Agenda of Local Planning Panel meeting

LPP Report No. LPP13/21

Local Planning Panel

Date of Meeting: 26/05/2021

1 FURTHER REPORT - 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

DA No:	DA/43/2021 (Lodged 15 January 2021)
Description:	Demolition of a dwelling house, Torrens title subdivision of one lot into two and construction of a dwelling house on each lot
Property:	Lot 1 Sec 10 DP 758836, No. 1 Taylor Place, Pennant Hills
Applicant:	Champion Homes Sales Pty Ltd
Owner:	Andrew Kevin Lewis
Estimated Value:	$1,065,000
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 amended 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 contravene the standard. The submission is not considered well founded and is not supported by Council.

· A total of 23 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 Shire Council Local Planning Panel (HLPP) as 10 or more unique submissions were received by way of objection.

· It is recommended that the application be refused.

RECOMMENDATION

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.

On 31 March 2021, the HLPP considered the proposal and Council assessment report LPP/3/21 which recommended refusal of the application. The Panel resolved to defer the determination of the application and required the preparation and submission of the following to Council, within 14 days:

1. A revised Clause 4.6 request for variation that adequately addresses the relevant matters in clause 4.6 with respect to the standard being varied.

2. Amended plans that reduce the footprint of the proposed dwellings to address the overshadowing of POS of Dwelling 1 and minimise tree and associated habitat loss.

On 15 May 2021, the applicant submitted a revised Clause 4.6 request and amended architectural plans with the following changes:

· Reduced building footprint of Dwelling 1 by 6.94m²and an overall reduction in floor area by 13.06m².

· Reduced building footprint of Dwelling 2 by 1.94m²and an overall reduction in floor area by 10.54m².

· Increased building separation between the garage of Dwelling 2 and the private outdoor space of Dwelling 1 by 850mm.

· Increase in size of the private open space of Dwelling 1 and a reduction in overshadowing impacts by Dwelling 1.

· Retention of 3 additional trees fronting Thorn street being Nos. 9 Cotoneaster sp. (weed species), 11 Ulmus pavifola (Chinese elm) and 17 Olea sp (Olive tree).

· A reduction in the proposed building heights of 365mm for Dwelling 1 and 549mm for Dwelling 2.

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.

Proposed Lot 101

· Lot 101 has an area of 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 ground floor of the dwelling house would comprise a double garage, front porch and entry room, living room, family room, kitchen/dining, powder room, bedroom, laundry and outdoor living area.

· The first floor would comprise a master bedroom with walk-in robe and ensuite, 3 additional bedrooms, bathroom and water closet, and a balcony.

Proposed Lot 102

· Lot 102 has an area of 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 ground floor of the dwelling house would comprise a double garage, front porch and entry room, living room, family/ kitchen/ dining, powder room, bedroom, laundry and outdoor living area.

· The first floor would comprise a master bedroom with walk-in robe and ensuite, 3 additional bedrooms and a bathroom

Stormwater from both allotments would drain to Thorn Street via on-site detention.

Various retaining walls are proposed within each new lot.

The amended plans indicate the removal of 10 trees 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. The proposal is compliant with this provision as the dwelling houses are 7.9m and 7.7m in height respectively.

2.1.3 Minimum Subdivision Lot Size

Clause 4.1 of the HLEP provides that the minimum subdivided lot size is not to be less than the minimum size shown on the Lot Size Map in relation to that land. For the subject site, the minimum lot size is 500m².

The application seeks to contravene Clause 4.1 of the HELP as proposed Lot 102 would be 490m² and does not meet the 500m² requirement (2% variation).

The applicant has provided a written request to vary the development standard under the provisions of Clause 4.6 of HLEP, which is discussed in detail in Section 2.1.4 below.

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, and it can be demonstrated that sufficient environmental planning grounds are present to justify contravening a development standard.

The application seeks to vary Clause 4.1of the HELP as proposed Lot 102 would be 490m² and does not meet the 500m² requirement (2% variation).

The specific objectives of Clause 4.1 Minimum Lot Size 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 applicant has made a submission in support of a contravention of the development standard in accordance with Clause 4.6 of the HLEP. Clause 4.6 provides that 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.

Council must be satisfied that the written request provided by the applicant under Clause 4.6 addresses both the unreasonable and unnecessary test and demonstrates sufficient environmental planning grounds to justify contravening the development standard. These matters are discussed below.

2.1.4.1 Unreasonable or Unnecessary

The written request prepared by Champion Homes provides justification in part as follows:

Whether compliance with the development standard is unreasonable or unnecessary

· In relation to objective (a), the proposed development (as per the latest amended plans) complies with all other relevant controls including building height and FSR controls, and the various DCP controls, including overshadowing and setbacks. In this way it demonstrates the capacity of the proposed subdivision to “accommodate development that is suitable for its purpose, consistent with that which would be achieved on a compliant lot size configuration.

· The locality is characterised by a variety of building forms and the subdivision pattern varies. The proposed two allotments will accommodate development which demonstrates a high level of residential amenity and compliance with the LEP and DCP requirements in circumstances where the density is appropriate.

· The lot sizes in the immediate vicinity of the subject site in Taylor Place and Thorn Street are as follows:

*Taylor Place*		*Thorn Street*
*No.*	*Lot Size*	*No.*	*Lot Size*
1	990m²	38	822m²
2	777m²	39	759m²
3	876m²	40	871m²
4	790m²	41	765m²
5	879m²	42	872m²
6	937m²	43	846m²
7	879m²	44	929m²
8	923m²	45	803m²
9	942m²	46	969m²
10	936m²	47	736m²
11	849m²	49	740m²
12	1,071m²	51	745m²
14	486m²	53	740m²
		55	742m²

· Within Taylor Place, the range of lot sizes is between 486m² and 1,071m² with the result that on a strict numerical application of the minimum lot size standard the only lot which could possibly obtain subdivision approval is 12 Taylor Place. The next largest lot (apart from the subject site) is 949m² in area.

· Along Thorn Street, there are again various types and sizes of allotments and in the immediate vicinity of the proposed development at 1 Taylor Place the range of lot sizes is between 736m² and 745m² opposite the subject site and 822m² and 871m² to the south of the subject site.

· 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 in the area by providing two street fronting dwellings at each of the Taylor Place and Thorn Street elevations.

· 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.

· In terms of precedents in the area, on 25 March 2020 the LPP actually considered a clause 4.6 variation request in relation to minimum subdivision lot size in respect of 23 Westwood Street Pennant Hills (DA/1100/2019).

· That was a 1,128m² irregular shaped site with two existing detached dwellings. The proposed subdivision yielded lots of 687.1m² and 337.9m² in area (amounting a variation of 32.42% to the development standard). Although there were existing dwellings on the site and it was also taken into account that the proposed change was from a prohibited use (i.e. dual occupancy) to a permissible use, the proposal was approved, reflecting the flexibility which clause 4.6 permits where strict compliance with a development standard would otherwise be unreasonable or unnecessary or tends to hinder the attainment of the objectives of the zone. It was also considered relevant that the proposed (non-complying) subdivision would in that case provide potential for more affordable housing options and would mean that the two lots (if so desired) could be sold separately thereby allowing potential home buyers the opportunity to buy land of a suitable size for residential purposes - which goes to the heart of the zone objectives.

· Another example is 42 The Esplanade Thornleigh (DA/350/2012) where the proposal was for alterations to the existing dwelling and subdivision of one allotment into two. The site area was 963.9m² and the second lot comprised 493.9m² (or 92.8% of the minimum allotment size). It was determined that the proposed subdivision plan met the underlying objectives of the zone by providing an additional house site for the housing needs of the population of Hornsby and it also satisfy the DCP controls in terms of building envelope, setbacks and private open space. The Council DA assessment report concluded that the “minor non-compliance of 7.2% of the minimum area standard” would not hinder the orderly and economic use and development of the land and, at the same time, would not set an undesirable precedent for the area.

· A more recent example is 110 Dartford Road, Thornleigh (DA/103/2017) involving Torrens title subdivision of an approved multi-unit housing development comprising two detached dwellings into two allotments, comprising lots of 432m² and 515m² in area (excluding rights of access). The subdivision was approved by the then Independent Hearing and Assessment Panel (IHAP4/18) notwithstanding the 13.6% variation to the minimum lot size requirement as it was accepted that the “numerical exceedance of the minimum subdivision lot size is minor and does not compromise the quality of the development outcome”.

· Conversely, an example of a development that just achieved numerical compliance with the minimum lot size and which is close to the subject site is a battle-axe development at 14 Thorn Street, Pennant Hills (DA/1589/2014). The original site was 1,174.7m² and the new proposed lots were 570m² and 500m². The newly created lot at 14 Thorn Street Pennant Hills met the minimum subdivision lot size area and complied with the prescriptive measures within the DCP.

· The same result is achieved with the proposed development of 1 Taylor Place Pennant Hills except for the very minor non-compliance of 2% in the minimum lot size. Furthermore, the resulting lot size of proposed Lot 102 does not prevent development (i.e., dwelling house) from achieving a high level of residential amenity that meets or outperforms the requirements of the LEP and DCP.

· 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, solar access, improved tree retention, driveways etc. associated with residential development permissible in the zone.

· In short, the 500m² minimum subdivision lot size cannot be seen as a kind of fixture or absolute development standard which cannot be varied and “cannot be seen as the end to be achieved by the clause” in view of the flexibility and “facultative function“ inherent in Clause 4.6.

Council considers that the applicant’s written request does not sufficiently address why compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. In regard to the statements listed above the following comments are made.

The justification notes that lot sizes vary in Taylor place from 486m² to 1,071m². Council notes that the 486m² lot is part of Jack Thompson Reserve with a total area of approximately 2800m². Therefore, as listed within the applicant’s statement, residential lot sizes within the direct vicinity of the site range in size from 736m² to 1,071m². The proposed allotment size of 490m²would therefore be inconsistent with the character of the direct surrounding streets.

With regard to precedence within the area, the statement suggests that Council cannot see the 500m² minimum subdivision lot size as a “kind of fixture or absolute development standard which cannot be varied”. Clause 4.6 has been accepted by Council in numerous circumstances to contravene the minimum lot size where sufficient environmental planning grounds have been demonstrated. In the cases of DA/1100/2019 and DA/103/2017 listed above, both matters were considered by the HLPP and both demonstrated suitable justification. In the case of DA/1100/2019, the parent lot (1,128m²) could be subdivided to achieve two lots exceeding 500m², however a greater planning outcome was demonstrated with an undersized allotment to retain both existing dwellings. With regard to DA/103/2017, the existing parent lot contained a dwelling house and an active approval for multi-unit housing (DA/1510/2010). The applicant demonstrated that a subdivision would change a non-conforming land use (multi-dwelling housing) into a permissible land use (dwelling house). With regard to DA/350/2012, the subdivision was assessed under different environmental planning instruments, being Hornsby Local Environmental Plan 1994 and State Environmental Planning Policy No. 1 Development Standards and cannot be directly compared.

In summary, the written request does not demonstrate compliance with the development standard in unreasonable or unnecessary in the specific circumstances of this development application.

2.1.4.2 Environmental Planning Grounds

In addition to demonstrating that compliance is unreasonable or unnecessary, Clause 4.6(3)(b) of the HLEP requires that there are sufficient environmental planning grounds to justify contravening the development standard. The written request prepared by Champion Homes provides justification in part as follows:

· The proposed lot sizes each suitably accommodate the detached dwelling houses and will not result in in any significant adverse environmental amenity impacts, such as overshadowing, visual or acoustic privacy, or loss of views. The revised plans have further reduced the height, bulk and scale of the dwellings and achieve full compliance with the DCP prescriptive controls for the site.

· The resulting development will achieve a contextually appropriate building form on each of the two lots that will not be inconsistent with other developments within the immediate locality which comprises a variety of allotment sizes and development types.

· 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 proposed subdivision permits the land to achieve its full development potential which would not otherwise be achieved if the land were maintained as a single allotment. It is both site specific and accords with the zone objectives by allowing separate titles and increasing the availability of housing stock.

Council considers that the environmental planning grounds stated within the written request are insufficient with respect to Clause 4.6(3)(b).

Council does not support the applicant’s argument that if a Hornsby Development Control Plan 2013 (HDCP) compliant dwelling can be erected on a lot smaller than 500m², it is therefore appropriate to vary the minimum lot size. This notion is not unique to the subject site and could be applied to a lot substantially smaller than 500m². If this rational is adopted by Council, a precedent could be set that would effectively degrade the minimum lot size 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.

2.1.4.3 Public Interest and Clause 4.6(4)

Clause 4.6(4) states that 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, and

(b) The concurrence of the Planning Secretary has been obtained.

With regard to part (a)(i), the Council considers that the written request does not adequately address the required matters to be demonstrated within subclause (3).

With regard to part (a)(ii), the proposed development is not considered to be in the public interest. Whilst the submitted Clause 4.6 request suggests that the development is consistent with the objectives of this clause, it does not include a context that is unique to the subject site. Approval of the application would result in an undesirable precedent for undersized allotments without site specific justification. There are countless other undersized sites within the Hornsby Shire that the applicant’s justification could apply to. 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.

With regard to (b) the concurrence of the Planning Secretary has been assumed.

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
Control	Proposal	Requirement		Complies
*Part 6 - Subdivision*
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	7.9m		8.5m	N/A
No. of Storeys	2		2 + attic	N/A
Site Coverage	33%		50%	Yes
Floor Area	270m²		330m²	Yes
Setbacks
- Front (Thorn Street)	6.25m with <1/3 building width 5.08m		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	47%		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	7.7m		8.5m	Yes
No. of Storeys	Existing		2 + attic	Yes
Site Coverage	33%		50%	Yes
Floor Area	262m²		330m²	Yes
Setbacks
- Front	7m		6m	Yes
- Side (northern)
- Ground floor	1.2m		900mm	Yes
- First floor	4.5m		1.5m	Yes
- Side (southern)
- Ground floor	2m		900mm	Yes
- First floor	3m		1.5m (1st floor)	Yes
- Rear
- Ground floor	6.3m		3m	Yes
- First floor	8m		8m	Yes
Landscaped Area	51%		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 for proposed Lot 102 and the rear setbacks for Dwelling 1 on proposed Lot 101. 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

The amended application lists 10 trees to be removed and a further 3 trees to be retained being Nos. 9 Cotoneaster sp. (weed species), 11 Ulmus pavifola (Chinese elm) and 17 Olea sp (Olive tree).

An arboricultural impact assessment (AIA) prepared by Arbor Pride was submitted in support of the application. The 10 trees and shrubs to be removed are listed as Nos. 4, 5, 7, 8, 13, 14, 15, 22, 23, 24 comprising the following species:

· Syzygium sp. (Roseapple Lilly Pilly)

· Viburnum tinus (Flowering shrub)

· Gordonia axillaris (Fried egg plant)

· Camellia sp. (Camellia)

· Liquidamar styraciflua (Liquidambar)

· Robina pseudoacia (Weed 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, 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 Team does not consider the species required for removal to be highly significant and therefore could be offset through replacement planting.

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 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 235m², the non-compliance is supported.

2.7.5 Privacy

Dwelling 1

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. Dwelling 1 would provide all living areas on the ground floor with the exception of a small 5m² balcony fronting Thorn Street. Given the small balcony faces the street and not another adjoining property, no privacy issues are anticipated.

With regard to windows, first floor windows are generally orientated toward the dual street frontages and not the existing neighbouring properties. Windows facing Dwelling 2 to the north would not directly face the private open space and are considered acceptable with regard to privacy impacts.

Dwelling 2

Three first floor windows are proposed on the northern elevation (adjoining the side yard of No. 47 Thorn Street), 2 of these windows would serve bedrooms with high sill heights of 1.5m and the other would serve a stairwell area. Generally, no adverse privacy impacts are anticipated, notwithstanding the window serving the stairwell area could be also be increased to a sill height of 1.5m in order to eliminate any possible overlooking.

Privacy concerns are raised with the eastern windows serving bedroom 3 and 4 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 above the finished floor level.

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 amended shadow diagrams submitted with the application indicate that the private open space of the subject and adjoining properties would receive at least 3 hours of unobstructed sunlight to at least half of their private open space between 9am and 3pm.

In this regard the proposal as amended considered acceptable.

2.7.8 Stormwater

The application proposes stormwater from 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) of 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.

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.

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”.

The proposed development was placed on public exhibition and was notified to adjoining and nearby landowners between 18 January 2021 to 9 February 2021 as well as 15 April 2021 to 3 May 2021 in accordance with the Hornsby Community Participation Plan. During this period, Council received 23 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.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

1 SUBMISSION RECEIVED OUT OF MAP RANGE

23 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 and amended Clause 4.6 request does not provide sufficient justification to contravene 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 directly required in the assessment of this application. 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. Council consider that 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 10 trees numbered 4, 5, 7, 8, 13, 14, 15, 22, 23, and 24. Council considered that 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

Council considers that the proposal is generally acceptable with regard to privacy impacts, however if approval were obtained conditions would be recommended to increase the sill height of windows within Dwelling 2. This matter is further discussed in detail in Section 2.7.5 of this report.

5.1.8 Overshadowing impacts to adjoining properties

The submitted solar diagrams indicate that the dwelling houses would not overshadow adjoining properties and are compliant with controls contained within the HDCP.

5.1.9 Earthworks adjoining No. 38 Thorn Street and boundary fence

A submission raises concerns with the finished level of the landing for Dwelling 2 adjoining the northern boundary and impact it may have on a garden bed within No. 28 Thorn Street.

As per the submitted northern elevation plan, the finished floor level of the landing and step height are shown to be generally at grade or slightly lower (up to 400mm). Further no retaining walls are proposed as part of this development. Therefore, it is considered unlikely that the proposed ground levels would substantially impact upon No. 38 Thorn Street. If approval of the application were obtained, conditions would be recommended that the construction of any replacement boundary fencing is subject to negotiation between the relevant land owners in accordance with the Dividing Fences Act 1991.

5.1.10 Consideration of submission

Submissions received during the second notification period allege Council and the panel did not consider a submission received by the residents of No. 38 Thorn Street during the HLPP meeting on 31 March 2021. Council can confirm that the submission was received, its matters considered in the assessment report and a copy of the submission was provided to the panel. The notification map has been updated to include the identification of the property as one where a submission was received.

5.1.11 Overdevelopment and not in keeping with the character of the area

Submissions raise concerns that the proposal is an overdevelopment of the site and the two dwelling houses would not be in keeping with the local character of the area.

With respect to these concerns, Council raise similar concerns that the site is not suitable for the proposed subdivision and construction of two dwelling houses as it does not meet the minimum 500m² lot size development standard.

With regard to character, the site is surrounded by 1 and 2 storey dwelling houses on varying large sized allotments with established trees within the front and rear setbacks. Council does not raise concerns with the specific design of the dwelling houses as they would include face brick and pitched roofs which are not out of character with the surrounding dwellings. Further, sufficient and compliant front setbacks would allow for retention and planting of trees.

5.1.12 Financial gain

Submissions raise concerns that the development is for financial gain only.

In addressing this concern, Section 4.15 of the Act and the HLEP does not require the consent authority to take into consideration whether the development is for profit or not.

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 23 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.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

Attachments:

1.⇩	Locality Plan
2.⇩	Development Plans
3.⇩	Revised Clause 4.6
4.⇩	Landscape Plan

File Reference: DA/43/2021

Document Number: D08147271

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 contravene 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 are sufficient environmental grounds to contravene 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) In accordance with Part 6.2.1 Residential Lands Subdivision of the Hornsby Development Control Plan 2013, the proposal does not provide for minimum 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 -