BUSINESS PAPER
Local Planning Panel meeting
Wednesday 31 March 2021
at 6:30pm
BUSINESS PAPER
Local Planning Panel meeting
Wednesday 31 March 2021
at 6:30pm
Hornsby Shire Council Table of Contents
Page 1
GENERAL BUSINESS
Local Planning Panel
Item 1 LPP3/21 DA/43/2021 - Demolition of a Dwelling House, Torrens title Subdivision of One Lot into Two and Construction of a Dwelling House on each Lot - 1 Taylor Place, Pennant Hills... 1
LPP Report No. LPP3/21
Local Planning Panel
Date of Meeting: 31/03/2021
1 DA/43/2021 - DEMOLITION OF A DWELLING HOUSE, TORRENS TITLE SUBDIVISION OF ONE LOT INTO TWO AND CONSTRUCTION OF A DWELLING HOUSE ON EACH LOT - 1 TAYLOR PLACE, PENNANT HILLS
EXECUTIVE SUMMARY
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DA No: |
DA/43/2021 (Lodged on 15 January 2021) |
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Description: |
Demolition of a dwelling house, Torrens title subdivision of one lot into two and construction of a dwelling house on each lot |
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Property: |
Lot 1 Sec 10 DP 758836, No. 1 Taylor Place, Pennant Hills |
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Applicant: |
Champion Homes Sales Pty Ltd |
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Owner: |
Andrew Kevin Lewis |
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Estimated Value: |
$1,065,000 |
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Ward: |
B |
· The application involves the demolition of a dwelling house, Torrens title subdivision of one lot into two and construction of a dwelling house on each lot.
· The proposal does not comply with the minimum lot size development standard contained within the Hornsby Local Environmental Plan 2013. The applicant has made a submission in accordance with Clause 4.6 ‘Exceptions to development standards’ of the Hornsby Local Environmental Plan 2013 to vary the standard. The submission is not considered well founded and is not supported by Council.
· A total of 14 unique submissions as well as a petition with 42 signatures has been received in respect of the application.
· The application is required to be determined by the Hornsby Council Local Planning Panel as 10 or more unique submissions were received by way of objection.
· It is recommended that the application be refused.
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THAT Development Application No. DA/43/2021 for the demolition of a dwelling house, Torrens title subdivision of one lot into two and construction of a dwelling house on each lot at Lot 1 Sec 10 DP 758836, No. 1 Taylor Place, Pennant Hills be refused for the reasons detailed in Schedule 1 of LPP Report No. LPP3/21. |
BACKGROUND
On 15 January 2021, the subject application was lodged.
On 9 February 2021, Council advised the applicant that the proposal cannot be supported due to the non-compliance with the minimum lot size development standard and issues with Dwelling 1. Council requested the applicant to withdraw the application.
On 9 February 2021, the applicant advised in writing that they would not be withdrawing the application and that they wish it to proceed to a local planning panel meeting.
On 10 February 2021, the applicant verbally contacted Council to discuss concerns over Dwelling 1. The applicant advised that they would lodge amended plans prior to the April Local Planning Panel meeting. On 26 February 2021, the applicant lodged amended plans with Council with revised architectural plans for Dwelling 1.
SITE
The 990.3m2 site is located on the corner of Thorn Street and Taylor Place, Pennant Hills and contains a single storey dwelling house. Vehicle access to the existing dwelling is from Taylor Place.
The site contains a number of locally indigenous and exotic tree species and has a fall in slope of 3.5m toward the western (Thorn Street) frontage.
The immediate surrounding area comprises low density, detached residential dwellings generally on larger allotments exceeding 700m2.
The site is located within 100 metres of the Berowra Valley National Park and is bushfire prone land.
PROPOSAL
The application proposes the demolition of structures, the Torrens title subdivision of one lot into two and the construction of a two-storey dwelling house on each new lot. The application includes a Clause 4.6 request to vary the minimum lot size development standard.
Proposed Lot 101
· Lot 101 would be 500.3m2, would be irregular in shape and would occupy the southern portion of the site. The lot would have a 22.5m frontage to Taylor Place and a 21m frontage to Thorn Street.
· The proposed two storey face brick dwelling house would comprise 5 bedrooms and would have vehicle access from Taylor Place.
· The proposed two storey face brick dwelling house would comprise a double garage, bedroom, living room, laundry, powder room, kitchen, dining room, family room and outdoor living room on the ground floor, and 4 bedrooms, balcony and two bathrooms on the first floor. Vehicle access would be from Taylor Place.
Proposed Lot 102
· Lot 102 would be 490m2, would be regular in shape and occupy the northern portion of the site. The lot would have a 19.2m frontage to Thorn Street.
· The proposed two storey face brick dwelling house would comprise a double garage, bedroom, living room, laundry, powder room, kitchen, dining room, family room and outdoor living room on the ground floor, and 4 bedrooms and two bathrooms on the first floor. Vehicle access would be from Thorn Street.
Stormwater from both allotments would drain to Thorn Street via on-site detention.
Various retaining walls are proposed within each new lot.
The arboricultural impact assessment lists 13 trees and shrubs to be removed to facilitate the subdivision and construction of the dwelling houses.
The proposal includes a landscape plan which details the planting of 4 trees along with 39 shrubs and various ground covers.
ASSESSMENT
The development application has been assessed having regard to the Greater Sydney Region Plan – A Metropolis of Three Cities, the North District Plan and the matters for consideration prescribed under Section 4.15 of the Environmental Planning and Assessment Act 1979 (the Act). The following issues have been identified for further consideration.
1. STRATEGIC CONTEXT
1.1 Greater Sydney Region Plan - A Metropolis of Three Cities and North District Plan
The Greater Sydney Region Plan - A Metropolis of Three Cities has been prepared by the NSW State Government to guide land use planning decisions for the next 40 years (to 2056). The Plan sets a strategy and actions for accommodating Sydney’s future population growth and identifies dwelling targets to ensure supply meets demand. The Plan also identifies that the most suitable areas for new housing are in locations close to jobs, public transport, community facilities and services.
The NSW Government will use the subregional planning process to define objectives and set goals for job creation, housing supply and choice in each subregion. Hornsby Shire has been grouped with Hunters Hill, Ku-ring-gai, Lane Cove, Mosman, North Sydney, Ryde, Northern Beaches and Willoughby to form the North District. The Greater Sydney Commission has released the North District Plan which includes priorities and actions for Northern District for the next 20 years. The identified challenge for Hornsby Shire will be to provide an additional 4,350 dwellings by 2021 with further strategic supply targets to be identified to deliver 97,000 additional dwellings in the North District by 2036.
The proposed development would be generally consistent with the Greater Sydney Region Plan - A Metropolis of Three Cities and the North District Plan by contributing to achieving the dwelling targets for the region, however would result in an allotment not complying with the minimum allotment size under the HLEP.
2. STATUTORY CONTROLS
Section 4.15(1)(a) requires Council to consider “any relevant environmental planning instruments, draft environmental planning instruments, development control plans, planning agreements and regulations”.
2.1 Hornsby Local Environmental Plan 2013
The proposed development has been assessed having regard to the provisions of the Hornsby Local Environmental Plan 2013 (HLEP).
2.1.1 Zoning of Land and Permissibility
The subject land is zoned R2 – Low Density Residential under the HLEP. The objectives of the R2 zone are:
· To provide for the housing needs of the community within a low-density residential environment.
· To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The proposed development is defined as ‘subdivision’ and ‘dwelling house’ and is permissible in the zone with Council’s consent.
2.1.2 Height of Buildings
Clause 4.3 of the HLEP provides that the height of a building on any land should not exceed the maximum height show for the land on the Height of Buildings Map. The maximum permissible height for the subject site is 8.5m. Both dwelling houses would be less than 8.5m in height and comply with this development standard.
2.1.3 Clause 4.1 - Minimum Subdivision Lot Size
The application seeks to vary Clause 4.1 (minimum subdivision lot size) of the HLEP. Proposed Lot 102 would be 490m2 which does not meet the 500m2 requirement (2% variation).
The specific objectives of Clause 4.1 are:
(a) To provide for the subdivision of land at a density that is appropriate for the site constraints, development potential and infrastructure capacity of the land.
(b) To ensure that lots are of a sufficient size to accommodate development.
The application includes a written request under Clause 4.6, prepared by D-Plan Urban Planning Consultants. Council considers that the written request does not satisfactory justify the contravention of the development standard as required under Clause 4.6(3). Additionally, concerns are raised that approval of the application may set an undesirable precedence of under-sized allotments within the Hornsby Shire. This matter is discussed further in Part 2.1.4 of this report.
2.1.4 Clause 4.6 - Exceptions to Development Standards
The application has been assessed against the requirements of Clause 4.6 of the HLEP. This clause provides flexibility in the application of the development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tender to hinder the attainment of the objectives of the zone. Clause 4.6 States in part:
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) To provide an appropriate degree of flexibility in applying certain development standards to particular development.
(b) To achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) That there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) The consent authority is satisfied that:
(i) The applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out,
Clause 4.6 applies to this development as proposed Lot 2 would have an area of 490m2 and would not comply with the development standard for ‘minimum subdivision lot size’ which requires a 500m2 minimum lot size.
Clause 4.6 Variation Request and Council’s Response
In accordance with the requirements of Clause 4.6(3), the applicant has submitted a written request seeking to justify the contravention of the development standard. With respect to Clause 4.6(3)(a) and (b), the applicant’s written request states the following in part:
The proposed allotments will accommodate development which demonstrates a high level of residential amenity and compliance with the LEP and DCP requirements, hence the density is appropriate and considered to be a good outcome for the site and locality in general.
To ensure that lots are of a sufficient size to accommodate development – the proposed development and accompanying subdivision will not result in any adverse impacts to the amenity of neighbouring properties. Basically, the proposal will produce allotments which reflect the characteristics/pattern of subdivision of the area. The allotment layout aims to activate the streetscape of Thorn Street by providing a street fronting dwelling.
In summary, the abovementioned objectives aim to ensure that subdivision is not antipathetic to existing and potential future development that is permitted in the zone and that sufficient land area is available to establish a reasonable level of residential amenity by the provision of private open space, landscaping, drying areas, driveways etc. associated with residential development permissible in the zone.
Expanded comment as to how the proposed development satisfies the above objectives is provided below:
· The shortfall in allotment area of the LEP will have no bearing on the level of residential amenity. The configuration of development on each allotment demonstrates that an acceptable level of residential amenity will be achieved at the proposed densities, being within the anticipated range for residential accommodation/development.
· The allotment layout aims to activate the streetscape of Thorn Street by providing a street fronting dwelling house and maximise solar access opportunities through orientation of both internal and external living areas.
· The design of the proposed development takes into account other LEP and DCP requirements to ensure that the proposed development achieves a reasonable level of amenity and is within the environmental capacity of the zone.
· A Site Analysis was carried out which identified the constraints and opportunities of the site. The site does not contain any significant structural, cultural or environmental features that would prevent the development from proceeding with the proposed allotment areas.
· For all intents and purposes the variation will not be interpreted as a non-compliance, given that dwelling house development on similar sized allotments are currently evident in the locality.
The applicant’s written request further details the following environmental planning grounds for support of the proposal:
· The immediate locality comprises a variety of allotment sizes and some development types. Furthermore, other allotments in the locality are also less than the prescribed minimum, therefore, the consequences of a slightly smaller allotment has no environmental consequences.
· The subject site is ideally located close to recreation facilities and services (i.e., Berowra Valley National Park, several local recreation facilities, schools, clubs, public transport, commercial centres, as well as neighbourhood shops, cafes and restaurants) and a shortfall in the allotment size should not prevent increased opportunity for residents to utilise those facilities.
· A design incorporating effective design features and increased boundary offsets compensates for the very minor shortfall in the lot size, enabling the provision of all residential amenities expected for the lifestyle of its occupants, without any adverse environmental impacts to adjoining properties.
· From an urban design viewpoint, the proposed subdivision and subsequent dwelling house development is consistent with the building character in the locality and will generally enhance the amenity of the site and locality by activating the streetscape of Thorn Street, thus satisfying the planning principles established in Project Venture Developments v Pittwater Council [2005] NSWLEC 191.
The Clause 4.6 also details the application is in the public interest for the following reasons:
· The environmental planning benefits of approving the development in its proposed form, outweigh the need for the strict application of a numeric requirement.
· As mentioned earlier, Torrens Title subdivision to better utilise a scarce resource (i.e., the parent allotment is almost double the minimum lot size requirement and land in the Sydney Metropolitan Area is a scarce resource).
· The proposed subdivision pattern and proposed built form character is more reflective of the desired future pattern of development envisaged for the zone.
· It provides for all residential amenities expected for the lifestyle of its occupants without any adverse environmental impacts to adjoining properties. There will be sufficient accommodation and realistic leisure areas to ensure the dwellings are fit for their designed purpose.
· It is economically unfeasible to annex the additional land area required to achieve strict numeric compliance. In the current economic climate, the provision of a variety of housing choice and more affordable housing, is more feasible and is generally consistent with Federal and State planning initiatives.
· The proposed development will be in the public interest because it is consistent with the objectives of the R2 Low Density Residential zone (i.e., the objectives of the zone encourage low density residential development) which is being provided and the particular purpose behind the development standard has been achieved.
Council’s Comment:
In accordance with Clause 4.6(4), the consent authority must satisfy itself that the applicant’s response has adequately addressed the matters raised in subclause (3), and that the development would be within the public interest.
Council considers that the written request does not satisfactorily address the matters raised in subclause (3) for the following reasons:
· The application and Clause 4.6 request suggest the variation would not be interpreted as inconsistent as there are similar sized allotments that are prevalent in the locality. Whilst the Clause 4.6 does not provide any specific examples of similar under-sized allotments, the Statement of Environmental Effects (SEE) makes note of Nos. 3 and 3A Watson Street as having a similarly configured allotment. Both 3 and 3A Watson Street exceed the minimum 500m2 lot size and cannot be used as justification for the under-sized allotment.
· Council notes that there may be some under-sized allotments within Pennant Hills created c1990 under SREP 12 Dual Occupancy which was repealed in September 2005. Subdivision of dual occupancy was historically permitted in accordance with SEPP 25 minimum lot sizes. Dual occupancy is no longer a permitted form of development in the R2 Zone. Therefore, subdivision of the subject site cannot be justified based on any previous planning regime.
· Council is unsupportive of the argument that because a dwelling can be erected on a smaller allotment, it is therefore appropriate to vary the minimum lot size.
· The submitted shadow diagrams indicate that Dwelling 2 proposed on the undersized allotment would overshadow much of the private open space of Dwelling 1. A more appropriate lot size would allow for greater separation between the dwellings and improved solar access.
· The Clause 4.6 makes note that Council and the Court have varied the minimum lot size requirement where justifiable in the Pennant Hills locality, however no specific examples are provided. Historically, subdivision applications approved by Council pursuant to Clause 4.6 have relied on site-specific circumstances, for example the preservation of a significant tree or dwelling where the overall combined lot sized complied with the minimum development standard.
· The objection to the development standard does not provide sufficient environmental planning grounds, unique to the site to justify contravening the development standard and therefore, the proposal is considered inconsistent with the provisions of the exceptions to development standard.
Council considers that the proposal would not be in the public interest for the following reasons:
· Approval of the application would result in an undesirable precedent for similar undersized allotments. Whilst the submitted Clause 4.6 request indicates that the development is consistent with the objectives of this clause, it does not include a context that is unique to the subject site. There are numerous other sites within the Hornsby Shire that could also be subdivided with the same rational should Council approve this application.
· The proposed development would not be in the public interest because it is not consistent with the objectives of the minimum subdivision lot size development standard and the objectives for development within the zone.
In summary, it is considered that the proposed development would be contrary to the objectives of Clause 4.6 of the HLEP as there are insufficient environmental planning grounds to justify contravening the development standard.
2.1.5 Earthworks
Clause 6.2 of the HLEP states that consent is required for proposed earthworks on site. Before granting consent for earthworks, the consent authority is required to assess the impacts of the works on adjoining properties, drainage patterns and soil stability of the locality.
The application proposes cut and fill for the construction of the dwelling houses, along with the construction of retaining walls of up to 1.2m in height.
Council raises no objections to the proposed earthworks as they are unlikely to cause impact to adjoining property or existing drainage patterns.
2.2 Rural Fire Act 1997
The site is partly bushfire prone. Accordingly, the proposed development constitutes ‘integrated development’ subject to approval of the NSW Rural Fire Service for the issue of General Terms of Approval under Division 4.8 of the Environmental Planning and Assessment Act 1979 and a Bush Fire Safety Authority pursuant to Section 100B of the Rural Fires Act 1997.
A Bushfire Assessment prepared by Sydney Bushfire Consultants accompanied the application, which was subsequently referred to the NSW Rural Fire Service (RFS) for comment regarding bushfire protection.
The RFS raised no concerns with the proposed development and provided General Terms of Approval and a Bush Fire Safety Authority, subject to general terms of approval requiring the establishment of an Asset Protection Zone and construction standards in accordance with of Australian Standard AS3959-2009 Construction of buildings in bush fire-prone areas.
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 Remediation of Land (SEPP 55) under which consent must not be granted to the carrying out of any development on land unless the consent authority has considered whether the land is contaminated or requires remediation for the proposed use.
Should the land be contaminated, Council must be satisfied that the land is suitable in a contaminated state for the proposed use. If the land requires remediation to be undertaken to make the land suitable for the proposed use, Council must be satisfied that the land will be remediated before the land is used for that purpose.
An examination of Council’s records and aerial photography has determined that the site has been historically used for residential purposes. It is not likely that the site has experienced any significant contamination, and further assessment under SEPP 55 is not required.
2.4 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
The application has been assessed against the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The proposal includes BASIX Certificates for the proposed development and is considered to be satisfactory.
2.5 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) aims to protect the biodiversity and amenity values of trees within non-rural areas of the state.
Part 3, Clause 9(2) of the Vegetation SEPP states that a Development Control Plan may make a declaration in any manner relating to species, size, location and presence of vegetation. Accordingly, Part 1B.6.1 of the Hornsby Development Control Plan 2013 (HDCP) prescribes works that can be undertaken with or without consent to trees and objectives for tree preservation.
The application has been assessed against the requirements of the Vegetation SEPP and it has been determined that the proposal would be contrary to the objectives of the Vegetation SEPP. This matter is addressed in Section 2.7.3 of this report.
2.6 Section 3.42 Environmental Planning and Assessment Act 1979 - Purpose and Status of Development Control Plans
Section 3.42 of the Environmental Planning and Assessment Act 1979 states that a DCP provision will have no effect if it prevents or unreasonably restricts development that is otherwise permitted and complies with the development standards in relevant Local Environmental Plans and State Environmental Planning Policies.
The principal purpose of a development control plan is to provide guidance on the aims of any environmental planning instrument that applies to the development; facilitate development that is permissible under any such instrument; and achieve the objectives of land zones. The provisions contained in a DCP are not statutory requirements and are for guidance purposes only. Consent authorities have flexibility to consider innovative solutions when assessing development proposals, to assist achieve good planning outcomes.
2.7 Hornsby Development Control Plan 2013
The proposed development has been assessed having regard to the relevant desired outcomes and prescriptive requirements within the Hornsby Development Control Plan 2013 (HDCP). The following table sets out the proposal’s compliance with the prescriptive requirements of the Plan:
HDCP – Part 6 Subdivision and Part 3.1 Dwelling Houses |
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Control |
Proposal |
Requirement |
Complies |
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Part 6 - Subdivision |
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Lot Area (excluding access) |
|
|
|
|
|
- Lot 101 |
500.3m2 |
500m2 |
Yes |
|
|
- Lot 102 |
490m2 |
500m2 |
No |
|
|
Lot Width |
|
|
|
|
|
- Lot 101 |
14m |
12m |
Yes |
|
|
- Lot 102 |
19m |
12m |
Yes |
|
|
Part 3.1 Residential (Lot 101 – Dwelling 1) |
||||
|
Building Height |
8.2m |
8.5m |
N/A |
|
|
No. of Storeys |
2 |
2 + attic |
N/A |
|
|
Site Coverage |
33% |
50% |
Yes |
|
|
Floor Area |
284m2 |
330m2 |
Yes |
|
|
Setbacks |
|
|
|
|
|
- Front (Thorn Street) |
6.25m with <1/3 building width 4.96m |
6m with <1/3 building width 4.5m |
Yes |
|
|
- Secondary (Taylor Pl) |
3.4m |
3m |
Yes |
|
|
- Side (northern) |
|
|
|
|
|
- Ground floor |
967mm |
900mm
|
Yes |
|
|
- First floor |
3.49m |
1.5m |
Yes |
|
|
- Rear (eastern) |
|
|
|
|
|
- Ground floor |
1.6m |
3m |
No |
|
|
- First floor |
8.1m |
8m |
Yes |
|
|
Landscaped Area |
45% |
Min. 20% |
Yes |
|
|
Private Open Space |
>24m2 (min width 3m) |
24m2 (min width 3m) |
Yes |
|
|
Car Parking |
2 spaces |
2 spaces |
Yes |
|
|
Part 3.1 Residential (Lot 102 – Dwelling 2) |
||||
|
Building Height |
8.2m |
8.5m |
N/A |
|
|
No. of Storeys |
Existing |
2 + attic |
N/A |
|
|
Site Coverage |
33% |
50% |
Yes |
|
|
Floor Area |
272m2 |
330m2 |
Yes |
|
|
Setbacks |
|
|
|
|
|
- Front |
7m |
6m |
N/A |
|
|
- Side (northern) |
|
|
|
|
|
- Ground floor |
1.6m |
900mm |
Yes |
|
|
- First floor |
4.6m |
1.5m |
Yes |
|
|
- Side (southern) |
|
|
|
|
|
- Ground floor |
1.7m |
900mm
|
Yes |
|
|
- First floor |
2.7m |
1.5m (1st floor) |
Yes |
|
|
- Rear |
|
|
|
|
|
- Ground floor |
6.3m |
3m |
Yes |
|
|
- First floor |
6.3m |
8m |
No |
|
|
Landscaped Area |
43% |
Min. 20% |
Yes |
|
|
Private Open Space |
>24m2 (min width 3m) |
24m2 (min width 3m) |
Yes |
|
|
Car Parking |
2 spaces |
2 spaces |
Yes |
|
As detailed in the above table, the proposed development does not comply with the minimum lot size and rear setbacks for Dwelling 1 and the minimum lot size. A brief discussion on compliance with relevant performance requirements and Part 1C General Controls is provided below.
2.7.1 Lot Design
The HDCP encourages appropriately shaped lots to ensure development will complement the streetscape, provide for landscaping, protect landscape features and provide sufficient building separation. As detailed in the above table, proposed Lot 102 would not meet the minimum 500m2. A discussion regarding this non-compliance is provided in Part 2.1.4 of this report.
2.7.2 Setbacks
As detailed in the above table, dwelling 1 would have a non-complaint ground floor rear setback of 1.6m whereas the HDCP recommends 3m. The non-compliance is largely attributed to by the shape of the proposed allotment and the dual street frontages.
Council considers the non-compliance minor given the rear boundary of the proposed Lot 1 adjoins the side boundary of the adjoining property at No. 3 Taylor Place which only requires a 900mm setback. Further, the proposed setback encroachment is in the form of a garage with no external windows which is unlikely to result in any detrimental privacy or amenity impact.
2.7.3 Tree Preservation
An arboricultural impact assessment (AIA) prepared by Arbor Pride was submitted in support of the application. The AIA lists 13 trees and shrubs to be removed (Nos. 4, 5, 7, 8, 9, 11, 13, 14, 15, 17, 22, 23, 24) comprising the following species:
· Syzygium sp. (Roseapple Lilly Pilly)
· Viburnum tinus (Flowering shrub)
· Gordonia axillaris (Fried egg plant)
· Camellia sp. (Camellia)
· Cotoneaster sp. (weed species)
· Ulmus pavifola (Chinese elm)
· Liquidamar styraciflua (Liquidambar)
· Robina pseudoacia (Seed species)
· Olea sp (Olive tree)
· Melaleuca quinquenervia (Broad leaf paperbark)
· Pittosporum undulatum (Sweet pittosporum)
· Ceratopetalum gummiferum (Christmas bush)
The proposal indicates trees numbered 4, 5, 7, 8, 11, 22, 23 and 24 would be impacted by the building footprint, and trees 13, 14 and 15 would be impacted by the driveway. Council’s Tree Management group does not consider the species required for removal to be highly significant and could be offset through replacement planting.
Trees 9 and 17 proposed for removal do not appear to be impacted by the development and could be retained. All other trees could be retained subject to the appointment of a project arborist to provide monitoring and guidance in accordance with Australian Standard AS4970-2009.
If consent were to be granted to the proposed development an additional 3 replacement trees would be recommended, in addition to the 4 trees proposed and numerous shrubs proposed within the landscape plan.
2.7.4 Landscaping
As noted in the HDCP table above, both proposed allotments would provide for at least 20% of the site area to be landscaped. Notwithstanding, Part 3.1.3(c) states that at least 50% of the minimum landscaped area should be located behind the front building line. Given the site has an area of 500m2, 50% of the minimum landscaped area is equal to 50m2. Council have calculated that only 15m2 of landscaped area would be provided behind the front building line which does not comply with the HDCP recommendation.
The non-compliance is largely attributed to by the large dual street frontages which restricts the developable portion of the site to the rear portion. Given the total landscape area far exceeds the minimum 50m2 as it provides approximately 225m2, the non-compliance is supported.
2.7.5 Privacy
Part 3.1.6 of the HDCP encourages living and entertaining areas to be located on the ground floor in order to maintain privacy to adjoining properties. Both dwellings would provide all living areas on the ground floor with the exception of a small 5m2 balcony on Dwelling 1 fronting Thorn Street. Given the small balcony faces the street and not another adjoining property, no privacy issues are anticipated.
Privacy concerns are however raised with the windows serving Bedroom 3 and 4 of Dwelling 2 as they may overlook the private open space of the adjoining property at No. 3 Taylor Place. If approval were to be granted, a condition would be recommended that the sill height of these windows be raised to at least 1.5m from the finished floor level.
Other first floor windows are generally orientated toward the front and not the side or rear boundaries with frosted glazing used on bathrooms and selected use of high sill heights.
2.7.6 Private Open Space
The HDCP requires dwelling houses to have access to at least 24m2 of private open space that:
· Has a minimum dimension of 3m
· Is located behind the front building line
· Is directly accessible from living areas within the dwelling
The amended plans provided by the applicant demonstrate that both dwellings would have at least 24m2 of private open space located behind the front building line that are directly accessible from internal living areas. The application is compliant in this regard.
2.7.7 Sunlight and Ventilation
The HDCP provides that at least 50% of the private open space of a dwelling should allow for at least 3 hours of sunlight on Winter Solstice between 9am to 3pm.
The shadow diagrams submitted with the application indicate that the Dwelling 2 would overshadow the proposed private open space of Dwelling 1 between 9am and 12pm with some of the private open space still being in shade at 3pm. It is therefore considered unlikely that at least half of the 24m2 of private open space would receive the required 3 hours of sunlight mid-winter.
In this regard the proposal is not considered acceptable as Dwelling 1 would not have access to sufficient sunlight.
2.7.8 Stormwater
The application proposes stormwater runoff the new dwelling houses to be drained via gravity to Council’s street drainage system. No objections are raised in this regard.
If approval were recommended, conditions would require the installation of an on-site detention system limiting the flow of water during heavy rainfall events.
2.8 Section 7.11 Contributions Plans
Hornsby Shire Council Section 7.11 Contributions Plan 2020-2030 applies to the development as it would result in an additional lot. If approval were obtained a condition would be imposed requiring a monetary Section 7.11 contribution.
3. ENVIRONMENTAL IMPACTS
Section 4.15(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
A discussion regarding impact on trees, proposed landscaping and stormwater management is provided earlier in Part 2.7 (Hornsby Development Control Plan) this report.
3.2 Built Environment
The application is considered to have a negative impact on the surrounding built environment as the proposal would result in an under-sized allotment. Further, lack of building separation would result in the overshadowing of Dwelling 1.
3.3 Social Impacts
The residential development would result in a minor positive social impact by providing an additional dwelling house in the locality. Notwithstanding, Council considers that the proposal would have a detrimental social impact as approval would create an undesirable planning precedent for undersized subdivision and would result in overshadowing of Dwelling 1.
3.4 Economic Impacts
The proposal is considered to have a minor short-term impact through the creation of jobs involved in the development of the site. Long term economic impacts are considered negligible.
4. SITE SUITABILITY
Section 4.15(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.
The site is not considered suitable for the proposed development as it is under-sized and does not comply with Clause 4.1 (minimum subdivision lot size) of the HLEP.
5. PUBLIC PARTICIPATION
Section 4.15(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 18 January 2021 and 9 February 2021 in accordance with the Hornsby Community Participation Plan. During this period, Council received 14 individual submissions and a petition with 42 signatures. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.
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NOTIFICATION PLAN |
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• PROPERTIES NOTIFIED |
X SUBMISSIONS RECEIVED |
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1 SUBMISSION RECEIVED OUT OF MAP RANGE |
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14 submissions and a petition objected to the development, on the following grounds:
5.1.1 The proposal does not comply with the minimum lot size and would set an undesirable precedent:
Council considers that the application does not provide sufficient justification to vary the minimum lot size development standard and would create an undesirable precedent. This matter is discussed in detail in section 2.1.4 of this report.
5.1.2 Lack of on-street car parking:
Both proposed dwelling houses would provide 2 off-street car parking spaces in accordance with the HDCP requirement. As a consequence, consideration of on-street parking is not a direct matter of consideration. Council also notes that sufficient on-street parking was available within the vicinity of the site when Council officers undertook an inspection of the property.
5.1.3 Unacceptable traffic and safety impact on local streets:
The proposal would result in one additional allotment and dwelling. It is anticipated that the proposed development would generate an additional 9 vehicle movements per day and 0.85 vehicle movements in the peak periods.
The proposed development would pose a negligible impact to traffic generation in the locality and is acceptable in this regard. The driveway locations for each dwelling provide for acceptable site distances and would not result in a traffic safety issue.
5.1.4 Removal of established trees and impact on local fauna:
As discussed in section 2.7.3 of this report, the proposed development would result in the removal of 8 trees numbered 4, 5 ,7, 8, 11, 13 14, 15, 23 and 24. Whilst tree loss is not ideal, there is sufficient space on the site to provide compensatory plantings of locally occurring species to maintain the local amenity.
5.1.5 Dwelling houses too large:
As detailed in section 2.7 of this report, the dwelling houses comply with the numerical standards contained within the HDCP with respect to bulk and scale.
5.1.6 Construction Impacts:
Temporary construction noise would result if approval were obtained and the dwellings constructed. Notwithstanding, conditions of consent would limit hours of construction to ensure neighbourhood amenity is maintained throughout the temporary construction phase.
5.1.7 Privacy concerns to adjoining properties, specifically No. 3 Taylor Place:
This matter is discussed in detail in section Part 2.7.5 of this report.
5.2 Public Agencies
5.2.1 Rural Fire Service
The application was forwarded to the NSW Rural Fire Service who raised no objections to the proposal subject to General Terms of Approval with regard to construction materials of the dwelling houses and the creation of an asset protection zone.
6. THE PUBLIC INTEREST
Section 4.15(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 not considered to have satisfactorily addressed Council’s assessment criteria and would provide a development outcome that, on balance, would result in a negative impact for the community. Accordingly, it is considered that the approval of the proposed development would not be in the public interest.
CONCLUSION
The application proposes the demolition of structures, Torrens title subdivision of one lot into two and the construction of a two-storey dwelling house on each new lot.
The proposal does not comply with the minimum lot size development standard contained within the Hornsby Local Environmental Plan 2013. The written Clause 4.6 request to vary the development standard is unsatisfactory with respect to Clause 4.6(3) as it does not demonstrate that the standard is reasonable or unnecessary and that there are sufficient environmental grounds to vary the standard. Concerns are raised that approval of the proposal would result in an undesirable precedent.
Council received 14 individual submissions and a petition with 42 signatures during the public notification period. The matters raised have been addressed in the body of the report.
Having regard to the circumstances of the case, refusal of the application is recommended.
Note: At the time of the completion of this planning report, no persons have made a Political Donations Disclosure Statement pursuant to Section 10.4 of the Environmental Planning and Assessment Act 1979 in respect of the subject planning application.
RESPONSIBLE OFFICER
The officer responsible for the preparation of this report is Stephen Dobbs.
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Cassandra Williams Major Development Manager - Development Assessments Planning and Compliance Division |
Rod Pickles Manager - Development Assessments Planning and Compliance Division |
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1.⇩ |
Locality Plan |
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2.⇩ |
Clause 4.6 |
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3.⇩ |
Subdivision Plan |
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4.⇩ |
Architectural Plans |
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5.⇩ |
Landscape Plan |
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File Reference: DA/43/2021
Document Number: D08103736
SCHEDULE 1
1. In accordance with Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979, the proposal does not comply with Clause 4.1 (minimum subdivision lot size) of the Hornsby Local Environmental Plan 2013.
a) In accordance with Clause 4.6(4)(a)(i) of the Hornsby Local Environmental Plan 2013, the written Clause 4.6 request to vary the development standard is unsatisfactory with respect to Clause 4.6(3) as it does not demonstrate that the standard is unreasonable or unnecessary and that there is sufficient environmental grounds to vary the standard.
b) In accordance with Clause 4.6(4)(a)(ii) of the Hornsby Local Environmental Plan 2013, the proposal is not considered to be in the public interest as approval of the proposal would result in an undesirable precedent.
2. In accordance with Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposal does not comply with the following desired outcomes or the prescriptive measures of the Hornsby Development Control Plan 2013:
a) Part 3.1.2 Setbacks as Dwelling 1 does not comply with the rear setback control.
b) Part 3.1.5 Sunlight and Access as Dwelling 2 overshadows the private open space of Dwelling 1.
c) Part 6.2.1 Residential Lands Subdivision as the proposal does not provide for 500m2 allotments.
3. In accordance with Section 4.15(1)(c) of the Environmental Planning and Assessment Act 1979, the site is not suitable for the proposed development as it is undersized and does not comply with Clause 4.1 (minimum subdivision lot size) of the Hornsby Local Environmental Plan 2013.
4. In accordance with Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979, the development would not be in the public interest as the proposal is contrary to the local planning controls and would create an undesirable precedent for the Clause 4.1 (minimum subdivision lot size) development standard of the Hornsby Local Environmental Plan 2013.
- END OF REASONS FOR REFUSAL -
