Supplementary Agenda of Local Planning Panel meeting

LPP Report No. LPP18/23

Local Planning Panel

Date of Meeting: 28/06/2023

2 DA/245/2023 - CONSTRUCTION OF A DWELLING HOUSE - 45A ORANA AVENUE, HORNSBY

DA No:	DA/245/2023 (Lodged on 21 March 2023)
Description:	Construction of a new 2 storey dwelling, attached garage and associated landscaping and ancillary works
Property:	Lot 2 DP 1275032, No. 45A Orana Avenue, Hornsby
Applicant:	PNB Architecture Pty Ltd
Owner:	Mr Adam John Perring & Mrs Tanya Lee Perring
Estimated Value:	$745,883.00
Ward:	A Ward
Clause 4.6 Request:	Clause 4.3 Height of buildings in the HLEP R2 Low density residential zone
Submissions:	2
LPP Criteria:	Proposal contravenes a development standard by more than 10%
Author:	Elvin Keung, Town Planner
COI Declaration:	No Council staff involved in the assessment of this application have declared a Conflict of Interest.

RECOMMENDATION

THAT Council 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/245/2023 for construction of a dwelling house, attached garage and associated landscaping and ancillary works at Lot 2 DP 1275032, No. 45A Orana Avenue, Hornsby subject to the conditions of consent detailed in Schedule 1 of LPP Report No. LPP18/23.

executive summary

· The application involves construction of a new two storey dwelling, attached garage and associated landscaping and ancillary works.

· The proposal does not comply with the Hornsby 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 2 submissions have been received in respect of the application.

· The application is required to be determined by the Hornsby Council Local Planning Panel as the proposal would contravene the Hornsby Local Environmental Plan 2013 development standard for height of buildings by more than 10%.

· It is recommended that the application be approved.

BACKGROUND

On 22 March 2021, DA/1158/2020 was approved for the demolition of existing timber carport platform and Torrens title subdivision of two lots into three at No. 43 Orana Avenue. This created the subject lot (Lot 2 DP 1275032).

On or about 3 March 2022, a landslip occurred on the subject site (former Lot 111 DP 1244595) which had potential to extend into the road reserve, thereby causing considerable risk to public safety. An investigation was subsequently commenced by Council’s Senior Environmental Compliance Officer. A Geotechnical Report confirmed low risk to down-slope properties and thus Council determined it was not in a position to issue a Notice/ Orders to undertake stabilisation measures. The property owner advised his intention to lodge a DA in the future to construct a dwelling with the inclusion of permanent retaining measures.

SITE

The 550.7m² site is located on the eastern side of Orana Avenue and is currently vacant.

The site slopes significantly and experiences a 10m fall over a distance of 20m from the front south-western boundary towards the rear boundary. This results in a gradient of approximately 50%.

The site is not as bush fire prone land. It is not mapped as flood prone.

The site does not contain a heritage listed item and is not within a heritage conversation area (HCA), nor is it located in the vicinity of a heritage item or HCA.

The site is burdened and benefitted by a drainage easement that runs along the rear of the site.

The site does not contain any ecologically endangered species.

PROPOSAL

The application proposes the construction of a two storey dwelling house and associated landscaping works. The dwelling will utilise pier and post construction due to the significant slope.

The ground floor would comprise an open plan kitchen, living and dining room, a bathroom, a rear balcony, and an attached double garage.

The lower ground floor would comprise a bedroom with ensuite, walk in wardrobe and balcony, three bedrooms, a bathroom, and a laundry.

Retaining walls are proposed at the front of the site.

No demolition works are proposed.

A number of trees/ vegetation at the southern corner of the site may be removed or impacted by the development.

ASSESSMENT

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

1. STRATEGIC CONTEXT

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

The Greater Sydney Region Plan - A Metropolis of Three Cities has been prepared by the NSW State Government to guide land use planning decisions over the next 40 years (to 2056). The Plan sets a strategy and actions for accommodating Sydney’s future population growth and identifies dwelling targets to ensure supply meets demand. The Plan also identifies that the most suitable areas for new housing are in locations close to jobs, public transport, community facilities and services.

The NSW Government will use the subregional planning process to define objectives and set goals for job creation, housing supply and choice in each subregion. Hornsby Shire has been grouped with Hunters Hill, Ku-ring-gai, Lane Cove, Mosman, North Sydney, Ryde, Northern Beaches and Willoughby to form the North District. The Greater Sydney Commission has released the North District Plan which includes priorities and actions for Northern District over the next 20 years.

The identified challenge for Hornsby Shire will be to provide an additional 4,350 dwellings by 2021 with further strategic supply targets to be identified to deliver 97,000 additional dwellings in the North District by 2036.

The proposed development would be 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

Section 4.15(1)(a) requires Council to consider “any relevant environmental planning instruments, draft environmental planning instruments, development control plans, planning agreements and regulations”.

2.1 Hornsby Local Environmental Plan 2013

The proposed development has been assessed having regard to the provisions of the Hornsby Local Environmental Plan 2013 (HLEP).

2.1.1 Zoning of Land and Permissibility

The subject land is zoned R2 Low density residential under the HLEP. The objectives of the R2 zone are:

· To provide for the housing needs of the community within a low-density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

The proposed development is defined as ‘dwelling house’ and is permissible in the R2 zone with Council’s consent.

2.1.2 Height of Buildings

Clause 4.3 of the HLEP provides that the height of a building on any land should not exceed the maximum height shown for the land on the Height of buildings Map. The maximum permissible height for the subject site is 8.5m. The proposal has a maximum height of 10.802m and does not comply with this provision.

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

2.1.3 Exceptions to Development Standards

The application has been assessed against the requirements of Clause 4.6 of the HLEP. This clause provides flexibility in the application of the development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tender to hinder the attainment of the objectives of the zone.

The proposal contravenes the Clause 4.3 Height of buildings development standard.

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, and

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

In Initial Action Pty Ltd v Woollahra Municipal Council [2008] NSW LEC 118, Preston CJ clarified the correct approach to dealing with a written request under Clause 4.6 to justify the contravention of a development standard.

In relation to determining the matter under cl 4.6(3)(a), the unreasonable or unnecessary clause, the consent authority must be satisfied that the applicant’s written request adequately addresses the matter as opposed to of making its own judgement regarding whether compliance is unreasonable or unnecessary. Additionally, the clause does not require that a non-compliant development should have a neutral or beneficial effect relative to a compliant development.

In relation to determining the matter under cl 4.6(3)(b), the environmental planning grounds clause, non-compliant development is not required to result in a ‘better environmental planning outcome for the site’ relative to a compliant development. Instead, the requirement is only that there are sufficient environmental planning grounds to justify the development standard contravention.

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

2.1.4 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.

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

The written request prepared by Vaughan Milligan Development Consulting, dated 23 May 2023 provides a detailed assessment of the proposal with respect to the development standard sought to be contravened.

Figures 1 & 2 depict the extent of the contravention of the height of buildings development standard, being 2.302m (27%).

Figure 1: Eastern elevation showing 8.5m height limit in blue

Figure 2: Northern elevation showing 8.5m height limit in blue

The request argues that:

The subject site has a significant slope, with a fall of 10m from the front property boundary down towards the rear property boundary, and a gradient of approximately 75% at the footprint of the proposed dwelling.

The proposed dwelling has been designed with pier and post construction, to sit lightly on the land and minimise site disturbance. The proposed method of construction is considered to be the most appropriate form of construction in consideration of the slope; however, it does attribute to greater building heights as a consequence of the resultant undercroft areas.

The height of the proposed dwelling is not dissimilar to that of surrounding dwellings on sloping sites and will not be incompatible with the bulk and scale of neighbouring buildings.

The proposed building height does not result from excessive building footprints, with the scale of the proposed dwelling entirely commensurate with that of other dwellings on sloping land in the visual catchment of the site.

The height of the proposed development is appropriate with respect to the individual circumstances of the subject site.

Council notes that the objectives of Clause 4.3 Height of buildings 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 conclusion that the proposed additions meet the objectives of Clause 4.3. In reaching this conclusion the following points are noted:

· The site is highly constrained by slope. The method of construction consequently increases the height of the resultant structure.

· The dwelling would not be feasible if strict compliance with Clause 4.3 was enforced due to the steep slope.

· The height is not apparent when viewed from the street and is consistent with other dwellings in the immediate streetscape. The existing adjoining dwelling to the north-west is also non-compliant with height with a maximum height of approximately 10m.

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

For the reasons outlined above, it is considered that the written request to contravene the height of buildings standard adequately demonstrates that the objectives of Clause 4.3 of the HLEP are achieved, notwithstanding non-compliance with the standard. As such, the applicant has satisfactorily demonstrated that compliance with the development standard is unreasonable or unnecessary.

2.1.4.2 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 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].

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

· The proposed development maintains the general bulk and scale of surrounding contemporary dwellings and maintains architectural consistency with the prevailing development pattern which promotes the orderly and economic use of the land (cl 1.3(c)).

· Similarly, the proposed development will provide for a high level of amenity within a built form which is compatible with the character of the locality, which also promotes the orderly and economic use of the land (cl 1.3(c)).

· The proposed development is considered to promote good design and enhances the residential amenity of the buildings’ occupants and the immediate area, which is consistent with the Objective 1.3 (g).

· The extent of non-compliance is a result of the significant slope of the land, and the sensitive design/construction methodology proposed, which promotes the proper construction of buildings in accordance with Objective 1.3(h).

Council considers that the environmental planning grounds stated within the written request are sufficient with respect to Clause 4.6(3)(b) and that the stated grounds are specific to the proposed development and the circumstances of the development site. It is therefore considered that the written request adequately demonstrates compliance with the clause and is acceptable in this regard.

In demonstrating the unreasonable and unnecessary test, the applicant further established satisfactory environmental planning grounds with respect to the site and the surrounding constraints.

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

2.1.5 Public Interest and Clause 4.6(4)

Clause 4.6(4) states that development consent must not be granted for development that contravenes a development standard unless:

(a) The consent authority is satisfied that:

(i) The applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) The proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

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

The applicant provided the following response regarding the objectives of the R2 zone in which the development is proposed to be carried out:

· To provide for the housing needs of the community within a low density residential environment.

Comment: The proposed new dwelling is consistent with the low-density nature and character of the locality and has been designed to meet the needs of the owners of the land.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

Comment: Not applicable.

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.

Local Planning Panels constituted under the Environmental Planning and Assessment Act 1979 exercise consent authority functions on behalf of a Council and are not delegates of Council. Therefore, Local Planning Panels may determine a development application notwithstanding, a numerical non-compliance in excess of 10%.

Therefore, the contravention of the height of buildings development standard is supported in this instance.

2.1.6 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.

2.1.7 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 the impacts would be minimal. The dwelling and other structures are designed to sit lightly on the site to minimise disturbance. Minor excavation is required to accommodate the works and two retaining walls are proposed to stabilise the site and prevent future landslips. Apart from land at the front of the dwelling, the remainder of the site will remain at existing ground level. The proposed works will be constructed in accordance with the geotechnical report and structural engineer’s report submitted with this application.

2.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021

The application has been assessed against the requirements of chapter 2 and 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021.

2.2.1 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.

No trees would be removed or impacted by the development and Section 3.1.1 of this report provides an assessment in accordance with Part 1B.6.1 of the HDCP.

2.2.2 Chapter 6 Water Catchments

The site is located within the catchment of the Hawkesbury-Nepean River. The aim of this chapter is to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of development are considered in the regional context. Part 6.2 of this Plan contains general planning considerations and strategies requiring Council to consider the impacts of development on water quality, aquaculture, significant vegetation habitats, extraction, environmental heritage and scenic quality, recreation and tourism, and agriculture.

Subject to the implementation of sediment and erosion control measures and stormwater management to protect water quality, the proposal would not impact on the water quality of the catchment and would comply with the requirements of chapter 6 of the Biodiversity and Conservation SEPP.

2.3 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

The application has been assessed against the requirements of State Environmental Planning Policy (BASIX) 2004 which seeks to encourage sustainable residential development.

The proposal includes a BASIX certificate (1359004S_02) in accordance with the requirements of the SEPP including the list of commitments to be complied with at the construction stage and during the use of the premises. The BASIX certificate achieves the minimum scores for thermal comfort, water and energy.

The proposal is acceptable in this regard.

2.4 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.

2.4.1 Chapter 4 Remediation of Land

Section 4.6 of the Resilience and Hazard SEPP states that consent must not be granted to the carrying out of any development on land unless the consent authority has considered whether the land is contaminated or requires remediation for the proposed use.

Should the land be contaminated, Council must be satisfied that the land is suitable in a contaminated state for the proposed use. If the land requires remediation to be undertaken to make the land suitable for the proposed use, Council must be satisfied that the land will be remediated before the land is used for that purpose.

An examination of Council’s records and aerial photography has determined that the site has been historically used for residential purposes. It is not likely that the site has experienced any significant contamination, and further assessment under chapter 4 of the Resilience and Hazards SEPP is not required.

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

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

The principal purpose of a development control plan is to provide guidance on the aims of any environmental planning instrument that applies to the development; facilitate development that is permissible under any such instrument; and achieve the objectives of land zones. The provisions contained in a DCP are not statutory requirements and are for guidance purposes only. Consent authorities have flexibility to consider innovative solutions when assessing development proposals, to assist achieve good planning outcomes.

2.6 Hornsby Development Control Plan 2013

The proposed development has been assessed having regard to the relevant desired outcomes and prescriptive requirements within the Hornsby Development Control Plan 2013 (HDCP). The following table sets out the proposal’s compliance with the prescriptive requirements of the Plan:

HDCP - Part 3.1 Dwelling Houses
Control	Proposal	Requirement	Complies
Site Area	550.7m²	N/A	N/A
Building Height	10.802m	8.5m	No
No. storeys	2	max. 2 + attic	Yes
Site Coverage	49%	50%	Yes
Floor Area	286.2m²	330m²	Yes
Setbacks
- Front	Nil setback	6m	No
- Side (north)
Lower ground floor	1.5m	1.5m	Yes
Ground floor (garage)	900m	900mm	Yes
Ground floor (dwelling)	1.5m	1.5m	Yes
- Side (south)
Lower ground floor	1.5m	900mm	Yes
Ground floor	1.5m	1.5m	Yes
- Rear
Lower ground floor	2.8m	8m	No
Ground floor	5.1m	8m	No
Landscaped Area (20% of lot size)	174.6m²	110.14m²	Yes
Private Open Space
- minimum area	>24m²	24m²	Yes
- minimum dimension	>3m	3m	Yes
Car Parking	2 spaces	2 spaces	Yes

As detailed in the above table, there are a number of non-compliances with the HDCP controls which are discussed below including a brief discussion on compliance with relevant performance requirements.

2.6.1 Height

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

This is supported by the prescriptive measure that states the maximum height of permissible is 8.5m comprised of 2 storeys + attic. The proposal is a maximum of 2 storeys. The non-compliance with the height is discussed in detail in Section 2.1.3 of this report.

2.6.2 Setbacks

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

2.6.2.1 Front Setback

The desired outcomes are supported by the prescriptive measure that states the minimum front boundary setback is 6m.

The application proposes a nil front setback to the garage. The remainder of the structure partially encroaches within the 6m front setback. The nil setback for the garage is necessary due to the extreme slope of the land and is in a similar location to the existing vehicle crossover. It is consistent with the other properties located on sloping sites along this street.

For the remainder of the dwelling, it would be unreasonable to require full compliance with the 6m front setback. The site frontage is curved and the site itself is irregular in shape. Full compliance would greatly limit the feasibility of a potential dwelling. Additionally, due to the slope of the site, there is no visual bulk or adverse impact to amenity when viewed from the street arising from the encroachment into the front setback.

As such, the variation to the front setback meets the desired outcomes of Part 3.1.2 Setbacks of the HDCP and is considered acceptable.

2.6.2.2 Rear Setback

The desired outcomes are supported by the prescriptive measure that states that the minimum rear setback to a two-storey element is 8m.

The application proposes a rear setback of 2.8m to the lower ground floor and 5.1m to the ground floor. Both levels are considered second-storey elements as they exceed 4.5m above existing ground level. The reduced rear setback is compatible with the surrounding dwellings and is a result of the irregularly shallow lot depth. The proposal nevertheless complies with site coverage, floor area and landscaping controls. The degree of privacy afforded to the rear neighbours is as much as one would anticipate from a highly sloping site.

As such, the variations to the rear setback meet the desired outcomes of Part 3.1.2 Setbacks of the HDCP and are considered acceptable.

2.6.3 Privacy

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

The slope of the site means there will inevitably be some degree of privacy lost to downhill properties. The proposal includes a raised alfresco area on the ground floor which can be used for entertaining. Whilst it does not have an 8m rear setback, it will be raised significantly above ground level due to the method of construction. Consequently, the direct line of sight distance to the rear adjoining neighbour’s private open space is over 12m. This negates the need for a privacy screen as there will be no direct overlooking and neighbours are afforded a reasonable degree of privacy. On the lower ground floor, the balcony connected to the master bedroom is limited in depth being 1.5m and as such is not conducive to being used as an entertaining space. Additionally, the direct line of sight distance to the rear adjoining neighbour’s private open space is approximately 9m. The privacy impacts would be limited to what one would anticipate from a highly sloping site.

As such, the proposal meets the desired outcome of Part 3.1.6 Privacy of the HDCP and is considered appropriate.

2.6.4 Earthworks & Slope

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

These are supported by the prescriptive measure that states “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”.

To provide clarity, the following lists the submitted geotechnical and structural reports in the order they were prepared from oldest to newest. The dates printed on the reports are not in chronological order as the reports were initially prepared in a draft form and then later finalised:

1st. Preliminary Geotechnical Assessment Ref: P1706233JR04V01, prepared by Martens Consulting Engineers, dated 12 January 2023.

2nd. Structural Report No. 2022.37-R001 Rev B, prepared by Joshua Consulting Engineers Pty Ltd, dated 25 October 2022.

3rd. Review of Preliminary Structural Design and Geotechnical Advice Ref: P1706233JC04V01, prepared by Martens Consulting Engineers dated 20 October 2022.

The reports do not raise any objections to the proposal and provide multiple recommendations to ensure the safety and stability of the site. The proposal was reviewed by Council’s Development Engineer and a condition is recommended requiring all recommendations from the above geotechnical and structural reports to be implemented prior to the issue of the construction certificate.

Additionally, the structural report recommends a dilapidation report to ensure no damage to adjoining structures. Accordingly, a condition is recommended for a dilapidation report be prepared detailing the structural condition of the two adjoining properties either side of the site and Council’s road reserve prior to any works commencing on the site.

2.6.5 Tree Preservation

The prescriptive measures of Part 1B.6.1 Tree Preservation of the HDCP state that:

a) “the prescribed trees that are protected by the Vegetation SEPP and/or Clause 5.10 of the HLEP and this section of the DCP include:

· All trees except exempt tree species in Hornsby Shire as listed in Table 1B.6 (a) or subject to a Biodiversity Offset Scheme.

· All trees on land within a heritage conservation area described within the HLEP, and

· All trees on land comprising heritage items listed within the HLEP.

b) To damage or remove any tree protected under the HDCP is prohibited without the written consent of Council, except in accordance with the exemptions prescribed in this part (under the heading ‘Exempt Tree Work’).”

The proposal does not explicitly seek to remove any trees on site. However, a site visit and aerial imagery shows that there is some vegetation in the southern corner of the site that appears to conflict with the proposed retaining walls. A referral to Council’s Natural Resources Unit indicated no native trees to be removed and that the site only contained exotic weed species. No objections were raised to the proposal. Any vegetation removal will be offset by the extensive planting as detailed in the submitted Landscape Plan. The existing street tree at the front of the site will be retained and protected. Suitable conditions have been recommended in Schedule 1.

2.7 Contributions Plans

Hornsby Shire Council Section 7.12 Contributions Plan 2019-2029 states that section 7.12 contributions do not apply to “development that has been the subject of a condition requiring monetary contributions under a previous development consent relating to the subdivision of the land on which the development is to be carried out”. Section 7.12 contributions do not apply to this development as the subject site was the product of a recent subdivision (DA/1158/2020) whereby section 7.11 contributions were paid.

3. ENVIRONMENTAL IMPACTS

Section 4.15(1)(b) of the Act requires Council to consider “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”.

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

Some tree removal may be required in the southern corner of the site as part of this application. The submitted Landscape Plan indicates mass planting along the side boundaries with grasses and shrubs to help stabilise the embankment. This is supported by the structural engineer’s report which recommends “vegetation to minimise soil erosion on the slope”.

The existing street tree will be retained and protected. Four trees (3x rear setback and 1x front setback) are proposed to be planted across the site and are indicated on the landscape plan.

3.1.2 Stormwater Management

The application proposes to dispose of stormwater by connecting to the existing inter-allotment drainage system located at the rear of the site within a drainage easement. Roof water will be captured by rainwater/ OSD tanks. The application was referred to Council’s development engineer and no objection was raised. Appropriate conditions have been included in Schedule 1.

3.2 Built Environment

3.2.1 Built Form

The proposed built form non-compliances have been discussed in Sections 2.1 and 2.3 of this report. The proposal is considered appropriate with regard to the existing site constraints.

3.3 Social Impacts

The residential development would improve housing choice in the locality by providing a range of household types. This is consistent with Council’s Housing Strategy which identifies the need to provide a mix of housing options to meet future demographic needs in Hornsby Shire.

3.4 Economic Impacts

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 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 4 April 2023 and 18 April 2023 in accordance with the Hornsby Community Engagement Plan. During this period, Council received two submissions. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

Two submissions objected to the development. The key concerns were:

· Risk of landslides.

· Management of stormwater runoff.

· Potential damage to neighbouring properties through falling building material.

· Privacy.

· Construction noise.

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 Risk of landslides

The submissions raised concern regarding the risk of further landslides due to the extreme slope of the site. The applicant has submitted geotechnical and structural engineering assessments as part of this application to support the construction of the dwelling. Appropriate conditions have been included in Schedule 1. Further discussion addressing this concern can be found in Section 2.6.4 of this report.

5.1.2 Management of stormwater runoff

The submissions raised concern regarding the proper management of stormwater on the site. The applicant has provided a stormwater plan demonstrating connection to the existing inter-allotment drainage system at the rear of the site. The application was referred to Council’s engineers who raised no concerns subject to conditions included in Schedule 1. Further discussion addressing this concern can be found in Section 3.1.2 of this report.

5.1.3 Damage to neighbouring properties during construction

The submissions raised concern regarding a risk of damage to neighbouring properties during construction from falling materials. The applicant has provided an erosion and sediment control plan. A condition has also been included in Schedule 1 requiring a dilapidation report be prepared prior to the issue of a construction certificate, detailing the physical condition of the adjoining properties. The Home Building Act 1989 also requires a contract of insurance to be in force prior to the commencement of any work.

5.1.4 Privacy

The submissions raised concern regarding privacy impacts to neighbouring properties both during and post construction. Privacy impacts have been discussed in Section 2.6.3 of this report.

5.1.5 Construction noise

A submission raised concern regarding construction noise causing disturbance for working from home arrangements. Construction related noise must comply with the Protection of the Environmental Operations Act 1997. Additionally, as is standard for this type of development, construction work is limited to between 7am and 5pm Monday to Saturday. Recommended conditions of consent have been included in Schedule 1.

5.2 Public Agencies

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

6. THE PUBLIC INTEREST

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

The public interest is an overarching requirement, which includes the consideration of the matters discussed in this report. Implicit to the public interest is the achievement of future built outcomes adequately responding to and respecting the future desired outcomes expressed in environmental planning instruments and development control plans.

The application is considered to have satisfactorily addressed Council’s and relevant agencies’ criteria and would provide a development outcome that, on balance, would result in a positive impact for the community. Accordingly, it is considered that the approval of the proposed development would be in the public interest.

CONCLUSION

The application proposes construction of a new 2 storey dwelling, attached garage and associated landscaping and ancillary works.

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

Council received two 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 request under Clause 4.6 of Hornsby Local Environmental Plan 2013 to contravene the ‘Height of buildings’ development standard is well founded. Strict compliance with the development standard is considered unreasonable and unnecessary in the circumstances of the case and sufficient environmental planning grounds have been submitted to justify the contravention to the development standard.

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

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

Note: At the time of the completion of this planning report, no persons have made a Political Donations Disclosure Statement pursuant to Section 10.4 of the Environmental Planning and Assessment Act 1979 in respect of the subject planning application.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

Attachments:

1.⇩	Locality Plan
2.⇩	Clause 4.6
3.⇩	Architectural Plans
4.⇩	Landscape Plan
5.⇩	Shadow Diagrams
6.⇩	Stormwater Concept Plan

File Reference: DA/245/2023

Document Number: D08633135

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*
DA 002, Issue A	Site and Roof Plan	PNB Architecture	08.02.2023
DA 110, Issue A	Ground Floor Plan	PNB Architecture	08.02.2023
DA 111, Issue A	Lower Ground Floor	PNB Architecture	08.02.2023
DA 112, Issue A	Sub Floor Plan	PNB Architecture	08.02.2023
DA 200, Issue A	Eastern Elevation	PNB Architecture	08.02.2023
DA 201, Issue A	Northern Elevation	PNB Architecture	08.02.2023
DA 202, Issue A	Western Elevation	PNB Architecture	08.02.2023
DA 203, Issue A	Southern Elevation	PNB Architecture	08.02.2023
DA 300, Issue A	Sections	PNB Architecture	08.02.2023
2302-02, Issue A	Landscape DA Plan 1 of 2 Front Upper Garden	Paddock Studio	19.12.2022
2302-03, Issue A	Landscape DA Plan 2 of 2 Front Upper Garden	Paddock Studio	19.12.2022
2302-04, Issue A	Planting DA Plans	Paddock Studio	19.12.2022
2303-05, Issue A	Plant DA Schedule	Paddock Studio	19.12.2022

Supporting Documentation

*Document Title*	*Prepared by*	*Dated*	*Council Reference*
BASIX Certificate 1359004S_02	Brian Teplicanec Consultancy	11.05.2023	D08647944
Stormwater Management Plan CC220120, Issue B	ACOR Consultants Pty Ltd	13.01.2023	D08617835
Preliminary Geotechnical Assessment Ref: P1706233JR04V01	Martens Consulting Engineers	12.01.2023	D08617821
Structural Report No. 2022.37-R001 Rev B	Joshua Consulting Engineers Pty Ltd	25.10.2022	D08617834
Review of Preliminary Structural Design and Geotechnical Advice Ref: P1706233JC04V01	Martens Consulting Engineers	20.10.2022	D08617822
Waste Management Plan	PNB Architecture	6.01.2023	D08617832

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.

Reason: To ensure that detailed construction certificate plans are consistent with the approved plans and supporting documentation.

3. Removal of Trees

This development consent permits the removal of all trees on site.

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

Reason: To identify only those trees permitted to be removed.

4. 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.

Reason: To ensure the stability of the site and adjoining properties.

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.

Reason: Prescribed condition - EP&A Regulation section 69(1)

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.

Reason: Prescribed condition EP&A Regulation section 69(2)

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.

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.

Reason: Prescribed condition EP&A Regulation section 71(2) and (3)

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.

Reason: To ensure the development is provided with the relevant utility services.

9. Dilapidation Report

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 following properties:

i) Lot 13 DP 221625, No. 34 Mittabah Road Hornsby.

ii) Lot 14 DP 221625, No. 36 Mittabah Road Hornsby.

iii) Lot 1 DP 1275032, No. 43 Orana Avenue Hornsby.

iv) Lot 3 DP 1275032, No. 45 Orana Avenue Hornsby.

v) Council’s road reserve fronting the entire width of the subject site.

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.

Reason: To record the condition of adjoining properties and public land to resolve any dispute over damage from works.

10. Geotechnical Report Recommendations

All recommendations contained in the Preliminary Geotechnical Assessment Ref: P1706233JR04V01 prepared by Martens Consulting Engineers, dated 12 January 2023, the Structural Report No: 2022.37-R001 Rev. B, prepared by Joshua Consulting Engineers Pty Ltd., dated 25 October 2022 and the Review of Preliminary Structural Design and Geotechnical Advice Ref: P1706233JC04V01 prepared by Martens Consulting Engineers, dated 20 October 2022 shall be implemented prior to the issue of the Construction Certificate an during construction.

Reason: To protect the land from slippage.

11. 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) The overflow from the rainwater tank is connected to an existing inter-allotment drainage system.

b) Roof water must be connected to a rainwater tank having a minimum capacity of 5,000 litres - OSD tank (in addition to any BASIX requirements).

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

Reason: To ensure appropriate provision for management and disposal of stormwater.

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

Reason: To manage stormwater flows to minimise potential flooding.

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, AS2890.2, AS3727 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) The driveway grade must not exceed 25 percent and changes in grade must not exceed 8 percent.

d) The driveway pavement be a minimum 5.5 metres wide, 0.15 metres thick reinforced concrete with F72 steel reinforcing fabric and a 0.15 metre sub-base.

e) The existing driveway be removed and reinstated with kerb and gutter.

f) Retaining walls required to support the carriageway and the compaction of all fill batters to be in accordance with the requirements of a chartered structural engineer.

g) The provision of safety rails where there is a level difference more than 0.3 metres and a 1:4 batter cannot be achieved.

h) Longitudinal sections along both sides of the access driveway and garage floor shall be submitted to the principal certifying authority in accordance with the relevant sections of AS 2890.1. Any transition grades shall have a minimum length of 2 meters to prevent vehicles from scraping or bottoming at changes in grades.

The templates from AS 2890.1, Appendix C, Figure C1 shall be used to ensure adequate ground clearance for the B85 car at car parking spaces.

Reason: To provide safe vehicle and pedestrian access.

14. Appointment of a Project Arborist

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

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

Reason: To ensure appropriate monitoring of tree(s) to be retained.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

15. Erection of Construction Sign

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

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

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

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

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

Reason: Prescribed condition EP&A Regulation, section 70(2) and (3).

16. 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; and/or.

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.

Reason: To ensure public safety and protection of adjoining land.

17. Toilet Facilities

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

b) Each toilet must:

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

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

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

Reason: To ensure adequate toilet facilities are provided.

18. 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 ‘Urban Stormwater: Soils and Construction “The Blue Book” 2004 (4th edition), 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.

Reason: To minimise impacts on the water quality of the downstream environment.

19. Installation of Tree Protection Measures

a) The street tree to be retained as identified on approved Plan No. DA 002, Issue A Site and Roof Plan prepared by PNB Architecture, dated 8 February 2023 must have tree protection measures for the ground, trunk and canopy installed by the project arborist for the duration of construction works.

b) Tree protection fencing for the tree 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.

Reason: To protect trees to be retained.

REQUIREMENTS DURING CONSTRUCTION

20. Construction Work Hours

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

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

Reason: To protect the amenity of neighbouring properties.

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.

Reason: To minimise impacts to the natural environment and public health.

22. 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.

Reason: To protect public land.

23. 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.

Reason: To protect the natural features of the site.

24. 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.

Reason: To ensure buildings are positioned in the approved location and at the correct height.

25. Waste Management

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

Reason: To ensure the management of waste to protect the environment and local amenity during construction.

26. 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.

Reason: To protect trees during construction.

27. 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 tree to be retained on the approved plans.

Reason: To ensure appropriate monitoring of tree(s) to be retained.

28. Maintaining Tree Protection Measures

Tree Protection Measures must be maintained by the project arborist in accordance with Condition No. 19 and 26 of this consent for the duration of works.

Reason: To protect trees during construction.

29. 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.

Reason: To protect trees during construction.

30. 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.

Reason: To ensure the appropriate removal and disposal of contaminated materials.

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

31. Fulfilment of BASIX Commitments

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

Reason: Prescribed condition under section 75) EP&A Regulation)

32. 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.

Reason: To ensure public infrastructure and property is maintained.

33. 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 (Rain tank) systems and outlet works, within the lots in favour of the Council in accordance with the Council’s prescribed wording. The position of the on-site detention system is to be clearly indicated in the title.

b) To register the OSD easement, the restriction on the use of land “works-as-executed” details of the on-site detention (rain tank) 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.

c) The creation of a positive covenant over the construction and maintenance of a retaining wall along the front boundary for stabilising site slop by the owner in favor of the Council; and

d) To register the retaining wall easement, the restriction on the use of land “works-as-executed” details of the retaining wall system must be submitted verifying that the wall has been constructed in accordance with the design requirements. The details must show the retaining wall. Any variations to the approved plans must be shown in red on the “works-as-executed” plan and supported by calculations and certified by a qualified chartered structural engineer.

Note: Council must be nominated as the authority to release, vary or modify any easement, restriction or covenant.

Reason: To create legal entitlements to facilitate the proper use and management of land.

34. Final Certification

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

a) All tree protection requirements have been complied with for the duration of construction works.

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

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

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

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

Note: Copies of monitoring documentation may be requested throughout the development works.

Reason: To ensure compliance with tree protection commitments.

35. Landscaping of Site

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

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.

Reason: To enhance the environmental and visual qualities of the development.

36. Retaining Walls

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

Reason: To ensure the stability of the site and adjoining land.

37. Works as Executed Plan

A works-as-executed plan(s) must be prepared by a registered surveyor and submitted to Council for completed driveways and on-site detention system (Rain tank).

Reason: To ensure infrastructure is constructed and positioned in the approved location.

38. Land stability

Prior to the issue of an Occupation Certificate a Chartered Professional Engineer competent in geotechnics shall certify that the construction works have been constructed in accordance with a geotechnical report and include an evaluation of the completed works. A copy of the certificate shall be supplied to the Principal Certifying Authority. A copy shall be provided to Council if Council is not the Principal Certifying Authority.

Reason: To maintain land stability.

- 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

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 (LSC) at www.longservice.nsw.gov.au.

Note: The rate of the Long Service Levy is 0.25% of the total cost of the work (including GST).

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 three metres (3m). (HDCP 1B.6.1.c).

Covenants

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

Dial Before You Dig

Prior to commencing any works, the applicant is encouraged to contact Before You Dig Australia (BYDA) at www.byda.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.

Rain Water Tank

It is recommended that water collected within any rainwater tank as part of the development be limited to non-potable uses. NSW Health recommends that the use of rainwater tanks for drinking purposes not occur where a reticulated potable water supply is available.

LPP Report No. LPP4/23

Local Planning Panel

Date of Meeting: 28/06/2023

3 DA/38/2023 - SECOND FLOOR ADDITION AND INTERNAL ALTERATIONS TO A DWELLING - 66 CALABASH POINT, BEROWRA WATERS

DA No:	DA/38/2023 (Lodged on 11 January 2023)
Description:	Second Floor Addition and Internal Alterations to Dwelling
Property:	Lot 21 DP 499759, No. 66 Calabash Point, Berowra Waters
Applicant:	Mrs Jo-Anne Ellene Green
Owner:	Mrs Jo-Anne Ellene Green & Mr Richard Charles Green
Estimated Value:	$341,825
Ward:	A Ward
Zoning:	C4 Environmental living
Clause 4.6 Request:	Clause 4.3 Height of Buildings in the HLEP C4 Environmental Living zone
Submissions:	Nil
LPP Criteria:	Proposal contravenes a development standard by more than 10%
Author:	Tim Buwalda, Senior Town Planner
COI Declaration:	No Council staff involved in the assessment of this application have declared a Conflict of Interest.

RECOMMENDATION

THAT Development Application No. DA/38/2023 for a second floor addition and internal alterations to a dwelling at Lot 21 DP 499759, No. 66 Calabash Point, Berowra Waters be refused for the reasons detailed in Schedule 1 of LPP Report No. LPP4/23.

EXECUTIVE SUMMARY

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

· The proposal does not comply with the Clause 4.3 ‘Height of Buildings’ of the Hornsby Local Environmental Plan 2013. The applicant has made a submission in accordance with Clause 4.6 ‘Exceptions to development standards’ of the Hornsby Local Environmental Plan 2013 to contravene the 10.5m building height development standard. The submission is not considered well founded and is not supported.

· No submissions have been received in respect of the application.

· The application is required to be determined by the Hornsby Council Local Planning Panel as the application proposes a contravention of more than 10% to the building height development standard.

· It is recommended that the application be refused.

BACKGROUND

On 14 June 2012, Council approved DA/359/2012 for erection of alterations and additions to a dwelling-house, subject to conditions.

On 24 July 2012, Council approved DA/359/2012/A which deleted the requirement for a privacy screen on the ground level deck, subject to conditions.

On 23 October 2013, Council approved DA/359/2013/B to delete condition 19 which required an asset protection zone, subject to conditions.

On 27 February 2023, Council requested either amended plans to lower the building height and/or an amended Clause 4.6.

On 16 March 2023, Council received a written response form the owner justifying why the application should be supported by Council. This was not in the form of a Clause 4.6 and was not considered sufficient.

On 23 March 2023, Council repeated its previous request for either amended plans and/or an amended Clause 4.6 prepared by a suitably qualified planner.

On 20 April 2023, Council received an amended Clause 4.6 prepared by Urban Consultants which was not considered sufficient, and it was noted that there was insufficient justification on planning grounds and numerous errors including misidentification of the LEP and location of the dwelling.

On 8 May 2023, Council again repeated its request for additional information and advised that the application will be determined at the next LPP meeting.

On 23 May 2023, Council received an amended Clause 4.6 prepared by Urban Consultants which is subject to this assessment.

SITE

The 818.2m² is located on the southern bank of the Hawksbury/Nepean River and is accessed via water only. The site contains an existing pontoon, dwelling house and outbuilding.

The site experiences a fall of 38m to the front of the site.

The site is not burdened or benefited by any easements or restrictions.

The site is bushfire prone but not flood prone.

The site does not contain a heritage listed item and is not within a heritage conservation area.

The site is located within the vicinity of two heritage listed items, numbered A6 and A7, namely ‘Fire Trail’ and ‘Fretus Hotel ruins’ as listed in Schedule 5 Environmental heritage of the Hornsby Local Environmental Plan 2013.

The site is mapped as containing Terrestrial Biodiversity to the rear of the dwelling house.

PROPOSAL

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

· Reconfiguration and addition of the existing second floor level including reconstruction of the roof.

· Construction of a second-floor level deck.

· Reconfiguration of the existing spiral staircase to a conventional straight stairwell.

· Reconfiguration of internal walls and doors.

The ground floor level would comprise of an entryway, dining room, meals room, kitchen, bathroom and decks.

The first-floor level would comprise of a lounge room, balcony, bathroom, bedroom, internal stairwell, and veranda.

The second-floor level would comprise of three bedrooms, a walk-in wardrobe, laundry, en-suite and balcony.

No trees would be removed by the development.

ASSESSMENT

1. STRATEGIC CONTEXT

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

The proposed development would be consistent with the Greater Sydney Region Plan - A Metropolis of Three Cities and the North District Plan.

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 C4 Environmental Living under the HLEP. The objectives of the C4 Environmental Living zone are:

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

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

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

The proposed development is defined as a dwelling house and is permissible in the C4 zone with Council’s consent.

2.1.2 Height of Buildings

Clause 4.3 of the HLEP provides that the height of a building on any land should not exceed the maximum height shown for the land on the Height of Buildings Map. The maximum permissible height for the subject site is 10.5m. The proposal has a maximum height of 12.515m (19.1% contravention) and does not comply with this provision.

Figure 1: Section A-A detailing maximum building height of the proposed development

2.1.3 Exceptions to Development Standards

The proposal exceeds the height of buildings development standard by 19.1% (2.015m) representing a total building height of 12.515m which does not comply with the 10.5m development standard.

The applicant has made a submission in support of the contravention to the development standard in accordance with Clause 4.6 of the HLEP. It is noted that the submitted Clause 4.6 prepared by Urban Consultants incorrectly identifies the total building height to be 11.625m when the submitted architectural plans clearly identify the total building height to be 12.515m as shown in Section A-A (Figure 1).

Clause 4.6 provides that development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

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

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

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

· 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 Urban Consultants provides a detailed assessment of the proposal with respect to the development standard sought to be contravened. The request argues that:

· The 1.125m non-compliance is the direct result of the topography of the allotment, with a significant fall through the site it is difficult to site the proposed addition without a level of non-compliance to the height provisions.

· It is considered that some level of variation is anticipated on allotments such as the subject site where the allotment has a significant fall the allotment and the need to site the proposed works over existing ground floor walls for structural integrity.

· Further compliance with the requirements of the National Construction Code (NCC) which contains minimum ceiling levels for habitable and non-habitable area of dwellings which further impacts the potential for compliance with the height of buildings provisions. Thus, providing a compliant proposal with strict adherence with the height of buildings provisions whilst also complying with the NCC ceiling height requirements would render re-development of the existing dwelling unviable.

· During the design phase of the proposal consideration was given to alternate locations and designs elements for the development including a flat roof proposal however this style of addition is out of character for the area and is not considered suitable for the proposed addition.

· As such the proposed design incorporates a first floor addition and internal works designed to modernise the dwelling, increase its lifespan and enhance internal amenity whilst appear to be in keeping with the predominant development theme in the surrounding area.

· The required variation only relates to the northern upper most portion of the proposed addition and is limited to a small portion of the roof structure ass shown on Section A-A within the accompanying architectural plans.

· The variation will not detrimentally impact on the amenity of the adjoining properties given the articulated design, adequate side and rear setbacks and building separation

· Distances along with the orientation of the site which will allow for a reasonable level of solar access to living areas and private open space areas of the adjoining properties.

· The windows proposed to the upper floor bedrooms are not likely to provide opportunities for overlooking as they are appropriately designed, setback and offset from neighbouring dwellings. The shadows cast by the proposed development will not have an overall negative impact upon the adjoining properties, whilst there is still some overshadowing, the POS of the adjoining property will have a reasonable Level of solar access throughout the day due to the orientation of the allotments where north is to the waterway and POS areas are predominantly orientated towards this aspect and subsequent views.

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 objects to the conclusion that the proposed additions meet the objectives of Clause 4.3. In reaching this conclusion the following points are noted:

· It is considered that the proposed development would be contrary to the objectives of Clause 4.6 of the HLEP as there are insufficient environmental planning grounds to justify contravening the development standard and the proposal is not in the public interest.

· Approval of the development would result in an undesirable precedent for similar development within the River Settlement areas of the Shire.

· The submitted Clause 4.6 fails to correctly identify the proposed variation to the ‘Height of Buildings’ Development standard. The Clause 4.6 requests proposes a variation of 11.615m (10.7%) when the submitted Architectural plans identify the total building height to be 12.515m (19.1%) as shown in Section A-A.

· The proposed contravention to the development standard is not consistent with the findings of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118. The submitted Clause 4.6 request does not adequately address how the development standard is unreasonable or unnecessary in this instance.

For the reasons outlined above, it is considered that the written request to contravene the height of building standard does not adequately demonstrate that the objectives of the Height of Buildings development standard contained within Clause 4.3 of the HLEP are achieved.

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

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

· The increase to the overall building height is considered to have minimal impact on the overall development in terms of bulk and scale appearance, due to the maximum building height positioned to the centre of the dwelling which has limited visibility from the surrounding developments and waterways.

· The proposed development is not considered to be excessive in size, having been designed to include extensive articulation, increased setbacks from existing building lines and the retention of suitable existing landscaping that follows the topography of the allotment and softens the visual bulk of the development.

· The proposed development is in keeping with surrounding historical developments in an area where the overall height control appears to have been virtually abandoned due to the topography of the allotments. Further the proposed development provides a suitably sized dwelling in keeping with developments of the surrounding area.

· The proposed alterations and additions are considered to be a reasonable development for the site as three storey dwellings are considered to be a suitable use of the land is areas where the building footprint is restricted due to site constraints.

· The variation directly relates to the topography of the land and due to historical development on the allotment.

· Reducing the overall building height of the dwelling is not considered feasible as the reduction in height would detrimentally impact the amenity of the development through reducing ceilings heights that have been minimised as much as possible to provide compliance with the NCC requirements whilst taking into consideration the existing dwelling and its structural integrity.

Council considers that the environmental planning grounds stated within the written request are insufficient with respect to Clause 4.6(3)(b). It is therefore considered that the written request does not adequately demonstrate compliance with the clause and is not acceptable in this regard.

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

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

With regard to (a)(i), the written request is not considered to adequately address the matter required to be demonstrated as outlined above.

With regard to (a)(ii), the proposed development is not 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.

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

· The variation is to a non-numerical standard.

Therefore, the exceedance of the Height of Buildings development standard is not supported in this instance.

2.1.4 Floor Space Ratio

The objective of Clause 4.4 of the HLEP is to permit development of a bulk and scale that is appropriate for the site constraints, development potential and infrastructure capacity of the locality.

To achieve this, the maximum floor space ratio (FSR) for a building on any land is not to exceed the FSR shown for the land on the Floor Space Ratio Map. The subject site is mapped as having a maximum FSR of 0.3:1.

The subject site has an area of 818.2m². The existing dwelling house has a floor area of 205.4m² representing a FSR of 0.25:1. The application proposes to increase the floor area by 28.8m² which would increase the FSR to 0.286:1 which would comply with the FSR development standard.

2.1.5 Heritage Conservation

Clause 5.10 of the HLEP sets out heritage conservation provisions for Hornsby Shire.

The site is located within the vicinity of two heritage listed items numbered A6 and A7, namely ‘Fire Trail’ and ‘Fretus Hotel ruins’ located approximately 60 metres from the proposed development.

Council’s heritage assessment noted that the proposed development is separated from the heritage listed item by the existing cliff face directly behind the existing dwelling house. Furthermore, the 60m separation from the proposed development and heritage listed item would mitigate any impacts to the heritage listed items.

Therefore, the proposed development meets the objectives of Clause 5.10 of the HLEP and is considered acceptable in this regard.

2.1.6 Terrestrial Biodiversity

A portion of the site to the rear of the dwelling house has been identified as an area of terrestrial biodiversity. This area corresponds with the part of the site which hosts Rough-barked Apple Forest Oak Forest. As a consequence, assessment of the application against Clause 6.4 Terrestrial Biodiversity of the HLEP is required.

The objective of this clause is to maintain terrestrial biodiversity by:

a) Protecting native fauna and flora, and

b) Protecting the ecological processes necessary for their continued existence, and

c) Encouraging the conservation and recovery of native fauna and flora and their habitats.

The application proposes alterations and additions to a dwelling house within the existing built form. The mapped Terrestrial Biodiversity is separated from the proposed development by the existing cliff to the rear of the dwelling house. No trees would be impacted by the development.

It is generally considered that the proposed development would not impact the Terrestrial Biodiversity and is considered acceptable.

2.1.7 Acid Sulfate Soils

The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

The site is identified as containing Class 5 Acid Sulfate Soils (ASS) as identified in the HLEP.

Council’s assessment of the application has determined that the proposal does not require any excavation and therefore the development would not impact any potential Acid Sulfate Soils.

2.1.8 Earthworks

Council’s assessment of the proposed works and excavation concludes that the application does not require any earthworks for the proposed second floor alterations and additions.

2.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021

The application has been assessed against the requirements of chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021.

2.2.1 Chapter 6 Water Catchments

The application has been assessed against the requirements of Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). This chapter aims to protect the environment of the Hawkesbury Nepean River system by ensuring that the impacts of future land uses are considered in a regional context.

Division 2 ‘Controls on Development Generally’ within Chapter 6 Water Catchments of the Biodiversity SEPP outlines specific planning policies and recommended strategies. The relevant policies applicable to this application are discussed below:

2.2.1.1 Water quality and quantity

1. In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider the following:

a) Whether the development will have a neutral or beneficial effect on the quality of water entering a waterway.

b) The development will have an adverse impact on water flow in a natural waterbody.

c) Whether the development will increase the amount of stormwater run-off from a site.

d) Whether the development will incorporate on-site stormwater retention, infiltration or reuse.

e) The impact of the development on the level and quality of the water table.

f) The cumulative environmental impact of the development on the regulated catchment.

g) Whether the development makes adequate provision to protect the quality and quantity of ground water.

2. Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied the development ensures—

a) The effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial.

b) The impact on water flow in a natural waterbody will be minimised.

The proposal is for alterations and additions above an existing dwelling house. No excavation is proposed as part of this development and the development would not increase the amount of stormwater run-off from the property. It is generally considered that the proposed development would not impact the water flow of the Hawkesbury Nepean River system.

2.2.1.2 Aquatic ecology

1. In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider the following:

a) Whether the development will have a direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation.

b) Whether the development involves the clearing of riparian vegetation and, if so, whether the development will require:

(i) A controlled activity approval under the Water Management Act 2000.

(ii) A permit under the Fisheries Management Act 1994.

c) Whether the development will minimise or avoid:

(i) The erosion of land abutting a natural waterbody.

(ii) The sedimentation of a natural waterbody.

d) Whether the development will have an adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area.

e) Whether the development includes adequate safeguards and rehabilitation measures to protect aquatic ecology.

f) If the development site adjoins a natural waterbody—whether additional measures are required to ensure a neutral or beneficial effect on the water quality of the waterbody.

2. Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied the development ensures:

a) The direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development.

b) The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves.

c) If a controlled activity approval under the Water Management Act 2000 or a permit under the Fisheries Management Act 1994 is required in relation to the clearing of riparian vegetation—the approval or permit has been obtained.

d) The erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised.

e) The adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised.

The proposal does not require any excavation of the seabed or removal of vegetation. The proposed development would not impact the aquatic ecology.

2.2.1.3 Flooding

1. In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider the likely impact of the development on periodic flooding that benefits wetlands and other riverine ecosystems.

2. Development consent must not be granted to development on flood liable land in a regulated catchment unless the consent authority is satisfied the development will not—

a) If there is a flood, result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody, or

b) Have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

The application proposes alterations and additions to a dwelling house, it is generally considered that in the event of a flood, no pollutants would be dispersed into the waterways that would have an adverse effect on the water quality. Furthermore, the development would not have an adverse impact on the recession of flood waters or wetlands.

2.2.1.4 Recreation and public access

1. In deciding whether to grant development consent to development on land in a regulated catchment, the consent authority must consider:

a) The likely impact of the development on recreational land uses in the regulated catchment, and

b) Whether the development will maintain or improve public access to and around foreshores without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation.

2. Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied of the following:

a) The development will maintain or improve public access to and from natural waterbodies for recreational purposes, including fishing, swimming and boating, without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation.

a) New or existing points of public access between natural waterbodies and the site of the development will be stable and safe

b) If land forming part of the foreshore of a natural waterbody will be made available for public access as a result of the development but is not in public ownership—public access to and use of the land will be safeguarded.

The site is does not contain any public land and is not adjacent to public land and therefore would not impact the public accessibility.

Therefore, it is generally considered that the proposed development meets the objectives of Chapter 6 of the Biodiversity and Conservation SEPP.

2.3 State Environmental Planning Policy (Resilience and Hazards) 2021

The application has been assessed against the requirements of Chapters 2 and 4 of State Environmental Planning Policy (Resilience and Hazards) 2021.

2.3.1 Chapter 2 Coastal Management

The application has been assessed against the requirements of the Chapter 2 Coastal management of the Resilience and Hazards SEPP. This policy seeks to manage development in the coastal zone and protect the environmental assets of the coast.

The site is mapped as being located within the Coastal Use Area. Clause 2.11(1) of the Resilience and Hazards SEPP states that development consent must not be granted for development within the Coastal Use Area unless Council is satisfied that the proposed development does not impact the following:

· Existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability.

· Overshadowing, wind funnelling and the loss of views from public places to foreshores.

· The visual amenity and scenic qualities of the coast, including coastal headlands.

· Aboriginal cultural heritage, practices and places.

· Cultural and built environment heritage.

Clause 2.11(b) requires Council to be satisfied that:

· The development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a).

· If that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact.

· If that impact cannot be minimised—the development will be managed to mitigate that impact.

· Has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

The application proposes the alterations and additions to a dwelling house within the Coastal Use Area; however, it is noted that the proposed additions would be located within the building footprint of the existing dwelling house.

The development would not alter the existing access to the site or create any overshadowing or wind funnelling or loss of views from public places.

The proposed development would be located on a flat well-established area of the site which would have minimal environmental, or amenity impacts to the subject site and adjoining properties.

Council’s assessment notes that the application has been designed to be located within this well-established developable area of the site which would limit the environmental impact.

Subsequently, the proposed development would have negligible environmental impacts on the coastal area and is considered acceptable under the provisions of the Resilience and Hazards SEPP.

2.3.2 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 and commercial purposes. It is not likely that the site has experienced any significant contamination, and further assessment under chapter 4 of the Resilience and Hazards SEPP is not required.

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

2.5 Hornsby Development Control Plan 2013

HDCP - Part 8.1 River Settlements
Control	Proposal	Requirement	Complies
Site Area	818.2m²	N/A	N/A
Building Height	12.515m	10.5m	No
No. storeys	3	max. 2	No
Site Coverage	33% (existing)	50%	Yes
Gross Floor Area	234.2m²	180m²	No
Floor Space Ratio	0.286:1	0.3:1	Yes
Setbacks
- Front (north)	Existing	On merit	Yes
- Side (east)	1.3m	2m	No
- Side (west)	existing	2m	Yes
- Rear (south)	27m	8m	Yes
Private Open Space
- Minimum area	65m²	24m²	Yes
- Minimum dimension	4m	3m	Yes

2.5.1 Scale

The desired outcome of Part 8.1.2 of the HDCP is to encourage “Development with a height, bulk and scale that protects and maintains the environmental and scenic qualities of the area.”

This is supported by the prescriptive measures for height, floor area and site coverage to regulate the scale of the development.

2.5.1.1 Floor Area

The prescriptive measures set out in Part 8.1.2(c) and (h) of the HDCP states that dwelling houses should have a maximum floor area of 180m².

The application proposes a total floor area of 221m² which does not comply with the 180m² prescriptive measure.

In assessing the amenity impacts of the non-compliant 41m², it is noted that the proposed additions would be located entirely within the existing building footprint. Furthermore, it would be considered a better environmental outcome to utilise the existing subfloor area to infill the development as opposed to enlarging the building footprint. It is generally considered that the proposed alterations and additions would have negligible environmental or amenity impact to adjoining properties in regard to privacy and views as discussed within the body of this report.

It is also noted that the application complies with the 0.3:1 FSR as discussed in Section 6.1.1 of this report and the site coverage requirements as noted within the above table.

2.5.1.2 Height/ No. of Storeys

Table 8.1.2(a): Translation of Height to Storeys of the HDCP prescribes a maximum number of 2 storeys for dwelling houses and a maximum building height of 10.5 metres.

The application proposes alterations and additions to a dwelling house in the form of redesigning the second-floor level. The existing dwelling house is 3 storeys in height and the proposed development would maintain the existing three storey scale.

However, as discussed in Section 2.1.3 of this report, objections are raised to increasing the height of the building.

It is noted that the adjoining dwelling house No. 65 Calabash Point is a four-storey dwelling while maintaining a lower building height due to the flat roof design. It is generally considered that a flat roof design would minimise the overall height of the structure and reduce the bulk and scale of the development.

The development does not meet the desired outcome of Part 8.1.2 Scale of the HDCP and is not considered acceptable.

2.5.2 Setbacks

The prescriptive measures of Part 8.1.3 Setbacks of the HDCP requires a 2 metre side boundary setback.

The application proposes a 1.3 metre eastern side boundary setback for the proposed alterations and additions to the dwelling house which does not comply with the 2-metre prescriptive measure.

In assessing the eastern side boundary non-compliance, it is considered that strict compliance with the prescriptive measures would not be reasonable due to the minor nature of the encroachment which maintains the setback of the existing dwelling.

It is generally considered that that the 0.7m encroachment would have negligible amenity impacts to adjoining property No. 65 Calabash Point as the development would be maintaining the existing well established side boundary setback of the existing dwelling house. Furthermore, as discussed in Section 2.5.4 of this report, the proposed second floor level balcony, if approved would be required to have a 1.7m high privacy screen to further mitigate the amenity impacts to adjoining property No. 65 Calabash Point.

Therefore, it is generally considered that the proposed 0.7m encroachment would have negligible environment and amenity impacts to the adjoining property and is considered acceptable.

The application meets the desired outcomes of Part 8.1.3 Setbacks of the HDCP and is considered acceptable.

2.5.3 Sunlight Access

The desired outcome of Part 8.1.6 Sunlight Access of the HDCP is to encourage “development designed to provide solar access to open space areas.”

This is supported by the prescriptive measures which require 50% of the private open space of the subject site and adjoining properties should receive 3 hours of unobstructed solar access between 9am and 3pm on 22 June.

An assessment of the shadow diagrams provided by the applicant illustrate that the subject site and the southern adjacent neighbour, No. 67 Calabash Point, would continue to receive at least 3 hours of unobstructed sunlight access to 50 per cent of their private open space between 9am and 3pm on 22 June.

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

2.5.4 Privacy and Views

The desired outcomes of Part 8.1.7 Privacy and Views of the HDCP are to encourage “development designed to provide privacy to adjacent residential properties”

The prescriptive measure states that “decks and the like that need to be located more than 600mm should not face another window of a habitable room or private open space of another dwelling located within 9 metres unless appropriately screened”.

The application proposes a second-floor deck elevated 8.75m above the existing ground level which would allow overlooking to the deck and private open space of the adjoining property at No. 65 Calabash Point.

It is noted that if Council were of a mind to approve the development, a condition would be imposed requiring a 1.7m high privacy screen along the eastern elevation of the proposed second floor deck to minimise the privacy impacts to the adjoining property.

No objections are raised to the existing decks which would not be altered by this development.

The proposal meets the desired outcomes of Part 8.1.7 Privacy and Views of the HDCP and is considered acceptable, subject to conditions.

2.5.5 Effluent Disposal

The desired outcome of Part 1C.2.4 Effluent Disposal of the HDCP is to encourage that “sewage is disposed of in a manner that minimises impacts on the natural and built environment and public health.”

This is supported by the prescriptive measure which states that “areas that are not serviced by the Sydney Water reticulated sewerage system are required to dispose of wastewater using an NSW Health Department accredited Sewage Management Facility.”

The site is not served by the sewers of Sydney Water and all household waste is collected and treated on site. The proposed development would not impact the existing system on the subject site.

It is generally considered that if the application were to be approved, the existing system would be capable of disposing of the additional wastewater generated by the development and appropriate conditions would be imposed.

The proposal meets the desired outcome of Part 1C.2.4 Effluent Disposal of the HDCP and is considered acceptable.

2.5.6 Waste Management

The site is a waterfront access only property.

It is noted that if Council were of a mind to approve the development, an appropriate condition requiring a construction management plan would be required to be submitted to Council prior to the issue of the Construction Certificate.

2.6 Contributions Plans

Hornsby Shire Council Section 7.12 Contributions Plan 2019-2029 applies to the development as the estimated costs of works is greater than $100,000. Should the application be approved, an appropriate condition of consent is recommended requiring the payment of a contribution in accordance with the Plan.

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

No trees would be removed or impacted by the development.

3.1.2 Stormwater Management

The application proposes all stormwater be directed to the existing internal stormwater drainage system which drains to the Hawksbury River.

No objections are raised to the proposed alterations and additions connecting to the existing system.

3.2 Built Environment

3.2.1 Built Form

The application proposes alterations and additions to a dwelling house resulting in a building height of 12.515m (19.1% contravention of the 10.5m building height development standard) which is not supported. It is generally considered that the proposed development can be redesigned to lower the building height to reduce the bulk and scale of the development.

3.2.2 Traffic

The site is only accessible from the existing pontoon within the Hawksbury River. The proposal does not propose to alter the existing access to the site.

3.3 Social Impacts

3.4 Economic Impacts

4. SITE SUITABILITY

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

4.1 Bushfire Risk

The application has provided a Bushfire Assessment Report prepared by Building Code & Bushfire Hazard Solutions dated 22 December 2022.

The Bushfire Hazard Assessment Report recommended that any development on the site be built to the requirements of Australian Standard AS3959-2018 Construction of buildings in bushfire-prone areas in accordance with the requirements for Bushfire Attack Level (BAL) 40 and the relevant sections of Planning for Bushfire Protection 2019.

The report also recommended an Asset Protection Zone (APZ) of 16 metres to the south of the proposed development and to the property boundary in all other directions. The report states that no trees are required to the removed to establish the required APZ.

In accordance with Council’s assessment protocol for development in BAL-40, the application was referred to the NSW Rural Fire Service (RFS) for concurrence. The NSW RFS raised no objections to the proposal subject to conditions.

Should the application be approved, the conditions recommended by the RFS would be imposed.

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 January 2023 and 7 February 2023 in accordance with the Hornsby Community Engagement Plan. During this period, Council did not receive any submissions. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

5.2 Public Agencies

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

5.2.1 Rural Fire Service

As discussed in Section 4.1, the development application was referred to NSW Rural Fire Service for concurrence and no objections were raised to the proposed development subject to the recommendations which would be imposed if Council were of the mind to approve the development.

6. THE PUBLIC INTEREST

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

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

CONCLUSION

The application proposes alteration and additions to a dwelling house.

The development does not meet the desired outcomes of Council’s planning controls and is not satisfactory having regard to the matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979.

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

The reasons for this decision are:

· The request under Clause 4.6 of Hornsby Local Environmental Plan 2013 to contravene the ‘Height of Buildings’ development standard is not well founded. Strict compliance with the development standard is considered reasonable and necessary in the circumstances of the case and insufficient environmental planning grounds have been submitted to justify the contravention to the development standard.

· The proposed development does not comply with the requirements of the relevant environmental planning instruments and the Hornsby Development Control Plan 2013.

· The proposed development creates an unreasonable environmental impact to adjoining development with regard to visual bulk and scale.

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

Attachments:

1.⇩	Locality Plan
2.⇩	Clause 4.6
3.⇩	Architectural Plans

File Reference: DA/38/2023

Document Number: D08584787

SCHEDULE 1

1. The proposed development is unsatisfactory in respect to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 with regard to the Hornsby Local Environmental Plan 2013 as follows:

1.1 The proposal would result in a non-compliant building height and is unacceptable with respect to Clause 4.3 ‘Height of Buildings’ of the Hornsby Local Environmental Plan 2013.

1.2 The proposal is unacceptable with regard to Clause 4.6 ‘Exceptions to development standards’ of the Hornsby Local Environmental Plan 2013 as the submitted justification to contravene the ‘Height of Buildings’ development standard is not well founded.

1.3 The submitted Clause 4.6 fails to accurately identify the variation to the Height of Buildings’ development standard.

2. Pursuant to Section 4.15(1)(a)(iii) of the Environmental Planning and Assessment Act 1979, the proposal does not comply with the desired outcomes and the prescriptive measures under the Hornsby Development Control Plan 2013:

2.1 The proposal does not comply with Part 8.1.2 Scale of the Hornsby Development Control Plan 2013 which encourages development that is compatible with the water scenic area. The proposed dwelling house would have a bulk and scale that would not be compatible with the river settlement characteristics of the locality.

3. Pursuant to the provisions of Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979, the development would not be in the public interest as the proposal would create an undesirable precedence for further inappropriate development.

LPP Report No. LPP20/23

Local Planning Panel

Date of Meeting: 28/06/2023

4 DA/1170/2022 - CONSTRUCTION OF A DWELLING HOUSE - 33 EVANS ROAD, HORNSBY HEIGHTS

DA No:	DA/1170/2022 (Lodged on 4 November 2022)
Description:	Construction of a dwelling house
Property:	Lot 42, DP 236494, No. 33 Evans Road, Hornsby Heights
Applicant:	Wojciech Bartosz Trzebiatowski
Owner:	Wojciech Bartosz Trzebiatowski & Ms Anna Pawlak
Estimated Value:	$788,410.00
Ward:	A Ward
Clause 4.6 Request:	Clause 4.3 Height of Buildings in the HLEP R2 Low density residential zone
Submissions:	Five
LPP Criteria:	Proposal contravenes a development standard by more than 10%
Author:	Tim Buwalda, Senior Town Planner
COI Declaration:	No Council staff involved in the assessment of this application have declared a Conflict of Interest.

RECOMMENDATION

THAT Council 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/1170/2022 for the construction of a dwelling house at Lot 42 DP 236494, No. 33 Evans Road, Hornsby Heights subject to the conditions of consent detailed in Schedule 1 of LPP Report No. LPP20/23.

executive summary

· The application involves the construction of a dwelling house.

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

· A total of 5 submissions have been received in respect of the application.

· The application is required to be determined by the Hornsby Council Local Planning Panel as it proposes a variation to the Height of Buildings development standard by more than 10%.

· It is recommended that the application be approved.

BACKGROUND

On 28 August 2015, Council provided pre-lodgement advice PL/83/2015 for the construction of a dwelling house.

On 21 July 2021, Council provided pre-lodgement advice PL/50/2021 for the construction of a dwelling house. The plans provided in this pre-lodgement are consistent with the plans submitted with this application.

On 4 November 2022, DA/1170/2022 was lodged for construction of a dwelling house.

On 6 December 2022, Council requested amended plans to address privacy, revised geotechnical report, survey plan, amended AIA to address APZ requirements and a stormwater plan.

On 23 February 2023, Council received a survey plan and an amended section to show the privacy impacts.

On 17 March 2023, Council received an amended AIA report which addressed the APZ requirements.

On 28 March 2023, Council held a meeting with the applicant to discuss the outstanding issues.

On 29 March 2023, Council requested amended plans to address privacy and setbacks, an amended geotechnical report, stormwater plan and waste management plan.

On 27 April 2023, Council received an amended stormwater plan, geotechnical report and amended waste management plan. Sight lines were also provided by the applicant. These amended plans and documentation are the subject of this assessment.

SITE

The 743.5m² lot was registered in 1968 and is a vacant site located on the northern side of Evans Road, Hornsby Heights and experiences a fall of 18 metres to the rear northern eastern boundary.

The subject site is currently not accessed by Evans Road as the end of the constructed portion of the road does not extend to the subject site’s front boundary.

The site is bushfire prone but not flood prone.

The site and adjoining land contain native species characteristic of the Peppermint-Angophora Forest community. The site also contains several natural features including rock outcrops.

The site does not contain a heritage listed item, is not within the vicinity of a heritage listed item and is not within a heritage conservation area.

PROPOSAL

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

The lower floor level would comprise of a home cinema/third bedroom, internal stairwell, bathroom, a home office/fourth bedroom and balcony. An understorey area below the carport would also be located on this level externally accessed.

The upper floor plan would comprise of a double carport, bin storage area, two bathrooms, two bedrooms, a kitchen, dining room, living room and balcony.

The roof would comprise of a green roof and solar panels accessed via an external stairwell that connects to the upper floor level balcony.

The extension of an unformed roadway and driveway is required to provide vehicle access to Evans Road.

Thirty-five trees would be removed as part of this development.

ASSESSMENT

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

1. STRATEGIC CONTEXT

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

2. STATUTORY CONTROLS

2.1 Hornsby Local Environmental Plan 2013

The proposed development has been assessed having regard to the provisions of the Hornsby Local Environmental Plan 2013 (HLEP).

2.1.1 Zoning of Land and Permissibility

The subject land is zoned R2 Low density residential under the HLEP. The objectives of the R2 Low density residential zone are:

· To provide for the housing needs of the community within a low density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

The proposed development is defined as a dwelling house and is permissible in the R2 zone with Council’s consent.

2.1.2 Height of Buildings

Clause 4.3 of the HLEP provides that the height of a building on any land should not exceed the maximum height shown for the land on the Height of Buildings Map. The maximum permissible height for the subject site is 8.5m. The proposal has a maximum height of 13.9m and does not comply with this provision.

2.1.3 Exceptions to Development Standards

The proposal contravenes the height of buildings development standard by 63.5% (5.4m) representing a total building height of 13.9m which does not comply with the 8.5m development standard.

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

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

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

In relation to determining the matter under Clause 4.6(3)(a), the unreasonable or unnecessary clause, the consent authority must be satisfied that the applicant’s written request adequately addresses the matter as opposed to of making its own judgement regarding whether compliance is unreasonable or unnecessary. Additionally, the clause does not require that a non-compliant development should have a neutral or beneficial effect relative to a compliant development.

In relation to determining the matter under Clause 4.6(3)(b), the environmental planning grounds clause, non-compliant development is not required to result in a ‘better environmental planning outcome for the site’ relative to a compliant development. Instead, the requirement is only that there are sufficient environmental planning grounds to justify the development standard contravention.

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

· 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 Lockrey Planning and Development Solutions, dated 10 October 2022 provides a detailed assessment of the proposal with respect to the development standard sought to be contravened. The request argues that:

· The proposed departure to the height standard and the development generally are not inconsistent with the relevant objectives of the standard because they do not materially alter the existing correlation between building height and density, and the correlation is appropriate under the circumstances. Nor do they alter the buildings' compatibility with the bulk, scale, streetscape or desired future character of the locality, and that compatibility is appropriate under the circumstances given the overall lack of adverse impacts to neighbouring properties and the surrounding public domain.

· The dwelling presents as a visible single storey built form to its Evans Road frontage. Its height and presentation at this frontage complies with the standard. Therefore, the built form when viewed from the surrounding public domain is consistent with that envisaged (desired) by the planning controls. It establishes the desired character. Only two levels of habitable accommodation are proposed. A modest built form is proposed on a site that is unquestionably subject to severe topographical constraints.

· Compliance has been maintained with the complementary development guidelines within DCP 2013 in relation to floor area, site coverage, building footprint and landscaped area. The built form is therefore largely anticipated by the relevant planning controls.

· The surrounding locality area is characterised by hillside development (steep topographical characteristics) and leafy streetscapes set in a generally consistent subdivision pattern. Dwellings on both sides of Evans Road within the site's visual catchment are predominantly two storeys and elevated. The visible single storey and height compliant built form a presented to Evans Road is clearly compatible with the built form character within the site's visual catchment. The departure to the standard is at the site's rear where it falls sharply off the cliff, an inevitable outcome. This part of the site is not readily visible from the Evans Road public domain. It has a negligible impact relative to bulk and scale and furthermore has no identifiable impact relative to the environmental amenity of neighbours.

· Following a rigorous merit assessment, approval of a maximum building height that relates to the desired future character for the locality as expressed in LEP 2013 but which exceeds the LEP 2013 height standard because of site specific environmental constraints (topography, vegetation and rocky outcrops), will not set a precedent for other non-conforming applications.

· Within its locational context, the site can accommodate the built form as proposed and the development is of an intensity and scale commensurate or not incompatible with the built form character and the prevailing urban conditions and capacity of the locality, including neighbouring properties.

· The height of the building does not preclude (and hasn't done so in the past) redevelopment of neighbouring or nearby properties.

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.”

· The proposal is consistent with the objectives of the height standard which are to manage form and scale and to protect amenity and area character.

· The site is significantly constrained by the topography of the site, and this is the only reasonable location for a dwelling on the site.

· The proposed dwelling would maintain the visual appearance of a compliant one storey structure when viewed from Evans Road.

· The proposed addition would not create any adverse amenity impacts to adjoining properties in regard to sunlight access or privacy as discussed below in the body of this report.

· The proposed dwelling house is of appropriate scale with regard to floor area and site coverage and is not an overdevelopment of the site.

· The application provides for the orderly and economic development of land, improvement of living conditions of the existing low-density residence and adequate protection of the environment and public interest.

· The proposed contravention to the development standard is consistent with the findings of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118. The submitted Clause 4.6 request adequately addresses how the development standard is unreasonable or unnecessary in this instance.

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

For the reasons outlined above, it is considered that the written request to contravene the height of building standard adequately demonstrates that the objectives of the Height of Buildings development standard contained within Clause 4.3 of the HLEP are achieved, notwithstanding non-compliance with the standard.

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

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

· The departure to the standard is a direct function of the site's moderate to steeply northeast slope. It is located mid-slope on the northeast face of a steep sided ridge line, effectively a cliff. The dwelling's location has clearly been influenced by these topographical and additional vegetative constraints. It is in the 'most level' of the site, however, this still requires the main structure to be largely suspended via piers and vertical poles (as acknowledged by Council). All footings for the structure will bear onto sandstone bedrock. These elements at the rear are not visible from the public domain and do not unreasonably add to the built form's perceived height, bulk and scale, nor its environmental impacts.

· The dwelling presents as a visible single storey built form to its Evans Road frontage. Its height and presentation at this frontage complies with the standard. Therefore, the built form when viewed from the surrounding public domain is consistent with that envisaged (desired) by the planning controls. It establishes the desired character. Only two levels of habitable accommodation are proposed. A modest built form is proposed on a site that is unquestionably subject to severe topographical constraints.

· An architecturally designed single dwelling house within a largely unaltered bushland / garden setting on an existing single low density residential allotment of land is proposed. This low density built form and land use is desired by the site's and surrounding locality's R2 Low Density Residential zoning. Unquestionably a human scale is maintained relative to the established built form character on both sides of Evans Road.

· The proposed departure to the height standard has been arranged considering the site's cliff like topographical constraints, existing vegetation, rocky outcrops / boulders and the neighbour's context. In this regard and as demonstrated by the DCP 2013 assessment at Table 4 of the separately submitted SEE, the proposal preserves environmental amenity in relation to:

o Solar access and overshadowing.

o Access to natural daylight and ventilation.

o Aural and visual privacy.

o Views and vistas from neighbouring and nearby properties and the public domain.

o Visual impact and massing; and

o Parking or traffic generation.

· The development provides for an appropriate environmental planning outcome and is not an overdevelopment of the site as follows:

o The proposal satisfies the objectives of the R2 Low Density Residential zone.

o The proposal satisfies the stated objective of the height standard.

o Compliance has been maintained with the complementary development guidelines within DCP 2013 in relation to floor area, site coverage, building footprint and landscaped area. The built form is therefore largely anticipated by the relevant planning controls.

o The site is proportioned to allow the efficient realisation and internalisation of the impacts of the proposed built form without an adverse visual impact or perceived built form dominance.

o The nature of such an urban environment is that all future development will seek to maximise amenity and density through design. In this regard, the proposal represents an appropriate planning outcome with any unreasonable environmental impacts; and

o Removing the non-compliance would preclude any reasonable built form on the site and would be clearly inconsistent with the objects of the Act.

In demonstrating the unreasonable and unnecessary test, the applicant further established satisfactory environmental planning grounds with respect to the site and the surrounding constraints.

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

(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.

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

· The variation is to a non-numerical standard.

Therefore, the exceedance of the Height of Buildings development standard is supported in this instance.

2.1.4 Heritage Conservation

2.1.5 Earthworks

Submissions have been received raising concern to the proposed earthworks and the stability of the land and potential impacts to adjoining properties.

The application included a Geotechnical Report prepared by Crozier Geotechnical Consultants dated 13 April 2022 which assessed the subject site and identified five boulders (B1 to B5 inclusively). The report proposes that these boulders should be either stabilised or removed and that this would be decided during the construction of the dwelling house.

Council requested an amended Geotechnical Report to assess the existing site having regard to the proposed dwelling house design and to provide a detailed discussion and recommendations for each boulder identified (B1 to B5).

The applicant provided an amended Geotechnical Report prepared by Crozier Geotechnical Consultants dated 20 April 2023. This report proposes the following with respect to each boulder:

· Boulder B1: Boulder B1 (shown below) requires stabilizing or removal. Stabilizing has been determined as best implemented through removal of all loose soils, rocks at its front eastern side and installation of a shotcrete underpinning/stabilising along its base. Subsequent to that 2 rock bolts, 25mm diameter, end anchored but fully grouted, galvanised should be installed, approximate length 5.0m, to bolt the boulder to the bedrock at its rear base. Should removal be proposed, then the boulder should be strapped to prevent its sudden movement whilst some preventative fencing should be implemented down slope to prevent travel of any separated fragments. Following this the boulder could be saw cut/grout spilt into sections and removed with either small excavator mounted rock hammer (<150kg) or hand tools.

· Boulders B2 and B3: Boulders B2 and B3 are both considered stable in the slope at present, however both are undercut below their front northern sides, and as such appear to be impacted by slow creep movement, currently prevented from failure by large boulders within the slope below. Provided the proposed dwelling is formed above but not supported by these boulders then they may be left in their current condition.

However, it is recommended that some shotcrete underpinning be implemented below their front edge, within openings in the cliff face to reduce any future creep movement and ensure no changes can occur over the design life of the proposed development.

· Boulder B4: Boulder B4 has a minor undercut below its north-east corner, which could be infilled with shotcrete to ensure no long-term movement can occur.

· Boulder B5: Boulder B5: It is rotated, distinctively separated along a soil filled joint defect to its west and is undercut at the front. It appears to be sitting on bedrock due to collapse of an overhang and does not appear unstable. Placement of footings may be considered with minor risk. (Excerpt from original Geotechnical report dated 13 April 2022 - amended report did not address boulder B5 as it is not considered unstable).

It is acknowledged that it is unreasonable to determine if boulder B1 needs to be removed or stabilised without further investigation during the construction stage. Notwithstanding, the amended Geotechnical Report has provided specific recommendations for either the removal or stabilisation of this boulder which is considered acceptable.

It is noted that the application requires approximately 2m of cut at the front of the site for the proposed supports of the garage and plant/ storage room which would house the OSD tanks. While the proposed excavation exceeds the 1 metre prescriptive measure, it is noted that this would allow appropriate vehicle access to the subject site and valuable storage space on a constrained site where a shed within the rear yard would not be appropriate. No objections are raised on environmental or planning grounds to the proposed excavation at the front of the site.

Appropriate conditions are recommended in Schedule 1 of this report requiring the appointment of a project Geotechnical Engineer to oversee and certify the proposed works. A condition is also recommended in Schedule 1 of this report requiring a dilapidation report be prepared for Council’s nature strip and the adjoining properties at No. 31 Evans Road and No. 4 Mullion Close.

Council’s assessment of the proposed works and excavation concludes that that the development meets the objectives of Clause 6.2 of the HLEP and is considered acceptable, subject to conditions.

2.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021

The application has been assessed against the requirements of Chapters 2 and 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021.

2.2.1 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.

Section 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.

Section 3.1.1 of this report provides an assessment in accordance with Part 1B.6.1 of the HDCP.

2.2.2 Chapter 6 Water Catchments

The site is located with the catchment of the Hawkesbury Nepean River. Chapter 6 contains general planning considerations and strategies requiring Council to consider the impacts of development on water quality and quantity, aquatic ecology, flooding, recreation and public access and total catchment management.

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

2.3 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

The application has been assessed against the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 which seeks to encourage sustainable residential development.

The proposal includes a BASIX certificate in accordance with the requirements of the SEPP including the list of commitments to be complied with at the construction stage and during the use of the premises. The BASIX certificate achieves the minimum scores for thermal comfort, water and energy.

The proposal is acceptable in this regard.

2.4 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.

2.4.1 Chapter 4 Remediation of Land

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

2.6 Hornsby Development Control Plan 2013

HDCP - Part 3.1 Dwelling Houses
Control	Proposal	Requirement	Complies
Site Area	743.5m²	N/A	N/A
Building Height	13.9m	8.5m	No
No. storeys	2	max. 2 + attic	Yes
Site Coverage	30%	50%	Yes
Floor Area	233m²	380m²	Yes
Setbacks
- Front (south)	0m	6m	No
- Side
Ground floor (west)	0.9m	0.9m	Yes
First floor	0.9m	1.5m	No
- Side (east)
Ground floor	13.4m	0.9m	Yes
First floor	13.4m	1.5m	Yes
- Rear (north)
Ground floor	5.2m	3m	Yes
First floor	5.2m	8m	No
Landscaped Area (% of lot size)	53%	30%	Yes
Private Open Space
- minimum area	54m²	24m²	Yes
- minimum dimension	5m²	3m	Yes
Car Parking	2 spaces	2 spaces	Yes

2.6.1 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 require a maximum of two storeys and an attic.

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

· Minimising earthworks (cut and fill).

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

Submissions have been received raising concern to the proposed bulk and sale of the development and the impact on adjoining properties.

The subject site is constrained by the topography of the site which experiences a fall of 18m to the north-eastern rear boundary which includes a cliff face in the middle of the site.

The application proposes the construction of a two-storey dwelling house. The dwelling house would resemble a single storey dwelling house when viewed from Evans Road and a two-storey dwelling house elevated on support columns when viewed from the rear elevation.

As discussed in Section 2.1.2 and 2.1.5 of this report the application proposes a 63.5% (5.4m) contravention to the 8.5m development standard for building height representing a total building height of 13.9m which does not comply with the 10.5m development standard. The Applicant submitted a written request pursuant to Clause 4.6 of the HLEP which has adequately addressed this non-compliance as discussed in under Section 2.1.3 of the report.

The non-compliant building height of 13.9m is largely concentrated to the rear section of the dwelling where the dwelling house is suspended over the cliff face that transects the middle of the site. The lower floor level would be elevated approximately 5.2m and 8m respectively above the existing ground level. The privacy impacts from these floor levels and associated balconies are discussed below in Section 2.5.6 of this report.

While it is acknowledged that the dwelling would have a bulk and scale to the rear of the development, it is noted that the location of the proposed dwelling house is considered the only reasonable location on the subject site. Furthermore, the application has been designed to limit the bulk and scale of the development to the rear by proposing a nil front boundary setback and attempting to reduce construction over the cliff face as much as possible.

A submission was received outlining how the proposed dwelling house would be more appropriate within the eastern corner of the subject site. This location however it not considered appropriate as it would not have vehicle access to this location and there would still be issues with setbacks, privacy, tree loss, bushfire and stormwater management.

Whilst the dwelling would be elevated towards the rear of the site, the proposal has been designed to minimise the bulk and scale of the development where applicable and it is generally considered acceptable on its merits.

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

2.6.2 Setbacks

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

This is supported by the prescriptive measure set out in Table 3.1.2(a): Minimum Boundary Setbacks which prescribes a minimum front boundary setback of 6m, an 8m rear boundary setback for 2 storey elements and a 1.5m side boundary setback for two storey elements.

Submissions have been received raising concerns to the non-compliant setbacks and the impacts to adjoining properties.

The application proposes a nil front boundary setback for the dwelling house which does not comply with the 6m prescriptive measure.

In assessing the front boundary non-compliance, it is noted that the site is located at the end of Evans Road and the proposed dwelling house would not dominate the streetscape due to the end of Evans Road being the lowest point of the road.

It is also noted that the site is constrained by the topography of the land and the limited opportunity to relocate the dwelling elsewhere on the site. By proposing a nil setback, the application has increased the rear setback as much as possible to reduce the amenity impacts to the rear adjoining property at No. 4 Mullion Close.

Furthermore, the dwelling house would be viewed as a single storey dwelling house from Evans Road thus reducing the bulk and scale of the development when viewed from Evans Road.

In conclusion, no objections are raised to the proposed nil front boundary setback as it is considered acceptable on its merits.

Due to the proximity of the proposed dwelling house to the front, a condition is recommended in Schedule 1 of this report, requiring a survey during works to ensure that the dwelling house is built entirely within the subject property.

The application proposes a 5.2m rear boundary setback which does not comply with the 8m prescriptive measure.

As discussed in Section 2.5.6 of this report, the application has designed the proposed dwelling house to minimize the opportunity to overlook the rear yard and private open space of the adjoining property No. 4 Mullion Close.

Whilst the application does encroach 2.8m into the 8m prescriptive measure, it is noted that the site is constrained by the topography of the land and the dwelling house has been designed to reduce the built form over the cliff face that transects the site. This has required the dwelling house design to be elongated which has resulted in front and rear boundary non-compliances.

It is acknowledged that the proposed dwelling house would impose on the rear neighbor No. 4 Mullion Close due to the topography of the site and the orientation of the existing dwelling house at No. 4 Mullion Close.

In assessing the rear boundary non-compliance, Council also assessed the amenity impacts to the rear adjoining property at No. 4 Mullion Close as discussed in Section 2.5.6 of this report. It is noted that a compliant 8m rear boundary setback would potentially increase the privacy impacts to the rear adjoining property as this would allow for a decreased angle from potential occupants standing on the decks to look into the POS of the rear adjoining property as detailed in the submitted sight lines.

It is acknowledged that the site is constrained by the topography of the site and Council concludes that the proposed rear boundary setback is considered acceptable on its merits.

The application proposes a side boundary setback of 900mm for the first-floor level which does not comply with the 1.5m prescriptive measure.

In assessing this 600mm non-compliance, it is noted that at the front of the site, the application is perceived as a single storey structure and therefore complies with the 900mm setback requirement.

As the dwelling extends to the rear of the site, it is considered to be a two-storey structure due to the slope of the land. However as previously mentioned in the report, the site is constrained by the topography of the site and the application has proposed a reduced side boundary setback to reduce the requirement to construct the dwelling house over the cliff face which would increase the building height of the development. It is generally considered that the 600mm encroachment into the side boundary setback would have negligible environmental or amenity impacts to the adjoining property at No. 31 Evans Road.

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

2.6.3 Landscaping

The desired outcome of Part 3.1.3 Landscaping of the HDCP is to encourage “landscaping that integrates the built form with soft landscaping and retains and enhances the tree canopy” and to encourage “development that retains existing landscape features.”

This is supported by the prescriptive measures set out in Table 3.1.3(a): Minimum Landscaped Area which prescribes a minimum landscaped area of 30% for lot sizes between 600m² to 899m².

This is also supported by the prescriptive measures (c) and (d) which state:

‘(c) “At least 50 percent of the minimum landscaped area should be located behind the building line to the primary road frontage.

(d) A proportion of the front yard should be maintained as landscaped area as follows:

· 25 percent of the front yard for lots less than 18 metres wide, and

· 50 percent of the front yard for lots greater than 18 metres wide.”

As discussed in Section 2.5.2 of this report, the application proposes a nil front boundary setback for the proposed dwelling house and therefore, the application does not comply with the requirement for providing landscaping in front of the dwelling house. This is a direct result of the site not having a front yard due to the topographical constraints of the site.

Notwithstanding, the proposed development would maintain 53% of the site as landscaped which complies with the 30% prescriptive measure which is considered acceptable.

The proposal meets the desired outcomes of Part 3.1.3 Landscaping of the HDCP and is considered acceptable.

2.6.4 Open Space

The desired outcome of Part 3.1.4 Open Space of the HDCP encourages ‘private open space that functions as an extension to the dwelling house.’

This is supported by the prescriptive measures that require 24m² of private open space (POS) for sites with a width of 10m or more and the minimum dimension must be 3m.

The application proposes a POS of 54m² with a minimum dimension of 5m within the lower floor level balcony which meets Council’s requirements for POS.

The application meets the desired outcome of Part 3.1.4 Open Space of the HDCP and is considered acceptable.

2.6.5 Sunlight Access

The desired outcomes of Part 3.1.5 Sunlight Access of the HDCP are to encourage “dwelling houses designed to provide solar access to open space areas” and “development designed to provide reasonable sunlight to adjacent properties”.

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

An assessment of the shadow diagrams provided by the applicant illustrate that the subject site and the western adjacent neighbour would be marginally impacted by the 9am shadow, the subject site and Council’s nature strip would be impacted by the 12 noon shadow and the subject site and unformed road reserve would be impacted by the 3pm shadow. The subject site and adjoining properties would therefore receive more than 3 hours of unobstructed sunlight during the winter solstice.

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

2.6.6 Privacy

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

This is supported by the prescriptive measures that state that:

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

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

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

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

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

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

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

Submissions have been received raising concern to the privacy impacts of the proposed development.

The application proposes elevated lower floor level and upper floor level decks which would be elevated approximately 5.2m and 8m respectively above the existing ground level which does not comply with the abovementioned prescriptive measure. These decks contain two elevations facing the rear northern (short) elevation and the side north-eastern (long) elevation.

In assessing the amenity impacts of the northern (short) elevation of the proposed decks, it is noted that the applicant has provided diagrams depicting the sight lines of occupants on the proposed decks.

It is noted that the external stairwells provide access to the lower, upper and green roof are located along the northern elevation of the proposed decks.

On the upper floor level, there is only a 1m wide transit space between the staircase and the balustrading which would ensure that this space is only used for occupants transitioning between the floor levels.

The lower floor level deck contains a larger open area which is considered to be the private open space of the dwelling. This large open space is orientated towards the north-eastern (long) side elevation of the proposed deck and also contains a stairwell within the northern side of the deck which would be considered the transition space.

The application proposes perforated aluminium balustrading along the proposed decks to a height of 1m as per the architectural plans. The height of these balconies would act as privacy screens for the occupants of the internal room of the upper floor level (living room). Due to the setback of the internal room and steepness of the elevation to the rear adjoining property as detailed in the sight lines, it is generally considered that the rear northern elevation of the upper floor level deck would not allow overlooking into the rear yard and private open space of No. 4 Mullion Close.

It is also considered that the lower floor level deck would also reduce the opportunity to overlook into the private open space of the adjoining property No. 4 Mullion Close through the inclusion of the perforated aluminium balustrading and the staircase within the northern elevation for this space to be used as a transition area.

To ensure that the perforated balustrading meets Council’s requirements for privacy screens, a condition is recommended in Schedule 1 of this report to ensure that all balustrading for the decks is perforated aluminium and must have no individual openings more than 30mm wide and have a total of all openings less than 30% of the surface area of the screen.

In assessing the amenity impacts from the north-eastern (long) elevation of the decks, it is noted that the downhill dwelling houses would be located approximately 20m to No. 6 Mullion Close, 30m to No. 2 Paroo Place and 36m to No. 4 Paroo Place. These extensive setbacks would not allow direct overlooking into the private open space of these adjoining properties. Furthermore, the elevation of the decks encourages the occupants of the deck to look directly out into the valley as opposed to looking down into the adjoining properties. It is also considered that due to the height of the decks, only a view of the roof forms of the downhill neighbours would be present to the occupants of the elevated decks.

Furthermore, as discussed above, the application proposes perforated aluminium balustrading to the proposed decks which would act as a privacy screen and a condition is recommended in Schedule 1 of this report to ensure it meets Council’s requirement for privacy screens.

Therefore, no objections are raised on privacy grounds to the proposed decks as it is generally considered that there would be negligible amenity impacts to adjoining properties.

The application proposes a ‘green roof’ which would contain access via the proposed stairs within the northern elevation. This green roof would contain solar panels and a turfed area. Submissions were received which raised concerns to the privacy impacts of the proposed green roof to adjoining properties.

To address the privacy concerns, the applicant provided sight lines depicting the occupants of the green roof looking north and detailed that the solid balustrading for the proposed stairwell within the northern elevation to provide access to the roof would essentially act as a privacy screen reducing the opportunity to overlook into the rear yard and swimming pool of the adjoining property No. 4 Mullion Close.

The occupants on the green roof would also be able to overlook into the rear yard and porch area of the adjoining property No. 31 Evans Road. As front yards and front porches are not considered the private open space of a property, no objections are raised to the proposed green roof as it is generally considered that this would have negligible amenity impacts to adjoining priorities.

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

2.6.7 Vehicular Access and Parking

The desired outcome of Part 3.1.7 Vehicle Access and Parking of the HDCP is to encourage “development that provides sufficient and convenient parking for residents with vehicular access that is simple, safe and direct.”

This is supported by the prescriptive measure which states that “car parking for dwelling houses should be provided behind the front building line.”

The application proposes a double garage/ open carport on a nil front boundary setback in line with the proposed dwelling house as discussed in Section 2.5.2 of this report.

In support of this non-compliance, it is noted that the site is significantly constrained with the topography of the land falling steeply to the rear of the site. Furthermore, the carport/ garage would be integrated into the design of the dwelling house and would not protrude in front of the building line of the dwelling house.

The proposal meets the desired outcomes of Part 3.1.7 Vehicle Access and Parking of the HDCP and is considered acceptable.

2.6.8 Waste Management

The property is located at the end of Evans Road and does not benefit from a sufficient front setback to ensure construction materials can be stored wholly within the site. It is generally considered that surrounding properties may be impacted by parking, deliveries, storage of waste and tree removal.

Due to the constraints of the site, a condition is recommended in Schedule 1 of this report requiring the submission of a detailed Construction and Traffic Management Plan (CTMP) to be submitted and approved by Council prior to the issue of a Construction Certificate.

Submissions were received which raised concerns to the impact of earthworks and sediment and erosion control measures.

The CTMP would be required to address how parking, storage of materials, noise and vibration, dust, earthworks and sediment and erosion control would be addressed during construction of the dwelling house and the CTMP is required to be approved by Council prior to the issue of the Construction Certificate.

2.7 Contributions Plans

3. ENVIRONMENTAL IMPACTS

3.1 Natural Environment

3.1.1 Tree and Vegetation Preservation

The application has been supported by an Arborist report prepared by Urban Arbor dated 16 March 2023 which identifies 35 trees (some trees include a, b, c and d) within the vicinity of the proposed works.

A number of submissions were received which raised concerns for the loss of trees and stated that a Flora and Fauna Report should be provided. In response to this submission, Council’s Tree Management Team and the Natural Resources Branch assessed the application and concluded that the application did not trigger the requirements for a Flora and Fauna Report and determined that the application would have an acceptable environmental impact due to the constraints on the site.

The application proposes the removal of 19 trees as these trees would be impacted by the proposed building works. These trees are numbered T1, T3, T5, T6, T7, T7a, T7b, T8, T24, T25, T26, T27, T28, T29, T30, T31, T32, T33 and T35c it is noted that trees numbered T1, T3 and T5 are required to be removed from Council’s nature strip to facilitate safe vehicle access to the site.

The site is bushfire prone as discussed in Section 4.1 of this report, an Asset Protection Zone (APZ) is required within the whole site to meet bushfire requirements.

To establish and maintain the required APZ a further 16 trees are required to be removed. These trees are numbered T11, T12c, T12d, T13a, T16, T16a, T17, T17a, T17b, T18b, T18c, T19, T20, T21, T22 and T23.

While tree loss is not ideal, it is noted that any development on the vacant site would require large scale tree removal to establish the required APZ. Due to the extensive APZ requirements, and the topography of the site, no replacement planting is considered appropriate for the site.

It is also noted that the application has prioritised the retention of high value trees where practical and removed lower value trees to establish the required APZ.

The application proposes of the retention of six AA category trees (highest category value) numbered T2, T12, T13, T15, T18 and T32 and the retention of seven A category trees (high value category trees) numbered T10, T12a, T12b, T14, T35, T35b and T35d. In total 19 trees would be retained by the development while a total of 35 trees would be removed.

The development on balance is considered acceptable in regard to the environmental impact.

3.1.2 Stormwater Management

The revised stormwater plan proposes to drain the rainwater collected by the ‘green roof’ to 2x 5,000L on-site detention (OSD) system tanks which would have a total capacity of 10m³. The discharge of these OSD tanks would be limited to 6L/s and connect to the existing watercourse which transects the eastern corner of the site.

The existing watercourse discharges the stormwater collected within Evans Road within an unformed road reserve section to the east of the site into the neighbouring bushland.

Submissions have been received raising concern to the proposed stormwater disposal method. In response to this, the applicant provided this amended stormwater plan proposing an OSD system. It is noted that in accordance with Council’s HDCP requirements, OSD systems are not required for dwelling houses. OSD systems are required on recently subdivided lots in which the OSD system is required to have a maximum capacity of 5m³. Therefore, the proposed system would be double the capacity of a subdivided property to ensure minimal impact to downstream properties and reduce the amount of water entering the existing watercourse.

Submissions have been received which raised concerns to stormwater runoff from the proposed development and the impact on downstream properties.

It is noted that the proposed stormwater system is considered a better outcome than the existing vacant site where stormwater runoff from the site is not controlled in an orderly manner and runoff from the site discharges into the downstream properties. The proposed system will collect the stormwater and reduce runoff to downstream properties through the proposed OSD system.

Appropriate conditions are recommended in Schedule 1 of this report to ensure appropriate stormwater management.

Subject to these conditions, the application meets the desired outcomes of Part 1C.1.2 Stormwater Management of the HDCP and is considered acceptable.

3.2 Built Environment

3.2.1 Built Form

Being 13.9m high, the building would be visible from a number of public and private places within the locality. The design has attempted to minimise the visual impact by proposing a nil front boundary setback and flat roof. Due to the constraints of the site, the proposed dwelling house is considered acceptable.

3.2.2 Traffic

The development proposes the construction of a dwelling house with a double garage. The additional vehicle movement associated with the dwelling house would not adversely impact the local road network.

3.3 Social Impacts

3.4 Economic Impacts

4. SITE SUITABILITY

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

4.1 Bushfire Risk

The application has provided a Bushfire Assessment Report prepared by Building Code & Bushfire Hazard Solutions dated 18 August 2022.

The Bushfire Hazard Assessment Report recommended that any development on the site be built to the requirements of Australian Standards AS 3959-2018 Construction of buildings in bushfire-prone areas in accordance with the requirements for Bushfire Attack Level (BAL) Flame Zone (FZ) and the relevant sections of Planning for Bushfire Protection 2019.

The report also recommended an Asset Protection Zone for the entire site which requires some vegetation removal as discussed in Section 3.1.1 of this report.

The application was referred to the NSW Rural Fire Service (RFS) for concurrence. The NSW RFS raised no objections to the proposal subject to conditions which are recommended in Schedule 1 of this report.

A submission was received raising concern that the development wouldn’t meet the bushfire requirements.

However as detailed above the application was referred the NSW RFS who supported the application, subject to conditions.

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 November 2022 and 30 November 2022 and 4 May 2023 and 25 May 2023 in accordance with the Hornsby Community Engagement Plan. During this period, Council received five submissions from four objectors. The map below illustrates the location of those nearby landowners who made a submission that are in close proximity to the development site.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

Five submissions from four residents objected to the development, generally on the grounds that the development would result in:

· Unacceptable privacy impacts.

· Objection to the proposed building height.

· Impacts from proposed earthworks on adjoining property.

· Unacceptable excavation.

· Location of the proposed dwelling.

· Concerns over Geotechnical report.

· Unacceptable tree removal.

· Stormwater runoff impacts.

· Development that is excessive in bulk and scale.

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

5.1.1 Connection to Sewer

A submission was received which raised concern to the connection to the sewer infrastructure.

In response to this submission, it is noted that sewer infrastructure is controlled by Sydney Water and a condition is recommended in Schedule 1 of this report requiring approval from Sydney Water prior to the issue of a Construction Certificate.

5.1.2 Elevated driveway and vehicle crossing over Councils nature strip

Submissions have been received which raised concerns to the proposed elevated driveway.

In response to this submission, it is noted that Council’s development engineer assessed the application and determined that the proposed design was considered acceptable. The proposed driveway and vehicle crossing is elevated above existing ground level and requires a safety rail along the eastern side of the driveway to provide safe vehicle access.

As the vehicle crossing is at the end of Evans Road and there is no pedestrian footpath along this section of the road nor is there a path through the unformed section of Evans Road, it is generally considered that the proposed elevated vehicle crossing and driveway would have negligible amenity impacts on the Road Reserve or public space.

5.2 Public Agencies

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

5.2.1 Rural Fire Service

As discussed in Section 4.1, the development application was referred to NSW Rural Fire Service for comment and no objections were raised to the proposed development subject to the conditions recommended in Schedule 1.

6. THE PUBLIC INTEREST

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

CONCLUSION

The application proposes the construction of a dwelling house.

Council received five submissions from four objectors 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 request under Clause 4.6 of Hornsby Local Environmental Plan 2013 to contravene the ‘Height of Buildings’ development standard is well founded. Strict compliance with the development standard is considered unreasonable and unnecessary in the circumstances of the case and sufficient environmental planning grounds have been submitted to justify the contravention to the development standard.

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

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

Cassandra Williams

Major Development Manager - Development Assessments

Planning and Compliance Division

Rod Pickles

Manager - Development Assessments

Planning and Compliance Division

Attachments:

1.⇩	Locality Plan
2.⇩	Clause 4.6
3.⇩	Architectural Plans

File Reference: DA/1170/2022

Document Number: D08654656

SCHEDULE 1

GENERAL CONDITIONS

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

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

1. Approved Plans and Supporting Documentation

Approved Plans

*Plan No.*	*Plan Title*	*Drawn by*	*Dated*	*Council Reference*
001	Site/Landscape Plan	Voytek Trzebiatowski	August 2022
002	Site Demolition Plan	Voytek Trzebiatowski	August 2022
005	Upper Floor Plan	Voytek Trzebiatowski	August 2022
006	Lower Floor plan	Voytek Trzebiatowski	August 2022
007	Green Roof Plan	Voytek Trzebiatowski	August 2022
008	Cross Section A-A	Voytek Trzebiatowski	August 2022
009	Cross Section B-B	Voytek Trzebiatowski	August 2022
010	Cross Section C-C	Voytek Trzebiatowski	August 2022
011	Long Section D-D	Voytek Trzebiatowski	August 2022
012	Southern Elevation	Voytek Trzebiatowski	August 2022
013	Western Elevation	Voytek Trzebiatowski	August 2022
014	Eastern Elevation	Voytek Trzebiatowski	August 2022
015	Northern Elevation	Voytek Trzebiatowski	August 2022
019	Schedule of Finishes	Voytek Trzebiatowski	August 2022
021	Driveway Concept	Voytek Trzebiatowski	August 2022

Supporting Documentation

*Document Title*	*Prepared by*	*Dated*	*Council Reference*
Arboricultural Impact Assessment Ref: 230316_33 Evans Rd_AIA Rev B	Urban Arbor	16/03/2023	D08611339
Dwg No. 003 Site Protection Plan	Voytek Trzebiatowski	Aug 2022	D08530588
Bushfire Assessment Report Rev A	Building Code & Bushfire Hazard Solutions Pty Ltd	18/08/2022	D08530577
Dwg No. STORM-1 Stormwater Management Plan	Taylor Consulting	27/04/2023	D08642751
Dwg No. STORM-2 Stormwater Management Plan	Taylor Consulting	24/04/2023	D08642751
Waste Management Plan	Wojciech Trzebiatowski and Anna Pawlak	20/04/2023	D08634332
Survey Plan	Bee & Lethbridge	10/02/2023	D08594585
BASIX Certificate: 1185696M	Wojciech Trzebiatowski	14/10/2022	D08530594
Geotechnical Report Project No. 2019-034	Crozier Geotechnical Consultants	20/04/2023	D08634335

2. Removal of Trees

a) This development consent permits the removal of 35 trees numbered T1, T3, T5, T6, T7, T7a, T7b, T8, T11, T12c, T12d, T13a, T16, T16a, T17, T17a, T17b, T18b, T18c, T19, T20, T21, T22, T23, T24, T25, T26, T27, T28, T29, T30, T31, T32, T33 and T35c as identified in the Arboricultural Impact Assessment Rev B prepared by Urban Arbor dated 16 March 2023.

b) No consent is granted for the removal of 19 trees numbered T1a, T2, T4, T9, T10, T12, T12a, T12b, T13, T14, T15, T18, T18a, T34, T35, T35, T35a, T35b and T35d as these trees contribute to the established landscape amenity of the area/streetscape.

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

Reason: To identify only those trees permitted to be removed.

3. Tree Pruning

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

Reason: To protect tree to be retained.

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 approval must be obtained from Council for all works within the public road reserve under S138 of the Roads Act 1993. In this regard, a Section 138 Roads Act application shall be lodged via the NSW Planning Portal.

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

Reason: To ensure that detailed construction certificate plans are consistent with the approved plans and supporting documentation.

5. Section 7.12 Development Contributions

a) In accordance with Section 4.17(1) of the Environmental Planning and Assessment Act 1979 and the Hornsby Shire Council Section 7.12 Development Contributions Plan 2019-2029, $7,884.10 must be paid towards the provision, extension or augmentation of public amenities or public services, based on development costs of $788,410.00.

b) The value of this contribution is current as of 6 June 2023. 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.

Reason: To address the increased demand for community infrastructure resulting from the approved development.

REQUIREMENTS PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

6. 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.

Reason: Prescribed condition - EP&A Regulation section 69(1)

7. Contract of Insurance (Residential Building Work)

Reason: Prescribed condition EP&A Regulation section 69(2)

8. Notification of Home Building Act 1989 Requirements

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

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

Reason: Prescribed condition EP&A Regulation section 71(2) and (3)

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.

Reason: To ensure the development is provided with the relevant utility services.

10. Stormwater Drainage

The stormwater drainage system for the development must be designed for an average recurrence interval (ARI) of 100 years and be gravity drained in accordance with the following requirements:

a) Connected directly to an on-site detention tank that discharges to the existing natural depression located within the development site generally in accordance with Dwg No. STORM-1 Stormwater Management Plan prepared by Taylor Consulting, dated 27 April 2023 and Dwg No. STORM-2 Stormwater Management Plan prepared by Taylor Consulting, dated 24 April 2023.

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

Reason: To ensure appropriate provision for management and disposal of stormwater.

11. 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) In accordance with Dwg No. STORM-1 Stormwater Management Plan prepared by Taylor Consulting, dated 27 April 2023 and Dwg No. STORM-2 Stormwater Management Plan prepared by Taylor Consulting, dated 24 April 2023.

b) Have a capacity of not less than 10 cubic metres, and a maximum discharge (when full) of 6 litres per second.

c) Have a surcharge/inspection grate located directly above the outlet.

d) 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 the existing natural depression.

Reason: To manage stormwater flows to minimise potential flooding.

12. Internal Driveway/Vehicular Areas

a) The driveway be a rigid pavement.

b) The provision of safety rails where there is a level difference more than 0.3 metres and a 1:4 batter cannot be achieved.

c) Longitudinal sections along both sides of the access driveway shall be submitted to the principal certifying authority in accordance with the relevant sections of Australian Standard AS2890.1. 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.

Reason: To provide safe vehicle and pedestrian access

13. Dilapidation Report

i) Public Road Reserve.

ii) Lot 16 DP 205246, No. 31 Evans Road, Hornsby Heights.

iii) Lot 3 DP 865539, No. 4 Mullion Close, Hornsby Heights.

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.

Reason: To record the condition of adjoining properties and public land to resolve any dispute over damage from works.

14. Road Works

A Section 138 Roads Act application must be lodged via the NSW Planning Portal for Council’s approval of the proposed vehicular access works within the road reserve approved under this consent. The design must be in accordance with AUS-SPEC Specifications (https://www.hornsby.nsw.gov.au/property/build/aus-spec-terms-and-conditions) and the following requirements:

a) Detailed civil and structural design drawings shall be provided by an appropriately qualified engineer.

b) The structure shall be designed to ensure that the stability of the road is maintained during construction and the throughout the life of the structure.

Reason: To provide safe vehicle and pedestrian access.

15. 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 a qualified traffic engineer and AQF 5 arborist and submitted to Council’s Compliance Team via Council’s Online Services Portal for review and written approval.

The CMP must include the following details:

a) Description of the works

i) A description of the scope of all stages of works.

ii) A detailed description of site-specific tree removal methodology including the procedure for removal of trees, estimated quantity of waste produced, the estimated length of time required for tree removal, site plan demonstrating the storage location of materials, waste and vehicles used during removal.

iii) A table of information detailing cut and in-situ fill calculations for all stages for works. The table must include specified dimensions (WxLxD) and total cubic metres.

iv) 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.

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

vi) 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.

vii) 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.

viii) 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.

ix) The CMP must detail all responsible parties ensuring compliance with the document and include the contact information for developers, builder, private certifier and any emergency details during and outside work hours.

b) 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) 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.

iii) 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.

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

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

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

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

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

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

x) 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.

c) A Construction Waste Management Plan detailing the following:

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

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

d) 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.

e) 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.

f) An Erosion and Sediment Control Plan (ESCP) that describes all erosion and sediment controls to be implemented in accordance with the publication Managing Urban Stormwater: Soils & Construction (4^th Edition), which includes:

i) A site survey which identifies contours and approximate grades and the direction(s) of fall.

ii) Locality of site and allotment boundaries.

iii) Location of adjoining road(s) and all impervious surfaces.

iv) Location of site access and stabilisation of site access.

v) Provision for the diversion of run off around disturbed areas.

vi) Location of material stockpiles.

vii) Proposed site rehabilitation and landscaping; staging of construction works.

viii) Maintenance program for erosion and sediment control measures.

ix) Provide a plan of how all construction works will be managed in a wet-weather events (i.e., storage of equipment, stabilisation of the Site)

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

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.

Reason: To document construction measures to protect the public and the surrounding environment.

16. Appointment of a Project Geotechnical Engineer

An appropriately qualified Geotechnical Engineer shall be appointed to ensure that the stability of the land and any remedial works to the existing boulders are undertaken generally in accordance with the recommendations outlined in Geotechnical Report Project No. 2019-034 prepared by Crozier Geotechnical Consultants, dated 20 April 2023.

Reason: to ensure the stability of the site.

17. Appointment of a Project Arborist

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

Reason: To ensure appropriate monitoring of tree(s) to be retained.

REQUIREMENTS PRIOR TO THE COMMENCEMENT OF ANY WORKS

18. 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; and

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.

Reason: Prescribed condition EP&A Regulation, section 70(2) and (3).

19. 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; and/or.

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.

Reason: To ensure public safety and protection of adjoining land.

20. Toilet Facilities

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.

Reason: To ensure adequate toilet facilities are provided.

21. 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.

Reason: To minimise impacts on the water quality of the downstream environment.

22. Garbage receptable

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.

Reason: To maintain the site in a clean condition and protect local amenity.

23. Installation of Tree Protection Measures

a) Trees to be retained and numbered T1a, T2, T4, T9, T10, T12, T12a, T12b, T13, T14, T15, T18, T18a, T34, T35, T35, T35a, T35b and T35d as identified on the Tree Location Plan in the Arboricultural Impact Assessment Ref: 230316_33 Evans Rd_AIA Rev B prepared by Urban Arbor dated 16 March 2023 must have tree protection measures for the ground, trunk and canopy installed by the project arborist as follows:

i) For the duration of demolition, excavation and construction works, in accordance with Dwg No. 003 Site Protection Plan, prepared by Voytek Trzebiatowski , dated August 2022.

b) Tree protection fencing for the trees to be retained numbered T1a, T2, T4, T34, T35, T35a, T35b, T35d must be installed by the engaged AQF 5 project arborist.

c) Tree Protection fencing can consist of star pickets with bunting

i) Fencing must include Tree Protection Zone signage

d) Where wood-chip mulch is permitted by Council instead of tree protection fencing within the tree protection zones, the woodchip must be covered with a layer of geotextile fabric and rumble boards.

Reason: To minimise impacts on the water quality of the downstream environment.

REQUIREMENTS DURING CONSTRUCTION

24. Construction Work Hours

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

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

Reason: To protect the amenity of neighbouring properties.

25. Environmental Management - Air Pollution

a) The Applicant must take all reasonable steps to minimise dust generated during all works authorised by this consent.

b) During construction, the Applicant must ensure that:

i) All trucks entering or leaving the site with loads have their loads covered.

ii) Trucks associated with the development do not track dirt onto the public road network.

iii) Public roads used by these trucks are kept clean.

iv) Land stabilisation works are carried out progressively on site to minimise exposed surfaces.

Reason: To minimise impacts to the natural environment and public health.

26. Street Sweeping

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

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

Reason: To minimise impacts to the natural environment.

27. Vegetation Removal - Asset Protection Zones

While site work is being carried out, clearing or modifying vegetation to establish the APZ must be confined to within the marked APZ boundary in accordance with the supporting documentation approved under this consent (D08530577 – approved Bushfire Assessment Report prepared by Building Code & Bushfire Hazard Solutions Pty Limited dated 18th August 2022), to the satisfaction of Council. Trees approved for removal for the APZ establishment are stated in the Arboricultural Impact Assessment Rev B prepared by Urban Arbor, dated 16 March 2023.

Reason: To ensure vegetation clearance or modification during construction is confined within the APZ.

28. Council Property

Reason: To protect public land.

29. Compliance with Geotechnical requirements

The project Geotechnical Engineer must be on-site during the installation of footings and all other earthworks and ensure the development complies with the recommendations of the Geotechnical Report Project No. 2019-034 prepared by Crozier Geotechnical Consultants dated 20 April 2023.

Reason: to ensure the stability of the site.

30. Disturbance of Existing Site

Reason: To protect the natural features of the site.

31. Landfill not Permitted

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

Reason: To minimise environmental impacts from landform modification.

32. 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.

Reason: To ensure the appropriate disposal of excavated material.

33. 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.

Reason: To ensure implementation of construction measures to protect the public and the surrounding environment.

34. Unexpected Finds

Reason: To ensure the appropriate removal and disposal of contaminated materials.

35. 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; and

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

Reason: To ensure buildings are positioned in the approved location and at the correct height.

36. 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.

Reason: To protect trees during construction.

37. 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 to be retained on the approved plans.

Reason: To ensure appropriate monitoring of tree(s) to be retained.

38. Maintaining Tree Protection Measures

Tree Protection Measures must be maintained by the project arborist in accordance with Condition No. 23 of this consent for the duration of works.

Reason: To protect trees during construction.

39. Approved Works within Tree Protection Zone Incursions

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

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

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

b) Approved excavations within the Tree Protection Zone of trees to be retained not associated with installation of services must be undertaken as follows:

i) Excavations for the construction and/or installation of the house/deck/driveway/piers in the Tree Protection Zone of trees to be retained on the approved plans must be supervised by the project arborist for the first 1 metre undertaken manually to locate roots and allow for pruning in accordance with condition No. 39(a).

c) 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.

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

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

ii) Installation of geotextile fabric ground covering.

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

Reason: To protect trees during construction.

40. Waste Management

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

Reason: To ensure the management of waste to protect the environment and local amenity during construction.

REQUIREMENTS PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

41. Fulfilment of BASIX Commitments

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

Reason: Prescribed condition under section 75 (EP&A Regulation).

42. Final Certification

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

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

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

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

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

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

Note: Copies of monitoring documentation may be requested throughout the development works.

Reason: To ensure compliance with tree protection commitments.

43. Damage to Council Assets

Reason: To ensure public infrastructure and property is maintained.

44. Certification from Geotechnical Engineer

Prior to the issue of an occupation certificate, a certificate by a qualified geotechnical engineer shall be submitted to the principal certifying authority, certifying that all works have been carried out in accordance with the recommendations in the Geotechnical Report Project No. 2019-034 prepared by Crozier Geotechnical Consultants dated 20 April 2023.

Reason: to ensure the stability of the site.

45. 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/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.

Reason: To create legal entitlements to facilitate the proper use and management of land.

46. 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.

Reason: To confirm appropriate disposal of excavated material.

47. Final Certification - Asset Protection Zone

A suitably qualified and experienced bushfire consultant is to provide Council with a certificate stating that the APZ has been established in accordance with Bushfire Assessment Report prepared by Building Code & Bushfire Hazard Solutions Pty Limited dated 18 August 2022 Revision A, the Arboricultural Impact Assessment Ref: 230316_33 Evans Rd_AIA Rev B prepared by Urban Arbor, dated 16 March 2023, Planning for Bushfire Protection 2019 and the NSW Rural Fire Service’s Standards for Asset Protection Zones.

Reason: To ensure the APZ has been established in accordance with the approved plans

48. Installation of Privacy Devices

To establish and maintain a reasonable level of privacy for the adjoining premises No. 4 Mullion Close:

a) All balustrading to the lower and upper floor level deck must be perforated aluminium to a minimum height of 1 metre above finished floor level.

b) The balustrading must have no individual openings more than 30mm wide and have a total of all openings less than 30% of the surface area of the screen.

Reason: To provide privacy to the site and adjoining development.

OPERATIONAL CONDITIONS

49. Ongoing Protection of Remnant Trees

All trees on site not approved for removal under this consent are required to be retained for conservation purposes. These trees have a legal obligation for their preservation and are excluded from the clearing provisions of the 10/50 Vegetation Clearing Code of Practice for New South Wales in accordance with Clause 7.8 of the Code.

Reason: To inform current and future landowners that certain trees and vegetation are protected

50. Management of asset protection zones

During ongoing use of the site, the APZ must be managed in accordance with the Bushfire Assessment Report Rev A prepared by Building Code & Bushfire Hazard Solutions Pty Limited, dated 18 August 2022, the Arboricultural Impact Assessment Ref: 230316_33 Evans Rd_AIA Rev B prepared by Urban Arbor, dated 16 March 2023, Planning for Bushfire Protection 2019 and the NSW Rural Fire Service’s Standards for Asset Protection Zones.

Reason: To ensure ongoing protection from bush fires.

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.

51. Asset Protection Zones

a) From the commencement of building works and in perpetuity, the entire property must be managed as an inner protection area in accordance with the following requirements of Appendix 4 of Planning for Bush Fire Protection 2019:

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

ii) Trees at maturity should not touch or overhang the building.

iii) Lower limbs should be removed up to a height of 2 metres above the ground.

iv) Tree canopies should be separated by 2 to 5 metres.

v) Preference should be given to smooth-barked and evergreen trees.

vi) Create large discontinuities or gaps in the vegetation to slow down or break the progress of fire towards buildings should be provided.

vii) Shrubs should not be located under trees.

viii) Shrubs should not form more than 10% ground cover.

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

x) Grass should be kept mown (as a guide, grass should be kept to no more than 100 millimetres in height).

xi) Leaves and vegetation debris should be removed.

Reason: The intent of measures: to minimise the risk of bush fire attack and provide protection for emergency services personnel. residents and others assisting lire lighting activities.

52. Construction Standards

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 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) 3. Fences and gates must comply with Section 7.6 of Planning for Bush Fire Protection 2019. New fences and gates are to be made of either hardwood or non-combustible material. Where a fence or gate is constructed within 6m of a dwelling or in areas of BAL-29 or greater, they must be made of non-combustible material only.

Reason: The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack.

53. Waster and Utility Services

a) The provision of water, electricity and gas must comply with the following in accordance with Table 7.4a of Planning for Bush Fire Protection 2019:

i) Reticulated water is to be provided to the development where available.

ii) All above-ground water service pipes external to the building are metal, including and up to any taps.

iii) Where practicable, electrical transmission lines are underground:

iv) 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; and

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.

v) 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.

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

vii) Connections to and from gas cylinders are metal.

viii) Polymer-sheathed flexible gas supply lines are not used.

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

Reason: The intent of measures is to minimise the risk of bush fire attack and provide protection for emergency services personnel. residents and others assisting firefighting activities.

54. Landscaping

a) Landscaping within the required asset protection zone 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 (Le. trees or shrubs are isolated or located in small clusters).

iv) Landscape species are chosen to ensure tree canopy cover is less than 15% (lPA), and less than 30% (OPA) 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 carry a 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.

Reason: The intent of measures is for landscaping in bushfire prone areas.

- 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

1. 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 0.25% of the total cost of the work (including GST).

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

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:

www.environment.nsw.gov.au

www.adfa.org.au

www.safework.nsw.gov.au

Alternatively, telephone the SafeWork NSW on 13 10 50.