proposed subdivision will maintain the 4 dwelling lot entitlement for the site, but will achieve a better environmental outcome in respect to protection of the natural environmental attributes of the bushland ridge and waterfront and achieve consistency with the character and scale of existing waterfront residential development at Calabash Point. Accordingly, the justification within the written request is considered to be well founded.

2.13A.6        Development within the Coastal Zone

The foreshore area of the site is within the coastal zone subject to the provisions under Clause 5.5 of the HLEP.

The proposed subdivision is a boundary adjustment of the existing lots and would provide for future dwelling houses on the waterfront which is permissible development in the subject E4 Environmental Living zone and is subject to the requirements of the Hornsby Development Control Plan 2013 for the river settlements. The character of future development would be consistent the desired outcome for the river settlement at Calabash Point to maintain scenic quality, protect landscape features and be of environmentally sustainable design.

The proposed lots are designed with regard to the principles and objectives of the NSW Coastal Zone in being of sufficient size and width to provide for future dwelling houses and for foreshore access and to minimise impacts on the coastal zone in maintaining scenic quality and protecting landscape features. The relevant matters required to be considered under Clause 5.5 in respect to public access, impacts on scenic quality, biodiversity, heritage, marine environment, water quality and cumulative impacts are addressed in the body of the report.  

2.13A.7   Heritage Conservation

The HLEP includes provision for consideration of Aboriginal objects in the assessment of development applications in Clause 5.10. In this regard, the applicant submitted an Aboriginal Cultural Heritage Assessment which was considered by the NSW Office of Environment and Heritage pursuant to Section 90 of the National Parks and Wildlife Act 1974.  The Office has issued General Terms of Approval for the application.

Refer to discussion in Section 2.5 of the report.

2.13A.8   Terrestrial Biodiversity 

The site is mapped for terrestrial biodiversity under the HLEP which includes provision under Clause 6.4 for consideration of the site’s ecology. The mapping includes the area of the proposed lots fronting Calabash Bay.

The applicant submitted a Flora and Fauna Impact Assessment for the proposed waterfront lots. The assessment includes detailed analysis of the ecology of the site in respect to State and Commonwealth legislative requirements and mitigation measures necessary to ameliorate impacts of the proposal. Refer to discussion in Section 2.9, 2.16.1, 2.17 and 3.1.

The provisions under Clause 6.4 have been considered in the assessment and are generally addressed by recommended Conditions Nos. 1, 18 and 19.

2.13A.9   Limited Development on Foreshore Area

Clause 6.5 of the HLEP makes provision for development in the foreshore area. The site however, is not subject to foreshore building line mapping under the HLEP. Notwithstanding, the matters for consideration under Clause 6.5 are generally addressed in the assessment of the application as discussed in Section 2.16.5 of the report. 

Late Submissions

Following the completion of Report No. PL77/16 a further 30 submissions have been received including a submission from a solicitor on behalf of a residents association ‘Save Calabash Bay’.

The submission from Concordia Pacific comments that State Environmental Planning Policy 1 (Development Standards) (SEPP 1) does not apply to land which is subject to the HLEP. The submission suggests that consideration should be given to Clause 1.9(2) of the HLEP which states that SEPP 1 does not apply in Hornsby Shire.

As indicated in Section 2.2 of Group Manager’s Report No. PL77/16, the subject application was lodged prior to the commencement of the HLEP. Accordingly, the application is subject to Clause 1.8A of the HLEP which states that “the application must be determined as if this Plan had not commenced”.  Prior to the making of the HLEP, SEPP 1 applied to lands within Hornsby Shire.  Therefore, it is open for Council to consider the SEPP 1 objection to the minimum allotment size development standard of the HSLEP, being the applicable planning instrument in force at the date the application was lodged.  Council’s solicitor was consulted in reviewing this issue and has confirmed the advice of Council officers as appropriate.

The matters raised in the other late submissions concerning bushfire impacts, recreational water access, flora and fauna impacts, scenic quality, infrastructure at Berowra Waters, emergency access, marine environment, dredging, water quality, wetlands and biodiversity have been addressed in the report. The submissions also include a submission in support of the application.



THAT Council seek the concurrence of the Secretary of the Department of Planning and Environment pursuant to State Environmental Planning Policy No. 1 – Development Standards and approve Development Application No. DA/1009/2013 for subdivision of four allotments into four lots and construction of two jetties and pontoons at Lot 1 and Lot 2 DP 882783, Lot 78 DP 752048 and Lot 163 DP 1113745, Calabash Point, Berowra Creek as a deferred commencement pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979 subject to the conditions of consent detailed in Schedule 1 of Group Manager’s Report No. PL77/16.







Rod Pickles

Manager - Development Assessment

Planning Division





James Farrington

Group Manager

Planning Division










DFP - Written request





File Reference:           DA/1009/2013

Document Number:    D07116052


Hornsby Shire Council

Attachment to Report No. LM17/16 Page 7


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Mayoral Minute No. MM8/16

Date of Meeting: 14/12/2016





Mature trees make an important contribution to our streetscapes and have been shown to provide a range of important benefits to local communities including:

·              Increasing property values

·              helping to reduce the heat island effect by lowering air temperatures in summer

·              improving local air quality

·              strengthening a communities sense of place

Unfortunately the work that local councils put into creating and maintaining appealing streetscapes is often ruined by the ‘pruning’ of street trees that the utility companies undertake around overhead power lines. 

In other cases, Council’s ability to plant significant new avenues of large trees to improve our streetscapes is prevented by the presence of overhead power lines.  In their stead we have the unsightly ‘visual clutter’ created by overhead power lines and communication network cables.

Compounding this there is an added cost burden to councils in maintaining street trees.  Research has shown that trees under overhead power lines cost councils on average 35% more to maintain than trees not constrained by power lines.

By contrast, areas with an underground power supply do not have these issues and can create appealing local environments for the community. 

The benefits of placing power lines underground are both financial and environmental, including:

·              reduction in tree lopping and network maintenance costs

·              increased ability to plant street trees

·              improved visual amenity and property values

·              reduction in bushfire risk

·              reduced electrical transmission interruptions and risk from electrocution

·              decrease in the physical, emotional and monetary costs associated with vehicles colliding with power poles

Although the benefits of undergrounding electricity networks are numerous and well known, there remains wide disagreement over the capital costs to convert from an overhead to underground power supply.  It is therefore important that reliability of supply and the public safety aspects of undergrounding power are fully quantified and costed.  Similarly, the environmental, aesthetic, health and cultural values of trees in the streetscape should be given a real value, such that their damage or destruction is incorporated as a true cost in maintaining an aerial electricity network.

All assets have a useable life before they require replacement, and good asset management and planning should progressively seek to place the power supply underground.  This is particularly the case when evidence suggests that the current cost of maintaining an overhead supply far exceeds maintenance of an underground system due to exposure to wind forces, tree impact, lightning strikes, bushfire, etc.  Industry data also suggests that the ongoing maintenance costs of underground cables is less than half their aboveground equivalents.

As such, I move that this Council seek to work with Ausgrid to progressively place the power supply underground as part of their network and maintenance strategy.



THAT Council:

1.       Seek to meet with Ausgrid to discuss ways that Ausgrid can progressively place the power supply underground as part of their network maintenance and renewal strategy, with an initial focus on Peats Ferry Road between Galston Road and the Asquith Town Centre.

2.       Investigate appropriate amendments to the Hornsby Development Control Plan 2013 that aim to ensure all that new subdivisions and high density developments include underground cabling or the future provision for this.











There are no attachments for this report.


File Reference:           F2004/08619-04

Document Number:    D07108106




Mayoral Minute No. MM9/16

Date of Meeting: 14/12/2016





South Dural Planning Proposal

The South Dural Planning Proposal submitted by the Lyon Group and Folkestone Joint Venture proposes the urban release of the precinct to provide opportunities for 2,900 dwellings.  The delivery of the housing would require infrastructure upgrades to cater for the new population.  Accordingly, when Council resolved to support investigations into the urban release of the precinct in December 2013, Council also resolved that a business plan should be commissioned to confirm the feasibility of the project being delivered with all necessary infrastructure at no net cost to government.

Council reaffirmed its position in December 2015, when it resolved (in part) to write to the proponent advising that its ongoing support for the Planning Proposal is conditional upon securing the commitment of the NSW Government to funding its share of costs associated with the upgrade of the State road network and other supporting infrastructure to support development of the precinct.

In accordance with the conditions of the Gateway Determination issued by the Department of Planning and Environment, the proponent has prepared an infrastructure and business case in support of the proposal. The proponent’s transport modelling shows that the existing State road network is currently under performing and upgrades are required including works to New Line Road and Old Northern Road to a value of $158 million.   The South Dual project is proposing to contribute $73.3 million towards the upgrades.  The balance of $84.7 million is identified for funding by the State Government as this proportion of works is needed to cater for existing and future development in the region other than South Dural.

The exhibition period for the Planning Proposal has been extended by three weeks in response to the overwhelming level of public interest in the project, with a new deadline of 23 December 2016.  To date, approximately 4,000 submissions have been received with a large proportion of submitters raising concerns regarding the capacity of the roads to cater for the development.

Council’s expert team of consultants is currently evaluating the proposal and the issues raised in submissions.  Key government agencies are also being consulted including Roads and Maritime Services and Transport for NSW.  Feedback from these agencies will assist in ensuring that any proposal includes a plan for the delivery of services in association with development.

Notwithstanding the process for the evaluation of the Planning Proposal, an urgent response is needed from the State Government confirming its commitment to fund the balance of the works to the road network as this is a key consideration in ensuring the community benefits of the proposal justify support for its progression.  There is significant concern being expressed by the community about the condition of State roads in the area that requires attention even if the Planning Proposal is not progressed. Therefore, Council should seek a definitive response from the Government as to whether it supports the funding model outlined by the proponent and a commitment and timeframe to upgrade the State roads.





1.         Council write to the Hon. Duncan Gay, Minister for Roads, Maritime and Freight requesting an urgent response to confirm the NSW Government’s position concerning the commitment of State funds for upgrades to the regional road network in accordance with the business plan for the South Dural Planning Proposal and timing of delivery for any such funds. 

2.         Should the State Government not support the funding model in the business plan, confirmation be sought concerning the Government’s plans and timeframe for upgrading New Line Road and Old Northern Road to meet existing conditions and projected background growth.











There are no attachments for this report.


File Reference:           PP/1/2013

Document Number:    D07116282