Supplementary Agenda of Local Planning Panel meeting

11. Toilet Facilities

1.⇩	Locality Plan
2.⇩	Clause 4.6 Variation
3.⇩	Architectural Plans
4.⇩	BCA Design Assessment Report
5.⇩	Bushfire Risk Assessment

File Reference: DA/368/2022

Document Number: D08419580

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*
A001	Site Plan	Mc Nally Architects	24/03/2022
A100	Basement Floor Plan	Mc Nally Architects	24/03/2022
A101	Ground Floor Plan	Mc Nally Architects	24/03/2022
A102	First Floor Plan	Mc Nally Architects	24/03/2022
A103	Second Floor Plan	Mc Nally Architects	24/03/2022
A104	Roof Plan	Mc Nally Architects	24/03/2022
A105	Sediment Control Plan	Mc Nally Architects	24/03/2022
A200	South Elevation	Mc Nally Architects	24/03/2022
A201	North Elevation	Mc Nally Architects	24/03/2022
A202	East Elevation	Mc Nally Architects	24/03/2022
A300	Section A-A	Mc Nally Architects	24/03/2022

Supporting Documentation

*Document Title*	*Prepared by*	*Dated*	*Council Reference*
BCA Design Assessment Report	Design Confidence	8 March 2022	D08391469
Bushfire Risk Assessment Report	Costal consulting and Construction Pty Ltd	January 2022	D08391467
NSW Rural Fire Service Determination Letter DA20220513007779-Orginal-1	NSW Rural Fire Service	13 July 2022	D08448706
Waste Management Plan	RSL Lifecare Ltd	N/A	D08391447

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. 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, $5,225.00 must be paid towards the provision, extension or augmentation of public amenities or public services, based on development costs of $522,500.

b) The value of this contribution is current as of 5 July 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:

(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.

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

4. Building Code of Australia

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.

5. 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.

6. 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.

7. Stormwater Drainage

The stormwater drainage system for the development must be designed in accordance with AUS-SPEC Specifications (www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions) and the following requirements:

a) Connected to the existing internal drainage system.

8. Retaining Walls

To ensure the stability of the site, structural details of all required retaining walls must be submitted with the application for the Construction Certificate.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

9. 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.

10. 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; and/or.

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.

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; or

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

iii) Have an on-site effluent disposal system approved under the Local Government Act 1993.

12. 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.

REQUIREMENTS DURING DEMOLITION AND CONSTRUCTION

13. 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.

14. 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 and/or in accordance with an 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.

15. 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.

16. 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.

Note: This consent does not give right of access to the site via Council’s park or reserve. Should such access be required, separate written approval is to be obtained from Council.

17. 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.

18. Excavated Material

All excavated material removed from the site must be classified by a suitably qualified person in accordance with the Department of Environment, Climate Change and Water NSW Waste Classification Guidelines and Protection of the Environment Operations (Waste) Regulation 2014 prior to disposal to an approved waste management facility and be reported to the principal certifying authority prior to the issue of an Occupation Certificate.

19. Landfill not permitted

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

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

20. Fire Safety Statement – Final

In accordance with the Environmental Planning & Assessment Regulation 2000, upon completion of the building, the owner must provide Council with a certificate in relation to each fire safety measure implemented in the building.

21. 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 Council’s Civil Works Specifications. Rectification works must be undertaken prior to the issue of an Occupation Certificate, or sooner, as directed by Council.

22. Retaining Walls

All retaining walls must be constructed as part of the development and prior to the issue of an Occupation Certificate.

23. Certification of RFS Requirements

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 NSW RFS General Terms of Approval (GTAs) prior to the issue of the Occupation Certificate.

OPERATIONAL CONDITIONS

24. 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’ certifying each essential service installed in the building.

GENERAL TERMS OF APPROVAL – NSW RURAL FIRE SERVICE

The following conditions of consent are General Terms of Approval from the nominated State Agency pursuant to Section 4.47 of the Environmental Planning and Assessment Act 1979 and must be complied with to the satisfaction of that Agency.

25. Construction Standards

Intent of measures: to provide suitable building design, construction and sufficient space to ensure that radiant heat levels do not exceed critical limits for firefighters and other emergency services personnel undertaking operations, including supporting or evacuating occupants.

a) New construction must comply with Section 3 (excluding section 3.5) and Section 9 (BAL FZ) of the Australian Standard AS3959-2018 Construction of buildings in bushfire-prone areas or the relevant BAL-FZ requirements of the NASH Standard - Steel Framed Construction in Bushfire Areas (incorporating amendment A - 2015). New construction must also comply with the construction requirements in Section 7.5 of Planning for Bush Fire Protection 2019.

b) Any new Class 10b structures as defined per the National Construction Code must be non-combustible.

26. Water and Utility Services

Intent of measures: to provide adequate services of water for the protection of buildings during and after the passage of a bush fire, and to locate gas and electricity so as not to contribute to the risk of fire to a building.

a) Any new water, electricity and gas installations must comply with the following in accordance with Table 6.8c of Planning for Bush Fire Protection 2019:

i) Exposed water pipes external to the building are metal, including any fittings.

ii) Where practicable, electrical transmission lines are underground.

iii) Where overhead, electrical transmission lines are proposed as follows:

a. Lines are installed with short pole spacing (30m), unless crossing gullies, gorges or riparian areas.

b. No part of a tree is closer to a power line than the distance set out in accordance with the specifications in ISSC3 Guideline for Managing Vegetation Near Power Lines.

iv) Reticulated or bottled gas is installed and maintained in accordance with AS/NZS 1596:2014 and the requirements of relevant authorities, and metal piping is used.

v) All fixed gas cylinders are kept clear of all flammable materials to a distance of 10m and shielded on the hazard side.

vi) Connections to and from gas cylinders are metal.

vii) Polymer sheathed flexible gas supply lines are not used.

viii) Above-ground gas service pipes are metal, including and up to any outlets.

27. Landscaping Assessment

a) Any new landscaping must comply with Appendix 4 of Planning for Bush Fire Protection 2019. In this regard, the following principles are to be incorporated:

i) A minimum 1 metre wide area (or to the property boundary where the setbacks are less than 1 metre), suitable for pedestrian traffic, must be provided around the immediate curtilage of the building.

ii) Planting is limited in the immediate vicinity of the building.

iii) Planting does not provide a continuous canopy to the building (i.e. trees or shrubs are isolated or located in small clusters).

iv) Landscape species are chosen to ensure tree canopy cover is less than 15% (IPA) at maturity and trees do no touch or overhang buildings.

v) Avoid species with rough fibrous bark, or which retain/shed bark in long strips or retain dead material in their canopies.

vi) Use smooth bark species of trees species which generally do not spread fire up the bark into the crown.

vii) Avoid planting of deciduous species that may increase fuel at surface/ ground level (i.e. leaf litter).

viii) Avoid climbing species to walls and pergolas.

ix) Locate combustible materials such as woodchips/mulch, flammable fuel stores away from the building.

x) Locate combustible structures such as garden sheds, pergolas and materials such as timber garden furniture away from the building.

xi) Low flammability vegetation species are used.

28. Emergency and Evacuation Planning Assessment

Intent of measures: to provide suitable emergency and evacuation arrangements for occupants of SFPP developments.

a) A Bush Fire Emergency Management and Evacuation Plan must be updated consistently with the NSW RFS document: A Guide to Developing a Bush Fire Emergency Management and Evacuation Plan.

- 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 (Biodiversity and Conservation) 2021 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 3 metres. (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.

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:

The application has been assessed against the requirements of chapter 2 and 9 of State Environmental Planning Policy (Biodiversity and Conservation) 2021.

www.workcover.nsw.gov.au

Alternatively, telephone the SafeWork NSW Asbestos and Demolition Team on 8260 5885.

LPP Report No. LPP37/22

Local Planning Panel

Date of Meeting: 27/07/2022

3 DA/445/2022 - ALTERATIONS AND ADDITIONS TO AN EXISTING DWELLING - 30 BALACLAVA ROAD, BEROWRA

EXECUTIVE SUMMARY

DA No:	DA/445/2022 (Lodged on 5 May 2022)
Description:	Alterations and additions to a dwelling house
Property:	Lot 235 DP 825647, No. 30 Balaclava Road, Berowra
Applicant:	Ms Melanie Farquhar
Owner:	Mr Andrew and Mrs Sarah Flarey
Estimated Value:	$109,000.00
Ward:	A Ward

· The application involves alterations and additions to a dwelling house.

· The proposal does not comply with maximum building height requirement of 8.5 metres under Clause 4.3 “Height of Buildings” of Hornsby Local Environmental Plan 2013. The applicant has made a submission in accordance with Clause 4.6 ‘Exceptions to development standards’ of the Hornsby Local Environmental Plan 2013 to vary Clause 4.3 Height of Buildings. The submission is considered well founded and is supported.

· No 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 Hornsby Local Environmental Plan 2013 development standard for maximum height of buildings by more than 10 percent.

· It is recommended that the application be approved.

RECOMMENDATION

THAT the 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/445/2022 alterations and additions to a dwelling house at Lot 235 DP 825647, No. 30 Balaclava Road Berowra subject to the conditions of consent detailed in Schedule 1 of LPP Report No. LPP37/22.

SITE

The 813.5m² site is on the southern side of Balaclava Road and contains a two-storey dwelling house and a 22m² chicken coop.

The site is mapped as having a gradient in excess of 20%. The site has a crossfall of 5 metres from the western to eastern side of the site (25% slope).

The site contains vegetation indicative “Silvertop Ash-Scribbly Gum Woodland”.

The site is bushfire prone having a bushfire attack level of BAL - Flame Zone (BAL FZ).

An easement to drain water (1.2 metre wide) runs along the south (rear) boundary.

The site adjoins Berowra Public School to the rear. The site is close the intersection of Kona Close to the west, and the intersection of Evanda Street and Koloona Street to the east.

The site is not a heritage item, is not adjacent to a heritage item and is not within a heritage conservation area.

A picture containing tree, outdoor, skiing, mountain

Description automatically generated

Figure 1: Aerial photo of site (Source: Intramaps)

PROPOSAL

The application proposes alterations and additions to the existing dwelling house as follows:

· Change from an “A-frame” style first floor to a standard style of wall and roof on the south (rear) elevation of the first floor to create additional floor area (with compliant floor to ceiling height)

· Filling in the existing void area to create additional floor area

· Minor internal alterations to change room configuration creating an additional bedroom and living area

No trees would be removed or impacted by the proposal.

ASSESSMENT

The development application has been assessed having regard to the Greater Sydney Region Plan - A Metropolis of Three Cities, the North District Plan and the matters for consideration prescribed under Section 4.15 of the Environmental Planning and Assessment Act 1979 (the Act). The following issues have been identified for further consideration.

1. STRATEGIC CONTEXT

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

The 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 alterations and additions to a ‘dwelling house’, and is permissible in the zone with Council’s consent, and would meet the objectives of the zone by providing for the housing needs of the community within a low-density residential environment.

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 8.5 metres. The proposal would result in in a maximum height of 9.99 metres and does not comply with this provision.

The application is supported by a submission pursuant to Clause 4.6 of HLEP to contravene the maximum height of building development standard, which is discussed in Section 2.1.3 of this report.

2.1.3 Exceptions to Development Standards

The applicant submitted a written request to contravene the height of buildings development standard contained within Clause 4.3 of the HLEP. The applicant provided the following information with regards to the height contravention:

The requested contravention is as follows: Permissible maximum building height: 8.5m

Proposed contravention (maximum): 1.49m.

The contravention is a direct result of the steep falling nature of the land underneath the existing dwelling and it is worth acknowledging that the existing roof line at the eastern edge of the dwelling is 10.4m in height (1.9 metres over the height limit).

Diagram, engineering drawing

Description automatically generated

Figure 2: Extract of Application plans by Drafted Up showing Southern Elevation with 8.5m building height in red

Figure 3: Extract of Application plans by Drafted Up showing Eastern Elevation with 8.5m building height in red

Figures 2 and 3 depict the extent of the contravention with the maximum height standard, being a height of 9.99 metres or 17% contravention (max).

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. In particular, Clause 4.6 provides criteria that must be satisfied prior to a consent authority granting consent to a development that contravenes a development standard. These criteria, demonstrated under Clause 4.6(3) are as follows:;

(a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) That there are sufficient environmental planning grounds to justify contravening the development standard

A discussion regarding the criteria provided at Clause 4.6(3), with respect to the proposal is provided below.

2.1.3.1 Unreasonable or Unnecessary Clause 4.6(3)(a)

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.

3. The underlying object of purpose would be defeated or thwarted if compliance was required.

4. The development standard has been virtually abandoned or destroyed by the council’s own actions in granting consents departing from the standard.

5. The zoning of the land is unreasonable or inappropriate.

The written request by Drafted Up dated 2 May 2022 provides a detailed assessment of the proposal with respect to the development standard sought to be contravened. The request argues that the objectives of the development standard are achieved notwithstanding non-compliance with the standard in Part 6 of the document, providing reasoning as follows:

Applicant’s Justification

· The proposed addition will take place at the rear of the dwelling and will not be immediately discernible from the public realm. In addition to this, the site faces an area of bushland to the rear that is not populated and as such, cannot be considered to result in a development that would otherwise be overbearing when viewed from the rear of the site.

· An observation of the character of development within the visual catchment of the site shows that dwellings within this part of Balaclava Street are constructed in a manner that reflects the significantly sloping topography, with dwellings up to three storeys in height presenting to the street. In this sense, the proposed variation cannot be considered to result in a development that is uncharacteristic of its surrounds

· As shown through compliance with the maximum floor space ratio, the proposal does not seek to over utilise the development potential of the site and will not be of any material impact upon the infrastructure capacity of the locality. Therefore, the proposal is consistent with the objective of Clause 4.3.

Council notes that the objectives of Clause 4.3 of the HLEP are as follows:

“to permit a height of buildings that is appropriate for the site constraints, development potential and infrastructure capacity of the locality”

With reference to the reasoning provided by the applicant above, Council does not object to the construction that the proposed additions meet the objectives of Clause 4.3. In reaching this conclusion the following points are noted:

· The proposed contravention would not be visible from the street and would not have any impact on adjoining landowners. No new windows would face adjoining properties.

· The height of the proposed addition would not exceed the existing maximum ridge height of the dwelling house.

· The contravention to the development standard of building height is a result of the slope of the site. Any first-floor addition would be non-compliant.

· The innovative design utilises existing void areas increase the useable floor area of the dwelling house within increasing the physical footprint of the dwelling house.

· The footprint of the building is not increased. Should the applicant propose to extend the ground floor or first floor footprint towards the rear of the site, this would decrease the separation distance of bushfire prone vegetation to the proposed development, therefore increasing bushfire risk on a BAL FZ site.

The lack of environmental impacts arising from the non-compliance with the development standard, and the largely compliant nature of the development when assessed against the relevant legislation and Hornsby Development Control Plan requirements (discussed in the body of the report) identifies that the site is suitable for this development.

The proposed development would have negligible impact on the infrastructure capacity of the locality.

For the reasons outlined above, it is considered that the written request to contravene the height building standard adequately demonstrates that the objectives of the height of buildings development standard contained within Clause 4.3 of the HLEP are achieved, not-withstanding non-compliance with the standard.

2.1.3.2 Environmental Planning Grounds - Clause 4.6(3)(b)

In addition to demonstrating that compliance is unreasonable or unnecessary, Clause 4.6(3)(b) requires that there are sufficient environmental planning grounds to justify contravening the development standard. In demonstrating that sufficient 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 v Ashfield Council [2015] NSWLEC 1009 [60].

The applicant provided the following planning grounds for the contravention of the development standard;

· The form of the building will not be significantly altered. The proposal is limited to a moderate first floor addition that is of compliant floor space ratio, taking place below and behind the existing ridge line.

· The proposal will take place within the existing building footprint, will not require the removal of any significant vegetation, and will not result in any material impacts to neighbouring solar access, privacy or general amenity.

· At the western end, the proposed addition will be within the maximum height allowance of Clause 4.3 and will not be of any undue visual bulk and scale when viewed from the adjacent property (28 Balaclava Street) at the eastern end, although a contravention will exist, the non-compliant building form will be well setback from the common boundary shared with 32 Balaclava Street and will not result in any adverse bulk or scale impact. This particularly notes that, when viewed from this property, only a small area of new building fabric (approximately 3m² in area) will be visible. This is not significant in the context of the visual presentation of the existing eastern elevation of the subject dwelling.

Council’s further review of the environmental planning grounds presented by the applicant raises no points of contention, and it is considered that the proposed addition is a reasonable built form outcome, both within the subject site and to the adjoining residential development.

Council further notes that the technical non-compliance is a result of the existing configuration of the dwelling house, being a pole home construction. Notwithstanding the non-compliance with the numerical standards, the proposal does not give rise to any adverse amenity impacts to any adjoining property. The dwelling addition is located to the rear of the dwelling house, minimising any impacts to adjoining properties.

Council is therefore satisfied that Clause 4.6(3)(b) of the HLEP is adequately addressed.

2.1.3.3 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 public interest because it is consistent with eh objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be to carried out; and

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

With regard to (a)(i), the written request is considered to adequately address the matters required to be demonstrated as outlined above. With regard to (a)(ii), the proposed development is considered to be within the public interest because it is consistent with the objectives of the particular standard and the objectives for height of building contained within the HLEP.

With regard to (b), on 21 February 2018, the Secretary of the Department of Planning and Environment issued a Notice (“the notice”) under cl.64 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation). The Secretary’s concurrence may not be assumed by a delegate of Council if:

· The Development contravenes a numerical standard greater than 10%.

· The variation is to a non-numerical development standard.

Therefore, the exceedance to the height of building development standard is supported in this instance.

2.1.4 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.

2.1.5 Earthworks

Clause 6.2 of the HLEP states that consent is required for proposed earthworks on site. Before granting consent for earthworks, Council is required to assess the impacts of the works on adjoining properties, drainage patterns and soil stability of the locality.

Council’s assessment of the proposed works and excavation concludes that no excavation or fill are proposed.

The site is mapped as having a gradient in excess of 20% slope. No geotechnical assessment has been submitted in support of this development application. However, given that no footings/foundations are proposed, and no cut and/or fill is required, no geotechnical report has been requested.

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. 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 site subject to bushfire risk (BAL Flame Zone) and is in exceedance of the maximum building height requirement of 8.5 metres. Therefore, the development is precluded from being approved as Complying Development. The proposed dwelling house additions would otherwise comply with the other numerical standards of Complying Development contained within the SEPP.

2.3 State Environmental Planning Policy (Building Sustainability Index) 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 (Cert. No. A453932) for the proposed dwelling house which meets the requirements of the SEPP. A condition is recommended in Schedule 1 of this report requiring the recommendations of the BASIX Certificate be complied with.

2.4 State Environmental Planning Policy (Biodiversity and Conservation) 2021

2.4.1 Chapter 2 Vegetation in Non-Rural Areas

Chapter 2 of this policy aims to protect the biodiversity and amenity values of trees within non-rural areas of the state.

Part 2.3 of the policy 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 HDCP prescribes works that can be undertaken with or without consent to trees and objectives for tree preservation.

The application has been assessed against the requirements of Chapter 2 of the policy and it has been determined that the proposal would protect the biodiversity and amenity values of trees within non-rural areas of the state, as the works do not seek to remove or impact any trees as part of the development.

2.4.2 Chapter 9 Hawkesbury-Nepean River

2.5 State Environmental Planning Policy (Resilience and Hazards) 2021

The application has been assessed against the requirements of chapter 4 of State Environmental Planning Policy (Resilience and Hazards) 2021.

2.5.1 Chapter 4 Remediation of Land

An examination of Council’s records and aerial photography has determined that the site has been historically used for residential purposes and the proposal does not seek to change the use of the land, noting the recent approval for construction of a new dwelling on the site. Accordingly, no further assessment under Chapter 4 of the Resilience and Hazards SEPP is required.

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

Section 3.42 of the Environmental Planning and Assessment Act 1979 states that a DCP provision will have no effect if it prevents or unreasonably restricts development that is otherwise permitted and complies with the development standards in relevant Local Environmental Plans and State Environmental Planning Policies.

2.7 Hornsby Development Control Plan 2013

HDCP – Part 3.1 Dwelling Houses
Control	Proposal	Requirement	Complies
Site Area	813.5m²	N/A	N/A
Building Height	9.99m	8.5m	No
No. storeys	2 storeys	max. 2 + attic	Yes
Site Coverage	14%	max. 50%	Yes
Floor Area	181.9m²	max. 380m²	Yes
Setbacks
- Front	7.6m	6m	No
- Side (East)
Ground floor	4.2m	0.9m	Yes
First floor	7.4	1.5m	N/A
- Side (west)
Ground floor	1.0m	0.9m	Yes
First floor	1.0m	1.5m	No
- Rear (north)
Ground floor	17.18m	3m	Yes
First floor	18.9m	8m	Yes
Landscaped Area (% of lot size)	591m² (72%)	min. 30%	Yes
Car Parking	2 spaces	2 spaces	Yes

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

2.7.1 Scale

The desired outcome of Part 3.1.1 of the HDCP is for ‘development with a height, bulk and scale that is compatible with a low-density residential environment’.

This is supported by the prescriptive measures which state that ‘sites with the maximum building heights under Clause 4.3 of the HLEP should comply with the maximum number of storeys in Table 3.1.1(a).’

In addition, it is stated that ‘buildings should respond to the topography of the site by:

a) Minimising earthworks (cut and fill).

b) Siting the floor level of the lowest residential storey a maximum of 1.5 above natural ground level’.

The proposed ridge height of the roof over the addition roof is 9.99 metres above natural ground which does not comply with Part 3.1.1 Scale of the HDCP and Clause 4.3 of HLEP.

In support of this non-compliance, it is noted that the slope of the site is a significant constraint for any development on the site. There is no option to increase the size of the first floor whilst achieving a compliant building height. The addition would be achieved by enclosing existing void areas and by changing the pitch on the southern half of the roof.

The maximum ridge height of the proposed addition would not exceed the maximum ridge height of the existing building.

The lowest residential storey is between 980mm and 2.97 metres above existing ground level. Which pushes up the overall height of the dwelling house, making compliance with a maximum height of 8.5 metres for a two dwelling house and pitched roof almost impossible.

The Applicant has submitted a written request pursuant to Clause 4.6 of the HLEP which has adequately addressed this non-compliance which has been previously discussed in detail in Section 2.1.3.

The proposal meets the desired outcomes of Part 3.1.1 Scale of the HDCP and is considered acceptable.

2.7.2 Setbacks

The desired outcomes of Part 3.1.2 Setbacks of 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”.

These desired outcomes are supported by prescriptive controls requiring the setback of a first floor to a side boundary to be 1.5 metres. The proposal complies with this control on the eastern side of the dwelling addition. However, the western side of the addition is proposed to be setback 1 metre from the western side boundary.

The proposed addition would be a vertical extension of the existing western elevation of the dwelling house and is consistent with the setback of the existing western elevation. There would be no new windows or openings on the western elevation. Therefore, there are no privacy issues which arise from the non-compliance.

The proposal complies with desired outcomes of Part 3.1.2 Setbacks and is considered acceptable.

2.7.3 Privacy

The desired outcome of Part 3.1.6 Privacy of the HDCP is for development ‘that is designed to provide reasonable privacy to adjacent properties.’ This is supported by prescriptive measure (c) and (d) where:

‘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’; and

d) ‘decks and the like that need to be located more than 600mm above existing ground level 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 proposed first floor addition would not contain any additional windows or decks which face adjoining properties. The only additional windows would face the rear of the property toward the private open space of the subject site and bushland to the rear.

The proposal meets the desired outcome of Part 3.1.6 Privacy of the HDCP and is considered acceptable.

2.7.4 Bushfire

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 bushfire’ and to encourage ‘development that balances the conservation of native vegetation and bushfire protection’.

The Application has provided a Bushfire Assessment Report prepared by Bushfire Consultancy Australia dated 18 January 2022.

The Bushfire Assessment Report recommends any development on the site be built to the requirements of AS3959-2018 Construction of bushfire-prone areas in accordance with the requirements for Bushfire Attack Level - Flame Zone (BAL-FZ) and the relevant sections of Planning for Bushfire Protection 2019.

In accordance with Council’s assessment protocol for development in BAL-FZ, the application was referred to the NSW Rural Fire Service (NSW RFS) for review. The NSW RFS raised no objections to the proposal subject to conditions.

Conditions reflecting the NSW RFS requirements have been recommended under Schedule 1 of this report in regard to the utilisation of BAL-FZ fire retardation construction materials and the maintenance of the property as an Inner Protection Area (IPA) in perpetuity.

The proposal meets the desired outcomes of Part 1C.3.1 Bushfire of the HDCP and is considered acceptable, subject to conditions.

2.7.5 Earthworks and Slope

The desired outcomes of Part 1C.1.4 Earthworks and Slope 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 desired outcomes are supported by the prescriptive control that “Sloping sites with a gradient in excess of 20% require certification from a geotechnical engineer as to the stability of the slope in regard to the proposed design.”

No geotechnical assessment has been provided. However, given that no foundations/footings are proposed, and the proposal is for minor additions only, no geotechnical assessment has been requested in this instance. Conditions have been included in Schedule 1 of this report requiring structural engineering certification of the existing footings and walls to confirm they can accommodate the additional load from the dwelling addition.

Subject to conditions, the proposal meets the desired outcomes of Part 1C.1.4 Earthworks and Slope and is considered acceptable

2.8 Section 7.12 Contributions Plans

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

The proposed development would not require the removal of any trees from the site. The Erosion and Sediment Control Plan submitted with the development application shows stockpiles and a sediment barrier running under the canopies of trees on the eastern side of the site. A condition has been included in Schedule 1 of the Report requiring that the stockpiling of building materials, the parking of vehicles or plant, the disposal of cement slurry, wastewater or other contaminants must be located outside the structural root zone/canopy of any tree on the site.

3.1.2 Stormwater Management

All stormwater for the proposed addition will be directed to the existing internal drainage system which would then be conveyed to the street.

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 areas which consists of dwelling houses ranging from single storey, split level and two storeys.

3.3 Social Impacts

The residential development would improve the 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.

The development is adjacent to Berowra Public School. The Berowra Railway station is approximately 1.2km form the site and the commercial centre, of Turner Road is approximately 1.5km from the site. Several public open space areas are in proximity of the site.

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”.

The site is considered to be capable of accommodating the proposed development. The scale of the proposed development is consistent with the capability of the site and is considered acceptable. While the site is bushfire prone, appropriate conditions have been included in Schedule 1 of this report to mitigate any risk from bushfire.

4.1 Bushfire Risk

As noted in Section 2.7.3 of this report, the subject site is identified as being bushfire prone, having a Bushfire Attack Level - Flame Zone (BAL-FZ). A bushfire assessment report was prepared by Bushfire Consultancy Australia (dated 18 January 2022).

The development application was referred to NSW Rural Fire Service who have no objections to the proposal subject to the inclusion of conditions 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 9 May 2022 and 31 May 2022 in accordance with the Hornsby Community Engagement Plan. During this period, Council received no submissions.

Diagram, engineering drawing

Description automatically generated

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

5.2 Public Agencies

The development application was referred to the following Agencies for comment:

5.2.1 Rural Fire Service

The development application was referred to the NSW Rural Fire Service for comment and no objections were raised to the proposed development subject to the inclusion of conditions in Schedule 1 of this report.

6. THE PUBLIC INTEREST

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

CONCLUSION

The application proposes alterations and additions to a dwelling house.

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

The reasons for this decision are:

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

RESPONSIBLE OFFICER

The officer responsible for the preparation of this report is Katrina Maxwell.

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 Plan
2.⇩	Clause 4.6 Statement
3.⇩	Architectural Plans

File Reference: DA/445/2022

Document Number: D08421047

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*
A.00	Specifications	Drafted Up	07/03/2022
A.01	Existing Site Plan	Drafted Up	07/03/2022
A.02	Proposed Site Plan	Drafted Up	07/03/2022
A.03	Ground Floor Plan	Drafted Up	07/03/2022
A.04	Proposed First Floor Plan	Drafted Up	07/03/2022
A.05	Proposed Elevations – South and West	Drafted Up	07/03/2022
A.06	Proposed Elevations – East and Section	Drafted Up	07/03/2022
A.08	Demolition Plan	Drafted Up	07/03/2022
A.09	Erosion and Sediment Control Plan	Drafted Up	07/03/2022
A.10	Roof Plan	Drafted Up	07/03/2022

Supporting Documentation

*Document Title*	*Prepared by*	*Dated*	*Council Reference*
Waste Management Plan	Unknown	12/03/2022	D08403495
BASIX Certificate No. A453932	BASIX Certificate Centre	29/03/2022	D08403489
Bushfire Assessment Report	Bushfire Consultancy Australia	18/01/2022	D08403487

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. 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, $545.00 must be paid towards the provision, extension or augmentation of public amenities or public services, based on development costs of $109,000.00.

b) The value of this contribution is current as of 5 July 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:

(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.

4. Structural Engineering Certification

To ensure the stability of the site, a suitability qualified and experienced structural engineer is to confirm that the existing footings and walls can accommodate the additional load from the dwelling addition.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

5. Building Code of Australia

6. 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.

7. 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; and

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; and

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.

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. Design and Construction - Bushfire Attack Category

New construction must comply with the current Australian Standard AS3959 ‘Construction of Buildings in Bush Fire-prone Areas’ Section 3 and 9 (BAL Flame Zone) and Planning for Bushfire Protection 2019.

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

10. Stormwater Drainage – Dwellings

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 directly to Council’s street drainage system.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

11. 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.

12. 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.

13. 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.

REQUIREMENTS DURING CONSTRUCTION

14. 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.

15. Demolition

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

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

16. Environmental Management

17. Council Property

18. 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 structural root zone/canopy of any tree on the site.

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

19. Fulfilment of BASIX Commitments

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

20. Certification of RFS Requirements

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 NSW RFS conditions of concurrence prior to the issue of the Occupation Certificate.

21. 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.

CONDITIONS OF CONCURRENCE – NSW RURAL FIRE SERVICES

The following conditions of consent are from the nominated State Agency pursuant to Section 4.13 of the Environmental Planning and Assessment Act 1979 and must be complied with to the satisfaction of that Agency

22. Asset Protection Zones

Intent of measures: to minimise the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting firefighting activities.

From the start of building works and in perpetuity, the entire property must be managed as an inner protection area (IPA) in accordance with the requirements of Appendix 4 of Planning for Bush Fire Protection 2019. When establishing and maintaining an IPA, the following requirements apply:

a) Tree canopy cover be less than 15% at maturity.

b) Trees at maturity are not touching or overhang the building.

c) Lower limbs are removed up to a height of 2m above the ground.

d) Tree canopies are separated by 2 to 5m.

e) Preference is given to smooth-barked and evergreen trees.

f) Large discontinuities or gaps in vegetation are provided to slow down or break the progress of fire towards buildings.

g) Shrubs are not located under trees.

h) Shrubs do not form more than 10% of ground cover.

i) Clumps of shrubs are separated from exposed windows and doors by a distance of at least twice the height of the vegetation.

j) Grass to be kept mown (as a guide grass should be kept to no more than 100mm in height).

k) Leaves and vegetation debris are removed.

l) NSW Rural Fire Service's document Standards for asset protection zones.

23. Landscaping

Any new landscaping within the inner protection area (IPA) must comply with Appendix 4 of Planning for Bush Fire Protection 2019. In this regard, the following principles are to be incorporated:

a) A minimum 1 metre wide area (or to the property boundary where the setbacks are less than 1 metre).

b) suitable for pedestrian traffic, must be provided around the immediate curtilage of the building.

c) Planting is limited in the immediate vicinity of the building.

d) Planting does not provide a continuous canopy to the building (i.e. trees or shrubs are isolated or located in small clusters).

e) Landscape species are chosen to ensure tree canopy cover is less than 15% (IPA) at maturity and trees do no touch or overhang buildings.

f) Avoid species with rough fibrous bark, or which retain/shed bark in long strips or retain dead material in their canopies.

g) Use smooth bark species of trees species which generally do not spread fire up the bark into the crown.

h) Avoid planting of deciduous species that may increase fuel at surface/ ground level (i.e. leaf litter).

i) Avoid climbing species to walls and pergolas.

j) Locate combustible materials such as woodchips/mulch, flammable fuel stores away from the building.

k) Locate combustible structures such as garden sheds, pergolas and materials such as timber garden furniture away from the building.

l) Low flammability vegetation species are used.

24. Construction Standards

Intent of measures: to minimise the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting firefighting activities.

b) Any new Class 10b structures as defined per the National Construction Code must be non-combustible.

25. Water and Utility Services

Intent of measures: to minimise the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting firefighting activities.

Any new water, electricity and gas installations must comply with the following in accordance with Table 7.4a of Planning for Bush Fire Protection 2019:

a) Exposed water pipes external to the building are metal, including any fittings.

b) Where practicable, electrical transmission lines are underground.

c) Where overhead, electrical transmission lines are proposed as follows:

i) Lines are installed with short pole spacing (30m), unless crossing gullies, gorges or riparian areas.

ii) No part of a tree is closer to a power line than the distance set out in accordance with the specifications in ISSC3 Guideline for Managing Vegetation Near Power Lines.

d) Reticulated or bottled gas is installed and maintained in accordance with AS/NZS 1596:2014 and the requirements of relevant authorities, and metal piping is used.

e) All fixed gas cylinders are kept clear of all flammable materials to a distance of 10m and shielded on the hazard side.

f) Connections to and from gas cylinders are metal.

g) Polymer sheathed flexible gas supply ‐ lines are not used; and

h) Above-ground gas service pipes are metal, including and up to any outlets.

- 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

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.

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.

Asbestos Warning

2.1.5 Exceptions to Development Standards

www.safework.nsw.gov.au

Alternatively, telephone the SafeWork NSW on 13 10 50.

LPP Report No. LPP20/22

Local Planning Panel

Date of Meeting: 27/07/2022

4 DA/416/2020 - CONSTRUCTION OF A 10-12 STOREY MIXED USE DEVELOPMENT AND STRATA SUBDIVISON - 228-234 PACIFIC HIGHWAY, HORNSBY

EXECUTIVE SUMMARY

DA No:	DA/416/2020 (Lodged on 2 June 2020)
Description:	Construction of a 10-12 storey mixed use development comprising retail tenancies at the ground floor level, commercial tenancies at the first-floor level, a residential aged care facility at Levels 3-11, a residential apartment at Level 12 and strata subdivision
Property:	Lot A DP 304557 and Lot B DP 304557, Nos. 228-234 Pacific Highway, Hornsby
Applicant:	TBG Senior Living Services Pty Ltd
Owner:	TBG Senior Living Services Pty Ltd
Estimated Value:	$26,950,000
Ward:	B Ward

· The proposal does not comply with the Hornsby Shire Local Environmental Plan 2013 with regard to Clause 4.3 ‘Height of buildings’. The applicant has made a submission in accordance with Clause 4.6 ‘Exceptions to development standards’ of the Hornsby Local Environmental Plan 2013 to contravene the height of buildings development standard. The submission is considered well founded and is supported.

· A total of 6 submissions have been received in respect of the application.

· It is recommended that the application be approved.

RECOMMENDATION

THAT the 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/416/2020 for construction of a 10-12 storey mixed use development and strata subdivision at Lot A DP 304557, Lot B DP 304557, Nos. 228-234 Pacific Highway, Hornsby subject to the conditions of consent detailed in Schedule 1 of LPP Report No. LPP20/22.

BACKGROUND

On 3 June 2009, Council approved DA/1564/2008 for construction of a seven storey development comprising one level of retail on the ground floor, two floors of commercial and four floors of residential. The residential component would comprise a total of 32 units. The approved development included the provision of four levels of basement car parking comprising a total of 108 car spaces with 7 bicycle racks and 4 motorcycle spaces.

The original consent has been through numerous approved modifications with the most recent modification (DA/1564/2008/E) approved on 12 August 2015 which included an additional storey and eight additional units with an approved height of 27.4m and a total combined floor space ratio of 4.7:1.

The approved development (as amended) comprises an 8-storey mixed-use building providing approximately 359m² of retail floor space, 1,651m² of commercial floor space, and 35 residential apartments. Off-street car parking was approved for 86 vehicles within a 3 level basement structure, accessed via a combined entry/exit driveway located along the Edgeworth David Avenue frontage of the site.

On 22 September 2014, Construction Certificate No. CC/566/2014 was approved. DA/1564/2008 has physical commencement as a result of demolition of the commercial building on the site.

In late May 2017, the subject site was sold to TBG Senior Living Services Pty Ltd, a social housing provider delivering home support services include nursing care, personal care, home help, social support, respite and recreational care, gardening and home maintenance.

Following the change in ownership, the Applicant held a pre-lodgement meeting with Council Officers on 3 May 2018 to discuss a new approach to the site. At the time, the design concept generally involved retaining the retail and commercial uses on the lower levels, and otherwise adjusting the approved building form above to accommodate the operational requirements associated with the change of use from residential apartments to a ‘residential care facility’. Given the strategic location of the site, Council strongly recommended that the Applicant engage an Urban Designer prior to lodging the development application.

On 21 March 2019, following the pre-lodgement advice, the Applicant engaged GMU Urban Design and Architecture to review the original approval and concerns were raised in relation to the overall architectural merit of the approved development and an opportunity was identified to respond to the site context more appropriately, and the emerging form of development in the locality. Accordingly, it was recommended by the consultant urban designer that a new scheme be formulated for the site.

On 21 March 2019, the Applicant and its representatives attended a meeting of Council’s Design Excellence Panel. The Panel generally supported the proposed development and indicated that: “The Panel provided in principle support for the design concept and recommended that the proposal proceed to a future Development Application or Planning Proposal (should it be warranted)”.

application history

On 2 June 2020, DA/416/2020 was lodged for construction of a 10-12 storey mixed use building accommodating retail tenancies at the ground floor level, commercial tenancies at the first-floor level, a residential care facility at Levels 3-11, a residential apartment at Level 12 and strata subdivision.

On 12 August 2020, a Design Excellence Panel meeting was held between the Applicant’s representatives and Council’s Design Excellence Panel (DEP). The DEP concluded that:

“This DA proposal is capable of satisfying the intentions of the Hornsby LEP, DCP and objectives for design excellence. Subject to addressing the issues raised, the development has the potential to create a high quality outcome that will generate much needed accommodation for the aged care sector, while also adding to the amenity and visual qualities of this gateway site.”

Between 4 June 2021 and 16 June 2021, the applicant submitted amended architectural plans and a written response responding to the points raised by the DEP and Council’s assessment request.

Between 21 September 2021 and 14 March 2022, the applicant provided additional information requested by Council to support the application including detailed contamination reports, acoustic reports, amended architectural plans, amended traffic report and a geotechnical report.

On 2 March 2022, the applicant submitted minutes from the Strata Plan 30399 meeting which benefits from the right of way, who unanimously resolved to enter into a deed of agreement for an amended right of way and requirements for access during construction of the building.

Between September 2020 to July 2022 the Applicant responded to numerous detailed requests for additional information from Sydney Trains and Transport for NSW.

On 5 May 2022, Transport for NSW provided concurrence to the application.

On 27 June 2022, Sydney Trains provided concurrence to the application.

SITE

The 1181.2m²site is located on the south-eastern corner of the Pacific Highway and Edgeworth David Avenue. The existing improvements on the site have been demolished and the site is currently vacant.

The site comprises an irregular shaped allotment with frontages of 19.68 metres to the Pacific Highway, 36.57 metres to Edgeworth David Avenue and 39 metres to the Northern Railway corridor.

The site falls approximately 2 metres from the north-western corner to the south-eastern corner.

The access to the site is provided via a 3.05 metre wide driveway located along the eastern boundary of the site with vehicular access provided from Edgeworth David Avenue. This driveway also acts as the right of carriageway providing access to No. 10 Edgeworth David Avenue, adjoining the site to the east.

The site is located in the Hornsby Town Centre, being within 1km of the Hornsby Railway Station and is surrounded by a mix of land uses including commercial, residential and educational establishments. The Westfield Shopping Centre is located to the north of the site on the opposite side of Edgeworth David Avenue. The adjoining building to the east includes a medical centre and retail premises. The development is located in close proximity to a number of high-density residential and mixed use developments. A ten storey high density residential development exists on the opposite side of the rail corridor to the south of the site.

PROPOSAL

The proposed development comprises the construction of a 10-12 storey mixed-use building accommodating retail tenancies at the ground floor level, commercial tenancies at the first floor level, a ‘residential aged care facility’ at Levels 3 -11, and a residential apartment at Level 12. Specific details of the proposed development is provided as follows:

· Basement Levels

Off-street car parking is proposed for 55 vehicles (including 4 accessible spaces) within a 3 level basement car park, accessed via a combined entry/exit driveway located along the Edgeworth David Avenue frontage of the site. The basement levels also accommodate six motorcycle spaces, multiple storage areas, a waste truck/delivery area, a water tank, plant rooms, and the kitchen and laundry facilities servicing the “residential care facility”.

An ambulance bay is also located within the ground floor level basement area.

· Retail/Commercial Levels

The retail floor space along the ground floor would be divided into five tenancies ranging in size from 37.65-129.21m². The individual retail tenancies include entry/exit doors along the Pacific Highway and Edgeworth David Avenue frontages.

The commercial floor space at the first-floor level would be divided into five tenancies (plus the reception and administrative support for the “residential care facility”) ranging in size from 60-145.8m². The individual commercial tenancies extend around the perimeter of the floorplate, with internal access via the main entry foyer.

· Residential Aged Care Facility

The ‘residential aged care facility’ (RACF) accommodates 84 beds and associated facilities including kitchen, laundry, meeting rooms, reception, lounge and dining areas, nurses stations, cleaning store rooms and amenities. The “residential care facility” includes a dedicated dementia unit at Level 2, with the podium level utilised to provide a landscaped dementia garden. The RACF would be occupied in accordance with Clause 18 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.

The RACF would accommodate approximately 35 staff.

· Residential Apartment

The residential apartment would be ancillary to the RACF building and used by the Manager of the complex. The apartment would be located on Level 12, provides a floor area of 194.91m², and includes three bedrooms, a home office, living, dining and kitchen areas, garden beds and terraces.

No signage is proposed as part of this application.

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 North District Plan, by providing additional dwellings to support an aging population and would contribute to housing choice in the locality.

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 B4 Mixed Use under the HLEP. The objectives of the B4 zone are:

· To provide a mixture of compatible land uses.

· To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

The proposed development is defined as ‘seniors housing’ and ‘business premises’ and is permissible in the B4 zone with Council’s consent.

The residential accommodation on the top level is considered ancillary to the residential aged care facility as it would be used by the Manager/staff of the seniors housing development and is permissible in the B4 zone with Council’s consent.

2.1.2 Height of Buildings

Clause 4.3 of the HLEP provides that the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The maximum permissible height for the site is 23.5m. The proposal does not comply with this provision.

The proposed building has a maximum height of approximately 41.68 metres measured to the top of the feature screen, and 39.58 metres to the upper level roof which does not comply with this provision.

Clause 48 of SEPP (Housing for Seniors or People with a Disability) 2004 does not specify a maximum building height, and there is no maximum building height control for a “residential care facility”. Further, Clause 5(3) of the SEPP specifies that the SEPP prevails to the extent of any inconsistency with any other environmental planning instrument (including the HLEP).

Notwithstanding, the applicant has submitted a precautionary Clause 4.6 request which is discussed in Section 2.1.5 of this report below.

2.1.3 Architectural Roof Features

The objectives of Clause 5.6 of the HLEP are as follows:

a) To permit variations to maximum building height standards for roof features of visual interest,

b) To ensure that roof features are decorative elements and that the majority of the roof is contained within the maximum building height standard.

This provision permits development that includes an architectural roof feature that exceeds, or causes a building to exceed, the height limit set by Clause 4.3.

The proposal incorporates a feature screen along the top of the building which assists in the design of the building and reinforces the corner of Edgeworth David Avenue and Pacific Highway. The screen does not add to any floor space of the building and instead contributes to visual interest.

In accordance with Clause 5.6(3), the feature screen is excluded from the height of building provision as the screen is considered an architectural roof feature which comprises a decorative element on the uppermost portion of a building, is not an advertising structure, does not include floor space area, is not reasonably capable of modification to include floor space area, and will cause minimal overshadowing.

2.1.4 Floor Space Ratio

Clause 4.4(2) of the HLEP provides that the floor space ratio (FSR) on any land is not to exceed the maximum shown for the land on the Floor Space Ratio Map. The maximum permissible FSR for the precinct in accordance with the map is 5:1.

The proposed development provides a gross floor area of 5,883.78m², representing a FSR of 5:1 which complies with the overall FSR for the subject site.

Notwithstanding, Clause 4.4(2A) of the LEP states the following:

Despite subclause (2), the floor space ratio for residential accommodation in an area identified as “Area 1” on the Floor Space Ratio Map must not exceed 2:1.

The Dictionary of the HLEP defines ‘residential accommodation’ to include ‘seniors housing’, irrespective of whether the ‘seniors housing’ comprises a ‘residential aged care facility’, a ‘hostel’, or ‘self-contained dwellings’.

On that basis, the proposed development provides a non-residential FSR of approximately 1.05:1, and a residential FSR of approximately 3.95:1 which exceeds the maximum residential accommodation permitted for the site.

The applicant has made a submission in support of a variation to the development standard in accordance with Clause 4.6 of the HLEP and this is discussed in Section 2.1.4 of this report.

The application has been assessed against the requirements of Clause 4.6 of the HLEP. This clause provides flexibility in the application of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary, and it can be demonstrated that sufficient environmental planning grounds are present to justify contravening a development standard.

The application seeks to contravene Clause 4.3 of the HLEP as the maximum height of building development standard as the roof pitch would be 39.58m which exceeds the development standard by 16.08m or 68% and does not comply with the 23.5m height of building development standard.

The objectives of Clause 4.3 Height of buildings are as follows:

(a) To permit a height of buildings that is appropriate for the site constraints, development potential and infrastructure capacity of the locality.

(b) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

In addition, the application seeks to contravene Clause 4.4(2A) of the HLEP which states that a maximum Floor Space Ratio of 2:1 applies for any residential accommodation for the subject site as the proposed development provides a residential FSR of 3:95:1.

The objectives of Clause 4.4 Floor Space Ratio are as follows:

(a) To permit development of a bulk and scale that is appropriate for the site constraints, development potential and infrastructure capacity of the locality.

The applicant has made a submission in support of the contravention to the development standard in accordance with Clause 4.6 of the HLEP. Clause 4.6 provides that development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

(b) That there are sufficient environmental planning grounds to justify contravening the development standard.

2.1.5.1 Unreasonable or Unnecessary Clause 4.6(3)(a)

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:

· The objectives of the development standard are achieved notwithstanding non-compliance with the standard.

· The underlying objective or purpose is not relevant to the development.

· That the objective would be defeated or thwarted if compliance was required.

· That the development standard has been virtually abandoned or destroyed by the Council’s own actions in departing from the standard.

· The zoning of the land is unreasonable or inappropriate.

The written request prepared by James Lovell and Associates, dated 13 April 2022 provides a detailed assessment of the proposal with respect to the development standards sought to be contravened. The request argues that:

Height of Building

What is the underlying object or purpose of the standard

· The locality surrounding the site is undergoing a transition towards a more intensified precinct, with the newer development characterised by multi-storey mixed-use buildings. Further, the site effectively functions as the southern gateway to the Hornsby Town Centre, providing an opportunity to construct a high-quality building to be perceived as an important built form marker.

· The applicable building height and floor space ratio (FSR) controls incorporated in the LEP effectively generate a “squat building form” which, in terms of design quality, is inherently inappropriate for a prominent gateway site.

· Accordingly, the proposed development has been designed to comply with the FSR control, and has intentionally redistributed the floor space to provide a more appropriate, vertical building form, that extends above the current building height control.

· The proposed development does not involve exceeding the development capacity of the site in terms of overall floor space, and the site is serviced by all necessary infrastructure.

· Further, the proposed building form, including the variation to the building height control, has specifically been designed to achieve a building form that is more appropriate for the site having regard to its physical context, and the nature of surrounding development.

· In the circumstances, the proposed development is consistent with the objective of the building height control, notwithstanding the numerical variation.

The objectives of the standard are achieved notwithstanding non-compliance with the standard

· The proposed development is consistent with the objective of the building height control, notwithstanding the numerical variation. In that regard, the Applicant relies upon ground 1 in Wehbe (i.e. the objectives and purposes of the standard are achieved notwithstanding non-compliance with the development standard) to support its submission that compliance with the development standard is both unreasonable and unnecessary in the circumstances of this case.

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

· The objectives and purpose of the building height control remain relevant, and the proposed development is consistent with the objective of the building height control, notwithstanding the numerical variation.

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

· The proposed development is consistent with the objective of the building height control, notwithstanding the numerical variation. Further, strict compliance with the building height control would generate a “squat building form” which, in terms of design quality, is inherently inappropriate for a prominent gateway site.

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

· The building height control has not been abandoned or destroyed by the Council’s actions. However, the Council has consistently adopted an orderly but flexible approach to the implementation of development standards in appropriate circumstances, including when the objectives of the standard are achieved, notwithstanding numerical variations. Further, the objectives of Clause 4.6 of the LEP includes to provide “an appropriate degree of flexibility in applying certain development standards to particular development”.

Compliance with the 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

· The zoning of the land remains relevant and appropriate.

Floor Space Ratio

What is the underlying object or purpose of the standard

· In relation to the expressed objective of the FSR control, the proposed development complies with the total FSR control, circumstances in which the bulk and scale of the building is an appropriate response to the site constraints, development potential and infrastructure capacity of the locality.

· In relation to the assumed objective of the residential FSR control, the proposed “residential care facility” will generate employment for approximately 35 staff, with additional “flow on effects” arising due to the sites proximity to major retail and transport infrastructure, including Westfield Hornsby Shopping Centre and Hornsby Railway Station.

· Finally, the “residential care facility” (whilst technically a form of “residential accommodation”) will provide more employment than any other form of “residential accommodation”, and substantially more employment than the approved residential apartments on the site. In the circumstances, the proposed development is consistent with both the expressed and assumed objectives of the residential FSR control, notwithstanding the numerical variation.

The objectives of the standard are achieved notwithstanding non-compliance with the standard

· As noted above, the proposed development is consistent with both the expressed and assumed objectives of the residential FSR control, notwithstanding the numerical variation.

· In that regard, the Applicant relies upon ground 1 in Wehbe (i.e. that the objectives and purposes of the standard are achieved notwithstanding non-compliance with the development standard) to support its submission that compliance with the development standard is both unreasonable and unnecessary in the circumstances of this case.

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

· The objectives and purpose of the residential FSR control remain relevant, and the proposed development is consistent with both the expressed and assumed objectives of the residential FSR control, notwithstanding the numerical variation.

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

· The proposed development is consistent with both the expressed and assumed objectives of the residential FSR control, notwithstanding the numerical variation.

· Further, strict compliance with the non-residential FSR control would require a not insignificant proportion of the “residential care facility” to be converted to an alternate use, and thereby the significant public, health and economic benefits arising from the inclusion of that important use would be unnecessarily lost.

· The non-residential FSR control has not been abandoned or destroyed by the Council’s actions. However, the Council has consistently adopted an orderly but flexible approach to the implementation of development standards in appropriate circumstances, including when the objectives of the standard are achieved, notwithstanding numerical variations.

· Further, the objectives of Clause 4.6 of the LEP includes to provide “an appropriate degree of flexibility in applying certain development standards to particular development”.

· The zoning of the land remains relevant and appropriate.

Council considers that the applicant’s written request sufficiently identifies that the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

The request makes a sufficient argument that the proposed FSR and increased height are appropriate for the site and consistent with the business zoning of the site and the objectives of the height and FSR development standards for the site. The contravention would not be out of character when viewed from the public domain and would not result in amenity impacts to adjoining properties in terms of overshadowing, views or outlook.

It is also noted that neither the Height of Building or non-residential FSR would not generate additional infrastructure demand and does not amount to an overdevelopment of the site noting that the proposal complies with the overall FSR for the site. The non-compliance could be avoided by strictly complying with the height of building standard or non-residential FSR, however this would not result in a slimline building, nor would it achieve residential aged care within the town centre and would not result in a good planning outcome.

Accordingly, it is considered that the proposal is consistent with the objectives of the B4 zone as the development provides for a mixture of compatible land uses which integrates business, office, retail and residential in an accessible location to maximise public transport patronage and satisfies the objective of the height of building and floor space ratio development standards.

It is considered that the development potential and infrastructure capacity of the locality are capable of accommodating a development of the kind proposed.

2.1.5.2 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:

Height of Building

· Clause 48 of SEPP (Housing for Seniors or People with a Disability) 2004 does not specify a maximum building height, and there is no maximum building height control for a “residential care facility”;

· The applicable building height and FSR controls incorporated in the LEP effectively generate a “squat building form” which, in terms of design quality, is inherently inappropriate for a prominent gateway site;

· The proposed development has been designed to comply with the FSR control, and has intentionally redistributed the floor space to provide a more appropriate, vertical building form, that extends above the current building height control;

· The proposed development does not involve exceeding the development capacity of the site in terms of overall floor space, and the site is serviced by all necessary infrastructure;

· The compliance with the total FSR control of 5:1 ensures the proposed development the bulk and scale of the building is an appropriate response to the site constraints, development potential and infrastructure capacity of the locality;

· Strict compliance with the building height control would generate a “squat building form” which, in terms of design quality, is inherently inappropriate for a prominent gateway site;

· The proposed development is consistent with the objectives of the B4 - Mixed Use zone; and

· The proposed development is consistent with the objective of the building height control, notwithstanding the numerical variation.

Floor Space Ratio

· The LEP specifies a maximum FSR of 5:1, and the proposed development provides an FSR of 5:1;

· The proposed development complies with Clause 19 of the SEPP which species that development for the purposes of seniors housing should not include the use of any part of the ground floor level of a building that fronts a street for residential purposes if the building is located on land zoned primarily for commercial purposes;

· Clause 19 of the SEPP does not require any additional non-residential floor space to be located above the ground floor level, even on sites zoned primarily for commercial purposes;

· The proposed “residential care facility” will generate employment for approximately 35 staff, with additional “flow on effects” arising due to the sites proximity to major retail and transport infrastructure, including Westfield Hornsby Shopping Centre and Hornsby Railway Station;

· The “residential care facility” (whilst technically a form of “residential accommodation”) will provide more employment than any other form of “residential accommodation”, and substantially xxiii more employment than the approved residential apartments on the site;

· Strict compliance with the residential FSR control would require a not insignificant proportion of the “residential care facility” to be converted to an alternate use, and thereby the significant public, health and economic benefits arising from the inclusion of that important use would be unnecessarily lost;

· The variation to the residential FSR does not alter the proposed building forms, circumstances in which there are no consequences arising in terms of the physical relationship and/or amenity of surrounding properties;

· The proposed development is consistent with the objectives of the B4 - Mixed Use zone; and

· The proposed development is consistent with both the expressed and assumed objectives of the residential FSR control, notwithstanding the numerical variation.

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.

2.1.5.3 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

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

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

With regard to part (a)(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), on 21 February 2018, the Secretary of the Department of Planning and Environment issued a Notice under cl. 64 of the Environmental Planning and Assessment Regulation 2000. The Secretary’s concurrence may not be assumed by a delegate of council if:

· The development contravenes a numerical standard by greater than 10%.

· The variation is to a non-numerical standard.

Accordingly, it is considered that the 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 Request and grant development consent to the DA. Should the Panel resolve to approve the DA, it should also provide a statement in the reasons for approval that it has satisfied itself of the matters in Clause 4.6(4).

2.1.6 Heritage Conservation

2.1.7 Earthworks

Council’s assessment of the proposed works and excavation concludes that the proposal is acceptable, subject to a dilapidation report be prepared for the adjoining commercial property at No. 10 Edgeworth David Avenue and submitted to Council/PCA prior to the issue of a Construction Certificate.

2.1.8 Design Excellence

Clause 6.8 of the HLEP sets out matters for consideration to determine whether a proposed development exhibits a high standard of design. The Clause applies to development proposals on land with a permitted height limit over 29.5m (10 storeys or more) as well as attached dwellings, multi dwelling housing, residential flat buildings and shop top housing.

Clause 6.8 states that development consent must not be granted to development to which this Clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

To enable the implementation of ‘Clause 6.8 Design Excellence’ in the HLEP, Council has established a panel of suitably qualified architecture and urban design professionals to undertake a review of the design quality of relevant developments.

This Clause does not apply to the subject development application for a mixed-use building with commercial on the ground and first level and residential care facilities above. Notwithstanding, the Applicant agreed to engage an urban designer and the scheme was referred to Council’s Design Excellence Panel on two separate occasions, during the pre-lodgement stage and during the development application stage to provide design guidance and improve amenity for both the neighbourhood and future residents of the development.

It is considered that the development has adequately responded to the amendments recommended by the Design Excellence Panel and achieves a design that is sympathetic to the Hornsby Town Centre, increasing amenity to future residents and facilitating a building of design excellence.

This is discussed in greater detail in Section 2.5.6 of the report below.

2.2 Adopted State Environmental Planning Policies

On 1 March 2022, the following State Environmental Planning Policies (SEPPS) were gazetted.

· State Environmental Planning Policy (Primary Production) 2021

· State Environmental Planning Policy (Resources and Energy) 2021

· State Environmental Planning Policy (Resilience and Hazards) 2021

· State Environmental Planning Policy (Industry and Employment) 2021

· State Environmental Planning Policy (Transport and Infrastructure) 2021

· State Environmental Planning Policy (Biodiversity and Conservation) 2021

· State Environmental Planning Policy (Planning Systems) 2021

· State Environmental Planning Policy (Precincts - Eastern Harbour City) 2021

These SEPPs now form matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979. However general savings provisions apply to development applications that have been made but not yet determined, on or before the commencement date.

As this development application was lodged on 21 December 2021, this development application is considered to have been made prior to the commencement date of the SEPPs. The existing legislation in force at time of lodgement of the development application, prevails to be extent of any inconsistency.

Notwithstanding, the approval of the development application would not adversely affect the objectives of the newly adopted SEPPs and is considered to be consistent with this policy.

2.3 State Environmental Planning Policy No. 55 Remediation of Land

The application has been assessed against the requirements of State Environmental Planning Policy No. 55 Remediation of Land (SEPP 55) under which consent must not be granted to the carrying out of any development on land unless the consent authority has considered whether the land is contaminated or requires remediation for the proposed use.

The site previously contained a commercial building which has since been demolished. Accordingly, a Remedial Action Plan, Asbestos Clearance Certificate, Environmental Compliance Report and Site Validation Report were submitted with the application that verified the remediation goals have been met from the demolition of previous structures on the site and the site is suitable for the proposed residential land use.

Subject to conditions that require compliance with an Environmental Management Plan which includes provisions for waste classification and unexpected finds, Council raises no objections to the proposal as it is not likely that the site has experienced any significant contamination, and further assessment under SEPP 55 is not required.

2.4 State Environmental Planning Policy (Infrastructure) 2007

The application has been assessed against the requirements of State Environmental Planning Policy (Infrastructure) 2007 (ISEPP). This Policy contains State-wide planning controls for developments adjoining rail-corridors and busy roads. The relevant clauses of the Policy are addressed below.

2.4.1 Excavation in, above, below or adjacent to railway corridors

The development is located immediately adjoining the Northern Rail Corridor and would require excavation within 25 metres (measured horizontally) of the corridor. The proposal was referred to Sydney Trains for concurrence.

On 27 June 2022, Sydney Trains raised no objections to the proposal and provided concurrence to the application, subject to conditions.

2.4.2 Development with Frontage to a Classified Road

The proposal has been assessed against the requirements of Clause 101 of the ISEPP as the site has a frontage to Pacific Highway which is a Classified Road and vehicular access is proposed from Edgeworth David Drive (a regional classified road).

The proposed development was referred to the Transport for NSW (TfNSW) for concurrence under Section 138 of the Roads Act 1993. No objections were raised regarding the driveway location or stormwater solution subject to conditions of consent. Council’s engineering assessment concludes that the width of the driveway is satisfactory to enable vehicles to pass and enter and leave the site in a forward direction.

2.4.3 Impact of Road Noise and Noise from Train Corridor

Clauses 87 and 102 of the ISEPP applies to the development as it would be impacted upon by the noise and vibration from the rail corridor and the Pacific Highway. In accordance with the requirements of the SEPP, the application has been assessed against the noise related controls contained within the Department of Planning’s publication ‘Development near Rail Corridors and Busy Roads – Interim Guidelines’.

The applicant has addressed this requirement by submitting a detailed Rail Impact Report and Noise Assessment Report against the above guidelines. The report details the construction techniques to attenuate rail noise and vibration and concludes that the development would not exceed the specified noise criteria and Leq levels within Clauses 87 and 102 of the ISEPP.

Council’s assessment of the application with regard to noise included a detailed examination of the Noise Assessment Report and is considered satisfactory. Sydney Trains has also reviewed the application with regard to noise and vibration and raised no objections subject to implementation of the recommended conditions.

A condition is recommended that the Construction Certificate plans are required to demonstrate compliance with the recommendations of the acoustic report and vibration measures.

2.4.4 Rail safety issues

The document ‘Development near Rail Corridors and Busy Roads – Interim Guidelines’ prescribes guidelines and design elements to be incorporated into a development adjoining a rail corridor to reduce vandalism and improve safety of the infrastructure. Sydney Trains has recommended the following conditions in accordance with the guidelines:

· ‘Given the possible likelihood of objects being dropped or thrown onto the rail corridor from balconies, windows, and other external features (e.g., roof terraces and external fire escapes) that are within 20 metres of, and face, the rail corridor, the development must have measures installed, to the satisfaction of Sydney Trains (e.g., awning windows, louvres, enclosed balconies, window restrictors etc.) which prevent the throwing of objects onto the rail corridor.

· No scaffolding is to be used facing the rail corridor and TAHE (Transport Asset Holding Entity) electrical assets unless prior written approval has been obtained from Sydney Trains. To obtain approval the Applicant will be required to submit details of the scaffolding, the means of erecting and securing this scaffolding, the material to be used, and the type of screening to be installed to prevent objects falling onto the rail corridor and TAHE (Transport Asset Holding Entity) electrical assets.

The design of the proposal includes anti-throw louvred glass windows louvers on all balcony levels facing the rail corridor and the terrace on Level 2 ‘dementia garden’ includes a 1.88m high wall to prevent the throwing of structures onto the rail corridor. Accordingly the design of the proposal would not have an unacceptable impact on the streetscape and would protect the rail infrastructure. The proposal is acceptable in this regard.

2.4.5 Traffic Generating Development

The development is not classified as a Traffic Generating Development in accordance with Clause 104 and Schedule 3 of the ISEPP as it would not result in more than 75 dwellings fronting a classified road.

Further, the TfNSW Development Guidelines do not specify a generation rate for a RACF and the RMS Technical Direction TDT 2013-4 (Seniors Housing) is not relevant as that document is predominately based on Independent Living Units which generate a high demand for car parking.

No objections have been raised by TfNSW with regard to traffic generation.

2.5 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) is the overriding planning instrument for the development of housing for aged and disabled people in NSW and provides for hostels, residential care facilities (nursing homes) self-contained dwellings and multi-storey buildings.

SEPP HSPD is comprehensive in scope including land use planning provisions, design principles, development standards and standards specifically to meet the housing needs of aged and disabled people. SEPP HSPD also includes design guidelines for infill development. The assessment of the proposal in accordance with the relevant requirements of SEPP HSPD is provided as follows:

2.5.1 Clause 11 - Residential Care Facilities

SEPP HSPD includes the flowing definition for “residential care facility”:

“In this Policy, a residential care facility is residential accommodation for seniors or people with a disability that includes -

(a) meals and cleaning services, and

(b) personal care or nursing care, or both, and

(c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care, not being a dwelling, hostel, hospital or psychiatric facility”.

For the purposes of assessment against SEPP HSPD, the proposed RACF development is defined as a “residential care facility” comprising 84 bedrooms.

It is noted that pursuant to clause 18 of the SEPP, recommended conditions shall only permit the following people to occupy any accommodation to which the application relates by way of imposing positive covenant pursuant to section 88E of the Conveyancing Act 1919:

(a) seniors or people who have a disability,

(b) people who live within the same household with seniors or people who have a disability,

(c) staff employed to assist in the administration of and provision of services to housing provided under this Policy.

2.5.2 Use of seniors housing in commercial zones

SEPP HSPD restricts seniors housing for any part of the ground floor of a building that fronts a street if the building is located on land that is zoned primarily for commercial purposes unless another environmental planning instrument permits the use of all of the building for residential purposes

The proposed ground and first floor level do not contain residential accommodation and these levels would be commercial.

2.5.3 Clause 26 - Location and Access to Facilities

The SEPP HSPD includes mandatory standards for accessibility and useability of Seniors Housing to ensure wheelchair accessibility throughout the development and to a public road.

Mandatory standards also apply for access to public transport, medical services and shops.

The application was supported by a disability Access Report prepared by Cheung Access which includes a detailed assessment of the subject site and the proposed development, with respect to compliance with the mandatory standards. The relevant matters are discussed below.

2.5.3.1 Local Shopping Centre Access

The site is located immediately opposite the main pedestrian entrance to Westfield Hornsby Shopping Centre, with a signalised pedestrian crossing in front of the site. The Centre provides a full range of shops, banks, retail, commercial and health services the future residents may reasonably require.

2.5.3.2 Public Transport Access

There are multiple bus stops located within 400 metres of the site (including immediately in front of the site) that service bus routes 587, 588, 589 and 591, providing regular connections throughout the surrounding area. Accordingly, the site location and access provisions of the SEPP are compliant pursuant to Clause 26(2).

2.5.4 Clause 30 - Site Analysis

The application includes a site analysis plan and accompanying information in accordance with the requirements of the SEPP HSPD. The proposal is assessed as satisfactory in this regard.

2.5.5 Clause 32 - Design of Residential Development

The proposed development was accompanied by an Urban Design Report prepared by GMU under the guidance of Karla Castellanos. The proposal was referred to Council’s Design Excellence Panel which concluded that:

“…this DA proposal is capable of satisfying the intentions of the Hornsby LEP, DCP and objectives for design excellence. Subject to addressing the issues raised, the development has the potential to create a high quality outcome that will generate much needed accommodation for the aged care sector, while also adding to the amenity and visual qualities of this gateway site.”

As discussed below, Council is satisfied that the proposal demonstrates sufficient regard for the design principles.

2.5.6 Clause 33 - Neighbourhood Amenity and Streetscape

Council’s assessment against the relevant requirements of Clause 33 is provided as follows:

The proposed development should:

The subject site is located in a mixed-use precinct of the Hornsby Town Centre with an applicable height limit 23.5m which equates to approximately 7 storeys.

The Hornsby Design Excellence Panel provided the following response which recognises that the proposed scheme is a preferred outcome to the existing approved DA for the site:

Desired Future Character

“Given the site location and context within Hornsby Town Centre, the contemporary expression and well modelled language was considered to be an appropriate character response. This was demonstrated with 3D streetscape visualisations from various locations in the public domain and provided a well-conceived approach to achieving a suitable redistribution of the massing and its enclosure for this transitional area. This is a preferable development outcome to the currently approved DA for this site.

Height

“The justification for the significant exceedance of the height limit is supported on the basis that a superior development outcome can be achieved within the permissible FSR, and that there will not be major detrimental environmental impacts to nearby sites. Based on Cl. 4.3 of the height of buildings ‘To permit a height of buildings that is appropriate for the site constraints, development potential and infrastructure capacity of the locality’ the Cl. 4,6 variation sought should be supported, subject to minor adjustments recommended on built form.”

The Applicants Urban Designer states the following with regards to recognising the desirable character of the area:

“The existing scale of the surrounding buildings varies from large 2-3 storeys retail/commercial developments along Edgeworth David Avenue to 12 storey residential developments along Pacific Highway. The subject site presents as a transition site with a height of up to 23.5m given that the surrounding height for the residential dwellings is 8.5m towards the west and south and the maximum permissible height around the train station is 77.5m.

The controls envision a transition in height to the traditional surrounding residential dwellings. Therefore, a more sensitive and distinctive response is required, and this is what the proposal has attempted to do. The proposed height is 41.21m, which is higher than what is permissible on the subject site. However, the aim of this deliberate departure from the controls is to provide a more gradual transition between the two prevalent heights in the surrounding and to emphasise the corner as a built form marker at the entrance to the Town Centre.

The allowable FSR for the subject site is 5:1, which results in a GFA of approximately 5884.25sqm. The proposal has an approximate GFA of 5881.65sqm, which is equivalent to the allowance permitted by the controls. The real challenge presented by the current height control is how to utilise the GFA while providing a height that is contextually fitting as there is a discrepancy between the FSR and height controls. To meet and utilise the FSR provided by the built form would have to cover the entire site up to 7 storeys which leads to a stunted and bulky built form. To achieve a slender built form, additional height is required, thereby increasing the height beyond the height of building provision. The deliberate increase in height concentrated mainly at the corner will result in a better contextual response and built form outcome for the subject site.”

The proposed contemporary design results in a slender design for the site compared to the existing approval by achieving a slender built form which complies with the maximum Floor Space Ratio for the site.

The design concentrates additional height towards the corner of the site and complies with the HDCP objective of forming “a pair with another building to enhance the perception of entry”. The placement of height at the corner of Edgeworth David Avenue and Pacific Highway is a deliberate attempt to accentuate the corner and the proposed roof feature further enhances the proportions of the tower element without the addition of any additional lettable area.

(c) maintain reasonable neighbourhood amenity and appropriate residential character by

(i) providing building setbacks to reduce bulk and overshadowing,

(ii) using building form and siting that relates to the site’s land form, and

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development.

The prescriptive controls do not specify any setback controls, and the proposed building has been designed to extend to the boundaries, albeit with a setback to the southern boundary to accommodate the specific requirements of Sydney Trains.

The building height transitions down towards the east to provide an appropriate relationship with the future development along Edgeworth David Avenue contemplated by the planning controls that apply to that land.

The Hornsby Design Excellence Panel advised as follows with regard to building setbacks:

“It is stated in the Urban Design Report that the proposal complies with the allowable density and land use of the LEP, the general objectives of the DCP controls as well as the vision and strategies of the draft LSPS (Hornsby Local Strategic Planning Study). This supports the case for zero or minimal setbacks to the podium from Ground to Level 2, reinforcement of the vertical corner element above with further setback to the upper floors behind, and a more generous setback at the rear for the communal garden on top of the podium and communal areas on floors above.

While the podium expression in the north-eastern and south-western views does not continue around the corner to the Pacific Highway, the proposed setbacks and their correlation with built form distribution contribute adequately to meeting the intentions of the Hornsby DCP objectives.”

With regard to building form, the Design Excellence Panel advised the following:

“The analysis of an appropriate urban form for the site was appreciated, and the proposed material and finishes palette was considered acceptable in relation to the built form and façade modulation. While the Applicant’s case for reinforcement of the ‘landmark’ corner was understood, discussion on the merits of protection to the public domain around the footpath indicated there was scope for some improvement that is noted under Public Domain below.

With regard to the floor plan configuration, it was assessed that there was also potential for further improvements:

· The main foyer entry off Edgeworth David Ave is a direct corridor to the lifts, and scope for some softening of this space with inclusion of casual seating or ‘bump’ space for residents and visitors could improve its quality, and the same applies to Level 1 foyer.

· On Level 2 it was noted that there was provision for a walking path that connected through the communal and dining space to the dementia garden, and some more thought should be given to how this would operate, giving more clarity and purpose to how residents would access and use this route and what would improve their roaming experience.

· Above Level 2 it was noted that only resident rooms had the benefit of solar access, so it was recommended some consideration be given to the swap of one of the rooms with a communal and/or visitor terrace - similar to that proposed on L10.

· Another such modification could be extension of the foyer corridor and balcony in the vertical slot between Grids F and G, and small reduction of the adjacent room balcony to create a small breakout visiting space with access to sun and fresh air.

· On Level 11 the Applicant indicated that the apartment and adjacent office were intended for management use only, and this was considered to be an unfortunate loss of potential for the residents, staff and their families to have access to a larger communal roof terrace for regular group activities and with benefits of solar access and landscape treatment.

Provision of these recommended improvements would further add to the qualities of the vertical village environment and enhance the operating potential for the aged care facility.

On 16 June 2021, the applicant provided amended plans and a supporting letter in response to the Design Excellence Panel’s recommendations. It is considered that the Applicant has adequately responded to the Panels recommended design improvements and the proposal is acceptable in respect to the requirements of the SEPP HSPD for neighbourhood and streetscape.

2.5.7 Clause 34 - Visual and Acoustic Privacy

Clause 34 states that development should consider the visual and acoustic privacy of neighbours in the vicinity and the proposed residents by appropriate design of windows, balconies and landscaping, as well as ensuring acceptable noise levels.

Due to the unique location of the proposed development, the proposal does not have any immediate residential properties that would be impacted by the proposed development as the site is abuts a road, a carriageway and a railway corridor as well as the adjacent shopping centre providing separation distances of approximately 20 metres to the north, 50 metres to the south, and 65 metres to the west. The openings along the eastern elevation adjoining the two-storey commercial building at No.10 Edgeworth David Avenue have been limited and treated with appropriate privacy measures where required.

2.5.8 Clause 35 - Solar Access and Design for Climate

Clause 35 requires seniors living developments to provide adequate daylight to the main living areas of neighbouring properties and adequate sunlight to areas of private open space.

The site is currently vacant, and the shadows cast by the proposed development will extend to some of the surrounding properties to the south-east, south and southwest. Irrespective, the impacts on any individual properties are generally limited to relatively short periods of the day, and in most instances, for approximately 2 hours (or less) between 9am and 3pm in mid-winter. Accordingly, the majority of the surrounding properties will continue to receive sunlight in mid-winter for more than 3 hours. Further, the residential accommodation is generally orientated towards the north and north-west, ensuring at least 3 hours of sunlight between 9am and 3pm in mid-winter.

2.5.9 Clause 36 - Stormwater

Clause 36 requires development to minimise the disturbance and impacts of stormwater runoff on adjoining properties and include, wherever practical on-site stormwater detention or stormwater re-use.

The development would be connected to an on-site detention system which would drain via gravity to the street drainage system in Edgeworth David Avenue. Council’s engineering assessment raised no objections to the stormwater system.

2.5.10 Clause 37 - Crime Prevention

The proposed development promotes casual surveillance of the public domain by providing active retail uses at the ground floor level, and multiple window openings orientated towards the public domain. Further, the proposed building provides a defined point of entry, and access to the basement will be controlled and monitored. The application is assessed as generally satisfactory in this regard.

2.5.11 Clause 38 - Accessibility

The accessibility report submitted with the proposal indicates that the development is capable of compliance with internal and outdoor accessibility provisions within relevant Australian Standards, the Building Code of Australia, and the Disability Discrimination Act 1992. Further, the vehicular access and pedestrian links are considered safe and functional.

2.5.12 Clause 39 - Waste Management

The application proposes two separate waste garbage storage rooms within the ground level basement for the RACF and for the commercial facilities. In addition, each level of the RACF includes a ‘dirty room’ with provision for a waste bin for general rubbish during the day which would be transported via lift to the basement.

Waste would be collected via a private contractor given the proposal is a commercial facility and Council does not service RACF facilities.

The waste truck would enter the site from Edgeworth David Avenue and park within the basement while the waste is loaded. Truck turning areas were provided during the assessment of the application that indicated waste vehicles would be able to enter and leave the site in a forward direction. Provision has also been provided to enable a private waste vehicle to enter the rear of No.10 Edgeworth David Avenue which would be in a similar arrangement to existing.

2.5.13 Clause 40 - Development Standards

The site has an area of 1,176.85m² and complies with the standard in respect to the site area being greater than the minimum 1,000m².

The site frontage is approximately 36.57m to Edgeworth David Avenue which complies with the minimum frontage of 20m at the building line.

2.5.14 Clause 48 - Standards That Cannot be Used to Refuse Development Consent for Residential Care Facilities

Clause 48 of SEPP HSPD includes non-discretionary development standards and states “a consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a residential care facility on any of the following grounds”. A discussion is provided below in this regard.

(a) building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys)

The proposed building has a maximum height of approximately 41.68 metres measured to the top of the feature screen, and 39.58 metres to the upper-level roof. Clause 48 does not impose any limitations on the grounds on which a consent authority may grant development consent. That is, there is no maximum building height for a ‘residential aged care facility’ pursuant to the SEPP. This element is has been discussed in Section 2.1.4 of the report above.

(b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 1:1 or less

The proposed development has an FSR of 5:1. Clause 48 does not impose any limitations on the grounds on which a consent authority may grant development consent. That is, there is no maximum FSR control for a ‘residential aged care facility’ pursuant to the SEPP.

Landscaped area: if a minimum of 25 square metres of landscaped area per residential care facility bed is provided

The proposed development provides a total landscaped area (above structures) of approximately 913.52m² (excluding the roof level) representing approximately 11.01m² per residential care facility bed which is considered acceptable given the location of the proposal within the Hornsby Town Centre.

Clause 48 does not impose any limitations on the grounds on which a consent authority may grant development consent. That is, there is no minimum landscaped area control for a ‘residential aged care facility’ pursuant to the SEPP.

(d) parking for residents and visitors: if at least the following is provided:

i 1 parking space for each 10 beds in the residential care facility (or 1 parking space for each 15 beds if the facility provides care only for persons with dementia), and

ii 1 parking space for each 2 persons to be employed in connection with the development and on duty at any one time, and

iii 1 parking space suitable for an ambulance”.

In addition to the above parking requirements, the HDCP has a parking requirement of 1 space per 29m² of Gross Leasable Floor Area (GLFA) for shops, 1 space per 48 m²GFA for Office and business premises and 1.2 spaces per 3-bedroom apartment where the development is <800 metres from a railway station.

The proposed development provides off-street car parking for 59 vehicles within a 3 level basement structure, including a dedicated ambulance space.

In accordance with SEPP HSPD and HDCP, the retail component (0.75×305.9m²GLFA) requires 8 car spaces, the commercial component (591.2m² GFA) requires 12 car spaces, and the residential component requires 1 car space. In total, the development is required to provide 47 car spaces.

The proposal is compliant with regard to the number of car parking spaces to be provided.

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

The site is located within the catchment of the Hawkesbury Nepean River. Part 2 of this Plan contains general planning considerations and strategies requiring Council to consider the impacts of development on water quality, aquaculture, recreation and tourism.

Subject to the implementation of sediment and erosion control measures and stormwater management to protect water quality, the modified proposal would comply with the requirements 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

The proposed development has been assessed having regard to the relevant desired outcomes and prescriptive requirements within the Hornsby Development Control Plan 2013 (HDCP). Council notes that the proposal has been assessed predominantly against the requirements of SEPP HSPD which prevails over inconsistences with the HDCP and accordingly the merits of the proposal are discussed in the report above.

2.9 Section 7.11 Contributions Plans

Hornsby Shire Council Section 7.11 Contributions Plan 2020-2030 applies to the development as it would result in an additional retail, commercial and residential development.

Accordingly, the requirement for a monetary Section 7.11 contribution is recommended as a condition of consent.

3. ENVIRONMENTAL IMPACTS

3.1 Built Environment

3.1.1 Built Form

As discussed in the report above, the proposed building is located within a precinct identified for future high density mixed use developments of varying heights with a network of open spaces, continuous podiums and underground car parking.

As discussed in this report, the resultant built-form would be consistent with the desired future character of the precinct. The proposal is assessed as satisfactory with regard to its impact on the built environment of the locality

3.1.2 Traffic Impacts

The application was supported by a Traffic report and SIDRA modelling.

The TfNSW Development Guidelines do not specify a generation rate for the RACF use and the sites surveyed for RMS Technical Direction TDT 2013-4 (Seniors Housing) are not relevant because they were predominately for Independent Living Units.

TPIA states that TTPA have undertaken surveys at a number of existing RACF sites in assisting with development schemes and the results of recent surveys at the Anglicare Kingswood RACF which has 102 beds indicates the following traffic generation during the morning and afternoon peak periods.

AM: 0.17 vtph per bed

PM: 0.22 vtph per bed

Using the traffic generation rate above, the proposed 85 beds will generate 14 vehicles and 19 vehicles in AM and PM peak hours respectively.

TfNSW Guide to Traffic Generating Development (GTGD) gives traffic generation rate for Commercial office use: evening peak hour vehicle trips = 2 per 100 m², using this rate, 12 trips will be generated by Commercial Office use in both AM and PM peak hours.

TfNSW GTGD gives traffic generation rate for retail under 10,000m² GLFA: 12.5 vehicle trips per hour per 100m². Using this rate, 38 trips will be generated by Retail use in both AM and PM peak hours.

The three-bedroom units generate less than 1 trip in both AM and PM peak hours.

In total, the proposed development generates 64 trips and 69 trips in the AM and PM peak hours respectively.

The original traffic report argued that because the proposed trips are less than the previous approved proposal, traffic generation would be acceptable. Council’s traffic assessment did not support this rationale given the site’s location within the core area of the Hornsby Town Centre and traffic conditions are changing constantly and requested that the traffic report be amended to include:

· SIDRA model of the intersection of Edgeworth David Avenue with Pacific Highway, before the development and after the development.

· The existing queue length at the east leg of intersection of Edgeworth David Avenue with Pacific Highway, and the impact on property access and egress.

· A discussion regarding conflict between vehicles using the driveway and pedestrians walking across the driveway.

Council’s review of the amended traffic information concluded that the proposal would have an acceptable traffic impact on the road network and raised no objections on traffic and safety grounds.

3.2 Social Impacts

The development would make a positive social contribution to the local community by providing housing for older persons and persons with disabilities.

3.3 Economic Impacts

The proposal would have a minor positive impact on the local economy in conjunction with other residential type 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”.

The subject site has not been identified as bushfire prone or flood prone land. The site is considered to be capable of accommodating the proposed development. The scale of the proposed development is consistent with the capability of the site and is considered acceptable.

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 17 June 2020 and 9 July 2020 in accordance with the Hornsby Community Engagement Plan. During this period, Council received 6 submissions. 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

4 SUBMISSIONS RECEIVED OUT OF MAP RANGE

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

· Unacceptable impact to right of way to No.10 Edgeworth David Road.

· Questions regarding construction impacts.

· Unacceptable parking impacts.

· Lack of information on website.

· Egress issues to site.

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 Right of Way

During the assessment of the application, Council required amended plans to indicate that vehicle access would be maintained to the rear of No.10 Edgeworth David Avenue and that agreement must be provided from the owners’ corporation of No.10 Edgeworth David Avenue that they are acceptable to the amended right of way.

Minutes from a Strata Committee meeting for SP 30399 held on 2 March 2022 were provided indicating support for a deed of agreement for a revised right of way.

The amended plans indicate vehicular access including waste truck access would be provided to No.10 Edgeworth David Avenue via the rear of the ground floor basement level of the subject development.

5.1.2 Questions regarding construction impacts

A submission raised numerous questions regarding the construction process, however no specific objections were raised. No further assessment is required in this regard.

5.1.3 Lack of information on website

The submitter’s email claims that no information was available on Council’s website. It is noted that Council was in the progress of uploading DA documents for public advertising at the time the submitter wrote to Council. Accordingly all documents are available on Council’s website and were available during the notification period.

5.1.4 Parking

The proposed development complies with the parking requirements of SEPP (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD).

5.1.5 Egress to site

Vehicles will have a combined access and egress driveway to the proposed development from Edgeworth David Avenue. The access to the development will be limited to left in and left due to the existing median on Edgeworth David Avenue.

Council’s traffic and road safety assessment raised no objections to the location of the driveway as it is located in the most practical and safe location for the subject site.

5.2 Public Agencies

The development application was referred to the following Agencies for comment:

5.2.1 Transport for NSW

As detailed in Section 2.4 of the report, the application was referred to Transport for NSW (TfNSW) for concurrence under Clauses 102, 104 and Schedule 3 of the ISEPP. No objections were raised to the proposed development, subject to the imposition of the conditions of concurrence.

5.2.2 Sydney Trains

As detailed in Section 2.4 of the report, the application was referred to Sydney Trains) for concurrence under Clauses 85, 86 and 87 of the ISEPP. No objections were raised to the proposed development, subject to the imposition of the conditions of concurrence.

6. THE PUBLIC INTEREST

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

CONCLUSION

The application proposes construction of a 10-12 storey mixed use development comprising retail tenancies at the ground floor level, commercial tenancies at the first-floor level, a residential aged care facility at Levels 3-11, a residential apartment at Level 12 and strata subdivision.

Council received 6 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 SEPP (Housing for Seniors or People with a Disability) 2004 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, amenity or privacy.

RESPONSIBLE OFFICER

The officer responsible for the preparation of this report is Matthew Miles.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

10. Dilapidation Report

1.⇩	Locality Map
2.⇩	Clause 4.6 Variation
3.⇩	Architectural Plans
4.⇩	Landscape Plans

File Reference: DA/416/2020

Document Number: D08368581

SCHEDULE 1

1. Deferred Commencement

a) Pursuant to Section 4.16(3) of the Environmental Planning and Assessment Act 1979, this consent does not operate until a signed deed of agreement between the subject property owner and adjoining property at Strata Scheme No. 30399, situated at No. 10-12 Edgeworth David Avenue, Hornsby for the closure of access area during construction and restriction of access has been created.

b) Such information must be submitted within 36 months of the date of this notice.

Upon Council’s written satisfaction of the above information, the following conditions of development consent apply:

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.

2. Approved Plans and Supporting Documentation

Approved Plans

*Plan No.*	*Plan Title*	*Drawn by*	*Dated*	*Council Reference*
DA-01R, R	Site location plan	Coble Stephens Architects	07.02.2022
DA-38R, Q	Detail Section	Coble Stephens Architects	21.07.2021
DA-44R, R	Detail Section	Coble Stephens Architects	07.02.2022
DA-41R, R	Site plan - 11KV Blowout	Coble Stephens Architects	07.02.2022
DA-32R, Q	Railway corridor elevations	Coble Stephens Architects	21.07.2021
DA-37R, R	Site plan - ground floor	Coble Stephens Architects	07.02.2022
DA-39R, R	Garbage enclosure	Coble Stephens Architects	07.02.2022
DA-34R, Q	Detail plans - loading dock	Coble Stephens Architects	21.07.2021
DA-40R, R	Site plan - 33KV Blowout	Coble Stephens Architects	07.02.2022
DA-19R, R	North elevation	Coble Stephens Architects	07.02.2022
DA-20R, R	South elevation	Coble Stephens Architects	07.02.2022
DA-22R, R	West elevation	Coble Stephens Architects	07.02.2022
DA-26R, R	Section D-D	Coble Stephens Architects	07.02.2022
DA-25R, R	Section C-C	Coble Stephens Architects	07.02.2022
DA-21R, R	East elevation	Coble Stephens Architects	07.02.2022
DA-24R, R	Section B-B	Coble Stephens Architects	07.02.2022
DA-23R, R	Section A-A	Coble Stephens Architects	07.02.2022
DA-14R, R	Level 11 floor plan	Coble Stephens Architects	07.02.2022
DA-15R, R	Roof plan	Coble Stephens Architects	07.02.2022
DA-16R, R	Basement 1	Coble Stephens Architects	07.02.2022
DA-18R, R	Basement 03	Coble Stephens Architects	07.02.2022
DA-17R, R	Basement 02	Coble Stephens Architects	07.02.2022
DA-08R, R	Fifth floor plan	Coble Stephens Architects	07.02.2022
DA-09R, R	Level 6 floor plan	Coble Stephens Architects	07.02.2022
DA-10R, R	Level 7 floor plan	Coble Stephens Architects	07.02.2022
DA-11R, R	Level 8 floor plan	Coble Stephens Architects	07.02.2022
DA-12R, R	Level 9 floor plan	Coble Stephens Architects	07.02.2022
DA-13R, R	Level 10 floor plan	Coble Stephens Architects	07.02.2022
DA-05R, R	Level 2 floor plan	Coble Stephens Architects	07.02.2022
DA-07R, R	Level 4 floor plan	Coble Stephens Architects	07.02.2022
DA-06R, R	Level 3 floor plan	Coble Stephens Architects	07.02.2022
DA-03R, R	Ground floor plan	Coble Stephens Architects	07.02.2022
DA-04R, R	Level 1 floor plan	Coble Stephens Architects	07.02.2022
DA-02R, R	Site plan	Coble Stephens Architects	07.02.2022
L-01, Rev D	Landscape plan Ground floor	Space Landscape Designs	22/3/2022
L-02, Rev D	Landscape plan Level 1	Space Landscape Designs	22/3/2022
L-03, Rev E	Landscape plan Level 2	Space Landscape Designs	22/3/2022
L-04, Rev D	Landscape plan Level 3-9	Space Landscape Designs	22/3/2022
L-05, Rev D	Landscape plan Level 10	Space Landscape Designs	22/3/2022
L-06, Rev E	Landscape plan Level 11	Space Landscape Designs	22/3/2022

Supporting Documentation

*Document Title*	*Prepared by*	*Dated*	*Council Reference*
Sydney Trains Concurrence Conditions	Sydney Trains	27/06/2022	D08441310
TfNSW Concurrence Conditions	TfNSW	5/05/2022	D08402145
TfNSW Concurrence Conditions for CTMP	TfNSW	27/04/2022	D08396831
Disability Access Report	Cheung Access	6/04/2022	D08398418
Acoustic Report	Acoustic works	28/04/2022	D08398632
Geotech report	Douglas Partners	April 2022	D08395490
Rail impact Assessment	Douglas Partners	April 2022	D08395495
Stormwater plans, basement 2 and 3, SW001, Rev 8	Majcon	23/03/2022	D08377775
Stormwater plans, basement 1 and ground floor, SW002, Rev 8	Majcon	23/03/2022	D08377775
Stormwater plans, level 1, SW003, Rev 8	Majcon	23/03/2022	D08377775
Sediment erosion plans, ER001, ER002, ER003, Rev 07	Majcon	23/03/2022	D08377774
Sediment erosion plan ER004, Rev 02	Majcon	23/03/2022	D08377774
Survey plan, 122-02, Rev 03	Craig and Rhodes	11/03/2022	D08369631
Construction Traffic Management Plan, Rev I	Transport and traffic planning	March 2022	D08365757
Detailed Site Investigation, Ref 99895.01	Douglas Partners	17/12/21	D08367320
BCA Report, Rev 2	Custom Development Certifications	29/05/2022	D08418718
BCA Letter	Holmes Fire	19/05/2022	D08418718
Traffic and parking impact assessment, Issue J	Transport and traffic planning	May 2022	D08416252
Survey, Sheet 1 to 2, Rev 03	Craig and Rhodes	11/03/2022	D08369631
Site retention design report	Majcon Consulting	20/05/2022	D08443588
Civil and structural design plans, SR0 rev E, SR1 rev B, SR2 rev B, SR 3 rev B, SR 4, rev B, SR 5 rev F, SR6 rev C	Majcon Consulting	June 2021	D08443632
Electrical Blowout Design Report	ECL Power Services	30 July 2021	D08390336
Electrical Blowout Plan	ECL Power Services	30 July 2021	D08390335
Plans prepared and certified by Craig & Rhodes sheets 1, 3, 4	Craig & Rhodes	23/03/2022	D08443594
Plans prepared and certified by Craig & Rhodes sheets 5, 6, 7, 8	Craig & Rhodes	23/03/2022	D08443598

3. Section 7.11 Development Contributions

a) In accordance with Section 4.17(1) of the Environmental Planning and Assessment Act 1979 and the Hornsby Shire Council Section 7.11 Development Contributions Plan 2020-2030, the following monetary contributions must be paid to Council to cater for the increased demand for community infrastructure resulting from the development:

Description	Contribution (4)
Roads	$135,355.75
Open Space and Recreation	$11,537.35
Community Facilities	$7,105.95
Plan Preparation and Administration	$769.95
TOTAL	$154,769.00

being for 1 x 3+ bedroom unit, 306m² of retail floor space and 520m² of business floor space.

b) The value of this contribution is current as at 12 July 2022. If the contribution is not paid within the financial quarter that this condition was generated, the contribution payable will be adjusted in accordance with the provisions of the Hornsby Shire Council Section 7.11 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 applicable in this Development Consent Condition.

c) The monetary contribution must 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.

Note: Council’s 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.

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) A separate Works Certificate must be obtained from Council for all works within the public road reserve under S138 of the Roads Act 1993.

c) The Construction Certificates plans must be consistent with the Development Consent plans.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

5. Building Code of Australia

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.

6. Contract of Insurance (Residential Building Work)

7. 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.

8. Utility Services

The applicant must submit written evidence of the following service provider requirements:

a) Ausgrid (formerly Energy Australia) - a letter of consent demonstrating that satisfactory arrangements have been made to service the proposed development.

b) Telstra/NBN - a letter of consent demonstrating that satisfactory arrangements have been made to service the proposed development.

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.

a) Prior to the commencement of any works on site, the applicant must submit for approval by the Principal Certifying Authority (with a copy forwarded to Council) a ‘Dilapidation Report’ detailing the structural condition of the adjoining properties:

i) 10 Edgeworth David Avenue (SP 30399)

b) The report must include a photographic survey of the adjoining properties detailing their physical condition, both internally and externally, including such items as walls, ceilings, roof, structural members and other similar items. The report must be completed by a chartered structural/geotechnical engineer. A copy of the dilapidation report must be submitted to Council.

c) In the event access to adjoining allotments for the completion of a dilapidation survey is denied, the applicant must demonstrate in writing that all reasonable steps have been taken to advise the adjoining allotment owners of the benefit of this survey and details of failure to gain consent for access to the satisfaction of the Principle Certifying Authority.

Note: This documentation is for record keeping purposes only and can be made available to an applicant or affected property owner should it be requested to resolve any dispute over damage to adjoining properties arising from works. It is in the applicant’s and adjoining owner’s interest for it to be as detailed as possible

11. Fire Safety Schedule

12. 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".

13. Stormwater

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 directly to Council’s drainage system/ street gutter.

b) Discharge to Council gutter must be limited to 50 litres per second at any point. For more than 1 discharge point, separation is to be minimum 1m.

c) Be designed by a Chartered Professional Civil/ Hydraulic Engineer of the Institution of Engineers, Australia.

14. On Site Stormwater Detention

An on-site stormwater detention system must be designed by a chartered civil engineer and constructed in accordance with the following requirements:

a) Storage capacity to accommodate volume from up to 50 years ARI (average recurrence interval) storms and a maximum discharge (when full) limited to 5 years pre development rate.

b) Have a surcharge/inspection grate located directly above the outlet. Discharge from the detention system to be controlled via 1 metre length of pipe, not less than 50 millimetres diameter or via a stainless plate with sharply drilled orifice bolted over the face of the outlet discharging into a larger diameter pipe capable of carrying the design flow to an approved Council system.

c) Where above ground system is proposed and the average depth is greater than 0.3 metres, a ‘pool type’ safety fence and warning signs to be installed.

d) Not be constructed in a location that would impact upon the visual or recreational amenity of residents.

e) Detail calculations are to be shown in construction certificate plan.

f) An overflow/escape path shall be incorporated in the design.

15. Water Quality/Bio Retention System

a) A Water Sensitive Urban Design is to be done and constructed. The stormwater leaving the premises must achieve the quality as specified in Council’s Development Control Plan 2012 (table 1C.1.2(b) Urban Stormwater Quality Targets) or utilise one of the deemed to comply solutions. The design shall be based on Hornsby Council parameters as contained in the MUSIC Model. The design is to be carried out by a Chartered Professional Civil/ Hydraulic Engineer of the institution of Engineers, Australia.

b) Prior to occupation of the premises, a Chartered Civil/Hydraulic Engineer of the Institution of Engineers, Australia is to certify that works have been completed in accordance with the approved construction plan and the design will achieve the targets specified in the condition.

16. Internal Driveway/Vehicular Areas

The driveway and parking areas on site must be designed, constructed and a Construction Certificate issued in accordance with Australian Standards 2890.1, 2890.2, 3727 and the following requirements:

a) Design levels at the front boundary shall be obtained from Council if a private accredited certifier is engaged to obtain a construction certificate for these works.

b) The driveway be a rigid pavement.

c) Conduit for utility services including electricity, water, gas and telephone be provided. All existing overhead assets including electricity and telecommunications cabling shall be relocated underground at no cost to Council. A certificate from an appropriately licensed contractor shall be submitted to the principal certifying authority certifying that the service conduits have been installed in accordance with the relevant utility provider and Australian Standards.

d) Longitudinal sections along both sides of the access driveway shall be submitted to the principal certifying authority in accordance with the relevant sections of AS 2890.1. The maximum grade shall not exceed 1 in 4 (25%) with the maximum changes of grade of 1 in 8 (12.5%) for summit grades and 1 in 6.7 (15%) for sag grades. Any transition grades shall have a minimum length of 2 metres. The longitudinal sections shall incorporate the design levels obtained by Council.

17. Road Works

All road works approved under this consent must be designed in accordance with Council’s AUS-SPEC Specifications (www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions) and the following requirements:

a) Replace the existing Kerb and gutter and footpath in front of the development site along Edgeworth David Road.

b) Kerb and gutter along Pacific Highway frontage shall be replaced in accordance with RMS’s requirements.

c) Existing footpath along Pacific Highway shall be replaced.

d) No work is to commence within the road reserve until approval under Section 138 of the Roads Act 1993 is obtained from Hornsby Shire Council. In this regard a construction certificate application is to be submitted to Council.

18. Construction Management Plan (CMP)

To assist in the protection of the public, the environment and Council’s assets, a separate Construction Management Plan must be prepared by a suitably qualified environmental consultant in consultation with Transport for New South Wales, a qualified traffic engineer and AQF 5 arborist and submitted to Council via Council’s Online Services Portal for review and written approval.

The CMP must include the following details:

a) A Construction Traffic Management Plan (CTMP) including the following:

i) The order of construction works and arrangement of all construction machines and vehicles being used during all stages.

ii) The CTMP plans shall be in accordance with all other plans submitted to Council as part of this development proposal.

iii) A statement confirming that no building materials, work sheds, vehicles, machines or the like shall be allowed to remain in the road reserve area without the written consent of Hornsby Shire Council.

iv) The Plan shall be in compliance with the requirements of the Roads and Maritime Services Traffic control at work sites Manual 2018 and detail:

a. Public notification of proposed works.

b. Long term signage requirements.

c. Short term (during actual works) signage.

d. Vehicle Movement Plans, where applicable.

e. Traffic Management Plans.

f. Pedestrian and Cyclist access and safety.

v) Traffic controls including those used during non-working hours. Pedestrian access and two-way traffic in the public road must be able to be facilitated at all times.

vi) Details of parking arrangements for all employees and contractors, including layover areas for large trucks during all stages of works. The parking or stopping of truck and dog vehicles associated with the development will not be permitted other than on the site and the plan must demonstrate this will be achieved.

vii) Confirmation that a street ‘scrub and dry’ service will be in operation during all stages of works.

viii) Proposed truck routes to and from the site including details of the frequency of truck movements for all stages of the development.

ix) Swept path analysis for ingress and egress of the site for all stages of works.

x) Site plans for all stages of works including the location of site sheds, concrete pump and crane locations, unloading and loading areas, waste and storage areas, existing survey marks, vehicle entry, surrounding pedestrian footpaths and hoarding (fencing) locations.

xi) The total quantity and size of trucks for all importation and exportation of fill on site throughout all stages of works, and a breakdown of total quantities of trucks for each stage of works.

xii) The number of weeks trucks will be accessing and leaving the site with excavated or imported fill material.

xiii) The maximum number of trucks travelling to and from the site on any given day for each stage of works.

xiv) The maximum number of truck movements on any given day during peak commuting periods for all stages of works.

xv) The source site location of any proposed fill to be imported to the site, for all stages of works.

xvi) The Plan must state that the applicant and all employees of contractors on the site must obey any direction or notice from the Prescribed Certifying Authority or Hornsby Shire Council in order to ensure the above.

xvii) If there is a requirement to obtain a Work Zone, Out of Hours permit, partial Road Closure or Crane Permit, the Plan must detail these requirements and include a statement that an application to Hornsby Shire Council will be made to obtain such a permit.

b) A Construction Waste Management Plan detailing the following:

i) Details of the importation or excavation of soil and fill, the classification of the fill, disposal methods and authorised disposal depots that will be used for the fill.

ii) Asbestos management requirement and procedures for removal and disposal from the site in accordance with AS 2601-2001 - ‘The Demolition of Structures’, and the Protection of the Environment Operations (Waste) Regulation 2005.

iii) General construction waste details including construction waste skip bin locations and litter management for workers.

c) A Tree Protection Plan (TPP) prepared by an AQF 5 Arborist in accordance with any approved Arboricultural Impact Assessment and tree location plans, detailing the following:

i) A site plan showing tree protection zones (TPZ) and structural root zones (SRZ) of trees to be retained and specific details of tree protection measures inclusive of distances (in metres) measured from tree trunks.

ii) Construction methodology to avoid damage to trees proposed to be retained during construction works.

iii) Specifications on tree protection materials used and methods within the TPZ or SRZ.

iv) Location of dedicated material storage space on site outside of TPZ’s and SRZ’s for retained trees.

d) A Construction Noise and Vibration Management Plan (CNMP) which includes:

i) Existing noise and vibration levels within the proximity of the proposed development site.

ii) Details of the extent of rock breaking or rock sawing works forming part of the proposed development works.

iii) The maximum level of noise and vibration predicted to be emitted during each stage of construction.

iv) The duration of each stage of works where the maximum level of noise and vibration are predicted to be emitted for.

v) Details of mitigation measures, inclusive of respite periods, that will meet acoustic standards and guidelines at each stage of works.

vi) Details of a complaints handling process for the surrounding neighbourhood for each stage of works.

e) Identification of approved sediment and erosion control measures.

f) The CMP must detail the contact information for developers, builder, private certifier and any emergency details during and outside work hours.

Note: The CMP must be lodged via Council’s Online Services Portal at: https://hornsbyprd-pwy-epw.cloud.infor.com/ePathway/Production/Web/Default.aspx and by selecting the following menu options: Applications > New Applications > Under ‘Application Types’: Management Plans.

19. Environmental Management Plan (EMP)

An Environmental Management Plan (EMP) is to be submitted to Council’s Compliance Team via Council’s Online Services Portal for review and written approval, prior to the issue of a Construction Certificate. The EMP is to be prepared by a suitably qualified Environmental Consultant detailing the actions that will be taken to protect the environment for the duration of works, and all responsible parties ensuring compliance with the document. The Plan is to be in accordance with the publication ‘Managing Urban Stormwater - Landcom (March 2004)’, the Protection of the Environment Operations Act 1997 and relevant Council guidelines, and should include but not be limited to:

a) Water quality and soil management, including but not limited to sediment and erosion control measures and stormwater management.

b) Air quality.

c) Noise management, including excavation noise mitigation measures to be implemented.

d) Waste Management.

e) Tree Protection Management inclusive of tree protection measures.

f) Unexpected finds protocol to manage contamination finds.

Note: The EMP must be lodged via Council’s Online Services Portal at: https://hornsbyprd-pwy-epw.cloud.infor.com/ePathway/Production/Web/Default.aspx and by selecting the following menu options: Applications > New Applications > Under ‘Application Types’: Management Plans.

20. Noise - Rail Corridor

a) Prior to the issue of a Construction Certificate, an Acoustic Report prepared by a suitably qualified environmental consultant in accordance with the requirements of the Department of Planning’s Development Near Rail Corridors and Busy Roads - Interim Guideline and RailCorp’s Interim Guidelines for Applicants must be submitted to the Principal Certifying Authority. The Acoustic Report must demonstrate that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

i) In any bedroom in the residential accommodation - 35dB(A) at any time between 10:00pm and 7:00am, and

ii) Anywhere else in the residential accommodation (other than a garage, kitchen bathroom or hallway) - 40dB(A) at any time.

b) The development must be carried out in accordance with the recommendations contained within the Acoustic Report submitted with the Construction Certificate application.

Note: The Department of Planning’s document is available at www.planning.nsw.gov.au (development assessments).

Note: The RailCorp document is available at www.railcorp.nsw.gov.au/publications.

21. Waste Management Details

The following waste management requirements must be complied with:

a) No steps/ bin and waste carting routes

i) There must be no steps along any bin carting route. Ramps and service lifts are acceptable.

Note: bin carting routes include, but are not limited to, from the bin storage rooms to the ground level temporary bin holding bay, from the ground level bin storage/holding bay to the kerbside.

ii) For all bin carting routes, the path must be smooth hard surface. (Concrete pavement for example is acceptable, but pebbles, stepping stones, grass etc is not acceptable).

iii) A design certificate and detailed plans are to accompany any Construction Certificate application, which demonstrate that the bin carting route from the ground level bin temporary bin holding bay to the parked waste collection vehicle has been designed to be constructed in accordance with the Waste Minimisation and Management Guidelines and including the following requirements:

a. Must be smooth hard surface.

b. Must be sufficiently wide to hold all serviceable bins and provide aisle space for manoeuvring bins out and in (including through any gates or doors).

c. Must be devoid of steps.

d. Must have a gradient no steeper than 1:14 for 240L bins and 1:20 for 660L or 1100L bins.

iv) A design certificate and detailed plans are to accompany any Construction Certificate application, which demonstrate that the waste carting route from each dwelling to the bulky waste storage area has been designed to be constructed in accordance with the Waste Minimisation and Management Guidelines and including the following requirements:

a. The route is direct, does not cross into a private lot, and is wholly within property boundaries (does not include the public footpath or road).

b. The route is as short as possible and does not exceed 30m walking distance.

c. The route is an accessible path of travel for persons with a disability in accordance with AS1428 Design and Access for Mobility.

b) Bin storage rooms at ground level

i) A design certificate and detailed plans are to accompany any Construction Certificate application, which demonstrate that all waste storage room(s) at ground level have been designed to be constructed in accordance with the Waste Minimisation and Management Guidelines and including the following requirements:

a. The floor is to be constructed of concrete at least 75mm thick and adequately graded to drain to a Sydney Water approved drainage fitting.

b. The floor must be finished so that it is non-slip, sealed and impervious, and has a smooth and even surface coved at all intersections.

c. The ceilings and walls must be finished with smooth faced non-absorbent material capable of being cleaned.

d. The room is to be provided with artificial light controllable within the room and adequate forced ventilation.

e. The room is to be provided with an adequate supply of hot and cold water mixed through a centralised mixing valve with hose cock.

f. The doors are to be robust and lockable, with door openings suitable for manoeuvring the required bins through. The doors must be able to be opened from inside the room without a key.

g. The doors to the bin rooms must be wide enough to fit a 1100L bin through ,double doors should be provided.

ii) If the 240L bins are to be decanted into 1100L bins at ground level, provision needs to be made for a bin lifter.

c) Waste facilities in FACF dirty utility rooms

i) The dirty utility rooms on each level must include space for a garbage and recycling bin.

ii) must be a waste facility (a garbage chute, plus 1 x 240L recycling bin & 1 x 240L future FOGO bin in a cupboard or small room) on each residential level of each lift core of each building. Each waste facility must:

a. Be accessible by persons with a disability after the garbage chute, recycling bin and FOGO bin are installed.

b. Comfortably house the required garbage chute and 240 L recycling bin and 240L FOGO bin.

c. Have door(s) wide enough and positioned so that the 240 L recycling bin and 240L FOGO bin can fit through with ease.

Note: 240L bins are 600mm wide, 750mm deep, 1100mm high. To allow for ease around the bin an additional 75mm is recommended. These dimensions do not include wall thickness, door thickness, ventilation ducting etc, which must be added. The chute system supplier must be consulted for chute space requirements. AS1428.1 requires at least 800mm clear doorway opening for wheelchair access.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

22. 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.

23. 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.

24. 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.

iii) Have an on-site effluent disposal system approved under the Local Government Act 1993.

25. 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.

26. 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

27. Construction Work Hours

All work on site (including demolition and earth works) must only occur between 7am and 5pm Monday to Saturday (unless otherwise approved in writing by Council due to extenuating circumstances). No work is to be undertaken on Sundays or public holidays.

28. 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.

29. Street Sweeping

During works and until exposed ground surfaces across the site have been stabilised, street sweeping must be undertaken following sediment tracking from the site.

The street cleaning service must utilise a ‘scrub and dry’ method and be undertaken for the full extent of any sediment tracking.

30. Compliance with Environmental Management Plan (EMP)

The Council approved Environmental Management Plan must be complied with for the duration of works, unless otherwise approved by Council.

31. Council Property

32. Disturbance of Existing Site

33. Landfill not Permitted

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

34. 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.

35. 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.

36. Compliance with Construction Management Plan

The Council approved Construction Management Plan must be complied with for the duration of works, unless otherwise approved by Council.

37. 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.

38. Unexpected Finds

Should the presence of asbestos or soil contamination, not recognised during the application process be identified during any stage of works, the applicant must immediately notify the PCA and Council.

39. Waste Management Details

Requirements of the approved Waste Management Plan shall be complied with during all site preparation works, demolition and throughout all construction works. When implementing the Waste Management Plan, the developer is to ensure:

a) The disposal of any demolition and construction waste must be undertaken in accordance with the requirements of the Protection of Environment Operations Act 1997

b) All waste on site is to be stored, handled and disposed of in such a manner as to not create air pollution, offensive noise or pollution of land and water as defined by the Protection of Environment Operations Act 1997

c) Generation, storage, treatment and disposal of hazardous waste is conducted in accordance with the relevant waste legislation administered by the EPA and relevant Occupational Health and Safety legislation administered by WorkCover NSW

d) All waste generated (including excavated materials) which cannot be reused or recycled must be transported to a facility which can lawfully accept it

e) All materials and resources that are to be stored on site during construction works are contained on the site. The provisions of the Protection of Environment Operations Act 1997 must be complied with when placing/stock piling loose material, disposal of concrete waste or activities which have potential to pollute drains and water courses

f) The storage of waste and recycling containers must be within the boundaries of the development site at all times. Public footways and roads must not be used for the storage of any waste and must be kept clear of obstructions during all construction works

g) Additionally, written records of the following items must be maintained during the removal of any waste from the site and such information submitted to the Principal Certifying Authority within fourteen days of the date of completion of the works:

i) The identity of the person removing the waste.

ii) The waste carrier vehicle registration.

iii) Date and time of waste collection.

iv) A description of the waste (type of waste and estimated quantity).

v) Details of the site to which the waste is to be taken.

vi) The corresponding weighbridge tip docket/receipt from the site to which the waste is transferred (noting date and time of delivery, description (type and quantity) of waste).

vii) Whether the waste is expected to be reused, recycled or go to landfill.

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.

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

i) Prior to the pouring of the concrete on the ground level, certifying that: the ground level bin storage/holding bay rooms are at the same level as the driveway (no steps).

40. Vehicular Crossing

A separate application under the Local Government Act, 1993 and the Roads Act 1993 must be submitted to Council for the installation of a new vehicular crossing and the removal of the redundant crossing. The vehicular crossing must be constructed in accordance with Council’s Civil Works Design 2005 and the following requirements

a) Design levels at the front boundary must be obtained from Council for the design on the internal driveway.

b) Any redundant crossings must be replaced with integral kerb and gutter.

c) The footway area must be restored by turfing.

d) Approval must be obtained from all relevant utility providers that all necessary conduits be provided and protected under the crossing.

Note: An application for a vehicular crossing can only be made to one of Council’s Authorised Vehicular Crossing Contractors. You are advised to contact Council on 02 9847 6940 to obtain a list of contractors.

41. 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:

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

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

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

42. 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.

43. Streetscape paving

a) Streetscape pavement works are to be provided within the Edgeworth David Avenue and Pacific Highway road verge.

b) Paving works are to include a fully paved verge using Claypave ‘Monarch Tan’ 230 x 110 x 60mm unit paving laid in a 45degree herringbone pattern with header course.

c) Pavers are to be laid on bedding sand over a 100mm thick concrete base slab. A 90 degree Header is to be provide around all the paving areas including to the tree planter pits.

44. Street Tree Plantings

a) Street tree plantings along the frontage to Edgeworth David Avenue shall include:

i) Street tree planting is to consist of three (3) Leptospermum conferta (Brushbox) planted at a minimum pot size of 75 litres.

b) Street tree plantings along the frontage to Pacific highway should include:

i) Street tree planting is to consist of two (2) Corymbia maculata (spotted gum) planted at a minimum pot size of 75 litres.

c) Trees are to be placed in sufficient soil area and have the following specifications:

i) Be 2m x 4m x 0.5m deep per tree creating a minimum volume of structural soils of 4m³ per tree. Imported tree pit soil is to be structural soils such as 40mm aggregate free draining granular material similar to that provided by Benedicts Pty Ltd to create an adequate lateral growing volume below the pavement.

ii) Tree pit areas are to have surface area opening of 2m x 1m with the finished surface mulch in the tree pit to be compacted decomposed granite similar to that supplied by ANL Pty Ltd. 50mm thick.

Note: Applicants are advised to pre-order plant material required in pot sizes 45 litre or larger to ensure Nurseries have stock available at the time of install.

45. Planter Pots

Planter Pots must include automatic irrigation, sufficient soil depth and adequate drainage to ensure sustainable landscape is achieved.

46. Completion of Landscaping

A certificate must be provided by a practicing landscape architect, horticulturalist or person with similar qualifications and experience certifying that all required landscaping works have been satisfactorily completed in accordance with the approved landscape plans.

47. Asbestos Clearance Certificate

Should any asbestos be encountered during demolition or construction works, a licenced asbestos assessor is required to provide a Clearance Certificate to the Certifier prior to the issue of an Occupation Certificate, certifying that the asbestos has been removed and appropriately disposed of, and the site is now suitable for its approved use.

48. Works as Executed Plan

A works-as-executed plan(s) must be prepared by a registered surveyor and submitted to Council for completed diversion of Council pipe, overland flow path, footpath, driveway, on-site detention and water sensitive urban design systems. The plan(s) must be accompanied by a certificate from a registered surveyor certifying that all pipelines and associated structures lie wholly within any relevant easements.

49. Creation of Easements

The following matter(s) must be nominated on the plan of subdivision under s88B of the Conveyancing Act 1919:

a) The creation of an appropriate "Positive Covenant" and "Restriction as to User" over the constructed on-site detention and water sensitive urban design systems/ rain water tanks and outlet works, within the lots in favour of Council in accordance with Council’s prescribed wording. The positions of the on-site detention system and water sensitive urban design systems/ rainwater are to be clearly indicated on the title.

b) To register the positive covenant and the restriction on the use of land, “works-as-executed” details of the on-site-detention and water sensitive urban design systems must be submitted verifying that the required storage and discharge pipes of the on- site detention system and the water sensitive urban system/ rain water tank have been constructed in accordance with the design requirements. The details must show the invert levels of pipes, pipe sizes and grades and filters/bio retention basin. Any variations to the approved plans must be shown in red on the “works-as-executed” plan and supported by calculations

50. Preservation of Survey Infrastructure

Prior to the issue of a construction certificate, a registered surveyor shall 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.

51. Completion of Works and Compliance Certificate

All engineering works identified in this consent are to be completed and a Compliance Certificate issued prior to the release of occupation permit.

52. 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.

53. Submission of Excavated Material Tipping Dockets to Principal Certifying Authority

Tipping dockets for the total volume of excavated material that are received from the licensed waste facility must be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

54. Traffic Signage

A ‘left turn into the kerb side lane only’ sign is to be installed within the boundary of the property facing exit side of the driveway.

55. Provision for National Broadband Network (NBN)

Provision must be made for fibre ready passive infrastructure (pits and pipes) generally in accordance with NBN Co's pit and pipe installation guidelines to service the proposed development. A certificate from NBN Co or Telstra must be submitted to the PCA that the fibre optic cabling provided for the development complies with MDU Building Design Guides for Development.

56. External Lighting

a) To protect the amenity of adjacent premises, all external lighting must be designed and installed in accordance with Australian Standard AS4282 Control of the obtrusive effects of outdoor lighting.

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

57. Retaining Walls

All retaining walls must be constructed as part of the development and prior to the issue of an Occupation Certificate.

58. Waste Management Details

The following waste management requirements must be complied with:

a) Prior to an Occupation Certificate being issued or the use commencing, whichever is earlier, the Principal Certifying Authority must obtain Council’s approval of the waste and recycling management facilities provided in the development and ensure arrangements are in place for domestic waste collection by Council.

Note: Waste and recycling management facilities includes everything required for on-going waste management on the site. For example the bin storage areas, bulky waste storage area, bin collection area, waste collection vehicle access, doors wide enough to fit the bin through, accessibility, bin carting routes etc.

b) Prior to an Occupation Certificate being issued or the use commencing, whichever is earlier, all external works including but not limited to the vehicular crossover and footpath, must be completed. For staged occupation (where the Occupation Certificate will be limited to a portion of the development):

i) Prior to the issue of the occupation certificate or the use commencing, whichever is earlier, for each stage of the development the waste management system (including but not limited to the bin storage room, bin holding bay, the road/accessway and vehicular crossover, loading bay and truck turning area) for that stage, must be completed.

c) A report must be prepared by an appropriately qualified person, certifying the following:

i) A comparison of the estimated quantities of each demolition and construction waste type against the actual quantities of each waste type.

Note: Explanations of any deviations to the approved Waste Management Plan is required to be included in this report

ii) That at least 60% of the waste generated during the demolition and construction phase of the development was reused or recycled.

Note: If the 60% diversion from landfill cannot be achieved in the Construction Stage, the Report is to include the reasons why this occurred and certify that appropriate work practices were employed to implement the approved Waste Management Plan. The Report must be based on documentary evidence such as tipping dockets/receipts from recycling depots, transfer stations and landfills, audits of procedures etc. which are to be attached to the report.

iii) All demolition and construction waste was taken to site(s) that were lawfully permitted to accept that waste.

d) The bin carting routes must be devoid of any steps and must be wholly within the site.

Note: Ramps between different levels are acceptable. The use of the public footpath is not acceptable.

e) All lockable doors and gates, both pedestrian and vehicular, that are required to be opened by Council’s waste collection contractor in the provision of waste collection services, must be able to be opened using a pin code. That is, locks requiring keys, remote controls, key fobs etc are not acceptable.

f) The bin storage rooms at the ground level must comfortably house all of the bins required to be stored there.

g) The temporary bin holding bay at the ground level must include sealed and impervious surfaces, robust door(s), adequate lighting and ventilation, and must be lockable. The walls must be finished with smooth faced non-absorbent material capable of being cleaned. The temporary bin holding bay must include water or a hose for cleaning, and graded floors draining to sewer.

59. Garbage Collection Easement

For the purpose of waste collection, an easement entitling Council, its servants and agents and persons authorised by it to enter upon the subject land and to operate thereon, vehicles and other equipment for the purposes of waste collection must be granted to Council by the owner of the land. The waste collection easement must be registered with the NSW Land Registry Services prior to issue of the occupation certificate.

Note: The easement must be in a form prescribed by Council and must include covenants to the effect that parties will not be liable for any damage caused to the subject land or any part thereof or to any property located therein or thereon by reason of the operation thereon of any vehicle or other equipment used in connection with the collection of garbage and to the effect that the owner for the time being of the subject land shall indemnify the Council, its servants, agents and persons authorised by it to collect garbage against liability in respect of any such claims made by any person whomsoever.

60. Restriction on Occupation - Housing for Seniors or People with a Disability

A restriction as to user must be created under s88E of the Conveyancing Act 1919 and registered, requiring all residential dwellings approved under this consent to be solely used for the accommodation of:

a) Seniors (55+ age) or people who have a disability.

b) People who live within the same household as seniors or people with a disability.

c) Staff employed to assist the administration and provision of services to housing provided under State Environmental Planning Policy (Housing) 2021.

Note: The restriction must nominate Council as the authority to release, vary or modify the restriction.

OPERATIONAL CONDITIONS

61. Hours of Operation

a) The hours of operation of the commercial tenancies are restricted to those times listed below unless otherwise approved in writing by Council:

Monday to Saturday 7 am to 6 pm

Sunday & Public Holidays 8am to 6pm

b) All deliveries must take place within the approved hours of operation.

62. Fire Safety Statement - Annual

63. Landscape establishment

The landscape works must be maintained into the future to ensure the establishment and successful growth of plant material to meet the intent of the landscape design. This must include but not be limited to watering, weeding, replacement of failed plant material and promoting the growth of plants through standard industry practices.

64. Noise - Operational

a) 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).

b) An acoustic assessment is to be undertaken by a suitably qualified environmental consultant within 60 days of occupying the site in accordance with the Environment Protection Authority’s Noise Policy for Industry (2017), Council’s Policy and Guidelines for Noise and Vibration Generating Development (Acoustic Guidelines V.5, 2000) and the DECC’s Noise Guide for Local Government (2004). The assessment must be held on site for review by Council if necessary. Should the assessment find that noise from the premises exceeds 5dB(A) above background noise levels, appropriate measures must be employed to rectify excessive noise.

65. Waste Management

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

a) The approved Waste Management Plan is to be implemented throughout the ongoing use of the development.

b) There must be a sufficient number of bins on site to contain the volume of waste and recycling expected to be generated between collection services. There must be a sufficient number of rotational bins on site for there to be a garbage bin under each chute and a recycling bin in each bin cupboard on each residential level on collection days.

c) A site caretaker must be employed and be responsible for:

i) moving bins where and when necessary, washing bins and maintaining waste storage areas and signage, ensuring the chute systems and related devices are regularly checked and maintained in effective and efficient working order. Maintaining and checking all waste management equipment (e.g. bin cart/tug), managing the bulky item storage area, arranging the prompt removal of dumped rubbish, arranging for shopping trolleys to be promptly returned to the local shopping centre(s), ensuring recycling bins are free of contamination (which includes but is not limited to garbage, plastic bags, clothing, etc.), addressing overflowing bins and pest infestations, liaising with Council on waste matters and ensuring all residents are informed and kept up to date on the use of the waste management system. The site caretaker must be employed for a sufficient number of hours each week to allow all waste management responsibilities to be carried out to a satisfactory standard.

Note: bins are to be placed in the holding area the day before the collection day, then returned to the basement bin storage rooms promptly after servicing.

d) No waste storage containers are to be located or placed outside of the approved waste storage area at any time except for collection purposes.

e) Adequate signage is to be provided and maintained on how to use the waste management system and what materials are acceptable for recycling within all waste storage areas of the development. Signage is also to be provided and maintained which clearly identifies which bins (and containers) are to be used for general waste and recycling and what materials can be placed in each bin. Signage is also to be provided in locally appropriate culturally and linguistically diverse (CALD) community languages.

Note: Council may be able to assist with signage.

f) Where the development incorporates strata title subdivision, the by-laws are to clearly set out the management responsibilities for the developments waste management system.

g) Where the waste management system includes a chute system, there needs to be a contingency plan to allow for the continual disposal and collection of waste if the chute cannot be operated.

h) All equipment required in the operation of the approved waste management system must be regularly checked and maintained in effective and efficient working order in accordance with the manufacturers instructions by trained service technicians.

66. Car Parking

All car parking must be constructed and operated in accordance with Australian Standard AS/NZS 2890.1:2004 - Off-street car parking and Australian Standard AS 2890.2:2002 - Off-street commercial vehicle facilities.

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

b) Car parking, loading and manoeuvring areas to be used solely for nominated purposes.

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

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

e) Visitors must be able to access the visitor parking spaces at all times. These spaces are not to be used by residents as storage or parking spaces

f) Motorcycle parking spaces are to be designed in accordance with AS/NZS 2890.1:2004 Figure 2.7.

g) Bicycle parking spaces are to be designed in accordance with AS 2890.3-1993 Bicycle parking facilities.

CONDITIONS OF CONCURRENCE - TRANSPORT FOR NSW

The following conditions of consent are from the nominated State Agency pursuant to Section 4.13 of the Environmental Planning and Assessment Act 1979 and must be complied with to the satisfaction of that Agency.

67. TfNSW 1

The awning is to be setback a minimum of 600mm from the face of kerb to protect the structure from vehicle overhang.

68. TfNSW 2

The awning is not to hinder driver sight distances to the traffic signal lanterns.

69. TfNSW 3

The developer is to submit design drawings and documents relating to the excavation of the site and support structures to TfNSW for assessment, in accordance with Technical Direction GTD2020/001.

The developer is to submit all documentation at least six (6) weeks prior to commencement of construction and is to meet the full cost of the assessment by TfNSW. Please send all documentation to development.sydney@transport.nsw.gov.au

If it is necessary to excavate below the level of the base of the footings of the adjoining roadways, the person acting on the consent shall ensure that the owner/s of the roadway is/are given at least seven (7) day notice of the intention to excavate below the base of the footings. The notice is to include complete details of the work.

70. TfNSW 3

The proposed development, noting its use, should be designed, as per the requirements of clause 101 (2)(c) of State Environmental Planning Policy (Infrastructure) 2007 such that it includes measures to ameliorate potential traffic noise or vehicle emissions noise within the site of the development arising from the Pacific Highway. These measures shall be certified by an appropriately qualified noise and air quality expert and noted on the plans prior to issue of a Construction Certificate.

71. TfNSW 4

All demolition and construction vehicles are to access the site via Edgeworth David Avenue. A construction zone will not be permitted on the Pacific Highway.

CONDITIONS OF CONCURRENCE - Sydney Trains

The following conditions of consent are from the nominated State Agency pursuant to Section 4.13 of the Environmental Planning and Assessment Act 1979 and must be complied with to the satisfaction of that Agency.

72. A1

Unless amendments are required in order to obtain approval/certification/compliance from Sydney Trains in relation to any of the Sydney Trains related conditions of consent, all excavation and construction works are to be undertaken in accordance with the details, methodology, advice, undertakings, and recommendations as detailed in the following documents:

a) Geotechnical Investigation Report prepared by Douglas Partners, reference 99895.00, revision 1, dated 19 April 2022.

b) Civil & Structural Design Plans prepared by MAJCON Consulting:

i) Site Retention Works Construction Notes & Drawing Index, reference 20190057-SRO, revision E, dated 10 May 2022;

ii) Site Retention Works Ground Floor Plan Showing Shoring, reference 20190057-SR1, revision B, dated 4 March 2022;

iii) Site Retention Works Basement-1 Floor Plan Showing Shoring, reference 20190057-SR2, revision B, dated 4 March 2022;

iv) Site Retention Works Basement-2 Floor Plan Showing Shoring, reference 20190057-SR3, revision B, dated 4 March 2022;

v) Site Retention Works Basement-3 Floor Plan Showing Shoring, reference 20190057-SR4, revision B, dated 4 March 2022;

vi) Site Retention Works, Site Cross Sections & Construction Sequence, reference 20190057-SR5, revision F, dated 20 May 2022; and

vii) Site Retention Works- Cross Section Z-Z Showing Bridge Abutment, reference 20190057-SR6, revision C, dated 20 May 2022.

c) Site Retention Design Report prepared by MAJCON Consulting, reference MAJ20190057-REP 01 REV 06 20 05 2022, revision 6, dated 20 May 2022.

d) Detailed Survey Plans prepared by Craig & Rhodes, reference 122-02, Drawings 122-02 T06 [03] Sheet 1 of 2 & 2 of 2, revision 03, dated 11 March 2022.

e) Architectural Plans prepared by Coble Stephens Architects (CSA), reference 610- 17-458, revision R, dated 7 February 2022:

i) Detail Plan - Blowout 33kV Line, Sheet 40 of 47 DA-40R;

ii) Detail Plan - Blowout 11kV Line, Sheet 41 of 47 DA-41R;

iii) Blowout Sections - Option A - Crane/Precast Panels, Revision R, Reference 610-17-458, Sheet 42 of 47 DA-42R;

iv) Blowout Sections - Option B - Scaffolding, Reference 610-17-458, Revision R, Sheet 43 of 47 DA-43R;

v) Blowout Sections - Option C - Maintenance, Sheet 44 of 47 DA-44R; and

vi) Blowout/Crane Section Through Lift Shaft, Sheet 45 of 47 DA-45R.

f) Ground Floor Plan - Retail prepared by Coble Stephens Architects (CSA), Reference 610-17-458, Revision R, Sheet 3 of 46 DA-03R, dated 16 September 2021.

g) First Floor Plan - Commercial prepared by Coble Stephens Architects (CSA), Reference 610-17-458, Revision M, Sheet 5 of 32 DA-04L, dated 20 August 2020.

h) Electrical Blowout Design Report prepared by ECL Power Services (No Reference) dated 30 July 2021;

i) Electrical Blowout Plan prepared by ECL Power Services, reference Hornsby 01, Sheet 1, revision A, dated 30 July 2021.

j) Plans prepared and certified by Craig & Rhodes, reference 122-02, dated 23 March 2022:

i) Craneage Plan/Electrical Blowout Plans Survey, Drawing 122-02G T09 [06] - Plan 8;

ii) Scaffolding Plan/Electrical Blowout Plans Survey, Drawing 122-02G T09 [06] - Plan 7; iii. Pre-Cast Panel/Electrical Blowout Plans Survey, Drawing 122-02G T09 [06] - Plan 6;

iii) Detail Survey Plan/Electrical Blowout 33kV Plans Survey, Drawing 122- 02G T09 [06] - Plan 5;

iv) Detail Survey Plan/Electrical Blowout 11kV Plans Survey, Drawing 122- 02G T09 [06] - Plan 4;

v) Crane Cross-Sectional Plan/Electrical Blowout Plans Survey, Drawing 122-02G T09 [06] - Plan 3;

vi) Craneage Survey Plan/Electrical Blowout Survey, Drawing 122-02G T09 [06] - Plan 2; and

vii) Craneage Survey Plan/Electrical Blowout Plans Survey, Drawing 122-02G T09 [06] - Plan 1.

k) TBG Senior Living Services Pty Ltd email (Signed by Matthew Blissett) dated 3 March 2022.

The Principal Certifying Authority is not to issue the Construction Certificate until written confirmation has been received from Sydney Trains confirming which of the documentation listed in this condition are to now apply or are superseded as a result of the compliance with the Sydney Trains related conditions of consent. The measures detailed in the documents approved/ certified by Sydney Trains under this Condition are to be incorporated into the construction drawings and specifications prior to the issuing of the Construction Certificate. Prior to the commencement of works the Principal Certifying Authority is to provide verification to Sydney Trains that this condition has been complied with.

73. B1.

Prior to the issue of a Construction Certificate, the Applicant is to consult with Sydney Trains and provide details as agreed upon for unfettered access to Sydney Trains access gates and TAHE (Transport Asset Holding Entity) owned land and assets, during and postconstruction. The Applicant should ensure provision for easy and ongoing 24/7 access by rail vehicles, plant, and equipment to support maintenance and emergency activities. The Principal Certifying Authority is not to issue any Construction Certificate, until written confirmation has been received from Sydney Trains confirming this condition has been satisfied.

74. B2.

If required, prior to the commencement of works, the Applicant shall enter into a Licence Agreement with Sydney Trains/TAHE (Transport Asset Holding Entity) for the formalisation of access to Sydney Trains access gates/TAHE (Transport Asset Holding Entity) owned land and assets.

75. B3.

Prior to the issue of a Construction Certificate, the applicant is to consult with Sydney Trains/TAHE (Transport Asset Holding Entity), and provide documentation of registration of the Easement on Title as agreed upon for the provision of a Right of Carriageway Easement under c88B of the Conveyancing Act 1919, as part of the proposed development to allow for continued access to Sydney Trains access gates and TAHE (Transport Asset Holding Entity) owned land and assets for maintenance and emergency purposes.

76. B4.

A Plan of Survey and associated easement terms defining the extent of the easement is required to be submitted to Sydney Trains/TAHE (Transport Asset Holding Entity) for endorsement. The location of the new easement (including easement terms) will be in accordance with Sydney Trains/TAHE (Transport Asset Holding Entity) requirements. The responsibility of creating and registering the new easement shall be the Applicant’s and at their cost. The Principal Certifying Authority is not to issue any Occupation Certificate until written confirmation has been received from Sydney Trains confirming its endorsement of the new easement (including easement terms), and confirmation that the Applicant has registered the new easement on Title.

77. B5.

Prior to the commencement of any works, the applicant is to prepare and provide to Sydney Trains for review and endorsement a Hydrologic Assessment report demonstrating that the dewatering during construction will not have any adverse settlement impacts on the rail corridor. No works are to commence until this report has been endorsed by Sydney Trains.

78. B6.

Prior to the commencement of any works, a Registered Surveyor shall peg-out the common property boundary between the development site and TAHE (Transport Asset Holding Entity) land and easements. A copy of the survey report indicating the location of pegs must be provided to Sydney Trains prior to the commencement of works.

79. B7.

Prior to the issuing of a Construction Certificate, the Applicant shall prepare and provide to Sydney Trains for review, comment, and written endorsement the following final version rail specific items in compliance with Sydney Trains’ requirements and the relevant ASA Standards (https://www.transport.nsw.gov.au/industry/assetmanagement-branch):

a) Geotechnical Engineering Report demonstrating that the development has no negative impact on the rail corridor, embankment, or the integrity of the infrastructure.

b) Excavation and Construction Methodology (including staging) with construction details pertaining to machinery to be used and structural support during excavation. iii. Cross Sectional Drawings showing the rail corridor, sub soil profile, proposed basement excavation and/or structural design of sub ground support adjacent to the rail corridor. All measurements are to be verified by a Registered Surveyor. iv. Detailed Survey Plan showing the relationship of the proposed development with respect to the rail corridor and assets.

c) If required by Sydney Trains, an FE analysis which assesses the different stages of loading-unloading of the site and its effect on the rock mass surrounding the rail corridor. The Principal Certifying Authority is not to issue the Construction Certificate until written confirmation has been received from Sydney Trains confirming that this condition has been satisfied.

80. B8.

Prior to the issue of a Construction Certificate, the Applicant shall include in their Construction Management Plan and Safe Working Method Statements (SWMS) adherence to the load restriction set in place for the Pacific Highway Rail Bridge, or as per the applicable structural requirements. The Principal Certifying Authority shall not issue a Construction Certificate until these requirements have been met.

81. B9.

If required by Sydney Trains, a Track Monitoring Plan (including instrumentation and the monitoring regime during excavation and construction phases) is to be submitted to Sydney Trains for review and endorsement prior to the issuing of a Construction Certificate. The Principal Certifying Authority is not to issue a Construction Certificate until written confirmation has been received from Sydney Trains advising of the need to undertake the track monitoring plan, and if required, that it has been endorsed.

82. B10.

No work is permitted within the rail corridor (including airspace) or any easements which benefit Sydney Trains/TAHE (Transport Asset Holding Entity), at any time, unless the prior approval of, or an Agreement with, Sydney Trains/TAHE (Transport Asset Holding Entity) has been obtained by the Applicant. The Principal Certifying Authority is not to issue the Construction Certificate until written confirmation has been received from Sydney Trains confirming that this condition has been satisfied.

83. B11.

A risk analysis, which shall determine the required level of derailment protection (if any), shall be carried out in consultation with Sydney Trains. This risk analysis will determine the redundancy requirements or the minimum collision loads specified in Australian Standard AS5100 that needs to be complied with. The risk assessment is to be prepared in accordance with the Sydney Trains Safety Management System. The Principal Certifying Authority shall not issue the Construction Certificate until it has received written confirmation from Sydney Trains that the risk analysis has been prepared and the Principal Certifying Authority has also confirmed that the measures recommended in this risk analysis have been indicated on the Construction Drawings.

84. B12.

The Applicant shall prepare an acoustic assessment demonstrating how the proposed development will comply with the Department of Planning’s document titled “Development Near Rail Corridors and Busy Roads- Interim Guidelines”. The Applicant must incorporate in the development all the measures recommended in the report. A copy of the report is to be provided to the Principal Certifying Authority and Council prior to the issuing of a Construction Certificate. The Principal Certifying Authority must ensure that the recommendations of the acoustic assessment are incorporated in the construction drawings and documentation prior to the issuing of the relevant Construction Certificate.

85. B13.

Prior to the issue of an Occupation Certificate (whether an interim or final Occupation Certificate), a report must be prepared and submitted to the Certifying Authority, Council and Sydney Trains certifying that the completed development meets the requirements of State Environmental Planning Policy (Transport and Infrastructure) 2021 and with the Department of Planning and Infrastructure’s Development Assessment Guideline titled “Development Near Rail Corridors and Busy Roads - Interim Guidelines” as set down in the subject condition of this consent. Such a report must include external and internal noise levels to ensure that the external noise levels during the test are representative of the typical maximum levels that may occur at this development, and that internal noise levels meet the required dB(A) levels. Where it is found that internal noise levels are greater than the required dB(A) level, necessary corrective measures must be carried out to ensure that internal noise levels are compliant with the requirements of this consent.

86. B14.

Prior to the issue of a Construction Certificate, the Applicant shall undertake a services search to establish the existence and location of any rail services. Persons performing the service search shall use equipment that will not have any impact on rail services and signalling. Should rail services be identified within the subject development site, the Applicant must discuss with Sydney Trains as to whether these services are to be relocated or incorporated within the development site.

87. B15.

Prior to the issuing of a Construction Certificate, the Applicant must submit to Sydney Trains a final plan showing all craneage and other aerial operations for the development and must comply with all standards and Sydney Trains’ requirements. If required by Sydney Trains, the Applicant must amend the plan showing all craneage and other aerial operations to comply with all Sydney Trains’ requirements. The Principal Certifying Authority is not to issue the Construction Certificate until written confirmation has been received from the Sydney Trains confirming that this condition has been satisfied.

88. B16.

Prior to the issue of a Construction Certificate the Applicant is to engage an Electrolysis Expert to prepare a report on the Electrolysis Risk to the development from stray currents. The Applicant must incorporate in the development all the measures recommended in the report to control that risk. A copy of the report is to be provided to the Principal Certifying Authority with the application for a Construction Certificate. The Principal Certifying Authority must ensure that the recommendations of the electrolysis report are incorporated in the construction drawings and documentation prior to the issuing of the relevant Construction Certificate.

B17.

No scaffolding is to be used facing the rail corridor and TAHE (Transport Asset Holding Entity) electrical assets unless prior written approval has been obtained from Sydney Trains. To obtain approval the Applicant will be required to submit details of the scaffolding, the means of erecting and securing this scaffolding, the material to be used, and the type of screening to be installed to prevent objects falling onto the rail corridor and TAHE (Transport Asset Holding Entity) electrical assets. Unless agreed to by Sydney Trains in writing, scaffolding shall not be erected without isolation and protection panels.

89. B18.

Given the possible likelihood of objects being dropped or thrown onto the rail corridor from balconies, windows, and other external features (e.g., roof terraces and external fire escapes) that are within 20 metres of, and face, the rail corridor, the development must have measures installed, to the satisfaction of Sydney Trains (e.g., awning windows, louvres, enclosed balconies, window restrictors etc.) which prevent the throwing of objects onto the rail corridor. The Principal Certifying Authority is not to issue the Construction Certificate until written confirmation has been received from Sydney Trains confirming that this condition has been satisfied.

90. B19.

The design, installation and use of lights, signs, and reflective materials, whether permanent or temporary, which are (or from which reflected light might be) visible from the rail corridor must limit glare, reflectivity, and illumination to the satisfaction of the rail operator. The Principal Certifying Authority is not to issue the Construction Certificate until written confirmation has been received from Sydney Trains confirming that this condition has been satisfied.

91. B20.

Prior to the commencement of any works appropriate fencing must be in place along the rail corridor to prevent unauthorised access to the rail corridor during construction works. Details of the type of fencing and the method of erection are to be to the satisfaction of Sydney Trains prior to the fencing work being undertaken.

92. B21.

The development shall have appropriate fencing fit for the future usage of the development site to prevent unauthorised access to the rail corridor by future occupants of the development. Prior to the issuing of an Occupation Certificate the Applicant shall liaise with Sydney Trains regarding the adequacy of any existing fencing along the rail corridor boundary or design and construction of new fencing. Details of the type of new fencing to be installed and the method of erection are to be to the satisfaction of Sydney Trains prior to the fencing work being undertaken.

93. B22.

The Applicant is to ensure that the development incorporates appropriate anti-graffiti measures, to the satisfaction of Sydney Trains.

94. B23.

The Applicant must ensure that all drainage from the development is adequately disposed of and managed and not allowed to be discharged into the rail corridor unless prior written approval has been obtained from Sydney Trains.

95. B24.

Rainwater from the roof must not be projected and/or falling into the rail corridor and must be piped down the face of the building which faces the rail corridor.

96. B25.

During all stages of the development the Applicant must take extreme care to prevent any form of pollution entering the rail corridor. Any form of pollution that arises as a consequence of the development activities shall remain the full responsibility of the Applicant.

97. B26.

Excess soil is not allowed to enter, be spread, or stockpiled within the rail corridor (and its easements) and must be adequately managed/disposed of.

98. B27.

Sydney Trains advises there are 11kV & 33kV High Voltage Aerial Transmission Lines in close proximity to the proposed works. All works within 6 metres of the nearest transmission line conductor must comply with:

a) ISSC 20 - Guideline for the Management of Activities within Electricity Easements and Close to Electricity Infrastructure.

b) The Safe Approach Distances (SADs) in the Sydney Trains Document titled “SMS06-GD-0268 - Working Around Electrical Equipment”.

c) “WorkCover Code of Practice - Work near Overhead Power Lines (The Code)” B28. There is a need to ensure that the roots and foliage of trees being planted beside the rail corridor and High Voltage Aerial Transmission Line(s) do not have an impact on the rail corridor, rail operations, or infrastructure assets. All Landscaping shall be in accordance with the Sydney Trains High Voltage Powerline Tree Management Plan. A final landscaping and planting plan demonstrating measures to ensure compliance with this condition must be prepared to the satisfaction of Sydney Trains. No construction certificate can be issued until written confirmation has been received from Sydney Trains confirming that this condition has been complied with.

99. B29.

No metal ladders, tapes, and plant, machinery, or conductive material are to be used within 6 horizontal metres of any live electrical equipment. This applies to the train pantographs and catenary, contact and pull-off wires of the adjacent tracks, and to any aerial power supplies within or adjacent to the rail corridor.

100. B30.

If required by Sydney Trains, prior to the issue of a Construction Certificate, a Risk Assessment/Management Plan, and detailed Safe Work Method Statements (SWMS) for the proposed works are to be submitted to Sydney Trains for review and comment on the impacts on rail corridor. The Principal Certifying Authority is not to issue the Construction Certificate until written confirmation has been received from Sydney Trains confirming that this condition has been satisfied.

101. B31.

102. B32.

Prior to the issuing of any Occupation Certificate, the Applicant must provide to Sydney Trains for review and endorsement a plan of how future maintenance of the development facing the rail corridor is to be undertaken. The Principal Certifying Authority is not to issue any Occupation Certificate until written confirmation has been received from Sydney Trains confirming that this condition has been satisfied. The maintenance plan must be implemented for the life of the approved development.

103. B33.

Prior to the issuing of any Occupation Certificate, the Applicant is to submit as-built drawings to Sydney Trains and Council. The as-built drawings are to be endorsed by a Registered Surveyor confirming that there has been no encroachment into TAHE (Transport Asset Holding Entity) property or easements, unless agreed to by TAHE (Transport Asset Holding Entity). The Principal Certifying Authority is not to issue the final Occupation Certificate until written confirmation has been received from Sydney Trains confirming that this condition has been satisfied.

104. B34.

If required by Sydney Trains, prior to the commencement of works or at any time during the excavation and construction period deemed necessary by Sydney Trains, a joint inspection of the rail infrastructure and property in the vicinity of the project is to be carried out by representatives from Sydney Trains and the Applicant. These dilapidation surveys will establish the extent of any existing damage and enable any deterioration during construction to be observed. The submission of a detailed dilapidation report will be required within 10 days following the undertaking of the inspection, unless otherwise notified by Sydney Trains.

105. B35.

If required by Sydney Trains, prior to the issue of the Occupation Certificate, or at any time during the excavation and construction period deemed necessary by Sydney Trains, a joint inspection of the rail infrastructure and property in the vicinity of the project is to be carried out by representatives from Sydney Trains and the Applicant. These dilapidation surveys will establish the extent of any existing damage and enable any deterioration during construction to be observed. The Principal Certifying Authority is not to issue the final Occupation Certificate until written confirmation has been received from Sydney Trains confirming that this condition has been satisfied.

106. B36.

If required, prior to the issue of a Construction Certificate the Applicant is to contact Sydney Trains External Interface Management team to determine the need for the lodgement of a Bond or Bank Guarantee for the duration of the works. The Bond/Bank Guarantee shall be for the sum determined by Sydney Trains. Prior to issuing the Construction Certificate the Principal Certifying Authority must witness written advice from Sydney Trains confirming the lodgement of this Bond/Bank Guarantee.

107. B37.

If required, prior to the issue of a Construction Certificate the Applicant is to contact Sydney Trains External Interface Management team to determine the need for public liability insurance cover. If insurance cover is deemed necessary, this insurance must be for a sum as determined by Sydney Trains and shall not contain any exclusion in relation to works on or near the rail corridor and rail infrastructure, and must be maintained for the duration specified by Sydney Trains. The Applicant is to contact Sydney Trains External Interface Management team to obtain the level of insurance required for this particular proposal. Prior to issuing the Construction Certificate the Principal Certifying Authority must witness written proof of this insurance in conjunction with Sydney Trains’ written advice to the Applicant on the level of insurance required.

108. B38.

Sydney Trains or Transport for NSW, and persons authorised by those entities for the purpose of this condition, must be permitted to inspect the site of the development and all structures to enable it to consider whether those structures have been or are being constructed and maintained in accordance with the approved plans and the requirements of this consent, on giving reasonable notice to the principal contractor for the development or the owner or occupier of the part of the site to which access is sought.

109. B39.

The Applicant must ensure that at all times they have a representative (which has been notified to Sydney Trains in writing), who:

a) Oversees the carrying out of the Applicant’s obligations under the conditions of this consent and in accordance with correspondence issued by Sydney Trains.

b) Acts as the authorised representative of the Applicant.

c) Is available (or has a delegate notified in writing to Sydney Trains that is available) on a 7 day a week basis to liaise with the representative of Sydney Trains, as notified to the Applicant.

110. B40.

Without in any way limiting the operation of any other condition of this consent, the Applicant must, during demolition, excavation and construction works, consult in good faith with Sydney Trains in relation to the carrying out of the development works and must respond or provide documentation as soon as practicable to any queries raised by Sydney Trains in relation to the works.

111. B41.

Where a condition of consent requires consultation with Sydney Trains, the Applicant shall forward all requests and/or documentation to the relevant Sydney Trains External Interface Management team. In this instance the relevant interface team is North Interface, and they can be contacted via email on North_Interface@transport.nsw.gov.au.

112. B42.

Copies of any certificates, drawings, approvals/certification, or documents endorsed by, given to, or issued by Sydney Trains or TAHE (Transport Asset Holding Entity) must be submitted to Council for its records prior to the issuing of the applicable Construction Certificate or Occupation Certificate.

113. B43.

Where a condition of consent requires Sydney Trains or Transport for NSW endorsement the Principal Certifying Authority is not to issue a Construction Certificate or Occupancy Certificate, as the case may be, until written confirmation has been received from those entities that the particular condition has been complied with. The issuing of staged Construction Certificates dealing with specific works and compliance conditions can be issued subject to written agreement from those entities to which the relevant conditions applies.

- 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 2021, 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

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 (Biodiversity and Conservation) 2021 and the Environmental Planning and Assessment Act 1979.

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

Covenants

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.

Use of Building - Separate DA Required

This consent does not permit the use of the premises for any purpose. Separate development consent is required for the use of the premises 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.

Dial Before You Dig

Telecommunications Act 1997 (Commonwealth)

Asbestos Warning

www.safework.nsw.gov.au

Alternatively, telephone the SafeWork NSW on 13 10 50.

Construction Traffic Management Plan Advisory Note (TfNSW)

· Any bus seating readjustments will require approval from the relevant assets owner (council and/or Rail) and must comply to TFNSW and Bus operator guidelines.

· For the class B hoarding, they will need to ensure that along the Pacific Hwy it is a minimum 600mm from the kerb, preferably 800mm from the kerb to ensure safety clearance for buses is met.

· Any Traffic Guidance Schemes (TGS) prepared are to comply with AS1742.3 and Transport for NSW’s "Traffic Control at Worksites" manual and be signed by a person with TfNSW certification to prepare a TGS.

· Proponent must apply and obtain approval from the Transport Management Centre for a Road Occupancy Licence (ROL) for any required lane closures and/or Speed Zone Authorisations as part of the ROL that impact the state road network or is within 100m of traffic signals.

· Proponent must submit a site specific traffic management plan for any Road closures required to Road occupancy unit for endorsement.

· No marshalling or queuing of construction vehicles is to occur on public roads. Arriving vehicles that are not able to use parking bay/work zone must continue to a holding point until space becomes available.

· When heavy vehicles are entering or leaving the site a traffic controller is to be provided to manage any conflicts between pedestrians and heavy vehicles.

· Transport for New South Wales reserve the right to alter the CTMP Conditions at any time to maintain safe and efficient traffic and pedestrian movements in this area

· Any approved Works Zone should only be used for work activities. No infrastructure, including bins, tanks or traffic control equipment should be left on the road when the works zone is not in use by a vehicle. All non-vehicular items must be contained with the work area and not on the carriageway. When a work zone is not in use, the area/lane must be opened up to allow for normal trafficable conditions

· Should TfNSW Network and Asset Management, Network Operations, CJP Operations, Network and Safety or other TfNSW business area determine that that more information is to be provided for review and acceptance, including other TCS locations, this information must be submitted prior to the CTMP being implemented, or otherwise agreed upon.

· Endorsement of the CTMP is not an approval to the type of traffic management or delineation devices used, nor is it an approval to any traffic guidance schemes depicted within the CTMP. It is assumed that the proponent has used type approved devices and has developed its traffic guidance schemes in accordance with the relevant Australian Standards and Guidelines.

· The proponent is to ensure local residents, businesses, schools and other stakeholders in the affected area as well as emergency service organisations are notified of the changes associated with the CTMP, prior to its implementation.

· Please ensure this CTMP is shared and adhered to by all contractors. If the CTMP changes, please forward a copy to Developments.CJP@transport.nsw.gov.au or further review and endorsement.

LPP Report No. LPP47/22

Local Planning Panel

Date of Meeting: 27/07/2022

5 DA/1379/2021 - FURTHER REPORT - CONSTRUCTION OF A DWELLING HOUSE - 99A COPELAND ROAD, BEECROFT

EXECUTIVE SUMMARY

DA No:	DA/1379/2021 (Lodged on 21 December 2021)
Description:	The construction of a two-storey dwelling house on Lot 121 approved under Development Application No. DA/985/2020 (two into four lot subdivision)
Property:	Lot 2 DP 444486, No. 99A Copeland Road, Beecroft
Applicant:	Doug Sneddon Planning Pty Ltd
Owner:	Frobat Pty Limited
Estimated Value:	$931,700
Ward:	C Ward

· Development Application Number DA/1379/2021 was reported to the Hornsby Local Planning Panel (the Panel) for determination on 29 June 2022.

· The Panel deferred determination of the application to confirm that the opinion of the applicant’s arborist regarding the structural soundness of tree No. 40 was consistent with the independent assessment of Council’s Tree Management Team. In addition, the Panel noted that the supplied landscape plan was erroneous and inconsistent and indicated trees 39 and 41, amongst other trees, as removed.

· The applicant has amended the proposed landscape plan to address the matters raised by the Panel.

· It is recommended that the application be approved.

RECOMMENDATION

THAT Development Application No. DA/1379/2021 for the construction of a two-storey dwelling house at Lot 2 DP 444486, No. 99A Copeland Road, Beecroft be approved as a deferred commencement pursuant to Section 4.16(3) of the Environmental Planning and Assessment Act 1979 subject to the conditions of consent detailed in Schedule 1 of LPP Report No. LPP47/22.

BACKGROUND

On 29 June 2022, DA/1379/2021 was reported to the Hornsby Local Planning Panel (the Panel) for determination. At that meeting, the Panel resolved to defer determination of the application and required the Applicant to submit additional information and for Council’s arborist to provide an independent assessment of the health and viability of tree No. 40.

The additional matters to be addressed were outlined in the minutes of the meeting as follows:

The Panel considered the matters raised in the written submissions and by the speakers at the meeting including bulk and scale; visual impact, removal of trees and impacts on flora and fauna, landscaping requirements, solar panels, privacy and amenity impacts.

The Panel heard from the applicant’s arborist, who identified that Tree 40 was structurally compromised and of low useful life expectancy, failing the visual tree assessment. It was further identified that Tree 40 was not a native species and would be offset by four native trees on site. A 100-200 litre pot size was identified as suitable to instate mature specimens of approximately 3 metres in height to provide initial screening and amenity.

The Panel noted that the opinion of the applicant’s arborist has not yet been corroborated by Council arborists.

The Panel resolved to defer the item in order to receive the independent advice of Council’s arborist regarding the ability to retain tree 40 having particular regards to safety.

The Panel also noted that the supplied landscape plan was inconsistent and may show trees 39 and 41 as removed. The Panel requests that an amended landscape plan be provided prior to any determination.

Upon receipt of the above information the panel would determine the matter electronically at the July LPP meeting.

The response to the deferment items is discussed in the report.

This report is a supplementary report and is to be read in conjunction with LPP Report No. LPP35/22 in relation to DA/1379/2021 which was considered by the Panel at its meeting held on 29 June 2022.

1. Response to reasons for deferral

On 29 June 2022, DA/1379/2021 was reported to the Panel for determination. At that meeting, the Panel resolved to defer determination of the DA and required the Applicant to submit additional information and for Council’s arborist to provide an independent assessment of the health and viability of tree No. 40. The reasons for deferral are addressed in detail below.

1.1 Tree No. 40

The Panel heard from the applicant’s arborist, who identified that Tree 40 was structurally compromised and of low useful life expectancy, failing the visual tree assessment. The Panel noted that the opinion of the applicant’s arborist has not yet been corroborated by Council arborists. The Panel resolved to defer the item in order to receive the independent advice of Council’s arborist regarding the ability to retain tree 40 having particular regards to safety.

The application proposes the removal of 1 tree to facilitate the construction of the dwelling house, identified as Tree No. 40 (Parrotiopsis jacquemontiana) as shown in Figure 1 below. The submitted Arboricultural Impact Assessment has assessed the tree as having a ‘low’ significance rating and a short, safe and useful life expectancy (SULE) rating. The addendum letter prepared by Advanced Treescape Consulting dated 11 March 2022 indicates that tree No. 40 failed the Visual Tree Assessment (VTA) and determined that the tree “poses an unacceptably high level of risk and is not suitable to be considered for retention”.

A tree in front of a house

Description automatically generated with medium confidence

Figure 1 - Tree No. 40

In addressing the Panel’s resolution, Council’s arborist provided independent advice on 30 June 2022 regarding the retention of tree No. 40, excerpted as follows:

As discussed, Tree Management agrees with the findings of the Arborist report dated 8/12/2021 by Advanced Treescape Consulting recommending the removal of T40.

The tree is in a poor condition and structurally compromised. For these reasons, the tree was permitted for removal in the provided tree comments.

Council would not recommend the retention of this tree even with a relocation of the proposed dwelling.

In summary, Council considers that tree No. 40 is in poor condition, structurally compromised and is unsuitable for retention, irrespective of any relocation of the development footprint to be outside of the Tree Protection Zone (TPZ) of the tree.

1.2 Replacement Planting

It was further identified that Tree 40 was not a native species and would be offset by four native trees on site. A 100-200 litre pot size was identified as suitable to instate mature specimens of approximately 3 metres in height to provide initial screening and amenity.

To ensure that the 4 replacement canopy trees and the Pittosporum 'hedge' along the southern and western boundaries achieve a height of 3 metres at the time of planting, Council has amended condition of consent No. 38 within Schedule 1 of this report to require the use of 100-200 litre pot sizes with these trees to be planted at a height of 3 metres.

1.3 Amended Landscape Plan

In response to the Panel’s concern, the applicant has provided an amended Landscape Plan prepared by Aspect Designs dated 8 July 2022 which rectifies any inconsistencies and identifies tree No. 40 as the only tree proposed to be removed.

The amended Landscape Plan has addressed the Panel’s original concerns. Accordingly, Council has amended condition No. 2 within Schedule 1 of this report to substitute the original Landscape Plan with the amended Landscape Plan dated 8 July 2022.

CONCLUSION

The application proposes construction of a two-storey dwelling house on Lot 121 approved under DA/985/2020 (Torrens title subdivision of two lots into four).

Council received 11 submissions during the public notification period. The matters raised have been addressed in report LPP/35/22 (copy attached). Further, the Panel at its public meeting held on 29 June 2022, considered the matters raised in the written submissions and by the speakers at the meeting including bulk and scale; visual impact, removal of trees and impacts on flora and fauna, landscaping requirements, solar panels, privacy and amenity impacts.

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

The reasons for this decision are:

· The proposed development 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, vegetation, heritage, solar access, amenity or privacy.

RESPONSIBLE OFFICER

The officer responsible for the preparation of this report is Thomas Dales.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

a) This development consent permits the removal of one tree numbered T40 as identified in the Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 8/12/2021 TRIM D08320953.

1.⇩	Locality Plan
2.⇩	Assessment Report
3.⇩	Architectural Plans
4.⇩	Landcape Plan
5.⇩	Survey Plan
6.⇩	Tree Location Plan

File Reference: DA/1379/2021

Document Number: D08445418

SCHEDULE 1

1. Deferred Commencement

a) Pursuant to Section 4.16(3) of the Environmental Planning and Assessment Act 1979, this consent does not operate until a registered plan of subdivision from the NSW Land Registry Services (NSW LRS) creating the proposed lot is submitted to Council.

b) Such information must be submitted within 36 months of the date of this notice.

Upon Council’s written satisfaction of the above information, the following conditions of development consent apply:

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.

2. Approved Plans and Supporting Documentation

Approved Plans

*Plan No.*	*Plan Title*	*Drawn by*	*Dated*	*Council Reference*
03, Rev 07	Site Plan	Fyffe Design	10.3.22
04, Rev 07	Ground Floor Plan	Fyffe Design	10.3.22
06, Rev 07	First Floor Plan	Fyffe Design	10.3.22
08, Rev 07	Roof Plan	Fyffe Design	10.3.22
09, Rev 07	East, West & North Elevations	Fyffe Design	10.3.22
10, Rev 07	South Elevation & Sections	Fyffe Design	10.3.22
12, Rev 07	External Finishes	Fyffe Design	10.3.22
A3, Rev B	Landscape Plan	Aspect Designs	8.7.22

Supporting Documents

*Document Title*	*Prepared by*	*Dated*	*Council Reference*
Arboricultural Impact Assessment	Advanced Treescape Consulting	8.12.21	D08320953
BASIX Certificate No. 1251913S	Building & Energy Consultants Australia	25.10.21	D08320949
Waste Management Plan	Doug Sneddon Planning P/L	1.1.21	D08320939

3. Removal of Existing Trees

b) No consent is granted for the removal of the trees numbered T39 and T41 as these trees contribute to the established landscape amenity of the area/streetscape.

4. Amendment of Plans

a) To comply with Councils requirement in terms of privacy, the approved plans are to be amended as follows:

i) The sill height of the window to the first-floor level sitting room on the western elevation is to be increased to a minimum height of 1.5 metres above the finished floor level.

b) These amended plans must be submitted with the application for the Construction Certificate.

5. 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 not be inconsistent with the Development Consent plans.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

6. Appointment of a Project Arborist

a) A project arborist with AQF Level 5 qualifications must be appointed.

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

7. Building Code of Australia

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.

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.

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.

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.

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) Connected to an existing inter-allotment drainage system.

12. On Site Stormwater Detention

An on-site stormwater detention system must be designed by a chartered civil engineer and constructed in accordance with the following requirements:

a) Have a capacity of not less than 5 cubic metres, and a maximum discharge (when full) of 8 litres per second.

b) Have a surcharge/inspection grate located directly above the outlet.

c) Discharge from the detention system must be controlled via 1 metre length of pipe, not less than 50 millimetres diameter or via a stainless plate with sharply drilled orifice bolted over the face of the outlet discharging into a larger diameter pipe capable of carrying the design flow to an approved Council system.

d) Be in accordance with the stormwater design plans prepared by C & M Consulting Engineers dated Jan 2022.

e) Not be constructed in a location that would impact upon the visual or recreational amenity of residents.

13. Internal Driveway/Vehicular Areas

The driveway and parking areas on site must be designed, constructed 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.

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.

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.

16. 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.

iii) Have an on-site effluent disposal system approved under the Local Government Act 1993.

17. 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.

18. 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.

19. Installation of Tree Protection Measures

a) Trees to be retained and numbered T39 and T41 as identified on the Tree Location Plan prepared by must have tree protection measures for the ground, trunk and canopy installed by the project arborist as follows:

i) For the duration of demolition works, in accordance with the Tree Protection Plan in the Arboricultural Impact Assessment, prepared by Advanced Treescape Consulting dated 8/12/2021.

ii) For the duration of construction works, in accordance with Tree Protection Plan in the Arboricultural Impact Assessment, prepared by Advanced Treescape Consulting dated 8/12/2021.

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.

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) The circumference of the trunk(s) must be wrapped in hessian material to provide cushioning for the installation of timber planks.

e) Timber planks (50 x100mm) must be spaced at 100mm intervals and must be attached using adjustable ratchet straps.

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

g) 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.

REQUIREMENTS DURING CONSTRUCTION

20. 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.

21. 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.

22. Council Property

23. Disturbance of Existing Site

24. 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.

25. 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.

26. Unexpected Finds

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 retained on the approved plans.

31. Maintaining Tree Protection Measures

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

32. 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 50mm.

b) 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.

c) 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.

d) To minimise impacts within the Tree Protection Zone (TPZ) of trees 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.

e) 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, wastewater 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

(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. Retaining Walls

All required retaining walls must be constructed as part of the development.

37. Final Tree Certification

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

b) All tree protection requirements complied with the as approved tree protection plan for the duration of demolition and/or construction works.

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

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

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

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

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

38. Completion of Landscaping

a) A certificate must be submitted to the PCA by a practicing landscape architect, horticulturalist or person with similar qualifications and experience certifying that all required landscaping works have been satisfactorily completed in accordance with the approved landscape plans.

b) The 4 replacement canopy trees (Rough Barked Apple, Coastal Banksia’s, and Water Gum) and the Pittosporum 'hedge' along the southern and western boundaries are to achieve a height of 3 metres at the time of planting. 100-200 litre pot sizes are to be utilised for these trees.

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.

39. Creation of Easements

The following easements are to be created on the title of the property in accordance with the Conveyancing Act 1919:

a) The creation of an appropriate "Positive Covenant" and "Restriction as to User" over the constructed on-site detention/retention systems and outlet works, within the lots in favour of Council in accordance with Council’s prescribed wording. The position of the on-site detention system is to be clearly indicated on the title;

b) To register the OSD easement, the restriction on the use of land “works-as-executed” details of the on-site-detention system must be submitted verifying that the required storage and discharge rates have been constructed in accordance with the design requirements. The details must show the invert levels of the on-site system together with pipe sizes and grades. Any variations to the approved plans must be shown in red on the “works-as-executed” plan and supported by calculations;

Note: Council must be nominated as the authority to release, vary or modify any easement, restriction or covenant.

40. Works as Executed Plan

A works-as-executed plan(s) must be prepared by a registered surveyor and submitted to Council for the completed on-site detention system.

41. Asbestos Clearance Certificate

- 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

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).

Covenants

Dial Before You Dig

Asbestos Warning