Agenda of Local Planning Panel meeting - Wednesday, 30 October 2024

LPP Report No. LPP27/24

Local Planning Panel

Date of Meeting: 30/10/2024

2 DA/996/2024 - TORRENS TITLE SUBDIVISION OF ONE LOT INTO TWO - 121A PENNANT HILLS ROAD, NORMANHURST

DA No:	DA/996/2024 (Lodged on 13 September 2024)
Description:	Torrens title subdivision of one lot into two - PAN-466664
Property:	Lot 2 DP 1128815, No.121A Pennant Hills Road, Normanhurst
Applicant:	Mr David Beaini
Owner:	Mr Anthony Lahoud & Mrs Baduiye Lahoud
Estimated Value:	$100
Ward:	B Ward
Clause 4.6 Request:	Clause 4.1 Minimum subdivision lot size
Submissions:	Nil
LPP Criteria:	Proposal contravenes a development standard by more than 10%
Author:	George Papworth, Senior Town Planner
COI Declaration:	No Council staff involved in the assessment of this application have declared a Conflict of Interest.

RECOMMENDATION

C. THAT the Hornsby Local Planning Panel, exercising the functions of Council as the consent authority, vary Clause 4.1 Minimum subdivision lot size Development Standard pursuant to Clause 4.6 of the Hornsby Local Environmental Plan 2013 as the applicants written request has adequately addressed the merits required to be demonstrated by subclause (3) and the proposed development is consistent with the objectives of the standard and the objectives for development within the zone in which the development is proposed to be carried out.

D. THAT the Hornsby Local Planning Panel, exercising the functions of Council as the consent authority, approve Development Application No. DA/966/2024 for Torrens title subdivision of one lot into two at Lot 2 DP 1128815, No. 121A Pennant Hills Road, Normanhurst subject to the conditions of consent in Schedule 1 of LPP Report No. LPP27/24.

Executive Summary

· The application proposes the Torrens title subdivision of an existing dual occupancy into two lots.

· The proposal does not comply with the minimum subdivision lot size as per Clause 4.1 of the Hornsby Local Environment Plan 2013.

o Proposed Lot 21 would have an area of 669.7m² (299.6m² excluding the existing access handle and proposed Right of Carriageway) which would result in a 40.08% contravention.

o Proposed Lot 22 would have an area of 368.1m²(365.1m² excluding the proposed Right of Carriageway) which would result in a 26.98% contravention.

· The application is required to be determined by the Hornsby Council Local Planning Panel as the proposal contravenes a development standard by more than 10%.

· 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 Clause 4.1 development standard. The submission is considered well founded and is supported.

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

· It is recommended that the application be approved.

BACKGROUND

On 23 December 1993, development consent (DA/82/1993) was granted for the construction of 3 dwellings on the parent lot known as Lot 12 in DP 132115. The development was defined as ‘cluster housing’ by way of a policy adopted by Council at the time of the existence of the Hornsby Planning Scheme Ordinance 1970.

On 16 February 1998, development consent (DA/675/1997) was granted by Council under the provisions of the now repealed Hornsby Shire Local Environmental Plan 1994 (HSLEP) for the subdivision of the site creating Lots 1 and 2 in DP 1128815. The subject development application relates to Lot 2 only.

The above approval granted consent for the Torrens title subdivision of the site into two allotments and the erection of two detached ‘multi-unit dwellings’ on Lot 2 that currently occupy the site. ‘Multi-unit housing’ was defined under the HSLEP as follows and was permissible with consent.

multi-unit housing means 2 or more dwellings, whether attached or not, but does not include a hotel or motel.

Under the Hornsby Local Environmental Plan 2013 the existing development meets the definition of dual occupancy (detached) which is permitted with consent under the State Environmental Planning Policy (Housing) Amendment (Dual Occupancies and Semi-detached Dwellings) 2024 (Amendment SEPP) which commenced operation on 1 July 2024.

dual occupancy (detached) means 2 detached dwellings on one lot of land but does not include a secondary dwelling.

SITE

The 1062m² battle-axe lot is located on the south side of Pennant Hills Road, Normanhurst and contains an existing dual occupancy (detached) with shared detached double garage. The site is accessed via an existing Right of Access from Pennant Hills Road.

The site experiences a fall of 9 metres from the front boundary to the rear boundary.

The site is not bushfire prone land nor flood prone.

The site is burdened by a Right of Access 6.095m wide, Easement for Overhang, Easements to Drain Water and Restrictions of the Use of the Land regarding On-site Detention Systems (OSDs). The site benefits from an Easement for Drainage 1.22m wide.

PROPOSAL

The application proposes the Torrens title subdivision of an existing detached dual occupancy into two lots.

· Proposed Lot 21 would have an area of 669.7m² (299.6m² excluding the existing access handle and proposed Right of Carriageway) and would contain an existing dwelling and the west half of the existing double garage. Vehicular access to proposed Lot 21 would be via the existing access handle from Pennant Hills Road.

· Proposed Lot 22 would have an area of 368.1m²(365.1m² excluding the proposed Right of Carriageway) and would contain the existing dwelling and the east half of the existing double garage. Vehicular access to proposed Lot 22 would be via the existing access handle from Pennant Hills Road.

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.

New 5-year housing targets have been set for 43 Local Government Areas in the Greater Sydney, Central Coast, Hunter and Greater Newcastle and Illawarra-Shoalhaven regions and one target for regional NSW.

These replace outdated targets in Greater Sydney previously set by the Greater Sydney Commission for 2021-22 to 2025-26.

The identified challenge for Hornsby Shire will be to provide 5,500 new completed homes by 2029 and set the trajectory for NSW to meet its commitment of delivering 377,000 new homes, aligning the targets to the commitment of local, state and federal governments to the National Housing Accord.

The proposed development would not be inconsistent with the National Housing Accord, Greater Sydney Region Plan - A Metropolis of Three Cities and the North District Plan.

2. STATUTORY CONTROLS

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

2.1 Hornsby Local Environmental Plan 2013

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

2.1.1 Zoning of Land and Permissibility

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

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

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

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

2.1.2 Permissibility

The approved development is defined as ‘dual occupancy (detached)’ under the HLEP and was prohibited in the R2 zone until 1 July 2024.

A dual occupancy (detached) is permitted with consent under the State Environmental Planning Policy (Housing) Amendment (Dual Occupancies and Semi-detached Dwellings) 2024 (Amendment SEPP) which commenced operation on 1 July 2024.

Once the Torrens title subdivision is registered, the dual occupancy would become two separate dwelling houses, and therefore the HLEP and HDCP controls pertaining to dwelling houses would apply. The proposed Torrens title subdivision is permitted under the Environmental Planning and Assessment Regulation 2021 with development consent.

2.1.3 Minimum Lot Size

Clause 4.1 of the HLEP prescribes that the minimum subdivision lot size is not to be less than shown for the land on the minimum Lot Size Map, which is 500m².

The proposed subdivision would result in proposed Lot 21 having an area of 669.7m² (299.6m² excluding the existing access handle and proposed Right of Carriageway) which would result in a 40.08% contravention to the minimum lot size development standard.

Proposed Lot 22 would have an area of 368.1m²(365.1m² excluding the proposed Right of Carriageway) which would result in a 26.98% contravention to the minimum lot size development standard.

The application is supported by a submission pursuant to Clause 4.6 of the HLEP to contravene the minimum 500m²minimum lot size development standard, which is discussed below in Section 2.1.4 of this report.

2.1.4 Exceptions to Development Standards

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

The proposal exceeds the minimum lot size requirements specified in the HLEP Clause 4.1 ‘Minimum subdivision lot size’ which requires a minimum lot size, as per the ‘Lot Size Map’ of 500m².

The Objectives of Clause 4.1 of HLEP are as follows:

(1) The objectives of this clause are as follows—

1. To provide for the subdivision of land at a density that is appropriate for the site constraints, development potential and infrastructure capacity of the land,

2. To ensure that lots are of a sufficient size to accommodate development.

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 that:

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

(b) 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 Clause 4.6(3)(a), the consent authority must be satisfied that the applicant’s written request adequately addresses the matter as opposed to the determining authority 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.

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

2.1.4.1 Unreasonable or Unnecessary 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 Key Urban Planning, dated 8 October 2024 provides a detailed assessment of the proposal with respect to the development standard sought to be contravened. The request argues that:

· The variation to the site area standard does not compromise the scale and appearance of the development which is in keeping with the character of the area and the relevant density provisions that applied at time of the approval of the two dwellings. The built form will not change because of the proposed subdivision.

· The objectives of the standard can be achieved, notwithstanding the non-compliance with the lot size standard.

· The underlining objective of the minimum lot size that applies to the subject site is to ensure that the resultant bulk and scale of the building is appropriate for the site in its context to the surrounding development. The proposal involves no change to the existing built form on the site that complied with the relevant planning controls at the time of granting development consent.

· The density of development will not be increased. The strict application of the lot size standard does not have regard to the historic context of the approval granted for the existing development. The proposed subdivision will not undermine the purpose of the standard by resulting in a density greater than exists.

· The underlying object or purpose of the standard would not be defeated or thwarted if compliance was required. However, strict compliance with the development standard would result in a missed opportunity to facilitate separate ownership of the dwelling houses providing affordable housing stock in the Normanhurst district.

· It is considered that compliance with the standard in the circumstances is unreasonable and unnecessary when considering historic approvals by the council in the locality.

· Lot 1 was approved with an area of 406m². Lot 1 did not comply with Clause 14 of the LEP 1994 in relation to the minimum lot size (500m²). The council approved the subdivision that created lot 1 by supporting a now repealed SEPP 1 objection. The two dwellings on the subject site complied fully with the density provisions applicable at the time in granting consent under the LEP 1994.

· The proposed variation is consistent with the heads of consideration set by the decision of Wehbe v Pittwater Council [2007] and thus that for this case it would be unreasonable to strictly apply the numerical lot size standard for the development.

· Until recently, the two dwellings on the subject site were prohibited under the HLEP 2013 as the development was defined as a ‘Dual Occupancy (detached)’. The existing development benefitted from “existing use rights”. The planning principles in Fodor Investments v Hornsby Shire Council (2005) 141 LGERA 14 would be applicable.

· Recent amendments to State Environmental Planning Policy (Housing) 2021 under the introduction of Part 12 now permit dual occupancy development within the R2 zone in the Hornsby LGA. The council has not adopted any specific planning controls to regulate density or built form for dual occupancy development and the proposed subdivision of the existing dual occupancy development does not contravene any density provisions for dual occupancy development.

Council notes that the objectives of Clause 4.1 of the HLEP are as follows:

(a) To provide for the subdivision of land at a density that is appropriate for the site constraints, development potential and infrastructure capacity of the land,

(b) To ensure that lots are of a sufficient size to accommodate development.

With reference to the reasoning provided by the applicant above, Council does not object to the conclusion that the proposed subdivision meets the objectives of Clause 4.1. In reaching this conclusion the following points are noted:

· The proposal seeks approval for the Torrens title subdivision of an existing dual occupancy (detached).

· There would be no change to the existing density of development on the site and the existing infrastructure supports the capacity of the land.

· The proposal does not seek approval for any physical works with the subdivision limited to a change in the title of the property and minor works to the existing garage.

· The existing dual occupancy (detached) is provided with separate services and is ideally suited to the subdivision as proposed.

· The proposed subdivision will not result in any detrimental impacts.

For the reasons outlined above, it is considered that the written request to contravene the standard adequately demonstrates that the objectives of the minimum lot size development standard contained within Clause 4.1 of the HLEP are achieved, notwithstanding non-compliance with the standard.

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:

· On 11.2.1998, Council granted development consent (DA/675/1997) for the subdivision of one allotment into two and the erection of two multi-unit dwellings on the site. The lots did not comply with the provisions of the applicable planning instrument (HSLEP 1994) in relation to minimum allotment size, however, the “SEPP 1” application lodged by the applicant in this regard was supported. The proposal will simply facilitate the creation of separate title for the existing two dwellings on the site and considering the circumstances of the case, is an acceptable outcome.

· The proposed subdivision will not result in any change to the existing built form on the site. No changes will occur that would impact on the existing streetscape to Pennant Hills Road and no impacts will result to the existing topography.

· The public interest is served by developing the land in an efficient and economic way that enhances the character of the area and amenity of the neighbourhood. The public interest can extend to a wide variety of factors and would include that there is a critical shortage of housing and land within the Sydney metropolitan area.

· The proposal is consistent with the 20-year vision for Housing in NSW contained in the NSW Government’s Housing 2041 that embodies the government’s goals and ambitions to deliver better housing outcomes by 2041— housing in the right locations and housing that suits diverse needs.

· The proposed development is an infill development that meets the objective of the R2 zone so as to provide for the housing needs of the community in a low-density residential environment.

· Private Open Space areas to both the existing dwellings remain unchanged and provide for adequate solar access and are of a depth that attains sufficient solar access even in mid-winter due to the natural topography and location of the accessway. Direct solar access to the proposed lots within the subject development and the rear yards of adjoining residences is attainable for a minimum 3 hours between 9 am and 3 pm at the winter solstice. The proposed subdivision will not change the existing development and the proposed site boundaries conform with the existing approved layout.

· The proposed subdivision is compatible with the surrounding residential land and subdivision pattern and will provide for the housing needs of the community. The density achieved by the subdivision will not be altered and will facilitate separate ownership of each allotment. The subdivision will maintain the low-density residential environment that exists in the locality while providing for housing demands within the Hornsby Local Government Area.

· The proposed subdivision is not antipathetic to the existing subdivision pattern that has evolved over time within the locality.

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.

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%.

Accordingly, it is considered that the written request satisfactorily responds to the relevant matters required to be addressed under Clause 4.6(3) and that the Panel, as the consent authority, may rely upon the written request and grant consent to the proposed development.

2.1.5 Heritage Conservation

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

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 site is located within the catchment of Sydney Harbour. The aim of this chapter is to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained. This chapter provides general planning considerations and strategies to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained.

The plan addresses matters related to biodiversity, ecology and environment protection; public access to, and use of, foreshores and waterways; maintenance of a working harbour; interrelationship of waterway and foreshore uses; foreshore and waterways scenic quality; maintenance, protection and enhancement of views and boat storage facilities.

The proposal does not require any building works and would have minimal potential to impact on the Sydney Harbour Catchment and would comply with the requirements 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 Chapter 4 of State Environmental Planning Policy (Resilience and Hazards) 2021.

2.3.1 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.

2.4 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.

2.5 Hornsby Development Control Plan 2024

The proposed development has been assessed having regard to the relevant desired outcomes and prescriptive requirements within the Hornsby Development Control Plan 2024 (HDCP). The following table sets out the proposal’s compliance with the prescriptive requirements of the Plan:

HDCP - Part 3.1 Dwelling Houses & Part 6 Subdivision
Control	Proposal	Requirement	Complies
Site Area	1,062m²	N/A	N/A
Lot Area
- Lot 21	669.7m² (299.6m² exc. access handle and proposed ROC)	500m²	No
- Lot 22	368.1m²(365.1m² exc. proposed ROC)	500m²	No
Minimum Lot Width
- Lot 21	16.4m	12m	Yes
- Lot 22	18.3m	12m	Yes
Accessway Width	6.095m	3.5m	Yes
Setbacks on Lot 21
- Side (north)	60m	900mm	Yes
- Side (east)	1.2m	900mm	Yes
- Side (west)	1.47m	900mm	Yes
- Rear (south)	4.5m	3m	Yes
Setbacks on Lot 22
- Side (north)	1.7m	900mm	Yes
- Side (east)	1.58m	900mm	Yes
- Side (west)	870mm	900mm	Yes
- Rear (south)	7.4m	3m	Yes
Landscaping
- Lot 21	>20%	20%	Yes
- Lot 22	>20%	20%	Yes
Open Space
- Lot 21	>24m²	24m²	Yes
- Lot 22	>24m²	24m²	Yes
Car Parking
- Lot 21	1 space	2 spaces	No
- Lot 22	1 space	2 spaces	No

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.

2.5.1 Transport and Parking

The desired outcome of Part 1.3.2.1 Transport and Parking of the HDCP is to encourage “car parking and bicycle facilities that meet the requirements of future occupants and their visitors” and “development with simple, safe and direct vehicular access”.

This is supported by the prescriptive measure which states that “car parking should be provided on site in accordance with the minimum parking rates Table 1.3.2-c. Parking spaces are for cars, unless otherwise specified’.

Table 1.3.2-c states that the onsite car parking rates for dwelling houses with 3 or more bedrooms is 2 spaces per dwelling.

The application proposes to retain the existing double garage, with a single car parking space allocated to each proposed lot.

In support of this non-compliance, it is noted that there are no changes to the existing parking configuration at the site, with each of the existing dual occupancies having one space per dwelling.

The proposal meets the desired outcomes of Part 1.3.2.1 Transport and Parking of the HDCP and is considered acceptable.

2.6 Section 7.11 Contributions Plans

Hornsby Shire Council Section 7.11 Contributions Plan 2020-2030 does not apply as the development would not increase demand for services and no additional dwellings are proposed as the existing dual occupancy is to be retained as approved under DA/82/1993.

Accordingly, the requirement for a monetary Section 7.11 contribution is not required to be imposed as a condition of consent.

2.7 Housing and Productivity Contribution

The Housing and Productivity Contribution applies to the development as it would result in an additional lot. Accordingly, the requirement for a monetary Housing and Productivity contribution is recommended as a condition of consent.

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

The proposed development would not necessitate the removal of any trees from the site.

3.1.2 Stormwater Management

The proposed development would be serviced by the existing on-site stormwater detention system to Council’s drainage system in Dunbar Close.

The application does not propose to alter the existing stormwater drainage system for both Lot 21 and Lot 22 and no building works are proposed that would increase the stormwater runoff.

3.2 Built Environment

3.2.1 Built Form

The application does not propose any physical works excluding minor internal works to the existing double garage for a fire rated wall. The existing structures on the subject site would remain unchanged and therefore there is no change to the existing built form.

3.3 Social Impacts

The Torrens title subdivision would improve housing choice in the locality by providing a range of household types available on a separate title. 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 proposed Torrens title subdivision would not result in any economic impacts to the locality.

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 16 September 2024 and 7 October 2024 in accordance with the Hornsby Community Engagement Plan. During this period, Council received no submissions.

NOTIFICATION PLAN

• PROPERTIES NOTIFIED

X SUBMISSIONS

RECEIVED

PROPERTY SUBJECT OF DEVELOPMENT

No submissions were received.

5.2 Public Agencies

The development application was not required to be 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 the Torrens title subdivision of an existing dual occupancy into two lots.

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.

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

The reasons for this decision are:

· The applicant’s written request has adequately addressed the matters required to be demonstrated by clause 4.6(3) of the Hornsby Local Environmental Plan 2013 that:

o compliance with the development standards is unreasonable or unnecessary in the circumstances of the case, and

o there are sufficient environmental planning grounds to justify contravening the development standards.

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.	Clause 4.6
2.	Subdivision Plan
3.	Stormwater Drainage Plan

File Reference: DA/996/2024

Document Number: D08986178

SCHEDULE 1

GENERAL CONDITIONS

Condition

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
279.33	Plan of Subdivision of Lot 2 DP 1128815	Geoffrey Allan Golledge - Rennie Golledge	Undated

Supporting Documentation

Document Title	Prepared by	Dated	Council Reference
Stormwater Concept Plan	ASCO Engineering	23/07/2024	D08962137

Reason: To ensure all parties are aware of the approved plans and supporting documentation that apply to the development.

2. Construction Certificate

1. A Construction Certificate is required to be approved by Council or a Principal Certifier prior to the commencement of any construction works under this consent.

2. 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. Housing and Productivity Contribution

Before Subdivision Certificate, the housing and productivity contribution (HPC) set out in the table below is required to be made.

Housing and productivity contribution	Amount
Housing and productivity contribution (base component)	$12,643.94
Total housing and productivity contribution	$12,643.94

The HPC must be paid using the NSW planning portal.

At the time of payment, the amount of the HPC is to be adjusted in accordance with the Environmental Planning and Assessment (Housing and Productivity Contributions) Order 2024 (HPC Order).

The HPC may be made wholly or partly as a non-monetary contribution (apart from any transport project component) if the Minister administering the Environmental Planning and Assessment Act 1979 agrees.

The HPC is not required to be made to the extent that a planning agreement excludes the application of Subdivision 4 of Division 7.1 of the Environmental Planning and Assessment Act 1979 to the development, or the HPC Order exempts the development from the contribution.

The amount of the contribution may be reduced under the HPC Order, including if payment is made before 1 July 2025.

Reason: To require contributions towards the provision of regional infrastructure.

BUILDING WORK

BEFORE ISSUE OF A CONSTRUCTION CERTIFICATE

Condition

4. Building Code of Australia

The internal common wall of the garage is required to be upgraded to comply with Part 9.2 of the National Construction Code - 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).

5. 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 Certifier for the development to which the work relates (not being Council) has given Council written notice of the following information:

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

a. The name and licence number of the principal contractor; and

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

2. In the case of work to be done by an owner-builder:

a. The name of the owner-builder; and

b. 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 Certifier 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).

BEFORE BUILDING WORK COMMENCES

Condition

6. Site Sign

1. A sign must be erected in a prominent position on any site on which any approved work involving excavation, erection or demolition of a building is being carried out detailing:

a. The name, address, and telephone number of the Principal Certifier.

b. 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

c. Unauthorised entry to the work site is prohibited.

2. The sign must be maintained during excavation, demolition and building 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).

7. 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:

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

2. Could cause damage to adjoining lands by falling objects; and/or

3. Involve the enclosure of a public place or part of a public place; and/or

4. 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.

8. Toilet Facilities

1. 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.

2. Each toilet must:

a. Be a standard flushing toilet connected to a public sewer; or

b. Be a temporary chemical closet approved under the Local Government Act 1993; or

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

Reason: To ensure adequate toilet facilities are provided.

DURING BUILDING WORK

Condition

9. Hours of Work

1. All work on site (including remediation, demolition, construction, earth works and removal of vegetation), must only occur between 7am and 5pm Monday to Saturday.

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

Reason: To protect the amenity of neighbouring properties.

10. Environmental Management (Air Pollution)

The Applicant must take all reasonable steps to minimise dust generated during all works (including remediation, demolition, earthworks and construction) authorised by this consent. During works, the Applicant must ensure that:

1. Exposed surfaces and stockpiles are suppressed by regular watering.

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

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

4. Public roads used by these trucks are kept clean; and

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

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

11. Council Property

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

Reason: To protect public land.

12. 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.

13. Maintenance of Public Footpaths

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

Reason: To maintain safe pedestrian movement.

14. Storage and Removal of Waste

1. All demolition and/or construction waste must be stored in a waste receptacle and be removed from the site at frequent intervals. Materials are to be wholly contained within the waste receptacle and not overflowing.

2. All garbage and recyclable materials generated during work must be stored in a waste receptable and be removed from the site at frequent intervals. Materials are to be wholly contained within the waste receptacle and not overflowing.

Reason: To ensure the site is maintained to an appropriate standard cleanliness and prevent any nuisance or danger to health, safety or the environment.

BEFORE ISSUE OF AN OCCUPATION CERTIFICATE

Condition

15. 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.

LAND SUBDIVISION

BEFORE ISSUE OF A SUBDIVISION CERTIFICATE

Condition

16. Sydney Water - Section 73 Compliance Certificate

1. A compliance certificate must be obtained from Sydney Water, under Section 73 of the Sydney Water Act 1994. The Sydney Water assessment will determine the availability of water and wastewater services, which may require extensions, adjustments, or connections to their mains. Sydney Water recommends that an early application for the certificate be made, as there may be assets to be built and this can take some time.

2. A Section 73 Compliance Certificate must be obtained from Sydney Water and submitted to the Principal Certifier before a Subdivision Certificate will be issued.

3. Applications can be made either directly to Sydney Water or through a Sydney Water accredited Water Servicing Coordinator.

Note: Go to the Sydney Water website or call 1300 082 746 to learn more about applying through an authorised WSC or Sydney Water.

Reason: To ensure the development complies with the requirements of Sydney Water.

17. Utility Services

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

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

2. NBN - a letter of consent demonstrating that satisfactory arrangements have been made to service the proposed development.

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

18. Creation of Easements

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

1. A Right of Access over the access corridor.

2. Revised inter-allotment drainage easement(s) over each of the burdened lots.

3. Revised creation of an appropriate "Positive Covenant" and "Restriction as to User" over the existing 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.

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.

19. House Numbering

The house numbering for this subdivision shall be:

Lot	Street Number	Street Name	Street Type	Locality
Lot 21	121B	Pennant Hills	Road	Normanhurst
Lot 22	121A	Pennant Hills	Road	Normanhurst

Reason: To maintain property numbering in accordance with Australian Standards.

DA No:	DA/659/2024 (Lodged 28 June 2024)
Description:	Change of use to a farm gate premises
Property:	Lot 1 DP836106, No. 373-375 Galston Road, Galston
Applicant:	Mecone Group Pty Ltd
Owner:	Mr Kenneth W Waddell
Estimated Value:	$0
Ward:	A Ward
Clause 4.6 Request:	N/A
Submissions:	Nil
LPP Criteria:	councillor
Author:	Independent report prepared by Cristie Evenhuis, DFP Planning
COI Declaration:	No Council staff involved in the assessment of this application have declared a Conflict of Interest.

1.	Consultant Report
2.	Architectural Plans
3.	Plan of Management