Agenda of Local Planning Panel meeting - Wednesday, 23 February 2022

6. Building Code of Australia

1.	Locality Plan
2.	Architectural Plans
3.	Shadow Diagrams

File Reference: DA/1132/2021

Document Number: D08305970

SCHEDULE 1

GENERAL CONDITIONS

The conditions of consent within this notice of determination have been applied to ensure that the use of the land and/or building is carried out in such a manner that is consistent with the aims and objectives of the relevant legislation, planning instruments and council policies affecting the land and does not disrupt the amenity of the neighbourhood or impact upon the environment.

Note: For the purpose of this consent, the term ‘applicant’ means any person who has the authority to act on or the benefit of the development consent.

Note: For the purpose of this consent, any reference to an Act, Regulation, Australian Standard or publication by a public authority shall be taken to mean the gazetted Act or Regulation, or adopted Australian Standard or publication as in force on the date that the application for a construction certificate is made.

1. Approved Plans and Supporting Documentation

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

Approved Plans

*Plan No.*	*Plan Title*	*Drawn by*	*Dated*	*Council Reference*
P-01 Issue C	Site Plan & Analysis	GJ Gardner	26.02.2022
P-02 Issue C	Ground Floor Plan	GJ Gardner	26.02.2022
P-03 Issue C	Level One Floor Plan	GJ Gardner	26.02.2022
P-04 Issue C	Buildings Elevations	GJ Gardner	26.02.2022
P-05 Issue C	Building Elevations	GJ Gardner	26.02.2022
P-08 Issue C	Building Sections	GJ Gardner	26.02.2022
P-09 Issue C	Building Sections	GJ Gardner	26.02.2022
P-11 Issue C	Concept Landscape Plan	GJ Gardner	26.02.2022
P-12 Issue C	Erosion & Sediment Plan	GJ Gardner	26.02.2022

Supporting Documentation

*Document Title*	*Prepared by*	*Dated*	*Council Reference*
BASIX Certificate No. 1244518S_02	Energy Advance	26.01.2022	D08337161
Arboricultural Impact Assessment Report	Seasoned Tree Consulting	18.10.2021	D08280956
Waste Management Notes (Dwg No. P-13 Issue C)	GJ Gardner	26.02.2022	D08337160

2. Removal of Trees

a) This development consent permits the removal of three trees numbered T1, T3 and T4 as identified in Appendix 1A (page 25) of the Arboricultural Impact Assessment prepared by Seasoned Tree Consulting dated 18 October 2021.

b) No consent is granted for the removal of trees numbered T2, T5, T6 and T8 as these trees contribute to the established landscape amenity of the area.

Note: The removal of any other trees from the site requires separate approval by Council in accordance with Part 1B.6 Tree and Vegetation Preservation of the Hornsby Development Control Plan, 2013.

3. Tree Pruning

a) This development consent permits the pruning of tree numbered T2 as identified in Appendix 1 – Tree Location/Site Plan (page 24) of the Arboricultural Impact Assessment prepared by Seasoned Tree Consulting dated 18 October 2021.

b) Pruning works must be less than 10 percent of the foliage area in accordance with Australian Standard AS4373 Pruning of amenity trees.

c) All pruning work must be undertaken by an arborist with minimum AQF3 qualifications.

Note: The pruning of any other trees from the site requires separate approval by Council in accordance with Part 1B.6 Tree and Vegetation Preservation of the Hornsby Development Control Plan 2013.

4. Construction Certificate

a) A Construction Certificate is required to be approved by Council or a Private Certifying Authority prior to the commencement of any construction works under this consent.

b) The Construction Certificate plans must be consistent with the Development Consent plans.

5. Section 7.12 Development Contributions

a) In accordance with Section 4.17(1) of the Environmental Planning and Assessment Act 1979 and the Hornsby Shire Council Section 7.12 Development Contributions Plan 2019 - 2029, $5,193.80 must be paid towards the provision, extension or augmentation of public amenities or public services, based on development costs of $519,382.

b) The value of this contribution is current as of 31 January 2022. If the contributions are not paid within the financial quarter that this consent is granted, the contributions payable will be adjusted in accordance with the provisions of the Hornsby Shire Council Section 7.12 Development Contributions Plan and the amount payable will be calculated at the time of payment in the following manner:

$C_PY	=			$C_DC x CPI_PY
				CPI_DC

Where:

$C_PY is the amount of the contribution at the date of Payment.

$C_DC is the amount of the contribution as set out in this Development Consent.

CPI_PY is the latest release of the Consumer Price Index (Sydney – All Groups) at the date of Payment as published by the ABS.

CPI_DC is the Consumer Price Index (Sydney – All Groups) for the financial quarter at the date of this Development Consent.

c) The monetary contributions shall be paid to Council prior to the issue of the first Construction Certificate.

Note: It is the professional responsibility of the Principal Certifying Authority to ensure that the monetary contributions have been paid to Council in accordance with the above timeframes.

Note: The Hornsby Shire Council Section 7.12 Development Contributions Plan may be viewed at www.hornsby.nsw.gov.au or a copy may be inspected at Council’s Administration Centre during normal business hours.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

Detailed plans, specifications and supporting information is required to be submitted to the certifying authority detailing how the proposed building work achieves compliance with the National Construction Code - Building Code of Australia. All building work must be carried out in accordance with the requirements of the National Construction Code - Building Code of Australia.

7. Contract of Insurance (Residential Building Work)

Where residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, this contract of insurance must be in force before any building work authorised to be carried out by the consent commences.

8. Notification of Home Building Act 1989 Requirements

Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being Council) has given Council written notice of the following information:

a) In the case of work for which a principal contractor is required to be appointed:

i) The name and licence number of the principal contractor.

ii) The name of the insurer by which the work is insured under Part 6 of that Act.

b) In the case of work to be done by an owner-builder:

i) The name of the owner-builder.

ii) If the owner-builder is required to hold an owner-builder’s permit under that Act, the number of the owner-builder’s permit.

Note: If arrangements for doing the residential building work are changed while the work is in progress so that the information notified becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being Council) has given Council written notification of the updated information.

9. Sydney Water – Approval

This application must be submitted to Sydney Water for approval to determine whether the development would affect any Sydney Water infrastructure, and whether further requirements are to be met.

Note: Building plan approvals can be obtained online via Sydney Water Tap in^TMthrough www.sydneywater.com.au under the Building and Development tab.

10. Identification of Survey Marks

A registered surveyor must identify all survey marks in the vicinity of the proposed development. Any survey marks required to be removed or displaced as a result of the proposed development shall be undertaken by a registered surveyor in accordance with Section 24 (1) of the Surveying and Spatial Information Act 2002 and following the Surveyor General’s Directions No.11 Preservation of Survey Infrastructure.

11. Stormwater Drainage

The stormwater drainage system for the development must be designed for an average recurrence interval (ARI) of 20 years and be gravity drained in accordance with the following requirements:

a) Discharge to the existing system that connects to Council’s pipe within the Yallambee Road reserve.

b) The stormwater drainage system must be designed by a qualified hydraulic engineer.

12. Internal Driveway/Vehicular Areas

The driveway and parking areas on site must be designed, and a Construction Certificate issued in accordance with Australian Standards AS2890.1, AS3727 and the following requirements:

a) The driveway grade must not exceed 25 percent and changes in grade must not exceed 8 percent per metre.

b) Longitudinal sections shall be submitted to the principal certifying authority in accordance with the relevant sections of AS 2890.1.

13. Appointment of a Project Arborist

a) To ensure the trees that must be retained are protected, a project arborist with AQF Level 5 qualifications must be appointed to assist in ensuring compliance with the conditions of consent and provide monitoring reports as specified by the conditions of consent.

b) Details of the appointed project arborist must be submitted to Council and the PCA with the application for the construction certificate.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

14. Erection of Construction Sign

a) A sign must be erected in a prominent position on any site on which any approved work is being carried out:

i) Showing the name, address and telephone number of the principal certifying authority for the work.

ii) Showing the name of the principal contractor (if any) for any demolition or building work and a telephone number on which that person may be contacted outside working hours.

iii) Stating that unauthorised entry to the work site is prohibited.

b) The sign is to be maintained while the approved work is being carried out and must be removed when the work has been completed.

15. Protection of Adjoining Areas

A temporary hoarding, fence or awning must be erected between the work site and adjoining lands before the works begin and must be kept in place until after the completion of the works if the works:

a) Could cause a danger, obstruction, or inconvenience to pedestrian or vehicular traffic.

b) Could cause damage to adjoining lands by falling objects.

c) Involve the enclosure of a public place or part of a public place.

Note: Notwithstanding the above, Council’s separate written approval is required prior to the erection of any structure or other obstruction on public land.

16. Toilet Facilities

a) To provide a safe and hygienic workplace, toilet facilities must be available or be installed at the works site before works begin and must be maintained until the works are completed at a ratio of one toilet for every 20 persons employed at the site.

b) Each toilet must:

i) Be a standard flushing toilet connected to a public sewer.

ii) Be a temporary chemical closet approved under the Local Government Act 1993.

17. Erosion and Sediment Control

To protect the water quality of the downstream environment, erosion and sediment control measures must be provided and maintained throughout the construction period in accordance with the manual ‘Soils and Construction 2004 (Bluebook)’, the approved plans, Council specifications and to the satisfaction of the principal certifying authority. The erosion and sediment control devices must remain in place until the site has been stabilised and revegetated.

Note: On the spot penalties may be issued for any non-compliance with this requirement without any further notification or warning.

18. Installation of Tree Protection Measures

a) Trees to be retained and numbered T2, T5, T6 and T8 as identified in the Arboricultural Impact Assessment prepared by Seasoned Tree Consulting dated 18 October 2021 must have tree protection measures for the ground, trunk and canopy installed by the project arborist for the duration of construction works, in accordance with the Tree Protection Plan (Appendix 1A, page 25) prepared by Seasoned Tree Consulting dated 18 October 20121.

b) Tree protection fencing for the trees to be retained numbered T2, T5, T6 and T8 must be installed by the engaged AQF 5 project arborist and consist of 1.8 metre high temporary fencing panels installed in accordance with Australian Standard AS4687-2007 Temporary fencing and hoardings.

c) The installation of all required tree protection fencing must include shade cloth attached to the fencing to reduce transport of dust, particulates and liquids from entering the tree protection zone.

d) All tree protection zones must have a layer of wood-chip mulch at a depth of between 150mm and 300mm.

19. Waste Management Details

Prior to the commencement of any works, the on-going waste collection service must be cancelled, and the bins retrieved by the waste collection service provider.

Note: For residential properties, Council is the waste collection service provider.

20. Garbage Receptacle

a) A garbage receptacle must be provided at the work site before works begin and must be maintained until all works are completed.

b) The garbage receptacle must have a tight fitting lid and be suitable for the reception of food scraps and papers.

c) The receptacle lid must be kept closed at all times, other than when garbage is being deposited.

d) Food scraps must be placed in the garbage receptacle and not in demolition and construction waste bins.

REQUIREMENTS DURING CONSTRUCTION

21. Construction Work Hours

a) All works on site, including earth works, must only occur between 7am and 5pm Monday to Saturday.

b) No work is to be undertaken on Sundays or public holidays.

22. Environmental Management

To prevent sediment run-off, excessive dust, noise or odour emanating from the site during the construction, the site must be managed in accordance with the publication ‘Managing Urban Stormwater – Landcom (March 2004) and the Protection of the Environment Operations Act 1997.

23. Council Property

To ensure that the public reserve is kept in a clean, tidy and safe condition during construction works, no building materials, waste, machinery or related matter is to be stored on the road or footpath.

24. Disturbance of Existing Site

During construction works, the existing ground levels of open space areas and natural landscape features, including natural rock-outcrops, vegetation, soil and watercourses must not be altered unless otherwise nominated on the approved plans.

25. Excavated Material

a) Any/all excavated material removed from the site must be classified by a suitably qualified environmental consultant in accordance with the NSW Environment Protection Authority’s Waste Classification Guidelines and Protection of the Environment Operations (Waste) Regulation 2014 prior to disposal to a licensed waste management facility.

b) Tipping dockets for the total volume of excavated material that are received from the licensed waste management facility must be provided to the principal certifying authority prior to the issue of an Occupation Certificate.

26. Landfill Not Permitted

The importation of fill material associated with earthworks, or structural or engineering works, is not permitted as part of this consent.

27. Survey Report

A report(s) must be prepared by a registered surveyor and submitted to the principal certifying authority:

a) Prior to the pouring of concrete at each level of the building certifying that:

i) The building, retaining walls and the like have been correctly positioned on the site.

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

28. Waste Management

All work must be carried out in accordance with the approved waste management plan.

29. Prohibited Actions Within the Fenced Tree Protection Zone

The following activities are prohibited within the approved fenced tree protection zones unless otherwise approved by Council:

a) Soil cutting or filling, including excavation and trenching.

b) Soil cultivation, disturbance or compaction.

c) Stockpiling storage or mixing of materials.

d) The parking, storing, washing and repairing of tools, equipment and machinery.

e) The disposal of liquids and refuelling.

f) The disposal of building materials.

g) The siting of offices or sheds.

h) Any action leading to the impact on tree health or structure.

30. Maintaining the Health of Trees Approved for Retention

The appointed project arborist must monitor and record any and all necessary actions required to maintain tree health and condition for trees numbered T2, T5, T6 and T8 on the approved plans.

31. Maintaining Tree Protection Measures

Tree Protection Measures must be maintained by the project arborist in accordance with Condition Nos. 18 and 29 of this consent for the duration of works.

32. Approved Works Within Tree Protection Zones

a) Where tree root pruning is required for the installation of piers, driveway or underground services, the pruning must be overseen by the AQF 5 project arborist and must be undertaken as follows:

i) Using sharp secateurs, pruners, handsaws or chainsaws with the final cut being clean.

ii) The maximum diameter of roots permitted to be cut is 40mm.

b) No changes of grade within the tree protection zone (TPZ) of retained tree numbered T2 on the approved plans, are permitted.

c) To minimise impacts within the TPZ of trees numbered T2, T5, T6 and T8 on the approved plans, the installation of services must be undertaken as follows:

i) The AQF 5 project arborist must be present to oversee the installation of any underground services which enter or transect the tree protection.

ii) The installation of any underground services which either enter or transect the designated TPZ must be undertaken manually.

iii) For manually excavated trenches the AQF 5 project arborist must designate roots to be retained. Manual excavation may include the use of pneumatic and hydraulic tools.

d) Where scaffolding is required, ground protection must be installed beneath the scaffolding in the following order:

i) Installation of a 100mm deep layer of woodchip.

ii) Installation of geotextile fabric ground covering.

iii) Installation of scaffold boarding above the woodchip and geotextile fabric.

33. Building Materials and Site Waste

The stockpiling of building materials, the parking of vehicles or plant, the disposal of cement slurry, waste water or other contaminants must be located outside the tree protection zones as prescribed in the conditions of this consent of any tree to be retained.

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

34. Fulfilment of BASIX Commitments

The applicant must demonstrate the fulfilment of BASIX commitments pertaining to the development.

35. Damage to Council Assets

To protect public property and infrastructure, any damage caused to Council’s assets as a result of the construction or demolition of the development must be rectified by the applicant in accordance with AUS-SPEC Specifications (www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions. Rectification works must be undertaken prior to the issue of an Occupation Certificate, or sooner, as directed by Council.

36. Replacement Tree Requirements

a) The trees approved for removal under this consent, being trees numbered T1, T3 and T4 must be offset through replacement planting of a minimum of 3 trees.

b) All replacement plantings must be species selected from the ‘Trees Indigenous to Hornsby Shire (as of 1 September 2011)’ document available for viewing on the Hornsby Council’s website http://www.hornsby.nsw.gov.au/environment/flora-and-fauna/tree-management/indigenous-trees

c) The location and size of tree replacement planting must comply with the following:

i) All replacement trees must be located in either front or rear setbacks and planted 4m or greater from the foundation walls of the approved development.

ii) The pot size of the replacement trees must be a minimum 45 litres.

iii) All replacement trees must be a minimum of 3m in height.

iv) All replacement trees must have the potential to reach a mature height greater than 10m.

37. Final Tree Certification

The AQF 5 Project arborist must submit to the Principal Certifying Authority a certificate that includes the following:

a) All tree protection requirements complied with the as approved tree protection plan for the duration of construction works.

b) All completed works relating to tree protection and maintenance have been carried out in compliance with the conditions of consent and approved plans.

c) Dates, times, and reasons for all site attendance.

d) All works undertaken to maintain the health of retained trees.

e) Details of tree protection zone maintenance for the duration of works.

f) A statement to confirm that tree replacement planting meets NATSPEC guidelines and the approved landscape plan.

Note: Copies of monitoring documentation may be requested throughout DA process.

38. Landscaping of Site

All pervious areas of the site and the road reserve adjoining the site must be appropriately landscaped with suitable (preferably indigenous) turf, trees and shrubs to complement the development and prevent erosion of soil in accordance with the approved Landscape Plan.

Note: Advice on suitable species for landscaping can be obtained from Council’s planting guide ‘Indigenous Plants for the Bushland Shire’, available at www.hornsby.nsw.gov.au.

- END OF CONDITIONS -

ADVISORY NOTES

The following information is provided for your assistance to ensure compliance with the Environmental Planning and Assessment Act, 1979, Environmental Planning and Assessment Regulation 2000, other relevant legislation and Council’s policies and specifications. This information does not form part of the conditions of development consent pursuant to Section 4.17 of the Act.

Environmental Planning and Assessment Act 1979 Requirements

The Environmental Planning and Assessment Act 1979 requires:

· The issue of a construction certificate prior to the commencement of any works. Enquiries can be made to Council’s Customer Services Branch on 9847 6760.

· A principal certifying authority to be nominated and Council notified of that appointment prior to the commencement of any works.

· Council to be given at least two days written notice prior to the commencement of any works.

· Mandatory inspections of nominated stages of the construction inspected.

· An occupation certificate to be issued before occupying any building or commencing the use of the land.

Long Service Levy

In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, a ‘Long Service Levy’ must be paid to the Long Service Payments Corporation or Hornsby Council.

Note: The rate of the Long Service Levy is 0.35% of the total cost of the work.

Note: Hornsby Council requires the payment of the Long Service Levy prior to the issue of a construction certificate.

Tree and Vegetation Preservation

Hornsby Development Control Plan 2013 Tree and Vegetation Preservation provisions have been developed under Council’s authorities contained in State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 and the Environmental Planning and Assessment Act 1979.

In accordance with these provisions a person must not cut down, fell, uproot, kill, poison, ringbark, burn or otherwise destroy the vegetation, lop or otherwise remove a substantial part of the trees or vegetation to which any such development control plan applies without the authority conferred by a development consent or a permit granted by Council.

Fines may be imposed for non-compliance with the Hornsby Development Control Plan 2013.

Note: A tree is defined as a long lived, woody perennial plant with one or relatively few main stems with the potential to grow to a height greater than three metres (3m). (HDCP 1B.6.1.c).

Covenants

The land upon which the subject building is to be constructed may be affected by restrictive covenants. Council issues this approval without enquiry as to whether any restrictive covenant affecting the land would be breached by the construction of the building, the subject of this consent. Applicants must rely on their own enquiries as to whether or not the building breaches any such covenant.

Dial Before You Dig

Prior to commencing any works, the applicant is encouraged to contact Dial Before You Dig on 1100 or www.dialbeforeyoudig.com.au for free information on potential underground pipes and cables within the vicinity of the development site.

Telecommunications Act 1997 (Commonwealth)

If you are aware of any works or proposed works which may affect or impact on Telstra’s assets in any way, you are required to contact: Telstra’s Network Integrity Team on Phone Number 1800810443.

Asbestos Warning

Should asbestos or asbestos products be encountered during demolition or construction works, you are advised to seek advice and information prior to disturbing this material. It is recommended that a contractor holding an asbestos-handling permit (issued by SafeWork NSW) be engaged to manage the proper handling of this material. Further information regarding the safe handling and removal of asbestos can be found at:

Alternatively, telephone the SafeWork NSW on 13 10 50.

LPP Report No. LPP1/22

Local Planning Panel

Date of Meeting: 23/02/2022

2 DA/581/2020 - ALTERATIONS AND ADDITIONS TO EXISTING WAREHOUSE AND STRATA SUBDIVISION - 35E SEFTON ROAD, THORNLEIGH

EXECUTIVE SUMMARY

DA No:	DA/581/2020 (Lodged 21 July 2020)
Description:	Alterations and additions to existing warehouse and strata subdivision
Property:	Lot 7 DP 1260122, No. 35E Sefton Road, Thornleigh
Applicant:	Thornleigh Holdings Pty Ltd
Owner:	Thornleigh Holdings Pty Ltd
Estimated Value:	$973,500
Ward:	B Ward

· The proposed development does not comply with the maximum building height development standard prescribed under Clause 4.3 ‘Height of buildings’ of the Hornsby Local Environmental Plan 2013. A request to contravene the development standard in accordance with Clause 4.6 ‘Exceptions to development standards’ has been submitted. The request is considered to be well founded.

· A total of 57 submissions have been received in respect of the application.

· The application is required to be determined by the Hornsby Local Planning Panel as the proposal would contravene the HLEP development standard for maximum height of buildings by more than 10 percent. The application is also 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 approved.

RECOMMENDATION

THAT Hornsby Local Planning Panel assume the concurrence of the Secretary of the Department of Planning and Environment pursuant to Clause 4.6 of the Hornsby Local Environmental Plan 2013 and approve Development Application No. DA/581/2020 for alterations and additions to an existing industrial building and strata subdivision at Lot 7 DP 1260122, No. 35E Sefton Road, Thornleigh subject to the conditions of consent detailed in Schedule 1 of LPP Report No. LPP1/22.

BACKGROUND

On 30 September 1976, Council at its meeting resolved to approved development application No. 135/76 for extension to an existing industrial premises for use as a can making factory and warehouse.

On 10 July 2018, Complying Development Certificate No. J180296 (Council ref: CDP/663/2018) was issued for the demolition of an existing industrial building at No. 50A Duffy Avenue, Thornleigh. The approved Demolition Plan illustrates that a 3,704m² ‘existing warehouse’ was retained.

On 19 December 2019, the Hornsby Local Planning Panel resolved to approve DA/510/2018 for the Torrens title subdivision of one lot into six as a staged development at No. 50A Duffy Avenue, Thornleigh. The subject site was created as a result of this subdivision.

On 6 June 2019, Complying Development Certificate No. J190194 (Council ref: CDP/493/2019) was issued for the modification of an existing warehouse and construction of a new retaining wall and concrete driveway at No. 50A Duffy Avenue, Thornleigh. The approved ‘modification of an existing warehouse’ corresponds to works undertaken to the industrial building located on the subject site.

On 25 June 2020, DA/487/2020 was lodged proposing the change of use of the existing industrial building on the site to a warehouse and operating 24 hours per day, 7 days per week. No physical works to the industrial building or the installation of building/ businesses identification signage was proposed as part of this application as these works are proposed with the subject application. DA/487/2020 was subsequently withdrawn by the applicant on 20 August 2021.

application history

On 21 July 2020, the subject application was lodged.

On 31 July 2020, the application was publicly notified until 13 August 2020.

On 11 August 2020, the public notification period was extended for a further 14 days to 27 August 2020 due to a failure to produce evidence of an erected notification sign.

On 22 September 2020, Council requested amended architectural plans, an amended traffic and parking assessment and swept path diagrams to enable a full and proper assessment of the application to be made.

On 21 January 2021, the application was renotified after the submission of amended architectural plans, an amended acoustic report, an amended traffic and parking assessment report and a noise management plan. The renotification period ended on 11 February 2021.

On 8 June 2021, Council met with the applicant to discuss operating hours as proposed under DA/487/2020 and the building height variation as proposed under the subject application.

On 27 August 2021, Council requested amendment of the application to clarify the proposed development and to maintain consistency between all supporting documentation due to the withdrawal of DA/487/2020.

On 3 September 2021, the applicant submitted an amended Statement of Environmental Effects, an amended Clause 4.6 written request, an amended Waste Management Plan and legal advice with respect to the existing use of the industrial building as a warehouse.

SITE

The 6,885m² battle-axe site is located on the southern side of Sefton Road, Thornleigh and contains an industrial building.

Current vehicle access to the site is from Sefton Road via an access handle to the west.

The site falls 9m from the south (rear) to north (front). The north-western portion of the site is bushfire prone.

The site is surrounded by a mix of land uses with industrial to the east and south, medium density residential to the west and low density residential to the north.

The site is burdened by a 9m and variable width Right of Carriageway, a 9m and variable width Easement for Services, a 9m wide and variable width Easement to Drain Water, a 1m wide Easement for Pedestrian Egress and a 1.5m wide Easement for Letterboxes and Access.

PROPOSAL

The application proposes alterations and additions to and strata subdivision of an existing industrial building comprising:

· Demolition of the existing roof and increase of building height to 13.4m.

· Construction of 4 internal fire walls to create 5 individual units.

· Construction of 5 loading doors to serve each individual unit.

· Construction of 5 mezzanine offices to serve each individual unit.

· Strata subdivision of the industrial building to create 5 individual units:

o Unit 1: GFA 677.95m² (including 32.92m² mezzanine).

o Unit 2: GFA 713.33m² (including 32.85m² mezzanine).

o Unit 3: GFA 740.07m² (including 32.85m² mezzanine).

o Unit 4: GFA 740.07m² (including 32.85m² mezzanine).

o Unit 5: GFA 737.12m² (including 32.85m² mezzanine).

The application proposes 39 car parking spaces located south of the building to serve the development.

ASSESSMENT

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 North District Plan is a guide for implementing A Metropolis of Three Cities - the Greater Sydney Region Plan at a District level and is a bridge between regional and local planning.

The plans set strategy and actions for accommodating Sydney’s future population growth and identifies key targets such as dwelling numbers, infrastructure planning, liability, sustainability and productivity. An important vision of the strategy involves managing and maintaining industrial land close to centres and transport in order to ensure critical services are available to support businesses and residents.

Part 5 of the Metropolis of Three Cities relates to “Productivity” and a key objective is to ensure industrial and urban services land is planned, retained and managed. It defines a light industry as a “wide range of business that service other business and populations. Include warehousing, freight and logistics, construction and building supplies, and domestic storage”. The strategy notes that light industry should be located on mixed lot sizes depending on the sizes and needs of the business as well as being located close to surrounding residential and commercial community they directly serve.

The proposed development is considered consistent with A Metropolis of Three Cities and the Northern District Plan, by retaining industrial land and enabling further development that would serve a range of uses to support a growing population.

2. STATUTORY CONTROLS

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 IN1 General Industrial under the HLEP. The objectives of the IN1 zone are:

· To provide a wide range of industrial and warehouse land uses.

· To encourage employment opportunities.

· To minimise any adverse effect of industry on other land uses.

· To support and protect industrial land for industrial uses.

· To permit other land uses that provide facilities or services to meet the day-to-day needs of workers in the area.

The proposed development would be used as warehousing units falling within the definition of ‘warehouse or distribution centres’ defined in the HLEP as follows:

Warehouse or distribution centre means a building or place used mainly or exclusively for storing or handling items (whether goods or materials) pending their sale, but from which no retail sales are made, and includes local distribution premises.

‘Warehouse or distribution centres’ are permissible in the zone with Council’s consent. The proposed use is considered consistent with the objectives of the zone as it would support and protect industrial land for industrial uses.

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 shown for the land on the Height of Buildings Map. The maximum permissible height for the subject site is 10.5m. The proposal does not comply with this provision as it proposes a building height of 13.4m (2.9m/ 27.6% contravention). This departure from development standards is discussed further in Section 2.1.4 of this report.

2.1.3 Floor Space Ratio

In accordance with Clause 4.4 of the HLEP, the maximum floor space ratio (FSR) for the site is 1:1.

The proposed development would have gross floor area (GFA) of 3608.54m². The site area is 6,885m² however, for the purposes of calculating FSR all areas of the site that form part of the access cannot not been included in accordance with Clause 4.1(3A) and 4.1A(4) of the HLEP. Consequently, the resulting site area is 5,762m².

Accordingly, the proposed development would have a FSR of 0.62:1 which complies with the development standard.

2.1.4 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.

The proposed development at its highest point exceeds the maximum building height development standard prescribed under Clause 4.3 of the HLEP by 2.9 metres, or 27.6%. The non-compliant area would comprise the entire roof area.

The objective of the height of buildings development standard is to permit building heights that are appropriate for the site constraints, development potential and infrastructure capacity of the locality.

The applicant has made a submission in support of the contravention of Council’s development standards 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.

(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

There are five common methods by which an applicant can demonstrate that compliance with a development standard is unreasonable or unnecessary in the circumstances of the development. Initially proposed for objections under clause 6 of SEPP 1 in the decision of Wehbe v Pittwater Council [2007] NSWLEC 827 Pearson C summarised and applied these methods to written requests made under Clause 4.6 in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 [61-62]. These five methods are generally as follows:

1. The objectives of the standard are achieved notwithstanding noncompliance with the standard.

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

3. The underlying objective or purpose would be defeated or thwarted if compliance was required and therefore compliance is unreasonable.

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

5. The compliance with development standard is unreasonable or inappropriate due to existing use of land and current environmental character of the particular parcel of land. That is, the particular parcel of land should not have been included in the zone.

It is not required to demonstrate that a development meets multiple methods as listed above, and the satisfaction of one can be adequate to demonstrate that the development standard is unreasonable or unnecessary.

The applicant states that the proposed contravention is considered to be consistent with the objectives of the control and is justified as follows:

· The proposed development is consistent with the existing (and desired) character of the site and the surrounding area. The existing warehouse building is proposed to be retained in order to facilitate the creation of five warehouse units at the site.

· Given that the existing building is set back approximately 55 metres from Sefton Road and approximately 11 metres from the adjoining residential dwellings, the proposal would be adequately screen from the streetscape and separated from the adjoining residential properties and not highly perceptible. It is also noted that when the industrial site is redeveloped to its full potential under other approvals the subject building will not be generally visible from the public road.

· The existing building is also set back 9 metres from the western boundary, which provides adequate separation from the residential properties to the west. Therefore, the proposed contravention of the development standard is not anticipated to result in any built amenity impacts such as view loss, privacy loss or increased overshadowing.

· Whilst the proposal involves addition of ancillary offices on the mezzanine level, the proposal would only result in a minor increase in floor space ratio (FSR) and is significantly under the maximum FSR permissible on the site.

· The predominant building setbacks will be maintained, which are in excess of the setback requirements prescribed under the Hornsby Development Control Plan 2013. By retaining the building setbacks, the proposal will maintain the existing building footprint with no material changes to the bulk and scale of the warehouse building. As such, the proposal is considered to present an appropriate bulk and scale despite the exceedance in building height limit.

· While compliance may be achieved by reducing the height and scale of the development, this is considered to undermine the functionality of the warehouse building; and the operational requirements necessary for use by the end-user will be unable to be facilitated. The internal storage requirements seek to ensure that all materials can be protected from the weather and arranged in a manner which allows for ease of access. If the building height proposed was not provided it would cause materials to be stored external to the building which presents an undesirable outcome in terms of visual amenity.

· Further, curtailing the building height of the proposed development to 10.5 metres for the site will further prevent the proposal from making full use of its planning potential as the site is constrained by the sloping topography of the site and the adjoining residential dwellings to the west. The sloping topography inevitably contributes to a breach of the height which is unavoidable.

· Maintaining existing mature vegetation is a key objective of the proposal, to ensure a high level of amenity and provide a desirable setting. It is therefore unreasonable to achieve strict compliance with the standard on this basis and the fact that the site is encumbered by a right of way, which limits any development footprint.

· Achieving a 1:1 FSR that utilises more site area is unachievable in the context of this site given the need to provide adequate setbacks and interface treatment to surrounding properties.

Council considers the applicant’s request to contravene the height development standard to be well founded for the following reasons:

· The height non-compliance would not cause significant adverse impacts to surrounding properties in terms of overshadowing, visual impacts or view loss. The industrial building is set back more than 50m from Sefton Road and more than 15m from the nearest residential dwelling while being separated by an access road and existing vegetation.

· The height non-compliance would, with time, not be highly perceptible when viewed from Sefton Road as the lots north of the subject site, these being Nos. 35A, 35B, 35C and 35D are developed.

· The gross floor area of the development is well within the maximum FSR permitted and provides building setbacks which comply with the prescriptive measures of the HDCP. The building footprint of the existing building would be maintained.

· The development demonstrates adequate separation to sensitive areas in accordance with the prescriptive measures of the HDCP.

· The development would provide for the orderly and economic use of the land whilst providing a range of warehousing units to encourage local employment.

· The development generally meets the objectives of Clause 4.3 Height of Buildings of the HLEP by way of being appropriate with regard to the constraints of the site and its development potential.

Based on this assessment, it is considered that compliance with the development standard would be unreasonable and unnecessary in the circumstances of the case.

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. In demonstrating that sufficient environmental planning grounds exist, it must be demonstrated that the planning grounds are particular to the circumstances of the development on the subject site (summarised from Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 [60].

In demonstrating the environmental planning grounds, the written request states:

· The proposal ultimately seeks to facilitate the creation of five warehouse units. The proposed building height is considered a key attribute in creating an internal building environment that would ensure the delivery of warehouse facilities required to support the operations of the future tenants involved and thereby enabling the productive use of the site.

· The proposal generally maintains the height experienced on surrounding industrial developments in the vicinity of the subject site. Further, the existing building footprint is proposed to be retained. The density and scale of the proposed built form would therefore remain generally consistent with the adjoining industrial building to the south at SP101715 approved under DA/691/2018, as well as the surrounding industrial development in the Thornleigh industrial area.

· The proposed building height is representative of market needs and demands for modernised industrial warehouse and industrial facilities. It is noted that one of the future tenants would operate as a pod type warehouse facility, which would require an internal height of 11.5m to accommodate the stacking of up to three pods within the premise. As shown in the architectural plans, the proposed roof ridge would be 2.9m above the maximum permissible building height of 10.5m.

· The proposal has been architecturally designed to increase the roof height and retain the existing building footprint, which complements the built form and scale of the adjoining industrial development located to the south and east of the subject site.

· The proposed height variation has been designed to be sympathetic and respectful to the amenity of the adjoining residential properties to the west, particularly with regard to visual bulk, privacy, overshadowing and sunlight access. As demonstrated in the Shadow Diagrams submitted for the subject DA, the neighboring residential properties would continue to receive a minimum of three hours of sunlight on 22nd June.

· Notwithstanding the numerical departure from the building height development standard, retaining the current building setbacks would ensure the adequate separation distances are provided between the site and the adjoining residential properties. The proposed design approach is considered to present a scale and architectural treatment which do not compromise the scale and amenity of the adjoining R3 Medium Density Residential zone.

· The proposed building height variation results from the gradient of the sloping landform of the site. The adopted design approach would retain the current building setbacks and preserve the majority of the existing built form, which is considered to represent a more sustainable solution in comparison to expanding the building footprint of the development.

· Particularly, increasing the roof height would minimise the need to increase the building footprint and hence reduce encroachment onto the setback areas. Maintaining the existing building footprint also allows the existing building setbacks to be retained, which continues to provide adequate separation from the adjoining residential properties to the west.

· By increasing the building height and not expanding the building footprint, the proposal would provide adequate manoeuvring space to accommodate the access and movement of 10.7m and 12.5m Heavy Rigid Vehicles (HRVs) within the site as demonstrated in the Traffic Report.

· In addition, the design approach of increasing the height and retaining the existing building footprint would also minimise the disturbance and environmental damage to the landform, which would otherwise be likely to occur if the footprint of the existing building were to be increased.

· It is demonstrated in the Acoustic Report that subject to the implementation of the design recommendations, the proposed increase in height would have no adverse or non-compliant acoustic impacts on any nearby residential or commercial receivers during daytime, evening or night-time periods. The Acoustic Report also confirms that the proposed height variation would not affect night-time noise level associated with the development, which is compliant with the relevant acoustic guidelines and requirements.

· The proposed increase in height would be limited to the site boundaries and designed to retain the existing building footprint which would ensure that operation of the development can operate in harmony with the recently approved industrial development located to the south.

· The proposed increase in height would not create any adverse visual or acoustic amenity impacts for the surrounding sensitive land users. Limiting the building height to a strict 10.5m would not deliver any measurable environmental or amenity benefits nor, would this support the provision of warehouse and industrial uses which caters to the operational needs of the end users and the market needs of the industry.

· The proposed development will remain compatible with General Industrial land uses in light of the above.

· Compliance with the remaining development standards applicable to the site is achieved.

Council considers that the environmental planning grounds stated within the written request, with exception to acoustic impacts, are sufficient with respect to Clause 4.6(3)(b) and that the stated grounds are specific to the proposed development and the circumstances of the development site.

With respect to acoustic impacts, the statements made within the written request referring to the conclusions of the Acoustic Report and the acoustic impacts to nearby receivers during daytime, evening and night-time hours are not supported by Council. This matter is further discussed in Section 2.5.2 of this report. The implementation of restricted hours of operation would ensure that acoustic impacts to nearby sensitive receivers would not be unreasonable.

Notwithstanding the acoustic impacts of the proposed development, it is considered that the written request adequately demonstrates compliance with the clause and is acceptable in this regard.

Council further notes that in demonstrating the unreasonable and unnecessary test, the applicant further established environmental planning grounds with respect to the site and the surrounding constraints.

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 (i), the written request is considered to adequately address the matter required to be demonstrated as outlined above.

With regard to part (ii), the proposed development is considered to 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.

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

Accordingly, it is considered that the written request satisfactorily responds to the relevant matters required to be addressed under Clause 4.6 and that the Panel, as consent authority, may rely upon the written request and grant development consent to the development application. Should the Panel resolve to approve the application, it should also provide a statement in the reasons for approval that it has satisfied itself of the matters in Clause 4.6(4).

2.1.5 Heritage Conservation

Clause 5.10 of the HLEP sets out heritage conservation provisions for Hornsby Shire. The site does not include a heritage item and is not located in a heritage conservation area. Accordingly, no further assessment regarding heritage is necessary.

2.1.6 Earthworks

The Waste Management Plan submitted at lodgement of the application proposes the removal of 100m³ or 180 tonnes of excavated material. The architectural plans and Statement of Environmental Effects neglect to identify the area from which this material would be taken.

This was later identified by the applicant to be an error and has been corrected with the submission of an amended Waste Management Plan, received 3 September 2021. No earthworks would be required during the demolition or construction phases of the development.

2.2 State Environmental Planning Policy No. 55 Remediation of Land

State Environmental Planning Policy No. 55 (SEPP 55) requires that Council must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated or requires remediation for the proposed use.

An assessment of contamination was undertaken as part of Council’s assessment of DA/510/2018 for the subdivision of one lot into six. Condition No. 6 of the development consent required a Site Audit Statement (SAS) be issued certifying that the whole site is suitable for future industrial land use.

A SAS was issued by an NSW EPA site auditor on 10 July 2019 certifying that the subject site is suitable for industrial uses subject to compliance with a Long-Term Environmental Management Plan (LTEMP) prepared by JBS&G Australia Pty Ltd dated 2 May 2019.

The LTEMP identifies that there is asbestos present beneath the concrete slab (barrier system) which extends across the subject site. Provided the barrier system is maintained in accordance with the LTEMP, there are no unacceptable health or contamination migration risks associated with the contaminants.

In circumstances where excavations or a breach of the concrete slab/ handstand pavement is required, the LTEMP provides specific requirements to be observed where these works are undertaken.

Whilst it is not anticipated that the proposal would require earthworks as identified in the amended Waste Management Plan, the concrete slab within the industrial building may be breached to facilitate the construction of internal walls. Accordingly, it is recommended that the LTEMP be observed during construction works.

Subject to a condition requiring the implementation of the LTEMP during construction works, the application is considered satisfactory in regard to SEPP 55.

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

Subject to the appropriate stormwater management to protect water quality, the proposal would comply with the requirements of the Policy.

2.4 Section 3.42 Environmental Planning and Assessment Act 1979 - Purpose and Status of Development Control Plans

2.5 Hornsby Development Control Plan 2013

Hornsby Development Control Plan 2013 - Part 5 Industrial
Control	Proposal	Requirement	Compliance
Site Area	6,885m²	N/A	N/A
Site Area (excluding right of carriageway)	5,762m²	N/A	N/A
Gross Floor Area	3608.54m²	N/A	N/A
Floor Space Ratio	0.62:1	1:1	Yes
Ancillary Office Space	164.32m² = 4.6%	max. 30%	Yes
Height	13.4m	10.5m	No
No. of Storeys	1 storey	max. 2 storeys	Yes
Setbacks
- Front (north)	5m (existing)	5m	Yes
- Side (east)	3m (existing)	0m	Yes
- Side (west)	10m (existing)	5m	Yes
- Rear (south)	8m (existing)	0m	Yes
Landscaped Areas (% front setback area)	100%	50%	Yes
Open Space
- Minimum area	Not provided	10m²	No
- Minimum Dimensions	Not provided	2m	No
Parking
- Car (1 per 100m² GLFA)	39 spaces	39 spaces	Yes
- Bicycle (1 per 1000m² GFA)	4 racks	4 racks	Yes
- Motorcycle (1 per 50 car parking spaces)	1 space	1 space	Yes

As detailed in the above table, the proposed development does not comply with a number of prescriptive requirements within the HDCP in relation to building height and open space. The matters of non-compliance are detailed below, as well as a discussion on compliance with relevant desired outcomes.

2.5.1 Use of Premises

On 25 June 2020, DA/487/2020 was lodged on the subject site proposing the change of use of an existing industrial building to a warehouse with 24 hours, 7 days a week operation. In its assessment of the application, concern was raised by Council and submitters with respect to amenity impacts arising from the 24/7 operation of an industrial development adjoining sensitive receivers (residential developments to the west and north).

On 20 August 2021, the applicant requested to withdraw DA/487/2020. Concurrently, legal advice was submitted with the subject application prepared by Minter Ellison dated 18 August 2021 stating that:

· The 1976 consent (Application No. 135/76) authorising the use of the main factory building has not been abandoned, was granted without any condition of consent limiting its duration and accordingly may be relied upon indefinitely.

· Nothing in the Subdivision Consent (DA/510/2018) impacts the use approved under the 1976 Consent. The granting of a later development consent does not operate to revoke an earlier consent unless there is a condition to that effect, which there is not. Further, multiple development consents can apply to one parcel of land and can all operate provided the implementation of one consent is no longer a practical possibility due to development already undertaken pursuant to another consent. No such issues arise here.

· The CDC (CDC No. J190194) approved discrete structural works which do not impact the overall use of the property pursuant to the 1976 Consent. Once those structural works are complete under the CDC, it is effectively “spent”. That CDC operated independently to the 1976 Consent, does not conflict with that consent and has no impact on the validity or operation of that consent; and

· The standard conditions under the Codes SEPP limit the hours of operation of “the development” approved pursuant to the CDC. In this case, the “development” approved by the CDC is the “modification of an existing warehouse and construction of a new retaining wall and concrete driveway”. The limit on the hours of operation applying to the CDC through the Codes SEPP is particular to these discrete modification works, rather than to the canning factory use as a whole. Those works have been completed and the standard conditions under the Codes SEPP no longer apply.

· The uses approved under the 1976 Consent may continue to be enjoyed which means any person with the benefit of that consent can operate the warehouse with no limits to the hours of operation.

The intended effect of this legal advice is to demonstrate that the subject site benefits from the continued operation of the 1976 consent which permits a factory and warehousing use. Furthermore, because no conditions were implemented in the 1976 consent limiting the hours of operation, the approved factory and warehousing use may be operated on a 24/7 basis.

The legal advice was submitted on 3 September 2021 in conjunction with an amended SEE and Clause 4.6 written request. The amended SEE emphasises that “any person with the benefit of that consent (App No. 135/76) can operate the warehouse with no limits to the hours of operation”. It is inferred from this statement that, were the subject application to be approved, the applicant may operate the modified industrial building as a warehouse on a 24/7 basis.

In reviewing the legal advice, it is acknowledged that:

· The 1976 Consent has not been abandoned, irrespective of the cessation of the approved use by the former owners of the land prior to its subdivision under DA/510/2018/B.

· Apart from use of mechanical equipment, there appear to be no restrictions on the operating hours for the factory and warehouse development on Lots 1 and 2, DP 211895, that was authorised by the 1976 Consent.

However, the proposed alterations and additions would involve enlargement and intensification of the warehouse use permitted by the 1976 consent and the likely impacts arising from this intensification must be assessed.

An assessment of the intensification of the warehouse use against the provisions of Section 4.15 of the Environmental Planning and Assessment Act 1979 is the subject of this assessment report.

2.5.2 Noise and Vibration

The desired outcome of Part 1C.2.5 Noise and Vibration of the HDCP is to encourage “development designed and managed to minimise noise and vibration impacts on the occupants of residential dwellings and other noise sensitive land uses”.

The subject site is located adjacent to medium density residential development to the west at No. 60 Duffy Avenue, Thornleigh (SP 68372) and in proximity to low density residential development to the north along Sefton Road.

To address the anticipated noise impacts arising from the proposal, an ‘Acoustic Considerations’ statement was submitted with the application prepared by NG Childs and Associates dated 14 July 2020. Concurrent to the subject application, DA/487/2020 was lodged proposing 24 hour use of the development for warehousing purposes. An acoustic report was submitted with DA/487/2020 contending that the operation of the warehouse on a 24/7 basis would not present unreasonable acoustic impacts to adjoining sensitive receivers such as to the residential developments to the north and west.

During the notification periods, submissions were received raising concerns that 24/7 operation would result in significant impacts to the residential amenity and quality of life for occupants of residences located to the north and west of the subject site due to noise generated from warehousing activities and vehicle noise.

Council’s assessment of the applicant’s acoustic documentation raised several concerns including:

· The acoustic assessment was not founded on current ambient background noise levels.

· The assessment did not consider the wider noise impacts of 24/7 operation encompassing vehicle trips during daytime, evening and night-time hours. No discussion presented on vehicle noise associated with acceleration/ deceleration while negotiation the access handle, opening and closing of doors and reversing alarms.

· The assessment did not consider the reflection of sound towards nearby sensitive receivers to the west due to the substantial presence of pavement and industrial buildings.

· The assessment did not account for the location of adjoining residences to the west being located at a higher elevation than an existing 3m high acoustic wall located along the western side boundary, thereby negating its intended purpose.

An amended Acoustic Report dated 18 November 2020 and a Noise Management Plan dated 11 December 2020 was submitted for both DA/487/2020 and the subject application in response to Council’s concerns. However, the findings of the amended Acoustic Report were based on only 24 hours of noise monitoring due to alleged vandalising of the monitoring equipment. At Council’s request, these documents were reviewed by an independent acoustic consultant, Atkins Acoustics.

The review by Atkins Acoustics was completed on 9 February 2021 and concluded that the following information was missing:

· Additional ambient background noise monitoring conducted over a minimum of 7 days to assess current ambient background levels for exposed noise receptors and establish appropriate noise assessment criteria.

· Clarification of the proposed operating days and hours for the developments at No. 35E Sefton Road.

· Clarification of the operating days and hours, traffic generation for each tenant/ occupier within the site.

· Day, evening and night noise modelling for No. 35E Sefton Road including individual unit and cumulative activities, traffic on the site access road, existing industrial and self-storage units at No. 35 Sefton Road and allowances for future development of the vacant land on Lots 1-4, DP 1250371 inclusive.

· SEL, L_Amax and L_Aeq source noise source data for existing and proposed uses.

· Source noise data referenced as either sound pressure levels at a distance or sound power levels.

· Details and marked up figures (drawings) identifying the location of sources assumed for noise modelling, including traffic along the access road,

· Details and marked up figures (drawings) identifying the location of noise receptors, relative height levels for receptors, relative heights for outdoor forecourt areas, relative height for noise sources, relative surface heights along the site access road, relative heights of the noise wall along the site boundary.

· Updated modelling to address Noise Policy for Industry assessment procedures.

· Summary of noise predictions confirming attenuation allowances for distance, barriers, screening, door openings etc.; and

· Practices for management, monitoring and reporting on-site activities and vehicle movements to and from the site.

The conclusions of the review by Atkins Acoustics were relayed to the applicant for a response on 2 March 2021. A meeting was held with the applicant on 8 June 2021 to discuss the progress of both applications in light of the acoustic concerns raised. On 21 July 2021, correspondence was received from the applicant’s town planning consultant resolving to reduce the operating hours proposed under DA/487/2020 from 24 hours 7 days to 7am to 7pm Monday to Saturday and no operation on Sundays or public holidays.

DA/487/2020 was later withdrawn on 20 August 2021 and legal advice submitted suggesting that the existing industrial building already benefits from development consent (DA/135/76) granting warehousing use and no restriction to operating hours.

On 14 December 2021, Council received additional correspondence from the applicant stating that they would accept the same hours as currently approved under the CDC with the understanding the hours would be 7am to 7pm. The operational conditions associated with CDC No. J190194 states that “if the development involves a new use as something other than a bulky goods premises or other commercial premises and adjoins or is opposite a residential lot within a residential zone or Zone RU5 Village – 7.00am to 7.00 pm Monday to Saturday and no operations on a Sunday or public holiday”.

While it is recognised that the Consent No. 135/76 may remain operable on the subject site and does not include conditions limiting hours of operation, the proposed alterations and additions represents an intensification of the warehousing use by way of:

· Increasing the floor area of the overall industrial building through construction of 5 mezzanine offices.

· Increasing the volume of the overall industrial building by raising the building height to 13.4m.

· Stata subdividing the industrial building into 5 individual units each capable of accommodating a separate tenant.

As the applicant has failed to demonstrate that continued operation of a warehousing use on a 24/7 basis would not unreasonably impact the residential amenity of adjoining sensitive receivers, the proposal cannot be supported without limitation to the hours of operation.

Consequently, in consideration of the applicant’s acceptance of limited operating hours and to maintain consistency with respect to operating hours throughout the industrial complex, namely with the light industrial use at No. 35 Sefton Road, a condition is recommended that the operation of the proposed warehouse units be limited to 7am to 7pm on Monday to Saturday and no operation on Sunday and public holidays.

To further allay concerns regarding the acoustic impacts of the development, conditions are recommended to limit all deliveries to and from the warehousing units be made during the allotted operating hours and that all storage, loading and unloading of goods is undertaken wholly within the units.

Subject to these conditions, it is considered that the amenity impacts arising from the warehousing development can be limited to a reasonable level to the benefit of adjoining sensitive receivers.

2.5.3 Scale

As discussed in Section 2.1.4 of this report, the proposed roof line of the industrial building exceeds the maximum 10.5m building height limit by 27.6% (2.9m).

It is recognised that the height non-compliance would not cause significant adverse impacts to surrounding properties in terms of overshadowing, visual impacts or view loss as the building is set back more than 50m from Sefton Road and more than 15m from the nearest residential dwelling.

Existing setbacks from property boundaries and landscaped areas would not be affected by the proposal, with existing vegetation to assist in screening the visual presence of the building when viewed from Sefton Road and adjoining properties.

The proposal would comply with the other scale requirements of the HDCP including maximum FSR and the maximum number of storeys.

Accordingly, the proposed height exceedance is considered acceptable in respect to the built form of the surrounding industrial and residential development.

2.5.4 Vehicular Access and Parking

During the notification periods, submissions were received raising the following concerns:

· There is insufficient off-street parking for employees, additional kerbside parking along Sefton Road would congest the road compromising safety.

· Sefton Road, Chilvers Road and Larool Crescent are already congested. Increased truck movements would exacerbate this issue.

· Increased truck movements would impact pedestrian safety.

A Traffic and Parking Assessment Report was submitted with the proposal prepared by Terraffic Pty Ltd dated 15 July 2020. An amended report was submitted dated 3 November 2020 in response to Council’s concerns regarding the provision of car parking and accessibility to the site by heavy rigid vehicles (HRV). An assessment regarding traffic and parking is provided below.

2.5.4.1 Traffic

With respect to warehouses, the RMS Guide to Traffic Generating Developments 2002 provides a peak hour traffic generation of 0.5 trips per 100m² of GFA. Applying the traffic generation rate and using a GFA calculation of 3,608.54m² for the proposed development, the Report states that a total of 18 vehicle trips per hour (vtph) is anticipated. This remains unchanged from the traffic generation rate of the existing industrial building which has been identified as having a GFA of 3,668.09m².

The Report concludes that “the proposed development will not have any noticeable or unacceptable effect on the road network serving the site in terms of road network capacity or traffic-related environmental effect”.

Council’s traffic assessment raised no objections to the proposal on traffic grounds based on the estimated vehicle trip generation.

2.5.4.2 Parking

With respect to parking requirements for industrial and warehousing uses, the HDCP requires 1 space per 100m² gross leasable floor area (GLFA) for developments located more than 800m from a railway station. The Report states that the proposed development would have a total GLFA of 3,864.79m² with the ancillary mezzanine office space occupying less than 5% of the GLFA. As the overall office component is less than 20% of the total GLFA, only the warehousing car parking rate is applied. Applying the HDCP car parking rates, a total of 39 car parking spaces are required for the proposal.

The Report states that 39 car parking spaces will be provided on site of which 28 would be external spaces and 11 internal. Architectural plans further illustrate that 4 bicycle racks and 1 motorcycle space are provided on site.

The proposal complies with the car parking requirements of the HDCP.

As the application also includes strata subdivision, a condition is recommended to ensure that each unit is allocated sufficient parking in accordance with the car parking rates of the HDCP.

2.5.4.3 Access

Vehicle and pedestrian access to the site would be via the accessway from Sefton Road.

Prescriptive measure 5.1.6(f) of the HDCP states that “each industrial unit/premises should have access to a loading and unloading area on-site”. Measure 5.1.6(g) follows to states that “where a development consists of multiple industrial units, at least 1 communal loading area that is capable of accommodating an articulated vehicle should be provided on-site”.

The proposal would include a dedicated loading area for each of the five units measuring 12.5m x 4m for Units 1 to 4 and 12.5m x 4.5m for Unit 5 able to accommodate a HRV. Given that each unit would be adequately served by a loading area, a communal loading area is not required.

Swept paths have been provided within the Report showing that a 12.5m long HRV can service Units 1 to 4 and a 10.7m long HRV can service Unit 5 with egress from the site in a forward direction. Accordingly, the proposed development would provide adequate vehicle access.

In response to the concern raised regarding pedestrian safety at the site frontage, the subject site is served by an existing driveway and a 16.2m wide vehicle crossing approved under DA/510/2018 constructed to the relevant Australian Standards AS2890.1 and AS2890.2 which provide requirements for minimum sight distances for driveways. Compliance with these standards ensures that vehicle access to and from the subject site would not pose an unreasonable risk to pedestrian or cyclist safety. The proposal does not seek to alter the current vehicle access arrangement. Swept path diagrams submitted with the application demonstrate that all vehicles anticipated to serve the site would be able to enter and exit in a forward direction. Conditions have been recommended in Schedule 1 requiring that all car parking areas must be constructed and operated in accordance with AS2890.1 and AS2890.2 and that any proposed landscaping and/or fencing would not restrict sight distances.

2.5.5 Open Space

The desired outcome of Part 5.1.4 Open Space of the HDCP is to encourage “development that provides adequate communal open space on-site for employees”.

This outcome is supported by prescriptive measure 5.1.4(a) which states that “an outdoor eating and sitting area should be provided on-site at a rate of 1m² per employee, with a minimum total area of 10m² and a minimum dimension of 2 metres”.

For the purposes of calculating the required communal open space area, the HDCP recommends an average employee density for industrial uses of 1 employee/ 50m² GFA. Accordingly, a minimum 71m² of communal open space should be provided.

The proposal does not comply with this requirement as it does not designate an area to be used as communal open space.

In assessing this non-compliance, the following matters have been considered:

· The areas encompassed within the southern and western setbacks would be unsuitable for use as open space because they are driveways and parking spaces.

· The northern and eastern setbacks are existing landscaped areas 662m² in area which may be used as communal open space with remnant vegetation in the northern setback to provide shade.

· It is anticipated that each warehouse unit would provide internal eating/sitting areas in a future fit out stage.

Whilst the proposal does not designate an area of use as communal open space, sufficient landscaped area is provided which may be adapted for this purpose. The proposal meets the desired outcome of Part 5.1.4 of the HDCP and is considered acceptable.

2.5.6 Sunlight

The desired outcome of Part 5.1.5 Sunlight of the HDCP is to encourage “development designed to provide reasonable sunlight to sensitive areas”.

This outcome is supported by prescriptive measure 5.1.5(b) which states that “On 22 June, 50% of the principal private open space in any adjoining residential property should receive 2 hours of unobstructed solar access”.

Shadow Diagrams submitted with the application demonstrates that the western adjoining residences would experience overshadowing at 9am on the day of the winter solstice but would be unaffected from noon to 3pm. This complies with the requirements of the abovementioned prescriptive measure.

The proposal would meet the desired outcome of Part 5.1.5 Sunlight of the HDCP and is considered acceptable.

2.5.7 Waste Management

On 3 September 2021, an amended Demolition and Construction Waste Management Plan was submitted providing estimates of the type and volumes of waste and recyclables anticipated during demolition and construction works.

The application also includes an Operational Waste Management Plan stating that each industrial unit would have internal bin storage areas and be serviced by private waste contractors. Swept path diagrams within the amended Traffic and Parking Assessment Report prepared by Terrafic Pty Ltd dated 3 November 2020 demonstrate that all industrial units within the development are accessible to heavy rigid vehicles (HRV).

To ensure that amenity is maintained for adjoining residential properties, a condition is recommended to limit waste collection for the warehouse units to be between 7am to 8pm on weekdays and 8am to 8pm on weekends and public holidays. These collections hours are consistent with those applied to the southern adjoining industrial development at No. 35 Sefton Road.

2.5.8 Design Details

Th desired outcome of Part 5.1.8 Design Details of the HDCP is to encourage “development that contributes positively to the streetscape”.

During the notification periods, submissions were received raising concern that the modified industrial building would dominate the skyline, would look akin to an aircraft hangar and be an eyesore.

To address these concerns, the following observations have been made:

· The subject site is a battle-axe allotment with four vacant industrial allotments (Nos. 35A, 35B, 35C and 35D Sefton Road) to the north.

· These vacant lots provide more than 50m separation between the subject site and Sefton Road due to the length of the lots.

· It is recognised that while the industrial lots are vacant, there would be visual impacts to the streetscape of Sefton Road from the modified warehouse building. However, once developed, the future buildings on Nos. 35A, 35B, 35C and 35D Sefton Road would screen the warehouse and reduce its street presence.

· An existing 3m high acoustic wall along the western property boundary and trees within the eastern side of the western adjoining residential development assist to screen the proposal when viewed from the west.

· Residential properties to the south would not be visually affected as they are separated from the subject site by another industrial allotment, No. 35 Sefton Road.

· The proposal would maintain a similar footprint and low-pitched roof to the existing industrial building.

· The architectural plans note that the proposed walls and roof of the proposal would be of a colour to match the existing industrial building.

Whilst the proposal would not comply with the building height development standard of the HLEP and would increase the perceived bulk and scale of the existing industrial building, it is considered that the visual impact of the proposal on the Sefton Road streetscape would diminish over time due to future development on the northern adjoining industrial allotments.

The proposal would maintain a colour that matches the existing industrial building and is therefore considered consistent with the Thornleigh industrial area.

Given the circumstances, the proposal is considered satisfactory with respect to Part 5.1.8 Design Details of the HDCP.

2.6 Section 7.12 Contributions Plans

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

The proposed development would not necessitate the removal of any trees from the site. The amended Statement of Environmental Effects dated 2 September 2021 indicates that all existing trees and vegetation on the site is proposed to be retained.

3.1.2 Stormwater Management

The subject site is served by a stormwater system approved under DA/510/2018. Collected roof water from the development would connect to this existing system.

The proposal would meet the desired outcomes of Part 1C.1.2 Stormwater Management of the HDCP and is considered acceptable.

3.2 Built Environment

3.2.1 Built Form

Being 13.4m in height, the building would be visible from Sefton Road and adjoining residential development to the west. As discussed in Section 2.5.8 of this report, the design of the building is considered satisfactory in respect to the surrounding industrial and residential environment. The scale of the building with the existing setbacks would not result in significant shadowing or amenity impacts to adjoining properties.

3.2.2 Traffic

Traffic and parking impacts have been assessed under Section 2.5.4 of this report.

3.3 Social Impacts

The social impacts of the development on the local and broader community have been considered with specific reference to the potential employment generation within the site.

There would be a number of multiplier effects that the development would provide throughout the local and regional economies. These multiplier effects would result from the warehousing and distribution of goods from within the building as well as the increased consumption generated by the increase of employment in the area.

4. SITE SUITABILITY

Section 4.15(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

4.1 Bushfire Risk

The north-western corner of the site is mapped as being bushfire prone. However, the portion of the site upon which the subject application relates is not.

The application includes a Bush Fire Assessment Report prepared by Australian Bushfire Consulting Services dated 27 May 2019 which identifies that the subject site is subject to a bushfire attack level rating of BAL-LOW and recommends the site be maintained as an Asset Protection Zone/Inner Protection Area as detailed in the NSW Rural Fire Service’s document ‘Standards for Asset Protection Zones’ and Appendix 2 and 5 of Planning for Bushfire Protection 2006. As Planning for Bushfire Protection 2006 has since been superseded by Planning for Bushfire Protection 2019 as of 1 March 2020, appropriate conditions are recommended to reflect this change.

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 31 July 2020 to 27 August 2020 and again from 21 January 2021 to 11 February 2021 in accordance with the Hornsby Community Engagement Plan. During these periods, Council received a total of 57 submissions. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

57 submissions objected to the development, generally on the grounds that the development would result in:

· Development is excessive in bulk and scale and would have adverse visual impacts to nearby residents.

· Increased building height would overshadow adjoining residences.

· 24/7 operation would adversely residential amenity and quality of life for occupants of adjoining residential developments.

· Service by heavy rigid vehicles would generate noise that would significantly impact surrounding residents.

· Reduction of on-site car parking would exacerbate existing vehicle congestion on Sefton Road.

· Devaluation of adjoining properties.

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

5.1.1 Property Values

Submissions were received raising concern that the proposal would adversely affect the value of nearby residential properties.

In addressing this concern, Section 4.15 of the Environmental Planning and Assessment Act 1979 does not require Council to take into consideration the impact of a development on the value of nearby properties.

5.2 Public Agencies

The development application was not referred to any Public Agencies for comment.

6. THE PUBLIC INTEREST

Section 4.15(1)(e) of the Act requires Council to consider “the public interest”.

CONCLUSION and Statement of ReAsons

The application seeks consent for alterations and additions to an existing industrial building and strata subdivision

Council received 57 submissions during the public notification periods objecting to the proposal generally on the grounds of 24 hour operating hours, bulk and scale, noise generation, traffic generation and car parking. The applicant has subsequently amended the application proposing 7am- 7pm Monday to Saturday operating hours consistent with other uses on the site.

The proposal generally complies with the relevant provisions of the Hornsby Local Environmental Plan 2013 with the exception of the maximum height of buildings development standard. The applicant has made a submission in support of a variation to this development standard in accordance with Clause 4.6 of the HLEP. The request is considered well founded.

The proposal generally meets the desired outcomes of the Hornsby Development Control Plan 2013 with the exception of the generation and noise and vibration arising from unrestricted hours of operation. Subject to conditions limiting operating hours, the proposal would be acceptable.

Subject to conditions, the development is satisfactory having regard to the matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979.

Having regard to the circumstances of the case, approval of the application is recommended.

The reasons for this recommendation are:

· The request under Clause 4.6 of Hornsby Local Environmental Plan 2013 to contravene the ‘Height of buildings’ development standard is well founded. Strict compliance with the development standard is unreasonable and unnecessary in the circumstances of the case and there are sufficient environmental planning grounds to justify the contravention to the development standards.

· The proposed development generally complies with the requirements of the relevant environmental planning instruments and the Hornsby Development Control Plan 2013.

· The development is considered consistent with the State Government’s “A Metropolis of Three Cities” and “North District Plan”, by retaining industrial land and enabling further development that would serve a range of uses to support a growing population.

· The proposed development does not create unreasonable environmental impacts to adjoining development with regard to visual bulk, solar access, amenity or privacy impacts.

RESPONSIBLE OFFICER

The officer responsible for the preparation of this report is Lawrence Huang.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

24. Sydney Water – s73 Certificate

1.	Locality Plan
2.	Clause 4.6
3.	Legal Advice
4.	Architectural Plans

File Reference: DA/581/2020

Document Number: D08282596

SCHEDULE 1

GENERAL CONDITIONS

Note: For the purpose of this consent, the term ‘applicant’ means any person who has the authority to act on or the benefit of the development consent.

1. Approved Plans and Supporting Documentation

*Plan No.*	*Plan Title*	*Drawn by*	*Dated*	*Council Reference*
DA-01 Rev. G	Site Plan	Graeme Scott Architect	April 2020
DA-02 Rev. G	Ground Floor Plan	Graeme Scott Architect	April 2020
DA-03 Rev. G	North and South Elevations	Graeme Scott Architect	April 2020
DA-04 Rev. G	East and West Elevations and Section	Graeme Scott Architect	April 2020
1215 Page L-01 Issue A	Tree Retention/Removal/and Concept Landscape Plan	Site Design Studios	20.06.2019

*Document Title*	*Prepared by*	*Dated*	*Council Reference*
Traffic and Parking Assessment Report	Terraffic Pty Ltd	03.11.2020	D08074176
Demolition and Construction Waste Management Plan	Thornleigh Holdings Pty Ltd	18.05.2020	D08329099
Operational Site Waste Minimisation and Management Plan	Graeme Scott Architect	Undated	D07959611
Long Term Environmental Management Plan	JBS&G Australia Pty Ltd	02.05.2019	D07717295

2. Construction Certificate

a) A Construction Certificate is required to be approved by Council or a Private Certifying Authority prior to the commencement of any construction works under this consent.

b) The Construction Certificate plans must be consistent with the Development Consent plans.

3. No Removal of Trees

This development consent does not permit the removal of any trees on the subject site.

Note: The removal of any trees from the site requires separate approval by Council in accordance with Part 1B.6 Tree and Vegetation Preservation of the Hornsby Development Control Plan, 2013 (HDCP).

4. Section 7.12 Development Contributions

a) In accordance with Section 4.17(1) of the Environmental Planning and Assessment Act 1979 and the Hornsby Shire Council Section 7.12 Development Contributions Plan 2019 - 2029, $9,735 must be paid towards the provision, extension or augmentation of public amenities or public services, based on development costs of $973,500.

$C_PY	=			$C_DC x CPI_PY
				CPI_DC

Where:

$C_PY is the amount of the contribution at the date of Payment.

$C_DC is the amount of the contribution as set out in this Development Consent.

CPI_PY is the latest release of the Consumer Price Index (Sydney – All Groups) at the date of Payment as published by the ABS.

CPI_DC is the Consumer Price Index (Sydney – All Groups) for the financial quarter at the date of this Development Consent.

c) The monetary contributions shall be paid to Council:

(i) Prior to the issue of the Subdivision Certificate where the development is for subdivision.

(ii) Prior to the issue of the first Construction Certificate where the development is for building work.

(iii) Prior to issue of the Subdivision Certificate or first Construction Certificate, whichever occurs first, where the development involves both subdivision and building work.

(iv) Prior to the works commencing where the development does not require a Construction Certificate or Subdivision Certificate.

Note: It is the professional responsibility of the Principal Certifying Authority to ensure that the monetary contributions have been paid to Council in accordance with the above timeframes.

Note: In accordance with Ministerial Directions, the payment of contribution fees for development with a cost of works of over $10 million can be deferred to prior to Occupation Certificate.

5. Compliance with Long Term Environmental Management Plan

All requirements as stipulated by the Long Term Environmental Management Plan prepared by JBS&G Australia dated 2 May 2019 must be complied with throughout the demolition, construction and operation phases of the development.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

6. Building Code of Australia

7. Fire Safety Schedule

A schedule of all proposed essential fire safety measures to be installed in the building (e.g. hydrants, hose reels, emergency warning systems etc.) shall be submitted with the construction certificate application. The schedule shall distinguish between existing and proposed fire safety measures.

8. Sydney Water – Approval

This application must be submitted to Sydney Water for approval to determine whether the development would affect any Sydney Water infrastructure, and whether further requirements are to be met.

Note: Building plan approvals can be obtained online via Sydney Water Tap in^TMthrough www.sydneywater.com.au under the Building and Development tab.

9. Stormwater Drainage

The stormwater drainage system for the development must be designed for an average recurrence interval (ARI) of 20 years and be gravity drained in accordance with the following requirements:

a) Connected to an existing inter-allotment drainage system.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

10. Erection of Construction Sign

a) A sign must be erected in a prominent position on any site on which any approved work is being carried out:

i) Showing the name, address and telephone number of the principal certifying authority for the work.

ii) Showing the name of the principal contractor (if any) for any demolition or building work and a telephone number on which that person may be contacted outside working hours.

iii) Stating that unauthorised entry to the work site is prohibited.

b) The sign is to be maintained while the approved work is being carried out and must be removed when the work has been completed.

11. Protection of Adjoining Areas

A temporary hoarding, fence or awning must be erected between the work site and adjoining lands before the works begin and must be kept in place until after the completion of the works if the works:

a) Could cause a danger, obstruction or inconvenience to pedestrian or vehicular traffic.

b) Could cause damage to adjoining lands by falling objects.

c) Involve the enclosure of a public place or part of a public place.

Note: Notwithstanding the above, Council’s separate written approval is required prior to the erection of any structure or other obstruction on public land.

12. Toilet Facilities

b) Each toilet must:

i) Be a standard flushing toilet connected to a public sewer.

ii) Be a temporary chemical closet approved under the Local Government Act 1993.

13. Garbage receptacle

a) A garbage receptacle must be provided at the work site before works begin and must be maintained until all works are completed.

a) The garbage receptacle must have a tight fitting lid and be suitable for the reception of food scraps and papers.

b) The receptacle lid must be kept closed at all times, other than when garbage is being deposited.

c) Food scraps must be placed in the garbage receptacle and not in demolition and construction waste bins.

REQUIREMENTS DURING DEMOLITION AND CONSTRUCTION

14. Construction Work Hours

a) All works on site, including demolition, must only occur between 7am and 5pm Monday to Saturday.

b) No work is to be undertaken on Sundays or public holidays.

15. Compliance with Long Term Environmental Management Plan

During construction, where excavations or a breach of the concrete slab/handstand pavement is required, such works must be undertaken in accordance with the specific requirements of the Long-Term Environmental Management Plan prepared by JBS&G Australia Pty Ltd dated 2 May 2019.

16. Demolition

To protect the surrounding environment, all demolition work must be carried out in accordance with Australian Standard AS2601-2001 Demolition of structures and the following requirements:

a) Demolition material must be disposed of to an authorised recycling and/or waste disposal site in accordance with the approved waste management plan; and

b) Demolition works, where asbestos material is being removed, must be undertaken by a contractor that holds an appropriate licence issued by SafeWork NSW in accordance with the Work Health and Safety Regulation 2017 and be appropriately transported and disposed of in accordance with the Protection of the Environment Operations (Waste) Regulation 2014; and

c) On construction sites where any building contain asbestos material, a standard commercially manufactured sign containing the words ‘DANGER ASBESTOS REMOVAL IN PROGRESS’ and measuring not less than 400mm x 300mm must be displayed in a prominent position visible from the street.

17. Environmental Management

18. Council Property

19. Disturbance of Existing Site

20. Maintenance of Public Footpaths

Public footpaths must be maintained for the duration of works to ensure they are free of trip hazards, displacements, breaks or debris to enable pedestrians to travel along the footpath safely.

21. Waste Management

All work must be carried out in accordance with the approved waste management plan.

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE OR SUBDIVISION CERTIFICATE

22. Unit Numbering

All units are to be numbered consecutively commencing at No.1. The strata plan lot number is to coincide with the unit number, e.g. Unit 1 = Lot 1. The allocated of unit numbering must be authorised by Council prior to the numbering of each unit in the development.

23. Car Parking Allocation

To ensure that future uses have an appropriate allocation of car parking, all units must have the minimum number of car parking spaces allocated to them as per the following table.

Unit No.	Minimum number of spaces
1	7
2	8
3	8
4	8
5	8

A s73 Certificate must be obtained from Sydney Water and submitted to the PCA.

Note: Sydney Water requires that s73 applications are to be made through an authorised Sydney Water Servicing Coordinator. Refer to www.sydneywater.com.au or telephone 13 20 92 for assistance.

25. Damage to Council Assets

26. Landscaping of Site

All pervious areas of the site must be appropriately landscaped with suitable (preferably indigenous) turf, trees and shrubs to complement the development and prevent erosion of soil in accordance with the approved Landscape Plan.

Note: Advice on suitable species for landscaping can be obtained from Council’s planting guide ‘Indigenous Plants for the Bushland Shire’, available at www.hornsby.nsw.gov.au.

27. External Lighting

a) To protect the amenity of adjacent premises, all lighting on the site must be controlled as to not cause a nuisance to other residences in the area. Flashing, moving or intermittent lights or signs are prohibited.

b) All external lighting must be designed and installed in accordance with Australian Standard AS 4282 Control of the obtrusive effects of outdoor lighting.

c) Lighting outside approved hours of operation must be sensor security lighting only and angled internally at a low level.

d) Certification of compliance with this Standard must be obtained from a suitably qualified person and submitted to the PCA with the application for the Certificate.

28. Fire Safety Statement – Final

In accordance with the Environmental Planning and Assessment (Development Certification and Fire Safety Regulation) 2021, upon completion of the building, the owner must provide Council with a certificate in relation to each fire safety measure implemented in the building.

OPERATIONAL CONDITIONS

29. Use of Premises

The development approved under this consent shall be used for ‘warehouse and distribution centre’ and not for any other purpose without Council’s separate written consent.

30. Hours of Operation

The hours of operation of the premise are restricted to those times listed below:

Monday to Saturday 7 am to 7 pm

Sunday & Public Holidays No work

31. Delivery Hours

Deliveries to and from the premise are restricted to those times listed below:

Monday to Saturday 7 am to 7 pm

Sunday & Public Holidays No deliveries

32. Car Parking and Deliveries

All car parking must be constructed and operated in accordance with Australian Standard AS 2890.1-2004 Off street car parking and Australian Standard AS2890.2-2002 Off street commercial and the following requirements:

a) All parking areas and driveways must be sealed to an all weather standard, line marked and signposted.

b) Car parking, loading and manoeuvring areas must be used solely for nominated purposes and not for storage or display of goods, materials or any other equipment.

c) Vehicles awaiting loading, unloading or servicing must be parked on site and not on adjacent or nearby public roads.

d) Loading and unloading of vehicles must be undertaken within the nominated loading areas of each unit, wholly within the external walls of the building.

e) All vehicular entry on to the site and egress from the site must be made in a forward direction.

33. Noise

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

34. External Lighting

a) Lighting outside approved hours of operation must be sensor security lighting only and angled internally at a low level.

b) Flashing, moving or intermittent lights or signs are prohibited.

35. Sight Lines

Any proposed landscaping and/or fencing must not restrict sight distance to pedestrians and cyclists travelling along the footpath.

36. Waste Management

The waste management on site must be in accordance with the following requirements:

a) All commercial tenant(s) must keep written evidence on site of a valid contract with a licensed waste contractor(s) for the regular collection and disposal of the waste and recyclables that are generated on site.

b) All commercial tenant(s) must have a sufficient number of bins to contain the volume of waste and recycling expected to be generated between collection services.

c) Waste collection services must not take place between 8PM and 7AM weekdays or 8PM and 8AM on weekends and public holidays.

d) A Work, Health & Safety (WHS) risk assessment is to be carried out by a suitably qualified person with qualifications in Work, Health & Safety Legislation with specific regard to waste management. The recommendations of the WHS Risk Assessment are to be implemented as required.

e) The management plan for the units must specifically include the management of waste generated on site, litter and dumped rubbish. The site management/owners corporation must be responsible for the prompt removal of litter and dumped rubbish.

Note: In accordance with the Protection of the Environment Operations Act 1997, the definition of waste includes any unwanted substance, regardless of whether it is reused, recycled or disposed to landfill.

37. Asset Protection Zones

All ground within the subject property must be managed as an Inner Protection Area (IPA) as outlined within Appendix 4 of Planning for Bush Fire Protection 2019 and the NSW Rural Fire Service’s document Standards for asset protection zones.

Note: Further information concerning planning for bush fire protection can be found at: www.rfs.nsw.gov.au.

38. Fire Safety Statement - Annual

On at least one occasion in every 12 month period following the date of the first ‘Fire Safety Certificate’ issued for the property, the owner must provide Council with an annual ‘Fire Safety Certificate’ to each essential service installed in the building.

- END OF CONDITIONS -

ADVISORY NOTES

Environmental Planning and Assessment Act 1979 Requirements

The Environmental Planning and Assessment Act 1979 requires:

· The issue of a construction certificate prior to the commencement of any works. Enquiries can be made to Council’s Customer Services Branch on 9847 6760.

· A principal certifying authority to be nominated and Council notified of that appointment prior to the commencement of any works.

· Council to be given at least two days written notice prior to the commencement of any works.

· Mandatory inspections of nominated stages of the construction inspected.

· An occupation certificate to be issued before occupying any building or commencing the use of the land.

Long Service Levy

Note: The rate of the Long Service Levy is 0.35% of the total cost of the work.

Note: Hornsby Council requires the payment of the Long Service Levy prior to the issue of a construction certificate.

Tree and Vegetation Preservation

Fines may be imposed for non-compliance with the Hornsby Development Control Plan 2013.

Note: A tree is defined as a long lived, woody perennial plant with one or relatively few main stems with the potential to grow to a height greater than three metres (3m). (HDCP 1B.6.1.c).

Disability Discrimination Act

The applicant’s attention is drawn to the existence of the Disability Discrimination Act 1992. A construction certificate is required to be obtained for the proposed building/s, which will provide consideration under the Building Code of Australia, however, the development may not comply with the requirements of the Disability Discrimination Act 1992. This is the sole responsibility of the applicant.

Tenancy Fit-Out – Separate DA Required

This consent does not permit the fit-out of individual tenancies. A separate development application is required for the fit-out of individual tenancies prior to the occupation of the building.

Advertising Signage – Separate DA Required

This consent does not permit the erection or display of any advertising signs. Most advertising signs or structures require development consent. Applicants should make separate enquiries with Council prior to erecting or displaying any advertising signage.

Subdivision Certificate Requirements

A subdivision certificate application is required to be lodged with Council containing the following information:

· A surveyor’s certificate certifying that all structures within the subject land comply with the development consent in regard to the setbacks from the new boundaries.

· A surveyor’s certificate certifying that all services, drainage lines or access are located wholly within the property boundaries. Where services encroach over the new boundaries, easements are to be created.

· Certification that the requirements of relevant utility authorities have been met.

· A surveyor’s certificate certifying finished ground levels are in accordance with the approved plans.

Note: Council will not issue a subdivision certificate until all conditions of the development consent have been completed.

Note: At the present time Hornsby Shire Council is the only authority that can be appointed as a PCA for subdivision works within the Shire.

Fees and Charges – Subdivision

All fees payable to Council as part of any construction, compliance or subdivision certificate or inspection associated with the development (including the registration of privately issued certificates) are required to be paid in full prior to the issue of the subdivision certificate. Any additional Council inspections beyond the scope of any compliance certificate required to verify compliance with the terms of this consent will be charged at the individual inspection rate nominated in Council's Fees and Charges Schedule.

Dial Before You Dig

Telecommunications Act 1997 (Commonwealth)

Asbestos Warning

An assessment of the shadow diagrams demonstrates that the subject site and adjoining properties, No. 7 Cavendish Street and Nos. 15 and 17A Pomona Street would receive a compliant amount of unobstructed sunlight access in accordance with prescriptive measures 3.1.5(a) and (b).

Alternatively,telephone the SafeWork NSW on 13 10 50.

LPP Report No. LPP7/22

Local Planning Panel

Date of Meeting: 23/02/2022

3 DA/742/2021 - CONSTRUCTION OF A DWELLING HOUSE ON PROPOSED LOT 2 - 15 POMONA STREET, PENNANT HILLS

EXECUTIVE SUMMARY

DA No:	DA/742/2021 (Lodged on 26 July 2021)
Description:	Construction of a dwelling house on proposed Lot 2
Property:	Lot 75 DP 660810, No. 15 Pomona Street, Pennant Hills
Applicant:	Mr Mohit Sahni
Owner:	Mr Mohit Sahni
Estimated Value:	$688,525
Ward:	B Ward

· The application involves the construction of a dwelling house.

· The application complies with the relevant development standards of the Hornsby Local Environmental Plan 2013 but does not satisfy the prescriptive measures of the Hornsby Development Control Plan 2013 with respect to scale, privacy, earthworks and slope, stormwater management and tree preservation.

· A total of 12 submissions have 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.

RECOMMENDATION

THAT Development Application No. DA/742/2021 for the construction of a dwelling house at Lot 75 DP 660810, No. 15 Pomona Street, Pennant Hills be refused for the reasons detailed in Schedule 1 of LPP Report No. LPP7/22.

BACKGROUND

On 21 November 2018, Council approved DA/677/2018 for the Torrens title subdivision of one allotment into two lots and the demolition of a garage, subject to a deferred commencement condition. The consent would not be operative until the applicant registered and created an Easement to Drain Water over the downstream property at SP 40249 (No. 18-22 Paling Street, Thornleigh. The subject site, No. 15A Pomona Street, was created through this subdivision.

On 2 May 2019, the applicant informed Council that the required Easement to Drain Water was registered as per the deferred commencement condition for DA/677/2018.

On 3 May 2019, Council informed the applicant that the consent for DA/677/2018 was operative and could be acted upon.

On 13 November 2019, Council approved Subdivision Construction Certificate No. SCC/32/2019 for subdivision works associated with DA/677/2018.

On 13 May 2020, Council issued pre-lodgement written advice under PL/28/2020 for the construction of a two-storey dwelling on the subject site.

On 26 July 2021, the subject application was lodged.

On 30 August 2021, Council requested amended architectural plans, an amended stormwater plan and an amended landscape plan to address concerns regarding building scale, stormwater management and replacement planting.

On 7 October 2021, the applicant submitted amended stormwater and landscape plans. An amended Statement of Environmental Effects was submitted providing justification for a departure from prescribed floor area measures.

On 19 October 2021, the application was presented to the Development Advisory Panel (DAP) comprising senior Council officers. Concerns were raised by the DAP with respect to the bulk and scale of the proposed dwelling, its response to the constraints of the site, privacy impacts and tree impacts.

On 1 November 2021, Council made a further request for the applicant to redesign the proposed dwelling house to address concerns regarding building scale, privacy and tree preservation.

On 12 January 2022, the applicant submitted amended architectural plans illustrating a change to the ground floor level. Correspondence from the applicant suggests that the change would allow for the retention of a Jacaranda tree within the backyard. However, supporting arboricultural documentation regarding this matter has not been received. Amended landscape and stormwater plans were also anticipated but have not been received.

The subject site was created through the subdivision approved by Council under DA/677/2018. However, at the time of this assessment, the subdivision has yet to be registered with NSW Land Registry Services.

SITE

The 597.4m² (592.6m² excluding access) battle-axe site is located on the north-eastern side of Pomona Street, Pennant Hills and is currently vacant. The site falls 8.8m from the south-west (front) to the north-east (rear).

The Pomona Street streetscape is characterised by primarily single storey dwelling houses in a landscaped setting reflective of a low-density residential area.

The site is not bushfire prone. The site is subject to overland flows at the rear.

The site is to be burdened by a variable width Right of Access and Easement for Services, a 1m wide Easement to Drain Water and a Positive Covenant.

The site is listed as heritage item no. 656 - House under Schedule 5 of the Hornsby Local Environmental Plan 2013 and described as a good example of a small brick Federation cottage in good condition and virtually unaltered.

The site is also in the vicinity of the following local heritage items:

· Item No. 655 - House at No. 12-14 Pomona Street.

· Item No. 657 - House at No. 17 Pomona Street.

· Item No. 658 - House at No. 22 Pomona Street.

· Item No. 659 - House at No. 23 Pomona Street.

The site is not located in a heritage conservation area.

PROPOSAL

The application proposes the construction of a two-storey dwelling house and an attached carport.

The ground floor would comprise a porch, two bedrooms, ensuite, walk-in wardrobe, study, family room, powder room, open kitchen, living and dining area, a combined pantry and laundry, storeroom and a balcony.

The lower ground floor would comprise two bedrooms, two walk-in wardrobes, bathroom, laundry, study, rumpus room and an alfresco area.

The application also proposes the construction of retaining walls within the backyard along the north-west, north and north-east boundaries.

Nine trees would be removed by the development.

Amended architectural plans submitted on 12 January 2022 illustrate the following changes to the proposal:

· Deletion of retaining walls within the backyard.

· Reduction of trees marked for removal from nine to eight.

ASSESSMENT

1. STRATEGIC CONTEXT

1.1 Greater Sydney Region Plan - A Metropolis of Three Cities and North District Plan

The proposed development would be 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.

2. STATUTORY CONTROLS

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 a ‘dwelling house’ and is permissible in the zone with Council’s consent.

2.1.2 Height of Buildings

2.1.3 Heritage Conservation

Clause 5.10 of the HLEP sets out the heritage conservation provisions for Hornsby Shire. The proposal has been considered with regard to the heritage requirements of the HLEP, the HDCP and the documentation submitted with the application.

New Dwelling House

Part 9.2.1 of the HDCP prescribes that works to heritage items retain the significance of the item and minimise impacts on the setting of the item.

The proposed dwelling house has a sympathetic pitched roof form and would be approximately 13m from rear of the Federation cottage and downslope of the heritage item. The front of the dwelling house and garage is single storey and has an overall ridge height of RL152.742, which is below that of the Federation dwelling.

The location of the dwelling house on the lower slopes of the site enables it to be largely screened from the street and maintain the setting of the listed Federation cottage at the street frontage. Whilst the dwelling is contemporary with a metal roof, the proposal would have minimal impact on the setting of the heritage item at No. 15 Pomona Street.

Landscaping/Trees

Part 9.2.3 of the HDCP prescribes that trees, gardens and landscapes listed or contribute to an item’s significance be conserved.

The site does not contain any significant gardens, vegetation or trees that contribute to the item’s individual significance. The site contains some mature remnant native and exotic trees at the rear of the site retained under the subdivision approval. The proposed dwelling requires the majority of trees on the site to be removed and Council’s assessment regarding tree removal is discussed in detail in Part 6.6.4 of this report.

Development in the Vicinity of Heritage

Part 9.4.1 of the HDCP includes measures to maintain and respect the setting and significance of heritage items in the vicinity of the site. A number of measures prescribed include the design and siting of new work being sympathetic to the primary characteristics and heritage values.

The proposal would have minimal impact on the setting and significance of the heritage items in the vicinity due to the location of the proposed dwelling house down slope below and at the rear of the existing heritage item. Public domain views of the item would not be affected.

In summary, the proposed dwelling house, whilst contemporary in design, is well separated and located away from the existing heritage item at No. 15 Pomona Street that enables the significance and setting of the item and items in the vicinity to be maintained.

The proposal satisfies the heritage conservation requirements of the HLEP and the HDCP and no objections are raised on heritage grounds.

2.1.4 Earthworks

The objective of Clause 6.2 Earthworks of the HLEP is to ensure that earthworks for which development consent is required would not have detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

An assessment is provided below in accordance with Clause 6.2 of the HLEP.

(a) The likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development.

Comment: The proposed earthworks and retaining walls are unlikely to have a detrimental effect on the drainage patterns given that stormwater from the property would still flow towards the north-eastern downstream properties.

A 1m-wide Easement to Drain Water burdens the rear adjoining property, at No. 18-22 Paling Street, Thornleigh to the benefit of the subject site.

A Landslip Risk Assessment Report prepared by BMB Engineers dated October 2020 states that the subject site possesses a ‘very low’ to ‘low’ risk level for landslides. The Report concludes that an increase of risk to the stability of the site is unlikely during the construction of the proposed dwelling house subject to the implementation of the geotechnical recommendations for earthworks and retaining walls. Should the application be approved, these recommendations would be included in the conditions of consent.

(b) The effect of the development on the likely future use or redevelopment of the land.

Comment: The earthworks would not likely restrict future use or redevelopment of the land.

(c) The quality of the fill or the soil to be excavated, or both,

Comment: Whilst is it not anticipated that fill would be imported to facilitate the proposed works. Should the application be supported a condition would be recommended that any and all imported fill must be classified by a suitably qualified person as consisting wholly of virgin excavated natural material (VENM).

Should the application be approved, a condition would be recommended that any and all excavated material removed from the site must be classified by a suitably qualified person and disposed of at an approved waste management facility.

(d) The effect of the development on the existing and likely amenity of adjoining properties.

Comment: Should the application be approved; conditions would be recommended to limit amenity impacts during the construction period.

(e) The source of any fill material and the destination of any excavated material.

Comment: Should the application be approved; a condition would be recommended that any and all imported fill must be classified by a suitably qualified person as consisting wholly of virgin excavated natural material (VENM).

Likewise, a condition would be recommended that any and all excavated material removed from the site must be classified by a suitably qualified person and disposed of at an approved waste management facility.

(f) The likelihood of disturbing relics.

Comment: Council records do not show the property as being host to any relics.

(g) The proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area.

(h) Any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

Comment: Conditions would be recommended that erosion and sediment controls be in place prior to the commencement of any works.

In summary, the proposal is acceptable with respect to Clause 6.2 of the HLEP.

2.2 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW Housing Code) provides exempt and complying development codes that have State-wide application.

The proposal in this application may not be approved as complying development because the site is identified as a heritage item and the development would require the removal of trees.

2.3 State Environmental Planning Policy No. 55 Remediation of Land

2.4 State Environmental Planning Policy (Building Sustainability Index - BASIX) 2004

2.5 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Part 3 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.

Section 2.8.5 Tree Preservation of this report provides an assessment in accordance with Part 1B.6.1 of the HDCP.

2.6 State Regional Environmental Policy (Sydney Harbour Catchment) 2005

The site is located within the catchment of Sydney Harbour. Part 2 of this Plan aims to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained. These aims require Council to consider the impacts of development on biodiversity, ecology and environment protection.

Subject to the implementation of sediment and erosion control measures and stormwater management to protect water quality, the proposal would meet the aims of the Policy.

2.7 Section 3.42 Environmental Planning and Assessment Act 1979 - Purpose and Status of Development Control Plans

2.8 Hornsby Development Control Plan 2013

HDCP – Part 3.1 Dwelling Houses
Control	Proposal	Requirement	Complies
Site Area (excluding access)	592.6m²	N/A	N/A
Building Height	8.4m	8.5m	Yes
No. storeys	2	max. 2 + attic	Yes
Site Coverage	41.3%	50%	Yes
Floor Area	360.3m²	330m²	No
Setbacks
- Side (south-west)
Ground floor	1.5m	0.9m	Yes
- Side (north-west)
Lower Ground floor	1.7m	0.9m	Yes
Ground floor	1.7m	1.5m	Yes
- Side (south-east)
Lower Ground floor	1.5m	0.9m	Yes
Ground floor	1.5m	1.5m	Yes
- Rear
Lower Ground floor	9m	3m	Yes
Ground floor	9m	8m	Yes
Landscaped Area (% of lot size)	34%	20%	Yes
Private Open Space
- minimum area	>24m²	24m²	Yes
- minimum dimension	>3m	3m	Yes
Car Parking	2 spaces	2 spaces	Yes

As detailed in the above table, the proposed development does not comply with the prescriptive floor area requirement within the HDCP. The matters of non-compliance are detailed below, as well as a discussion on compliance with relevant desired outcomes.

2.8.1 Scale (Floor Area)

The desired outcome of Part 3.1.1 Scale of the HDCP is to encourage “development with a height, bulk and scale that is compatible with a low-density residential environment”.

The prescriptive measures set out in Table 3.1.1(c) Maximum Floor Area for a dwelling house and ancillary outbuildings, prescribes a maximum floor area of 330m² for lots between 450m² and 599m².

At lodgement, the application proposed a dwelling house which would have a have a floor area of 363m² (33m², a 10% variation) which does not comply with the abovementioned prescriptive measure.

On 12 January 2022, the applicant submitted an amended design which reduced the floor area to 360.3m². Notwithstanding, the floor area non-compliance persists.

The submitted Statement of Environmental Effects (SEE) includes the following comments in support of the non-compliance:

· The areas of the ground floor level balcony (32m²) and the lower ground floor level alfresco (18m²) must be included as part of floor area as they are bound by 1.8m high privacy screens along their eastern and western elevations. Were these spaces not to be considered as part of the floor area calculation, the floor area of the dwelling house would be compliant with the prescriptive measures.

· A portion of the ground floor level balcony (9m²) is a passage to connect the laundry door to the main balcony area.

· The dwelling is compliant with Council’s prescribed building height, site coverage and setback measures.

· The balcony and alfresco would have privacy screens installed and be located at least 9 metres from the rear boundary, in accordance with HDCP privacy measures.

· Landscaping incorporates hedges to address privacy concerns with adjoining properties to the north, east and west; and

· The property has a site area of 597m² which is just 3m² short of 600m² which would enable a dwelling house to have a floor area of 360m².

Council comments:

· Council concurs that enclosed balconies are required to be included as floor area.

· If the privacy screens were not provided, significant privacy concerns would arise as the use of the balcony and alfresco would allow for overlooking into the private open space of adjoining properties due to their size and elevation.

· Were the areas of the balcony and alfresco to be reduced substantially in size or deleted, the floor area of the dwelling house could maintain compliance with the prescriptive floor area measures whilst also addressing privacy concerns.

In consideration of the circumstances, Council cannot support the proposal in its current form as it does not meet the desired outcomes of Part 3.1.1 of the HDCP and is considered unacceptable.

During the notification period, submissions were received raising the following concerns regarding the proposal:

· The height and bulk of the dwelling does not respond to the slope of the land which is inconsistent with management of residential amenity by way of overshadowing and visual/acoustic privacy.

· The height of the proposed dwelling would be three storeys above the townhouses at No. 18-22 Paling Street with a proposed deck just above the window line. This height would obstruct natural light and remove all privacy.

· The building height of less than 8.5m at the rear of the building is in contrast to the actual ridge height of 12.742m when viewed from the foot of the dividing fence or in the dwellings at Nos. 18-22 Paling Street.

To address the above concerns, the following comments are made:

· The building height of a dwelling house is the vertical distance calculated between the highest point of the building to the existing ground level immediately below it. As identified in the compliance table, the proposed dwelling house would have a building height which complies with the development standard set out under Clause 4.3 of the HLEP.

· The shadowing impacts of the proposal is discussed in detail in Section 2.8.5 of this report. In brief, the submitted Shadow Diagrams illustrate that the proposed dwelling house would not unreasonably shadow adjoining properties on the day of the winter solstice.

· Privacy impacts are discussed further in Section 2.8.3 of this report.

2.8.2 Earthworks and Slope

The desired outcomes of Part 1C.1.4 Earthworks and Slope of the HDCP are to encourage “development that is designed to respect the natural landform characteristics and protects the stability of land” and “development that limits landform modification to maintain the amenity of adjoining properties and streetscape character”.

These outcomes are supported by prescriptive measure 1C.1.4(a) which states that “development should be sited on the area of land presenting the least topographic constraints and away from ridge lines”.

The architectural plans submitted with the application illustrate that the proposed dwelling house would have a ground floor level elevated up to 4.3m and a lower ground floor level elevated up to 1.3m above existing ground level due to the significant slope of the land towards the rear of the site.

These elevated floor levels substantiate the concerns received from submissions stating that the proposal does not respond to the slope of the land and is inconsistent with the management of residential amenity by way of its bulk and privacy impacts.

On 1 November 2021, Council requested the applicant consider redesigning the dwelling house to greater use the existing cleared and level southern area of the battle-axe allotment. The ‘Potential Site Usage Plan’ submitted with DA/677/2018 demonstrated that a 200m² indicative building envelope could be accommodated in this area. Additionally, it was requested that the applicant employ a stepped design to respond to the slope of the land. A stepped design would lessen the perceived bulk of the dwelling when viewed from adjoining properties and would reduce the elevation of any living and entertaining areas located to the rear of the building.

The amended architectural plans received on 12 January 2022 do not illustrate a dwelling house which implements Council’s recommendations. Consequently, concerns relating to perceived bulk and privacy remain.

In its current form, the proposal does not demonstrate a design which respects the natural landform characteristics of the land and does not maintain the amenity of adjoining properties. As such, the proposal does not satisfy the desired outcomes of part 1C.1.4 Earthworks and Slope of the HDCP and cannot be supported.

2.8.3 Privacy

During the public notification period, submissions were received raising the following privacy concerns:

· The proposal would impinge upon privacy of neighbouring properties.

· Windows within the eastern elevation would overlook living areas and bedrooms of No. 17A Pomona Street and windows numbered W7, 8, 9, 20, 21 and 22 should be obscured up to 2.1 metres above finished floor level.

· The upper floor balcony would result in privacy and noise impacts. Being 32m² in area, it is larger than the internal living space and is undesirable and unsympathetic to existing character and amenity.

· The proposal would allow for overlooking into adjoining properties and the dwelling should be set back further from the rear with trees retained.

· The height of the proposed dwelling would be 3 storeys above the townhouses at No. 18-22 Paling Street with a proposed deck just above the window line. This height would obstruct natural light and remove all privacy.

· The deck areas are elevated 4.29m and 7.35m above existing ground level measured at the rear dividing fence with a retaining wall raised ground level by 1 metre adjacent to the rear fence.

· The landscaping plan does not show specific trees or shrubs planted to maintain privacy.

To address the concern regarding lack of detail with respect to landscaping, a landscape plan was submitted on 12 January 2022 illustrating the location of retained trees T3 and T5, the location and species of plantings including two Hickory Wattle, two Parramatta Green Wattle and two Viburnum hedges and the removal of retaining walls from the backyard.

With respect to the concern regarding windows within the eastern elevation, conditions would be recommended for privacy screening to required windows should the application be approved.

The application proposes ground floor level balconies elevated up to 4.85m and a lower ground floor level alfresco elevated up to 1.79m above existing ground level, neither of which comply with prescriptive measure 3.1.6(c).

To address the matter of overlooking into the south-eastern (No. 17A Pomona Street) and north-western (No. 7 Cavendish Street) adjoining properties, the architectural plans illustrate 1.8m high privacy screens along the south-eastern and north-western sides of both the balconies and the alfresco. Whilst in accordance with prescriptive measure 3.1.6(d), the screens contribute to the perceived bulk of the dwelling house as discussed in Section 2.8.1 and 2.8.2 of this report.

Irrespective of the screening, the balconies and alfresco would still allow for overlooking into the private open spaces and habitable rooms of the northern adjoining residential townhouse development at No. 18-22 Paling Street, Thornleigh. Although the architectural plans illustrate that the balconies and alfresco areas would be set back 9m from the rear boundary, the separation would not alleviate the privacy impacts as these areas are elevated several metres higher than that of the townhouse development.

The application seeks to ameliorate this issue by introducing 4 trees and a viburnum hedge as illustrated in the Landscape Plan. Whilst it is acknowledged that the planting would provide a degree of natural screening, they would take several years to reach maturity. Furthermore, the mature height of the hedge is noted at 4m which may only provide effective screening from the lower ground floor level alfresco. Given the elevation of the proposed ground floor level balconies, these areas would still be afforded an uninterrupted view towards the townhouse development.

On 1 November 2021, Council requested the applicant redesign the proposal to address scale, privacy and tree retention.

On 12 January 2022, amended architectural plans (Rev. L) were received illustrating a minor change to the dwelling house design, shortening the length of the ground floor level store room. The lost area would instead be occupied by another balcony measuring 1.5m x 1.6m. Correspondence from the applicant suggests that this change will allow for the retention of tree numbered T5 (Jacaranda) within the rear yard. However, an amended AIA supporting this claim has not been provided and the introduction of another balcony on the ground floor level fails to resolve any of the privacy concerns raised.

Consequently, Council cannot support the proposal in its current form as the application has failed to adequately address the privacy concerns raised by submissions or by Council and does not satisfy the desired outcomes of Part 3.1.6 Privacy of the HDCP.

2.8.4 Sunlight Access

During the notification period, submissions were received raising the following concerns regarding sunlight access:

· Shadow diagrams do not illustrate the position of the dwelling house at No. 17A Pomona Street and do not model the overshadowing impacts to this property.

· The height and bulk of the dwelling does not respond to the slope of the land which is inconsistent with management of residential amenity by way of overshadowing.

· The height of the proposed dwelling would be 3 storeys above the townhouses at Nos. 18-22 Paling Street with a proposed deck just above the window line. This height would obstruct natural light.

Amended shadow diagrams were submitted by the applicant on 7 October 2021 illustrating the location of the dwelling house at No. 17A Pomona Street.

The dwellings located at No. 18-22 Paling Street would be unaffected by shadowing as they are located north of the subject site.

The proposal meets the desired outcomes of Part 3.1.5 Sunlight Access of the HDCP and is considered acceptable.

2.8.5 Tree Preservation

During the notification period, submissions were received raising the following concerns regarding tree removal:

· Object to the removal of trees numbered T4, T6 and T7 as these are mature trees and may be home to native species, such as the Tawny Frogmouth.

· The removal of trees numbered T4-T10 are contrary to Condition 6(b) of DA/677/2018.

· The removal of the trees would have adverse environmental and visual impacts. It would result in a loss of the almost continuous canopy which links Cavendish Street and Scout Creek to the east.

· These trees are valuable, and their removal would adversely impact fauna in the locality through loss of tree canopy.

· The trees complement the amenity and privacy of adjoining properties and contribute to the landscape amenity of the locality.

· There are proposed works within the vicinity of trees numbered T11 and T12 that may result in significant destabilisation and pose a risk to life and property at No. 7 Cavendish Street.

To address the tree impacts arising from the proposed works, the application includes an Arboricultural Impact Assessment (AIA) prepared by Michael Shaw dated 25 March 2021.

The report identifies 18 trees within proximity to the proposal and recommends for the removal of 9 trees to facilitate the proposal.

Trees numbered T6 (Deodar Cedar), T7 (Cypress), T8 (Trident Maple), T9 (Crepe Myrtle) and T10 (Trident Maple) would be removed as they are located within the footprint of the dwelling house and trees numbered T1 (Box Elder), T2 (Avocado), T4 (Cypress) and T5 (Jacaranda) would be removed as they would be subject to unsustainable encroachments into their tree protection zones (TPZ).

In reviewing the submitted AIA and submissions received, the following observations are made:

· Electing to remove 9 trees to facilitate the proposal represents the removal of almost all trees on the property, with only one tree, numbered T3 (Brush Box) to be retained.

· A dwelling design minimising tree loss may be accommodated through greater use of an existing cleared and level area towards the south side of the battle-axe allotment.

· The existing vegetation in the rear yard enhances the landscaped setting of the locality and allows for the maintenance of a high level of natural screening between the subject site and adjoining properties. Privacy impacts could be alleviated through the retention of a number of the existing trees.

On 1 November 2021, Council requested the applicant redesign the dwelling house to allow for a greater retention of existing trees.

On 12 January 2022, the applicant submitted amended architectural plans. Correspondence from the applicant suggests that the modifications made would allow for the retention of tree T5 (Jacaranda). However, as at the time of this assessment, an amended AIA supporting this statement has not been provided.

Consequently, Council is unable to conduct a full and proper assessment of the amended proposal in relation to its anticipated impacts to trees and the proposal cannot be support in its current form due to insufficient information.

2.8.6 Bushfire

The application includes a Bushfire Assessment Statement prepared by Building Code & Bushfire Hazard Solutions dated 7 November 2020.

The Statement concludes that the subject site benefits from an available asset protection zone (APZ) of more than 100m to the east which separates it from the identified hazard vegetation associated with Scout Creek and is considered to have a bushfire attack level rating of BAL-LOW. Consequently, there is insufficient risk to warrant specific construction requirements.

Council raises no objections to the conclusions of the report.

2.8.7 Stormwater Management

During the notification period, the following concerns were raised regarding stormwater management:

· The application does not include a Flood Study Report. Stormwater from this development will overflow to the water system at Nos. 18-22 Paling Street which connects to Scout Creek. The Statement of Environmental Effects expects that stormwater overflow would be to the drainage system serving Nos. 18-22 Paling Street however no such investigation has taken place and permission has not and would not be granted.

· Stormwater infrastructure and pipes should be moved to the opposite side of the site to minimise impacts to trees numbered T11 and T12 located at No. 11 Pomona Street.

To address the above concerns raised, the following comments are made:

· The subject site is identified as being subject to overland flows along the rear boundary. However, Council’s engineering assessment has determined that the proposed dwelling house would be unaffected by flooding as the finished lower ground floor level (RL144.29 AHD) is 4m above existing ground levels at the rear boundary (RL 140 AHD).

· During the assessment of DA/677/2018 it was acknowledged that the subdivision would drain by gravity via a proposed on-site detention (OSD) system to an easement to drain water located at Nos. 18-22 Paling Street, Thornleigh. Given that written consent for the creation of the drainage easement was not produced at the time of assessment, a deferred commencement condition was recommended requiring the registration and creation of an easement to drain water from the subject site over the downstream property prior to the consent becoming operative.

· Evidence was provided on 2 May 2019 for the registration and creation of an easement to drain water burdening Nos. 18-22 Paling Street and benefitting No. 15 Pomona Street with notification of an operative consent provided to the applicant on 3 May 2019.

· Conditions were recommended in the approval of DA/677/2018 for the implementation of sensitive construction techniques during the installation of the stormwater drainage system in proximity to trees numbered T11 and T12. Should the application be approved, similar conditions would be recommended to ensure that these trees may be retained with minimal impact to their health and condition.

On 30 August 2021 Council requested a concept drainage plan to be submitted illustrating the proposed stormwater system connecting to the inter-allotment drainage easement created from SCC/32/2019 and incorporating an OSD system. Whilst the applicant submitted an amended stormwater plan on 7 October 2021, it was deemed unacceptable because it did not include any engineering details to demonstrate that the proposed system would function appropriately.

No further concept drainage plan prepared by a suitably qualified engineer has been received from the applicant. Consequently, Council cannot support the proposal in its current form due to insufficient information with respect to stormwater management.

2.9 Section 7.12 Contributions Plan

The Hornsby Shire Council Section 7.12 Contributions Plan 2019–2029 does not apply to the development as the land on which the development is to be carried out is subject to monetary contributions applied under DA/677/2018.

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

A discussion with respect to tree and vegetation preservation has been provided under Section 2.8.5 of this report.

3.1.2 Stormwater Management

Roof water collected from the proposed dwelling house is to be connected to an underground rainwater tank having a capacity of 3,000 litres in accordance with BASIX requirements. Overflow from the rainwater tank would be connected to an OSD system then onwards to an inter-allotment drainage easement.

Although concept drainage plans have been submitted with the application, none have included sufficient engineering details to demonstrate that the proposed system would function appropriately.

3.2 Built Environment

3.2.1 Built Form

The proposed dwelling house does not comply with the prescriptive floor area measures of the HDCP. Furthermore, the applicant has not provided an appropriate response to concerns raised by Council and submissions with respect to the perceived bulk and scale of the development on the sloping site.

3.2.2 Traffic

The proposed dwelling house accommodates two car parking spaces which complies with Council’s off-street parking requirements for residential developments. Swept path diagrams within the architectural plans demonstrate that vehicles can enter and exit the property in a forward direction.

3.3 Social Impacts

The proposed dwelling house would make a positive social contribution by providing for the housing needs of the community within a low-density residential environment. However, as evidenced by the number of objections received and Council’s unresolved concerns regarding building scale, privacy and tree preservation, the proposal in its current form would be detrimental to the residential amenity of immediate properties.

3.4 Economic Impacts

The proposal would have a minor positive impact on the local economy in conjunction with other new low density residential development in the locality by generating an increase in demand for local services.

4. SITE SUITABILITY

Section 4.15(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

4.1 Flooding

Council’s records indicate that a portion of the subject property, along the rear boundary, is subject to an overland flow path running north-west to south-east towards Scout Creek.

The amended plans submitted on 12 January 2022 removes the proposed retaining walls within the backyard therefore, existing ground levels towards the rear of the property would remain unaltered.

Council’s engineering assessment has determined that it would be highly unlikely that the overland flow path would affect the proposed dwelling house as the finished lower ground floor level (RL144.29 AHD) is 4m above existing ground levels at the rear boundary (RL 140 AHD).

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 28 July 2021 and 19 August 2021 in accordance with the Hornsby Community Engagement Plan. During this period, Council received 6 submissions. An additional 6 submissions were received outside of the notification period. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

Diagram, engineering drawing

Description automatically generated

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

12 submissions objected to the development, generally on the grounds that the development would result in:

· A dwelling house that does not response to the slope of the land and which is inconsistent with management of residential amenity by way of overshadowing and privacy.

· A dwelling house that would be highly visible from adjoining properties with no vegetation to help soften the bulk.

· The removal of several trees from the site.

· Loss of landscape amenity in the locality through the removal of tree canopy.

· A dwelling house that is inconsistent with the indicative building footprint submitted with DA/677/2018.

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

5.1.1 Fencing

A submission was received raising concern that the dividing fence between the subject site and No. 7 Cavendish Street should not be damaged in any way. The foundations of the fence should not be destabilised in the course of constructing the development.

Should the application be approved, a condition would be recommended to ensure that, if the boundary fence were to be damaged during construction, that rectification works are undertaken by the applicant.

5.1.2 Sewer Line

A submission was received raising concern that the sewer line along the northern boundary is not illustrated on plans and may be impacted by proposed retaining walls.

An amended Landscape Plan received on 12 January 2022 illustrates that retaining walls within the rear yard are no longer proposed.

Should the application be approved, a condition would be recommended for the proposal to obtain separate approval from Sydney Water.

5.2 Public Agencies

The development application was not referred to any Public Agencies for comment.

6. THE PUBLIC INTEREST

Section 4.15(1)(e) of the Act requires Council to consider “the public interest”.

The application is not considered to have satisfactorily addressed Council’s criteria and would provide a development outcome that, on balance, would result in a negative impact for the community. Accordingly, it is considered that refusal of the proposed development would be in the public interest.

CONCLUSION

The application proposes the construction of a dwelling house.

The development fails to meet the desired outcomes of Council’s planning controls and is unsatisfactory having regard to the matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979.

Council received 12 submissions 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.

The reasons for this recommendation are:

· The proposal is not consistent with the aims of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 as it does not seek to appropriately preserve amenity through the preservation of trees and other vegetation.

· The proposal does not meet the desired outcomes of Part 3.1.1 Scale of the Hornsby Development Control Plan 2013 as the development does not comply with the prescriptive measures for floor area.

· The proposal does not meet the desired outcomes of Part 1C.1.4 Earthworks and Slope of the Hornsby Development Control Plan 2013 as it has not been designed to respect the natural landform characteristics of the land nor to maintain the amenity of adjoining properties.

· The proposal does not meet the desired outcomes of Part 3.1.6 Privacy of the Hornsby Development Control Plan 2013 as it has not been designed to provide reasonable privacy to adjoining properties.

RESPONSIBLE OFFICER

The officer responsible for the preparation of this report is Lawrence Huang.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

· On 29 September 2021, the Hornsby Council Local Planning Panel considered the proposed development and resolved to defer the application to address the concerns raised by speakers at the meeting regarding issues including, positive covenant, impacts on native vegetation, extent of the APZ, retention of significant trees and replacement planting, tiering of the rear yard and treatment of the watercourse and on-site water management.

1.	Locality Plan
2.	Architectural Plans

File Reference: DA/742/2021

Document Number: D08329161

SCHEDULE 1

1. The proposal is unsatisfactory in respect to Section 4.15(a)(i) of the Environmental Planning and Assessment Act 1979 as the development is not consistent with the aims of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 and does not seek to appropriately protect the biodiversity and amenity values of trees.

2. The proposal is unsatisfactory in respect to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, as the proposal does not comply with the desired outcome and the prescriptive measures of Hornsby Development Control Plan 2013 (HDCP) as follows:

a) The proposal does not comply with the prescriptive measures within Part 3.1.1 Scale of the HDCP with regard to maximum floor area of a dwelling house.

b) The proposal does not comply with the prescriptive measures within Part 1C.1.4 Earthworks and Slope of the HDCP referring to the siting of development on areas of land presenting the least topographic constraints.

c) The proposal does not satisfy the desired outcomes of Part 3.1.6 Privacy of the HDCP referring to the provision of reasonable privacy to adjacent properties.

3. The proposal is unsatisfactory in respect to Section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979, as the proposal would have detrimental environmental impacts on the natural environment in the locality.

4. The proposal is unsatisfactory in respect to Section 4.15(1)(a)(d) and (e) of the Environmental Planning and Assessment Act 1979, as the proposal would not be in the public interest.

- END OF REASONS FOR REFUSAL -

LPP Report No. LPP10/22

Local Planning Panel

Date of Meeting: 23/02/2022

4 DA/137/2021 - FURTHER REPORT - CONSTRUCTION OF A DWELLING HOUSE - 38A MALTON ROAD, BEECROFT

EXECUTIVE SUMMARY

DA No:	DA/137/2021 (Lodged on 11 February 2021)
Description:	Construction of a dwelling house
Property:	Lot 3 DP 1226564, No. 38A Malton Road, Beecroft
Applicant:	Peter Henderson
Owner:	Mrs Janet Gwendoline Henderson
Estimated Value:	$1,000,000
Ward:	C

· The application involves the construction of a dwelling house.

· The proposal complies with the requirements of the Hornsby Local Environmental Plan 2013 and the Hornsby Development Control Plan 2013.

· A total of 21 submissions have been received in respect of the application.

· It is recommended that the application be approved.

RECOMMENDATION Consent

THAT Development Application No. DA/137/2021 for the construction of a dwelling house at Lot 3 DP 1226564, No. 38A Malton Road, Beecroft be approved subject to the conditions of consent detailed in Schedule 1 of LPP Report No. LPP10/22.

BACKGROUND

DA/390/2016 was approved for on 6 October 2016 for the demolition of structures and Torrens Title subdivision of two lots into three. DA/137/2021 seeks approval to construct a dwelling house on Lot 3.

On 22 March 2021, Council requested amended plans to address the turning circles provided, an amended landscape plan and an Integrated Bushfire and Vegetation Management Plan (IBVMP).

On 6 May 2021, Council received the amended plans and IBVMP.

On 26 July 2021, Council requested a survey for the threatened Powerful Owl (Ninox strenua) and an impact assessment of significance (‘five-part test’) in accordance with Section 7.3 of the NSW Biodiversity Conservation Act 2016 prepared by fauna ecologist with survey experience and assessment specifically for this species.

On 11 August 2021, Council received the Threatened Powerful Owl survey and an amended IBVMP.

On 25 August 2021, Council requested amended plans to reduce the amount of fill proposed within the rear yard and increase the setbacks of the proposed retaining walls.

On 2 September 2021, Council received the amended landscape plans.

On 29 September 2021, the Hornsby Council Local Planning Panel considered the application and resolved:

‘The Panel is particularly concerned with the potential inconsistency of the submitted plans with the requirements of the positive covenant in respect to the location of the restricted development area (RDA) and the asset protection zone (APZ).

The Panel resolved to defer the determination of the application and require the applicant to address issues raised by the speakers in the meeting including:

· The provisions of the positive covenant and conservation of native vegetation.

· The extent of the APZ with respect to potential building encroachment.

· The potential to retain significant trees on the site.

· Proposed treatment of the watercourse and on-site water management.

· The necessity for rear yard tiering and retaining walls.

· Replacement tree planting.

On 8 October 2021, Council requested amended plans to address the reasons for the panel.

On 9 December 2021, Council received the amended plans which are subject to this assessment. The amendments included reducing the tiered landscaping within the rear yard, reducing cut and fill and increasing the number of trees to be retained.

SITE

The 2,412m² vacant battle-axe property is located on the southern side of Malton Road Beecroft and experiences a fall of 30m to the rear southern boundary.

The site is burdened and benefitted by a right of access and easement for services of variable width and easement to drain water of variable width. The southern, rear portion of the site contains dense bushland identified as Blackbutt Gully Forest vegetation community.

The site is located within the Beecroft/Cheltenham Heritage Conservation Area listed under Schedule 5 of the Hornsby Local Environmental Plan, 2013.

The property is also located within close proximity to the following heritage listed items:

· No. 37 Malton Road, Beecroft.

· No.177E Copeland Road, Beecroft.

· Street trees growing along the road reserve of Malton Road.

The site is identified as bushfire prone land.

PROPOSAL

The application proposes the construction of a two-storey dwelling house.

The ground floor would include a living and dining room, family alfresco space, double car space and guest room. The first floor of the dwelling would include four bedrooms, sitting room and associated bathrooms.

Retaining walls are proposed to the rear of the dwelling house to create a tiered landscaped area.

Seven trees would be removed by the proposed development.

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

2. STATUTORY CONTROLS

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 a ‘dwelling house’ and is permissible with Council’s consent. The proposed development meets the objectives of the R2 zone.

2.1.2 Height of Buildings

2.1.3 Heritage Conservation

Clause 5.10 of the HLEP sets out heritage conservation provisions for Hornsby Shire. The site does not include a heritage item; however, the site is located within the Beecroft/Cheltenham Heritage Conservation Area listed under Schedule 5 of the HLEP. The property is also located within close proximity to the following heritage listed items:

· No.37 Malton Road, Beecroft (No. 124).

· No.177E Copeland Road, Beecroft; (No. 94).

· Street trees growing along Malton Road (No. 114).

The proposed dwelling house would not be visible from Malton Road as it is located behind the two-storey dwelling house located at No. 38 Malton Road. It is considered that the proposal would have negligible heritage impacts to the Beecroft/Cheltenham HCA or the nearby heritage listed item along Malton Road.

In assessing the heritage impacts to the rear adjoining heritage listed item at No. 177E Copeland Road, it is noted that the rear of the site contains existing vegetation that would screen the proposed dwelling house from the adjacent heritage listed item and would have a rear boundary setback of greater than 70m.

The proposed dwelling house would be of similar design and scale to adjacent properties within the HCA and the proposed development meets the objectives of Clause 5.10 of the HLEP and is considered acceptable.

2.1.4 Earthworks

The Hornsby Shire Council Local Planning Panel at its meeting on 29 September 2021, deferred consideration of the development application raising issues regarding the necessity for rear yard tiering and retaining walls. Submissions were received raising concern to the proposed extent of earthworks within the rear yard to create the tiered landscaping. To address the reasons for deferral, the applicant submitted amended plans to reduce the depth of the retaining walls to the rear yard which has reduced the amount of cut and fill required. The application proposes a maximum cut of 0.7m for the proposed dwelling house and a maximum fill of 0.5m for the proposed retaining walls which are considered acceptable.

In support of the proposed fill within the rear yard, it is noted that the application proposes retaining walls to retain the fill which would be setback 3.5m from the western side boundary setback to mitigate any amenity or environmental impacts to the adjoining property No. 36A Malton Road.

In assessing the impacts to the eastern side boundary, it is noted that the earthworks and retaining walls have been designed to have the same levels as proposed within No. 38B Malton Road under DA/161/2021.

A condition is recommended in Schedule 1 of this report ensuring that any fill material being brought onto the site be classified as Virgin Excavated Natural Material (VENM). A similar condition is recommended for any excavated material that may be removed from the site.

Council’s assessment of the proposed works and excavation concludes that the proposed earthworks would have minimal and acceptable environmental, and amenity impacts to adjoining properties.

2.1.5 Covenant

In granting consent to DA/390/2016 condition 38 was imposed which stated the following:

38. Restriction as to User – Protection of Land from Future Development

a) To inform current and future owners that the areas of rock outcrops, native vegetation and habitat on the site is to be protected from future development, a Restriction as to User must be created under Section 88B of the Conveyancing Act 1919 identifying that the bushland areas outside the building envelopes identified in ‘plan of proposed subdivision’, ref No. S.14712C, dated 8-12-15 prepared by P.S Graham & Associates is restricted from future development or disturbance of any kind.

b) The proposed Restriction as to User area Plan and final wording is to be provided to Council’s Natural Resources Unit for review prior to approval.

Note: The wording of the Restriction as to User must be to Council’s satisfaction and Council must be nominated as the authority to release, vary or modify the Restriction.

The final wording within the Section 88B instrument that relates to the proposed development, states the following:

Terms of Restriction as to User fourthly referred to in the above-mentioned plan (D)

No future development is permitted in the Restricted Development Area (D) on lots 2 and 3 to ensure protection of native vegetation and habitat.

Council Comment: No development is proposed within the area denoted D on the survey plan.

Terms of restriction fifthly referred to in the above-mentioned plan (E)

The following specified areas are to be managed as inner protection areas (IPA) as outlined within Section 4.1.3 and appendix 5 of ‘Planning for Bushfire Protection 2006’ and the NSW Rural Fire Service document ‘Standard for Asset Protection Zones’

c) All of proposed lot 1.

d) The northern section of lots 2 & 3 shown as (E) APZ on the plan.

Council comment: The proposed dwelling house does not encroach within the area denoted (E) on the survey plan. A bushfire report has been submitted with the application which outlines how the required APZ is achieved and to be maintained and conditions are recommended in Schedule 1 of this report. It is noted that the application proposes retaining walls within the area denoted (E) on the survey plan. It is noted that Planning for Bushfire Protection 2021 does not prohibit these minor structures from being located within the APZ and they are considered acceptable.

Terms of Positive Covenant eighthly referred to in the above-mentioned plan

To ensure the protection and ongoing management of the Restricted Development Area denoted (D) on the plan

e) All Landscaping, weed, fire and native vegetation management shall be in accordance with the approved integrated Bushfire and Vegetation Management Plan.

f) Development within the Restricted Development Area (D), is prohibited as is any removal of sandstone outcrops, any clearing of indigenous vegetation, on-site effluent disposal and the riding of BMX bikes, or any stock or agricultural activities.

g) High use open space areas shall be limited to land outside the Restricted Development Area (D).

Council comment: It is noted that the application does not propose any structures within the Restricted Development Area (D) and all high use open spaces are located outside the Restricted Development Area (D).

Therefore, the application complies with the requirements of the Section 88B instrument.

2.2 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

The application has been considered against the requirements of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW Housing Code). The Policy provides exempt and complying development codes that have State-wide application. The Policy also identifies types of development that are of minimal environmental impact that may be carried out without the need for development consent and types of Complying Development (including dwelling houses) that may be carried out in accordance with a Complying Development Certificate.

The development requires the removal of trees which precludes the development from being approved as Complying Development. The proposed dwelling house additions would otherwise comply with the numerical standards for complying development contained within the NSW Housing Code.

2.3 State Environmental Planning Policy No. 55 Remediation of Land

The policy provides guidelines for the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment. Clause 7 requires Council to consider whether land is contaminated prior to granting consent to the carrying out of any development on that land.

A review of Council’s records and aerial photographs indicate 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 SEPP (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 a BASIX Certificate for the proposed dwelling house, which is considered to be satisfactory. A condition is recommended in Schedule 1 of this report requiring the recommendations of the BASIX certificate be complied with.

2.5 State Environmental Planning Policy (Vegetation in non-rural areas) 2017

The application has been assessed against the requirements of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). This Policy seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation.

The application has been assessed against the requirements of the Vegetation SEPP and it has been determined that the proposal would meet the objectives of the Vegetation SEPP. This matter is addressed in Section 3.1.1 of this report.

2.6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

The application has been assessed against the requirements of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. This Policy provides general planning considerations and strategies to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained.

Subject to the implementation of installation of sediment and erosion control measures and stormwater management to protect water quality, the proposal would have minimal potential to impact on the Sydney Harbour Catchment.

2.7 Section 3.42 Environmental Planning and Assessment Act 1979 - Purpose and Status of Development Control Plans

2.8 Hornsby Development Control Plan 2013

HDCP – Part 3.1 Dwelling Houses
Control	Proposal	Requirement	Complies
Site Area	2,412m²	N/A	N/A
Building Height	8.5m	8.5m	Yes
No. storeys	2 + attic	max. 2 + attic	Yes
Site Coverage	9.1%	30%	Yes
Floor Area	393.5m²	430m²	Yes
Setbacks
- Side (north)	9.3m	0.9m	Yes
- Side (west)
Ground floor	1.5m	0.9m	Yes
Retaining walls	3.49m	0.9m	Yes
First floor	1.5m	1.5m	Yes
- Side (east)
Ground floor	2.1m	0.9m	Yes
Retaining walls	0m	0.9m	No
First floor	3.3m	1.5m	Yes
- Rear (south)
Ground floor	>70m	3m	Yes
First floor	>70m	8m	Yes
Landscaped Area (% of lot size)	64%	45%	Yes
Private Open Space
- minimum area	32m²	24m²	Yes
- minimum dimension	4m	3m	Yes
Car Parking	2 spaces	2 spaces	Yes

As detailed in the above table, the proposed development does not comply with the prescriptive measures for setbacks within the HDCP. The matters of this non-compliance is detailed below, as well as a discussion on compliance with relevant desired outcomes.

2.8.1 Setbacks

The desired outcomes of Part 3.1.2 Setbacks of the HDCP are to encourage “setbacks that are compatible with adjacent development and complement the streetscape” and “setbacks that allow for canopy trees to be retained and planted along the front and rear property boundaries.”

This is supported by the prescriptive measure set out in Table 3.1.2(a): Minimum Boundary Setbacks which prescribes a minimum side boundary setback of 0.9m for single storey elements and structures.

The application proposes a side boundary setback of 0m for the retaining walls within the rear yard which does not comply with the 0.9m prescriptive measure.

In support of the 0.9m encroachment, it is noted that the level of the proposed retaining walls would be the same as the neighbouring property No. 38B Malton Road as shown in the proposed plans for DA/161/2021. As the application proposes the same levels as the adjoining property, no objections are raised to the proposed eastern side setback encroachment. It is noted that the retaining walls originally proposed extended 20m to the rear of the alfresco area. To address the reasons for deferral by the Local Planning Panel, the applicant has provided amended plans in which the retaining walls extend 8.5m from the rear of the alfresco area which reduces the setback encroachments along the side boundaries.

Conditions are recommended in Schedule 1 of this report requiring the structural details of these retaining walls to be submitted with the application for the construction certificate and that the approved retaining walls be constructed prior to the issue of an occupation certificate.

Due to the proximity of the proposed retaining wall to the boundary of adjoining property No. 38B Malton Road Beecroft, a condition is recommended in Schedule 1 of this report, requiring the retaining wall to be built entirely within the subject property.

The proposal meets the desired outcomes of Part 3.1.2 Setbacks of the HDCP and is considered acceptable, subject to conditions.

2.8.2 Sunlight Access

This is supported by the prescriptive measure 3.1.5(a) requiring “50 per cent of the principal private open space of the subject site to receive at least 3 hours of unobstructed sunlight access between 9am and 3pm” during the day of the winter solstice and prescriptive measure 3.1.5(b) requiring “50 per cent of the principal private open space on any adjoining property to receive at least 3 hours of unobstructed sunlight access between 9am and 3pm.”

Submissions were received raising concern to the overshadowing of adjacent properties form the proposed development.

An assessment of the shadow diagrams provided by the applicant illustrate that the subject site and the adjoining properties No. 36A and 38B Malton Road, would receive at least 3 hours of unobstructed sunlight access to 50 per cent of their private open space between 9am and 3pm on the day of the winter solstice.

The proposal meets the desired outcomes of Part 3.1.5 Sunlight Access of the HDCP and is considered acceptable.

2.8.3 Privacy

The desired outcome of Part 3.1.6 Privacy of the HDCP is to encourage “development that is designed to provide reasonable privacy to adjacent properties.”

This is supported by the prescriptive measures that states:

a) “Living and entertaining areas of dwelling houses should be located on the ground floor and oriented towards the private open space of the dwelling house and not side boundaries.

b) A proposed window in a dwelling house should have a privacy screen if:

· It is a window to a habitable room, other than a bedroom, that has a floor level of more than 1 metre above existing ground level.

· The window is setback less than 3 metres from a side or rear boundary.

· The window has a sill height of less than 1.5 metres.

c) A deck, balcony, terrace or the like should be located within 600mm of existing ground level where possible to minimise potential visual and acoustic privacy conflicts.

d) Decks and the like that need to be located more than 600mm above existing ground should not face a window of another habitable room, balcony or private open space of another dwelling located within 9 metres of the proposed deck unless appropriately screened.”

The application proposes a first-floor level retreat and sitting room which do not comply with the above-mentioned prescriptive measures.

In support of this non-compliance, it is noted that the first-floor level sitting room and retreat would contain one window each within the northern elevation. These windows would allow overlooking onto the garage roof of the adjoining property No. 38 Malton and to a lesser extent the driveway of the adjoining property No. 36A Malton Road.

As garages and driveways are not considered the private open space of a property, no objections are raised on privacy grounds.

A submission was received raising concerns to the privacy impacts of No. 40A Malton Road Beecroft, noting that this site is not directly adjoining the subject site and 20m away from the subject site. The proposed development meets the desired outcome of Part 3.1.6 Privacy of the HDCP and would have negligible amenity impacts on that property.

2.8.4 Vehicular Access and Parking

The application proposes a double garage within the ground floor of the dwelling house and an internal driveway which would align with the existing turning area provided through the approved subdivision creating the lot (DA/390/2016). Submissions were received which raised concerns to the insufficient turning area of the proposed development.

Council’s engineer assessment raises no objection to the proposal and the design of the turning area and location of the garage would meet the requirements of the HDCP subject to appropriate conditions relating to the turning area and internal driveway.

2.9 Section 7.12 Contributions Plans

Hornsby Shire Council Section 7.12 Contributions Plan 2019-2029 applies to the development as the estimated costs of work is greater than $100,000. It is noted that the requirement for a contribution does not apply to this development as it is a newly subdivided lot and a contribution has been levied against DA/390/2016 under Section 7.11 of the Act previously.

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

The proposed development would be within the vicinity of 30 trees numbered T1 to T30 inclusive as identified within Arboricultural Impact Assessment (AIA) report prepared by McArdle Arboricultural Consultancy dated 2 December 2020.

The application proposes the removal of 7 trees numbered T8, T9, T10, T20, T22, T25 and T26.

Submissions were received which raised concerns to the removal of trees, incorrect labelling of trees being exempt and impact on neighbouring trees.

It is noted that the AIA report prepared by McArdle Arboricultural Consultancy dated 2 December 2020, identified some trees to be removed as ‘exempt’ species. Council’s assessment has determined that this is incorrect as any tree in a heritage conservation area cannot be considered ‘exempt’. Council has assessed the application and findings within the AIA report accordingly.

Trees numbered T8 (Pittosporum undulatum - Sweet Pittosporum), T9 (Acer negundo - Box Elder) and T10 (stag - dead tree) have been assessed as having a low to very low retention value and are located within the north western corner of the site. No objections are raised on environmental grounds to the removal of these trees.

Tree T20 (Syncarpia glomulifera - Turpentine) has been assessed as having a moderate to high retention value and would be located to the rear of the dwelling house. Amended plans were submitted after the Local Planning Panel deferred the application and the retaining walls have been reduced to allow for the retention of tree T20. Appropriate conditions are recommended in Schedule 1 of this report.

Trees T22 (Stag x 2 - dead tree) and T25 (Stag - dead tree) has a very low retention value. It is noted that no hollows are present within these dead trees and no objections are raised on environmental grounds to the removal of these trees.

Tree T26 (Eriobotrya japonica - Loquat) has been assessed as having a very low retention value and located within the rear of the site. No objections are raised to the removal of this tree.

Council’s Arboricultural assessment concurs with these findings of the AIA. Council raises no objections to the removal of 7 trees numbered T8, T9, T10, T20, T22, T25 and T26. Council also considers that the proposed works would result in minimal impacts to 23 remaining trees numbered T1, T2, T3, T4, T5, T6, T7, T11, T12, T13, T14, T15, T16, T17, T18, T19, T21, T23, T24, T27, T28, T29 and T30 and appropriate conditions are recommended for the protection and retention of these trees.

To offset the removal of 7 trees, a condition is recommended in Schedule 1 of this report requiring the replacement planting of 5 trees with the potential to reach a mature height of greater than 10m and 5 mid-storey trees with the potential to reach a mature height of greater than 5m.

Submissions were received with concerns to the lack of space on the site for replacement planting. Given the size of the lot (2,412m²), it is generally considered that these trees can be planted in an appropriate location whilst satisfying the requirements for an APZ as discussed in Section 4.2 Bushfire of this report.

Subject to conditions, the proposed development meets the desired outcomes of Part 1B6.1 Tree Preservation of the HDCP and the proposed development would result in acceptable environmental impacts.

3.1.2 Biodiversity

The proposal is located amongst vegetation characteristic of the Blackbutt Gully Forest vegetation community. A submission also identified that a powerful owl was recently sighted on the subject site and multiple submissions were received which raised concerns to the impact of the Powerful Owl species. The powerful owl is listed as vulnerable under the Biodiversity Conservation Act 2016.

Council’s ecologists have assessed the Integrated Bushfire and Vegetation Management Plan prepared by Hunter Ecology, dated 10 August and the Powerful Owl (Ninox strenua) surveys and assessment prepared by Hunter Ecology, dated 10 August and determined the following:

· Powerful Owl were recorded roosting in the locality.

· No breeding habitat is present on site.

· A medium sized hollow was identified within No. 38A, approximately 25m from the southern boundary. Although the hollow is too small to be suitable for a powerful owl, it could potentially be made suitable for the Gang-gang Cockatoo (Callocephalon fimbriatum) as the site falls within the recognised extent of the local endangered population area. Suitability of the hollow would be dependent on the internal chamber characteristics and would require cleaning out using a chainsaw to allow entry.

· Some practical measures can be implemented in site to enhance habitat for this species (hollow improvement and nest box installation).

· The proposed development is unlikely to have a significant impact upon the local population of this species.

Therefore, it is generally considered that the proposed development would have minimal impacts on the Powerful Owl species. Notwithstanding, conditions are recommended in Schedule 1 of this report to minimise any disturbance to the species, including the appointment of a project ecologist, a Project Bush Regenerator and Ecologist that will be involved with the implementation and monitoring of environmental protection measures during the construction of the approved development. A condition is also recommended requiring 4 nest boxes be installed by an experienced fauna ecologist.

Subject to conditions, the proposed development meets the desired outcomes of Part 1C.1.1 Biodiversity of the HDCP and the proposed development would result in acceptable environmental impacts.

3.1.3 Stormwater Management

The residential development would have a minor positive impact on the natural environment with the stormwater system conditioned to be directed from the above ground rainwater tank and the overflow from the rainwater tank connected to the existing inter-allotment drainage system. All stormwater collected by the proposed retaining walls would be connected to the existing inter-allotment drainage system. As the inter-allotment drainage system was approved through the subdivision of DA/390/2016, no objections are raised to connect to this inter-allotment system.

Appropriate conditions are also recommended to ensure appropriate sediment and erosion control measures are in place during construction to protection the bushland to the rear of the site.

3.2 Built Environment

3.2.1 Built Form

The proposal would generally be consistent with the built form of the surrounding low-density residential area which consists of dwelling houses ranging from single storey, split level, two storey and three storeys with excavated garages.

3.3 Social Impacts

The residential development would improve housing choice in the locality by providing a range of house hold types. This is consistent with Council’s Housing Strategy which identifies the need to provide a mix of housing options to meet future demographic needs in Hornsby Shire.

3.4 Economic Impacts

4. SITE SUITABILITY

Section 4.15(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

4.1 Flooding

The site is not identified as flood prone.

4.2 Bushfire Risk

The desired outcomes of Part 1C.3.1 Bushfire of the HDCP are to encourage “development that is located and designed to minimise the risk to life and property from bushfires”.

The site is bushfire prone and the application was accompanied by a Bushfire Assessment Report, Ref: 20.10.316, prepared by Bushfire Planning & Design dated 15 October 2020, which assigned the site a Bushfire Attack Level (BAL) of 29. Consequently, the application was not required to be referred to the NSW Rural Fire Service (RFS) in accordance with Section 4.14 of the Environmental Planning and Assessment Act 1979.

Submissions were received raising concerns to the inadequacy of the bushfire requirements.

Council’s assessment of the bushfire report required the establishment of an Asset Protection Zone (APZ) of 37m from the rear of the dwelling house towards the southern boundary which is consistent with the requirements of the subdivision approved under DA/390/2016.

The proposal meets the desired outcomes of Part 1C.3.1 Bushfire of the HDCP and is considered acceptable, subject to conditions that require the construction of the dwelling to comply with Australian Standards AS3959-2009 Construction in bushfire prone areas. Conditions are also recommended requiring the development to comply with the Integrated Bushfire and Vegetation Management Plan (IBVMP) prepared by Hunter Ecology dated 27th April 2021.

Council has raised no objections to the development, subject to the conditions listed in Schedule 1 of this report.

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 16 February 2021 and 9 March 2021 and 2 June 2021 and 21 June 2021 in accordance with the Hornsby Community Engagement Plan. During this period, Council received 21 submissions. Amended Plans were received to address the Local Planning Panel’s deferment on 29 September 2021. These amended plans were considered minor modifications and in accordance with the Hornsby Community Engagement Plan, renotification of the application was not required. 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

18 SUBMISSIONS RECEIVED OUT OF MAP RANGE

Twenty-one submissions objected to the development, generally on the grounds that the development would result in:

· Impact to trees on neighbouring properties.

· Lack of space on site for replacement planting.

· Bushfire impacts not sufficiently addressed.

· Privacy concerns.

· Watercourse at the rear of the site.

· Earthworks.

· Unacceptable scale of development.

· Unacceptable environmental impacts through tree loss.

· Unacceptable impacts to powerful owl habitat.

· Unacceptable overshadowing of adjoining properties.

· Unacceptable privacy impacts.

· The removal of a significant trees.

· Development that is excessive in bulk and scale.

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

5.1.1 Development that is excessive in bulk and scale

Submissions were received raising concern to the excessive bulk and scale of the proposed development. In response to these submissions, it is noted that as outlined in the compliance table in Section 2.8 of this report, the application complies with the height, floor area and site coverage requirements of the Hornsby DCP.

5.1.2 Watercourse at the rear of the site

Submissions were received raising concerns to the watercourse at the rear of the site known as Byles Creek and the impact the proposed development would have on this watercourse.

The subject site slopes to a 1^st order stream that connects to Byles Creek. To address issues of water quality to Byles Creek and the Sydney Harbour Catchment, conditions are recommended in Schedule 1 of this report requiring appropriate sediment and erosion control measures to protect the downstream creek.

5.2 Public Agencies

The development application was not referred to any Public Agencies for comment.

6. THE PUBLIC INTEREST

Section 4.15(1)(e) of the Act requires Council to consider “the public interest”.

CONCLUSION

The application proposes the construction of a dwelling house. The application was deferred by the HLPP on 29 September 2021. The applicant submitted amended plans and documentation to address the grounds of deferral by reducing the amount of tiered landscaping to the rear, reducing the required cut and fill and increasing the number of trees to be retained.

Council received 21 submissions 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, approval of the application is recommended.

The reasons for this decision are:

· The proposed development generally complies with the requirements of the relevant environmental planning instruments and the Hornsby Development Control Plan 2013.

· The proposed development does not create unreasonable environmental impacts to adjoining development with regard to visual bulk, overshadowing, solar access, amenity or privacy.

RESPONSIBLE OFFICER

The officer responsible for the preparation of this report is Tim Buwalda.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

1. Approved Plans and Supporting Documentation

1.	Locality Map
2.	Architectural Plans
3.	Landscape Plan

File Reference: DA/137/2021

Document Number: D08338571

SCHEDULE 1

GENERAL CONDITIONS

Note: For the purpose of this consent, the term ‘applicant’ means any person who has the authority to act on or the benefit of the development consent.

Approved Plans

*Plan No.*	*Plan Title*	*Drawn by*	*Dated*	*Council Reference*
1725 1 of 2	Site Plan	Distinct Innovations	December 2020
1725 2 of 2	Elevations, Floor Plans and Sections	Distinct Innovations	December 2020
DA-01 rev. E	Landscape Plan	Grindstone Landscapes	14 August 2021
DA-02 rev. E	Driveway	Grindstone Landscapes	14 August 2021
DA-05 rev. E	38A Landscape Plan	Grindstone Landscapes	14 August 2021
DA-06 rev. E	38A Elevation	Grindstone Landscapes	14 August 2021

Supporting Documentation

*Document Title*	*Drawn by*	*Dated*	*Council Reference*
BASIX Certificate No. 1132384S	Frys Energywise	10 December 2021	D08106298
Integrated Bushfire and Vegetation Management Plan	Hunter Ecology	27 April 2021	D08225545
Arboricultural Impact Assessment Version 12	McArdle Arboricultural Consultancy	29 November 2021	D08311755
Waste Management Plan	Peter Henderson	27 December 2020	D08106281
Powerful Owl Assessment Ref. Beecroft 01	Hunter Ecology	10 August 2021	D08225546
Nathers Certificate	Frys Energywise	10 December 2020	D08106311
Bushfire Assessment Report Ref: 20.10.316	Bushfire Planning & Design	15 October 2020	D08106304
Schedule of Finishes	Distinct Innovation Pty Ltd	24 December 2020	D08106270

2. Construction Certificate

a) A Construction Certificate is required to be approved by Council or a Private Certifying Authority prior to the commencement of any construction works under this consent.

b) The Construction Certificate plans must include all requirements imposed by condition No. 10 of this consent.

c) The Construction Certificate plans must be consistent with the Development Consent plans.

3. Removal of Trees

a) This development consent permits the removal of 7 trees numbered T8, T9, T10, T22, T25 and T26 as identified in the Arboricultural Impact Assessment prepared by McArdle Arboricultural Consultancy dated 29 November 2021 (D08311755).

b) No consent is granted for the removal of 24 numbered T1, T2, T3, T4, T5, T6, T7, T11, T12, T13, T14, T15, T16, T17, T18, T19, T20, T21, T23, T24, T27, T28, T29 and T30 as this/these tree(s) contribute(s) to the established landscape amenity of the area/streetscape.

Note: The removal of any other trees from the site requires separate approval by Council in accordance with Part 1B.6 Tree and Vegetation Preservation of the Hornsby Development Control Plan, 2013 (HDCP).

4. Tree Pruning

This development consent does not permit the pruning of any tree.

Note: The pruning of any other trees from the site requires separate approval by Council in accordance with Part 1B.6 Tree and Vegetation Preservation of the Hornsby Development Control Plan 2013 (HDCP).

5. Retaining Walls

To ensure the stability of the site, structural details of all required retaining walls must be submitted with the application of the Construction Certificate.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

6. Building Code of Australia

7. Contract of Insurance (Residential Building Work)

8. Notification of Home Building Act 1989 Requirements

a) In the case of work for which a principal contractor is required to be appointed:

i) The name and licence number of the principal contractor.

ii) The name of the insurer by which the work is insured under Part 6 of that Act.

b) In the case of work to be done by an owner-builder:

i) The name of the owner-builder.

ii) If the owner-builder is required to hold an owner-builder’s permit under that Act, the number of the owner-builder’s permit.

Note: If arrangements for doing the residential building work are changed while the work is in progress so that the information notified becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being Council) has given Council written notification of the updated information.

9. Sydney Water – Approval

This application must be submitted to Sydney Water for approval to determine whether the development would affect any Sydney Water infrastructure, and whether further requirements are to be met.

Note: Building plan approvals can be obtained online via Sydney Water Tap in^TMthrough www.sydneywater.com.au under the Building and Development tab.

10. Design and Construction - Bushfire Attack Category

a) That the proposed dwellings roof and eaves section, and the western, southern and eastern elevations shall be constructed to section 3 Construction General and section 7 BAL 29 of Australian Standard AS3959-2018 Construction of buildings in bushfire prone areas with the exception that the construction requirements shall be varied to comply with section 7.5.2 Additional Construction Requirements of Planning for Bush Fire Protection 2019.

b) That the proposed dwellings northern elevation shall be constructed to section 3 Construction General and section 6 BAL 19 of Australian Standard AS3959-2018 Construction of buildings in bushfire prone areas with the exception that the construction requirements shall be varied to comply with section 7.5.2 Additional Construction Requirements of Planning for Bush Fire Protection 2019.

c) That the dwelling shall maintain a reserve Static Water Supply (SWS) for use during a bushfire event of not less than 10,000 litres stored in a non-combustible tank within the area of recommended asset protection zone.

d) The reserve Static Water Supply shall be permanently plumbed to a petrol or diesel firefighting water pump with a minimum of 5hp. The pump shall be regularly maintained as per the manufacturer specifications. The pump must be located in such a position to be shielded from the direct mechanisms of bushfire attack.

e) That a water delivery line of not less than 50mm diameter be plumbed from the firefighting water pump plumbed to the reserve Static Water Supply tank, to an outlet point located directly adjacent to the driveway as indicated within figure 7 of the Bushfire Assessment Report (Ref: 20.10.316) prepared by Bushfire Planning & Assessment dated 15 October 2020 on the subject allotment to enable firefighting tankers to refill. The outlet of this line shall be fitted with a ball or gate valve and a 65 to 38mm reducer Storz fitting.

f) That the development must provide and have readily available kink resistant hose or hoses with a diameter of not less than 19mm and a fire fighting nozzle, capable of reaching all elevations of the dwelling, and fittings suitable for connection to the firefighting water pump.

g) Fire hose reels are constructed in accordance with Australian Standard AS/NZS 1221:1997 Fire hose reels and installed in accordance with the relevant clauses of Australian Standard AS2441:2005 Installation of fire hose reels.

h) That all plumbing associated with the reserve water supply above the ground or for a depth of not less than 300mm below the ground shall be metal.

i) That approved NSW Rural Fire Service; Static Water Supply signage is installed at approved locations for the proposed development.

j) That if the supply of gas to the subject dwelling is undertaken it shall be installed and maintained in accordance with Australian Standard AS1596-2002 The storage and handling of LP Gas and requirements of relevant authorities.

Note: Further information concerning planning for bush fire protection can be found at: www.rfs.nsw.gov.au.

11. Stormwater Drainage

The stormwater drainage system for the development must be designed for an average recurrence interval (ARI) of 20 years and be gravity drained in accordance with the following requirements:

a) Roof water must be connected to a rainwater tank having a minimum capacity in accordance with the BASIX requirements.

b) The overflow from the rainwater tank and collected surface water must be connected to an existing inter-allotment drainage system.

12. Internal Driveway/Vehicular Areas

The driveway and parking areas on site must be designed and a Construction Certificate issued in accordance with Australian Standards AS2890.1, AS3727 and the following requirements:

a) The driveway be a rigid pavement.

b) The driveway grade must not exceed 25 percent and changes in grade must not exceed 8 percent per plan metre.

c) A turning area within the subject site to service the proposed dwelling must be designed and constructed in accordance with Australian Standards AS2890.1 to ensure vehicles can enter and leave the site in a forward direction.

d) Reconstruction of the existing concrete driveway within the existing right of access is necessary if the driveway is damaged during the construction of the new dwelling.

13. Appointment of a Project Bush Regenerator and Ecologist

a) The applicant shall notify Council of the details of the engaged Project Bush Regenerator and Ecologist that will be involved with the implementation and monitoring of environmental protection measures during the construction of the approved development. These environmental experts will assist in ensuring compliance with the conditions of consent and provide monitoring reports to Council at various stages of the Project as identified in the approved Integrated Bushfire and Vegetation Management Plan prepared by Hunter Ecology dated 27 April 2021.The ecologist will also be responsible for implementing the tree hollow improvement works as recommended in the Powerful Owl (Ninox strenua) surveys and assessment prepared by Hunter Ecology dated 10 August 2021.

b) An inspection schedule to assess vegetation health and provide certification for the various stages of development such as site establishment (includes demolition and installation of tree protection measures), weed removal, construction work, hard and soft landscaping practical completion and occupancy certification is to be included with the application for the construction certificate.

14. Appointment of a Project Arborist

b) Details of the appointed project arborist must be submitted to Council and the PCA with the application for the construction certificate.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

15. Erection of Construction Sign

a) A sign must be erected in a prominent position on any site on which any approved work is being carried out:

i) Showing the name, address and telephone number of the principal certifying authority for the work.

ii) Showing the name of the principal contractor (if any) for any demolition or building work and a telephone number on which that person may be contacted outside working hours.

iii) Stating that unauthorised entry to the work site is prohibited.

b) The sign is to be maintained while the approved work is being carried out and must be removed when the work has been completed.

16. Installation of Tree Protection Measures

a) Trees to be retained and numbered T1, T2, T3, T4, T5, T6, T7, T11, T12, T13, T14, T15, T16, T17, T18, T19, T20, T21, T23, T24, T27, T28, T29 as identified on the Tree Location Plan prepared by Arboricultural Impact Assessment prepared by McArdle Arboricultural Consultancy dated 29 November 2021 TRIM D08311755must have tree protection measures for the ground, trunk and canopy installed by the project arborist as follows:

i) For the duration of construction works, in accordance with Tree Protection Plan prepared by Arboricultural Impact Assessment prepared by McArdle Arboricultural Consultancy dated 29 November 2021 (D08311755).

b) Tree protection fencing for the trees to be retained must be installed by the engaged AQF 5 project arborist and consist of 1.8m high temporary fencing panels installed in accordance with Australian Standard AS4687-2007 Temporary fencing and hoardings.

i) The exception being those protected by the existing boundary fencing.

d) Where wood-chip mulch is permitted by Council instead of tree protection fencing within the tree protection zones, the wood-chip must be covered with a layer of geotextile fabric and rumble boards.

17. Protection of vegetation, habitat and environmental features during construction

To ensure the protection of vegetation, habitat and environmental features during construction, the applicant must:

a) Install 1.2m high chain wire fencing (or similar) along the southern boundary of the site as shown in the approved plans.

b) Clean machinery of soil and debris before entering the site to prevent the spread of weeds and fungal pathogens.

Note: The site contains potential habitat for threatened species listed under the NSW Biodiversity Conservation Act 2016. The Act prohibits the disturbance to threatened species, endangered populations and threatened ecological communities, or their habitat, without appropriate consent or licence.

18. Integrated Bushfire and Vegetation Management Plan (IBVMP)

a) All on-ground works shall comply with the approved Integrated Bushfire and Vegetation Management Plan (IBVMP) prepared by Hunter Ecology dated 27 April 2021 and Powerful Owl (Ninox strenua) surveys and assessment prepared by Hunter Ecology dated 10 August 2021. This includes compliance with development milestones listed in the Schedule of Works within Section 3, 6 & 7 of the approved IBVMP.

b) The IBVMP shall be implemented from the date of issue of the Notice of Determination.

c) Monitoring should occur every 3 months for the first year of this IBVMP, then biannually until the expiration of this IVBMP to ensure that weed control is well managed and plantings have established and nestboxes have been installed. At the end of the 3-year IBVMP period a final monitoring report shall be provided to Council (naturalresourcesplanning@hornsby.nsw.gov.au). If the performance criteria have not been met the life to the IBVMP will be extended accordingly at the discretion of Council’s Natural Resources Unit.

d) Monitoring of the site after the initial 3/5 years should occur annually. Reporting on the implementation of the IBVMP should occur annually with the annual reports provided to Council (naturalresourcesplanning@hornsby.nsw.gov.au).

Reason: The development of a consolidated IBVMP will provide the developer and current and future landowners with a single document describing the required vegetation management actions across the site.

19. APZ – marking of boundary

The boundary of the asset protection zone must be surveyed and permanently marked before the works begin and must be kept in place in perpetuity as follows:

a) Sufficient markers (a minimum of 2) must be placed along the boundary of the APZ to clearly delineate the extent of the asset protection zone.

b) The markers must be a tubular metal post (or the like) standing a minimum of 400mm above ground.

c) The markers must include a notation stating: End of Asset Protection Zone. The notation may be in the form of an attached sign or sticker with lettering of a contrasting colour to the post colour.

d) A survey and photographic evidence must be submitted to the Principal Certifying Authority confirming compliance with this condition.

Reason: To provide certainty for the developer, current and future landowners, Council and contractors, during and after construction, as to the boundaries of the asset protection zone and those areas associated with different management requirements.

20. Protection of Adjoining Areas

A temporary hoarding, fence or awning must be erected between the work site and adjoining lands before the works begin and must be kept in place until after the completion of the works if the works:

a) Could cause a danger, obstruction, or inconvenience to pedestrian or vehicular traffic.

b) Could cause damage to adjoining lands by falling objects.

c) Involve the enclosure of a public place or part of a public place.

d) Have been identified as requiring a temporary hoarding, fence or awning within the Council approved Construction Management Plan (CMP).

Note: Notwithstanding the above, Council’s separate written approval is required prior to the erection of any structure or other obstruction on public land.

21. Toilet Facilities

b) Each toilet must:

i) Be a standard flushing toilet connected to a public sewer.

ii) Be a temporary chemical closet approved under the Local Government Act 1993.

22. Erosion and Sediment Control

Note: On the spot penalties may be issued for any non-compliance with this requirement without any further notification or warning.

23. Bushfire Management – Protection Zones

At the commencement of building works the Assets Protection Zone as outlined within Appendix 4 of Planning for Bush Fire Protection 2019 and the NSW Rural Fire Service’s document Standards for asset protection zones must be in accordance with the following:

a) From the southern elevation of the dwelling house to the south for 37m.

b) From the western, eastern and northern elevations of the dwelling house to the lot boundaries.

Note: Further information concerning planning for bush fire protection can be found at: www.rfs.nsw.gov.au.

REQUIREMENTS DURING CONSTRUCTION

24. Construction Work Hours

All works on site, including demolition and earth works, must only occur between 7am and 5pm Monday to Saturday.

No work is to be undertaken on Sundays or public holidays.

25. Prohibited Actions within the fenced tree protection zone

The following activities are prohibited within the approved fenced tree protection zones unless otherwise approved by Council:

a) Soil cutting or filling, including excavation and trenching.

b) Soil cultivation, disturbance or compaction.

c) Stockpiling storage or mixing of materials.

d) The parking, storing, washing and repairing of tools, equipment and machinery.

e) The disposal of liquids and refuelling.

f) The disposal of building materials.

g) The siting of offices or sheds.

h) Any action leading to the impact on tree health or structure.

26. Maintaining the health of trees approved for retention

The appointed project arborist must monitor and record any and all necessary actions required to maintain tree health and condition for trees numbered T1, T2, T3, T4, T5, T6, T7, T11, T12, T13, T14, T15, T16, T17, T18, T19, T20, T21, T23, T24, T27, T28, T29 on the approved plans.

27. Maintaining Tree Protection Measures

Tree Protection Measures must be maintained by the project arborist in accordance with Condition No. 16 of this consent for the duration of works.

28. Approved Works within Tree Protection Zone incursions

a) Where tree root pruning is required for the installation of piers, driveway or underground services, the pruning must be overseen by the AQF 5 project arborist and must be undertaken as follows:

i) Using sharp secateurs, pruners, handsaws or chainsaws with the final cut being clean.

ii) The maximum diameter of roots permitted to be cut is 40mm.

b) Approved excavations within the Tree Protection Zone of trees to be retained not associated with installation of services must be undertaken as follows:

i) Excavations for the construction and/or installation of the house/deck/driveway/piers in the Tree Protection Zone of trees to be retained numbered on the approved plans must be supervised by the project arborist for the first 1.000 meter undertaken manually to locate roots and allow for pruning in accordance with condition No. 28a).

c) To minimise impacts within the Tree Protection Zone (TPZ) of trees to be retained on the approved plans, the installation of services must be undertaken as follows:

i) The AQF 5 project arborist must be present to oversee the installation of any underground services which enter or transect the tree protection.

ii) The installation of any underground services which either enter or transect the designated TPZ must be undertaken manually.

iii) For manually excavated trenches the AQF 5 project arborist must designate roots to be retained. Manual excavation may include the use of pneumatic and hydraulic tools.

d) Where scaffolding is required, ground protection must be installed beneath the scaffolding in the following order:

i) Installation of a 100mm deep layer of woodchip.

ii) Installation of geotextile fabric ground covering.

iii) Installation of scaffold boarding above the woodchip and geotextile fabric.

29. Works near trees

a) To maintain tree health and condition for trees to be retained on the approved plans, the appointed project arborist must monitor and record all necessary remedial actions required.

b) The maintenance and monitoring of all tree protection techniques must be recorded by the appointed project arborist during the period of construction for submission with the application for the occupation certificate.

30. Building Materials and Site Waste

31. Environmental Management

To prevent sediment run-off, excessive dust, noise or odour emanating from the site during the construction, the site must be managed in accordance with the publication ‘Managing Urban Stormwater - Landcom (March 2004) and the Protection of the Environment Operations Act 1997.

32. Council Property

33. Disturbance of Existing Site

34. Landfill

a) Prior to fill material being imported to the site, a Waste Classification Certificate shall be obtained from a suitably qualified environmental consultant confirming the fill wholly consists of Virgin Excavated Natural Material (VENM) as defined in Schedule 1 of the Protection of the Environment Operations Act 1997 or a material approved under the NSW Environment Protection Authority’s Resource Recovery Orders and Exemptions.

b) The required Waste Classification Certificate must be obtained by the Principal Contractor prior to fill being imported to the site and made available to Council at its request.

35. Excavated Material

All excavated material removed from the site must be classified by a suitably qualified environmental consultant in accordance with the NSW Environment Protection Authority’s Waste Classification Guidelines and Protection of the Environment Operations (Waste) Regulation 2014 prior to disposal to a licensed waste management facility. Tipping dockets for the total volume of excavated material that are received from the licensed waste management facility must be provided to the principal certifying authority prior to the issue of an Occupation Certificate.

36. Survey Report

A report(s) must be prepared by a registered surveyor and submitted to the principal certifying authority:

a) Prior to the pouring of concrete at each level of the building certifying that:

i) The building, retaining walls and the like have been correctly positioned on the site.

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

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

37. Fulfilment of BASIX Commitments

The applicant must demonstrate the fulfilment of BASIX commitments pertaining to the development.

38. Damage to Council Assets

39. Replacement Tree Requirements

a) The trees approved for removal under this consent, being 6 trees numbered T8, T9, T10, T22, T25 and T26 must be offset through replacement planting of a minimum of 10 trees in accordance with the following:

i) 5 trees must have the potential to reach a mature height of greater than 10m.

ii) 5 mid-story trees with the potential to reach a mature height of greater than 5m.

iii) This planting should be consistent with the approved Integrated Bushfire and Vegetation Management Plan.

b) All replacement plantings must be species selected from the ‘Trees Indigenous to Hornsby Shire (as of 1 September 2011)’ document available for viewing on the Hornsby Council’s website http://www.hornsby.nsw.gov.au/environment/flora-and-fauna/tree-management/indigenous-trees .

c) The location and size of tree replacement planting must comply with the following:

i) All replacement trees must be located in either front or rear setbacks and planted 4m or greater from the foundation walls of the approved development.

ii) The pot size of the replacement trees must be a minimum 45 litres.

iii) All replacement trees must be a minimum of 3m in height when planting.

40. Final Certification

The AQF 5 Project arborist must submit to the Principal Certifying Authority a certificate that includes the following:

a) All tree protection requirements complied with the as approved tree protection plan for the duration of demolition and/or construction works.

b) All completed works relating to tree protection and maintenance have been carried out in compliance with the conditions of consent and approved plans.

c) Dates, times and reasons for all site attendance.

d) All works undertaken to maintain the health of retained trees.

e) Details of tree protection zone maintenance for the duration of works.

f) A statement to confirm that tree replacement planting meets NATSPEC guidelines and the approved landscape plan.

Note: Copies of monitoring documentation may be requested throughout DA process.

41. Damage to Council Assets

42. Supplementary Planting, Weeding and Nest Box Installation

Any supplementary planting, weeding and nest box installation outside the immediate landscaping area depicted in the approved Landscape Plan No. DA.05 rev. D, prepared by Grindstone Landscapes dated 14 August 2021 shall be in accordance with Section 4.3 of the approved Integrated Bushfire and Vegetation Management Plan (IBVMP) prepared by Hunter Ecology dated 27 April 2021 and stock used for planting shall be sourced from a native nursery utilising Sydney basin stock. The hollow improvement works and 4 nest boxes shall only be installed and certified by an experienced fauna ecologist (Section 3.8 of the IBVMP and the Powerful Owl (Ninox strenua) surveys and assessment prepared by Hunter Ecology dated 10th August).

43. Certificate of Bushfire Requirements

a) A Certificate prepared by a BPAD accredited Bushfire Consultant is to be provided to the Principal Certifying Authority (PCA) certifying the completion of all works required by the Bushfire Assessment Report Ref: 20.10.316 prepared by Bushfire Planning & Design dated 15 October 2020, and condition Nos. 10 and 23 of this consent prior to the issue of the Occupation Certificate.

b) A suitably qualified and experienced bush fire consultant must provide to the PCA and Council certification of the implementation of the of the approved asset protection zone.

44. Final Certification – Ecology/Bush regeneration

The project ecologist/bush regenerator must provide to the PCA and/or Council certification of the implementation of the of the approved Integrated Bushfire and Vegetation Management Plan (IBVMP) prepared by Hunter Ecology dated 10 August 2021.

45. Retaining Walls

All retaining walls must be constructed as part of the development and prior to the issue of an Occupation Certificate.

46. Construction of engineering works.

All engineering works identified in this consent are to be completed and a Compliance Certificate issued prior to the release of the Occupation Certificate or Subdivision Certificate.

OPERATIONAL CONDITIONS

47. Ongoing Protection of Remnant Trees

All trees on site not approved for removal under this consent are required to be retained for conservation purposes. These trees have a legal obligation for their preservation and are excluded from the clearing provisions of the 10/50 Vegetation Clearing Code of Practice for New South Wales in accordance with Clause 7.8 of the Code.

48. Ongoing Bushfire Management

Any requirements relating to bushfire protection must be maintained in perpetuity and landscaping works must be consistent with the Asset Protection Zone requirements as described in Planning for Bush Fire Protection 2019.

- END OF CONDITIONS -

ADVISORY NOTES

Environmental Planning and Assessment Act 1979 Requirements

The Environmental Planning and Assessment Act 1979 requires:

· The issue of a construction certificate prior to the commencement of any works. Enquiries can be made to Council’s Customer Services Branch on 9847 6760.

· A principal certifying authority to be nominated and Council notified of that appointment prior to the commencement of any works.

· Council to be given at least two days written notice prior to the commencement of any works.

· Mandatory inspections of nominated stages of the construction inspected.

· An occupation certificate to be issued before occupying any building or commencing the use of the land.

Long Service Levy

Note: The rate of the Long Service Levy is 0.35% of the total cost of the work.

Note: Hornsby Council requires the payment of the Long Service Levy prior to the issue of a construction certificate.

Tree and Vegetation Preservation

Fines may be imposed for non-compliance with the Hornsby Development Control Plan 2013.

Note: A tree is defined as a long lived, woody perennial plant with one or relatively few main stems with the potential to grow to a height greater than 3m. (HDCP 1B.6.1.c).

Covenants

Dial Before You Dig

Telecommunications Act 1997 (Commonwealth)

Asbestos Warning

· The proposal complies with the requirements of the Hornsby Local Environmental Plan 2013 and the Hornsby Development Control Plan 2013.

Alternatively, telephone the SafeWork NSW on 13 10 50.

Rain Water Tank

It is recommended that water collected within any rainwater tank as part of the development be limited to non-potable uses. NSW Health recommends that the use of rainwater tanks for drinking purposes not occur where a reticulated potable water supply is available.

LPP Report No. LPP11/22

Local Planning Panel

Date of Meeting: 23/02/2022

5 DA/161/2021 - FURTHER REPORT - CONSTRUCTION OF A DWELLING HOUSE - 38B MALTON ROAD, BEECROFT

EXECUTIVE SUMMARY

DA No:	DA/161/2021 (Lodged on 18 February 2021)
Description:	Construction of a dwelling house
Property:	Lot 2 DP 1226564, No. 38B Malton Road, Beecroft
Applicant:	Peter Henderson
Owner:	Mrs Janet Gwendoline Henderson
Estimated Value:	$1,000,000.
Ward:	C

· The application involves the construction of a dwelling house.

· A total of 16 submissions have been received in respect of the application.

· It is recommended that the application be approved.

RECOMMENDATION Consent

THAT Development Application No. DA/161/2021 for construction of a dwelling house at Lot 2 DP 1226564, No. 38B Malton Road, Beecroft be approved, subject to the conditions of consent detailed in Schedule 1 of LPP Report No. LPP11/22.

BACKGROUND

DA/390/2016 was approved for on 6 October 2016 for the demolition of structures and Torrens Title subdivision of two lots into three. DA/161/2021 seeks approval to construct a dwelling house on Lot 2.

On 22 March 2021, Council requested amended plans to address the turning circles provided, an amended landscape plan, an Integrated Bushfire and Vegetation Management Plan (IBVMP) and an Arboricultural impact assessment report.

On 6 May 2021, Council received the amended plans and IBVMP.

On 28 May 2021, Council received the request Arboricultural Impact Assessment Report.

On 26 July 2021, Council requested a survey for threatened Powerful Owl (Ninox strenua) and an impact assessment of significance (‘five-part test’) in accordance with Section 7.3 of the NSW Biodiversity Conservation Act 2016 prepared by fauna ecologist with survey experience and assessment specifically for this species.

On 11 August 2021, Council received the Threatened Powerful Owl survey and an amended IBVMP.

On 25 August 2021, Council requested amended plans to reduce the amount of fill proposed within the rear yard and increase the setbacks of the proposed retaining walls.

On 29 September 2021, the Hornsby Council Local Planning Panel considered the application and resolved:

The Panel resolved to defer the determination of the application and require the applicant to address issues raised by the speakers in the meeting including:

· The provisions of the positive covenant and conservation of native vegetation.

· The extent of the APZ with respect to potential building encroachment.

· The potential to retain significant trees on the site.

· Proposed treatment of the watercourse and on-site water management.

· The necessity for rear yard tiering and retaining walls.

· Measures to ameliorate privacy impacts from the windows on No. 40A.

· Replacement tree planting.

On 8 October 2021, Council requested amended plans to address the reasons for deferral from the LPP meeting.

On 9 December 2021, Council received the amended plans which are subject to this assessment. The amendments included reducing the tiered landscaping within the rear, reducing the required cut and fill, increasing the number of trees to be retained and providing glazed windows to ameliorate privacy impacts to the adjoining property No. 40A Malton Road.

SITE

The 2,386m² vacant battle-axe property is located on the southern side of Malton Road Beecroft and experiences a fall of 30m to the rear southern boundary. The site is burdened and benefitted by a right of access and easement for services of variable width and easement to drain water of variable width.

The southern, rear portion of the site contains dense bushland identified as Blackbutt Gully Forest vegetation community.

The site is located within the Beecroft/Cheltenham Heritage Conservation Area listed under Schedule 5 of the Hornsby Local Environmental Plan 2013.

The property is also located within close proximity to the following heritage listed items:

· No.37 Malton Road, Beecroft

· No.177E Copeland Road, Beecroft

· Street trees growing along the road reserve of Malton Road

The site is identified as bushfire prone land.

PROPOSAL

The application proposes the construction of a one and two storey dwelling house.

The ground floor would include a family/dining room, a double-spaced garage, lounge room, bathroom, walk in wardrobe, ensuite, kitchen with attached pantry and an outdoor alfresco area.

On the lower ground floor, the dwelling would include a bedroom, rumpus room, ensuite, walk in wardrobe and study.

Retaining walls are proposed to the rear of the dwelling house to create a tiered landscaped area.

Seven trees would be removed by the proposed development.

ASSESSMENT

1. STRATEGIC CONTEXT

1.1 Greater Sydney Region Plan - A Metropolis of Three Cities and North District Plan

2. STATUTORY CONTROLS

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 a ‘dwelling house’ and is permissible with Council’s consent. The proposed development meets the objectives of the R2 zone.

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 has a height of 8.5m and complies with this provision.

2.1.3 Heritage Conservation

· No. 37 Malton Road, Beecroft (No. 124)

· No.177E Copeland Road, Beecroft; (No. 94)

· Street trees growing along Malton Road (No. 114)

The proposed dwelling house would be one storey when viewed from the front elevation and there would be minimal visual impacts to the streetscape of Malton Road due to the dwelling house being setback approximately 50m from the streetscape. The proposal would have negligible heritage impacts to the Beecroft/Cheltenham HCA or the nearby heritage listed items along Malton Road.

In assessing the heritage impacts to the heritage listed item at No. 177E Copeland Road to the rear of the site, it is noted that the rear of the site contains existing vegetation that would screen the proposed dwelling house from the adjacent heritage listed item and would have a rear boundary setback of greater than 70m.

Therefore, the proposed development meets the objectives of Clause 5.10 of the HLEP and is considered acceptable.

2.1.4 Earthworks

The Hornsby Shire Council Local Planning Panel at its meeting on 29 September 2021, deferred consideration of the development application raising issues regarding the necessity for rear yard tiering and retaining walls. Submissions also received raised concerns to the proposed extent of earthworks within the rear yard to create the tiered landscaping. To address the reasons for deferral, the applicant submitted amended plans to reduce the depth of the retaining walls to the rear yard which has reduced the amount of cut and fill required.

The application proposes a cut of 2m for the proposed dwelling house and a maximum fill of 0.8m for the proposed rear landscaping.

In support of the proposed landform modification within the rear yard, it is noted that the application proposes retaining walls to retain the fill which would be setback 1.495m from the western side boundary to mitigate any amenity or environmental impacts to the adjoining property No. 40A Malton Road.

In assessing the proposed 2m cut for the proposed basement level of the dwelling house, it is noted that the application is supported by a Geotechnical Report prepared by Ideal Geotech dated September 2020. This report supports the application subject to recommendations relating to the provision of a dilapidation report, requirements for excavation, footing and retaining walls. Council’s assessment of the application notes that the excavation of the basement level would reduce the bulk and scale of the proposed development when viewed from adjacent properties and the application responds appropriately to the topography of the land. No objections are raised on planning grounds to the proposed excavation as it is generally considered that the application would have minimal environmental and amenity impacts.

Council’s assessment of the proposed works and excavation concludes that the proposed earthworks would have minimal and acceptable environmental, and amenity impacts to adjoining properties.

2.1.5 Covenant

In granting consent to DA/390/2016 condition 38 was imposed which stated the following:

38. Restriction as to User – Protection of Land from Future Development

b) The proposed Restriction as to User area Plan and final wording is to be provided to Council’s Natural Resources Unit for review prior to approval.

Note: The wording of the Restriction as to User must be to Council’s satisfaction and Council must be nominated as the authority to release, vary or modify the Restriction.

The final wording within the Section 88B instrument that relates to the proposed development, states the following:

Terms of Restriction as to User fourthly referred to in the above-mentioned plan (D).

No future development is permitted in the Restricted Development Area (D0 on lots 2 and 3 to ensure protection of native vegetation and habitat.

Council Comment: No development is proposed within the area denoted D on the survey plan.

Terms of restriction fifthly referred to in the above-mentioned plan (E)

c) All of proposed lot 1

d) The northern section of lots 2 & 3 shown as (E) APZ on the plan.

Council comment: The proposed dwelling house does not encroach within the area denoted (E) on the survey plan. A bushfire report has been submitted with the application which outlines how the required APZ is achieved and to be maintained and conditions are recommended in Schedule 1 of this report. It is noted that the application proposes retaining walls within the area denoted (E) on the survey plan. It is noted that Planning for Bushfire Protection 2021 does not prohibit these minor structures from being located within the APZ and they are considered acceptable.

Terms of Positive Covenant eighthly referred to in the above-mentioned plan

To ensure the protection and ongoing management of the Restricted Development Area denoted (D) on the plan

e) All Landscaping, weed, fire and native vegetation management shall be in accordance with the approved integrated Bushfire and Vegetation Management Plan.

g) High use open space areas shall be limited to land outside the Restricted Development Area (D).

Therefore, the application complies with the requirements of the Section 88B instrument.

2.2 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

The development requires the removal of trees which precludes the development from being approved as Complying Development. The proposed dwelling house additions would otherwise comply with the numerical standards for Complying Development contained within the NSW Housing Code.

2.3 State Environmental Planning Policy No. 55 Remediation of Land

2.4 SEPP (Building Sustainability Index: BASIX) 2004

2.5 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

2.6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

2.7 Section 3.42 Environmental Planning and Assessment Act 1979 - Purpose and Status of Development Control Plans

2.8 Hornsby Development Control Plan 2013

HDCP – Part 3.1 Dwelling Houses
Control	Proposal	Requirement	Complies
Site Area	2,386m²	N/A	N/A
Building Height	8.5m	8.5m	Yes
No. storeys	2 + attic	max. 2 + attic	Yes
Site Coverage	11%	30%	Yes
Floor Area	342m²	430m²	Yes
Setbacks
- Side (north)	8.8m	0.9m	Yes
- Side (west)
Ground floor	1.05m	0.9m	Yes
Retaining walls	0m	0.9m	No
First floor	2.3m	1.5m	Yes
- Side (east)
Ground floor	3.6m	0.9m	Yes
Retaining walls	1.495m	0.9m	Yes
First floor	2.3m	1.5m	Yes
- Rear (south)
Ground floor	>70m	3m	Yes
First floor	>70m	8m	Yes
Landscaped Area (% of lot size)	67%	45%	Yes
Private Open Space
- minimum area	32m²	24m²	Yes
- minimum dimension	4m	3m	Yes
Car Parking	2 spaces	2 spaces	Yes

As detailed in the above table, the proposed development does not comply with the prescriptive measures for setbacks within the HDCP. This matter of non-compliance is detailed below, as well as a discussion on compliance with relevant desired outcomes.

2.8.1 Setbacks

This is supported by the prescriptive measure set out in Table 3.1.2(a): Minimum Boundary Setbacks which prescribes a minimum side boundary setback of 0.9m for single storey elements and structures.

The application proposes a nil setback to the western side boundary for the retaining walls within the rear yard which does not comply with the 0.9m prescriptive measure.

In support of the 0.9m encroachment, it is noted that the levels of the proposed retaining walls would be the same as the neighbouring property No. 38A Malton Road as shown in the proposed plans for DA/137/2021. As the application proposes the same levels as the adjoining property, no objections are raised to the proposed western side boundary encroachment. It is noted that the retaining walls originally proposed extended 17m to the rear of the alfresco area. To address the reasons for deferral by the Local Planning Panel, the applicant has provided amended plans in which the retaining walls extend 7.5m from the rear of the alfresco area which reduces the setback encroachments along the side boundaries.

Conditions are recommended in Schedule 1 of this report requiring the structural details of these retaining walls be submitted with the application for the construction certificate and these retaining walls be constructed prior to the issue of an occupation certificate.

Due to the proximity of the proposed retaining wall to the boundary of the adjoining property at No. 38A Malton Road Beecroft, a condition is recommended in Schedule 1 of this report, requiring the retaining wall to be built entirely within the subject property.

The proposal meets the desired outcomes of Part 3.1.2 Setbacks of the HDCP and is considered acceptable, subject to conditions.

2.8.2 Sunlight Access

Submissions were received raising concern to the overshadowing of adjacent properties form the proposed development.

An assessment of the shadow diagrams provided by the applicant illustrate that the subject site and the adjoining properties No. 38A and 40A Malton Road, would receive at least 3 hours of unobstructed sunlight access to 50 per cent of their private open space between 9am and 3pm on the day of the winter solstice.

The proposal meets the desired outcomes of Part 3.1.5 Sunlight Access of the HDCP and is considered acceptable.

2.8.3 Privacy

The desired outcome of Part 3.1.6 Privacy of the HDCP is to encourage “development that is designed to provide reasonable privacy to adjacent properties.”

This is supported by the prescriptive measures that states:

a) “Living and entertaining areas of dwelling houses should be located on the ground floor and oriented towards the private open space of the dwelling house and not side boundaries.

b) A proposed window in a dwelling house should have a privacy screen if:

· It is a window to a habitable room, other than a bedroom, that has a floor level of more than 1 metre above existing ground level.

· The window is setback less than 3 metres from a side or rear boundary.

· The window has a sill height of less than 1.5 metres.

c) A deck, balcony, terrace or the like should be located within 600mm of existing ground level where possible to minimise potential visual and acoustic privacy conflicts.

Submissions received raised concern regarding overlooking from the alfresco area. The application proposes a raised ground level outdoor alfresco area which would be elevated 3.2m above the existing ground level. In assessing the amenity impacts of the proposed raised alfresco area, it is noted that the alfresco area would be within 9m of the private open space (POS) of the adjoining property No. 40A Malton Road separated by a right of carriageway.

To reduce the opportunity to overlook the POS of No. 40A Malton Road, a condition is recommended in Schedule 1 of this report requiring a 1.7m high privacy screen be erected along the eastern side of the proposed alfresco area to comply with Council’s prescriptive measures.

To address the reasons for deferral by the local planning panel, the applicant has provided amended plans which provide translucent glazing to the two windows within the western elevation of the raised ground level family/ dining room which may allow some overlooking to adjoining properties. The use of translucent glazing is considered to be satisfactory to mitigate any privacy impacts.

All other first floor level windows would provide natural light and ventilation to ‘non-habitable’ use rooms (bathroom and bedrooms) in compliance with Council’s planning guidelines.

The proposal meets the desired outcome of Part 3.1.6 Privacy of the HDCP and is considered acceptable.

2.8.4 Vehicle Access and Parking

2.9 Section 7.12 Contributions Plans

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

The proposed development would be within the vicinity of 18 trees numbered T1 to T7 and T27 to T37 inclusive as identified within Arboricultural Impact Assessment (AIA) report prepared by McArdle Arboricultural Consultancy dated 28 May 2021.

Submissions were received which raised concerns to the removal of trees, incorrect labelling of trees being exempt and impact on neighbouring trees.

It is noted that trees numbered T1 to T7 are located adjacent to the existing driveway, trees T27 to T30 inclusive are located on the adjacent property No. 38 Malton Road and trees numbered T31 to T37 inclusive are located within the subject site.

The remaining trees are the west of the subject site on or adjacent to No. 38A Malton Road and would not be impacted by the proposed development.

The application proposes the removal of 5 trees numbered T31, T32, T33, T36 and T37.

Trees numbered 31, 32 and 37 are identified as Acer negundo (box elder), Eriobotrya japonica (loquat) and a deciduous species and have a very low to low retention value.

Trees numbered T33 is identified as a Pittosporum undulatum (Sweet Pittosporum) tree with a moderate retention value and would be located within the building footprint.

Tree T36 is identified as Syncarpia glomulifera (Turpentine) tree with a high retention value and would be located within close proximity of the building footprint and is proposed for removal.

These trees would be located within the building footprint of the proposed development and within the required APZ area. While tree loss is not ideal, it is noted that there is sufficient space elsewhere on the site for appropriate replacement planting.

It is noted that to address the reasons for deferral, the application provided amended plans which retained trees numbered T34 and T35 which are identified as Syncarpia glomulifera (Turpentine) trees of high retention value. Appropriate conditions are recommended in Schedule 1 of this report for the retention and protection of these trees.

To offset the removal of 5 trees, a condition is recommended in Schedule 1 of this report requiring the replacement planting of 5 trees with the potential to reach a mature height of greater than 10m and 5 mid-storey trees with the potential to reach a mature height of greater than 5m.

Submissions were received with concerns to the lack of space on the site for replacement planting.

Due to the size of the 2,386m² lot, it is considered that these trees can be planted in an appropriate location whilst satisfying the requirements for an APZ as discussed in Section 4.2 Bushfire of this report.

Subject to conditions, the proposed development meets the desired outcomes of Part 1B6.1 Tree Preservation of the HDCP and the proposed development would result in acceptable environmental impacts.

3.1.2 Biodiversity

Council’s ecologists have assessed the Integrated Bushfire and Vegetation Management Plan prepared by Hunter Ecology dated 10 August and the Powerful Owl (Ninox strenua) surveys and assessment prepared by Hunter Ecology dated 10th August and determined the following:

· Powerful Owl were recorded roosting in the locality

· No breeding habitat is present on site

· Some practical measures can be implemented in site to enhance habitat for this species (hollow improvement and nest box installation)

· The proposed development is unlikely to have a significant impact upon the local population of this species

Conditions are recommended in Schedule 1 of this report to minimise any disturbance to the species, a project ecologist must be appointment a Project Bush Regenerator and Ecologist that will be involved with the implementation and monitoring of environmental protection measures during the construction of the proposed development. A condition is also recommended requiring 4 nest boxes be installed by an experienced fauna ecologist prior to works commencing on the site.

Subject to conditions, the proposed development meets the desired outcomes of Part 1C.1.1 Biodiversity of the HDCP and the proposed development would result in acceptable environmental impacts.

3.1.3 Stormwater Management

The residential development would have a minor impact on the natural environment with the stormwater system conditioned to be directed from the above ground rainwater tank and the overflow from the rainwater tank connected to the existing inter-allotment drainage system. All stormwater collected by the proposed retaining walls would be connected to the existing inter-allotment drainage system. As the inter-allotment drainage system was approved through the subdivision of DA/390/2016, no objections are raised to connect to this inter-allotment system.

Appropriate conditions are also recommended to ensure appropriate sediment and erosion control measures are in place during construction to protection the bushland to the rear of the site.

3.2 Built Environment

3.2.1 Built Form

3.3 Social Impacts

3.4 Economic Impacts

4. SITE SUITABILITY

Section 4.15(1)(c) of the Act requires Council to consider “the suitability of the site for the development”.

4.1 Flooding

The site is not identified as flood prone.

4.2 Bushfire Risk

The desired outcomes of Part 1C.3.1 Bushfire of the HDCP are to encourage “development that is located and designed to minimise the risk to life and property from bushfires”.

The site is bushfire prone and the application was accompanied by a Bushfire Assessment Report prepared by Bushfire Planning & Design dated 15 October 2020, which assigned the site a Bushfire Attack Level (BAL) of 29. Consequently, the application was not required to be referred to the NSW Rural Fire Service (RFS) for comment in accordance with Section 4.14 of the Environmental Planning and Assessment Act 1979.

Submissions were received raising concerns to the inadequacy of the bushfire requirements.

Council’s assessment of the bushfire report requires the establishment of an Asset Protection Zone (APZ) of 36m from the rear of the dwelling house towards the southern boundary which is consistent with the requirements of the subdivision approved under DA/390/2016.

The proposal meets the desired outcomes of Part 1C.3.1 Bushfire of the HDCP and is considered acceptable, subject to conditions that require the construction of the dwelling to comply with Australian Standard AS3959-2009 Construction in bushfire prone areas. Conditions are also recommended requiring the development to comply with the Integrated Bushfire and Vegetation Management Plan (IBVMP) prepared by Hunter Ecology dated 10 August 2021.

Council has raised no objections to the development, subject to the conditions listed in Schedule 1 of this report.

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 19 February 2021 and 16 March 2021 and 2 June 2021 and 21 June 2021 in accordance with the Hornsby Community Engagement Plan. During this period, Council received a combined total of 16 submissions. Amended Plans were received to address the Local Planning Panel’s deferment on 29 September 2021. These amended plans were considered minor modifications and in accordance with the Hornsby Community Engagement Plan, renotification of the application was not required. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

Diagram

Description automatically generated

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

10 SUBMISSIONS RECEIVED OUT OF MAP RANGE

Sixteen submissions objected to the development, generally on the grounds that the development would result in:

· Impact to trees on neighbouring properties

· Lack of space on site for replacement planting

· Bushfire impacts not sufficiently addressed

· Privacy concerns

· Watercourse at the rear of the site

· Earthworks

· Unacceptable environmental impacts through tree loss

· Unacceptable impacts to powerful owl habitat

· Unacceptable overshadowing of adjoining properties

· Unacceptable privacy impacts

· The removal of a significant trees

· Development that is excessive in bulk and scale

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

5.1.1 Development that is excessive in bulk and scale

Submissions were received raising concern to the excessive bulk and scale of the proposed development.

In response to these submissions, it is noted that as outlined in the compliance table in Section 2.8 of this report, the application complies with height, floor area, site coverage and landscaping requirements.

5.1.2 Watercourse at the rear of the site

Submissions were received raising concerns to the watercourse at the rear of the site known as Byles Creek and the impact the proposed development would have on this watercourse.

5.2 Public Agencies

The development application was not referred to any Public Agencies for comment.

6. THE PUBLIC INTEREST

Section 4.15(1)(e) of the Act requires Council to consider “the public interest”.

CONCLUSION

The application proposes the construction of a dwelling house. The application was deferred by the HLPP on 29 September 2021. The applicant submitted amended plans and documentation to address the grounds of deferral by reducing the amount of tiered landscaping to the rear, reducing the required cut and fill, increasing the number of trees to be retained and provided glazed windows to ameliorate the privacy impacts to adjoining property No. 40A Malton Road.

Council received sixteen submissions 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, approval of the application is recommended.

The reasons for this decision are:

· The proposed development generally complies with the requirements of the relevant environmental planning instruments and the Hornsby Development Control Plan 2013.

· The proposed development does not create unreasonable environmental impacts to adjoining development with regard to visual bulk, overshadowing, solar access, amenity or privacy.

RESPONSIBLE OFFICER

The officer responsible for the preparation of this report is Tim Buwalda.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

11. Dilapidation Report

1.	Locality Map
2.	Architectural Plans
3.	Landscape Plan

File Reference: DA/161/2021

Document Number: D08338581

SCHEDULE 1

GENERAL CONDITIONS

Note: For the purpose of this consent, the term ‘applicant’ means any person who has the authority to act on or the benefit of the development consent.

Note: For the purpose of this consent, any reference to an Act, Regulation, Australian Standard or publication by a public authority shall be taken to mean the gazetted Act or Regulation or adopted Australian Standard or publication as in force on the date that the application for a construction certificate is made.

1. Approved Plans and Supporting Documentation

Approved Plans

*Plan No.*	*Plan Title*	*Drawn by*	*Dated*	*Council Reference*
1724 1 of 2	Site Plan	Distinct Innovations	1 December 2021
1724 2 of 2	Elevations, Floor Plans and Sections	Distinct Innovations	1 December 2021
DA-01 rev. E	Landscape Plan	Grindstone Landscapes	14 August 2021
DA-02 rev. E	Driveway	Grindstone Landscapes	14 August 2021
DA-03 rev. E	38B Landscape Plan	Grindstone Landscapes	14 August 2021
DA-04 rev. E	38B Elevation	Grindstone Landscapes	14 August 2021

Supporting Documentation

*Document Title*	*Drawn by*	*Dated*	*Council Reference*
BASIX Certificate No. 1132496S	Frys Energywise	14 December 2021	D08108875
Integrated Bushfire and Vegetation Management Plan	Hunter Ecology	10 August 2021	D08225542
Arboricultural Impact Assessment version 12	McArdle Arboricultural Consultancy	29 November 2021	D08309820
Geotechnical Assessment ref. 46785-IDF	Idea Geotech	September 2020	D08108864
Waste Management Plan	Peter Henderson	27 December 2020	D08242464
Powerful Owl Assessment Beecroft 01	Hunter Ecology	10 August 2021	D08225544
Nathers Certificate	Frys Energywise	1 September 2020	D08108839
Bushfire Assessment Report Ref: 20.10.316	Bushfire Planning & Design	15 October 2020	D08108876
Schedule of Finishes	Distinct Innovation Pty Ltd	24 December 2020	D08108842

2. Amendment of Plans

a) To comply with Councils requirement in terms of privacy, the approved plans are to be amended as follows:

i) A 1.7m high privacy screen must be erected along the eastern elevation of the raised ground floor level alfresco area to minimise the opportunity to overlook into the private open space of adjoining property No. 40A Malton Road (Lot 321 DP 861797).

ii) The screen must have no individual openings more than 30mm wide and have a total of all openings less than 30% of the surface area of the screen.

b) These amended plans must be submitted with the application for the Construction Certificate.

3. Construction Certificate

a) A Construction Certificate is required to be approved by Council or a Private Certifying Authority prior to the commencement of any construction works under this consent.

b) The Construction Certificate plans must include all requirements imposed by condition No. 12 of this consent.

c) The Construction Certificate plans must be consistent with the Development Consent plans.

4. Removal of Trees

a) This development consent permits the removal of 5 trees numbered T31, T32, T33, T36 and T37 as identified in the Arboricultural Impact Assessment prepared by McArdle Arboricultural Consultancy dated 29 November 2021 (D08309820).

b) No consent is granted for the removal if any other trees on property 38B or 38A as these trees contribute to the established landscape amenity of the area/streetscape.

5. Tree Pruning

a) This development consent only permits the pruning of tree(s) numbered T30 as identified in the Arboricultural Impact Assessment prepared by McArdle Arboricultural Consultancy dated 28/5/2021 TRIM D08177121.

i) This can only be permitted with Tree owners written consent.

b) Works can be undertaken in the form of canopy modification as follows:

Tree number	Work prescribed
T30	Prune for vehicle access

i) All specified pruning works must be less than 10 percent.

ii) All pruning work must be undertaken by an arborist with minimum AQF3 qualifications.

6. Retaining Walls

To ensure the stability of the site, structural details of all required retaining walls must be submitted with the application of the Construction Certificate.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

7. Building Code of Australia

8. Contract of Insurance (Residential Building Work)

9. Notification of Home Building Act 1989 Requirements

a) In the case of work for which a principal contractor is required to be appointed:

i) The name and licence number of the principal contractor.

ii) The name of the insurer by which the work is insured under Part 6 of that Act.

b) In the case of work to be done by an owner-builder:

i) The name of the owner-builder.

ii) If the owner-builder is required to hold an owner-builder’s permit under that Act, the number of the owner-builder’s permit.

10. Sydney Water – Approval

This application must be submitted to Sydney Water for approval to determine whether the development would affect any Sydney Water infrastructure, and whether further requirements are to be met.

Note: Building plan approvals can be obtained online via Sydney Water Tap in^TMthrough www.sydneywater.com.au under the Building and Development tab.

A ‘Dilapidation Report’ is to be prepared by a ‘chartered structural engineer’ detailing the structural condition of the adjoining properties Nos. 40A (Lot 321 DP 861797) and 42 (Lot 31 DP 834203) Malton Road before the commencement of works and a copy submitted to Council and the PCA with the Construction Certificate.

12. Design and Construction - Bushfire Attack Category

a) That the proposed dwellings roof and eaves section, and the western, southern and eastern elevations shall be constructed to section 3 Construction General and section 7 BAL 29 of AS3959-2018 Construction of buildings in bushfire prone areas with the exception that the construction requirements shall be varied to comply with section 7.5.2 Additional Construction Requirements of Planning for Bush Fire Protection 2019.

b) That the proposed dwellings northern elevation shall be constructed to section 3 Construction General and section 6 BAL 19 of AS3959-2018 Construction of buildings in bushfire prone areas with the exception that the construction requirements shall be varied to comply with section 7.5.2 Additional Construction Requirements of Planning for Bush Fire Protection 2019.

e) That a water delivery line of not less than 50mm diameter be plumbed from the firefighting water pump plumbed to the reserve Static Water Supply tank, to an outlet point located directly adjacent to the driveway as indicated within figure 7 of the Bushfire Assessment Report prepared by Bushfire Planning & Assessment dated 15 October 2020 on the subject allotment to enable firefighting tankers to refill. The outlet of this line shall be fitted with a ball or gate valve and a 65 to 38mm reducer Storz fitting.

f) That the development must provide and have readily available kink resistant hose or hoses with a diameter of not less than 19mm and a firefighting nozzle, capable of reaching all elevations of the dwelling, and fittings suitable for connection to the firefighting water pump.

g) Fire hose reels are constructed in accordance with AS/NZS 1221:1997 and installed in accordance with the relevant clauses of AS 2441:2005.

h) That all plumbing associated with the reserve water supply above the ground or for a depth of not less than 300mm below the ground shall be metal.

i) That approved NSW Rural Fire Service; Static Water Supply signage is installed at approved locations for the proposed development.

j) That if the supply of gas to the subject dwelling is undertaken it shall be installed and maintained in accordance with AS1596-2002 and requirements of relevant authorities.

Note: Further information concerning planning for bush fire protection can be found at: www.rfs.nsw.gov.au.

13. Stormwater Drainage

The stormwater drainage system for the development must be designed for an average recurrence interval (ARI) of 20 years and be gravity drained in accordance with the following requirements:

a) Roof water must be connected to a rainwater tank having a minimum capacity of 3,500 litres (in addition to any BASIX requirements).

b) The overflow from the rainwater tank must be connected to an existing internal drainage system.

14. Internal Driveway/Vehicular Areas

The driveway and parking areas on site must be designed and a Construction Certificate issued in accordance with Australian Standards AS2890.1, AS3727 and the following requirements:

a) The driveway be a rigid pavement.

b) The driveway grade must not exceed 25 percent and changes in grade must not exceed 8 percent.

c) A turning area to service the proposed dwelling must be designed and constructed in accordance with Australian Standards AS2890.1 to ensure all vehicles can enter and leave the site in a forward direction.

d) Reconstruction of the existing concrete driveway is necessary if the driveway is damaged during the construction of the new dwelling.

15. Appointment of Project Bush Regenerator and Ecologist

a) The applicant shall notify Council of the details of the engaged Project Bush Regenerator and Ecologist that will be involved with the implementation and monitoring of environmental protection measures during the construction of the approved development. These environmental experts will assist in ensuring compliance with the conditions of consent and provide monitoring reports to Council at various stages of the Project as identified in the approved Integrated Bushfire and Vegetation Management Plan prepared by Hunter Ecology dated 10 August 2021 .The ecologist will also be responsible for implementing the tree hollow improvement works as recommended in the Powerful Owl (Ninox strenua) surveys and assessment prepared by Hunter Ecology dated 10 August 2021.

16. Appointment of a Project Arborist

b) Details of the appointed project arborist must be submitted to Council and the PCA with the application for the construction certificate/subdivision works certificate.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

17. Erection of Construction Sign

a) A sign must be erected in a prominent position on any site on which any approved work is being carried out:

i) Showing the name, address and telephone number of the principal certifying authority for the work.

ii) Showing the name of the principal contractor (if any) for any demolition or building work and a telephone number on which that person may be contacted outside working hours.

iii) Stating that unauthorised entry to the work site is prohibited.

b) The sign is to be maintained while the approved work is being carried out and must be removed when the work has been completed.

18. Installation of Tree Protection measures

a) Trees to be retained as identified on the Retention Value Map with TPZ and Tree Management Plan prepared McArdle Arboricultural Consultancy dated 29 November 2021 (D08309820) must have tree protection measures for the ground, trunk and canopy installed by the project arborist as follows:

i) For the duration of construction works, in accordance with Tree Protection Plan prepared by McArdle Arboricultural Consultancy dated 29 November 2021 (D08309820).

d) Tree crown protection measures are required and must be installed by the AQF 5 project arborist.

e) The circumference of the trunk(s) must be wrapped in hessian material to provide cushioning for the installation of timber planks.

f) Timber planks (50 x100mm) must be spaced at 100mm intervals and must be attached using adjustable ratchet straps.

g) All tree protection zones must have a layer of wood-chip mulch at a depth of between 150mm and 300mm.

h) Where wood-chip mulch is permitted by Council instead of tree protection fencing within the tree protection zones, the wood-chip must be covered with a layer of geotextile fabric and rumble boards.

19. Protection of vegetation, habitat and environmental features during construction

To ensure the protection of vegetation, habitat and environmental features during construction, the applicant must:

a) Install 1.2-m-high chain wire fencing (or similar) along the southern boundary of the site as shown in the approved plans.

b) Clean machinery of soil and debris before entering the site to prevent the spread of weeds and fungal pathogens.

Note: The site contains potential habitat for threatened species listed under the NSW Biodiversity Conservation Act 2016. The Act prohibits the disturbance to threatened species, endangered populations and threatened ecological communities, or their habitat, without appropriate consent or licence.

20. Integrated Bushfire and Vegetation Management Plan (IBVMP)

a) All on-ground works shall comply with the approved Integrated Bushfire and Vegetation Management Plan (IBVMP) prepared by Hunter Ecology dated 27 April 2021 and Powerful Owl (Ninox strenua) surveys and assessment prepared by Hunter Ecology dated 10th August 2021. This includes compliance with development milestones listed in the Schedule of Works within Section 3, 6 & 7 of the approved IBVMP.

b) The IBVMP shall be implemented from the date of issue of the Notice of Determination

Reason: The development of a consolidated IBVMP will provide the developer and current and future landowners with a single document describing the required vegetation management actions across the site.

21. APZ – marking of boundary

The boundary of the asset protection zone must be surveyed and permanently marked before the works begin and must be kept in place in perpetuity as follows:

a) Sufficient markers (a minimum of two) must be placed along the boundary of the APZ to clearly delineate the extent of the asset protection zone.

b) The markers must be a tubular metal post (or the like) standing a minimum of 400mm above ground.

c) The markers must include a notation stating: End of Asset Protection Zone. The notation may be in the form of an attached sign or sticker with lettering of a contrasting colour to the post colour.

d) A survey and photographic evidence must be submitted to the Principal Certifying Authority confirming compliance with this condition.

Reason: To provide certainty for the developer, current and future landowners, Council and contractors, during and after construction, as to the boundaries of the asset protection zone and those areas associated with different management requirements.

22. Protection of Adjoining Areas

A temporary hoarding, fence or awning must be erected between the work site and adjoining lands before the works begin and must be kept in place until after the completion of the works if the works:

a) Could cause a danger, obstruction or inconvenience to pedestrian or vehicular traffic.

b) Could cause damage to adjoining lands by falling objects.

c) Involve the enclosure of a public place or part of a public place.

d) Have been identified as requiring a temporary hoarding, fence or awning within the Council approved Construction Management Plan (CMP).

Note: Notwithstanding the above, Council’s separate written approval is required prior to the erection of any structure or other obstruction on public land.

23. Toilet Facilities

b) Each toilet must:

i) Be a standard flushing toilet connected to a public sewer.

ii) Be a temporary chemical closet approved under the Local Government Act 1993.

24. Erosion and Sediment Control

Note: On the spot penalties may be issued for any non-compliance with this requirement without any further notification or warning.

25. Bushfire Management – Protection Zones

a) From the southern elevation of the dwelling house to the south for 36m.

b) From the western, eastern and northern elevations of the dwelling house to the lot boundaries.

Note: Further information concerning planning for bush fire protection can be found at: www.rfs.nsw.gov.au.

REQUIREMENTS DURING CONSTRUCTION

26. Construction Work Hours

All works on site, including demolition and earth works, must only occur between 7am and 5pm Monday to Saturday.

No work is to be undertaken on Sundays or public holidays.

27. Prohibited actions within the fenced tree protection zone

The following activities are prohibited within the approved fenced tree protection zones unless otherwise approved by Council:

a) Soil cutting or filling, including excavation and trenching.

b) Soil cultivation, disturbance or compaction.

c) Stockpiling storage or mixing of materials.

d) The parking, storing, washing and repairing of tools, equipment and machinery.

e) The disposal of liquids and refuelling.

f) The disposal of building materials.

g) The siting of offices or sheds.

h) Any action leading to the impact on tree health or structure.

28. Works near trees

a) To maintain tree health and condition for trees to be retained on the approved plans, the appointed project arborist must monitor and record all necessary remedial actions required.

29. Maintaining Tree Protection Measures

Tree Protection Measures must be maintained by the project arborist in accordance with Condition No. 18 of this consent for the duration of works.

30. Maintaining Tree Protection Zones

The Tree Protection Zone must be maintained by the project arborist in accordance with section 4.6 requirements of Australian Standard AS 4970-2009 - “Protection of Trees on Development Sites”.

31. Approved Works within Tree Protection Zone incursions

a) Where tree root pruning is required for the installation of piers, driveway or underground services, the pruning must be overseen by the AQF 5 project arborist and must be undertaken as follows:

i) Using sharp secateurs, pruners, handsaws or chainsaws with the final cut being clean.

ii) The maximum diameter of roots permitted to be cut is 40mm.

b) The new driveway must be constructed using the following process:

i) To minimise soil compaction the proposed driveway must be built above grade using sensitive construction techniques in the form of piers or screw pilings.

ii) To minimise soil compaction all imported material in the vicinity of the replacement driveway must be distributed by hand.

c) Where the building footprint enters or transects the Tree Protection Zones of trees to be retained sensitive construction techniques in the form of screw pilings or piers, cantilevered or suspended slab design must be employed to create a 100mm clearance above existing soil grade.

d) Approved excavations within the Tree Protection Zone of trees to be retained not associated with installation of services must be undertaken as follows:

i) Excavations for the construction and/or installation of the house/deck/driveway/piers in the Tree Protection Zone of trees to be retained on the approved plans must be supervised by the project arborist for the first 1.000 meter undertaken manually to locate roots and allow for pruning in accordance with condition 30a.

e) To minimise impacts within the Tree Protection Zone (TPZ) of trees to be retained on the approved plans, the installation of services must be undertaken as follows:

i) The AQF 5 project arborist must be present to oversee the installation of any underground services which enter or transect the tree protection.

ii) The installation of any underground services which either enter or transect the designated TPZ must be undertaken manually.

iii) For manually excavated trenches the AQF 5 project arborist must designate roots to be retained. Manual excavation may include the use of pneumatic and hydraulic tools.

f) Where scaffolding is required, ground protection must be installed beneath the scaffolding in the following order:

i) Installation of a 100mm deep layer of woodchip.

ii) Installation of geotextile fabric ground covering.

iii) Installation of scaffold boarding above the woodchip and geotextile fabric.

32. Works near Trees Certification

a) The project arborist must submit to the principal certifying authority a certificate that all works have been carried out in compliance with the approved plans and conditions or specifications for tree protection.

b) Certification should include a statement of site attendance, the condition of retained trees, details of any deviations from the approved tree protection measures and their impacts on trees.

Note: Copies of monitoring documentation may be required by the PCA and/or Council.

33. Building materials and Site Waste

34. Environmental Management

35. Council Property

36. Disturbance of Existing Site

37. Landfill

b) The required Waste Classification Certificate must be obtained by the Principal Contractor prior to fill being imported to the site and made available to Council at its request.

38. Excavated Material

39. Survey Report

A report(s) must be prepared by a registered surveyor and submitted to the principal certifying authority:

a) Prior to the pouring of concrete at each level of the building certifying that:

i) The building, retaining walls and the like have been correctly positioned on the site.

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

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

40. Fulfilment of BASIX Commitments

The applicant must demonstrate the fulfilment of BASIX commitments pertaining to the development.

41. Replacement Tree Requirements

a) The trees approved for removal under this consent, being 5 trees numbered T31, T32, T33, T36 and T37 must be offset through replacement planting of a minimum of 10 trees.

i) 5 trees must have the potential to reach a mature height of greater than 10m.

ii) 5 mid-story trees with the potential to reach a mature height of greater than 5m.

iii) This planting should be consistent with a Vegetation management plan.

c) The location and size of tree replacement planting must comply with the following:

i) All replacement trees must be located in either front or rear setbacks and planted 4m or greater from the foundation walls of the approved development.

ii) The pot size of the replacement trees must be a minimum 45 litres.

iii) All replacement trees must be a minimum of 3m in height.

iv) All replacement trees must have the potential to reach a mature height greater than 10m.

42. Final Certification

The AQF 5 Project arborist must submit to the Principal Certifying Authority a certificate that includes the following:

a) All tree protection requirements complied with the as approved tree protection plan for the duration of demolition and/or construction works.

b) All completed works relating to tree protection and maintenance have been carried out in compliance with the conditions of consent and approved plans.

c) Dates, times and reasons for all site attendance.

d) All works undertaken to maintain the health of retained trees.

e) Details of tree protection zone maintenance for the duration of works.

f) A statement to confirm that tree replacement planting meets NATSPEC guidelines and the approved landscape plan.

Note: Copies of monitoring documentation may be requested throughout DA process.

43. Damage to Council Assets

44. Supplementary Planting, Weeding and Nest Box Installation

Any supplementary planting, weeding and nest box installation outside the immediate landscaping area depicted in the approved landscape Plan prepared by Grindstone Landscapes dated 14 August 2021 shall be in accordance with Section 4.3 of the approved Integrated Bushfire and Vegetation Management Plan (IBVMP) prepared by Hunter Ecology dated 27th April 2021 and stock used for planting shall be sourced from a native nursery utilising Sydney basin stock. The hollow improvement works and four (4) nestboxes shall only be installed and certified by an experienced fauna ecologist (Section 3.8 of the IBVMP and the Powerful Owl (Ninox strenua) surveys and assessment prepared by Hunter Ecology dated 10th August).

45. Certification of Bushfire Requirements

a) A Certificate prepared by a BPAD accredited Bushfire Consultant is to be provided to the Principal Certifying Authority (PCA) certifying the completion of all works required by the Bushfire Assessment Report Ref: 20.10.316, prepared by Bushfire Planning and Design dated 15 October 2020 and condition Nos. 12 and 25 of this consent prior to the issue of the Occupation Certificate.

b) A suitably qualified and experienced bush fire consultant must provide to the PCA and/or Council certification of the implementation of the approved asset protection zone.

46. Final Certification – Ecology/Bush regeneration

47. Retaining Walls

All retaining walls must be constructed as part of the development and prior to the issue of an Occupation Certificate.

48. Construction of engineering works.

All engineering works identified in this consent are to be completed and a Compliance Certificate issued prior to the release of the Occupation Certificate

OPERATIONAL CONDITIONS

49. Ongoing Protection of Remnant Trees

50. Ongoing Bushfire Management

- END OF CONDITIONS -

ADVISORY NOTES

Environmental Planning and Assessment Act 1979 Requirements

The Environmental Planning and Assessment Act 1979 requires:

· The issue of a construction certificate prior to the commencement of any works. Enquiries can be made to Council’s Customer Services Branch on 9847 6760.

· A principal certifying authority to be nominated and Council notified of that appointment prior to the commencement of any works.

· Council to be given at least two days written notice prior to the commencement of any works.

· Mandatory inspections of nominated stages of the construction inspected.

· An occupation certificate to be issued before occupying any building or commencing the use of the land.

Long Service Levy

Note: The rate of the Long Service Levy is 0.35% of the total cost of the work.

Note: Hornsby Council requires the payment of the Long Service Levy prior to the issue of a construction certificate.

Tree and Vegetation Preservation

Fines may be imposed for non-compliance with the Hornsby Development Control Plan 2013.

Note: A tree is defined as a long lived, woody perennial plant with one or relatively few main stems with the potential to grow to a height greater than three ms (3m). (HDCP 1B.6.1.c).

Covenants

Dial Before You Dig

Telecommunications Act 1997 (Commonwealth)

Asbestos Warning